All 8 Stewart Hosie contributions to the National Security Act 2023

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Mon 6th Jun 2022
National Security Bill
Commons Chamber

2nd reading & 2nd reading
Thu 7th Jul 2022
National Security Bill (First sitting)
Public Bill Committees

Committee stage: 1st sitting & Committee stage
Tue 19th Jul 2022
Thu 8th Sep 2022
Thu 8th Sep 2022
Tue 18th Oct 2022
Tue 18th Oct 2022
Wed 16th Nov 2022

National Security Bill Debate

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Department: Home Office

National Security Bill

Stewart Hosie Excerpts
2nd reading
Monday 6th June 2022

(2 years ago)

Commons Chamber
Read Full debate National Security Act 2023 Read Hansard Text Read Debate Ministerial Extracts
Priti Patel Portrait Priti Patel
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The hon. Lady is right that the protection of whistleblowers is vital. I will be frank: we need to find the right measures and means to do that. She has highlighted the current debates and thoughts on the issue. We need to find the right balance. Whistleblowers play an integral part in these matters, and she will hear additional points on the subject later in my speech.

Stewart Hosie Portrait Stewart Hosie (Dundee East) (SNP)
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I do not want to dwell too much on whistleblowers, but the Bill does not address the Official Secrets Act 1989, so there is an absence of a public interest defence and all the bits around that. What is the logic of not addressing all those aspects in the primary legislation?

Priti Patel Portrait Priti Patel
- Hansard - - - Excerpts

I will answer the right hon. Gentleman’s question very specifically. He is right about the public interest defence, on which the Law Commission has recently opined. We are not bringing forward reform of the OSA 1989, mainly because we recognise that the issue is complicated, not straightforward. If it were straightforward, we would be able to deal with it in the form of a clause. However, there are various sensitivities. For example, in situations where there may have been wrongdoing or where we think there is a public interest in disclosure, it is about finding the right balance; a public interest defence is not always the safest or most appropriate way to bring that matter forward.

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.

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Priti Patel Portrait Priti Patel
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That is exactly what I said.

While these considerations are important, we should also reflect on the fact that the Bill is informed by extensive public consultation. It is informed not just by the work of our counterparts in the Five Eyes and other countries, and by legislation that has been introduced by others, but by our evolving work with our law enforcement and intelligence agencies. Those agencies are at the heart of the application of this work. They will be the ones who will be leading the enforcement, putting the laws into practice and dealing with the practicalities of this work. The Bill also builds on the difficult and necessary work undertaken by my right hon. Friend the Member for Maidenhead (Mrs May), who corralled the unprecedented international response to the barbaric Salisbury attacks. This Bill is a culmination of much of the work that she set in train, and we have also been in discussion with her about this Bill as well.

We should not forget that, in response to the Salisbury outrage, the UK expelled 23 undeclared Russian intelligence officers. Twenty-eight other countries and NATO supported us, resulting in one of the largest collective expulsions ever—of more than 150 Russian intelligence officers. That led to the degrading of Russian intelligence capability for years to come, and we have more cause than ever to be grateful for that today.

The National Security Bill completely overhauls and updates our espionage laws, which date back to the second world war—in some cases, to the first world war. It also creates a whole suite of measures to enable our law enforcement and intelligence agencies to deter, detect and disrupt the full range of modern-day state threats. The Bill includes a range of new and modernised offences, alongside updated investigative powers and capabilities. Those on the frontline of our defence will be able to do even more to counter state threats. Additionally, the Bill will prevent the exploitation of the UK’s civil legal aid and civil damage systems by convicted terrorists by stopping public funds being given to those who could use them to support terror.

I now turn to specific measures in the National Security Bill. The foreign power condition provides a clear approach to determining whether offences or aggravated offences are being carried out for a foreign power, or on their behalf, or with the intention of benefiting a foreign power. Many of the offences introduced in the Bill apply only when the foreign power condition is met and it prepares us to face tomorrow’s threats as well as those that we face today.

We are comprehensively updating the laws that deter and disrupt espionage, as well as enhancing the ability of our law enforcement and intelligence services to investigate and prosecute those who spy on behalf of foreign states. We have already had cause to strengthen visa screening of Chinese academics and researchers in sensitive areas of research, and to step up engagement with our higher education and research sectors to alert them to the threats and risks of Chinese espionage. Three reformed offences in the Bill will combat the modern threat from state-linked espionage and related harmful conduct.

One of the UK’s greatest strengths is that we have absolutely world-leading research and innovation, but as we have seen too often it is the target and subject of hostile activity by foreign states. A new offence of obtaining or disclosing trade secrets will help us to respond to that threat more effectively. It will specifically target the illicit acquisition or disclosure of sensitive trade, commercial or economic information by foreign states, as the value of these is directly linked to secrecy. The offence will apply only where the foreign power condition is met and will carry a maximum penalty of 14 years in prison.

The Bill will also make it a criminal offence to aid the UK-related activities of a foreign intelligence service. This, too, will carry a maximum penalty of 14 years’ imprisonment. That means that, for the first time, it will be an offence to be an undeclared foreign spy working in the UK. We know that foreign intelligence services can have malign intentions: for example, as the US and UK set out in April 2021, Russia’s foreign intelligence service, the SVR, has been behind a series of cyber-intrusions, including the extremely serious December 2020 hack of SolarWinds, the American software company.

The Bill will reform the offence of obtaining or disclosing protected information. Where a person knows, or ought reasonably to know, that their conduct

“is prejudicial to the safety or interests of the United Kingdom, and…the foreign power condition is met”,

they could now face a life sentence.

Stewart Hosie Portrait Stewart Hosie
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I am curious about the use of the word “prejudicial”, which I reread several times this morning, rather than “damaging”, which appears in other legislation. How is “prejudicial” to be defined where conduct does not actually cause damage?

Priti Patel Portrait Priti Patel
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Definitions are important, of course, but on a case-by-case basis much of the work will link to the activity and the intelligence that is provided about the individual. All sorts of elements could come together to make that case. As I have touched on, much of this will be done on a case-by-case basis; it will be based on intelligence, on the conduct of the individual involved, on the impact they would have on our national security and on the threat they pose.

The Bill will create two offences relating to access to prohibited places—sites that are vital to our national security. One will require a person to be acting for a purpose prejudicial to the safety or interests of the UK; the other, which carries a lesser sentence, applies to unauthorised conduct. There are sensitive sites that are particularly vulnerable to threats from foreign powers. We need greater scope to respond to new tactics and particularly to technology. The Bill will give us that ability.

There is a serious threat from state-linked attacks on assets, including sites, data, and infrastructure critical to the UK’s safety or interests. The sabotage offence will likewise apply where a person knows, or ought reasonably to know, that their conduct is prejudicial to the safety or interests of the UK and where the foreign power condition is met. It, too, comes with a maximum sentence of life.

Starting on 27 February last year, at least 17 different Chinese-linked threat actors simultaneously took advantage of flaws in Microsoft Exchange. They were able to access email accounts, acquire data and deploy malware. The attacks affected more than a quarter of a million servers worldwide. Victims included the Norwegian Parliament and the European Banking Authority.

It is completely unacceptable for the integrity of our democracy to be threatened by state threats. In January, I made a statement to the House about an individual who knowingly engaged in political interference activities on behalf of the Chinese Communist party and targeted Members of Parliament for a number of years. As I said in January,

“this kind of activity has recently become more common, with states that have malign intentions operating covertly and below current criminal thresholds in an attempt to interfere with our democracy.”—[Official Report, 17 January 2022; Vol. 707, c. 23.]

The individual in question had links to the United Front Work Department, which is part of the Chinese Communist party, and had not been open about the nature of these links. Meanwhile, China has sanctioned critics of its regime, including Members of this House. That is not remotely conducive to open and honest discussion made in good faith.

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Stuart C McDonald Portrait Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
- View Speech - Hansard - - - Excerpts

It is a pleasure to follow the right hon. Member for New Forest East (Dr Lewis), the Chair of the Intelligence and Security Committee. I am grateful to the Home Secretary for setting out the detailed context of this Bill and to the Minister for Security and Borders and his team for providing a briefing before the recess and talking through parts of the Bill and answering questions on it.

I think everybody here today agrees that we need a Bill that, as the long title to this one says, makes provision

“about threats to national security from espionage, sabotage and persons acting for foreign powers”.

Indeed, as we have already heard at some considerable length, the need to update our espionage laws is clear from the Russia report, from the Law Commission report and for a million other reasons as well. For those reasons, we will support the Bill’s receiving a Second Reading this evening. Indeed, parts of the Bill could be particularly welcome, such as steps to tackle disinformation and interference in elections; those have great potential if done correctly.

However, all that does not mean that we will give the Government a blank cheque as they take the Bill through its different stages, and we would be failing in our duties as Opposition MPs if we did. That is particularly true in a policy area such as this: there is perhaps a tendency for Government, and even Parliaments, to write blank cheques for the security and intelligence services every time they come calling with a list of new powers and capabilities that they seek.

Like everybody here, for the reasons that the Secretary of State and the shadow Secretary of State set out, I am immensely grateful for the critical work that those in the services do, day in, day out, on our behalf. They have our full respect. None the less, they are not perfect: from time to time, news stories emerge that remind us of that fact—for example, the recent BBC revelations about a particular covert human intelligence source. These agencies also have immense powers, so we should always rigorously test the need for new powers, new criminal laws and new restrictions, and we should always be on the lookout, as the shadow Home Secretary said, for ways and means that ensure that the agencies are held to account and that we get to look under the bonnet at what is going on without undermining their work or making it impossible. It is against that background that I will briefly highlight some of the issues that we will want to pursue and to test the Government on as the Bill progresses through the House.

In relation to part 1, most of the new offences seem at first sight to make sense and can be justified, though we will test whether they are a fair and proportionate response to the Russia report and the Law Commission recommendations in particular. These are complicated offences, so we will challenge the Bill to see whether the Government have gone far enough, or—more likely—whether they have gone too far. Key concepts will need close scrutiny. The foreign power condition and the foreign power threat activity definition, for example, are pivotal concepts that are also potentially very broad. The whole concept of the safety or interest of the UK could also be challenging and something of a moving feast as well.

As we have heard, clause 23 will need great scrutiny. It disapplies certain extra territorial provisions in relation to offences of encouraging or assisting crime under the Serious Crime Act 2007. The explanatory notes claim that the new paragraph that could be inserted into that Act

“ensures that those working for or on behalf of the intelligence agencies would not be liable for support they provided to activities overseas…where that support was deemed necessary for the exercise of the intelligence agencies’ functions.”

That all sounds benign, but others have made the argument that the provisions, as drafted, go way beyond what is described in those notes. For example, I hope we would all agree that, if Ministers take steps that lead to an unlawful drone killing of a family overseas, or if information is provided that leads to extraordinary rendition and torture, those Ministers should not be able to put themselves completely beyond the rule of law in those circumstances. That is exactly the type of behaviour for which we have been condemning other Governments, so if that is the impact of clause 23 there is a strong case for it to be rethought.

Stewart Hosie Portrait Stewart Hosie
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On that particular point, is it not more perplexing that there is the carve-out of removing the ability to be convicted for certain overseas offences, given that the defence of acting reasonably already exists?

Stuart C McDonald Portrait Stuart C. McDonald
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My hon. Friend makes an important point, which we will have to look at. There are other provisions in legislation that provide protection for those involved in the work of agencies, so we do not think that the case for this new carve-out has been made at all.

Part 2 will also need close scrutiny; we turn here to state threats prevention and investigation measures. I do not think that any of us here should ever feel comfortable about curtailing people’s liberties by ministerial fiat rather than as a punishment for a proven crime. In fairness, I think the Home Secretary recognised that in her speech. We have come to accept that such “prevention and investigation measures” are a necessary part of the fight against terrorism. Our position on TPIMs has been to cut their wings, improve oversight and limit their invasiveness, rather than to do away with them altogether. It may be that we end up with STPIMs as well, but we will probe the Minister closely on the case for requiring them at all.

Ministers always promise—the Home Secretary did today—that powers will not be used inappropriately and excessively. That is welcome, but they should not have the power to do things that are inappropriate or excessive in the first place, because those who follow them into office may take a different view of what is inappropriate or excessive. Restrictions have to be in the Bill rather than in ministerial undertakings.

Part 3 is also a mixed bag. We absolutely see the need for freezing and forfeiting damages that could be utilised for terrorism. There could also be an arguable case for powers to reduce damages in certain national security proceedings, but we will examine that closely. On the other hand, there is a real question over whether courts already have sufficient powers and whether there are sufficient safeguards and processes that prevent undeserving cases from winning damages in the first place, so we will again press the Minister on that.

Much less persuasive is the case for restricting legal aid in utterly unconnected proceedings on the grounds of a past conviction for terrorism. That was raised by the Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Sir Robert Neill), and I am very sympathetic to that while recognising that this is one of the few “England and Wales only” provisions.

As we heard, we need to scrutinise not just what is in the Bill, but what is not—or not yet—in it, and two issues are particularly important. As has been touched on, the Minister and the Home Secretary have set out that the foreign agent registration scheme will be amended. Various complaints have been made about that not being in the Bill as we debate it today.

I return to my experience during the passage of the Nationality and Borders Act 2022—a slightly more acrimonious piece of legislation. Having really important provisions about citizenship and age tests being introduced at pretty short notice in Committee meant that we did not have the chance to ask witnesses about them or to get briefings about them from important organisations.

Something as important as the foreign agent registration scheme needs more than a couple of days before a Committee sitting if we are going to give it proper scrutiny. I am very sympathetic to the idea of allowing us some time on the Floor of the House to debate the details. In principle, the idea is very welcome and the provision is required. However, as we all have acknowledged so far, there will be very tricky lines to draw in the sand between those who should be required to register and those who do not. We must also guard against having a massive Henry VIII clause that simply leaves it to the Government to set out the scheme at a later date. That would not be acceptable either.

Also missing from the Bill—this is apparently not going to be amended by the Government—are updates to the Official Secrets Act 1989 or any concept of a public interest defence to charges under it. As we heard, that Act is almost as out of date as the other laws that we are updating through the Bill. The Law Commission was clear that a public interest defence was required to ensure that the Government were not able to abuse legislation as a

“cloak to mask serious wrongdoing”.

It suggested a statutory commissioner to investigate allegations of wrongdoing or criminality made by civil servants or members of the public where disclosures of such concerns would be an offence under that Act. We support those ideas on the type of provisions that look under the bonnet, as I referred to earlier.

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Stewart Hosie Portrait Stewart Hosie (Dundee East) (SNP)
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Before I start properly and give a general welcome to the Bill, I want to make one observation about how loosely some of it appears to be drafted; I will use clause 5, entitled “Unauthorised entry etc to a prohibited place”, to make the point. The clause involves a stand-alone offence and does not even need the foreign power condition to be met. It states:

“A person commits an offence if…the person…accesses”

or “enters…a prohibited place” and

“that conduct is unauthorised, and…the person knows, or ought reasonably to know, that their conduct is unauthorised.”If I go for a walk on the beach in Monifieth in my constituency, I can walk straight along it and into a military firing range. If the red flag is not flying, I am authorised. If, however, I have got a mile in and someone puts the flag up, has my attendance become unauthorised?

The clause goes on to say:

“A person’s conduct is unauthorised if the person…does not have consent to engage in the conduct from a person”

who is entitled to give it. If there was no sentry in the guard box when I approached and the flag was down and there was therefore no one to ask, would I have a defence?

I do not raise that point to engage in some silly whataboutery, but to make a rather serious point: either some of these clauses are so widely written that they will catch people they were never intended to catch, or they are so complex that any lawyer worth their salt will be able to find loopholes in order to get off the hook people whom these clauses should catch. I am sure that looking into that will be a job for the right hon. and hon. Members on the Bill Committee.

The right hon. Member for North Durham (Mr Jones) mentioned the ISC’s Russia report. I am fortunate to be the second Member who was involved in writing it, and it contained a number of important observations regarding the current state of UK national security legislation. The then Home Secretary told the Committee that, in relation to difficulties countering Russian hostile state activity,

“we don’t have all the powers”.

The Committee was told that it was not illegal to be a foreign agent in the UK. We were told by the director general of MI5 that we needed a new espionage Act because the powers in the OSA had become “dusty” and “ineffective”. As we have heard, the report made the case for a foreign agent or a foreign influence registration scheme, because we were also told:

“today it is not an offence in any sense to be a covert agent of the Russian Intelligence Services in the UK…unless you acquire damaging secrets and give them to your masters.”

I therefore welcome the Bill, which does address some of the issues that were raised, but before we get to some of the specifics of what is in it, there are the two omissions. The first is that there is no reform of the 1989 OSA, even though, as the Chair of the ISC has said, the Committee first called for that around 20 years ago. That means that the Bill is limited to dealing with the threat posed by hostile state actors and will not enhance defences against damaging unauthorised disclosure of sensitive information, even if that has the unintended consequence of assisting a foreign intelligence service. That would continue to fall under the 1989 OSA, which even the Home Secretary has admitted is not fit for purpose.

On an associated point, the Bill does not include a public interest defence—something suggested by the Law Commission—or the creation of the independent statutory commissioner to investigate allegations of serious wrongdoing where public disclosure would otherwise constitute an offence under the 1989 Act. The role of the commissioner may well end up being as important as, or potentially more important than, the public interest defence itself.

The second omission is the absence of the foreign influence registration scheme, which was a key ISC recommendation in the Russia report. Such a provision would make it an offence to be an undeclared foreign intelligence officer in the UK, would increase the transparency of foreign influence and would provide the legislative framework to prosecute, making the UK a more difficult and less permissive environment in which to operate. I share the opinion of all those who said that when the Government bring it forward, we should debate it on the Floor of the House—it is that important. I do not say that so that I can make another speech on the same subject, but because we need to get it absolutely right. If the definitions are wrong, and the authorities cannot prove the foreign power condition, we risk prosecutions falling by the wayside when, in any other circumstance, they would be completed.

I turn to a number of specific measures in the Bill. First, on the proposed new regime of state threats prevention and investigation measures, the ISC supports those in principle. Like TPIMs, they might be an important tool to disrupt an individual engaged in hostile state activity where a prosecution cannot be secured. But there are concerns: due to the fiendishly complex criminal offences in the Bill, the STPIMs could be used routinely, rather than as an exception or last resort, and therefore undermine some of the new measures in the Bill.

Clause 23 and the proposed amendment to the Serious Crime Act 2015, which were raised by my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) and the right hon. and learned Member for Kenilworth and Southam (Sir Jeremy Wright), effectively disapply the offences of encouraging or assisting offences overseas when the activity is deemed necessary for the proper exercise of any function of an intelligence service or armed forces. Given that there is already the defence of acting reasonably, that carve-out is simply not justified.

To speak personally—not on behalf of the ISC—I refer back to my previous point about there being no inclusion of a public interest defence for releasing unauthorised information. Not having that defence, while at the same time disapplying from the intelligence services a number of offences where an alternative defence already exists, might make the Bill appear to some people to be inconsistent, a little lopsided and perhaps weighted too much towards the state. There is broad consensus in the Chamber to carry the people with us and not do things that are unnecessarily provocative and that, frankly, would not make for such a good Bill anyway.

I turn to the European convention on human rights memorandum prepared by the Home Office and the Ministry of Justice for the Bill. On this, I am speaking personally. Paragraph 10 says:

“The purpose of the prohibited places offences is to provide protection to sites, particularly defence establishments…these offences do not seek to interfere with freedom of assembly and, as a general principle, in particular do not seek to restrict legitimate protest.”

I very much welcome that, but the next paragraph says:

“Protest activity at a prohibited place could potentially constitute a prohibited places offence. For example, a protest that sought to blockade a military airbase. However, the Government considers that any interference with Article 11 (freedom of assembly) would be justified in the interests of national security, territorial integrity or public safety, or for the prevention of disorder or crime. The clause 4 offence requires that the protesters know, or reasonably ought to know, that their protest activity is for a purpose that is prejudicial to the SOIOTUK”—

safety or interests of the UK —

“so being rationally connected to those public interests.”

If the Government genuinely believe that any interference with article 11 on freedom of assembly would be justified in the interests of national security, territorial integrity or public safety, they will have a job to do to explain why that does not seek to restrict legitimate public protest. One can easily envisage how legislation like that could be directed at the Faslane peace camp or, historically, the Greenham Common peace camp. Not everyone will agree with those causes—they may not be everybody’s cup of tea—but we need to be extremely careful not to produce such an overbearing, overweening piece of legislation that it can be used not against enemies who are seeking to disrupt our national life, but against people who are, whether we agree with them or not, protesting legitimately.

Bob Seely Portrait Bob Seely
- Hansard - - - Excerpts

The right hon. Gentleman is making a very important and valuable point. The Greenham Common people, for instance, absolutely had the right to protest. However, it is also worth making the point that the Soviets were indirectly funding quite a number of naive fellow-traveller organisations. At some point, under this law, an illegality could be committed because the people doing the overt influencing, the covert paying for these front organisations, would be committing a criminal act, if not the, perhaps, naive or hopeful people who were on the frontline and unaware of how they were being funded. So it is quite complex.

Stewart Hosie Portrait Stewart Hosie
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It is complex, and I am glad that the hon. Gentleman has raised that point, because all the discussion that we had earlier about foreign agent or foreign influence registration was precisely about capturing the crime of seeking to influence. We should not be seeking to criminalise legitimate protest. I do not think that that should be a contentious thing to say.

Those issues aside, we are at least seeing some progress in the modernisation of what was a very creaky and outdated system, but—as I am sure the Minister has gathered from all that has been said today—it is clearly work in progress. Let me repeat that the Government will have a bit of explaining to do if they are to convince the House that if this complex Bill becomes law, some of it will actually be enforceable.

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Damian Hinds Portrait Damian Hinds
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I hear what my right hon. and learned Friend says, and I fully acknowledge not only his legal expertise overall, but specifically how much thought he has put into this subject and how he has written upon it.

Stewart Hosie Portrait Stewart Hosie
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Will the Minister give way?

John Hayes Portrait Sir John Hayes
- Hansard - - - Excerpts

Will the Minister give way?

Damian Hinds Portrait Damian Hinds
- Hansard - - - Excerpts

Yes, and then I can deal with both questions at once.

Stewart Hosie Portrait Stewart Hosie
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Will the Minister accept then—this point was made in the debate—that having the independent statutory commissioner receive information, so avoiding it being put into the public domain, is as important a part of the package as the public interest defence itself?

Damian Hinds Portrait Damian Hinds
- Hansard - - - Excerpts

I give way to my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes).

National Security Bill (First sitting) Debate

Full Debate: Read Full Debate
Department: Home Office

National Security Bill (First sitting)

Stewart Hosie Excerpts
Committee stage
Thursday 7th July 2022

(1 year, 11 months ago)

Public Bill Committees
Read Full debate National Security Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 7 July 2022 - (7 Jul 2022)
Stewart Hosie Portrait Stewart Hosie (Dundee East) (SNP)
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Q Mr Hall, you said that the agencies would think very carefully before using an STPIM. I think that is correct. You have also said that the evidential test for deploying an STPIM is self-evidently lower than securing a criminal conviction. Do you give any credence to the argument that the STPIMs might move from being measures of last resort to being used more frequently because they are easier to deploy? Do they therefore undermine some of the criminal provisions in the Bill?

Jonathan Hall: I do not think so, if the regime operates as it is intended to, because the Bill replicates the obligation for the Secretary of State to consider whether it is possible to prosecute in the first place. I do not think in practice that they will become a measure of first resort, just because they are so resource-intensive and complicated. I suppose it is possible that, unlike some of the terrorist TPIM subjects who are individuals without a huge amount of access to resources, some of the individuals who may be under an SPIM could be backed by a huge amount of resources, which means that there will be perhaps more significant litigation than there has been with TPIMs; I do not know.

The point is that you are dealing with people at a lower level than beyond reasonable doubt. Intelligence is fragmentary and it is possible to make a mistake. It is always important to bear that in mind, with a degree of modesty and humility, when these really strong measures are being imposed.

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

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

Holly Lynch Portrait Holly Lynch
- Hansard - - - Excerpts

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

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

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Stewart Hosie Portrait Stewart Hosie
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Q Sir Alex, this Bill certainly addresses foreign powers and the actions that they will undertake, but it does not update the Official Secrets Act 1989. That leaves us, or may leave us, in the bizarre position where someone discloses something that may inadvertently help a foreign power, but we have ended up with two different legal regimes and two different sentencing regimes for something that may deliver the same negative impact. If we assume that the Government are not at this point going to redraft the 1989 OSA, and we take for granted that they will introduce a foreign agent registration scheme of some sort, is there any other aspect of the 1989 Act that should definitely be included by amendment in this legislation later?

None Portrait The Chair
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Just before we get the answer, I will just flag up that this may be outside of the scope of this Bill, but we will allow the discussion to proceed, because we have not made a precise ruling on it as the co-Chairs of this Committee. So please proceed, but there the potential for it not to be within the scope.

Sir Alex Younger: My answer is a less eloquent version of that, which is that I have talked about the Government about this. Essentially, they say that they think it is too complicated to work this issue through in the timescale that this Bill is operating in. I am not a lawyer; I apologise. I do not have a detailed answer to your question.

Professor Sir David Omand: I believe that the powers in the Bill are not only necessary, but urgent. In addition to everything that Alex was saying, we are living through a digital revolution. The digital harms are there. I would hate to see the powers in this Bill held up, and possibly even miss their legislative slot, while quite difficult work is done on the 1989 Act.

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Sally-Ann Hart Portrait Sally-Ann Hart
- Hansard - - - Excerpts

Sir Alex?

Sir Alex Younger: I do not have anything to add to that.

Stewart Hosie Portrait Stewart Hosie
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Q I just want to press further on clause 23. You said that the absence of a carve-out to protect officers could have a chilling effect. Given that we have substantial data sharing, particularly with our closest partners, that the internal safeguards are very robust, and that there is already the defence of acting reasonably—you made the point that this would be on an order to do so—I am not clear yet why the carve-out in clause 23 is as necessary as you suggest it is.

Sir Alex Younger: First of all, “carve-out” means different things to different people, but there is a wild idea that this is a granting of immunity that means we can behave willy-nilly. You will know from your Committee experience that this is not true. I want to make that really clear. The reality at the end of all this—we have had the theoretical versus practical conversation already—is that there exists a risk that individual UK IC officers will face criminal sanction for doing their job. I do not think that risk should exist. That is fundamentally where I am. You can decide as politicians that it is better than what is being proposed by the Government, but I am saying that I do not think it is compatible with a healthy sharing regime of the sort that produces the security benefits I have outlined.

Ben Everitt Portrait Ben Everitt
- Hansard - - - Excerpts

Q Sticking with that point, Sir Alex, in an earlier answer you referred to Australia having a much broader, greater carve-out for their intelligence officers to keep them safe and do their job legally. Could you expand on that?

Sir Alex Younger: I cannot. I am sorry, but it happened just at the end of my time. I know from conversations with my Australian colleagues that they are very satisfied with the legislation that exists, in so far as that it deals with this issue. I would recommend looking into that yourself or speaking to the Australians. I do know that it is broader than what we are proposing here today. I am sorry I cannot be more helpful.

National Security Bill (Seventh sitting) Debate

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Department: Home Office

National Security Bill (Seventh sitting)

Stewart Hosie Excerpts
Committee stage
Tuesday 19th July 2022

(1 year, 11 months ago)

Public Bill Committees
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Kevan Jones Portrait Mr Jones
- Hansard - - - Excerpts

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 Portrait Stewart Hosie (Dundee East) (SNP)
- Hansard - -

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).

Stephen McPartland Portrait Stephen McPartland
- Hansard - - - Excerpts

I am grateful for Members’ contributions and look forward to trying to answer as many of the questions as I can. I will start with the clause and then come to the amendment and some of the questions.

Part 2 and clause 32 mirror the Terrorism Prevention and Investigation Measures Act 2011—TPIM—and allow the Secretary of State to impose by notice

“specified prevention and investigation measures on an individual”

if specific conditions are met; I will refer to them as STPIMs going forward. The STPIMs mirror the equivalent counter-terrorism measures: well-established tools that have been in use for over 10 years and have been subject to vigorous examination by the courts, including with regard to European convention on human rights compliance. The courts have never found that a TPIM in its entirety should not have been imposed, or that any of the provisions of the TPIM legislative framework are not ECHR compliant. That should give us all reassurance, and give Parliament confidence that the measures will be applied sparingly and only where necessary and proportionate.

I will not go through the exhaustive list, but the Government have publicly committed to provide operational partners with the tools that they need to combat state threats. To be very clear, STPIMs are a tool of last resort; the Government’s preference is to prosecute under any means possible first and foremost, and STPIMs are to be used only when all else has failed and no other options are available to us. I hope that that provides some reassurance as well.

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Stephen McPartland Portrait Stephen McPartland
- Hansard - - - Excerpts

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.

Stewart Hosie Portrait Stewart Hosie
- Hansard - -

Before the Minister moves on, can I add to the point that the right hon. Member for North Durham made about polygraph tests? The Minister said that polygraph tests will not be used to secure a criminal conviction; that is true but, as he said, the STPIMs are measures of last resort in lieu of a conviction if it is not possible to secure one. The polygraph measures in paragraph 12(1)(a)(ii) of schedule 4 refer to

“assessing whether any variation of the specified measures is necessary for purposes connected with preventing or restricting the individual’s involvement in foreign power threat activity”.

A STPIM is not a criminal conviction, then, but it is in lieu of a criminal conviction; therefore, the Minister cannot be right when he says the polygraph test would not be used to do something, because it could well be used to vary the conditions and possibly to toughen the STPIM—

None Portrait The Chair
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Order. Interventions should be brief.

Stewart Hosie Portrait Stewart Hosie
- Hansard - -

I just wonder if the Minister could go a bit further on that point.

Stephen McPartland Portrait Stephen McPartland
- Hansard - - - Excerpts

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.

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Stephen McPartland Portrait Stephen McPartland
- Hansard - - - Excerpts

I am going to give in to the hon. Member and say I think that the standard of the balance of probabilities test is slightly higher than reasonable belief, but we are dealing with incredibly sophisticated actors who are very highly trained. In this country, reasonable belief is used throughout in relation to war, and we have gone with the reasonable belief definition because of the nature of the people we are dealing with, the nature of the threats to national security and the nature of state threats, but I accept the point the hon. Gentleman is making.

Stewart Hosie Portrait Stewart Hosie
- Hansard - -

If the Minister is saying that the “reasonably believes” test in conditions A, C and D is appropriate for the reasons he has just given, why is condition B so hard and fast? The Bill states:

“Condition B is that some or all of the foreign power threat activity in which the individual is or has been involved is new foreign power threat activity.”

There is no evidential test, such as the Secretary of State having a reasonable belief about some or all of the foreign power activity. What is the rationale for having the slightly reduced test in conditions A, C and D, but no test at all in condition B?

Stephen McPartland Portrait Stephen McPartland
- Hansard - - - Excerpts

As I am a kind and forgiving person, I will answer and say that we have condition B because, throughout the legislation, someone has to have engaged in activity on behalf or in support of a foreign power. That is one of the key tests throughout the Bill, the foreign power test. That is the reason for it.

My view is that “reasonable belief” strikes the right balance, and the threshold mirrors that of TPIMs, which have recently been amended by Parliament in the Counter-Terrorism and Sentencing Act 2021. I ask the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to withdraw the amendment.

National Security Bill (Eleventh sitting) Debate

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Department: Home Office

National Security Bill (Eleventh sitting)

Stewart Hosie Excerpts
Committee stage
Thursday 8th September 2022

(1 year, 9 months ago)

Public Bill Committees
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Maria Eagle Portrait Maria Eagle (Garston and Halewood) (Lab)
- Hansard - - - Excerpts

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.

Stewart Hosie Portrait Stewart Hosie (Dundee East) (SNP)
- Hansard - -

Further to that point of order, Ms Ali. The right hon. Member for North Durham made the request for additional time. Given how much is yet to be done, in particular the most contentious new clauses—contentious in the minds of some perhaps—especially relating to the public interest defence, which may take substantial time to deal with fully, will proper consideration be given to replacing at least the day lost earlier this week?

None Portrait The Chair
- Hansard -

May I ask the Minister to respond?

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Holly Lynch Portrait Holly Lynch (Halifax) (Lab)
- Hansard - - - Excerpts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Stewart Hosie Portrait Stewart Hosie
- Hansard - -

I welcome the Minister to his place.

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

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

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

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

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

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

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

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

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

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

The same 28 days is used in relation to

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

the Scottish High Court of Appeal—

“against a conviction on indictment in Scotland”.

There is a 21-day deadline on

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

There is a 14-day time limit on

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

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

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

Tom Tugendhat Portrait Tom Tugendhat
- Hansard - - - Excerpts

Let me answer some of the questions that have just come up. The hon. Member for Halifax and the right hon. Member for East Dunbartonshire, if I am correct—

Stewart Hosie Portrait Stewart Hosie
- Hansard - -

Dundee East.

Tom Tugendhat Portrait Tom Tugendhat
- Hansard - - - Excerpts

Forgive me; the right hon. Member for Dundee East. They have raised some interesting points. The first is on the notice to be revived without new evidence of a lapse. The reason for that variation is to allow for prison sentencing. Should an individual find themselves being sentenced for a crime in the middle of an STPIM, that allows the STPIM to be paused for the purpose of imprisonment and revived afterwards, without having to go through the whole process again. The purpose is practical, rather than that of having a massive legal effect. Therefore, I believe it is entirely proportionate with the requirements of security.

Stewart Hosie Portrait Stewart Hosie
- Hansard - -

That seems a slightly illogical formulation. If the prison sentence is substantially longer than the maximum the STPIM could provide for, it seems preposterous that the remainder of the STPIM’s time would be added to the end of a sentence once it was fully discharged. That does not appear to be fully thought through.

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Holly Lynch Portrait Holly Lynch
- Hansard - - - Excerpts

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

Stewart Hosie Portrait Stewart Hosie
- Hansard - -

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?

Kevan Jones Portrait Mr Jones
- Hansard - - - Excerpts

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.

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Holly Lynch Portrait Holly Lynch
- Hansard - - - Excerpts

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

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

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

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

Stewart Hosie Portrait Stewart Hosie
- Hansard - -

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?

Kevan Jones Portrait Mr Jones
- Hansard - - - Excerpts

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.

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While I very much welcome that, I am certainly not overly excited by it. That is on clause 49, and we have consistently argued that clause 49 must be extended. This is one of the areas that we feel most strongly about, so, with that in mind, I urge the Minister to reconsider whether he will support new clause 2.
Stewart Hosie Portrait Stewart Hosie
- Hansard - -

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.

Kevan Jones Portrait Mr Jones
- Hansard - - - Excerpts

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.

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Holly Lynch Portrait Holly Lynch
- Hansard - - - Excerpts

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

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

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

Stewart Hosie Portrait Stewart Hosie
- Hansard - -

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

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

Tom Tugendhat Portrait Tom Tugendhat
- Hansard - - - Excerpts

It is quite clear that any order given must have consequences if it is disobeyed—I do not think anyone in this room would disagree with that—and it is important that the penalties for disobedience against a lawfully given order must be proportionate. The penalties are proportionate, and it is normal to have an increased penalty for an aggravated offence, whatever that may be. In the circumstances, travelling abroad would be considered an aggravation and therefore have a greater penalty attached. That is entirely appropriate, so it is entirely reasonable to have that increased sentence.

Question put and agreed to.

Clause 50 accordingly ordered to stand part of the Bill.

Clause 51

Powers of entry etc

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

--- Later in debate ---
Holly Lynch Portrait Holly Lynch
- Hansard - - - Excerpts

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

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

“The warrant may be executed by any constable.”

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

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

Stewart Hosie Portrait Stewart Hosie
- Hansard - -

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

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

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

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

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

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

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

Tom Tugendhat Portrait Tom Tugendhat
- Hansard - - - Excerpts

The hon. Member for Halifax asked about the use of the term “constable”. It is standard, and she will realise that mostly it will be counter-terrorist police who lead on STPIMs, and who the most appropriate person is will be reviewed by the operational commander. The use of the term “constable” and the equivalent ranks in other forces and relevant services is standard for these purposes.

The provision on when a warrant may be executed is operationally beneficial to those who may have reason to delay or have to wait for a window to open when action can be taken. I will not go into the potential operational requirements on any element, but clearly they will vary: in some circumstances, it will be appropriate to act immediately; in others, it may be necessary to wait.

The provision on retention for

“as long as is necessary”

is also standard, including in the Police and Criminal Evidence Act 1984. The Bill also contains provisions allowing people to apply to have property returned.

Question put and agreed to.

Clause 51 accordingly ordered to stand part of the Bill.

Schedule 8 agreed to.

Clause 52

Fingerprints and samples

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

--- Later in debate ---
Holly Lynch Portrait Holly Lynch
- Hansard - - - Excerpts

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

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

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

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

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

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

Stewart Hosie Portrait Stewart Hosie
- Hansard - -

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

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

Tom Tugendhat Portrait Tom Tugendhat
- Hansard - - - Excerpts

I do appreciate that elements are being raised about which I will write to various Committee members, and I will follow up on areas that I have not covered in detail.

Although the operational use of biometrics remains the same across provisions, we are taking a different approach to the powers provided under STPIMs and the powers in schedule 3. That ensures the right balance and proportionality in tackling foreign state threat activity while protecting individuals’ right to privacy. Although there is the option to make a national security determination under both regimes, under our police powers the initial retention period is longer than for STPIMs to reflect the seriousness of an arrest made for suspected involvement in foreign power threat activity.

Following arrest for involvement in foreign power threat activity, an individual’s biometric data may be retained for three years, with the option of extending that, irrespective of whether there is no further action, or whether they are charged or acquitted. Certain national security offences under this Bill will be added to the list of qualifying offences in PACE to reflect the seriousness of the offence that justifies longer retention periods.

Question put and agreed to.

Clause 52 accordingly ordered to stand part of the Bill.

Schedule 9

Fingerprints and samples

Amendments made: 25, in schedule 9, page 133, line 1, leave out paragraph (f).

This amendment removes paragraph (f) from a list of provisions under which fingerprints, data and other samples may be taken. Paragraph (f) is not needed because its contents are already covered by paragraph (g).

Amendment 26, in schedule 9, page 133, line 9, at end insert—

“(ia) any of the fingerprints, data or samples obtained under paragraph 1 or 4 of Schedule 6 to the Terrorism Prevention and Investigation Measures Act 2011, or information derived from such a sample;”.

This amendment inserts a reference to the provisions of the Terrorism Prevention and Investigation Measures Act 2011 under which fingerprints, data or samples may be taken, so that fingerprints, data or samples obtained under paragraph 1 or 4 of Schedule 9 may be checked against fingerprints, data or samples taken under that Act.

Amendment 27, in schedule 9, page 133, line 13, leave out paragraph (k).

This amendment removes paragraph (k) from a list of provisions under which fingerprints, data and other samples may be taken. Paragraph (k) is not needed because its contents are already covered by paragraph (g).

Amendment 28, in schedule 9, page 133, line 30, after “paragraph 8” insert “, 8A”.

This amendment is consequential on Amendment 31.

Amendment 29, in schedule 9, page 134, line 4, at beginning insert—

“(Z1) This paragraph applies to paragraph 6 material taken from, or provided by, an individual who has no previous convictions or (in the case of England and Wales or Northern Ireland) only one exempt conviction.”

This amendment is consequential on Amendment 31.

Amendment 30, in schedule 9, page 134, line 4, leave out “Paragraph 6” and insert “The”.

This amendment is consequential on Amendment 29.

Amendment 31, in schedule 9, page 134, line 26, at end insert—

“8A (1) This paragraph applies to paragraph 6 material taken from, or provided by, an individual—

(a) who has been convicted of a recordable offence (other than a single exempt conviction) or of an offence in Scotland which is punishable by imprisonment, or

(b) who is so convicted before the end of the period within which the material may be retained by virtue of paragraph 8.

(2) The material may be retained indefinitely.

8B (1) For the purposes of paragraphs 8 and 8A an individual is to be treated as having been convicted of an offence if—

(a) in relation to a recordable offence in England and Wales or Northern Ireland—

(i) the individual has been given a caution or youth caution in respect of the offence which, at the time of the caution, the individual has admitted,

(ii) the individual has been found not guilty of the offence by reason of insanity, or

(iii) the individual has been found to be under a disability and to have done the act charged in respect of the offence,

(b) the individual, in relation to an offence in Scotland punishable by imprisonment, has accepted or has been deemed to accept—

(i) a conditional offer under section 302 of the Criminal Procedure (Scotland) Act 1995,

(ii) a compensation offer under section 302A of that Act,

(iii) a combined offer under section 302B of that Act, or

(iv) a work offer under section 303ZA of that Act,

(c) the individual, in relation to an offence in Scotland punishable by imprisonment, has been acquitted on account of the individual’s insanity at the time of the offence or (as the case may be) by virtue of section 51A of the Criminal Procedure (Scotland) Act 1995,

(d) a finding in respect of the individual has been made under section 55(2) of the Criminal Procedure (Scotland) Act 1995 in relation to an offence in Scotland punishable by imprisonment,

(e) the individual, having been given a fixed penalty notice under section 129(1) of the Antisocial Behaviour etc. (Scotland) Act 2004 in connection with an offence in Scotland punishable by imprisonment, has paid—

(i) the fixed penalty, or

(ii) (as the case may be) the sum which the individual is liable to pay by virtue of section 131(5) of that Act, or

(f) the individual, in relation to an offence in Scotland punishable by imprisonment, has been discharged absolutely by order under section 246(3) of the Criminal Procedure (Scotland) Act 1995.

(2) Paragraphs 8, 8A and this paragraph, so far as they relate to individuals convicted of an offence, have effect despite anything in the Rehabilitation of Offenders Act 1974 or the Rehabilitation of Offenders (Northern Ireland) Order 1978 (S.I. 1978/1908 (N.I. 27)).

(3) But a person is not to be treated as having been convicted of an offence if that conviction is a disregarded conviction or caution by virtue of section 92 or 101A of the Protection of Freedoms Act 2012.

(4) For the purposes of paragraphs 8 and 8A—

(a) an individual has no previous convictions if the individual has not previously been convicted—

(i) in England and Wales or Northern Ireland of a recordable offence, or

(ii) in Scotland of an offence which is punishable by imprisonment, and

(b) if the individual has previously been convicted of a recordable offence in England and Wales or Northern Ireland, the conviction is exempt if it is in respect of a recordable offence, other than a qualifying offence, committed when the individual was aged under 18.

(5) In sub-paragraph (4) ‘qualifying offence’—

(a) in relation to a conviction in respect of a recordable offence committed in England and Wales, has the meaning given by section 65A of the Police and Criminal Evidence Act 1984, and

(b) in relation to a conviction in respect of a recordable offence committed in Northern Ireland, has the meaning given by Article 53A of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)).

(6) For the purposes of sub-paragraph (4)—

(a) a person is to be treated as having previously been convicted in England and Wales of a recordable offence if—

(i) the person has previously been convicted of an offence under the law of a country or territory outside the United Kingdom, and

(ii) the act constituting the offence would constitute a recordable offence under the law of England and Wales if done there (whether or not it constituted such an offence when the person was convicted);

(b) a person is to be treated as having previously been convicted in Northern Ireland of a recordable offence if—

(i) the person has previously been convicted of an offence under the law of a country or territory outside the United Kingdom, and

(ii) the act constituting the offence would constitute a recordable offence under the law of Northern Ireland if done there (whether or not it constituted such an offence when the person was convicted);

(c) a person is to be treated as having previously been convicted in Scotland of an offence which is punishable by imprisonment if—

(i) the person has previously been convicted of an offence under the law of a country or territory outside the United Kingdom, and

(ii) the act constituting the offence would constitute an offence punishable by imprisonment under the law of Scotland if done there (whether or not it constituted such an offence when the person was convicted);

(d) the reference in sub-paragraph (4)(b) to a qualifying offence includes a reference to an offence under the law of a country or territory outside the United Kingdom where the act constituting the offence would constitute a qualifying offence under the law of England and Wales if done there or (as the case may be) under the law of Northern Ireland if done there (whether or not it constituted such an offence when the person was convicted).

(7) For the purposes of paragraph 8, 8A or this paragraph—

(a) ‘offence’, in relation to any country or territory outside the United Kingdom, includes an act punishable under the law of that country or territory, however it is described;

(b) a person has in particular been convicted of an offence under the law of a country or territory outside the United Kingdom if—

(i) a court exercising jurisdiction under the law of that country or territory has made in respect of such an offence a finding equivalent to a finding that the person is not guilty by reason of insanity, or

(ii) such a court has made in respect of such an offence a finding equivalent to a finding that the person is under a disability and did the act charged against the person in respect of the offence.

(8) If an individual is convicted of more than one offence arising out of a single course of action, those convictions are to be treated as a single conviction for the purposes of calculating under paragraph 8 or 8A whether the individual has been convicted of one offence.”

This amendment and Amendment 36 make provision for the indefinite retention of fingerprints, data and other samples taken from a person who is or previously has been convicted of a specified offence.

Amendment 32, in schedule 9, page 134, line 40, at end insert—

“(d) the Chief Constable of the Ministry of Defence Police,

(e) the Chief Constable of the British Transport Police Force, or

(f) the Director General of the National Crime Agency.”

This amendment enables the Chief Constables of the Ministry of Defence Police and the British Transport Police Force and the Director General of the National Crime Agency to make a national security determination in relation to fingerprints, data and other samples.

Amendment 33, in schedule 9, page 135, line 32, after “8” insert “, 8A”.

This amendment is consequential on Amendment 31.

Amendment 34, in schedule 9, page 137, line 34, leave out paragraphs (h) to (j).

This amendment removes reference to the Royal Navy Police, the Royal Military Police and the Royal Air Force Police from the definition of “police force”. Those forces should not be included in that definition because members of those forces do not have the power to obtain fingerprints, data or other samples under Schedule 9.

Amendment 35, in schedule 9, page 137, leave out lines 38 to 40.

This amendment removes reference to the tri-service serious crime unit from the definition of “police force”. Members of that unit should not be included in that definition because they do not have the power to obtain fingerprints, data or other samples under Schedule 9.

Amendment 36, in schedule 9, page 137, line 40, at end insert—

“‘recordable offence’ has—

(a) in relation to a conviction in England and Wales, the meaning given by section 118(1) of the Police and Criminal Evidence Act 1984, and

(b) in relation to a conviction in Northern Ireland, the meaning given by Article 2(2) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12));”.

See Amendment 31.

Amendment 37, in schedule 9, page 138, leave out lines 5 to 19 and insert—

“‘responsible chief officer of police’ means—

(a) in relation to fingerprints or samples taken by a constable of the Ministry of Defence Police, or a DNA profile derived from a sample so taken, the Chief Constable of the Ministry of Defence Police;

(b) in relation to fingerprints or samples taken by a constable of the British Transport Police Force, or a DNA profile derived from a sample so taken, the Chief Constable of the British Transport Police Force;

(c) otherwise—

(i) in relation to fingerprints or samples taken in England or Wales, or a DNA profile derived from a sample so taken, the chief officer of police for the relevant police area;

(ii) in relation to relevant physical data or samples taken or provided in Scotland, or a DNA profile derived from a sample so taken, the chief constable of the Police Service of Scotland;

(iii) in relation to fingerprints or samples taken in Northern Ireland, or a DNA profile derived from a sample so taken, the Chief Constable of the Police Service of Northern Ireland;”.

This amendment and Amendment 38 make provision identifying the responsible chief officer or police in relation to fingerprints or samples taken by a constable of the Ministry of Defence Police or the British Transport Police Force.

Amendment 38, in schedule 9, page 138, line 22, at end insert—

“(2) In the definition of ‘responsible chief officer of police’ in sub-paragraph (1), in paragraph (c)(i), ‘relevant police area’ means the police area—

(a) in which the material concerned was taken, or

(b) in the case of a DNA profile, in which the sample from which the DNA profile was derived was taken.”—(Tom Tugendhat.)

See Amendment 37.

Schedule 9, as amended, agreed to.

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

National Security Bill (Twelfth sitting) Debate

Full Debate: Read Full Debate

National Security Bill (Twelfth sitting)

Stewart Hosie Excerpts
Committee stage
Thursday 8th September 2022

(1 year, 9 months ago)

Public Bill Committees
Read Full debate National Security Act 2023 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 8 September 2022 - (8 Sep 2022)
Stewart Hosie Portrait Stewart Hosie (Dundee East) (SNP)
- Hansard - -

The Minister has laid out clearly what clause 53 does. It sets out the requirements for notices to be served and for how long they are in force, and it makes it clear that the individual is not bound unless they have been personally served the notice. I have one question: although the list of different sorts of notices is very clear in the legislation, are individuals to be told in the documents with which they are served of their rights to challenge, seek a revocation or seek a variation of the notice served upon them?

Tom Tugendhat Portrait Tom Tugendhat
- Hansard - - - Excerpts

I hope the right hon. Gentleman will forgive me, but I will have to write to him on that question. As for the question about the rank of the officer, a constable or any warranted officer is the answer.

Question put and agreed to.

Clause 53 accordingly ordered to stand part of the Bill.

Clause 54

Contracts

--- Later in debate ---
Tom Tugendhat Portrait Tom Tugendhat
- Hansard - - - Excerpts

Clause 54 grants the Secretary of State authority to use third parties to assist in relation to any form of monitoring in connection with the measures specified in part 2 notices. As the hon. Member for Halifax rightly identified, the electronic monitoring of compliance with the residence measure, such as by entering into a contract with a third party to provide tagging services, is exactly the form of contract that is envisioned. In practice, the Government will ensure efficiency by aligning, where possible, with existing contracts, and therefore may use ones that are already set up for comparable provisions in law, such as TPIMs.

The intention of the amendment is to seek clarity about what types of contracts the Home Secretary might enter into in relation to STPIMs and how she intends to exercise the power. Though the Government do not feel that publishing further detail on any such contract is necessary, I absolutely assure the Committee that the clause is not designed to do anything to outsource intelligence services. Instead, it is a standard approach that we have with TPIMs, where in some instances it is necessary for the Government to outsource some services. An example of such is the contract for ankle monitoring services to which the hon. Lady referred. She will be aware of my own views on outsourcing technology to various states; she can be absolutely assured of my own interest in making sure I prosecute this.

Stewart Hosie Portrait Stewart Hosie
- Hansard - -

I understand perfectly well what the Minister is saying about the occasional need to outsource. I also understand why he would say that much of the contractual information should not be released. However, there are valid questions about the clause. What information would a third-party contracting company have about the subject? For example, would that company be told that the subject may not even have been convicted of committing a crime, but was the recipient of a state threats prevention and investigation measures order?

Tom Tugendhat Portrait Tom Tugendhat
- Hansard - - - Excerpts

As the right hon. Member will be aware, in all such circumstances there will be a great variety, because what might be shared with somebody providing one service may not be the same as what is shared with another. It is also evident that the normal regulation on protecting privacy would apply where appropriate, and the Government would therefore abide with all due legal requirements. I cannot give a further commitment than that, for the obvious reason that the variety in which such contracting would apply is enormous. I can therefore only assure him that the existing previsions would endure.

--- Later in debate ---
Tom Tugendhat Portrait Tom Tugendhat
- Hansard - - - Excerpts

Clause 56 gives the meaning of numerous terms used throughout this part of the Bill. Subsection (2) sets out that the Secretary of State can consider evidence that was relied upon for the original part 2 notice when assessing whether to continue with measures or to impose new measures on a subject. This will be alongside evidence of engagement in

“new foreign power threat activity”,

where relevant for a new notice. This ensures that the Secretary of State is able to consider all the relevant information that may imply a pattern of behaviour. It does not weaken what we discussed when we considered clause 33: evidence of

“new foreign power threat activity”

is required if a further part 2 notice is to be applied after five years.

Subsection (3) provides that

“if a Part 2 notice is revived under section 42(6)”

when considering whether there is

“new foreign power threat activity”,

which could allow for a new STPIM after five years, that new activity must take place at some point after the original imposition of the measures and not necessarily after the revival.

Stewart Hosie Portrait Stewart Hosie
- Hansard - -

I want to raise one issue in relation to clause 56(5), which relates to a provision in cases in which the Secretary of State does not bother to respond to an application to vary or revoke a part 2 notice. That is treated as a decision not to vary, but from when? Given the importance of the tight timescales within which to lodge appeals, in respect of a decision not to vary when the Secretary of State chooses not to respond, does the clock start ticking when the application is sent to the Secretary of State, when it is received at the ministerial office or when the Secretary of State takes a decision not to respond? When does the clock start ticking to allow subsequent action in the courts to be taken if the Secretary of State simply chooses not to respond and that is taken to mean a thing?

Tom Tugendhat Portrait Tom Tugendhat
- Hansard - - - Excerpts

The clock does not start ticking until the notice is enforced. At that point, the timing begins.

Question put and agreed to.

Clause 56 accordingly ordered to stand part of the Bill.

Clause 57

National security proceedings

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

--- Later in debate ---
Tom Tugendhat Portrait Tom Tugendhat
- Hansard - - - Excerpts

The right hon. Member will know that I am going to write to him about that, because he raises some interesting questions. I will come back to him.

At the freezing stage, the court is looking at essentially the immediate term, given that a freezing order lasts for two years, so the court will want to be satisfied that the claimant’s involvement in terrorism is current and is such that an award of damages is at real risk of being used at once, or within a short timescale, for terrorist purposes. However, the court has the comfort of knowing that the money is only frozen. It may be given to the claimant at a future date if the security services assess the risk as having abated sufficiently, or if the court hearing a later application overturns this.

At the forfeiture stage, the stakes are much higher: the claimant’s award would be permanently withheld. The court knows that the evidence of risk will need to justify that greater intervention. Evidence of entrenchment, of a markedly poor outlook, and that, given their activities, they are always likely to represent a risk will no doubt be uppermost in a court’s mind in a way they may not be for a freezing order. Questions of alternatives to forfeiture such as periodical payments to care providers in order to remove that risk will no doubt also come to the fore. But, where the strength of the evidence cannot be avoided and points to that risk, it is right that the money is forfeited. The court will also be aware that a forfeiture order interferes with property rights under the European convention on human rights and it will need to know that interference is proportionate to the risks, in the context of the need to protect the public.

It is important to note that the Bill does not fetter a court’s discretion in considering whether the risk has been proven. For the finality of the forfeiture application, the court will be able to require the Government to meet the evidentiary burden that it considers to be commensurate to it. The claimant will therefore have a total of three chances to fully challenge in court the evidence that the Government present, before forfeiture can occur. That test does not therefore reflect a low standard; instead, it reflects the right standard.

There are already terrorist freezing provisions, but the process is complicated and the compensation is not frozen at source. As I have said, and to further reassure the Committee, this measure includes provision that a court will have discretion to award part of the damages. This is an equitable measure designed to ensure that a court may award a sum to cover, say, legal expenses or essential care costs in the circumstances of an individual case. We trust our courts and judges to make these assessments while being mindful of the context of public protection. I ask the right hon. Member for Dundee East to withdraw the amendment and I will be communicating with the right hon. Member for North Durham again as well.

Stewart Hosie Portrait Stewart Hosie
- Hansard - -

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?

Kevan Jones Portrait Mr Jones
- Hansard - - - Excerpts

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 Portrait Stewart Hosie
- Hansard - -

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.

Jess Phillips Portrait Jess Phillips
- Hansard - - - Excerpts

I want to speak to the amendment and to the desire of my hon. Friend the Member for Garston and Halewood, who is momentarily not in her place, to speak to a case, although the Minister said that the schedule was not based on any particular case.

The right hon. Member for Dundee East asked about other moneys, specifically a lottery win. Why should the schedule be just for damages? What if we thought somebody’s lottery win, for example, was going to be used? That seems outrageous and unlikely, except it happened to me. The only time I have ever had any personal relations with anti-terror police was when they turned up mob-handed to my office, because of threats to my life that I had received from inside a prison. The threats were jihadist in nature and largely about how the person in prison—obviously a risk factor, on the balance of probabilities—was working with people on the outside to kill me and my family. The terror police came and we undertook a case against the man.

It came to pass—through the process of convicting the man, who is now in prison for a term of another 10 years for the crime against me—that the reason why the police had such grave concerns, even though they were not sure whether he was part of a particular network or indeed working with anyone else, was that while on mental health day release, he had won the lottery and had access to quite substantial sums that could have been used in the commission of crimes against me while still in prison.

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Stewart Hosie Portrait Stewart Hosie
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I am not sure that we are particularly enlightened by the Government’s response. I must say I share the scepticism of the right hon. Member for North Durham. How many times are the Government going to have to spend huge amounts of money to fight against somebody who has been awarded some damages on the grounds that they may then wish to use those damages to support terrorism? I am not dreadfully convinced by that argument.

I will not press the amendment, but given we are into the sphere of crystal balls, subjectivity and a judicial threshold that is far too low for this action, I would not be at all surprised if a similar amendment to this one sees the light of day at a later stage of the Bill.

Question put and agreed to.

Clause 61 accordingly ordered to stand part of the Bill.

Schedule 10 agreed to.

Clause 62

Legal aid for individuals convicted of terrorism offences

Jess Phillips Portrait Jess Phillips
- Hansard - - - Excerpts

I beg to move amendment 61, in clause 62, page 44, line 21, leave out “F” and insert “G”.

This amendment is a paving amendment for Amendment 60.

National Security Bill (Thirteenth sitting) Debate

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Department: Home Office

National Security Bill (Thirteenth sitting)

Stewart Hosie Excerpts
Committee stage
Tuesday 18th October 2022

(1 year, 8 months ago)

Public Bill Committees
Read Full debate National Security Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 18 October 2022 - (18 Oct 2022)
Tom Tugendhat Portrait Tom Tugendhat
- Hansard - - - Excerpts

New clauses 11, 12 and 13 are the first of a series of amendments relating to the foreign influence registration scheme announced by the Home Secretary on Second Reading. I will come to the new clauses shortly, but first I want to make some introductory remarks about the scheme itself.

In the 2020 Russia report of the Intelligence and Security Committee, it was recommended that future counter-state threats legislation should address the issue of those acting on behalf of a foreign power and seeking to obfuscate their links or relationship. The director general of MI5 strongly emphasised the importance of legislating to ensure that those acting covertly could be pursued through criminal means to make the operating environment harder for those who intend to disguise or obfuscate who they are acting for. The ISC’s report identified the need for stronger transparency legislation, akin to that in place in the United States—namely, the Foreign Agents Registration Act 1938, known as FARA.

FARA requires any person, regardless of nationality, to disclose to the Department of Justice where they represent the interests of foreign powers in a political or quasi-political capacity, as described by the report. It is a disclosure requirement that applies far beyond a situation in which a person acts for a foreign intelligence service, extending to activities undertaken for foreign powers as well as other entities and individuals.

Only four years ago, the Australian Parliament passed its contemporary equivalent to FARA, the Foreign Influence Transparency Scheme Act 2018. The Australian scheme requires the registration of political influence activities undertaken for, or on behalf of, a foreign power or other individuals or entities subject to foreign power control. Both schemes contain a range of exemptions, offences and enforcement powers to further shape and support enforcement of the scheme. Although not like-for-like schemes, they share the principle of tackling covert influence through greater transparency.

There is evidence of the value of these schemes. A submission from the Australian Attorney-General’s Department to an ongoing review of FITS, which commenced in August last year, describes the behavioural changes that it has seen as a result of the scheme’s implementation: some organisations and individuals have adopted better transparency practices, while others have seemingly ceased activities that would be registrable. Enforcement of the US’s FARA has increased in recent years. That has also resulted in behavioural change, as well as prosecutions for non-compliance, including of one very high-ranking former military officer.

I am delighted to be before the Committee today to talk through the proposed UK scheme. This is an important piece in our package of measures and is the area of legislation that calls on sectors to play their part in making it difficult for foreign powers to operate covertly in the United Kingdom. Similar to the position with the precedents that I have just described, its overarching aim is to deter foreign power use of covert arrangements, activities and proxies by requiring greater transparency around certain activities that they direct, as well as where those activities are directed or carried out by entities established overseas or subject to foreign power control.

Put simply, where a foreign state deploys its influence in the UK, either directly or through third parties, that will now be subject to registration and more transparent. I must stress that the scheme’s requirements are not identical to those of the United States and Australian schemes. Although we have worked with our US and Australian colleagues to understand the lessons learned from implementation of their schemes, our scheme’s requirements reflect our own experience and the threats that we face.

The overarching aim of the scheme is to be delivered through two separate objectives and requirements. The first is to strengthen the resilience of the United Kingdom’s political system against covert foreign influence. Openness and transparency are vital to the functioning of our democracy. Where covert influence is deployed by foreign powers, directly or through third parties, it undermines the integrity of our politics and institutions. The scheme will therefore require the registration of political influence activities where they are to be undertaken within the United Kingdom at the direction of any foreign power or foreign entity, or by a foreign entity itself. I will refer to these obligations as the “primary registration requirements”.

Certain registered information will be made available to the public via a scheme website, similar to the position with the schemes of our Australian and US partners. This requirement is deliberately state and sector agnostic, as the source of foreign influence should be transparent no matter where it originates or manifests. The only exceptions, which I will come to, are where exemptions are necessary to protect existing obligations.

The second objective is to provide greater assurance around the activities of specified foreign powers or entities. The scheme contains a power to specify a foreign power, part of a foreign power, or an entity—such as a company or organisation—subject to foreign power control, where the Secretary of State considers it necessary to protect the safety or interests of the United Kingdom. It would require a person acting within the United Kingdom at the direction of a specified power or entity to register with the scheme. It would also require a specified entity to register activities to be undertaken within the UK with the scheme. I will refer to this as the “enhanced registration requirement”. Its use will be limited and subject to parliamentary approval.

These requirements will apply to certain arrangements and activities, regardless of the nationality of those carrying out the activity, and will be enforced through a range of offences and penalties, as well as powers to request information.

I also want to tell the Committee about the scheme’s exemptions, which are as follows.

Stewart Hosie Portrait Stewart Hosie (Dundee East) (SNP)
- Hansard - -

Before the Minister tells us about the exemptions, it would be helpful to know how the enhanced registration—let us call it tier 2 —will actually work. So far, we are in the dark. The basic registration seems eminently sensible, but what will the procedure be to specify a country, entity or person to whom enhanced registration will apply? How will it work? We need to know that before we find out who might not be expected to register in that way.

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Stewart Hosie Portrait Stewart Hosie
- Hansard - -

The Minister explained just a few moments ago that the tier 1 registrations would be public but the tier 2 enhanced registrations would be private. I am not sure how he can argue that the tier 2 enhanced registration would give the public much more confidence if it is a secret.

Tom Tugendhat Portrait Tom Tugendhat
- Hansard - - - Excerpts

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.

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Tom Tugendhat Portrait Tom Tugendhat
- Hansard - - - Excerpts

Okay. I am going to carry on, but I am very happy to continue this discussion on a later occasion.

New clause 11 will provide three principal benefits. First, it will give the Government and the public greater understanding of the scale and extent of the activity. Secondly, the offences and penalties for non-compliance will increase the risk to those who seek to engage in covert activities for foreign powers, either directly or through specified entities. Finally, it offers potential for earlier disruption of state threat activity where there is evidence of a covert arrangement between a person and specified foreign power or entity but it is not yet feasible to bring charges for a more serious state threat offence.

I want to be clear that we expect use of the enhanced registration requirement to be limited. It is an additional tool of assurance to bolster the package of measures within the wider Bill. The power to specify a foreign power or entity will be available to the Secretary of State when the Secretary of State considers it reasonably necessary to do so to protect the safety or interests of the United Kingdom. It will be subject to the affirmative procedure.

It is also vital to stress that the use of this requirement should not be taken to imply that every national of a specified foreign power or person associated with a specified foreign entity is to be mistrusted. The message here is quite the opposite: any person who complies with the obligation to declare an arrangement with a specified foreign power or entity is contributing to the safety and security of the United Kingdom by being open and transparent about that arrangement.

Although I am sure that members of the Committee will be keen to understand which foreign powers will be in scope of the enhanced registration requirement, I am sure they appreciate that it would be premature—if not damaging—to make undertakings on that at this stage. The Government will decide when the scheme is ready to be brought into force. For now, I will cover each amendment.

New clause 11 is the requirement to register foreign activity arrangements. A foreign activity arrangement is where activity is to be carried out, or arranged to be carried out, within the United Kingdom at the direction of a specified foreign power, part of a foreign power or an entity subject to foreign power control. The requirements could apply to any activities, but subsection (9) provides for this to be modified through regulations where necessary.

I wish to bring four key points to Members’ attention. First, I want to reflect on what we mean by a person required to register in this context under subsection (1). A person can be an individual, regardless of their nationality, or an entity. However, if a company or organisation is being directed by a foreign power or entity, the company or organisation would be responsible for registering the arrangement, not its individual employees.

We will shortly discuss new clause 13, which includes a requirement for specified entities to register their own activities. That is important because it makes clear our intention that an employee of a specified entity cannot be considered as being in a registrable arrangement with that entity. The approach was taken in response to sector feedback during our public consultation as a means of reducing the potential registration burden on companies and other organisations that may have many employees all engaged in the same activities.

Importantly, subsection (8) clarifies that there is no requirement for a foreign power itself to register. The scheme intends to increase assurance and transparency of activities being carried out for a foreign power where the involvement of that power might otherwise not be apparent.

Stewart Hosie Portrait Stewart Hosie
- Hansard - -

In new clause 11(1), “A person (‘P’)” might, as the Minister said, be an individual, an entity or a business. This is not at all clear. Is this the UK individual, entity or business or is it the overseas individual, entity or business that is directing a UK citizen? Is it a combination of the two?

Tom Tugendhat Portrait Tom Tugendhat
- Hansard - - - Excerpts

Let me be completely clear, because subsection (8) makes it completely clear: there is no requirement for a foreign power itself to register. We cannot compel foreign powers or entities to register; this is a compulsion on UK entities or individuals.

The scheme intends to increase assurance and transparency to activities being carried out for a foreign power, where the involvement of that foreign power might otherwise not be apparent. As such, we would not expect other Governments to register with the scheme in respect of activity that they themselves are undertaking. As the later “interpretation” clause will make clear, that includes any person acting in the capacity of an office holder, employee or other member of staff of the foreign power, or a person whom the Secretary of State reasonably considers to be exercising such functions.

This scheme has been designed to avoid interference with our obligations under international law regarding the diplomatic and consular relations between countries, as well as the need to protect routine Government-to-Government engagement—the official visits of officials, military and other agencies of a state, for example.

Secondly, subsection (2) sets out the definition of “arrangement”, which requires there to be direction from a specified foreign power or entity to a person. That element of direction is important because it envisages a power relationship between the specified foreign power or entity and the person. The specified foreign power or entity has told the person to carry out the activity, or arranged for it to be carried out. While in practice it is entirely likely for a direction to be delivered in the language of a request, the context of the relationship between the specified foreign power or entity and the person being directed will ultimately determine whether it falls within scope.

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Tom Tugendhat Portrait Tom Tugendhat
- Hansard - - - Excerpts

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.

Stewart Hosie Portrait Stewart Hosie
- Hansard - -

Further to the point made by the right hon. Member for North Durham, the control criteria could be indirect control of more than quarter of the stock, indirect control of more than a quarter of the voting rights, or an indirect ability to appoint or remove an officer of the entity. That is dreadfully subjective. Unless the criteria are really nailed down, people could absolutely fall foul of the measures without knowing that they are being controlled in any way.

Tom Tugendhat Portrait Tom Tugendhat
- Hansard - - - Excerpts

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.

National Security Bill (Fourteenth sitting) Debate

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National Security Bill (Fourteenth sitting)

Stewart Hosie Excerpts
Committee stage
Tuesday 18th October 2022

(1 year, 8 months ago)

Public Bill Committees
Read Full debate National Security Act 2023 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 18 October 2022 - (18 Oct 2022)
We consider it appropriate for that level of detail to be outlined in regulations, because it is largely administrative in nature. Any information provided to the scheme will be held in compliance with the Data Protection Act 2018 and UK general data protection regulation.
Stewart Hosie Portrait Stewart Hosie (Dundee East) (SNP)
- Hansard - -

Will the Minister give way?

Tom Tugendhat Portrait Tom Tugendhat
- Hansard - - - Excerpts

Very, very briefly.

Stewart Hosie Portrait Stewart Hosie
- Hansard - -

The Minister has just described subsection (6) of new clause 19, which states:

“A person who fails to comply with subsection (3) commits an offence if, as a result of the failure, the information provided…is misleading, false or deceptive in a material way.”

That is absolutely correct. New clause 22, however, contains a range of offences that are committed if someone provides information that is “false, inaccurate or misleading”. Is there a reason why we have “deception” in new clause 19 but “inaccurate” elsewhere? Is there a different burden of proof for deception and inaccuracy?

Tom Tugendhat Portrait Tom Tugendhat
- Hansard - - - Excerpts

If the right hon. Gentleman will forgive me, I will come to that in a moment.

New clause 20 provides the Secretary of State with the ability to give a notice to a person who has registered with FIRS, or who should have registered with FIRS but has not. On receipt of an information notice, the person will be required to provide the information requested within the specified timeframe. Failure do so without a reasonable excuse will be an offence. Receiving an information notice does not mean that an individual is guilty of a FIRS offence or that they are engaged in wrongdoing. It is, fundamentally, a tool to provide reassurance that individuals are meeting their registration requirements.

National Security Bill Debate

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Department: Home Office

National Security Bill

Stewart Hosie Excerpts
Tom Tugendhat Portrait Tom Tugendhat
- Hansard - - - Excerpts

The hon. Member makes a very good point: there are many areas in which the individual concerned should certainly be doing the responsible thing and advertising it. The basis of this has to be a balance, so requiring people to register is, I think, a very good start. We need to take forward some of the recommendations that the hon. Member has made and the thoughts he has expressed, because he is absolutely right that transparency in all things is important.

Stewart Hosie Portrait Stewart Hosie (Dundee East) (SNP)
- Hansard - -

The Minister has accurately described what the two different tiers of the FIRS scheme will do, but it is difficult to understand why the registration of harmful activity outside of political influencing, such as covertly acting as an intelligence officer, only applies to a foreign power that is set out in secondary legislation. Surely, if that activity is wrong, it is wrong whether the country is on an as-yet-undefined list or not.

Tom Tugendhat Portrait Tom Tugendhat
- Hansard - - - Excerpts

I think the right hon. Member will find that espionage is illegal in the United Kingdom, whoever is carrying it out.

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Antony Higginbotham Portrait Antony Higginbotham (Burnley) (Con)
- View Speech - Hansard - - - Excerpts

It is a pleasure to speak in this debate and to follow the hon. Member for Rhondda (Chris Bryant). I agree with everything that my hon. Friend the Member for Milton Keynes North (Ben Everitt) has said. I am incredibly supportive of the Bill overall, but I do have questions that it would be helpful to get clarity on in this debate, or—what I think is more likely—when the Bill goes to the other place. I say that because the questions and issues we want clarity on are so substantial that we cannot do them justice in the limited time we have today.

For me, those issues revolve around the foreign influence registration scheme and the exemptions to that scheme. I am mindful that the scheme was introduced into the legislation after we had taken evidence in Committee, so we did not get the chance to question some of the experts on what it would look like. I will address my remarks to clause 68 and Government new schedule 2, and to amendments 15 and 16, which stand in the name of my right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith). I am particularly concerned about the legal services exemption. I do not understand why such a broad exemption is required. As my right hon. Friend said, it might be that we are just copying the US legislation, but we need a level of explanation. Removing the legal exemption is not about restricting access to legal services—we still fundamentally believe in natural justice and the rule of law—but we need transparency to prevent exactly the kind of lobbying that we have spoken about. I know that we are unlikely to vote on the amendments today, but we need that kind of transparency.

If we are trying to copy or mirror some of what the US has done, I would question the lack of any kind of exemption for academia, which the right hon. Member for North Durham (Mr Jones) spoke about. I have spoken to Universities UK, which is concerned about the enhanced tier proposed in FIRS and the impact it could have on UK R&D and on our competitiveness. The US registration scheme clearly has an exemption for

“religious, scholastic, academic, or scientific pursuits”

provided that no political activities are included.

I am saying not that there should be an exemption for academic services but that we in this House need to debate properly what exemptions, if any, should apply to the scheme. Should there be an exemption for legal services? Should there be an exemption for academic work? I do not think we have the opportunity to consider that properly today, but I look forward to following the debate in the other place. I ask the Minister to think about some of those exemptions and, if we are to proceed with them, to give a proper explanation to the House about why they might be necessary.

Stewart Hosie Portrait Stewart Hosie
- View Speech - Hansard - -

The Minister said in relation to the foreign influence registration scheme that other countries have had similar provisions for some years, and of course, that is absolutely true. It is also true that the ISC is very much in favour of introducing a foreign influence registration scheme. We are concerned, however, that the scheme as proposed is more complex than the ones in the US and Australia but that it simultaneously does not go far enough, which is a problem.

Unlike the US and Australian schemes, the proposal is for the one here to be two-tiered. I welcome Government amendments 63 to 94 to restructure clauses 61 and 64, which at least makes some of this a little more comprehensible. However, that still leaves us with a primary tier that will capture all arrangements and activity undertaken on behalf of any foreign power for the purpose of influencing a political event or decision—that is welcome at face value—and a secondary tier designed to capture all other activity beyond political influence, including, for example, acting as a foreign intelligence officer. For arrangements or activity to require registration, however, they have to be undertaken on behalf of a country set out in secondary legislation, so the provision does not necessarily apply automatically to every country.

As I said earlier, it is difficult to understand why acting covertly as an intelligence officer outwith the political influencing sphere, for example, applies only where the foreign power is set out in secondary legislation. It is perfectly possible that intelligence operations will be undertaken by countries that are not named in the regulations and so will not require registration. That is self-evidently an omission and a weakness. Requiring all countries to register such activity would be a stronger deterrent.

As the scheme does not yet name a particular country that may be registered under the second tier, it is not clear which countries the Government intend to name when the Bill becomes law. It is also not clear what criteria will be used when deciding which countries to add to the list. Furthermore, as has been pointed out, these things can take some time. I do not know how swiftly the Government might react to add a new country threat, and I am certainly not at all convinced that when that threat is lifted, the Government will act swiftly to remove a country from the list in the secondary tier.

This is a bit of a dog’s dinner. The real risk is that the secondary tier, which could be valuable tool and which I want to see work, might end up not being used. As the Security Minister recognised in Committee, use of the enhanced registration requirement will be “limited”. We do not want this to be limited; we want it to be comprehensive, to be able to capture the majority of the risks. It would surely be far more effective to have one tier which applies to all countries and a broad range of covert activity.

John McDonnell Portrait John McDonnell
- View Speech - Hansard - - - Excerpts

For the record and as a message to the other House, I wish to say that I believe that the Government forcing through such a serious Bill in so limited a period of time today is a matter of contempt of this House and the parliamentary process.

I rise to speak because over a decade ago I gave an undertaking to one of my constituents that I would seek to ensure that no other person would go through what he had gone through. It worries me that sometimes this House’s collective memory is lost, so it is worth reminding people of what was happening in that period. There was a culture of unaccountability—almost of impunity—among some of our services, and the way they liaised with other nation states and their intelligence services resulted in the torture of our constituents.

My constituent was a young Asian doctor, who had just finished his training. He went on an altruistic, charitable expedition to Pakistan to work in hospitals there. He was picked up and for six weeks he was tortured. At the end of each torture session, which consisted of thorough beatings, he was interrogated by what could only be MI6. It was clear to us. I saw Ministers; alongside the Ministers were civil servants, and alongside them were, I believe, intelligence officers. I got the same response as has been given today, with the same phrasing: “We do not condone or support or participate in torture.” Well, they did on that occasion, and scarred my constituent for life. Even though he is now a successful consultant, he lives in fear still.

What was happening is that decisions were taken here about the arrest of my constituent and the questions that would be put to him at the end of the torture, as though at the end of the exercise we could have clean hands. It was unacceptable. I support amendment 14 because I fear that, if we try to lift some of the protections that our constituents have, we will recreate that culture of unaccountability and impunity and others will suffer like my constituent suffered. That is why it is important not to lessen the accountability of decision makers at every level, whether they are on the frontline or in ministerial offices here.

My second point can be stated briefly. I am the secretary of the National Union of Journalists parliamentary group. What this Bill has successfully done—I have never seen it before—is unite the Society of Editors with the NUJ and various campaigning bodies. They say the provisions will

“strip away longstanding safeguards that are in place to prevent the wrongful access of journalistic material and are a risk to sources and investigative journalism more widely.”

They also say the legislation may “criminalise” some investigative journalism and “chill” whistleblowing.

It is not right to criticise Mr Speaker’s selection of amendments, but we were hoping that an amendment that was in order would be crafted at this stage to provide at least some protection—the public interest protection. That is why I support amendment 3, tabled by the Labour Front-Bench team. If the other place does not insert a public interest protection, a review of the legislation at an early stage will be critical and may result in such a provision. I congratulate the hon. and learned Member for Edinburgh South West (Joanna Cherry) and the hon. Member for Glasgow South (Stewart Malcolm McDonald) for the litany of amendments they have tabled trying to ensure at least some protection in the detail of the legislation for journalists, whistleblowers and others. I regret that it looks as though their amendments will not be made today.