National Security Bill (Eleventh sitting)

Tom Tugendhat Excerpts

Committee stage
Thursday 8th September 2022 Public Bill Committees

[The Chair]

May I ask the Minister to respond?

[The Minister for Security (Tom Tugendhat)]

This is the first time that I have spoken on behalf of Her Majesty’s Government. It is an enormous privilege to be here. I realise that I enter this process—this lion’s den—at a moment when other lions have been through the Bill a few times before—there are an awful lot of Christians in this Committee and only one lion.

Before I say anything further, I pay enormous tribute to the Bill team, who have been phenomenal. The very fact that this has continued at all in such a professional way—

[Maria Eagle]

It hasn’t!

[Tom Tugendhat]

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

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

[Mr Jones]

Right honourable.

[Tom Tugendhat]

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

[Maria Eagle]

Right first time.

[Tom Tugendhat]

I will endeavour to find out what the reason is. You will understand, Ms Ali, that I was not appraised of this situation. I have spent rather a long time reading the Bill in the past 36 hours and not so much time asking about the movements of former Ministers.

On the point made by the right hon. Members for North Durham and for Dundee East about time, I will endeavour to do what I can to ensure that we have time available. Let us see how we go today. If time is needed, I will talk to the Whips team about it.

[The Chair]

The Minister has addressed the key points. I have nothing further to add in response to the point of order, so we will now begin our proceedings.

Clause 41

Variation of measures

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

[The Chair]

With this it will be convenient to consider the following:

Clauses 42 to 44 stand part.

That schedule 6 be the Sixth schedule to the Bill.

[Tom Tugendhat]

As the comparable sections in the terrorism prevention and investigation measures legislation make clear, clauses 41 to 44 are technical elements that improve the regime and make it work in practice. Clause 41 mirrors TPIMs by making provision for the measures imposed to be varied while they are in force. That will allow changes to be made to the restrictions where necessary, in response to changes in the individual’s personal or family circumstances or to the assessment of the risk they pose. Those provisions will be important in ensuring that the regime is able to respond dynamically and flexibly to changing circumstances, and that the individual is able to live as normal a life as is possible without posing a threat to the British people.

The provisions will also be important to securing the effective operational management of state threats prevention and investigation measures. Critically, the underlying requirement that the measures imposed must always be necessary and proportionate remains, and that is explicitly the case for any variation that has the effect of strengthening the measures imposed.

[Holly Lynch (Halifax) (Lab)]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

--- Later in debate ---

[Tom Tugendhat]

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]

Dundee East.

[Tom Tugendhat]

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]

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.

--- Later in debate ---

[Tom Tugendhat]

Perhaps the hon. Member will appreciate that not everybody who spends time in prison will do so for the offence for which the STPIM might have been applied. It is perfectly possible that somebody might spend six months in prison for something completely unconnected—a driving offence, a minor theft, or whatever—and therefore a pause would be entirely in keeping with that. The STPIM is about controlling different people’s ability to move and communicate, in which circumstances prison would simply not be a relevant application because the prison sentence effectively supersedes the controls that would have been put in place. In that sense, it is merely a way of recognising that, in certain circumstances, different applications would apply.

Clause 39 requires police to keep under review criminal investigations. STPIMs are a civil measure to protect against national security threats when a criminal prosecution is not possible. They are not overlapping; they are compatible and, indeed, complementary.

Question put and agreed to.

Clause 41 accordingly ordered to stand part of the Bill.

Clauses 42 to 44 ordered to stand part of the Bill.

Schedule 6 agreed to.

Clause 45

Appeals

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

[Tom Tugendhat]

The clause set out the rights of appeal of a person subject to an STPIM notice and the function of the court on considering such an appeal. Those rights of appeal are in addition to the automatic review of each case and ensure that the individual subject to a notice is able to appeal against all relevant decisions taken by the Secretary of State using the powers contained in the Bill—for example, to extend or revive a notice, to vary the measures or to refuse an application for measures to be varied.

In determining an appeal brought under the clause, the court must apply judicial review principles. That is a particularly intense level of scrutiny and will ensure that the Secretary of State’s decisions are subject to independent consideration. Clause 45 makes clear the powers of the court on considering an appeal, which include to quash the extension or revival of the notice or the measures within, or to give directions to the Secretary of State for the revocation of the notice or in relation to the variation of the measures specified in the notice. As I have said already, a key feature of the Bill is the extensive and multi-layered approach to judicial oversight, which will ensure that the courts can be involved at every stage of the process, and that every decision of the Secretary of State can be reviewed by the judiciary and can be overturned if the court so decides.

To recap, there is an initial permission stage before measures are imposed. There is then the automatic full review of the decision to impose measures, and there are the extensive rights of appeal contained in the clause. Taken together, those provide important safeguards.

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[Mr Jones]

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

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

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

[Tom Tugendhat]

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

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

Question put and agreed to.

Clause 45 accordingly ordered to stand part of the Bill.

Clause 46

Jurisdiction in relation to decisions under this part

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

[Tom Tugendhat]

Members will be pleased that this is very brief. Clause 46 makes an important but largely technical provision. The purpose is to provide absolute clarity that the High Court is the appropriate forum for judicial proceedings arising from decisions relation to STPIMs, or in Scotland, the Outer House of the Court of Session. That is important given that such proceedings may rely on closed material, which we will come on to next.

Question put and agreed to.

Clause 46 accordingly ordered to stand part of the Bill.

Clause 47

Proceedings relating to measures

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

[The Chair]

With this it will be convenient to consider that schedule 7 be the Seventh schedule to the Bill.

[Tom Tugendhat]

Clause 47, and schedule 7, to which the clause gives effect, make further provision for court proceedings in relation to decisions taken under the Bill. I will spend slightly longer on those measures, given the important issue raised by some of the key aspects of those provisions.

Subsection (1) makes clear that an appeal against a court decision in STPIM proceedings may only be brought on a point of law. That limitation is appropriate. The court of first instance has the expertise in fact finding for national security determinations. It has developed expertise and a body of knowledge in an experienced judiciary who hear national security cases. That means it is right that the court of first instance, which has significant expertise, has the final determination on points of fact.

In such cases, it is therefore right to limit the right of appeal to a point of law, as higher courts will not have available the national security information or expertise to make a fair determination on the facts. The approach is reflected from the provisions in the Terrorism Prevention and Investigation Measures Act 2011, and the Special Immigration Appeals Commission.

Schedule 7 makes further provision relating to court proceedings under the Bill, including, in particular, powers to make rules of court about various matters. Critically for the operation of the scheme, the rules will make provision that court proceedings in relation to STPIMs will operate with both open and closed elements given the sensitivity of the evidence that will be a key component of why an individual cannot be prosecuted and why the use of a STPIM is necessary. It would fundamentally undermine the scheme if closed proceedings, where sensitive intelligence and national security arguments can be made, were not available. The individual, and his or her chosen legal representatives, can be present at the open hearings, and see all the material used in those hearings, but they cannot be present at the closed part of the proceedings or see the closed material.

--- Later in debate ---

[Mr Jones]

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

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

[Tom Tugendhat]

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

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

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

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

Question put and agreed to.

Clause 47 accordingly ordered to stand part of the Bill.

Schedule 7 agreed to.

Clause 48

Reports on exercise of powers under this part

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

[The Chair]

With this it will be convenient to discuss the following:

Clause 49 stand part.

New clause 2—Reviews of Parts 1, 3 and 4

“(1) The operation of Parts 1, 3 and 4 of this Act must be reviewed by a person, or people, appointed by the Secretary of State.

(2) The operation of Part 3 must be reviewed by the person appointed by the Secretary of State under section 36(1) of the Terrorism Act 2006.

(3) The operation of Parts 1 and 4 must be reviewed by either—

(a) the person appointed by the Secretary of State under section 36(1) of the Terrorism Act 2006, or

(b) a different person appointed by the Secretary of State.

(4) Reviews under this section must be carried out in respect of—

(a) the 12-month period beginning with the day on which any section in this Part comes into force, and

(b) each subsequent 12-month period.

(5) Each review under subsection (1) must be completed as soon as reasonably practicable after the period to which it relates.

(6) The person or people mentioned in subsections (2) and (3) must send to the Secretary of State a report on the outcome of each review carried out under subsection (1) as soon as reasonably practicable after completion of the review.

(7) On receiving a report under subsection (6), the Secretary of State must lay a copy of it before Parliament.

(8) Section 36(6) of the Terrorism Act 2006 shall be read such that the ‘expenses’ and ‘allowances’ mentioned therein may include the discharge by the person or people of their functions under this section.”

[Tom Tugendhat]

Clause 48 requires the Secretary of State to report to Parliament every quarter on the exercise of her powers under this part of the Bill. The Committee will recognise the parallel to similar measures in the TPIM Act 2011. Although details of the operation of the system and of particular cases will necessarily be sensitive and cannot be disclosed publicly, the clause acts as an additional safeguard by welcoming public scrutiny of the use of the regime and powers, and offers reassurance that crucial information about the operation of the regime will be public and kept up to date. Crucially, that information will include the extent of the Secretary of State’s use of her powers and the number of cases in which measures are imposed. It will also include details of court judgments handed down in the relevant period that relate to the use of those powers.

Clause 49 requires the Secretary of State to appoint an independent reviewer to review the operation of part 2 annually. First, the reviewer is required to undertake a review of the operation of the STPIM regime as soon as is reasonably practical at the end of each year, and a report on the outcome of the review must be sent to the Secretary of State as soon as is reasonably practical after the review has been completed. Then, the Secretary of State is obliged to lay the report before Parliament. That replicates the approach in TPIMs, for which the annual reports have been an effective way of examining the Government’s use of their powers.

The independence of the Independent Reviewer of Terrorism Legislation, combined with their unrestricted access to Government papers and intelligence, has led to real insight and informed reports that have aided the functioning and development of the TPIM regime. Using the same approach for STPIMs will ensure similarly robust scrutiny. Omitting the clause would undermine the level of oversight and transparency of the regime. I hope the Committee agrees that the provision is important for the effective operation of STPIMs.

New clause 2, tabled by the hon. Member for Halifax, proposes commitments to review annually the operations of parts 1, 3 and 4 of the Bill. I thank the hon. Lady for tabling the new clause and I understand the intention behind it. Appropriate oversight of national security functions—particularly the use of intrusive powers—is important. A range of oversight mechanisms are in operation and govern both the UK’s intelligence agencies and the police, which are the primary bodies that will utilise the new powers in the Bill.

As I have just mentioned in addressing clause 49, the Government have made a commitment to an independent reviewer of part 2 of the Bill. Although there may well be merit in extending oversight of the legislation beyond part 2, careful consideration must be given to how that is done. In some cases, it could create an undesired overlap of duplication of responsibility. The Committee discussed that earlier—a little bit before my time—in the context of the hon. Lady’s proposal for an independent body to monitor disinformation. There are further examples of potential duplication, such as the powers in clause 22, which are already the responsibility of the Investigatory Powers Commissioner.

The new clause also proposes that part 3 of the Bill be reviewed by the Independent Reviewer of Terrorism Legislation. As the Committee knows, part 3 contains measures to freeze civil damages awarded to claimants who are seen as representing a real risk of using their award to fund acts of terror, and measures to restrict access to civil legal aid for convicted terrorists. As a result, it is already in the remit of the Independent Reviewer of Terrorism Legislation to review those measures. An explicit commitment to oversight of part 3 of the Bill is therefore unnecessary and would duplicate the existing discretion of the Independent Reviewer of Terrorism Legislation to review and report on terrorism-related legislation.

With those points in mind, the Government cannot accept new clause 2 at this stage. Although I fully appreciate the purpose behind the new clause, I ask the hon. Lady to withdraw it for now. The Government take oversight of the Bill seriously, and we will consider the best way to approach it. I will be in touch with her about that.

[Holly Lynch]

I am grateful for the way the Minister has approached the new clause. I accept entirely the volume of work he has had to do in the past 24 to 36 hours.

We feel quite strongly about some of the proposals we are advocating for in new clause 2. There is an acceptance of the real value of the work undertaken by the independent reviewers right across the agencies that work with this type of legislation. We think we are largely doing the Government a favour in putting these proposals forward.

--- Later in debate ---

[Mr Jones]

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

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

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

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

[Tom Tugendhat]

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

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

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

[Holly Lynch]

We have been probing that during the passage of the Bill. Because that role is so crucial to the oversight that needs to follow the rest of the provisions in the legislation, can the Minister, as an absolute minimum, confirm that that person will be in post and that that issue will have been resolved by the time the Bill is enacted, so that that is not an ongoing question that starts to run into the legislation being enacted?

[Tom Tugendhat]

The hon. Member will be aware that I have been in post for only a few hours, so I will be cautious about making commitments that I cannot keep, but I can assure her that I will do my absolute damnedest to make sure that they are in post, because I can see exactly the point that she makes and I appreciate it. As I say, this is about protecting the rights not just of those who are subject to the provisions but of those carrying out the protection of our state and our nation.

Question put and agreed to.

Clause 48 accordingly ordered to stand part of the Bill.

Clause 49 ordered to stand part of the Bill.

Clause 50

Offence

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

[Tom Tugendhat]

The clause provides for a criminal offence of breaching a measure specified in a part 2 notice without reasonable excuse. This echoes, as do many of the provisions, a similar provision in the TPIM regime, and includes cases in which a person has permission from the Secretary of State to contravene a measure and does not adhere to the terms or conditions of that permission. For the sake of enforceability, it is vital that a part 2 notice is reinforced with effective penalties if the subject does not comply. Hence the maximum penalty on conviction is a custodial sentence not exceeding five years, unless the travel measure is breached, in which case the maximum sentence is 10 years.

[Holly Lynch]

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

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

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

[Stewart Hosie]

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

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

[Tom Tugendhat]

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.

[The Chair]

With this it will be convenient to consider that schedule 8 be the Eighth schedule to the Bill.

[Tom Tugendhat]

The clause gives effect to schedule 8, which provides the police with powers of search, entry, seizure and retention in a number of scenarios relating to STPIMs. For the sake of ease, I will cover the clause and the schedule together.

Before I go into the detail of the clause, I remind the Committee that STPIMs will be a tool of last resort. The Government will use every other tool at our disposal before resorting to such significant measures. Again, I remind the Committee that these measures mirror those in the TPIMs regime.

In order to effectively enforce the regime and check an individual is complying with the measures under their STPIM, the police will have the powers they need to enter premises, conduct necessary searches and seize and retain items as necessary. They will also be able to arrest the individual for a “breach of” offence if they fail to grant police access.

Schedule 8 provides powers to the police to enter and search premises without a warrant to locate an individual for the purpose of serving an STPIM notice or another specified notice on them; to search an individual or premises when serving an STPIM notice for the purpose of discovering anything that might breach any measures specified in the STPIM notice; to search premises on suspicion that an individual subject to an STPIM notice has absconded; and to search an individual subject to an STPIM notice for public safety purposes. It provides a power to police with a warrant to search an individual or premises to determine whether an individual is complying with the measures specified in the STPIM notice. There are also powers for a constable to seize and retain items found in the course of such searches.

I remind the Committee that the STPIM itself is kept under review and requires a court’s permission to impose the measure. That means that a court will have already agreed with the assessment of the Secretary of State that the individual meets the meet five conditions in clause 33, which the Committee has already agreed to. That means it is proportionate in terms of a national security determination for the police to be able to undertake the aforementioned activities without a warrant. The powers will be essential to managing and enforcing the measures imposed under STPIMs and, importantly, they provide the right balance between effective powers and safeguards for the rights of the individual.

[Holly Lynch]

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

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

“The warrant may be executed by any constable.”

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

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

[Stewart Hosie]

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

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

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

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

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

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

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

[Tom Tugendhat]

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.

[The Chair]

With this it will be convenient to discuss that schedule 9 be the Ninth schedule to the Bill.

[Tom Tugendhat]

The clause will give effect to schedule 9, which makes provision for the taking and retention of biometric material from individuals subject to a part 2 notice. I will cover the clause with the schedule.

The biometric data retention provisions relating to state threats prevention and investigation measures are in line with those existing elsewhere in the statute book, including in TPIMs, which have been well established for more than 10 years. The schedule makes separate provisions for taking the fingerprints and samples of an individual subject to a specified prevention and investigation measure in England, Wales and Northern Ireland to that of Scotland. That ensures that provisions are in line with different police procedures and legislation.

constable may take biometric data, which could include physical data, from an individual subject to a part 2 notice. The individual will be informed of the reason for the fingerprints or sample being taken. Police can require an individual to attend a police station for the purpose of providing biometric data, and that material may be checked against other such material held under a variety of other powers. The schedule requires the destruction of relevant material, including fingerprints, DNA profiles or relevant physical data, unless there is a power to retain, which I shall come to.

The purpose of the provisions is to ensure the right balance between the protection of the public and individual civil liberties. Under paragraph (11), any samples taken from the individual must be destroyed as soon as a DNA profile has been derived from that sample or, if sooner, within six months of taking the sample. Paragraphs (8) and (9) contain powers to retain biometric data. Where there is no relevant previous conviction, fingerprints, DNA profiles and physical data may be retained for six months after the end of the relevant part 2 notice being in force.

Under paragraph (9), a national security determination can be made by a chief officer of police, enabling the police to retain for up to five years data relating to an individual who may pose an enduring national security threat. All national security determinations that can be reviewed must be reviewed by the biometrics commissioner, who has continued oversight of the retention and use of such data.

We recognise the importance of safeguarding individuals’ right to privacy, so paragraph (12) sets out the limitation of uses for any retained material taken from a person subject to a part 2 notice, which are in the interests of national security, for the purposes of investigation foreign power threat activity, for the purposes of a terrorism investigation, for the detection and prevention of crime, or in the interests of identification only.

[Holly Lynch]

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

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

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

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

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

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

[Stewart Hosie]

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

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

[Tom Tugendhat]

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)

Tom Tugendhat Excerpts

Committee stage
Thursday 8th September 2022 Public Bill Committees

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

[The Minister for Security (Tom Tugendhat)]

Let me briefly say that we all pray for Her Majesty; it is an extraordinary moment. God save the Queen.

Clause 53 sets out how certain part 2 notices are to be served. A part 2 notice, an extension notice, a revival notice or a notice of a variation of the measures without consent must be served in person to the individual in order to have effect, whereas other notices may be served through the individual’s solicitor.

Schedule 5 contains a supporting power for the police to enter and search premises to find an individual for the purpose of serving a notice on them. This is so that the individual is informed in person and the implications of the notice can be explained to them.

Clause 53 also provides that when a subject is served the relevant notice they must be provided with a confirmation notice that sets out the period for which that notice will remain in force. This will give the individual certainty regarding the period of time for which the measures apply to them.

[Holly Lynch (Halifax) (Lab)]

Clause 53 states that a confirmation notice must be served on an individual who is served with a state threats prevention and investigation measure, or a revival notice or extension notice, setting out the period, including dates, for which the individual will be subject to the STPIM, unless it is quashed or revoked before its expiry.

We recognise the need for the clause, and it is right that there is a great deal of emphasis on serving the notice to an individual personally. There is, however, a distinct lack of detail in the Bill about who can serve a notice. Counter-terrorism police have again been very helpful in taking me through how such work might be undertaken operationally, but I put it to the Minister that it is not clear in the legislation that it would need to be a constable of a certain rank, or that it would need to be a constable. Other areas of the Bill do specify that.

It is not just a case of serving the notice: it is also the point at which a person is informed of the terms of the part 2 notice notice and presumably relocated and monitored to ensure their compliance with it. I wish to probe whether the provisions in clause 53 would benefit from being ever so slightly tightened up in that specific regard.

--- Later in debate ---

[Stewart Hosie (Dundee East) (SNP)]

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]

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

[Holly Lynch]

I beg to move amendment 67, in clause 54, page 38, line 29, at end insert—

“(2) Within three months of the passing of this Act, the Secretary of State must publish a statement setting out how the Secretary of State intends to exercise the power under this section. The statement must include an list of illustrative examples of the kinds of contracts or other arrangements this power relates to.”

[Holly Lynch]

Clause 54 makes me uncomfortable and requires some thorough consideration. Amendment 67 seeks to flesh out some of the detail as to what the clause means in reality.

The explanatory notes say:

“This clause grants the Secretary of State authority to purchase services in relation to any form of monitoring in connection with measures specified in Part 2 notices. This would include, for example, electronic monitoring of compliance with the residence requirement provided for in Schedule 4.”

Frankly, the Government have a somewhat chequered history in awarding contracts, and while I will not go through the back catalogue, it is against that backdrop that we ask for more detail before we sign off on this clause. Section 29 of the Terrorism Prevention and Investigation Measures Act 2011 includes the same provision, so I hope that the Minister is in a position to share with us how private companies have been involved in the monitoring of those subject to TPIMs, so that we can gain a clearer understanding of how that would be replicated with STPIMs.

I am looking for reassurance on two fronts. The first is that we are not using contractors who are vulnerable to hacking or other forms of cyber-attack. There will be marked differences between the cohort of people currently subject to a form of monitoring—and even those subject to TPIMs—compared with STPIMs, which stand to present different challenges, so what tech will be used for monitoring someone subject to a part 2 notice, and how do we ensure that we, but no one else, knows where that individual is? I am assuming, based on what little we are asked to go on in the clause and explanatory notes, that we could be talking about wearable technology or monitoring hardware and software. I suspect that at least some component parts will be made overseas, if not all of them.

We sought to establish where the ankle monitors that are currently used come from. With some help from the House of Commons Library, we found that in November 2017 the Ministry of Justice awarded a contract for the supply of electronic monitoring services, which includes software and hardware, to G4S, and it appears to have been extended, but we could not establish where they were purchased from or just how robust they are. How do the Government plan to address that concern operationally and ensure that there are no holes to be exploited in the technology itself? How do we write those protections and technical specifications into contracts under clause 54?

Secondly, we are dealing with particularly capable people, potentially with the support of entire nation states. I want to know that our security services and trained police officers are undertaking this monitoring work, rather than private contractors who stand to be overwhelmed if not equipped and trained adequately. I had a look at what happens currently. The National Audit Office’s recent report published in June 2022, called “Electronic monitoring: a progress update”, states on page 22 that G4S supplies tags and home monitoring equipment as part of HM Prison and Probation Service’s tower delivery model for its tagging transformation programme.

HMPPS is an agency of the Ministry of Justice and is responsible for tagging. The report explains that the tower contracting approach has four different suppliers, each responsible for a different element of the national programme: supplying and fitting tags to offenders; running a monitoring centre; providing underlying mapping data; and providing the communications network. HMPPS acts as an integrator to co-ordinate work across the four suppliers. Can the Minister confirm that that is the same model, which has a number of private contracts and moving parts, presumably with the exchange of a lot of information between those moving parts, that we use for monitoring those subject to TPIMs, and that it is therefore the same way in which we will monitor people subject to STPIMs?

I would greatly appreciate some clarification from the Minister on that, to ensure that our national security cannot be outsourced and that we have specialist and trained people from our dedicated services undertaking this really important monitoring, using technology that can withstand the threat of outside interference. Given the situation in which we find ourselves, I urge the Minister to consider the merits of amendment 67.

[Tom Tugendhat]

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]

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]

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.

[Holly Lynch]

I have listened carefully to what the Minister has said. He talked about the convenience of extending existing contracts; however, given the cohort of those who will be subject to STPIMs, that is the exact point that concerns me. We are talking about a volume of those who have committed more typical types of crime, but we need to think much more carefully about the types of technology, the software and the individuals involved in monitoring those subject to STPIMs.

Given the Minister’s reputation and understanding of the detail, and as he has already given me those assurances, I am willing to give him the benefit of the doubt that he will go back to officials and interrogate clause 54, so that he and I are satisfied that there are no vulnerabilities in that approach. I hope we can continue that conversation with the Minister. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 54 ordered to stand part of the Bill.

Clause 55

Legal aid in relation to Part 2 notices

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

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[Tom Tugendhat]

I thank the hon. Member for Halifax; she can be assured that my commitment to protecting our security through electronic means, as through every other means, will endure.

Clause 55 will extend the scope of legal aid so that it will be available for state threats prevention and investigation measures. It will allow individuals to access legally aided advice and representation in relation to a part 2 notice, subject to means and merits tests. That replicates the position in the Terrorism Prevention and Investigation Measures Act 2011.

The measures are a civil order designed to protect and mitigate the risk to the public from individuals who pose a threat but cannot be prosecuted or, in the case of foreign nationals, deported. Legal aid will be made available in those cases due to the restrictive nature of the measures that an individual may be subject to. It is right that we balance robust investigation and prevention measures with the access to justice and judicial oversight that this House would demand.

[Holly Lynch]

As we have already heard, clause 55 inserts a new paragraph in schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2021, to enable individuals subject to part 2 notices to receive civil legal services in relation to those notices.

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[Tom Tugendhat]

I will restrict myself to discussing clause 55 now rather than considering part 3, because clause 55 covers a particular use of legal aid, which is the use of legal aid in relation to the subject who may be under an STPIM notice. It is therefore a very particular application of legal aid. The question to which the hon. Lady refers, which I understand, is one that, as she knows, we have already discussed, and I look forward to having further discussions with her on it because it does raise questions.

Question put and agreed to.

Clause 55 accordingly ordered to stand part of the Bill.

Clause 56

Interpretation etc

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

[Tom Tugendhat]

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]

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]

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.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 59, in clause 58, page 42, line 2, at end insert—

“(2A) If the court concludes following its consideration under subsection (2) that the claimant has not committed wrongdoing involving—

(a) the commission of a terrorism offence, or

(b) other involvement in terrorism-related activity,

subsection (3) does not apply.”

Clauses 58 to 60 stand part.

[Tom Tugendhat]

Under the Bill, courts can formally be required to consider whether to reduce or withhold damages awarded when they find for the claimant in a national security claim where the claimant’s own wrongdoing of a terrorist nature should be taken into account. I will set out the detail of the reforms when I speak to clauses 58 and 59.

On clause 57, it is important to set out the types of cases in which the powers that would be exercised in clauses 58 and 59 would apply, and those in which they would be excluded from applying. The clause establishes that the reforms to reduce damages would apply only in cases that relate to national security proceedings. Those are cases in which one of the parties in the proceedings has presented evidence or made submissions to the court on a matter of national security. That particularly applies to specified types of claims—for example, those involving the use of investigative powers or surveillance, or the activities of the UK’s intelligence services, and cases relating to terrorism-related activity in the UK or overseas. However, the legislation excludes claims brought under the Human Rights Act 1998. The clause specifies that the reforms apply only to claims that are brought against the Crown, which reflects the fact that this cohort of cases is aimed at actions brought against our national security services.

Clause 58 details the measures under which courts can be formally required to consider whether to reduce or withhold damages awarded when the court finds for the claimant in a national security claim, but the claimant’s wrongdoing of a terrorist nature should be taken into account. This measure is aimed at those cases where a claimant, often based overseas, makes a claim against UK security services that is based on, or related to, the claimant’s own involvement in terrorist activity. Although courts already have discretion over the amount of damages to award, they can in theory make a declaration on a finding of fact outcome with no award. In civil tort cases, however, this approach is very rarely taken. In such cases, the courts follow a regular pattern by seeking to establish liability, calculate compensation and award damages. The Bill would go further by requiring courts to consider reducing or removing damages in exceptional cases. These are cases involving matters of national security in which the claimant’s case relates to their involvement in terrorism—for example, to personal injury sustained in the course of such activities—where a claim is then made against UK security services.

It is important to note that the Bill does not fetter the court’s discretion; judges will still be able to determine cases fairly, independently and objectively. However, we think it is appropriate in these cases that they consider the claimant’s conduct as well as the state’s. Here, as in the companion measures on damages freezing and forfeiture, the Government have an overriding duty of public protection and the safety of society. The measures will reduce the prospect of large sums in damages being paid to people associated with terrorism, who may use those resources to fund acts of terror.

In addressing amendment 59, I have spoken about the duty imposed on the court to consider, in the circumstances of the case and on the evidence presented, whether it would be appropriate for the claimant’s damages award to be reduced, including to nil. The key word there is “consider”. The legislation is not fettering the court’s discretion. Judges will assess whether, on the balance of probabilities, the factors set out in subsection (2) are made out, and if they are, whether a reduction in damages is appropriate. If the court is satisfied, it will assess what an appropriate reduction in damages should be. In making that assessment, the court will receive submissions from both the security services and claimant, and there will be a right of appeal. The proceedings will be able to rely on the closed material procedures where necessary, to ensure that there is a fair trial and that the evidence is tested. It is also important to note that the claimant will have a right of appeal against the decision of the court.

Amendment 59, tabled by the hon. Member for Birmingham, Yardley, seeks to make it explicit in the Bill that the court will not be required to consider reducing damages when the claimant has not been involved in the commission of terrorist offences or other terrorist-related activity. The Government’s intention is not for this reform to apply in national security cases where a claimant had no involvement in wrongdoing of a terrorist nature; nor is it contemplated that the security services would make an application for this duty to be exercised by the court in such cases. The Government will seek to introduce an amendment to clarify this point in the Bill once consultations with parliamentary counsel have concluded. In such case, I ask the hon. Member to withdraw her amendment, and I will be happy to discuss the issue with her in advance of the Government tabling its proposed amendment.

Clause 59 provides some supplemental procedural requirements, including safeguards, for the Crown’s application for the court to exercise its duty under clause 58. As I have outlined, the measure is aimed at those cases where a claimant, often based overseas, makes a claim against the UK security services that is related to that claimant’s involvement in terrorist activity. Clause 59 supports and supplements clause 58 by setting out the essential requirements of an application made under that clause. The procedural and evidential requirements are set out, as well as the grounds on which the court may refuse an application. We are confident that our measures provide a reasonable, proper and proportionate balance between the right to access justice, and the need to protect national security and to properly deploy the resources devoted to it. The reforms will have a deterrent effect on litigation, so that the UK is no longer seen as such a soft touch for litigation of this nature.

Finally, clause 60 is designed to ensure that interpretation of the legislation by the courts and others will be consistent with terms defined and understood in existing statutes that concern national security, and in measures to combat terrorism. As such, the clause defines relevant terms used in the Bill, such as “terrorism offence” and “intelligence service”. That ensures that there is no inconsistency or ambiguity in the wider legal framework, and that the Bill complements existing legislation. The clause clarifies the relatively narrow cohort of cases at which these reforms are aimed, which are those brought against the Crown on matters of national security, in which a claimant has had some involvement with terrorist activities or offences.

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

I have heard what the Minister said. The Committee is finding common cause on these matters, as we do on much of the Bill. This is in no way a criticism of him, his speech or what he is offering, but it is a shame that there has been no Justice Ministers on this Bill. Frankly, part 3 of the Bill is far more concerned with justice measures than it is with home affairs in the classic sense. I have felt for some of the many Home Office Ministers who have been in front of us during this Committee in the role of Security Minister; they have had to justify things that did not relate to their Department.

My problem with part 3 more generally—then I will come on to my amendment—and this was clear from the evidence sessions, some four Ministers ago, concerns the nature of deterrents. As we go through the Bill and look over each acronym—we have all learned them like a second language by now—we are seeking to protect and secure our nation. Nobody in this room has any greater claim to do that than anybody else. That is all we seek to do. The trouble with much of part 3—evidence on this has been presented to us—is that it potentially reverses that. Parts of it are of concern for the prevention of terrorism. That is a fundamental line that needs to be drawn. Labour certainly wishes the Government, with their new slew of Ministers, to go back and investigate whether prevention is at the very heart of what is being suggested in part 3 more generally.

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[Mr Jones]

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

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

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

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

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

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

[Tom Tugendhat]

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

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

[Mr Jones]

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

[Tom Tugendhat]

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

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

[Jess Phillips]

Given the Minister’s words and the offer to work together, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question put and agreed to.

Clause 57 accordingly ordered to stand part of the Bill.

Clauses 58 to 60 ordered to stand part of the Bill.

Clause 61

Damages at risk of being used for the purposes of terrorism

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

[The Chair]

With this it will be convenient to discuss the following:

Amendment 58, in schedule 10, page 140, line 12, leave out

“there is a real risk that”.

This amendment would ensure the court was satisfied on the balance of probabilities that damages were to be used for terrorism purposes before frozen funds could be forfeited.

That schedule 10 be the Tenth schedule to the Bill.

[Tom Tugendhat]

The Bill contains measures that will enable a Minister to apply freezing and forfeiture orders where they assess that there is a real risk of the damages awarded being used to fund acts of terror. That will be done only at the request of law enforcement or security services, but I am sure that the whole House, and the Committee, will appreciate the importance of avoiding accidentally enabling those acts against us. The measure is designed to meet the Government’s overriding policy objective of protecting the public and society. We believe it is important, fair and proportionate that damages can be frozen at source, at the point of award, where there is a real risk of their being used to support terrorism.

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[Maria Eagle]

Can the Minister tell us whether these provisions have been based on some existing case, or cases, where the Government think this has happened and needs to be stopped, or are they just being made in anticipation of the unlikely circumstances in which damages are used in the way these provision seek to prevent? Are there existing cases the Government are concerned about?

[Tom Tugendhat]

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

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

[Mr Jones]

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

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[Tom Tugendhat]

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]

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?

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[Mr Jones]

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

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

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

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

[Tom Tugendhat]

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

[Mr Jones]

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

[Tom Tugendhat]

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

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

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Let me make a broader point. Funnily enough, when I talked to my husband about some of this, he said, “Oh, you know, don’t be a terrorist if you want access to legal aid”—that was partially his attitude.

[Tom Tugendhat]

Sounds about right to me.

[Jess Phillips]

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

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

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

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

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

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

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

As Jonathan Hall argued in the evidence session,

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

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

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

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I know that the Minister will not agree to scrub this section today. However, for the sake of the hon. Member for Stevenage (Stephen McPartland), who did a valiant job picking this Bill up, I urge the Minister to drop this entire section of the Bill later on. It would be a testament to the hon. Gentleman.

[Tom Tugendhat]

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

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

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

[Mr Jones]

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

[Tom Tugendhat]

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

[Mr Jones]

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

[Tom Tugendhat]

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

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

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

Clause 63 ensures that—

[Mr Jones]

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

[Tom Tugendhat]

Go on.

[Mr Jones]

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

[Tom Tugendhat]

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

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

[Jess Phillips]

The Minister has described the process, which, as with all Government processes, always works smoothly. Will they have to do that check on every single person who applies for legal aid?

[Tom Tugendhat]

Yes.

[Jess Phillips]

It is going to be quite a slow process. The suggestion is that, for every single person who applies for legal aid in any civil remedy or order, we will start writing to a competent authority to get any previous terrorism convictions.

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[Tom Tugendhat]

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

[Mr Jones]

What?

[Tom Tugendhat]

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

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

[Mr Jones]

Why?

[Tom Tugendhat]

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

[Mr Jones]

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

[Tom Tugendhat]

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

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

[Jess Phillips]

I appreciate the tone that the Minister has taken, and I will withdraw the amendment with a view to see where we get before Report and Third Reading. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 62 ordered to stand part of the Bill.

Clauses 63 and 64 ordered to stand part of the Bill.

Clause 65

Minor and consequential amendments

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

[The Chair]

With this it will be convenient to discuss the following:

Government amendments 39 to 44.

That schedule 11 be the Eleventh schedule to the Bill.

Clause 66 stand part.

Government amendment 64, in clause 67, page 48, line 25, at end insert—

“(za) regulations under section (Requirement to register foreign activity arrangements);

(zb) regulations under section (Meaning of ‘political influence activity’);

(zc) regulations under section (General exemptions);”

This amendment provides that regulations made under the specified provisions are to be made using the affirmative procedure.

Amendment (a) to Government amendment 64, line 4, at end insert—

“(zd) regulations under section (Registration information);

(ze) regulations under section (Information notices);”

Government amendment 65.

Clauses 67 to 73 stand part.

[Tom Tugendhat]

Clause 65 introduces schedule 11, which makes minor and consequential amendments to other legislation. I will not dwell on paragraphs 1 to 3, which repeal the Official Secrets Acts 1911, 1920 and 1939, and which are no longer needed in the light of the Bill. I am aware that the Committee has already touched on paragraphs 4, 5, 7 and 8 when discussing the powers of arrest, detention and biometrics.

I will briefly speak about paragraph 6, which makes a necessary consequential amendment to the Official Secrets Act 1989. The 1989 Act already, and quite rightly, provides that it is an offence under the Act to make an onward disclosure of material obtained through an offence under section 1 of the Official Secrets Act 1911 —that is, espionage. The Bill replaces the reference to the 1911 Act provision, which has been repealed, with the relevant provisions in the Bill, which are designed to criminalise the same conduct. Other references to the 1911 and 1920 Acts have also been replaced with the relevant provisions in the Bill.

Turning to the Government amendments, the Police and Criminal Evidence Act 1984 contains a list of offences, referred to as “qualifying offences”, whereby when a person is arrested but not convicted of such an offence police have the option to retain biometric data such as fingerprints for three years. Qualifying offences currently include terrorism offences, murder, rape and kidnap. Schedule 11 of the Bill already amends the Police and Criminal Evidence Act to include the most serious offences in the Bill, such as obtaining or disclosing protected information and sabotage, in the list of qualifying offences, which also includes attempts or conspiracy to commit those offences.

Schedule 11 amends PACE to insert the most serious offences in the Bill under the heading of “National security-related qualifying offences”. Amendments 39 to 44 seek to add the offence of preparatory conduct in clause 15 to the list of qualifying offences, as well as to the definition of national security-related qualifying offences. As we have already discussed in Committee, malign actions by states have the potential to cause significant damage to the United Kingdom and its interests, and the preparatory conduct offence ensures that law enforcement can intervene at an early stage when preparatory activities are under way. I ask the Committee to support all the amendments.

Clause 66 provides a mechanism for the Secretary of State to make, via regulations, additional consequential amendments to other legislation where necessary. That will ensure that the legislative framework remains coherent. Clause 67 makes provision in relation to the powers to make regulations in the Bill, including specifying the parliamentary procedure applicable to specific provisions. The powers that, when exercised, will require regulations made under them to be subject to the affirmative procedure are specified in paragraph 6. These are regulations that make consequential amendments to primary legislation, and that require the use of, and bring into force, a code of practice on making video recordings of interviews of detained suspects under schedule 3.

Government amendments 64 and 65 are technical amendments relating to the foreign influence registration scheme. While I will briefly set out the practical effect of the amendments, I am mindful that the next Committee sitting will consider the substantive amendments—so we will touch on them then in greater detail—and the new clauses relating to the scheme. I therefore do not intend to cover the substance at this point.

Government amendment 64 provides that three powers to make regulations under the foreign influence registration scheme are to be subject to the affirmative procedure. The first is where a foreign power, part of a foreign power, or an entity subject to foreign power, is to be specified by the Secretary of State for the purposes of enhanced registration requirements. The second is where the Secretary of State wishes to make provision for further cases, in addition to several proposed exemptions, to which the registration requirements or prohibitions do not apply. The final power is where the Secretary of State wishes to specify a person exercising functions on behalf of the Crown for the purpose of extending provisions relating to registerable political influence activities to capture communications made to that person.

--- Later in debate ---

[Holly Lynch]

I am grateful to the Minister for that comprehensive run-through of the different elements within this part 4 grouping. I will speak to the collection of clauses and amendments, which encompass the remaining provisions in part 4. Clauses 65 and 66 give powers to the Government to consequentially amend legislation based on the content of the Bill. We spoke to the House of Commons Library in order to assure ourselves that this was a conventional allocation of powers, and did not go beyond what was necessary. I am grateful to the Library staff for their feedback.

Government amendment 64 provides that regulations made under the specified provisions for the foreign influence registration scheme, which we have not yet got to, are to be made using the affirmative procedure. It seems an odd arrangement that we are debating the process for the regulations without having first considered in detail the substance of those provisions. However, here we are. We will come to the FIRS provisions; despite how long the scheme has been in the pipeline, it is fair to say that a great deal of the detail of those measures is still to be determined—and is yet to be determined in regulation. It is right that they are subject to the affirmative procedure and to proper scrutiny when that detail has been worked through. We hear and understand that it may take some time yet, but it is an important point.

Further to Government amendment 64, there are two more provisions for regulations on registration information and information notices, which merit the same approach for the reasons I have just outlined. Our amendment to Government amendment 64 seeks to extend it only to ensure a consistent level of scrutiny of what will be serious new measures. It would allow the measures to be considered by hon. Members in Committee and would ensure that they deliver what is needed. On that basis, I ask the Minister to adopt our small, but entirely appropriate, change to Government amendment 64.

[Tom Tugendhat]

I am grateful for the hon. Lady’s point. I want to correct a comment that I made. I said the provisions apply to the Crown and this meant that Crown servants could not commit the offences. What I meant was they can commit the offences in the Bill, and that is the whole point of the regulation and this change to allow the freedom that is required.

Question put and agreed to.

Clause 65 accordingly ordered to stand part of the Bill.

Schedule 11

Minor and consequential amendments

Amendments made: 39, in schedule 11, page 141, line 29, after “offence” insert “under section 15 of the National Security Act 2022 or”.

This amendment inserts a reference to offences under clause 15 (preparatory conduct) into the definition of “national security-related qualifying offence”.

Amendment 40, in schedule 11, page 141, line 30, leave out

“the National Security Act 2022”

and insert “that Act”.

This amendment is consequential on Amendment 39.

Amendment 41, in schedule 11, page 142, line 8, after “offence” insert

“under section 15 of the National Security Act 2022 or”.

This amendment inserts a reference to offences under clause 15 (preparatory conduct) into the definition of “qualifying offence”.

Amendment 42, in schedule 11, page 142, line 8, leave out

“the National Security Act 2022”

and insert “that Act”.

This amendment is consequential on Amendment 41.

Amendment 43, in schedule 11, page 142, line 15, after “offence” insert

“under section 15 of the National Security Act 2022 or”.

This amendment inserts a reference to offences under clause 15 (preparatory conduct) into the definition of “qualifying offence”.

Amendment 44, in schedule 11, page 142, line 15, leave out

“the National Security Act 2022”

and insert “that Act”.—(Tom Tugendhat.)

This amendment is consequential on Amendment 43.

Schedule 11, as amended, agreed to.

Clause 66 ordered to stand part of the Bill.

Clause 67

Regulations

[The Chair]

Does the hon. Member for Halifax wish to move amendment (a) to Government amendment 64?

[Holly Lynch]

I will continue to engage with the Government on that issue, but I will not move the amendment.

Amendments made: 64, in clause 67, page 48, line 25, at end insert—

“(za) regulations under section (Requirement to register foreign activity arrangements);

(zb) regulations under section (Meaning of “political influence activity”);

(zc) regulations under section (General exemptions);”

This amendment provides that regulations made under the specified provisions are to be made using the affirmative procedure.

Amendment 65, in clause 67, page 49, line 2, at end insert—

“(11) If a draft of a statutory instrument containing regulations under section (Requirement to register foreign activity arrangements) would, apart from this subsection, be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, it is to proceed in that House as if it were not such an instrument.”—(Tom Tugendhat.)

This amendment provides that regulations under NC11 are not to be treated as hybrid instruments.

Clause 67, as amended, ordered to stand part of the Bill.

Clauses 68 to 73 ordered the stand part of the Bill.

New Clause 7

Obtaining etc material benefits from a foreign intelligence service

(1) A person commits an offence if—

(a) the person—

(i) obtains, accepts or retains a material benefit which is not an excluded benefit, or

(ii) obtains or accepts the provision of such a benefit to another person,

(b) the benefit is or was provided by or on behalf of a foreign intelligence service, and

(c) the person knows, or ought reasonably to know, that the benefit is or was provided by or on behalf of a foreign intelligence service.

(2) A person commits an offence if—

(a) the person agrees to accept—

(i) a material benefit which is not an excluded benefit, or

(ii) the provision of such a benefit to another person,

(b) the benefit is to be provided by or on behalf of a foreign intelligence service, and

(c) the person knows, or ought reasonably to know, that the benefit is to be provided by or on behalf of a foreign intelligence service.

(3) Material benefits may include financial benefits, anything which has the potential to result in a financial benefit, and information.

(4) A material benefit is an excluded benefit if—

(a) it is provided as reasonable consideration for the provision of goods or services, and

(b) the provision of those goods or services does not constitute an offence.

(5) A benefit may be provided by or on behalf of a foreign intelligence service directly or indirectly (for example, it may be provided indirectly through one or more companies).

(6) Subsections (1) and (2) apply to conduct outside the United Kingdom, but apply to conduct taking place wholly outside the United Kingdom only if—

(a) the material benefit is or was, or is to be, provided in or from the United Kingdom, or

(b) in any case, the person engaging in the conduct—

(i) is a UK person, or

(ii) acts for or on behalf of, or holds office under, the Crown, or is in Crown employment (whether or not they engage in the conduct in that capacity).

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

(8) In proceedings for an offence under subsection (1) or (2) it is a defence to show that the person engaged in the conduct in question—

(a) in compliance with a legal obligation under the law of the United Kingdom,

(b) in the case of a person having functions of a public nature under the law of the United Kingdom, for the purposes of those functions, or

(c) in accordance with an agreement or arrangement to which—

(i) the United Kingdom was a party, or

(ii) any person acting for or on behalf of, or holding office under, the Crown was (in that capacity) a party.

(9) A person is taken to have shown a matter mentioned in subsection (7) or (8) if—

(a) sufficient evidence of the matter is adduced to raise an issue with respect to it, and

(b) the contrary is not proved beyond reasonable doubt.

(10) A person who commits an offence under subsection (1) is liable on conviction on indictment to imprisonment for a term not exceeding 14 years or a fine (or both).

(11) A person who commits an offence under subsection (2) is liable on conviction on indictment to imprisonment for a term not exceeding 10 years or a fine (or both).

(12) The following terms have the same meaning as in section 3—

“financial benefit”;

“foreign intelligence service”;

the “law of the United Kingdom”;

“UK person”.”

Brought up, and read the First time.

[Tom Tugendhat]

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

The new clause contains two offences concerned with obtaining, accepting, agreeing to accept or retaining a material benefit from a foreign intelligence service. These offences add to the new toolkit for law enforcement and the intelligence agencies in responding to espionage activity.

FIS operations in the UK run contrary to our safety and interests. In order to operate successfully, a FIS needs to recruit, fund and support networks of agents to support their undeclared activity in the United Kingdom. One of the most important motivating factors that a FIS is able to deploy to recruit agents is financial inducement or the provision of benefits in kind. It is often the case—this is reflective of the tradecraft of such organisations—that only the money or other material benefits can be evidenced to a satisfactory criminal standard. The new offence will enable early intervention to prevent further harm from being caused and will further strengthen our ability to prevent FIS activity, building on clause 3.

The first offence, in subsection (1), concerns a person who obtains or accepts a material benefit for themselves or another person, or who retains a material benefit, from a FIS. That could involve obtaining or accepting legal or school fees intended for someone else’s benefit. Some benefits are excluded benefits, which I will come on to in a moment. That offence would attract a maximum penalty of 40 years.

The second offence, in subsection (2), concerns a person who agrees to accept a material benefit from a FIS for themselves or another person, which is not an excluded benefit. This offence, where no benefit is obtained, accepted or retained, would attract a maximum penalty of 10 years. For both offences, the benefit must also be provided by or on behalf of a FIS, and the person must know, or ought reasonably to know, that the benefit came from a FIS.

We must be alive to the tradecraft of foreign intelligence services and their ability to adapt and potentially overcome any narrow definitions in this area. Accordingly, we have drawn the meaning of “material benefit” wider than just financial benefit. Material benefit will include money and money’s worth, such as gifts. It will also capture wider benefits such as information, including information on a business arrangement, as well as anything that has the potential to result in a financial benefit. We have safeguards in place to ensure that legitimate activity is not brought into scope of the new clause.

Subsection (8) replicates the defences in clause 3, which means that a person does not commit an offence if they are complying with a legal obligation, conducting public functions or acting in accordance with an agreement to which the UK is a party. As with other offences in the Bill, Attorney General consent must be obtained before prosecution.

In addition to those protections, the new offences have an additional layer of protection in the form of the excluded benefit for those who have legitimate reason for receiving a material benefit—for example, because they provide services to diplomatic missions in the United Kingdom that are known to accommodate declared intelligence officers.

Under subsection (4), a benefit is an excluded benefit if it is provided as reasonable consideration for the provision of goods or services and the provision of goods and services does not constitute an offence. For example, a shopkeeper does not commit an offence by selling groceries to a person who happens to be a member of a FIS. Another example of the type of contact that is excluded through this exemption is a person who lives in Northern Ireland and works in the Republic of Ireland for the police force.

The effect of introducing the concept of an excluded benefit will mean that in cases where someone is believed to have committed an offence of obtaining a material benefit, the prosecution would need to prove beyond reasonable doubt that the benefit was not an excluded benefit.

In addition to the concept of an excluded benefit, we have made provision for a reasonable excuse defence in subsection (7), which relates only to the offence of retaining a benefit contrary to subsection (1). This has been done to allow people who, for example, may be unable to return a benefit and so are forced to retain it. It will also enable law enforcement and the intelligence agencies to target those people who do not have a legitimate reason for retaining such a benefit. Although, crucially, subsections (4), (7) and (8) allow us to take a wide range of legitimate activity out of scope, we have been careful to ensure that the offence captures all types of activity we are concerned about.

The definition of a FIS would include a police force or other body with intelligence functions, which is the same definition found in clause 3. As I said when I introduced that clause to the Committee, we have drawn it in that way because it is increasingly common for organisations and foreign Government agencies to undertake activity more traditionally associated with intelligence services.

--- Later in debate ---

[Mr Jones]

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

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

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

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

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

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

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

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

[Tom Tugendhat]

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

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

[Mr Jones]

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

[Tom Tugendhat]

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

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

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

[Mr Jones]

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

[Tom Tugendhat]

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

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

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

[Mr Jones]

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

[Tom Tugendhat]

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

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

[Holly Lynch]

Before the Minister closes, will he take an intervention?

[Tom Tugendhat]

Yes.

[Holly Lynch]

I am really grateful to the Minister. I appreciate that he is winding up. I think, if I have understood his response to my question about sex in exchange for information, that, for something to be a benefit, it would have to have a monetary value. Therefore, if there was an exchange of sex for information, that could not be prosecutable under this new clause.

I just wanted to say that because a case was brought to my attention. Partly because I am reluctant to gather any further information by typing the word “sex” into a search engine on the parliamentary estate—I am always incredibly reluctant to do that, for obvious reasons—I could not establish any further details about a specific case. Will the Minister undertake to have a look at that in a bit more detail, just to ensure that we have not missed anything through narrow definitions within this clause?

[Tom Tugendhat]

The hon. Lady can be absolutely assured that there is no way that I would like to leave out any form of inducement that a foreign intelligence service could use to entice somebody to commit a serious crime. Therefore, of course, I would be very happy to look into that.

The clause, as written, says:

“Material benefits may include financial benefits, anything which has the potential to result in a financial benefit, and information.”

Therefore, it is pretty broadly worded. I will talk to officials about how we could make it clearer if that is necessary, but I will certainly undertake to do that. Before I sit down, I will just say, God save the Queen.

Question put and agreed to.

New clause 7 accordingly read a Second time, and added to the Bill.

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

National Security Bill (Thirteenth sitting)

Tom Tugendhat Excerpts

Committee stage
Tuesday 18th October 2022 Public Bill Committees

[The Chair]

Although that is an important matter for the ISC and for this Committee, it is not a point of order. The Minister and others, however, will have heard the right hon. Gentleman’s point, and will no doubt take it into consideration in the future.

New Clause 8

Disclosure orders

“Schedule (Disclosure orders) makes provision for disclosure orders.”—(Tom Tugendhat.)

This new clause introduces the new Schedule inserted by NS1.

Brought up, and read the First time.

[The Minister for Security (Tom Tugendhat)]

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

[The Chair]

With this it will be convenient to discuss Government new schedule 1—Disclosure orders.

[Tom Tugendhat]

Thank you very much for chairing this sitting, Mr Gray. It is a pleasure to be here under your chairmanship, and a great pleasure to introduce new clause 8 and new schedule 1, which introduce a suite of measures to allow law enforcement officers to apply to the courts for orders to gather information that will assist investigations into foreign power threat activity. As with the other police powers in the Bill, the Government have carefully considered relevant existing legislation, and looked to emulate it where it has proven effective in investigating other serious crimes. I will first speak more broadly about the need for the measures as a whole, before turning specifically to disclosure orders.

Most modern investigations include lines of inquiry into finances and other property, sometimes as a starting point and sometimes to enhance other leads. Financial investigations are often critical in developing evidence that is used in criminal proceedings where there is a financial element, by identifying and tracing criminal assets and uncovering the extent of criminal networks. Financial investigation has become increasingly important in criminal investigations in recent years.

In his recent letter to the Committee, the national lead for counter-terrorism policing, Matt Jukes, stated that it can be difficult for his officers to conduct effective investigations into state threats with the current powers and tools available, and that police would greatly benefit from the inclusion of financial investigative measures. The police have stated that these lines of inquiry are particularly important in state threats cases, where actors may be motivated by financial gain but also where they deploy sophisticated forms of tradecraft, meaning that their criminal conduct is even more difficult to uncover, disrupt and evidence than for other crimes. In many cases, financial and property investigations form an important part of establishing the link between the activity and the foreign power, particularly regarding investigations into obtaining material benefits from a foreign intelligence service.

Investigations into property and finances can take place in relation to any form of criminality, but Parliament has already recognised, in both terrorism legislation and the Proceeds of Crime Act 2002, that there are certain circumstances where it is appropriate for investigators to have access to broader investigatory powers. The Committee has also recognised, in particular during our debates on schedules 2 and 3, that state threats investigations are an area where it is appropriate for investigators to have access to enhanced powers. The addition of these new financial and property investigation powers in relation to foreign power threat activity will ensure that law enforcement has the tools it needs to effectively conduct state threats investigations, prevent and mitigate harmful activity and bring those responsible to justice.

The Committee will note that these new powers are available to National Crime Agency officers, reflecting the Government’s intention, as set out in the integrated review of defence and security, to ensure that the NCA has the capabilities that it needs and to pursue greater integration where there is an overlap between serious organised crime, terrorism and state threats.

I want to take this opportunity to inform the Committee that as we have finalised these provisions, we have identified other areas in the Bill where the drafting needs to be tailored to ensure that it is consistent regarding the availability of the powers to the NCA. These small amendments will be addressed on Report.

Turning to disclosure orders, as we have discussed in Committee, schedule 2 provides for a number of powers that law enforcement can use to obtain information in state threats investigations. Law enforcement investigators require disclosure orders for state threats investigations in order to access non-excluded material by compelling individuals or organisations to provide information to investigators. It is important to note that disclosure orders cannot compel someone to answer any question or provide information that is legally privileged, or to produce excluded material. Excluded material is defined under the Police and Criminal Evidence Act 1984 and includes personal records relating to physical or mental health obtained in the course of a trade or profession, human tissue held in confidence and taken for the purposes of diagnosis or medical treatment, and journalistic material held in confidence. If excluded material were required by investigators, a production order under schedule 2 would be required.

Much of the information that investigators seek under a disclosure order may be considered confidential in nature, such as payment details, but is not classed as excluded material. That may be required because the police have previously approached an organisation to ask for the non-excluded material to be provided, but the organisation has refused because it does not consider that it should disclose the information in the absence of a clear power of compulsion. It may be because the police are conducting a complex investigation involving several organisations that could require multiple requests for information over time. In such a scenario, which is likely to occur in state threats investigations, the police require a streamlined process whereby one order is available to cover separate requests for information from multiple organisations without creating an undue administrative burden on law enforcement, the courts or those who might receive such requests.

In the absence of a disclosure order, a schedule 2 production order, if applicable, would need to be made for every request for information, requiring a large amount of police resource as well as court time. Disclosure orders streamline this process and reduce the numbers of orders needed for requests for non-excluded material during an investigation. For example, if the police were conducting a state threats investigation into an individual and needed to access information from several airline companies regarding the suspect, the company may be willing to provide only basic customer information, such as the full name, without a formal court requirement. If the police required access to the suspect’s payment information used for a plane journey that is suspected of being related to state threat activity, the company may refuse to provide that information, even if investigators provided the company with reassurance that providing this information was in the interests of the prevention of crime. Executing a warrant on the company may be possible, but may not be an appropriate course of action by the police. In some cases, a production order under schedule 2 might be available, but that will not always be the case. Disclosure orders will provide a more proportionate and appropriate way of providing investigators with the information required.

In another example, the police may suspect that a person is purchasing a specialist piece of computer equipment to use in the commission of a state threats offence. The police suspect that the equipment has been purchased from one of a small number of possible companies. In that case, a single disclosure order could be sought, enabling the police to seek information from the companies in question, instead of the police needing to seek multiple production orders.

We recognise that these orders could enable the police to give a notice to a wide range of organisations. As such, senior authorisation is required within law enforcement before an application can be made to the courts. In addition to the requirement for senior authorisation, a disclosure can be made only in relation to an investigation into the identification of state threats property, which is defined as money or other property that could be used for the commission of foreign power threat activity, or the proceeds from such activity. This restriction to investigations into relevant property reflects the scope of the equivalent powers in terrorism and proceeds of crime legislation.

Furthermore, the judge must be satisfied that there are reasonable grounds for believing the information being sought would be of substantial value to the investigation, and for believing that it is in the public interest for the information to be provided, having regard to the benefit of the investigation. Disclosure orders provide for an effective and flexible means of obtaining information in a state threats investigation. Sitting alongside the powers of schedule 2, they would ensure that investigators have efficient and effective access to the information that they need to conduct their inquiries.

[Holly Lynch (Halifax) (Lab)]

It is always a pleasure to serve under your chairmanship, Mr Gray. I also welcome hon. Members back to the final day of the Committee. We welcome new schedules 1, 2 and 3, and hope that they will reflect the complex and evolving nature of state threats, and the significant technical and financial resources that provide the capability for sustained hostile activity.

For too long, our police and security services have had to use blunted tools in this regard, not designed to address adequately the challenges posed by modern day espionage. We are grateful to Counter Terrorism Policing for submitting written evidence to the Committee, and making its support for the new schedules 1, 2 and 3 very clear. Frankly, the Met provided far more in its written evidence on the rationale of these provisions than the explanatory notes accompanying the new schedules from the Government—a point made by my right hon. Friend the Member for North Durham.

The fairly non-existent explanatory notes are a constant challenge from this part of the Bill onwards, affecting later amendments, which is disappointing for all hon. Members trying to follow the detail closely. As the Minister said, Assistant Commissioner Matt Jukes said in his written evidence to the Committee:

“We have requested financial investigation powers to support our investigations in this space. To this end we have articulated a clear requirement to emulate various investigatory powers within the Terrorism Act which centre on financial investigations as well as examination of material which can be used for investigatory purposes. We are assured that these will be introduced by way of a forthcoming amendment. If so, this will further ensure that we have the tools required to successfully investigate and disrupt state threat activity.”

We welcome the new schedules, and now that the long overdue Economic Crime and Corporate Transparency Bill has been published, no doubt the new schedules are intended to work alongside some of the part 5 provisions in that legislation. Currently, terrorism disclosure orders can be made under schedule 5A of the Terrorism Act 2000. Counter Terrorism Policing has called for an explicit disclosure order for state threats, stating that it will help investigators benefit from a streamlined process, whereby one order is available to cover separate requests for information from multiple organisations, without the need to return to court. I want to push the Minister on oversight. I have made the case for an independent reviewer of all the new measures in the Bill. As those will be investigatory powers, will the Minister confirm that the investigatory powers commissioner will have responsibility for overseeing their use?

Turning to paragraphs 7 and 17 of new schedule 1, paragraph 7 outlines offences in relation to disclosure orders. Sub-paragraph (3) states that a person commits an offence if

“in purported compliance with a requirement imposed under a disclosure order, the person—

(a) makes a statement which the person knows to be false or misleading in a material particular, or

(b) recklessly makes a statement which is false or misleading in a material particular.”

By comparison, paragraph 17(1) states that a

“statement made by a person in response to a requirement imposed under a disclosure order may not be used in evidence against that person in criminal proceedings.”

I cannot quite square that off. I am keen to better understand why the information provided by a person under a disclosure order could not be used as evidence in criminal proceedings.

Before concluding, as I have said before, I accept that it is standard to refer to a police officer as “constable” in legislation, despite the fact that in doing so we are referring to police officers of any rank, not the rank of constable, which seems problematic. New schedule 1 is a prime example of where it gets messy. Paragraph 1(5) says that an appropriate officer for the purposes of these powers is either a constable or a National Crime Agency officer. It is not until paragraph 2(10) that the provision states that an appropriate officer must be a senior officer or authorised by a senior officer. Not until paragraph 9(4) does it confirm that “senior officer” must be a superintendent or above. Would it not be clearer to be explicit about the stipulated rank required to exercise certain powers at the earliest opportunity, instead of allowing for the ambiguity of the word “constable”? The last thing any of us want is for any ambiguity to be exploited by defence lawyers in the courts.

--- Later in debate ---

[Maria Eagle]

Sorry; it is in new schedule 1. That was my mistake, Mr Gray, and I apologise. I am not seeking to confuse proceedings any more; it is confusing enough to have to scrutinise the provision without an explanatory memorandum. That makes this kind of provision very difficult to scrutinise with any real sense. The point I wanted to make is about paragraph 3(4) of schedule 1, which says,

“A disclosure order has effect despite any restriction on the disclosure of information imposed by an enactment or otherwise.”

The words “by an enactment” seem to make it pretty clear that unless it excludes material, the provision is designed to enable the investigating authority to look at anything. Can the Minister give an example of what that aims to remedy? What lacuna is it aimed at preventing? We are talking about waving through a provision that allows a disclosure order to ignore another enactment, and that seems to me to be a large power.

The provision goes on to say, “or otherwise”, which is an absolute catch-all phrase. Can the Minister can explain why the provision is drafted so widely, as well as what kind of “otherwise” arrangement it seeks to get around and why? It seems to me to be extraordinarily wide. We might have seen the rationale for that in an explanatory memorandum, had there been one, but we do not have one to hand. Perhaps the Minister can tell us whether we will have an explanatory memorandum before the completion of the Commons stages of the Bill. I think that waving through extraordinarily wide arrangements is cause for concern if we are trying to scrutinise what the Government seek to do and why.

[Tom Tugendhat]

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

[Mr Jones]

Not true!

[Tom Tugendhat]

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

[Mr Jones]

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

[Tom Tugendhat]

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

[Mr Jones]

And stop making things up.

[Tom Tugendhat]

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

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

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

Question put and agreed to.

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

New Clause 9

Customer information orders

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

This new clause introduces the new Schedule inserted by NS2.

Brought up, and read the First time.

[The Chair]

With this it will be convenient to consider Government new schedule 2—Customer information orders.

[Tom Tugendhat]

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

New clause 9 and schedule 2 seek to insert customer information orders into the Bill as part of the suite of investigatory measures. Those who engage in state threats activity are highly trained individuals who have knowledge of tradecraft that can obfuscate their identity and real intentions.

For example, the tradecraft could be used to conceal transactions by creating secret bank accounts under false identities, or accounts registered to different addresses, in order to send or receive money for conducting activity. The operational objective of a customer information order is to enable an investigator to identify accounts and other account information in relation to state threats investigations. For example, this could be where a foreign agent is paying others to conduct state threats activity in the United Kingdom and police need to identify where the agent’s account is held, or it could be where a suspect is using a covert account under a false identity to receive funds to use for the purposes of state threats activity.

The customer information order is therefore intended for use as a tool of discovery during an investigation, often in the early stages. Once accounts have been identified through a customer information order, they could, where appropriate, be subject to further monitoring or investigation through a schedule 2 production order or an account monitoring order. Without customer information orders, accounts used by those conducting state threats activity may go unidentified, reducing investigative opportunities and, in turn, the ability for law enforcement to disrupt harmful activity and bring offenders to justice. We recognise that such orders could potentially require any financial institution to provide information about relevant customers. As such, senior authorisation is required within law enforcement before an application can be made to the courts.

We expect that, in practice, the powers will be used by police and NCA officers who have received relevant financial investigator training, and we are continuing to work with the police and NCA on creating the relevant guidance. Again, we have modelled the provisions on the terrorism equivalent and the measures used in the Proceeds of Crime Act 2002, and the consistency of these processes will ensure that law enforcement officers can make the most effective use of the powers. As I have set out, the customer information orders are another important investigative tool, opening new lines of inquiry and ensuring that law enforcement can run effective state threats investigations.

[Holly Lynch]

New clause 9 and new schedule 2 establish customer information orders, which authorise the police and NCA officers to obtain customer information from financial institutions. In its written submission to the Committee, for which we are all grateful, Counter Terrorism Policing has welcomed the provision, stating that it will

“enable investigators to identify accounts in relation to state threat investigations, or where an individual is using a covert account under a false identity to receive funds to use for the purposes of state threats.”

As the Minister outlined, the tool has been available to law enforcement for terrorism investigations thanks to schedule 6 to the Terrorism Act 2000, and it has been available for criminal investigations through the Proceeds of Crime Act. However, according to Counter Terrorism Policing, it has not been possible to use either Act in relation to state threats investigations, so we welcome the provision. It prompts the question of why we have not addressed this issue sooner.

Subsection (2) states that the judge may grant the order if they are satisfied that

“the order is sought for the purposes of an investigation into foreign power activity”,

and that

“the order will enhance the effectiveness of the investigation.”

We have spoken a lot about the value of an independent reviewer, and I welcome the substance of the Minister’s comments. It is worth keeping under review the threshold of a judge being satisfied that the order is sought for the purposes of investigation into foreign power activity. We cannot use these orders without good cause, but if we need them to be able to find evidence of foreign power activity, will investigators be able to satisfy a judge prior to that? It will be interesting to see how many applications are granted and rejected once we start to work with the orders. Aside from those points, I am happy with new schedule 2.

[Stuart C. McDonald]

I will make a couple of brief points. The broad thrust of the new schedule and the intention behind it seem absolutely fine, but I am interested in the tests that must be satisfied before an order is made. Under the previous schedule on disclosure orders, the judge has to be satisfied that there are reasonable grounds for suspicion, that there is substantial value in the information gained under the order and that the order would be in the public interest.

In contrast, here in new schedule 2, the judge has to be satisfied only that the order is sought for the purposes of an investigation and that it will enhance the effectiveness of that investigation. That seems a pretty low bar to allowing this pretty invasive procedure to be gone through. Why that choice of language? I guess it is modelled on the provisions that have been mentioned. I have probably not been as diligent as the shadow Minister has in doing my homework and tracking through the previous bits of legislation, and I will now do that. The information gained under these orders could be pretty intrusive, so we need to ensure we are not giving carte blanche to all sorts of intrusive investigations. I am a little bit concerned about the low level of test, compared with the test for disclosure orders.

My second, brief point is that paragraph 4 of the new schedule suggests that the person whose records are about to be trawled through can seek to vary or discharge the order. It is not clear to me how they would go about doing that, given that I suspect most orders will be made without any notice, and they can even be made by a judge in chambers. What assurance can we have that people will be able to challenge this potentially intrusive investigation?

[Tom Tugendhat]

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

[Mr Jones]

More to come!

[Tom Tugendhat]

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

Question put and agreed to.

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

New Clause 10

Account monitoring orders

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

Brought up, and read the First time.

[The Chair]

With this it will be convenient to consider Government new schedule 3—Account monitoring orders.

[Tom Tugendhat]

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

I turn to new clause 10 and schedule 3—

[The Chair]

New schedule 3.

[Tom Tugendhat]

My apologies; I meant new schedule 3. New clause 10 and new schedule 3 provide for account monitoring orders for certain investigations into state threats. Police need to be able to obtain information relating to accounts held by a suspect in real time in order to identify and act on disruptive opportunities related to state threats activity. An account monitoring order will require a financial institution to provide specified information in relation to an account—for example, details of all transactions passing through the account—for a specified period not exceeding 90 days.

--- Later in debate ---

[Mr Jones]

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

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

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

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

[Tom Tugendhat]

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

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

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

[Mr Jones]

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

[Tom Tugendhat]

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

Question put and agreed to.

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

New Clause 11

Requirement to register foreign activity arrangements

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

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

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

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

(3) “Specified person” means—

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

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

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

(a) the person is not an individual, and

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

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

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

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

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

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

(6) In subsection (5) “officer”—

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

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

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

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

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

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

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

(a) knows, or

(b) ought reasonably to know,

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

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

Brought up, and read the First time.

[Tom Tugendhat]

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

[The Chair]

With this it will be convenient to discuss the following:

Government new clause 12—Offence of carrying out activities under an unregistered foreign activity arrangement.

Government new clause 13—Requirement to register activities of specified persons.

[Tom Tugendhat]

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 (Dundee East) (SNP)]

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.

[Tom Tugendhat]

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

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

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

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

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

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

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

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

[Mr Jones]

Will the Minister give way?

[Tom Tugendhat]

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

[Mr Jones]

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

[Tom Tugendhat]

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

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

[Mr Jones]

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

[Tom Tugendhat]

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

[Maria Eagle]

Is my understanding correct that tier 1 is about capturing arrangements and activity undertaken for the purpose of influencing a political event or decision, but that the second tier will capture all other behaviour beyond political influencing, such as acting as a foreign intelligence officer? Is it correct that the scheme as set out at present is aimed at making everyone apply at the lowest level—the political influencing level—but that only more serious incidents will be dealt with by designating individual countries or companies? We are going to immediately run into the difficulty of upsetting diplomatically any person, company or country that is designated for more serious activity.

[Tom Tugendhat]

The hon. Lady is not noted for her shyness. I am surprised that she feels that the diplomatic repercussions of designating a company or country should dissuade the UK Government from defending themselves. I know she does not think that, and I know the right hon. Member for North Durham does not think that.

The different schedules identify the different natures of influence being used. As the hon. Lady rightly identifies, schedule 1 is about political influence. As I think we all appreciate in this House, that should be public. Those who seek to influence anyone in this House or anyone else by political means, whether through lobbying or in different ways, should identify on whose behalf they are doing so. I do not think that is a very contentious provision.

[Maria Eagle]

indicated assent.

[Tom Tugendhat]

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

[Mr Jones]

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

[Tom Tugendhat]

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

[Mr Jones]

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

[Tom Tugendhat]

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

[Mr Jones]

Not for the first time.

[Tom Tugendhat]

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

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

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

[Stewart Hosie]

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]

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

[Mr Jones]

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

[Tom Tugendhat]

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

[Mr Jones]

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

[Tom Tugendhat]

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

[Mr Jones]

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

[Tom Tugendhat]

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

[Mr Jones]

I don’t think I have.

--- Later in debate ---

[Tom Tugendhat]

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]

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]

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.

[Stuart C. McDonald]

What happens if an intermediary is involved? What if a designated state power says to someone locally, “You arrange for these activities”, rather than saying to someone in the United Kingdom, “I want you to undertake these activities”? That falls within the terms of the new clause. That intermediary then instructs people in the United Kingdom to undertake activities. Does that not mean there is a gap in the clause and that people in the UK undertaking those activities would not have to register anything? It would be almost impossible to enforce against that intermediary requirement to register. Is there not a potential problem there?

[Tom Tugendhat]

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

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

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

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

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

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

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

[Mr Jones]

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

--- Later in debate ---

[Tom Tugendhat]

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

[Mr Jones]

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

[Tom Tugendhat]

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

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

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

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

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

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

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

--- Later in debate ---

[Mr Jones]

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

[Tom Tugendhat]

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

[Stewart Hosie]

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]

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

[Mr Jones]

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

[Tom Tugendhat]

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

[Mr Jones]

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

[Tom Tugendhat]

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

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

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

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

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

[The Chair]

Before we move on to the debate, may I raise a matter to the Committee that has been brought to my attention? The 1922 Committee elections for Select Committees happen at 2 o’clock this afternoon, which is an obvious clash with the meeting of this Committee. I understand that it would be possible for the Minister to move an amendment to the sitting time this afternoon to 2.15, if he wished to do so. Any objection from any member of the Committee would of course make that fall. Before we enter a discussion—although I would rather not discuss it too long—would the Minister be prepared to move that the Committee should sit at 2.15?

[Tom Tugendhat]

I would be prepared to move that, if the Committee were supportive.

[Maria Eagle]

Would it be possible to extend the sitting by 15 minutes, so that no time is lost? If we were to do that, I would have no objection.

--- Later in debate ---

[Mr Jones]

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

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

[Tom Tugendhat]

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

National Security Bill (Fourteenth sitting)

Tom Tugendhat Excerpts

Committee stage
Tuesday 18th October 2022 Public Bill Committees

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

As we adjourned this morning, I was expressing concern about the complexity of the two-tier scheme embodied in the new clauses. I was suggesting that it might be more effective to have one tier that applied to all countries and a broad range of covert activity, rather than this two-tier arrangement, which is more difficult to understand and which presents more barriers to the Government of the day, and to the Minister in particular, in designating those who ought to be covered by the secondary tier, which the Minister referred to as the enhanced tier. It might be more sensible to have a simpler but more extensive scheme that does not require lots of extra Government activity and inter-departmental negotiations between the Security Minister and other Ministers who are looking at relations with foreign countries and companies through a different lens. That was my basic point.

It is difficult to understand why, unlike comparable schemes in Australia and the US scheme, there are two tiers, and why the registration of harmful activity outside of political influencing—some of which is more serious—applies only where the foreign power has been designated by the Government. If it is not designated, or while the Minister is desperately trying to persuade other bits of Whitehall that it ought to be, such activity could go on unimpeded by these arrangements and the necessity for registration. That will have a consequent, knock-on effect on the transparency that should be gained, which is supposed to be one of the purposes of the scheme. If we cannot get something registered because there is no agreement in Government, we will not get the additional transparency that is supposed to be one of the major benefits of the foreign influence registration scheme.

I am questioning the entire underpinning of the way in which the scheme has been designed. I am certainly not convinced that it is better than a simpler but broader arrangement. That was the essential point that I wanted to make. I do not wish to repeat every point that my right hon. Friend the Member for North Durham or the shadow Minister, my hon. Friend the Member for Halifax, have made. However, I believe that the scheme, as set out in the new clauses, is too complicated and could be simpler, and that, were it simpler, it would be more effective.

[The Minister for Security (Tom Tugendhat)]

I pay tribute to the hon. Member for Garston and Halewood and the right hon. Member for North Durham for the tone with which they have approached the debate. I appreciate their comments and those of the shadow Minister, who has made similar points. They have made them in the spirit of openness, proper debate and trying to improve what they see, correctly, as a Bill that will keep our country safe. I am grateful to them for that.

I will go through some of the points that have been made. First, the right hon. Member for North Durham asked about the purpose. Part of the objective of registering under the scheme is to highlight and to be clear. This is not a sanction. The very fact that a scheme exists for foreign companies that trade with British companies does not in any way mean that it is a sanction. The intention is to bring transparency to relationships that might otherwise lie hidden. It is intended not as a punishment, but merely to promote openness.

The requirement to register an arrangement within 10 days is made so that the person acting on behalf of the Government, or the individual, makes that clear at that point or within a reasonable period of time. I am happy to hear arguments for a slightly longer or less long period, but I think 10 days is a reasonable period for a registration to be made. Again, that is not supposed to be a sanction or an obstacle, but it is merely supposed to be a way of achieving transparency. It is not really supposed to be stopping the entire process, but merely supposed to be enabling people to know what is going on. If there was a requirement, and if it was a sanction, that would be different and the process would have to stop immediately. That is not what this is about.

[Holly Lynch (Halifax) (Lab)]

Will the Minister give way?

[Tom Tugendhat]

Briefly, because we have so much to get through.

[Holly Lynch]

Of course, and I am grateful. May I bring the Minister’s attention to an example that I have had a chance to look at, and which has broken today? Up to 30 former UK military pilots are thought to have gone to train members of China’s People’s Liberation Army. They have been offered lucrative packages of up to £237,000 for their expertise in training Chinese pilots. Actually, a Ministry of Defence spokesperson has said that they are attempting to disrupt that activity

“while the new National Security Bill will create additional tools to tackle contemporary security challenges—including this one.”

Just looking at that example of where presumably some of those involved in headhunting might need to register that activity—

[Holly Lynch]

There is a need to try to put a stop to some of this activity, and I just wonder what the relationship is between the visibility and the need to stop it.

[Tom Tugendhat]

As the hon. Lady will know very well, I share her deep concern at this information, which was reported just this morning. First, may I say that there are already many different clauses in the Bill that are designed to make sure that individuals should not be co-operating with those who may be trying to steal secrets or to gain from secret information. It is possible, although I have not got the details of the case, that similar sorts of cases may be covered under other clauses in order to prevent the acquisition of information. The foreign agents element—the foreign influence element—would also come to play, but it is not the only element in the Bill that would come into play. It is absolutely correct that we do need the Bill in order to prevent such actions, which at the moment are more loosely defined, and therefore possible. The foreign influence element is not the only element, but I appreciate the spirit in which the hon. Lady has entered the discussion.

If I may, I will speed up a little.

[The Chair]

That would be good.

[Tom Tugendhat]

You are very welcome, Mr Gray.

Subsections (3) and (4) of new clause 11 make it clear that a specified person can be a foreign power or an entity that is not an individual. Parliamentary drafters use that terminology for the legislation, but detailed guidance will be prepared so that it is clear to the public and businesses who is included.

I will follow up on other questions in writing, if I may, because a whole load of questions were put before lunch and I think many of us have forgotten which elements they related to. I will therefore conclude my remarks.

Question put and agreed to.

New clause 11 accordingly read a Second time, and added to the Bill.

New Clause 12

Offence of carrying out activities under an unregistered foreign activity arrangement

“(1) A person commits an offence if—

(a) the person carries out an activity, or arranges for an activity to be carried out, in the United Kingdom pursuant to a foreign activity arrangement required to be registered under section (Requirement to register foreign activity arrangements)(1),

(b) the arrangement is not registered, and

(c) the person knows, or ought reasonably to know, that they are acting under the direction of a specified person.

(2) Subsection (1) does not apply to a foreign power.”—(Tom Tugendhat.)

This new clause makes it an offence to carry out activities under a foreign activity arrangement that should be, but is not, registered.

Brought up, read the First and Second time, and added to the Bill.

New Clause 13

Requirement to register activities of specified persons

“(1) A specified person must not carry out activities in the United Kingdom unless the activities are registered with the Secretary of State.

(2) The prohibition in subsection (1) does not apply to a foreign power.

(3) A person who breaches the prohibition in subsection (1) commits an offence if the person—

(a) knows, or

(b) ought reasonably to know,

that the activity in question is not registered.”—(Tom Tugendhat.)

This new clause requires registration of activities carried out in the UK by a specified person.

Brought up, read the First and Second time, and added to the Bill.

New Clause 14

Requirement to register foreign influence arrangements

“(1) A person who makes a foreign influence arrangement must register the arrangement with the Secretary of State before the end of the period of 10 days beginning with the day on which the person makes the arrangement.

(2) A ‘foreign influence arrangement’ is an arrangement with a foreign principal pursuant to which the foreign principal directs the person—

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

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

(3) ‘Foreign principal’ means—

(a) a foreign power,

(b) a body incorporated under the law of a country or territory outside the United Kingdom, or

(c) an unincorporated association formed under the law of a country or territory outside the United Kingdom, other than an association of persons where each person is a United Kingdom national,

but does not include a person within subsection (4).

(4) Those persons are—

(a) a specified person;

(b) a body incorporated under the law of the Republic of Ireland, or an unincorporated association formed under the law of the Republic of Ireland;

(c) an international organisation.

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

(6) The requirement in subsection (1) does not apply to—

(a) a recognised news publisher, or

(b) a person who makes a foreign influence arrangement with a recognised news publisher where the purpose, or one of the purposes, of the arrangement is the publication of news-related material.

(7) Subsection (1) applies in relation to a foreign influence arrangement made before the day on which this section comes into force as if, for the words from ‘10’ to the end, there were substituted ‘3 months beginning with the day on which this section comes into force.’

(8) A person who fails to comply with subsection (1) commits an offence if the person knows that the arrangement in question is a foreign influence arrangement.

(9) In this section—

‘international organisation’ means a person (other than an individual) which—

(a) is governed by international law,

(b) is set up by, or on the basis of, an agreement between two or more countries, or

(c) is recognised under an agreement between two or more countries and is specified by the Secretary of State in regulations;

‘news-related material’ and ‘publish’ have the meaning given by section 50(5) of the Online Safety Act 2022;

‘recognised news publisher’ has the meaning given by section 50 of the Online Safety Act 2022 but as if, in subsection (2)(e) of that section, ‘in the United Kingdom’ were omitted;

(10) Regulations under subsection (9) may specify a person or a description of persons.”—(Tom Tugendhat.

This new clause requires registration of arrangements with foreign principals to carry out political influence activities in the UK. Political influence activities are defined in NC15.

Brought up, and read the First time.

[Tom Tugendhat]

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

[The Chair]

With this it will be convenient to discuss the following:

Government new clause 15—Meaning of “political influence activity”.

Government new clause 16—Offence of carrying out political influence activities pursuant to unregistered foreign influence arrangement.

Government new clause 17—Requirement to register political influence activities of foreign principals.

[Tom Tugendhat]

New clauses 14 to 17 relate to the primary registration requirement, which is the requirement for political influence activities to be registered where they are either to be carried out, or arranged to be carried out, in the United Kingdom at the direction of a foreign principal, or to be carried out by a foreign principal.

Before I get into the effect of these new clauses, I want to be clear and up front that the UK is welcoming of open and transparent engagement from foreign Governments and entities. Governments around the world, including the UK, should seek to advance their interests through the lobbying and influencing of other states—after all, that is what diplomacy is. Where this is conducted openly and transparently, it is welcome and plays a vital part in our democracy and public debate, as well as being essential to international relations and civil society.

The primary registration requirements under this scheme will play a critical role in encouraging that openness and transparency, while simultaneously deterring foreign powers that wish to pursue their aims covertly through the use of agents and proxies. It can only be right that the UK public and our democratic institutions are protected from covert influence and are better informed as to the scale and extent of foreign influence in our political affairs. Again, each of the new clauses is substantive so, as with the previous group, I will take each in turn.

New clause 14(1) requires a person to register with the scheme where they are in an arrangement with a foreign principal to carry out political influence activities within the UK, or where the person is to arrange for such activities to be carried out. The person must register within 10 days of the arrangement being made. I covered several relevant points of detail in my speech on the equivalent provision under the enhanced registration scheme relating to foreign activity arrangements, which we have already discussed today. I will not repeat those explanations, but will instead focus on key points of difference.

First, subsections (5) and (6) clarify who is not “a person” for the purpose of defining a foreign influence arrangement and who the requirement does not apply to. I have already explained, in our discussion on the previous group of new clauses, why a foreign power is not required to register, and the same principle applies here. In addition, the requirement to register does not apply to a recognised news publisher or a person who makes a foreign influence arrangement with a recognised news publisher where the purpose, or one of the purposes, of the arrangement is the publication of news-related material. The practical effect of this aspect of the new clause is to ensure that domestic and foreign news publishers cannot be in a registerable arrangement with a foreign principal, and nor can a person—for example, a freelancer—where the foreign principal is a recognised news publisher and the arrangement concerns the publication of news-related material.

I mentioned in my opening remarks on FIRS that these requirements are deliberately state and sector agnostic, and that it is the responsibility of all sectors to demonstrate transparency and accountability, but with exceptions for where existing obligations apply. This is one such example. We have a proud tradition in this country of upholding the freedom of the press. Indeed, it is our obligation to ensure that journalists are empowered to carry out their legitimate activity independent of state involvement. We do not consider it appropriate to replicate this safeguard for the enhanced measure. Unlike the primary registration requirement, specifying an entity for the enhanced assurance measure will be reserved for where the Government have determined that a greater level of scrutiny is needed to protect the safety or interests of the UK. As such, we do not consider it appropriate to replicate this safeguard for the enhanced measure.

Secondly, the clauses use different terminology from the enhanced registration requirement. The definition of arrangement requires there to be direction from a “foreign principal”, rather than a specified foreign power or entity subject to foreign power control, as is the case under the enhanced registration requirement. The definition of “foreign principal” in subsection (3) includes

“a foreign power…a body incorporated under the law of a country or territory outside the United Kingdom, or…an unincorporated association formed under the law of a country or territory outside the United Kingdom.”

I will not dwell on why the requirement applies to a foreign power, as that should be obvious. Instead, I want to address the importance of this definition capturing any foreign entity rather than those subject to foreign power control, as it is perhaps one of the most complex areas of this scheme.

We know that foreign powers deploy their influence through seemingly private or independent entities. This can be achieved through formal links with such entities, which may include shares, subsidies or financing, voting rights, or through other obligations to collaborate with the state. It can also be achieved through informal links, such as understandings or verbal agreements. There are also entities that are ostensibly private, yet nonetheless act to further a foreign power’s interests.

It is our intention to apply the registration requirements to all of those types of entity by requiring foreign influence arrangements to be registrable where made with any foreign entity. This is the approach taken by the Foreign Agents Registration Act in the United States, and it was the ambition of Australia’s foreign influence transparency scheme before its parliamentary passage. The Australian scheme’s definition of “foreign principal” was amended by its Parliament to require a formal connection between an entity and a foreign Government for activity to be carried out on its behalf to be registrable. Such a connection would need to meet technical criteria of ownership or control, or a formal obligation to act in accordance with the directions or wishes of the foreign Government.

--- Later in debate ---

[Maria Eagle]

New clause 14(9) includes definitions that refer to “the Online Safety Act 2022”, but that is a Bill, not an Act, and it is not on the statute book, is it?

[Tom Tugendhat]

It will be very soon.

[Maria Eagle]

Will it?

[Tom Tugendhat]

That is the plan.

[Maria Eagle]

Is it correct for this Bill to make reference to another Bill as being an Act of Parliament when it is not?

[Tom Tugendhat]

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

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

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

[Tom Tugendhat]

That is simply not correct.

[Tom Tugendhat]

That is simply not correct. It is going forward. [Interruption.] I commit to writing to hon. Members should there be any changes, but the Bill is still going forward.

New clause 15 defines “political influence activity” for the purposes of the scheme’s primary registration requirements. This relates to new clause 14, which we have just considered, as well as the other new clauses in this group. The overarching aim of the definitions in this new clause is to ensure that activities are registrable if they intend to affect political decision making, proceedings and those with the right to engage in UK electoral processes. I will break that down into four points: three points governing the relevant activities, which include lobbying, public communications and disbursements; and one covering the intended purpose.

Lobbying, for the purpose of this scheme, is defined under proposed new subsection (2)(a) as “making any communication to” a listed person. Capturing “any communication” is important in this context, as we do not want to provide an easy way for those engaged in state act threat activity to avoid the requirement to register by adopting a different means of communication. The listed persons include His Majesty’s Government and devolved Ministers; Members of the legislature; officers, trustees or agents of a registered political party; candidates at national, devolved or local elections; and senior officials or special advisers. We recognise that there are existing rules and regulations to ensure transparency and accountability around such activity. They include the provisions of the Lobbying Act 2014, as well as codes of conduct for those listed, including Ministers, officials, special advisers and Members of the legislature.

The foreign influence registration scheme will offer an extra layer of protection against those seeking to engage in covert lobbying for foreign powers directly, or indirectly through other foreign entities. These offences and penalties reflect that. They will require people to be transparent about who they are acting for, and will inform the public of the nature and scale of foreign influence in UK’s political affairs.

The persons listed in this new clause have been identified as those most likely to be of use to foreign powers in effecting change in our political system or proceedings. The primary registration requirement under FIRS will not only hold those persons to high standards while they are in public office or service, or engaging in our proceedings and elections, but will seek to protect them from those who would seek to influence them covertly. Of course, it may be necessary to amend the list and adapt it in the light of the trends and behaviours we see; that is why we propose including an ability to amend the list by regulations, so that the scheme is future-proofed against emerging threats.I remind hon. Members that for lobbying to be in scope of the scheme, it must be at the direction of a foreign principal, and must be for a political purpose. It is hoped that that constraint will ensure that the scheme delivers its objectives without unnecessarily bringing a wider range of activities within scope.

Public communications activity is registerable under proposed new subsection (2)(b) where it is not already reasonably clear that it is made at the direction of a foreign principal. This applies to the dissemination, or production for publication, of information, a document or other article. The ability to mobilise public opinion can be a powerful means of engaging with our political system and effecting change. The intention behind this limb of activity is to ensure that the public are aware of who is behind a communication that may influence the way they exercise their rights in this country, or the way they engage with our political system. It is to guard against those who seek to manipulate public opinion for the benefit of foreign powers and to the detriment of UK interests and security.

I emphasise, however, that a public communication is registerable only where it is not already reasonably clear that it is made at the direction of a foreign principal. Where a foreign principal is itself undertaking the activity—we will come to that shortly—that would already be clear to the public. A foreign charity making a public communication in its own name would not need to be registered. However, where a foreign charity directs a public relations firm to make the public communication, that firm would have a choice: either it makes it reasonably clear through the communication that it has been directed to make that communication by the foreign charity, or it registers that arrangement with the scheme.

Providing this choice offers a practical option to prevent all public communications for foreign principals from needing to be registered. By its very nature, a communication to the public is visible to the public; it therefore achieves the transparency aims of the scheme, so long as it is clear who it is for. We do not think that same rationale applies to the lobbying and disbursement limbs of political influence activities, which are naturally less visible to the public.

Thirdly, I will address disbursement activity. Under proposed new subsection (2)(c), this includes

“distributing money, goods or services to UK persons”,

and “UK persons” is defined in the Bill as including

“(a) a United Kingdom national;

(b) a body incorporated under the law of a part of the United Kingdom;

(c) an unincorporated association formed under the law of a part of the United Kingdom.”

As with public communications, targeted incentives can be a key method of deploying influence—for example, through the provision of money or hospitality.

The intention behind this limb of activity is to ensure that the public have greater visibility of how that influence is deployed by foreign principals. Under electoral law, political donations from or on behalf of individuals not on the electoral register, such as foreign donors, are prohibited, but the disbursement of money, goods and services to mobilise sections of the public for a particular cause is not. The definition of “political influence activity” in this scheme is cast more widely than the scope of electoral law.

For example, if a foreign principal was to distribute funds to organisations in the UK with the intention of influencing a Government decision, that would be covered by the foreign influence registration scheme. If foreign principals make or direct such disbursements that are not regulated by electoral law, with the intention of affecting the way in which a UK person exercises their democratic rights or how they engage with the UK political system, the Government are of the view that such activity should be transparent. That is to strengthen our resilience against those who seek to manipulate or mobilise the public for the benefit of foreign powers and to the detriment of the United Kingdom’s interest and security.

Finally, there is the purpose of the activity that makes it registerable. Whether the activity is lobbying, a public communication or disbursement, the purpose, or one of the purposes, of it must be to influence a matter or person listed in proposed new subsection (3). Those matters and persons include: the conduct of a UK election or referendum; a decision of the UK Government or Ministers in the devolved Administrations; the proceedings of Parliament or the devolved Administrations; the proceedings of a registered UK political party; or a Member of Parliament or the devolved Administrations.

The list is intended to limit the circumstances in which registration is required to circumstances in which there is an intention to influence UK political decision making, proceedings and those with the right to engage in UK electoral processes. The list is sufficiently broad to capture all the areas that we think require greater scrutiny, while maintaining proportionality. The measures should give the Government and the public greater clarity on the scale and extent of foreign influence in our political and governmental processes, while strengthening their resilience against covert foreign influence.

New clause 16 is the corresponding offence for the primary registration requirement to that which we discussed in the previous group of new clauses relating to the enhanced registration requirement in new clause 12. I will not repeat all the points I made earlier. New clause 16 makes it an offence to carry out a political influence activity, or to arrange for it to be carried out, pursuant to a registerable foreign influence arrangement that has not been registered. The main difference between this offence and that under the enhanced registration requirement is that this would require a person to know that they are acting pursuant to an arrangement that is not registered. As I explained earlier, we have deliberately created a higher bar for prosecution compared with the enhanced measure. It would need to be evidenced that a person knew an arrangement was unregistered and yet continued to carry out the activity.

New clause 17 is the corresponding registration requirement to that which we discussed in the previous group of new clauses relating to the enhanced registration requirement in new clause 13. Again, I will not repeat all the points I made earlier. New clause 17 requires foreign principals to register their political influence activities that are to be carried out in the UK. This prevents there being an obvious gap in the requirement to register, and will support the scheme’s objective of strengthening the resilience of the UK political system against covert influence. As with the enhanced registration requirement, foreign powers would not be expected to register under FIRS, so this requirement will apply only to a foreign entity that is to undertake political influence activities within the UK. The requirement will also not apply to a recognised news publisher for the same reasons that they are not required to register a foreign influence arrangement.

An offence would be committed if the foreign entity fails to register their political influence activities, and they know that the activity in question is not registered. Again, as I explained earlier, we have deliberately created a higher bar for prosecution, compared to the enhanced measure. I ask the Committee to support these new clauses.

--- Later in debate ---

[Tom Tugendhat]

I want to start by addressing the point about disinformation, which is also about fake journalism. Hon. Members are absolutely right that that is a point that needs to be addressed by the Online Safety Bill, which I am sure is coming back—although I am but a Minister, so what would I know? I hope very much that it will. I accept that there may be a need for a drafting adjustment from “2022” to “2023”. I certainly anticipate that acts that are fundamentally propaganda activities rather than acts by journalists need to be covered by the Online Safety Bill.

It is also worth saying that any journalist who is not acting as a journalist but is instead acting as a lobbyist—some people do have dual roles—could perfectly legitimately not be covered as a journalist, but be covered as a lobbyist for certain elements of their activity. That is also important.

The applicable registration requirements will apply to arrangements that have already been entered into, but where the activity has not yet been commenced or completed. It will not be post-dated, as it were, but it will go from today forward, and therefore activities ongoing from the moment the Bill comes into force will be covered.

It is worth saying that the scheme will be introduced through regulations once the Bill has received Royal Assent. That will be done with the appropriate administrative and investigative resources that have been established. Existing arrangements will need to be registered within three months from the initial off.

It is also worth pointing out that although the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East and I may sometimes share frustration about the volume of emails, neither of us would seek to silence legitimate campaigning by organisations. That is covered by the “public” element. If it is a public campaign—a campaign general to everyone and therefore not targeted at any one particular individual or asking one particular individual to act—it is not covered. It is already public, by definition, because we know who is doing it and who is paying for it.

Question put and agreed to.

New clause 14 accordingly read a Second time, and added to the Bill.

New Clause 15

Meaning of “political influence activity”

‘(1) An activity is a “political influence activity” if—

(a) it is within subsection (2), and

(b) the purpose, or one of the purposes, for which it is carried out is the purpose of influencing a matter or person within subsection (3).

(2) The activities within this subsection are—

(a) making any communication to—

(i) a Minister of the Crown, a Northern Ireland Minister, a Scottish Minister or a Welsh Minister,

(ii) a Member of either House of Parliament, the Northern Ireland Assembly, the Scottish Parliament or Senedd Cymru, or an employee or other member of staff of such a Member,

(iii) an officer, trustee or agent of a UK registered political party or a member of such a party who exercises executive functions on behalf of the party,

(iv) a candidate at an election for a relevant elective office or a relevant Scottish elective office,

(v) a senior official or a special adviser, or

(vi) a person within a description of persons exercising functions on behalf of the Crown which is specified in regulations made by the Secretary of State;

(b) making a public communication, except where it is reasonably clear from the communication that it is made at the direction of the foreign principal;

(c) distributing money, goods or services to UK persons.

(3) The matters and persons within this subsection are—

(a) the conduct of an election or referendum in the United Kingdom,

(b) a decision of the government of the United Kingdom, a Northern Ireland Minister or Northern Ireland Department, the Scottish Ministers or the Welsh Ministers,

(c) the proceedings of either House of Parliament, the Northern Ireland Assembly, the Scottish Parliament or Senedd Cymru,

(d) the proceedings of a UK registered political party, or

(e) a Member of either House of Parliament, the Northern Ireland Assembly, the Scottish Parliament or Senedd Cymru.

(4) For the purposes of subsection (2)(b) a person makes a public communication if the person—

(a) publishes or disseminates information, a document or other article, or

(b) produces information, a document or other article for publication or dissemination.

(5) In this section—

“Northern Ireland Minister” includes the First Minister and the deputy First Minister;

“relevant elective office” and “relevant Scottish elective office” have the same meanings as in section 37 of the Elections Act 2022;

“senior official” means a member of the Senior Civil Service or a member of the Senior Management Structure of His Majesty’s Diplomatic Service;

“special adviser” means a person who serves the government in a position in the civil service of the State and whose appointment to that position meets the requirements applicable to that position set out in section 15(1) of the Constitutional Reform and Governance Act 2010;

“UK person” has the same meaning as in section 2;

“UK registered political party” means a political party registered under Part 2 of the Political Parties, Elections and Referendums Act 2000;

“Welsh minister” includes the First Minister, the Counsel General to the Welsh Government and a Deputy Welsh Minister.’—(Tom Tugendhat.)

This new clause defines “political influence activity” for the purposes of the new registration scheme.

Brought up, read the First and Second time, and added to the Bill.

New Clause 16

Offence of carrying out political influence activities pursuant to unregistered foreign influence arrangement

“(1) A person commits an offence if—

(a) the person carries out a political influence activity in the United Kingdom pursuant to a foreign influence arrangement required to be registered under section (Requirement to register foreign influence arrangements) (1),

(b) the arrangement is not registered, and

(c) the person knows that the arrangement is not registered.

(2) Subsection (1) does not apply to—

(a) a foreign power;

(b) a recognised news publisher;

(c) a person within section (Requirement to register foreign influence arrangements)(6)(b).”—(Tom Tugendhat.)

This new clause makes it an offence to carry out political influence activities under a foreign activity arrangement that should be, but is not, registered.

Brought up, read the First and Second time, and added to the Bill.

New Clause 17

Requirement to register political influence activities of foreign principals

“(1) A foreign principal must not carry out political influence activities in the United Kingdom unless the activities are registered with the Secretary of State.

(2) The prohibition in subsection (1) does not apply to—

(a) a foreign power;

(b) a recognised news publisher;

(c) a person within section (Requirement to register foreign influence arrangements)(6)(b).

(3) A person who breaches the prohibition in subsection (1) commits an offence if the person knows that the activity in question is not registered.”—(Tom Tugendhat.)

This new clause requires registration of political influence activities carried out by a foreign principal.

Brought up, read the First and Second time, and added to the Bill.

New Clause 18

General exemptions

‘(1) The registration requirements do not apply—

(a) in relation to an arrangement that is a UK arrangement;

(b) to the extent that an arrangement relates to the provision of legal services.

(2) The prohibitions do not apply—

(a) to activities carried out in accordance with a UK arrangement or a UK agreement;

(b) to the provision of legal services.

(3) A “UK arrangement” or “UK agreement” is an arrangement or agreement to which—

(a) the United Kingdom is a party, or

(b) any person acting for or on behalf of, or holding office under, the Crown is (in that capacity) a party.

(4) The registration requirement in section (Requirement to register foreign activity arrangements)(1) does not apply to the extent that the arrangement relates to the provision of goods or services which are reasonably necessary to support the efficient functioning of—

(a) a diplomatic mission,

(b) a consular post, or

(c) the permanent mission to a UK-based international organisation of a country which is a member of the organisation,

(for example, the provision of catering or maintenance services).

(5) The registration requirements do not apply to persons who—

(a) are members of the family of a principal person forming part of the principal person’s household, and

(b) make a foreign activity arrangement or a foreign influence arrangement pursuant to an activity carried out by the principal person in that capacity.

(6) The prohibition in section (Requirement to register political influence activities of foreign principals) does not apply to persons who—

(a) are members of the family of a principal person forming part of the principal person’s household, and

(b) carry out an activity pursuant to an activity carried out by the principal person in that capacity.

(7) For the purposes of subsections (5) and (6)—

(a) “principal person” means a person who is a member of staff of—

(i) a diplomatic mission,

(ii) a consular post, or

(iii) the permanent mission to a UK-based international organisation of a country which is a member of the organisation;

(b) the members of the family of a principal person forming part of the principal person’s household include a person who is living with the principal person as their partner in an enduring family relationship.

(8) “Member of staff”—

(a) in the case of a diplomatic mission, means a member of the mission within the meaning given by Article 1 of the Vienna Convention on Diplomatic Relations (set out in Schedule 1 to the Diplomatic Privileges Act 1964);

(b) in the case of a consular post, means a member of the consular post within the meaning given by Article 1 of the Vienna Convention on Consular Relations (set out in Schedule 1 to the Consular Relations Act 1968).

(9) The Secretary of State may by regulations make provision for further cases to which the registration requirements or the prohibitions do not apply.

(10) In this section—

“consular post” has the meaning given by Article 1 of the Vienna Convention on Consular Relations (set out in Schedule 1 to the Consular Relations Act 1968);

“diplomatic mission” is to be read in accordance with the Vienna Convention on Diplomatic Relations done at Vienna on 18 April 1961;

“legal services” has the meaning given by section 8(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012;

“the prohibitions” means the prohibitions in sections (Requirement to register activities of specified persons) and (Requirement to register political influence activities of foreign principals);

“the registration requirements” means the requirements in sections (Requirement to register foreign activity arrangements)(1) and (Requirement to register foreign influence arrangements)(1);

“UK-based international organisation” means an international organisation which has its headquarters in the United Kingdom and on which privileges and immunities have been conferred under section 1 of the International Organisations Act 1968.’—(Tom Tugendhat.)

This new clause creates exemptions to the registration requirements in NC11 and NC14 and the prohibitions in NC13 and NC16.

Brought up, and read the First time.

[Tom Tugendhat]

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

[The Chair]

With this it will be convenient to discuss the following:

Government new clause 19—Registration information.

Government new clause 20—Information notices.

Government new clause 21—Confidential material.

Government new clause 25—Publication and copying of information.

Government new clause 28—Interpretation.

[Tom Tugendhat]

This group relates to scheme exemptions; the power for the Secretary of State to set what information needs to be registered with the scheme; the power for the Secretary of State to issue notices requesting information from registrants and those believed to be in scope of the requirements; provisions protecting confidential material from disclosure; the power for the Secretary of State to make regulations about the publication or copying of information provided through registration; and definitions for terms used in relation to FIRS. The majority of the new clauses in this group are substantive, so, as with the previous two groups, I will take each new clause in turn.

--- Later in debate ---

[Stewart Hosie (Dundee East) (SNP)]

Will the Minister give way?

[Tom Tugendhat]

Very, very briefly.

[Stewart Hosie]

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]

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.

[Stuart C. McDonald]

I have a question about the new clause, and it may save the Minister from having to make a speech. With power, unlike with other notice powers, there seems to be virtually no limit on the nature of information that can be requested. There is no judicial oversight or right to challenge. It seems to be an incredibly broadly drafted power, and I do not understand why.

[Tom Tugendhat]

The hon. Member for Halifax has raised the question of oversight on various occasions and I have already committed to discussing it with her, so I will come back to that point. As for the nature of the information required, that will depend on the nature of the business. It is broad, as the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East correctly identified.

Where a person is suspected of committing a FIRS offence, the information gathered as a result of these notices can be used to support the investigation and prosecution of a FIRS offence. New clause 21 makes provisions clarifying that a person does not have to disclose any information that is protected by legal professional privilege or confidential journalistic material, or that would require them to identify or confirm a source of journalistic information.

Legal professional privilege, commonly referred to as LPP, or as confidentiality of communications in Scotland, is a fundamental tenet of UK law and protects those seeking legal advice and representation in the UK. It ensures that material such as communications between clients and their lawyers—and, in some circumstances, third parties—is protected from disclosure. LPP does not arise where a lawyer’s assistance has been sought to further a crime or fraud. Any disclosure requirement in FIRS that could have the effect of breaching LPP would fundamentally infringe the rights of individuals to receive confidential legal advice, where that advice is not for the purposes of enabling a crime, and their rights to a fair hearing.

There is also legal precedent for protecting against the disclosure of confidential journalistic material or sources of journalistic information, unless the power to require disclosure has been subject to prior or immediate after-the-event judicial or other independent or impartial scrutiny. The Government consider that protections for such material should also be included in FIRS to ensure adequate protections for journalists and their sources. The protections will apply even if a journalist or a recognised news publisher has to register under the enhanced tier of the scheme. The Government propose this new clause to ensure that FIRS upholds the rule of law and fair access to justice. It will ensure that there is adequate protection for confidential journalistic material and information related to journalistic sources.

New clause 25 allows the Secretary of State to make regulations about the publication or copying of information provided through registration. The ability to publicise certain information registered with the scheme is vital to delivering the aims of FIRS, by ensuring that the influence of foreign powers and entities is open and transparent. We intend to publish information registered under the primary or enhanced requirements that relates to the carrying out of political influence activities. The regulation-making powers also provide the flexibility to publish information registered about a wider range of activity under the enhanced requirements.

As I said earlier, however, that is to be determined alongside the decision to specify a foreign power or entity subject to a foreign power or control. Ensuring information can be publicised where it relates to the carrying out of political influence activities will help to strengthen the resilience of the UK political system against covert foreign influence. After all, sunlight is the best disinfectant. Not only will this ensure that the UK public are better informed of the scale and extent of foreign influence in our political affairs, but it will put a person actively seeking to avoid being transparent in a difficult position. Either they comply with the scheme’s requirements and expose their arrangements or activities, or they face potential enforcement action.

The information published will be limited to what is necessary to achieve the transparency aims of the scheme: for example, the name of the registrant, which could be an individual or an entity; the foreign power or principal for which political influence activities are to be carried out; or the nature and duration of such activity. Subsection (2) would allow the Secretary of State to specify or describe information or material that is not to be published. That is likely to include a situation where publishing the information would threaten the interests of national security, put an individual’s safety at risk or risk disclosure of commercially sensitive information.

Subsection (1)(b) would allow the Secretary of State to make provision for the copying of information provided through registration. It an important provision that will ensure data can be managed by the scheme management unit and shared with other enforcement agencies when necessary. As already mentioned, data will be managed in accordance with the Data Protection Act 2018 and GDPR. As with other parts of the registration scheme, we consider it appropriate for this level of detail to be outlined through regulations, which will also provide the Government with the flexibility to adapt should there be a need to make changes to what information is to be provided in order to meet the objectives of the scheme.

New clause 28 provides the definitions relevant to the registration scheme requirements. As we have discussed these terms in detail in relation to the requirements to which they apply, I do not consider that further examination is needed.

In my opening remarks, I explained that any arrangement with the Republic of Ireland or with a body incorporated or association under the laws of Ireland will be exempt from registration, as are activities to be carried out by such entities. This, again, ensures that the letter and spirit of the Belfast/Good Friday accord are protected, by avoiding interference with the right of citizens in Northern Ireland to identify as Irish. To achieve that in the drafting, subsection (2) clarifies that the Republic of Ireland is not to be considered a foreign power for the purposes of FIRS.

--- Later in debate ---

[Stuart C. McDonald]

I will briefly emphasise how incredibly broadly and dangerously drafted new clause 20 is. All sorts of organisations will fall within the scope of the provisions; it could be a local business or a UK non-governmental organisation. Unless I am missing something, under the clause they can be asked by the Secretary of State in an information notice for virtually any information that she fancies helping herself to, with virtually no restriction whatsoever.

The new clause does not even require a link to some sort of ongoing investigation. There is no court oversight of the nature of the request, and there is absolutely no mechanism to challenge or appeal against any sort of information notice. If someone has been handed an absurd information notice and they refuse to comply with it, they can end up being prosecuted. As it stands, new clause 20 seems to be incredibly difficult and should be revisited.

[Tom Tugendhat]

I will come to the point made by the right hon. Member for Dundee East. He is absolutely right. Forgive me—that is a drafting error, which we will look at and tidy up.

On diplomatic staff, the hon. Member for Halifax makes a fair point. This is, however, diplomatic staff and their spouses acting in an official capacity—when they are conducting duties on behalf of their nation, and on behalf of the mission that they are sent to support. It is not supposed to be a blanket exemption; it is merely when they are acting in their role.

Who will manage the unit? A scheme management unit is expected to sit within the Home Office—that is, at least, the current plan—which will administer the scheme. It is unlikely that every registration will need to be scrutinised. More likely, the register will be a resource for public scrutiny. That is where the right hon. Member for North Durham, who is not currently present, was absolutely right: sunlight is the best disinfectant, and indeed disinfectant is the best sunlight.

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

I am sure that the Minister has heard, just as I have, about cuts to Government Department budgets. This being a new additional spend, I wonder whether there has been any assessment of the cost of it, and whether he thinks the cost of it will survive.

[Tom Tugendhat]

As with the whole Bill, the way to think about it is as a public register, and because it is a public register the scrutiny will be provided, no doubt, by our friends in His Majesty’s press corps, who will look through every detail, as they look through every detail of the Register of Members’ Financial Interests and ensure that they keep us on our toes. They will no doubt do the same for businesses.

I will have a look at the question of the 14 days as opposed to 10. I am not quite sure why there is that difference, so I will come back to the hon. Member for Halifax on that, and with further details on the management of the scheme.

Question put and agreed to.

New clause 18 accordingly read a Second time, and added to the Bill.

New Clause 19

Registration information

“(1) The Secretary of State may by regulations make provision about the information a person is required to provide to the Secretary of State when registering—

(a) a foreign activity arrangement under section (Requirement to register foreign activity arrangements),

(b) an activity under section (Requirement to register activities of specified persons),

(c) a foreign influence arrangement under section (Requirement to register foreign influence arrangements), or

(d) a political influence activity under section (Requirement to register political influence activities of foreign principals).

(2) Regulations under subsection (1) may, in particular, require the person to provide information about any arrangements made by the person pursuant to the arrangement or activity which is required to be registered.

(3) Where there is a material change to any information provided to the Secretary of State under this section or section (Information notices) in relation to a registered arrangement or a registered activity, the person who registered the arrangement or activity must inform the Secretary of State of the change before the end of the period of 14 days beginning with the day on which the change takes effect.

(4) The Secretary of State—

(a) may by regulations make provision about the information to be provided to the Secretary of State under subsection (3),

(b) may issue guidance about what may or may not constitute a material change.

(5) The provision which may be made by regulations under this section includes provision about the form in which information is to be provided.

(6) A person who fails to comply with subsection (3) commits an offence if, as a result of the failure, the information provided to the Secretary of State in relation to the registered arrangement or registered activity is misleading, false or deceptive in a material way.”—(Tom Tugendhat.)

This new clause provides for the information to be provided when registering arrangements and activities under the registration scheme.

Brought up, read the First and Second time, and added to the Bill.

New Clause 20

Information notices

“(1) The Secretary of State may give an information notice to—

(a) a person who is a party to a foreign activity arrangement registered under section (Requirement to register foreign activity arrangements);

(b) a person who is a party to a foreign activity arrangement which is required to be, but is not, registered under that section;

(c) a person who has registered activities under section (Requirement to register activities of specified persons);

(d) a person the Secretary of State reasonably believes to be carrying out an activity in breach of the prohibition in that section.

(2) The Secretary of State may give an information notice to—

(a) a person who is a party to a foreign influence arrangement registered under section (Requirement to register foreign influence arrangements);

(b) a person who is a party to a foreign influence arrangement which is required to be, but is not, registered under that section;

(c) a person who has registered activities under section (Requirement to register political influence activities of foreign principals);

(d) a person the Secretary of State reasonably believes to be carrying out a political influence activity in breach of the prohibition in that section.

(3) An information notice is a notice requiring the person to whom it is given to supply the information specified in the notice.

(4) An information notice must—

(a) specify the form in which the information must be supplied, and

(b) specify the date by which the information must be supplied.

(5) Where an information notice has been given to a person, the Secretary of State may cancel it by giving written notice to that effect to the person.

(6) The Secretary of State may by regulations make provision about—

(a) the minimum period between the date on which an information notice is given and the date specified under subsection (4)(b);

(b) other matters which may be specified in an information notice;

(c) the cancellation of information notices.

(7) A person commits an offence if, without reasonable excuse, the person fails to comply with an information notice.

(8) The Secretary of State may not give an information notice to a foreign power.”—(Tom Tugendhat.)

This new clause permits the Secretary of State to give a notice to a person to provide information in connection with arrangements or activities registrable under the registration scheme.

Brought up, read the First and Second time, and added to the Bill.

New Clause 21

Confidential material

“(1) Nothing in this Part is to be taken to require any person to disclose any information that the person is entitled to refuse to disclose in legal proceedings on grounds of legal professional privilege (in Scotland, confidentiality of communications).

(2) Nothing in this Part is to be taken to require any person to disclose confidential journalistic material or to identify or confirm a source of journalistic information.

(3) In this section—

“confidential journalistic material” has the same meaning as in section 264 of the Investigatory Powers Act 2016;

“source of journalistic information” has the same meaning as in section 263 of that Act.”—(Tom Tugendhat.)

This new clause ensures that the obligations in connection with the registration scheme do not affect legal professional privilege or require the disclosure of confidential journalistic material.

Brought up, read the First and Second time, and added to the Bill.

New Clause 22

Offence of providing false information

“(1) A person commits an offence if—

(a) the person provides information to the Secretary of State under section (Registration information) or (Information notices) in connection with a foreign activity arrangement, and

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

(2) A person commits an offence if—

(a) the person provides information to the Secretary of State under section (Registration information) or (Information notices) in connection with an activity which is required to be registered under section (Requirement to register activities of specified persons), and

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

(3) A person commits an offence if—

(a) the person provides information to the Secretary of State under section (Registration information) or (Information notices) in connection with a foreign influence arrangement,

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

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

(4) A person commits an offence if—

(a) the person provides information to the Secretary of State under section (Registration information) or (Information notices) in connection with a political influence activity which is required to be registered under section (Requirement to register political influence activities of foreign principals),

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

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

This new clause creates offences of providing false or misleading information in connection with the registration scheme.

Brought up, and read the First time.

[Tom Tugendhat]

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

[The Chair]

With this it will be convenient to discuss Government new clause 23—Offence of carrying out activities under arrangements tainted by false information.

[Tom Tugendhat]

I turn to new clauses 22 and 23, which relate to the offence of providing false information and of carrying out activities under arrangements tainted by false information.

New clause 22 would create offences for where a registrant provides false or misleading information under the primary registration requirement or the enhanced registration requirement, or in response to an information notice. These offences are important to reduce the risk that the person is able to appear as if they have complied with the obligations under the scheme through the provision of false or misleading information. The delivery of the scheme’s objectives is undermined if a registrant is able to provide false or misleading information through registration or in response to an information notice without consequence. We should expect that those who seek to obfuscate their arrangements and activities will attempt to that, and we must be able to respond.

Such offences are not new or novel—indeed, they are common to requirements that place a positive obligation on members of the public to provide information. As with other offences we have considered, those that relate to the primary registration requirement have a higher bar for the prosecution to meet: that the registrant knows or ought reasonably to know that the information is false, inaccurate or misleading in a material way. By comparison, offences of the provision of false information in relation to the enhanced measure are to be strict liability. It should not be acceptable that such information is provided in relation to activity carried out for a specified foreign power or entity.

New clause 23 creates offences for carrying out activities under a registrable arrangement where false or misleading information has been provided in connection with the arrangement. I have already explained that the requirement to register an arrangement under the primary or enhanced registration requirements falls on the person who has made an arrangement with the specified foreign power or entity, or foreign principal.

We have also discussed the possibility that the registration of an arrangement could be made with false or misleading information: for example, where a person wants to appear as if they have complied with their registration obligations but is actively trying to conceal the true nature of their arrangements or activities.

These additional offences are important because they will allow for enforcement action to be taken against those who are acting pursuant to a falsely registered arrangement and are either complicit or in a position where they ought reasonably to know that the arrangement has been registered. As I explained in relation to the offences for carrying out activity pursuant to an unregistered arrangement, this will reduce the likelihood that unregistered activity is carried out, as well as providing a means of disrupting all levels of an organisation that has been identified as engaged in a covert arrangement or activity.

I want to reassure hon. Members that where an individual could not reasonably know that the information registered relating to the arrangement is false or misleading, they will not be prosecuted. It will be up to the courts to decide on a case-by-case basis whether someone charged with an offence ought reasonably to have known about the false information. I commend the new clause to the Committee.

[Holly Lynch]

It is right that new clauses 22 and 23 set out new offences that are created as a means of promoting compliance with the registration scheme. On that basis, we are satisfied that new offences are in order.

Question put and agreed to.

New clause 22 accordingly read a Second time, and added to the Bill.

New Clause 23

Offence of carrying out activities under arrangements tainted by false information

“(1) A person commits an offence if—

(a) the person carries out an activity in the United Kingdom pursuant to a foreign activity arrangement required to be registered under section (Requirement to register foreign activity arrangements)(1),

(b) information provided to the Secretary of State under section (Registration information) or (Information notices) in connection with the arrangement, whether by the person or by another person, is false, inaccurate or misleading in a material way, and

(c) the person knows, or ought reasonably to know, that the facts are as mentioned in paragraph (b).

(2) A person commits an offence if—

(a) the person carries out a political influence activity in the United Kingdom pursuant to a political influence arrangement required to be registered under section (Requirement to register foreign influence arrangements) (1),

(b) information provided to the Secretary of State under section (Registration information) or (Information notices) in connection with the arrangement, whether by the person or by another person, is false, inaccurate or misleading in a material way, and

(c) the person knows, or ought reasonably to know, that the facts are as mentioned in paragraph (b).

(3) Subsections (1) and (2) do not apply to a foreign power.

(4) Subsection (2) does not apply to—

(a) a recognised news publisher;

(b) a person within section (Requirement to register foreign influence arrangements)(6)(b).”.—(Tom Tugendhat.)

This new clause creates offences of carrying on activities under a registrable arrangement where false of misleading information has been provided in connection with the arrangement.

Brought up, read the First and Second time, and added to the Bill.

New Clause 24

Offences: penalties

“(1) A person who commits a foreign activity offence is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine (or both);

(b) on summary conviction in England and Wales, to imprisonment for a term not exceeding the general limit in a magistrates’ court or to a fine (or both);

(c) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum (or both);

(d) on summary conviction in Scotland, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or both).

(2) “Foreign activity offence” means—

(a) an offence under section (Requirement to register foreign activity arrangements)(10);

(b) an offence under section (Offence of carrying out activities under an unregistered foreign activity arrangement);

(c) an offence under section (Requirement to register activities of specified persons)(3);

(d) an offence under section (Registration information)(6) committed in relation to a foreign activity arrangement registered under section (Requirement to register foreign activity arrangements) or an activity registered under section (Requirement to register activities of specified persons);

(e) an offence under section (Information notices)(7) committed in relation to an information notice given under section (Information notices)(1);

(f) an offence under section (Offence of providing false information)(1) or (2);

(g) an offence under section (Offence of carrying out activities under arrangements tainted by false information)(1).

(3) A person who commits a foreign influence offence is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine (or both);

(b) on summary conviction in England and Wales, to imprisonment for a term not exceeding the general limit in a magistrates’ court or to a fine (or both);

(c) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum (or both);

(d) on summary conviction in Scotland, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or both).

(4) “Foreign influence offence” means—

(a) an offence under section (Requirement to register foreign influence arrangements)(8);

(b) an offence under section (Offence of carrying out political influence activities pursuant to unregistered foreign influence arrangement);

(c) an offence under section (Requirement to register political influence activities of foreign principals)(3);

(d) an offence under section (Registration information)(6) committed in relation to a foreign influence arrangement registered under section (Requirement to register foreign influence arrangements) or a political influence activity registered under section (Requirement to register political influence activities of foreign principals);

(e) an offence under section (Information notices)(7) committed in relation to an information notice given under section (Information notices)(2);

(f) an offence under section (Offence of providing false information)(3) or (4);

(g) an offence under section (Offence of carrying out activities under arrangements tainted by false information)(2).”.—(Tom Tugendhat.)

This new clause sets out the penalties for the offences created under the registration scheme.

Brought up, and read the First time.

[Tom Tugendhat]

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

[The Chair]

With this it will be convenient to discuss:

Government new clause 26—Offences: supplementary provision.

[Tom Tugendhat]

New clauses 24 and 26 deal with the penalties and supplementary provisions for the offences under the scheme. I start by reminding the Committee of one of the scheme’s aims: to deter foreign power use of covert arrangements, activities and proxies.

FIRS will play an important role in countering state threats. It is therefore important that the scheme should have penalties that reflect the seriousness of non-compliance within that context. The new clause makes provision for two separate maximum penalties for the two parts of the scheme. It is proposed that any offence committed under the primary registration requirement should be capable of attracting a custodial penalty of up to two years on indictment, or a fine; that is compared with an offence committed under the enhanced registration requirement, which we propose should be capable of attracting a custodial penalty of up to five years on indictment, or a fine.

The availability of a custodial penalty is a necessary reflection of the seriousness of seeking to hide or obfuscate influence or activity in the United Kingdom directed by foreign powers or entities. The penalty must be taken seriously by those engaged in the state threats activity that we are trying to counter; that would be unlikely if, for example, we were to impose only financial penalties. The offences under the enhanced measure would be capable of a higher maximum custodial penalty. This distinction is to reflect the seriousness of hiding or obfuscating arrangements and activities, carried out on behalf of foreign powers or entities, that the Secretary of State has identified as being necessary to specify in order to protect the safety or interests of the United Kingdom. I have covered the issue to some extent through my earlier explanations about the differing thresholds for offences.

I will not spend long speaking to new clause 26, given that it extends the application of clauses 28 and 29 to the offences under this part and mirrors the approach taken to exclude the public from legal proceedings in clause 31—clauses that have all been debated by the Committee already.

The new clause has several functions. First, it extends the application of clause 28 to this part so that the officers of bodies corporate and other bodies may be held liable for offences committed by those bodies. Given that a body corporate or other bodies can make either a foreign activity arrangement or foreign influence arrangement, it is crucial for the enforceability of the scheme that these bodies and their officers can be held liable should they breach the conditions set out under these provisions.

Secondly, the new clause extends the application of clause 29 to an offence under this part that is capable of being committed outside the UK. In the context of FIRS, that relates to where a foreign activity or foreign influence arrangement has been made outside the UK but has not been registered within the 10-day period. Although the activity pursuant to the arrangement must take place in the UK, the offence for failing to register can therefore be committed overseas. We have already debated the necessity of this in respect of the new clauses relating to the registration of arrangements.

Finally, this provision grants the court the power to exclude the public from proceedings for offences under this part, where necessary in the interests of national security; it is important to be clear, however, that this does not apply to the passing of a sentence. Excluding the public from proceedings might be necessary in circumstances where the Crown needs to adduce sensitive evidence as part of the prosecution—evidence that may be harmful to national security if shared more widely with the public.

For example, if a person provided false information in connection with an activity that is required to be registered in relation to a foreign influence arrangement, it might be necessary to rely on sensitive evidence to demonstrate why that information was considered to be false and what the person’s actual activities included. The provision would ensure that such sensitive evidence could be examined without the public being present. The decision to exclude the public would be made by the court, not the prosecution, and it is important to note that the power does not grant the use of closed material proceedings.

[Holly Lynch]

Government new clause 24 lays out the penalties for offences committed under the registration scheme. Subsection (1) states that a person who commits a foreign activity offence is liable on conviction or indictment to a maximum five years of imprisonment. Subsection (3) states that a person who is found to have committed a foreign influence offence is liable to a maximum two years of imprisonment. My hon. Friend the Member for Garston and Halewood raised this point yesterday with officials: why the marked difference in sentencing between the different strands of activity?

Subsection (1) of Government new clause 26 states that officers of bodies corporate may be held liable for offences committed by those bodies in relation to the registration scheme. That is a welcome measure that will ensure that corporate officers and organisations will remain accountable to the registration scheme. Like the inclusion of body corporate offences in part 1 of the Bill, it reflects the seriousness with which UK businesses must treat the provisions.

Subsection (3) provides that the public may be excluded from proceedings for an offence under part 1. As the Minister said, we discussed at previous stages of the Bill that it is right to have that option where matters prejudicial to the UK’s national security may need to be cited for prosecution. However, we stress that it is a power that should be exercised only when necessary.

[Tom Tugendhat]

The difference between the tariffs is purely down to the different importance of a general registration and an enhanced registration.

Question put and agreed to.

New clause 24 accordingly read a Second time, and added to the Bill.

New Clause 25

Publication and copying of information

“(1) The Secretary of State may by regulations make provision about—

(a) publication of information provided to the Secretary of State under this Part;

(b) copying of information provided to the Secretary of State under this Part.

(2) The power under subsection (1) includes in particular power to make provision about a description of information or material which is not to be published.”—(Tom Tugendhat.)

This new clause allows the Secretary of State to make regulations in relation to the publication and copying of information provided to the Secretary of State under the registration provisions.

Brought up, read the First and Second time, and added to the Bill.

New Clause 26

Offences: supplementary provision

“(1) Section 28 (offences by body corporate etc) applies in relation to offences under this Part as it applies in relation to offences under Part 1.

(2) Section 29(1) and (3) to (5) (offences committed outside the United Kingdom) applies in relation to offences under this Part as it applies in relation to offences under Part 1.

(3) If it is necessary in the interests of national security, a court may exclude the public from any part of proceedings for an offence under this Part, except for the passing of sentence.”—(Tom Tugendhat.)

This new clause provides that officers of bodies corporate and other bodies may be held liable for offences committed by those bodies, that offences may be committed outside the United Kingdom, and that a court may exclude the public from proceedings for offences.

Brought up, read the First and Second time, and added to the Bill.

New Clause 27

Annual report

“(1) The Secretary of State must, as soon as is practicable after the end of each relevant period—

(a) prepare a report in relation to that period, and

(b) lay a copy of the report before Parliament.

(2) The report must provide details of—

(a) the total number of arrangements registered with the Secretary of State under section (Requirement to register foreign activity arrangements) or (Requirement to register foreign influence arrangements),

(b) the number of arrangements registered with the Secretary of State under section (Requirement to register foreign activity arrangements) or (Requirement to register foreign influence arrangements) during the relevant period,

(c) the total number of specified persons and foreign principals who have registered activities with the Secretary of State under section (Requirement to register activities of specified persons) or (Requirement to register foreign influence activities of foreign principals),

(d) the number of specified persons and foreign principals who have registered activities with the Secretary of State under section (Requirement to register activities of specified persons) or (Requirement to register foreign influence activities of foreign principals) during the relevant period,

(e) the number of information notices issued under section (Information notices) during the relevant period,

(f) the number of persons charged with an offence under this Part during the relevant period, and

(g) the number of persons convicted of an offence under this Part during the relevant period.

(3) ‘Relevant period’ means—

(a) the period of 12 months beginning with the day on which this section comes into force, and

(b) each subsequent period of 12 months.”—(Tom Tugendhat.)

This new Clause requires the Secretary of State to provide an annual report to Parliament on matters relating to the registration scheme.

Brought up, and read the First time.

[Tom Tugendhat]

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

New clause 27 requires the Secretary of State to prepare and publish an annual report to Parliament on the operation of FIRS. I have already spoken about the importance of transparency. Indeed, transparency is essential to the functioning not only of our democracy but of our entire state. The hon. Member for Halifax raised that issue on numerous occasions, and I have committed to working with her. The commitment to publish information about the scheme’s operation will help to ensure that the UK public is more informed about the scale and extent of foreign influence in our political affairs, as well as activity being undertaken for specified foreign powers or entities.

The information that the Secretary of State would be required to provide is as follows: the total number of foreign activity and foreign influence arrangements registered with the Secretary of State; the number of foreign activity and foreign influence arrangements registered with the Secretary of State over the previous year; the total number of specified persons and foreign principals who have registered activities with the Secretary of State; the number of specified persons and foreign principals who have registered activities with the Secretary of State over the previous year; the number of information notices issued over the previous year; the number of persons charged with a FIRS-related offence over the previous year; and the number of persons convicted of a FIRS-related offence over the previous year. The new clause acts as a safeguard by inviting parliamentary and public scrutiny of the operation of FIRS.

[Holly Lynch]

I thank the Minister for that explanation. We very much welcome new clause 27. My understanding is that the different elements of the scheme could come into effect at different times. Will the Minister confirm that if, for example, the requirement to register foreign influence arrangements becomes operational before the requirement to register foreign activity arrangements, or vice versa, the annual report will be due a year from the start date of the specific scheme, not a year after both parts of the scheme come into effect?

--- Later in debate ---

[Tom Tugendhat]

Yes, there is no question but that it should be according to when the first part of the scheme comes into effect, not when the whole scheme is done.

[Maria Eagle]

Briefly, I welcome the provisions for an annual report to give information to Parliament. I wonder whether the Minister might consider extending the requirements, when it comes to those who are charged and convicted, to include a need to make it clear which countries they come from, to give an overall view on the extent to which there are difficulties with particular places?

[Tom Tugendhat]

I take that point in the spirit in which it was made. I think that makes sense, but it should be possible to refer back through the registrations. If registrations have not been made, I take her point entirely.

Question put and agreed to.

New clause 27 accordingly read a Second time, and added to the Bill.

New Clause 28

Interpretation

‘(1) In this Part—

“foreign activity arrangement” has the meaning given by section (Requirement to register foreign activity arrangements);

“foreign influence arrangement” has the meaning given by section (Requirement to register foreign influence arrangements);

“foreign power” has the same meaning as in Part 1 (see section 25), subject to subsection (2);

“foreign principal” has the meaning given by section (Requirement to register foreign influence arrangements);

“political influence activity” has the meaning given by section (Meaning of “political influence activity”);

“recognised news publisher” has the meaning given by section (Requirement to register foreign influence arrangements);

“registered activity” means an activity registered with the Secretary of State under section (Requirement to register activities of specified persons) or (Requirement to register political influence activities of foreign principals);

“registered arrangement” means an arrangement registered with the Secretary of State under section (Requirement to register foreign activity arrangements) or (Requirement to register foreign influence arrangements);

“specified person” has the meaning given by section (Requirement to register foreign activity arrangements).

(2) For the purposes of this Part references in section 25 to a foreign State, or a foreign country or territory, do not include the Republic of Ireland.

(3) Any provision of this Part which does not apply in relation to a person (“P”) does not apply in relation to—

(a) a person who holds office in or under, or is an employee or other member of staff of, P (acting in that capacity);

(b) a person whom the Secretary of State reasonably considers to be exercising functions on behalf of P as if they are a person who holds office in or under, or as if they are an employee or other member of staff of, P (acting in that capacity).’ —(Tom Tugendhat.)

This new clause contains definitions relevant to the registration scheme.

Brought up, read the First and Second time, and added to the Bill.

New Clause 4

Proceedings relating to safety or interests of the United Kingdom

“(1) This section applies where a court is considering proceedings under Part 1 of this Act, where the proceedings involve the safety or interests of the United Kingdom.

(2) In proceedings to which this section applies, the court must take account of how the interests of the Secretary of State or of the Government of the United Kingdom may differ from the interests of the United Kingdom, in order to satisfy itself that the interests of the United Kingdom have been appropriately identified and considered.”—(Holly Lynch.)

Brought up, and read the First time.

[Holly Lynch]

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

New clause 4 is an attempt to make a clear distinction between what is in the Government’s interest and what is in the national interest, so that the two cannot be conflated. There are a number of new offences created under part 1 of the Bill, and a key condition running throughout those offences is that a person knows, or ought reasonably to know, that their conduct is prejudicial to the safety or interests of the United Kingdom. There are other conditions that must be met, with the foreign power condition perhaps being the most substantial.

The aim of new clause 4 is to ensure that a court considering proceedings in relation to part 1 offences must take account of how the interests of the Secretary of State, or the Government of the United Kingdom, may be slightly separate from the interests of the United Kingdom, in order to satisfy itself that the interests of the United Kingdom have been appropriately identified and considered. Members will recognise that there is already a difference between the safety of the United Kingdom and the interests of the United Kingdom, with the new offences encompassing both. I suspect there will be a great deal of consensus on safety, but to explicitly define and agree on interests I imagine would be much harder.

We worked through various examples as part of the deliberations on part 1 offences. One such example was whether, if the Government faced deliberate disruption enacting policy they deemed to be in the national interest, that would be enough to meet the threshold? If, for example, a deportation flight—the stuff of the Home Secretary’s dreams—was prevented from taking off because of protesters, would that be enough to meet the prejudicial to the national interest threshold? The Government might wish to argue that case, although it would be far from compromising national security.

We got some assurances from the Minister’s predecessor that national security laws would not transgress into conduct that may be irritating for the Government but lawful, or into prosecuting other criminal offences by treating them as unduly having national security implications. Beyond the specifics of the new offences created by the Bill, we also believe that new clause 4 would establish in principle the distinction between the Government’s political interests and the country’s national security.

I am explicit that the new clause, alongside new clause 5 and new clause 29, have at least in part been shaped by the meeting that we now have confirmation took place between the former Prime Minister, the right hon. Member for Uxbridge and South Ruislip (Boris Johnson), when he was Foreign Secretary, and former KGB officer Alexander Lebedev, at the height of the Salisbury poisoning. It is worth remembering that we did not have confirmation of that meeting when the Bill Committee first started, and the right hon. Member was still the Prime Minister. I do not know if that is an indication of how quickly things move in politics or of how long this Bill Committee has been going on for. However, it is the sort of example that warrants the separating out of Government and individual Minister’s political interests and national security interests. It has become too easy to suggest that answers could not be provided on that matter and others for security reasons, when actually getting to the bottom of what had gone on was very much in the national interest. It may not have been in the Government’s political interest, but that is the distinction that is important to put on a proper statutory footing.

--- Later in debate ---

[Stuart C. McDonald]

I support the objective of the new clause. When we were debating some of the offences in part 1, the SNP tabled various amendments to try to make it clear that the national interest and the interests of the Government are not necessarily the same thing—often, they are not the same thing at all. It appears that judicial authority says that, in essence, it is for the Government to decide what the national interest is; that does not really assist the position. Whether or not this new clause is the answer is something we will have to revisit again, but I express sympathy with the intention behind it.

[Tom Tugendhat]

I welcome the spirit with which the hon. Member for Halifax has entered into this discussion, and I appreciate her points. Making illegal those matters that irritate Ministers of the Crown would certainly make my life at home significantly quieter, as it would silence my children. Sadly, I think that trying to make case law for my family would be problematic.

It is certainly true that there is a difference between the interests of Ministers and the interests of an individual Minister, whether that be an ordinary Minister or a Prime Minister, and national security. Case law in the United Kingdom already recognises that in considering any prosecution in relation to offences to which the provisions regarding prejudice to the safety of the interests of the UK apply. The UK courts already consider the nature and risk to the safety and interests of the UK. Case law already makes clear that

“the safety or interests of the United Kingdom”

should be interpreted as the objects of state policy determined by the Crown on the advice of Ministers. That is notably different from protecting the particular interests of those in office.

Again, I appreciate the spirit with which the hon. Lady has entered into the conversation, but the provisions in part 1 to which the safety or interests test applies are measures that disrupt and respond to serious national security threats, such as those from espionage, sabotage and threats to the UK’s most sensitive sites. As I am sure hon. Members will agree, it is right that appropriate conditions—such as the test of whether conduct is carried out for, on behalf of, or with the intention to benefit a foreign power—are in place to limit the scope of the offences to the types of harmful activity we are targeting.

The combination of the conditions we apply to measures in the Bill mean that not only are the offences themselves proportionate, but an appropriately high bar has to be met to bring a prosecution. These conditions take us firmly outside the realm of merely leaking embarrassing or unauthorised disclosures, or indeed whistleblowing or domestic political opposition. The Law Commission shared that sentiment in the evidence it gave to the Committee—of course I was not present, but given her reference to the length of time in politics I am sure she will understand that.

Individuals and groups might not agree with Government policy, but it still represents the policy that the Government have been elected to carry out, so disclosing protected information from a foreign power can never be the right response to that. It would not be appropriate for the courts to second guess the merits of Government policy in this way. On the basis that the courts are well able to judge the difference between national interest and personal interest, I hope that the hon. Member will withdraw the amendment.

[Holly Lynch]

I suspect the Minister understands the points I am making and is sympathetic to what I am trying to get at. I put him on notice that, where I think there is information that could and should be in the public domain and I meet barriers relating to national security reasons preventing it from being in the public domain, I will be a thorn in his side every step of the way. With that veiled threat—

[Jess Phillips]

It wasn’t veiled.

[Tom Tugendhat]

Not very veiled, no.

[Holly Lynch]

I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 5

Ministerial conduct

“(1) This section applies in relation to any Minister of the Crown who engages with, or intends to engage with, or ought reasonably to know that they are about to engage with, a person who is a part of a foreign intelligence service.

(2) A Minister of the Crown may only engage with such a person if either of the following conditions are met—

(a) a senior civil servant is formally present at or party to the engagement, and a formal record of the engagement has been made by the senior civil servant; or

(b) a senior civil servant is not formally present at or party to the engagement, and a formal record of the engagement has not been made by a senior civil servant, but the written consent of the Prime Minister has been sought by the Minister of the Crown, and has been granted and formally recorded in writing.

(3) In this section ‘engagement’ includes meeting in person or via electronic means, and corresponding in writing or via electronic means.”—(Holly Lynch.)

Brought up, and read the First time.

[Holly Lynch]

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

New clause 5 is similar to the previous new clause and would mean that a Minister of the Crown may only engage with a person who is a part of a foreign intelligence service if either a senior civil servant is formally present at or party to the engagement, and a formal record of the engagement has been made by the senior civil servant; or a senior civil servant is not formally present at or party to the engagement, and a formal record of the engagement has not been made by a senior civil servant, but the written consent of the Prime Minister has been sought by the Minister of the Crown, and has been granted and formally recorded in writing. That would apply both to meetings in person and via electronic means. It would apply to any Minister of the Crown who engages with, or intends to engage with, or ought reasonably to know that they are about to engage with, a person who is a part of a foreign intelligence service. Failure to follow these rules should be a resignation matter.

The measures proposed throughout the Bill promise an extensive overhaul in establishing what constitutes meeting with and assisting a foreign power threat, including new offences and regimes covering almost all aspects of society. It is entirely right that we also consider the role of Ministers. I am afraid that, once again, the need for such a provision was born out of the conduct of the right hon. Member for Uxbridge and South Ruislip when he was the Foreign Secretary. However, there are other examples.

The right hon. Gentleman confirmed to the Liaison Committee that he met with former KGB officer Alexander Lebedev without officials and without permission at the height of the Salisbury poisoning back in 2018. To set the scene, that was immediately after the then Foreign Secretary had attended a meeting of NATO Foreign Ministers at NATO headquarters in Brussels to discuss the collective response to Russia’s use of Novichok on UK soil. In advance of that meeting, NATO Secretary-General Jens Stoltenberg outlined that Russia would be the first item on the agenda, after what he said were several years of Moscow’s “pattern of dangerous behaviour”, confirming, as the Prime Minister had already done, that:

“It is also highly likely that Russia was behind the nerve agent attack in Salisbury.”

That NATO meeting was on 27 April 2018.

The Foreign Secretary went straight from that NATO meeting to Palazzo Terranova in Italy for a weekend-long party hosted by Evgeny Lebedev, now Lord Lebedev. There he met with Evgeny Lebedev’s father, Alexander Lebedev, an ex-KGB officer. The Foreign Secretary attended the party with no security and no officials, despite his position being deemed to require round-the-clock protection from the Metropolitan police. There is a brief entry of ministerial interests on the Foreign Office website, where he declared an “overnight stay” at the party on 28 April, which is the only official record in existence.

While the Foreign Secretary was partying with Lord Lebedev and his father, the ex-KGB officer, the Novichok was still waiting to be found in a bin seven miles north of Salisbury. It was found by Charlie Rowley on 30 June, who survived his exposure to the Novichok. However, his partner, Dawn Sturgess, did not, having sprayed it directly on to her skin, believing it to be perfume.

In September 2018, the Prime Minister returned to update the House of Commons to confirm that, based on a body of intelligence, the Government had concluded that the two individuals named by the police and the Crown Prosecution Service were officers from the Russian military intelligence service, the GRU. The right hon. Member for Uxbridge and South Ruislip followed up in writing to the Liaison Committee in his letter dated 21 July 2022, saying:

“As far as I am aware, no Government business was discussed”

at that encounter with Alexander Lebedev. Needless to say, that one line presented far more questions than answers.

We have decided to keep the definition tight to someone who is a member of a foreign intelligence service. Committee members might point out that, in this particular scenario, given that Alexander Lebedev would describe himself as a former KGB officer, the right hon. Member for Uxbridge and South Ruislip would not necessarily be covered by the new clause. However, this new clause, new clause 4 and new clause 29 would work in combination to ensure that the gap in procedure exposed by the meeting I have just outlined would be closed down.

It is right to ensure that the Government and officials act with accountability and transparency. The new clause does not prevent such meetings taking place; it only formalises expectations around how any such encounter should be managed. The Government may argue that it is not necessary, as similar expectations are already provided for by the ministerial code, but the ministerial code was very much degraded in recent months, and was in effect when the meeting that I outlined took place, so there is very much a case for tighter measures.

The public have a right to expect the highest possible standards from their Government officials, in both their public and private lives. The new clause will ensure that Government officials adhere to strict clearance systems when dealing with the intelligence services of hostile foreign states. I hope the Government will welcome this opportunity to tighten standards and will support new clause 5.

[Tom Tugendhat]

I welcome the spirit in which the new clause was tabled. I understand the points made by the hon. Member for Halifax. As she knows very well, Ministers are already expected to uphold the ministerial code. I am not going to seek to defend the Administration of the right hon. Member for Uxbridge and South Ruislip; as the hon. Lady will know, we had our disagreements at that time, when I was chairing the Foreign Affairs Committee, and I put them on the record. Indeed, I attended the Liaison Committee hearing to which she referred.

It is important to look at where we are today and to recognise that the re-issuing of the ministerial code in May this year, which included proportionate sanctions, should be taken into account. It is also worth pointing out that the Bill already includes several measures to counter hostile activity, including updated espionage offences for disclosing or providing access to protected information and offences for engaging in preparatory conduct relating to espionage. That could just be a simple meeting and a cup of coffee.

In clause 3, the Bill also seeks to criminalise activity whereby a person either engages in conduct that they intend will materially assist a foreign intelligence service or knows or reasonably ought to know that conduct that they are engaged in is of a kind that it is reasonably possible may materially assist a foreign intelligence service. As the former head of GCHQ put it, this is all about making sure that others cannot construct a haystack in which to find a needle. It means that, for the first time, it will be a criminal offence to be a covert foreign agent and engage in activity that assists a foreign intelligence service.

To be clear to the Committee, the offences would capture Ministers of the Crown if they engaged in conduct that falls outside their official functions or capacity as a Minister. Moreover, ministerial conduct is principally a matter for the ministerial code and there are already transparency measures in place for Ministers of the Crown to formally record their engagements with external parties and declare any gifts and hospitality. If a Minister is with an external organisation or individual and finds themselves discussing official business without an official present—for example, at a social occasion—any significant content should be passed back to the Department as soon as possible after the event.

Although it would not be appropriate to comment on security or intelligence matters, what I can say is that Ministers are made fully aware of their responsibility to safeguard national security, including in respect of the standards of conduct expected of Ministers and how they discharge their duties in maintaining the security of Government business, as set out in the ministerial code. Although the new clause may seek to provide further accountability and propriety, it would not be appropriate to create new, separate provisions.

Overall, I consider that the existing mechanisms that are already in place to increase transparency around foreign influence in the UK political and governmental system, as well as the measures already in the Bill aimed at tackling and responding to the malign nature of seeking to assist a foreign intelligence service, are sufficient. I ask the hon. Member for Halifax to withdraw the new clause, although I recognise the pattern of actions that brought her to table it.

[Holly Lynch]

The Minister has gone through the pre-existing frameworks that should have prevented such a meeting from taking place, and suggests that those should be enough. Unfortunately, the example I gave shows that they were not enough. We still do not have all the answers we would like about what was discussed and what the nature of that engagement was, and the clarity that would satisfy us that there were no breaches of national security as part of that interaction. The Minister is right that all that should have been enough, but it was not in those circumstances, and as far as we can tell there were no real consequences in real time of that having taken place.

I have made my case strongly; however, as the Minister has put his personal views on the record and given his assurance that he understands the points I made and will continue to bear them in mind as we look at some of the protections in the round, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 6

Defences

“(1) In any proceedings for an offence under section 2 of this Act or section 5 of the Official Secrets Act 1989, it shall be a defence—

(a) that the disclosure in question was in the public interest, and

(b) the manner of the disclosure was also in the public interest.

(2) Whether a disclosure was in the public interest shall be determined having regard to—

(a) the subject matter of the disclosure,

(b) the harm caused by the disclosure, and

(c) any other relevant feature of the disclosure.

(3) Whether the manner of disclosure was in the public interest shall be determined having regard to—

(a) whether the disclosure has been made in good faith,

(b) if the disclosure relates to alleged misconduct, whether the individual reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,

(c) whether the disclosure is made for the purposes of personal gain,

(d) the availability of any other effective authorised procedures for making the disclosure and whether those procedures were exercised, and

(e) whether, in all the circumstances of the case, it is reasonable for the disclosure to have been made in the relevant manner.”—(Mr Jones.)

This new clause introduces a public interest defence to the new disclosure offence created by clause 2, and the section 5 disclosure offence in the Official Secrets Act 1989. The proposed defence is modelled on the public interest defence in the Public Interest Disclosure Act 1998.

Brought up, and read the First time.

--- Later in debate ---

[Tom Tugendhat]

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

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

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

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

[Mr Jones]

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

Clause, by leave, withdrawn.

[Holly Lynch]

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

On considering the foreign influence registration scheme and its intended use, we felt that there was room to go further in relation to former employees of the intelligence services of other nations. New clause 29 will require all former employees of a security or intelligence service of a foreign power who are present in the United Kingdom for more than two months to register their presence with the Secretary of State. The Secretary of State has the discretion of making provisions by regulations about what information is required. We know that we are dealing with countries that are tasking their people to engage in a multitude of influence activities, from the loud and overt to the barely seen and covert, and everything in between.

Turning specifically to oligarchs and that culture, we have seen some individuals establish themselves almost as London celebrities. They are incredibly wealthy, and for some their status is built partly on the back of having been a former employee of an intelligence service. They make that clear as part of their persona, and it is the “former” bit that gives them a degree of cover. They have the connections and insight to be an interesting and potentially helpful ally to some of our politicians and decision makers, especially if they are incredibly wealthy, as so many oligarchs are, yet are deemed to be arm’s length enough for there to be the confidence for those relationships to grow largely unabated.

The notion of systemic opposition in Russia in particular provides for a degree of criticism of Putin and his regime as a means of occupying the space where actual opposition should be, and once again provides a degree of cover for those oligarchs overseas who engage in some criticism—enough to satisfy those they need to satisfy that they are indeed critics—before later mounting staunch defences of their former regimes when necessary. In addition to the FIRS framework set out in the Government’s new clauses, this is another intended layer of transparency, aimed precisely at those people, to put on a formal footing both those who are open about their previous work and those we may not otherwise know about.

We have discussed that those engaged in espionage are often not typical in any way. They will have received training, and will be incredibly capable and resourceful. Even those who have truly moved away from careers in the intelligence services will not lose overnight the ability to exercise those skills. I take on board that those working for security services have the right to a life after those careers; however, given that there are regimes known to pressurise, blackmail, or force co-operation from their people, even if they have truly walked away from that environment, there would be merit in the Secretary of State knowing where those vulnerabilities lie. I hope that the Minister will see the merit in this addition to the foreign influence registration scheme and adopt new clause 29.

[Tom Tugendhat]

I note the proposed new clause, and I hope that the hon. Member for Halifax will take my response in the way I intend it. Either foreign intelligence agents are already declared, in which case they are actively engaged in conversations with our intelligence services, or they are undeclared, in which case asking them to register may be something that we can hope for, but would be unlikely. I understand the intention behind the new clause, although I question whether it is proportionate, given that we are already trying to get anybody who is connected to a foreign agent to be registered. I feel that it may be more hopeful and aspirational than a realistic attempt to change other people’s actions.

[Holly Lynch]

The Minister absolutely understands the point that I was making. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Schedule 1

Disclosure orders

Part 1

England and Wales and Northern Ireland

Introductory

1 (1) This Part of this Schedule applies in England and Wales and Northern Ireland.

(2) “Relevant investigation” means an investigation into the identification of relevant property or its movement or use.

(3) “Relevant property” means—

(a) money or other property which is likely to be used for the purposes of foreign power threat activity, or

(b) proceeds of involvement in foreign power threat activity.

(4) The reference to proceeds of involvement in foreign power threat activity includes a reference to any money, other property or benefit in money’s worth, which wholly or partly, and directly or indirectly, represents the proceeds of the involvement (including payments or rewards in connection with the involvement).

(5) “Appropriate officer” means—

(a) a constable, or

(b) a National Crime Agency officer.

Disclosure orders

2 (1) An appropriate officer may apply to a judge for a disclosure order.

(2) The application must state that a person or property specified in the application is subject to a relevant investigation and the order is sought for the purposes of the investigation.

(3) The judge may grant the application if satisfied that conditions 1 to 3 are met.

(4) Condition 1 is that there are reasonable grounds for suspecting that the property specified in the application is relevant property.

(5) Condition 2 is that there are reasonable grounds for believing that information which may be provided in compliance with a requirement imposed under the order is likely to be of substantial value, whether by itself or with other information, to the investigation.

(6) Condition 3 is that there are reasonable grounds for believing that it is in the public interest for the information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained.

(7) A disclosure order is an order authorising an appropriate officer to give to any person the officer considers has relevant information notice in writing requiring the person to do any or all of the following with respect to any matter relevant to the investigation—

(a) answer questions, either at a time specified in the notice or at once, at a place so specified;

(b) provide information specified in the notice, by a time and in a manner so specified;

(c) produce documents, or documents of a description, specified in the notice, either at or by a time so specified or at once, and in a manner so specified.

(8) “Relevant information” means information (whether or not contained in a document) which the appropriate officer considers to be relevant to the investigation.

(9) A person is not bound to comply with a requirement imposed by a notice given under a disclosure order unless evidence of authority to give the notice is produced.

(10) An appropriate officer may not make an application under this paragraph unless the officer is a senior officer or is authorised to do so by a senior officer.

Supplementary provision

3 (1) A disclosure order does not confer the right to require a person—

(a) to answer any question,

(b) to provide any information, or

(c) to produce any document or other material,

which the person would be entitled to refuse to answer, provide or produce on grounds of legal professional privilege in proceedings in the High Court.

(2) But a lawyer may be required to provide the name and address of a client.

(3) A disclosure order does not confer the right to require a person to produce excluded material.

(4) A disclosure order has effect despite any restriction on the disclosure of information imposed by an enactment or otherwise.

(5) An appropriate officer may take copies of any documents produced in compliance with a requirement to produce them imposed under a disclosure order.

(6) The documents may be retained for so long as it is necessary to retain them (as opposed to a copy of them) in connection with the investigation for the purposes of which the order was made.

(7) But if an appropriate officer has reasonable grounds for believing that—

(a) the documents may need to be produced for the purposes of any legal proceedings, and

(b) they might otherwise be unavailable for those purposes,

they may be retained until the proceedings are concluded.

(8) An appropriate officer may retain documents under sub-paragraph (7) only if the officer is a senior officer or is authorised to do so by a senior officer.

Applications

4 An application for a disclosure order may be made without notice to a judge in chambers.

Discharge or variation

5 (1) An application to discharge or vary a disclosure order may be made to the Crown Court by—

(a) the person who applied for the order;

(b) any person affected by the order.

(2) If the application for the disclosure order was made by a constable, an application to discharge or vary the order may be made by a different constable.

(3) If the application for the disclosure order was made by a National Crime Agency officer, an application to discharge or vary the order may be made by a different National Crime Agency officer.

(4) An appropriate officer may not make an application to discharge or vary a disclosure order unless the officer is a senior officer or is authorised to do so by a senior officer.

(5) The Crown Court may—

(a) discharge the order;

(b) vary the order.

Rules of court

6 Rules of court may make provision as to the practice and procedure to be followed in connection with proceedings relating to disclosure orders.

Offences

7 (1) A person commits an offence if without reasonable excuse the person fails to comply with a requirement imposed under a disclosure order.

(2) A person guilty of an offence under sub-paragraph (1) is liable—

(a) on summary conviction in England and Wales, to imprisonment for a term not exceeding the maximum term for summary offences or a fine (or both);

(b) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale (or both).

(3) A person commits an offence if, in purported compliance with a requirement imposed under a disclosure order, the person—

(a) makes a statement which the person knows to be false or misleading in a material particular, or

(b) recklessly makes a statement which is false or misleading in a material particular.

(4) A person guilty of an offence under sub-paragraph (3) is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine (or both);

(b) on summary conviction in England and Wales, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine (or both);

(c) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum (or both).

Statements

8 (1) A statement made by a person in response to a requirement imposed under a disclosure order may not be used in evidence against that person in criminal proceedings.

(2) Sub-paragraph (1) does not apply on a prosecution for—

(a) an offence under paragraph 7(3),

(b) an offence under section 5 of the Perjury Act 1911 or Article 10 of the Perjury (Northern Ireland) Order 1979 (S.I. 1979/1714 (N.I. 19)) (false statements), or

(c) some other offence where, in giving evidence, the person makes a statement inconsistent with the statement mentioned in sub-paragraph (1).

(3) A statement may not be used against a person by virtue of sub-paragraph (2)(c) unless—

(a) evidence relating to it is adduced, or

(b) a question relating to it is asked,

by or on behalf of the person in the proceedings arising out of the prosecution.

Interpretation

9 (1) This paragraph applies for the interpretation of this Part of this Schedule.

(2) “Disclosure order” has the meaning given by paragraph 2.

(3) “Judge” means—

(a) in relation to England and Wales, a judge entitled to exercise the jurisdiction of the Crown Court;

(b) in relation to Northern Ireland, a judge of the Crown Court.

(4) “Senior officer” means—

(a) a constable of at least the rank of superintendent;

(b) the Director General of the National Crime Agency or any other National Crime Agency officer authorised by the Director General (whether generally or specifically) for this purpose.

(5) “Document” means anything in which information of any description is recorded.

(6) “Excluded material”—

(a) in relation to England and Wales, has the same meaning as in the Police and Criminal Evidence Act 1984;

(b) in relation to Northern Ireland, has the same meaning as in the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)).

(7) The terms defined in paragraph 1 have the meanings given in that paragraph.

Part 2

Scotland

Introductory

10 (1) This Part of this Schedule applies in Scotland.

(2) In this Part of this Schedule “relevant investigation” and “relevant property” have the same meaning as in Part 1 of this Schedule.

Disclosure orders

11 (1) The Lord Advocate may apply to the High Court of Justiciary for a disclosure order.

(2) The application must state that a person or property specified in the application is subject to a relevant investigation and the order is sought for the purposes of the investigation.

(3) The court may grant the application if satisfied that conditions 1 to 3 are met.

(4) Condition 1 is that there are reasonable grounds for suspecting that the property specified in the application is relevant property.

(5) Condition 2 is that there are reasonable grounds for believing that information which may be provided in compliance with a requirement imposed under the order is likely to be of substantial value, whether by itself or with other information, to the investigation.

(6) Condition 3 is that there are reasonable grounds for believing that it is in the public interest for the information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained.

(7) A disclosure order is an order authorising the Lord Advocate to give to any person the Lord Advocate considers has relevant information notice in writing requiring the person to do any or all of the following with respect to any matter relevant to the investigation—

(a) answer questions, either at a time specified in the notice or at once, at a place so specified;

(b) provide information specified in the notice, by a time and in a manner so specified;

(c) produce documents, or documents of a description, specified in the notice, either at or by a time so specified or at once, and in a manner so specified.

(8) “Relevant information” means information (whether or not contained in a document) which the Lord Advocate considers to be relevant to the investigation.

(9) A person is not bound to comply with a requirement imposed by a notice given under a disclosure order unless evidence of authority to give the notice is produced.

Supplementary provision

12 (1) A disclosure order does not confer the right to require a person—

(a) to answer any question,

(b) to provide any information, or

(c) to produce any document,

which the person would be entitled to refuse to answer, provide or produce in legal proceedings on grounds of confidentiality of communications.

(2) A disclosure order has effect despite any obligation as to secrecy or other restriction on the disclosure of information imposed by an enactment or otherwise.

(3) The Lord Advocate may take copies of any documents produced in compliance with a requirement to produce them imposed under a disclosure order.

(4) The documents may be retained for so long as it is necessary to retain them (as opposed to a copy of them) in connection with the investigation for the purposes of which the order was made.

(5) But if the Lord Advocate has reasonable grounds for believing that—

(a) the documents may need to be produced for the purposes of any legal proceedings, and

(b) they might otherwise be unavailable for those purposes,

they may be retained until the proceedings are concluded.

Applications

13 An application for a disclosure order may be made without notice to a judge of the High Court of Justiciary.

Discharge or variation

14 (1) An application to discharge or vary a disclosure order may be made to the High Court of Justiciary by—

(a) the Lord Advocate;

(b) any person affected by the order.

(2) The High Court of Justiciary may—

(a) discharge the order;

(b) vary the order.

Rules of court

15 (1) Provision may be made in rules of court as to the discharge and variation of disclosure orders.

(2) Rules of court are, without prejudice to section 305 of the Criminal Procedure (Scotland) Act 1995, to be made by act of adjournal.

Offences

16 (1) A person commits an offence if without reasonable excuse the person fails to comply with a requirement imposed under a disclosure order.

(2) A person guilty of an offence under sub-paragraph (1) is liable on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale (or both).

(3) A person commits an offence if, in purported compliance with a requirement imposed under a disclosure order, the person—

(a) makes a statement which the person knows to be false or misleading in a material particular, or

(b) recklessly makes a statement which is false or misleading in a material particular.

(4) A person guilty of an offence under sub-paragraph (3) is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine (or both);

(b) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both).

Statements

17 (1) A statement made by a person in response to a requirement imposed under a disclosure order may not be used in evidence against that person in criminal proceedings.

(2) Sub-paragraph (1) does not apply on a prosecution for—

(a) an offence under paragraph 16(3),

(b) perjury, or

(c) some other offence where, in giving evidence, the person makes a statement inconsistent with the statement mentioned in sub-paragraph (1).

(3) A statement may not be used against a person by virtue of sub-paragraph (2)(c) unless—

(a) evidence relating to it is adduced, or

(b) a question relating to it is asked,

by or on behalf of the person in the proceedings arising out of the prosecution.

Interpretation

18 (1) This paragraph applies for the interpretation of this Part of this Schedule.

(2) “Disclosure order” has the meaning given by paragraph 11.

(3) “Document” means anything in which information of any description is recorded.”—(Tom Tugendhat.)

This new Schedule provides for disclosure orders to be made. These orders authorise constables and NCA officers (the Lord Advocate in Scotland) to require information for the purpose of relevant investigations as defined in paragraph 1 of the Schedule.

Brought up, read the First and Second time, and added to the Bill.

New Schedule 2

Customer information orders

1 (1) An appropriate officer may apply to a judge for a customer information order.

(2) The judge may grant the application if satisfied that—

(a) the order is sought for the purposes of an investigation into foreign power threat activity, and

(b) the order will enhance the effectiveness of the investigation.

(3) “Appropriate officer” means—

(a) in relation to England and Wales or Northern Ireland, a constable or a National Crime Agency officer;

(b) in relation to Scotland, the procurator fiscal.

(4) The application must state that—

(a) a person specified in the application is subject to an investigation within sub-paragraph (2)(a) and the order is sought for the purposes of the investigation;

(b) the order is sought against the financial institution or financial institutions specified in the application.

(5) The application may specify—

(a) all financial institutions,

(b) a particular description, or particular descriptions, of financial institutions, or

(c) a particular financial institution or particular financial institutions.

(6) A customer information order is an order authorising an appropriate officer to give to a financial institution covered by the application notice in writing requiring it to provide any customer information it has relating to the person specified in the application.

(7) The financial institution must provide the information at or by the time, and in a manner, specified in the notice.

(8) A financial institution is not bound to comply with a requirement imposed by a notice given under a customer information order unless evidence of authority to give the notice is produced.

(9) An appropriate officer may not make an application under this paragraph unless the officer is a senior officer or is authorised to do so by a senior officer.

(10) Sub-paragraph (9) does not apply in relation to Scotland.

Supplementary provision

2 A customer information order has effect despite any obligation as to secrecy or other restriction on the disclosure of information imposed by an enactment or otherwise.

Applications

3 An application for a customer information order may be made without notice to a judge in chambers.

Discharge or variation

4 (1) An application to discharge or vary a customer information order may be made to the court by—

(a) the person who applied for the order;

(b) any person affected by the order.

(2) If the application for the customer information order was made by a constable, an application to discharge or vary the order may be made by a different constable.

(3) If the application for the customer information order was made by a National Crime Agency officer, an application to discharge or vary the order may be made by a different National Crime Agency officer.

(4) An appropriate officer may not make an application under this paragraph unless the officer is a senior officer or is authorised to do so by a senior officer.

(5) Sub-paragraph (4) does not apply in relation to Scotland.

(6) The court may—

(a) discharge the order;

(b) vary the order.

Rules of court

5 (1) Rules of court may make provision as to the practice and procedure to be followed in connection with proceedings relating to customer information orders.

(2) In Scotland rules of court are, without prejudice to section 305 of the Criminal Procedure (Scotland) Act 1995, to be made by act of adjournal.

Offences

6 (1) A person commits an offence if without reasonable excuse the person fails to comply with a requirement imposed under a customer information order.

(2) A person guilty of an offence under sub-paragraph (1) is liable—

(a) on summary conviction in England and Wales, to imprisonment for a term not exceeding the maximum term for summary offences or a fine (or both);

(b) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale (or both);

(c) on summary conviction in Scotland, to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale (or both).

Statements

7 (1) A statement made by a person in response to a requirement imposed under a customer information order may not be used in evidence against them in criminal proceedings.

(2) Sub-paragraph (1) does not apply on a prosecution for an offence where, in giving evidence, the person makes a statement inconsistent with the statement mentioned in sub-paragraph (1).

(3) A statement may not be used against a person by virtue of sub-paragraph (2) unless—

(a) evidence relating to it is adduced, or

(b) a question relating to it is asked,

by or on behalf of the person in the proceedings arising out of the prosecution.

Interpretation

8 (1) This paragraph applies for the interpretation of this Schedule.

(2) “Appropriate officer” has the meaning given by paragraph 1(3).

(3) “The court” means—

(a) in relation to England and Wales or Northern Ireland, the Crown Court;

(b) in relation to Scotland, the sheriff.

(4) “Customer information”—

(a) in relation to England and Wales or Northern Ireland, has the meaning given by section 364 of the Proceeds of Crime Act 2002;

(b) in relation to Scotland, has the meaning given by section 398 of that Act.

(5) “Financial institution” has the same meaning as in Schedule 6 to the Terrorism Act 2000 (see paragraph 6 of that Schedule).

(6) “Judge” means—

(a) in relation to England and Wales, a judge entitled to exercise the jurisdiction of the Crown Court;

(b) in relation to Northern Ireland, a judge of the Crown Court;

(c) in relation to Scotland, the sheriff.

(7) “Senior officer” means—

(a) a constable of at least the rank of superintendent;

(b) the Director General of the National Crime Agency or any other National Crime Agency officer authorised by the Director General (whether generally or specifically) for this purpose.”—(Tom Tugendhat.)

This new Schedule provides for customer information orders to be made. These orders authorise constables and NCA officers (the procurator fiscal in Scotland) to obtain customer information from financial institutions.

Brought up, read the First and Second time, and added to the Bill.

New Schedule 3

Account monitoring orders

1 (1) An appropriate officer may apply to a judge for an account monitoring order.

(2) The judge may grant the application if satisfied that—

(a) the order is sought for the purposes of an investigation into foreign power threat activity, and

(b) the order will enhance the effectiveness of the investigation.

(3) “Appropriate officer” means—

(a) in relation to England and Wales or Northern Ireland, a constable or a National Crime Agency officer;

(b) in relation to Scotland, the procurator fiscal.

(4) The application must state that the order is sought against the financial institution specified in the application in relation to information which—

(a) relates to an account or accounts held at the institution by the person specified in the application (whether solely or jointly with another), and

(b) is of the description so specified.

(5) The application may specify information relating to—

(a) all accounts held by the person specified in the application at the financial institution so specified,

(b) a particular description, or particular descriptions, of accounts so held, or

(c) a particular account, or particular accounts, so held.

(6) An account monitoring order is an order that the financial institution specified in the application must—

(a) for the period specified in the order,

(b) in the manner so specified,

(c) at or by the time or times so specified, and

(d) at the place or places so specified,

provide information of the description specified in the application to an appropriate officer.

(7) The period stated in an account monitoring order must not exceed the period of 90 days beginning with the day on which the order is made.

Applications

2 An application for an account monitoring order may be made without notice to a judge in chambers.

Discharge or variation

3 (1) An application to discharge or vary an account monitoring order may be made to the court by—

(a) the person who applied for the order;

(b) any person affected by the order.

(2) If the application for the account monitoring order was made by a constable, an application to discharge or vary the order may be made by a different constable.

(3) If the application for the account monitoring order was made by a National Crime Agency officer, an application to discharge or vary the order may be made by a different National Crime Agency officer.

(4) The court may—

(a) discharge the order;

(b) vary the order.

Rules of court

4 (1) Rules of court may make provision as to the practice and procedure to be followed in connection with proceedings relating to account monitoring orders.

(2) In Scotland rules of court are, without prejudice to section 305 of the Criminal Procedure (Scotland) Act 1995, to be made by act of adjournal.

Effect of orders

5 (1) In England and Wales and Northern Ireland, an account monitoring order has effect as if it were an order of the court.

(2) An account monitoring order has effect in spite of any obligation as to secrecy or other restriction on the disclosure of information imposed by an enactment or otherwise.

Statements

6 (1) A statement made by a person in response to an account monitoring order may not be used in evidence against them in criminal proceedings.

(2) But sub-paragraph (1) does not apply—

(a) in the case of proceedings for contempt of court;

(b) on a prosecution for an offence where, in giving evidence, the person makes a statement inconsistent with the statement mentioned in sub-paragraph (1).

(3) A statement may not be used against a person by virtue of sub-paragraph (2)(b) unless—

(a) evidence relating to it is adduced, or

(b) a question relating to it is asked,

by or on behalf of the person in the proceedings arising out of the prosecution.

Interpretation

7 (1) This paragraph applies for the interpretation of this Schedule.

(2) “Appropriate officer” has the meaning given by paragraph 1(3).

(3) “The court” means—

(a) in relation to England and Wales or Northern Ireland, the Crown Court;

(b) in relation to Scotland, the sheriff.

(4) “Financial institution” has the same meaning as in Schedule 6 to the Terrorism Act 2000 (see paragraph 6 of that Schedule).

(5) “Judge” means—

(a) in relation to England and Wales, a judge entitled to exercise the jurisdiction of the Crown Court;

(b) in relation to Northern Ireland, a judge of the Crown Court;

(c) in relation to Scotland, the sheriff.”—(Tom Tugendhat.)

This new Schedule provides for account monitoring orders to be made. These orders may require financial institutions to provide specified information relating to accounts.

Brought up, read the First and Second time, and added to the Bill.

[Tom Tugendhat]

I beg to move amendment 66, Title, line 3, after “2007;” insert

“for the registration of certain arrangements with, and activities of, specified persons and foreign principals;”

This amendment amends the long title to add a reference to the registration scheme.

[Tom Tugendhat]

This is a simple change in the title of the Bill and I hope that everyone can support it.

Amendment 66 agreed to.

[Holly Lynch]

On a point of order, Mr Gray. If I may—

[Holly Lynch]

I am so grateful for your guidance, Mr Gray. I want to put on the record my thanks to some of those who have supported the Committee’s deliberations and made our scrutiny possible. I thank the Clerks—Bradley Albrow in particular has been utterly unflappable, often in the face of absolute chaos. He has been a massive help to me and, I am sure, to many other Members, and I thank him for his services.

I also thank Home Office officials and the UK intelligence community, who, I think all Members will agree, have been transparent and engaged in this process, ensuring that we are—given the subject matter—as informed as we can be. I have met several members of the security services over the course of the Bill Committee; funnily enough, I do not have full names for any of them. I thank MI5 director general Ken McCallum and his team for all their support. I also thank Detective Superintendent Darren Hassard and Commander Richard Smith from counter-terrorism policing for their insight on provisions relating to their work, as well as Professor Thom Brookes and senior lecturer and retired police office Owen West for their invaluable assistance. May I also thank my incredibly dedicated parliamentary assistant, Jamie Welham?

I have been very ably assisted by my fellow shadow Front-Bench colleagues as well as by Labour Back Benchers, and I am eternally grateful to them. As we reach Report, I look forward to following up with the Minister on the detail of exactly what has been promised.

[Tom Tugendhat]

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

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

[Mr Jones]

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

[Mr Jones]

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

[Tom Tugendhat]

Quite right.

[The Chair]

I will ensure that those thanks are passed on.

Question put and agreed to.

Bill, as amended, to be reported.

National Security Bill

Tom Tugendhat Excerpts

Report stage
Wednesday 16th November 2022 Commons Chamber

[The Minister for Security (Tom Tugendhat)]

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

[Mr Deputy Speaker (Mr Nigel Evans)]

With this it will be convenient to discuss the following:

New clause 1—Offence of failing to declare participation in arrangement required to be registered.—

“(1) A person who carries out an activity, or arranges for an activity to be carried out, in the United Kingdom pursuant to—

(a) a foreign activity arrangement required to be registered under section 61(1), or

(b) a foreign influence arrangement required to be registered under section 64(1)

must declare that they are party to the arrangement, when making a communication to those in section 65(2)(a)(i) to (vi).

(2) A person who breaches the requirement in subsection (1) commits an offence.”

This new clause makes it an offence for a person to engage in activity pursuant to a foreign activity or foreign influence arrangement which is required to be registered, if the person does not declare that they are party to the arrangement when communicating with those in section 65(2)(a)(i) to (vi).

New clause 2—ffence of carrying out activities under a foreign activity arrangements: Disqualification from Parliament—

“(1) A person who is a Member of the House of Commons or the House of Lords commits an offence if—

(a) the person carries out an activity, or arranges for an activity to be carried out, in the United Kingdom pursuant to a foreign activity arrangement, and

(b) the persons knows, or ought reasonably to know, that they are acting under the direction of a specified person.

(2) A person who is found guilty of an offence under subsection (1), and is a Member of the House of Commons, is disqualified from membership of the House of Commons.

(3) A person who is found guilty of an offence under subsection (1), and is a Member of the House of Lords, is disqualified from sitting or voting in the House of Lords, and sitting or voting in a committee of the House of Lords or a joint committee of both Houses.

(4) In this section, “foreign activity arrangement” has the same meaning as in section 61(2).”

This new clause would automatically disbar Members of the House of Commons and Lords who are found guilty of engaging in an activity pursuant to a foreign activity arrangement, where the person knows, or ought reasonably to know, that they are acting under the direction of a specified person.

New clause 3—Reviews of Parts 1, 4 and 5—

‘(1) The operation of Parts 1, 4 and 5 of this Act must be reviewed by a person, or people, appointed by the Secretary of State.

(2) The operation of Part 4 must be reviewed by the person appointed by the Secretary of State under section 36(1) of the Terrorism Act 2006.

(3) The operation of Parts 1 and 5 must be reviewed by either—

(a) the person appointed by the Secretary of State under section 36(1) of the Terrorism Act 2006, or

(b) a different person appointed by the Secretary of State.

(4) Reviews under this section must be carried out in respect of—

(a) the 12-month period beginning with the day on which any section in this Part comes into force, and

(b) each subsequent 12-month period.

(5) Each review under subsection (1) must be completed as soon as reasonably practicable after the period to which it relates.

(6) The person or people mentioned in subsections (2) and (3) must send to the Secretary of State a report on the outcome of each review carried out under subsection (1) as soon as reasonably practicable after completion of the review.

(7) On receiving a report under subsection (6), the Secretary of State must lay a copy of it before Parliament.

(8) Section 36(6) of the Terrorism Act 2006 shall be read such that the “expenses” and “allowances” mentioned therein may include the discharge by the person or people of their functions under this section.’

New clause 4—Reporting on disinformation originating from foreign powers—

“(1) The Secretary of State must appoint a person or body to review the extent of disinformation originating from foreign powers which presents a threat, or potential threat, to national security.

(2) A review under subsection (1) must include an assessment of the extent of foreign interference in elections.

(3) A review under subsection (1) may include—

(a) examining the number and scale of offences committed, and estimating the number and scale of instances where an offence is suspected to have been committed, under—

(i) section 13, where Condition C is met, and

(ii) section 14,

and,

(b) any other matters the person or body considers relevant to the matters mentioned in subsections (1) and (2).

(4) The person or body appointed under subsection (1) may be the Intelligence and Security Committee of Parliament, or another person or body the Secretary of State considers appropriate.

(5) A review must be carried out under this section in respect of—

(a) the 12-month period beginning with the day on which section 13 comes into force, and

(b) each subsequent 12-month period.

(6) Each review under this section must be completed as soon as reasonably practicable after the period to which it relates.

(7) The person or body must send to the Secretary of State a report on the outcome of each review carried out under this section as soon as reasonably practicable after completion of the review.

(8) On receiving a report under subsection (7), the Secretary of State must lay a copy of it before Parliament.

(9) The Secretary of State may pay to the person or body—

(a) expenses incurred in carrying out the functions of the reviewer under this section, and

(b) such allowances as the Secretary of State determines, except where financial provision is already made to the person or body for the discharge of the person or body’s functions, of which this section may form part.”

New clause 5—Proceedings relating to safety or interests of the United Kingdom—

“(1) This section applies where a court is considering proceedings under Part 1 of this Act, where the proceedings involve the safety or interests of the United Kingdom.

(2) In proceedings to which this section applies, the court must take account of how the interests of the Secretary of State or of the Government of the United Kingdom may differ from the interests of the United Kingdom, in order to satisfy itself that the interests of the United Kingdom have been appropriately identified and considered.”

New clause 6—Ministerial conduct—

“(1) This section applies in relation to any Minister of the Crown who engages with, or intends to engage with, or ought reasonably to know that they are about to engage with, a person who is a part of a foreign intelligence service.

(2) A Minister of the Crown may only engage with such a person if either of the following conditions are met—

(a) a senior civil servant is formally present at or party to the engagement, and a formal record of the engagement has been made by the senior civil servant; or

(b) a senior civil servant is not formally present at or party to the engagement, and a formal record of the engagement has not been made by a senior civil servant, but the written consent of the Prime Minister has been sought by the Minister of the Crown, and has been granted and formally recorded in writing.

(3) In this section “engagement” includes meeting in person or via electronic means, and corresponding in writing or via electronic means.”

New clause 7—Requirement to inform public of prohibited places—

“The Secretary of State must by regulations make provision so as to ensure that the public are given sufficient notice—

(a) that a location is a prohibited place within the meaning of section 7;

(b) of the circumstances in which an offence may be committed under sections 4 to 6 in respect of that prohibited place.”

This new clause would place an obligation on the Secretary of State to make regulations providing for the public to be given notice of prohibited places and the conduct which would amount to a criminal offence in relation to them.

New clause 11—Home Office review of the Tier 1 (Investor) visa scheme—

“Within two weeks of the passage of this Act, the Secretary of State must publish any findings of the Home Office review of the Tier 1 (Investor) visa scheme which relate to foreign influence activity.”

New clause 12—Report on actions taken in response to the ISC report on Russia—

“Within six months of the passage of this Act, the Secretary of State must lay before Parliament a report on the effect of the action taken by the Government in response to the recommendations of the report of the Intelligence and Security Committee of Parliament on Russia (HC 632 of Session 2019–21).”

New clause 13—Ministerial appointments: official advice—

“(1) The Cabinet Secretary must publish a memorandum in respect of any ministerial appointments made by the Prime Minister, where advice or concerns were communicated to the Prime Minister by civil servants that the appointment may be counter to the safety or interests of the United Kingdom.

(2) A memorandum under this section must set out that advice or concerns were communicated to the Prime Minister by civil servants, and in respect of which ministerial appointments.

(3) A memorandum under this section may not include details of the advice or concerns, where the Cabinet Secretary considers that inclusion of those details may be prejudicial to the safety or interests of the United Kingdom.”

New clause 14—Report requirement: Protecting democratic institutions and processes—

“(1) The Secretary of State must lay before Parliament a report, as soon as practicable after the end of—

(a) the period of 12 months beginning with the day on which this Act is passed, and

(b) every subsequent 12-month period,

on his assessment of the impact sections 13 and 14 of this Act have had on protecting the integrity of the UK’s democratic processes.

(2) In this section “democratic processes” includes local democracy.”

Amendment 116, in clause 1, page 1, line 10, after “safety or” insert “critical”.

This amendment seeks to clarify the tests to be met before the offence of obtaining or disclosing protected information is committed.

Amendment 17, page 1, line 15, after “article” insert “with a Government Security Classification of Secret or Top Secret”.

This amendment would confine the offence of obtaining or disclosing protected information to information that has been classified as secret or top secret (rather than to all information access to which is restricted in any way).

Amendment 18, in clause 2, page 2, line 18, at end insert “(ca) the person’s conduct is prejudicial to the safety or interests of the United Kingdom, and”.

This amendment would narrow the scope of the offence of obtaining or disclosing trade secrets so that it applies only to trade secrets that would prejudice the safety or interests of the UK.

Amendment 117, page 3, line 1 , after “national” insert “, a UK resident, or a person in the employment of a UK person as defined in paragraphs (b) or (c)”.

Government amendments 40 to 42.

Amendment 19, in clause 3, page 3, line 32, after “Kingdom” insert “which are prejudicial to the safety or interests of the United Kingdom”.

This amendment would narrow the scope of the offence of assisting a foreign intelligence service in respect of activities within the UK so that it applies only to assistance that would prejudice the safety or interests of the UK (rather than to assistance of any kind).

Government amendment 43.

Amendment 119, page 4, line 7, at end insert—

“(aa) with the knowledge and consent of the UK security and intelligence services,”.

This amendment would clarify that activities undertaken with the knowledge and consent of the UK security and intelligence services would not constitute a criminal offence under this clause alone.

Amendment 120, in clause 4, page 5, line 17, at end insert—

“(7) No offence is committed under (1) if the conduct is for the purposes of protest, unless the conduct is prejudicial to the safety of the United Kingdom.”.

This amendment would restrict the circumstances in which access to a prohibited place for the purposes of protest would amount to an offence under this clause.

Amendment 20, in clause 5, page 5, line 25, at end insert—

“(ba) the conduct is prejudicial to the safety or interests of the United Kingdom,”.

This amendment would confine the offence of unauthorised entry etc to a prohibited place so that it applies only to entry etc that is prejudicial to the safety or interests of the UK.

Amendment 133, page 5, line 33, leave out “includes” and insert “may, depending on the circumstances, include”.

This amendment would mean taking a photograph or other recording of a prohibited place was not automatically a criminal offence of inspecting that place, but would depend on the circumstances.

Amendment 21, in clause 6, page 6, line 17, leave out paragraph (c).

This amendment would remove the power of the police to order a person to leave an area “adjacent to” a prohibited place.

Amendment 22, page 6, line 28, after “(2)” insert “, (a)”.

This amendment is consequential on Amendment 23.

Amendment 23, page 6, line 30, after “Kingdom” insert “, and (b) without prior authorisation by an officer of at least the rank of Inspector, unless obtaining that authorisation is not reasonably practicable”.

This amendment would impose a requirement that a police officer obtains authorisation from a more senior officer before exercising powers under clause 6.

Amendment 24, page 6, line 32 at end insert “which was necessary to protect the safety or interests of the United Kingdom and proportionate to that aim.”

This amendment would narrow the offence of failing to comply with an order made by a police constable in relation to a prohibited place so that it applies only to an order that was necessary and proportionate to protecting the safety or interests of the UK.

Amendment 25, in clause 7, page 6, line 37, after “means” insert “a place, entry to which could pose a risk to the safety or interests of the United Kingdom, and which is”

This amendment would narrow the definition of prohibited place so that it applies only to locations relevant to the safety and interests of the United Kingdom (rather than any Ministry of Defence land).

Government amendments 44 and 45.

Amendment 121, in clause 8, page 8, line 21, leave out “or interests”.

This amendment would restrict the power to designate additional prohibited places by regulation to where it was necessary to protect the safety of the United Kingdom.

Amendment 26, in clause 11, page 10, line 8, leave out paragraph (c).

Government amendments 46 and 47.

Amendment 14, page 20, line 35, leave out clause 27

Government amendments 48 and 49.

Amendment 124, in clause 28, page 21, line 23, at end insert—

“(2A) However, the conduct in question, or a course of conduct of which it forms part, is not to be treated as carried out for or on behalf of a foreign power if financial or other assistance of a foreign power under (2)(c) is provided otherwise than specifically for the conduct or course of conduct.”

This amendment ensures that organisations that receive funding from foreign powers are not guilty of offences under this act if that funding was not for the conduct or course of conduct that would otherwise amount to the offence.

Amendment 30, in clause 30, page 22, line 40, leave out paragraph (c).

This amendment would narrow the definition of foreign power threat activity to remove giving support and assistance (including that unrelated to espionage activity) to a person known or believed to be involved in offences under the Bill (but would retain conduct which facilitates or is intended to facilitate such offending).

Government amendment 50.

Amendment 118, in clause 31, page 23, line 25, at end insert—

““critical interests of the United Kingdom” include security and intelligence, defence, international relations, law and order, public health and economic interests;”.

This amendment seeks to clarify the tests to be met before the offence of obtaining or disclosing protected information is committed.

Amendment 125, in clause 37, page 26, line 25, leave out “reasonably believes” and insert “believes on the balance of probabilities”.

This amendment would apply the usual civil standard of proof in relation to decision to impose Prevention and Investigation Measures.

Amendment 126, in clause 38, page 27, line 35, leave out “four” and insert “two”.

This amendment would mean the Secretary of State could seek to extend a part 2 notice on two occasions rather than four.

Amendment 31, in clause 43, page 30, line 21, leave out from beginning to “before” in line 22 and insert “The chief officer of the appropriate police force must confirm to the Secretary of State that the condition in subsection (2) is satisfied before”.

This amendment, together with amendments 16 to 18, would require the Secretary of State to receive confirmation from the police that prosecution is not realistic before imposing a PIM, rather than requiring only a consultation on the subject.

Amendment 33, page 30, line 28, leave out “The matter is whether there is” and insert “The condition is that there is not”.

Amendment 34, page 31, line 14, leave out “responding to consultation” and insert “providing confirmation”.

Amendment 32, page 31, line 26, leave out “(1) or”.

Amendment 35, in clause 53, page 38, line 13, leave out “this Part” and insert “Part 1 and Part 2”.

This amendment would extend the review function of the Independent Reviewer to cover Part 1 of the Bill in addition to Part 2.

Amendment 3, in clause 58, page 41, line 8, at end insert—

“(2) Within three months of the passing of this Act, the Secretary of State must publish a statement setting out how the Secretary of State intends to exercise the power under this section. The statement must include a list of illustrative examples of the kinds of contracts or other arrangements this power relates to.”

Government amendments 61 and 62.

Amendment 130, in clause 61, page 43, line 19, after “P” insert “, whether directly or through intermediaries”.

This amendment would make clear that those making a foreign activity arrangement via intermediaries, would be required to register the arrangement.

Government motion to transfer subsection (2) of clause 61.

Government amendments 63 to 65.

Government motion to divide clause 61.

Government amendments 66 to 74.

Government motion to transfer subsection (2) of clause 64.

Government amendments 75 to 83.

Government motion to divide clause 64.

Government amendments 84 to 94.

Amendment 15, in clause 68, page 48, line 20, leave out paragraph (b).

Amendment 16, page 48, line 25, leave out paragraph (b).

Government amendments 95 to 101.

Amendment 131, in clause 70, page 51, line 10, at end insert—

“(3A) The information required of the person to whom an information notice is given must be limited to information the Secretary of State deems reasonably necessary to ensure the person is complying with the requirements of this Part.”

This amendment would place restrictions on the type of information the Secretary of State can require under clause 70.

Government amendments 102 to 108.

Amendment 1, in clause 75, page 53, line 39, at end insert—

“(h) an offence under section [Offence of failing to declare participation in arrangement required to be registered] committed in relation to a foreign activity arrangement required to be registered under section 61(1).”.

This amendment is consequential on NC1.

Government amendment 109.

Amendment 2, page 54, line 23, at end insert—

“(h) an offence under section [Offence of failing to declare participation in arrangement required to be registered] committed in relation to a foreign influence arrangement required to be registered under section 64(1) .”.

This amendment is consequential on NC1.

Government amendments 110 to 112.

Amendment 8, Page 56, line 4, leave out Clause 79.

Amendment 9, Page 56, line 26, leave out Clause 80.

Amendment 36, in clause 80, page 56, line 31, at end insert—

“(ba) the court is satisfied that any damages awarded to the claimant in those proceedings are likely to be used for the purposes of terrorism,”.

This amendment would remove the duty on the court to consider reducing damages in clause 58, unless the court considered the damages were likely to be used for the purposes of terrorism.

Government amendments 51 to 53.

Amendment 37, page 57, line 18, at end insert “or which it would award under section 8 of that Act had the claim been brought under it.”.

This amendment would prevent the reduction of damages in claims that could have been brought as a human rights claim under the HRA 1998 but were in fact brought on other grounds.

Amendment 10, page 57, line 30, leave out clause 81.

Amendment 11, page 58, line 5, leave out clause 82.

Amendment 12, Page 59, line 10, leave out clause 83.

Amendment 38, Page 59, line 14, leave out clause 84.

This amendment, together with Amendment 39, would remove the proposed limits on access to legal aid for persons with a conviction for a terrorism offence and the consequential power to make information requests related to those limits.

Amendment 5, in clause 84, page 59, line 29, leave out “F” and insert “G”.

Amendment 6, page 60, line 11, at end insert—

“(7A) Condition G is met where the offender is seeking legal aid for the purposes of—

(a) pursuing a civil order, where the purpose of the order is to protect a victim of domestic abuse, or

(b) participating in family court proceedings, and where the offender is a victim of domestic abuse.”.

Amendment 7, page 61, line 6, at end insert—

“”domestic abuse” has the same meaning as in the Domestic Abuse Act 2021;”

Amendment 39, page 61, line 15, leave out clause 85.

See explanatory statement for Amendment 38.

Government amendment 113.

Government new schedule 1—Control of a person by a foreign power.

Government new schedule 2—Exemptions.

Amendment 128, schedule 3, page 88, line 31, leave out sub-paragraph (4).

This amendment would prevent a disclosure order from having effect where disclosure is protected by an enactment.

Amendment 129, schedule 4, page 94, line 29, leave out sub-sub-paragraph (b), and insert—

“(b) there are reasonable grounds for believing that information which may be provided in compliance with a requirement imposed under the order is likely to be of substantial value, whether by itself or with other information, to the investigation; and

(c) there are reasonable grounds for believing that it is in the public interest for the information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained.”

This amendment would require the court to be satisfied of the same tests for customer information notices as set out in relation to disclosure orders in Schedule 3.

Government amendment 54.

Amendment 4, schedule 6, page 100, line 19, at end insert—

“(1A) A place designated by the Secretary of State under sub-paragraph (1) must be subject to an independent inspection by—

(a) Her Majesty’s Inspectorate of Constabulary, or

(b) a different person or body appointed by the Secretary of State.”.

Government amendment 55.

Amendment 27, page 104, line 12, leave out sub-paragraphs (4) and (5).

This amendment would prevent it being permissible to delay informing a named person of an individual’s detention under clause 21, or that individual consulting a solicitor, for the purposes of asset recovery.

Amendment 123, page 112, line 13, leave out from “if” to the end of line 20, and insert “the person has previously been convicted of an offence under this Act.”

This amendment would restrict the circumstances in which fingerprints and samples from someone detained under clause 25 could be retained indefinitely, instead of the usual 3 years under paragraph 20(5) of Schedule 2.

Government amendments 56 and 57.

Amendment 28, page 124, line 13, leave out sub-sub-paragraphs (b) and (c).

This amendment would prevent it being permissible to postpone reviews of detention without warrant on the basis that the review officer is unavailable or, for any other reason, the review is not practicable.

Amendment 127, schedule 7, page 144, line 17, leave out paragraph 12.

This amendment would remove the power for the Secretary of State to impose participation in polygraph sessions as part of provisions in relation to Prevention and Investigation Measures.

Government amendments 58 and 59.

Amendment 13, page 175, line 1, leave out Schedule 13.

Amendment 132, schedule 13, page 176, line 29, leave out “there is a real risk that”.

This amendment would ensure the court was satisfied on the balance of probabilities that damages were to be used for terrorism purposes before frozen funds could be forfeited entirely.

Government amendment 60.

[Tom Tugendhat]

It is a pleasure to stand before the House today to introduce not just new clause 9, but many other new clauses that I and many others in this House have argued for at different times and in different places.

[Chris Bryant (Rhondda) (Lab)]

Plus a few others.

[Tom Tugendhat]

Plus a few others. So it is a great pleasure to be here today.

May I also place on record my enormous thanks to two right hon. Members—the hon. Member for Garston and Halewood (Maria Eagle) will smile as I say this—who have done so much to get us to this position today? I refer to my right hon. Friends the Members for East Hampshire (Damian Hinds) and for Stevenage (Stephen McPartland), who have been extremely generous with their time and thoughts, including in private with me as well, in making sure that I am able to answer as many of her questions as I can, although somehow she has exceeded even their magisterial intellect. I am grateful that they have got us to this place, because this Bill is essential for the future defence of our nation.

The reason for that is because, of course, the world has changed. The reality is that national security in this country has changed and evolved in recent years, and the Darwinian challenge between the hunter and the hunted has led us to a position where we need to update not just our techniques, which can be done in private, but sadly our laws, which rightly must be debated in public.

I think we all agree with the core aims of the Bill. The first is to give our law enforcement and intelligence agencies the tools they need to tackle harmful activities in the United Kingdom carried out by, or on behalf of, foreign powers. However, to do that we also need to increase the transparency around those who seek to influence the politics and institutions of the United Kingdom through the foreign influence registration scheme. That is a very welcome addition. I know that many Members here, including those who have been on the Foreign Affairs Committee for the past five years, have called for it at various different points. The Bill has, at its heart, the protection of the national security of this great country that we all serve.

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

rose—

[Tom Tugendhat]

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

[Mr Kevan Jones]

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

[Tom Tugendhat]

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

[Sir John Hayes (South Holland and The Deepings) (Con)]

My right hon. Friend is right that this is an important step. In particular, he is right about the foreign influence registration scheme, which has long been called for, including by the Intelligence and Security Committee, of which I am a member. He will also know that, because we have yet to discuss that in any detail, there may be confusion about the primary and secondary tiers—in other words, those things that are designated as being of more profound importance than these other things. Would it be helpful if he were to write to the ISC, setting out how he thinks they would work in practice, given that we understand that the secondary tier will be introduced by secondary legislation?

[Tom Tugendhat]

My right hon. Friend is right. I would be very happy to write to him. I can summarise it now by saying that the primary tier is that connected to political activity. Anybody from any foreign country who wishes to influence this House, this Parliament, any Members here, or indeed any political outcome, would be looking at the primary tier. That is the basic level, and it involves a registration on a website so that we can all know who has taken payment for what—which piper has been paid and by whom.

The enhanced registration is different and requires registration for a wider range of activities, but those depend on the specific foreign power and, indeed, the entity or operation within it. That is a different matter, and that will be down to the Secretary of State looking at what is reasonably necessary in order to protect the safety and interests of the United Kingdom—that is the enhanced tier, as we are calling it. That is the summary, but I will be happy to write to the ISC.

[Chris Bryant]

The Minister said that once somebody has registered on a website, we will all be able to see it. That may be true if we knew that that was where we had to look to check whether somebody coming in through the door, sending us a letter or inviting us to dinner as an MP was actually somebody who was working for a foreign power. Would it not be far more sensible, once somebody has registered, to require them to declare to any Minister, MP or Member of the House of Lords that that is what they were doing, so that there is a degree of protection for this House?

[Tom Tugendhat]

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 (Dundee East) (SNP)]

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]

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

[Dr Julian Lewis (New Forest East) (Con)]

Will the Minister give way?

[Tom Tugendhat]

I will.

[Dr Lewis]

The Minister is very forbearing, and I am glad of the opportunity to warmly congratulate him on his appointment and thank him for the positive way in which he has been reaching out to the ISC.

On the question of the second tier, there appears to be some sort of discrimination between countries that are friendly and those that are hostile, and—unless I misunderstand the Bill—only the hostile ones are going to appear in the secondary designation. If that is the case, could it not lead to some anomalous situations when diplomatic relations improve with a country, so we take it off the second tier, or they worsen and we put it on? There is bound to be a time lag in that sort of thing, so how practical is the second tier scheme as it is currently constituted?

[Tom Tugendhat]

My right hon. Friend makes a valid point. The challenge that we have, as he knows very well, is how we balance the responsibility to inform and how wide we go. I have spoken about this issue with my right hon. Friend in the past, and his judgment on this is something I have always valued, so it has always been very important to me that we share a view on it. However, I think we all agree that where a foreign power is seeking to influence our political life in the broadest sense, we should know about it, whoever is exercising that influence.

I take my right hon. Friend’s point about enhanced registration. Sadly, there is inherently a delay between the way that life changes and the response of Government —that is the reality of existence—but it is important for us to recognise that some countries and entities do require enhanced awareness. That is why it is important for us to have an extra tier.

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

Will the Minister give way on that point?

[Tom Tugendhat]

This will be the last time I give way for now.

[Maria Eagle]

I am grateful to the Minister for giving way. He has talked about the challenges and the enhanced part of the scheme. Will it not be a challenge to use the scheme in practice, because he has to put the country concerned into secondary legislation? Is that not going to be diplomatically very difficult to do? Is the reality not that the complex way in which the Government have set out the scheme, with little scrutiny possible from either this Chamber or Committees, means that in practice it is not going to be used at all?

[Tom Tugendhat]

I think the hon. Lady knows me well enough to know that, having been sanctioned by three countries now, it is unlikely that I will be reticent in identifying those that I think are threats to the United Kingdom.

[Chris Bryant]

The right hon. Gentleman might not be in the job.

[Tom Tugendhat]

I am very confident that others will also be bold on His Majesty’s behalf. Whoever is fortunate enough to be representing His Majesty in the Home Office will be able to conduct those offices in the good fashion that people expect. [Interruption.] I will move on.

The core of the Bill is, of course, national security and our intelligence services, building on the work they have done to enable us to grow in confidence and prosperity. They have provided the security apparatus that allows freedom beneath and around it. That is an extraordinary luxury and a blessing that this country has been able to enjoy for many years and generations because of the courage and intellect of so many people. They require tools to conduct those tasks, and I am delighted that the Bill will sharpen some of those tools.

--- Later in debate ---

[Mr Kevan Jones]

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

[Tom Tugendhat]

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

[Several hon. Members rose—]

--- Later in debate ---

[Joanna Cherry (Edinburgh South West) (SNP)]

I was here to speak to new clause 7 and amendments 17 to 28 and 30 to 39, but there is not enough time for me to do so. That is most regrettable, given the importance of the Bill.

I am here not in my personal capacity but as Chair of the Joint Committee on Human Rights. Our duty is to scrutinise legislation to check its human rights compliance, and we have done that. I remind Members that the Joint Committee is a cross-party Committee with half its members from the House of Commons and half from the House of Lords. That is just as well, because it will be in the House of Lords that our amendments get the attention that I believe they deserve. Although I am not really a fan of the House of Lords as an unelected Chamber, I am very much a fan of second Chambers. Nevertheless, it is regrettable that such a small amount of time has been afforded to us today to debate this important Bill, which we believe has significant human rights implications. Given the short time available to me, I shall make some general comments; as I say, I hope that our detailed amendments will get the attention they deserve in the House of Lords.

We broadly welcome the attempt to modernise espionage offences, but we have some concerns about the Bill’s provisions. The Bill is a step forward and many of its provisions are broadly in line with the recommendations of the Law Commission’s recent review, but there are risks that some of the provisions are drawn far too widely and could criminalise behaviour that does not constitute a threat to national security. We think that other provisions would interfere unnecessarily and disproportionately with rights to freedom of expression and association and the right to protest, and that they may regrettably have a disproportionate impact on certain communities in the United Kingdom, particularly if new police powers are not exercised with restraint.

The provisions on prevention and investigation measures, which were not included in the Law Commission’s review, also engage the right to a fair trial, the right to liberty and security and the right to a private and family life in a way that gives the Joint Committee cause for concern. We are also very concerned about the restrictions on the grant of legal aid and on the awarding of damages to those who have been involved in terrorism. They risk impeding access to basic rights and legal protections, as other Members have elaborated on. We have therefore suggested that the Bill be amended in a number of ways but, as I say, there is not sufficient time for me to address any of the amendments in any meaningful way.

Let me say one other thing before I sit down. The Bill does not address issues relating to the unauthorised disclosure of information—sometimes known as leaks—despite it being a significant part of the Law Commission’s review. The commission set out clearly the ways in which the existing law engages and potentially breaches the UK’s human rights commitments under the European convention on human rights, and suggested ways in which law might be changed to overcome such issues. Although the Joint Committee appreciates that this is in many ways a complex and controversial area of law, we hope that that is not going to result in inaction, and encourage the Government to consult on legislative provisions as soon as possible.

We believe that reform of the Official Secrets Act 1989 is needed to ensure adequate respect for free speech. That is why I added my name to new clause 8, tabled by the right hon. Member for North Durham (Mr Jones), which I very much regret we are not able to debate today. Put shortly, we need a public interest defence in this country.

[Tom Tugendhat]

This has been a very full discussion involving many people. Although I sympathise with those who have quite rightly made the point that we could always have more time for these debates, the truth is that we had a lot of time in the Bill Committee and we are going to have to do much more work on this subject as its various elements evolve with the technology and the challenge. The truth is that if we had had this debate five, 10 or 15 years ago, we would have been debating different subjects, different nations and different elements of technology that have evolved into the threat that we sadly face today. Although I recognise that many hon. Members have understandably raised the number of hours and days that we have had today and in the past few weeks, the Government have listened and adapted the Bill to many aspects that have been raised in different ways.

[Chris Bryant]

One thing that the Government have certainly had plenty of time to get ready is the tier 1 visa report, as promised by five Home Secretaries. When will the Minister publish it?

[Tom Tugendhat]

It will not surprise the hon. Gentleman to know that one of the first things I did on arrival at the Home Office was to ask for it to be prepared for publication. I will come back to him with it, I hope, urgently—I will let him know.

Many different points have been raised. I pay enormous tribute to my many right hon. and hon. Friends who have spoken and to those who have approached the Bill with the diligence and seriousness that the subject demands, particularly the hon. Members for Halifax (Holly Lynch) and for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), who have been extremely supportive critics and have been challenging in the right spirit. I am glad to say that those discussions have resulted in most of the Bill going through in the way that was intended, and that those challenges and changes have improved it.

I accept that there are some differences of opinion. On areas such as the Serious Crime Act and the changes to statutory requirements, I believe that the Government are right because the exercise of the functions of an officer of the state are exactly what should be the limiting functions of their powers. That is why this reform makes sense, although my right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright) raised some important points and challenges that we will have to look at.

My right hon. and learned Friend also asked about damages and whether they followed in the way that he described, and I agree that they do. The point is that we should neither make it harder or more applicable to have damages, nor prevent it where judges seek the discretion to do so. Where they have that discretion, they may continue to do it, but we are asking them to look and consider the situation in which those damages arose to make sure that they are truly applicable. It is merely a review policy, rather than a block. That is an important element of the Bill; judges may already have that power but this measure merely puts it on the statute book.

Much of the debate has focused on whistleblowers and the public interest defence, and the way in which various people could argue that they are acting in the interests of the wider polity in raising different objections. This is a hugely important area and I understand that many hon. Members have raised different points. The head of MI5, the heads of various agencies and many others who have engaged on it have been absolutely clear on this point, however, because we need to make sure that we are not introducing any defence that forces the Government to reveal the damage that has been done in order to provide a defence.

The reality is that forcing the publication of damages may indeed be further damaging to the initial offence. That is why although I take the point about the public interest defence, which is a wider question for the whole of Government and the whole country, and I take the point about whistleblowers, which is again a wider question and not specific to the Bill, I am afraid that I hold with the head of MI5 and others who have been extremely clear on this point.

[Mr Kevan Jones]

With the greatest respect, that is a weak argument, because there can always be closed hearings on national security grounds. I say to the Minister that this issue will not go away—the courts are deciding it anyway. I would sooner state a protection in law than leave it to the whims of a jury, which is what we have now.

[Tom Tugendhat]

I have a great trust in our jury system, and I know the right hon. Member does, too.

[Mr Jones]

I haven’t actually.

[Tom Tugendhat]

Oh, he does not. I do have trust in our jury system and I do have trust in the Great British people to make decisions appropriately. One of the decisions sometimes made by juries is to strike out a case because they disagree with it. I am afraid that is simply one of those—

[Mary Robinson (Cheadle) (Con)]

The public interest defence has been mentioned on several occasions throughout this debate. Notwithstanding the strictures of national security and of this Bill, it is important that people have a reliable route that they can take when they want to expose wrongdoing. Does my right hon. Friend consider that an office of the whistleblower might be such a route? I know the public interest defence is very likely to come forward again.

[Tom Tugendhat]

My hon. Friend is absolutely right to raise that. It is not specific to this Bill, but it is something that many of us have been considering for a while. I certainly agree that wider consideration is important in ensuring that those who have legitimate grievances and objections to what they may have been asked to do have a valid route for raising such questions.

I will go through a few of the other points very quickly. My right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith) and my hon. Friend the Member for Burnley (Antony Higginbotham) raised the point about legal services, and they were absolutely right to do so. Let me be quite clear that this is about privileged legal co-operation. Therefore, that privilege should be exempt—it should absolutely be exempt—so that those who have access to legal rights should be able to exercise them without the state’s intervention. That is essential to the rule of law and, indeed, to the protection of human rights in our country.

I should also make it quite clear that the Government have heard very clearly the points made about civil legal aid. These will be receiving very serious consideration in the coming days, and I look forward to updating the House in due course on where that goes to.

I briefly thank for their insights my right hon. and learned Friend the Member for South Swindon (Sir Robert Buckland) and my hon. Friend the Member for Milton Keynes North (Ben Everitt) on the Government side, and of course my very dear friend, the hon. Member for Barnsley Central (Dan Jarvis). Although we disagree, again, he remains a very close friend, and I look forward to discussing more of these issues with him in the future. I shall leave it at that.

Question put and agreed to.

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

New clause 3

Reviews of Parts 1, 4 and 5

‘(1) The operation of Parts 1, 4 and 5 of this Act must be reviewed by a person, or people, appointed by the Secretary of State.

(2) The operation of Part 4 must be reviewed by the person appointed by the Secretary of State under section 36(1) of the Terrorism Act 2006.

(3) The operation of Parts 1 and 5 must be reviewed by either—

(a) the person appointed by the Secretary of State under section 36(1) of the Terrorism Act 2006, or

(b) a different person appointed by the Secretary of State.

(4) Reviews under this section must be carried out in respect of—

(a) the 12-month period beginning with the day on which any section in this Part comes into force, and

(b) each subsequent 12-month period.

(5) Each review under subsection (1) must be completed as soon as reasonably practicable after the period to which it relates.

(6) The person or people mentioned in subsections (2) and (3) must send to the Secretary of State a report on the outcome of each review carried out under subsection (1) as soon as reasonably practicable after completion of the review.

(7) On receiving a report under subsection (6), the Secretary of State must lay a copy of it before Parliament.

(8) Section 36(6) of the Terrorism Act 2006 shall be read such that the “expenses” and “allowances” mentioned therein may include the discharge by the person or people of their functions under this section.’—(Holly Lynch.)

Brought up, and read the First time.

Question put, That the clause be read a Second time.

--- Later in debate ---

[Tom Tugendhat]

I beg to move, That the Bill be now read the Third time.

It remains for me to thank enormously my right hon. Friends the Members for East Hampshire (Damian Hinds) and for Stevenage (Stephen McPartland), who did so much to get the Bill to the right place; my right hon. Friend the Home Secretary, who has very graciously left me to get on with this; and all the Members who have been so helpful.

My great thanks go to the intelligence and law enforcement agencies in particular. Their extraordinary courage and skill have earned more than my admiration, respect and gratitude for many, many years, but never more so than in the last few weeks, in which I have been privileged to serve them.

It is worth pointing out very quickly one or two elements of the Bill that I have not yet had the chance to touch on. Let me make it absolutely clear that there is no possibility—no way, no desire, no intent—that any area in this Bill, or in any other that this Government would pass, would in any way diminish the unqualified right not to be tortured. That is an absolute right that this Government and, I know, other Governments, would all hold to. I should be absolutely clear that not only is there is no desire in this House for that to change, but there is no such desire in any of the services and agencies with which I have had the privilege of discussing it.

What our Government, our agencies and those who hold office in our name all know very well is that they are defending our rights and freedoms when they defend the rule of law. They are absolutely championing the values and liberties that matter to us. In the Bill, we are evolving from trying to stop spectaculars such as the tragedies that hit on 9/11 to employing spectrometers—finer points of detection—to try to ensure that we eliminate risks that come in different ways. That is why I am so grateful to them all for the advice and help they have offered to ensure that the Bill is structured as it is.

I should make it quite clear that the Bill has opened up an area in which we will need to go further and in which I am glad the Prime Minister has asked me to go further: the defence of democracy. Our democracy in this country has sadly been under attack for too long. We are not alone; we know that our friends in other parts of the country and other parts of the world have faced similar attacks and similar areas of influence. I am delighted that the taskforce that the Prime Minister has asked me to lead will get on with its work very shortly, updating the integrated review and helping to ensure that this country is ready for the changes in the threats that we face so that the ultimate sovereignty of our people—the right to choose—is guaranteed and defended long into the future. That means that we have to set up not just powers to empower those agents who work in our name, but the guardrails to defend that right.

I am very glad that the Bill includes such provisions as the requirement for the Attorney General’s consent—the Advocate General’s in certain cases—to make sure that none of the powers is abused in any way. I am delighted that we have got that in the right place, because we know, sadly, that abuse is always possible.

I will end with the words of Ken McCallum, the director general of MI5, who today was very supportive of not only the Bill but many of the measures that his service has been carrying out. He has been inspirational in his leadership of his service and his defence of the United Kingdom, so I am delighted by his welcome for the foreign influence registration scheme, describing it as

“a modern power designed to tackle a modern threat”.

He is absolutely right, and the scheme is essential. For those reasons, I am grateful for the support we have had from the hon. Members for Halifax (Holly Lynch) and for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), and other Members across the House.

--- Later in debate ---

[Madam Deputy Speaker]

I thank the hon. Lady and the right hon. Lady for their points of order. Obviously I do not know the background to this case, but I can see that it is a very serious issue. Government Ministers are present and I think the Minister for Security may wish to intervene.

[The Minister for Security (Tom Tugendhat)]

Further to that point of order, Madam Deputy Speaker. I am sure that I speak for the Immigration Minister and the Policing Minister when I say that they will both look into it very carefully. I am sure they will return to answer these questions.

National Security Bill

Tom Tugendhat Excerpts

Consideration of Lords amendments
Wednesday 3rd May 2023 Commons Chamber

[The Minister for Security (Tom Tugendhat)]

I beg to move amendment (a) to Lords amendment 26.

[Madam Deputy Speaker (Dame Rosie Winterton)]

With this it will be convenient to discuss the following:

Lords amendment 26, and amendment (c) and Government amendment (b).

Lords amendment 153, and Government amendment (a).

Lords amendment 22, and Government motion to disagree.

Lords amendment 122, and Government motion to disagree.

Lords amendments 1 to 21, 23 to 25, 27 to 121, 123 to 152 and 154 to 174.

[Tom Tugendhat]

Let me start on a personal note by thanking the Clerk who is sitting in his place and congratulating him on becoming Clerk of the House. It is the first time that he has been in his place when I have spoken from the Despatch Box. He has been a friend for many years, so I am glad to have the opportunity to put on record that the Clerks keep us all on the straight and narrow, and in some cases get us out of rather a lot of trouble. I thank them very much indeed.

It is a pleasure to bring the National Security Bill back to this House. A number of changes have been made in the other place to improve it. The House will know the importance of the Bill: it gives our intelligence and security services, as well as law enforcement, a new toolkit to tackle state actors who threaten the safety and security of the United Kingdom. It also takes steps to prevent public funds from being given to those who could use them to support terror. As always, this Government have listened. I pay tribute to Lord Anderson and Lord Carlile for their work to improve the Bill—[Interruption.] I am glad to hear the acknowledgement from the Opposition Benches. That has improved the Bill for all sides.

We have heard the views of the other place, of industry and of many others, and we have focused the foreign influence registration scheme into a more targeted weapon against those who would do us harm. Arrangements to carry out political influence activity will now be registerable only when directed by a foreign power. Receiving funding from a foreign power, absent a direction, will not trigger a requirement to register under the scheme. For example, cultural institutes that make an important contribution to life in the United Kingdom will not be required to register simply because they receive funding from a foreign power. That is in line with the original intention of the scheme.

Only where organisations or individuals are directed by a foreign power to carry out political activities will that arrangement need to be routinely registered. We will publish guidance to support understanding of the scheme and circumstances in which arrangements will need to be registered. It remains the case that criminal offences will be attached to failures to register.

The Government made a number of changes in the other place following concerns expressed about the Bill’s potential impact on journalistic freedoms and other legitimate activity. I pay enormous tribute to Lord Black for his contribution to the debate. The Government are clear that the Bill’s focus is on protecting the United Kingdom from threats from those acting against the UK’s interests, not interfering with press freedom. The Lords amendments clarify the scope of offences and requirements in part 1. That includes amending the language in the phrase

“knows, or ought reasonably to know”

to put beyond doubt that it would need to be proved what an individual knew rather than capturing individuals acting unwittingly. That applies in every instance when the phrase appears in the Bill, including in the foreign power condition.

Further drafting changes have been made, including to clarify the scope of the offence of assisting a foreign intelligence service and the meaning of foreign power threat activity.

[Martin Docherty-Hughes (West Dunbartonshire) (SNP)]

Does the Minister agree that we must exclude assistance in torture from the scope of defence, to protect people such as my constituent Jagtar Singh Johal, who was repeatedly electrocuted and threatened with being set alight by the Government of India?

[Tom Tugendhat]

The hon. Member will know that that is a matter for the Foreign Office in its dealings with other states. The Bill does not in any way erode any of the protections under the European convention on human rights, including the right not to be tortured.

We are pleased that the chief executive officer of the News Media Association Owen Meredith said in response to the Government’s changes that he welcomed

“the government’s reassurances that journalism will not be criminalised under this new national security regime.”

That is absolutely correct. It will not be, and it is not the Government’s intention that it should be. The media sector recognises the balance that the Government have struck between protecting press freedoms and safeguarding national security.

We have also taken on board the concerns of the Intelligence and Security Committee of Parliament, which I thank for the incredibly constructive and supportive manner in which it has engaged on the Bill. In response, the Government have changed the Serious Crime Act 2007 amendment from non-application of the offences to a defence. We believe that the amendment strikes the right balance. It ensures that the dedicated individuals in the intelligence and security services can carry out activities to support our foreign partners, but that there can be proper legal consideration of any potential wrongdoing.

The Bill is now in a strong position. We have effective tools and powers to tackle hostile activity on British soil or that is against the UK’s interest, done for or on behalf of, or with the intention to benefit, foreign states. We have a thorough transparency scheme designed to ensure that we know who is influencing our politics. Under the enhanced tier of the foreign influence registration scheme, we have the ability to specify states and entities and thereby require the registration of activities to protect the safety or interests of the United Kingdom. We also have the means to prevent the exploitation of the UK’s civil legal aid and civil damage systems by convicted terrorists.

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

I have raised on a number of occasions in debates and Committees the use of cryptocurrencies, and cryptocurrency mixers in particular, to facilitate the activities of hostile state-sponsored activities in a number of countries. The US Treasury acted against a number of the so-called mixers back in August last year. Despite raising that on a number of occasions, I am yet to receive clarification on what we are doing to ensure that cryptocurrency is not used to facilitate hostile state activities, as has been done in sums of billions.

[Tom Tugendhat]

The hon. Gentleman, who is a friend, is right to highlight this issue as it is true that cryptocurrency can be used in such ways. I urge him to look at the Economic Crime and Corporate Transparency Bill, which we are taking through the House. Naturally, the National Security Bill does not cover every element that we are using to ensure the protection of the United Kingdom; there are many other Bills, which work together as a woven fabric of defence. Cryptocurrency is one aspect of the Economic Crime and Corporate Transparency Bill, which my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) is leading on. That Bill is making its way through the House and will address some of the hon. Gentleman’s concerns.

Turning to amendments 22 and 122, the Government have set out clear reasons why we will not accept either amendment. I know that my right hon. Friend the Member for New Forest East (Sir Julian Lewis) will be making an intervention about this later in the debate. We have set out the reasons why we will not accept the amendments, which were made clear in the other place.

Amendment 22 would introduce a requirement for political parties to

“publish a policy statement to ensure the identification of donations from a foreign power”.

Upon receipt of a donation, political parties are already required by law to verify whether they are or are not from a political source. Donations that do not meet the permissibility tests or are unidentifiable must be returned and reported to the Electoral Commission. If political parties fail to do that, their treasurers face being sent to jail. They risk the reputations of their staff and their elected representatives being shredded. There is already a strong incentive for parties to ensure that donations come only from permissible donors.

[Sir Chris Bryant (Rhondda) (Lab)]

But earlier the Minister was praying in aid Lord Carlile, saying what a wonderful job he had done in helping the Government to bring forward wonderful amendments. This is one of his amendments, so it seems a bit odd to turn against this one.

On the point the Minister just made about permissible donors, all that has to be checked is whether the person is on the electoral register. The Elections Act 2022 has added to the register 3.5 million people who do not even live in this country. All that political parties presently have to do is check whether somebody is on the electoral register. I do not think that safeguards our elections from interference from those who would wish us ill.

[Tom Tugendhat]

The hon. Member has formerly been very kind about the work that we have done together, such as on the Foreign Affairs Committee and on other appointments. He has agreed with me on some areas and disagreed on others. It cannot be an enormous surprise to him that I agree with Lord Carlile on some areas and disagree with him on others. Frankly, that is the nature of parliamentary work, as the hon. Gentleman knows better than anyone.

As for the hon. Gentleman’s point about foreign registrations, those are of British citizens living abroad. Those are the only terms on which people are registered to vote on our electoral register. It is not right to say that those are a random 3.5 million people; that is certainly not true. They are British citizens and therefore their donations are as valid as their votes.

The Government recognise that there are risks. That is why it is already an offence to attempt to make a donation by concealing information, giving false information or knowingly facilitating the making of an impermissible donation. Where the foreign power condition is met in relation to a relevant electoral offence, as set out in schedule 1 to the Bill, clause 16 provides for a substantially increased maximum penalty: where a one-year sentence previously applied, that has been increased to four years; and two-year sentences have been increased to seven years. These relevant electoral offences include offences of undue influence, for which the maximum sentence has been increased to seven years, and making a false declaration about the source of a donation, for which the maximum sentence has been increased to four years.

Indeed, the Government have already taken action. The Elections Act 2022 tightened the law to close loopholes on foreign spending. The Electoral Commission is also being given more powers to access Companies House information, through measures under the Economic Crime and Corporate Transparency Bill. That will allow the Electoral Commission to undertake the proper targeted and proportionate checks.

For absolute clarity, donations to political parties from foreign powers, made directly or indirectly, are not permissible. The amendment places new requirements on minor parties, who are not subject to any other financial reporting requirements at this time, as they can contest only local and parish elections. The amendment would therefore place huge administrative burdens on small, grassroots political campaigning and would punish grassroots democracy.

It is not clear how the proposals would work in practice. Political parties are not banks; rightly, they do not have access to individuals’ financial records. They are not His Majesty’s Revenue and Customs; they do not have access to tax records. They do have access to the electoral roll and to Companies House, which they are already obliged to check. The Electoral Commission already publishes guidance on these legal duties. Indeed, political parties must already report all larger donations to the Electoral Commission, which are then published online for public scrutiny.

[Martin Docherty-Hughes]

Is the Minister saying that small grassroots organisations, many of them associational organisations that may be registered charities in England and Wales, Scotland or Northern Ireland, are not capable of filling out an extra form to make sure that they are not being utilised by foreign states?

[Tom Tugendhat]

The hon. Member underplays what the amendment would do. It would be much more than simply filling in a form and would place a greater burden of a need to check, which would be a major requirement for small political parties and grassroots organisations. I am surprised that he, as a champion of local democracy, would require smaller parties to do that.

As I have said, Lords amendment 22 is not needed. The law already makes robust provision in relation to donations to political parties. Foreign donations are banned. It is an offence to accept them and there are strong rules safeguarding against impermissible donations via the backdoor. Parties can accept donations only from permissible donors. As such, the Government will not accept the amendment.

Amendment 122 imposes a duty on the Prime Minister to amend the memorandum of understanding between the Prime Minister and the Intelligence and Security Committee to account for changes to intelligence or security activities

“as a result of this Act”.

It also requires engagement on these revisions to begin within six months of the Act coming into force.

The power to make revisions to the MOU between the Prime Minister and the ISC is not limited to changes resulting from a specific piece of legislation. Adding the amendment risks creating the erroneous impression that explicit legislative provision is required in order for the ISC to propose amendments to the MOU. Further, the power to amend the MOU is already included in the Justice and Security Act 2013. I would be happy to meet with the chair of the ISC, my right hon. Friend the Member for New Forest East, on this matter. Indeed, we have spoken about that in the past.

[Sir Julian Lewis (New Forest East) (Con)]

I am grateful to my right hon. Friend—and he is a friend—who I know is saying what he has to say. We know that the memorandum of understanding can be amended as developments in the organisation of Government require it to be amended, but the trouble is that the Prime Minister has been reluctant to amend it and it is not being amended. The reason this amendment was introduced in the other place is to force the Government to do what they should be doing voluntarily.

--- Later in debate ---

[Tom Tugendhat]

As usual, my right hon. Friend makes his point cogently. In reality, the MOU requires amendment because the nature of the Government has changed. He is absolutely right that we need to ensure that the House is able to scrutinise the Government on areas where intelligence and security information is required. I agree that that update needs to be made, but I disagree that this is the place to do it or that it should be done in legislation, for the reasons of flexibility that we have already discussed. I know that he will be making his case powerfully to the Prime Minister, and no doubt to other Ministers, to make sure that the updates required to make sure scrutiny is observed are followed through.

Finally, I turn to the amendment to the Serious Crime Act 2007 tabled today, which largely speaks for itself. It clarifies the application of the new defence, which will apply to

“the proper exercise of a function of the armed forces”

only when relating to intelligence. This addresses concerns raised in the other place about the scope of armed forces activities that may have been covered by the defence. It builds upon the amendment tabled by Lord Anderson on Report in the Lords and the commitment made in the other place to bring forward a similar amendment. I am glad that we can bring it forward today.

The ISC has heard and accepted the operational problems caused by the application of the SCA offences. I believe the new SCA defence, and today’s amendment to it, satisfy the concerns of the United Kingdom intelligence community, the armed forces, the other place and this House. I therefore ask the House to support the Government amendment. Let me again thank the Intelligence and Security Committee for its co-operation and help in improving the Bill.

As the House will know, the Government have also tabled a minor amendment to the foreign influence registration scheme, designed to ensure parity across the devolved Administrations in respect of the public officials covered within the meaning of political influence activity.

This Bill is a groundbreaking piece of legislation that will revolutionise the tools and powers available to the police and our intelligence agencies, so that they are equipped to keep us safe.

[Stephen Doughty]

Will the Minister give way again?

[Tom Tugendhat]

I will, because the hon. Gentleman is an old friend.

[Stephen Doughty]

The Minister will be aware of Lords amendment 130, which relates to the sovereign base areas of Akrotiri and Dhekelia. He will also be aware of the concern that has been expressed about the possible unintended consequences of the Bill. Those bases are critical to UK national security, as is our relationship with the Republic of Cyprus, which a close friend of many in the House. Will he say a little about where the discussions have got to, and whether there will be a good conclusion?

[Tom Tugendhat]

The hon. Gentleman has tempted me to approach the issue a little early in my speech, but let me put this firmly on the record. I have met the high commissioner of Cyprus, and my right hon. Friend the Foreign Secretary has spoken to its Foreign Secretary. I want to make it clear that any references in the Bill to the sovereign base areas of Akrotiri and Dhekelia shall be in accordance with the 1960 treaty concerning the establishment of the Republic of Cyprus, shall not affect the status of the sovereign base areas as defined in the treaty, and will not in any way undermine its provisions. References to the sovereign base areas in the Bill in no way indicate a change in UK policy towards their governance. I hope that is extremely clear.

If we had these powers now, I would already be encouraging the police to use them against those who side with our enemies. As always, I want to share my admiration and appreciation for the services, their work and all their efforts that so often go unseen, although the impact does not go unnoticed. I hope that right hon. and hon. Members will support the Government’s changes, and our opposition to the amendments relating to the ISC and political party donations.

[Madam Deputy Speaker (Dame Rosie Winterton)]

I call the shadow Minister.

--- Later in debate ---

[Sir Julian Lewis]

I am very grateful for the hon. Gentleman’s support and I take this opportunity to pay tribute to both him and his predecessor for making an extremely valuable and valued contribution to the Committee. We draw such authority as we have from the fact that party politics does not enter into our work. I think I heard the Security Minister say that he accepted that the MOU needs to be updated—

[Tom Tugendhat]

indicated assent.

[Sir Julian Lewis]

I see that he is nodding. Should he wish to elaborate on that a little more, that would be even more welcome.

--- Later in debate ---

[Sir Chris Bryant]

I start where my right hon. Friend the Member for Hayes and Harlington (John McDonnell) finished. I am completely perplexed about why the Minister is holding out against Lords amendment 22, not least because he told Insider last year that it was “perfectly legitimate” to criticise political parties for accepting donations “that are not clear”. He made it absolutely clear at the time that he supported the idea of legislation to require political parties to be clear about where their funding was coming from. To be fair to him, that was obviously not when he was a Government Minister, and he has now fallen among thieves. I preferred the old version of the Minister, and I hope that, in our discussions over the next few minutes, we can manage to persuade him to return to proper form.

The pedigree for Lords amendment 22 is phenomenally strong, as has been said. Not only have Lord Carlile and Lord Evans—the chair of the Committee on Standards in Public Life and a former head of MI5—called directly for such provisions, but as I understand from her comments, Baroness Manningham-Buller also supported Lords amendment 22, as did Lord West, all the members of the ISC, Spotlight on Corruption, the Committee on Standards in Public Life, and, of course, the Electoral Commission.

The Electoral Commission wrote directly to the Minister last year to say that it would surely be wrong not to change the law so that political parties can accept donations from companies that have made enough money in the UK to fund the amount of their donation. One would think that that stands to reason. One would also think that it stands to reason, as the commission also argued, that political parties should be required to check not just whether someone is a permissible donor in the sense of being on the electoral register, but whether they have enough money of their own to be able to fund the political party to the extent proposed. That is just due diligence, but there are phenomenal loopholes in the law.

The Minister is normally a very polite and generous man, but I understand that he has still not replied to the Electoral Commission on this matter, and the commission has complained about this. In this area, as he knows perfectly well from our work on the Foreign Affairs Committee, complacency serves us ill. One need only look at the sad trajectory of the tier 1 visa system—the golden visa. When the report was finally produced it showed that we had given visas to live in the UK and make their permanent residence here to people we ended up sanctioning because they were so closely related to the Putin regime. The 2020 Russia report from the ISC—it should have been the 2019 Russia report, but the then Prime Minister did not allow it to be published before the general election—made it very clear that Russia and perhaps other state actors had been intent on affecting elections and referendums in this country, and urged us not to be complacent.

There are authoritarian state actors who wish us ill. They rely on the openness of our political system, on our open system of governance in the City, on the fact that contracts can be enforced, and on our open judicial system. They rely on all of that and, I would argue, on our complacency to be able to do their nefarious work in the UK. There is a flaw in the Political Parties, Elections and Referendums Act 2000: the concept of “permissible donor” is too tightly drawn. Surely any political party and any person trying to secure donations from a third party would want to ensure that the money they received was not tainted by human rights abuses in another country, by authoritarian acts from another country or, frankly, by malign influence by a third party state actor.

The position is made worse by the Elections Act 2022 adding to the registers 3.5 million overseas voters who pay, or who may pay, no tax in the UK, and who may have next to no relationship with the authorities in this country—it is necessarily very difficult to track that information down. What should a party do if it is offered a donation of, let us say, £50,000 by somebody who lives and works in Moscow today? The law says the party need not do anything, as long as the individual is on the electoral register. Surely, though, we do not think that that is right or appropriate. I want further checks to be in place. The provisions in the amendment are so minimal—absolutely the minimum that we have to do to make sure that political parties in this country do the basics.

I said there is a flaw—perhaps a fissure—in PPERA, but I am starting to worry that the Government want that loophole to exist. If they do not, I simply do not understand why the Minister is holding out on this point. I hope the Minister will change his mind on this minimal requirement and support Lords amendment 22. If we end up voting it down, I hope their lordships will throw it back to us. For more than a decade now, we have left the door wide open to political interference in our system in this country. It is time we slammed it shut.

[Tom Tugendhat]

First, I thank the hon. Member for Halifax (Holly Lynch) for the contribution she made and the spirit in which she has approached these debates. She is absolutely right to talk about Caoilfhionn Gallagher and Jimmy Lai and to highlight the many issues that she did. Such matters unite us; another is the fact that this Government, like every Member of this House, I am sure, remain absolutely committed to the UN convention against torture and other cruel, inhuman or degrading treatment or punishment. There is absolutely nothing in this Bill, or in any other Bill that this Government are bringing forward, that would in any way undermine our obligations or the seriousness with which we treat torture as it is practised, sadly too frequently, around the world. Although I hear what the right hon. Member for Orkney and Shetland (Mr Carmichael), my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) and the hon. and gallant Member for Barnsley Central (Dan Jarvis) say, there is quite literally nothing in the Bill that would give rise to the need for amendment (c) to Lords amendment.

The point made by the right hon. Member for Orkney and Shetland about Lord Pannick, however, was entirely fair. A letter should have gone back to him. In fact, the point was made and the answer given in the form of amendments to clause 3 that address his concern about the carve-out for lawyers. Although I agree that I should have written, the reality is that I addressed the points Lord Pannick raised in the Bill itself.

The matter of foreign donations has been raised again. The reality is that we have to treat British citizens like British citizens. The idea that we can treat British citizens differently depending on how we feel about them seems to me to be rather a bad way of making law, but that does not mean that political parties have to treat British citizens exactly alike. Surely the rule here is: just because you can does not mean you should. There are many donations, and perhaps many individuals making them, that many of us would not wish to accept. The point about politics is that it is about decisions, judgment and choices, and while the law has to apply to everyone equally, we as politicians and as political parties are not so obliged. We have to make judgments and decisions, and we have to carry our reputations and the reputations of our organisations with us when we make those calls.

On the changes to the MOU that the ISC suggested, my right hon. Friend the Member for New Forest East (Sir Julian Lewis) had the opportunity to give me the power to make those changes, but I am not the Prime Minister, so I cannot do so. The Prime Minister will have to make that decision, but I will raise the matter again with his office, because my right hon. Friend’s points were well made.

I have heard many comments about the Official Secrets Act 1989. The nature of this reform is complex and there are many and various arguments because this piece of legislation ties into so many others. I will not give my right hon. Friend the Member for Beckenham (Bob Stewart) a commitment to act in this Parliament—he will understand that more work is required. As for my ability to make commitments into the next Session, he tempts me too far.

I am glad to hear that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) has achieved the great honour of being treasurer of the Scottish National party. I hope it comes with a caravan and that he is enjoying the touring that that affords him.

My right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright) raises many good points. The reality is that these challenges must be addressed as a whole and require further discussion, so I am very grateful for his time.

[Bob Stewart]

I accept the Minister’s points on the Official Secrets Act 1989 and the fact that it is complicated, but do the Government recognise that, complicated though it is, it must be addressed?

[Tom Tugendhat]

My right hon. Friend tempts me in a direction I would love to go in, but in the minutes I have left, I shall not be lured. An awful lot of legislation would require work if we were to amend the Act, so a huge amount of drafting work would be required before I could express an opinion. I see other right hon. and hon. Members nodding in agreement.

The hon. Member for Rhondda (Sir Chris Bryant) made a fair point on the Electoral Commission. I shall follow up with the Department for Levelling Up, Housing and Communities, which is responsible for electoral law and which will be responding to the commission on that issue.

If I may, I will finish by simply saying that tomorrow is polling day, and while this Bill addresses many different aspects of our national security, the single best thing that all of us as citizens can do to defend our country and our future is to vote. As such, I urge everybody who has the opportunity to do so—in England and Wales, in our local government areas—to please get out and vote, and of course, to vote Conservative.

Amendment (a) made to Lords amendment 26.

Amendment (c) proposed to Lords amendment 26.—(Mr Carmichael.)

Question put, That the amendment be made.

National Security Bill

Tom Tugendhat Excerpts

Consideration of Lords message
Monday 26th June 2023 Commons Chamber

[The Minister for Security (Tom Tugendhat)]

I beg to move, That this House disagrees with Lords amendment 22B.

[Madam Deputy Speaker (Dame Rosie Winterton)]

With this it will be convenient to discuss Lords amendment 122B, Government motion to disagree, and Government amendment (a) in lieu of Lords amendment 122B.

[Tom Tugendhat]

It is a pleasure to bring the National Security Bill back to this House. I must once again highlight the importance of the Bill’s achieving Royal Assent in a timely manner. Our police and intelligence services need the tools and powers that it contains; the longer they go without, the greater the risk to national security.

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

Why doesn’t the Minister just accept the Lords amendments, then, so that we can move straight to getting the Bill on the statute book?

[Tom Tugendhat]

The right hon. Lady will be delighted to hear the rest of my speech, in which I answer her wonderful questions.

As this House will be aware, the Intelligence and Security Committee memorandum of understanding can already be revised by agreement, which is one of the points that the right hon. Lady is raising. We do not believe that primary legislation is an appropriate mechanism for making amendments to the MOU. However, we recognise the strength of feeling on the issue, and in a spirit of compromise we have tabled amendment (a) in lieu of Lords amendment 122B. The Government’s amendment will achieve a similar result and will create a duty on the Prime Minister and the Intelligence and Security Committee to progress a review of the MOU within six months of the provision’s coming into force.

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

That is fine, but the ISC has been raising this issue for the past two years. It takes two to tango. Unfortunately, the only reason we have this Lords amendment is a sense of frustration—certainly among members of the ISC, but also among a lot of Members of this House.

[Tom Tugendhat]

I assure the right hon. Gentleman that I have heard him. I hope that the amendment will now satisfy the ISC with respect to its concerns. I am sure that hon. Members across the House will support Government amendment (a) in lieu.

I turn to Lords amendment 22B, which would require political parties to make an annual return to the Electoral Commission, setting out the details of donations from foreign powers. It would also create a duty on political parties to write an annual policy statement to ensure the identification of donations from foreign powers. I understand the intention behind the amendment, and I share the strength of feeling behind it.

The Government are very much alive to the risk that foreign interference presents. I am pleased that we have already taken action to address it, and I am pleased with the support that we have received on both sides of the House for our reforms to Companies House, which will deliver more reliably accurate information on the companies register, providing greater powers for Companies House to query and challenge the information it receives. The Government are also legislating, via the Economic Crime and Corporate Transparency Bill, to enhance data sharing between Companies House and public authorities, including the Electoral Commission. This will help the enforcement of the rules on donations by providing greater confidence in the accuracy of the data held at Companies House.

[Liam Byrne (Birmingham, Hodge Hill) (Lab)]

The Minister is one of the House’s experts on the malign influence of foreign money in this country and the creation of Londongrad, so he knows all too well that money from foreign powers is coming into the bank accounts of UK citizens and then moving almost immediately—sometimes even overnight—into the coffers of political parties in this country. That creates a risk to the integrity of our political system. He must surely accept that the drafting of the Bill does not yet provide sufficient safeguards against that risk.

[Tom Tugendhat]

The right hon. Gentleman flatters me, which is always a way to succeed in this place, but he will forgive me if I carry on, because I will address some of those points. He will see that I have considered them, and that there are some areas in which there may be some conversation.

Our reforms build on the updates to electoral law in the Elections Act 2022, which have closed loopholes on foreign third-party campaign spending. They also include other measures to ensure that our democracy will remain secure. The National Security Bill will give our agencies more tools to tackle foreign interference. The new offence of foreign interference includes manipulating whether or how any person participates in political processes. The Bill also provides for substantially higher maximum penalties where a foreign power is involved in the commission of existing electoral offences of the nature that the right hon. Gentleman describes. That includes those relating to making political donations, including via third parties.

In addition, the Bill’s foreign influence registration scheme, which the right hon. Gentleman and I both championed on the Foreign Affairs Committee, will increase the transparency of foreign political influence activities. The enhanced tier of FIRS, as we are calling it, allows us to list foreign powers that act against the safety and interests of the United Kingdom. A designation would require a person acting within the United Kingdom at the direction of a specified power or entity to register with the scheme.

Although I understand the aims of Lords amendment 22B, I do not follow its approach. The legal framework in this area is exceptionally clear: any person accepting a donation from a foreign power, whether made directly or indirectly, is already breaking the law. As such, the result of this amendment would be for political parties to submit a blank return to the Electoral Commission once a year. As I am sure colleagues would agree, this would do little to improve transparency or enhance our electoral security.

Secondly, as the Government have set out previously, Lords amendment 22B does nothing to enhance the ability of political parties to investigate donations of the nature that the right hon. Gentleman describes. Political parties do not have the financial investigative capabilities of the banks or security services. They rightly cannot access people’s personal financial records and do not have the means to trace layers of financial transactions. They cannot themselves undertake sophisticated forensic accounting. There is little to be gained by increasing pressure on political parties to identify impermissible donations without improving their ability to do so.

Thirdly, political parties are not global corporations. There are more than 380 registered political parties, many of which are predominantly made up of volunteers. Lords amendment 22B could be disproportionately burdensome for smaller political parties, disincentivising them from accepting donations and, in turn, harming grassroots democracy.

Finally, the requirement to publish an annual policy statement lacks utility. In previous debates on this matter, hon. and right hon. Members highlighted concerns that parties do not have to evaluate a donation and its perceived risk. This is not true. I reiterate that political parties are already required by law to take all reasonable steps to verify the identity of a donor and whether they are permissible. Failure to ensure that permissibility requirements are met is an offence under existing law. As such, parties are already required to have systems in place to mitigate the acceptance of such funds.

As to the political point: just because you can, does not mean you should. Political judgment should always apply to donations.

[Liam Byrne]

I thank the Minister for giving way once again. He is being characteristically generous.

We may as well test the argument he is rehearsing against facts that are now known. Mr Mohamed Amersi, for example, has given something like £775,000 to political causes in this country. The Financial Times has reported that a considerable fraction of Mr Amersi’s profits are made from trade in Russia. How does this Bill safeguard against profits made in a country such as Russia finding their way into this country’s political system and infecting it?

[Tom Tugendhat]

The right hon. Gentleman, as he will understand, raises an individual about whom I will not comment. The Government will not take a position of that nature on an individual based on such comments. I will not address him specifically.

What I will say is that there have been reports of foreign donations getting into political parties—that is true. What is also true is that political parties have a responsibility to check the sources of their donations, and all British citizens have the right to donate. If a specific accusation has not been reported to the Electoral Commission and investigated, and if a person has not been found guilty, the right hon. Gentleman will understand that I cannot make any further comment.

[Holly Lynch (Halifax) (Lab)]

I thank the Minister for his opening contribution as these two additions to the National Security Bill return to the Commons once again.

The Minister has made the case for Government amendment (a) in lieu of Lords amendment 122B. I have a great deal of respect for him, as he knows, but this amendment in lieu, tabled in the name of the Home Secretary, essentially says that this House and the other House have a point, that the Government want to give themselves maximum wiggle room to be able to avoid doing anything about addressing the point by tabling an amendment in lieu that is much wishier and much washier than the clarity of our Lords amendment.

Lords amendment 122B, tabled by my noble Friend Lord Coaker, would have introduced a duty to update the Intelligence and Security Committee’s memorandum of understanding, rather than a requirement to consider whether the MOU needs updating. What does that actually mean? Is there a proposed framework or a timetable for deliberations? The Lords amendment was not tabled for fun; it was tabled because the Intelligence and Security Committee performs a vital function, but its ability to perform that function is being eroded.

The Lords amendment followed a recommendation made by the ISC in its 2021-22 annual report, which looked back to the Committee’s origins, when the then Security Minister told Parliament that it was

“the intention of the Government that the ISC should have oversight of substantively all of central Government’s intelligence and security activities to be realised now and in the future.”––[Official Report, Justice and Security Public Bill Committee, 31 March 2013; c. 98.]

--- Later in debate ---

[Sir Jeremy Wright (Kenilworth and Southam) (Con)]

I want to make a few brief comments about both the amendments before us. Let me start with Lords amendment 22B and the Government motion to disagree with it. I find it very difficult to disagree with this amendment. I was a member of the Committee on Standards in Public Life when the 2021 report that has been referred to was produced, and I am a member of the Intelligence and Security Committee now. Both those Committees, as the House has heard this evening, take the view that further measures are required to protect our democracy from the influx of inappropriate foreign money, and I think both would say that the amendment is the bare minimum of what needs to happen.

Lords amendment 22B does two things. It says, first, that a political party should be able to identify donations from a foreign power and, secondly, that it should be transparent with the Electoral Commission about such donations. It is worth stressing that the donations we are talking about are those from a foreign power—not necessarily from an individual, but from a state, perhaps funnelled through an individual. It is surely important to recognise the significance of such donations—potentially, at least—on our democratic process. It seems to me that there are two scenarios here. Either there are hardly any such donations in British politics, in which case the work involved to identify and deal with them appropriately is hardly likely to be onerous, even for smaller parties; or there are substantial numbers of such donations, in which case the case for greater transparency is overwhelming.

Let me turn to Lords amendment 122B and Government amendment (a) in lieu. It is worth being honest: there is very little difference between the Government amendment in lieu and the amendment from the other place, but both, as others have said, are operating on the margins of the real issue. The real issue is that there needs to be the capacity for the Intelligence and Security Committee’s remit, and the memorandum of understanding that relates to it, to adapt as the processes and structures of Government adapt. If that is not the case, all the consequences flow that have been described so well by my Committee colleagues, which I do not need and have not got time to repeat.

My last point relates to a deficiency in both Lords amendment 122B and the Government’s amendment in lieu. Both say that the consideration or the review—depending on which version we choose—of the memorandum of understanding must begin within six months of the passage of the Bill. The problem with that, it seems to me, is that it is far from inconceivable that the Government may make a machinery of government change or a process change beyond that six-month point. It does not seem sensible to artificially limit the capacity for having that review or consideration of the memorandum beyond that point. For that reason, I am afraid, I do not think that either the Lords amendment that we have received or the Government’s amendment in lieu are sensible responses to the challenge we face. In my view, both are flawed.

[Tom Tugendhat]

I thank all Members of the House for their comments this evening—there have been some important contributions. I pay particular tribute to the hon. Member for Halifax (Holly Lynch), who has been not only a powerful critic, but a very able debater and participant in improving the Bill and getting it into a position where I think it is ready to be enacted. As she and the House are very well aware, this is a Bill that is somewhat overdue. It updates the powers that our fantastic intelligence services require in order to keep this whole nation safe. We have, sadly, seen various different efforts by nations and—as my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes) put it—some non-state actors to use our freedoms against us. It is very welcome that the House has worked so helpfully in bringing the Bill together to make sure that we are as protected as possible.

I now turn to some of the areas in which criticism has been raised, and I understand that criticism. As a former Committee Chair myself, I start by praising the Intelligence and Security Committee. My right hon. Friend the Member for New Forest East (Sir Julian Lewis) has regularly been in my office of late, and indeed in the past. We have worked extremely closely on many other areas, so I am delighted that he has raised his challenges. I will seek to answer them, because he understands as well as I do that parliamentary scrutiny is not just essential for the country, but for good government. The areas that he challenges us on are incredibly important.

It is also very good to see the hon. Member for Bristol North West (Darren Jones) in his place. There are other Committees that have responsibility for some of the areas we are discussing today, and as Chair of the Business and Trade Committee, he is charged with overseeing some of the areas that require some understanding of the nature of business in our society today. That, I am afraid, does include some classified information, so the Government are committed to finding ways in which we can make sure that not only the Intelligence and Security Committee, but relevant departmental Committees, can have appropriate oversight. I repeat what I have said separately to him and to my right hon. Friend the Member for New Forest East: this issue is extremely important to me, and I know that the whole Government share my view.

I will now turn to the question of foreign donations, and the reason why I do not think that Lords amendment 22B quite works. As the right hon. Member for Birmingham, Hodge Hill (Liam Byrne) has put it in the past, I do not resile from saying that the nature of foreign donations to this country is certainly not something to be taken lightly. When it is found, it is a crime, and a crime that must be punished. We should be very clear that interfering in our democracy is completely unacceptable, and I am very pleased that working with others in this House, we have made some progress in different areas through the defending democracy taskforce. I thank all Members of this House for that, and I particularly thank Mr Speaker for his assistance in making sure that we are in a better position today and will, I hope, be in an even better position in a few months’ time as various elements come forward.

May I say that there are differences between charities or businesses and political parties? One of those important differences is that charities and businesses, quite correctly, do not have to make public their donations. They do not have the obligation that political parties have to state exactly who is funding them. Political parties do have that obligation, and that is one reason why there is a difference. Transparency is provided not only by the political parties checking who is permissible and therefore who is actually giving the money, but by their making that donation public so that the media, who scrutinise us all, scrutinise those who donate and seek to influence or promote ideas by supporting any of us. I think that is an important difference that we should recognise.

May I, however, add that there is clearly a question on scrutiny? I say again that this amendment does not address that question, because any lawful political party should give a nil return, according to the amendment. I do not think that quite answers the questions that right hon. and hon. Members are asking, but I do understand the question of scrutiny that has been raised across this House, and I can assure Members that I am listening.

Question put, That this House disagrees with Lords amendment 22B.