That the Bill be now read a second time.
My Lords, the first responsibility of any Government is to ensure the safety of their citizens, both at home and abroad. For this Government, it is not just a responsibility but an absolute priority. The introduction of the Bill is a result of the manifesto commitment to ensure that our law enforcement and intelligence agencies have the powers they need to combat the evolving nature of state threats. That is why we are adopting a robust and front-footed posture. The Bill will confront and tackle state-threat activity that may seek to undermine the democratic principles of the United Kingdom and the security of its people.
I know noble Lords will all join me in paying tribute to those in our law enforcement and intelligence agencies, who go above and beyond to keep us all safe every day. They are the very best of us and they have my enduring gratitude, respect and admiration. For all that they do, we must hold up our end of the bargain and ensure that they have the necessary tools and powers to do their vital work, which is precisely what we will do through the measures in the Bill.
It is worth looking back for a moment to understand the context in which we are discussing these matters. Russia’s recent illegal invasion of Ukraine has shown the essential need to bolster our national security and ensure that we have the ability to counter state threats. The House will also recall the events in Salisbury in 2018, which are a clear reminder that we need laws that seek to deter serious harm from being inflicted on our soil. As that outrageous episode underlined, the dangers we face are real. We must continue to develop our robust and effective apparatus and act now to further harden our resilience. This is why the National Security Bill introduces enhanced powers for our intelligence and law enforcement agencies to do even more to counter state threats and strengthen the security of the United Kingdom.
States are becoming increasingly assertive and sophisticated in how they advance their objectives and undermine the safety and interests of the UK. It is therefore essential that we are able to deter, detect and disrupt state actors that seek to harm the UK by covertly targeting our national interests, sensitive information, trade secrets and democratic way of life. The National Security Bill will protect these interests and uphold our democratic principles, consolidating the safety of our citizens through essential new measures designed to address an ever-evolving threat. We are determined to advance the safety, security and prosperity of the UK, and the Bill is designed to achieve precisely that.
I will now speak to the key measures set out in the Bill. The Bill will modernise the law against espionage, replacing the 1911 to 1939 Official Secrets Acts. New offences of foreign interference have been carefully designed to tackle the threat from any foreign power that chooses to act with malign intent. It is important to stress that these offences are actor-agnostic, and any state or individual seeking to harm the UK will be met with the full force of these newly established powers and tools, regardless of their origin.
These offences, and the others introduced in Part 1, will enable the disruption of illegitimate influence by foreign states intent on advancing their own interests or seeking to damage the UK. It will be an offence for foreign powers improperly to interfere with our democracy and civil society through covert influence, disinformation and attacks against our electoral process.
The Bill also has police powers designed to address the specific threat of foreign power activity. There are specific powers of arrest and detention which reflect the threats posed by such actors. There are also additional police powers to support investigations into foreign power threat activity, focusing on obtaining information on financial activity. These powers will ensure that the police have the tools they need to fully investigate state threat activity and bring those acting for foreign powers against UK interests to justice.
Furthermore, the amendment to the Serious Crime Act 2007 will provide essential protection to those who discharge authorised national security functions on behalf of His Majesty’s Government. The amendment will enable more effective co-operation with our international partners. It is about addressing operational challenges and removing the personal risk that trusted and dedicated individuals face for carrying out their proper, official duties on behalf of our intelligence community and Armed Forces. I welcome the comments of Sir Alex Younger, the former head of our Secret Intelligence Service, who correctly highlighted that it is morally wrong that the risk of liability should sit with individual officers acting on behalf of our agencies. Any risk should rightly sit with the Government and this amendment supports that aim.
Preventing and disrupting state threats is one of the Government’s prime concerns. In a very small number of cases, it will still not be possible to bring a prosecution forward. We must therefore ensure that a backstop is in place to prevent state actors conducting harmful activities in the UK. We will introduce new state threat prevention and investigation measures, enabling restrictions to be imposed, when necessary, where there is a reasonable belief of involvement in foreign power threat activity.
It is important to clarify that this will be a tool of last resort, to be used only where it is believed that there is involvement in foreign power threat activity, there is a necessity to impose measures and a criminal prosecution is not available. These measures will also remain proportionate to the specific threat posed by an individual and be subject to rigorous checks and balances, including by the courts, to guarantee their appropriate use.
The Bill will also introduce measures to prevent the exploitation of the UK’s civil legal aid system by convicted terrorists. It will protect the UK’s civil damages system by ensuring that terrorists’ own misconduct is taken into account in an award from public funds. Courts will also be provided with the ability to order that civil damages awarded to a person are frozen or forfeited where those funds might be used to support terrorism. These provisions will allow the Government to take steps to ensure that a claimant’s damages cannot be used in this way.
With regard to legal aid, access to publicly funded services is a benefit of being part of a democratic society. This Government remain wholly committed to providing legal aid funding for those unable to resolve their issues alone, but there must be a line. Individuals who commit acts of terrorism are rejecting the values of state and society and it is right that the benefit of legal aid—a benefit of our democratic society —is removed from them. These measures will help instil a rigorous process that provides greater transparency around how public funds are distributed.
The Bill will also introduce a foreign influence registration scheme, requiring certain foreign activities and influence arrangements to be registered. The scheme’s aims are twofold: to strengthen the resilience of the UK political system against covert foreign influence and to provide greater assurance around the activities of certain foreign powers or entities.
I must make clear that we will continue to welcome open and transparent engagement from foreign Governments and entities. The scheme itself will play a critical role in encouraging such transparency and, crucially, will deter foreign powers that wish to pursue their aims covertly. The implementation of this scheme delivers a key recommendation of the Intelligence and Security Committee’s 2020 report on Russia and has been assisted by consultation with our friends in the United States and Australia, which have implemented similar schemes.
The National Security Bill is a dynamic piece of legislation that reforms our approach to hostile state actors and the threats that they pose. The introduction of our foreign influence registration scheme will ensure safety in our systems and transparency in our political processes. I look forward to engaging with all noble Lords on the Bill. I welcome discussion both today and as this essential piece of legislation progresses through this House. As I hope I have demonstrated in this speech, the Government are steadfast in their determination to protect our people, our values and our democracy. With that critical objective in mind, I beg to move.
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.
My Lords, in general we support the aims of this Bill. We agree that our national security law needs updating, and we agree that many of the threats posed by foreign actors to our national security are new and require fresh and targeted solutions. The Bill attempts to achieve all that and in many ways, which the Minister ably explained, it does so. I add our thanks to those of the Minister and the noble Lord, Lord Coaker, to the security services for all the brave, efficient and crucial work they do to protect our national security. However, we have a number of concerns. I shall concentrate largely on the criminal offences proposed in Part 1 of the Bill.
Our first concern is one of principle, because restrictions proposed in the Bill threaten important rights and liberties, but we are also concerned that the Government have missed serious adverse and almost certainly unintended and unforeseen consequences which follow from this proposed transformation of our national security law. These concerns overlap, where there are restrictions of our rights and liberties which were almost certainly unforeseen, and I shall deal with them together.
Our first objection in principle is that the breadth of many of the definitions in the Bill would substantially and unacceptably broaden the scope of the protections ostensibly afforded to national security. Let us consider protected information. The definition within Clause 1 is unduly wide. It covers any information where
“it is reasonable to expect that access to the information … would be restricted in any way”.
So the information does not need actually to be restricted to classify as protected information, disclosure of which is to be criminalised by the Bill.
Then there is the foreign power condition—the foundation of a major expansion of the reach of the national security provisions, and applicable to a number of the new proposed offences. I quite understand the need to replace the concept of a national enemy with the concept of a foreign power, in the attempt to update our legislation and rid it of old-fashioned distinctions between friend and foe and to make it “actor-agnostic”, as the Minister described it. But the attempt is not trouble-free.
In particular, the foreign power condition must be met for an offence under Clause 1 of obtaining or disclosing protected information to be made out. The condition is defined by Clause 29 and relates, broadly, to conduct that is carried out for or on behalf of a foreign power, which may be any friendly non-UK Government. Conduct qualifies as carried out for or on behalf of a foreign power if it is carried out with financial or other assistance provided by a foreign power, so a state-backed broadcasting organisation or state-run company funded by a friendly Government would have such financial assistance. It follows that anyone who obtains or discloses information which they “ought to know” is prejudicial to the interests of the United Kingdom, however defined—and I agree with the noble Lord, Lord Coaker, that there is no definition available; it is a desperately controversial test—on behalf of a foreign nationally owned broadcaster is at risk of prosecution and conviction of this very serious national security offence.
The freedom of journalists working for foreign broadcasters might be substantially restricted if, for instance, they came by and used leaked information which the UK Government might prefer that they did not have and thereby found themselves at risk of being prosecuted for a Clause 1 offence. The relationship between the conduct and the foreign power may be indirect, so any such conduct meets the foreign power condition wherever it appears in the Bill. For example, it also appears in the definition of the new offence of obtaining or disclosing trade secrets under Clause 2, which carries a maximum term of 14 years. Clause 2 again is very widely drawn; it covers unauthorised obtaining, recording or retention of a trade secret, for whatever purpose, on behalf of any body deriving financial assistance of any sort from a friendly overseas government body. This presents a significant threat to a wide range of investigative journalism on matters of importance and public interest, which ought to be aired in public even if the owners of such information might regard such airing as highly unwelcome.
In the unforeseen consequences category, the Clause 3 offence of assisting a foreign intelligence service presents a serious difficulty. Under this Bill, the foreign intelligence service can be that of any friendly foreign country; an offence under the clause, again carrying a 14-year term, penalises all conduct to assist any foreign intelligence service in carrying out UK-related activities—that is, any activities, of whatever nature, taking place in the UK. So, a UK citizen who assisted Mossad within the UK to recover goods looted by the Nazis, or who helped the CIA find and arrest war criminals, would be guilty of an offence, unless they could show that they were acting under a UK legal obligation or effectively on the direction of the British Government. If they could not show that, I can see no defence under the clause as drafted. How can that be right?
The unauthorised entry to a prohibited place offence under Clause 4 is also far too wide, penalising even inspection of a photograph of a prohibited place, even for journalism, if the accused should have known that the purpose was prejudicial to the interests of the UK. And that is not just UK defence or security interests, but any interests at all. So, photographs of any environmentally damaging activity carried on by government as a matter of policy—fracking, for example, if it were ever again authorised—would count. That is not the defence of national security; that is the suppression of legitimate investigation and dissent.
The Home Secretary told the House of Commons in a Statement on national security and this Bill in particular on 1 November, a week after her reappointment:
“Now, as our markets integrate, we need to think about the future of our industry and innovation. Our economic security guarantees our economic sovereignty just as our democratic security guarantees our freedom … Britain has been on the frontline of the defence of liberty for generations”.—[Official Report, Commons, 1/11/22; col. 790.]
The Bill fails to ensure that the steps we take to defend our liberty are targeted and limited to what is necessary for that defence of liberty. So, the first task for this House at the later stages in the Bill will be to cut down the scope of conduct that is unnecessarily and wrongly caught by the Bill as drafted.
However, much of the discussion on the Bill has been as to whether there should be a public interest defence to the new offences. We regard such a defence as essential. It offers the prospect of avoiding convicting journalists, investigators, campaigners, whistleblowers and many others who should not be targeted by the criminal law at all. Such a defence must be broad enough to protect the free flow of information on which democratic political discourse depends, and it must protect from criminal sanction activities that may infringe private rights of physical or intellectual property where such infringement is justified in the public interest. As the NUJ briefing, which many of us will have received, put it succinctly:
“There should be no situation in which journalists risk being classed as spies or traitors … A free press is one of the conditions of a pluralistic democracy and the UK government should not close down scrutiny of its activities.”
I do not believe that the public interest defence should be available only in Clause 1 cases of obtaining or disclosing protected information. It should be no less applicable in cases under Clauses 2 to 5 and Clause 16, and possibly Clauses 13 and 15 as well.
The possible conditions of a public interest defence have been widely discussed, but I suggest they should include, in some form, each of the following. First, it should be for the defendants to raise the defence. I leave open the question of whether the burden of proof should be on the defence to prove the defence, or whether, once that defence is raised, it should be for the prosecution to rebut it. However, if the burden is to be imposed on the defendant to prove the defence, that should be on the balance of probabilities, and it should also be specifically incumbent on prosecuting authorities to consider the prospect of such a defence succeeding before a decision to prosecute is made. Unnecessary and unmeritorious prosecutions cause untold heartache and substantial loss. The prospect of being prosecuted has a serious chilling effect on conduct in the public interest, and the risk of such prosecutions should be carefully weighed before they are ever brought.
Secondly, the manner in which the defendant has acted should always be a factor to be considered. Thirdly, so too should the good faith of the defendant be considered, and whether or not the defendant reasonably believed that their conduct was in the public interest. Fourthly, proportionality should always be a factor, whether or not the conduct was no more than was necessary to protect the public interest asserted by the defendant. Fifthly, whether or not the conduct was for personal gain should be considered, but the fact that a defendant stood to gain from their conduct should not be enough to rebut the defence; after all, journalists stand to gain from scoops. Finally, a jury should always be left to consider the overall reasonableness of the defendant’s conduct in the light of a balancing of possible harms risked against possible benefits to be derived by the public.
In an interconnected world, many of us work in a number of professional fields, collaborating with agencies of foreign Governments. Particularly sensitive is the work of journalists, academics, researchers in commercial fields, and many working directly for friendly foreign Governments and international organisations. My noble friend Lord Wallace of Saltaire will elaborate our concerns about the foreign influence registration scheme, or FIRS, and the degree to which academics will be snowed under by a bureaucratic avalanche in working out what they need to do to comply with this law’s requirements, and then in undertaking the necessary registrations to comply with an unnecessary and overcomplicated registration system which threatens to stifle and deter international academic co-operation. Journalists, broadcasters and researchers in the commercial world, as well as the media, are equally under threat.
On a happier note, it is a relief to note that the Government have excluded giving and taking legal advice from the scope of this part of the Bill; a completely justified protection of legal professional privilege and the right of all to secure legal advice in confidence. However, the Bill contains a pernicious attack on the right to equality before the law. Clauses 82 to 84 give a court power to reduce damages payable by the Crown to any claimant bringing national security proceedings against the Government. But national security proceedings include any case where any of the claimant’s evidence or submissions, of whatever nature, relate to the activities of any security service, here or overseas. So if a claimant sues the UK Government—any department—and adduces evidence of wrongdoing by, for instance, the Saudi or Rwandan intelligence services, the Crown is entitled to seek an order that the damages will be reduced, and to seek that order at any stage in advance of final judgment. Granted that one of the factors the court must take into account is whether the claimant has been guilty of terrorist wrongdoing, but the lack of that factor does not avoid a reduction in damages. That is inequality before the law. It hands the Government a tool to stifle legal claims against them. It is inimical to liberty.
So too is the proposed ban of up to 30 years on the grant of civil legal aid for anyone convicted of any terrorist offence or an offence having a terrorism connection. The ban is not just for the most heinous terrorist offences but minor accomplice offences, which may have been committed by a family member and which, as the Joint Committee on Human Rights and the Law Society point out, may not be of a very serious nature. Further, the legal aid ban is not just for proceedings connected with terrorism but any civil legal aid to which they might be entitled for any purpose, thus largely putting them outside the protection of the law.
Although the general tenor of the Bill and its purpose are understood and accepted, at the later stages of this Bill we will be trying to make sure that it properly reflects the concerns that we have.
My Lords, I welcome the introduction of this Bill. It has been very clear for many years that our official secrets legislation is extremely elderly and was set up to counter threats that have changed and developed a great deal. It is right that we should be revisiting it. I hope that, in due course, the Government will seek an opportunity to revisit the Official Secrets Act 1989, which is also in need of reform, in my view.
For most of the last 20 years, the principal threat to national security we have faced in this country has been terrorism. While the terrorist threat continues to be very significant, throughout that period we have also faced state threats and foreign interference in this country’s activities. From time to time, that has become evident—for instance, with the Litvinenko killing or the Salisbury attacks—but much of what was going on was not visible. Indeed, many people, including some in public life, did their best to turn a blind eye to foreign interference activities throughout that period. That has been much harder to do since February and the atrocious invasion of Ukraine by the Russians. However, it is important to recognise that the threat of foreign interference does not come from just one country. We have seen a variety of foreign threats from several countries over that period, including a number of countries one would have viewed as a friend or ally in any other circumstances. Therefore, we need to have the ability to push back against foreign interference that is a threat to us, from whichever country it originates. In that regard, I think the Bill gets the balance correct.
The Bill also learns from a number of the legal measures that have been put in place to counter terrorism over the last generation. The introduction of prevention and investigation measures in respect of foreign interference seems to me an appropriate measure. We have been very careful in this country to apply the terrorist PIMs carefully, proportionately and in very small numbers, and I think we will learn from that in the way we apply the same mechanism to foreign interference threats.
I welcome the introduction of a foreign interests registration system; we have had a gap in our armoury on this for some time. It has worked well in the United States and Australia, and we need now to introduce similar legislation here. I have some sympathy for some of the concerns expressed about the definition of foreign interference, and I hope that, in Committee, we will be able to refine the definition and make sure that it bears heavily on those who cause a real threat but not on those acting legitimately. There are areas of concern here.
I welcome the proposals to introduce an offence relating to interference in elections, but I do not think that it goes far enough. I declare an interest as chair of the Committee on Standards in Public Life. In 2021, the committee produced a report on the regulation of election finance, which made a number of recommendations to tighten up the electoral system against the risk of foreign money and inappropriate finance coming in. I regret to say that the Government accepted almost none of the recommendations made at that point, but I wonder whether there might be a greater openness to such changes post Ukraine. I note that the Electoral Commission itself—in the briefing note it prepared on this legislation—made recommendations for tightening our election finance system which were broadly similar to some of the recommendations made by the Committee on Standards in Public Life.
The proposals in the Bill are worth while, but they do not go far enough. They still leave a wide opportunity for, for instance, companies to donate into the electoral system even though they have not earned the money from which the donation would come in this country. Where has that money come from? It has come from abroad.
The provisions in the Bill do not make any changes to, for instance, associations—I cannot think of the word, but there is a particular phrase which basically means any group of people who want to get together and donate money but do not want to be accountable as to who they are. That model of donation seems to me to be extremely open to abuse, not just domestically but internationally. So there is some progress here, but we have not gone far enough.
There are a number of areas of controversy in the Bill, as has already been stated, in particular the question as to whether there needs to be a public interest defence. I have some reservations on that proposal. I cannot think of any disclosures in recent years, even those that have been extremely damaging to national security, when the person making the disclosure has not claimed to be acting in the public interest. Edward Snowden is a good example of that; happily, he has just got his Russian citizenship, on which I am sure we wish to congratulate him.
The problem here is not that action needs to be taken against people who are genuinely acting in the public interest; it is the evidential problems of demonstrating whether the public interest has been engaged. That is a really big problem when you are talking about intelligence and the intelligence investigations that may lie behind that. We do not want to compound the damage by having to argue against a public interest defence. A similar issue appears in the Official Secrets Act 1989 with the definition of harm.
On Clause 28, I have complete sympathy with anything which provides protection for individual officers in the intelligence agencies or the military who are undertaking difficult and complex operations overseas. They need our support and protection. It is also extremely important that we retain the confidence of our allies, because so much of our national security is tied up with the strong alliances that we are part of.
Nevertheless, I recognise that we do not want to put ourselves in a position where it appears that we are endorsing illegal action which would be contrary to our values overseas. I use the word “appear” advisedly. I have no doubt that the agencies operate to high ethical standards and go to great lengths to ensure that they behave in an ethical and appropriate way in their operations, whether in this country or overseas, but we do not want to be easily accused of opening the door to unethical practice. I hope it will be possible in Committee to find a way of closing the gap between those who feel there needs to be protection and the concerns as to whether that protection is too broadly cast.
Finally, the timeliness of this legislation is extremely attractive. It is nice that we are in a good position to push back against foreign interference today, given the evidence that Russia is doing everything it can not just to destabilise Ukraine but to push back against the strong international co-operation and common disgust at what has been going on in that country. From that perspective, this is timely legislation and I welcome it.
My Lords, this is a long and detailed Bill which is clearly the product of much consultation and effort over a considerable amount of time by all those currently engaged in the defence of the security and well-being of our country. I am grateful for the detailed introductory letter that we all received from the Minister.
All the challenges facing us are shared by our allies. There is an issue for all parliamentary democracies of how to fight hostile state threats in all their complexity without compromising our own ethical principles and standards. All other Five Eyes partners have reviewed or are reviewing their own legislation. There will be opportunities for detailed discussion on specific points as the Bill progresses, but today in Second Reading I want to make, as briefly as possible, some general points from my own past professional experience and membership of the ISC.
Co-operation among our own security and intelligence services is, and has been in recent years, extremely close and interlinked—something that is much envied by some of our closest allies. It was not always thus. As late as the 1960s, there was much less understanding between MI5 and MI6, but happily that has completely changed, which is very much to the credit of the leaderships and members of both organisations.
On reading parts of this Bill, it struck me that much of it is codifying into law what has developed as good practice already. This seems to confirm that much which should already have been in legislation is in fact not, which validates the judgment that for decades there has been outdated and inadequate legislation in this field which has hindered rather than helped our agencies. It is indeed high time that we get our act together and produce helpful and decisive guidelines.
UK agencies are generally considered to be among the most overseen in the world. That is something to be proud of, but only as long as it never blunts or hinders their efficiency. This Bill has to deal with one of the problems that arises for all parliamentary democracies, regarding the use of material that is at risk of having been produced by others by means that would not be approved by us. In my opinion, responsibility for that decision should not be put solely on the shoulders of individuals in the field. We will see in the detailed examination of this Bill if a fair conclusion can be achieved on this problem.
It is good to be assured that our practitioners in the intelligence and security world have been involved in agreeing the contents of this Bill, and I look forward very much to the future of our deliberations.
My Lords, this Bill is clearly necessary. I welcome the intentions behind it, but I want to focus on some of its weaker provisions, specifically Clauses 13 and 14, Clauses 29 and 30 and Part 3.
In Clause 30, the definition of “foreign power” is extremely broad, covering all foreign states except Ireland, including political parties in government and agencies that are subject to effective control by government. Last week in Westminster Hall, I was talking to some Canadian Liberal MPs, currently in the governing party. On the face of it, under the provisions of Clause 30 and Part 3, I in should have declared that interaction to the Home Office. Do I need to fill in a form every time I go to meetings with like-minded politicians from foreign Liberal parties? We need to find some way of narrowing the definition of “foreign power” to prevent overwhelming the Home Office and confusing the many, many British people who interact with representatives of other foreign states. Should we not amend the Bill to exclude all members of NATO, or all states with which the UK has a security relationship?
How do we tackle foreign powers that are deeply embedded in British life, such as the Gulf states? These are anti-democratic monarchies, with a record which includes kidnapping their nationals on British soil and murdering their critics in third countries, but they are visibly present at Ascot and Newmarket, with houses in Belgravia and estates in Surrey, mixing and conversing with British society at the highest level, including MPs and Members of this House—more difficult to disentangle than the Russian connection of which the ISC report warned.
Clauses 13 and 14 deal with foreign interference in British politics and elections. I find it astonishing that action is now proposed in response to what the Government rightly recognise as a serious threat without their having followed the recommendation of the Intelligence and Security Committee to publish a substantial part of the evidence it had collected on Russian interference. When I asked an Oral Question about this last year, the noble Lord, Lord True, told the House that the Russia report had found no evidence of “successful interference” in UK elections—an admission that they had indeed found evidence of attempts to subvert our democratic processes but were nevertheless refusing to publish it.
This is not a dead issue. Mrs Justice Steyn, giving her judgment in the libel case Arron Banks brought against the journalist Carole Cadwalladr in June this year, stated that Mr Banks had lied about his meeting with the Russians, that at least some of the meetings were covert, and that more investigation was needed into whether the Brexit campaign had accepted any funds from Russia. Earlier this year, Mr Banks reportedly wrote off a further loan of £7 million to Leave.EU when it went into liquidation. The source of the funds for his remarkable generosity over the last seven years remains unclear, except that it came from somewhere foreign. If we are to have an informed debate in Committee, the Government must now publish what the ISC recommended we should be told.
The Minister in the Commons spoke in Committee of the importance of Parliament and the public understanding and the nature of the threat. That would help us understand the nature of the threat that we recognise so far.
I have asked for advice on the interaction between Clause 14 and the Elections Act, which this House considered earlier in the year. That Act extends the right to vote in UK elections to all UK citizens resident in all other states in the world for their lifetimes. There is little provision to check the identity or status of overseas citizens applying for the register; personation will be easy, the origins of donations almost impossible to verify. This Act takes a much tougher approach, against personation, misuse of proxies and acting as a channel for funds from a foreign power. I welcome that, but Tom Tugendhat’s new Defending Democracy Taskforce, which he announced the other week, will need to rewrite parts of the Elections Act.
The Act’s references to undue influence in UK diaspora communities also raise delicate and sensitive issues that we will need to examine. I speak as someone who has done a lot of politics in Bradford. The Israeli embassy and the Indian and Pakistani high commissions, for example, work actively to maintain the links between British diaspora communities and the states they represent. Britain has many diaspora communities, and many dual nationals who have settled here, from hostile authoritarian states as well as from Commonwealth members and democracies—Iran, for example. So far as I am aware, the UK has no coherent policy on the legal rights and obligations of dual nationals, either when in the UK or in their other countries of citizenship. This suggests that greater clarity there is badly needed.
Part 3, which establishes a foreign influence registration scheme, was added in Committee in the Commons. Sir Iain Duncan Smith remarked in Committee:
“The Government seem almost to have cut and pasted some of the US legislation and possibly the Australian legislation.”—[Official Report, Commons, 16/11/22; col. 747.]
The Minister must be aware that the Australian legislation led to an unanticipated surge in reports of “foreign activity arrangements” by Australia’s eight research-intensive universities, which overwhelmed the Government’s capacity to process submissions. The UK has a great many more research-intensive universities than Australia, which are actively involved in research partnerships across the world. We also have world-renowned research institutes in Chatham House, the International Institute for Strategic Studies, the Royal United Services Institute and others. As it stands, Clause 62 would lead to a flood of reports from all of these to the Home Office, far beyond its limited capacity to cope.
I speak with passion on this subject because it would have hobbled my own career. I was director of research at Chatham House for 12 years from 1978 to 1990, and thereafter taught international relations at Oxford and then the LSE. At Chatham House, among other things, I was the British secretary of the Anglo-Soviet Round Table, a forum for dialogue with the Moscow institute for world affairs—a state-controlled entity close to the Politburo. Our engagement was supported by the Foreign Office but repeatedly attacked as subversive by the Murdoch press throughout that period.
My wife would still be caught by this clause. She keeps in touch with, and visits, several former students who are now in government in several countries across Europe. Some of her visits have no doubt been paid for from state funds in those countries. My son would be caught, too. He is a systems biologist at Edinburgh University, involved in a number of international collaborations with universities in Germany, the Netherlands and the United States, and with the government-funded Institut Pasteur in Paris. When attached to an American university, he was working closely with Russian mathematicians. They and thousands more academics and researchers will be filling in forms and sending them off to the Home Office. What do we do about the many foreign nationals working in UK universities? Over 40% of the staff in some of our top universities—the figure is higher in the London School of Economics—and a good deal more of the students in some of our universities are from a wide range of friendly and unfriendly countries.
I have been told that the proposals in Part 3 were floated by the Home Office before and then withdrawn after sustained criticism from other Whitehall departments and outside bodies. I have the strong impression that the Home Office has not considered the overlap and duplication of this provision with clauses in the Higher Education (Freedom of Speech) Bill, which the House will consider on Report tomorrow. I understand that there has been very little consultation with universities so far. One academic told me yesterday that the Bill as currently drafted will transform the UK from a science superpower to a scientific bureaucracy superpower.
A concern with real threats must nevertheless consider that Britain’s universities are among its greatest international assets and that Clause 62, as drafted, could severely damage their reputations and future operations. Can the Minister assure the House that Part 3 will not be considered in Committee until the Home Office has ensured that other Whitehall departments are content with what is proposed; that it does not contradict other Bills or Acts; and that our research universities, our leading international institutes, the Royal Society and the other academies have all been properly consulted on its implications?
The Bill focuses on state threats, rather than on non-state threats. It is fuzzy on quasi-state enterprises—companies owned by sovereign wealth funds in Malaysia or Qatar, or companies with a substantial and sometimes controversial presence in the UK, such as DP World—and does not touch on the role of immensely wealthy private persons, whether Russian, American, Arab or Asian, attempting to influence events in the UK by penetrating British society and through money.
Right-wing authoritarians such as Viktor Orbán in Hungary have made much of what they regard as the malign influence of George Soros and his open society foundations. I am concerned about the malign influence of the American Koch family foundations and their attempts to influence British politics through their close links with right-wing think tanks here. I read footnotes to Koch foundation publications in the Policy Exchange papers that shaped the Higher Education (Freedom of Speech) Bill. Policy Exchange does not publish where its funds come from. Nor does the Institute of Economic Affairs or the Adam Smith Institute, which together exerted such strong and malign influence over the Truss Government. We know, however, that they have received funds from American multinational companies and foundations, and we have a right to know more about all their foreign funders.
The Boardman review of the fallout from the Greensill scandal in 2020 recommended to the Government that they
“should consult on whether think tanks, research institutes and lobbying academics should be required to disclose their sources of funding and whether there are circumstances when they ought to be required to register as consultant lobbyists.”
I am surprised that this proposal is not in the Bill, at least as far as foreign funding is concerned. I will attempt to amend the Bill to force political think tanks to declare all overseas sources of funding.
This is an important and necessary Bill but it has been badly drafted and inadequately thought through. It is better to get it right than to rush it on to the statute book.
My Lords, I was going to say quite a lot this afternoon, but my noble friend Lord Evans and I did not share each other’s speeches beforehand, and he has said most of what I wanted to say. I assure noble Lords that there are many times when I do not agree with him—we had plenty of animated disagreements in our past life together— but I agreed with everything he said a moment ago, so I will spare your Lordships a long repetition.
I start by mentioning, at my noble friend Lord Anderson of Ipswich’s request, that he very much wished to be here but is not able to be. He hopes that, as a former Independent Reviewer of Terrorism Legislation, and given his interest in this broader subject, he will be here at later stages of the Bill.
As we have already heard, this Bill is a doorstop. It is complex and long, and it attempts to do a number of things. I welcome it, as the Opposition and the Liberal Democrats have. It is important and long overdue.
Since I have been in this House, we have had plenty of legislation on aspects of terrorism but very little on aspects of what I was brought up to call “hostile states”. I have now learned that the current terminology is “hostile activity by states”—I must get that right. Either way, the defences of this country, and the work of my former colleagues in the intelligence agencies and the police, are weakened by the lack of a proper legislative framework—one that, in most cases, was drafted to deal with the run-up to the First World War and the Second World War and the threat from German espionage.
I have also heard people say that this is a new threat. To a degree, it is, in terms of its scale and what can be done by cyber, and given that there is no longer the need for small cameras to photograph documents. It is a different threat, but the reaction to the story of the Chinese agent in the Commons earlier this year showed me that there is a degree of naivety among the public about what is done by intelligence services that are hostile to this country. We should not have been as surprised that that woman was cultivating and paying money to Members of the other House; that is to be expected.
I remind people of various aspects of what this activity might be. There is, of course, the traditional one of stealing secrets, but there are not only state secrets but commercial secrets—we have seen the attempts to attack the work on vaccines in this country. We have also seen attacks on critical national infrastructure. I cannot remember all the aspects of it—being younger than me, my noble friend Lord Evans probably can—but it covers various sectors of British society whose continued successful operation the Government rightly believe is important for the success and safety of the United Kingdom. We have seen disinformation, including anti- vaxxer propaganda, spread around.
I know that I must not think just about Russia any more and must think more broadly. We were reminded only recently by our current head of MI5 about what Iran is doing in this country, trying to kidnap people, and about Chinese police stations. But I can remember when a key part of what the KGB did was called “active measures”. It was not stealing secrets but trying to attack us by influencing, persuading, sowing disagreement and undermining democracy. Disinformation is still very much happening.
There have been references to the murder of Litvinenko, the attacks in Salisbury and kidnaps. I strongly agree with my noble friend’s comments on the protection of the electoral process and its integrity. I do not know the facts, but I have certainly read, and believe it very likely to be true, of attacks on the British, French and American electoral systems. It is possible to know all that without knowing whether they had any effect or impact. Quite frankly, a lot of this effort may be pointless, but it is still there to be watched.
I am going to skip the next two pages and wind up with the challenges of this legislation, which I think are clear and have been extensively mentioned in the other place. They were all mentioned by my noble friend: legal aid, Clause 28 and the public interest defence. I join others in pointing out that there are some very good mechanisms for whistleblowers and others to raise issues, internally and externally, before going to the press. They have existed for many years. There is an ethics counsellor, internally, who has been there for at least 20 years. There is an external counsellor—it was previously Sir John Chilcot, but I do not know who it is today—to whom members of staff can raise ethical issues and concerns. There is the chair of the ISC and the Investigatory Powers Commissioner’s Office. There are others, before the press, to whom people can raise concerns and be listened to.
In protecting against damage, we have to remember the human agents involved. I do not mean members of the organisation; I mean those the legislation calls covert human intelligence sources—that awful chunky expression. These people give information, in some cases at risk of their lives, for very little remuneration, to protect us and others from threats and attacks. Any public interest defence risks danger to them. Getting that right is very important.
As others have mentioned, the scope and practicality of the foreign influence registration scheme, however important it is in principle, again needs more scrutiny.
I end by saying that we can address and manage those challenges during this Session. This Bill is fundamentally important and long overdue, and I welcome it.
My Lords, this legislation has been a long time coming. The ISC first recommended reform of the outdated Official Secrets Act almost 20 years ago, in 2004. In the intervening period, as has been said by a number of speakers, the need for reform has become more pressing. The world has changed significantly. Threats to the UK’s national security, particularly from hostile state actors—I must get that right —have become more complex, varied and destabilising, making it more important than ever for our intelligence community to have the tools it needs to defend us.
In 2020, the ISC’s Russia report explicitly and simply stated that
“the Official Secrets Act regime is not fit for purpose”.
We recommended that new legislation be urgently introduced as,
“the longer this goes unrectified, the longer the Intelligence Community’s hands are tied.”
The ISC therefore strongly welcomes the long-awaited introduction of the National Security Bill.
Nevertheless, the committee is disappointed to see that the Government are only partially reforming the Official Secrets Act regime. The 1911 and 1939 Acts are being repealed but, crucially, not the 1989 Act, which deals with the unauthorised disclosure of sensitive information. This is a significant missed opportunity. The Government have accepted the need for change for years. In their 2021 consultation paper on the National Security Bill, they said it would,
“include, at a minimum … Reform of the Official Secrets Act 1989”.
Despite that recognition, this Bill still does not reform the 1989 Act.
If this Bill is to provide a new framework to tackle state threats, as it purports to do, it is vital that that framework is comprehensive. It must provide better protection for sensitive information, such that offenders can be prosecuted effectively. This is too serious an issue to have been put in the too-difficult pile, as it appears to have been. I hope the Minister agrees that sensitive information must be properly protected and will therefore commit to reforming the Official Secrets Act 1989 as part of this Bill or, at the very least, to introducing additional legislation in this parliamentary Session.
Before I address the detail of the Bill, I want to emphasise the words of my ISC colleagues in the other place. They made it clear that they felt the Government’s handling of this Bill had been disgraceful and had significantly undermined Parliament’s ability to scrutinise the proposed legislation. There has been a catalogue of problems, including multiple Security Ministers responsible for taking the Bill through the other place; the Government’s introduction of the most significant aspects of the Bill by amendment at a very late stage, reducing the time available for scrutiny; and the limited time made available for debate, preventing any serious consideration of the proposed changes to the Bill in the other place. This Bill is about our national security; it is too important to be handled in such a haphazard manner. I am sure that I speak on behalf of all noble Lords when I say that we expect the need for effective parliamentary scrutiny to be taken seriously by the Government.
I turn to the detail of the Bill. Many of the changes proposed were recommended by the ISC and therefore we broadly welcome them. Clause 1 incorporates updated language to reflect the modern espionage threat. It replaces the outdated existing legislation with provisions that are tailored to the radical technological changes that have taken place since the Official Secrets Act early in the last century. Clause 12 is also sensible, creating a new sabotage offence. This is an important change, particularly given the risks of foreign involvement in critical national infrastructure, which the ISC first publicised in its report of the same name in 2013. Clauses 3 and 15, which create new offences for assisting or obtaining material benefits from a foreign intelligence service, are valuable additions. Together with Clause 16 —the preparatory conduct offence—these will provide law enforcement with additional tools to disrupt foreign agent networks at a much earlier stage, making the UK a more difficult environment for foreign intelligence services to operate in.
Turning to the long-awaited foreign influence registration scheme, one of the cornerstones of the new regime, the ISC firmly supports such a scheme to increase the transparency of foreign influence activity in the UK. It was a key recommendation of the ISC’s Russia report in 2020, which assessed that such a scheme would be helpful in countering overt Russian influence. It is perhaps a case of better late than never. The United States first introduced such a scheme in the 1930s, over 80 years ago. By contrast, despite the Government describing it as a key component of the new Bill, it was introduced only by amendment late in Committee in the other place, driven, I understand, by the last-minute events in Ukraine. This delay has meant that there has not been sufficient time to scrutinise this very complex regime. We now have time to consider it and, as an aside, bearing in mind thoughts of abolishing this House, thank goodness for our Chamber’s ability to actually do that.
I believe that noble Lords will find the same as the ISC, that, as it stands, the scheme is too complex, compared to similar schemes in the United States, for example, while at the same time not going far enough. It is separated into two registration tiers: the first captures all arrangements and activities that are undertaken on behalf of any foreign power for the purpose of influencing a political event or decision. This is a welcome provision, providing an additional tool to disrupt clandestine foreign activity that is intended to influence our democratic institutions. The second, enhanced tier of registration will capture all other activity beyond political influencing. It will capture, for example, acting as a foreign intelligence officer. For arrangements or activity to require registration, such activity has to be undertaken on behalf of a country set out in secondary legislation. It therefore does not apply to every country automatically.
It is difficult to understand why, unlike with comparable schemes in the US, there are two tiers and why the registration of harmful activity outside political influencing applies only where the foreign power is set out in secondary legislation. It is possible that harmful operations will be undertaken by countries that are not named in the regulations and so will not require registration. Requiring all countries to register such activity would act as a far stronger deterrent, helping the authorities prosecute such behaviour and making the UK a more challenging environment in which to operate.
Listing countries by regulation will also be a challenge to use in practice. It will take time for the Government to agree which countries to add, particularly given the potential diplomatic ramifications, when flexibility and pace may be required. These flaws will inevitably lead to the enhanced tier, which could have been a valuable tool, not being used. As the Security Minister recognised in Committee in the other place, the use of this enhanced registration requirement will be “limited”. This is a wasted opportunity, undermining a potentially effective tool. It must be more effective to have one tier that applies to all countries and a broad range of covert activity. That may require there to be a greater number of exemption categories, but it would surely be a simpler and more practical system of registration.
Little thought also appears to have been given to the transparency of the scheme. While the Security Minister has said that the registrations under the primary tier will be published, he confirmed in Committee in the other place that those relating to the enhanced tier, reflecting the most damaging activity, will not be published. There is no reason for that disparity. While there may be a national security reasons justifying why certain information cannot be made publicly available, that will not always be the case. Transparency is at the heart of the scheme and, in order to avoid it being fundamentally undermined, details relating to the secondary tier must be published.
For the scheme to work effectively, the Home Office team supporting it must be properly resourced. That unit will be responsible for scrutinising submitted documents, identifying risks and updating the register, yet in Committee in the other place the Security Minister said:
“It is unlikely that every registration will need to be scrutinised. More likely, the register will be a resource for public scrutiny.”—[Official Report, Commons, National Security Bill Committee, 18/10/22; col. 401.]
The Government clearly believe they can save money by not resourcing a team at the Home Office and relying on the public, a position completely undermined by the fact that details relating to the enhanced tier are not going to be published so the public will not know what to report. We believe that a failure sufficiently to resource this crucial unit or an overreliance on public scrutiny will fundamentally undermine the regime’s effectiveness.
I turn to the important Clause 28, about which Members of the other place had serious concerns and which the ISC cannot recommend to this House. Clause 28 disapplies the offence of encouraging or assisting offences overseas under the Serious Crime Act 2007 when the activity is deemed necessary for the proper exercise of any function of an intelligence service or Armed Forces. Put simply, it provides a rare carve-out from liability for the intelligence agencies and armed services when working abroad. Colleagues in the other place, particularly those from the ISC, question the justification for such a broad exception from criminal liability. There is already an offence of acting reasonably under Section 50 of the Serious Crime Act. Further, the agencies can already seek immunity from liability for any act committed abroad under Section 7 of the Intelligence Services Act 1994. The lack of a proportionality requirement and the absence of an oversight mechanism were also criticised.
The Bill Committee in the other place recognised that there may be highly classified information underpinning the Government’s rationale for the clause that could not be disclosed to it, and the Government committed to provide the ISC with that highly classified material. The ISC has now considered that highly classified material, which was taken in evidence, and I can tell the House that the committee is of the view that Clause 28 potentially identifies a legitimate problem, which is that, despite the existing legislative protection, there may still be a risk of criminal liability for junior members of the intelligence community and the military, even when acting within the remit of their duties, which could have an impact on operations. Indeed, to be fair, there have been historical instances where military and agency junior ranks in the field have effectively been hung out to dry when doing their best to fulfil what they see as their duty. The ISC therefore sympathises with the aim of the clause.
Nevertheless, the ISC is also firmly of the opinion that the clause goes considerably beyond what is needed and is not appropriate as drafted. While the existing mechanisms to avoid liability may not be comprehensive, that does not justify such a broad automatic exemption with such limited accountability. The clause must be either significantly amended or replaced entirely. The ISC has been given an assurance that the Government are looking to find a way to meet its concerns. They must work quickly to identify a more appropriate approach, as the current clause is unacceptably broad, and we cannot support it as it stands.
If there were time, I would draw noble Lords’ attention to a number of other important points that were raised by the ISC and other colleagues in the other place; no doubt we will consider these as the Bill progresses. I particularly note the need to consider simplifying the “trade secrets” definition in Clause 2 to make the offence more effective in practice; the need to expand the “foreign interference” offence to cover recklessness as well as intent; the concern that the state prevention and investigation measures be used only as a last resort; and exhortations to extend the oversight provisions in Clause 54 across the rest of the Bill.
The ISC firmly supports the aims behind the Bill, but it requires careful analysis and considerable improvement if it is to strengthen the ability of law enforcement and the intelligence community sufficiently to manage the significant threat posed by hostile state actors, and if the UK’s new national security regime is to be comprehensive and effective. We echo what was said about the bravery and efficiency of the agencies, and what they achieve. The Bill will be very useful for them in making our nation safer, but it needs a certain amount of amendment.
My Lords, the speakers’ list for this Second Reading debate is a terrifying assortment of people who know what they are talking about, whether it is the law, foreign agents or hostile acts by other states. Unlike the noble Baroness, Lady Manningham-Buller, I will not hesitate to refer to things that have already been referred to, but I will do so more briefly and through the narrow lens of civil liberties and, of course, justice.
Call me untrusting of this Government, but I am always sceptical when they come to your Lordships’ House and ask for more power, especially under the vague guise of national security. Over the last two decades there has been a steady erosion of civil liberties, under both Labour and Conservative Governments, and this has become an absolute landslide in the past few years, given the legislation that has gone through your Lordships’ House.
The test for any such legislation is: what powers are being asked for, for what purposes and how might they be misused? As the mother of a journalist, I am particularly concerned about the Bill’s potential misuse against journalists, and the Government’s refusal of a public interest defence in the other place. Similarly, there are many concerns about the widely drafted offences being committed by civil society organisations that receive some funding for international work on environmental, human rights, press freedom, asylum or other issues. The Bill undermines the rule of law and our international reputation by shielding Ministers and officials from accountability for serious crimes such as torture, and by denying compensation to victims on the basis of vague national security factors in a crucial area.
There is also the question of what the Government are leaving out. As is often the case, the Bill is found lacking. There is a minor section in it about foreign interference in elections, but how is anyone supposed to judge whether this is sufficient when the Government have not published their 2019 Russia report? The country is still in the dark about the nature and circumstances of Russian interference, even if it did not achieve very much. Tinkering with election offences does not come close to giving reassurances that our elections are free and fair. So I only have one question for the Minister today: will the Government publish the Russia report before Committee, so that we can understand what is actually being said?
The Security Minister in the other place recognised that there are
“some important points and challenges that we will have to look at.”—[Official Report, Commons, 16/11/22; col. 760.]
The Government have had some months to look at the important points, and I hope the Minister will bring amendments to resolve them.
My Lords, like previous legislation on intelligence and security, the Bill gives significant powers to agencies and Ministers, and it creates new offences. Its purpose is to help protect our citizens, but it is in the nature of these powers and this work that, in order to be effective, much of it must operate in secret, without the visible accountability we would normally expect. Therefore, there are alternative forms of accountability: commissioners, reviewers of terrorist legislation, the courts, the tribunal and the Intelligence and Security Committee, on which I will concentrate.
I was a member of that committee from its establishment in 1994 until 2008. One of the consequences of being on it rather a long time is that this debate is full of people from whom I took evidence during that period, not excepting the noble Lord, Lord West, the only present member of the committee in this House, who made such a valuable contribution to the debate earlier. The committee was created when, until very recently, the existence of the agencies was either denied or not acknowledged, and when the Five Eyes alliance was a secret. The result was that it was a battle—I suspect it still is—to get the level of access essential to the committee doing its job.
I see that job as having two principal purposes: to ensure that the secret parts of government operate competently and efficiently, with adequate resources; and to ensure that they do not do what Parliament would not allow them to do if they were openly accountable. I see it as a reassurance—or an intended reassurance—for Parliament that a representative group of colleagues not beholden to the Executive has sufficient access to the secret activities of government and sufficient independence of judgment to ensure that these objectives are properly met.
As time went on, the committee increased its access, helped by a new generation of agency heads, many of whom recognised that it was in the interests of their service to have effective accountability. We had many battles, particularly with Ministers. Battles continue, including the doomed attempt to instal Chris Grayling as the committee’s chairman. The Justice and Security Act 2013 strengthened the committee’s position, particularly in relation to operations and the important inclusion of defence intelligence in the committee’s remit. This Bill makes no further changes, but it creates further issues and processes for the committee to monitor. I want to focus on two examples of the problems it faces.
The first is the disengagement of Prime Ministers from the committee, which has occurred under several recent Prime Ministers. Because reports are redacted, the normal process of parliamentary and political reaction leading to improvement is severely limited. On some quite major issues, only the Prime Minister has full access to the committee’s conclusions. He or she needs to respond directly in discussion with the committee. Meetings between the committee and the Prime Minister were normal practice after the annual report was produced, and for some special reports as well. They should resume.
The second issue is what appears to be an obscuring of ministerial involvement in difficult and highly controversial issues where the agency’s actions may or may not have specific authorisation from the Minister. That brings me to Clause 28, which has been referenced. It provides a defence that “extra-territorial application” of the Serious Crime Act 2007 would not apply if the action or the assisting or encouraging of that action was necessary for
“the proper exercise of any function of the”
intelligence agencies or the Armed Forces. It is not a new problem, but it used to be dealt with by ministerial authorisation, which would be available only when the circumstances were exceptional and the action proportionate and defensible. As I understand it, ministerial authorisation is not required under this formula—or so it appears. It might not even be sought if it were thought better for the Minister not to know about it. That would be a very unhealthy state of affairs to encourage.
Serious issues may be raised by this provision. They range from very minor breaches of local law in intelligence-gathering right up to rendition resulting in torture. We should not have a situation in which the relevant Minister can claim that they were not fully consulted, briefed or asked for any specific authorisation. The ISC pointed out in its 2010 report on detainee mistreatment that:
“The Guidance is insufficiently clear as to the role of Ministers, and what (in broad terms) can and cannot be authorised. The Guidance should … make clear that Ministers cannot lawfully authorise action which they know or believe would result in torture.”
What if Ministers are never asked because of Clause 28? Ministerial approval, or its refusal, is an essential part of the chain of accountability, and it needs to be maintained and backed up by ISC scrutiny of Ministers’ actions in this area.
This brings me to my experience of the committee’s attempts to establish what submission was made to Ministers on the potentially controversial action outside the United Kingdom involving an intelligence agency. Several of our reports made reference to the stonewalling in this instance, with numerous mutually inconsistent excuses being offered for failing to provide the documentation. I refer right back to the 2006-07 annual report, under the chairmanship of the noble Lord, Lord Murphy of Torfaen, which reported that, at its meeting with the Prime Minister, the committee had been
“told that the matter would be reviewed once again, although this instruction does not appear to have filtered down to those concerned.”
Referring to the Government’s position as “untenable”, the committee revealed how many years it had been submitting this demand for the disclosure of specific documents. Although the paragraphs were published, No. 10 successfully demanded that the number of years the committee had been seeking this documentation would be redacted—and it was.
You cannot serve on the ISC without becoming aware of how many very able and, in some cases, very courageous people work in intelligence agencies and the related organisations on our behalf. Effective accountability in a form which is compatible with the secrecy of their work is in their interests, just as it is in the interests of the citizens they protect. It is also in their and our interests that the legislation they work under is fit for purpose. As noble Lords have indicated so far in this debate, there is considerably more work to be done to ensure that this Bill meets that test.
My Lords, a benefit of my removal to the Cross Benches some years ago is that, very occasionally, I have the pleasure of following the noble Lord, Lord Beith. As ever, he spoke in a cogent and considered way, and I agree with most of what he said.
I am very grateful to Ministers and officials for the level of consultation that at least some of us have received on these important and difficult issues. Officials have been exemplary in those discussions: not venturing opinions but giving options we can discuss, to the benefit of the Committee stage, when we come to it. I know that my noble friend Lord Anderson of Ipswich shares that view. Unfortunately, as has been said, he is absent today as he is doing public duty in another part of the British Isles, but I am sure that his absence will be requited in Committee.
I broadly support the Bill, and, in doing so, I join in the tributes to the intelligence agencies. When I was the Independent Reviewer of Terrorism Legislation, I saw not only their diligence and efficiency but that they spared this country from numerous very unpleasant events which would have caused enormous distress to the public. They are not thanked often enough, perhaps because of their innate secrecy.
It is doubtless that, in Committee, we will discuss nuances and finesses that we will make on this Bill. I listened with particular attention to the noble Lord, Lord Marks, who raised some very important points which will benefit from detailed discussion. Broadly, I welcome the opportunity to update the legislation around official secrets and connected matters; it is overdue for this kind of update. As has already been mentioned, the Bill was amended in important aspects in Committee in another place. Of course, while we all acknowledge the skill and interest of the Members of Parliament concerned in those amendments, any amendment by even very senior Back-Benchers in Committee represents a perilous way of producing enduring legislation which would survive the scrutiny of the courts—and not only of mature policymakers.
I want to raise two issues in particular, both of which have already been raised. Clause 28, which the noble Lord, Lord Beith, referred to a few moments ago and the noble Lord, Lord West, referred to earlier, would amend Schedule 4 to the Serious Crime Act. Total and predestined immunity from prosecution is an unattractive option in any area where there may be—however remote—a risk of serious and possibly deliberate wrongdoing. I am totally opposed to any form of immunity, which sits uncomfortably in our law anyway, not least because there are alternatives. For example, I suggest to the Government that they could easily prepare a separate statutory defence that explicitly protects those carrying out acts necessary for the proper exercise of the United Kingdom intelligence community’s statutory functions. This could include a separate offence with an evidential burden of proof—mentioned by the noble Lord, Lord Marks—in which the prosecution would have to disprove to the criminal standard that the burden of raising the evidential standard of proof had been created in the case, rather than an elaboration of a reasonable defence. Reasonableness is something that is extremely difficult to define in a reasonable way because, of course, we have many views of what is reasonable, even in the expertise of your Lordships’ House.
I also suggest that, as an alternative to Clause 28, there could be a clear reference to the responsibility of agency heads and ministerial responsibility, which in my view remains important. Ministers should be required to take these responsibilities if they become Ministers; after all, it is voluntary and known to be responsible. Ministers and agency heads should ensure the acts of a member of the UK intelligence community which would otherwise be an offence under the Serious Crime Act are necessary to fulfil statutory functions. It is similar in wording to Section 13(2) of the Bribery Act. That could include a new document which would bear close similarity to the July 2019 document entitled The Principles relating to the Detention and Interviewing of Detainees Overseas and the Passing and Receipt of Intelligence relating to Detainees. That is a government document and is a splendid example, a paradigm, of the sort of document required in the situation we are discussing.
I also ask your Lordships to remember that in our unwritten constitution there is a further guarantee that is very rarely discussed: the second part of the Crown Prosecution Service code test. Before a prosecution can be brought, even if there is evidence prima facie that there was an offence, the Director of Public Prosecutions considers whether it is in the public interest to bring that prosecution. That is a very important protection which has been exercised in a few—only a few—extremely significant cases. In my view, the fears that I have heard expressed from the agencies that without an immunity there would be a serious risk of prosecution and that operatives would therefore move very nervously is not borne out by any evidence at all. If you look at very delicate areas of the law—take, for example, assisted suicide—there are almost no prosecutions and one can rely on that constitutional protection given by the public interest test as being important.
The noble Lord, Lord Anderson, has suggested—indeed if you care to read his interesting tweets you will see this set out in detail—an amendment of Section 7 of the Intelligence Services Act 1994. I offer that too for consideration and explanation so that we can make an educated choice on the alternatives to Clause 28 as it exists.
I turn to the second issue that concerns me: Part 3 and the foreign influence registration scheme, or FIRS, which has been mentioned by others. I should mention my interest in this area. I happen to be involved in running a small company that advises foreign Governments and entities, including companies and, occasionally, charities that would also be affected by this. We have experience in the work that we do with the National Security and Investments Act 2021. We have examined many cases under that Act and there have been more than was imagined at one stage, but the Act deals competently with national security issues. FIRS is not about national security. National security cases with an investment element are considered under that legislation. The Ministry of Defence and BEIS have set up well-organised units to deal with that small cohort of cases.
I have no objection in principle to the FIRS system. However, it is much broader than the United States equivalent, which is called FARA, or the Australian FITS system. The way it was raised in the House of Commons means that, to take a metaphor from architecture, it looks like the first concept drawing by an assistant in an architect’s office to see very roughly what the skyscraper they might possibly design in future would look like. That concept drawing has not been the subject of any detailed analysis or information.
FIRS could affect a huge number of entities. It could have a dramatic effect on legitimate commercial confidentiality by there being a registered public register that would tell competitors in the United Kingdom what foreign companies were thinking of doing. It would require the disclosure of other forms of confidential information, which fall within the normal commercial confidentiality picture. As I said, it would affect charities. I am aware of charities operating in Ukraine—Ukrainian charities that collect money in this country and do very good work. There are charities operating in Romania, dealing with the aftermath, now many years later, of the problems in orphanages, which many of us are old enough to remember. Those are foreign charities, some of them very small, which would find themselves having to instruct lawyers and consultants to swallow their hard-earned cash to be able to carry on with their work. I suspect that some smaller charities would simply give up. It will also affect the appetite of foreign large-scale investors, including sovereign wealth funds, to invest in the United Kingdom, if they think that, without a clear architecture to which they can refer, they will simply have to disclose. Because there are criminal sanctions, people will take the cautious approach and feel that they must register, even though it is not strictly necessary.
If we are to have a FIRS system—as I say, I am not opposed to it in principle—we must have the structure that makes it work. There has to be a registrar and it has to be a separate registrar, which must have enough staff, so that it does not become a pale imitation of the immigration system. We must have points of reference, so that those who intend to register can write frankly to the registrar and ask whether it is necessary, obtaining advice on how best to do it, as we do when we register our interests with the registrar of Members’ interests in your Lordships’ House, who is always very helpful in assisting us to draft a form of our registration of particular interests. We have seen nothing of that. If we in your Lordships’ House do not see codes for guidance—a document similar to the principles relating to the detention of overseas detainees—while we are debating this matter, we will be working in the dark. That would not be a proper way for the Government to proceed and, more importantly, could be damaging to the national interest.
The registrar could be self-funded, because it is perfectly reasonable to ask people to pay fees in proper circumstances, and required to produce annual or biennial reports, like the Independent Reviewer of Terrorism Legislation. Indeed, I am puzzled as to why FIRS has found its way into a National Security Bill, because it is not a national security issue. It looks as though it is a way to appease some argumentative Back-Benchers in another place, but I suggest to the Minister and the Government that what should really be done is that the Government should commit themselves to introducing another Bill in the next Session of Parliament, when these questions raised by me and others have been ironed out, so that it is a proper vehicle for legislation.
I welcome the intentions of the Bill and I strongly support the work of the agencies in keeping us safe, but years of experience of trying to get to the truth on rendition—Britain’s facilitation of kidnap and torture—have made me cautious about it. Others have alluded to the shortcomings of Clause 28, and Clauses 82 to 85, among others, and I shall linger on their effects for a moment in the context of rendition.
As the noble Lord, Lord West, pointed out, Clause 28 would give effective immunity—a line of defence from prosecution—to politicians and those advising them for assisting or encouraging crimes such as torture, where their actions are deemed necessary for UK intelligence purposes. The word “necessary” is extremely important in this context. The effects of this clause are very broad and, in my view, disproportionate.
Clause 85 provides the means whereby, in civil cases, Ministers and their advisers could avoid paying damages, even where it is accepted that they carry liability, by citing “national security factors”. That also needs careful attention as a phrase: I was quoting from the Bill. The risk must be that, as a consequence, a number of obstacles —and the current arrangements are obstacles—to the practice of the UK’s facilitation of extraordinary rendition, the kidnapping of people and taking them to places where they may be maltreated or tortured, would be removed. An example might help.
In the Belhaj case, a Libyan family were tortured by Gaddafi after Mr Belhaj’s rendition with the assistance of American and British intelligence operatives. A criminal investigation followed—exactly the sort of investigation that these clauses might well close down. Ben Jaffey KC, who led in the Belhaj case, has concluded that the new clauses
“will in practice, allow UK intelligence services to carry out a range of grave criminal conduct, without existing safeguards of personal ministerial authorisation and oversight.”
Whether this transpires or not, even the appearance of it resulting would be damaging, a point made by the noble Lord, Lord Evans, earlier this afternoon. I do not think that even the appearance of such conduct should be made any easier, and these clauses need to be re-examined.
We need to have in mind that the existing checks on rendition have failed to prevent it. We also need to bear in mind that in the years following 9/11, Britain appears to have been involved in at least 70 cases, according to the 2018 ISC report. The fact that the UK was involved in any rendition is bad in itself, but we should be concerned for at least two other reasons. First, the effects of such facilitation have been the opposite of those intended: they have hindered the security services, and those of other western agencies, in their efforts to collect intelligence. That is a point—I was more or less quoting there, too—made on more than one occasion by Sir Richard Dearlove, the former head of the SIS. Secondly, our involvement also undermines the values that we are seeking to export—a point not lost at all on President Putin, among others, at the moment. The fact that these clauses might weaken the checks in place on the facilitation of such practices is reason enough to be very concerned about them.
These clauses might have been less unacceptable if the Bill had contained an explicit role for Parliament’s watchdog of the security services, the Intelligence and Security Committee; but far from containing such a provision, the Bill makes no mention of the ISC at all. In my view, the ISC can and should be given the job of ensuring that such a unique carve out of Ministers and officials from the criminal law, and such an exclusion in practice from claims that might otherwise come from maltreated victims, are not misused by future Governments.
Given the secret nature of much of the information likely to be covered by these clauses, and by other parts of the Bill, the ISC provides the only realistic place for parliamentary scrutiny. In this context it is important to bear in mind that almost all other scrutiny routes, and almost all means of securing reasonable transparency about rendition, have been closed down or abandoned. The Justice and Security Act created an effective bar against information coming from FOI, and the judge-led Gibson inquiry into kidnap and torture was first suspended and then abandoned, the Government clarifying later that they had no intention to resuscitate it, nor anything similar.
Even the Intelligence and Security Committee itself has struggled. In its first investigation the ISC erroneously concluded that there had been no British involvement in kidnap and torture. This was, we were much later told, because the committee had been supplied with misleading information, apparently as a consequence of inadequate record-keeping by the agencies. The ISC’s second inquiry into kidnap and torture was abandoned in 2018 when the then Prime Minister denied the committee access to almost all the people in the security services who might have been able to help it find out what was really going on. That is why that inquiry came to a halt. So the ISC itself needs bolstering. It needs, in my view, with the exception of material concerning current operations, to be given access to all people and papers that it deems necessary for its work.
However, the powers of the ISC are largely a subject for another day. For now, what matters is that, at the very least, the ISC’s remit is extended to include this legislation. The noble Lords, Lord West and Lord Butler, both attempted to provide the ISC with such a role in respect of the National Security and Investment Act, but they appear to have failed. The same arguments that they developed about the need for ISC oversight in a parliamentary democracy apply here.
Paragraph 8 of the Government’s own MoU, agreed with the ISC, asserts that
“only the ISC is in a position to scrutinise effectively the work of the Agencies”.
Yet as the noble Lord, Lord Butler, put it in that earlier debate last year:
“It is as if the Government have acquired a watchdog, yet are unwilling to let it bark”.—[Official Report, 16/3/21; col. 241.].
I urge the Government to think again about Clause 28 and Clauses 82 to 85, and I urge them to at least provide the ISC with an explicit scrutiny role and put it in the Bill.
My Lords, I want to pick up two points raised by my noble friend Lord Coaker in his introduction, and which others have touched on in the course of the debate. They are the proposals in the Bill to criminalise legitimate public interest journalism, and to ask whether the measures included within this Bill, and the similar measures in the Online Safety Bill, are sufficiently harmonised.
The Minister has explained the rationale for the Bill and noted the influence of the preceding Law Commission review. However, the Joint Committee on Human Rights points out that, although the Bill is broadly in line with the Law Commission recommendations, it does not include all of them, and as a result there are risks that the Bill would
“criminalise behaviour that does not constitute a threat to national security”
“interfere unnecessarily and disproportionately with rights to freedom of expression and association”.
A free and independent press facilitates government accountability and the public’s right to know, but the nature and scope of the proposed espionage offences will have a chilling effect, discouraging sources—including whistleblowers—from coming forward and engendering a risk-averse environment in media organisations. Others have argued that the failure to include a public interest defence in the Bill poses a grave threat to investigative journalism and its sources.
Clause 5 outlines conditions under which unauthorised entry to a prohibited place would be a criminal offence. The noble Lord, Lord Marks of Henley-on-Thames, expressed concern that photographers capturing material as part of their journalistic duties would thereby fall into scope of the Bill. The Law Commission envisaged a public interest defence available to anyone—including journalists and photographers—charged with an unauthorised disclosure under the Official Secrets Act 1989 on the basis that
“it was in the public interest for the information disclosed to be known by the recipient; and … the manner of the disclosure was in the public interest.”
I accept the concerns expressed by the noble Lord, Lord Evans, and the noble Baroness, Lady Manningham-Buller, but I believe that the courts would be able to reach a view on such cases, and I urge the Government to introduce the defence.
The Law Commission also advocated having a statutory commissioner to investigate allegations of wrongdoing or criminality made by civil servants or members of the public where disclosures of such concerns would be an offence under the 1989 Act. There may be other protections for whistleblowers, as has been pointed out, but there is a principle at stake here. The report I have already quoted noted that the
“recommendation for a statutory commissioner, fortified by a public interest defence, … is about a fair law that takes seriously the public interests in national security and in accountable Government”,
so it would have a dual function. Who could resist calling for “fair law” anyway? That would be nice.
A public interest defence enables matters of public interest to be scrutinised and debated and allows malpractice to be exposed and addressed. I suggest to the Government that this could help them with the problem they are having with the issue of “legal but harmful” material and freedom of expression in the Online Safety Bill. The intention in this Bill is clear: to ensure that platforms in scope of the Bill do not have the right to take down content from “recognised news publishers”, and that their websites are also exempt from the Bill’s scope. But the problem lies in defining “news-related material” and determining what constitutes “recognised news publishers”. As the Joint Committee for pre-legislative scrutiny of the Online Safety Bill—I declare my interest as a member—recognised, introducing a public interest test in the Bill for this purpose would be very helpful in this context, and it would have the additional benefit of ensuring that hundreds of independently regulated specialist publishers’ titles are not excluded from the protections afforded in the Online Safety Bill.
I look forward to the Minister’s response.
My Lords, I rise from what has clearly become the securocrats Bench. I am able to speak pretty briefly, because I agree very much with what my two colleagues have said. Some very powerful speeches have been made already about the need to update our national security legislation in a changing world, and I am personally very encouraged by the breadth of agreement across the House on that.
I speak as someone who has worked with the intelligence community for more than 40 years, as a consumer, a colleague, and indeed twice as a co-ordinator —when I was chair of the Joint Intelligence Committee and then as National Security Adviser. I am not from the community, but I know the men and women who work there well. I entirely agree with all noble Lords who have paid tribute to these public servants of the highest integrity and real commitment. I want to focus just on Clause 28; I agree very much with what has been said on other aspects of the Bill.
My first point is that, in my experience, the men and women of the intelligence community were profoundly shocked by the revelations of what had happened in those fraught months and years after 9/11. The noble Lord, Lord Tyrie, has just referred to cases of rendition, all of which was laid out in as much detail as possible in the 2018 ISC report—a searing document to read. I believe that the agencies learned the lessons of that period and have changed deeply as a result. Even a decade ago, for example, I know that proposals to Ministers on the sharing of intelligence with allies would often be accompanied by pages of legal analysis. I sometimes wondered whether the extent of the precautions could affect the agility of the agencies in responding to fast-moving crisis situations. In short, this is not a group of people who have the remotest interest in doing anything to short-cut legal process or evade scrutiny.
Secondly, I am convinced from my discussions with officials that the motivation for Clause 28 comes from the public servants in the intelligence agencies. There is genuine concern among practitioners that circumstances could arise, when, for example, exchanging information and analysis with partners to identify a complex terrorist threat, where even if they had followed all the procedures in place, including the Fulford principles, they could still be legally liable under the SCA. That is something that the House needs to take seriously.
I was fascinated to listen to the noble Lord, Lord West, reporting the conclusions of the Intelligence and Security Committee. I need to read that more closely. If I understood him right, the ISC has had the opportunity of highly classified briefing on the sort of circumstances where that risk might become possible—the operational realities of real-life co-operation with our closest allies. As I understand it, the ISC felt that there were grounds for believing there is a serious problem here. That is important. There is clearly an issue that we need to get right if we are going to give the men and women of the agencies the tools they need to do their job of keeping us safe.
I am persuaded by the powerful points made today that the current Clause 28 goes too far by proposing this carve-out or exemption from the criminal law. There is therefore an obligation on this House and the Government to work towards an alternative. I hope it will be possible to do that and that it will address the concerns we have heard today, including the important issue of ministerial accountability and authorisation and oversight by the Investigatory Powers Commissioner and indeed the ISC.
I doubt that the Government will be attracted by the idea of reopening the 1994 ISA—that could well turn out to be a Pandora’s box—but I am sure there are ways of solving the need for a balance between clear oversight and accountability and effective security operations in a fast-changing environment. It is also clearly much better to build a broad coalition of support across this House and more widely. I very much hope that the Government will come forward with proposals in that spirit at Committee stage.
My Lords, like others in this Second Reading debate, I welcome the Bill. It updates security legislation that was designed to protect UK security in the context of the Second World War, as has been written recently by those who know. Threats to the security of this country and others have changed fundamentally in the last 20 years or so and, as has been pointed out by experts, are increasingly concerned with state-promoted terrorist action that includes undermining democratic institutions. Countering these threats before they can become destructive action is clearly necessary. That said, there are areas in the draft Bill that would benefit from clarification and, in some clauses, a serious rethink. Of the latter, I refer mainly to Clause 28, Clauses 82 to 85 and Clause 86, supported by Schedule 15.
My approach is informed by universal rights, the prohibition of involvement in criminal acts by Ministers and/or officers of the state and the implied legal cover for those who are. Such criminal acts might include targeted torture and killing. The Bill also appears to protect officials in the UK rather than those operating overseas. It was argued during the passage of the Bill in the other place that Clause 28, as written, could condone foreign assassination, for which we severely castigate other states, and not only make the UK liable to accusations of hypocrisy but undermine any moral leadership it continues to hold. It is worth recalling, as both my noble colleagues fore and aft have already done, that the ISC has documented the extent to which UK politicians and officials were involved in abuses overseas; for example, in the extraordinary rendition and subsequent torture of Abdel Hakim Belhaj in 2004 in Libya.
UK Ministers and officials already have a defence under the Serious Crime Act 2007 against criminal prosecution for “reasonable action”, taking into account the purpose of the action and any authority under which action is taken. It is questionable therefore if the extended legal cover in this Bill is necessary.
Clauses 82 to 86 pose a serious blow to those seeking legitimate damages awarded in civil cases by citing the newly introduced “national security factors”. Efforts in the other place to delete this clause on Report were unsuccessful. Instead, the Government introduced the all-encompassing phrase of “terrorist wrongdoing”, which can be invoked to discredit any such claim and prevent recompense. The phrase is to too broad to be meaningful and once on the statute book would exist as a hostage to fortune.
Terrorist wrongdoing would certainly cover direct efforts to build destructive weaponry, such as bomb making, but it could also encompass merely the purchase of hydrogen peroxide. A further rationale has been advanced that it is necessary to limit any financial recompense in a civil case, from re-investment in terrorist action. This restriction does not apply however to other sorts of revenue such as the lottery, and given the extremely low standard of proof for terrorist wrongdoing, protection and justified recompense for survivors of state-sponsored torture remain paper-thin.
Bearing in mind too that many states around the world use the accusation of terrorism activity to silence legitimate dissenters, these clauses could very easily act as an obstacle to claims made by torture survivors against unsubstantiated allegations. As is now universally accepted, survivors of torture require a formal acknowledgment of the wrong that has been done to them as part of their recovery. These clauses, if applied, would undermine the very notion of justice, so important to them.
The human rights organisation Reprieve has documented several ongoing cases where this clause, as currently set out, adversely affects torture survivors in their quest for redress. Other human rights bodies, including Redress and Freedom from Torture, similarly question the clauses in that they provide Ministers and officials with immunity from crimes that are specifically mentioned in the international treaties as crimes against humanity. I am sure that there will be reasoned debate and amendments to the Bill that will allow it to go through speedily, as it should, but many of us will press for amendments to Clause 28 and Clauses 82 to 86.
My Lords, I do not normally speak in national security debates, and I bow to the far greater expertise of everybody else involved today, but I could not let this Bill pass without intervening to call for the insertion of a clause to provide proper protection for whistleblowers speaking out in the public interest. Some in the House may know that I focus on the issue of whistleblowers across a wide range of activities.
I recognise that this is a subset of the much broader issue of public interest disclosures, but I would argue, and would say this directly to the noble Lord, Lord Ricketts, that where there are human beings there will be wrongdoing, and where there is power there will be abuse. It is rarely exposed unless a whistleblower brings it to the surface and takes the risks associated with that.
The noble Baroness, Lady Manningham-Buller, said that whistleblowers could go to various individuals to make a protected disclosure. Let me say to her that of the three she named I could not identify one who could do what the whistleblower wants most: to guarantee an investigation of the issue raised. She mentioned the ISC, and we have heard now from both former and present members of the ISC that it is extraordinarily difficult for that body to access the information needed to carry out an investigation.
Therefore, without the mechanisms in place that link the whistleblower through to a process of investigation, most whistleblowers are going to hold back and decide not to speak out, and I would argue that that is very much to the detriment of the national interest.
However, it is also vital to protect whistleblowers, and none of the three powers that the noble Baroness mentioned can provide that protection. They can provide confidentiality but, frankly, keeping a whistleblower’s identity confidential is near impossible. The character of the information alone usually identifies who has spoken out. In addition, people who see something going wrong mention it to colleagues, managers and others whom they work with, and it becomes very evident very quickly, in almost every case, who is the relevant whistleblower. Existing legislation that requires going through an employment tribunal fails whistleblowers extensively. I will not go through that argument in detail today—I have in other places. Of course, even at its best, it only actually covers workers, whereas whistleblowing comes from a wide variety of people: suppliers, contractors and temporary staff—all kinds of people who are engaged around a process and see behaviour that they know needs to be called out. My fundamental argument is that every day that there is not adequate protection for whistleblowers is a day when somebody sees something that they should call out and decides that the price of doing so is too high.
If you are in some sector such as finance, the National Health Service or even the Metropolitan Police, and you speak out and there is retaliation against you, at least that is only losing your job or perhaps being blacklisted for your entire career. However, once this happens in the context of national security, the whistleblowers I hear from—I am careful not to get their names, because I am not a prescribed person, but I am aware of their experiences at second and third hand—are usually told that they will face retaliation through the mechanism of the Official Secrets Act, which, as everyone in the House will know, carries criminal penalties.
I decided to cite one case, and I was careful in choosing it so I do not expose any whistleblower to retaliation, which currently is a real fear. This is far from an isolated case. I am aware in general terms of the case of a whistleblower working for a subcontractor to a global brand, cleared to the highest level, who tried to disclose that work was being subcontracted to a hostile power, with serious national security consequences. The whistleblower was of course fired, threatened with lifelong career destruction and with the Official Secrets Act. After a long delay, a period of complete unemployment for the whistleblower and a bogus investigation by the contractor, the message eventually, through the whistleblower’s constant persistence, reached the right people inside the Ministry of Defence, and I understand that a proper investigation is now under way. However, obviously the whistleblower has suffered huge detriment and there seems no possibility that that will ever be reversed. I suspect the public will never know the harm done in just that one particular case. What I think has shocked many of us is that this process seems to be regarded as “just to be expected”, and in this wider sector of national security, the various mechanisms in place available to whistleblowers such as helplines are, frankly, regarded as anything but helplines. To me, it is totally unacceptable not to provide that protection for those who make disclosures which are fundamentally in the national and the public interest.
In the Commons, Kevan Jones MP and eight others attempted to introduce a public interest defence, but it was not even debated. However, I hope in this House, with its very different set of rules, we will be able to try to craft a series of amendments that will allow at least a detailed debate.
I have in Committee a Private Members’ Bill, the Protection for Whistleblowing Bill, that will deal with many of these issues. I will not go through that Bill today but, frankly, I have relatively limited hope of the Government taking up this Bill, even though every time that I raise this with Ministers, in area after area, they acknowledge that protection for whistleblowers is exceedingly limited, that something needs to be done and that there will be a review, but that it will be in due course.
I recently joined the All-Party Group on Extraordinary Rendition, which made me aware of the case of Jagtar Singh Johal. Again, with that whistleblower experience, I looked with real concern at Clauses 82 to 86. When you spend as much time as I do in dealing with attempts to gag disclosure of wrongful behaviour, you spot the tricks. Here they are, in clause after clause, limiting access to civil justice for redress, deliberately using sweeping language to deny legal aid, and none of that adding to the safety of the UK but rather adding to the safety of those who have abused their position.
I thank the same organisations that perhaps spoke with the noble Baroness, Lady D’Souza—Retrieve, Redress, Freedom from Torture, Survivors Speak OUT, Rights and Security International, and OMEGA—for the high-quality briefings that they have provided. I am a novice in this area, but I will push the issue of protection for whistleblowers. It is fundamental in a democratic society.
My Lords, when I was a squadron leader, I signed the Official Secrets Act. I still have my copy of the form that I signed. We were required to sign, though the reasons given were limited —do not lose or pass on any classified or official information and in general abide by the restrictions of the Official Secrets Act. Signing had no effect on what behaviour was deemed to be legal, because the Act is a law, not a contract, and individuals are bound by it regardless of whether they have signed. Signing was intended as a reminder to the person that they are under such obligations. MoD Form 134 is still available to be signed and sets out the reasons for doing so, although I am not aware of any statutory instruction to sign.
A so-called minor amendment in Schedule 16 to this Bill is that the 1911, 1920 and 1939 Official Secrets Acts are to be repealed. That seems rather more than minor, though of course, OSA 1989 still stands. Will members of the Armed Forces and other Crown servants in future be required to sign the new national security Act? A bigger question for the Government has been mentioned already. If this new national security legislation is replacing the other three, then why is the legislative opportunity also to bring OSA 1989 into one updated Act not being taken?
The Law Commission found that all four existing Acts were outdated—or inadequate for dealing with new technologies—and in need of revision. However, this Bill is nearly 200 pages long, and deals with topics ranging from very major national security issues to the responsibilities in Clause 9 of a constable at the site of a military aircraft accident. I can see that the Government find themselves between a rock and a hard place. New legislation is urgently required to embrace evolving threats, but dovetailing the 1989 Act into this mammoth Bill is beyond any reasonable ask. Therefore, although much was made of the missed legislative opportunity in speeches in the other place, I accept that the current broad approach is right.
I mentioned Clause 9 a moment ago, which refers to when a constable may have to set up an exclusion zone around an aircraft accident. For the avoidance of doubt, I presume that “aircraft” covers manned and unmanned aerial vehicles. It seems that the constable might have powers under this legislation to move or remove the aircraft or parts, but I hope that the essential needs of the accident investigation authorities will ensure that critical evidence of the causes of a crash will not be tampered with or lost by some inadvertent action of the constable.
Also, why is this confined to aircraft? What about one of His Majesty’s ships or submarines that unfortunately finds itself beached on some shoreline? Surely one of these, too, might require an exclusion zone which, by its nature, would not be covered by a previously declared regulation under Clause 8 for any vehicle.
Clause 30, referring to the Republic of Ireland as not being a foreign power, intrigued me. I declare a lasting interest in things Irish: I was born and brought up in Dublin. There are of course many special arrangements agreed between the UK and the Republic, and the Explanatory Notes say that it is because a political party may be active in both. I doubt that it excludes espionage. It also raises this thought, perhaps theoretical at present: were green parties to grow into positions of government influence, would that be a reason for labelling a country with a strong green party as not a foreign country for the purposes in this legislation?
There is also the apparent anomaly that, although Gibraltar gets specifically excluded in Clause 95, which relates to the Clause 20 amendment of Section 238 of the Armed Forces Act 2006, it gets no mention in Clause 7, which lists the UK and the SBAs—sovereign base areas—in Cyprus. How then might monitoring of illegal intelligence behaviour and prohibited places be covered in, say, Gibraltar, the Falklands, or other overseas or dependent territories? Indirectly, this clause indicates that, at present, we do not have special intelligence facilities, other than in Cyprus, elsewhere overseas.
Finally, I found difficulty in discerning the meaning of this sentence in Clause 20, which amends Section 238 of Armed Forces Act 2006. It says that
“the reference in subsection (1)(b) to an offence which is not an offence listed in subsection (2) is to be taken as a reference to an offence under section 42 as respects which the corresponding offence under the law of England and Wales is not an offence”.
Perhaps the Minister or an official could transcribe this into less legal English for one to more easily comprehend its meaning.
My Lords, this has been a most interesting debate, not least due to the contributions from our national security, defence and intelligence professionals—or the securocrats, as the noble Lord, Lord Ricketts, collectively named them. As the noble Baroness, Lady Jones of Moulsecoomb, said, we have heard from people who actually know what they are talking about in this debate—unlike people like me. However, I will plough on none the less.
I thought it rather a pity that nobody from the Conservative Benches, beside the Minister, felt motivated to speak in this debate, while there were five from the Opposition, five from the Liberal Democrats and no fewer than seven from the formidable Cross Benches.
It is clear that UK democracy is under systemic attack from various hostile foreign Governments, including from China and Russia. But, as my noble friend Lord Wallace of Saltaire said, it is absurd to ask us to debate the Bill without publishing the redacted sections of the ISC’s Russia report, which the committee recommended should be released. As the NGO Spotlight on Corruption said, the Bill does not address the hole in the regime for keeping foreign and tainted money out of politics.
The noble Lord, Lord Evans of Weardale, regretted the Government’s rejection of the recommendations from the Committee on Standards in Public Life on political funding. The Electoral Commission has repeated its call for parties and campaigners to be banned from accepting donations from companies that have not made enough money in the UK to fund them and to be required to carry out enhanced due diligence and risk assessments before donations are accepted. Can the Minister tell us why these recommendations are not in the Bill?
The Bill also unfortunately omits the Government’s promised reform of the Official Secrets Act 1989, as noted by the noble Lords, Lord Evans of Weardale and Lord West of Spithead. Perhaps the Minister could clarify whether the Government plan to add that to the Bill during its passage in this House?
The report from the Joint Committee on Human Rights, on which I sit, described this Bill as a
“welcome attempt to modernise espionage offences”,
but expressed many concerns about its human rights impacts, some of which I will mention and have been mentioned by others.
One of the main concerns about the Bill is the Government’s attempts to constrain both scrutiny and accountability, as my noble friend Lord Beith and other noble Lords have said. One of these attempts is the failure to incorporate protection for whistleblowers and journalists, as my noble friend Lady Kramer pointed out; the other is the proposal to grant immunity from prosecution for conduct said to be necessary for the functions of the intelligence agencies or Armed Forces.
A public interest defence for whistleblowers, such as journalists, security personnel or civil servants charged with unauthorised disclosure, is absolutely critical to a rewriting of espionage legislation. We on these Benches are severely disappointed that it has not been included in the Bill, despite the backing of the Law Commission. A statutory defence would act as an internal discipline on better government and better decisions. The run-up to the Iraq war and MI6’s co-operation in acts of torture and extraordinary rendition are examples that might have been prevented with a safeguard.
The NUJ, the BBC and others fear that the Bill poses a significant threat to public interest journalism and press freedom, through the chilling effect it will have on those who expose wrongdoing. Perhaps the Minister can be a bit more encouraging today than he was last Friday to my noble friend Lady Kramer’s Private Member’s Bill on protection for whistleblowers.
Of great concern is Clause 28—surely set to become another notoriously numbered clause from a Tory Government—which would grant immunity from prosecution for encouraging or assisting the commission of wrongdoing abroad by members of the intelligence agencies or the Armed Forces. The noble Lord, Lord West, reported that the ISC believes that Clause 28 is unacceptably broad. The noble Lord, Lord Carlile, backed the changes proposed by my noble friend Lord Marks, and the noble Lord, Lord Tyrie, warned of the experience of rendition, which has never been resolved.
A grant of criminal immunity goes to the heart of respect for justice, human rights and the rule of law. It would be outrageous for Ministers and officials to be granted immunity for actions such as ordering an unlawful targeted killing or providing assistance to torture, interrogation or a disappearance. It may thwart accountability for UK involvement in war-on-terror abuses and undermine the UK’s centuries-old legal prohibition on torture and related abuses. As the noble Baroness, Lady D’Souza, pointed out, it could also destroy the UK’s moral authority in condemning crimes such as the murder of Jamal Khashoggi by Saudi Arabia or international poisonings by the Russian Government.
I listened carefully to the noble Lord, Lord Ricketts, as always, but given the existing immunities under the Serious Crime Act 2007 where a person has acted reasonably, further protections for conduct that is not reasonable are surely invidious. Can the Minister give a credible explanation as to why immunity from criminal prosecution should be granted for unreasonable actions by the intelligence communities and the Armed Forces?
My noble friend Lord Wallace of Saltaire and others, such as the noble Lord, Lord Carlile, have robustly illustrated the huge flaws in the Government’s proposals for a foreign influence registration scheme in Part 3. It threatens to be a bureaucratic monster. Given the Home Office’s struggles with competence in administration, the mind boggles. At the same time, right-wing think tanks escape transparency over their funding from abroad.
The former Independent Reviewer of Terrorism Legislation, the noble Lord, Lord Anderson of Ipswich, who, as has been mentioned, is unavoidably prevented from being here today, has helpfully shared his thoughts with us in various Twitter threads. I am going to quote from a different one to the one that has already been quoted from. He warned that the requirement on all Governments and bodies from outside the UK to register “political influence operations” is broader than the Australian and US schemes relied on as precedents and “potentially onerous”. He also pointed out a possible loophole, whereby a large company could avoid registration by ensuring that any activities are conducted by a UK subsidiary. The noble Lord concluded:
“Since the registration requirement is not restricted to specified (hostile) govts, or to companies controlled by govts, or to activities relating to national security, I'm struggling to see what it is doing in a national security Bill … Is it not more in the nature of a lobbying requirement (but one applied, oddly, only to foreign entities?) If so, how does it relate to Lobbying Act 2014 &c?”
Perhaps the Minister will tell us.
“And what useful value is anticipated for it? The Govt’s Impact Assessment … is unspecific … The process of scrutiny requires us to probe this thoroughly so as to ensure that we are passing into law a useful defence mechanism rather than a bureaucratic nightmare.”
I have quoted the noble Lord’s Twitter thread at length, because I thoroughly agree with him.
There are many human rights and civil liberties concerns in Part 1 that I do not need to cover, because my noble friend Lord Marks covered them fully. In Part 2, although the measures are called “Prevention and Investigation Measures”, the investigation element appears extremely limited. These measures, which were not included in the Law Commission’s review, risk prejudicing the rights to a fair trial, to liberty and security, and to a private and family life. I am sure they will get the detailed scrutiny they deserve.
The provisions of Part 4 seeking to restrict both the award of damages to those who have been involved in terrorist activity and the grant of legal aid to those with a terrorism-related conviction raise significant human rights and other concerns. They would potentially enable the Government to evade paying damages for UK complicity in torture or other human rights violations. As the current Independent Reviewer of Terrorism Legislation, Jonathan Hall KC, said:
“It … risks the impression that if the government is sued, it will have a special advantage in keeping hold of monies which is not available to other unsuccessful parties in civil proceedings.”
The question also arises when the Government have a conflict of interest here. However, the availability of damages enabled litigation to be brought by Guantanamo detainees and others who had been subjected to rendition and torture. This uncovered a pattern of unlawful behaviour by the security services and thus served an important constitutional, as well as political, purpose. The proposed restriction on the grant of civil legal aid impedes access to basic rights and legal protections. The current independent reviewer’s view is that it is
“a purely symbolic measure that breaks new ground in the treatment of terrorist offenders and may be counter-productive in matters such as housing, mental health and debt.”
I have a few concluding points. The Bill provides that courts may exclude the public from criminal trials for offences under this Bill. The principle of open justice is fundamental to the proper administration of justice and the right to a fair trial. Clause 36 would be improved if it provided that the public could be excluded only where this was necessary for the administration of justice, having regard to the risk to national security.
The Government need to substantially increase funding for the National Crime Agency—a repeated call from these Benches. It must also strengthen the independence and powers of the Intelligence and Security Committee, which my noble friend Lord Beith and the noble Lord, Lord Tyrie, have called for. The post of reviewer for PIMs should be widened to match more closely the Independent Reviewer of Terrorism Legislation role, to include the full ambit of this Bill.
Lastly, there are several concerns over the Bill relating to the Government’s intention to abolish the Human Rights Act under the Bill of Rights Bill—which I am still hoping might disappear—or even pull out of the European Convention on Human Rights. The Lord Chancellor and Secretary of State for Justice tells us firmly that that is not intended, but this week the Home Secretary, in endorsing a pamphlet by Nick Timothy on asylum, has indirectly called for pulling out of the ECHR. One example of the danger from the Bill of Rights Bill is that the compatibility of national security and official secrets legislation with human rights often relies on the ability of the court to read legislation as compatible with convention rights, so far as it is possible to do so, under Section 3 of the Human Rights Act 1998. The Bill of Rights Bill would abolish that requirement. Can the Minister explain how the Government would then address incompatibilities in national security legislation with human rights?
Although we on these Benches support the Bill overall, it is a curate’s egg, displaying a lack of joined-up thinking. Significant parts of it must be altered both to improve our national security infrastructure and to protect our democratic processes and civic life.
My Lords, I too thank the Minister and his officials for helping us prepare for this Bill. As the noble Baroness, Lady Ludford, said, there has been a true demonstration of expertise in the debate that we have just had.
I want to give a general introduction and then talk in specific terms about matters that we in the Opposition will concentrate on. Much of the legislation around espionage was drawn from a time when we were at war with Germany, when the threats and capabilities of all the actors were very different. Thankfully, those threats fell away some 77 years ago, but threats from hostile and non-hostile states have not gone away, and indeed have evolved. As the Government’s integrated review makes clear, threats to government departments, national infrastructure, British business and private individuals are growing and becoming ever more complex as states become more assertive in advancing their aims. While hard-power methods of attack persist, the advent of technology has allowed soft-power methods to flourish, with electoral interference, disinformation, propaganda, cyber operations and intellectual property theft used to foster instability and interfere in the strength and resilience of the state.
Clause 28 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 the Armed Forces. This could 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 risk that Clause 28 would remove the role of Ministers and, by doing so, remove the Investigatory Powers Commissioner from the process as he inspects Section 7 authorisations. The Intelligence and Security Committee has engaged with the UK intelligence community on Clause 28 but its members are still concerned that it is unnecessary. I will come back to that when I comment on Members’ contributions this evening.
The second matter I want to talk about is misinformation. We fully support action to protect our national security and to deal with the threats to us from hostile state activity, but we would also like to see specific measures to deal with misinformation and disinformation, specifically on social media. Although we welcome the new amendments on misrepresentation tabled by the Secretary of State during the House of Commons stages, we encourage the Government to review the extent of misinformation in the UK and take further steps to address it.
Turning to scrutiny and oversight, we support stronger powers in the Bill to tackle hostile state activity in order to protect our democracy and national interest, but these must be paired with appropriate oversight of these powers, in line with the oversight that exists for other comparable powers. The Government should introduce clauses providing for greater scrutiny from either an appropriate commissioner or an independent reviewer.
Turning to the ISC’s 2020 Russia report, the Bill delivers on some of the important recommendations proposed by the ISC and the Law Commission, but parts of the Russia report have not been implemented. We will explore amendments to ensure that the Russia report is fully implemented in order to protect the strength of our national security. We believe that the Government have been too slow to notice and react to the emerging trend towards hostile state activity over recent years, particularly in the wake of the 2018 Salisbury poisonings.
The public interest defence was extensively debated in the other place. From the responses of both Mr Tugendhat and the then Home Secretary Ms Patel, it seems that the Government continue to look at this matter. I am sure that we will come back to it in Committee, and I would be interested to see whether the Minister has anything to add on this.
Turning to the many contributions made today, I am grateful to the noble Lord, Lord Marks. for giving an extensive exposition of Part 1 of the Bill and pointing out the wide scope of many of the powers the Government seek in it. He went on to give persuasive and strong examples, such as a UK journalist working for a foreign broadcaster who could inadvertently break the laws proposed in the Bill. The noble Lord also commented on the public interest defence and the NUJ briefing, which we all received. As I said, I hope and expect that we will hear more about that from the Minister at a later stage of the Bill.
The noble Lord, Lord Evans of Weardale, referred to interference from other countries, both friends and allies. That goes to the heart of the Bill and the importance of trying to codify much of what should be good practice within the services already, as my noble friend Lady Ramsay of Cartvale said.
The noble Lord, Lord Wallace, made an interesting speech, quoting the noble Lord, Lord True, saying that there were no examples of successful Russian interference in our elections. I noticed that comment as well, and it would be interesting to know what attempts there have been to influence our election results. He also spoke very persuasively about universities potentially being overwhelmed by reporting requirements and the confetti of documents which need to be presented. So many of our universities are extremely international in the nature of their staff, students and research projects. That was a very strong point.
The noble Baroness, Lady Manningham-Buller, described the Bill as a doorstep of a Bill. We have heard that it is a curate’s egg and a doorstep; I suppose that is theoretically possible. She raised what she thought were the most important points, and perhaps they are the most contentious: legal aid, Clause 28 and the public interest defence. I am sure we will be coming back to these on multiple occasions as the Bill progresses.
My noble friend Lord West, the only Member of our House who currently sits on the ISC, gave a masterly exposition of the Bill. He questioned why there were two tiers of registration for foreign state actors, and whether the enhanced tier would be used sufficiently, for various reasons. He also made it very clear that the ISC questioned Clause 28 and thought it inappropriate as drafted. I look forward to working with my noble friend on that as the Bill progresses.
The noble Lord, Lord Beith, also provided some background as a former member of the ISC. It was interesting to hear about the problems he had as a long-standing member of that committee in getting to the bottom of many very controversial actions of our overseas agencies and trying to understand them. I will read his comments with interest, because he gave an interesting background to the role of the ISC and how it has developed over the years.
The noble Lord, Lord Carlile, also spoke about Clause 28. He made a particularly interesting point about the CPS’s second requirement of a public interest in proceeding with a prosecution, and he gave the example of assisted suicide. I see many similar examples in youth courts, where prosecutions are not proceeded with, even though one could argue that a crime has evidently been committed, because it is not believed to be in the public interest to do so. We see that routinely in our courts.
My noble friend Lord Stevenson also spoke about the potential for harmonising elements of this Bill with the Online Safety Bill. The Online Safety Bill is huge and we do not yet know when it is coming to us. It will be interesting to try to tie together some of those elements. He spoke in that context about the public interest defence, saying that there will be similar arguments in respect of that legislation.
The noble Baronesses, Lady D’Souza and Lady Kramer, spoke about the UK’s moral authority. The noble Baroness, Lady Kramer, spoke about whistleblowers, and I will be interested to see the amendments she tables in that regard. I am mindful of what we have heard from the experts about the internal processes, but I listened with great interest to the scepticism with which the noble Baroness spoke about those processes.
Finally, the noble and gallant Lord, Lord Craig of Radley, said something which surprised me: when he was a squadron leader, he signed the Official Secrets Act. I have a very vague recollection that when I was a university air cadet, a long time ago, I too signed the Official Secrets Act. I am not sure whether it is possible for someone to do so at such a junior rank as I suppose I was at that stage. Nevertheless, this has been an interesting debate, and I look forward to the Minister’s response. I think the Committee will be of equal substance.
My Lords, I am grateful to all who have contributed to what has been a very constructive and instructive debate. I welcome the broad support that has been shared across the House. I particularly thank the noble Lord, Lord Evans of Weardale, for his supportive comments on the foreign influence registration scheme. I also thank the noble Lord, Lord Carlile of Berriew, the noble Baroness, Lady Manningham-Buller, and others in this House who engaged us in such a constructive and supportive manner, in both this debate and the engagement sessions we have run over recent weeks.
I turn to some of the specific points that have been raised. I ought to crave your Lordships’ indulgence because this will not be a short speech; it will be a sincere effort to address all the key points in full, and not a cynical attempt to bore all noble Lords to tears. Starting with interaction between this Bill and the Online Safety Bill, which was referenced by the noble Lords, Lord Stevenson of Balmacara and Lord Ponsonby, the Government are obviously aware that we have overtaken that Bill in its passage, and we will ensure that the links between the Bills have the desired effect.
A central element of a number of offences in the Bill, alongside the foreign power condition, is the test of the safety and interests of the UK. This test is one way that legitimate activity is excluded from the scope of relevant offences. In considering any prosecution in relation to the offences to which the provisions regarding prejudice to the safety and interests of the UK apply, the court will consider the nature of the risk to the safety or interests of the UK. Case law already makes clear that
“the safety or interests of the United Kingdom”
should be interpreted as the objects of state policy determined by the Crown on the advice of Ministers. This is notably different from protecting the particular interests of those in office.
The noble Lord, Lord Wallace of Saltaire, questioned the scope of the foreign power condition in the Bill. The foreign power condition provides a single and consistent means by which a link to a foreign power can be made for the purposes of the offences of obtaining or disclosing protected information, trade secrets offences, sabotage, foreign interference and the state threats aggravating factor. The foreign power condition can be met in two scenarios: first, where a person is acting for or on behalf of a foreign power and, secondly, where a person intends that their conduct will benefit a foreign power. I reassure the House that this will not capture people who do not know, and could not possibly know, that they were acting for a foreign power. Rather, Clause 29 requires that a person knows, or ought reasonably to know, that their conduct is being carried out for or on behalf of a foreign power, or they must intend to benefit a foreign power. Of course, where our authorities consider a person to be carrying out harmful activity with a state link, this can be drawn to a person’s attention, providing a strong deterrent effect against a person continuing with that activity.
The Bill follows the Law Commission’s recommendation to replace the existing link of an “enemy”, as set out in the Official Secrets Act 1911, with a definition of a “foreign power”. We agree that incidental or tangential links to financial or other assistance from a foreign power will not suffice to meet the foreign power condition in relation to harmful conduct. Those who receive funding from foreign powers to carry out legitimate activities would not meet the foreign power condition if they were entirely separate to that funding to undertake activity covered by one of the offences in the Bill. The other place passed an amendment on Report to put it beyond doubt that any financial or other assistance must be clearly linked to the illegitimate conduct in question.
The noble Lord raised the matter of the Home Secretary. All I will say is that she has provided a detailed account of the steps she took in her letter to the HASC. I will not make further comment as this matter has been dealt with in detail at other times.
Oversight was discussed at length in the other place, as it has been today, and in the helpful engagement sessions I have held with colleagues. Although we already have oversight mechanisms in place for Part 2 of the Bill, the Government have committed to consider whether any additional oversight is required for state threats legislation. We have been considering whether it is possible to extend oversight beyond Part 2 in a way which does not duplicate or unhelpfully interfere with the responsibilities and functions of the existing mechanisms governing both the UK intelligence agencies and the police. Should we decide to extend oversight of the Bill beyond Part 2, it is important that we do not create any confusion or uncertainty. We are currently exploring the different options for appointing an individual to oversee Part 2, along with our work to consider whether there is merit in expanding oversight beyond it. It is crucial that whoever is appointed has relevant experience and skills and can provide an objective assessment of the offences and powers to ensure appropriate and transparent scrutiny.
Many have raised concerns regarding the Serious Crime Act amendment in Clause 28 of the Bill. I know there will be general understanding of why I cannot go into detail on operational issues in this place; however, let me reassure the House that the Government have been working with the UK intelligence community—or UKIC—which has now provided an operational briefing to the Intelligence and Security Committee outlining examples of why this measure is needed. The committee has acknowledged the need for the SCA to be amended and appreciates our reasoning for seeking changes, though it is not yet in full agreement on the way the problem is being addressed. I thank the committee for its engagement on this matter and welcome a collaborative dialogue going forward. I want to be clear that the Government have heard noble Lords’ concerns and will look carefully at what can be done to tackle these issues. I am grateful to all noble Lords who spoke on this clause and thank them for their thoughts. I look forward to further discussions to find the right way forward.
Let me turn to why the SCA amendment is necessary. Collaboration with international partners is a vital element of the national security work carried out by the Armed Forces and UKIC. To support this crucial work, a number of safeguards and processes are in place to ensure that this collaboration is necessary, proportionate and prevents potential wrongdoing. For example, the Government remain committed to the Fulford principles and overseas security and justice assistance guidance, which exist to ensure that our officers do not knowingly support unlawful activity. Further, UKIC’s regulatory compliance is monitored by the Investigatory Powers Commissioner’s office via regular inspections and routinely scrutinised by the Intelligence and Security Committee.
The UK has one of the most rigorous intelligence oversight regimes in world. There are several internal safeguards and processes in place which manage the way that UKIC and the Armed Forces work with and exchange information with international partners to prevent potential wrongdoing. Operational decisions are carefully recorded and made with the benefit of regular advice from specialist legal advisers to ensure compliance with domestic and international law. Intelligence officers receive mandatory training on the legal frameworks and policies which govern UKIC and Armed Forces activity. These policies include the Fulford principles, the compliance with which is assessed by the Investigatory Powers Commissioner annually and reported to the Prime Minister. UKIC’s regulatory compliance is also monitored by the Investigatory Powers Commissioner’s office via regular inspections and routinely scrutinised by the Intelligence and Security Committee.
The Serious Crime Act offences mean that individuals who have complied with all those safeguards—working under authorisation and in the interests of UK national security—may fear personal criminal liability. It is not right or fair to expect this risk to sit with trusted individuals who are acting in good faith and on behalf of our intelligence services or Armed Forces for authorised purposes. Instead, responsibility should sit with those organisations at an institutional level, where it is subject to executive, judicial and parliamentary oversight.
I want to be absolutely clear: Clause 28 is not a broad, general immunity from criminal offences and not about allowing the Government to carry out torture or commit murder. Rather, the Government are making an amendment to provide a targeted protection which better facilitates co-operation with our key overseas partners. At present, despite being satisfied that all other domestic and international law obligations are met, essential intelligence sharing with partners has been delayed or prevented in order to protect individual officers from potential liability for SCA offences. This is a having a chilling effect across UKIC and the Armed Forces, reducing the confidence of officers who make vital national security decisions every day. As a country, that means that we are less safe, because reciprocal access to intelligence facilitated by joint working is crucial to responding to the threats we face, such as terrorism.
This amendment is not about letting UKIC and the Armed Forces do whatever they want. It is about ensuring that we are protecting those working for us from prosecution and giving them the confidence that the Government have their backs. When things go wrong, it is entirely right that there is scrutiny of and accountability for the organisation’s activities, and I commend the important work of the ISC and IPCO 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. That is right and fair.
I have full confidence, however, in those to whom we are providing protection, including our intelligence agencies. They are expert, professional and highly trained individuals, whose judgment and skill we respect and have faith in. Not taking the opportunity to provide those individuals with assurances that they are protected would be an abdication of our responsibility to support them in keeping our country safe.
The noble Lord, Lord West of Spithead, asked why the SCA is necessary, given Section 7 of the Intelligence Services Act, which authorises the “reasonable” defence. The noble Lord, Lord Carlile of Berriew, also raised a point on those matters, so I shall try to deal with them now. While we consider that properly authorised activity to protect national security should be interpreted as being reasonable for the purposes of the existing defence to the Serious Crime Act offences, the application of the reasonable defence to UKIC and Armed Forces activity is untested. The Government believe that UKIC and the Armed Forces should have a targeted protection that provides far greater clarity and certainty to those tasked carrying out important national security work. Section 7 ISA authorisations are not available in all the circumstances in which the SCA risks arise. Those authorisations primarily apply to overseas activities, meaning that Section 7 could not generally be used to protect officers when carrying out activities in the UK. Section 7 authorisations may be sought only by SIS and GCHQ, and not by MI5 or the MoD.
The foreign influence registration scheme, or FIRS, is being created to tackle covert influence in the UK. It will strengthen the integrity of our systems and enhance the transparency of our political processes, delivering a key recommendation of the Intelligence and Security Committee’s 2020 Russia report. As I am sure noble Lords will agree, it can be only right that the UK public and our democratic institutions are appropriately protected from political interference from abroad and better informed as to the scale and extent of foreign influence in our affairs. Russia’s recent attempts to undermine European stability has brought the need for action into sharp focus. That is why the scheme will require the registration of all political influence activities where they are to be carried out in the UK at the direction of a foreign power or entity. It is important to note that the scheme will not impose restrictions on the legitimate activities of people or business. Indeed, it is there to encourage openness and transparency. To be clear: we continue to welcome open and transparent engagement with foreign Governments and entities, and we will ensure that the administrative burden of the registration requirement is kept to a minimum.
The noble Lord, Lord Wallace of Saltaire, raised two key concerns. First, he suggested that the political tier of FIRS would have a disproportionate impact on academia. That would be the case only when those bodies undertook political influence or activity. Further, no countries are now specified on the enhanced tier, so there is no activity to be registered as it now stands. If the Government list a country, we will consider what activity should be registrable, ensuring that any such registration would be proportionate.
My Lords, before Committee, could we be told how this new proposal will interact with the National Security and Investment Act, which already acts on universities? Universities are concerned that there will be a double effect, increasing the problems they face and the amount of time they will have to spend on them.
I shall get back to the noble Lord on that point.
To conclude on that issue, these decisions will be subject to parliamentary approval.
Secondly, I assure noble Lords that all the policy in the Bill is subject to collective agreement and has the support of the full Government. It is also important to note that the Government undertook a consultation on the Bill, including FIRS, in the summer of 2021, and ran targeted engagement with industry this summer.
With regard to the specified person measure included in the foreign influence registration scheme, it is important to clarify its necessity. It will offer us three key benefits. First, it will provide the Government with a greater understanding of the scale and extent of activity being carried out on behalf of specified foreign powers and entities. Secondly, it will increase the risk to those who seek to engage in covert activities for specified foreign powers, either directly or through entities. By requiring the registration of relevant arrangements and activities, the risk of engaging in state-threats activity against the UK is increased. Finally, the specified person measures provide a potential option for earlier disruption when there is evidence of a covert arrangement between an individual and a specified foreign power or entity but not disclosable evidence of a more serious state- threats offence. Crucially, this provides an opportunity to prevent harmful activities at the earliest possible stage.
On Clause 3, the noble Lord, Lord Marks of Henley-on-Thames, gave the example of an individual working with Mossad in the UK to recover artefacts looted by the Nazis. In his example, we would expect that the UK would have been made aware of such activity and it is possible that the UK would have made an arrangement with Israel. As such, the activity would have a defence in Clause 3(7)(c)(i).
A number of noble Lords raised the Official Secrets Act 1989, including the noble Lord, Lord West, and the noble Baroness, Lady Ludford. As the House knows, the Government are not planning to reform this Act. It is worth noting that the Law Commission, in evidence to the Bill Committee, clearly explained that it did not envisage that any one statute would implement all its recommendations at once, even if the Government were minded to accept them all. It also did not recommend that a public interest defence be created in relation to the espionage offences in the Bill. We continue to consider the Law Commission’s recommendations on the Official Secrets Act 1989.
On the specific issue of a public interest defence, or PID, to overcome a PID, the Government would need not only to show that the disclosure was damaging but that any harm from a disclosure outweighs the public interest in the disclosure. This would likely mean that in a prosecution, even one where a person clearly had malicious intent, the damage of the original disclosure could be severely compounded. This could lead to even egregious breaches of the Act not being prosecuted due to the sensitive nature of the evidence that the Government would have to reveal to defeat the PID. The Government recognise that there may be situations where an individual has a legitimate need to raise a concern—for example, in situations where there may have been wrongdoing and where they think there is a public interest in disclosing that information—but disclosing information protected by the Official Secrets Act 1989 and then relying on a PID is not the safest or most appropriate way for an individual to raise these concerns and have them rectified. Nor would this address the underlying wrongdoing.
The offences in the National Security Bill target harmful activity by states, not leaks or whistleblowing activity. There are safeguards that prevent the Bill capturing whistleblowers and negate the need or utility of PID. For example, to commit an offence of disclosing protected information, the conduct must be done for or on behalf of, or with the intention to benefit, a foreign power and with a purpose prejudicial to the safety or interests of the UK. A genuine whistleblower would not meet this bar. Including a PID in any of the offences in Part 1 strongly implies that acts of espionage could be in the public interest. Clearly, acts of espionage against the UK can never be in the public interest.
There are also already several existing internal and external routes in government through which individuals, including government subcontractors or contractors, can raise a concern about information relevant to the Official Secrets Act 1989 safely. The number of routes has increased since 1989. The Government consider that these routes provide safe and effective options for disclosure, although the appropriate route would of course depend on the disclosure in question. These routes include, among others, government departments’ internal policies and processes; a staff counsellor for the national security community; organisational ethics counsellors; the chair of the Intelligence and Security Committee; the Investigatory Powers Commissioner’s Office; the Attorney-General’s Office; the Director of Public Prosecutions; and the Commissioner of the Metropolitan Police in instances where an individual suspect’s criminal activity is taking place or has taken place. To sum up, the introduction of a PID would carry significant risks to our national security and do nothing to create a safe or effective route to raise a concern, compared to the many legitimate routes the Government are actively maintaining and improving.
Turning to the report published by the Joint Committee on Human Rights, raised by the noble Baroness, Lady Ludford, the Government are clear that the offences and powers introduced by the Bill are proportionate and necessary. Through the use of appropriate safeguards and conditions, and reflecting on the need to protect national security and public safety, the offences have been crafted to catch only legitimate activity, ensuring that they remain proportionate. The Government disagree with the overall position of the committee and maintain that the measures in the Bill are appropriately drawn. Our ECHR memorandum, updated on the introduction of the Bill into this House, outlines the government assessment of how our measures comply with human rights law. I look forward to engaging with the committee as the Bill progresses through this House and the Government will respond to the JCHR report in due course. I am sure the noble Baroness would not expect me to speculate on the Bill of Rights Bill and its future.
The noble Baroness, Lady Jones of Moulsecoomb, asked when the Government will publish the Russia report. I am pleased to be able to tell her that the Government did in July 2020. In fact, I can tell the noble Baroness that our response was published on the very same day; the Bill is a direct response to the recommendations in that report.
In conclusion, I will repeat my earlier thanks to all who have participated today. I look forward to further examination and challenge as we move to Committee, but for now I beg to move.
Bill read a second time.