National Security Bill

Lord Coaker Excerpts

2nd reading
Tuesday 6th December 2022 Lords Chamber

[Lord Coaker (Lab)]

My Lords, I thank the Minister for his introduction and the very helpful briefings he has given me. I also thank the services for arranging that. While in the business of thanks, I thank the services for all they do on our behalf now, in the past and in the future.

First of all, I will set some context for this Second Reading debate. We are all united in our desire to protect our country, our democracy and human rights and freedoms across the world. We agree with the Joint Committee on Human Rights, which said in its recent report that, overall, this Bill

“is a welcome attempt to modernise espionage offences … and … broadly in line with recommendations of the Law Commission’s … review”.

We support the passage of the Bill and much that is in it.

The Bill introduces new measures to update the protection of the UK’s national security, the safety of the British public and the UK’s vital interests against modern hostile activities and threats posed by state and non-state actors. Many of these threats reflect the modern age in which we live, through cyberattacks and information and disinformation campaigns that are used to undermine or destabilise our institutions or policies, with direct interference always a possibility. All of this is delivered in ways and by using methods that were unthinkable in the past, so change is long overdue.

However, in responding to these changes, in renewing our national security interventions and in reflecting on our policies, we should never undermine the very values that we cherish and seek to protect. So, as I said, in supporting the Bill, we will challenge the Government, hold them to account and challenge them to explain why certain policies and powers are needed. This is not to undermine national security but to demonstrate confidence in our institutions. Transparency and openness are, as far as possible, a strength. Shining a light on what we do—debating security in this Parliament and implementing actions that are then subject to scrutiny here and in the courts—stands in sharp contrast to other states and bodies across the world that are shrouded in mystery and operate in total secrecy in the shadows. The contents of this Bill, therefore, are to be welcomed in general, but there are areas which need further debate during this Second Reading, in Committee and beyond.

First, I say to the Minister that, in discussing such changes and details, there must be absolute confidence that the Government practise what they preach. Does the Bill make it absolutely clear that a Foreign Secretary, or any other Minister, should not be meeting former KGB officers in secret and without officials, and that, if advice is given by the Security Service about the appointment of any Peer, as reported, it is acted on? The Public Administration and Constitutional Affairs Committee said in its report, published just last Friday:

“The reappointment of the home secretary sets a dangerous precedent. The leaking of restricted material is worthy of significant sanction under the new graduated sanctions regime introduced in May, including resignation and a significant period out of office.”


In his response, can the Minister reassure us all that everyone in the Government will act according to the principles that have been have laid out, and that the Bill will help to achieve this? It seems to me that someone working for any of the services doing the same would at least have been severely reprimanded, if not sacked.

Clause 1(1)(b) refers to

“the safety or interests of the United Kingdom”,

and the term is used or implied throughout the Bill. Who decides what that is? What are the “safety or interests” of the UK; what does the term include and exclude? Sometimes there is real debate in this House as to what the actual interests of the UK are. Should we not seek to define that, rather than just leaving it to the courts? Too often, we abrogate our responsibility; we are the legislators, and we should debate such issues. Again, as the JCHR says:

“More thought must be given to how the legislation will affect whistle-blowers, protesters and journalists who are engaged in activities which are part of a healthy functioning democratic system.”


This was a warning from a cross-party Joint Select Committee of this Parliament. Do we need a public interest test in the Bill? I have no doubt that this will be debated. What protections are there for investigative campaigners and journalists? It simply will not be good enough for the Government to say that there is nothing to fear. What does it mean that an offence is committed only if the “foreign power condition”, which is explained later in Bill, “is met”? Yet, from Clause 29 onwards, the clauses do not say “hostile power”, so the scope is extended, and we will need to discuss and debate that.

Who has to register under the lately added foreign activities and foreign influence registration scheme? How were the exemptions in Schedule 14 arrived at? A lot more detail and clarity will be needed. The Minister will have to be a lot clearer than, for example, in Clause 63, which states that “specified persons” will be “specified … in regulations”.

So many bodies, groups and individuals receive foreign support quite legitimately. We are told by the Campaign for Freedom of Information that the following have recently received or receive some funding from foreign Governments for their international work: Action Aid, Anti-Slavery International, ClientEarth, Global Witness, Privacy International and Reprieve, to name a few. Are they affected by the regulations in the legislation? Who else is and why? These are serious questions. Protecting information should not be about protecting Governments from the exposure of mistakes, embarrassment or worse.

In keeping the Bill—or Act as it will be—under review, who will be the independent reviewer? Jonathan Hall, the Independent Reviewer of Terrorism Legislation, keeps TPIMs under review. Will it be him or his office or whoever follows him? Will they be responsible for the STPIMs in the Bill? What about other parts of the Bill? Mr Hall has said:

“My answer is that I think it actually is quite a good fit for the reviewer’s job, and I think it probably is right that the person who does the independent review of terrorism legislation should also do the state threats legislation.”—[Official Report, Commons, National Security Public Bill Committee, 7/7/22; col.6.]


Do the Government agree? What is the thinking on that?

Surely, as the Minister outlined, one of the most contentious parts of the Bill is Clause 28. It creates an exemption under the Serious Crime Act for MI6, GCHQ and our Armed Forces when acting in the proper exercise of any function of an intelligence service or Armed Forces. We believe that this would remove the need to get a Section 7 authorisation under the Intelligence Services Act 1994, which allows the Secretary of State to give immunity from civil and criminal liability for pre-authorised crimes abroad. We believe there is a real risk that Clause 28 removes the role of Ministers even when there is a reasonable defence also available. The implications that possibly result from this are clear and, at the moment, unjustified. Why do the Government believe it necessary? As the House of Commons Library briefing stated:

“The provision therefore appears to be intended to extend immunity from criminal prosecution to actions which could not be proved to have been reasonable.”


This is hugely contentious and, notwithstanding what we may hear about further reassurances given to the ISC, it clearly cannot in its present form be right. Many senior MPs of all parties have criticised the clause for allowing actions with no safeguards, such as ministerial approval. As my colleague Holly Lynch MP said, or as David Davis MP said, how will we be able to criticise other nations for laws which allow their services to conduct foreign operations in that way when we will have a law which will do the same?

There are many other aspects to the Bill, including restricting the award of damages and the granting of legal aid, which will require debate. We also look forward to associated actions regarding the online harms Bill and what liaison is taking place for that. The need for joined-up government is clear if we are to take the example of Hikvision. Does this Bill deal with a technology that has raised such security concerns that the Government themselves will exclude it from their own buildings? In Committee, the Minister also committed to considering whether the Bill should clarify whether only sites located in the UK can be designated as places of detention. Has that been clarified?

We all wish to ensure national security. We all wish to modernise to meet the fresh challenges and the new threats we face. This Bill is an important chance for us to debate where the line should be drawn between security and our freedoms and democracy. Eroding those freedoms and human rights cannot be justified simply by saying “security” or “national interest”. They need to be argued for, with careful decisions made as to the correct balance. This Bill gives us the chance—the opportunity—to do that and we should take it. In doing so openly and transparently, we can showcase our democracy and respect for freedom even in the face of the new threats we face. Of that we can, and should, be proud.

National Security Bill

Lord Coaker Excerpts

Committee stage
Monday 19th December 2022 Lords Chamber

[Lord Purvis of Tweed (LD)]

My Lords, I support my noble friend’s amendments. I respect the issue of the grey area of tactics, but I equally acknowledge that if we are seeking to secure convictions beyond reasonable doubt for life sentences and sentences of 14 years, then the burden has to be, in my view, on having the primary legislation as clear as it can be. I will come back to the wider areas of concern.

The Government have referenced that this is an update not a wholesale replacement of the 1911 Act, which states in Clause 1:

“safety or interests of the State”.

But that is a very specific reference to the penalties for spying. It does not go beyond that, so the reference for the understanding of the interests of the state with regard to that penalty and that part of the 1911 Act are very clear. The difficulty with this Bill, as my noble friend indicated, is that the Government are now using that across a series of different offences which are very broad in nature. We will no doubt come back to some of those within the Bill.

The Government have also said that we do not need to have it clarified in the Bill because they are relying on case law definition for this; they cite Chandler v Director of Public Prosecutions—1964 AC 763—as far as that is concerned. I looked at that case, which was specifically about a decision that was made about protesters seeking to access a site where nuclear bombers were going to be taking off. The court found that it was not for the courts to decide what were national security interests; that was a responsibility of the Executive. That is very understandable.

That decision has also been looked at in other cases including Secretary of State for the Home Department v Rehman in 2001. In that case, with regard to Chandler v DPP on national security issues, Lord Steyn said:

“But not all the observations in Chandler v Director of Public Prosecutions … can be regarded as authoritative in respect of the new statutory system.”


So purely relying on the definition of case law on a whole breadth of different offences under this Bill is not sufficient.

I was slightly concerned by what the Minister, Stephen McPartland, told the House of Commons in Committee. He seemed to imply that the real reason why the definition was so broad in this Bill was that the evidential threshold had to be low to secure prosecutions. He said of any further restrictions, as in my noble friend’s amendment:

“That would create a higher evidential threshold to secure prosecution in an area that is often difficult to evidence due to the sensitive nature of the information that may have been obtained or disclosed. Put simply, we would have to explain why it caused damage, which may require evidence that compounds the damage. That would provide challenges to our law enforcement agencies and courts”.—[Official Report, Commons, National Security Bill Committee, 12/7/2022; cols. 81-2.]


I am not a lawyer, but I imagine that our courts are fairly well equipped to handle such cases, which are sensitive or relating to national security, as they have in the past. I was troubled to read that the Minister gave the argument that we needed to keep the definition so broad to create a lower evidential threshold, but the penalty is life imprisonment. That surely cannot be right.

More alarmingly—this goes to the noble Lord’s point about wider interests—the Minister referred to the wider elements, not just national security but economic interests. He also referred to public health interests, saying that these areas would be covered in the Bill, and not just when they are used to threaten national security. So it is not just the grey tactics that concern us with regard to national security grounds, but the greyness of how, potentially, Ministers and prosecutors will seek to define that wider national interest. On the public health interest, I can understand that a malign interest may wish to use such a tactic, as I understand the North Koreans tried to do with malware and the NHS. Those are all tactics but, ultimately, these are national security concerns and not public health concerns.

Fundamentally destabilising our economy should be a national security interest. The examples my noble friend Lord Beith gave of undermining certain sectors or competition are not sufficient to meet a trigger for national security. Therefore, I believe that that triggering should be in the Bill, which is why I support my noble friend’s amendment.

[Lord Coaker (Lab)]

My Lords, this is a very important group of amendments which in many ways goes to the heart of much of the debate that will take place on a number of amendments. It reminds the Committee that the heart of the issue is Clause 1(1)(b), which says that to commit an offence

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

Fundamental to that is that what we are discussing here, as the noble Lord, Lord Marks, ably set out, is what we actually mean by the interests and safety of the United Kingdom. It is to the great credit of our country that we can debate that here to try to decide what it should be.

I agree with the majority of noble Lords who have said that it is important that we try to understand how to make sure that defending the interests and safety of our country is about national security and defence. The noble Lord, Lord Evans, reminded us that there are grey areas in that respect. That is not a criticism of having the debate, but it means that we have to decide where we want to draw the line. I have mentioned this to the noble and learned Lord Hope, and I pray him in aid. He mentioned it with respect to the Public Order Bill, and again with this one. It is an abrogation of this Parliament’s responsibility if it does not seek to answer these difficult questions and just leaves it to the courts, saying that it is for the courts to decide and determine. We ourselves should try to give greater clarity to what we as legislators think that phrase actually means.

It is incumbent on the Government to say what they will do to try to define this, as Amendment 2 moved by the noble Lord, Lord Marks, and my Amendment 3 seek to do. Either they should say “We don’t need to do that”, lay out why it is not necessary for Parliament to determine it and why they think we should leave it to the courts, or say how we will get some sort of definition that makes sense and gives greater clarity. To be frank, that is a real problem for the Bill.

As the noble Lord, Lord Purvis, pointed out in his interesting and incisive remarks, along with other noble Lords, the Government say at paragraph 62 of the Explanatory Notes:

“The term safety or interests of the UK is not defined”.


They have already made up their mind that they do not need to define it. The basis of these amendments is that we think they do. We do not oppose the Bill or think it is not important that we protect the safety and interests of the United Kingdom, but somewhere along the line our Parliament should try to say what that means. The Government say in the Explanatory Notes that it is not defined and, as the noble Lord, Lord Purvis, mentioned,

“case-law has interpreted it as meaning, in summary, the objects of state policy determined by the Crown on the advice of Ministers (see the Court’s view in Chandler v Director Public Prosecutions (1964)”.

I remind noble Lords that in that judgment, the House of Lords—constitutional arrangements were different then—essentially rejected the idea that it was for a jury to determine or decide whether something was in the interests of the state. As Lord Pearce’s judgment stated,

“the interests of the State must in my judgment mean the interests of the State according to the policies laid down for it by its recognised organs of government and authority, the policies of the State as they are, not as they ought, in the opinion of a jury, to be.”

I am not a lawyer—I have been a politician all my life—but I would argue with that. It may be quite correct from a legal point of view, but sometimes Parliament has not caught up with public opinion or where people are. Often, juries are an important way of determining what the public think, and they work.

We have seen recent examples of that. The noble Baroness, Lady Jones, reminded us well of all the different issues that have arisen with protests. They are irrelevant to the Bill, but let me give another example: assisted dying. Time and again, juries have refused to convict on assisted dying, because they will not convict somebody in those terrible circumstances and do not believe that Parliament has caught up with the reality of where we are.

[Lord Faulks (Non-Afl)]

I entirely understand why the noble Lord is concerned about any uncertainty in these provisions, given the significant penalty, but is he at all reassured by the fact that it would be necessary for a jury to be satisfied beyond reasonable doubt that a defendant knew or ought reasonably to have known? That is quite a high threshold to be crossed before you even get on to this definition.

[Lord Coaker (Lab)]

I agree; I am just making the point that a definition would also help and give us certainty and clarity. It is important for a Bill that seeks to address issues of national security that it seeks to define that. The debate has already taken place in Parliament; the noble Lord takes the view that it is unnecessary, but I think a definition would be helpful. A number of noble Lords have said that, in the Bill as drafted, it appears that not only national security or defence issues will fall under the Bill but a whole range of other potential offences which have nothing to do with national security or the defence of the realm.

That is the clarity we seek, and it is right to explore it in Committee. It will be interesting to hear what the Minister says as to why my amendment or those of the noble Lords, Lord Marks and Lord Purvis, are unnecessary. Maybe he will use the argument the noble Lord put forward to say that that is what makes it unnecessary—

[Lord Purvis of Tweed (LD)]

My Lords, I agree with the thrust of the noble Lord’s argument. I was just reflecting on the intervention by the noble Lord, Lord Faulks. Of course, the jury will have to reach beyond reasonable doubt whether the individual knew. The question is what the mechanisms are of proving beyond reasonable doubt that the person knew what those interests of the Government were, if those interests are not specific and linked to national security. If the Government have made a case that those interests are as broad as the Minister in the House of Commons indicated—that they were linked with public health or economy—that makes the task in the courts much harder, I would have thought. Therefore, it is in the interest of securing better prosecutions that those restrictions are on the face of the Bill, as the noble Lord, Lord Coaker, has indicated.

[Lord Coaker (Lab)]

That is quite right. As I said, the problem with the Bill is that there is no indication of what else may be covered by the “safety or interests” of the state, or what the limits of those terms might be. As I have been arguing, and as others have said, as well as the prevention of terrorism and espionage, they could extend to policies on energy, national infrastructure, the protection of water, power, food, health services, transport, law and order, organised crime and immigration controls. The extent of the powers that may be taken in the Bill could be used in relation to a wide range of state interests, not just state interests related to national security or to the defence of the realm. The interests of the state clearly are ensuring that we have enough energy, but should that be covered by a National Security Bill? These are questions that the Minister needs to answer, and it will be interesting to hear his answer.

I will make a couple of final remarks. Like many, I am somebody who has never read the Official Secrets Act 1911, but in preparation for Committee—and knowing the depth of knowledge, experience and wisdom that we have around—I thought it was necessary to make sure I was quoting. The Official Secrets Act 1911 says under “Penalties for spying”:

“If any person for any purpose prejudicial to the safety or interests of the State—”.


The Official Secrets Act 1911 says that it has to be for a purpose “prejudicial” to the interests of the state. Logically, should not defendants or people have the right also to argue that their act was not prejudicial to the state? The Act says that your act has to be prejudicial, so surely you have a right and a responsibility to prove that it was not prejudicial. That argument could take place within the courts or wherever. This argument about someone’s actions in relation to the safety or interests of the state, and whether they were prejudicial, needs some sort of definition. Without it, how on earth do we know whether somebody is going to commit an offence under this Act? It would be for somebody to interpret.

Can the Minister clarify what the Government mean by “safety or interests” of the state? Who determines what they are? How can anybody act against that in a way which does not break the law, whether it be through protests or actions? If I take action outside of an RAF base, protesting against it and trying to disrupt things going in or out, or if I am at the peace camp at Faslane, will that be classed as a protest? Where does it become something that falls foul of the Bill? In other words, where do you draw the line? That is an important question for the Government to answer.

My amendment and those put forward by the noble Lord, Lord Marks, and others say to the Government that it is not good enough just to say the “safety and interests” of the state. What does that mean? People have challenged that over the decades. They have stood up and said that the safety and interests of the state are something that they challenge or do not agree with. Through history, that is how progress and reform have taken place. At the time, those protesting, taking action or conducting various activities have sometimes been accused of undermining national security or acting against the interests of the state.

We do not want to pass a law which leads to more confusion or a greater inability for Parliament to say that these are the sorts of actions we mean. That is the whole point of the amendment from the noble Lord, Lord Marks, which I support. It says that if it does not relate just to defence and national security, where is the grey zone that the noble Lord, Lord Evans, mentioned? Where do we draw the line? As the noble and learned Lord, Lord Hope, keeps reminding us, we should not abrogate our responsibility on that. It is our fundamental responsibility to try to answer that question.

[Lord Sharpe of Epsom (Con)]

My Lords, once again, this was a helpful debate, as noted by the noble Lord, Lord Coaker. I thank all those who participated. These amendments seek to limit the “interests” element of the “safety or interests of the United Kingdom” test which applies to many of the clauses in Part 1. As noted by many noble Lords, this concept was explored extensively in the other place.

The majority of these amendments change the “interests” element to cover only security or defence interests. This moves away from the safety or interests of the UK test that already exists and is understood in current espionage legislation. Indeed, the Law Commission noted its support of the Government’s decision to retain this term. At the oral evidence session to the Public Bill Committee, it noted that

“safety or interest of the state is consistent with a lot of the wording that already exists within the Official Secrets Act”—

those of 1911 and 1920—and

“avoids what might risk being an unduly narrow focus on national security”,—[Official Report, Commons, National Security Bill Committee, 7/7/22; col. 52.]

as the noble Lord, Lord Evans, noted.

The experience of the Government and the Governments of allied states is that espionage is frequently targeted at and can result in significant damage to all sorts of national interests, some of which may fall outside the scope of security or defence interests. Indeed, any attempt to narrow or define the interests to the UK risks creating a test that is quickly outdated, as the UK’s interests naturally and properly evolve.

A number of noble Lords referred to the Chandler v Director of Public Prosecutions case that was heard in this House in 1964. It concluded that the interests of the state meant the objects of state policy, determined by the Crown on the advice of Ministers. That is noticeably distinct from protecting the particular interests of those in office. I heard what the noble Lord, Lord Purvis, and others said in relation to the 2001 case. However, in answer to the noble Lord, Lord Coaker, the Government do not think it can be defined in legislation. It needs to retain flexibility for future threats as they evolve.

For this reason, it would also not be appropriate for the Secretary of State to attempt to define the UK’s interests in a Statement to Parliament, as in the proposed amendment to Clause 1. Notably, these amendments do not include economic interests, interests related to public health, as the noble Lord, Lord Purvis, noted, or interests related to preserving our democracy—to name just a few areas that would be overlooked by them. We know that these areas are targeted by hostile actors, and they should rightly be protected.

I was asked what safeguards are in place to prevent the Government using this legislation inappropriately—

--- Later in debate ---

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I entirely understand the position taken by the noble Lord, Lord Evans of Weardale, but, with respect, the fallacy that he falls into, and the fallacy into which the Government fall—the Minister has articulated it—is that, in the interests of being able to prosecute a wide range of activities, they threaten to lower the threshold for such prosecutions to a point where the responsibility for the decision on guilt lies not with a jury considering guilt or innocence but with those who decide to prosecute because they perceive a threat to the interests of the United Kingdom, and the interests of the United Kingdom are very wide.

I agreed with almost everything that the noble Lord, Lord Coaker, said; the one thing he did which I did not agree with was that he misquoted the Bill. The Bill is not about prejudice to the safety “and” interests of the United Kingdom. Everywhere that the phrase occurs, it says the safety “or” interests of the United Kingdom”.

[Lord Coaker (Lab)]

The noble Lord is quite right; I should have said that, and I meant to. I apologise to the Committee; that is what I meant to say. I thank the noble Lord for clarifying that.

[Lord Marks of Henley-on-Thames (LD)]

I am quite sure that no apology was needed for what was plainly a slip in a detailed speech made without reference to lots of notes. But the point is an important one, because the protection of the interests of the United Kingdom is free-standing, and the point that almost every noble Lord who has spoken has made is that, because they are defined, there is no clarity at all.

The noble Lord, Lord Carlile, talked about opacity. It is not just opacity; it is that no one can know what is criminal. The prosecutors are there to decide what they will charge—certainly with the consent of the Attorney-General where that is required. However, where they make that decision, the jury is left with an impossible position. The judge is bound to direct the jury properly, under the terms of Chandler—that the interests of the United Kingdom are effectively what the Government of the day determine those interests to be—and the offense is left effectively without any clarity at all. That is our objection. I take it a little further, but it is an objection that illuminates the danger of going down that path. It is unjust not to have clarity about what behaviour is criminal, particularly where the sentences are so serious. It is also damaging to public confidence in the criminal law itself if prosecutors and defenders cannot know what is criminal and what is not.

--- Later in debate ---

[Lord Purvis of Tweed (LD)]

My Lords, I will very briefly follow my noble friends to agree with that proposition. There has been reference to the foreign power condition, and I will refer to that too.

First, I take the opportunity to say that I am grateful to the Minister for what he said to me earlier by highlighting Clause 29(5). Yes, it does include that the foreign power condition can be met,

“if the person intends the conduct in question to benefit a foreign power”,

without necessarily identifying that foreign power. However, that is not an exclusive meeting of the test, as my noble friend Lord Marks has indicated. The test can be met, for example, if one of two business partners who has some intellectual property or something of commercial value is in negotiations with, say, a sovereign wealth fund in the Gulf and then there is a dispute between the two business partners. While one wants to sell that to the sovereign wealth fund in the Gulf, the other says, “You can’t do that, because that is now in breach of the National Security Bill, because I believe that this is a trade secret.” That is because a foreign power, under Clause 30(1)(c), is

“an agency or authority of a foreign government”,

so a sovereign wealth fund seeking investment could be within that definition. Therefore, I have sympathy for the point made by the noble Lord, Lord Carlile, but a counterpoint has been raised by asking whether the Bill is the most appropriate way for national security to cover those aspects—and, on balance, I do not think that it is.

However, I agree with the noble Lord, Lord Carlile, that the acquisition, use or disclosure of a trade secret is unlawful where the acquisition, use or disclosure constitutes a breach of confidence in respect of confidential information. As I understand it, that was the thrust of his argument. That is also the law: we have transposed the Trade Secrets (Enforcement, etc.) Regulations 2018 into UK law, so we have that intellectual property legislation—including a nine-page trade secrets regulation. I listened very carefully to what the noble Lord said, and all of it, I think, is covered within existing legislation. The question then arises as to what the intent would be if one is either selling a trade secret or giving a trade secret to a foreign power to advance that foreign power.

That could absolutely be included in the Bill. The concern is that, given the way the Bill is drafted, so many other aspects could also be. That is the point we are trying to tease out: whether the Government intend that trade secrets are, as the noble Baroness indicated, some form of economic warfare, espionage or tactic. That is where the interest of the Bill should lie. It should not be the mechanism whereby trade disputes, commercial disputes or intellectual property disputes are resolved. Ultimately, that is where the Bill could be used. I do not think there are any in this Committee, but I am certain there are creative lawyers who might look for the most appropriate vehicle for the less appropriate cause. I am worried that the Bill would become one of those.

[Lord Coaker (Lab)]

My Lords, the amendments in this group relate to the new offences of obtaining or disclosing trade secrets. We support these new offences and agree that the Government should safeguard against threats to the UK’s trade policy. We see them as important amendments. None the less, we have had an interesting and important debate today. As the noble Lord, Lord Marks, has outlined, Amendments 8, 9 and 10 are about trying to understand why the Government believe that the offences need to have such a wide scope and whether narrowing them down would really have the unintended or bad consequences that the Government believe they would.

I have a couple of specific questions for the Government. The Bill says that there has to be a direct link to a foreign power, but suppose somebody obtains information such as a trade secret and sells it not to a foreign power but to a competitor business. Is that covered under the legislation? Is it the case that, under the Bill, to prosecute there would need to be a link from the individual to a foreign power and not just to a competitor within the UK?

The measures in Clause 2(4) to (7)—I think the noble Lord, Lord Wallace, referred to this in his Amendment 11—are really quite important. Why can the offence take place only outside the UK if it is in respect to possession by a UK national, as opposed to a UK national and/or a UK resident, or any other description of persons? Having talked about a narrow definition, I wonder why the Government have restricted the measures in subsections (4) to (7) to a UK national. I would be interested to hear the Government’s answer to that.

An interesting discussion and debate has taken place within the Committee about the JCHR recommendation. It is an interesting point that we will all want the Government to clarify. What is the Minister actually saying to the points from the noble Lords, Lord Carlile and Lord Marks, and the noble Baroness, Lady Ludford? The JCHR quite clearly states that:

“The theft of trade secrets that pose no risk to national security is more properly governed by the offence of theft (and other breach of confidence and intellectual property rules) than through new espionage offences.”


It would be interesting to understand whether the Government think the JCHR is wrong or whether it has a point. If the JCHR is wrong, why do the Government believe it is wrong? Maybe the points made by the noble Lord, Lord Carlile, have greater relevance with respect to this Bill. With those few remarks, I look forward to the Minister’s response.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who have participated in another lively and entertaining debate. Amendment 8 seeks to add a “safety or interests of the UK” test to Clause 2. Amendments 9 and 10 seek to narrow the definition of a “trade secret” so that it captures only information which is actually subject to measures to protect it. Amendment 11 seeks to expand the scope of a “UK person”. The Government reject these amendments and I will try to explain why.

The offence of obtaining or disclosing trade secrets targets threats designed to undermine our economic prosperity, tackling the whole-state approach to national security adopted by state actors. The Government believe that economic prosperity and national security are inherently linked. You cannot have one without securing the other, and Clause 2 seeks to protect both.

--- Later in debate ---

The noble Lord, Lord Coaker, asked about the definition of UK persons. It goes beyond a UK citizen and includes someone who lives in the UK; it is not just UK citizens. The noble Lord also asked about foreign power and corporates. I would answer that it depends very much on the corporate. If I am wrong on that, I will write to the noble Lord.

[Lord Coaker (Lab)]

I am not going to disagree with the Minister, but on the question of the letter—and I am pleased that he is writing to me—could he put it in the Library, and do that with respect to all the letters, so that every noble Lord can see his answers to the various questions?

[Lord Sharpe of Epsom (Con)]

Yes, I am happy to give that reassurance. This is just me flying somewhat solo, so I shall clarify that, but I can think of a number of circumstances where it would very much depend on the corporate. But I shall seek official clearance on that. In light of all those answers, I respectfully ask the noble Baroness to withdraw her amendment.

--- Later in debate ---

[Lord Coaker (Lab)]

My Lords, we all hope that the noble Lord, Lord Pannick, will not be criminalised by this Bill, but we look forward to the Minister’s response and for the exemptions to which the noble Lord referred to cover him.

I want to make a couple of brief remarks, again supporting what the noble Lord, Lord Marks, is trying to do, which is to narrow the focus—that has been the subject of much of the debates have had on the various amendments. This amendment would require an intention that the conduct will prejudice the safety or security or defence interests of the United Kingdom and apply that to a number of clauses. The noble Lord, Lord Marks, has outlined quite adequately why a discussion about that and a decision for the Government are needed. I hope that the Minister will explain why the Government do not think it is necessary rather than just dismissing it.

I wanted something to be clarified, notwithstanding the fact that it may be a simple response. On visiting many military bases, one finds people outside them taking photographs and numbers and watching the activity because it is a pastime; it is something that is of interest to them. I do not think that the Bill will criminalise that, but on behalf of people who have an interest in something that I personally would not have an interest in doing, I wonder whether the Minister could clarify it. I have seen people taking photographs at RAF bases of the planes taking off. It is simply something of interest to them. It would be helpful for the Minister to clarify that they would not be caught by the Bill, even if unintentionally.

The noble Baroness, Lady Jones, was right to remind us about intention. It is important. We will come to the public interest debate later, but she referred to journalists and whistleblowers, who risk being criminalised even though their intention is not to undermine national security. That will take us to the public interest defence debate that we will get to later in the Bill.

In answer to the points and amendments from the noble Baroness, Lady Ludford, I think that the JCHR amendments—whether or not they are all right, and we heard a debate earlier on about them—are really important for the JCHR to have put before the Committee. What it is essentially saying is, “We think this is possibly something which impacts on the freedoms that we enjoy in our democracy”, freedom of expression being the one that the noble Baroness just referred to. The Government seek to modernise the national security law, which we all agree with—there is no disagreement in the Committee about that—but the noble Baroness, Lady Ludford, should not apologise for the JCHR; rather, we should congratulate it on coming to all of us and asking us to justify what we are doing and on asking the Government to justify what they are doing in the name of national security. There is a compromise to be made sometimes between national security and complete freedom to do X, Y or Z. All of us accept that. The debate, as we heard on earlier amendments, is where you draw the line. I, and other noble Lords, think it is important—whether in respect of this group or others—that a debate takes place in this Parliament, and we should attempt to do better at defining what we actually mean rather than just leaving it to the courts.

I say to the noble Baronesses, Lady Ludford and Lady Jones, and to others who continually remind us about the JCHR that I am sure it is sometimes immensely irritating to the Government, but that is the job. That, in a non-flippant way, is important, because there are compromises with freedom of expression, freedom of association, freedom to do X, Y or Z, and freedom for people to go about doing things exactly how they want to. It is a price we pay for our national security; how high that price should be is something we should not flinch from debating in this House.

The amendments from the noble Lord, Lord Marks, seek to put intent into these offences. If the Government do not believe that is important, it is necessary to argue the case as to why. On whistleblowers, journalistic freedom and so on, which the noble Baroness, Lady Jones, mentioned, I am sure we will come to that debate later when we discuss the public interest defence. I finish by saying again to the noble Baroness, Lady Ludford: more power to your elbow.

[Lord Murray of Blidworth (Con)]

My Lords, I thank noble Lords for another very interesting short debate. These amendments seek to amend or add a safety or interests test to the various offences throughout the Bill. I will address each offence separately, given the different effect each amendment will have on each offence.

Amendments 12, 15 and 16 would narrow the scope of the offence of assisting a foreign intelligence service, so that the offences would apply only to assistance that would, or is intended to, prejudice the safety or interests of the United Kingdom. The Government reject these amendments. We believe that any activity taking place in the UK on behalf of a foreign intelligence service that the UK has not even informally agreed would be inherently prejudicial to the safety or interests of the UK. I pause, as here lies at least some explanation to the noble Lord, Lord Pannick, who none of us want to see in the dock in Court 4 of the Old Bailey.

Creating an additional legal test to prove beyond reasonable doubt why that activity is prejudicial would add an unnecessary hurdle for a prosecution. The noble Lord, Lord Marks, asked why the Government are criminalising assisting a friendly foreign intelligence service in the case of Mossad. The noble Lord, Lord Pannick, and the noble Baroness, Lady Manningham-Buller, also dealt with this example. I would say that we are criminalising covert assistance and I highlight the additional safeguard of the public interest test in the prosecution. We believe that any activity taking place in the UK on behalf of a foreign intelligence service that the UK has not even informally agreed to would be inherently prejudicial.

We would be happy to consider further the point raised by the noble Lord, Lord Pannick, on the drafting of Clause 3, but need more information about that hypothetical situation. Who would counsel be advising and when? For example, is he advising a foreign intelligence service which has an agreement to operate in the UK? In those circumstances, the prosecutor’s options would of course be very different.

On Amendment 16, the existing distinction between activities taking place inside the UK and those taking place overseas was deliberate. For activity taking place overseas, Clause 3(4) requires the conduct to be prejudicial to the safety or interests of the UK. This has been done to ensure that we target activity overseas which has an appropriate link to the United Kingdom. On this amendment, and Amendments 12 and 15, it is the Government’s view that activity taking place inside the UK, where not covered by the defences in Clause 3(7) and without even informal agreement or consent, is inherently prejudicial to the UK’s safety or interests.

As I understood the example from the noble Baroness, Lady Ludford, of a French citizen working in a bar or a bank, surely the answer is that they could simply call 999. I do not think there is any need to tighten up the definition in the context of the example she gave. In further response to the points the noble Baroness raised, I quote from paragraph 43 of the Government’s formal response to the JCHR report:

“Alerting a foreign intelligence service to a potential terrorist plot against the UK would not be conduct in relation to UK activities by that intelligence service. If the UK and France have an agreement to work on such activity together in the UK then that would fall under one of the defences available.”


Regarding Amendment 19, it is the Government’s view that an individual who knew, or reasonably ought to have known, that their conduct has a purpose that is prejudicial to the safety or interests of the United Kingdom should not be outside the scope of the offence simply by virtue of it not being the intention behind the activity to cause harm to the UK. To require the higher level of intention that this amendment seeks to introduce would create gaps that would jeopardise our ability to prevent harmful activity at the sensitive sites these provisions seek to protect. The Government consider it correct to penalise such conduct irrespective of the specific intention of the perpetrator, so long as they have, or should have, knowledge of the damage their action could cause. The Government therefore cannot accept the proposed amendment.

I will address Amendments 20 and 21 together, given that they both would add some variation of the safety or interests of the UK test to Clause 5. For the current Clause 5 offence to be committed, a person must engage in specified conduct in relation to a prohibited place that is unauthorised. They must know, or ought reasonably to know, that their conduct is unauthorised. This therefore protects those who have no reason to know that the activity they are conducting at that specific location is not authorised. There is no requirement to prove intent against the United Kingdom, as the offence is aimed at circumstances where activity is unauthorised but it cannot be established that a person had a purpose they knew, or reasonably ought to have known, was prejudicial to the safety or interests of the UK. For example, if a person trespasses on a site that they know is a prohibited place and steals something from it, that is not on the face of it damaging to the safety or interests of the UK. This is reflected in the lower maximum penalty for this offence of six months’ imprisonment.

The Government consider that including a further condition to prove that conduct is prejudicial to the safety, security or defence interests of the UK significantly reduces the utility of this offence and creates an unhelpful overlap with the Clause 4 offence. This would result in these provisions not being able to capture the full range of potentially harmful activity that prohibited places face. I add that it would seem clear that the innocent photographer taking pictures of RAF aircraft at an air show would not be caught by this offence for the reasons I have set out.

Amendment 47 would add an additional condition to the offence provided in Clause 15(1). The Government reject this amendment because it would create an additional and unnecessary evidential burden to overcome, severely limiting the efficacy of the offence at preventing hostile foreign intelligence activity against the UK. I suggest that no one would ever be prosecuted in the hypothetical situation advanced by the noble Lord, Lord Marks.

The effect of the amendment would be to require the person committing the offence to know, in all circumstances, what the foreign intelligence service intended to do through the provision of the relevant material benefit. Furthermore, the prosecution would be required to prove that knowledge in court on the basis of admissible evidence, which would be a difficult task.

Were this offence to be amended as suggested, it could be simply circumvented by the foreign intelligence service ensuring that the person who would otherwise commit the offence is not told what is intended. In such circumstances, conduct as set out in the offence as drafted would not be a crime. It is the Government’s view that a foreign intelligence service funding operations in the UK is inherently prejudicial to the safety or interests of the United Kingdom.

As to Amendment 49, noble Lords seek to include an additional element of intent as part of the preparatory conduct offence under Clause 16, through the addition of a provision requiring proof that persons engaged in preparatory conduct were acting with a purpose that they knew would prejudice the safety or security or defence of the United Kingdom. In the Government’s view it is unnecessary to include this additional element; if a person engages in preparatory conduct with the intention that it will lead to one or more such offences, the preparatory conduct offence will be committed only if the person has the intention that each element of those offences will be met in the future. I do not accept that the offence could be unintentionally committed in the manner postulated by the noble Baroness, Lady Jones.

National Security Bill

Lord Coaker Excerpts

Committee stage
Wednesday 21st December 2022 Lords Chamber

[Lord Evans of Weardale (CB)]

My Lords, I support Amendments 44 and 45A. It is striking that in the electoral finance regulations there is a great dissonance between what is required of political parties fighting a democratic election and what would, for instance, be required of not only a bank or financial institution but many charities. I find it difficult to understand why there should be any objection to ensuring that money donated to a political party in the course of a democratic election is susceptible to enhanced due diligence. It is quite reasonable to expect that the origin of those party donations should be visible. As the noble Lord, Lord Purvis of Tweed, pointed out clearly, there are very considerable gaps. I agree with the noble Lord, Lord Wallace of Saltaire, that there is a great deal more to be done regarding electoral finance.

I am the chairman of the Committee on Standards in Public Life, which, within the last two years, undertook a major report on the regulation of electoral finance. In that, we spoke not only to the political parties but to representatives of those involved in the referendum campaign and a whole variety of people who have an interest in this area. We were then able to come forward with a series of recommendations to try to close a number of the loopholes. Many of them do not relate specifically to foreign interference but there is obviously the opportunity for those who would interfere as a foreign state in our electoral procedures to exploit loopholes in the system.

Regrettably, the Government did not wish to accept our recommendations, which I feel was a missed opportunity. The Elections Act, which has now gone through, did not address a number of the areas relating to electoral finance where there are glaring inconsistencies and anomalies. This is a good opportunity—at least in respect of some of those areas, particularly where they relate to foreign interference—to introduce these amendments, which will go some way towards closing some of the very evident loopholes. From that perspective, I strongly support these amendments.

[Lord Coaker (Lab)]

My Lords, we very much welcome Clauses 13 and 14—or however they are now numbered, given the Government’s amendments—as they introduce new offences of foreign interference, given the potential impact on our democratic processes at every level. That is a further reflection of the way that the Bill takes account of the new national security environment and the changing and emerging threats that we face.

As the Minister helpfully outlined, the main effect of the Government’s amendments will be to broaden the offences to include when a person acts recklessly. It appears that that has been brought in to reflect references to “recklessness” in other offences in the Bill and following debate in the Commons. That is very welcome. Can the Minister explain why it was not part of the original Bill, and what has caused the change of thinking in the department for it to bring forward these amendments?

I will also reflect on some of the discussion from the noble Lords, Lord Carlile and Lord Purvis, and others, on what is meant by proposed new subsection (2)(e), which refers to

“causing spiritual injury to, or placing undue spiritual pressure on, a person”.

For the benefit of the Committee, it would be helpful if the Government could say more about what they intend, what that encompasses and the thinking that lies behind it. That would be helpful to the Committee in the light of the various comments made.

We also support Amendment 43 from the noble Lords, Lord Purvis and Lord Wallace. We very much support the concept of an annual report on how these clauses protect the integrity of the UK’s democratic processes. I also understand and appreciate, as I think the Committee does, the Minister’s comment about how this is about protecting the country’s democratic processes from foreign interference, not from the normal democratic and political discourse that one would expect. I am particularly grateful for that, having been accused of being a communist and a member of the Revolutionary Socialist Party—I do not know whether anyone ever came across that in my file. More recently, for the new heads of various bodies, I have been called a traitor for my views on the EU referendum. So I stand here accused of being a communist on the one hand—in my younger days, it has to be said—and then having moved to being a traitor for my views.

The serious point I am trying to make, in a humorous way, is that political discourse takes place, as do debate and argument. It is really important for us to understand the difference in the Bill’s intention that the Minister pointed out. For that to be read into the record is really important so that it is not misunderstood; it is clearly not what the Government intend.

Amendment 44, in the names of the noble Lords, Lord Carlile and Lord Wallace, and of my noble friend Lord Ponsonby, is really important. It was very well articulated by the noble Lord, Lord Carlile, and the noble Lord, Lord Evans, said that he supports it. There are a lot of arguments for this amendment, but my view is the same as the point the noble Lord, Lord Carlile, made—a really important point, particularly at the current time when there is some disillusionment. Accepting Amendment 44 as part of the Bill would help enormously to instil public confidence, to ensure that people understand that our political parties not only are free from foreign interference through political donation but are seen to be free of it from their statements. Instilling public confidence on that is really important.

I move on to my Amendment 45, which is a probing amendment. I say to the Government that it is not necessarily intended to be added to the Bill, but it deals with an important aspect of this discussion. It is how to deal with the issue of informing the public about what we seek to do and the new threats that they face, and how we raise their awareness of them. There is also the crucial question of how this could be done in real time.

I use the example of Canada to cause us as a Committee to think. Canada has a Critical Election Incident Public Protocol, which lays out a clear and impartial process by which Canadians can be notified of a foreign threat to the integrity of an election. That includes provisions for informing candidates, organisations or election officials whether they have been the known target of an attack. It has processes which state how decisions are made, and by whom, and as to whether a public announcement should be made to alert people to the threat.

As I said, this is a probing amendment, and I am not an expert on the protocol. I am trying to understand the Government’s view. If we were to believe that foreign interference was taking place, at what point would they think it appropriate, relevant or consistent with the security of our nation for the public to be informed of that? I think the public have a right to be involved, potentially in live time.

I think this raises real difficulties. Let me create a scenario: a general election takes place—let us not use the next year or two; let us say in 10 years’ time—and the Government find that that election is being compromised by foreign interference. What happens? How does the Bill deal with that scenario? We are in Committee, which is when we look at detail. I think there is an important question for the Government about public involvement with respect to their knowledge and awareness of the potential for interference that may take place and what they have a right to know if the Government or the services come to a conclusion that there is foreign interference and that it may be compromising an election, whether it be a general election, a local election or some other part of the democratic process. I think that is an important part of this discussion. I think that, far from it being a weakness for the Government of the day, with the security services and others, to say that they are protecting the integrity of the democratic processes such is their importance, alongside that, should it be necessary for them to alert the public, they should have a system, or protocol to which they can refer, dealing with what the consequences of that would be.

This has been an interesting debate at the heart of another important series of amendments because they seek to protect our democratic processes from the foreign interference the Minister pointed out in his introduction. I look forward to his reply to not only my remarks but to the remarks of other noble Lords.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank the notably unrevolutionary noble Lord, Lord Coaker, for his support for these amendments. I will address his precise question on whether the amendments on recklessness represent a change in government policy and why they are being introduced now. It was always our intention to capture malign foreign interference activity in all its forms with this offence. After the completion of the Bill’s passage in the other place and in light of the comments made in the Public Bill Committee on the lack of an offence that could be committed recklessly, we retested the offence against the operational and policy requirements and we saw that there were examples of conduct, such as where a person’s intention was not to cause an effect but rather to improve their status within relevant organisations of a foreign power, that were at risk of not being in scope for the offence. I hope that answers the question on why it is being done now.

The noble Viscount, Lord Stansgate, asked three specific questions about why recklessness is present in only one of these offences. The fact is that there are three different ways to commit the offence. New subsections (1) and (2)—inserted by Amendment 38—relate to a person’s intention, and only subsection (2) deals with recklessness.

Amendment 43 seeks to introduce a requirement for the Secretary of State to lay a yearly report, from the date of the National Security Bill gaining Royal Assent, assessing the impact which Clauses 13 and 14 have had on protecting the integrity of the UK’s democratic processes. This amendment duplicates one tabled in the other place. We do not consider it to be appropriate to introduce reporting requirements on the subject in isolation from the existing work on democratic integrity or in isolation from wider consideration of oversight and review mechanisms for the Bill.

Amendment 45 seeks to introduce a mechanism to alert the public to threats to the integrity of elections. We do not consider this to be necessary. Clauses 13 and 14 ensure that there are appropriate criminal sanctions for foreign interference. These provisions sit alongside other non-legislative activity. In advance of democratic events, His Majesty’s Government stand up an election cell to monitor and respond to any emerging issues during the election period. The election cell is led by the Cabinet Office and brings together government departments, the intelligence agencies, the devolved Administrations and external partners to ensure a holistic understanding of risks and to drive any necessary mitigations. The National Cyber Security Centre also meets regularly with the UK’s parliamentary parties and works closely with those responsible for core parts of the UK’s electoral infrastructure. Finally, formally established in 2019, the defending democracy programme is a cross-government programme with the overarching objective to safeguard elections and referendums and related democratic processes in the United Kingdom.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I am dredging my memory a little bit here, but I remember the Security Minister about a month ago outlining much more about defending democracy. I will have to refer back to the comments he made in the other place, but I am pretty sure they deal with the questions that have just been raised by the noble Lord.

[Lord Coaker (Lab)]

I think this is a really important point about informing and alerting the public in live time. I would be grateful if the Minister could come back having reflected on that for us.

[Lord Sharpe of Epsom (Con)]

I will certainly have to read all the various information that I can find on the defending democracy programme, which I am pretty sure deals with most of the issues that have just been raised. If I am wrong on that, of course I will make that clear.

Amendment 44 was spoken to by the noble Lords, Lord Coaker, Lord Carlile, Lord Purvis, Lord Evans and others. The amendment seeks to enhance checks on the source of political donations in two ways. First, it seeks to introduce a requirement for political parties to release a policy statement to ensure the identification of donations from foreign powers. Secondly, it requires political parties to include in their annual statement of accounts a statement detailing their risk management approach to donations and the measures in place to prevent the acceptance of impermissible donations. While I understand the intent behind this amendment, let me be clear that UK electoral law already sets out a stringent regime of controls on political donations to ensure that only those with a legitimate interest in UK elections can make political donations and that political donations are transparent. Given that it has been spoken to by most speakers, I am going to go into a bit more detail on this, with the indulgence of the Committee.

Only those with a genuine interest in UK electoral events can make political donations. That includes registered UK electors, including registered overseas electors, UK-registered companies, trade unions and other UK-based entities or otherwise eligible donors, such as Irish citizens meeting prescribed conditions who can donate to parties in Northern Ireland. Parties and other campaigners are prohibited from accepting donations which are not from a permissible or identifiable donor. Failure to return such a donation, either to the donor or the Electoral Commission within 30 days of receipt is an offence and any such donations must be reported to the Electoral Commission. Furthermore, the Elections Act 2022 introduced a restriction on ineligible foreign third-party campaigning above a £700 de minimis threshold.

It is an offence to attempt to evade the rules on donations by concealing information, giving false information or knowingly being involved in an arrangement to facilitate the making of an impermissible donation. This provides a safeguard against impermissible donations via the back door. Political parties must already register donations over a certain value to the Electoral Commission; they are then published online for public scrutiny.

By requiring political parties to detail publicly their approach to mitigating the risk of impermissible donations, proposed new subsection (3) of the noble Lord’s amendment has the effect of providing such donors with the details of mitigations they need to overcome to make an impermissible donation. I am sure that is an unintended consequence, but it is important to oppose this amendment on the grounds that not only do the existing rules mitigate these risks but the amendment itself risks undermining the already strong rules.

National Security Bill

Lord Coaker Excerpts

Committee stage
Wednesday 21st December 2022 Lords Chamber

[Lord Purvis of Tweed (LD)]

I wonder whether the noble Lord is considering Clause 28 rather than Clause 23.

[Lord Coaker (Lab)]

What was Clause 23 has now become Clause 28, because of various changes made by amendments to the Bill. So my noble friend’s remarks will be perfectly in order when we get to Clause 28, but we are not there yet.

[Lord Marks of Henley-on-Thames (LD)]

It might help the noble Lord to know that there are a number of amendments tabled to Clause 28, which is a controversial clause and will be debated on the first day of the new year, I suspect.

--- Later in debate ---

Moved by

[Lord Coaker]

60: Schedule 6, page 100, line 19, at end insert—
“(1A) The Secretary of State may only designate places at which persons may be detained under section 25 which are within the United Kingdom.”Member’s explanatory statement
This amendment would clarify that places of detention must be in the UK.

[Lord Coaker (Lab)]

My Lords, my noble friend Lord Hacking must make sure that he is here on the Wednesday we come back; I am sure that we will start with the debate he referred to, which will probably be quite a significant and long one. Just to give him time and to get my retaliation in first, I tell the Minister that I have read the relevant bit of Schedule 6—paragraph 1(2)—which he will say makes my amendment irrelevant because it is covered there. I know that; I have put this down so that we can have a debate on it.

In moving my Amendment 60, I recognise the very important issues raised by Amendments 61 and 63 from the noble Baroness, Lady Ludford. We are returning to Schedule 6, which deals with detention under Clause 25, “Arrest without warrant”, which is a significant power. We accept that there is clearly a need for individuals to be detained under the offences in the Bill, but I have a number of questions to seek clarification from the Minister—hence my Amendment 60.

Committee allows us to look in detail at various sections and parts of the Bill and seek clarification on what the Government mean by certain phrases. That is of particular interest because many people read our deliberations and they are often used in the courts to try to inform judgments. I hope the Government will bear with me if some of my questions appear to have obvious answers.

Clause 25(1) states:

“A constable may arrest without a warrant”.

Is that only a constable of a police force, not any other organisation? Is it all UK police forces? Does it include other forces, for example a constable of the MoD police, the British Transport Police or the Civil Nuclear Constabulary? Are there any special arrangements for Northern Ireland, given that the Bill says that any officer of any police force can use this power in any part of the United Kingdom? If they are not in uniform, do they have to produce their warrant to show who they are?

In Clause 25(6), the original detention of 48 hours can be extended by a review officer. How many times can this be reviewed and for how long can someone be detained? Is there a maximum limit or can they be renewed on multiple occasions? At what point would there be any judicial involvement in the process to agree any continuing detention beyond the original 48 hours?

Can the Minister confirm that my Amendment 60 is not needed, as I said at the beginning, because paragraph 1(2) of Schedule 6 says that detention has to be in

“land or a building in the United Kingdom which is owned … by a police force.”

Does this include all types of police force? Would it include the buildings and lands of the British Transport Police, the Civil Nuclear Constabulary, the MoD police, et cetera?

Can the Minister also confirm on the record that no person arrested without warrant under Clause 25 can be held in any UK buildings or land in any security service building outside the UK, any Armed Forces facility or land outside the UK, or any other such facility? There is a need for some clarification here, in the sense that UK military bases are sometimes referred to as “sovereign territory”. Does that imply that they are in the UK and could therefore be used, even though they are not within what one would normally assume to be the borders of the United Kingdom?

Can the Minister confirm or otherwise whether Clause 25 can be used outside of the UK to arrest a UK national who is believed to be involved in a foreign power threat activity within the United Kingdom? If so, how does that actually work? If a UK national is arrested abroad because of the threat they have posed through an activity within the United Kingdom, how is that person then detained and brought back, or can the offence not be used against a UK national who is abroad even if they are believed to have committed an offence when they were within the United Kingdom?

I will leave the noble Baroness, Lady Ludford, to speak to her amendments, but they address the idea that, in a democracy, the proper treatment of detainees must not only be done but be seen to be done. Which body or independent reviewer is or will be responsible for oversight of the operation of Clause 25 and Schedule 6? As I have said, these Benches accept the need for such arrangements, but clarity of purpose and transparency are essential when dealing with issues of arrest and detention. Our democratic traditions demand that we do so in this area, as much as anywhere else. With that, I beg to move.

[Baroness Ludford (LD)]

My Lords, I thank the noble Lord, Lord Coaker, for introducing this group. As he noted, I will speak to Amendments 61 and 63 in my name, which are inspired, as usual, by the report of the Joint Committee on Human Rights. My amendments relate to Schedule 6, which applies the conditions for arrest and detention without warrant under Clause 25.

We are concerned that some of the protections in the schedule are not adequate to guard against a descent into somewhat arbitrary detention. The initial period of detention permitted is 48 hours, and there is supposed to be a review at least every 12 hours. There can then be a judicial warrant for up to seven days after the initial arrest, subject to a further extension up to a total of 14 days. Although that judicial part has certain guarantees, there are still elements which cause us concern, including when the detainee and their legal representative may be excluded from parts of the hearing, or an application may be made to withhold certain information relied upon by the authorities. To be denied sufficient information to counter any claims made against them or to be excluded from the hearing are serious moves. Obviously, these themes have been encountered before in anti-terrorism legislation, but we are concerned, for instance, that the use of detention could be based on undisclosed or closed material where the concern relates solely to proceeds of crime.

My Amendment 61 is about where there could be a power to delay allowing the detainee to have a named person—a family member or a friend, for instance—informed of their detention and having the right to consult a solicitor, including where the officer has reasonable grounds for believing that the person has benefited from criminal conduct or where the recovery of property of value would be hindered by allowing access to a solicitor or notification to a named person. These are very serious impediments to accessing basic rights for a person detained without charge. The JCHR feels that, while these restrictions may be proportionate if necessary for imperative reasons of national security, such as to prevent immediate harm to persons, the case is less compelling where the objective is solely asset recovery. Therefore, Amendment 61 aims to delete paragraphs 9(4) and 9(5)—I hope they are still paragraphs 9(4) and 9(5)—of what is now Schedule 6; the moving story which has tripped up other noble Lords also applies to schedule renumbering.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

Forgive me; the answer is that, in the text of the Bill, this is not limited to state threats proceeds of crime. The operation of the Bill is as I just described in my speech and, as I have already said, its safeguards are built into the statute itself.

The second amendment to Schedule 6 tabled by the noble Baroness seeks to remove certain circumstances whereby a review of a suspect’s detention may be postponed. There are various reasons why a review may need to be postponed. For example, the suspect may be receiving medical treatment and be unable to make representations on their continued detention to the review officer. It may be that there is a delay in the review officer arriving at a custody suite, or they may be reviewing another suspect’s detention if multiple arrests have been made in a short period.

It is impossible to predict all the possible circumstances and make specific provision for them in the legislation. The legislation does not provide for the review to be permanently postponed. It is required to be carried out as soon as possible, but this proposal provides for some operational flexibility. The code of practice—which, as I have said, the Government will publish in due course—will provide further information on reviews of detention, and we will state the requirement for any postponement of detention reviews to be recorded on the custody record. In the meantime, similar provision again can be found in the Police and Criminal Evidence Act code of practice code H, which operates for detentions under the Terrorism Act 2000.

With that, I conclude.

[Lord Coaker (Lab)]

My Lords, I thank the Minister for that very helpful reply, which put on the record clarification of certain things, in particular that the word “constable” applies to all police forces across the UK. That was helpful in answer to the points raised by the noble Baroness, Lady Ludford. As the Minister will know, a number of regulations and codes of practice will be coming before Parliament with respect to the detention of people under these powers. They will require some quite careful consideration by Parliament.

With that, I beg leave to withdraw the amendment.

Amendment 60 withdrawn.

--- Later in debate ---

[Lord Coaker (Lab)]

Not to be left out, may I do the same?

Amendment 62 agreed.

National Security Bill

Lord Coaker Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

[Lord Coaker (Lab)]

My Lords, I start by saying that if the noble and learned Lord, Lord Judge, is a pupil barrister, I do not know what on earth that makes me. We shall see.

I start with a comment that I know will be supported by all members of the Committee: if the story on the front page of the Sun is accurate, it reminds us of the debt of gratitude that we owe to the security services. They seem to have foiled a plot to import uranium at Heathrow this morning. If that is accurate, it is something that we in this Committee should note, because I know that the security services and those who work on our behalf in all these areas read our proceedings, and they should not mistake or confuse the very real debate that is going on here about the best way for us to go forward, and the best legislative context for us to have for our Armed Forces and our intelligence services, with any sense in which we underestimate or do not respect them fully for the work they do across the world in our interests.

I have objected to Clause 28 standing part of the Bill, and I thank the noble Lord, Lord Purvis, for his support, because, as it stands, the clause is unacceptable. The Government themselves have said in the other place and in previous debates that they are considering whether the clause needs amending and, if so, how. We all wait with bated breath to see where that has got to. The ISC has said it needs to change, and we know that even with the further closed briefings from the intelligence services to the ISC, it still believes that the clause needs amendment.

Amendment 63A in the name of the noble Lord, Lord Purvis, and Amendment 64 in the names of the noble Lords, Lord Anderson and Lord Carlile, and the noble and learned Lord, Lord Judge, are welcome and important statements of how the Government may deal with the many concerns raised in both Houses. The excellent contributions we had in support of them challenged the Government to say, if they are not the way forward, what is. The Minister’s response to these amendments will be very important and it will be interesting for all of us to know whether the Government are actually listening. Are these amendments to be accepted by the Government and, if not, why not? If they are not, can we expect a government amendment in good time for us to consider it before Report?

Questions that arise for the Minister if the Government do not accept these amendments are clear. The amendment in the name of the noble Lord, Lord Purvis, as he explained,

“would ensure that the immunity provided to Ministers and officials who assist or encourage crimes under the Serious Crime Act 2007 does not cover torture, murder or sexual offences.”

Indeed, the noble and learned Lord, Lord Hope, mentioned the issue of torture. If this is not to be accepted by the Government, can the Minister clearly and without any qualification say that none of this behaviour would ever be allowed if the clause were to be passed unamended? Remember, we are referring to murder, unlawful killing, torture or sexual offences. A clear and categoric ministerial statement, on the record, with no qualification or prevarication, would help the Committee enormously with respect to that amendment.

Amendment 64 would ensure—as I read it, and the explanatory statement confirms this—that high-level ministerial authority is fundamentally important. The noble Lord, Lord Carlile, made the excellent point that high-level ministerial authority must be maintained for the authorisation of the doing of such acts, rather than the weakening or even, as most of us believe, the exclusion of such authority, as Clause 28, as drafted, allows. Is that not the case? Why would the Government object to the maintenance of such ministerial authority, ensuring, in a democracy proud of its traditions, the importance of proper political accountability for decisions that are made? Again, this is a point that the noble Lord, Lord Carlile, and, I think, the noble Lord, Lord Anderson, made. Just as important, if not even more so, is that such ministerial authorisations would be under the supervision of the Investigatory Powers Commissioner’s Office—IPCO. This, under Clause 28, now seems not to be the case, whereas independent oversight and accountability seem to me, and I am sure to most of us in the Committee, to be an essential part of such a process.

We know the phrase in the clause as it stands,

“the proper exercise of any function”,

has also caused concern. What does it mean? Who decides whether it is proper or the breadth and potential scope of the phrase? If there is no independent oversight, as required by Amendment 64, who provides it and how? Something as sensitive and crucial as this cannot be left to a few individuals in a closed meeting in an office away from any public gaze or scrutiny. That is unacceptable in a democracy. As it stands, the clause is not acceptable and these amendments seek to improve it. As I and the noble Lord, Lord Anderson, have said, we will have to come back to this on Report, either to push an amendment or to agree or disagree a government amendment.

Very serious concerns have been raised about Clause 28 that cannot and should not be ignored by the Government. The ISC has said that the clause needs amending because it is unacceptably broad. Will the Government listen to it, if no one else? Even with the additional briefings, as I have said, it does not believe that Clause 28 is the way forward, even if it accepts that there is a problem that needs fixing.

In justifying Clause 28 as it stands, can the Minister answer some of the following questions? There are currently safeguards, such as ministerial authorisation, the reasonableness test so eloquently outlined for us by the noble and learned Lord, Lord Judge, under Section 50 of the Serious Crime Act and the fact that the DPP must be satisfied that a prosecution is in the public interest, as the noble Lord, Lord Carlile, properly reminds us time after time. I am grateful that he does so, because that point is lost; it is about not only whether a conviction can be secured but whether it is in the national or public interest for such a prosecution to be pursued. I have faith in the system. I believe that in most cases, if it is not in the public interest, it will not be pursued. That is an open decision that we can question to see whether we agree with it. Why have these safeguards been swept away with respect to such behaviour conducted abroad?

Can the Minister clarify what it means in Clause 28 for something to be necessary for the proper function of the UKIC or the Armed Forces, with no proportionality required? Why have the Government diminished the role and accountability of Ministers in the decision-making structure? As the noble Lords, Lord Purvis and Lord Beith, asked, why does Clause 28 extend this immunity to the Armed Forces? If I have read it right, the Armed Forces have protection under Section 7 of the Intelligence Services Act. Have I got that wrong? Can the Minister clarify why Clause 28, as drafted, appears to extend these immunities to the Armed Forces? As the noble Lord, Lord Purvis, asked, will he give an example of conduct that is the proper exercise of any function of the services but is currently subject to the chilling effect of the 2007 Act and would therefore now be allowed under this Bill? Why can it not be authorised under Section 7 of the Intelligence Services Act 1994 as it stands?

This is an incredibly serious debate, as we have heard from the many contributions from noble Lords. We also know that a huge cross-section of Members of Parliament in the other place expressed their concerns, many with great personal experience. Dan Jarvis MP, Kevan Jones MP, Maria Eagle MP and David Davis MP made excellent speeches asking why the change is necessary and, if it is, why we cannot have something that deals with the perceived problem and commands support, including from our parliamentary oversight committee, the ISC. The ISC was set up specifically to be allowed closed briefings, so that it could advise us on what was appropriate for these difficult matters. How on earth can the Government command the respect and support of this Chamber if the ISC, the committee we set up to have oversight on these matters, does not agree with Clause 28? Why do the Government set themselves against what the ISC is saying and then wonder why we have doubts?

The excellent House of Lords briefing highlights the many comments expressing doubts, particularly the belief that immunity from prosecution for serious crimes committed abroad would be made much more likely and possible under this clause. As Jeremy Wright MP asked, can the Minister explain the difference between acting reasonably under Section 50—the noble and learned Lord, Lord Judge, made this point—and acting in the proper exercise of a function, as this clause requires?

We are rightly proud of the work of our intelligence services and Armed Forces, but we also have a responsibility as a democracy to set a legislative framework that sets, and is seen to set, high standards. Openness, transparency and accountability are part of the price of our democracy. As drafted, Clause 28 undermines these principles and needs at the very least to be seriously amended.

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, I thank all noble Lords who have contributed to a fascinating and wide-ranging debate. If the noble Lord, Lord Coaker, is not sure where it leaves him if the noble and learned Lord, Lord Judge, is a pupil, I am under absolutely no illusions where I am left.

I turn to Clause 28, the Serious Crime Act 2007 amendment. I thank the noble Lord, Lord Coaker, for his advance notice of interest in this measure and the noble Lord, Lord Purvis, for our discussions to date on this Bill. I also very much thank the noble Lords, Lord Anderson and Lord Carlile, who provided advance notice of their intention to table this amendment and have generously shared their time and expertise with me and the team on this measure, as the critical friends to the national security world that the Committee knows them to be.

I will speak to the purpose of the SCA amendment and the amendments tabled by noble Lords. Respectively, they seek to remove the SCA amendment in Clause 28 from the Bill and replace it with an amendment to Section 7 of the Intelligence Services Act 1994, or ISA, and to add to Clause 28 to ensure that exemption from liability for individual Ministers and officials who assist or encourage crimes under the SCA would not cover torture, murder or sexual offences. However, before I come to that, it is right to express our thanks to those who work tirelessly to keep us safe, as the noble Lords, Lord Anderson and Lord Coaker, did, while recognising that we should carefully examine any changes to the law which might regulate or enable their activities.

I will briefly tell noble Lords why Clause 28 is in the Bill and why the amendment to the SCA is necessary. In essence, it is vital that we solve an unintended consequence of the SCA which currently exposes those acting for our intelligence and security agencies—MI6, MI5, GCHQ: the UK intelligence community, which I will henceforth call UKIC—and our Armed Forces to potential legal jeopardy and limits their operational agility. This can limit their ability to keep the UK safe, including through our international collaboration with trusted partners, which is vital in the modern world.

The SCA creates offences when an act is done which is capable of “encouraging or assisting” an offence and the person intends or believes their act may encourage or assist an offence. These offences are complex and were predominantly introduced to ensure the police could tackle those directing serious organised crime—for example, capturing those who knowingly directed violence or the importation of drugs but distanced themselves from criminal conduct. There is no minimum level of contribution to the offence which may be encouraged or assisted; the contribution can be small and indirect and there is no need for an offence to be ultimately committed. I will come back to the noble Lords’ amendment, but say here that these are obviously not circumstances that always lend themselves well to pre-authorisation.

Clause 28 focuses on this very specific area of criminal law which is having an operational impact to the detriment of the UK’s security. It is not a general immunity and it would not change the application of all other criminal law offences. It does not make it legal to encourage or enable torture or rendition or solicit murder and does not limit the offence of misconduct in public office. In addition, Clause 28 does not remove civil liability or change either the UK’s international law obligations or UKIC’s or the Armed Forces’ rigid adherence to these obligations. I will come back to that in a moment.

At present, UKIC and the Armed Forces are required to carefully apply the provisions of the offences, sometimes at fast pace and in critical scenarios, as has been noted, and some of which may have life or death consequences—all while they work with our international partners to help protect the UK. We are talking, for example, about sharing intelligence to combat terrorist attack plots. Delays and limits on activity arise solely due to SCA risks when otherwise seniors are clear that there is no wrongdoing and that the activity represents a proper function of the organisation. The offences in the SCA are therefore creating a “chilling effect”, as the noble Lord, Lord Coaker, referred to, across UKIC and the Armed Forces in the delivery of their mission, and impacting on their ability to keep our country safe.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

I do not believe that there is immunity for that, but I will clarify that if I am incorrect.

Moving on, caution when considering the legality of support to our partners is of course correct and will continue. However, the current impact of the SCA offences means that vital intelligence-sharing opportunities have been delayed or missed, even when UKIC and the Armed Forces are fully compliant with other legal and policy requirements, such as the Fulford principles and the overseas security and justice assistance guidance, which ensure, for example, that support to international partners is in line with our human rights obligations. I have the principles and guidance to hand. If anybody would like me to go through them in detail, I will, but they are long so it will delay proceedings. I will await an intervention, if any noble Lord wishes me to do that.

UKIC’s and the Armed Forces’ adherence to and compliance with the principles are monitored by the Investigatory Powers Commissioner’s Office—IPCO—via regular inspections, and they are also routinely scrutinised by the Intelligence and Security Committee. Ministers are directly accountable for the work of the agencies and the legality of their operations. When things go wrong, it is entirely right that there is scrutiny of and accountability for the organisations’ activities, and I commend the important work that the ISC and IPCO undertake in this space. Meanwhile, any individual found to be working beyond the proper functions of the security and intelligence agencies or the Armed Forces will remain personally liable for those actions. This is right and fair.

However, I have heard the views of the House about this clause. The Government are in close consultation with the Intelligence and Security Committee, UKIC and the Armed Forces, and we are carefully reflecting on the views expressed and considering whether a change in approach is appropriate. It is important to note that those who have seen the very sensitive information which is relevant to this issue have agreed that there is a problem to solve—including the ISC, which has seen specific examples—and I am committed to us reaching a consensus on this matter.

Turning directly to the amendment in the names of the noble Lords, Lord Anderson and Lord Carlile, Section 7 of the Intelligence Services Act allows the Secretary of State to give authorisations for acts outside the British Isles, provided that the acts are done as necessary for the proper function of SIS or GCHQ—though not MI5 or the Armed Forces—and that the nature and consequence of the acts will be reasonable. These authorisations are clearly not currently available in all the circumstances in which SCA risks arise. I understand that this amendment seeks to address that gap and provide a solution to the application of the SCA offences. It also seeks to utilise an existing power for ministerial authorisation which is overseen by the Investigatory Powers Commissioner. These are obviously legitimate and valuable objectives. Section 7 authorisations provide a carefully used route by which the agencies can seek ministerial approval in advance of planned activities. They require Ministers to consider, in relation to specific acts, whether they are necessary and whether the consequences are reasonable. Once authorised, they can remove criminal and civil liability for those acts.

There will invariably be instances where the SCA risk does not manifest itself initially and becomes apparent only much later. Where a risk is not identified in advance, a Section 7 authorisation would not be sought to cover it. In these cases, those acting for UKIC or the Armed Forces would not be adequately protected should concerns about SCA offences arise later. Further, this scenario could lead to an unintended consequence of seeking to use Section 7 authorisations for hypothetical risks, creating an unhealthy reality in which more conduct is approved than would be otherwise without providing meaningful consideration of those risks. I am sure the House shares our desire to find a targeted solution to that problem. It would be a perverse outcome indeed if this well-intended amendment were to lead to less consideration of the SCA risks rather than more. Whether it is a class authorisation or a targeted one, as referred to by the noble Lord, Lord Purvis, the reasons why Section 7 authorisations are inappropriate remain the same.

In short, the Government do not believe that Section 7 authorisation is the best solution to the specific operational issue and do not believe it would improve the clarity of the application of the SCA offences to all the complex operational scenarios that arise in ongoing, carefully considered but agile international collaboration. It is more desirable to remove this risk in a targeted way as per Clause 28, avoiding the burden of potentially missing, and/or the overuse of, Section 7 authorisations for SCA risks.

The noble Lords, Lord Purvis and Lord Beith, talked about criminal conduct and authorisation of this for covert human intelligence sources. I think they may have conflated this with the issue at hand. No amendment is being proposed to the criminal conduct authorisation regime which governs the action of agents. We are concerned here with support for our international partners’ activities, so I agree with the noble Lord, Lord Evans, and the noble Baroness, Lady Manningham-Buller, who articulated this point very well.

I now turn to the amendment from the noble Lord, Lord Purvis, which aims to table provisions which explicitly state that Clause 28 does not cover torture, murder or sexual offences. Again, it is a legitimate attempt to clarify Clause 28. However, it is one which the Government deem unnecessary for reasons that I have partly outlined already but will continue to set out.

[Lord Coaker (Lab)]

Coming back to the amendment from the noble Lord, Lord Purvis, gives me the opportunity to return to an earlier comment from the Minister. Did he say in answer to the question from the noble Lord that he did not think we could assist others if they were conducting operations which involved torture, et cetera—that we could not support that activity? Was he going to clarify that and write to us, or clarify it later on the Floor of this Chamber?

[Lord Sharpe of Epsom (Con)]

I am going to do it right now: there is no immunity for inciting or assisting others to kill or torture.

National Security Bill

Lord Coaker Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I thank the Committee for its indulgence in allowing a 10-minute break. The technical issue involved was entirely mine. I am tempted to say that there was a reasonable defence. It may not have been a public interest defence and I certainly cannot describe it as lawful justification, but nevertheless—

[Lord Coaker (Lab)]

A serious disruption?

[Lord Marks of Henley-on-Thames (LD)]

Yes, it was possibly a serious disruption.

We have all received a very large number of briefings calling for a public interest defence, and none of them has suggested that such a defence is a bad idea or that it would imperil national security. I record our thanks to all the organisations which have sent us these briefings, including the BBC, the NUJ, Index on Censorship, openDemocracy, Guardian News & Media Limited and Mishcon de Reya, among many others. The briefings have concentrated largely on the threat to investigative journalism posed by the criminal provisions in the Bill. We dwelled on these at Second Reading, in the first two days in Committee and, to some extent, earlier today, so I will not go into detail. Suffice it to say that the threat to investigative journalism of criminalisation and the accompanying very long sentences is real and chilling—chilling in that the threat will have a deterrent effect on investigative journalism and in that it represents a real and frightening, and not merely theoretical, threat to open democracy.

It seems to be generally agreed that these provisions risk breaching Article 10 of the ECHR, on freedom of expression, a concern that was expressed by the Joint Committee on Human Rights in its report on the Bill. The committee said, at paragraph 172:

“There seems to be a certain level of consensus that a whistleblowing or public interest defence is needed”.


It is also significant that a number of other countries, including our Five Eyes partners Canada, Australia and New Zealand, have some form of public interest defence to charges under similar legislation. However, it is not exclusively investigative journalism or even campaigning that is under threat. Those who expose wrongdoing by public servants or whistleblowing employees are equally at risk and may be equally deserving of an acquittal for an offence under this Bill after deploying a public interest defence.

It is for that reason that the public interest defence in our Amendment 75, in my name and that of my noble friend Lord Purvis of Tweed, goes further than protecting journalists alone. In so doing, it is close to the Law Commission’s recommendation in its 2000 paper, Protection of Official Data, which recommended that there should be a statutory public interest defence to unauthorised disclosure offences which should be available to anyone, civilians as well as journalists.

Therefore, our amendment would apply to all prosecutions for offences under Clauses 1 to 5 of the Bill, not just unauthorised disclosure offences, with which the Law Commission was concerned, but we regard that as right. Disclosure of restricted material is just as capable of being in the public interest as it is of assisting a friendly country’s intelligence service to apprehend or expose wrongdoing, as is entering a prohibited place to photograph or record corrupt transactions involving public servants. All can give rise to prosecution under the Act, and in each case there ought to be a public interest defence.

The defence we advocate is based on reasonable belief, so it relies on a test that is, in part, subjective—“Did the defendant believe their conduct was in the public interest?”—and, in part, objective: “Was that belief reasonable?” Juries are well used to applying that type of test and I suggest it is the appropriate one. By contrast, a wholly objective test of whether or not conduct was in fact in the public interest would impose a burden on juries to make what is essentially a political judgment, no doubt on the basis of conflicting evidence, expert and factual. That would not be the best test of the criminality of a defendant.

We have also maintained the principle that, once the defence is raised, it is for the prosecution to rebut it to the criminal standard of proof. That is the way our criminal law responds to a number of defences, reasonable self-defence being one such. We suggest it is the appropriate response. It would perhaps be different if we were concerned here with unauthorised disclosure by a member of the security or defence services who was bound by an agreed and binding confidentiality requirement. However, we are legislating here for criminal charges against private citizens, who, I suggest, are entitled to the benefits of the usual protections inherent in our criminal law.

In applying the test we advocate, juries would have to consider a number of factors set out in proposed new subsection (3) of the amendment. In formulating them, we have relied loosely, but not exclusively, on the factors mentioned in the Public Interest Disclosure Act 1998, which amended the Employment Rights Act 1996 for the protection of whistleblowers. These factors are designed to steer juries towards a balance between confidentiality and the public interest in disclosure. But we do not argue that these are in final form; at this stage, they are designed to give shape to what we would like to see in a public interest defence.

I repeat what I said the other day in Committee: there is no genuine democratic protection in the requirement that the Attorney-General’s consent should be obtained for a prosecution to be brought. That is a welcome safeguard, but its point is to avoid unnecessary and unmeritorious prosecutions. What is needed for the determination of guilt or innocence on a public interest defence is a trial before a jury, where the defendant has a fair chance to put their case that they reasonably believe that the conduct of which they are accused and which is said to be criminal was in the public interest.

I am grateful to the noble Lord, Lord Coaker, for his amendment but, unlike him though it may be, we say it goes nothing like far enough. We need a defence when the Bill becomes law, not merely an assessment of its possible merits. I note that, in the other place, the amendment of Kevan Jones MP, the Labour Member for Durham and a member of the Intelligence and Security Committee, was nothing like as diffident as that proposed by the noble Lord, Lord Coaker. I also note that Tom Tugendhat, for the Government, promised to engage further with the Opposition on this issue. I sincerely hope that the Minister gives a similar promise to consider the public interest defence, not just because of what we say here but because of the wide interest and concern about the importance of this expressed across the nation. The incorporation of the public interest defence in the Bill would address many of the concerns that these Benches and others have expressed about the dangers to personal liberty in this legislation. I therefore beg to move.

--- Later in debate ---

[Lord Faulks (Non-Afl)]

My Lords, I have very little to add to that brilliant exposition of the difficulties with this amendment. As I said in relation to a previous amendment, I am of course very concerned with any threat to public interest journalism, and therefore I have some initial sympathy with the idea of a public interest defence. But I am afraid that, the more I looked at it and thought about it, the more I was convinced that this was not the answer. As the noble Baroness, Lady Manningham-Buller, pointed out so cogently, Article 10 is not an issue here. Article 10 has always been a qualified right. There is no violation of the convention by the absence of a public interest defence.

I am particularly concerned about proposed new subsection (2). It seems to me that what is contemplated is that, if a defendant raises some prima facie case that they disagree with government policy, or whatever their general justification is for being in breach of one of the very serious offences to which this would apply, the prosecution will have to prove that the conduct was not in the public interest. It is difficult to know how that can be done without potentially disclosing matters that, in the interests of national security, it might be most unwise to disclose. In fact, it might even result in the prosecution not going ahead because the prosecution might take the view that it would be too damaging to disclose this. That itself would not be in the public interest in appropriate cases.

I echo what the noble Lord, Lord Carlile, said. A jury would be given a complex direction in writing. I can then only anticipate—I have had this experience myself, but not in this sort of case—that the jurors, who may be bewildered by a direction such as this, would ask a series of supplementary questions. What is meant by this? How do we respond to this? What if we agree with the defendant but do not think this? Et cetera, et cetera. It is difficult to conceive of this being a very satisfactory procedure, or indeed in the public interest.

So, although I sympathise with what lies behind this, I am concerned that the Bill could be altered more satisfactorily to protect journalists and whistleblowers. I am afraid that this is not the answer.

[Lord Coaker (Lab)]

My Lords, I rise to speak primarily to my diffident amendment, which is none the less an important one. I agree with much of what the noble Lord, Lord Marks, said and what he seeks to achieve in his amendment. As he said, it is based very much on what Kevan Jones MP said on new Clause 5 in the debate in the other place.

I am going to leave to one side the notes I had written for this, because it is such an important debate and discussion. The amendment I put down was just a probing amendment to see that it was debated, but now I can see the sense of it, because in the remaining time for the Bill we will not have the opportunity for hours of debate about what a public interest defence should or should not be. But it is not going to go away.

As the noble Baroness, Lady Manningham-Buller, eloquently told us—supported by the noble Lord, Lord Faulks, and others—there is a view that a public interest defence, if you are not careful, will compromise national security in the ways that were outlined. We cannot ignore that, but neither can we ignore the fact that many respected organisations fundamentally believe that the Bill as drafted will both cause a problem with respect to those who wish to act as investigative journalists, which none of us would wish to see compromised—I know that this will be debated later on the amendment on whistleblowing from the noble Baroness, Lady Kramer —and prevent somebody who works in a service exposing serious wrongdoing. The wrongdoing going on might be so serious that, on reflection, we would be pleased that they had brought it to the public’s attention. There is a real conflict here between those two points of view.

Nobody wishes to compromise national security or to curtail the opportunity for people to reveal things which are in the public’s interest. But having put a probing amendment down, it seems that my amendment is one way to try to wrestle with this problem in slower time, while we reflect on how we bring all this together. As I say, we cannot just dismiss all the institutions and organisations, including very respected people, who want a public interest defence. They include the Law Commission and many others such as Mishcon de Reya, who have sent us all a really informative argument for why there should be a public interest defence. They have pointed to various cases, some historic and some not so historic, to give examples of where a public interest defence may have helped.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I thank noble Lords for a very interesting debate on a topic of considerable public importance. These amendments concern the introduction of a public interest defence to the offences in the Bill. Amendment 75 adds a PID to Clauses 1 to 5. I am very grateful to those who have contributed to this short debate, including the noble Baroness, Lady Manningham-Buller, and the noble Lords, Lord Carlile and Lord Faulks, with whom I find myself in agreement, particularly on their concerns about the practical consequences of this amendment, as well as on the concerns raised by the noble Lord, Lord Marks, on the application of Article 10 of the European convention. I therefore greatly welcome the display of expertise from all sides of the House.

It would be helpful for me to start by talking briefly about the genesis of these offences and the interaction with the Law Commission recommendation for a public interest defence. In this amendment, there is a significant risk of conflating the various Official Secrets Acts, so I will take a little time to clarify those Acts, because it is vital that we are precise in this context. Four Official Secrets Acts are in force: the 1911, 1920 and 1939 Acts, which deal with espionage, and the 1989 Act, which deals with unauthorised disclosures, often described as leaks.

The Law Commission, in its 2020 report, considered all four Official Secrets Acts. Starting with the 1989 Act, the Law Commission recommended the inclusion of a public interest defence, not in isolation but rather as part of a package of reforms to that Act. It is important to stress that the Bill does not seek to reform the 1989 Act, which remains in place as the relevant legislation to govern unauthorised disclosures of specified material; for example, in relation to security and intelligence, defence or international relations. For that reason, I can answer the very fair question from the noble Lord, Lord Coaker, as to whether this was a relevant or irrelevant issue with the clear indication that it is not relevant to this amendment. When asked about the omission of the reform of the 1989 Act from the Bill, the Law Commission made clear, in its oral evidence to the Commons committee for the Bill, that it did not expect one single piece of legislation to address all aspects of its report.

I turn to the 1911 to 1939 Acts, which this Bill replaces. The Law Commission made a number of recommendations with respect to reform of those espionage laws, but crucially did not recommend the inclusion of a public interest offence. Again, during its oral evidence to the Committee for this Bill in the other place, the Law Commission was clear that, in its view, the requirements of the offences take them outside the realm of leaks and into the realm of espionage. It is worth also noting, as the noble Baroness, Lady Manningham-Buller, correctly observed to the Committee, that within the security services themselves there are elaborate whistleblowing mechanisms already in place for the declaration of unlawfulness, as she has already outlined.

Let me put it very clearly on record that the offences in Clauses 1 to 5 of this Bill are not intended to have a chilling effect on legitimate whistleblowing. As I have said, the Committee has this evening already heard first-hand of experience of the mechanisms in respect of whistleblowing in the security services. The provisions in this Bill are about espionage, and I am sure that the Committee would strongly agree that espionage against the United Kingdom can never be in the public interest, although I appreciate that that is not what noble Lords are implying by tabling this amendment.

I am pleased to confirm that the Government are, of course, willing to continue to discuss the proper protections for legitimate activity, as the Committee has expressed and the noble Lord, Lord Purvis, in particular, has requested. The noble Lord, Lord Coaker, asked for further details on the Government’s efforts to keep whistleblowing guidance under continuing review, and I can confirm that that work is ongoing. No doubt it can be discussed further, in a similar way.

[Lord Coaker (Lab)]

I am sorry to interrupt, but just on the point about the guidance, where the Minister has confirmed that the Government are undertaking work to update it, what is the process and the timeline for that?

[Lord Murray of Blidworth (Con)]

I am afraid that I am unaware of the precise timeline—I will find out. If the matter is not discussed in relation to the Kramer amendment, obviously I shall write to the noble Lord in respect of it.

I turn to the offences themselves, and the aspects that we consider move them away from capturing legitimate activity. For the Clause 1 offence of obtaining or disclosing protected information, the activity has to be for a purpose prejudicial to the safety or interests of the United Kingdom. It is right that we are able to prosecute disclosures of protected information when it is clear that a person intended to harm the UK and was working for or on behalf of, or with the intention to benefit, a foreign power. Legitimate whistleblowing would not meet all the requirements of this offence.

The Clause 2 offence of obtaining or disclosing trade secrets is designed to tackle the illicit disclosure and acquisition of sensitive commercial information amounting to a trade secret for, on behalf of, or for the benefit of a foreign power. For the offence to be committed, the activity has to be unauthorised, and the person has to know, or ought reasonably to know, that their conduct is unauthorised. Someone who disclosed information in the course of using lawful and appropriate whistleblowing routes would not be conducting unauthorised activity.

The Clause 3 offence criminalises assisting foreign intelligence services. The offence can be committed in one of two ways: either by conduct of any kind that a person intends will materially assist a foreign intelligence service, or by conduct that it is reasonably possible may materially assist a foreign intelligence service and where the person knows, or ought reasonably to know, that that is the case. The material assistance must be material assistance in carrying out UK-related activities. The expression “UK-related activities” means activities taking place either inside the United Kingdom, or those taking place outside the United Kingdom which are prejudicial to the safety or interests of the United Kingdom. Legitimate whistleblowing activity should not meet the threshold for an offence under Clause 3, such as intending to materially assist a foreign intelligence service in carrying out covert operations in the United Kingdom.

I move on to the offences in Clauses 4 and 5, which criminalise harmful activity in and around prohibited places. It is right that we are able to prosecute relevant activity around the United Kingdom’s most sensitive sites where it is clear that such activity has been carried out to harm the United Kingdom. Activity carried out to harm the United Kingdom in this way cannot be in the public interest.

National Security Bill

Lord Coaker Excerpts

Committee stage
Monday 16th January 2023 Lords Chamber

[Lord Coaker (Lab)]

My Lords, Amendments 76, 77, 78 and 79, in the name of the noble Baroness, Lady Ludford, enable us to discuss the state threats prevention and investigation measures. As she outlined, Amendment 76 seeks to set a 14-hour limit on the time that someone subject to such a measure has to remain in their residence. Amendment 77 would require the Secretary of State to receive confirmation from the police that prosecution is not realistic, rather than requiring only consultation before a measure is imposed, as outlined in Clause 44(1). These are simple but important amendments, as the noble Baroness, Lady Ludford, outlined, and the Government need to respond to them logically, particularly as they are recommended by the JCHR. In Committee last time, we all referred to the importance of the JCHR recommendations that come before us. It is particularly important that questions such as these are asked because, although we accept that STPIMs are a useful tool to have available, they impose intrusive restrictions on an individual, outside the criminal justice process, as civil measures.

In view of Amendment 76, if there is no time limit, what is acceptable? Are 20 or 21 hours acceptable? As the noble Baroness, Lady Ludford, pointed out, these are essentially curfews on an individual. Although they may be justified—no one is questioning the fact that sometimes they may be necessary—some thought from the Government about what we actually mean by the imposition of time limits or curfews on an individual, and how that might be arrived at, is important. Secondly, should we not always seek to prosecute, as Amendment 77 seeks to do? The police confirming that it is not possible is a real protection, while not compromising national security; again, that is the aim of all of us.

On the more general question of STPIMS, legal aid will be available to individuals but, if they are to challenge effectively, will individuals subject to such an order be fully aware of the reasons why it has been imposed and able to challenge the imposition of such measures? Who will oversee the use of these powers? Can the Minister reassure us that, in making such a decision on application by the Secretary of State, the courts will be given all the information that they need to properly inform their decision, and that they will not be used arbitrarily, out of frustration that a criminal prosecution cannot be pursued? That was a really important point from the noble Baroness, Lady Ludford: this is not a substitute for prosecution but something to be used where, for whatever reason, it is simply not available. But we need some reassurance that criminal prosecution will always be pursued as the first option.

We accept that there is a potential need for such measures, but, given their civil nature and the very real impacts on the liberties of individuals, even if necessary for national security reasons, they demand of us the need to be ever more vigilant when it comes to freedoms and human rights within a democracy. Like the noble Baroness, Lady Ludford, I look forward to the Minister’s response.

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

My Lords, I will first address Amendments 77, 78 and 79. These amendments would create a requirement on the Secretary of State to receive confirmation from the police that there is no realistic chance of prosecuting an individual before imposing a state threats prevention and investigation measure—an STPIM—on an individual under Part 2. It is our view that the current drafting would already achieve that aim. STPIMs are a tool of last resort in cases where prosecution is not possible. It is always the Government’s preference and priority to seek a prosecution against those engaged in foreign power threat activity, and where we can prosecute, we will.

Clause 44 reflects our commitment to prosecution and requires prior consultation with the police, before the imposition of a STPIM notice, in relation to

“whether there is evidence available that could realistically be used for the purposes of prosecuting the individual for an offence”

relating to state threats. The police must consult the relevant prosecuting authority before responding to the Secretary of State. The requirement to consult mirrors that in terrorism prevention and investigation measures—TPIMs—to which the noble Baroness, Lady Ludford, referred. Our experience of the TPIM regime is that, wherever it is apparent in the consultation that there is evidence available that means that a prosecution is feasible, such a prosecution is pursued over the imposition of a TPIM. We expect the same principle to apply in the STPIM context. I hope that that addresses some of the points raised by the noble Lord, Lord Coaker.

Furthermore, as set out in Clause 44(5), while an STPIM is in force, the police must ensure that the investigation of the relevant individual’s conduct is kept under review, consulting the prosecuting authority with a view to pursuing a prosecution if possible. Consultation is all about exploring whether there is available evidence that could realistically be used to prosecute an individual. However, the proposed amendments require the police to confirm that there is no available evidence. Changing the threshold in that way would mean that, in the event that there is limited evidence, but not enough feasibly to prosecute, we would limit our ability to use the STPIM as an alternative measure to protect the UK against individuals involved in state threats activity.

Although I understand the concerns raised by the noble Baroness, Lady Ludford, the consultation is meaningful. In each case where an STPIM is in force, the prospect of prosecuting that individual will be kept under review by the police, consulting the prosecuting authorities as necessary. The outcome of that review will be reported by the police to the Home Secretary, in accordance with their statutory duty. In some sense, that answers the point about oversight raised by the noble Lord, Lord Coaker. Where a prosecution is possible, that will be the action undertaken, rather than the imposition of an STPIM. As I have said already, if we can prosecute, we will.

I turn now to Amendment 76, which seeks to place a maximum limit of 14 hours on the number of hours an individual can be required by the Secretary of State to remain in their residence under the residence measure. It is important to note that, in each STPIM case, the facts will be different, and the specific measures will be decided on a case-by-case basis. Flexibility is therefore key to ensure that the most appropriate suite of measures can be imposed. Protection against interference with the rights of individuals under Article 5 of the European convention, as was referred to by the noble Baroness, is already provided for under the residence measure. Condition D, which must be met to impose an STPIM, outlines that the Secretary of State must reasonably consider that the individual measures applied are necessary to prevent or restrict the individual’s involvement in foreign power threat activity. That covers not just the imposition of the measure but the exact terms of the measure. In the case of the residence measure, that would include the number of hours an individual must reside in their residence. I hope I have therefore addressed the point raised by the noble Lord, Lord Coaker, in relation to the time requirement.

In addition, the court must agree at both the permission hearing and the review hearing to the number of hours, set by the Secretary of State, that the individual must remain in their residence—thus providing a good measure of accountability for the number of hours provided for in the order. The number of hours a person must stay at home will therefore be determined by the facts of the individual case. It is also worth noting that the individual subject to a notice has the right to apply for a variation of measures imposed both in the short term—for example, if there is a reason why they need to be out at different times on a particular day—and generally in the long term.

The noble Lord, Lord Coaker, asked who would oversee the imposition of the measures in this regime. Under Clause 54, there will be an independent reviewer of STPIMs, in the same way that there is a reviewer for TPIMs under the other terrorism legislation.

On whether the individual will know what they are accused of doing, they will have access to special advocates who will be able to access the sensitive information in a manner similar to that for TPIMs. The special advocates will have access to the sensitive information that builds the case against the individual and justifies the measure. There will also be a duty on the Government to share the information, as far as reasonably possible, with the individual themselves. With all these points in mind, the Government cannot accept these amendments and I invite the noble Baroness to withdraw Amendment 76.

National Security Bill

Lord Coaker Excerpts

Committee stage
Wednesday 18th January 2023 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, we are being asked to approve something that relates to regulations that we have not seen, and we would ask the Government to review the way in which they are approaching the passage of this part of the Bill. We need to see not just draft practice or draft regulations but the regulations themselves.

The way in which this part of the Bill has been generated—and I do not want to repeat a discussion that we had two days ago—means that there is a great deal of uncertainty about what is intended. I hope that the flexibility that was indicated by Ministers on Monday will be extended to how such information is disseminated. I hope that we will get an undertaking that, before Report, and not on the day that Report begins, we will see the regulations and other documents that will indicate the architecture and detail of whatever parts of FIRS are going to be retained.

[Lord Coaker (Lab)]

My Lords, I agree with what the noble Lord, Lord Carlile, has just said, and I shall say a bit about it myself, in a few remarks on the government amendment. As the Minister said, the amendment clarifies the power in Clause 77(1)(b) and deals with the publication and disclosure of information provided by the Secretary of State under Part 3 on registration. Can the Minister say a little about what is not to be published? As the noble Lord, Lord Carlile, has just pointed out to the Committee, all this is to be done by regulations—and, I emphasise, done by regulations under the negative procedure.

Information provided by the Minister about foreign activity arrangements and foreign influence arrangements could, as the DPRRC said, be both politically and commercially sensitive. There will also be practical matters of significant political interest around these matters, given their relationship to national security. What sort of thinking is going on about what may or may not be published? Will those whose information is to be published be told in advance of publication and have any right of appeal? Again, as the noble Lord, Lord Carlile, said, why should Parliament not be able to have a more direct say in what sort of information should be published? That point was made by the DPRRC, which called for these regulations to be made, at the very least, under the affirmative procedure, to give at least some degree of scrutiny for this Parliament. I ask the Minister again to reflect on why negative procedure is being used for these regulations and not, at the very least, affirmative.

[Lord Murray of Blidworth (Con)]

I thank both noble Lords for those contributions. I can, of course, reassure the noble Lord, Lord Carlile, who will be aware that my noble friend Lord Sharpe committed in this House that a policy statement would be published ahead of Report.

On the points raised by the noble Lord, Lord Coaker, clearly the drafting of the regulations will necessarily follow the shape of the scheme, which is reflected in the final version of the statute. Therefore, it would not be appropriate at this stage to have draft regulations to consider. As to the appropriate method by which the regulations should be approved, it is the Government’s view that the negative procedure is appropriate for these minor and technical regulations, given what they do to enable the disclosure of information provided to the department in accordance with the scheme.

Therefore, for all those reasons, we submit that this is a minor and technical amendment that simply clarifies the purpose of the power, and that it is intended specifically to enable the Secretary of State to make provision through regulations for the onward disclosure of information registered under FIRS, and I therefore ask the Committee to support this amendment.

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[Lord Murray of Blidworth (Con)]

I note the noble Lord’s views on the topic, but we are where we are. Obviously, the department will take away what he says and endeavour to meet his reasonable request.

[Lord Coaker (Lab)]

I say to the Minister, before he sits down, that in view of what the noble Lords, Lord Pannick and Lord Carlile, have said, it is not satisfactory. We do not have a policy statement, we cannot see the regulations and, when the regulations are passed, the Government will pass them through the negative procedure. I would have thought, at the very least, given the worries and concerns that have been raised, that the affirmative procedure, as the Delegated Powers Committee said, in these circumstances in particular, might be something the Government would consider. I ask the Minister to reflect on that.

[Lord Wallace of Saltaire (LD)]

I hope the Minister will agree to draw the attention of his department to the debate held in this House last week on delegated legislation and to the very strong sense across the whole House, including on his Benches, that this House is meeting a Government who give us less and less information about regulations and prefer to leave more and more out of Bills so that Ministers may act as they are. This is an abuse of Parliament and should not be pursued further. That message is particularly important for a Bill such as this, and the Government should consider it.

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[Lord Faulks (Non-Afl)]

My Lords, I add a couple of queries which I hope that the Minister can help with.

Clause 83(5) provides that:

“Where the court would award damages … of a particular amount, the court must decide whether, in light of its consideration of the national security factors, it is appropriate for it to reduce the amount of damages (including to nil).”


How is a judge supposed to decide whether it is appropriate? The national security factors are listed but perhaps, by way of an example, some illustration can be given to the Committee to help us understand what this legislation has in mind. Incidentally, I note at Clause 83(7)(b) the various other defences in common law to which the noble Lord, Lord Marks, referred—that is, ex turpi, volenti and contributory negligence—are reserved anyway. The question is whether anything further is needed. An explanation of why these provisions are needed would certainly help the Committee.

[Lord Coaker (Lab)]

My Lords, I thank the noble Lords who have spoken. I very much appreciated the introduction by the noble Lord, Lord Marks. It was very carefully explained and helpful to the Committee. The only thing that I will disappoint him with is that, having heard his Latin pronunciation, I have decided that mine is not as good and so will leave it out.

Some of my remarks will be more general but none the less will ask the Government for justification—with respect to the clause stand-part debates rather than the individual amendments. The noble Lord, Lord Faulks, is absolutely right to ask what the court should take into consideration when determining what the level of damages should be, if it is to reduce them, even down to nil. The Minister in the other place talked about care costs. That is my point. It would be interesting to know what the Government’s thinking is. My remarks are mostly not as specific as those of the noble Lords, Lord Marks and Lord Pannick, but raise some of the more general points that the Government need to justify these clauses and to clarify why we must agree them in their current form. I am very grateful to my noble friend Lord Hacking, whose stake in the ground gives me hope for the future and makes me realise that I am not alone when I stand here. I appreciate his support.

Amendment 105A, moved very ably by the noble Lord, Lord Marks, raised a number of important concerns around the provision—or reduction in provision—of damages in national security cases, including, as the amendment probes, whether a public body could avoid accountability by categorising proceedings as national security. As I said, I want to address the clause stand parts but also Schedule 15, to get some clarity around the Government’s thinking.

Before anybody reading this in Hansard categorises it in a way that it should not be categorised, I make it clear that none of us in this Committee or indeed in this Parliament wishes to see damages used to finance terrorism or in any way to allow individuals or groups to benefit from them. That is the motivation behind Clause 83 and one that none of us could disagree with. However, it is important to consider how we do that. As the noble Lord, Lord Pannick, said, it is particularly important for us to do this because many people read our proceedings and so it is important that they understand the debate. The Explanatory Notes point out in stark terms, and more clearly than the Bill does, that:

“Clause 83(1) provides that the duty applies where the liability of the Crown has been established”.


The JCHR report uses even more strident language. It says this applies where the Crown, Government or state—whichever you want to call it—has been proven in court to have “acted unlawfully”. We are talking about a situation in which damages are reduced in cases where the guilt of the Crown has been proven. That is no doubt why many of us will tread carefully in this area: the state has been proven guilty and we are passing legislation that would enable the Government to further reduce damages. This is difficult territory but, with respect to terrorism and damages, it is none the less territory that we need to go to. It is true that certain human rights cases are excluded—those brought under Section 7(1)(a) of the Human Rights Act 1998—but other cases are not. As I have said, even where the court has established that the state is in the wrong and the state has been found guilty of wrongdoing with respect to an individual, and the clause applies, the state can seek to reduce those damages.

How can the Government reassure the Committee that this clause cannot be used to allow the state to avoid accountability? As I have said, of course public money should not be used to fund terrorism via the damages awarded but, as the noble Lord, Lord Marks, pointed out, the clauses seem to be drawn so broadly that potentially deserving victims may be excluded. How will the Government avoid that and ensure that the limitation of damages applies only to those who have committed wrongdoing involving terrorism, which I understand to be the point and purpose of the amendment of the noble Lord, Lord Marks, and the amendments of others?

We do not wish to see innocent bystanders caught up in a terrible situation to be excluded, but the current drafting of these clauses at the very least implies that, if there is any evidence related to any unspecified national security or intelligence services issue, the damages could be reduced or taken away completely. The Law Commission points out that this could lead to the state introducing national security evidence to avoid paying damages under the provisions of the Bill laid out in Clause 82(2)(a). Can the Minister detail for the Committee why these provisions are necessary? What additional powers do they make available to a court? Can a court not already take into account whether a claimant is deserving or not and whether there are concerns about the potential misuse of any such moneys or damages awarded to them? A point raised in the other place is that this must not be a slippery slope. Could the requirement to reduce damages from terrorism, because of our obvious horror, ever be extended to other areas where we are also horrified—for example, paedophile cases?

I have other points and questions for the Minister on Schedule 15 and other clauses in this group. Are these provisions based on experience from some existing cases, where the Government think this has happened and needs to be stopped, or are they being introduced in anticipation of it happening in the future? If they are not based on existing cases, what are the limitations of the existing legislation, on which the Government have evidence that they can present to the Committee to show why we need this new legislation?

In the other place, for example, the Government were asked what the problem is with existing legislation related to the financing of terrorism. We already have legislation that deals with reducing or removing damages that are used to finance terrorism. I think the noble Lord, Lord Pannick, also made that point, unless I misunderstood.

The freezing orders under Schedule 15 are possible for two years and can be renewed for a further period, before leading to potential forfeiture. Can the Minister explain what the term “real risk” means, for example in paragraph 1(4) of Schedule 15? If it is a standard of proof, as real risk is in the future, how will the court determine it? Will the court require actual proof to allow freezing orders to be made, or will it make a subjective judgment about something that may happen, the real risk that may occur, in the future?

National Security Bill

Lord Coaker Excerpts

Committee stage
Wednesday 18th January 2023 Lords Chamber

[Lord Wallace of Saltaire (LD)]

My Lords, my name is on Amendment 113, and I commend the intentions of the amendments put down by colleagues on the Labour Benches.

What we are talking about here is how we alert the public to the nature of the threat. The Security Minister in the Commons indeed said that one of his greatest concerns in approaching this Bill was to make the public aware of the threats which we face. In the Minister’s absence, one of his colleagues on the Bench, the noble and learned Lord, Lord Bellamy, said that the overriding purpose of several clauses in the Bill is to convey a message. He said that this is above all a declaratory Bill, rather than a Bill which actually intends to do things, but these amendments are about the Government failing to send a message and, indeed, preferring not to talk about some of the threats which we face. After all, the Bill should alert us not only to the nature of the threats but to where those threats are most likely to come from. I note that the Minister said very little about Russia and not that much about China, North Korea or Iran but did his best to defend the idea that what we regard as friendly foreign powers should be included in our potential concept of threats, as if the message of this Bill should be “Beware of foreigners, particularly those associated with Governments whether democratic or not”. I hope that is not the intention of the Bill, but that is what it looks like at present.

The ISC report states very clearly that there are a number of threats—of course it is concerned with Russia —and that

“it is … the Committee’s view that the UK Intelligence Community should produce an … assessment of potential Russian interference in the EU referendum and that an unclassified summary of it be published”.

The Government have refused to do that, and the only statement in their response about why not is that they have received no evidence of successful interference in British politics, which means that they are aware of a whole range of attempts to interfere in British politics. It might be quite helpful to inform political parties and the public about what those could be.

The Government’s July 2020 response to the ISC’s Russia report is very interesting in a range of ways. It has a section which it entitles

“Defending UK Democracy from Foreign Interference”


and flags up the new defending democracy programme, which was established in 2020, about which, so far, Parliament has been told remarkably little. The Security Minister made a speech about it some weeks ago which was not that much more informative, but he assured us that the defending democracy task force had held its first meeting in November last year, two years after July 2020. I think it would be helpful in informing and alerting the public if we were all told a little more about the defending democracy programme and the defending democracy task force.

The Government’s response goes on to state:

“The Committee will also be aware that … the Government has concluded that it is almost certain that Russian actors sought to interfere in the 2019 General Election.”


The public were not told about that very much either. We all understand that this is mainly because the interference was towards the Conservative Party and the Conservative Party has many links with Russia, Conservative Friends of Russia and so on, which it prefers not to spell out, which may be partly why we are talking about so many other different countries. We remember Boris Johnson’s attempt as Prime Minister to hobble the Intelligence and Security Committee. Thankfully, that has now passed, but the issue of foreign interference in UK politics and public life is an important part of what we are focusing on and should receive more attention.

I have on a number of occasions in recent years argued for a proper review of the golden visa scheme—the tier 1 investor scheme. The Government finally closed it last year and promised to conduct a review. Instead of publishing that review, we had a Written Statement on 12 January 2023 with which the Minister will be familiar because the Statement to this House is in his name. It has no reference to national security risks under this programme. It talks entirely about illicit finance and criminal effects, and in a short two pages it says really very little about the problem as a whole. It states:

“The route attracted a disproportionate number of applicants from the countries identified in the UK’s National Risk Assessment of money laundering and terrorist financing 2020 as particularly relevant to the cross-border money laundering risks faced and posed by the UK.”


The Statement does not say, as the Wikipedia entry on Ben Elliot says, that Ben Elliot raised £2 million in and around the 2019 general election from Russians resident in Britain who were close to the Putin regime. That is something which ought to concern us and about which the Government certainly ought to have been a great deal more concerned. The ISC Russia report indeed talks about the growth of a community of “enablers” in London to service the Russians who had penetrated British political and public life. Ben Elliot’s company, Quintessentially, was one of the leading aspects of this and declared that it specialised in servicing Russian clients.

I stress this not simply to raise a particular name but, after all, he was co-chairman of the Conservative Party—with James Cleverly, the current Foreign Secretary—for 18 months, so we are getting fairly close in to influence and interference here with someone who was described as the Tories’ main fundraiser. Much of this was informal, of course, but the Bill talks a great deal about informal arrangements.

These amendments ask for proper information to Parliament, a stronger role for the Intelligence and Security Committee—which the last Prime Minister but one attempted so ignobly to cut down—and the publication of the review of the golden visa scheme so that we can understand just how far these people penetrated into British public and political life. I remind the Minister that the ISC Russia report says at one point that the penetration of rich Russians into British society and public life had gone so far that it was difficult to disentangle and that we now had to be concerned to mitigate those risks rather than to remove them.

All that the Government say on illicit finance and money laundering in their response to the ISC Russia report is:

“The Government agrees that the transparency of information about political donations is important.”


They then go on to talk about links to Members of the House of Lords. They say nothing about the duties of political parties to ensure that they know where they are getting donations from. No doubt we will come back to this before and during Report.

There are a number of holes in what needs to be done in the Bill to make sure that we strengthen our national security against foreign interference. I trust that the Minister will have some good answers and will come back to us off the Floor to discuss some of these concerns further.

[Lord Coaker (Lab)]

My Lords, I will speak primarily to my Amendment 120A but I thank the noble Lord, Lord Purvis, for his Amendment 112, signed by the noble Baroness, Lady Smith, which raises some extremely important points around the Russia report published by the ISC in 2020 and the frustration that many of its recommendations either have not been implemented yet or simply will not be implemented by the Government. It would be helpful for the Committee and for us all to know the Government’s intention with respect to all that. As the noble Lords, Lord Purvis and Lord Wallace, said, many important points were raised and it would be interesting to see the Government’s view on that. With respect to the noble Lord, Lord Wallace, and Amendment 113, some very important points were made about tier 1 visas, where all that has got to and what progress we have made.

Amendment 116 from my noble friend Lord Ponsonby, which has been referred to in passing by other Members of the Committee, deals with reporting on disinformation originating from foreign powers. I think it was the noble Lord, Lord Wallace, who referred to the issue of how far this country is witnessing attacks from foreign powers that wish to pollute and infect our system, whether businesses or our electoral system. It would be interesting for us to know the extent of that and what the Government are doing about it—as far as the Minister can say within the constraints of this.

It is a question worth asking, because one of the things I think the public want to know is who is responsible for co-ordinating the activity across government to ensure that our country is protected. Is it MI5? Is it GCHQ? Is it the various security parts of different departments? Who brings all that together? I think it is legitimate and does not compromise national security in any way to ask who is responsible for that. How is the activity co-ordinated between a national level, a regional level and a local level? The integrity of all our databases requires action not only in Westminster but in a rural village in the middle of nowhere. Those are legitimate questions, and I think the public would like to know about that.

What is the Government’s view of how far they can inform the public of the threat, in so far as the public can then help with respect to maintaining their own security and, by doing so, that of our country? That was the purpose of Amendment 116. It is obviously a probing amendment, but it seeks to understand something about the scale of the threat we are facing regarding this information and what can be done about it.

My Amendment 120A—which I should say at the outset is supported by my noble friend Lord West, who for personal reasons is unable to be with us, and, as I understand it, by the ISC—would require the Government to revise the memorandum of understanding between the Prime Minister and the Intelligence and Security Committee to reflect any changes to the intelligence and security activities undertaken by the Government as a result of this Bill. In other words, it seeks to update the ISC’s remit to ensure that it has the power to effectively scrutinise intelligence and security activity that will be taking place across government under this new national security regime.

Alongside the Justice and Security Act 2013, the ISC’s Mo outlines, among other areas, the ISC’s remit and the organisations that it oversees. This includes the expenditure administration policy on operations of the agencies, as well as several organisations that form part of the intelligence community. The Bill modernises the offence of espionage and creates a suite of new tools for the intelligence community and law enforcement to defend the UK against state threats.

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[Lord Sharpe of Epsom (Con)]

My Lords, with the greatest respect, this is a different Government and we have moved on. The ISC very much has the respect of certainly this part of the Government. If I may say so, I have answered the principal question that was being asked: the Prime Minister will indeed consider the proposed changes in due course.

[Lord Coaker (Lab)]

I understand that the Minister is saying that the Prime Minister will review it, but does he agree with me that it would help if the Prime Minister actually met the ISC? The Intelligence and Security Committee annual report states:

“Since its establishment in 1994, and for 20 years thereafter, the Committee met annually with the Prime Minister to discuss its work, report on key issues … However, the Committee has not had a meeting with a Prime Minister since December 2014. In the previous Annual Report, we stated that we would seek a meeting with the Prime Minister this year; unfortunately, despite requests for suitable dates, we are yet to receive a response from the Prime Minister. The Committee urges the Prime Minister to meet with it as a priority.”


May I ask the Minister to take that message to the Prime Minister? If he is looking at reviewing the MoU in due course, it might help him to meet with the committee.

[Lord Sharpe of Epsom (Con)]

The noble Lord makes a very fair point. I will certainly make sure that that message is conveyed. As I have said, the Government do not think it would be appropriate at this point to mandate the Prime Minister to update the MoU as proposed, therefore we cannot support this amendment.

I now turn to Amendment 113. The Committee will be aware that the Government committed to a review of visas issued under the route between 2008 and 2015. The Home Secretary made a Written Ministerial Statement on 12 January setting out the findings of that review, including that the review had identified a minority of individuals connected to the tier 1 investor visa route who were potentially at high risk of having obtained wealth through corruption or other illicit financial activity and/or being engaged in serious and organised crime. The Government have set out the findings of the review of the operation of this route and acted to close it. I think it was in February 2022. I therefore submit that the amendment is not necessary.

I note that the noble Lord, Lord Wallace, was selectively quoting back to me various aspects of the WMS. I might selectively quote back to him—I suppose I am quoting myself here. I also said:

“Given the importance of ensuring the independence of the law enforcement process I am unable to say more on the operationally sensitive work being taken forward in this area. Whilst unable to comment specifically due to operational sensitivity of work - as an example of the range of actions we are taking I can say that we have already sanctioned 10 oligarchs who had previously used this route as part of our extensive response to Russian aggression in the Ukraine.”


I think that gives answers as to why we have perhaps not commented in the detail the noble Lord would like.

The noble Lord, Lord Wallace, has also accused me of not talking enough about certain states and talking too much about our allies. He, I think, suggests that this is for party-political reasons. I am disappointed that the noble Lord, Lord Wallace, would think so little of the Government Front Bench in this House. I gently remind him that, when I am talking about our allies, I am usually responding to questions he has asked me.

I say to the noble Lord, Lord Purvis, that I am afraid I do not have all the stats he asked for about Russian money, but I will endeavour to find them. I do not know if they sit within the Home Office, but I will find out where they are, and I will happily write to him.

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[Lord Purvis of Tweed (LD)]

My Lords, I am grateful for the Minister’s thorough reply, notwithstanding some of his responses, which he prefaced by saying that he knew they would disappoint the noble Lord, Lord Coaker.

[Lord Coaker (Lab)]

There’s nothing new there. I am joking.

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Moved by

[Lord Coaker]

119: After Clause 89, insert the following new Clause—
“Assessment of interaction with the Official Secrets Act 1989The Secretary of State must publish an assessment of how this Act relates to the Official Secrets Act 1989.”Member’s explanatory statement
This amendment intends to probe to what extent the Bill furthers the government’s objective to update the Official Secrets Act 1989.

[Lord Coaker (Lab)]

I will not keep noble Lords too long on this amendment. There are a couple of points I wish to make and a couple of questions to ask. I say at the outset that Amendment 119 is a probing amendment, obviously, but it allows us to discuss reform, or not, of the Official Secrets Act 1989. As we know, this National Security Bill does not deal with that, but earlier Official Secrets Acts of 1911, 1920 and 1939, which deal with espionage. In that sense, this Bill represents a missed opportunity and leaves many unanswered questions which simply cannot be ignored, questions which Amendment 120 in the name of the noble Baroness, Lady Kramer, setting up an office of the national security whistleblower, also seeks to address.

In the Government’s consultation document for the state threats legislation reforms, it is clear that changes to the Official Secrets Act 1989 appear to be on their way. Is it correct that they will reform the Official Secrets Act 1989 as soon as possible? If they will, can the Minister give any indication of what “as soon as possible” might mean—other than “as soon as possible”?

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[Lord Murray of Blidworth (Con)]

Indeed, the Law Commission made a recommendation about a potential reform to the 1989 Act. As I have already said, that is not the purpose of this Bill and will be a matter for a future reform, which will not be conducted immediately, as I already explained in answer to the point from the noble Lord, Lord Coaker. The Law Commission’s recommendation will have considerable weight but, at this stage, I cannot prejudge any government decision in relation to the 1989 Act.

In last week’s debate, the noble Lord, Lord Coaker, asked about the Government’s plans to update internal whistleblowing guidance. I can confirm that the Government regularly keep this guidance under review and, last year, they updated it to include specific reference to how to raise an issue that would require disclosure without breaching the Official Secrets Act 1989. The updated internal guidance has been shared across departments and agencies, with confirmation from all Whitehall departments that a review of their own processes and procedures has been undertaken or is planned.

Across government, organisations have also continued to undertake activities further to develop a safe and supportive culture for raising concerns. Over the last year, the majority, including all 17 Whitehall departments, have undertaken communications through awareness-raising events and campaigns, including an annual “Speak Up” campaign.

We of course understand that journalists have a specific and important role to play in holding government to account in our democratic society. We also understand that responsible journalists do not want unwittingly to put lives at risk or compromise national security. That is why we have robust processes in place which enable journalists to mitigate the harm caused when considering the publication of potentially damaging information.

For example, during the Government’s public consultation on the Bill, several media stakeholders commented on the value of the Defence and Security Media Advisory Committee—the DSMA—which alerts the media to the consequences of disclosing certain types of information and provides advice on how to mitigate damage, while leaving editors to judge whether to publish or broadcast. A number of editors already engage with this valuable process when considering the publication of sensitive information, and we encourage them, and others, to continue to do so.

The Government are committed to ensuring that these channels are safe, effective, and accessible. Accordingly, for the reasons I have just set out, the Government, with regret, cannot accept the tabled amendments and invite their withdrawal.

[Lord Coaker (Lab)]

My Lords, I will be brief, but will start by thanking the Minister for his response and all noble Lords for their contributions to this short but important debate. I am grateful to the Minister for following up on my question from last week about what was happening with the updating of guidance for people in departments across government who wish to raise concerns. But frankly, the headline from what the Minister has said is that the Government have kicked the reform of the Official Secrets Act 1989, which was never particularly on the immediate horizon, into the long grass. That is deeply disappointing because, irrespective of one’s view, the issues of the public interest defence and people being able to come forward—whistleblowers, if you want to call them that—will not go away. Reforming the Official Secrets Act would have enabled us to debate that and come up with an Act that is relevant to 2023 and beyond. As I say, it is deeply disappointing that the Minister has effectively kicked that reform into the long grass, and that is the headline from this response to the amendments. With that, I beg leave to withdraw my amendment.

Amendment 119 withdrawn.

National Security Bill

Lord Coaker Excerpts

Report stage
Wednesday 1st March 2023 Lords Chamber

[Lord Coaker (Lab)]

My Lords, I rise briefly to say that we very much support Amendment 51 in the name of the noble Lord, Lord Carlile; were he to push it to a vote, we would certainly support him in that Division.

I do not want to repeat much of what has been said by my noble friend Lady Hayter and the noble Lords, Lord Carlile, Lord Wallace, Lord Evans and Lord West. However, I think that the noble Lord, Lord Evans, was right to say that, although this is a modest amendment, its consequences are quite serious. There is no doubt that people are concerned about some of the issues that they have read about in the papers around foreign interference in elections and the funding of political parties. One of the things that we often debate in this House is confidence in our democracy and democratic system, including the threats to them and the erosion of that confidence. Sometimes, these may be small steps but they are important ones that can contribute in our trying to do all we can to protect our democracy. People are worried about foreign interference in elections and the integrity of our democratic system.

It is right to point out, as the noble Lord, Lord Evans, did, that, through this Bill, we are requiring significant steps to be taken by businesses, organisations, industry, financial services and all sorts of other bodies to ensure that they conform to certain regulations that protect our national security. It would be right for them to ask, “Why is there one rule for us but another for political parties?” It is quite right that this amendment is supported; I hope that the noble Lord, Lord Carlile, will seek to test the opinion of the House and that his amendment is supported by the majority of Members, because it is an important step in protecting the integrity of our democracy in the way that noble Lords, particularly my noble friend Lady Hayter on the Labour Benches, pointed out.

Having said that, I want to ask one practical question with respect to many of the amendments that the Government have brought forward, which, by and large, we support. I want to deal with Amendment 49, the explanatory statement for which says:

“This amendment adds to the definition of ‘political processes’ the activities of groups such as all party parliamentary groups.”


I understand the bit about all-party groups but the implication there is in “such as”. Are the Government saying that the amendment is relevant to other groups? If so, can the Minister explain that to us?

With that, as I say, I very much support Amendment 51 in the name of the noble Lord, Lord Carlile, because it is very important.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who have spoken on this group.

I will start, if I may, by addressing the question from the noble Lord, Lord West, by repeating something that I said in my opening speech; I think it goes some way to answering him. The majority of what we wish to capture in relation to interference with Parliament will be covered by the effect in Clause 14(1)(b)—the limb relating to public functions—as MPs and other officials in Parliament will be exercising their public functions. It is right that we seek to criminalise activity where, for example, somebody is acting for a foreign power and threatens violence to affect how a person exercises their public functions. I hope that answers his question.

In answer to the question from the noble Lord, Lord Coaker, about Amendment 49, let me say that he is completely right. The reference to

“the activities of an informal group”

in this amendment is, as I think noble Lords know, designed to capture interference activities in APPGs by foreign powers. We are seeking to capture interference whether or however any person participates in the activities of these informal groups. We expect that to cover MPs and people external to Parliament and government who participate in the actions of such groups, but we also envisage informal groups to include things such as “friends of” groups. The use of the term “acting in that capacity” ensures that we do not capture things such as parliamentary book clubs but instead focus on those caught, such as the 1922 Committee, although they could also be covered by the public functions limb of the test. I hope that clears this up.

I know that Amendment 51 is a duplicate of a previous amendment, now tabled by the noble Lord, Lord Carlile. The Government do not believe that this amendment is necessary, I am afraid. I was going to quote myself and say again that UK electoral law already sets out a stringent regime of controls, but I am slightly more reluctant to do so after hearing the comments from the noble Lord, Lord Evans. However, we believe that our regime ensures that only those with a genuine interest in UK elections can make political donations and that political donations are transparent.

I will go into more detail on this point, if I may, because I believe that the noble Lord’s ethical matrix is already in existence. It is already an offence to attempt to evade the rules on donations by concealing information, giving false information or knowingly being involved in an arrangement to facilitate the making of an impermissible donation. This provides a safeguard against impermissible donations via the back door. Political parties must already report all donations over a certain value to the Electoral Commission; these are then published online for public scrutiny. Political parties are by law required to undertake reasonable steps to verify whether a donor is permissible and obtain their relevant details for the reporting requirements. Donations that do not meet the permissibility tests or are unidentifiable must be reported and returned to the Electoral Commission, which also produces guidance outlining how the recipient of a donation can undertake these checks.

As I say, UK electoral law already sets out a regime of donation and spending controls to safeguard the integrity of our democratic processes, so only those with a genuine interest in UK electoral events can make political donations; they include UK-registered electors, UK-registered companies, trade unions and other UK-based entities, as well as otherwise eligible donors such as Irish citizens who meet prescribed conditions and can donate to parties in Northern Ireland. Parties and other campaigners are prohibited from accepting donations that are not from a permissible or identifiable donor. The failure to return such a donation either to the donor or, as I just described, to the Electoral Commission within 30 days of receipt is an offence; any such donations must also be reported to the Electoral Commission. The Elections Act 2022 introduced a restriction on ineligible foreign third-party campaigning above a £700 de minimis threshold.

The transparency of electoral funding is obviously a key cornerstone of the UK’s electoral system. All political parties recognise that third-party campaigners and candidates must record their election spending and report it to the Electoral Commission or their local returning officer; that information is publicly available. For transparency, all donations to political parties and campaigners must be recorded and certain donations must be reported to the Electoral Commission; as I said, these include donations from impermissible donors and donations from the same permissible source that amount to over £7,500 in one calendar year. To ensure transparency, donation reports are published online by the commission for public scrutiny.

To register as an overseas elector, a British citizen has to present ID. However, it is a long-standing principle first introduced by the Committee on Standards in Public Life in 1998 that, if you are eligible to vote for a party in an election, you are also eligible to donate to that party. We believe that overseas electors are important participants in our democracy, but it is only right that they should be able to spend in UK elections in the same way as other UK citizens registered on the electoral roll.

I think that this is a reasonably comprehensive set of rules. There may be some debate as to whether it qualifies as a stringent regime but the fact is that donations to political parties from foreign powers, whether they are made directly or through an intermediary, are illegal. Political parties already have a legal duty to check that all donations they are offered are permissible.

In closing, I very much thank noble Lords for engaging so constructively in this debate. I ask the noble Lord, Lord Carlile, not to press his amendment in this group and ask noble Lords to support the Government’s amendments.

--- Later in debate ---

[Lord Purvis of Tweed (LD)]

My Lords, I understand that our order of business has been changed today. The Government Whip did not consult our Front Bench and, for those of us who had engagements during the dinner-break business, I think it is a discourtesy not to have at least consulted the Front Benches of other parties about changing the order of business.

That said, I welcome the government’s amendments. The noble Lord, Lord Anderson, is absolutely right. The noble Baroness, Lady Manningham-Buller, had indicated her hope that there would be government amendment in this area, and I thank the Minister for listening during Committee and for bringing forward these amendments. In Committee, I went to some lengths to outline what domestic procedures are in this area. The noble Baroness, Lady Manningham-Buller, asked something I thought was rather threatening: if she could have a quiet word with me outside the Chamber during the hour for other business we had then. I am glad to say now that I will accept that and bring the Minister with me, because there may be an element of consensus on a more sensible way of dealing with concerns raised about immunity for, potentially, very serious crimes committed overseas.

I am grateful that the domestic practices will now be considered similar to extraterritorial processes, acknowledging that there have been distinct differences. My questions, to some extent, are linked with those raised by the noble Lord, Lord West, on how this will be operated. In Committee, I highlighted the Government’s Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees. I referenced the Ministry of Defence joint doctrine publications, and I highlighted the Security Service guidelines that had been released in a trial, and we now know more about them. There are a number of existing sets of guidance for the Cabinet Office, from the MoD and within the security services themselves on how, as the amendment states,

“arrangements designed to ensure that acts of a member of the service to which a provision of Schedule 4 applies are necessary”.

I would be grateful if the Minister could outline how guidance will be put together that will be for both domestic activities and now those in regard to defence under this part, whether that will be made public, and how it will interact with MoD guidance to address the similar concerns of my noble friend Lord Beith and the noble Lord, Lord West.

We know what MoD joint doctrine says regarding detainees overseas, but we do not know the principles that will apply to these new areas. Therefore, we need clarification on what they will be. I welcome the Government’s move. There needs to be further illustration of how it will be operable, and I hope the Minister will be able to provide that and give an indication of when guidance will be put together and will be published.

[Lord Coaker (Lab)]

My Lords, this is a really important debate. Government Amendment 66 is a considerable improvement on what we had before, with respect to Clause 30. We have heard from noble Lords about their belief in that and their pleasure that we now see Amendment 66 before us. As my noble friend Lord West—I will come back to him—the noble Lords, Lord Anderson and Lord Carlile, and others have mentioned, there are still questions that the Government need to answer. I very much look forward to the Minister’s response, particularly to my noble friend Lord West, who very effectively laid out the fact that although the ISC welcomes the new clause proposed by Amendment 66, there are still some important questions for the Government. It is extremely important that the Government put their answers on the record, so they are there as testimony of what the Government expect of how the new Clause 30—as it will be—will operate.

The point made by the noble Lord, Lord Anderson, about the inclusion of the Armed Forces in this deserves a proper answer from the Minister. It is good to see the Armed Forces Minister here to have heard the noble Lord.

My noble friend Lord West laid before us how we got here, the relationship between the Home Office and the ISC, and the lack of a speedy response to some of the requests, which have led to some of the difficulties we have seen. If people had attended the committee, spoken to the committee and discussed with the committee —even if some of those discussions may have been difficult—some of these problems would have been resolved. Yet we have debate in the other place, debate here, and now it is only on Report that we get to a position where we seem to be on the verge of achieving what we all want.

I go back to a point I find quite astonishing, referring to the Intelligence and Security Committee’s annual report. My noble friend Lord West pointed to the lack of Home Office response. I lay this before each and every one of you: when do noble Lords think was the last time the Prime Minister went along? Do not answer that—there is no need to shout out. It is quite astonishing to read in the annual report that, despite repeated requests, no Prime Minister has been to the Intelligence and Security Committee since 2014. That is absolutely disgraceful. The committee was set up by this Parliament to oversee intelligence and security matters and to receive intelligence at a level we cannot be briefed on—quite rightly—and, despite repeated requests, the Prime Minister has not gone. How can a Prime Minister not go to the committee set up by Parliament to discuss matters of intelligence? I find it incredible.

A few weeks ago, I asked the noble Lord, Lord Sharpe, why this has not happened. The Government say, “The Prime Minister has been very busy over the last few weeks”, and he has been; he has been not just to Belfast but to numerous other places, including Parliament, to meet various groups. Why has it not been possible to meet the Intelligence and Security Committee? This is incredibly serious.

[Lord Beith (LD)]

I put it to the noble Lord that this is not a formality. The point of the Prime Minister meeting the committee is that it can draw attention to failings or problems that it cannot publicly disclose. The only route by which those failings or problems can be brought to account is by direct contact with the Prime Minister.

[Lord Coaker (Lab)]

I could not agree more with the noble Lord, and that is why it is so incredible that no Prime Minister has discussed that with the committee since 2014. I say this in relation to my noble friend Lord West’s points about the failure of discussion and people’s failure to involve the committee at an early stage. Had that been done, we would have avoided much of the debate and controversy over Clause 30 or, now, government Amendment 66. My noble friend Lord West mentioned this on behalf of the committee, and I mentioned and highlighted yet again the failure of the Prime Minister to meet it since 2014, which is simply and utterly unacceptable. Something needs to be done about it, and the Prime Minister needs to hear this—I know that the Minister will take this forward.

This is a really serious matter. I could not believe it when I read it, and I do not believe that many noble Lords here would either, as the noble Lord, Lord Beith, reminded us. According to the report, this was a regular occurrence:

“Since its establishment in 1994, and for 20 years thereafter, the Committee met annually with the Prime Minister to discuss its work”.


But, despite repeated requests for suitable dates, we are yet to receive a response. This is unacceptable, and it is why we get the sort of situation that we had with Clause 30.

Notwithstanding that, I thank the noble Lord the Minister and the Armed Forces Minister for their engagement in bringing forward Amendment 66, which is a considerable improvement on what went before. I note the change from automatic exemption to the reasonableness defence. No doubt the Minister can address the issues and questions that my noble friend Lord West raised on proportionality and other areas. It is important that the point of the noble Lord, Lord Anderson, is also addressed. With that, we welcome Amendment 66, but we also look forward to the reassurances that my noble friend Lord West seeks on behalf of the Intelligence and Security Committee.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who spoke in this debate on Clause 30, the Serious Crime Act 2007 amendment. Before getting into the detail, I very much thank the noble Lords, Lord Beith, Lord West, Lord Ponsonby and Lord Purvis, and the noble Baroness, Lady D’Souza, for their amendments tabled in advance of today’s proceedings. I also thank the noble Lords, Lord Anderson and Lord Carlile, who have consistently shared their time and expertise with me and my team, across a range of national security matters.

I also extend my gratitude to the Intelligence and Security Committee, which recently took the time to write to the Home Office on this measure and cast a keen and critical eye, with officials, over the Government’s amendment tabled for today. I carefully noted the comments of the noble Lord, Lord West, as did my right honourable friend the Security Minister, who sat on the steps when he made them. I will obviously make sure that we reflect on that internally. I say to the noble Lord, Lord Coaker, that my noble friend the Leader of the House heard his comments, and I am sure he will reflect them back to the Prime Minister, but I am not responsible for the Prime Minister’s diary, so I cannot go further than that at this point. However, we will return to this subject in group 12, when the ISC MoU will be debated.

The Government’s shift in approach on the SCA amendment reflects our maintained commitment to ensuring that individuals working for UKIC and the Armed Forces are protected when conducting their proper activities in service to this country. The Government’s amendment replaces Clause 30 with a new clause that provides a defence for acts that are offences under Part 2 of the SCA by virtue of the extraterritorial provisions in Schedule 4. This defence would apply to those carrying out the functions of UKIC and the Armed Forces in supporting activities overseas; that is, it will be a defence for a person to show that their act was necessary for the proper exercise of a function of an intelligence service or the Armed Forces. I will shortly go into more detail on the Armed Forces, at the behest of my noble friend from the Ministry of Defence, so please bear with me.

As noble Lords will be aware, the current reasonableness defence in Section 50 of the SCA would cover encouraging or assisting crimes domestically. We believe that it is right that this new defence is limited to where UKIC and the Armed Forces are supporting activity overseas. The territorial applicability of this measure is identical to that of the original clause. This is because the acute issue caused by the SCA offences, and therefore justification for this amendment as presented to the ISC, relates to support to key international partners’ activity overseas.

The defence provides UKIC and the Armed Forces with more reassurance than the current reasonableness defence, in that the defence is based around the proper exercise of the functions of UKIC and the Armed Forces, rather than the more subjective requirement of proving “reasonableness”. We must remember that the tasks we ask these individuals to undertake, and the operational arrangements we have with our international partners, are ever more complex.

We still do not think it is appropriate that a potentially junior member of the agency or Armed Forces should be faced with the legal burden of proving that their activities were reasonable. Instead, the new defence imposes an evidential burden of proof on the individual to raise the defence. Once the defence has been raised, the legal burden would be on the prosecution to disprove it. It must be remembered that this amendment does not change the position for an individual who acts outside of those proper functions; they would remain liable for any wrongful acts. I believe that this strikes the right balance of providing appropriate protection while also having a clear route by which there can be proper legal consideration of any potential wrongdoing.

Noble Lords will now see an explicit responsibility on the heads of agencies and the Defence Council to ensure that their respective organisations have in place arrangements designed to ensure that acts of a member of their service that would otherwise be an offence under the SCA by virtue of Schedule 4 are necessary for the proper exercise of their functions. To be clear, that means that an act could not be considered within the “proper” exercise of a function of an intelligence service if it does not comply with the “arrangements” set by the relevant heads or the Defence Council.

In addition, the Government propose that there is ministerial responsibility for these arrangements; that is, the relevant Secretary of State must consider that the arrangements put in place by the heads of agencies and the Defence Council are satisfactory. Nothing in this proposed defence will change the current compliance and oversight arrangements, such as the Fulford principles and Overseas Security and Justice Assistance guidance, which is monitored by the Investigatory Powers Commissioner’s Office—

National Security Bill

Lord Coaker Excerpts

Report stage
Tuesday 7th March 2023 Lords Chamber

[Lord Sharpe of Epsom]

My Lords, Section 41 of the Terrorism Act 2000—hereafter referred to as TACT —confers a power on a police officer to arrest a person whom they reasonably suspect to be a terrorist. Under Section 41, officers are able to detain someone before charging or releasing them. The Section 41 detention clock allows them to do so for a maximum period of up to 14 days. It is possible for a person to be arrested under Section 24 of PACE then subsequently rearrested under Section 41 of TACT. This might happen, for example, when information comes to light during the investigation indicating that the offence of which the individual is accused has a terrorist connection. Under the current position, the time spent in detention under Section 24 would, in theory, not be counted towards the initial 48-hour permissible period of detention under Section 41. Though counting this time is, in fact, current operational practice, the Government are clear of the need to codify this practice and ensure that the safeguard continues to apply in all future cases. This is what this amendment does, while aligning the power relating to foreign power threat activity contained in Part 1 of this Bill.

Schedule 5 to TACT contains a power under which an officer of at least the rank of superintendent may, by a written order, give to any constable the authority which may be given by a premises search warrant issued by the court for the purposes of a terrorist investigation. The authorising officer must have reasonable grounds for believing that the case is one of great national emergency and that immediate action is necessary. We are seeking to amend Schedule 5 to TACT to create an ex post factum judicial authorisation safeguard. This will require the police to apply to the court for a warrant in relation to any relevant confidential journalistic material seized during the search that they need to retain for the purposes of a terrorist investigation. In the interests of national security, it is right that confidential material should be accessible in cases where the police can show that the action is necessary, proportionate and satisfies the legal tests in these provisions, while pursuing a terrorist investigation.

However, the Government also recognise that press freedoms are extremely important. Therefore, when such material is seized during a search that has been authorised under this urgent procedure, it is right that a warrant must be sought from a judge for its continued retention, and that an application for retention can be ex post factum, after the search itself has taken place. This approach reflects recent case law and ensures that the provisions provide appropriate protection for journalists. This amendment will also align this aspect of Schedule 5 to TACT with the equivalent urgent premises search power found in Schedule 2 to this Bill.

I turn to Amendment 192, tabled by the noble Lord, Lord Coaker. This amendment seeks to impose on the Secretary of State a duty to implement the recommendations of the Intelligence and Security Committee’s report on Russia. As noble Lords will be aware, the Government published their response to the Russia report on the day the report itself was published, 21 July 2020. Although the report did not itself enumerate specific recommendations, all the recommendations that could be identified in the report were addressed in the government response. A majority of the ISC’s recommendations had already been implemented by the Government before the report was published—for example, those covering co-ordination of HMG’s Russia work, close working with international partners and continued exposition and attribution of malign Russian activity. The then Home Secretary reiterated this in a Statement made to the House on 17 January 2022.

The Government’s response made our approach to tackling the recommendations in the report clear. By introducing effective new tools and powers for the police and security and intelligence agencies, this Bill can rightly be seen as delivering on commitments that the Government made in their response. Noble Lords will also be aware that the Government implement the vast majority of all ISC recommendations. However, there may be occasions when, for reasons including national security, we may not be able to take forward specific recommendations. We do not consider further reporting nor this amendment necessary, given the actions that the Government have already taken in response to the report.

Amendment 193, also tabled by the noble Lord, Lord Coaker, seeks to impose a duty on the Prime Minister to update the memorandum of understanding between the Government and the Intelligence and Security Committee to reflect the changes to the Government’s intelligence and security activities as a result of the Bill. Section 3(2) of the Justice and Security Act 2013 already provides for the ISC to make reports

“as it considers appropriate concerning any aspect of its functions”.

That already gives the ISC the ability to report on matters that fall within its remit so far as is consistent with the MoU—for example, to seek to avoid duplicating the work of other committees. Amending the Bill as proposed might be taken to imply that the ISC required explicit legislative nomination to propose changes to the MoU in relation to changes in intelligence and security arrangements brought in by Bills, which is not the case.

I turn to the amendment tabled by the noble Lord, Lord Wallace of Saltaire. I am aware that there are concerns about how the now closed tier 1 investor route operated—in particular, concerns that the route was used by those relying on funds that had been illegitimately acquired and those who may have posed a wider risk to the UK’s national security. It was because of those concerns that we committed to a review of visas issued under the route between 2008 and 2015. The Home Secretary made a Written Ministerial Statement on 12 January setting out the findings of that review, including that the review had identified a minority of individuals connected to the tier 1 investor visa route who were potentially at high risk of having obtained wealth through corruption or other illicit financial activity, or being engaged in serious and organised crime.

The Statement of 12 January represents the Government’s substantive response to the commitment to undertake a review and publish our findings. I am aware that some noble Lords would have preferred that the published review had included more information about specific individuals. However, we have had to act responsibly with regard to the UK’s national security. We have sought to strike the right balance between setting out the broad findings of the review and the constraints on disclosing sensitive details, which must be withheld at the request of our operational partners to protect our border, and the vital work of our law enforcement agencies.

I stress that this Government have already acted decisively regarding the risks posed by the tier 1 investor route to the UK’s national security when we closed the route on 17 February 2022. The Government have also been clear that any future visa programme in the investment space must operate on a fundamentally different premise from the previous one, with a far greater focus on skills and impacts, rather than just cash in the bank. I beg to move.

[Lord Coaker (Lab)]

My Lords, this is the first opportunity I have had to join other noble Lords in thanking the Minister for the various significant changes the Government have made to the National Security Bill and the improvement they have brought.

I shall speak to my Amendments 192 and 193. Again, I thank the Minister for his various amendments in this group, which are also an important step forward. I will leave the noble Lord, Lord Wallace, who has signed my Amendment 192, to speak to his Amendment 194.

Amendment 192 deals with the recommendations of the July 2020 ISC Russia report. The Minister has addressed some of those but I have one or two questions to ask him before I turn to Amendment 193, which is the real priority for me in this group. The report highlighted the fragmentation of the various bodies. The Minister has spoken about how the Government seek to address that, but we would all like to know how the supposed co-ordination of the government response to the Russia report is being monitored to ensure that it is taken forward, and that what the Government say about the need for co-ordination to tackle fragmentation is made a reality.

The report highlighted again the prominence of dodgy Russian money in London. The Government will say, quite rightly, that they have at last taken action on that. How is that progress being monitored, so that we know how effective it has been, particularly in light of Ukraine? Similarly, can the Government reassure us that the various threats to democratic processes that the report highlighted are being addressed? I do not intend to press Amendment 192 to a vote—I am really just asking about the progress made since the report was published. As the Minister said, the Government’s response was published on the same day, but the question is how we maintain the progress that we all want to see on the various issues raised.

I will try to be as brief as possible on Amendment 193. The ISC’s annual report, published on 13 December 2022, clearly laid out the need to update the memorandum of understanding. That is what my Amendment 193, on which I will test the opinion of the House, seeks to do: to update the MoU the ISC operates under to reflect the changes made by the Bill and those made over the last few years. The Minister himself referenced the various government departments that now have responsibility for different aspects of security and intelligence, a point I will come to in a moment.

Let us remember that the ISC was set up in 1994 to allow for greater parliamentary oversight of these important matters, while respecting the obvious need for national security—an issue brought into sharp focus by the excellent Saunders report on the horrific Manchester Arena attack. The current MoU is out of date. The commitment made by the Security Minister in 2013 during the passage of the Justice and Security Act—that the MoU is a live document that is easily changed—needs to be honoured.

Who oversees the increasing devolution to policy departments of intelligence and security activities? How can parliamentarians scrutinise those when only ISC members with the necessary security clearance can access classified information? The Select Committees supposedly tasked with these various oversight roles are not suitable for that reason, rather than for any reason of capability. They simply do not have the security clearance to look at classified information.

The following departments and bodies are mentioned in the Saunders recommendations: the Department for Education, the Crown Prosecution Service, the Law Commission, the Home Office and the Ministry of Justice—and that is the open part of the report; for obvious reasons, we will not know what is in the closed part. If the ISC oversees all this, as it is perhaps expected to do in light of the recommendations, how will that work with regard to the Department for Education and the various other departments?

Our committee says that the outdated MoU is a real problem, but the Government say it is not. The ISC says it is a problem, but the Government simply dismiss it and say it is not. Can the Minister explain how members of a Select Committee—let us use BEIS as an example—can oversee classified information that informs the work of a body they are responsible for if they cannot see that information? Pages 42 and 43 of the Intelligence and Security Committee annual report lists numerous departments that have various security and intelligence functions they are supposed to oversee, but they will not be able to see the classified information because they do not have the security clearance. The ISC itself cannot oversee this because that is not part of the memorandum of understanding under which it works.

The committee was told, as I said, that the Government do not feel bound by statements made by the Security Minister to Parliament in 2013. So what weight should we give to any Ministerial Statements the Minister makes if, in a few years’ time, the Government can simply say, “We don’t give any weight to what was said in 2013”? Parliamentary Statements by Ministers of the Crown are supposed to be justifications of policy. We all rely on them. Courts rely on them. Many amendments to this Bill were withdrawn earlier because of what the Minister said at the Dispatch Box and the reassurances he gave, yet the Government are saying that they no longer agree with the 2013 assurances given by then Security Minister, so they will ignore them. We are talking not about policy—I understand how policy works—but about process and the need to update it. As I say, that is very disappointing, to say the least.

--- Later in debate ---

Going on to the tier 1 visa scheme—

[Lord Coaker (Lab)]

Before the noble Lord moves on to a different amendment, can he answer my question? How can Select Committee members, who do not have the necessary security clearance, possibly look at and scrutinise classified material on Parliament’s behalf?

[Lord Sharpe of Epsom (Con)]

If they do not have the necessary security clearances, they obviously cannot, but, as I said earlier, that is part of the full consideration of the MoU and the various changes to the machinery of government that is currently under way.

--- Later in debate ---

Moved by

[Lord Coaker]

193: After Clause 91, insert the following new Clause—
“Duty to update the Intelligence and Security Committee of Parliament's memorandum of understanding(1) The Prime Minister must ensure that the memorandum of understanding between the Prime Minister and the Intelligence and Security Committee of Parliament (the “ISC”) under section 2 of the Justice and Security Act 2013 (the “MoU”) is revised to reflect any changes to the intelligence or security activities of His Majesty’s Government as a result of this Act.(2) Any revisions to the MoU under subsection (1) must be agreed between the Prime Minister and the ISC in accordance with the process set out in section 2 of the Justice and Security Act 2013.(3) Any engagement between the Prime Minister and the ISC relating to revisions to the MoU under subsection (1) must commence within the 6-month period beginning with the day on which this Act is passed.”Member's explanatory statement
This amendment ensures that the ISC’s Memorandum of Understanding is updated to reflect this Act.

[Lord Coaker (Lab)]

As I indicated, I would like to test the opinion of the House.

--- Later in debate ---

Moved by

[Lord Coaker]

195: After Clause 91, insert the following new Clause—
“Proscription of organisations: hostile activity on behalf of another State(1) Within six months of this Act receiving Royal Assent, the Secretary of State must publish draft legislation establishing a process for the proscription of actors engaged in hostile activity within the meaning of paragraph 1(5) of Schedule 3 to the Counter-Terrorism and Border Security Act 2019.(2) Such legislation must have reference to the existing proscription process as governed by section 3 of the Terrorism Act 2000 (proscription).”Member’s explanatory statement
This amendment requires the Secretary of State to propose a new proscription process for actors engaged in hostile activity on behalf of other states.

[Lord Coaker (Lab)]

My Lords, in moving Amendment 195, I will not speak at great length. The amendment requires the Secretary of State to propose a new proscription process for actors engaged in hostile state activity on behalf of other states, or indeed non- state organisations acting for a state or those who may act on their behalf.

I am moving this amendment to enable the Government to deal with any legislative problem in proscribing, among others, the Islamic Revolutionary Guard Corps, known as the IRGC. The Government will tell the Chamber and me that existing legislation can deal with it, so it is not a problem. So why is there a delay in proscribing the IRGC? If there is no problem with existing legislation, why are Foreign Office officials questioning, as reported in the Times and many other media outlets, how the IRGC can be defined as a terrorist organisation under existing legislation, given that it is a government agency, unlike most of the other groups on the list? Foreign Office officials are being reported in the media as saying that there is a problem with the legislation. The Home Office is saying—I presume this is what the Minister will say—that there is not. Where has that come from? Why is the Foreign Office briefing the media that the reason it is resisting the proscription of the IRGC is that it is not sure that existing legislation will be adequate to define the IRGC as a terrorist organisation because it is a government agency.

There is a problem here at the heart of government. My Amendment 195 seeks to say to the Government, “Here is a legislative vehicle by which you can plug a gap so that the concerns raised by the Foreign Office can be alleviated”. The Home Office and the Foreign Office cannot both be right. So we should pass the legislation as I have laid it out here. I have read—I was advised that this was the way to give the Government a vehicle to deal with any legislative problem in the proscription of the IRGC, as laid out by the Foreign Office—the various parts of the 2000 Act and the 2019 Schedule in front of me and, as much as I can read and understand them, I will have to take the Foreign Office’s word that it is because it is a government agency that there is a problem.

As I said, something is the matter here. It is the will of Parliament, as expressed time and again in this place and in the other place, that the IRGC should be proscribed, but the Government are unable to do it. Therefore, all of us should pass this amendment to get rid of the legislative barrier that the Foreign Office says stays in the way. I am not a legislative expert, but, if the Foreign Office says there is a problem, if I were in the Home Office, I would pass this amendment and call out the Foreign Office if I wanted to proscribe the IRGC. Perhaps the Minister can tell us whether the Government wish to proscribe the IRGC and whether there is a problem with the Foreign Office. Clearly there is; the Minister will not say there is, but there is.

We have seen an Iranian TV station in the UK forced to shut down because of activity from Iran. Numerous plots have been foiled, thanks to our security services. The noble Lord, Lord Evans, is here, and the noble Baroness, both former heads of MI5, so we thank them. But the Government are prevaricating on the proscription of the IRGC. My amendment, as I said, seeks to help the Home Office in its disagreement with the Foreign Office by allowing the creation of an improved and clearer process for proscribing hostile state actors.

The Government are divided in the face of this worrying issue. The Government will say they are not, so I was looking for evidence to show that they were. What did I find? In Hansard, Bob Blackman MP—not me trying to create trouble in the Lords but a Conservative MP—said:

“Clearly, the threat from the IRGC to people in this country—be they opposition journalists reporting on what is going on in Iran at the moment or UK citizens—is paramount. Foreign Office Ministers have responded to all the urgent questions the Speaker has granted and the debates we have had, but will my right hon. Friend now take the obvious step, which is supported by all political parties in the Chamber, and proscribe the IRGC in its entirety?”


Tom Tugendhat, Minister, Home Office, responds with this direct quote:

“My hon. Friend will know that it is not me”—


I am quoting this—

“he has to persuade in this matter and that there are many areas where I would like to go. I can assure him that the Government are absolutely listening to exactly what he is saying. The Home Secretary and I are as one on this”.—[Official Report, Commons, 6/2/23; col. 639.]

I am not a genius at working out what that means, but I think anybody who has been in the other Chamber or in this Chamber and has listened to the debate knows that the National Security Minister is telling Bob Blackman MP that the Home Secretary and he agree that the IRGC should be proscribed, but they have a problem with other parts of government, and those other parts of government are the Foreign Office, which believes that it should keep open communication with Iran and that proscribing the IRGC will cause all sorts of other problems, presumably around the nuclear treaty and so on and so forth.

All I am saying to the Minister is that the Foreign Office is clearly blocking the proscription of the IRGC, which is what the majority of people in this Chamber and the other think should happen, and my amendment seeks to take away from it the excuse it is using: namely, that there is a legislative problem, because the IRGC is a government agency and it would therefore be difficult under existing legislation to define it as a terrorist organisation.

Amendment 195 is extremely important, because it will allow the proscription of the IRGC and will take away from the Foreign Office the excuse that it is using to block that proscription. It is in the national security interests of this country for the IRGC to be proscribed as soon as possible. From what I just quoted, it is obvious that the Government, defined as the Home Office, agree, but the Foreign Office is stopping it. This Chamber has the opportunity, in the vote on my Amendment 195, to take away the excuse that the Foreign Office is using to stop that proscription. I hope that noble Lords will take it.

[Lord Purvis of Tweed (LD)]

My Lords, I am grateful to the noble Lord, Lord Coaker, for bringing this issue to the Chamber on Report. He asked very pertinent questions. If he seeks to test the opinion of the House, we shall abstain on this point, but that is not because we do not wish to hear the Minister’s answer—it is because, if we are reforming the Terrorism Act 2000 and the means by which we proscribe organisations, there are perhaps better places for a full and more fundamental review.

I have been on record as supporting the proscription of the IRGC, and I have said that this should not be done without considering the knock-on effects within Iraq and Lebanon. The Terrorism Act 2000 states that it is the Home Secretary who has the specific power to proscribe, so the questions that the noble Lord, Lord Coaker, asked are valid. If this is a Home Office Minister stating that to the House of Commons and it is the Home Secretary’s decision, what is the process by which government will now make decisions on this? I have also repeatedly called for the proscription of the Wagner Group, which is a non-government organisation but clearly has direct links with the Russian Government.

There are, of course, some grey areas. Before we reached this group, I reviewed the whole list of those proscribed organisations, and we have recently proscribed some that are clearly not linked with a Government but are organisations designed to destabilise that country’s Government. However, over the years, there have been other organisations where the lines are more blurred as to whether they are within the framework of aliases or associated organisations, which can be proscribed under the Terrorism Act 2000, even if they are not directly part of the Government of that nation. It is obviously a large step if we proscribe part of a Government, but, in the past, we have seen that, in many areas, it has not been clear who the Government of a country are. Therefore, the statutory tests that are used, and that need to be satisfied, need to be robust.

I have raised the issue of the Wagner Group since 25 April last year, and I have seen it operating with my own eyes in Sudan—some noble Lords have heard me make this case before—and it is palpably the case that its operations are terrorist in purpose and in nature and that they are directly against the national security interests of the United Kingdom and pose a threat to British nationals and our allies. I called for its proscription last year on 25 April, 23 May, 9 June, 7 July, 15 November and 21 December, and on 26 January this year.

--- Later in debate ---

[Lord Coaker (Lab)]

I thank the noble Lord for his response. Of course the Government are carefully considering this. I do not for one moment believe that they are not thinking about or carefully considering it—that would be an insult to the British Government. Of course they are concerned about national security and worried about various issues, including the one before us. That is a given. I have never accused the Government of not being concerned about it, of not considering it, of not deliberating on it, of not thinking about what they should do.

My amendment is saying that there is a real problem at the heart of government because the Foreign Office is blocking what the Home Office wants to do. There was not a word about that from the Minister; not a word about the fact that the Foreign Office is saying, “You cannot use existing legislation because it means that the IRGC”, to use that as an example, “is a government agency and not within the definition of a terrorist organisation under the legislation as drafted”. That is the core of it.

The noble Lords, Lord Leigh, Lord Polak, Lord Alton, and others who have spoken are saying that if there is a legislative problem, which the Foreign Office thinks there is, sort it out or come before this Chamber and say, “We do not want to proscribe the IRGC. We do not want to take that sort of action”. It is a perfectly reasonable thing to argue. “We do not want to proscribe the IRGC because we think the better way of sorting this problem out is to maintain open communications with the Iranian regime, to talk to them, to embrace them. We are not going to take any hard action against them because we think that undermines the policy objectives of the British Government.” It is a perfectly reasonable policy position, but I do not think that that is what is going on. I think the Government are having a row. I think there is a clash between the Foreign Office and the Home Office, and I am on the side of the Home Office. The IRGC should be proscribed, and I think that is what the majority of people in this Chamber, and in the other place, think. If so, it is the Government—or part of the Government—who are the problem, and my Amendment 195 gives them a legislative vehicle to sort it out.

What sort of a response is it, on something as serious as this, to say it is a drafting problem and “I did my best with it”? If there is a drafting problem, the Government can accept it and sort it out. They can change it, bringing in their battalions of lawyers, barristers even—I apologise to the noble Lord, Lord Pannick—to sort it out. I was a teacher; I played football; I was a politician; I am not a lawyer, but that was the best I could do, because I know how important this is. The IRGC is operating within this country, to the extent that MI5 and others are having to foil terrorist plots. It forced a TV station to shut down, and the Government’s reaction to my amendment is to say, “There is a drafting problem with it”. It really is not acceptable.

The noble Lord, Lord Evans, is right in saying that there is a balance to be struck. Well, strike a balance by accepting Amendment 195, sorting the legislation out and allowing the will of this Parliament to be expressed through its directly and properly elected Government. It is saying to the Government that the IRGC is simply and utterly unacceptable. I do not care if the legislation says there is a problem with defining it. It is a terrorist organisation. “No, it is not”, because Schedule 58 to some Act somewhere says it is not. That is ridiculous. It is the tail wagging the dog. The IRGC is causing damage in our society and the Foreign Office is blocking this, according to the Times and other media outlets, because its officials are saying there is a definition problem because it is a government agency.

The noble Lord, Lord Evans, is right that this takes us into new territory. It does, and there are problems, but all I am saying is that it cannot be an excuse for the British Government to say, “We are not going to proscribe the IRGC because the Foreign Office says there is a problem with it being defined as a terrorist organisation when it is a government agency”. What do we say to people? Bring it down from these heady clouds of the House of Lords Chamber. Bring it down to the fact that terrorist plots are having to be foiled by our security services because of its actions. An international Iranian TV station has been forced out of our country: the United Kingdom cannot guarantee the safety of people who work for a TV station, in the face of actions by the IRGC and the people who support it, and the British Government prevaricate on whether to proscribe it. It is unbelievable.

The Government are whipping their Members to vote against that proscription and the Liberal Democrats, for their own reasons, are going to abstain. So, we are going to have people voting against and abstaining on the proscription of a body that poses a very real threat to our country. Good luck with explaining that. Good luck with explaining to people why that is something Parliament should accept and why my amendment should fail. “A drafting error”. “Not properly written”. Goodness me, is that the best we can do? I wish to test the opinion of the House.

National Security Bill

Lord Coaker Excerpts

3rd reading
Monday 13th March 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, I wish to express my sincere gratitude to all noble Lords across the House for their interest in this Bill and for their valuable contributions and co-operation so far. Debate has been consistently informative and constructive. I am extremely grateful for the diligent approach that noble Lords from across the House have taken to ensuring that this vital legislation has received full scrutiny ahead of returning to the other place.

I am particularly grateful for the positive engagement and support of various noble Lords. From the Benches opposite, I am grateful to the noble Lords, Lord Coaker, Lord Ponsonby and Lord West; from the Cross Benches, I am grateful to the noble Baroness, Lady Manningham-Buller, and the noble Lords, Lord Evans, Lord Anderson and Lord Carlile; from the Liberal Democrat Benches, I am grateful to the noble Lords, Lord Purvis and Lord Marks; and I am also grateful to my noble friends Lady Noakes and Lord Leigh. I hope all noble Lords will join me in thanking the Bill team, policy teams and legal teams in the Home Office and the Ministry of Justice for their hard work in getting the Bill to its current position. They worked phenomenally hard, particularly in relation to FIRS. It is always invidious to single out anyone in particular, but I would very much like to thank the following: Emer Smith from my private office, and Laura Weight, Jack Joseph, Sebastian Graves Read, Grace Bennett, Joe Marshall, Grace Lucas, James Dix and, last but by no means least, Louise Holliday from the Bill team.

I also place on record my thanks to our law enforcement and intelligence agencies, both for their contributions to this Bill’s development and for their enduring work in keeping us all safe every day. It is vital that they have the tools they need to fulfil such a challenging task. The measures in the Bill seek to ensure they are well equipped to tackle the wide range of modern threats that we face in the UK today. I beg to move.

[Lord Coaker (Lab)]

My Lords, I start by thanking the Minister for his constructive engagement, along with his colleagues, the noble and learned Lord, Lord Bellamy, and the noble Lord, Lord Murray, and others, including his Bill team. The Bill has had significant changes made to it, showing the way this Chamber can improve legislation. That can happen only when a Minister and the Government listen. All of us, I think, appreciate the way the Minister has engaged and made significant changes to the Bill to improve it. We are all grateful to him for that.

I also pay due respect to the contributions of many noble Lords across the House. I pay my respect to the noble Lord, Lord Anderson, who we have just heard from on the previous group of amendments, and the noble Lord, Lord Carlile, who I am pleased to see in his place. I think the contributions from the noble Lords, Lord Alton, Lord Hogan-Howe and Lord Pannick, have been significant and have helped to improve the Bill.

The Minister paid tribute to the intelligence and security services, as we all do, because we all have an interest in the security of our nation. We should note that the noble Lord, Lord Evans, and the noble Baroness, Lady Manningham-Buller, have attended virtually the whole of the proceedings on this Bill. That says everything about the contributions they have made, but also it also sends a signal to the intelligence and security services to know that two former directors-general have spent all their time contributing to the Bill and advising people both in the Chamber and outside of it. That is of huge significance, not only to this Chamber but to our country. They deserve recognition for that.

I also thank my noble friends Lord West and Lady Hayter for their contributions throughout the Bill, which have helped our thinking as well. I thank my noble friend Lord Ponsonby for his—as I often say now—calming support to my more excitable personality. That helps me enormously in more ways than you can imagine. I also thank—I know they are not here—the noble Lords, Lord Purvis and Lord Marks, for their input, which helped to improve the Bill.

--- Later in debate ---

[Lord Wallace of Saltaire (LD)]

My Lords, I saw my role in this Bill as representing the research sector to some extent, and I am very conscious—as I am sure the Minister is—of the delicate balance there is between the desirability of close international collaboration and sometimes having to collaborate with those who come from authoritarian countries that are not entirely friendly to us. The representatives of the research sector—the Royal Society and others—look forward to talking with the department about the guidance, which we hope will strike exactly the right balance in this delicate area between what needs to be done and not imposing deliberate bureaucracy.

I am sure that the Minister is aware from what we have seen in Georgia over the last two weeks—where there have been very serious riots against the Government caused by a foreign agents Bill, which is seen as a Russian attempt to gag the Government and the people of Georgia and to block their contact with the western world—that this is a delicate area. It is extremely difficult to get the right balance, and we hope that we have achieved in this House a much better balance than when the Bill was originally drafted.

[Lord Coaker (Lab)]

My Lords, I hope the Chamber will indulge me. I forgot to thank Ben Wood, who is our adviser. I apologise to him for that.

[Lord Sharpe of Epsom (Con)]

While the House is indulging, I also forgot to thank my colleagues, my noble friends Lord Murray of Blidworth and Lord Davies of Gower, so I would like to place that on record. I also thank my noble and learned friend Lord Bellamy at the Ministry of Justice.

Bill passed and returned to the Commons with amendments.

National Security Bill

Lord Coaker Excerpts

Consideration of Commons amendments
Wednesday 21st June 2023 Lords Chamber

I knew nothing about the Reasons Committee until that night, but I discovered then that it is a cipher. The reasons brought to us in this House do not bear intellectual analysis. What we are doing, I hope, on my amendment is using our minds—our critical faculties—to decide how best elections should be conducted in this country. My submission to your Lordships is that the small change I am suggesting would help just that aim. I beg to move.

[Lord Coaker (Lab)]

My Lords, I will speak to my amendment in Motion C1. We very much support the amendment put forward by the noble Lord, Lord Carlile. Should he wish to press it, we will certainly support him in the Lobbies later.

I am grateful to the Minister for his comments and for the valiant effort he made to defend what the Government are not doing about updating the memorandum of understanding. I thank him for his attempt to gloss over and make the best of it.

I pay tribute to the work of our security services. As we know, there is no difference among any of us here in our admiration for their work and the way in which they keep us safe. We all wish to see the National Security Bill become an Act as soon as possible. However, that does not mean that we do not have a responsibility to scrutinise and improve the Bill where we think change is needed. My amendment is part of that ongoing process.

I say to the noble Lord, Lord Carlile, that I must be a veteran, because I have been to the Reasons Committee a few times, not just the once. I do not know whether I was particularly good at it or just regarded as a toady who would do what anyone said. I am not sure exactly where the room was but I remember going there on a number of occasions.

On a serious point, that is something I now regret. The point the noble Lord, Lord Carlile, was making was that Members of Parliament—I was one of them; I am talking about myself—should take more notice of the revisions that are sent down. Sometimes the reasons given were simply spurious, such as, “We don’t agree with it”. I would not say that they were made up, but they were not far away from it. That is a source of great regret to me. Personally, I should have done more and taken more notice of them. That is partly why I understand that the reasons the Government have given are totally inadequate. They have basically dismissed what we said and what this House passed in my amendment that the other place then disagreed with.

The Minister will note that I have taken seriously the Government’s rejection of my original amendment. He will have seen that the duty to update has been changed to a duty to review. This is a significant, important change, as it would not require the Government to update the memorandum of understanding; it would simply require them look at the memorandum of understanding, review it and see whether change is needed. The Minister said that that is already included in the Bill. I submit to your Lordships that the Government will not do this unless something is put forward in the Bill to say that are required to review it, rather than the Government saying, “It’s in a piece of legislation that we have passed so we will do it anyway”. It will not happen.

The Intelligence and Security Committee—I know my noble friend Lord West will speak in a few minutes—is our voice. It was set up by Parliament to hold the Executive to account on intelligence and security matters. It is astonishingly and incredibly important. All Select Committees and committees of this Parliament are important, but the Intelligence and Security Committee was set up in 1994 to fill a vacuum, and the MoU was updated in 2013.

Some noble Lords have far more experience of that committee than me and will know how it works, but the fundamental point is that confidential and classified security-related matters can be discussed and debated there on our behalf. I do not expect to know what no doubt my noble friend Lord West and others discuss; it is totally inappropriate and wrong for me to know that, and I accept that. That is not what this is about. But it is important that those who are selected, appointed or voted, in some instances, to be members of that committee have access to all the classified information across government, because it is across government that they hold the Executive to account. That is how a democratic system functions while keeping security material safe and classified. It is a really important committee.

There can be no doubt that, as the Intelligence and Security Committee said in its annual report in December last year, the intelligence architecture has changed. The committee has asked not for anything radical or for a complete rewriting of the rules; it is simply saying to the Government, is it not appropriate to update the memorandum of understanding to reflect the changed security environment in which government operates? This committee should do it on our behalf but, essentially, also on behalf of the people of our country; it is totally reasonable to ask for that.

The committee gives some examples of changes that should happen in areas where it does not currently have the opportunity to operate. One is BEIS and

“the activities of the Investment Security Unit”.

I would have thought there was a clue in the title. I do not know what it does; I can guess, but I do not really know. Another is the Department for Culture, Media and Sport and

“the activities of the Telecoms Security and Resilience Team”,

which is not accountable to the ISC. The report also mentions the “Office of Communications” and the “Counter Disinformation Unit”, which are not accountable to the ISC and do not come under its remit. There is also the Department for Transport and

“the activities of the Transport Security, Resilience and Response Group”,

which, again, is not accountable to the ISC. The report further mentions the Foreign, Commonwealth and Development Office and

“the activities of the Intelligence Policy Department”,

which, again, is not accountable to the ISC. It also mentions the Department of Health and Social Care—we have heard a lot about this—and

“the activities of the Joint Biosecurity Unit”.

None of these is accountable to the ISC, and the Government should at least review that. Instead of updating this and saying, “You have to do it”, all the amendment says is, “Perhaps review whether the ISC should look at these”.

Noble Lords can see how ridiculous this is. The example that the committee gives is BEIS and the activities of the investment security unit, which the Government say the BEIS Select Committee can look at. That is completely and utterly ridiculous, because the point is that the ISC has security clearance to look at classified information, in a way that the BEIS Select Committee, as good as it is, cannot. So how on earth can the BEIS Select Committee look at anything that may be classified in the investment security unit, without the necessary security clearance? It cannot be done.

My amendment does not actually require the Government to do anything, but they have simply rejected it, saying that it is not necessary, that they are not even going to look at it and that various commitments have been made. I am sure the Security Minister and the Minister opposite will agree that there should be a review. Indeed, it appears that that is what the Security Minister has said. But what about the Home Secretary, the Prime Minister and the other people at the top of government? If the Security Minister is making those noises to the committee, why are the Government just going to say that this simple amendment, requiring a review, is not needed and is inappropriate and wrong? Just saying that we do not need it is not answering the point; it is just an assertion, and that is not good enough.

The Minister in the last minute or so has just glibly, if I might say so, pointed out that my amendment does not require the Prime Minister to attend. No, it does not, but let me tell noble Lords this from the Dispatch Box. It is an absolute disgrace that no Prime Minister of our country has been to the ISC since 2014. That is nine years. It is actually in the report—meeting with the Prime Minister; I had to read it a couple of times. I spoke to the Minister four or five months ago about this, and I asked him to ask why on earth the current Prime Minister, despite being invited, as I understand it, still has not responded to say when he is going. That is despite my saying then that it was completely unacceptable that no Prime Minister had been to the ISC.

Perhaps the Minister could update the House on what has happened. Who has the Minister made representations to and why has nobody taken any notice? Why has the Home Secretary not gone to see the Prime Minister about this? I say again—I could not believe it. Apparently, for 20 years after 1994, the Prime Minister of the day went once a year to the ISC; and then it stopped. The committee has tried to get Prime Ministers to go, and they will not. The Prime Minister of this country should go at least once a year to the Intelligence and Security Committee of our country, which is how this Parliament holds intelligence and security agencies to account. Can the Minister take that back to the Government? I speak for myself and for His Majesty’s Opposition, and I shall let others speak for themselves, but I think it is disgraceful that a Prime Minister has not been to speak to the Intelligence and Security Committee. I hope that that is heard loud and clear, that we can get something done about it and that the next time this is raised, the Prime Minister has spoken to the ISC with the Security Minister.

[Lord King of Bridgwater (Con)]

Having been the chairman of the ISC for its first seven years, may I just say that it is quite untrue to say that we called the Prime Minister to report to the ISC? We used to report to the Prime Minister when we were conducting various investigations.

[Lord Coaker (Lab)]

I take that point, and I apologise if I suggested it was the other way around. The point I am making is that the Prime Minister, according to the information here, used to go and speak with the Intelligence and Security Committee, and there was that two-way communication. My contention is that that is an important thing for the Prime Minister of our country to do. I would have hoped that the ISC had the opportunity to talk to the Prime Minister at least once a year since 2014.

I finish where I started. The defence and security of our country is the Government’s highest priority, and we all support them in that. We welcome the work of the security services to keep us safe. Mine is a simple amendment that seeks to update, through a review, the memorandum of understanding under which the ISC operates. It is a sensible thing for the Government to do and when the time comes, I shall seek to test the opinion of the House.

--- Later in debate ---

Moved by

[Lord Coaker]

At end insert “, and do propose Amendment 122B in lieu—

122B: After Clause 89, insert the following new Clause—
“Duty to review the Intelligence and Security Committee of Parliament's memorandum of understanding
(1) The Prime Minister must ensure that the memorandum of understanding between the Prime Minister and the Intelligence and Security Committee of Parliament (the “ISC”) under section 2 of the Justice and Security Act 2013 (the “MoU”) is reviewed in the light of any changes to the intelligence or security activities of His Majesty’s Government as a result of this Act.
(2) Any revisions to the MoU arising as a result of the review under subsection (1) must be agreed between the Prime Minister and the ISC in accordance with the process set out in section 2 of the Justice and Security Act 2013.
(3) Any engagement between the Prime Minister and the ISC relating to revisions to the MoU arising as a result of the review under subsection (1) must commence within the 6-month period beginning with the day on which this Act is passed.””

National Security Bill

Lord Coaker Excerpts

Consideration of Commons amendments
Tuesday 4th July 2023 Lords Chamber

[Lord Purvis of Tweed (LD)]

To follow my noble friend to conclude from these Benches on this part of the Bill, I wish to commend the Minister for listening and taking back to the department a very strong view from this House that more needed to be done in this area. I also commend the noble Lord, Lord Carlile, for his persistence on this area. I respectfully disagree with the noble Lord, Lord Leigh of Hurley. Of course, we all know that there is a distinction between the small donors—those who give small sums of money either as a member or as a supporter of a political party: in my case, in my former constituency, there were all too small numbers of small donors, regrettably, but there were those who would bake a cake for a raffle—and individuals who give really quite enormous sums to political parties. On the one hand, I understand the argument that there should not be a distinction between the two groups, if someone is of wealth and means and they believe in the same thing as someone without wealth and means. However, as my noble friend indicated, with regret I share more the view of the noble Lord, Lord Carlile, in this regard.

We would not be where we are in pursuing and being persistent with this issue if we did not know that the Electoral Commission was in effect asking us to do it. I have met the Electoral Commission frequently, and I do not think that it is relevant to highlight its resources when it has been very clear to us in saying that it does not have the powers to carry out what, ultimately, I believe it should be able to carry out—to ask political parties for due diligence as to the source of large donations. I hope that the government review will take us on that journey and provide an evidence base, on which I believe there will be a degree of consensus.

I thank the Government for their response and look forward to the review taking place, especially as it will start with the competent authorities that will have the information available to them. The Government are taking through the economic crime Bill, reforming and updating the mechanisms through unexplained wealth orders. It strikes me that that is a very good opportunity to look at some of the processes around UWOs, which are designed to be streamlined and not burdensome on authorities, to see whether they can be the model by which we would look at the requirements on political parties. On this issue, I have previously talked about the jarring position that, if a politically exposed person who is open to unexplained wealth order mechanisms, instead of giving to a political party used that money to buy a property, the relevant competent authorities would have to go through a process of due diligence for that property. However, as my noble friend said, on the concern about buying influence rather than buying a property, there is no mechanism that is open. I hope that that loophole will be closed. The Government have been clear in their guidance on the duties on the public and competent authorities to access data for unexplained wealth orders, so we should be in a better position.

Finally, as I said in the previous debate, this is likely to be the most expensive year coming up in British politics. I hope that we will have cleaner hands, but they will not be empty. Therefore, it is how we ensure that with the source of that money going into British politics, especially in the lead-up to election campaigns, the transparency is not just around the donor but around where that money is from for substantial donations. I hope very much that we have started the process of rectifying this deficiency in the British system, and I thank the Minister for starting it.

[Lord Coaker (Lab)]

My Lords, I begin by saying how much we support the amendments of the noble Lord, Lord Carlile. I am glad that the Government have listened and come to an amicable agreement with the noble Lord which takes us forward. I thank the Minister for the way he has done that and for the concession that the Government have made on the updating of the memorandum of understanding, although clearly issues remain between the ISC and the Government, hence Motion B1 tabled by my noble friend Lord West, which we support. Aside from the Motion itself, it will allow continuing discussions, and indeed perhaps negotiations, around how the memorandum of understanding can be revised or replaced, including by negotiation, hence its importance.

I think it is really significant that still, even at this late stage of the Bill, my noble friend Lord West, speaking on behalf of the Intelligence and Security Committee, which gives parliamentary oversight of the activities of the security services, is not happy with where we have arrived at. I think it is incumbent on the Government to reach an agreement with the ISC. Clearly, as we have heard from my noble friend Lord West this afternoon, we are not in a situation where that has occurred. There are all sorts of issues that remain between the Government and the ISC, as has been evidenced by various things that have happened today, and the Government need to respond to those.

I will add just a couple of other points. One is that the Government gave a commitment during the passage of the Justice and Security Act 2013 and the Minister gave assurances to Parliament that the memorandum of understanding was a live document that would be regularly reviewed and updated. Are the Government of today completely ignoring that commitment that was made to Parliament? If so, we are in a really difficult situation, because it means that parliamentary oversight is undermined by the fact that Ministers making pledges to Parliament can just be ignored in the future by the Government. I say—we often say, all of us say—that we will not press an amendment, on the basis that the Minister, speaking from the Dispatch Box, makes commitments that are read into the record. That is an important part of parliamentary scrutiny. Ministers are asked to do that and Members of Parliament in the other place and noble Lords withdraw amendments. But here we have an example of where the Intelligence and Security Committee is saying that pledges and commitments were made to Parliament that the memorandum of understanding would be regularly updated and the Government have not done that or are still not in agreement with the ISC. I think that is a really important point.

For the avoidance of doubt, I remind your Lordships again that I do not seek to compel the Prime Minister to go to the Intelligence and Security Committee. I shall just say what I believe, and your Lordships will have to make up their own minds. Given that the Intelligence and Security Committee is the oversight body for this Parliament, I would have thought that if the ISC were regularly asking the Prime Minister to attend, the Prime Minister would go—not because he is compelled to go but because it is an important part of that parliamentary oversight and the Prime Minister of our country negotiating and liaising personally with the Intelligence and Security Committee is of real importance. So I say to noble Lords, as others have heard me say before, that all of us would be surprised by the fact that no Prime Minister has been since 2014; nearly 10 years. It has been nine years, in case I am quoted as not being accurate, since a Prime Minister has been. So I gently say that, while I do not seek to compel the Prime Minister, I politely ask the noble Lord, Lord Sharpe, whether the Home Office has suggested to the Prime Minister that, in his diary, he might consider going to see the Intelligence and Security Committee when he can.

My noble friend Lord West’s amendment raises several important issues, but the most significant is that we need to send a message through supporting it that the ISC is still not at one with the Government. That is a serious issue and needs somehow to be resolved. I believe that supporting my noble friend’s amendment will continue to put pressure on the Government to ensure that they come to an arrangement with the ISC in the end, such is its importance. If my noble friend chooses to test the opinion of the House, we will be happy to support his Motion B1.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank the noble Lord, Lord Carlile, very much for his words and his engagement on a number of matters throughout the Bill, and for not pressing his Motion. I also thank other noble Lords who have participated in this very short debate, including my noble friend Lord Leigh of Hurley, who brought a very useful perspective on the current state of play with regard to political party donations. I gently remind the noble Lord, Lord Wallace, that donations from foreign powers are already illegal and suggest that the word “consult” means that all political parties will be consulted.

On Motion B, the noble Lord, Lord Coaker, said that he does not seek to compel the Prime Minister to come to the ISC. That is certainly not the tone of the remarks he has made in a number of debates in this House. It seems to me that he does seek to compel the Prime Minister to attend the ISC. He will know that I have answered before the question as to whether the Home Office and No. 10 Downing Street have had discussions on this subject. I will not answer it again. I have nothing else to say on Motion B, as I have already spoken to it. I ask this House not to insist on its Amendment 122B and to agree with the House of Commons in its Amendment 122C.