National Security Bill (Eleventh sitting)

Debate between Holly Lynch and Stewart Hosie

Committee stage
Thursday 8th September 2022 Public Bill Committees

[Holly Lynch (Halifax) (Lab)]

It is a pleasure to serve under you as Chair once again, Ms Ali. They say a week is a long time in politics: never has that been truer than this week. I am very pleased to see the Minister in his place, but—for the second time over the course of this Committee—not quite as pleased as the hon. Member for North Cornwall that he once again has a Minister in place. I welcome the Minister to his role; as others have said, he is the fourth Minister we have had over the course of this Bill. We welcome the opportunity to continue to work together, now that we can make some vital progress on this really important piece of legislation. I also look forward to working with him on this policy area beyond just the legislation that is in front of us.

Turning to the detail of this group of clauses, clause 41 makes provision for the measures imposed under a part 2 notice to be varied in a number of different circumstances, as the Minister has outlined. Subsection (2) makes it possible for the Secretary of State to vary a relocation measure in a part 2 notice if considered necessary

“for reasons connected with the efficient and effective use of resources in relation to the individual”.

We are satisfied with those measures, and recognise the necessity of the remaining provisions in the clause.

Clause 42 provides a power for the Secretary of State to revoke a part 2 notice at any time by serving a revocation notice, whether or not in response to a request by the individual. The Secretary of State may exercise that power where they consider it is no longer necessary for the part 2 notice and the measures imposed under it to remain in force. The explanatory notes say that

“although the measures may no longer be necessary at the time that the Part 2 notice is revoked (for example because the individual has been detained in prison), they may subsequently become necessary again (when the same individual is released from prison, perhaps following an unsuccessful prosecution for a criminal offence).”

As I have said before, the assumed prosecution rate for state threats in the Home Office impact assessment is just 33%, so I am concerned that we might need that level of flexibility, depending on the circumstances.

Subsection (6)(a) of the clause also provides a power for the Secretary of State to revive for a period of a year a notice that has previously expired without being extended, without the need for evidence of new state threat activity. Surely if a person continues to be a threat, the notice should not be allowed to expire; alternatively, if the notice has been allowed to expire because the person is no longer deemed a threat, reviving a notice without any new information surely could not be justified. On that basis, I would be keen to hear any further rationale for the provisions in subsection (6)(a).

When considering the revocation of part 2 notices, it is also worth considering what Jonathan Hall QC described as the “TPIM Catch-22” in his annual report on the terrorism equivalent of these part 2 measures:

“On the one hand, in order to test whether an individual would revert to terrorism-related activity in the absence of TPIM measures, there may be no alternative but to reduce or remove measures; for example, by allowing an individual to associate or move more freely.

“On the other hand, association and movement measures have been imposed precisely to counter the risk of terrorist-related activity. In the absence of evidence of risk reduction, to do so might put members of the public at risk of harm.”

It is not easy to step down from STPIMs once they have been imposed and there is a clock ticking on the restrictions imposed on a suspect, so what efforts are we making to establish best practice on this, so that clauses 41 and 42 can be deployed as effectively as possible?

Clauses 43 and 44, also in this group, make provision for circumstances in which a part 2 notice is “quashed” or directed to be revoked as a result of court proceedings, and schedule 6 rightly provides other circumstances in which an individual who is convicted of an offence under clause 50 has a right of appeal against that conviction.

Other than the points we have raised, we are satisfied that these measures strike an appropriate balance.

[Stewart Hosie]

I welcome the Minister to his place.

In this group, clause 41 allows for the variation of STPIMs, either on application by the individual on whom it has been served or by the Secretary of State, when certain circumstances apply. Most of the clauses in this group seem to make sense, but there is some slightly odd wording. I know the Minister described these measures as “technical” and said that they would improve provision, but will he give some clarity?

Clause 41(1)(c) provides the power to vary, which is available if necessary

“for purposes connected with preventing or restricting the individual’s involvement in foreign power threat activity.”

Why is that? The words “purposes connected with” appear to be a slightly odd formulation. Why is the requirement not simply to prevent or restrict involvement in “threat activity”?

That same question arises in relation to clause 41(2)(a), but in that paragraph what is meant by allowing a new relocation measure to be invoked when

“necessary for reasons connected with the efficient and effective use of resources in relation to the individual”?

What does that actually mean? The Minister described these provisions as “dynamic” and “efficient”. Are we saying that people may be moved for a second time simply to save money? The explanatory notes suggest that is the case, so I seek reassurance that such a provision will not be used unless genuinely necessary.

Clause 42 allows for the revocation of notices, including on application, but it does not appear to restrict the number or frequency of revocation applications. It also allows the Secretary of State to make a “revival notice” in regard to a part 2 notice that has expired or been revoked. It protects against expired notices already extended to the maximum limit, but it seems to leave open the possibility of revoking a four times extended part 2 notice and then reviving it, despite the time limit. That seems to be expressly permitted in clause 42(7)(b), although clause 42(9) appears to stop that. Will the Minister confirm that revival notices cannot be used to try to circumvent the absolute maximum of five years and that clause 42(9) will prevent that happening?

Turning briefly to schedule 6, which covers circumstances in which a person has been convicted of breaching a part 2 notice but the notice or extension is “quashed” so that the offence would not have been committed had it been quashed earlier. There are some very tight timescales in this schedule. For example:

“An appeal under this Schedule to the Court of Appeal against a conviction on indictment in England and Wales or Northern Ireland…may not be brought after the end of the period of 28 days beginning with the day on which the right of appeal arises”.

The same 28 days is used in relation to

“an appeal under this Schedule to the High Court of Justiciary”—

the Scottish High Court of Appeal—

“against a conviction on indictment in Scotland”.

There is a 21-day deadline on

“an appeal under this Schedule to the Crown Court against a summary conviction in England and Wales”.

There is a 14-day time limit on

“an appeal under this Schedule to the Sheriff Appeal Court against a summary conviction in Scotland”.

Some of these timescales, particularly the 14 day one, are very tight and it may be very tricky to know precisely when the clock starts ticking, as that depends on when a different clock has run out.

We may be slightly over-cautious. However, it appears ridiculous if people are left with convictions for breaching what would have been illegal orders. Would it not be more sensible in those circumstances, to avoid people having to go to appeal courts of one sort or another in short timescale, simply to automatically quash them? Why is there a time limit on the ability to appeal in any circumstance?

--- Later in debate ---

[Holly Lynch]

I am grateful to the Minister for that explanation. It is absolutely right that clause 45 sets out those rights to appeal. I have nothing further to add at this stage, but we will come back to oversight when we discuss later amendments and new clauses.

[Stewart Hosie]

Clause 45 includes the important power to appeal to the court against the decision to review or revive a part 2 notice; against variations, or the refusal of them; against unlimited revocation applications; and in relation to permission applications. As the Minister said, the function is to review the decision, and the court must apply the principles applicable on an application for judicial review.

That sounds fine—so far, so good—but why is there no right to appeal against a clause 35 permission to impose STPIM decisions, as made clear in clause 47? Is it because it is expected that other procedures will have the same effect, for example an application to revoke, or is this an attempt to limit in statute the ability of those subject to STPIMs having access to court to appeal in those circumstances?

--- Later in debate ---

[Holly Lynch]

I am grateful to the Minister for that introduction to clause 47 and schedule 7. I am particularly interested in what he had to say on special advocates and I will perhaps come on to that.

Schedule 7 introduces provisions relating to prevention and investigation measures and proceedings, as we have already heard. As outlined in the explanatory memorandum, paragraph 2 will take into account closed elements of proceedings where sensitive material is not disclosed as it would be contrary to the interests of the UK’s national security to do so, with paragraph 3 setting out the rules for the court on disclosure. In previous exchanges, we have examined the balance that needs to be struck on both these issues, so we expect the commitments to both transparency and national security to be weighed delicately in each instance.

We certainly welcome the guarantee around article 6 of the European convention on human rights, which is set out in paragraph 5. Paragraph 10 provides for the appointment of a special advocate in relation to any closed proceedings. A special advocate attends all parts of the proceedings—both open and closed—and plays a key role in scrutinising material while acting on behalf of the individual subject to the proceedings. The explanatory notes say that part of the function of the special advocate is to ensure that the closed material is subject to independent scrutiny and adversarial challenge, including making submissions in closed session on whether the closed material should be disclosed to the individual.

I think that the Minister confirmed that the special advocate would be a barrister, but I could not find any detail within the Bill or the explanatory notes about how a special advocate would be appointed and what their experience and background would be expected to be in such circumstances, when they would be providing such a specialist function. I would be grateful if there was a commitment to ensuring that those things are clear in the Bill and the explanatory notes that accompany it.

[Stewart Hosie]

Schedule 7 empowers the court to make rules in relation to reviewing proceedings and onward appearance, and the rules of court must secure not only a proper review of decisions, but

“that disclosures of information are not made where they would be contrary to the public interest.”

We can have determinations without a hearing, without full reasons being given for a decision—the Minister described that—and, when sensitive information is to be laid, hearings without the accused. There is a duty of disclosure on the Secretary of State, but he or she can apply not to disclose certain information on the grounds that disclosure would be

“contrary to the public interest.”

That rule means that the Secretary of State might be able to ignore other requirements to disclose information. That is Kafkaesque.

The Minister, rightly, prayed in aid national security; he was absolutely right to do that. We can all understand that there could be circumstances where such rules would be necessary, but does the legislation describe those circumstances appropriately? The watchwords appear to be “public interest”, but is that not far too wide or far too vague? Given he prayed in aid national security, why do we not only allow the avoidance of disclosure on genuine national security crimes?

--- Later in debate ---

[Holly Lynch]

The clause provides for an offence of contravening without reasonable excuse any measure specified in a part 2 notice. That, again, mirrors section 23 of the Terrorism Prevention and Investigation Measures Act 2011. According to the Government’s most recent transparency report, in December 2020 the total number of individuals who had been served a notice since TPIMs were introduced in 2011 was 24, so compliance is relatively high. But so are the stakes when someone breaches the terms of such measures.

According to the “Statistics on the operation of police powers under the Terrorism Act 2000 and subsequent legislation” quarterly report from the Home Office, the number of people who have been prosecuted and convicted under section 23 of the TPIM Act, meaning that they contravened an order, is 10. Like TPIMs, the primary function of STPIMs is to be able to control and monitor those who represent a serious threat to our national security but cannot yet be prosecuted. We have been assured that the primary function of an STPIM is to be able to manage a person while an investigation into a part 1 offence is established, rather than simply creating a situation where a prosecutable breach is highly likely.

We note the particular focus on travel in clause 50, and that under subsection (2) an individual who travels without permission loses any reasonable excuse defence. Given that we anticipate that there might be a higher number of foreign nationals and dual nationals in this cohort due to the state threat nature of the offences, it is possible that we might have higher numbers of requests to attend overseas births and deaths of family members and loved ones among the cohort. However, the risk of permitting that travel, which might mean a return to a very hostile state that we fear is sponsoring the individual’s activity, presents a massive challenge. To ensure there are robust decision-making processes around those considerations and to have good reporting and a review of those elements of the clause would be welcome additions.

[Stewart Hosie]

As the Minister said, the clause creates a criminal offence of contravening without a reasonable excuse a measure in a part 2 notice, but there is no defence of reasonable excuse if the subject leaves the UK when they are restricted from doing so. In normal circumstances, a breach of a part 2 notice would leave the individual subject to five years’ imprisonment on indictment, or 12 months’ imprisonment on a summary conviction in Scotland, but that becomes nine years’ imprisonment on indictment for a breach of a travel measure.

I wish simply to get to the bottom of why some of the breaches of a part 2 notice appear to be disproportionately harsh. The Minister said that much of this provision mirrors the provisions of TPIMs; does this bit—the doubling of the tariff for a breach of a travel measure—mirror the TPIMs provisions? If it does, how often was such a penalty imposed for such a breach under the existing provisions?

--- Later in debate ---

[Holly Lynch]

I have a couple of queries on schedule 8, which provides powers of entry, search, seizure and retention in a number of scenarios relating to part 2 notices.

I have queried the use of the word “constable” in legislation before, but it seems to be standard. Paragraph 9(9) states:

“The warrant may be executed by any constable.”

Previous schedules specify certain ranks and specialisms, such as counter-terrorism officers, to undertake such duties. Are we satisfied that further stipulations on who may execute a warrant are not required?

Sub-paragraph (10) states that a warrant issued by a court to search the individual, the individual’s place of residence, or other premises specified by the warrant, expires after 28 days. That period feels a bit odd to me. We want officers to have the flexibility they need, but I cannot imagine a scenario in which they have grounds to apply for a warrant but then take more than 20 days after it is issued to execute it. I am grateful to counter-terrorism police for sharing a bit more about their operations and how these warrants are used, which has provided some reassurance on this front, but will the Minister confirm that a warrant cannot be executed more than once in the 28-day period?

[Stewart Hosie]

Clause 51 applies schedule 8, which makes provision about various powers of entry, search, seizure and retention—to enter and search premises for the purpose of personally serving, to search for items that breach the notice, and to search when there is a suspicion of absconding. A warrant is required to search people or premises for the purposes of determining whether an individual is complying with the measures specified in the notice, and the warrant is to be granted only if necessary.

However, some of the powers in paragraph 10 appear to be rather broad, allowing a person to be searched without a warrant to see whether they might be

“in possession of anything that could be used to threaten or harm any person”.

I am not quite sure what that means. Unlike in the case of other warrantless powers, there is no requirement even for suspicion that someone is likely to threaten or cause harm. What is the justification or the reason for that?

Paragraphs 11 and 12 contain very strong powers to retain certain items which are seized, with no time limit other than

“as long as is necessary in all the circumstances.”

There follows a non-exhaustive example of what could represent necessity, but necessary for what? Is there provision for a person to challenge the ongoing retention of property seized by police under these powers? Is there a model for this drafting that has been used elsewhere? If there is, and if a piece warrantless search and retention legislation exists, how frequently is such a measure used?

--- Later in debate ---

[Holly Lynch]

I listened intently to the Minister. Schedule 9 makes provision for the taking and retention of fingerprints and non-intimate samples from individuals subject to a part 2 notice. Schedule 9, like schedule 3, is subject to several Government amendments. As the explanatory notes explain, fingerprints and non-intimate samples have the same meaning as that given in section 65 of PACE 1984. I would be grateful to the Minister for some clarity on that, which he may need to provide in writing. There is a lot going on in relation to biometrics in different parts of the Bill.

Paragraphs (6) to (11) make provision relating to the destruction and retention of material taken from individuals subject to a part 2 notice. The explanatory notes say that where an individual has no relevant previous convictions, fingerprints and DNA profiles may be kept for only six months after the part 2 notice ceases to be in force. Paragraph (11) goes on to state that, as provided in the Protection of Freedoms Act 2012, material taken under PACE, for example, or that is subject to the Terrorism Act 2000 or the Counter-Terrorism Act 2008, need not be destroyed if a chief office of police determines that it is necessary to retain that material for purposes of national security. Given that we are dealing almost exclusively with matters of national security in schedule 9, can we assume that the majority of biometric evidence taken from individuals subject to part 2 notices may be held indefinitely under this provision?

I am reliably informed that the biometric retention provisions in the Bill are designed to bring the powers into line with similar provisions in terrorism legislation. Schedule 9(8) deals with the retention of biometrics collected in the course of the service of a part 2 notice under the STPIM provisions. That provides us with a retention of six months prior to a national security determination being made, and is therefore in line with the provision under schedule 6 of the Terrorism Prevention and Investigation Measures Act 2011.

A separate provision for the retention of biometrics can be found in paragraph 22 of schedule 3. It provides for a retention period of three years for those detained under schedule 4 provisions, in line with biometrics collected under section 41 of the Terrorism Act 2000 and section 41 of the Counter-Terrorism Act 2008, which qualify terrorism offences.

Beyond the initial retention period, both provisions are capable of retention by way of a national security determination process. I have lost track—I do not know whether other Members have—of whether we are keeping biometrics for an initial six months, as schedule 9 seems to outline, or for three years, which is the case elsewhere in the Bill. I suspect the Minister is unable offer absolute clarity right now—although I have no doubt that the civil servants think it is absolutely crystal clear—but I would be grateful if he could outline, perhaps in writing, the rationale for the different provisions.

Government amendment 32 specifies that the chief constables of the Ministry of Defence police and the British Transport police, and the director general of the National Crime Agency, are added to paragraph 9(4) of schedule 9. The responsibilities of the Civil Nuclear Constabulary are different from those of other forces, but is the Minister certain that it does not need to be added to the list?

[Stewart Hosie]

I am aware that similar provisions were debated in relation to schedule 3, and concerns were raised then that the provisions may end up allowing the indefinite retention of the material of people who have accepted cautions—indeed, even youth cautions—meaning that they were never charged, never mind convicted. The Minister has not provided much of a justification for that, other than that he wants the legislation to mirror the provision in other Acts. He used the same argument in his introductory remarks.

That is not enough. Provisions on the ability to retain material indefinitely on whatever grounds must be justified in their own terms in this legislation. I know that the Minister is new to the job, so if he cannot do that now, he can write with that explanation, as the hon. Member for Halifax said. Notwithstanding the fact that we all want the maximum powers necessary to tackle the state threat and the terrorist threat, if his explanation is not compelling or convincing, the provisions will need to be revisited at a later stage.

National Security Bill (First sitting)

Debate between Holly Lynch and Stewart Hosie

Committee stage
Thursday 7th July 2022 Public Bill Committees

[Stewart Hosie]

Q On the point about beyond reasonable doubt, one of the conditions in clause 33 to deploy an STPIM is that the Secretary of State would reasonably believe that the individual is or has been involved in some activity. If we remove “beyond reasonable doubt”, is “reasonably believes” sufficient, or should it be on the balance of probability?

Jonathan Hall: My view is that it is the same thing.

[Holly Lynch]

Q You said in response to my hon. Friend the Member for Birmingham, Yardley that you had a point to make about part 1. I want to give you the opportunity to make that point.

Jonathan Hall: I am slightly uncertain and concerned about the scope of clause 3(2), the foreign intelligence services offence. On the face of it, an offence could be committed inadvertently, and it does appear to cover quite a lot of lawful conduct. The example that I have been debating with officials is the example of someone who sells miniature cameras, which is undoubtedly conduct of a kind that could assist a foreign intelligence service. My concern with clause 3(2) is that it does not seem to have a sufficient mental element, either that the individual who commits the offence is deliberately acting prejudicially to the UK interest, or knows or ought to suspect that there is some foreign intelligence service involvement, so I have a concern about that particular clause.