National Security Bill

Kevan Jones Excerpts

2nd reading
Monday 6th June 2022 Commons Chamber

[Mr Kevan Jones (North Durham) (Lab)]

I am at a bit of a loss to understand why the Government have not brought forward reform of the 1989 Act, because the security services, in evidence to the Intelligence and Security Committee, has said it is unfit for purpose—I think even the Government have admitted that, and so has the Law Commission. If we do not amend or substantially change that Act, we will have a situation where someone can get life for foreign espionage under this legislation, but only two years under the Official Secrets Act 1989. Surely this is an opportunity to update all that legislation? I cannot understand why the Government are doing things in this way.

[Priti Patel]

The right hon. Gentleman will appreciate that, whether that is the view of the Law Commission or others, reform of the Official Secrets Act is complicated and not straightforward. I can tell colleagues that no one would be happier than I to present a reform agenda in that space, but it is not straightforward—[Interruption.] I appreciate colleagues’ gesturing on the Back Benches, but it is important that on this complex reform we continue to engage with a wide range of interests and give all due consideration to a number of concerns, because there are many, many concerns being raised.

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[Priti Patel]

My hon. Friend is absolutely right. He has touched on lobbying, as just one example, but we could expand the list. We have discussed in this House other enablers and facilitators, whether it is through Parliament or other means, to get access to the state, or institutions or arms of the state. I spoke earlier about the lacunas—the areas that we have to close down, or the grey zone, across the board. My hon. Friend has spent a great deal of time on this issue through the Foreign Affairs Committee. He is very much pursuing it and we look forward to working with him on it.

[Mr Kevan Jones]

I am listening carefully to what the Home Secretary is saying, but why is there not in the Bill the foreign influence registration scheme that was called for by the Intelligence and Security Committee report on Russia in 2020? She said that the Government are working on it, but the United States have had this legislation since 1939 and the Australians brought in emergency legislation in 2018, so what is so difficult if one country has had it for over 70 years and the other one has brought it in more recently? Why is it not in the Bill? Is it going to be inserted later by an order of the House, which would be unfortunate as we have not had a chance to debate it today?

[Priti Patel]

Our intention is to bring forward foreign agent registration and it will be brought forward in the Commons; let me give that assurance. [Interruption.] The right hon. Gentleman asks what is so difficult about it. There are a number of difficulties. It is not just a case of lifting and shifting what the US and Australia have done. We have been working with our Five Eyes colleagues. There have not just been many debates but we have working with colleagues who have themselves had difficulties in some parts of enforcement. We have had very close links with our Australian counterparts in terms of workability. We want to get it right. There will be an open debate about it in Committee and everywhere else, and we look forward to working with the right hon. Gentleman on that.

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[Priti Patel]

Importantly, this is where we need to join up both ends of the legislation. That is absolutely vital, through this Bill and the wider work on online harms, but there are changes that we certainly want the platforms to be putting in place. We have touched on the accountability of platforms already, but there is just so much more that they need to do and which is their responsibility.

My hon. Friend makes an important point about how, for example, if we look at counter-terrorism offences and platforms’ approaches to footage online, GIFCT—the Global Internet Forum to Counter Terrorism—has led the way on some significant change. That is what we need to see across the board here, and we really need them all to come together.

[Mr Kevan Jones]

On foreign influences, why does the Bill cover someone who “intends” to have a negative impact? Elsewhere, the Bill talks about behaviour that is “reckless” and individuals who “ought reasonably to know” that their behaviour would be damaging. Can I ask why there is this difference between the two? Surely it would strengthen this part of the Bill to have the “reckless” and the “ought reasonably to know” behaviour test.

[Priti Patel]

At the end of the day, we are focused on individuals who are trying to do harm to our country. I will look specifically at that—obviously, I will—but intent is also based on the information and activity that can come together around some of the individuals. Right now, we are only referring to much of this on a case-by-case basis, but as we have learned with recent examples, some of which I might come on to, we can see the intent and the harm in the sequence of activity that has taken place around individuals.

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[Yvette Cooper]

As I have said, these debates will rightly take place through the usual channels to ensure that we have that scrutiny. I am also keen to ensure that the evidence session can take place in plenty of time.



Another issue that Members on both sides of the House have raised is the absence of reforms to the Official Secrets Act 1989, and on that point I am slightly less clear what the Government’s intention is. My understanding from what the Home Secretary has said is that she does not plan to bring forward measures in this Bill but that she is looking at the issue further. The Law Commission has raised important issues about the need to improve prosecutions in certain areas and to have public interest safeguards, both of which are immensely important, as I think the Home Secretary has recognised. Will she and the Security Minister therefore engage at an early stage in discussions on this issue with Members on both sides of the House?

[Mr Kevan Jones]

Like my right hon. Friend, I am not clear what the Home Secretary’s timetable is for reviewing the 1989 Act. However, if the Bill goes through as outlined, some of the penalties in it will be life imprisonment, and some in the 1989 Act will be two years. Having the two Acts working together will create a very difficult process. Surely the obvious thing to do is to get the reforms into the Bill as it goes through Parliament.

[Yvette Cooper]

My right hon. Friend makes an important point, and he obviously speaks with the Intelligence and Security Committee’s insight on this issue. The only other consideration I would raise is that a last-minute proposal from the Government would be a problem, because we would end up not having full scrutiny, and this is an area where it is important to get the legislation right. On the points that the Committee has made about the importance of reforms to the 1989 Act, I encourage the Security Minister and the Home Secretary to have early discussions with members of the Committee, Opposition Front Benchers and Members on both sides of the House who have concerns. We will inevitably need to debate these issues during the passage of the Bill, even if the Government want to propose future legislation on a different timetable. Having those discussions at an early stage to try to get this right would be important.

We are also concerned about areas of the Bill relating to the ability of foreign powers to use misinformation and disinformation online, which the hon. Member for Folkestone and Hythe (Damian Collins) mentioned. My understanding of the interaction between this Bill and the Online Safety Bill is that some cases where misinformation or disinformation is repeatedly put online by a foreign state will not be covered and that there will not be a responsibility on social media platforms to remove some of that material, but it would be helpful to have some clarification from Ministers. Obviously that is an area where most of us in the House would want further action to be taken and would want there to be more responsibility on social media companies to take action. We would therefore like to explore whether there are further amendments that we could bring forward to this Bill or the Online Safety Bill. That would be very helpful.

We are also concerned about direct attempts to interfere with our democracy and elections. The Home Secretary has rightly included in the Bill measures to tackle foreign interference in elections but, as the Government will know, offences make little odds if they cannot be detected or measures are rarely enforced. As the Home Secretary will know, we have urged the Government to remove the loophole that allows shell companies to be used to make donations to political parties and to hide foreign donations and donations linked to hostile states. She will also know that the former director general of MI5, Lord Evans, who is now the head of the Committee on Standards in Public Life, has warned about the risks from shell companies, describing the risk from

“powerful forces out there that are trying to bring undue influence, part through parliament and part through money. We made some recommendations to close some of those loopholes but government hasn’t acted on them.”

Since the atrocity that is the illegal invasion of Ukraine, the Government have had to recognise that it has been far too easy for Russian money, built up through illegal activity or state-sponsored corruption, to find its way into the London economy. Again, we have both the follow-up economic crime Bill and this Bill, but I urge the Home Secretary to ensure that the loophole on shell companies is closed and that those weaknesses in our democracy are addressed, because the loophole in itself is a threat to national security.

My hon. Friend the Member for Rhondda (Chris Bryant) raised concerns about MPs being targeted. There are also concerns about Ministers potentially being targeted. The Home Secretary will know that the shadow Security Minister has raised questions about reports that the Prime Minister, when he was Foreign Secretary, met with a former KGB agent soon after the Skripal attack. I have not heard concerns raised that that was a planned or intended meeting, but nevertheless the reports of the meeting show how easy it is for Ministers, as well as MPs, to be targeted by agents of foreign and hostile states. I urge Ministers to provide some clarity about that meeting—whether it took place, whether civil servants were present—and about what protocols should govern how meetings take place for Ministers, what kind of debrief should happen afterwards and what kind of safeguards should be in place, and whether those will be covered by this Bill or we need additional protocols for civil servants, MPs and Ministers.

There are some areas where we will want to question the drafting of the Bill, because it is very broad. For example, there is obviously a difference between someone who is meeting the foreign intelligence agencies of our closest allies—for example an academic who meets with an Australian foreign intelligence service, providing it with useful information that might help with our joint Five Eyes security arrangements and might be in all our interests—and an academic meeting with someone from the Chinese intelligence agencies and handing over intellectual property or research information that undermines British industry.

We are keen to explore in Committee how those differences will be addressed in the Bill and how, for example, it will address some of the issues around co-operation with Ireland over Northern Ireland security issues, which will clearly raise some particular and special cases. We also want to explore what might incidentally benefit a foreign Government and what deliberately benefiting a foreign Government is, and how that is addressed. We also want to address some of the questions around the public interest and national security that hon. Members have raised.

We have already raised directly with the Minister for Security and Borders a series of questions and concerns about the drafting of clause 23, to ensure that it is not too wide and cannot be used to cover individuals committing serious crimes abroad. I welcome the letter we have received from him, but we want to pursue those issues in further detail in Committee.

Perhaps one of the most important issues that the Bill could easily address but does not yet is oversight. Because agencies rightly need to operate behind a veil of secrecy, there needs to be proper oversight to safeguard both those who work within the agencies and the national interest. The Bill rightly introduces an independent reviewer to look at the state threats prevention and investigation measures, and we know that is a parallel arrangement to the independent reviewer arrangements we have for terrorism prevention and investigation measures.

The Home Secretary will know that I have argued previously that it was wrong to replace control orders and that TPIMs were too weak. They have since rightly been strengthened. They are used in only a small number of cases, but it is immensely important that there is oversight of them, and there must be proper oversight of the STPIMs as well. It would not surprise me if they were used even less frequently than TPIMs, but there must be proper safeguards.

There is a gap in the oversight framework. The terrorism independent reviewer looks both at individual TPIMs and at terrorism legislation, so he can look at all of the aspects of terrorism legislation to see where there are gaps and whether it is not working effectively. The scrutiny by David Anderson and by Jonathan Hall has been invaluable. It has been good for Government, good for the agencies, good for Parliament, good for our national security and good for our historic freedoms and having the right safeguards in place.

That scrutiny by the independent reviewer has in the past identified weaknesses in terrorism legislation. Sometimes that has been exactly the point I raised about TPIMs becoming too weak and needing to be strengthened, but the independent reviewer has also identified areas where stronger safeguards were needed, particularly on digital measures, digital infrastructure and digital safeguards. There is a really strong case for having the same kind of independent scrutiny of the operation of these new powers on espionage. The Home Secretary has rightly said that this is important legislation, but also that this is the first time we are drawing up legislation in some of these areas and that some of the legislation has not been updated for many decades, so we should have some humility on this: Parliament will not get all the details right.

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[Mr Kevan Jones (North Durham) (Lab)]

It is a pleasure to follow the right hon. and learned Member for Kenilworth and Southam (Sir Jeremy Wright), and I congratulate him on his recent inclusion in the Queen’s honours list.

This Bill has been long coming; we have been waiting for several years now. The Government have made some improvements in it, but overall it is disappointing. As my hon. Friend the Member for Garston and Halewood (Maria Eagle) said, it is not the comprehensive legislation we were promised and, as has already been mentioned, it does not include the reform of the Official Secrets Act 1989.

The right hon. Member for New Forest East (Dr Lewis), the Chair of the Intelligence and Security Committee, which I have the privilege of being a member of, said that the Committee has called for nearly the past 20 years for the reform of the 1989 Act. I am one of the two remaining members of the Committee who were on it when we considered our Russia report. We made very clear in the recommendations of the report, published in 2020, that there was an urgent need for reform of that Act, which we described as not being fit for purpose. More importantly, we took evidence from the agencies, which all said that the Act was in need of reform. We recommended that it should be reformed, and said that without any major reform the security services would continue to have their hands tied when trying to tackle the job that we give them.

It is surprising that reform of the 1989 Act has not been brought forward in this Bill, because it has not just been raised by the ISC and the security services; the Government themselves have repeatedly said that the Act needs to be changed and reformed. In a 2020 report, the Law Commission also concluded that the Act was “outdated” and in “urgent need of reform”. Like my hon. Friend the Member for Garston and Halewood, I am at a loss as to why this reform is not in the Bill.

The 1911 to 1939 Official Secrets Acts are clearly repealed through the Bill, but if we do not change the 1989 Act, the current problems will persist. As has been mentioned, the requirement to prove damage from unauthorised disclosures is in most cases a real barrier to prosecution, and in some instances leads to more sensitive information having to be produced in court. That is a deterrent; it is a weakness that explains why the Act is not being used. Also, as I mentioned in an intervention on the Home Secretary, the maximum sentence under the 1989 Act is two years. In the Bill, we are introducing life sentences. I do not know what deterrent two years would be, even with the hurdles we have to get over, so I am at a real loss as to why these reforms have not been included in the Bill.

I am not clear from what the Home Secretary said when that reform will be brought forward. We all know how tight legislative time is. I would have thought that once the Government had a large Bill such as this one, they would want to do everything at once. Could it be that there is a lack of time? No, I do not think so, because the changes being put forward have been considered over many years. We need an explanation from the Government as to why this reform is not being done.

[Mr Steve Baker]

The right hon. Gentleman is making some very good points. I rather imagine that the damage that could be caused by an unlawful disclosure could include people losing their lives, and that one problem is that proving that damage could lead to yet further people losing their lives. I do not wish to tempt him where he must not go, but can he give those of us without access to classified information any indication of whether my worst imaginings are in any way accurate? If they are, it seems to me that a life sentence might be appropriate.

[Mr Jones]

I would not want to go anywhere near what is in the hon. Gentleman’s imagination. All I can say is: yes, we are talking about information that will have an impact not only on our general security, but on the security of individual agents and others. That is why I support the Law Commission’s recommendations to introduce a public interest defence and to create an independent statutory commissioner to investigate wrongdoing or criminality where disclosure would otherwise constitute an offence under the 1989 Act.

The absence of reform means that if we pass the Bill as it is now, there will be nothing in it to guard against large, mass disclosures of sensitive information; we will still rely on the 1989 Act. Even if somebody indirectly helped foreign powers, I cannot see how we could bring them to book under this Bill. We should support the introduction of a public interest defence, because it would make it easier to bring prosecutions. I have heard some people say, “This would really give journalists and others an opportunity to throw secrets out there.” No, it would not; it would put the onus on them to argue in court that it is in the public interest that the information is disclosed. It would be welcome, as it would ensure that people thought about what they did.

[Mr David Davis]

Does the right hon. Gentleman agree that the Katharine Gun case is a good demonstration? The prosecution was dropped at the point of trial, probably because the Government could not predict how a jury would interpret her public interest defence rights without any codification.

[Mr Jones]

The right hon. Gentleman raises an interesting point. Without reform, the courts will define public interest anyway. I would sooner have this place define it than leave it to the courts or allow an ad hoc system to build up over time. I do not understand why the Bill does not take that opportunity, because it would help. Some journalists think that it would be a way of stymieing them, but I think it would clarify the position on the information that can be put in the public domain and would actually help to make that defence. I would rather have this House than a court of law setting those parameters.

The Law Commission made another recommendation that I think worthy of consideration, although we need to work out how it would work in practice:

“an independent commissioner to receive and investigate complaints of serious wrongdoing where disclosure of the matters referred to may otherwise constitute an offence under the Official Secrets Act 1989. That commissioner would also be responsible for determining appropriate disclosure of the results of that investigation.”

That would provide another valve in the pressure cooker of the system when people think that wrongdoing needs to be highlighted.

I would love to know why the Government have missed the opportunity to bring all these things forward in the Bill. I hope that as it passes we can insert some of them: that would not only strengthen the Bill, but give our security services the toolkit that they need.

The foreign influence registration scheme, which we called for in the 2020 Russia report and which is supported by the agencies, would make it unlawful to be an undeclared intelligence officer. I accept that there are issues with definition, but the consultation on the Bill described it as a key component of the new regime, yet for some reason it is not in the Bill. I hear the Home Secretary’s promises, but—call me old-fashioned—I think we should have it before us today to debate on Second Reading.

[Bob Seely]

The right hon. Gentleman is making a valuable point. One of the problems that we have to get to grips with is the difference between a paid-up agent—the sort of old-school spy who worked for the KGB and others—and someone who works ostensibly for the United Front and is not technically a spy, but is cultivating a malign and covert form of influence. Arguably, they are both as damaging. This is a genuine question: how does one decide which of the two is more serious? Do we equate them, in this day and age?

[Mr Jones]

I think transparency is the way to do it. That is why Australia’s Foreign Influence Transparency Scheme Act, which was introduced very quickly in 2018, requires anyone engaging in lobbying or any kind of communications activity for the purpose of political influence on behalf of a foreign principal to be registered. The US scheme, which has been mentioned, was introduced in 1938 and came into force in 1939. If Australia and the US have such schemes, I am sure we can have one.

Personally, I think transparency is the best way forward. The approach that I understand the Government are looking at—having a list of countries on behalf of which people working have to register—is asking for trouble and will have to be updated over time. The Australian system and the US system are far better because they are all-encompassing.

[Bob Seely]

I disagree slightly with what the right hon. Gentleman is saying, although he is making a very good point. I think there is a very good argument for treating Oleg Deripaska differently from the New Zealand tourism board. For one, there should be a very light level of registration, because clearly the New Zealand tourism board is unlikely to be a front for anything other than New Zealand tourism, whereas Russian oligarchs, the Huaweis of this world and the United Front may hide all sorts of nasties behind them. If the Government have the courage to name China along with Russia, North Korea and Iraq, that is potentially an attractive option, is it not?

[Mr Jones]

It is, but an active list that has to keep being updated is a problem. I would go broad first. If the New Zealand tourism board had to be caught by that—I am not sure we have anything to worry about from the New Zealand tourism board, apart from representing a fantastic country that is a great place for tourism—the important point is that it would be fair across the board. Again, I do not understand why that measure is not being brought forward today.

I will raise one last concern, which is about clause 23 and has been raised by the right hon. and learned Member for Kenilworth and Southam and also my hon. Friend the Member for Garston and Halewood. I see no purpose for the clause at all. I want to know from the Government what it is that is not already in legislation that they are trying to get at, or where the clause has come from, because it is certainly something I have never seen raised by the security services at the Intelligence and Security Committee. If we are to have this clause, I would also like to see some kind of oversight of it, whether that is the Investigatory Powers Commissioner or some other networks. Otherwise, the Bill is giving a large degree of latitude to individuals.

We should remember that this has been a hard-fought issue. The shadow Home Secretary, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), raised the important point—let us be honest, it has happened over a period of time—that the Investigatory Powers Commissioner has been excellent in improving the oversight and robustness of the regulation around our security services, which are so important, and the confidence that people can have in that.

With that, I welcome that we have a Bill, but is it a Bill that will do what it says on the tin? I am not sure it will. It will need a lot of changing in Committee.

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[Mr Baker]

My hon. Friend makes his point extremely well, but I hope he will not mind if I say that I do not want to be diverted to that subject, not least because I want to foreshorten my speech a little.

My other point about STPIMs relates to the introduction of polygraphs, which is an area that I have not had the chance to research as much as I might have liked. Can my right hon. Friend the Minister let us know whether this is the first time that we have legislated for their use or whether a new principle is being introduced into our law? Polygraphs are not perfectly reliable. I have read the explanatory notes, but I wonder whether their introduction is an innovation.

I am really concerned about the development of certain trends in the rule of law, as evidenced in arguments that I have made. As a result of the Online Safety Bill, we now have the concept that some speech is legal but harmful, which seems to me a fuzzy concept of what is and is not allowed in law. That is not where I want our country to be, but I accept that I am not a learned mind in this place—I am only a humble aerospace and software engineer, and an MSc in computer science does not always cover such difficult matters of fuzzy logic.

The main issue that I want to address is about extraordinary rendition. Schedule 3, “Detention under section 21”, in part 1, “Treatment of persons detained under section 21”, under the cross-heading “Place of detention”, states:

“(1) The Secretary of State may designate places at which persons may be detained under section 21.

(2) In this Schedule a reference to a police station includes a reference to any place which the Secretary of State has designated under sub-paragraph (1) as a place where a person may be detained under section 21.”

Putting it in plain English, the Secretary of State may make provision to detain people other than at police stations, and constables must take those people to those places. Colloquially, when we were looking at extraordinary rendition, those places were known as secret prisons. I would very much like to know from the Minister why we need to nominate other places to detain people. Will they be detained to the same standard as in a police station? I would very much expect so. What are these places? I am aware of some of them, but where are they, and for what reason can people not be detained at a police station?

That point brings me on to extraordinary rendition. Look at what happened to us after 9/11—the wars we waged, the principles of civilisation and freedom that had kept us free and given us something to be proud of and to fight for, and which we undermined. “The Principles relating to the detention and interviewing of detainees overseas and the passing and receipt of intelligence relating to detainees”—a Government document that is freely available—makes it absolutely clear that the

“UK Government does not participate in, solicit, encourage or condone unlawful killing, the use of torture or cruel, inhuman or degrading treatment (‘CIDT’), or extraordinary rendition. In no circumstance will UK personnel ever take action amounting to torture, unlawful killing, extraordinary rendition, or CIDT. The UK takes suggested incidents of this kind very seriously: these allegations against UK personnel are investigated and complaints in this context are brought to the attention of authorities in other countries”.

Having bumped into some relevant officials, I am extremely satisfied that we take this very seriously.

Going back to the earlier commissioner’s report that I read out, I am absolutely not casting aspersions on our brave and honourable staff, every one of whom, on the few occasions I have met them, I have been incredibly impressed by. I believe that they are seeking to uphold the very highest standards. That is why I put it to my right hon. Friend the Minister that this Bill would be a great moment to put these principles on a statutory footing. In that way, in future, when there is another panic over terrorism and security under another Government who are perhaps not as strongly principled as this one—perhaps with not quite the same culture at the top of adherence to and compliance with the law—we can all be reassured that we will not allow ourselves to come on to conduct that I will touch on in a moment.

[Mr Kevan Jones]

Since the issue of rendition, we have had the consolidated guidance and now we have the principles where the warrants are overseen by the Investigatory Powers Commissioner. Having reviewed the principles in terms of the ISC, it is clear that they are quite robust not only in the safeguards they give but in training people throughout the organisation to ensure that they adhere to them.

[Mr Baker]

I have read enough of the various documents to know that the right hon. Gentleman is absolutely right, and I am glad to agree with him.

I do not want to open up too many old wounds, but I have read the excellent book, “Account Rendered”, by the now Lord Tyrie, which includes some purportedly declassified top secret documents on how the CIA conducted their interrogation techniques. I very much hope that Ministers responsible have read those documents, because I found it quite nauseating. I am ex-forces. If you are ex-forces, then at some time in your life you are actually committed to killing our enemies, but even so I found it nauseating to see just how degrading authorised American interrogation techniques could be. The list of what they would do includes the attention grasp, or grasp by collars; walling, or slamming people against a false flexible wall; the wall standing stress position; the facial hold; facial slap stress positions; waterboarding—I think we can pretty clearly be disgusted by that—and cramped confinement, including putting insects in a box with a person who you know has a phobia. Imagine combining all these things using nudity, control of diet and restraint, putting them all in sequence deliberately for prolonged periods. That is what the declassified documents in “Account Rendered” give an account of.

I completely agree with the right hon. Member for North Durham (Mr Jones) that these principles are absolutely robust, and I am 100% certain in my own mind that our brave officials—men and women good and true, noble and decent—would never want, in any sense, however distant, to be complicit in extraordinary rendition for the purpose of degrading treatment. I am absolutely clear about that. But our job in this House is not to simply trust the great and good people that we have today; it is to put in place a law that makes sure that in future everyone can understand that we do not do these things, not least because showing that we are on the right side of the argument will help us to recruit agents overseas.

I am dead serious about this. It is no reflection on my very high estimation of the people who serve us and keep us safe; it is about worries about the future when there is another panic about another terrorist attack. I say to my right hon. Friend the Minister: if public-spirited lawyers draw up clauses that can put these excellent, robust principles on a statutory footing, I will certainly seek to maximise support for it, because in future we must make sure that no Government of any colour can ever discredit our great people by raising even the slightest suspicion that we might have been even distantly complicit in cruel, inhumane and degrading treatment of prisoners.

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[Damian Hinds]

If my right hon. and learned Friend will forgive me, I will not.

The existence of a public interest defence could mean that damage from the original disclosure could be compounded by further disclosures that had to be made to argue against and defeat that use of the public interest defence. That could itself then in turn be misused and mean that in some circumstances, even where there were egregious breaches of the law, in effect they could not be prosecuted. That is why, to respond to the point made by the right hon. Member for Dundee East, it is important that we look at the safe and proper channels and methods for making disclosures, where that is important, and there are times when it is. We are looking carefully at that.

To come back to my right hon. Friend the Member for South Holland and The Deepings—this is an important point in general—the defences in part 1 of the Bill provide law enforcement with several options for prosecuting disclosures where the person is acting for or on behalf of a foreign power or where the disclosure would materially assist a foreign intelligence service. That can include bulk disclosures. To be clear, with this Bill, the maximum sentence for an indiscriminate disclosure—a bulk data dump—will be higher than it is today if that act is done for a foreign power or the disclosure would materially assist a foreign intelligence service, even if not procured by that foreign intelligence service itself.

[Mr Kevan Jones]

Will the Minister give way?

[Damian Hinds]

I must ask the right hon. Gentleman to forgive me—

[Mr Jones]

Why?

[Damian Hinds]

Oh go on then, one last time.

[Mr Jones]

I am intrigued by what the Minister has just said. Which Act will we use? Will we use this new Act, or will we use the Official Secrets Act 1989? They are clearly mutually contradictory.

[Damian Hinds]

Prosecuting authorities have to make judgments. The Bill is specifically about national security, but within that it is about countering state threats. It gives us a whole new set of tools and weapons to add to our arsenal, and, notwithstanding the right hon. Gentleman’s body language, I think that that is much to be welcomed.

My hon. Friend the Member for Wycombe (Mr Baker) asked a specific question about police stations. Because of the new arrest power in the Bill that can last up to 14 days, the Secretary of State may be required to designate specialist sites to meet the operational need, but I want to reassure my hon. Friend that this has nothing to do with extraordinary rendition. The provision mirrors those in the Police and Criminal Evidence Act 1984 and the Terrorism Acts to ensure that appropriate facilities are available. However, it is not possible to designate such a place outside the United Kingdom. The Government are clear about the fact that torture, mistreatment and arbitrary detention are contrary to human rights law.

National Security Bill (Third sitting)

Kevan Jones Excerpts

Committee stage
Tuesday 12th July 2022 Public Bill Committees

[Stephen McPartland]

My hon. Friend is correct. Three tests must be met for someone to be prosecuted: conducting harmful activity with regard to information that is protected effectively, knowingly prejudicing the safety or interests of the United Kingdom, and acting in a way that benefits a foreign power. Forgive me, but I do not believe that an NGO will accidentally fail all three of those tests.

[Mr Kevan Jones (North Durham) (Lab)]

But it may, because subsection (1)(b) states that a person commits an offence if

“the person’s conduct is for a purpose that they know, or ought reasonably to know, is prejudicial”.

An NGO might think that putting something into the public domain is in the public interest. They may not even take into account that that disclosure may damage UK security. For example, in this morning’s newspapers—

[The Chair]

Interventions should be brief.

[Mr Jones]

The story of alleged shootings by the SAS has clearly been put into the public domain. I would argue that disclosure is not in the public interest of the UK, but people are arguing that it should be in the public domain.

[Stephen McPartland]

That example demonstrates how important the Bill is, because it sets out that activities that are illegal will still be illegal if actors are acting in a particular manner. The Bill is trying to bring current provisions up to date to provide our intelligence services with the toolkits they need to keep our nation safe and secure. I believe that the three tests are strong enough to help provide those protections.

[Mr Jones]

I accept that, but just take this morning’s example cited on the BBC of the alleged illegal acts by the SAS. Someone has got the information, put it in the public domain and may feel that it is in the public interest for it to be scrutinised. Will that damage our interests? Yes, it will. The Government might think that that disclosure will help a foreign power or damage our interests—and I would argue that possibly it will—but that is not to question the judgment of the individuals who have decided that the allegation should be in the public domain.

[Stephen McPartland]

I understand the right hon. Gentleman’s point, but I believe that we have three very strong tests that must be applied: the information must benefit a foreign power, the Attorney General must consider the case, and the CPS must decide that it is in the public interest to prosecute. Those three tests and protections run throughout the Bill.

--- Later in debate ---

[Stuart C. McDonald]

I am grateful to everyone who has taken part in the debate and to the Minister for his response. As I say, I absolutely accept the case for a clause such as this one. However, the Minister’s explanation of the protections in place in respect of the two scenarios that I outlined falls a long way short of what I would regard as satisfactory.

I outlined three solutions or protections. One was the foreign power condition; I have explained already why both the NGO and the journalist in those scenarios would meet the foreign power condition, so that does not work. Thereafter, we are left with the Attorney General and the Crown Prosecution Service. That offers no protection at all. From the point of view of the rule of law, people need to know whether they have broken the law or are committing an offence that is punishable by life imprisonment. We cannot leave that journalist or NGO in that position by saying it all depends on what the Attorney General or the Crown Prosecution Service thinks.

I have no idea whether the Attorney General or the Crown Prosecution Service would regard that NGO and journalist as having committed an offence that they would want to prosecute. As Members have said, that leaves a big chilling effect on that NGO and journalist. They have no certainty that they will not be prosecuted for the activities they undertake. They open themselves up to the possibility of life imprisonment for what, on the face of it, has all the characteristics of a disclosure of information, which should be dealt with, if at all, under the Official Secrets Act 1989 rather than in this Bill.

[Mr Jones]

I have been told that this may be outside the scope of the Bill, but it seems to me that what is missing from it is a public interest defence for those individuals. That protection not being in the Bill opens people up to what the hon. Gentleman describes.

[Stuart C. McDonald]

That is a fair point. In the light of the lack of satisfactory safeguards we have heard this morning, we may have to revisit that question. There is an issue of scope in relation to sticking that into the 1989 Act, but I do not see any reason why we could not include it in some of the offences in this Bill. Unless the Government can come up with better safeguards than have been offered this morning, we are going to have to revisit that.

I urge the Minister to go away and think about this issue. I am actually more worried about those two scenarios now than I was at the start of the day. I am not absolutely sure that the amendments that I tabled are the right ones, so we will revisit the issue on Report. In the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 ordered to stand part of the Bill.

Clause 2

Obtaining or disclosing trade secrets

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[Mr Jones]

The Minister said that there must be a direct link to a foreign power. May I give an example? Suppose that somebody obtains information and gives or sells it not to a foreign power but to a competitor business. Is that covered under the legislation?

[Stephen McPartland]

The legislation takes civil offences and makes some of them criminal. That case would remain a civil offence. What we are doing is providing the intelligence services with the tools they need to prosecute people who hand over trade secrets in the criminal system. For example, MBDA in my constituency builds Brimstone missiles, which are currently being used in action. If some of those secrets were to be removed and handed over, that would be difficult for the people using those missiles and for the country. There are clear examples of how the loss of trade secrets threatens the country and our allies’ lives.

[Mr Jones]

I agree, but is it the case that to prosecute under the Bill there will need to be a causal link from the individual to a foreign power and not necessarily to a competitor in the UK?

[Stephen McPartland]

My understanding is that the action would have to be done on behalf of or for the purposes of a foreign power. If it was done unknowingly, it would be for the lawyers and the Crown Prosecution Service to decide how to proceed.

--- Later in debate ---

[Mr Kevan Jones]

I understand the thrust of the clause, but I would like some clarification on the definition of assisting a foreign power. I have one historical example, although I think it might not work. Eddie Chapman— Agent Zigzag from the second world war—was working for both sides. He was a UK agent and a Nazi agent. He got an Iron Cross for his misinformation work. In that case, he was not assisting a foreign power, because he was given dud information, but what about the case of a UK-based foreign diplomat who is working against us and supporting his or her nation, but is also then feeding information to us? It could be argued that that individual is working against our interests, because they are working on behalf of that other nation, but separately they might be the source of information. What would happen to that individual?

Gordievsky is a good example; he was in the Russian embassy in London for many years, feeding a lot of vital information to the UK, but his daily activities would have been prejudicial to the UK’s interests. How would the clause apply to individuals like that? Would they be separated out because of their benefit to us, although certain activities they are conducting would not be of benefit? I give just two historical examples, but there might be others in the future. Where would those individuals fall under the provisions in the clause?

[Holly Lynch]

As we have heard, the clause introduces a new espionage offence of assisting a foreign intelligence service. A person commits an offence if that person

“engages in conduct of any kind, and…intends that conduct to materially assist a foreign intelligence service in carrying out UK-related activities.”

Once again, we are broadly supportive of the clause. As highlighted by the Government’s own integrated review in 2021, threats to Government Departments, national infrastructure, British business and private individuals are growing and becoming ever more complex as states become more assertive in advancing their aims. The clause goes a long way towards updating the threat posed by modern-day espionage and the changes are long overdue. The Intelligence and Security Committee’s 2020 Russia report stated:

“The current legislation enabling action against foreign spies is acknowledged to be weak. In particular, the Official Secrets Acts are out of date—crucially, it is not illegal to be a foreign agent in this country.”

Nevertheless, it is important that the Government clarify a number of different aspects of the clause. I highlight two recommendations from the Law Commission’s 2020 review of the Official Secrets Act. Recommendation 12.5 stated:

“In any new statute to replace the Official Secrets Act 1911, the requirement that the defendant’s conduct was capable of benefitting a foreign power should continue to be objectively determined. There should be no requirement to prove that the defendant personally knew or believed that his or her conduct had such capability.”

Will the Minister confirm that that requirement is compatible with the new offence established in clause 3?

The Law Commission also highlighted the danger of an individual unknowingly assisting a foreign intelligence service and then still being charged and convicted with the same offence as an individual who actively sought to assist a foreign intelligence service. This defence is currently accounted for in the Official Secrets Act 1989, as my right hon. Friend the Member for North Durham discussed. I appreciate that that Act is not being updated by this legislation, but the principle still stands. The Law Commission’s recommendation 12.24 stated:

“The ‘defence’, currently contained in section 1(5) of the Official Secrets Act 1989, of not knowing and having no reasonable grounds to believe that the material disclosed related to security or intelligence, should continue to apply.”

It is naive to think that foreign intelligence services advertise who they are and what they are planning to do with any information they are given by someone or in any engagement they may have. The duping of individuals is a somewhat common tool in espionage tradecraft. Let us say that an overseas business research company commissions a UK national to explain how the UK’s parliamentary processes work, but it transpires that the business research company was working for a foreign intelligence service. Under clause 3, could the UK national still be tried for assisting a foreign intelligence service?

We welcome the exemptions in subsection (7) that create an appropriate space for democratic obligations and diplomacy to take place, especially as the Bill makes no distinction between countries that are our allies and those that are hostile and seek to undermine the UK’s interests. However, I also note that the offence is explicit about the definition of a foreign intelligence service. On first reading, I had concerns that where someone is sharing information with a former member of intelligence services, the definition might not extend to criminalising that conduct. As the old saying goes, once a KGB officer, always a KGB officer.

However, given that the definition included in subsection (9) outlines that “foreign intelligence service” means

“any person whose functions include carrying out intelligence activities for or on behalf of a foreign power”,

I understand that anyone sharing information with former KGB officers, for example, would be committing an offence. I would be grateful if the Minister could confirm that that is the case.

--- Later in debate ---

Finally, it is not clear to me what clause 5 adds to the current trespass offences, including under the Serious Organised Crime and Police Act 2005 and in particular the section 128 offence of trespassing on a designated site. Why do we need another trespass law? Why a longer punishment? What is the justification for that, and why are we seeking to punish people who simply did not know, but made a mistake?

[Mr Jones]

I sympathise with the amendment. In terms of legitimate protest, I may disagree with, for example, the peace camp at Faslane, but does it fall within the remit of the clause? Is that proportionate in an open and free society? I may disagree with what the protesters call for, but I would defend their right to make their opinions known.

We need clarity and to get the balance right between legitimate protest in the public interest and protecting security. The clause is detailed on access to prohibited areas. The clause states that a person commits an offence if they cause

“an unmanned vehicle or device to access”

an area. That is very clear. A drone, for example, would be prohibited. But what happens in the case of a trained eagle wearing a camera? I think that is covered by “device to access” an area. Will the Minister confirm that if someone strapped a camera to an eagle and sent it over a prohibited site, that would be covered by the Bill?

The clause is clear about inspecting

“photographs, videos or other recordings”,

but how wide is the area? It would cover someone standing with equipment that had access from 20 miles away, but what about somebody just observing through binoculars? Would that be covered? How big is the prohibited area? If we are not careful, the points that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East has raised could fall within the scope of the Bill, or be used by the Government to stop legitimate protest or people who have an interest in opposing activities taking place at a certain site.

[Holly Lynch]

The SNP spokesperson, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, and my right hon. Friend the Member for North Durham have outlined their thoughts on amendment 50. I will speak to clauses 4 and 5 more broadly.

Clause 4 establishes a new offence of entering a prohibited place for a purpose prejudicial to the UK. We welcome the measure, and the protection it will offer to sites and places that are vital to our national security. It has been a long time coming, and we have been falling back on somewhat antiquated legislation in the absence of such provisions. Giving evidence to the Intelligence and Security Committee in January 2019, the director general of MI5 said,

“The purpose of [a potential new Espionage Act] is to be able to tighten up on the powers that have become, you know, dusty and largely ineffective since the days of the Official Secrets Act, half of which was drafted for First World War days and was about sketches of naval dockyards, etc.”

In his evidence on behalf of the Law Commission last week, Dr Nicholas Hoggard said

“One of our concerns about the existing offences in the 1911 Act was that the existing prohibited places—though extensive; it is an extensive and complicated piece of drafting—have a strong military focus, and they do not necessarily reflect the way that critical national infrastructure, for example, or sensitive information is held by the Government.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 51, Q96.]

Clause 4(2) sets out that,

“a reference to inspecting a prohibited place includes—

(a) taking, or procuring the taking of, photographs, videos or other recordings of the prohibited place;

(b) inspecting photographs, videos or other recordings of the prohibited place.”

We heard some more innovative examples, as my right hon. Friend the Member for North Durham likes to think outside the box, and as those acting on behalf of hostile states will continue to evolve and adapt to the legislation that we progress through this place.

Clause 4(3) explicitly states that the offence applies if the person inspects a prohibited place

“by electronic or remote means”,

and clause 4(4) states that the offence applies

“whether the person’s conduct takes place in the United Kingdom or elsewhere.”

The use of drones has been an asset in many ways, but inevitably a headache in others. I have raised concerns previously on behalf of constituents that it is at the extremes of distaste and disrespect for drone footage of serious or even fatal accidents to be taken by members of the public and shared on social media, or published by news outlets. It is with urgency that we need to update the laws that ensure national security is not compromised in the absence of up-to-date legislation, but for the reasons I have highlighted I hope this might also be the start of a conversation about drones, beyond their national security implications.

Clause 5 establishes that

“A person commits an offence if—

(a) the person—

(i) accesses, enters, inspects or passes over or under a prohibited place, or

(ii) causes an unmanned vehicle or device to access, enter, inspect 15 or pass over or under a prohibited place,

(b) that conduct is unauthorised, and

(c) the person knows, or ought reasonably to know, that their conduct is unauthorised.”

The Opposition welcome this provision, and see it as a necessary step to protect sites that are vital to our national security. I would like to probe the Minister on the stipulation that a person who commits an offence “ought reasonably to know” that their conduct is unauthorised. There is a concern that an individual may unknowingly stumble on a prohibited place, and then be prosecuted in the same way as someone actively seeking to undermine UK national security. Further detail on the sentencing guidelines might allow us to work through that uncertainty, but we have to work with what we have in primary legislation. The chances of that occurring are made more likely by the fact that this stand-alone offence does not need the foreign power condition to be met.

Let me provide some rare light relief in today’s proceedings. In 2016, civilians began to wander on to the grounds of several restricted air force and military bases in Canada while playing Pokémon GO, which is an augmented reality game where characters spawn randomly in the proximity of a user’s location—it was all the rage at the time. Documents released on request to the Canadian Broadcasting Corporation revealed the military’s confusion about what was happening at the time. One email from a major read,

“Please advise the Commissionaires, that apparently Fort Frontenac is both a PokéGym and a PokéStop”.

He went on to say,

“I will be completely honest in that I have no idea what that is.”

Just three days after the app’s release, two men drove a van on to an air force base near Toronto just before midnight. A corporal confronted the occupants and found them playing with their smartphones. In another incident, one woman was found at the Borden base playing the game, while her three children climbed over tanks. In their attempts to get on top of what was going on, the documents revealed that one colonel wrote,

“There’s a game out there taking off like gangbusters, and it requires people to move to digitally cached locations to get points”.

I do not know what “gangbusters” means. Another security expert recommended they hire a 12-year-old to help them out with the problem.

As part of the military response, at least three officers at different bases were assigned the task of playing Pokémon GO on site, and logging the appearance of every gym, PokéStop, and wild monster. In what I thought was a particularly enterprising spirit, in my constituency of Halifax’s namesake, they instead recommended that the PokéStop be relocated nearer to the museum, in the hope that it would increase footfall in a helpful rather than unhelpful way. I intended to share those examples by way of demonstrating that innocent players of Pokémon GO should be protected from the harshest of sentences, but on reflection, having read out the details, I am not so sure.

Back to the serious—I could not find specific examples here in the UK, but I can only imagine that there were some. We cannot afford to create carve-outs for Pokémon GO players that could be exploited by those acting on behalf of hostile states. The example outlines the need for appropriate consideration of such mitigations in the sentencing guidelines for such offences.

I note that the Law Commission proposed that in any reform of the Official Secrets Acts, a safeguard similar to that contained in section 131 of the Serious Organised Crime and Police Act 2005 should be introduced, requiring the Secretary of State to take such steps as he or she considers appropriate to inform the public of the effect of any designation order, including, in particular, by displaying notices on or near the site to which the order relates. That would ensure that an individual is given fair warning that he or she is approaching a location that is given enhanced protection by the criminal law. If I am not mistaken, that point was made by the right hon. Member for Dundee East on Second Reading. I hope that the Government will recognise the merit of doing so.

--- Later in debate ---

[Stephen McPartland]

I understand my hon. Friend’s point, which is that we have to be careful to provide the intelligence services with the tools they need to protect our protected sites. I may not agree with the purpose of protest, but I agree with the ability of everybody to protest lawfully. People will start to fall foul of this clause when they try to scale the walls of a restricted site and to impede lawful activity going on at the restricted site—when they start to move from protest towards criminal activity. That will be captured.

[Mr Jones]

I am not sure it will. Let us take the Faslane peace camp as an example. I totally disagree with what those people are arguing for, but if somebody there took a photograph and put it out on social media to make a political point, would they be caught under the Bill? Is not that prohibited under the Bill?

[Stephen McPartland]

No, because they would not be doing something designed to prejudice the United Kingdom.

--- Later in debate ---

[Stephen McPartland]

Yes. The intention is that people have to do something prejudicial to the UK’s interests to fall foul of the clause.

Prohibited places are inherently sensitive sites that are likely to be the target of state threat activity. Unauthorised access to such sites could be a precursor to harmful acts such as espionage or sabotage, and it is important that we have the tools and powers we need to adequately protect those sites.

[Mr Jones]

I think the Minister just said yes to my question and the question of my hon. Friend the Member for Garston and Halewood about a person with binoculars. Does that fall under clause 5(1)(a)(i), which refers to an offence being committed if a person

“accesses, enters, inspects or passes over or under a prohibited place”?

Would somebody on a hill several miles away with a pair of binoculars be classed as inspecting an area? Is that why the Minister says that is covered in the Bill?

[Stephen McPartland]

Yes, that is the intention. Remember that the Official Secrets Act 1911 refers to sketches. We are trying to reform that Act and the others to get to a point at which we help our intelligence services to come up with ways of dealing with some stuff that could technically be considered out of scope. The idea behind the clause is that we will be able to give the intelligence community the tools they need to deal with somebody inspecting a site or doing something prejudicial to the UK’s interests.

[Mr Jones]

I come back to the fact that if we looked at the Official Secrets Act 1989 and had one big Bill, it would have been far better than this one. Will the Minister clarify that somebody with binoculars would be classified as “inspection”? My hon. Friend the Member for Garston and Halewood asked whether a person looking at a site through binoculars would be captured by this offence, or whether they would have to be writing something down. What is the situation with the old-fashioned sketches mentioned in the 1911 Act? Would they be covered?

[Stephen McPartland]

The purpose is to cover activity that is prejudicial to the United Kingdom’s interests. For example, if someone were bird watching and they looked at the site through their binoculars, they would not be captured by the offence because they would not be doing anything prejudicial to the United Kingdom’s interests. However, if they were sketching a site to identify how they could break into it or to record activity going on there, that would be prejudicial to the United Kingdom’s interests, so the clause covers that. It is a case-by-case situation.

The current prohibited places provisions fall under the espionage offence within section 1 of the Official Secrets Act 1911.

[Mr Jones]

The Bill is specific about procuring “photographs, videos or other”. I understand why they are included: they are modern. If we pass the Bill, will sketches still be covered? Would it not be better to repeat that bit of the 1911 Act?

[Sally-Ann Hart]

rose—

--- Later in debate ---

[Stephen McPartland]

Sketches are included, because a sketch would have to be inspected. The question was: are sketches included? The answer is yes.

[Mr Jones]

Where?

[Stephen McPartland]

Because a sketch would have to be inspected.

--- Later in debate ---

[Stephen McPartland]

I am grateful to the hon. Lady for the very good points she has raised. My understanding is that the powers currently apply only to police officers, not to members of the military. It is very clear throughout the clause that it refers to “a constable”, and it is referenced as “Powers of police officers”.

[Mr Jones]

Is that not a hole in the legislation? We are coming on to Cyprus next, where it is not civilian police that do security there, and I can think of a few others around the world where it is done by the military. Therefore, should those powers not also be given to the military?

[Stephen McPartland]

When we talk about military, MOD police will have those powers.

[Mr Jones]

Yes, but a number of sites are not guarded by MOD police—although there are some—but are the responsibility of the UK armed forces, which are not police.

[Stephen McPartland]

Both the right hon. Member for North Durham and the hon. Member for Halifax made a very good point. We will take that away and look at it. If they want to strengthen the Bill, we are happy to work with them to do that.

[Stephen McPartland]

My hon. Friend makes a good point. We must also bear in mind that it is not our intention to introduce search-and-seize powers under these police powers. This is part of the tiered approach we referred to earlier, with the police being able to warn people to go away before they fall foul of the law. There is the opportunity to give them that warning before any arrest.

[Mr Jones]

I agree with the hon. Member for Burnley, but there are also sites that are benign, so it is not a force protection point but a constabulary duty that is carried out by members of the armed forces. Therefore, I think they need these powers if this is a comprehensive suite of powers.

[Stephen McPartland]

I am grateful to the right hon. Member. As I said, that is certainly something that we will look at and come back to.

National Security Bill (Fourth sitting)

Kevan Jones Excerpts

Committee stage
Tuesday 12th July 2022 Public Bill Committees

[Holly Lynch (Halifax) (Lab)]

Let me take clauses 7 and 8 and Government amendments 5, 6, 7 and 8 together. As the Minister has outlined, clause 7 defines a prohibited place for the purposes of clauses 4 to 8. The definition includes Crown land and vehicles used for defence purposes; places used for the invention, development, production, operation, storage or disposal of weapons; and land, buildings or vehicles designated by regulations made under clause 8.

Clause 8 provides for the Secretary of State to declare additional sites as prohibited places by way of secondary legislation. This will ensure that additional sites that are vulnerable to state threat activity can be designated when it is considered necessary. The Committee will note that, historically, the list of prohibited places has had a strong, if not total, military focus.

We just need to read the legislation to be struck by how dated it is. The Official Secrets Act 1911 defined a prohibited place as:

“any work of defence, arsenal, naval or air force establishment or station, factory, dockyard, mine, minefield, camp, ship, or aircraft belonging to or occupied by or on behalf of His Majesty, or any telegraph, telephone, wireless or signal station, or office so belonging or occupied, and any place belonging to or occupied by or on behalf of His Majesty”

and so on. While reflective of the contemporary climate and the threats posed to the UK, this list has long been out of date. We therefore welcome this expansive update for defining what a prohibited place is, as well as giving the Government the ability to adapt the list where there is a reasonable case to do so. In the light of that, we recognise that Government amendments 5, 6, 7 and 8 complement the clause in that aim.

That said, I did probe the Law Commission during last Thursday’s evidence session on this point. It is important that this legislation is laid in such a way that it is not used by Government or future Governments to infringe on other democratic freedoms. During the consultation period of the Law Commission’s report on the Official Secrets Act, a number of stakeholders expressed concern about giving the Home Secretary such powers to designate a new site as a prohibited place.

The Trinity Mirror raised concern that an unchecked power to create designated sites based on national security may create a new criminal offence without parliamentary debate and could potentially stifle legitimate investigations in the public interest. WhistleblowersUK stated that the list should not end up being widened to include council officers or schools, for example. It would be incredibly worrying if a Home Secretary interpreted this power to allow himself or herself to mark places that served a purpose in the execution of an unpopular Government policy, for example, as a prohibited place. I outlined these concerns to Dr Nicholas Hoggard of the Law Commission, who provided some reassurance. He said,

“What is good to see about the powers under this Bill is they are quite principled powers. The basis on which the Secretary of State can define something as a protected place is much more transparent. There are just three limbs that are easy to understand. That basis for affording the Secretary of the State the power is much more useful. It is more transparent, but it also enables us to capture within the offence places where

there is actually a real risk of harm arising from hostile state activity. On that front, I would say the power is good in so much as it aligns with the spirit of our recommendation. The fact that there will be parliamentary oversight of this process is important. It was a fundamental feature of our recommendations, and the negative resolution procedure is an important part of that process. The Secretary of State’s powers are more effective than is permitted under the current law, but also there is sufficient oversight.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 51, Q96.]

I look to the Minister for the same political assurances: that such powers would not be used should the Government find that to declare somewhere a prohibited site would serve a purpose in the execution of an unpopular Government policy, for example. Having gone through the prohibited places National Security Bill factsheet on the Government website, I have already asked the Minister what information should be in the public domain to confirm that somewhere is a prohibited site.

I completely accept that somewhere might be so secure that extensive signage and its inclusion on any such list might not be appropriate. However, in the event of our Pokémon GO example, it is about being able to check without needing to travel to a prohibited place to observe the signage to find out, which might itself bring someone in scope of earlier offences. I want to ensure that the status of such a site, the restrictions and the consequences of not adhering to those restrictions are appropriately and clearly communicated to the public.

Before closing, I want to bring the Minister’s attention to clause 7, where we have sovereign based areas overseas for UK defence purposes. He has made the undertaking to consider military powers within the earlier clauses on police powers. It is my understanding that the Ministry of Defence police would not provide that service to these sites deemed to be prohibited places within clause 7. Once again, he might need to write to us to work through some of that detail further.

[Mr Kevan Jones (North Durham) (Lab)]

Mr Gray, we know that it is officially summer when you remove your jacket.

[The Chair]

Order. In 25 years in this place, I have never once removed my jacket until now. I am embarrassed!

[Mr Jones]

Possibly this historic day shows the effects of global warming.

I was a little surprised at some of these amendments, to say the least. I want some clarification first of all, and then I will come to some other issues. Clause 7 says that a “prohibited place” relates to Crown land used for the extraction of

“metals, oil or minerals for use for UK defence purposes”.

I would like to define why it has been outlined in that way in the Bill.

I found Government amendment 5 quite surprising. There are quite a lot of assets that our defence and intelligence use around the world that are not known about, and it is important that they are not in the public domain. Government amendment 5 identifies a military area or base, but the Minister will know—or he might not yet have been briefed on this—that many sites around the world are used for defence and intelligence purposes; those are not in the public domain for very good reasons. How do they come into the scope of the Bill? I would not suggest for one minute that we should list them all—if we knew where they all were, that would be wrong. But I want to know how the legislation intersects with the protections that those sites clearly need.

The Bill talks of the Crown estates that we actually hold or control, but there are a number of occasions where we are collocated with other forces. We do not control those areas, although our defence and intelligence services will be using them. I am trying to think of a couple of examples. A few weeks ago I was in Lithuania with the rapid reaction force, a coalition of different nations under NATO, and the UK contingent was located in a wood outside Tallinn. That deployment was a temporary arrangement. How would that be defined under the Bill? Technically, that area is under the control of the Lithuanian defence force. Would that operation be classified in the Bill?

Likewise, I look back to deployments in Afghanistan and Iraq and the green zone, for example. We clearly had defence and intelligence assets there, but we did not control a lot of those areas in terms of force protection or even areas shared with other nations. How does the Bill cater for the jointness of those operations, some of which will be temporary and some permanent?

I accept that it would be completely wrong to put all these sites into the Bill but it is important that we understand how those sites—temporary or permanent—interact with the Bill. This morning, my hon. Friend the Member for Halifax mentioned the Pokémon question and I raised the flying eagle. How will the Bill be effective when it comes to such a person being seen to penetrate a prohibited area? Will it catch people who end up there by accident?

I support the amendments, but think they need a bit more clarification. If the Minister does not know the answer to my questions, I will be happy for him to write to me.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

Clause 7 and the Government amendments to it seem to make sense; my concern is about clause 8. I read the exchange that the shadow Minister referred to, when she asked the Law Commission about the broad powers in clause 8; it was one of the very rare occasions when I was not absolutely convinced by the answer that came back. At the end of the day, clause 7’s definition of “prohibited place” is very defence oriented, and it will now be defence and security oriented. But clause 8 opens the definition up to any sort of land at all and the nebulous concept of the safety or interests of the United Kingdom: if the Secretary of State considers it reasonably necessary for the safety of UK interests, a place can be added to the list.

I worry about immigration detention facilities or a fracking site being added to the list. Regardless of the rights or wrongs of the policy, that is a fairly significant extension to how the whole policy area operates. That is where our concern lies. Has it been opened up too broadly? I appreciate that the Minister says we need flexibility and to be nimble, but I worry that we have left it too open to potential—abuse is probably too strong a word—overgenerous interpretation.

--- Later in debate ---

[Stephen McPartland]

I appreciate that. We have heard this morning and in previous sittings about that tension in respect of the Government interest and defence. There is case law that defines it. The purpose of the Bill is to provide the intelligence services with the tools they need to keep the country safe. They feel that they need these tools to do that. There are safeguards. The idea behind the number of factors is that there are a variety of checks on the Secretary of State, so they would have to demonstrate all the way through that they have considered that multitude of factors and that it was necessary for the defence of the country.

On the point made by the right hon. Member for North Durham, I cannot believe I am going to say this but I cannot tell him what I have been briefed, for national security reasons. The reality is that in these clauses we have moved away from designating places to categories. One of the categories is unavowed sites. That means that some of the sites that he suggested would be covered by the category.

[Mr Jones]

As long as they are covered, that is fine. I do not want the Minister to start referring to any of them.

[Stephen McPartland]

Another query raised was about oil and metal, which I understand are already in the existing provision for use in defence. That is why we refer to those areas. Finally, we are not designating military bases abroad, other than sovereign bordered areas, purely because of difficulties with jurisdiction and making that work.

Amendment 5 agreed to.

Amendments made: 6, in clause 7, page 7, line 4, leave out

“(including a part of a building)”.

This amendment is consequential on Amendment 7.

Amendment 7, in clause 7, page 7, line 24, at end insert—

“‘building’ includes any part of a building;”.

See Amendment 5.

Amendment 8, in clause 7, page 7, line 37, at end insert—

“‘GCHQ’ has the meaning given by section 3(3) of the Intelligence Services Act 1994;”—(Stephen McPartland.)

See Amendment 5.

Clause 7, as amended, ordered to stand part of the Bill.

Clause 12 ordered to stand part of the Bill.

Clause 9

Power to designate a cordoned area to secure defence aircraft

Question proposed, That the clause stand part of the Bill.

National Security Bill (Fifth sitting)

Kevan Jones Excerpts

Committee stage
Thursday 14th July 2022 Public Bill Committees

[The Minister for Security (Stephen McPartland)]

Although the Bill provides a range of offences specifically targeted at state threats activity, it will not always be appropriate or possible for harmful activity to be prosecuted under the Bill. Where offences already exist on the statute book that deal effectively with the relevant state threats activity, there is no need to create a similar offence in the Bill. For example, the offence of murder deals effectively with state-sponsored assassinations.

While the Bill provides a suite of offences and accompanying tools and powers, there remain cases in which it will be difficult to secure prosecution due to the covert nature of the activities and the difficulties involved in presenting admissible evidence to a court to illustrate all the components of an offence beyond reasonable doubt. In some cases, however, it might be possible or more appropriate to charge the individual with another offence on the statute book.

The aim of the aggravating factor in clauses 16 to 18 is to ensure that in such scenarios the state threats element is acknowledged in court and offenders are sentenced accordingly. The state threats aggravating factor will apply in cases where the foreign power condition—to which I have referred a number of times in Committee—is satisfied. Currently, if someone is convicted of an offence and it is known that the offence was linked to state threats activity, the judge may take that into account, but there is no formal mechanism to require the judge to factor that in when making a sentencing decision, and there are no clear definitions to enable the court to apply that consistently. This is in contrast to terrorism, where there is already a statutory requirement to acknowledge a terrorist connection when considering the seriousness of certain offences. That has been effective in cases such as those of the murder of Jo Cox MP, and Lee Rigby, where the seriousness of the offences was aggravated by the sentencing judge because of the terrorist connection, so a higher sentence was imposed.

The Government believe that the state threats aggravating factor should be available in relation to any offence. A state threat is a unique national security threat that can take a wide range of forms. We must ensure that our justice system is able to acknowledge all forms that such activity might take, and be able to penalise it accordingly.

Clause 19 ensures that the aggravating factor can apply to those who are convicted of offences in service courts. The service courts system applies to those who are bound by the Armed Forces Act 2006—for example, serving members of the armed forces. The state threats aggravating factor will apply in the same way in service courts as it does in civilian courts, in that if an offender pleads guilty to or is found guilty of an offence—for example, theft—and the foreign power condition is met, the offender’s sentence will be aggravated accordingly.

[Mr Kevan Jones (North Durham) (Lab)]

I support the proposals. My concern, which is one I will express throughout the passage of the Bill, is the Bill’s relationship with the Official Secrets Act 1989, under which the maximum penalty is two years. The Minister or his officials might not know the answer now, but I am happy for him to write to me. How will the two Acts intersect? Clearly, if someone has committed an offence, they will want to be found guilty under the Official Secrets Act, under which the sentencing powers are limited, as opposed to under the Act that this Bill will become. That will be the problem with the Bill—I still cannot understand why the Government did not do both: what they promised, which was the full reform, and a Bill for a new Official Secrets Act.

[Stephen McPartland]

As the right hon. Gentleman knows, we are reforming the first three Official Secrets Acts, but not the 1989 Act, with the Bill. We will write to him with the information to explain how that is going to work.

In summary, the aggravating factor provides another tool for prosecutors to deploy, and helps to future-proof the Bill by ensuring that our judicial system can respond to any evolving state threats and activity in the future.

--- Later in debate ---

[Stephen McPartland]

Robust investigative tools are crucial to enable the police effectively to counter threats by state actors, which operate using highly sophisticated means and often have access to significant resources and are skilled in tradecraft.

Clause 20 introduces schedule 2, which provides the police with powers of search and seizure when investigating threats posed by state actors to the UK and its interests. These powers replace the power of search in section 9 of the Official Secrets Act 1911.

Under the existing powers and those provided in schedule 2, the police can act on a reasonable suspicion that a relevant act has been, or is about to be, committed. This threshold is a crucial element within the provisions to enable the police to act with the necessary speed to counter state threats activity.

[Mr Jones]

Can the Minister clarify what he means by “reasonable”? I know what it means in law, but I also know that there is a reasonableness test in the existing section 7 of the Act, which the security services say is not enough? So why is it okay here and it is not okay when it comes to clause 23?

[Stephen McPartland]

The difference is that under the Police and Criminal Evidence Act 1984, or PACE, the police need to be able to identify in this situation that a crime has been committed, whereas for this measure the police are trying to intervene earlier, so that they can stop a crime from being committed. Effectively, that is what the difference is.

We will debate clause 23 when we get to it—

[Mr Jones]

rose—

--- Later in debate ---

[The Chair]

The Minister is not taking interventions.

[Mr Jones]

Will the Minister give way?

[Stephen McPartland]

No. [Laughter.]

As I was saying, clause 20 introduces schedule 2 to the Bill. Under the existing powers and those provided by schedule 2, the police can act on a reasonable suspicion that a relevant act has been, or is about to be, committed.

The threshold is a crucial element within the provisions to enable the police to act with the necessary speed to counter state threats activity. General search and seizure powers, such as those provided under PACE, are comparatively restrictive because they do not allow the police to act pre-emptively when there is intelligence to indicate that an offence is about to be committed. So, both the Ministry of Justice in 2014 and the Law Commission in 2020 reviewed the existing power, concluding that it was necessary and that reliance on PACE powers alone would limit the ability of the police to disrupt and investigate state threats.

These powers may only be used to deal with the most serious offences covered by this Bill, as well as where state threats activity involves violence or constitutes a serious threat to life or public safety.

Turning to the powers themselves, part 1 of schedule 2 legislates for powers of search and seizure as they apply in England, Wales and Northern Ireland. They provide for the police to gain access to material likely to be evidence of a relevant act, which covers specific offences or certain acts or threats under the Bill.

Where the relevant act has been, or is about to be, committed the powers in part 1 of this schedule are different, depending on the nature of the material sought to reflect the enhanced safeguards that are required to protect confidential material.

Under paragraph 2, for non-confidential material, the police can obtain a warrant to enter and search premises and to seize and retain material. There are two key conditions that a court must be satisfied are met for such a warrant to be granted: first, that a relevant act has been, or is about to be, committed and, secondly, that the material sought on a premises is likely to be evidence of that act and is not confidential material. Should the police apply for an all-premises warrant, an additional condition applies: it must not be reasonably practicable to set out all the premises that the person of interest occupies or controls, but that may need to be searched. To access confidential material, a production order must be obtained, should this course fail or be unavailable through a warrant.

--- Later in debate ---

[Holly Lynch]

Of course, Ms Ali—I will wait until I am invited to do that.

[Mr Jones]

It is a pleasure to serve under your chairship, Ms Ali. I have some sympathy with the amendment as I am always against things that give Ministers or the Executive broad powers. As my hon. Friend the Member for Halifax has already said, the powers seem to be unlimited. We are talking about national security and the confidence that we should have in our agencies to act in our interests, with the best of intentions and proper oversight, so the amendment is important. What does “any site in the UK” mean? My hon. Friend said that that was quite a broad power, and I want to ask about sites in the UK that are not under the control of the UK Government, such as US sites. Could Mildenhall airbase, a US airbase in the UK, be designated as one of these sites? I raise that because it limits UK authorities’ oversight and jurisdiction.

People may ask why that is important, but I am very conscious that we should always ensure that civil servants, Ministers and others have historical knowledge and take into account what happened in the past. I served on the Intelligence and Security Committee when we did our inquiry into detainee mistreatment and rendition in 2018. I have to say, it did not make for pretty reading. We did not shy away from the facts, and the actions of our agencies and certain Ministers—including some Ministers in the Government I served in—did not come out of that report very well. Guidance and regulations were put in place to ensure that did not happen again. I would like some clarity about whether such bases could be designated under this measure? Some of those sites could potentially have been used for what the ISC report on rendition highlights. They certainly were abroad, but this is about sites that are actually in the UK.

[Stephen McPartland]

I looked at the amendment in a lot of detail, and I discussed it with my officials and challenged them. I think the hon. Member for Halifax makes a very, very important point and has a strong case, and she will be delighted to know that, although I will resist the amendment today, I will commit to consider it and whether the Bill should clarify that only sites located in the UK can be designated as places of detention. I share her concerns about the possibility of rendition and stuff outside the UK. I will go into a bit more detail for her, and hopefully that will help the right hon. Member for North West Durham—

[Mr Jones]

North Durham.

[Jess Phillips (Birmingham, Yardley) (Lab)]

He hates west Durham.

--- Later in debate ---

[Stephen McPartland]

I am always happy to take away the hon. Lady’s suggestions.

My initial concern with the amendment is that, as drafted, it adds little value, just a statutory requirement for Her Majesty’s inspectorate to fulfil a role it is doing already. I note all the concerns of hon. Members, however—

[Mr Jones]

rose—

[Stephen McPartland]

I have given the right hon. Gentleman the blink and he still wants to intervene.

[Mr Jones]

I welcome what the Minister says—

[Stephen McPartland]

Say thank you!

[Mr Jones]

It takes a lot to get that in a Bill Committee. My hon. Friend the Member for Garston and Halewood is right—this needs clarifying in the Bill. When the Minister goes away to think about it, will he look at and ask officials about the issue of those sites that are in the UK, but outside the control of Her Majesty’s Government? I will not say too much, but we occasionally work with organisations and countries in certain places in the UK, but do not control what goes on there. Will he reflect that when doing his work?

[Stephen McPartland]

I will come back to the right hon. Gentleman on that. As I have said, we will be designating sites and that information will be publicly available. I am not sure that he would want to make the information about the sites he mentions publicly available.

[Mr Jones]

But that is not what the Bill says at the moment, as my hon. Friend the Member for Garston and Halewood said. It gives sweeping powers to designate things, and I am always against giving such sweeping powers to the Executive—whether it is the present Government or the Government I was a member of—or to anyone. When the Minister comes back, clarification would be welcome, even if that is for the Bill to require publication.

[Stephen McPartland]

I hear what the right hon. Gentleman says. If the hon. Member for Halifax is kind enough to withdraw the amendment, I commit to considering it further. I will look to provide further clarity in the legislation.

--- Later in debate ---

[Stephen McPartland]

Under schedule 3 to the Counter-Terrorism and Border Security Act 2019, counter-terrorism police have the power to stop, question and, if necessary, detain and search individuals travelling through the UK border. As part of a schedule 3 examination, counter-terrorism police are able to retain protected materials by following a lengthy authorisation process. Protected materials include confidential business and journalistic material, as well as legally privileged material. The powers are a vital tool for counter-terrorism police and form part of a range of national security checks that enable the determination of whether a person at a UK port or border area has current or previous involvement in hostile state activity.

The use of protected materials in investigations, particularly confidential business material, can be a helpful insight into a person’s involvement in hostile state activity, whether it be espionage or a disinformation campaign. To use protected materials seized during a schedule 3 examination, an examining officer must currently seek authorisation from the Investigatory Powers Commissioner, who is a serving or retired High Court judge. In most cases, the material must not be examined or used for investigations until authorisation has been granted. Currently, that can take up to six weeks.

Clause 22 will remove the definition of confidential business material—material defined as acquired in the course of trade—from the definition of protected material under schedule 3. This will remove the requirement for the Investigatory Powers Commissioner to authorise the retention of copies of confidential business material. The Bill will replace that authorisation process with a new safeguard: the requirement for a counter-terrorism police officer of at least the rank of superintendent to authorise access to such material.

The clause will bring the schedule 3 safeguards for confidential material into line with those that apply to schedule 7 to the Terrorism Act 2000. It will mean that police do not face lengthy and unnecessary delays to examining material in a schedule 3 stop.

[Mr Jones]

I have some sympathy with this clause; the Investigatory Powers Commissioner has a big job on their hands anyway. I wonder whether the Minister could say whether he has given any thought to the Investigatory Powers Commissioner not just looking at the material and giving it authorisation but having retrospective powers to dip in and see whether things have been done correctly.

[Stephen McPartland]

I will take that idea away and consider it. We do not want to enable somebody at the border to say that something is confidential material so that the police cannot look at it for up to six weeks. That would just be the easiest defence. We are dealing with incredibly sophisticated experts and they will know what to say to ensure that the material will be held in abeyance.

The Government are only amending the safeguards for confidential business material and will not change the authorisation safeguard for other material within the definition of protected material or confidential journalistic material, for which judicial authorisation is a proportionate safeguard. I am sure Members agree that it is only right that the security services should be able to use critical information in real time during a schedule 3 examination to address live national security risks posed to the UK. I assure Members that this essential amendment to schedule 3 to the 2019 Act will strengthen and streamline state threats investigations to disrupt and deter hostile state activity.

National Security Bill (Sixth sitting)

Kevan Jones Excerpts

Committee stage
Thursday 14th July 2022 Public Bill Committees

[The Minister for Security (Stephen McPartland)]

This is the clause that many of us have been looking forward to. I am not going to take interventions during my speech; I will set out the reasons why I believe the clause is correct, then I will listen carefully to speeches from hon. Members and then sum up.

Collaboration with key international partners is a vital part of intelligence and national security work. We cannot maximise our national security capabilities and keep people safe without sharing intelligence and benefiting from the capabilities and expertise of our close and trusted allies. Those individuals who work on behalf of the UK are highly skilled and experienced in ensuring that UK activity is necessary and proportionate. Domestic and international law is applied to all activities and there are robust safeguards in place.

The Serious Crime Act 2007 creates offences when an act is done that is

“capable of encouraging or assisting”

an offence and the person “intends” or believes that their act may encourage or assist an offence. Those offences, which were predominantly introduced to ensure that law enforcement had the tools to tackle those orchestrating serious organised crime, are complex and create an incredibly low threshold for liability. There is no minimum level of contribution to the offence that may be encouraged or assisted. The contribution can be small, it can be indirect, and there is no need for an offence to be ultimately committed.

At present, the UK intelligence community and armed forces are required to apply those complex offences to the many and varied scenarios in which they work with our international partners to help protect the UK. They exercise significant caution in their engagement with partners to prevent SCA thresholds being met and the risk of liability for individuals being realised. The impact of that approach is that vital and otherwise legal intelligence opportunities are currently being delayed or missed as the SCA risks are worked through.

There is also an important point of principle here. The Serious Crime Act offences mean that it is the individuals working within intelligence, security and military organisations who carry the risk of liability, despite operating within all authorisations and in the interests of UK national security.

The Committee heard oral evidence from both Sir Alex Younger, the former head of MI6, and Sir David Omand, the former head of GCHQ, on the fairness and appropriateness of individual officers carrying this risk. They believe that the liability risk sitting with individuals is “not right”, and is “morally wrong”. The Government agree with them and do not think it is right or fair to expect the risk of liability to sit with individuals who are acting on behalf of our intelligence services or armed forces for their authorised purposes. Instead, responsibility should sit with the UK intelligence community and the armed forces at an institutional level, where they are subject to executive, judicial and parliamentary oversight.

The clause removes criminal liability for offences of encouraging or assisting crime, but only where the activity is necessary for the proper exercise of the functions of the security and intelligence services or the armed forces in support of activity taking place overseas. This is not a broad general immunity from prosecution; rather we are amending a targeted piece of legislation in response to specific operational issues that are impacting the ability to keep us safe today.

The clause means that in instances where an individual has operated in good faith and in compliance with proper processes they would not face the risk of liability for the offences under the SCA. The risk I have outlined would be removed for activity that we ask of individuals in the course of their roles in keeping us safe.

I am confident that the SCA amendment is appropriate and proportionate, because the UK has one of the most rigorous intelligence oversight regimes in the world. There are myriad safeguards and processes in place that manage the way that UKIC and the MOD work with and exchange information with international partners to prevent potential wrongdoing.

I also have confidence in those we are providing protection to. They are expert and highly trained men and women undertaking intelligence and security work, whose judgment and skill we should respect and have faith in. Of course, those working with our international partners will still need to comply with all other domestic and international law and be beholden to the statutory frameworks and policies that govern the UK intelligence community and armed forces activity.

The policies include the overseas security and justice assistance guidance and the Fulford principles, the implementation of which is assessed by the Investigatory Powers Commissioner annually and reported to the Prime Minister. That means that clause 23 does not in any way make torture legal, for example. UKIC’s activities also remain under the regular inspection of the Investigatory Powers Commissioner’s Office—

[Mr Kevan Jones (North Durham) (Lab)]

Will the Minister give way?

[Stephen McPartland]

I am not giving way. And they are regularly scrutinised by the Intelligence and Security Committee.

--- Later in debate ---

[Holly Lynch (Halifax) (Lab)]

It will come as no surprise to the Minister—we have had the opportunity to discuss this—that we are extremely concerned about clause 23, which amends the Serious Crime Act 2007. We have had the opportunity to discuss this privately with the Minister and his predecessor, and with the UK intelligence community directly, and I am minded of just how much detail of those conversations we might want to put on the record. The clause was a big focus for Members from across the House on Second Reading. As the Minister knows, crucially, it did not have the support of members of the Intelligence and Security Committee, which has statutory responsibility for oversight of the UK intelligence community.

The Labour Party will always work with the intelligence services to find solutions to any barriers that they face in undertaking their invaluable work and keeping the UK safe. As things stand, we have been unable to get an operational understanding of exactly what is broken and requires fixing. I have heard directly from the security services about why they believe they need clause 23—the Minister has sought to outline that again in his contribution. Schedule 4 to the Serious Crime Act allows for a risk of liability to individuals conducting their proper functions on behalf of the UK intelligence community. An offence can arise where support—for example, intelligence sharing—provided in good faith later makes a small or indirect contribution to unlawful activity by an international partner. The security services are keen to convey that their caution in this regard is having an operational impact that requires a resolution.

[Mr Jones]

My hon. Friend is outlining the protections. SIS and GCHQ staff also have protection under section 7 of the Intelligence Services Act 1994, where there is ministerial authorisation. Like her, I struggle to understand what incidents there could be of an individual being liable, if they were covered by these authorisations and the Act that she refers to.

[Holly Lynch]

My hon. Friend makes an important point, which I will explore in more detail in a second. I go back to the point that the security services have conveyed to us that their caution is having an operational impact, which requires a resolution. We are sympathetic to that. We recognise that a junior member of staff facing that burden of potential liability when carrying out their proper functions under instruction does not feel right. However, I look to the Minister to find a way through the matter that does not involve what can feel somewhat like a gold-plating of exemptions for the security services, which stands to entirely erode appropriate safeguards and due diligence when considering the risks and consequences of sharing information with partners. As the Minister knows, there is an existing reasonableness defence in section 50 of the Serious Crime Act, which recognises that there may be occasions when it could be shown that an individual’s actions were justified in the circumstances.

[Holly Lynch]

I am grateful to my hon. Friend. As a lawyer, she has a great deal of experience navigating some of this legislation, and she makes a powerful point about the reasonableness defence. In addition, a prosecution would have to be deemed to be in the public interest.

[Mr Jones]

This morning we saw the Minister use reasonableness in clause 20, but he is not prepared to use it here. Does my hon. Friend agree that reasonableness in law is a well-established notion? Does she find it odd that the Minister relies on it in one clause, but in this one he prefers to say that it will somehow not work?

[Holly Lynch]

My hon. Friend makes the point that, while we will get into the detail of reasonableness and the concern that it is potentially untested in these circumstances, it is a well-established principle across British law. Again, that certainly supports the robustness of the existing defences around reasonableness. On further probing of these defences, and this is exactly his point, it seems that it is not the case that the reasonableness defence is not strong enough, rather that it is untested in these specific circumstances, as no such case has been brought against the intelligence community. We do not believe that that is a strong enough case for the proposals in clause 23. We hope that properly authorised activity to protect national security would and should be interpreted as being reasonable.

I am not currently satisfied, and neither are members of the Intelligence and Security Committee, who we will hear from shortly, that there are grounds to support clause 23 as drafted. I have taken further legal advice, including from a QC with a great deal of experience of the Investigatory Powers Tribunal. Can the Minister answer the following questions? First, as has been said by the hon. Member for Garston and Halewood, given that we already have section 7 of the Intelligence Services Act—this relates to the serious end of some of what we are talking about here—which allows the Secretary of State to give immunity from civil and criminal liability for pre-authorised crimes abroad, why do we need these changes?

Importantly, the existing scheme requires the UK intelligence community to secure permission from the Secretary of State in advance, requiring their personal approval, with safeguards within the decision-making process and oversight by the Investigatory Powers Commissioner, who is a senior judge.

--- Later in debate ---

[Ben Everitt (Milton Keynes North) (Con)]

I understand that clause 23 seeks to address a specific operational challenge currently faced by the UK intelligence community and the armed forces. The clause removes criminal liability for the offences of encouraging or assisting crime, but only where that activity is

“necessary for—

(a) the proper exercise of any function of the Security Service, the Secret Intelligence Service or GCHQ, or…the armed forces”

and only in support of activity taking place overseas. That is because in a specific scenario legislation is affecting the ability to collaborate with key partners and achieve legitimate shared national security objectives.

Essentially, we are trying to avoid there being a disincentive to sharing information that makes us safe. Looking at it the other way, we are trying to remove the liability from a brave young officer who is doing their job and keeping us safe.

[Mr Jones]

On the hon. Member’s second point, frankly there is already no liability, because that has already been covered. Can he give an example of where the security services have not been able to carry out their functions because of the absence of the clause?

[Ben Everitt]

That is probably beyond what I can say here, and indeed beyond what I am aware of. It is one of those situations in which, were I a Minister, I would be happy to write to the hon. Gentleman—but I am not. Far from gold-plating, as referred to by the hon. Member for Halifax, clause 23 does not create a blanket criminal law immunity for our intelligence officers. It does not change the application of other criminal law offences that overlap with those underneath the Serious Crime Act 2007. It provides no change to the UK’s international law obligations.

I assume that the Minister agrees that the approach undertaken in the Bill is more limited and targeted than the approach other key allies have deemed necessary to protect those working on their behalf. Indeed, last week we heard from Alex Younger, the former chief of the Secret Intelligence Service. During his oral evidence he noted that there is an international precedent for such measures. He was referring to Australia; I understand that it was section 41 of the Australian Intelligence Services Act 2001, where there is a much broader immunity. That Act states:

“A staff member or agent of an agency is not subject to any civil or criminal liability for any act done outside Australia if the act is done in the proper performance of a function of the agency.”

Clause 23 is much more limited than that example. Rather than a proposal for wholesale immunity, it will just remove the legal risk for individuals’ actions that are done in good faith and following all authorised processes. That risk should not be underestimated given the chilling effect that we have discussed over the past couple of weeks. That effect can prevent or even delay the sharing of critical intelligence with international partners. Thus, the line of argument that the provision is too broad does not really hold when considered in the context of what our key allies are doing in relation to sharing information.

I express my support for clause 23, and the core principle that this is the right thing to do. We do not expect the current criminal liability of the Serious Crime Act offences to sit with trusted individuals who are conducting authorised, highly sensitive and vital national security work to keep our country safe.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

I rise to support a lot of what the hon. Member for Halifax has said already. Nobody on the Committee doubts the importance of collaboration; we all recognise how crucial that is. I do not think that any of us doubt that the services have approached the Government having identified what they perceive to be a problem, and that the Government are genuinely engaged in trying to resolve that. One of the challenges that we face as parliamentarians is the degree of confidentiality and secrecy that surrounds their operations, which sometimes makes it difficult for us—particularly if we are not members of the Intelligence and Security Committee—to properly understand the nature of the problem and how it can be resolved.

[Mr Jones]

I am very conscious of what the hon. Gentleman has said, but to date neither the Government nor the security services have provided any justification or examples to the ISC as to why the clause is needed.

[Stuart C. McDonald]

I am grateful to the right hon. Gentleman, who is a member of the ISC, for clarifying that. For that reason, I am not dead set in my opposition to the clause by any stretch of the imagination—I am open to persuasion. However, we need evidence through the ISC that there is a problem and that clause 23 is the best way to solve it. As matters stand, I cannot say that I have been persuaded of either of those things.

First and foremost, it remains difficult to see how officers of the services in question can commit an offence under the 2007 Act unless they intend an offence to be committed, or, secondly, unless they have a belief that their action will assist an offence. That is a high threshold, even before defences kick in.

We have heard already that the section 50 defence of acting reasonably applies. Given the “purpose” and “authority” under which any action of information sharing would take place, it surely seems very likely that that defence could easily be made out. That point has already been made by a member of the ISC this afternoon. It almost looks like that defence, in section 50(3) of the 2007 Act, was designed with employees of the agencies in mind. The Minister has asserted that the defence is vague, but they seem to be a perfect fit for some of the circumstances that we are considering.

Even if the Minister is correct, perhaps the better response would be to amend the defence, rather than disapplying schedule 4 altogether. It is not clear why it can be argued that the reasonable defence is any more vague than the concept in this clause of

“the proper exercise of any function”.

It is not clear to me what conduct that concept is and is not supposed to cover. We need clear explanations and I do not think we have been given them.

Will the Minister give an example of conduct that is a proper exercise of any function of the services, but that is currently subject to the chilling effect of the 2007 Act and would therefore be saved by the Bill? Why is such conduct not able to get over the threshold of the reasonable defence already? Why, as has been asked, is such conduct not able to be authorised under section 7 of the Intelligence Services Act 1994? What type of data sharing is subject to this chilling effect and what causes that effect? Is it the remote possibility of data being used for a very serious crime or the significant chance it could be used for a less serious crime? Is it both? Is it neither? It is very hard to get a handle on what precisely the provisions are aimed at.

The Minister knows that concerns were raised on Second Reading about the potential for the clause to have a much more significant effect on actions that could, for example, support rendition or torture. He has set out today and in correspondence that domestic and international law means that such action would not be protected by clause 23. We will give that further consideration, but, in my view, the Government have much more to do to persuade us that there is a real problem here, and one that requires legislative intervention.

Even if a problem does have to be addressed, I am still to be convinced that this is the right response. Are there other options we could look at? Of course there are. For example, in last week’s evidence there appeared to be the suggestion that it was not so much the risk of conviction that was feared, but the risk of an investigation and being dragged to the courts and having to establish a defence of reasonableness. That was one of the problems.

Different things could be done. The clause could be moved around so that it is not a defence, where the burden lies on the person accused. We could make it an intrinsic part of the offence in the first place, so that nobody is dragged to court and has to establish the defence. There are other things that could be done—for example, requiring certain authorisations for prosecutions and so on.

Let us have that discussion, assuming that we can be persuaded that there is a problem here. Are there different ways to address it? For the moment, we remain a little bit in the dark on what precisely the nature of the problem is, and are unconvinced that the provisions in the clause are the best way to resolve any problem that does exist.

--- Later in debate ---

[Mr Jones]

I thank the Minister for reading his speech very well, but I take issue with the implication of what he said at the end, and I feel a bit annoyed about it.

The implication is that if someone ask questions about clause 23, somehow they are not supportive of our security services. I am the longest serving member on the Intelligence and Security Committee and a former Defence Minister, and I think most people who know me in the House know that if I am anything, I am a supporter of our security services and defence forces. It is therefore a bit churlish for people to argue that asking questions somehow means that I want to inhibit the work of our defence and security services; I certainly do not.

Having been on the ISC since 2017, I am aware of the bravery involved in the difficult jobs of our security services. I never cease to be amazed when I hear about some of the things they do. The general public would have no idea of the difficult judgment calls they sometimes have to make.

However, I am also a big supporter of proper oversight of our security services. We have the ISC, the Investigatory Powers Commissioner and the Investigatory Powers Tribunal, and that is the web we have in our democracy to ensure that the security services operate legally and that they are supported in what they do. In fact, the director general of MI5 often says in front of the ISC that those three organisations give it the legitimacy to operate. That is a good thing in a democracy, and I agree with him.

What worries me is the justification for why clause 23 is needed. We have heard it before, but we just heard the hon. Member for Milton Keynes North use the phrase “a chilling effect”. In their evidence, Sir Alex Younger and Sir David Omand also supported this provision. I have huge respect for those two gentlemen: they are good public servants whose service has done this country a huge amount of good. However, from reading the transcript—I was abroad when they were here last week; I apologise—I do not quite get the point that they were getting at. They used words, which have just been used again, such as principles and morals, and the idea that the onus somehow lies on the individual officer.

If that was the case, I would totally agree that the onus should not be on the individual officer because, having seen what they do, I know they have to make key judgment calls. In their evidence, I do not think that Alex Younger or David Omand gave us any examples of why this measure is needed.

[Ben Everitt]

I have been listening carefully to the right hon. Gentleman. He mentioned oversight as a key part of the functions of our security services. I waited for him to develop the point further into liability, which is what we are discussing here. Will he elaborate on what he means in relation to oversight when, I think, clause 23 specifically refers to liability?

[Mr Jones]

It is about both. I will come to liability, because I do not think that individual officers are liable due to existing legislation. As for what I mean by oversight, I am clear that the structures we have for the authorisation of things that are not pleasant should include oversight—whether from the ISC, the tribunal or the Investigatory Powers Commissioner. We do not live in a society—thank God—where Ministers and the Executive can just say to the security services, “Do x, y and z.” That would be wrong. That is why it is important to have oversight and checks and balances in the system, which were not always there. This morning, I referred to a very sad time in our history—I was a Minister at the time. It was not a good time for our security services, and we should have been ashamed of some of the things that were done.

I want to see an example of what Sir Alex Younger and Sir David Omand were talking about last week. If there is a specific problem, I would be sympathetic and say, “Right, we need to get that sorted.” It may be a broad notion. We are talking about principles and morals, and it is very difficult to legislate on morals—certainly the Conservative party gets into difficulty when we talk about morals—but I would like to know specific examples that would lead to a liability.

Let me turn to the existing protections. Schedule 4 to the Serious Crime Act 2007 includes the offence of encouraging, assisting or commissioning an offence abroad. Clause 23 amends schedule 4 of the Serious Crime Act to disapply that offence when the activity is deemed necessary for the proper exercise of a function of an intelligence agency or the armed forces. The Government are basically asking for a carve-out, which I find extremely rare.

[Maria Eagle]

Does my right hon. Friend agree that putting in legislation a carve-out from an entire class of offences—in this case, the inchoate offences of crimes committed abroad—engenders more suspicion among those who worry about the intelligence services than would be the case if the law applied properly to them with appropriate defences?

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[Mr Jones]

I do. Since I have been on the ISC, I have always been amazed when I read accusations made in this place or in public about what the security services get up to. Frankly, if they did, good—but, given the scope of their ability to do things, we should bear in mind the difference between fact and fiction.

The important point is that what the security services do must be proportionate, legal and in the interests of this country’s national security. As I say, they have to take some difficult decisions, and there is a difference between a ministerial authorisation to do something and what happens on the ground. The Minister is not sat there with a pen, saying, “No, you can’t do that. You can do that.” It is down to the individual officer, and I accept that there are huge issues around that. That is why we had the consolidated guidance, which then developed into the Fulford principles. That came out of that dark time.

I was on the ISC when we did our very long inquiry into detention, mistreatment and rendition in 2018, and it was not pretty reading. Ministers—in some cases, we named them—took decisions that were not legal. I have been assured by the agencies in evidence that I and the ISC have received that the consolidated guidance has since been updated to the Fulford principles, and a large exercise has been undertaken to ensure that all officers at all levels understand the principles and how to enact them.

That gives us that legal protection. There are people who want to attack our security services. That large exercise gives me huge assurance, and it means that parliamentarians are in a strong position, when people start accusing the security services, to stand up and say, “Well, actually, that is rubbish. These are the rules that we follow, and they are of the highest standard.” They protect not just the work that the security services do, but us as a country.

Carving this out worries me, as it does my hon. Friend the Member for Garston and Halewood. The Government want to disapply the measure, but there is already a reasonableness protection. We discussed reasonableness this morning. Section 50(3) of the Serious Crime Act 2007 sets out that:

“Factors to be considered in determining whether it was reasonable for a person to act as he did include…any purpose for which he claims to have been acting”

and

“any authority by which he claims to have been acting.”

I think that is very clear.

If we now have a situation whereby the agencies and armed forces are concerned that the conduct may not be reasonable, it is difficult to see how it would be deemed necessary for the proper exercise of the functions of the intelligence services or military. The reasonableness test is there and, as I have already said, we have other protections whereby the Secret Intelligence Service and GCHQ also protect their staff from liabilities in relation to offences committed abroad through ministerial authorisation under section 7 of the Intelligence Services Act 1994. The important thing about all that is whether the Investigatory Powers Commissioner can ensure that it is done properly.

To get back to the point, what is the problem? I do not see it. Call me old-fashioned, but if there is a problem, I am up for solving it. However, I do not think that we should try to change things if there is not a problem, and none of the agencies has yet come forward to explain in detail what the problem is.

I accept what was said earlier about the ISC. The individual examples, if there are any, will cover highly classified information—that is why the ISC is there: we can take evidence and look at that information—but there has been no attempt at all by Government Ministers or the security services to give us the examples. One of my colleagues will speak in a minute, but I speak on behalf of the ISC, because we have discussed this issue. We cannot give clause 23 a nod through at this point until we have been convinced that there is a need for it.

My hon. Friend the Member for Halifax made a point about scrutiny. The great thing about having the Investigatory Powers Commissioner is that they can look at warrants and ensure that they are not just legal but proportionate. If we have this provision, who will oversee the individual cases? I get the point that the two former heads of security services made in their evidence about the onus being on the individual. Yes, it is, but those individuals rightly have a huge degree of protection. I would not want to see that in any way diminished because they have the law behind them. In some cases, they also have ministerial warrants, which add to the judicial process.

For those who say that if someone ask questions about this provision, they are against the security services, let me put it the other way. If it is not justified, it will be used as a way to say that the security services now want to go back to the bad old days when things happened that were not under the scrutiny of either Parliament or the judiciary. That would be a retrograde step and would give opponents—as I say, they are against whatever the security services do—a stick to beat them with. I am certainly not in favour of giving those people anything with which to beat the security services.

We could vote against the clause, but I do not think that is the right way forward. I and other members of the ISC would like the Government to provide us with examples of where the chilling effect has been a problem for intelligence sharing, so that we can at least have a look. I accept that other members of the Committee might wonder why they cannot see it—trust me when I say, “You can’t.” I think most people would understand the reasons why that is.

[Stephen McPartland]

I wanted to be very clear earlier—I wanted to make a point. I agree that the Government will give the ISC examples.

[Mr Jones]

That is very welcome, but we do not just want that in writing—we want to have the agency heads actually come and speak. I think we have a meeting with them scheduled for some time in October. We would like to get them to come and argue why they need these changes. We need that as well.

The Minister might need to give it a bit more thought, too. I accept that he is new to his post, and he obviously has time to look at this over the summer—depending on what happens at the beginning of September. I know that I have poked fun at the Minister, but we get on well, we have worked closely on other Committees and I even got him promoted on a Committee once, which he was eternally grateful for. Can he just look at the oversight, too? If the Bill does go through, what are the oversight mechanisms for it?

[Maria Eagle]

I will not go through all the points that have already been made, although I do feel quite strongly about some of this. I generally endorse what has been said by my hon. Friend the Member for Halifax and my right hon. Friend the Member for North Durham—my fellow member of the ISC. Like him, I do not think it is true to say that anybody on this Committee or any of our parliamentary colleagues are intent on trying to stop the intelligence and security services doing their job. They do a very important job and they do it very well. It is dangerous work and we want to support them as much as we can.

But we are a democracy. One of the things that concerns me about clause 23 is its wholesale disapplication of an area of the law that applies to all the rest of us. If we are going to do that for the intelligence services, it is important that we are very clear that it is necessary. It applies only for a certain type of offence in a certain place—overseas—but it is a wholesale carve-out. The clause says that an entire schedule to the Serious Crime Act 2007, which sets out inchoate offences abroad, does not apply if “any relevant behaviour” was necessary for

“the proper exercise of any function”

of the relevant services. That is a wholesale carve-out. I cannot think of too many other examples of that. I do not know if the Minister has a list of examples of other wholesale carve-outs from liability from the criminal law for particular officers of state organisations, but I think it is quite rare.

In those circumstances, I could tell from the evidence we were given that the Government have been asked for this by the relevant services. It did not seem to me that it was coming from the Government—that the Government were saying, “You must have these extra powers.” I accept that they are responding to requests, but because this is a wholesale carve-out from liability for criminal acts, it is important that it is properly justified. We all know about the difficulties of properly justifying it, because a lot cannot be brought into the public domain, but what we have had in the public domain has not been very convincing.

I expect that many people in their day-to-day life would like to have impunity from criminal liability for something that they might do, but it is not something we should be granting easily. The arguments for it need to be very strong. There are already defences that make it harder for people working in the intelligence community to be found guilty of some offences. They have defences that others do not. By the way, it is probably philosophically right that the law should apply to those people but that they should have extra defences. In legislative terms and for the good of society as a whole, it is probably better to do it that way round than to disapply the law to a particular type of person.

I would expect to hear why the current arrangements do not work, but I have not heard that. I did not hear it in the evidence we took from Sir Alex Younger and Sir David Omand. If I can characterise the issue in this way, they both said, “We would rather have this. We feel very strongly that we would rather have this,” but they were unable to give us any examples of why the current arrangements did not work. In fact, I asked Sir Alex whether some of the current arrangements worked. I asked him about the ministerial authorisation, and he just told me that he was not a lawyer, which is not a convincing answer when someone is asking for a whole area of the criminal law to be disapplied. Sir Alex obviously felt strongly about the matter—I could see that. That is perfectly legitimate, but as a scrutiny Committee and as parliamentarians, we need to hear a little bit more.

I hope the Minister will understand—I do not particularly like the fact that he refused to take interventions, but that is his choice—that everybody on this Committee is seeking to do the right thing. We do not want to make a change to the law that opens up our intelligence and security services and our armed forces to accusations that they can act with impunity abroad. Based on some of the evidence that has been sent to the Committee from those who campaign on these issues, some people think that the clause does precisely that. I do not agree with some of what is in the submission from Reprieve that we received recently, but that submission contains quite a representative sample of what people in our society would probably think if they were to take a look at this clause.

A wholesale carve-out from liability under an area of the criminal law is a very serious step to take. I am not saying it is not the right thing to do, because we should take requests from the agencies and armed forces seriously—as the Minister is clearly doing—but I remain unconvinced. Such a carve-out could have unintended consequences, such as making it much less likely that thoughts will be focused on making sure that activity is lawful. We need to make sure these proposals are the right way forward, and that their advantages outweigh their disadvantages. We have been told that reasonableness is a vague concept, but it is vague only in the sense that it is very flexible and can, and does, apply in many areas of the law; its meaning is relatively well known. To my mind, if the agencies and armed forces are concerned that their conduct might not be considered reasonable, it is difficult to see how it could be necessary for the proper exercise of their functions.

[Mr Jones]

The other safeguard in this area is surely that if there were to be any prosecution of an agency staff member or a member of the armed forces, the Attorney General would also have to agree to that prosecution. That would be a pretty high bar to get over.

[Maria Eagle]

It would be a very high bar to get over. If we are being told—there was an element of this in the evidence we heard—that there is a chilling effect on individuals trying to do their jobs, those individuals may need to be a bit better trained in what the law says, what it means and what they are able to do. In any event, whatever the law ends up being—whether it is this Bill, or what we already have—it is not a bad thing for those who operate at its margins to know precisely what they can and cannot do. I worry slightly that having a complete carve-out from liability might swing activities a bit too far in the other direction.

There are pros and cons to any way of doing this. I do not want the Minister to think I am being hostile; I am certainly not. I just want us, as the House of Commons, to be sure, when we consider this further, that this way is right and will work better than what we already have. I, for one, cannot see how this will be better than what we already have; I think that in many ways it will be worse.

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[Stephen McPartland]

I am grateful to the hon. Lady for her intervention. I do not think I would be any good at giving anybody CPR. However, I understand the spirit in which she made the intervention and am grateful for that.

[Mr Jones]

Will the Minister give way?

[Stephen McPartland]

I do not want to get distracted, because this is very serious. I will give way to you in a minute, Kevin; I want to get this point across. [Interruption.] Sorry—I will give way to the right hon. Member for North Durham in a moment.

As the law stands, a member of staff acting in the proper exercise of their organisation’s functions would bear the burden of proving that they had acted reasonably when there is no precedence as to what “reasonably” means in those circumstances. The provision would change that position so that the prosecution would need to prove that a member of staff’s actions were not necessary for the proper exercise or function of their organisation, taking into consideration all the information about the legitimate ways in which those functions could be exercised.

[Mr Jones]

The Minister has just said that the reasonableness test has not been used. The Attorney General would also have to get over that bar. Alongside that sits the old consolidated guidance—now the Fulford principles—which is quite clear about what actions officers should take in certain circumstances to avoid what we had before. If it has not been tested, I cannot see what the problem is.

[Stephen McPartland]

The problem is that the UK’s intelligence services are telling us that, every single day, their operatives are second-guessing themselves on operations to keep this nation safe. I believe what they are telling me.

The provisions in section 47 of the Serious Crime Act mean that a person need only believe their activity will encourage or assist such an act, but they might also be reckless as to whether the act is done, with all the necessary elements required for that particular offence to be committed—the offence does not have to be committed. We are talking about the intelligence operative’s state of mind at the time of sharing intelligence. That is what is relevant.

[Mr Jones]

If that is the justification, why do we not just bin the consolidated guidance and the Fulford principles, on which such judgments are based? The rendition inquiry has great examples of where we passed on information knowing that it would be used for rendition and torture. I have been assured by the agencies, and I have no reason to doubt them, that there has been a huge training programme to ensure all officers fully understand the consolidated guidance and the new Fulford principles. This is clutching at straws, frankly.

[Stephen McPartland]

I am grateful for the right hon. Gentleman’s point of view.

Clause 23 is primarily aimed at removing the risk and fear of prosecution from individuals within these organisations when undertaking their necessary authorised duties. Sir Alex Younger said:

“Through this legislation and other measures, we can make sure that these risks are attached to the appropriate person or people or entity. I am much less comfortable as a leader about the idea that we therefore ask individual men and women in the UK intelligence community to suck it up. I do not think that is right.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 14, Q26.]

We have already had a conversation about the difference between theory and practice, and the reality is there is a risk that individual UK IC officers will face criminal sanctions for doing their job. I agree with Sir Alex Younger that that risk should not exist.

Question put and agreed to.

Clause 23 accordingly ordered to stand part of the Bill.

Clause 24

The foreign power condition

National Security Bill (Seventh sitting)

Kevan Jones Excerpts

Committee stage
Tuesday 19th July 2022 Public Bill Committees

[Mr Kevan Jones (North Durham) (Lab)]

On a point of order, Mr Gray. I wrote to Mr Speaker about new clause 6, which was tabled in my name, to ask whether it was in order. I understand that that the decision was then passed to you and Ms Ali, the Chairs of the Committee. Have you have contemplated the new clause, is it in order, and will it be discussed later?

[The Chair]

I am most grateful to the right hon. Gentleman for his point of order. He is right: his new clause has been received and we have been contemplating the matter for some time. The question is whether the subject of new clause 6 is in scope, and learned authorities have different views on that. Some, including the previous Lord Chancellor, believe that it is in scope, while others believe that it is not.

Mr Speaker ruled that it is for my co-Chair—the hon. Member for Bethnal Green and Bow—and I to decide. We have taken the view that we are not legal experts and are therefore unable to judge correctly whether the new clause is in scope, but that the business of this place is to debate things rather than to stifle debate, so without commenting on whether the matter is in scope, we believe that it should be debated. If the Government do not like it, they can vote it down in Committee or at a later stage, but deciding that the clause is out of scope would be beyond our pay grade. We have taken the view that the new clause will indeed be in scope and that we can debate the public interest defence.

[Mr Jones]

Further to that point of order, Mr Gray. I thank you and Ms Ali for your consideration of the new clause.

Clause 27

Interpretation

Question proposed, That the clause stand part of the Bill.

[The Chair]

Amendment 48 to clause 27 was debated earlier on, but I understand that its proposer does not wish to press the amendment to a vote. Is that right?

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[Stuart C. McDonald]

As the shadow Minister, the hon. Member for Halifax, set out, clause 32 introduces the power to impose STPIMs on an individual via a part 2 notice, and schedule 4 sets out the types of measure that can be imposed.

As I argued on Second Reading, none of us should ever feel comfortable about curtailing people’s liberties via administrative civil orders rather than as punishment for crimes that have been proven through trials. None the less, we acknowledge that such prevention and investigation measures are a necessary and useful part of combating terrorism, and our position on TPIMs has been to focus on trying to clip their wings, improve oversight and limit their invasiveness, rather than to oppose their use altogether.

We think that the balance of evidence shows a similar case for STPIMs. However, we should again be careful in our scrutiny of them, and not permit interference in people’s liberties without proper justification and appropriate limits and oversight. We welcome, for example, that the residence measures in paragraph 1 to schedule 4, which are among the most restrictive measures set out in that schedule, apply only to individuals who are thought to be involved in the most immediately serious activity. Some of the measures are broad, but they seem to be curtailed and properly restricted by the provisions in clause 33—which we will discuss shortly—ensuring that they cannot go beyond what is necessary, although we have some concerns about the various tests that the Secretary of State has to require before applying the measures.

As the Committee has heard, amendment 57 would take out paragraph 12 of schedule 4, on the use of polygraph tests as a means of assessing compliance. Our view is that as polygraph tests remain too unreliable and lack an evidence base, they are inappropriate tools for measuring compliance with STPIMs, especially in the light of the all the other means at the Secretary of State’s disposal, including the monitoring measures in paragraph 15 of schedule 4, as well as the full range of investigatory powers that the services have at their disposal. It is hard to see what paragraph 12 will add. As the shadow Minister said, polygraph tests are not currently used at all.

If there is a case for the use of polygraph tests and the Minister is keen to retain the power to impose such a condition, I ask him to consider removing their applicability in Scotland. There is a precedent for that: polygraphs were introduced for TPIMS in the Counter-Terrorism and Sentencing Act 2021, but during the Act’s passage, the Scottish Government indicated that they would not promote a legislative consent motion for polygraphs on the basis that, because polygraph testing is not currently used at all in the criminal justice system in Scotland, the fundamental change of introducing them should be a matter of principle to be determined by the Scottish Parliament.

The SNP welcomed the decision by the then Justice Secretary, the right hon. and learned Member for South Swindon (Sir Robert Buckland), who is now the Secretary of State for Wales, to remove the provisions on polygraphs that applied to Scotland. Following that concession, a legislative consent motion was eventually approved at Holyrood. If I recall correctly, the Northern Ireland Executive expressed similar concerns. We see no case for polygraphs, but we assume that the Minister does, and if he wishes to retain their inclusion in the Bill, we respectfully ask that he take the same approach as his right hon. and learned Friend by not applying the provisions to Scotland.

[Mr Jones]

I support the measures because they are an extra weapon in the armoury to fight against hostile state intervention in this country. Clearly, the arguments about the level to which the restrictions will be imposed are very complex. There will be cases in which the prosecution test will not be met but we still have evidence about individuals.

My only problem with the measures is in relation to how they will be used practically. As we all know, TPIMs have not exactly been uncontroversial in their prosecution. Will the Minister give us an understanding of how they will be used and in what circumstances? If the evidence is there—and I accept that sometimes that will be difficult, in the sense that a lot of evidence against individuals will be unable to be put in the public domain—when will the measures be used, and for what duration? That would give people some assurance that they will not be used for lengthy periods against individuals. I accept that in a number of cases the evidential test for prosecution will not be met, and therefore the measures may well be a useful tool in the armoury, but we need some oversight of how they will be used and their effectiveness.

On polygraphs, I have some sympathy with the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. Interestingly, the hon. Member for Hastings and Rye seems to be answering for the Minister; I do not know whether she is auditioning for the job, but I thought it was the Minister who replied to such things.

I think the jury is out, not just in this country but internationally, on the effectiveness of polygraphs. If we are to ensure that they will not be challenged legally, we could put something in the Bill. I am not suggesting for one minute that polygraphs be used on every occasion, but if one is used in a case that is then thrown out because of the unsafeness of the test, that would unfortunately weaken the tool. The Minister has to justify it. As I say, I would be interested to know about the oversight, and how long he envisages their being used.

[Stewart Hosie (Dundee East) (SNP)]

It is a pleasure to serve under your chairmanship, Mr Gray. I have a question on paragraph 8 to schedule 4, entitled “Electronic communication device measure”. It is eminently sensible, when one is considering how an STPIM might be constructed, that one looks at all the restrictions that that may involve. However, when we get to sub-paragraph (6)(c), which refers not to computers or telephones but to other equipment

“designed or adapted, or capable of being adapted, for the purpose of connecting to the internet,”

I want to ensure that there is clarity, and that the provision will be defined in a cogent way.

As we move further into the internet of things, one’s fridge or toaster will be designed for the purpose of connecting to the internet. That might sound glib or flippant, but we may get to the point when half the white goods in any individual’s home are internet enabled. Given that there could be huge sensitivities in the deployment of STPIMs, the last thing that we want to see is a police constable or bailiff removing half the items from someone’s house, when that clearly is not the intention but those items nevertheless fit the category in paragraph 8(6)(c).

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[Stephen McPartland]

I am grateful to the hon. Lady for that point. I understand that our responsibility is to scrutinise the legislation to make sure that, as the hon. Member for Dundee East made clear, we do not open up a can of worms that can lead to greater and greater unintended consequences, but the reality is that the provision is to be a last resort.

If we are talking practically, counter-terrorism police are responsible for enforcing STPIMs. The amount of resources required to enforce and monitor a TPIM or STPIM is so great and so large that, as Members can imagine, it is not something that any of the agencies or anybody in Government wants to do, so it is not something that we will look to push. First and foremost, this is about prosecution by any means possible.

To give some kind of hope and clarity, I would like to make the point that the number of TPIMS currently in use is less than four. The number of TPIMs that have been used throughout the 10 years of their existence is less than the clause number that we started on today. I hope that gives some reassurance on how limited the measures will be, and on how few occasions they will be used.

We have been looking at the specific time limit, and we are including a specific condition to have a maximum of five years for the duration of an STPIM. Again, that is to mirror what is in the TPIM legislation. Additionally, subsection (4) requires the Secretary of State to publish factors that she considers are appropriate to take into account when deciding whether to restrict a person’s movement in the UK—for example, ensuring that they have access to appropriate medical facilities.

Part 1 to schedule 4 sets out 16 measures. Right hon. and hon. Members will know there are 17 measures in TPIM legislation for differences around drug testing, but we do not believe that is applicable in this case. The measures have to be tailored to the specific threat that an individual poses.

I want to touch on the polygraph measure, as it has been raised by a number of colleagues. It is designed to allow the Secretary of State to require an individual to take a polygraph test at a specific date, time and location. The purpose of the measure is to assist operational partners to assess whether an individual is complying with the other measures under their STPIM. The outcome of the session may be used to make changes to the individual’s suite of measures—for example, removing or adding specific measures to prevent or restrict their involvement in state threat activity. Again, this measure is expected to be used exceedingly rarely.

Let me reassure the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East that the polygraph session cannot under any circumstances be used to gather evidence for a future prosecution. I am stating on the record that polygraph measures cannot be used to gather evidence for a future prosecution, and I hope that that provides reassurance.

[Mr Jones]

I am grateful for that clarification, but what happens if someone gets a negative polygraph test and has actually broken their STPIM? Surely it will be used as an evidential test, because they have not complied with their conditions.

[Stephen McPartland]

Under the way the law system works, that might provide some kind of information, but it will not be used as evidence. The operational partners would then have to go off and identify the evidence in order to find out how they could do that, because breaching a notice is a criminal offence, so they would need the evidence in order to then go to court to demonstrate that.

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[Mr Jones]

I understand what the Minister is saying, but I have a real problem with this; I think the Government are opening up an argument for lawyers who want to defend people. Obviously, if somebody is prosecuted for breaking an STPIM, then in discovery, the lawyer is going to ask, “Was a polygraph test done? Does the individual know they have done it?” I am worried about putting this in, because there is a controversy about polygraphs allowing the defence an opportunity to undermine the process. I understand why the Bill is belt and braces, but I am not sure that this part of it is going to be helpful.

[Stephen McPartland]

I am grateful to the right hon. Member for his point, and I understand it, but polygraph measures are currently used in the management of sex offenders in this country, and the Bill will operate very much on the same principles. He should remember that in this legislation we are not trying to create new bits and pieces for controlling an individual; operational partners have found these tools effective over the past 10 years, so we are trying to mirror what is already out there. That is the purpose of the legislation.

The hon. Member for Halifax asked about foreign nationals. Our ambition is to prosecute using any means possible, including deportation, so if that is not available, we would look to use one of the measures in the Bill. Because we would look at deportation and everything else as an option, we would expect the measures in the Bill to apply more to British citizens than they would to foreign nationals. As I have stated, counter-terrorism police are responsible for looking after and enforcing the measures. We talked about the number of TPIMs; I am not allowed to give the exact figure, but I have given an indication of how rarely they are used. We imagine that STPIMs will also be used very rarely.

On the right hon. Member for Dundee East’s point about the internet of things and trying to future-proof the legislation, under paragraph 8 of schedule 4 we can restrict access to electronic devices, and as such restrict access to electronic currencies. We talk about cryptocurrency, but cryptocurrency is already becoming a bit old-fashioned. Before I took on this role, I launched an all-party parliamentary group on digital currency and potential bearer currencies run by central banks; cryptocurrency is already becoming something of the past and we are now moving on to bearer currencies managed by digital banks. It is about safeguarding and future-proofing, and under paragraph 6 we can restrict the transfer of property, so we could restrict a transfer of funds in that way.

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[Stephen McPartland]

I am grateful to the right hon. Member for highlighting that point; I very much enjoy the suggestions that are made in this Committee. I understand the points he is making, and one of the things I have tried to demonstrate throughout the Bill Committee is my willingness to listen and try to work cross-party to get the legislation through.

[Mr Jones]

I hear what the Minister is saying and I think it is important, but would it be possible for him to write to the Committee when he has given the matter a bit more thought? The point that the right hon. Member for Dundee East has made is pretty important.

[Stephen McPartland]

I am always willing to write to the Committee, as the right hon. Member knows. I am happy to go away, think about this issue and then write to the Committee, so that I can put in writing the safeguard that I do not want a polygraph test to be able to lead to future prosecutions. I think that would work.

[Stephen McPartland]

The hon. Lady makes a very good point. As she knows, I am always prepared to improve legislation so that we are happy with it on a cross-party basis, it goes through the House and we can support our intelligence communities. I am very happy to look at that issue. I did not even know we could still get postal orders and bankers’ drafts.

Let me give some examples of how STPIMs could be used, specifically for the right hon. Member for North Durham—I know that he would like that. If a British national were recruiting, talent spotting and reporting for a foreign intelligence service, and the evidence to prove the foreign power links was too sensitive to be used in court, meaning that a prosecution was not viable, an STPIM that might prevent harm could include a financial order, to prevent the person from accessing funds from the foreign intelligence service; a restriction on contact or association with individuals, to prevent the person from being debriefed by the foreign intelligence service handler; and electronic communications device measures, to ensure full coverage of devices used by the subject. That is one example of how an STPIM could be used.

Another example relates to a British national working in one of our defence companies, and would prevent sensitive technology transfer. Suppose a disgruntled British national employee of an advanced technology company is seeking to market specialised, valuable and unclassified knowledge to foreign companies. The investigation and disruptive conversation means that the individual is moved to less sensitive work and their company computer access is restricted, but they cannot be dismissed. They remain disgruntled, but prosecution is not viable. In that case, we could disrupt travel to prevent an individual from meeting foreign representatives abroad, so that they could not pass the secrets over to them, and we could restrict contact and association with individuals in the UK for the same purposes.

This example relating to the intimidation of dissidents is particularly important. Suppose a senior member of, for example, a cultural organisation from a foreign Government based in the UK is seeking to exert pressure on dissident diaspora through intimidation, harassment and damaging rumours. The individual cannot be expelled or deported, so victims are afraid to make criminal complaints for fear of recrimination in their home country. The STPIM could be imposed, because prosecution is not viable—the victim will not testify or make a statement. We could put measures in place to prevent an individual from associating with the victim or members of their family. We could prevent serious violence by ordering the subject to relocate to an alternative area in the UK. The STPIM could be justified in closed court proceedings, because it would prevent any identification of the victim. I hope the right hon. Member for North Durham enjoyed those examples.

[Mr Jones]

I did, actually—I am very grateful to the Minister. He has set my mind running in terms of the possible uses of the measures. There is open-source evidence of the intimidation of protesters against the Chinese Government at universities, for example, by Chinese nationals here in the UK. Proving that those individuals were working directly for the Chinese Communist party or a people’s front, for example, is difficult. Could the Minister envisage the measures being used to prevent that type of harassment, by individuals who are intimidating or trying to close down legitimate protest against the Chinese Communist party, of legitimate protesters on university campuses?

[Stephen McPartland]

I can genuinely understand and imagine a pathway in which that could be the case. However, as I say, because of the huge amount of resources involved in an STPIM, we will try any other means possible, through normal criminal procedures, to prosecute individuals for harassment under normal criminal law. We will be doing everything we can to not actually use an STPIM. We want to prosecute these people. The Government’s first line is prosecution, and the last resort is an STPIM, when there is no other option available to us.

I will also ensure that we add crypto to the list one way or another, but I have to work out how we define it.

Question put and agreed to.

Clause 32 accordingly ordered to stand part of the Bill.

Schedule 4 agreed to.

Clause 33

Conditions A to E

National Security Bill (Tenth sitting)

Kevan Jones Excerpts

Committee stage
Tuesday 6th September 2022 Public Bill Committees

[The Chair]

I call Kevin Barron. I beg your pardon; I call Kevan Jones.

[Mr Kevan Jones (North Durham) (Lab)]

The former right hon. Member for Rother Valley was a very good friend of mine. He also had a knighthood, so you might want to have a word with him, Mr Gray.

I am speaking to get some answers that we did not get this morning. I am glad that we have an audience and more time to deliberate this afternoon, as it would be risky just to nod the adjournment through. We need an explanation of why the Government are adjourning the proceedings. My hon. Friend the Member for Halifax raised a point of order with Madam Deputy Speaker less than 20 minutes ago—not only about the adjournment of the Committee, but about proper scrutiny and the extra day that the Committee will need if we lose a day, as we have done today.

This is a mystery. I do not know whether the Conservative Whips have locked the Minister in a box somewhere or spirited him away on a nice foreign trip or something like that, but he seems to have disappeared from the face of the earth. The point is that in his resignation tweet—that is the “in” thing to do these days, unlike when you started, Mr Gray, when you would use parchment and—

[The Chair]

Quill pens.

[Mr Jones]

Quill pens, yes. Now it is about resigning by tweet. The Minister was clear in his tweet that he was resigning—[Interruption.] My hon. Friend the Member for Garston and Halewood has helpfully passed me her smartphone—again, using new technology, which is not the usual way I operate. The Minister made things quite clear in the last paragraph, when he said:

“I will continue to serve until a new Security Minister is appointed and look forward to supporting our new Prime Minister.”

The Minister is therefore still in post, so we need an explanation as to why he is not here to continue discussion of the Bill.

I asked that question this morning, and the Government Whip, the hon. Member for North Cornwall, did the usual by just ignoring it. I thought I would try again because persistence pays off and I quite like the hon. Gentleman, as he knows. We—not just the Opposition, but the House—deserve an explanation as to why today’s sittings are being adjourned when a Security Minister is in place.

In her reply to my hon. Friend the Member for Halifax, Madam Deputy Speaker said that this is the normal process until a new Minister has been appointed. I then raised a supplementary point of order to point out that we still have a Minister; it is just that he seems to have disappeared or is being kept away from the Committee. We need an explanation for this unique event, whereby the Minister has been kidnapped or is being kept away from the Committee, and the Government want to fold the Committee today.

I have one last point about the timings of these things. As I said this morning, there is quite a lot of consensus on the Bill. We—me and my hon. Friends on the Opposition Front Bench—want to get the Bill into statute and provide our security services with the best weapons and ammunition for the difficult job that they do on our behalf. That has not been helped by the rather messy and squalid way in which the Committee has been dealt with today. Will the Whip consider giving the Committee an extra day to pursue the Bill through Committee, to make up for the day that we have lost—not through our lack of willingness—and to give the Bill the proper scrutiny that it clearly deserves?

[Maria Eagle (Garston and Halewood) (Lab)]

I will speak briefly, as I do not wish to labour the point. I would not be making this point at all if it had not been for the terms of the Minister’s resignation letter, which we have all seen and which has been quoted to the Committee:

“I will continue to serve until a new Security Minister is appointed”.

The new Prime Minister, who is now in post, will no doubt appoint a new Security Minister in the next few days—possibly this evening or tomorrow. That is good; it means that we ought to be able to get back to consideration as planned on Thursday. However, there is no reason that would have stopped the resigning Minister, who is continuing in post until he is replaced, from coming to this Committee today and doing the work on the Bill that he has prepared for, because he has had the whole of August to do it.

The new Minister, no matter how excellent he or she ends up being as a Minister—no matter how knowledgeable in matters defence and national security—is not going to be as familiar with the Bill as the hon. Member for Stevenage. I just cannot see why the hon. Gentleman could not have come here, which is why I asked that question of the Whip, the hon. Member for North Cornwall, this morning. I understand that he has been put in an awkward position, but I did ask him whether he could seek some advice from his Whip colleagues about why the Minister did not come this morning when he had specifically said he was going to continue until he was replaced. Did he decide himself not to come, or was he asked to stay away? The Committee and the House deserve an answer to that question. I live in hope that the hon. Member for North Cornwall has that answer; if he does, it would be excellent if he put it on the record when he replies.

[Mr Jones]

Would it not also be interesting to know whether the hon. Member for Stevenage—unless, let us say, he has been kidnapped and put in a box or sent on a foreign trip somewhere—is still Security Minister? Not only does he have to appear before us today in that post, but there are obviously ongoing issues in that department that he will have to deal with. Some clarity would be helpful.

[Maria Eagle]

That is an important point. I was looking at this merely in terms of courtesy to the Committee, proper scrutiny and the way in which Bill Committees ought to and do work, but of course the Security Minister has other duties outside this House. One would not want a discontinuity between one Security Minister and the next, which I expect is why, when the Minister sent his letter to the previous Prime Minister, he said in his last sentence that he would continue until his successor was appointed. However, we now seem to be in a position where he has not continued until his successor is appointed.

When I was a Minister, Mr Gray—no doubt you will recall your own experience of these things—duties in the House took precedence over all other duties that one might have as a Minister, as stated in the ministerial code. As such, if the hon. Member for Stevenage is still the Security Minister, it is extraordinary that he is not here. There are two explanations: either he has decided to stay away himself, in which case it is a dereliction of duty, or he has been asked to stay away by the business managers, in which case this Committee and the House deserve an explanation.

I do not wish to put too much pressure on the hon. Member for North Cornwall, because I realise that he is doing his job and may or may not have had an answer in the time between this morning’s adjournment and the resumption at 2 pm, but we do require an answer. I hope he will be able to give it now, but if he cannot I hope he will undertake to ensure that all members of the Committee get that answer.

--- Later in debate ---

[Mr Jones]

Will the hon. Member give way?

[Scott Mann]

I will not; I have almost finished. It will not surprise the Committee to know that I have very little to say. I am absolutely convinced that the appointment of the new Security Minister will be made very soon, given its seriousness, and I look forward to that Minister taking on the Bill and delivering this very important piece of legislation for the Government.

[Mr Jones]

On a point of order, Mr Gray. The Whip has had time to clarify whether we still have a Security Minister—yes or no. My hon. Friend the Member for Garston and Halewood was clear that if he could not give an answer, he should write to the Committee with an explanation of what has happened. Do we have a Security Minister in post: yes or no?

[The Chair]

I am grateful to the right hon. Gentleman for making that point, extending the debate that we have already had. It is, of course, not a point of order at all: it has nothing whatever to do with the conduct of the debate. None the less, he has made his point, and it will be on the record.

Question put.

National Security Bill (Ninth sitting)

Kevan Jones Excerpts

Committee stage
Tuesday 6th September 2022 Public Bill Committees

[Maria Eagle (Garston and Halewood) (Lab)]

I am surprised by the difficulties caused for the Committee by what has happened. I have before me the letter by the Minister for Security, the hon. Member for Stevenage (Stephen McPartland), which he has kindly placed on Twitter. After all the niceties, and saying that he will not carry on, he signs off his letter by saying quite clearly:

“I will continue to serve until a new Security Minister is appointed and look forward to supporting our new Prime Minister.”

So where is the Minister? A new Security Minister—if one is to be appointed—has not been appointed. The hon. Member for Stevenage is still the Minister, and in his letter indicating his wish to resign in due course, he has undertaken to continue to serve until a new Security Minister is appointed. We have business this morning on one of the most important Bills before the House in the current Session—one that has been delayed for years because the Government had not got on with producing it.

Not only that, but we started Committee stage in chaos, when a former Minister suddenly resigned. The poor old Whip, to whom I extend my greatest sympathies —it is not his fault; he is just doing his job—has now been placed in an utterly invidious position on two occasions in one Bill Committee. We started out with a Minister resigning, and now this Minister has indicated his intention to resign but has made it quite clear in that letter that he intends to continue in post until a new appointment is made by the new Prime Minister. Let me remind the Committee that that appointment has not yet been made, although we expect that to happen later today.

So where is the Minister? Has he been asked not to turn up by the Government, or has he chosen not to turn up? If the latter is true, he is not doing as he undertook to do—continue in post until a replacement is appointed. It is an important part of any Minister’s job to take a Bill through the House and answer the questions of the Opposition and their own Back Benchers. This Minister has been working on that; I have no doubt he will have spent the whole of August reading through the Bill and getting his head around it in a way that he had perhaps not quite managed in July, when he was quite honest about being new to it. He will be an absolute expert on it by now. He could have been here this morning, and this afternoon, for us to make progress on it.

I would like the Whip, because he is a Minister, to explain to us in replying, which I hope he will, whether the Minister for Security was asked not to turn up today or whether he chose not to. If the latter, it is a dereliction of duty; if the former, Opposition Members would like to know why. I for one deplore the way in which the Committee has been treated by the Government. We are trying to consider a very important Bill, which is about the future security of this country, and we have been treated shabbily. Government Back Benchers have been treated shabbily, the Committee has been treated shabbily, and the House has been treated appallingly. The Government should resign en masse and let us have a new Government. Then we might be able to make some progress on the Bill.

[Mr Kevan Jones (North Durham) (Lab)]

This is not just an ordinary Bill. Although every Bill should be important, the idea that we are again delaying a Bill on our national security troubles me, as does the way in which the Bill has been dealt with. As my hon. Friend the Member for Garston and Halewood said, we are now on to four Ministers, including the Whip, who have been involved in the Bill. As my hon. Friend the Member for Halifax said, there is a degree of consensus on the Bill, in the sense that we want to support national security—certainly I do, as a member of the Intelligence and Security Committee—and ensure that we give our security services all the tools that they need to combat those people who would do ourselves and our nation harm.

Certainly when I was in Government, this would have been one of those situations where we would work very closely with the Opposition to see what we could agree on, what we disagreed on, and whether there were things that needed to be tweaked, as there are with all Bills. The present Government have continually presented Bills as though they are the finished item. Well, they are not. The drafting of Bills since I have been here has frankly got worse, in terms of not only mistakes but points being missing completely.

--- Later in debate ---

[Holly Lynch]

rose—

[Mr Jones]

I give way to my hon. Friend.

[Holly Lynch]

My right hon. Friend is making a powerful point. The Government act as if they are presenting the finished Bill, but we have had the worst of both worlds: there have been significant additions to it at quite late stages of the Committee, in addition to the Ministers changing throughout the process. We are really keen to work with them. Give us everything that we need to be able to do that.

[Mr Jones]

Mr Gray, I will come back to the point like a boomerang, as you know I always do. My hon. Friend makes a good point. That is the other side to the Bill. Foreign agent registration was announced the other day; why that was not done on Second Reading is baffling. It is not as though the Bill has not had a long gestation period; that has been longer than an African elephant’s. It has all been worrying for those people who treat national security with importance.

Let me say publicly that I understand from speaking to some people in the civil service and others that they want the Bill to make progress. I cannot understand the delay. When the Bill was introduced it was incomplete, but somehow the Government had the attitude that it was the final product. No—scrutiny in Committee is very important. I predict that if the Bill does not go through some changes in Committee it will be absolutely carved up when it gets to the other place, because there are bits in it that we know will not survive that process. We could have avoided that by consensus. I am committed, and I am sure that my hon. Friend the Member for Halifax—

[The Chair]

Order. The right hon. Gentleman will forgive me for interrupting him twice. We are simply discussing whether the Committee sits this afternoon. A wider debate regarding the way in which the Bill has been considered may be important, and I am glad to have heard what he has to say. None the less, perhaps we should return to the question of whether we should sit this afternoon.

[Mr Jones]

It is important that we have time to do that. We lose two sittings today and are supposed to finish next Tuesday. That also depends on when a new Minister is appointed. I assume the Cabinet will be done tomorrow, and I understand that there is a debate about whether the post of Security Minister will be a Cabinet appointment, so it might be made today or tomorrow. However, if it is not done by late tomorrow, that basically means Thursday for the Minister—whoever he or she is—to read themselves into the Bill. As I say, it is not just a small Bill, so it will be quite a task. I suspect, therefore, that we will get to Thursday and Thursday will be lost, which leaves us with one day next week.

There are some major issues about ensuring not only proper scrutiny of the Bill, but time for certain of the amendments tabled by me and others to be heard. One day next week will not be sufficient. I am looking to the Whip for an indication of whether the Government, if we lose today and potentially Thursday, will add an extra day next week. That would at least ensure that we have the number of sittings we were promised, although if we lose Thursday as well, we would need two extra days.

Again, I do not understand why the Minister is not present. As my hon. Friend the Member for Garston and Halesowen said—

[Maria Eagle]

Halewood!

[Mr Jones]

Halewood, sorry; I am getting mixed up. I do not know who I have insulted most—Members for the west midlands or Members for Merseyside.

The Minister is still in post, so why is he not here this morning? To be fair to him, the hon. Member for Stevenage picked the Bill up at a difficult time and worked hard to master the detail. His civil servants must have been pulling their hair out about some of the questions. I have known him for many years: he will not take everything as fed in front of him, but will ask questions. The civil servants might be relieved to get rid of him. But that is not the point. If he is still in post, as we are led to believe, why is he not in Committee this morning?

It is important for us to consider this Bill. I just hope that we will get back on track, because the other thing that is needed quickly—whoever the new Minister is—is early engagement on this type of Bill with the Opposition, to see what we can get through uncontroversially and what areas need changing. Lo and behold, some parts of the Bill might then need changing yet again. The Government will have to do something that I do not ever agree with, which happened when we were in government and increasingly with this Government: leave major changes to the Lords.

The Lords has somehow become the great oracle that listens to everything and changes things that we cannot spot; the only reason why things are not changed here is that successive Governments have got into the habit of railroading things through here and making concessions there. That diminishes the House of Commons and does not lead to proper and good scrutiny. It is not a failure of a Government to admit in a House of Commons Committee that there are problems in a Bill and to change them. Unfortunately, it is seen as such, so it is left to their lordships’ House to change things. With that, I shall resume my seat.

[Jess Phillips (Birmingham, Yardley) (Lab)]

It is a good job that the Bill is not about anything important. I say that to start, because it reminds me of going to the Department for Education with a headteacher from my constituency. As he walked out, he said, “Thank God they aren’t in charge of anything important!” What the Committee is discussing today—what we should be discussing—is deeply important. Instead, we are discussing adjournments, different rules of the House of Commons and whether we should have this debate. Something else worries me.

I give massive credit to the Security Minister, who not only picked up the detail very quickly but quickly built relationships with members across the Committee to ensure that the right scrutiny was going on and that people felt they were being given information. I give credit to him for that, as he picked up the Bill at a very late stage.

Apart from the two other times when the Minister was replaced on this Committee, I have never been in a situation where I am debating this sort of motion, so I ask the Chair for some guidance. Is the Whip—my sympathies go out to him—who is taking the Minister’s seat required to respond to our questions?

--- Later in debate ---

[The Chair]

There can be no Division on this motion. If any Committee member were to object, the motion would lapse and the Committee would sit this afternoon at 2 o’ clock.

[Mr Jones]

Object.

Ordered, That further consideration be now adjourned. —(Scott Mann.)

National Security Bill (Eleventh sitting)

Kevan Jones Excerpts

Committee stage
Thursday 8th September 2022 Public Bill Committees

[Mr Kevan Jones (North Durham) (Lab)]

On a point of order, Ms Ali. I bring good news to the Committee: yesterday, I met the hon. Member for Stevenage (Stephen McPartland), who is alive and well. We asked why he did not attend the Committee, but we have not yet had an explanation from the Government. From what he told me, I understand that the reason why he was told to stay away was that he would not move part 3 of the Bill.

Related to that, however, we also raised the issue of losing a day last Tuesday because the Government insisted on adjourning the Committee. Has any thought been given to an extra day next week—if we need it—to complete the Bill’s proper scrutiny?

[Maria Eagle (Garston and Halewood) (Lab)]

Further to that point of order, Ms Ali. On both occasions that the Committee met on Tuesday, although only for a short time and without being able to make any progress on the Bill, I asked the Minister in charge, the Government Whip, for an explanation of why the former Minister had not turned up to the Committee. Had he engaged in dereliction of his duty—he said he would stay in post until the new appointment and then did not turn up—or had he been asked to stay away? My right hon. Friend put forward—we would call this hearsay in the courts—an explanation that he heard from the hon. Gentleman in question, but I had asked the Whip to tell us. I think the Committee deserves to hear why that happened. Will one of the Ministers tell us what the Government’s explanation is? It has been requested since Tuesday.

--- Later in debate ---

[Tom Tugendhat]

It has. That is because they have held it together and been a phenomenal asset to the Home Office. I am grateful to them.

On the various points that have been made, the hon. Member—

[Mr Jones]

Right honourable.

[Tom Tugendhat]

My apologies: the right hon. Gentleman. He is quite right. He asked some questions, as did the hon. Member for Garston and Halewood, or the right hon. Member for Garston and Halewood—

--- Later in debate ---

[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?

[Mr Jones]

I warmly welcome the Minister to his position. He and I go back a long way: when I was a Minister in the Ministry of Defence, he was a bright, fresh young officer, and I think we both have fond memories of our time working together. One of the dangers he faces is being appointed to a position that he knows a lot about. That is always a downer for any Minister and strikes fear into the civil service. I wish him well, and he will do a good job.

Throughout the entire Bill, there should be an ability for the individual to have recourse to appeal. That is not because I am somehow soft on terrorism or on the individuals we are dealing with. It is because we must have a system whereby, when the state takes hard measures to limit someone’s freedom, they need the counterbalance of the ability to appeal. That is why I welcome the measures. My problem with the Bill is that, although this measure is present in this part of the Bill, there are no safeguards in other parts of the Bill. Those types of appeal mechanisms balance state power and the individual.

I have two specific points on the process, which I support. How will the appeals be done in the court? Some of the information that the Secretary of State will rely on will be highly classified, so how will the process work? It will mean the disclosure of some information that we would not want disclosed in open court. I shall not rehearse the arguments on part 3, but it is clear that, if part 3 is retained, the individual will not have recourse to legal aid for an appeal. I am opposed to that. That is not because I am on the side of individuals who wish us harm, but we must ensure that we have a system that is robust in ensuring that justice is done, and people must not be arbitrarily detained or subject to those restrictions if they clearly have legitimate arguments against what the state is trying to apply.

[Tom Tugendhat]

Before I come to the right hon. Member for Dundee East’s words, I will just address the very generous tribute from the right hon. Member for North Durham. I remember that I used to call him sir; he never called me sir, and he still will not. I do not feel special in that; I do not think he has ever called anyone sir in his life. It was very kind of him.

On the question raised by the right hon. Member for Dundee East, clause 38 means that there has to be a review wherever a STPIM notice is imposed, which is in clause 35. The individual can attend the automatic review. I will come on to that element, because as the right hon. Member for North Durham rightly says, there is likely to be material that is extremely sensitive. That is why the procedure relates to what is already established with special advocates. The right hon. Member knows much more about Special Immigration Appeals Commission hearings, and the various ways in which advocates can have access to information that is relevant to a court but is not then shared with somebody for whom that would not be conducive. That is the way that the proceedings will work, and I think that provides the right balance between disclosure, justice and protection.

Question put and agreed to.

Clause 45 accordingly ordered to stand part of the Bill.

Clause 46

Jurisdiction in relation to decisions under this part

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[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?

[Mr Jones]

I think the Minister has explained that. I take the point made by the right hon. Member for Dundee East, but as I said earlier on, I think the rules are a sensible safeguard in terms of what we need. Frankly, with no access to legal aid they are for the birds, because no one will be able to use them. We will come on to that debate later.

I want to ask the Minister about the issue of juveniles, which is an increasing problem for our security services. For example, the “Extreme Right-Wing Terrorism” report that we just produced in the Intelligence and Security Committee found that, increasingly, those individuals are young people—some as young as 15. If we are going to apply the rules in some possible circumstances to those individuals, what are the protections for them? If the Minister does not know the answer, I am quite happy for him to write to explain the situation. We are perhaps fixated on thinking that this is about Islamic terrorists and grown-ups, but certainly according to the ISC report, very sadly, in many cases those who are now coming before the courts are minors.

[Tom Tugendhat]

Let me quickly answer the question on who is the appropriate advocate. That is somebody appointed by the Attorney General under schedule 7(10)(1). The person has to be an appropriate law officer, so a barrister or a solicitor. That is how it is determined.

On the question of genuine national security, I understand the point made by the right hon. Member for Dundee East. He will understand that this is a matter of concern for many of us who are devoted, as he knows I am, to the application of the rule of law and the access to justice that this country and many countries in Europe have secured over the past century. That is vital to the provision and protection of liberty in our country. I appreciate his point and the right to a fair trial is essential.

However, it is simply the reality of life in our world that sometimes we need to frame that justice within certain provisions to allow it to be real, and not to be silenced by the inability to bring together evidence that would otherwise protect British people. That means that we have to find ways of balancing it. That is why these court proceedings, which are less than ideal and not the ones that we would like to see, are sadly necessary because of the security restrictions that apply.

On the point made by the right hon. Member for North Durham, he knows that I spent some time in the past few decades hunting people who sought to do our country harm, and he is absolutely right. Sadly, it was not always the people who we see on the various TV shows. Very often, it was people who came at it from a very different angle. I therefore appreciate his point; I will look into it and come back to him.

Question put and agreed to.

Clause 47 accordingly ordered to stand part of the Bill.

Schedule 7 agreed to.

Clause 48

Reports on exercise of powers under this part

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[Stewart Hosie]

Clause 48 requires quarterly reports by the Secretary of State on the exercise of powers to impose, extend, vary, revoke or revive part 2 notices. Clause 49 requires an independent reviewer of this part—that is, the STPIMs. Annual reports are to be prepared and laid, and that is all good and well. The only issue we have is the scope of the clause 48 report, in that its requirement is

“the exercise of the powers”,

while the scope of the clause 49 review is about

“the operation of this Part”.

It is important that the review includes information about the workings of what I described as potentially Kafkaesque rules for reviews and appeals in schedule 7. I will be very brief, but new clause 2, in the name of the hon. Member for Halifax, which calls for a broader review requirement to cover parts 1, 3 and 4 of the Bill, does seem rather sensible.

[Mr Jones]

The amendment from my hon. Friend the Member for Halifax is, as I said earlier, part of a broader piece about ensuring that we get the balance right between giving our security services, agencies and people the powers that I personally support, and providing proper scrutiny for the individual and for the operation of the Bill. That is the thing that has been missing from the Bill. Knowing Sir Brian Leveson, the Investigatory Powers Commissioner, I know that system works well in terms of warrantry and so on. If we are going to give powers to our agencies to do their job rightly, we have to ensure that they are robust and reviewed as things change.

I know the Minister is only a day or a bit into his job, so he might not be able to accept an amendment today, but I think this aspect needs to be looked at throughout the Bill. It was certainly raised with his predecessor, though I cannot remember if it was his immediate predecessor or the one before that.

My other point is to do with this issue of laying before Parliament. I support that, but the report will be very anodyne in terms of what it can provide in public, so I might look to the Intelligence and Security Committee. I am not looking for work for that Committee, but it has the ability to access material that cannot, for obvious reasons, be put in the public domain. The Minister will soon learn about the battles going on at the moment with parts of the Cabinet Office, Home Office and various other agencies about our role and access to material. We already get, for example, the independent commissioner’s report, but we have an ongoing row about our access to the annex, which we had in the past but for some reason are now not allowed to have. Given the role of Parliament and for its reassurance, will the Minister consider the ISC having access to the information that cannot be put in the public domain? That would be helpful. I accept that some people think the ISC just agrees with everything the agencies do, but it is another review body that can give assurance to the public and Parliament that the powers are proportionate.

We know that once we implement the Bill, we will learn and powers will change. I am not against Brian Leveson, the independent tribunals and the Investigatory Powers Commissioner—they do a fantastic job. They have helpfully pointed to some of the lessons that need to be learned, for example, from the terrorist attacks in London and Manchester. The ability of parliamentarians at least to ask the questions and have access to the information that cannot be put in the public domain would be an added layer of scrutiny, allowing the public to know at least that we have a full spectrum to ensure that such things are done proportionately and are working effectively.

[Tom Tugendhat]

I thank hon. Members for the tone of this discussion. I appreciate that scrutiny is important. This is about protecting not just the rights of individuals, but the agencies that are carrying out such important work on our behalf. Their heroism and courage on operations need to be protected, so that the agencies are not later found in legal difficulty in areas where they have acted not only with integrity but with enormous courage. I therefore appreciate the tone.

Briefly, I will touch on the question of scrutiny and laying before the House. I will make an absolute commitment to bring forward reports as soon as possible. I appreciate that there have been a few issues of late, which may have delayed things. I assure the hon. Member for Halifax that I will do my best to ensure that those timelines are reduced and are as sharp as possible. I absolutely appreciate her point. The issue of being laid before both Houses is made absolutely clear in the publication.

To touch on the question of who the commissioner might be, that has not been resolved as yet. I appreciate the hon. Lady’s point and there is merit on both sides of the argument, but either way, there is huge merit in ensuring that whoever is doing TPIMs has a very close connection with whomever is doing STPIMs. Whether that is a newly appointed individual or the extension of a role, I am happy to ensure that they work closely together.

National Security Bill (Twelfth sitting)

Kevan Jones Excerpts

Committee stage
Thursday 8th September 2022 Public Bill Committees

[Mr Kevan Jones (North Durham) (Lab)]

My hon. Friend makes a good point. Sadly, over the past 12 years, legal aid has been cut back in this country. It is now a tax on the innocent, in my view. Would she agree that, while people find legal aid for potential terrorists abhorrent, there is a long list of other people that the public might want to withdraw legal aid from? That could include rapists, paedophiles, murderers—you name it. The core point is that those individuals need to go before a court. That is not just for those individuals, but for the potential victims, so that we can ensure that the truth comes out and justice is served.

[Jess Phillips]

I agree 100%. For much of my career, I have been painted as being very one-sided on such matters, but I know that justice has been properly served to the victims I have worked with in my life by a justice system that is properly resourced.

I have seen the degradation of legal aid harm victims’ processes in court. It holds things up and, in lots of cases—certainly in the civil courts, which is what part 3 is largely about—it has caused a perverse situation whereby perpetrators are able to cross-examine victims, as neither has access to any advocacy because neither qualified for legal aid. There is therefore the perverse situation that victims of domestic abuse or rape can, in family court, be cross-examined by their rapist. There is potential for that same unintended consequence as a result of what is being proposed in the Bill. I say that it is an unintended consequence; I think that the will to do what has been put in the Bill comes from a decent, if somewhat misguided, place.

[Mr Jones]

I am not sure that I agree with my hon. Friend. The problem with the Bill, as she suggests, is that we have a Home Office Minister, and an MOJ shadow operation in the back. The lifting of that shadow, via the dismissal of the right hon. Member for Esher and Walton (Dominic Raab), might help the process and ensure that we get a Bill that is at least functional and does everything we want it to do.

[Jess Phillips]

Throughout this Committee, a lot of people have been called on to comment on what is going on internally on the Government Benches. I may be less qualified than others, but I suspect that what my right hon. Friend says about the right hon. Member for Esher and Walton may well be true. I wish him the best of luck on the Back Benches.

I will move on to the amendment. I have heard what the Minister has graciously said about the Bill not intending to come in the way of people who are caught up in acts of terrorism. However, its drafting leaves that open. I also hear what he says about proposing further amendments in this space.

Amendment 59 seeks to protect innocent bystanders, or even victims of crime, from being excluded from seeking damages for harm caused by the state. The Bill provides for a duty on the court, in cases where evidence is related to the intelligence services, to consider reducing damages that could be paid in a claim against the state. Potentially, the whole amount can be denied. While we of course support the concept that public money via damages should not be used to fund terrorism, the drafting of the clause is incredibly broad. The potential consequences of such loose and opaque language are disturbing and must be taken seriously if we are not to undermine the values we seek to uphold with this legislation.

I will demonstrate the issues—as I am sure nobody here will be surprised to hear this—through a gendered lens. In the discourse on security and terrorism, we commonly forget about women. In the assessment, analysis and debate, the impact and experiences of women do not often play a central role. I will use the platform I have to unpack the issues through consideration of how they will affect a victim of gendered violence.

Earlier this year, a case hit the headlines. The BBC claimed that an MI5 informant—I shall call him X—used his status to abuse his partner. I will share just a few of the details from the investigation. Beth—not her real name—a British national, met the MI5 informant online. As time passed, she became aware that he collected weapons, and he made her watch terrorist videos of violence. She realised he was a misogynist and extremist. Beth claimed he sexually assaulted her, was abusive and coercive, and used his position in the British security forces to terrorise her. She said:

“He had complete control. I was a shadow of who I am now,”

and:

“There was so much psychological terror from him to me, that ultimately culminated in me having a breakdown, because I was so afraid of everything—because of how he’d made me think, the people that he was involved with, and the people who he worked for.”

Beth says X told her he worked as a covert human intelligence source, infiltrating extremist networks. Beth claimed he told her that his status meant she could not report his behaviour:

“It meant that I couldn’t speak out about any of his behaviour towards me, any of the violence I went through, sexual or physical, because he had men in high places who always had his back, who would intervene and who would actively kill me, if I spoke out”.

In a video filmed on Beth’s phone, X threatens to kill her, and attacks her with a machete. She is screaming as the video cuts out. A few hours later, Beth says he tried to cut her throat. X was arrested and charged, but the case was dropped, and the BBC claims its investigation uncovered serious issues with the police response to this incident. That is an entirely different speech for an entirely different day. Heartbreakingly, Beth had a mental breakdown and was hospitalised.

Another previous partner—we will call her Ruth—says that X also abused and terrorised her. He threatened her life and that of her child:

“He said he would be able to kill me and my daughter, too, and then put our bodies somewhere and no one would ever know who I am.”

Ruth was unable to speak due to trauma and was also admitted to hospital. She said:

“I was psychologically broken, really broken”.

There are many issues to discuss around this case, regarding how the state and intelligence services should balance the need to safeguard individuals and the need for informants who infiltrate the darkest circles of society. What I want to outline, however, is the horrendous, hellish experience of those two women at the hands of this man X: the trauma, the violence, the abuse, the isolation, and how the man exploited his position to terrorise those women, who had done nothing wrong. Under the clause, if those women had sought damages for harm caused by the state, those damages could have been limited, or reduced to zero.

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[Maria Eagle]

I endorse what my hon. Friend has just said from the Front Bench regarding the breadth of some of these provisions, but before the Minister replies I want to put another point to him. There is going to be a question about the necessity of the provisions, and whether or not they give a court any real, additional power beyond what it already inherently has.

There is a general requirement that judges would apply in any case to those coming before the court and seeking redress, which is that they have to come with clean hands. If any court has a case before it where some ne’er do well is trying to take advantage of court proceedings to get damages for something that they then intend to use for nefarious purposes, it is perfectly normal for that court, under its inherent jurisdiction and the rules of equity, to take into account, when deciding damages, whether or not the applicant has come to the court with clean hands.

[Mr Jones]

Does my hon. Friend agree that what tends to get the headlines in newspapers is when people bring claims in these kinds of cases? Some of the cases seem quite horrific and brazen, but what never gets reported is that they are usually thrown out, because, as my hon. Friend has outlined, the courts already have powers to do so. The fact that someone has the ability to bring a case does not necessarily mean that it is going to be successful.

[Maria Eagle]

Indeed. Certainly, my experience of the courts is that judges are not daft: if they have somebody arguing a case before them and seeking damages who has been a very badly behaved individual, that person is less likely to get damages in the first place, and to the extent that they get any damages, they are likely to be exceedingly small—probably not enough to cover the costs they have incurred in bringing the case. Where those cases have been legally aided, zero damages would certainly be an option in most of them.

As such, I wonder whether any of these provisions are actually necessary. They are setting out requirements for judges, telling them what they must do in all cases and creating extra procedures, but they do not go an awful lot further than the inherent jurisdiction of the court under the general rules of equity. As I say, judges are not daft: they know what their powers are, and they tend to apply them.

My other concern regarding these provisions is that, if they stay in the Bill and ossify into court procedures that have to be undertaken in each case, there will be a slippery slope. This legislation addresses instances where especially badly behaved people are coming before a court, seeking damages that they intend to use for nefarious purposes. In this particular case, it is terrorism-related offences, but what about gangsters? What about murderers? We can all think of other dodgy characters who could go to court without clean hands, seeking damages to further their nefarious behaviours.

Once all these procedures are set in aspic, in statute, it is very easy for draftsmen—well, I am not having a go at parliamentary draftsmen, who work very hard. It is easy for the next outraged junior Minister, clearly not from the Home Office but from some other Department, to say at some point in the next couple of years, “We will use those provisions that were in the National Security Bill.” We may see a slippery slope, where these provisions are extended to other nefarious characters who might decide to go before the courts seeking damages. All the while, judges have an inherent jurisdiction and can make their own decisions. I am really not sure that the measures are at all necessary, and while the Minister is looking at some of these things, I invite him to think about removing them entirely. In any event, even if he decides that these unnecessary measures will remain in the Bill, they are certainly too broad.

[Mr Jones]

There is lots in the Bill on which there is cross-party agreement. We want to achieve a situation whereby law enforcement, our agencies and others have maximum powers to stop the real threat out there from those who wish to do us harm. Clause 57, and the ones on legal aid, which we will come to next, seem to have been plonked into the Bill as headline-grabbing measures—“We will do this because it will look as though we’re tough on terrorists.” I do not think they add anything to the ability of our security services to do their work; nor do they ensure that our courts deal with such cases effectively, as my hon. Friend the Member for Garston and Halewood has outlined.

My hon. Friend the Member for Birmingham, Yardley mentioned a case. I will not refer to it in detail—my hon. Friend the Member for Garston and Halewood and I are members of the ISC, which has looked at it in detail—but it comes back to the checks and balances point that I made this morning, and not just in terms of security. When the state does something that leads to a wrong being committed against a citizen, there needs to be a redress mechanism, and I share the concern of my hon. Friend the Member for Garston and Halewood that the provision will be extended to other areas. The measures will get a nice headline for the right hon. Member for Esher and Walton, who clearly wants to be seen as tough on terrorism, but I am not sure that, in practice, they represent anything of the sort.

Increasingly—and this is a slippery slope of which politicians need to be wary— we in this country react to newspaper headlines about what the courts do, such as “They have got X, Y or Z wrong.” Is the justice system or the jury system perfect? No, they are not, but they are robust. As my hon. Friend has just said, judges know in most cases when someone is pursuing a claim that is not grounded—they are experienced. I believe that we should leave that to courts and judges to decide.

When a newspaper rings up to say, “This judge has just done X, Y and Z. Isn’t this terrible?”, I always urge colleagues to dig into it because in most cases, the headline is completely different from the facts of the case. Without hearing the facts of the case in detail, making an instant judgment is difficult. I do not accept that our judges and judiciary are somehow woolly liberals who are prepared to turn a blind eye to justice; they are robust individuals who want not only to uphold the law, but to ensure that they get the right balance between the rights of the state and the rights of the citizen, as I mentioned earlier.

I accept that the Minister cannot accept the amendments today and that he perhaps does not want to carve out this piece of the Bill now, but discussion needs to be had on this—we will come to the next bit in a minute. If it does not get carved out here, when it goes to the other place, which is full of legal experts and people with a lifetime and huge experience in this area, it will get sliced to pieces. It is not just bad drafting; it is Ministers trying to put provisions in Bills for political purposes, rather than because they make common sense. As I said the other day, what irritates me is that, if we are going to take the provision out, we should do so in this House rather than allow it to go to the House of Lords. It will not survive that process, and we need to be honest about that. It is far better that we do it, and actually do our job, which is scrutinising legislation.

I said the other day, when the Minister was not here, that there is something that has built up over the last 21 years that I have been in the House: Ministers take it as a slight if a provision gets dropped when a Bill goes through the Commons, as though that is a weakness of the system. No, it is not: it is proper scrutiny. With a certain amount of co-operation, much of the Bill could go straight through, but measures such as this cannot, unfortunately.

[Tom Tugendhat]

First, I thank the hon. Member for Birmingham, Yardley for her comments. I appreciate the tone with which she approached this matter, and the intent with which she seeks to amend the Bill. She also heard my comments, and my commitment to listen more closely. There are slight differences—important differences—between terrorism and other crimes: one is a direct attack on the state, and a betrayal of the very protections that the state affords to everyone, whereas other crimes are by their nature of a different nature. That is not an absolute, and I appreciate that that raises different elements, but it is worth noting.

It is also important to remember that we have already instructed parliamentary counsel to prepare a redraft of part of the Bill, to make it narrowly drawn and to capture only those involved in terrorism. I appreciate the points that the hon. Lady made. I would argue that, as I mentioned, courts do not generally consider reducing damages in these cases, and we are not telling them to do so but inviting them to consider doing so. Courts are still independent, and I appreciate her point.

[Mr Jones]

I am sorry, but what is the purpose of the measure? I know judges. The Minister might want to ask them to reduce damages, but he is not going to interfere with their independence. Frankly, therefore, is it really worth it?

[Tom Tugendhat]

The point of this House is to indicate opinion as well. I do know two judges, under whose roofs I have lived, and both of them left me in absolutely no doubt as to who takes the decision. I appreciate the right hon. Gentleman’s point.

As I said in my opening speech on the clause, the courts when awarding civil tort damages will only very rarely exercise their right to limit them. That is why we believe it is right to require the courts to consider doing so, even if they then do not do so. I hope that answers the questions at this stage, and I repeat my commitment to engage in further conversation with members of the Committee.

--- Later in debate ---

[Tom Tugendhat]

The hon. Lady asks a fair question. This is a plan for the future or rather a concern over the future, rather than provisions based on existing cases. It is the Government, I hope, doing a responsible thing and looking forward, which is, I hope, what we would expect them to do.

Let me give an example. When making their application, the security services will provide evidence of the claimant’s involvement in terrorist activity and relevant associations, together with their risk assessment of the likelihood of the claimant’s using the money to fund terror activities.

[Mr Jones]

I like the idea of the Government being able to look into the future. We have established that there are no cases so far, so what are the limitations of the existing legislation on the statute books? What is the difference that explains why we need this provision? I ask because I am never in favour of putting on the statute book things that are already covered by an existing freezing order, provisions on proceeds of crime, or anything else.

--- Later in debate ---

[Stewart Hosie]

I thank the Minister for his remarks on clause 61 and schedule 10. He said that these were about concern for the future. I think we are all concerned about the future. He said that they were designed to tackle something that might happen in the future. I think we all are concerned about ensuring that nothing bad happens in future, but it appears from what the Minister has said that we are measuring risk on a very subjective basis—"real risk” is not a commonly used term.

Let me speak to amendment 58 to schedule 10. The schedule relates to civil proceedings where a Minister can apply to the court to freeze a possible award of damages if the Court is satisfied that there is a real risk of those damages being used for terrorist purposes. That, of course, is lower than the ordinary standard of proof and does not require the claimant to have even been convicted of a criminal offence. It requires only that there is a possibility that they might. Therefore, they will be deprived of any compensation for other matters that they are due. That is a very challenging provision. We clearly understand the policy intent, but what about other moneys than compensatory payments: earnings, pensions, savings, a lottery win or an inheritance? If this is about freezing cash because of a real risk that it may be used for terrorism, why do we need a specific provision for damages legally and properly awarded by a court after full consideration?

[Mr Jones]

Also, if the money was used to support terrorism there is existing legislation about finance of terrorism, so it would fall under that legislation that exists already, rather than this provision.

[Stewart Hosie]

My right hon. Friend is right that there is already legislation on terrorist financing. As the Minister pointed out in his opening remarks, there is already a way of freezing terrorist assets, but he said that it was complicated. If we are not just to do things properly and legally but to be seen to be doing them properly, legally and fairly, it may be worth going through those processes to do that.

Schedule 10 proposes, as the Minister said, a freezing order for two years under paragraph (1). Then, an extension is possible for four years under paragraph (2) and, even more drastically, the funds can be forfeited altogether. But the standard of proof in the Bill—the real risk—means no criminal conviction for anything. Even if the court were to think that damages would probably be used for legitimate purposes, but there was a real possibility that they might be used for something else, the damages could be frozen or forfeited entirely.

I can just about live with a general scheme—none of us is naive and none of us wants to see money from any source used to finance terrorism—but, surely, such a drastic step requires actual proof, at least on the balance of probability, that there is a risk of the funds being used for terrorism. That is precisely what the amendment, which removes reference to “real risk”, would achieve.

--- Later in debate ---

[Mr Jones]

I do not know whether my hon. Friend is aware of the international comparison with the gangster in Boston called Whitey Bulger. He was a notorious gangster whose unexplained wealth was explained by a lottery win, which was outside the jurisdiction of the courts in the United States.

[Jess Phillips]

That is brilliant. I am in good company with Chicago gangland—

[Mr Jones]

Boston.

[Jess Phillips]

With Boston bosses.

One of the risk factors in the case was that issue of a lottery win. There was a certain evidential threshold in the case that was easy to prove in court, because he was threatening to kill me! Please excuse me laughing—one has to laugh at such things, because life becomes ridiculous otherwise.

Why stop with damages? Why should we have a different rule? Nothing could be done in the case that I outlined. I think it is a one in 1.8 million chance of my case happening, so if we have no cases to base it on, I wonder why the focus is on this and not on the case that I outlined.

[Mr Jones]

The Ministry of Justice and the Home Office employ a wide variety of talents among the individuals whom they recruit, but I did not realise that they actually recruit fortune tellers. That is what we are into here. We have established that there have been no such cases. I am not aware—perhaps the Minister can provide some examples—of why the security services think this is a risk. If that does not exist, this is in the realms of predicting the future, and if there is one thing that we can all agree on—possibly everyone—it is that we cannot predict what happens in the future.

As my hon. Friend the Member for Birmingham, Yardley just said, why only the damages? There is already extensive legislation on the statute books to freeze proceeds of crime and bank accounts if they are to be used for criminal activities. What extra weapons will we give to the courts? I do not see anything that is not there at the moment.

As for using the measure—as opposed to freezing, for example, as I said to the right hon. Member for Dundee East—there is already legislation on the statute book to prevent someone from financing terrorism. In such a situation, what evidence would the Government or the state actually put before the courts? They cannot say simply, “We think he or she might use their proceeds for terrorist activity in future”; it has to be based on intelligence. Again, putting the evidence into court would still expose the state. I presume the existing process would be followed, but it would still mean that we might be putting intelligence in the courts that is not just historical, but actually live, in terms of things such as associations. I just think it is a very clumsy way of trying to proceed. We do not want any money, wherever it comes from, to be used for financing terrorism, but I do not understand where the proposal has come from in the first place. I would be interested if the Minister could find out, because I am also clear that we should not put measures on the statue book unless we have to.

Another point—it is quite amusing in one respect—is the idea that we can decide that an individual who is going to potentially fund terrorism is only going to get half or part of their settlement. I am reassured that the lawyers will be getting their fees, because it would be dreadful if they were having to go to food banks after not getting their pay from a case. However, the Minister then said that care costs and other things would be taken into account. How would the decision be made? Using care costs as an example, if a person gets a certain amount in damages, they might need them for a few years to come if their care costs are ongoing. So, we could not really cap where that is going to go, and that affects the individual’s ability to claim on the state for their care costs. This is a mess. It is one of the examples in the Bill where the odd thing is just thrown in that is not needed. If the Minister could demonstrate to me why this is so important to include in the Bill, I would back him 100%. However, I think that the measure is clumsy, that it will never be used, and that it will damage the reputation of this Bill, which some people have done a good enough job of doing as it is. The Minister certainly will not accept the amendment, but this is another issue that he might want to cogitate on, and decide whether it is worth the candle.

[Tom Tugendhat]

I welcome Committee members’ comments. I notice that Occam has many cousins in this place, and that his razor is very sharp. On that basis, I merely mention that the issue is with not just damages payments, but the enormous resource currently used in fighting such claims.

[Mr Jones]

That is absolute tosh. If this gets on the statute book, what on earth would it cost if somebody challenges and appeals? The initial damages will be completely insignificant compared with what it will cost to have special courts and everything else like that.

[Tom Tugendhat]

The right hon. Member and I will delight in having a conversation about this when I have written to him.

The reality is that this is looking at an identifiable risk, which is from court proceedings, rather than an unidentifiable risk, which is lottery winnings. I have put that on record and we will no doubt discuss this later. It is also worth making the case that the courts are experienced in calculating case costs and ongoing costs. I will leave it there.

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[Jess Phillips]

I am not sure he would agree with the Minister on many other things, but maybe we will get the two of you together. I am sorry to slag off my husband in here—although, actually, it is the perfect place, as he cannot do anything about it, can he?

This is incredibly naive. The reality is that anyone who has worked with female offenders, as I have for many years—this is why we ran their services out of Women’s Aid—recognises that the pathway to offending for the vast majority of women offenders is an abusive man.

So, yes, “Don’t be a terrorist,” is a great thing to say if your abuser is a terrorist. It is very easy to say that when the person who has complete and utter control over your every waking minute is also involved in something you do not necessarily agree with. For example, say that you made a phone call on his behalf. It is easy for everybody to sit and say, “I wouldn’t do that, because I am not a terrorist,” but we all might if we were terrorised. The fundamental thing we should all seek is to prevent that, and to prevent the idea that somebody might then fall into terrorism. The actions in the Bill mean it is much more likely that women in these cases will end up stuck with a terrorist making them be a terrorist, rather than being able to escape them.

There is a broader point to highlight about the connection between domestic abuse and terrorism, because of how commonly terrorists are also abusers in a domestic setting, and also because of female offender patterns, which I have already alluded to. Research carried out by the Home Office in 2021 showed more than a third of suspected extremists referred to the Government’s anti-radicalisation programme Prevent had experienced domestic violence. The police said that of 3,045 people referred to the scheme in 2019, 1,076 had a link to domestic abuse as an offender, victim or both. The male referrals were more likely to be offenders; the female referrals were more likely to be victims. As the national co-ordinator for Prevent, Detective Chief Superintendent Vicky Washington, said:

“This initial research has resulted in some statistically significant data which cannot, and should not, be ignored. Project Starlight has indicated a clear overrepresentation of domestic abuse experiences in the lives of those who are referred to us for safeguarding and support. It is absolutely vital that we use this information to shape what we do, and strengthen our response across all of policing, not just in counter terrorism.”

In short, tackling domestic abuse is critical to tackling terrorism. Any legislation, such as the current draft of this Bill, that undermines our ability to protect domestic abuse victims and stop domestic abuse perpetrators does nothing for the security of our country. Our amendments seek to address the breadth of the current drafting, and to tackle the issues and protect victims of domestic abuse.

I have two further points. Many people have raised concerns about the removal of legal aid. They argue that these clauses are counterproductive in protecting the public, due to the impact of effective rehabilitation. I have a deep concern for individuals who, years after a conviction and successful rehabilitation, find themselves in difficulty, facing homelessness, or are victims of abuse, or are in debt. Okay, if someone has been convicted of something to do with terrorism, they get what they deserve, but there are people working for organisations such as HOPE not hate who have completed rehabilitation pathways and who have then been used to protect the lives of people who work in this building, lest we forget. I have real worries that the blanket provision in the Bill over people who may very well have been rehabilitated could well stop them being able to get the support they might need to continue to be productive members of society. Does it help the rehabilitation, or does it create an environment where a person may make bad choices and cause harm?

As Jonathan Hall argued in the evidence session,

“I have certainly come across cases where the terrorist risk from the individual—the chance of their stabbing someone, for example—goes up if they are not taking their medication or if they are homeless.

My concern about the legal aid is that it will make it harder, for example, for a terrorist offender, maybe 10 years after they have been released and who is facing eviction, to get legal aid. That means that you might have less good decisions made…My real concern is people becoming homeless or falling into debt when they might otherwise be able to get legal assistance.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 11, Q19.]

If our primary driver is to protect the public and reduce risk, we must consider that point. The breadth of the Bill could undermine the very thing that it is trying to protect: a society where people do not live in fear of violence and danger.

[Mr Jones]

The media’s portrayal of legal aid is of giving out huge sums of money to the undeserving and those who are guilty of crimes, but we should start from the basis, as I always do, that people are innocent until proven guilty. The other motive for the Bill is clearly to get some headlines that say, “We are being tough on terrorists.” I will come on to some examples, especially the issue of under-18s, but the Bill does nothing of the sort.

There is also a more fundamental point: if someone is accused of a crime, we want to ensure that the facts are put before the court and that they are properly legally represented so that they can argue their case, and the Crown can argue its case against that evidence. At the end of the day, it is then up to the jury and the courts to decide whether that person is innocent or guilty, and the courts then decide on sentencing. That process is not just some woolly notion of a justice system that this country is proud of; it is actually fundamental to the victims. It is important that the victims of terrorism, or any crime, are assured that a person who is guilty is sentenced and gets the appropriate punishment.

When we talk about terrorists, we are talking about the appalling individuals who perpetrated the Manchester bombing or the London atrocities. As my hon. Friend the Member for Birmingham, Yardley has just said, that is not the spectrum we are talking about here, as the Bill sets a broader one.

I suggest people read the Intelligence and Security Committee’s report on extreme right-wing terrorism. In taking evidence for that, the most disturbing fact was that the people who are now being drawn to extreme right-wing terrorism are youngsters, some as young as 14 or 15. It is mainly online, but they are committing offences. There are quite a few—some have been reported publicly—who have been, rightly, imprisoned because they have met the threshold for the court to decide that they committed an offence.

Suppose a 15-year-old is found guilty of a terrorism offence. We are saying that, for the next 15 years, whatever they do—whether another terrorist-related incident or, as my hon. Friend the Member for Birmingham, Yardley said, a criminal case or a civil case such as eviction—they will be barred from access to legal aid. I might be unpopular for saying this, but legal aid helps the system of justice. The idea that it is doled out willy-nilly to everyone is absolute nonsense: it is hard to meet the thresholds that have been introduced over the last few years. Those thresholds have gone too far, because they are basically a tax on justice for a lot of innocent people. I do not understand where that comes from.

I come back to the point about youngsters and rehabilitation that my hon. Friend made. It is possible that there is a perception that there is an average terrorist. We know what a terrorist is: someone who carries out horrific bombings or activities. However, that is not the case with some of the other thresholds for terrorism offences. For some youngster—a 15-year-old, or someone even a bit older—who has been imprisoned for that type of terrorism, our aim surely is to work with them to get them out of that pathway. The legal aid measures will do nothing at all to help that rehabilitation process. I am sure that many people in the room made decisions when they were 15 that they would perhaps regret now. I am sure that the Minister was a perfect child, but people make mistakes, and they hold views that 15 years later they will not hold. The idea that we penalise those people for life is unacceptable.

The measures have been parachuted into the Bill, and I would like to know the rationale for including them in the Bill. They will not make the process very easy for the Crown, either. If someone cannot get legal aid, what are they going to do? Represent themselves? All that does is make the trial very expensive and not a good process for the victims who are watching.

The broader issue is that there are many people whom we—and, I am sure, the tabloids and others—do not like. We do not like murderers, paedophiles or rapists. If we apply the measures to terrorists, why not extend them to the other people we do not like? I am not proposing that we should. If we did, that is fine: the right hon. Member for Esher and Walton (Dominic Raab) might think that he will get a newspaper headline for being tough on terrorism. But it would make the situation worse. It would slow down the legal process; it would victimise people for many years. What we should be doing with those youngsters is working with them to try to get them away from some of the sick ideologies outlined in the right-wing extremism report from the ISC. We should get them back into society. Look at some of the best examples around the world of rehabilitation of terrorists or extremists—it is about rehabilitation, not punishment.

If someone has carried out an horrific terrorist attack and killed people, I am happy for them to stay in prison for the rest of their lives. I have no problem with that. However, there are those who are on the verge of doing that. It is worse these days because of the internet and social media, which is slowly corrupting some young minds; it leads them to hold ideologies and, in some cases, take steps that cause them to meet that terrorist threshold.

--- Later in debate ---

[Tom Tugendhat]

I appreciate enormously what right hon. and hon. Members opposite have said. As I have been familiarising myself with the detail of this Bill, I will be asking questions and engaging in conversation with colleagues from all parts of the House. I will absolutely be engaging with Opposition colleagues.

I am sure right hon. and hon. Members will appreciate it if I cover the clauses as they stand. Clause 62 will narrow the range of circumstances in which individuals convicted of specified terrorism offences can receive civil legal services. That includes individuals convicted of terrorism offences listed under schedule A1 to the Sentencing Code, where there is a minimum penalty of imprisonment for two years or more, as well as for offences where a judge has found a terrorism connection.

The restriction will apply to future applications for legal aid for individuals convicted of terrorism or terrorism-connected offences from 2001 onwards. The restriction will not affect ongoing cases.

[Mr Jones]

Is the Minister suggesting that this measure is going to be retrospective to 2001 for some individuals?

[Tom Tugendhat]

My understanding will be clarified in a letter to the right hon. Gentleman very shortly, unless it is clarified in the moments to come.

[Mr Jones]

I find that very difficult. If it gives him time for his civil servants to provide the answer, I will say that it is very unusual to have retrospection in a law such as this. If the Minister does not have the answer in time, I am sure he could send us all a note.

[Tom Tugendhat]

I am assured that it is retrospective. I will, of course, be looking at this as part of the whole. [Interruption.] It is retrospective to 2001 for past offences. I will come back to the right hon. Gentleman on that.

The effect of the restriction is a suspension on accessing civil legal aid from the date of conviction. The restriction will last for 30 years for individuals convicted when aged 18 years old or over, and 15 years for individuals convicted when under 18. The restriction will not apply to individuals under 18 years old, but will take effect when they turn 18 and make a new application for civil legal aid.

As the clause is drafted, access to the exceptional case funding scheme will remain available for those subject to the restriction who can demonstrate that, without legal aid, there is a risk of a breach of their ECHR rights or their retained enforceable EU law rights. Applications for exceptional case funding are generally subject to means and merits tests.

Clause 63 ensures that—

[Mr Jones]

Will the Minister give way on the point he just made?

[Tom Tugendhat]

Go on.

[Mr Jones]

In effect, this measure is going to be useless, isn’t it? I would think that if, for example, someone with no means is subject to one of these orders, it would not take a great legal genius to argue in a court that it infringed their rights to a fair trial. Is it not therefore the case that, in most cases, they will get special legal aid anyway? It is a bit odd to implement a thing that might sound tough but, in practice, will end up with people getting legal aid anyway.

[Tom Tugendhat]

Occam is making his case. The right hon. Gentleman will be assured that I will respond in full, and in kind, as soon as we have had the opportunity to have this discussion among a slightly wider party of colleagues.

Clause 63 ensures that the correct data-sharing and data-processing powers are available to enforce the restriction on access to civil legal aid for those convicted of specified terrorism offences. To enforce the restriction effectively, we must be able to check that an individual has a relevant conviction that would prevent them from accessing funding. To do this, a legal gateway must exist within the legislation to use conviction data for the purposes of administering legal aid. The clause will allow the details of an individual’s conviction status to be requested from the director of legal aid casework and shared from a competent authority that holds the criminal conviction data. This data can be used only for the purpose of identifying whether an applicant for legal aid has been convicted of a specified terrorism offence, in order to determine whether the restriction will apply. Such information may include an individual’s name and date of birth, and the dates of any convictions.

--- Later in debate ---

[Tom Tugendhat]

I will clarify the process for the hon. Lady. It is not that unreasonable, frankly—

[Mr Jones]

What?

[Tom Tugendhat]

Hang on a minute. It is not that unreasonable to check with competent authorities before various provisions are made. It is pretty standard, and this measure is another check. I appreciate the hon. Lady’s point, and I will come back to her with how this is done and how it is followed up.

Finally, clause 64 makes a minor amendment to clarify how civil legal aid is available for terrorism prevention and investigation measures proceedings. I want to make it clear that the clause will not change that fact. The clause seeks to reduce unnecessary complexity in the administration of the legal aid scheme, and it will ensure that all legal aid decisions for TPIMs are made under one paragraph of the statutory framework, rather than being funded under multiple paragraphs. The clause will also remove references to “control orders” in the legal aid legislation; control orders were the predecessors to TPIMs and have now been phased out.

[Mr Jones]

Why?

[Tom Tugendhat]

Because the term “control orders” has been phased out.

[Mr Jones]

No, I mean why is it for TPIMs? Why one and not the other? It is what we said earlier: it is pushing one way and pulling the other way, surely.

[Tom Tugendhat]

I see the right hon. Gentleman’s point. We are going to move on, because he knows that we will be talking about this later.

I thank both the right hon. Gentleman and the hon. Member for Birmingham, Yardley for tabling their amendments, which seek to carve out an exception from the restriction where the case type involves domestic abuse. I recognise the strength of voice that the hon. Lady has brought to the scourge of domestic violence, and the voice that she has given to so many victims in the House. It is an enormous tribute to her that she is recognised around the country for it, and I certainly listen to her very carefully on this issue. I reassure her that I will be looking at not just the provisions in the clause but the amendment she has tabled. I will also be looking at the exceptional case funding scheme, and I will be discussing it. It is certainly true at the moment that 74% of applications to the ECF are granted, but she has already made the point that there is a hurdle before approaching the 74%. I accept that, and I will be looking at it. I will be taking it seriously. I ask her to withdraw the amendment ahead of future conversations.

--- Later in debate ---

[Holly Lynch]

Before I turn to the detail of new clause 7, I appreciate that the Minister is not responsible for some of these challenges, but throughout the process of the Bill there has been a great deal of support for seeing the detail of the legislation scheme that makes up the basis of most of these new Government clauses. We probed consistently and asked that we could see the detail of that as soon as possible, given that as we came into the presentation of the legislation prior to Second Reading, it was a key factor that the Government promised would be a component part of the Bill.

The Minister’s predecessor, the hon. Member for Stevenage, made a commitment that that would be added to the Bill before we returned from recess for the second Committee sittings of line-by-line scrutiny. Most of the Government new clauses were tabled just last week—I think they were tabled last Tuesday and published on Wednesday. In that sense, his predecessor upheld that commitment in principle but not in spirit.

The new clauses were tabled only last week and there is a great deal in them to get through. We certainly want to support these provisions, but there is a lot to interpret and understand, and we want to have the opportunity to engage with those who can make use of these provisions so that we can do our due diligence at this point. I am not being unreasonable and I am being kinder to the Minister than the Chair of the Intelligence and Security Committee, the right hon. Member for New Forest East (Dr Lewis), was to the Minister’s predecessor’s predecessor, the right hon. Member for East Hampshire (Damian Hinds), on Second Reading, but I want to put it on record that we may be forced to return to the Committee with more detail once we have had the opportunity to consider these provisions further.

Turning to the detail, as the Minister has said, Government new clause 7 creates new offences of obtaining, accepting, retaining and agreeing to accept a material benefit from a foreign intelligence service. The clause is explicit in referencing material benefits from a “foreign intelligence service”. In relatively recent instances finances have been traced back, not to intelligence agencies as such but to forms of Government Departments, such as the United Front Work Department, referred to by the Chinese Communist Party as one of its “magic weapons”. Are the definitions in this clause too narrow to capture those kinds of transactions?

Subsection (7) says:

“In proceedings for an offence under subsection (1) by virtue of retaining a benefit, it is a defence to show that the person had a reasonable excuse for retaining the benefit.”

Given just how tight the definitions in relation to this offence are as the Bill stands, referring exclusively to a foreign intelligence service, I am keen to understand what might constitute a “reasonable excuse” in that situation.

We have worked through the notion of and the thresholds of proof around the phrase “ought reasonably to know” in earlier proceedings of this Committee, which I appreciate the new Minister might not yet be across. In subsections (10) and (11), pretty serious custodial sentences are outlined, as the Minister said, for committing offences under subsections (1) and (2). So I would be grateful to learn what the fines would be for those offences.

A query was also put to me following a specific overseas case as to whether someone who is in receipt of benefits of a sexual nature could be prosecuted under this new clause. If someone were to offer sex in exchange for information in such a way that it could be proven that they knew or ought reasonably to have known the purpose of that activity, could that lead to a prosecution on the basis of the sex being a material benefit, in principle, under the Government’s new clause?

[Mr Jones]

I broadly welcome the new clause, because it is obviously another weapon in the armoury to counter foreign state interference, but I just want some clarification to be made in terms of the broad nature of what is actually being proposed.

One of the examples that I want to raise is the issue of academia. As my hon. Friend the Member for Halifax has already said, the United Front Workers Department of the Chinese Communist party is active across the globe and influencing academics and even legislators here in this country and in other countries, for example, Australia. So I just want some clarification about how someone would get caught under this measure.

As I say, one example is academia. I cannot remember who—I was trying to rack my brains to think of the name of the academic at Harvard University who I think is currently being prosecuted in the United States. It relates to the definition of “intelligence service”. We know that the Chinese Communist party does not work directly; it will work through front organisations. As I say, I am trying to think of the name of the academic in the US; it will come back to me in a minute.

However, let us suppose a British academic is approached by an entity in China or an individual based here, who then says to that academic, “Will you do some academic research? Will you write a paper for us?” And they give the academic money for that. There are examples of this happening, and I think that in the example from the United States, which is currently ongoing, the academic then received a retainer for providing research information for a Chinese university. I think there is evidence that suggests that that was a way in which the Chinese Communist party or the Chinese security services were funnelling money to academics.

I would be really interested to know how we will differentiate between the academic who quite clearly wants to do research, and co-operation with China. The benefit they get—for example, being paid for a visit to a conference, for an academic paper or for research—does not fall within the scope of this measure, because, to be fair to the academic, the source of the funding might not be clear—it might be clear in some cases, but not in all.

I can understand if, for example, the security services approach an academic and say, “Are you aware that your money for your paper is coming from x intelligence agency?”, and the academic says, “Oh well, I’m not bothered. I’ll keep on doing it.” That is fine. However I just want to know—and I think some guidance has to be given to academics.

The other example is a bit closer to home, which is my hon. Friend the Member for Brent North (Barry Gardiner), who received large amounts of money from a woman called Christine Lee. She made quite a substantial donation for him to run his office. I am still baffled as to the reason why, but still. It was proven later that that she was working on behalf of the Chinese Communist party and the Chinese Government. Would an individual like that—a Member of Parliament—be dragged into this, under the new clause?

Certainly, I am sure that most of us, if someone offered us half a million pounds, would actually want to know why we were getting it, but people make their own decisions. Would that be classed under this? There are clear examples of the Chinese in particular using academia as a cover for intelligence gathering and actually funding things that will obviously influence, such as stealing academic research. For example, if a paper is normally worth £1,000 and someone is getting £20,000 for it, does that mean that the rest is a bung and that they should really raise questions about it? I doubt many academics are going to be saying, “I am not worth £20,000”. It comes back to the point on this, which I would like some more information on. I am not against what is being proposed, but I think that it has some issues that will raise alarm bells in certain sections, and academia is certainly one of them.

[Tom Tugendhat]

I will pick up on the second set of points first, if the hon. Member for Halifax does not mind. I will pick up on those points because I am glad that it is not just me who is baffled at what the United Front thought it was gaining from this relationship. I think we are all equally mystified, but it appears that they had the resources not to care.

It does suggest, however, that we have to take this extremely seriously in all of our duties—not just when we talk about people outside this place, but when we talk about people inside this place because we have a particular responsibility to the service of our country and our communities. So I think that this needs to be looked at extremely carefully. I am not going to go into individual cases for various reasons, except to express surprise.

[Mr Jones]

It is wider than just that one case because, when the ISC did its Russia report, there was clear evidence of certain Members of the House of Lords, for example, being given posts as consultants and other things. Whether there is any proof that they were actually given by the intelligence services, I do not know, but it has certainly, in some cases, raised certain questions that ought to be asked.

[Tom Tugendhat]

The right hon. Gentleman is absolutely right that there are certain individuals in our society—some of whom, sadly, have seats in this Parliament—whose actions are questionable and demand further investigation. He can be absolutely assured that that is something that I take extremely seriously. He knows that I drafted a policy paper a long time ago on updating our Terrorism Acts. This debate is not about that, but there are various reasons why I took that seriously so many years ago and why I am very pleased to be doing this job. I accepted this job from the Prime Minister because this is a matter that I think is of enormous importance in the United Kingdom, particularly today. I will not go into the details of it, but he can be absolutely assured that I will be looking at it as soon as I have got my feet a little bit further under the desk, if he will forgive me.

These provisions, of course, do apply in various different ways, and he has highlighted some of the ways in which foreign intelligence services pay agents. Disproportionate or excessive payments can be considered in different ways, such as bribery. While the individual in question may of course claim that they were worth what they were paid, I think a reasonable benchmarking process would normally establish that they were, at best, surprised, if not actually encouraging the situation, which was not conducive to the safety of our country.

I am not, as I have said, going to go through individual cases, but this entire new clause refers to benefits in various different ways, such as to a benefit received through a business; it does not have to be direct. I am going to have to come back to the hon. Member for Halifax on her question about the nature of sexual inducements. I cannot answer that question now, but I will come back to her.

[Mr Jones]

I accept that the Minister has done a lot of work in this area. Would it be possible for Committee members to be briefed on the reason for this provision, but also how it will act in practice because, once it is implemented, guidance is going to have to be given to companies and to academia? I think just getting some understanding of how it would work in practice would reassure many of us in Opposition.

[Tom Tugendhat]

Personally, I commit, absolutely, to engaging with Committees, not just the right hon. Gentleman’s own. The Intelligence and Security Committee is an important one. This Committee is another one, of course, but the Business, Energy and Industrial Strategy Committee and various other Committees would, I am sure, have an interest in this area. I absolutely do commit to engaging to ensure that this clause is understood properly.

I would add, however, that to be a benefit in this area, and to be in scope of the offences, it would need to be a material benefit, so either money or money’s worth. Forgive me, I have received an answer. Before bringing a prosecution, a careful consideration of the nature of the benefit and the circumstances would be undertaken. A person has to know that they are obtaining a benefit from a foreign intelligence source, and there are several protections to avoid capturing legitimate activity. Legitimate activity, of course, as I said, refers to supporting an embassy that is in pursuit of its diplomatic functions or working with a police force, for example in the Republic of Ireland when an individual lives in Northern Ireland.

The hon. Member for Halifax also made points about the timing of this. I appreciate that entirely, and I entirely respect her position. We must ensure that this goes through with the consent of the House.

[Mr Jones]

The Minister is being very helpful, but could I clarify something? If, for example, somebody received a benefit from a university, but it was subsequently found that the money was coming from a foreign intelligence agency—or if someone did work for a company then found out that it had been involved—that person perhaps did not know that. Am I assuming that, as it is written, if they continued after they were made aware of it, then they would fall into scope? If they could actually say that they did not know about it, is that a defence?

[Tom Tugendhat]

The right hon. Gentleman is exactly right. The point of the defence of “reasonable” is that, in order for this to be an offence, the individual needs to be aware that the benefit is supplied by a foreign intelligence source. Therefore, so long as they are unaware of it, it is not an offence. When they become aware of it, it is an offence.

The last point that I wish to make is on the delays. I know that the hon. Member for Halifax will understand that the Ukrainian situation, and a certain change of Government office holders most recently, may have interrupted the provisions. However, on that note—

National Security Bill (Thirteenth sitting)

Kevan Jones Excerpts

Committee stage
Tuesday 18th October 2022 Public Bill Committees

[The Chair]

Welcome back to the consideration of the National Security Bill.

Ordered,

That the order of the Committee of 7 July be varied as follows—

1. In paragraph (1)(g), leave out “13 September” and insert “18 October”.

2. In paragraph (4), leave out “13 September” and insert “18 October”.—(Tom Tugendhat.)

[Mr Kevan Jones (North Durham) (Lab)]

On a point of order, Mr Gray. I welcome everyone back; it is very nice to see them. My point of order concerns the explanatory notes on foreign agent registration. It is customary that we have such notes at least before the Committee meets, but there do not appear to be any explanatory notes or a detailed impact assessment. I know some people think that Committees are just tick-box exercises, but they are not; we are allowed to scrutinise the Bill. Given that the foreign agent registration scheme has had a gestation period longer than that of an African elephant, there should have been time at least to make some explanatory notes.

[The Chair]

I am most grateful to the right hon. Gentleman for giving notice of his points of order—neither of those matters is a point of order. They are points of information, which the Minister will no doubt have heard, and will doubtless wish to act on during the course of the day. They are not matters for the Chair.

[Mr Jones]

On a point of order, Mr Gray.

[The Chair]

As long as it is a different point of order.

[Mr Jones]

Yes, it is definitely different. Mr Gray, you will remember that, when we were discussing clause 23, a commitment was given by this Minister or the last Minister—whoever it was. The Minister could not give the Committee details about why the agencies needed clause 23 because of the secret nature of that, and a commitment was given that the Intelligence and Security Committee would be given examples of why the clause was needed.

I am told that the examples were received late last week, yet a date has not been set for me to be briefed formally by the agencies. The reason being put around for that, I am told, is that the Chair of the ISC has made it difficult. I put on the record that that is not the case. We received them only last week, and I, and other members of this Committee who are not members of the ISC, have not yet been in a position to read those examples. If someone gives commitments, it is not good enough to have such delays.

--- Later in debate ---

[Tom Tugendhat]

I thank hon. Members for their comments so far. I will first touch on the point that has been raised about the explanatory notes. I am told that it is normal procedure for that to be published before the Bill is introduced to the Lords—

[Mr Jones]

Not true!

[Tom Tugendhat]

I will bow to the superior knowledge of age and give way.

--- Later in debate ---

[Mr Jones]

That is complete nonsense. Usually, there are explanatory notes for amendments, so I do not know where that suggestion has come from.

[Tom Tugendhat]

I will be taking that up with officials later, and I will find out why that has been said.

[Mr Jones]

And stop making things up.

[Tom Tugendhat]

The right hon. Gentleman knows that I would never do such a thing. In response to the provision on oversight, we discussed in the last sitting that we are looking at different forms of oversight. While that has not yet been clarified, I will engage with the hon. Member for Halifax to ensure that we have a form of oversight that works, be that from one of the existing oversight bodies or from another body. There are various different arguments, so I will come back to the hon. Member on that.

The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East asked what the measures were based on. The Bill is based on the Terrorism Act 2000, but we also looked at the Proceeds of Crime Act 2002. We sought consistency in the schedules by using the so-called TACT and the Proceeds of Crime Act as their basis. It is important to note that Police Scotland has been involved in this endeavour and is content. It has been a very important part of the conversation.

The hon. Member for Halifax asked where these orders could come from. Police need to compel individuals or organisations to answer questions. Because of the different natures of potential production orders, they may involve not just a single individual, but multiple sources; that is why I mentioned multiple companies. In this case, one may be following a particular individual but not be certain which airline they travelled on. Therefore, this could include either multiple companies that may have produced a good or a service, or multiple agencies that have supplied it. That is where it comes from.

Question put and agreed to.

New clause 8 accordingly read a Second time, and added to the Bill.

New Clause 9

Customer information orders

“Schedule (Customer information orders) makes provision for customer information orders.”—(Tom Tugendhat.)

This new clause introduces the new Schedule inserted by NS2.

Brought up, and read the First time.

--- Later in debate ---

[Tom Tugendhat]

The question as to why we have not addressed this sooner is a fair one. The UK’s investigation legislation is complex, as the hon. Member for Halifax knows only too well from the homework she has obviously done for our sittings. For example, in the Proceeds of Crime Act there are more than seven investigatory orders used in criminal and civil investigations. The consideration that has gone into this has naturally been complex, and it has required a lot of time and input. This Bill, as she knows very well, has been some years—and, indeed, some Ministers—in the making.

[Mr Jones]

More to come!

[Tom Tugendhat]

Let us see. The fact that there are no recorded uses of the information orders in TACT demonstrates how sparing the use of these provisions will be.

Question put and agreed to.

New clause 9 accordingly read a Second time, and added to the Bill.

New Clause 10

Account monitoring orders

‘Schedule (Account monitoring orders) makes provision for account monitoring orders’.—(Tom Tugendhat.)

Brought up, and read the First time.

--- Later in debate ---

[Holly Lynch]

In our debates on new schedules 1 and 2, we have been through arguments similar to those that apply to new schedule 3. Once again, CT Policing states that these account monitoring orders will provide:

“investigators with real-time information that can be used to react quickly and intervene if necessary, potentially stopping the state threat activity from taking place.”

Of course, that is enormously welcome. I draw the Minister’s attention to one small matter, concerning the use of the word “constable”. For account monitoring orders, new schedule 3 stipulates that an appropriate officer is a constable or an officer of the NCA under paragraph 1(3). When we get to interpretation, paragraph 7(2) states:

“‘Appropriate officer’ has the meaning given by paragraph 1(3)”,

which refers us back to the word “constable” with no stipulation about rank whatsoever. That is very different from the requirements in new schedules 1 and 2, which stipulate that the officer needs to be a senior officer, meaning a superintendent or above. Is this an oversight? Should the officer be a senior officer, in line with new schedules 1 and 2, or can a police officer of any rank apply for an account monitoring order?

[Mr Jones]

These are sensible proposals to give our law enforcement agencies the powers they require, but I would like clarification about definitions. The Minister referred to a bank, and it is clear that this is about monitoring bank accounts. The explanatory statement, expansive as it is—I think it is one line—says:

“These orders may require financial institutions to provide specified information relating to accounts.”

I want to clarify the definition of financial institution. If we go back 20 or 30 years, it was quite clear: we had bank accounts and financial products. Today, though, there is a complex environment of organisations that work and deal with financial accounts. For example, Bitcoin is now traded between organisations, some of which are covered by the Financial Conduct Authority and others not. I am trying to get some understanding of how widely this will go.

The other issue is about bank accounts that are not in the UK. I am particularly thinking about bank accounts in the overseas territories, and what happens there. We need clarification about the remit. The measure might work very simply with banks and other financial institutions, but in an ever-changing world we have a lot of organisations that deal with people’s “accounts” where they are not regulated.

[Tom Tugendhat]

The hon. Member for Halifax asks again about the term “constable”. She is right to ask, but that is not an oversight; it is accurate. There are different levels at which different officers are allowed to warrant things. As she rightly identifies, “constable” is the generic term, and then at various points different ranks of officer are required for different levels of authority. That is in line with the TACT powers. This area of authorisation is considered less intrusive, and that is why a lower-ranking officer is allowed to ask for it.

On financial institutions, the right hon. Member for North Durham identified that banking has changed somewhat since he and I had post office accounts in the early—I will leave that there. Schedule 3 uses the same definition as that used in paragraph 6 of schedule 6 of the Terrorism Act 2000; it is designed to align. The definition of financial institution in the Proceeds of Crime Act 2002 can be found in paragraph 1 of schedule 9. Account monitoring orders can be used as part of a broader set of purposes, such as civil recovery, and they are applicable to a broader range of financial institutions. Such breadth is unnecessary in respect of state threats, which is why that is slightly narrower, but the definition is there.

Obviously, these powers cannot be used to compel institutions overseas, so we are asking for co-operation from police forces.

[Mr Jones]

I appreciate that in terms of overseas bank accounts, but there has been a lot of controversy about individual using overseas territories. If the Minister does not know the answer, he can write to the Committee to clarify the point. I just want to see how far these orders could go in terms of their effect.

[Tom Tugendhat]

The right hon. Gentleman knows very well that overseas territories come under slightly different jurisdictions, whether they are Crown dependencies or overseas territories. It depends on the jurisdiction, but I will be happy to write to him.

Question put and agreed to.

New clause 10 accordingly read a Second time, and added to the Bill.

New Clause 11

Requirement to register foreign activity arrangements

‘(1) A person (“P”) who makes a foreign activity arrangement must register the arrangement with the Secretary of State before the end of the period of 10 days beginning with the day on which P makes the arrangement’

(2) A “foreign activity arrangement” is an arrangement with a specified person pursuant to which the specified person directs P—

(a) to carry out activities in the United Kingdom, or

(b) to arrange for activities to be carried out in the United Kingdom.

(3) “Specified person” means—

(a) a foreign power specified by the Secretary of State in regulations;

(b) a person, other than a foreign power, specified by the Secretary of State in regulations.

(4) The regulations may specify a person other than a foreign power only if—

(a) the person is not an individual, and

(b) the Secretary of State reasonably believes the person is controlled by a foreign power.

(5) A person is controlled by a foreign power if—

(a) the foreign power holds, directly or indirectly, more than 25% of the shares in the person,

(b) the foreign power holds, directly or indirectly, more than 25% of the voting rights in the person,

(c) the foreign power holds, directly or indirectly, the right to appoint or remove an officer of the person, or

(d) the foreign power has the right to direct or control the person’s activities (in whole or in part).

(6) In subsection (5) “officer”—

(a) in relation to a body corporate, means a director, member of the committee of management, chief executive, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity;

(b) in relation to a partnership, means a partner or person purporting to act as a partner;

(c) in relation to an unincorporated association other than a partnership, means a person who is concerned in the management or control of the association or purports to act in the capacity of a person so concerned.

(7) The Secretary of State may make regulations specifying a foreign power or a person other than a foreign power only if the Secretary of State considers it reasonably necessary to do so to protect the safety or interests of the United Kingdom.

(8) The requirement in subsection (1) does not apply to a foreign power.

(9) Regulations specifying a foreign power or a person other than a foreign power may provide for subsection (1) to apply, with modifications specified in the regulations, in relation to a foreign activity arrangement made with the specified person before the regulations come into force.

(10) A person who fails to comply with subsection (1) commits an offence if the person—

(a) knows, or

(b) ought reasonably to know,

that the arrangement in question is a foreign activity arrangement.’—(Tom Tugendhat.)

NC11 to NC28 require certain arrangements with, and activities of, foreign powers and foreign persons to be registered. They are intended to form a new Part 2A, referred to in explanatory statements as the registration scheme. This new clause requires registration of arrangements with specified persons to carry out activities in the UK.

Brought up, and read the First time.

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[Tom Tugendhat]

The right hon. Gentleman will see that I have a number of pages of text that I will be coming to. If he will forgive me, I will explain all these elements as we get to them.

The scheme’s exemptions are as follows: individuals to whom privileges and immunities apply in international law, as provided by, for example, the Vienna convention on diplomatic and consular relations; legal services, as well as information subject to legal professional privilege; domestic and international news publishers, including confidential journalistic material and sources; and arrangements to which the UK Government are party.

The scheme has also been designed to uphold the letter and spirit of the Belfast/Good Friday agreement. To that end, any arrangement with Ireland, or with a body incorporated or associated under the laws of Ireland, will be exempt from registration, as are activities to be carried out by such entities. That will avoid interference with the rights of citizens of Northern Ireland who identify as Irish, as well as the activities of cross-border entities and institutions.

I want to close my opening remarks—that is right; we are just starting—by mentioning George Brandis, the former Attorney General for Australia who was responsible for passing the Australian scheme. He was recently reported as commenting on the announcement of the UK scheme:

“This ought not to be in the cockpit of political controversy in the U.K. It ought to be something, because it is necessary for the protection of the national interest, that commands bipartisan support.”

That is certainly the sentiment that I have taken from Second Reading and our deliberations in Committee so far, and I look forward to working with all sides to ensure the requirements are effective and proportionate.

With that, I turn to the group of new clauses relating to the enhanced registration requirement. Each of the new clauses is substantive and so, after setting out the benefits of the enhanced requirement, I will take each in turn. The enhanced registration requirement will provide greater scrutiny of the activities of specified foreign powers or entities while deterring the use of covert arrangements. I describe it as “enhanced” because it creates wider requirements to register than the primary registration requirement, which we will come to later. That is proportionate to the aim of this part of the scheme: to provide greater assurance around the activities of specified foreign powers or entities.

The enhanced registration requirement will provide three principal benefits. First, it will provide the Government and the public with a greater understanding of the scale and extent of activity being undertaken for specified foreign powers and entities within the United Kingdom. Secondly, the offences and penalties for non-compliance will increase the risks to those who seek to engage in covert activities for foreign powers, either directly or through specified entities. Finally, the requirement offers potential for earlier disruption of state threats activity, where there is evidence of a covert arrangement between a person and a specified foreign power or entity but it is not yet feasible to bring charges for a more serious state threats offence.

[Mr Jones]

Will the Minister give way?

[Tom Tugendhat]

I will, very briefly, but the right hon. Gentleman may find that the point is covered—

[Mr Jones]

If the Minister wants to come here and just read his speech to us, that is fine, but that is not what scrutiny is. I am fully supportive of the proposals under tier 1, but I find it difficult to understand how tier 2 will work in practice. Putting countries or companies on the list will cause huge diplomatic incidents. Let us say we put Huawei on the list, for example; I am sure there would be fallout from that. As well-meaning as tier 2 is, practically, I do not think it will ever be used.

[Tom Tugendhat]

The right hon. Gentleman and I have had many debates on the nature of different foreign influence in the seven years that I have been here. We have discussed many different companies and countries in various ways. I know he shares my absolute passion for protecting the United Kingdom from foreign influence and knows the difficulty that that causes in diplomatic areas. He appreciates better than almost anyone how difficult it is sometimes to match the economic needs and requirements of the United Kingdom with the need to protect ourselves from foreign influence. He is right that this will cause difficulty. There is no getting around the fact that making a decision on the enhanced tier will have diplomatic repercussions. But the reality is that if we do not make those decisions, the implications for our economy and domestic security will be very high.

The right hon. Gentleman is absolutely right that there are companies that some of us have stood up to and made a point of identifying as actors for a foreign state—he mentions Huawei; there are others—and which are in many ways difficult examples. I am not going to say whether Huawei would or would not be subject to the enhanced tier, as we have not looked at any determinations on that, but it is quite clear that there are some countries—Russia is a good example today—that would absolutely require the enhanced tier. Different elements of Russian business would no doubt fall within it.

[Mr Jones]

Yes, but the Minister knows that there are many countries in the world that, although they are not comparable with Russia, would also cause economic harm but are not in the higher tier. Would it not be better to have a broader scheme that mirrored tier 1, with tight definitions of what needs to be registered, and apply it to all countries? We would then give ourselves protection and avoid the diplomatic pitfalls every time we wanted to follow this process.

[Tom Tugendhat]

People have to register under tier 1 anyway. That will be a public scheme that already identifies many areas. Tier 2 will make sure that there is an enhanced aspect that allows us to be clear what exactly is going on, rather than relying on a general identification. That is an important distinction.

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[Tom Tugendhat]

I am glad to see the hon. Lady nodding. The second point is the enhanced scheme. That is where influence may come in different ways, where co-operation and interaction with different businesses that pose a particular and distinct threat may be required. That is why—we will come to this later—the political register will be public and the second register will be private, but the identification of those who are required to be registered will of course have to be public and there will be a political and a diplomatic decision that will go with that.

[Mr Jones]

I sympathise with what the Government are trying to do, and I think my hon. Friend the Member for Garston and Halewood does too, but I am never in favour of putting things on the statute book that look tough but that, frankly, will never be used. There must be a more direct way of doing this—a broader measure that applies to all countries, which is then used against relevant countries. My fear is that the measure as it is written at the moment looks tough but will not be usable.

[Tom Tugendhat]

The right hon. Gentleman raises a fair point, but I simply do not believe that if he were in my position, he would not use the powers. I would use them, and I am sure he would use them in a situation where they were required. I know that he has never shrunk from a fight or diplomatic argument, but I think that this is important. The problem is that if the enhanced power were to be used for every nation, the volume of data produced would be enormous and the imposition on companies would be huge.

[Mr Jones]

I agree with the Minister, but he has a problem. He and I have dealt with the Foreign Office and other diplomatic entities over many years: he knows that the pressure that the power will come under, and the competing arguments against security, will make it unusable.

[Tom Tugendhat]

I do not accept that, so I think we will have to end this discussion with an agreement to disagree.

[Mr Jones]

Not for the first time.

[Tom Tugendhat]

Indeed. But I entirely respect the right hon. Gentleman’s position, and I do understand the point he is making.

New clause 11 will require Ministers—specifically, the Secretary of State—to be willing to engage in a strong discussion with other Departments that rely on investment or, indeed, diplomatic leverage. Yes, I am afraid that is a balance that the Government have to make; the right hon. Gentleman is absolutely right to identify it, but I simply do not accept that that means the power will not be used. It is true that the power will be constrained, but that does not mean that it will be unused—Ministers who see the threats before them will be willing to use the powers that they have. We will no doubt continue this discussion later.

New clause 11 will provide three principal benefits. The first is that it will provide the Government and public with a greater understanding of the scale and extent of activity being undertaken for specified foreign powers and entities within the United Kingdom.

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[Tom Tugendhat]

The nature of the registration will not be a secret, but who has had to register will be kept private at the moment. I am already keeping this matter under discussion, so I am glad that the hon. Gentleman sympathises with my concerns. He and I are fully aware that journalism is a very powerful force in many of these areas.

[Mr Jones]

This baffles me, as it does the hon. Member for Dundee East. Tier 2 registration will not be private, will it? The order will have to be moved to put them on the list in the first place. Everyone will know, so what is the problem with providing transparency? I do not think you can have two tiers with different levels of transparency.

[Tom Tugendhat]

Let me clarify. Whoever is identified as being on the enhanced tier will be identified publicly. It is those companies that may be co-operating; at the moment, there is a discussion as to whether that should be public or private. The reason for that discussion is that some companies will be co-operating and we may feel that we wish to see that co-operation continue, even though we wish to have the compliance and registration so that we know who is doing what. The argument is that the Government should have the ability to have that information.

[Mr Jones]

If I am the CEO of a company and the Government put my company on the list, surely that will get out anyway. I would have to report it to my shareholders or board, so I am not sure about the benefits of keeping it a secret.

[Tom Tugendhat]

Forgive me, but I think the right hon. Gentleman has got this slightly the wrong way round. By definition, the company that would be identified would be a foreign company, not a UK company.

[Mr Jones]

Yes, but if I headed a French company—I am not suggesting that we use this power against the French for one minute—and had shareholders, surely I would have to tell them, and report at board meetings, that I had been on the list. It will get out anyway, so what is the point of keeping it quiet?

[Tom Tugendhat]

We are clearly speaking at cross purposes. The state that is on the enhanced register would be public. The company would be public. Those UK companies that are registering may not be. The right hon. Gentleman has it the wrong way round.

[Mr Jones]

I don’t think I have.

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[Tom Tugendhat]

My understanding is that—in fact, I will come back to that when I sum up, because the hon. Gentleman has raised an interesting point.

We consider a power relationship to include, for example, where the specified foreign power or entity has formally contracted a person’s support for an activity, or where it is paying a person to deliver a service. It could also include a situation where a specified entity is making a request of its subsidiary—again, the direction might be in the language of a request, but the power relationship would make it a direction. Where such formal structures are not established, a direction should include where a person is requested to act, but through the promise of compensation or coercion—for example, future payment, benefit or favourable treatment.

To be clear, though, it would not be enough for a specified foreign power or entity to simply provide funding in support of an activity—through subsidy or donation, for example. Nor could a generic request from a specified foreign power or entity be considered a “direction”—a request made through a public communication to a large distribution or mailing list, for example.

A power relationship, whether formal or informal, is necessary to ensure that unilateral activity on the part of the person is not within scope and nor is activity that is part of a collaboration and absent a power relationship. We shall set out in guidance what we intend by a direction so that it is clear to the public and to the courts what arrangements are registrable.

An arrangement also captures where a person is to arrange for activity to be carried out at the direction of a specified foreign power or entity, as well as where the person is to carry out the activity themselves. That is to ensure that a person in a direct arrangement with a specified foreign power or entity cannot avoid registration by simply contracting out the activity to a third party, creating a degree of separation between the specified foreign power or entity and the ultimate person who will carry out the activity.

Thirdly, I turn to the definition of “control”, where a specified entity is said to be subject to foreign power control. It is important that we capture the commonly used practice of foreign powers channelling state threat activity through private entities. To capture this effectively we have defined “control” under subsection (5) as being where a foreign power holds, be it directly or indirectly, more than 25% of the shares or voting rights of the entity, or the foreign power can appoint or remove officers of the entity.

Control can also be demonstrated where the foreign power has the right to direct or control the entity’s activities, allowing the Secretary of State flexibility if foreign powers exercise other significant forms of control that fall below those thresholds. The more than 25% threshold is in line with existing legislation on substantial control over an entity.

[Mr Jones]

I appreciate that it is difficult to identify control, but how would we get around the situation of a Russian oligarch who is clearly under the influence of the Kremlin, but whose company is owned through myriad different offshore companies? Would it have to be proven that the ultimate beneficiary was that individual to fall under this legislation? Those people, and even states, are very clever and hide who ultimately controls that company.

[Tom Tugendhat]

The right hon. Gentleman is identifying a problem that we have had with foreign ownership of companies for a very long time. That is why the Economic Crime and Corporate Transparency Bill is very important, because the ownership of companies is something that has been a challenge and he is correct to identify it. This Bill addresses certain elements of that control, but he is right that it does not address the totality, although it provides an important brick in the wall that we are building. That is why the Economic Crime and Corporate Transparency Bill and the companies registration are important.

[Mr Jones]

So, really, what we are enacting in this legislation will have to be dovetailed with the Economic Crime and Corporate Transparency Bill. The issue around Scottish limited partnerships has been quite controversial. Is the Minister saying that when the two come together, they will form the toolkit to tackle these individuals?

[Tom Tugendhat]

The right hon. Gentleman knows that there is not a single tool to deal with every task. The Bill will certainly help with a lot of things that already exist; the Economic Crime and Corporate Transparency Bill will add to it, and no doubt, in future years, different Governments will add further tools.

May I finally come to my fourth point? [Interruption.] I hear the hon. Member for Birmingham, Yardley chuntering. I will briefly summarise the procedural element of the new clause. The requirement is to register a foreign activity arrangement within 10 days of its being made, or otherwise before the activity is carried out. That is important because it may not be obvious to the Government under whose direction the person is acting. The prior registration of arrangements offers some opportunity for the Government to be informed before an activity pursuant to a foreign activity arrangement takes place. It also offers an opportunity to enforce the requirements of the scheme prior to an attempt to carry out covert influence activity.

Subsection (10) makes clear that an offence is committed if a person fails to comply with the requirement to register, and knows—or ought reasonably to know—that the arrangement is a foreign activity arrangement We will discuss the proposed range of offences shortly.

The offences relating to the other part of the scheme—where the registration of political influence activities are concerned—come with a higher bar for the prosecution to meet. Given the likely attention that the measure will receive if a foreign power, part of a foreign power or an entity subject to foreign power control is specified through regulations under subsections (3) and (4), a person should not be capable of avoiding prosecution by claiming they were unaware of the requirement to register. That said, we are mindful that a person who is unwittingly acting for a specified foreign power or entity should not be criminalised. That is why the test is such: a person can be prosecuted only if they ought reasonably to know that they were acting for a specified foreign power or entity.

New clause 12 makes it an offence to carry out activities, or arrange for an activity to be carried out, in the UK pursuant to a foreign activity arrangement that has not been registered. The requirement to register a foreign activity arrangement, which is an arrangement with a specified foreign power, part of a foreign power or entity subject to foreign power, applies to the person who is party to that arrangement—in such a case, that is the person directed by the specified person.

In practice, many other people could be involved in the activity or activities pursuant to that arrangement. For example, if the person party to an arrangement with a specified foreign power is a company, multiple employees could be all engaged in registerable activities within the UK under the arrangement. While I have already explained that the responsibility for registration would rest with the company in this example, and that that is necessary to avoid the burden of each individual employee being required to register separately, the effect of the new clause is to make it an offence to carry out an activity, or arrange for the activity to be carried out, pursuant to a registerable arrangement that has not been registered.

There are two main justifications for the offence. First, it will reduce the likelihood that activities pursuant to an unregistered arrangement with a specified person will be carried out, supporting the overall aims of the scheme. It makes it clear that all individuals have a role to play in ensuring that the requirements of the scheme have been complied with. Where there is doubt that an organisation or company has registered its arrangement with a specified person, it is a good outcome if its employees take necessary steps to clarify that their registerable activities are covered by registration.

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The offence is important for cases in which there is evidence that an organisation is complicit in acting covertly for a foreign power. Being able to pursue the prosecution of the organisation and its directing mind is clearly beneficial, but being able to act against any level of an organisation will help to strengthen the deterrent and disruptive benefits of the scheme against very capable adversaries.

[Mr Jones]

How does the Minister define “foreign power control”? What would be the evidential test? I have heard him argue, for example, that all Chinese companies are ultimately under the control of the Chinese Communist party. Is that the evidential test? Or to take the Russian example, would the evidential test be a company being owned by an oligarch who is close to Putin? Clearly, if the Chinese Communist party wants to control a Chinese company, it can. Would that be the threshold at which a company would be caught by the measures?

[Tom Tugendhat]

The right hon. Gentleman is right to ask. Control over an entity means 25% of a shareholding—that is one thing that we have already identified—or it could also be formal mechanisms within the company, including voting power or other forms of control. Some foreign powers enact legislation to oblige entities to comply with their security services or intelligence agencies—the right hon. Gentleman knows what I am referring to—giving them a right to exercise an element of control over those entities outside formal governance structures.

[Tom Tugendhat]

I do not think that is the case. The hon. Gentleman should realise that foreign control of any kind is under the general provision of the so-called ordinary provision, while the enhanced provision would be specifically identified, so individuals required to register under the enhanced provision would be aware that they are contracting within an organisation or entity that falls under it. All those contracting with a foreign entity will know that they have to register under the ordinary provision, so the legislation covers both cases.

[Mr Jones]

That does not clear things up for me. I have mentioned China. I am sure if I googled long enough I would find a speech that the Minister has given where he suggests that all Chinese companies are controlled by the Chinese Government, if they wish to have foreign influence. There is clear, direct evidence about doing business in Russia—it is not the law, but there is coercion regarding the individuals around Putin. If we are saying that the Chinese Communist party can control most companies, is the Minister saying that all those companies will have to register?

[Tom Tugendhat]

The right hon. Gentleman knows very well that what we express in private and what we say from the Dispatch Box cannot always be absolutely aligned. I am not going to identify every single Chinese company in one go. He knows that there are different elements of control. The Companies Act 2006 sets out the nature of those different elements.

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[Mr Jones]

I am sure the Minister will get some China hawks on the Back Benches of the Conservative party arguing that all Chinese companies should have to be registered under the scheme. I think the measure needs some clarification before it goes any further. There are also certain individuals that the Minister’s party has taken money off who very clearly have connections with the Kremlin and who control companies in this country through front people; the ownership is actually individuals who we would not want to be associated with.

[Tom Tugendhat]

The right hon. Gentleman knows very well my own views on foreign influence on political parties. Sadly, we have seen such influence in all political parties, where parties or members of political parties have unwisely, sometimes rashly and often extremely foolishly, taken money off Chinese, Russian or other individuals. That is completely wrong and I know he and I share complete revulsion at it. I am very glad that we are sorting some of that situation out. It is a problem that the whole of the United Kingdom and many other political parties around the world have to face. We need to deal with it, and that is what the Bill is doing.

New clause 13 is the second aspect of the enhanced registration requirement. It will require the registration of activities to be carried out within the United Kingdom by a specified person. The first aspect of the enhanced measure, which we dealt with earlier, was the registration of arrangements with a specified person. Although arrangements are important, we recognise that activities within the United Kingdom will be carried out by the specified person themselves and not just those they direct. I should be clear: “specified person” in the context of the requirement can only be a specified entity subject to the foreign power control. I have already explained that foreign powers themselves are not required to register under the foreign influence registration scheme. We are therefore proposing that the specified entity subject to foreign power control, for example a company or organisation, be required to register its activities within the United Kingdom before they are carried out. An offence would be committed where the specified entity had failed to register its activity and it knew or ought reasonably to know that the activity in question was not registered.

To ensure that the requirement is practical and proportionate, the requirement to register is to be fulfilled by the entity and not its individual employees. Although we recognise that an employee is also capable of being directed by its employer to engage in the same registerable activities, we considered it disproportionate to require each individual to register in such a scenario. There would also be practical difficulties, not just in administration but also in consistency. If each individual employee were required to register the same activity, that increases the likelihood that the information provided is materially different and possibly even contradictory.

Finally, hon. Members may wonder why, compared with the requirement to register an arrangement, there is no 10-day period within which the registration must be made. The requirement to register an arrangement within such a period is necessary, as it may not be immediately clear that a person is acting at the direction of a specified person, as the person receiving the direction is separate to the specified person directing the activity. Where the specified person—the entity subject to foreign power control—is acting itself, it should already be clear and it is therefore enough that the registration takes place before the activities are carried out.

I want to finish my remarks by reiterating that if we did not include that requirement there would be a clear gap. A person who is separate from the specified entity, for example a different organisation, would be required to register an arrangement that involves being directed to act in the United Kingdom, but there would be no requirement for the specified entity itself to register its own activities. Leaving such a gap would not make sense in the context of countering state threats. I also want to stress again that we intend the use of the enhanced measure to be limited. It is there as an additional tool of assurance and its use will be subject to parliamentary approval through affirmative procedure. I ask the Committee to support the clauses.

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[Holly Lynch]

I have listened very carefully to everything the Minister has said. I will speak to all of the new clauses in the group, which is the first of several additions to the Bill concerning the foreign influence registration scheme, as well as raising some more general issues which will need ironing out about the scheme as we move into this section of the Bill. First, I assure our Australian friends that beyond making sure that we have provided our scrutiny and ensured that the registration scheme does everything that we need it to do, we are very much in support of the introduction of it.

I appreciate that the Minister is not responsible for the publishing of the provisions after Committee stage has already started, but I am going to have to come back to the issue of explanatory notes. To assist the Minister, I suspect that the feedback he has had from his officials is that it would appear we only get a technical explanatory statement when an amendment is published on the amendment paper. The more complex explanations are in the explanatory notes published alongside the Bill. I expect that that is the way it has happened in the past, in anticipation of Governments not tabling substantial additions to pieces of legislation so late in the Commons scrutiny process. That may be the feedback he has had from his officials. However, so important are the types of explanations and examples that we are asking for, I do not think that there would be anything out of order if those examples were provided to Members of the Committee directly, or that anything prevents that.

[Mr Jones]

Also, a commitment was given on the Floor of the House on Second Reading that those notes would indeed be introduced. There is no real reason why those explanatory notes could not have been produced.

[Holly Lynch]

My right hon. Friend is quite right. Let me turn to the explanatory notes provided with the Bill as examples, for instance. If person A is contacted by person B to organise activity X, those examples are on page 14, 16, 17, 18 and so on, to try to add some colour and operational understanding of part 1. We have then got nothing to accompany an outline in real-world terms of how so many of these provisions about the foreign influence registration scheme, which is complicated, for the reasons that hon. Members have already outlined, would work in effect. I just put it on the record that that has been a real frustration for Committee members and is disappointing. We understand from officials that efforts will be made to correct it by the time the Bill gets to the Lords, but that is of no use to us, so let me gently suggest that some of those examples be provided before we get to Report, which I know would be enormously welcome.

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[Mr Jones]

The Minister said that he was delighted to bring the new clauses to the Committee. I think it is disappointing that we did not have sight of them on Second Reading. It is not as if the Government have not had time to come up with the scheme. In 2020, we on the Intelligence and Security Committee reported that the United States have had a system since 1939 and that the Australians brought in their legislation in 2018. I am delighted that we have it, but it has taken too long, and I am surprised that, even at this stage, we are still scrabbling around on the detail.

One thing that concerns me a little is that Committee stage has become a tick-box exercise. We should be able to scrutinise the proposals in detail. Most of the provision will be introduced as secondary legislation, so even when the Bill receives Royal Assent, we will not have the detail of how it will operate in practice. I say gently to the Minister that we should have more detail before the Bill reaches Report and the other place, where it will quite clearly be torn to shreds because of the outstanding issues.

The Minister referred to the former high commissioner of Australia, who said that he hoped the provisions had cross-party support. That is the problem with the way the Government have approached this entire Bill. I am not suggesting for a minute that the Minister would, but other people try to score political points by saying that one party is more concerned about national security. Certainly, my hon. Friend the Member for Halifax, my party and I have known for many years that we would not do anything that would weaken our national security. We want to enhance it. There have been missed opportunities throughout the Bill. I know that is not the Minister’s fault, because the succession of Ministers has not helped. I hope that with current things happening, we do not get another Minister before the Bill reaches its final stages.

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[Ben Everitt (Milton Keynes North) (Con)]

I think your version is better.

[Mr Jones]

I am sorry; it is an odd quote. That will be the test for tier 1: to make sure that it is publicly available and people know it and can see. That has worked in both those systems.

I have real problems with the secondary tier. I understand what the Government are trying to do, but they are making it very complicated. I worry that we are putting in provisions that will not be helpful in practice. It goes beyond political influence, for which I think there is a need. One example is acting as a foreign intelligence officer. Those arrangements need inquiry, but we are left not really knowing, because a lot of that will be looked at in secondary legislation, and it does not apply to all countries. That will create some problems. I have already mentioned the diplomatic problems when a country is added to that list.

When I met officials yesterday I used the analogy of being put on the naughty step: there is no real understanding of what criteria would be used to do that. I have no problem with the Minister’s robustness in using this measure, but because it is getting into economics and other areas, there will be huge problems with pressures from the Department for Business, Energy and Industrial Strategy, the Foreign and Commonwealth Office and others. I would like to understand what a country would have to do to get on the naughty step.

On named countries, I am sure the Minister will not mention the exact countries today, but once the Bill secures Royal Assent, are there any countries that will automatically be added? I am sure no one will be surprised to see North Korea on it. The more problematic country is China, on which I know the Minister has strong views. That will create some problems. I am struggling to understand which countries will end up on this tier.

How will the list work in practice? If the Minister were to put a country that is hostile to us on this list, that is one thing, but what happens if the relationship with that country changes? The example I gave to officials was Iraq. During the Iran-Iraq war, it was our ally. When it invaded Kuwait, it was certainly not our ally. What would be threshold to take someone off that tier? What is the practical way in which that will be done?

[Holly Lynch]

My right hon. Friend is making a powerful case for doing things slightly differently. In the conversations we have had with officials, one of the issues we have worked through is, if our relationship changes with a country at quite a pace, how quickly could we make additions to that enhanced tier to reflect that? Some of the feedback was that it could take a number of weeks, if not months, to address that through the enhanced tier. Is that another area of consideration that we would like to get a grip on?

[Mr Jones]

My hon. Friend makes an interesting point. That is why I do not think the provision will be used in practice. That is the problem and, as I have said, I am never in favour of putting such provisions on the statute book. A more narrowly defined set of criteria applied to all countries would be better than the complicated system that we have here.

The other point is about transparency. Clearly, the public record for tier 1 will be there—it is published. Why the second tier should be done differently, I do not know. The information is going to get out anyway. It is not going to be a great surprise if a company is on this list. If I was running a company and was suddenly put on the register, I would not tell people that—I would not tell the investors and shareholders. I do not understand why the Government are treating the second tier differently from the first tier.

[Tom Tugendhat]

May I interrupt with a point of fact? Any company that is designated under the highest tier will be public by definition. That element will be public. It is the UK element that is having to register. The right hon. Gentleman gave an example of a completely spurious French company, which would of course never be on the enhanced list, as we are such good allies with the French. That company would be publicly declared. That is not the bit that is being kept out of the publication. It is the UK element registering it.

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[Mr Jones]

Why not include the UK company? I do not understand why there are different levels in the two schemes.

I support the measure—when we did the Russia report, the right hon. Member for Dundee East and I were very clear that there was a gap, where international partners had provisions and we did not, so this is welcome. I just think that the Government are making it unnecessarily complicated.

I press a final point about secondary legislation. More information about how the measures are going to work in practice before the Bill gains Royal Assent would help the process.

[Maria Eagle]

I endorse what my right hon. Friend has just said about the complexity of the proposed scheme, which concerns me as well. I very much favour our having a scheme, and I think we should have had one sooner. It is a shame that we were not able to see on Second Reading what was being proposed, because we could have had some of these debates at an earlier stage, when there was still a chance to make changes.

I have a concern about the two tiers being different. It is confusing and complex—much more confusing and complex than it needs be. It might have been more effective to have one tier applying to all countries, and a broader range of covert activity specified as having to be registrable. That might have then meant we would have needed more exclusions, but it would have had the benefit of being simple, straightforward, transparent, all on a level and more obvious, both to those to whom it applies and to those who wish to see the benefit of being able to consult the publicly available information, from a transparency point of view.

It is hard to understand the need for this level of complexity, particularly when it comes to the second tier. Why is the registration of harmful activity outside political influencing, some of which is worse than political influencing, only registrable when a foreign power is set out in the secondary legislation? What we are doing is putting an additional burden on the Government. The Security Minister might always be up for registering the right companies and organisations and countries, but he has got to persuade the whole Government. Other Departments have their own interests and their own work to pursue, which could be made much more difficult by designating in this manner. We seem to be setting ourselves a barrier that might be quite hard to overcome. The eventual outcome of the discussions within Government might not be in accordance with the best security interests. I am not talking about this particular Minister or this particular Government, but there are always competing issues and concerns.

Ordered, That the debate be now adjourned.—(Miss Sarah Dines.)

National Security Bill (Fourteenth sitting)

Kevan Jones Excerpts

Committee stage
Tuesday 18th October 2022 Public Bill Committees

[Tom Tugendhat]

It is not entirely unheard of to make reference to other legislation that is going through at the moment. Should there be issues, then there may be obstacles, but—

[Mr Kevan Jones (North Durham) (Lab)]

The Minister needs to clarify—he can do so in writing, if he wants—whether that Bill is going through. It has been stayed, has it not? It has been pulled, so it will not even go forward. Therefore, I think we need some clarification.

[Tom Tugendhat]

That is simply not correct.

--- Later in debate ---

[Mr Jones]

I beg to move, That the clause be read a Second time.

It will come as no surprise to the Committee that I am not moving the new clause as some bleeding-heart liberal, and I would certainly do nothing to undermine the security of our country. However, as can be seen from the names put to the new clause, it has cross-party support throughout the House, including on the Government Benches.

The new clause even has support in the Cabinet, from the Secretary of State for Wales, the right hon. and learned Member for South Swindon (Sir Robert Buckland), the former Justice Secretary. While he was off the Cabinet carousel—the system at the moment—he was clear in arguing for why we need a public interest defence. To quote from the opening paragraph of his article on “ConservativeHome” in December 2021:

“The principle of open government is too often seen as an issue for the left, but I firmly believe that it is profoundly Conservative to believe that transparent administration is what should lead to higher standards, greater efficiency and better value for taxpayers’ money. As Conservatives, we believe that the State should be our servant, not our master.”

I could not agree more.

Such a measure as this is long overdue. There are basically three arguments against it, which I have deduced over the past few months since I tabled the new clause: first, it will be too difficult, which is the obvious one that always comes out; secondly, if we are in favour of it, we will open the floodgates to leaks and will be a leakers’ charter; and finally, it will make it difficult for our security forces, because evidence would have to be put into court to defend such actions, even though that has to happen now anyway. In a minute, I will come on to reasons why that argument is nonsense.

In its 2015 report, the Law Commission argued for a public interest defence. Are there strong reasons why there should be criminalisation of the leaking information under the Official Secrets Act 1989? Yes, there are, but I would also strongly argue that there has to be a defence in the public interest where someone is disclosing serious wrongdoing in Government—that individual needs to be able to have recourse to that defence in the courts. The problem I have is that if we do nothing—which seems to be the Government’s approach—what we will have, which is what we have already, is leaving it up to juries. I would sooner have the defence outlined in law, so that people can use it and so that it is impossible for certain other people to use it.

The Law Commission said in its report,

“we cannot be certain that the current legislative scheme”

in the 1989 Act, which does not provide for a public interest defence,

“affords adequate protection to Article 10 rights under the ECHR.”

That is the right to freedom of speech. We have a recommendation from the Law Commission and we have the opportunity to act on it in this Bill. It seems that, like lots of things in the Bill, it has been put on a pile on somebody’s desk of things that are too hard to manage. It is a missed opportunity.

The other side to it is that the defence would act as a safety valve. I have said in earlier sittings that the Bill is a missed opportunity to reform the 1989 Act, and I am still bemused to know whether the Bill and that Act will work alongside one another. The 1989 Act is outdated: it does not recognise modern technology, as the Intelligence and Security Committee outlined in its Russia report in 2020. It also fails to protect the individual in cases in which they know of wrongdoing and release it into the public domain because they feel there is no other course of action.

We then come to how we define the defence. I am not suggesting that what I have put in the new clause is ideal, but the argument “It is far too difficult and we could never do this”—which is what certain individuals have said to me—is not right. If we look at what is already in law—employment law, I hasten to add—we see that there is a definition in the Public Interest Disclosure Act 1998. Can we cut and paste that definition? No, I do not think we can, but it certainly provides a template. It is a piece of employment law that prevents whistleblowers from being negatively treated or unfairly dismissed when reporting concerns. That is a starting point.

There are other aspects we could look at in terms of a definition. The subject matter of the disclosure will obviously have to be part of it, as will the seriousness of the misconduct exposed. We must consider the harm caused by the disclosure and the proportionality in that respect, as well as whether the disclosure was made in good faith. Certainly, if someone just dumped a load of data into the public domain, we could argue that that was not done in good faith and would not meet the test at all.

We must consider whether the disclosure is made for the purpose of personal gain. If someone is selling something, that certainly would not meet the criteria. There are factors such as whether the extent of the disclosure is no more than responsible and necessary for the purpose of exposing the relevant conduct, and whether the individual reasonably believes that the information disclosed and any allegations it contains are true. There is the availability of any other effective authorised proceedings; if there are no other ways to do it, that would be a defence. Lastly, we must consider whether in all circumstances and cases it is reasonable to disclose, as well as the manner in which the information was disclosed.

The Law Commission recommended another safety value, which is something I am open to, but it seems that the Government completely ignored that. The issue will not go away—that is the point. We want to protect our security services; I am sorry, but having done jury service myself I would not leave it to a jury to decide what the arguments are. At least if we had this defence, people could argue the legal points and use it as a defence. It is supported by many lawyers, by the right hon. and learned Member for South Swindon and by many newspaper editors. That is why I have moved the new clause.

My other two points are about the argument that if we cross this Rubicon, somehow the floodgates will open and there will be a green light for everyone to release information. There is no evidence of that at all. In Australia, New Zealand and Canada, where they have a similar public interest defence, there is no evidence that its use is increasing. The other argument that has been put to me is that introducing the defence would allow people like Julian Assange to use it as a defence, but that is absolute nonsense. The new clause would actually make the Bill Assange-proof, because anyone who data dumped could not use the public interest defence.

Finally, there is an argument that I find remarkable. I do not know where it has come from, but the argument is that if we put a public interest defence into law, we will somehow have a situation whereby the security services will have to disclose things in court. My response is that if there is a data dump or somebody is prosecuted under the Official Secrets Act, we still have to go to court, but we have closed hearings, which protect sensitive sources. I honestly do not understand why this has just been left off. I think it has been left in the “hard to do” pile and some people think, “Do we really want to upset the status quo?” We need to get the balance right between protecting our national secrets, which I would certainly argue we should, and allowing a legitimate balance between the powers of the state. That would perhaps not be a problem under the usual conventions, but in the previous debate my hon. Friend the Member for Halifax clearly demonstrated that we have a Government who seem to ignore every convention.

It is in that spirit that I move the new clause. I know that U-turns are in fashion at the moment among the current Government, and I wish and hope that if the Minister—with a new set of eyes on this matter—cannot agree to the new clause today, he will at least look at how we can incorporate a public interest defence into the Bill.

[Holly Lynch]

I thank my right hon. Friend for tabling new clause 6, and I thank you, Mr Gray, and Ms Ali for allowing a debate on its merits.

As my right hon. Friend has outlined, the new clause seeks to add a public interest defence to the new disclosure offence created by clause 2 and to the section 5 disclosure offence in the Official Secrets Act 1989. There is of course an undeniable requirement to protect from public disclosure information that, if revealed, could be harmful to our national security. However, for the security services to be able to function as they should within a democracy, they rely on the trust of the British people and their elected representatives, with enough transparency and oversight to make accountability a real part of their work.

As has been mentioned, three of our four Five Eyes partners already have a mechanism that provides a public interest defence with regard to disclosures of this nature. It is also well documented—this is a point made on Second Reading—that, as a country, we have increasingly asked juries to make their own determinations on public interest defences when considering judicial proceedings. We have seen that result in varied outcomes, with a great deal of discretion afforded to jury members in the absence of a clear legislative framework for them to start from.

We might also make the case that, in the event that someone feels they have an obligation to share information but there is no agreed and structured route through which to do that, the absence of an alternative whistleblowing procedure leaves them with limited options, often resulting in a decision to go public and take their chances in the courts. 

The Law Commission examined all this in its incredibly detailed 2020 “Protection of Official Data” report—specifically, in chapter 8—and we are grateful to the authors of that report for their evidence at the start of the Committee stage. With the commission having engaged with a significant number of stakeholders, its report is clear in its recommendation to have a public interest defence.

The report’s authors deal with the complexities head on, saying:

“The public interest in national security and the public interest in transparent, accountable government are often in conflict. While, no doubt, public accountability can ensure that government is protecting national security, the relationship between security and accountability is nonetheless one of tension.”

They go on to say:

“Our concern in this part of the Report is to reconcile these competing interests (so far as possible). It is to propose a legal model that ensures that the price of protecting national security is not to undermine the rule of law (and vice versa). We are concerned to ensure that those with evidence of wrongdoing in Government do not feel that they must commit a serious criminal offence and take the law into their own hands, risking both the national security, and people's lives, in order to have that evidence properly investigated.”

--- Later in debate ---

[Tom Tugendhat]

I am conscious that another Minister is on their feet and a vote may be imminent so, if I may, I will whizz through my response.

Many people have looked at the public interest defence. Although there are differences of opinion, I would be happy to immediately assure the right hon. Member for North Durham that I will accompany him to a meeting with senior officials that he has requested in the past, but which has not yet happened. I will make sure that happens very soon; it is important that he hears the explanations of others and not just ministerial colleagues. I will make sure that happens imminently, because this is an important element. I appreciate the tone with which he has approached the issue; he is trying to be serious and sober in his reflection of the defence of those who are trying to do their best for our country but may indeed be doing harm as well.

I am not a believer argument in the floodgates argument—I do not believe that is a correct assessment of what could happen. It is, however, true that even a single release of some of this information could be extremely damaging to the national interest, as he is aware and would no doubt wish to avoid. I am very happy to have this conversation further and to cover various other issues.

It is also worth noting that other countries have a public interest defence, and we looked at them and the legislation. When considering reform, we looked particularly at the Five Eyes countries, but it is important to recognise the UK context in wider circumstances, so it would not be right to assume that a public interest defence that works for others is exactly the same as for this instance. I appreciate the right hon. Gentleman’s points, but I ask, on that basis, that he withdraw the clause and that we engage in further conversation.

[Mr Jones]

I thank the Minister. This issue is not going to go away, so we need to have further discussions. The Law Commission’s recommendations seem to have been ignored, and I think engagement with them would be useful before the passage of the Bill is complete. With the undertaking I have been given, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

[The Chair]

Before we move on, I should say that if we have a Division, or several Divisions, the Committee will be suspended for 15 minutes for the first one and 10 minutes for subsequent ones. If the discussion goes beyond 5.15 pm, which is of course our cut-off time, there will be no further time for debate thereafter, but we must return here for the decisions to be made whenever the Divisions are over.

New Clause 29

Registration of former employees of foreign security services

“(1) A former employee of a security or intelligence service of a foreign power who is present in the United Kingdom for more than 2 months must register their presence with the Secretary of State.

(2) The Secretary of State may by regulations make provision about the information a person is required to provide to the Secretary of State when registering under this section.

(3) Failure to register as required by subsection (1) is an offence.

(4) A person commits an offence if, without reasonable excuse, the person fails to provide information required by virtue of subsection (2).

(5) A person commits an offence if—

(a) the person provides information to the Secretary of State by virtue of subsection (2),

(b) the information is false, inaccurate or misleading in a material way, and

(c) the person knows, or ought reasonably to know, that the information is false, inaccurate or misleading in a material way.

(6) An offence under this section is a foreign influence offence under section (Offences: penalties).”—(Holly Lynch.)

Brought up, and read the First time.

--- Later in debate ---

[Tom Tugendhat]

May I thank the shadow Minister, the Member for Halifax—she has been of tremendous assistance to me in the very unusual position that I have found myself in—as well as Opposition Members? I also thank enormously my hon. Friends, who have been extraordinarily generous supporters at times when I have been quite literally learning on the job.

I also thank the Clerks—particularly Chris, who was my first Clerk on the Foreign Affairs Committee, which brought me right back home—Home Office officials, the intelligence community, with whom it is such a pleasure to work again, and of course all those who have contributed to the Bill, including you, Mr Gray. Thank you very much indeed.

[Mr Jones]

On a point of order, Mr Gray. I think it would be remiss not to thank the two previous Ministers—

[Dame Angela Eagle]

And the previous Whips!

[Mr Jones]

And the previous Whips, yes. One previous Minister was thrown a little more into the deep end than this one, so I want to put on the record my thanks to him.

[Tom Tugendhat]

Quite right.

National Security Bill

Kevan Jones Excerpts

Report stage
Wednesday 16th November 2022 Commons Chamber

[Mr Kevan Jones (North Durham) (Lab)]

rose—

[Tom Tugendhat]

On that, I will give way—not for the last time, I am sure—to the right hon. Member.

[Mr Kevan Jones]

The Minister talks about Darwinian change, but evolution takes a long time. Many things in the Bill have been kicking around for at least six or seven years, and that includes the issue around the foreign influence registration scheme, which was only put in the Bill at Committee stage after it was omitted on Second Reading; even now, there are amendments to it. Is the Minister satisfied that the Bill—in terms of the major changes that it will achieve—will fulfil its purpose and that it has been properly scrutinised in this House?

[Tom Tugendhat]

What I am so pleased about with this Bill is that it introduces so many ideas that the right hon. Gentleman and I have discussed in private over many years when I was in a similar position to him—scrutinising a Government. The Bill introduces some of those ideas that, yes, he is right to say, seem to have been introduced quickly, but the reality, as he knows very well, is that they have been discussed slowly. Many aspects of the Bill not only date six or seven years into the past, but update aspects that date a lot further back. Sadly, some of our national security legislation is better placed to hunt those who would send secret notes on pigeons back to Germany than to hunt those sending secret messages through the internet. This is updating quite a lot of laws that date all the way back to the first world war. I am very glad that we are doing it, and I am very glad that the right hon. Gentleman’s scrutiny in the Bill Committee has been so rigorous and so onerous.

--- Later in debate ---

As Members will know, I have listened to every view that has been raised across the House, and I am very pleased to say that we have come, I think, to a Bill that works. We have a Bill that can be sent and introduced to the other place, ready to then deliver for our agencies and those who keep us safe.

[Mr Kevan Jones]

As my hon. Friend the Member for Garston and Halewood (Maria Eagle) said, we had four Ministers in the Bill Committee. Yes, the Minister has listened, but nothing in the Bill has changed. It is still a mess, and that goes back to the fundamental point about not including the Security Service Act 1989 in the reform that is needed. Let me tell the Minister now: the lack of scrutiny in this House means that the Bill will be absolutely torn to shreds in the other place.

[Tom Tugendhat]

The right hon. Gentleman will not be surprised to hear that we disagree on that element, but it has been a great pleasure to work on the Bill with him and with many others in the Chamber, and to hear their comments and criticisms. There are many other supplementary areas that I would like to work on in different places at different times, but the Bill answers the essential need that we have now, which is to update our national security legislation to keep the country safe and defend our people, and to ensure that those who have the courage, integrity and wisdom to keep us all safe have the tools at their disposal to do so.

--- Later in debate ---

[Mr Kevan Jones]

My hon. Friend is right that we discussed the issue in detail in Committee. Clearly, the only reason is seen to be that someone has been involved in terrorism. Does she agree, however, that there are many other people, such as rapists, paedophiles and murderers, of whom we also have a low opinion? The logical conclusion is surely that, if we restrict it in one area, we should restrict it for everyone.

[Holly Lynch]

I am grateful to my right hon. Friend for making that powerful point. He is absolutely right that there is a distinct lack of consistency. If we are singling out specific criminal offences that we do not like, there is more that we could do to ensure that there is some consistency in that approach. There will be vulnerable people here who we want to check are not falling through the gaps, which would make the situation worse for us all.

What if a woman’s abuser is a terrorist? As I said, the nature of terrorist offenders means that that is often the case. For some of the lower-level offences covered by clauses 84 to 85—for example, that someone made a phone call on behalf of an abuser—it is easy for somebody to say, “I wouldn’t do that, because I’m not a terrorist,” but we all might if we were living in a household where we were terrorised. The danger is that more women in such cases will end up stuck with a terrorist making them be a terrorist, rather than being able to escape them. That is why we feel strongly that the Government should adopt amendment 6.

On some other changes that we would like to see, we have tabled new clauses 5 and 6. They were drafted in the wake of the revelations that the right hon. Member for Uxbridge and South Ruislip (Boris Johnson), when he was the Foreign Secretary, met former KGB officer Alexander Lebedev without officials or security at the height of the Salisbury poisoning case in 2018. That was immediately after the then Foreign Secretary had attended a meeting of NATO Foreign Ministers at NATO headquarters in Brussels to discuss the collective response to Russia’s use of Novichok on UK soil. We still have a series of questions about that encounter, not least who his guest was at that party and why we have not taken steps to sanction Alexander Lebedev, given the assessment of our Five Eyes partner Canada, which has sanctioned him.

Having made the case in Committee for new clauses 5 and 6, which both seek to put safeguards in place to prevent that type of security breach ever happening again, the Minister was keen to stress that he was not going to seek to defend the Administration of the right hon. Member for Uxbridge and South Ruislip, as if that time had passed and there was no need for any further changes to the law in this regard. When that exchange happened on the Tuesday, little did the Minister or I know that by the Thursday, remarkably, the right hon. Gentleman would be launching his campaign to come back as Prime Minister. None of us could have foreseen that, which is one more reason why I stress that the clauses would complement the Bill.

I appreciate that new clause 8, tabled by my right hon. Friend the Member for North Durham (Mr Jones), has been deemed to be out of scope of today’s debate, but I remind the Minister of the remarks of the then Home Secretary, the right hon. Member for Witham (Priti Patel), on Second Reading:

“We are not shy of the issue and are certainly not ignoring it, but it is important that we focus on ensuring that individuals can make disclosures safely, which means protecting them through safeguards and proper routes. That work is still under way, and we need to go through it in the right way.”—[Official Report, 6 June 2022; Vol. 715, c. 571.]

We understand that the Home Office has engaged with trusted partners on what options look like in this space. Once again, we are all waiting for further detail on that front.

I now turn to the plethora of Government amendments. Frankly, late in the day additions to the Bill have plagued its scrutiny and Report stage is no different, as many right hon. and hon. Members have already said. I am pleased that the Government heard our concerns about places of detention and have clarified that only places

“owned or controlled by a police force”

can be used as places of detention, which ensures that they will be subject to proper inspection regimes. We are satisfied that the Government have listened, so our amendment 4 is no longer necessary; Government amendment 54 brings those places within the scope of an existing inspection regime.

As the Minister knows, there are still outstanding concerns about the broad nature of clauses 79 to 83 in part 4. We welcome Government amendment 51, however, which seeks to tighten the definition of those in scope of clauses 79 to 83 to those involved in “terrorist wrongdoing”, but that will warrant further exploration in the other place.

On Government amendment 60, like a number of modern slavery charities—the point has already been made by the right hon. Member for Chingford and Woodford Green (Sir Iain Duncan Smith)—we are really concerned about the lateness of this addition to the Bill and the scrutiny that has been avoided by adding it to the Bill at the final Commons stages. Justice and Care, which does outstanding work in placing victim navigators within police forces up and down the country, was keen to stress that there has not been any consultation with modern slavery charities concerned that they, like us, have had insufficient time to fully consider the possible impact on modern slavery victims. I could have asked the Independent Anti-Slavery Commissioner for their views, except there isn’t one. The Government have failed to appoint a new commissioner since Dame Sara left office in April, so I take this opportunity to suggest that the Government address that now as an urgent priority. I have to ask the Minister to outline the rationale for this move, and I want to be clear just how unhappy we are with this provision at such a late stage.

I am grateful to my hon. Friend the Member for Rhondda (Chris Bryant), who is so often my partner in crime fighting, for his amendments. I know he has a great deal of understanding in this area that has shaped the detail of his amendments, so I hope the Government are reflecting carefully on those.

Once again, we have sought at every stage and with every Minister to engage on the Bill constructively. We know that our police forces and security services need the provisions in the Bill to be able to keep us safe from the hostile state threats that are increasingly testing the UK’s resilience. I hope the Minister, who to his credit had to pick up the Bill in the final stages of the Bill Committee, hears our outstanding concerns today, recognises the spirit in which we strive to find solutions and continues to work with us towards a robust and proportionate Bill we can all have confidence in.

--- Later in debate ---

[Sir Robert Buckland (South Swindon) (Con)]

Thank you, Mr Deputy Speaker. I will not be able to emulate the admirable record of my hon. Friend the Member for Broxbourne (Sir Charles Walker), but I will do my best to be as succinct as possible. It is a pleasure to follow the hon. Member for Barnsley Central (Dan Jarvis), who is right when he says that we have to strike a balance here: we need to protect our way of life but not protect ourselves out of the very values that we seek to defend—or, in other words, diminish the very rights that we want to protect. That is at the heart of all the national security legislation that I and others in this House have dealt with over the years. I am grateful to my right hon. Friend the Minister for Security for our conversations about these issues.

I cannot conceal my disappointment at the non-selection of new clause 8, in the name of the right hon. Member for North Durham (Mr Jones), which was signed by me and others. It is inevitable that this issue will be revisited in the other place. There are two issues that arise from it that are of general application to the Bill and to the future reform of the Official Secrets Act, which has to come. The first is the potential creation of a public interest defence, which in my view is an essential substitute to the rather random guessing game that we have at the moment, with jury trials—however well directed the juries might be—ending up with verdicts that, to many of us, seem perverse.

The second relates to the recommendation to create a statutory commission to allow people to raise their concerns—to whistleblow, if you like—through an approved process. The Law Commission’s report of September 2020 made those very clear and cogent recommendations and I commend them strongly to my right hon. Friend the Minister. I think they go hand in hand. The time is here for the Government to start addressing these issues and to adopt those recommendations. To quote my hon. Friend the Member for Broxbourne in another context: if not now, when?

[Mr Kevan Jones]

There are many things in the Bill that I support, but I think it is a missed opportunity. It has been a messy process in Committee, as has been said, as a result of the number of Ministers we have had dealing with it, the late inclusion of things like the foreign agents registration scheme and the completely missed opportunity to reform the Official Secrets Act 1989. The new Minister is very good, but he is a bit like a friendly old bank manager: he listens to you, he agrees with you and he is sympathetic, but you do not get the loan at the end of the day. The point is, however, that this Bill will be changed radically in the other place, because we have not had the proper amount of time to do it.

I want to refer to clause 27, which has been spoken to by the right hon. Member for Haltemprice and Howden (Mr Davis) and my hon. Friend the Member for Barnsley Central (Dan Jarvis). I was on the Intelligence and Security Committee when we were discussing detention and rendition, and some of the things that went on then did not make for pretty reading. We do not want to go back to those days. Things were changed in the consolidated guidance and the principles were brought forward. One of the sops for the Committee—a phrase that everyone kept using—was that there could be a chilling effect on the security services. Everyone kept asking what the chilling effect would be.

A commitment was given to allow the ISC to have classified information on this, and the Chairman of the ISC wanted that before today because it would have given us an opportunity to say whether we were satisfied. Unfortunately, that was turned down, but we have had the initial information and I and other members of the Committee are not yet satisfied that there is justification for this. We have asked for more information, which we are going to receive, but it would have been handy to have it before today. Unless there is good cause, frankly I think it will be interesting to see how this can be justified.

Referring to something that the right hon. and learned Member for South Swindon (Sir Robert Buckland) said, I am disappointed that my new clause 8 was not selected. This is one of those things in the Bill that will come back. The equivalent new clause was selected in Committee only because the hon. Member for North Wiltshire (James Gray) and my hon. Friend the Member for Bethnal Green and Bow (Rushanara Ali) in the Chair agreed to it, so I was not surprised that the Clerks knocked it out of selection, but it will not go away. My fear is that a great opportunity to modernise our national security landscape is being completely missed. I do not think we will see a Bill on public interest or reforming the 1989 Act, but it desperately needs to be done.

--- Later in debate ---

[Ben Everitt (Milton Keynes North) (Con)]

It is a pleasure to follow the right hon. Member for Orkney and Shetland (Mr Carmichael) and to see so many members of the Bill Committee in the House on Report. It was a very constructive Committee, and I am pleased that we are all still vaguely getting on.

As the Minister said in his opening remarks, a number of clauses in the Bill update espionage legislation that goes back to world war one. Obviously we do not have time to go through all of them, but after putting the Bill into context, I will spend some time talking about clauses 13, 14, 20 and 21. The context is important. In my lifetime, and since the end of the cold war, we have lived through an era of what could be considered unprecedented global peace. In many ways, in the ‘90s, we took our eye off the ball. Once the Berlin wall came down, we took our eye off the ball on state-based threats. When things got hot in 2001, after 9/11, our national security legislation and our activity were focused much more on counter-terrorism, so now is the time to update our espionage legislation to counter state-based threats as well as counter-terrorist threats.

It is clear that state-based threats have not gone away. There are more Russian spies in London now than there ever were at the height of the cold war.

[Mr Kevan Jones]

How do you know that?

[Ben Everitt]

Because I have read it. [Interruption.] I will give sources to the House of Commons Library if I have to.

Those hostile threats are a real and present danger. Russia in particular is a danger. We know that the Skripal poisonings were the work of the GRU. We know that Russia continues to implement a range of hybrid techniques that undermine what it sees as its adversaries—to make it clear, that includes us. The use of disinformation, particularly through bot accounts on Twitter, has been used to foster division and political instability in countries.

The head of MI5 has declared that China, not Russia, is the biggest long-term threat to Britain’s national security. It is said that if Russia is a tropical storm, then China is climate change. This new threat requires new measures to protect us. We need to create new offences to tackle state-based sabotage. I refer to clause 13, in particular. I would argue to my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes), who is not in his place, that we do go far enough.

Part 2 of the Bill covers prevention and investigation measures, which update our legislation to mirror the counter-terrorism legislation that we learned so hard in the noughties. In many ways, that reflects the new foreign intelligence threat that we face, which is much more like the threat of terrorism from the past 20 years. Espionage has never been the gentleman’s game that is portrayed in books and films, but now, in particular, we face some pretty gruesome threats. Clause 21, on arrest and detention, is also incredibly necessary in this day and age.

In summary, I support the Bill. We must bring our espionage laws up to date and into the 21st century.

--- Later in debate ---

[Tom Tugendhat]

It will not surprise the hon. Gentleman to know that one of the first things I did on arrival at the Home Office was to ask for it to be prepared for publication. I will come back to him with it, I hope, urgently—I will let him know.

Many different points have been raised. I pay enormous tribute to my many right hon. and hon. Friends who have spoken and to those who have approached the Bill with the diligence and seriousness that the subject demands, particularly the hon. Members for Halifax (Holly Lynch) and for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), who have been extremely supportive critics and have been challenging in the right spirit. I am glad to say that those discussions have resulted in most of the Bill going through in the way that was intended, and that those challenges and changes have improved it.

I accept that there are some differences of opinion. On areas such as the Serious Crime Act and the changes to statutory requirements, I believe that the Government are right because the exercise of the functions of an officer of the state are exactly what should be the limiting functions of their powers. That is why this reform makes sense, although my right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright) raised some important points and challenges that we will have to look at.

My right hon. and learned Friend also asked about damages and whether they followed in the way that he described, and I agree that they do. The point is that we should neither make it harder or more applicable to have damages, nor prevent it where judges seek the discretion to do so. Where they have that discretion, they may continue to do it, but we are asking them to look and consider the situation in which those damages arose to make sure that they are truly applicable. It is merely a review policy, rather than a block. That is an important element of the Bill; judges may already have that power but this measure merely puts it on the statute book.

Much of the debate has focused on whistleblowers and the public interest defence, and the way in which various people could argue that they are acting in the interests of the wider polity in raising different objections. This is a hugely important area and I understand that many hon. Members have raised different points. The head of MI5, the heads of various agencies and many others who have engaged on it have been absolutely clear on this point, however, because we need to make sure that we are not introducing any defence that forces the Government to reveal the damage that has been done in order to provide a defence.

The reality is that forcing the publication of damages may indeed be further damaging to the initial offence. That is why although I take the point about the public interest defence, which is a wider question for the whole of Government and the whole country, and I take the point about whistleblowers, which is again a wider question and not specific to the Bill, I am afraid that I hold with the head of MI5 and others who have been extremely clear on this point.

[Mr Kevan Jones]

With the greatest respect, that is a weak argument, because there can always be closed hearings on national security grounds. I say to the Minister that this issue will not go away—the courts are deciding it anyway. I would sooner state a protection in law than leave it to the whims of a jury, which is what we have now.

[Tom Tugendhat]

I have a great trust in our jury system, and I know the right hon. Member does, too.

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[Mr Jones]

I haven’t actually.

[Tom Tugendhat]

Oh, he does not. I do have trust in our jury system and I do have trust in the Great British people to make decisions appropriately. One of the decisions sometimes made by juries is to strike out a case because they disagree with it. I am afraid that is simply one of those—

National Security Bill

Kevan Jones Excerpts

Consideration of Lords message
Monday 26th June 2023 Commons Chamber

[Tom Tugendhat]

The right hon. Lady will be delighted to hear the rest of my speech, in which I answer her wonderful questions.

As this House will be aware, the Intelligence and Security Committee memorandum of understanding can already be revised by agreement, which is one of the points that the right hon. Lady is raising. We do not believe that primary legislation is an appropriate mechanism for making amendments to the MOU. However, we recognise the strength of feeling on the issue, and in a spirit of compromise we have tabled amendment (a) in lieu of Lords amendment 122B. The Government’s amendment will achieve a similar result and will create a duty on the Prime Minister and the Intelligence and Security Committee to progress a review of the MOU within six months of the provision’s coming into force.

[Mr Kevan Jones (North Durham) (Lab)]

That is fine, but the ISC has been raising this issue for the past two years. It takes two to tango. Unfortunately, the only reason we have this Lords amendment is a sense of frustration—certainly among members of the ISC, but also among a lot of Members of this House.

[Tom Tugendhat]

I assure the right hon. Gentleman that I have heard him. I hope that the amendment will now satisfy the ISC with respect to its concerns. I am sure that hon. Members across the House will support Government amendment (a) in lieu.

I turn to Lords amendment 22B, which would require political parties to make an annual return to the Electoral Commission, setting out the details of donations from foreign powers. It would also create a duty on political parties to write an annual policy statement to ensure the identification of donations from foreign powers. I understand the intention behind the amendment, and I share the strength of feeling behind it.

The Government are very much alive to the risk that foreign interference presents. I am pleased that we have already taken action to address it, and I am pleased with the support that we have received on both sides of the House for our reforms to Companies House, which will deliver more reliably accurate information on the companies register, providing greater powers for Companies House to query and challenge the information it receives. The Government are also legislating, via the Economic Crime and Corporate Transparency Bill, to enhance data sharing between Companies House and public authorities, including the Electoral Commission. This will help the enforcement of the rules on donations by providing greater confidence in the accuracy of the data held at Companies House.

--- Later in debate ---

Finally, I said at the outset that the threats to us are profound and dynamic. It is in recognition of that fact that members of the ISC go about their work. We should thank those in the intelligence and security services for all they do. They are remarkable people who do a remarkable job. All we seek is the power to help them do that job by holding them to account.

[Mr Kevan Jones]

In a democracy, the ability of Parliament or others to scrutinise the activities of our security services is not a “nice to have” but a vital part of the confidence that our citizens have in them. We have the Investigatory Powers Commissioner and the Investigatory Powers Tribunal, and then we have the ISC, which is the parliamentary arm that ensures that there is full accountability.

The Justice and Security Act 2013 extended the powers of our security services and, in return, increased the powers of the ISC. The important thing is that it has to be independent. I have been on the Committee the longest—six years now—and what has happened over the past three years has been an attack on the Committee’s independence and our ability to scrutinise. It started with Boris Johnson’s attempt to rig the Committee by giving the Conservative party a majority on it and the chairmanship of it. That failed. We also had the delay of the Russia report for no apparent reason other than to avoid his own embarrassment.

The Minister asks, “Why have we got this amendment to the legislation?”. The reason is a sense of frustration. Our Committee has been trying for the last two or three years to get the MOU changed, as my right hon. Friend the Member for Garston and Halewood (Maria Eagle) said, because the remit for considering departmental policy has grown, but at every turn we have been refused. It is not about a lack of willingness on the part of our Committee.

There are other aspects in which the Committee’s work has been frustrated. I mentioned the unnecessary delay of the Russia report, but it is still happening. We have just done a major report on China. It has gone to the Prime Minister and been through security clearance. He had 10 days to publish it; a month later, we are still waiting for a date for it. The report we completed on international partnerships was sent to the Prime Minister on 6 September last year, and we are still waiting for it to be published, so the Government have form when it comes to trying to frustrate the work of the Committee.

We on the Committee get frustrated, but the important thing is that Parliament is being frustrated. For some reason, the arrogance that was around when Boris Johnson was there seems to have continued. The Minister can say all those nice warm words—as he does in his nice, flannelly sort of way—but frankly it does not wash with us. The Prime Minister or whoever in Government is trying to stop this needs to recognise that it is not about whether the Committee gets access; it is about proper scrutiny, as laid down in an Act of Parliament. This is serious for our democracy.

I want to add a few final points about the passage of the Bill, during which I think we have had four Ministers. The Committee approached the Bill in a constructive way and worked with the security services to come up with amendments. However, that was not helped by the Minister’s Department, which frankly did everything it could to stop the positive amendments that we had agreed and that were put forward by the security services. They valued that, but were amused, frankly, that the Home Office was so incompetent, or for some reason did not want to give the Committee any credit for coming up with anything.

All I say to the Minister is that I can agree to this proposal, but frankly it means nothing unless there is a change of attitude among the higher echelons of this Government. The point that needs to be remembered is that democracy is important and our constituents need to have that confidence. Our security services, who work day in, day out in very challenging situations on our behalf, need the security and support of knowing that there is independent oversight and that the public can be satisfied with it. Unfortunately, the way that the Government are carrying on in this area is damaging that oversight.

[Sir Jeremy Wright (Kenilworth and Southam) (Con)]

I want to make a few brief comments about both the amendments before us. Let me start with Lords amendment 22B and the Government motion to disagree with it. I find it very difficult to disagree with this amendment. I was a member of the Committee on Standards in Public Life when the 2021 report that has been referred to was produced, and I am a member of the Intelligence and Security Committee now. Both those Committees, as the House has heard this evening, take the view that further measures are required to protect our democracy from the influx of inappropriate foreign money, and I think both would say that the amendment is the bare minimum of what needs to happen.

Lords amendment 22B does two things. It says, first, that a political party should be able to identify donations from a foreign power and, secondly, that it should be transparent with the Electoral Commission about such donations. It is worth stressing that the donations we are talking about are those from a foreign power—not necessarily from an individual, but from a state, perhaps funnelled through an individual. It is surely important to recognise the significance of such donations—potentially, at least—on our democratic process. It seems to me that there are two scenarios here. Either there are hardly any such donations in British politics, in which case the work involved to identify and deal with them appropriately is hardly likely to be onerous, even for smaller parties; or there are substantial numbers of such donations, in which case the case for greater transparency is overwhelming.

Let me turn to Lords amendment 122B and Government amendment (a) in lieu. It is worth being honest: there is very little difference between the Government amendment in lieu and the amendment from the other place, but both, as others have said, are operating on the margins of the real issue. The real issue is that there needs to be the capacity for the Intelligence and Security Committee’s remit, and the memorandum of understanding that relates to it, to adapt as the processes and structures of Government adapt. If that is not the case, all the consequences flow that have been described so well by my Committee colleagues, which I do not need and have not got time to repeat.

My last point relates to a deficiency in both Lords amendment 122B and the Government’s amendment in lieu. Both say that the consideration or the review—depending on which version we choose—of the memorandum of understanding must begin within six months of the passage of the Bill. The problem with that, it seems to me, is that it is far from inconceivable that the Government may make a machinery of government change or a process change beyond that six-month point. It does not seem sensible to artificially limit the capacity for having that review or consideration of the memorandum beyond that point. For that reason, I am afraid, I do not think that either the Lords amendment that we have received or the Government’s amendment in lieu are sensible responses to the challenge we face. In my view, both are flawed.