Committee (1st Day)
Relevant documents: 10th Report from the Constitution Committee, 20th Report from the Delegated Powers Committee
Clause 1: Obtaining or disclosing protected information
1: Clause 1, page 1, line 9, leave out “, or ought reasonably to know,”
Member's explanatory statement
This amendment is intended to tighten the scope of the offence in Clause 1.
My Lords, all the amendments in this group are in my name and that of my noble friend Lord Purvis of Tweed. Before speaking to them, I make a general observation which is applicable to nearly all the amendments we have put down for debate today.
Broadly, Part 1 of the Bill is aimed at updating and clarifying the law against espionage, sabotage and subversive behaviour which threatens the safety, security or defence of the United Kingdom. We and the whole House support that aim, which is clearly described in the Long Title: to
“Make provision about threats to national security from espionage, sabotage and persons acting for foreign powers.”
However, as I said at Second Reading, we on these Benches wish to ensure that the Bill sticks to that remit and is not so wide as to damage individual liberties which our security and defence services are there to protect.
The amendments in this group would ensure that guilt of the relevant offences could be established only on the basis of actual knowledge of essential facts, and not merely what is often called imputed knowledge. The Bill talks of what a person ought reasonably to know rather than what they might be deemed to know. However, we object to the addition of
“or ought reasonably to know”
I shall remind your Lordships briefly of the offences covered by these amendments and the sentences proposed for them. The offences in Clause 1, “Obtaining or disclosing protected information”, and Clause 12, “Sabotage”, both attract a maximum sentence of life imprisonment. All four offences in Clause 2, “Obtaining or disclosing trade secrets”, Clause 3, “Assisting a foreign intelligence service”, Clause 4, “Entering a prohibited place for a purpose prejudicial to the UK”, and Clause 15, “Obtaining etc material benefits from a foreign intelligence service”, attract a maximum sentence of 14 years imprisonment. The offence in Clause 5, “Unauthorised entry etc to a prohibited place”, is in a different category because it is a summary offence, but, apart from that Clause 5 offence, all these offences are treated very seriously indeed.
Yet in order to be guilty of the offences, the defendant does not actually have to know essential facts. It is enough if they “ought” to know them. In Clause 1, the offence is committed if the person
“obtains, copies, records or retains protected information, or … discloses or provides access to protected information”.
Clause 1(b) provides that the person’s conduct has to be
“for a purpose that they know, or ought reasonably to know, is prejudicial to the safety or interests of the United Kingdom”.
In the next group, I will make the point that the interests of the United Kingdom concerned ought to be the “security or defence interests”, not just interests in general. But in this group, our point is that, in order to be guilty under this clause, the person should actually have to know that their conduct was for a purpose that was prejudicial to the UK. It should not be sufficient to constitute guilt that they merely “ought to have known” that, even if they did not. That is the point of our Amendment 1.
Another unsatisfactory feature of this and other clauses is that the clause presupposes an actual purpose—that purpose, presumably, being the reason for the defendant’s actions. It would be very odd if, the prosecution having established the purpose, the additional requirement of knowledge could be met not by showing that the defendant knew that that purpose, which was his or her own, was prejudicial to the national interest but merely that they “ought” to have known that.
Under Clause 2, which is the trade secrets offence, the defendant’s conduct, under the Bill, has to be “unauthorised”. However, as drafted, the defendant does not have to know that the conduct is unauthorised; it is enough if the defendant “ought” to have known that. Our Amendment 7 would change that.
Under Clause 3, “Assisting a foreign intelligence service”, it should be required, we say, that to convict a person of this offence, they actually knew—the Bill says that they ought to have known that it was “reasonably possible”—that
“their conduct may materially assist a foreign intelligence service”,
not merely that they should have realised that the possibility existed. Amendment 14 would address this. We also say that the word “likely” would be more effective than the words “reasonably possible”, but that is addressed in a later group.
In Clause 4, the offence of entering a prohibited place suffers from the same inherent problem as the Clause 1 offence. The purpose has to be proved, but the defendant does not actually have to know that the purpose was prejudicial to the safety or interests of the United Kingdom; it is enough that they “ought reasonably” to have known. The clause heading, “Entering etc a prohibited place for a purpose prejudicial to the UK”, highlights the illogicality. How can you have that purpose if you do not actually know that the purpose is prejudicial at all? Yet the clause as drafted says that you can; that should go, and our Amendment 17 would remove it.
Clause 5 is the summary offence of unauthorised entry to a prohibited place. Under the Bill, proof of actual knowledge of the lack of authorisation is unnecessary; again, merely the defendant “ought” to have known that. Our Amendment 22 addresses that.
Regarding Clause 12, the very serious sabotage offence, the same point applies to the purpose as in Clauses 1 and 4. Again, we say that guilt ought, crucially, to depend on actual knowledge that the purpose was prejudicial. Amendment 36 addresses that.
Amendments 46 and 48 make similar points about the defendant’s knowledge of the source of benefits provided by a foreign intelligence service. Amendment 65 would amend the application of the foreign power condition in Clause 29, which states that
“the person knows, or ought reasonably to know,”
that the conduct is carried out
“on behalf of a foreign power.”
The foreign power condition in the Bill is a very important condition for liability for a number of these offences. How can it possibly be just for the law to provide that the condition can be met if a person does not know that their conduct is carried out on behalf of a foreign power and naively does not catch on, just because it is later decided that even if they did not know at the time, they should have realised? Juries can, and frequently are asked to, come to a conclusion about what defendants know or knew or even what they believe or believed. Juries are good at determining actual states of mind, drawing conclusions from the evidence they hear and see.
To take a simple example, the Theft Act defines receiving stolen goods as:
“A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods”.
But here we are concerned with the proposal that juries should decide cases not on the basis of conclusions they reach about an actual state of knowledge or belief but on views they may take about what the defendant did not know but should have done. These are value judgments, not true decisions of fact.
We are not suggesting that imputed knowledge is never used in the criminal context, but where it is the context is very different. It is used, for example, for insider trading in Canada, where professional insiders receiving tips are able to be found guilty on conclusions that they ought to have drawn. It is used in the Protection from Harassment Act 1997 in respect of defendants who should have known their own conduct would amount to harassment. In the Official Secrets Act 1989 the reference is broadly to unlawful disclosures by Crown servants and contractors or others to whom confidential information was entrusted. They have a defence to unlawful disclosures if they show they did not know and had no reason to believe that the disclosures were unlawful. The burden of proof is reversed, I accept, but I suggest that is because of the positions the defendants hold or held. However, lack of knowledge or of the reason to believe in a state of fact amounts to a defence even then, so that liability is a long way from these cases because these provisions may catch anyone with no special relationship to the Government on an assessment that the defendant did not know the relevant facts but ought to have done so. Our position is that that is unjust. I beg to move.
My Lords, I venture a few thoughts on this phraseology. The crucial question is: how much would the prosecutor have to prove about the state of knowledge of the defendant? In some contexts, when phraseology of this kind is used, it is necessary to show what the individual knew was the state of the law and what information that individual had at the relevant time from which a conclusion should be drawn.
The problem with the phraseology here is that it is so general that it is not clear whether the knowledge the individual had is to be the actual knowledge which that person had, which is one thing, or, as has been suggested by the noble Lord, Lord Marks, imputed knowledge. If we are dealing with imputed knowledge, the situation becomes much more serious, particularly having regard to the fact that one is concerned with not just the safety of the United Kingdom but the interests of the United Kingdom, which itself is an unfortunately vague expression. I think it would help the Committee if the Minister would explain exactly what a prosecutor would be expected to have to prove in order to establish the offence.
Putting myself into my former position of prosecutor, I would find it quite troublesome to have to face up to proving not only what the individual knew about the law but what the individual knew about the facts. But it would be quite reasonable for me as a prosecutor to have to do that. To impute knowledge of facts to an individual with an offence as serious as this is to take the matter a long way from a reasonable punishment with the extreme penalties mentioned in this clause. It would be helpful if the Minister would explain exactly what would need to be proved in order to establish the offence so that the noble Lord and those supporting know exactly where they are.
My Lords, I rise to support my noble friend and have added my name to these amendments. I apologise to the Committee that I was not present at Second Reading. The Minister knows that I was in Malawi supporting the launch of a parliamentary programme and explaining to our colleagues in Malawi the benefit of line-by-line scrutiny of legislation, which I know the Minister will be relishing over these coming days in Committee. As my noble friends indicated at Second Reading, and as my noble friend has indicated today, we take threats to our country very seriously, and we will work constructively with the Government in the scrutiny of the Bill.
I was struck by the remarks of the former head of the SIS, Sir Alex Younger, when he gave evidence to the Public Bill Committee in the Commons and said that the need to address the changing threats was in front of us. He said:
“What I would call grey threats … often presented us with real challenges, particularly when actors or states felt themselves at war with us and we did not feel ourselves at war with them, for good reason. My career saw less emphasis on conventional threats and more on grey space. Most of my career was devoted to counter-terrorism, which was the dominant example, but subsequently we saw state actors working in sub-threshold space—operations short of conventional war—to harm us.”—[Official Report, Commons, National Security Bill Committee, 7/7/22; cols. 11-12.]
In many respects, it is that grey space that we are seeking to address. I understand the Government’s challenge ahead but, as my noble friend indicated, casting the net so widely without a sharp mesh, I am not sure we will have the kind of security the Government are intending for us to have in this area.
This will be very apparent when we get to Part 3, when it comes to foreign interference in the registers, and other parts. I know the Minister will be in listening mode for a lot of Committee, but I hope he will consider pausing at that part of the Bill for further consultation, because what was apparent at Second Reading—many other noble Lords have, I am sure, received representations from a wide variety of groups, as I have—is that more consultation on that part of the Bill is necessary. Pausing that and bringing it back for the economic crime Bill may be an appropriate way forward. That is a debate we are yet to have, but I just wanted to give the Minister foresight of the case we are making.
As my noble friend indicated—and I defer to his legal knowledge and that of others with extensive legal knowledge who will be participating in Committee—I am struck that because of the Government’s choice not to reform the Official Secrets Act 1989, we will have two competing offences with two contradictory defences. Under this Bill, as my noble friend indicated, anyone who discloses protected information is committing an offence. In the 1989 Act, if an intelligence officer or former intelligence officer discloses any information relating to security or intelligence, they can be imprisoned for up to two years.
Under this Bill, anyone disclosing protected information to a foreign power or a body under the authority of a foreign power faces life imprisonment. However, as my noble friend indicated, in Section 1(5) of the Official Secrets Act 1989 there is a form of defence:
“It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence he did not know, and had no reasonable cause to believe, that the information, document or article in question related to security or intelligence or, in the case of an offence under subsection (3), that the disclosure would be damaging within the meaning of that subsection.”
There is no equivalent in this legislation, and I would be grateful if the Minister would outline in very clear terms why.
Part of the rationale given by the Minister in the House of Commons was that the difference between this and the Official Secrets Act is that with this, for any prosecution, three tests have to be met. I suspect we will hear quite a lot in Committee about the three tests. The Minister, Stephen McPartland, indicated that the three tests for someone to be prosecuted under this part of the Bill were,
“conducting harmful activity with regard to information that is protected effectively, knowingly prejudicing the safety or interests of the United Kingdom, and acting in a way that benefits a foreign power.”—[Official Report, Commons, National Security Bill Committee, 12/7/22; col. 80.]
But “harmful activity” and “protected effectively” are not specified in the Bill and “benefits a foreign power” is not necessary in Clause 29.
Because of the breadth of Clause 29, in some areas it is opaque. For example, does someone have to prove objectively that they did not know they were providing a service to a foreign power because they were providing it for an authority of a power? That means that the objective test, on a subjective element under this clause, is problematic.
The Minister in the Commons was not clear with regard to what the three tests are, and Clause 29 is broad. It would therefore be preferable for there to be a far more objective approach, as there is in the 1989 Act, rather than what is in this Bill. On that basis I support the amendments in my noble friend’s name.
My Lords, the amendments in this group, tabled by the noble Lords, Lord Marks and Lord Purvis, intend to tighten the scope of offences in Clauses 1, 2, 3, 4, 5, 12, 15 and 29. This is achieved in these amendments by leaving out
“or ought reasonably to know”
from the relevant clauses, meaning that an offence is committed under these clauses only if the person
“knows … that to be the case.”
The practical effect of these amendments is therefore that offences are committed only when a person knows that their actions are damaging. Given that the offences in the Bill could carry significant sentences, as we heard from the noble Lord, Lord Marks, the Committee is right to probe to what extent a person must know that they are committing such an offence, especially as it will otherwise be up to the courts to determine whether a person ought reasonably to have known that they were committing the offence.
However, it is not unusual for offences to be committed when a person ought reasonably to know. There is a recent example of this, which includes the Criminal Justice and Courts Act 2015. I was recently googling it, and it seems that the Act was passed by the coalition Government.
Further to this, if an offence is committed only when a person knows it to be the case that their actions are damaging, it could be difficult to get a successful prosecution. None the less, it is right and helpful that the Committee should ask the Minister to expand on the points we have heard in this short debate.
As the noble Lord, Lord Marks, said, juries often decide on the state of somebody’s mind when an action is committed, and the decision as to whether the defendant is guilty or not guilty can easily turn on their perception of the state of the person’s mind. The noble and learned Lord, Lord Hope, spoke about the difference between knowledge and imputed knowledge. As he said, it would indeed be helpful if the Minister could expand on the level of imputed knowledge that may be expected to secure a conviction.
The noble Lord, Lord Purvis of Tweed, reminded us of the complexity of dealing with “grey space”, as he referred to it. This is an opportunity for the Minister to try to clarify the situation so that prosecutions can be appropriately brought and reasonably thought to have secured an appropriate conviction.
My Lords, I thank noble Lords for their broad support for the Bill and the noble Lord, Lord Marks of Henley-on-Thames, for introducing these amendments.
The test that a person
“knows, or ought reasonably to know”
the effect of their conduct recurs throughout the offences and measures in Part 1 of the Bill. Failing to include an element of objectivity in this test would risk seriously undermining the offences and not criminalising behaviour for which we consider individuals should be culpable. Those conducting state threats activity are likely to be skilled at their tradecraft and will be adept at hiding their activities from our intelligence and law enforcement agencies. It is important that we do not hinder our ability to prosecute in these cases.
We consider that knowledge is an appropriate threshold for these offences and the foreign power condition. However, we believe it is also right to include constructive knowledge in these provisions. Given the seriousness of the offences to which this test applies, it is essential that an element of objectivity is included to ensure that offences can still be prosecuted where individuals are unjustly claiming not to have known the relevant consequences or circumstances. It is, of course, right that those who could not have seen those consequences or circumstances should not be criminally liable under these offences.
I think it is helpful at this point to draw noble Lords’ attention back to the 1911 Official Secrets Act, which we are replacing with this Bill. The offences under that legislation cover certain actions, such as obtaining information, by a person
“for any purpose prejudicial to the safety or interests”
of the United Kingdom. Those offences require a no-fault element to be proved in relation to the prejudice to the safety or interests of the state. The proposed amendments to Clauses 1, 4 and 12 contain the same requirement for prejudice to the safety or interests of the United Kingdom, but, importantly, and as recommended by the Law Commission, introduce a subjective fault element. We agree with the Law Commission that these offences should contain a subjective fault element. Crucially, the offences would not capture a person who genuinely could not reasonably have known the effect or nature of their conduct.
Perhaps I might provide a hypothetical scenario of how the proposed amendment could affect the foreign power condition in Clause 29. It is possible that an individual is unaware that they are working for an undercover foreign agent. The noble Lord, Lord Purvis of Tweed, made a very good point about the grey area in which much of this activity takes place. Let us imagine that the security services tell that individual that the person they are working for is, in fact, a foreign agent but the individual refuses to believe it despite clear warnings. At this point, it would be reasonable to make that individual culpable should they continue activities at the behest of the foreign agent, whereas it might prove difficult to successfully prosecute the individual if knowledge had to be proved.
To be clear, the individual in this example would still need to meet all the other tests in any given offence to be charged with that offence. Meeting the foreign power condition is not in itself wrongdoing.
The same logic applies to other amendments tabled. In Clauses 3 and 15, I am sure the whole House would agree that it is not right that an individual should escape liability when they reasonably should have known that their conduct could assist a foreign intelligence service or that they were receiving a benefit from a foreign intelligence service. A purely subjective test would make these offences very difficult to successfully prosecute.
Constructive knowledge is applied by the courts in other circumstances and the Government are confident that this test is appropriate. There will be a range of culpability between those who have actual knowledge and those who should have known, but that is something that is appropriate for sentencing rather than conviction. I hope that goes some way to answering the question put by the noble and learned Lord, Lord Hope—ah, apparently not.
I want to make it quite clear that, for the reason that was expressed earlier, I do not object to the idea of objectivity here, because it is sometimes extremely difficult to prove that someone knew something. The phraseology being used is pointing in the right direction, but there are two different levels of knowledge. The first is the knowledge of the background facts, and then there is the knowledge that flows from the conclusion based on those facts. Both of those are built into the rather short phraseology of this clause.
Taking those as two separate things, I can agree that the conclusion to be drawn from those facts can be looked at objectively. My question is: how much is the prosecutor going to be dependent on imputed knowledge of the background facts? It would be consistent with some other contexts in which reasonable knowledge is used to say that you look to see what information is possessed by the individual. Taking that as a given, you look at what facts the individual knew, and then you look at the conclusion that ought to be drawn from those facts. I hope I have made it clear that there are two stages here and my concern is about the first stage—whether the clause is imputing knowledge to the individual which that individual does not have. If it is going that far, it is taking a very serious step.
I thank the noble and learned Lord for that clarification. I do not think the clause is imputing that but I will read Hansard very carefully and, if I may, I will come back to him in writing on this point.
The noble Lord, Lord Purvis, will pick me up if I do not address the Official Secrets Act 1989, but that is due to be discussed in group 33 on a subsequent Committee day, so I ask if we can come back to that detail then, if that is acceptable.
Of course, as long as it is on the basis of the point that my noble friend raised—that we will have two pieces of legislation. The 1989 Act will cover serving or former members of the intelligence services, but this Bill means that there will now be two competing pieces of legislation. I do not know which the Government intend will trump the other.
I understand where the noble Lord is coming from. I commit to making sure that we explain that in considerable detail at the appropriate time, if that is acceptable.
For the reasons I have given, the Government cannot accept the tabled amendments and I ask the noble Lord to withdraw.
My Lords, I shall certainly withdraw the amendment at this stage at the end of what I have to say, and will then consider it and my other amendments with the Minister and others between now and Report.
I am grateful for the incisive consideration of imputed knowledge by the noble and learned Lord, Lord Hope, supported, as I understood it, by the noble Lord, Lord Ponsonby, who clearly articulated the difference between the basic knowledge that you must have and the conditions for imputing knowledge. That is what the Government’s drafting of all these clauses in the Bill simply does not address.
My noble friend Lord Purvis of Tweed pointed out the very difficult coexistence of the Bill with the Official Secrets Act 1989, which I think the Minister accepted and said that we are going to come back to. It is difficult precisely because it is not simply a competition between offences that involve serving or former intelligence officers and those involving any person; it is also that there is a carefully defined defence under the Official Secrets Act that does not apply here, and the offences can be made out on the basis of imputed knowledge.
The point made by the Minister, that the requirement for actual knowledge might hinder prosecutions, would be a good one were it not for the fact that juries are very good at determining whether or not people who deny knowledge actually have it, as the noble Lord, Lord Ponsonby, pointed out. With the exception of the Clause 5 offence, these are all indictable-only offences, as you would expect, carrying very serious penalties. A defendant who denies knowledge will have that denial very carefully considered, and the underlying facts that he knew, or can be shown to have known, will be considered to enable a jury to decide whether he actually knew.
On that basis, I suspect that, at the end of the deliberations on the Bill, the House may well want to ensure that, for a conviction to stand, it is a question not of hindering prosecutions but of whether a conviction on reasonable evidence is a likely outcome. When that is considered, I believe that actual knowledge should be required, although I of course wish to consider this over the intervening stages of the Bill. On that basis, I beg leave to withdraw the amendment.
Amendment 1 withdrawn.
2: Clause 1, page 1, line 10, after “or” insert “security or defence”
Member's explanatory statement
This amendment is intended to clarify the definition of “interests of the UK”.
My Lords, our amendments in this group would all tighten the definition of the
“interests of the United Kingdom”
that are to be protected under the provisions of the Bill. They would make it clear that the interests to be protected from damage or prejudice by this National Security Bill should be the “security or defence” interests of the United Kingdom.
In opening group 1, I made the point that the aim of Part 1 was set out in the Long Title: the Bill is about “threats to national security”, not general concerns about the interests of the United Kingdom. This reflects a point, made by me and others at Second Reading, that the interests of the UK in the Bill as drafted are not restricted to the defence or security interests of the UK at all but that any interests of the United Kingdom are to receive protection.
For example, under Clause 1, obtaining records or disclosing “protected information” is to be criminalised. “Protected information” includes any information that is “restricted in any way”, or may be reasonably expected to be so restricted, for the purpose of protecting any interests of the United Kingdom, not just security or defence interests. There is no requirement that a genuine threat to the UK be shown, and there is no restriction on which areas the interests of the UK might be held to cover.
As the Minister said in responding to the Second Reading debate, the phrase “interests of the United Kingdom” has been interpreted by the courts as meaning
“the objects of state policy determined by the Crown on the advice of Ministers”.
He also said:
“This is notably different from protecting the particular interests of those in office.”—[Official Report, 6/12/22; col. 152.]
In a personal sense, that may be so, but the interpretation that he recited, which I accept is correct in law, means effectively that the interests of the UK are synonymous with government policy at a particular time. So if the Government of the day are pursuing a particular policy on environmental protection, for example—I mentioned fracking at Second Reading but it could just as easily be immigration or any commercial interest covering transport, planning, housing, safety standards, employment rights or whatever—then investigation and disclosure would be at risk of being criminal.
Under Clause 4, photographing, recording or even looking at any prohibited place for a purpose contrary to any interests seen as those of the UK—these interests are effectively determined by the policy of the Government of the day—would all be criminal. Worse still, the photography or the recording could all be from outside the prohibited place.
Under Clause 8, the Secretary of State may designate anywhere in the United Kingdom—or for that matter any vehicle—as a prohibited place if they consider it necessary to protect the unlimited and undefined interests of the UK. That would hand an unscrupulous Government the power to choke off much of the investigative journalism and broadcasting that is fundamental to our democracy. Consequently, informed discussion of what the national interest requires would be similarly choked off. The dissemination of information about government policy on almost any topic that the Government could claim bore on the national interest could be stifled by the imposition of government restriction at will.
As drawn, many of these provisions have nothing whatever to do with national security. All of our amendments in this group are designed to restrict the interests to be protected by the Bill to “security or defence” interests. That is sufficiently wide, and it is the aim of the Bill, as demonstrated by the Long Title. We therefore hope that the Government will accept these amendments, because we find it hard to believe that they would wish to arrogate to themselves such wide-ranging protection of all possible interests that could be designated as interests of the United Kingdom in a Bill that is rightly concerned with the protection of national security. I beg to move.
My Lords, I will make some simple arguments, because there are other noble Lords who can make much more complex arguments. I say very clearly that the Bill we are debating is the National Security Bill and, therefore, it ought to be about national security. The offences should not be able to be translated to other areas. The offences are drawn so badly and broadly that they will criminalise a huge range of conduct which might only vaguely affect the interests of the UK. The wording should be changed to “security or defence”, as the noble Lords, Lord Marks and Lord Purvis, have suggested in their amendment. It is a dangerous piece of legislation, because it is so broad that the police and security services will be able to turn it into something they can use against far too many people.
My Lords, I have reservations about this amendment, because it seems to me that, for the reasons outlined by the noble Lord, Lord Purvis of Tweed, we are talking about a grey-zone threat from foreign powers and not just the traditional threat which focused almost entirely on national security and defence in the traditional sense. If we are to have legislation which is fit for purpose for the current hybrid warfare that we face as a country, it needs to enable the intelligence and security services to take the appropriate action against not only narrowly defined national security and defence interests but the wider interests of the country—that is what the grey zone is about. While we may be talking about, for example, economic or political interests, it would be an error to focus solely on national security and defence, because, unfortunately, that is not the only area on which our opponents and enemies are focused.
My Lords, I understand entirely what the noble Lord, Lord Evans, has said about the grey area, and we may need to look at that. However, because of how the clause is drafted, it goes far broader than that: as the noble Lord, Lord Marks, said, it allows for any interests of any Government at any period of time. What does the Minister think is the purpose of “interests”?
My Lords, there is an important principle at heart here. While I appreciate the description of the zone as grey, the problem is that, when you are criminalising conduct, particularly with the penalties that are mentioned in the clause, absolute clarity is needed so that the individuals at risk of being prosecuted can judge whether or not they are at risk of prosecution. Therefore, some attempt at changing the wording—not necessarily following the exact wording in the amendments—is needed to clarify the situation in the interests of the members of the public who are at risk of being prosecuted. I quite understand the greyness of the area, but that is a challenge that must be faced by finding a way, though some form of wording, to avoid the broad reach—indeed, the broadest possible reach—which is at risk if the wording of the clause is kept as it is.
My Lords, I agree absolutely with the Government’s aim in that there are certain British interests that they wish to protect. However, the way the Bill is drawn leaves an area of opacity and inconsistency with other important and analogous publications. I draw your Lordships’ attention to the revised version of the integrated review produced in 2021, which refers to:
“Our interests and our values: the glue that binds the”
nation. It continues:
“The Government’s first and overriding priority is to protect and promote the interests of the British people through our actions at home and overseas. The most important of these interests are: … Sovereignty … Security … Prosperity”—
and it explains each of those terms. The explanation of prosperity is extremely vague, but the descriptions of both sovereignty and security are quite clear. Those two descriptions are different from “the safety or interests of the United Kingdom” in the Bill, at least as I understand it. My plea to the Minister is for him to accept that there may be some opacity in what we are presented with, and for him to go back and consider this—alongside other publications that the Government have produced, including the integrated review—so that we can have something which is consistent across the board by the time we complete the Bill.
My Lords, one of the considerations of the kind referred to by the noble Lord, Lord Carlile, is, of course, a fairly familiar debate parallel to this one which is about the economic well-being of the United Kingdom. Many of the powers exercised by security services can be exercised to defend the United Kingdom from physical threat, but they can also be used to defend the economic well-being of the United Kingdom. I have always been worried about the potential growth of that term, not its actual use. It is very easy to think of things that perhaps ought not to attract intelligence activity but which affect the economic well-being of the United Kingdom. The achievement by a particular firm of a particular contract in competition with another firm is a simple example.
We have some experience of trying to deal with this, and to move to an even wider definition of United Kingdom interests seems to me to open the door to criminal cases being mounted with serious potential penalties in circumstances which Parliament will not have envisaged, except in this short debate, when the matter arises in real life. I can see the intelligence agencies being put at some disadvantage by there being a suspicion that they can do things to favour one group of people over another in the economic interests of the United Kingdom or, as in this case, in the wider interests of the United Kingdom. There is a problem, and I think it needs to be addressed by tighter wording.
My Lords, I support my noble friend’s amendments. I respect the issue of the grey area of tactics, but I equally acknowledge that if we are seeking to secure convictions beyond reasonable doubt for life sentences and sentences of 14 years, then the burden has to be, in my view, on having the primary legislation as clear as it can be. I will come back to the wider areas of concern.
The Government have referenced that this is an update not a wholesale replacement of the 1911 Act, which states in Clause 1:
“safety or interests of the State”.
But that is a very specific reference to the penalties for spying. It does not go beyond that, so the reference for the understanding of the interests of the state with regard to that penalty and that part of the 1911 Act are very clear. The difficulty with this Bill, as my noble friend indicated, is that the Government are now using that across a series of different offences which are very broad in nature. We will no doubt come back to some of those within the Bill.
The Government have also said that we do not need to have it clarified in the Bill because they are relying on case law definition for this; they cite Chandler v Director of Public Prosecutions—1964 AC 763—as far as that is concerned. I looked at that case, which was specifically about a decision that was made about protesters seeking to access a site where nuclear bombers were going to be taking off. The court found that it was not for the courts to decide what were national security interests; that was a responsibility of the Executive. That is very understandable.
That decision has also been looked at in other cases including Secretary of State for the Home Department v Rehman in 2001. In that case, with regard to Chandler v DPP on national security issues, Lord Steyn said:
“But not all the observations in Chandler v Director of Public Prosecutions … can be regarded as authoritative in respect of the new statutory system.”
So purely relying on the definition of case law on a whole breadth of different offences under this Bill is not sufficient.
I was slightly concerned by what the Minister, Stephen McPartland, told the House of Commons in Committee. He seemed to imply that the real reason why the definition was so broad in this Bill was that the evidential threshold had to be low to secure prosecutions. He said of any further restrictions, as in my noble friend’s amendment:
“That would create a higher evidential threshold to secure prosecution in an area that is often difficult to evidence due to the sensitive nature of the information that may have been obtained or disclosed. Put simply, we would have to explain why it caused damage, which may require evidence that compounds the damage. That would provide challenges to our law enforcement agencies and courts”.—[Official Report, Commons, National Security Bill Committee, 12/7/2022; cols. 81-2.]
I am not a lawyer, but I imagine that our courts are fairly well equipped to handle such cases, which are sensitive or relating to national security, as they have in the past. I was troubled to read that the Minister gave the argument that we needed to keep the definition so broad to create a lower evidential threshold, but the penalty is life imprisonment. That surely cannot be right.
More alarmingly—this goes to the noble Lord’s point about wider interests—the Minister referred to the wider elements, not just national security but economic interests. He also referred to public health interests, saying that these areas would be covered in the Bill, and not just when they are used to threaten national security. So it is not just the grey tactics that concern us with regard to national security grounds, but the greyness of how, potentially, Ministers and prosecutors will seek to define that wider national interest. On the public health interest, I can understand that a malign interest may wish to use such a tactic, as I understand the North Koreans tried to do with malware and the NHS. Those are all tactics but, ultimately, these are national security concerns and not public health concerns.
Fundamentally destabilising our economy should be a national security interest. The examples my noble friend Lord Beith gave of undermining certain sectors or competition are not sufficient to meet a trigger for national security. Therefore, I believe that that triggering should be in the Bill, which is why I support my noble friend’s amendment.
My Lords, this is a very important group of amendments which in many ways goes to the heart of much of the debate that will take place on a number of amendments. It reminds the Committee that the heart of the issue is Clause 1(1)(b), which says that to commit an offence
“the person’s conduct is for a purpose that they know, or ought reasonably to know, is prejudicial to the safety or interests of the United Kingdom”.
Fundamental to that is that what we are discussing here, as the noble Lord, Lord Marks, ably set out, is what we actually mean by the interests and safety of the United Kingdom. It is to the great credit of our country that we can debate that here to try to decide what it should be.
I agree with the majority of noble Lords who have said that it is important that we try to understand how to make sure that defending the interests and safety of our country is about national security and defence. The noble Lord, Lord Evans, reminded us that there are grey areas in that respect. That is not a criticism of having the debate, but it means that we have to decide where we want to draw the line. I have mentioned this to the noble and learned Lord Hope, and I pray him in aid. He mentioned it with respect to the Public Order Bill, and again with this one. It is an abrogation of this Parliament’s responsibility if it does not seek to answer these difficult questions and just leaves it to the courts, saying that it is for the courts to decide and determine. We ourselves should try to give greater clarity to what we as legislators think that phrase actually means.
It is incumbent on the Government to say what they will do to try to define this, as Amendment 2 moved by the noble Lord, Lord Marks, and my Amendment 3 seek to do. Either they should say “We don’t need to do that”, lay out why it is not necessary for Parliament to determine it and why they think we should leave it to the courts, or say how we will get some sort of definition that makes sense and gives greater clarity. To be frank, that is a real problem for the Bill.
As the noble Lord, Lord Purvis, pointed out in his interesting and incisive remarks, along with other noble Lords, the Government say at paragraph 62 of the Explanatory Notes:
“The term safety or interests of the UK is not defined”.
They have already made up their mind that they do not need to define it. The basis of these amendments is that we think they do. We do not oppose the Bill or think it is not important that we protect the safety and interests of the United Kingdom, but somewhere along the line our Parliament should try to say what that means. The Government say in the Explanatory Notes that it is not defined and, as the noble Lord, Lord Purvis, mentioned,
“case-law has interpreted it as meaning, in summary, the objects of state policy determined by the Crown on the advice of Ministers (see the Court’s view in Chandler v Director Public Prosecutions (1964)”.
I remind noble Lords that in that judgment, the House of Lords—constitutional arrangements were different then—essentially rejected the idea that it was for a jury to determine or decide whether something was in the interests of the state. As Lord Pearce’s judgment stated,
“the interests of the State must in my judgment mean the interests of the State according to the policies laid down for it by its recognised organs of government and authority, the policies of the State as they are, not as they ought, in the opinion of a jury, to be.”
I am not a lawyer—I have been a politician all my life—but I would argue with that. It may be quite correct from a legal point of view, but sometimes Parliament has not caught up with public opinion or where people are. Often, juries are an important way of determining what the public think, and they work.
We have seen recent examples of that. The noble Baroness, Lady Jones, reminded us well of all the different issues that have arisen with protests. They are irrelevant to the Bill, but let me give another example: assisted dying. Time and again, juries have refused to convict on assisted dying, because they will not convict somebody in those terrible circumstances and do not believe that Parliament has caught up with the reality of where we are.
I entirely understand why the noble Lord is concerned about any uncertainty in these provisions, given the significant penalty, but is he at all reassured by the fact that it would be necessary for a jury to be satisfied beyond reasonable doubt that a defendant knew or ought reasonably to have known? That is quite a high threshold to be crossed before you even get on to this definition.
I agree; I am just making the point that a definition would also help and give us certainty and clarity. It is important for a Bill that seeks to address issues of national security that it seeks to define that. The debate has already taken place in Parliament; the noble Lord takes the view that it is unnecessary, but I think a definition would be helpful. A number of noble Lords have said that, in the Bill as drafted, it appears that not only national security or defence issues will fall under the Bill but a whole range of other potential offences which have nothing to do with national security or the defence of the realm.
That is the clarity we seek, and it is right to explore it in Committee. It will be interesting to hear what the Minister says as to why my amendment or those of the noble Lords, Lord Marks and Lord Purvis, are unnecessary. Maybe he will use the argument the noble Lord put forward to say that that is what makes it unnecessary—
My Lords, I agree with the thrust of the noble Lord’s argument. I was just reflecting on the intervention by the noble Lord, Lord Faulks. Of course, the jury will have to reach beyond reasonable doubt whether the individual knew. The question is what the mechanisms are of proving beyond reasonable doubt that the person knew what those interests of the Government were, if those interests are not specific and linked to national security. If the Government have made a case that those interests are as broad as the Minister in the House of Commons indicated—that they were linked with public health or economy—that makes the task in the courts much harder, I would have thought. Therefore, it is in the interest of securing better prosecutions that those restrictions are on the face of the Bill, as the noble Lord, Lord Coaker, has indicated.
That is quite right. As I said, the problem with the Bill is that there is no indication of what else may be covered by the “safety or interests” of the state, or what the limits of those terms might be. As I have been arguing, and as others have said, as well as the prevention of terrorism and espionage, they could extend to policies on energy, national infrastructure, the protection of water, power, food, health services, transport, law and order, organised crime and immigration controls. The extent of the powers that may be taken in the Bill could be used in relation to a wide range of state interests, not just state interests related to national security or to the defence of the realm. The interests of the state clearly are ensuring that we have enough energy, but should that be covered by a National Security Bill? These are questions that the Minister needs to answer, and it will be interesting to hear his answer.
I will make a couple of final remarks. Like many, I am somebody who has never read the Official Secrets Act 1911, but in preparation for Committee—and knowing the depth of knowledge, experience and wisdom that we have around—I thought it was necessary to make sure I was quoting. The Official Secrets Act 1911 says under “Penalties for spying”:
“If any person for any purpose prejudicial to the safety or interests of the State—”.
The Official Secrets Act 1911 says that it has to be for a purpose “prejudicial” to the interests of the state. Logically, should not defendants or people have the right also to argue that their act was not prejudicial to the state? The Act says that your act has to be prejudicial, so surely you have a right and a responsibility to prove that it was not prejudicial. That argument could take place within the courts or wherever. This argument about someone’s actions in relation to the safety or interests of the state, and whether they were prejudicial, needs some sort of definition. Without it, how on earth do we know whether somebody is going to commit an offence under this Act? It would be for somebody to interpret.
Can the Minister clarify what the Government mean by “safety or interests” of the state? Who determines what they are? How can anybody act against that in a way which does not break the law, whether it be through protests or actions? If I take action outside of an RAF base, protesting against it and trying to disrupt things going in or out, or if I am at the peace camp at Faslane, will that be classed as a protest? Where does it become something that falls foul of the Bill? In other words, where do you draw the line? That is an important question for the Government to answer.
My amendment and those put forward by the noble Lord, Lord Marks, and others say to the Government that it is not good enough just to say the “safety and interests” of the state. What does that mean? People have challenged that over the decades. They have stood up and said that the safety and interests of the state are something that they challenge or do not agree with. Through history, that is how progress and reform have taken place. At the time, those protesting, taking action or conducting various activities have sometimes been accused of undermining national security or acting against the interests of the state.
We do not want to pass a law which leads to more confusion or a greater inability for Parliament to say that these are the sorts of actions we mean. That is the whole point of the amendment from the noble Lord, Lord Marks, which I support. It says that if it does not relate just to defence and national security, where is the grey zone that the noble Lord, Lord Evans, mentioned? Where do we draw the line? As the noble and learned Lord, Lord Hope, keeps reminding us, we should not abrogate our responsibility on that. It is our fundamental responsibility to try to answer that question.
My Lords, once again, this was a helpful debate, as noted by the noble Lord, Lord Coaker. I thank all those who participated. These amendments seek to limit the “interests” element of the “safety or interests of the United Kingdom” test which applies to many of the clauses in Part 1. As noted by many noble Lords, this concept was explored extensively in the other place.
The majority of these amendments change the “interests” element to cover only security or defence interests. This moves away from the safety or interests of the UK test that already exists and is understood in current espionage legislation. Indeed, the Law Commission noted its support of the Government’s decision to retain this term. At the oral evidence session to the Public Bill Committee, it noted that
“safety or interest of the state is consistent with a lot of the wording that already exists within the Official Secrets Act”—
those of 1911 and 1920—and
“avoids what might risk being an unduly narrow focus on national security”,—[Official Report, Commons, National Security Bill Committee, 7/7/22; col. 52.]
as the noble Lord, Lord Evans, noted.
The experience of the Government and the Governments of allied states is that espionage is frequently targeted at and can result in significant damage to all sorts of national interests, some of which may fall outside the scope of security or defence interests. Indeed, any attempt to narrow or define the interests to the UK risks creating a test that is quickly outdated, as the UK’s interests naturally and properly evolve.
A number of noble Lords referred to the Chandler v Director of Public Prosecutions case that was heard in this House in 1964. It concluded that the interests of the state meant the objects of state policy, determined by the Crown on the advice of Ministers. That is noticeably distinct from protecting the particular interests of those in office. I heard what the noble Lord, Lord Purvis, and others said in relation to the 2001 case. However, in answer to the noble Lord, Lord Coaker, the Government do not think it can be defined in legislation. It needs to retain flexibility for future threats as they evolve.
For this reason, it would also not be appropriate for the Secretary of State to attempt to define the UK’s interests in a Statement to Parliament, as in the proposed amendment to Clause 1. Notably, these amendments do not include economic interests, interests related to public health, as the noble Lord, Lord Purvis, noted, or interests related to preserving our democracy—to name just a few areas that would be overlooked by them. We know that these areas are targeted by hostile actors, and they should rightly be protected.
I was asked what safeguards are in place to prevent the Government using this legislation inappropriately—
I am grateful to the Minister for giving way. I want to test the issue with regard to economic activity. If the Minister is saying that the Bill will be broad and go beyond national security economic activity, then presumably that brings into its remit all significant areas of major trade disputes where we have mechanisms for reciprocal action for penalising, having punitive tariff responses, et cetera, when effectively there is economic warfare. If the noble Lord, Lord Evans, and the Minister are correct, anyone involved in any trade competitor which is engaged in dumping or activity that may lead to reciprocal trade actions will now be under the remit of the Bill. It is criminalising an offence with potentially 14 years’ or life imprisonment, rather than going through the approach of what other economic trade activity is concerned. Part of the concern is that the Government will be able to decide that all these different areas would now come under the remit of the Bill.
If noble Lords will bear with me, I am going to address that point.
I was saying what safeguards are in place to prevent the Government using the legislation inappropriately—for example, by deciding that someone is acting against government policy but where there is no national security impact. Each offence under this legislation includes tests that must be met in order for the offences to be committed. For example, for a person to commit the Clause 1 offence, they must obtain or disclose information that is “protected” for a purpose that they know, or ought reasonably to know, is prejudicial to the safety or interests of the United Kingdom, and the activity must be conducted for, or on behalf of, or with the intention to benefit, a foreign power. The limits to the type of conduct that is capable of being caught under this offence, in particular the foreign power condition, ensure that there is a state link. Designing the offence in this way clearly focuses the offence on harmful state threats activity.
Additionally, Attorney-General consent must also be obtained before prosecution can be pursued for the majority of offences under Part 1—in the case of Northern Ireland that is the Advocate-General for Northern Ireland—and the Crown Prosecution Service must apply the public interest test.
I understand the intention of these amendments. I would say to the noble Baroness, Lady Jones of Moulsecoomb, that obviously individuals and groups might not agree with government policies, and the noble Baroness makes it very clear that she falls into that category on a regular basis, but they nevertheless represent the policy of the Government who have been elected to act for the country, and disclosing information to a foreign power can never be the right response to that.
As I say, I understand the intention of these amendments, but the Government cannot support them and respectfully ask for them not to be pressed.
My Lords, I entirely understand the position taken by the noble Lord, Lord Evans of Weardale, but, with respect, the fallacy that he falls into, and the fallacy into which the Government fall—the Minister has articulated it—is that, in the interests of being able to prosecute a wide range of activities, they threaten to lower the threshold for such prosecutions to a point where the responsibility for the decision on guilt lies not with a jury considering guilt or innocence but with those who decide to prosecute because they perceive a threat to the interests of the United Kingdom, and the interests of the United Kingdom are very wide.
I agreed with almost everything that the noble Lord, Lord Coaker, said; the one thing he did which I did not agree with was that he misquoted the Bill. The Bill is not about prejudice to the safety “and” interests of the United Kingdom. Everywhere that the phrase occurs, it says the safety “or” interests of the United Kingdom”.
The noble Lord is quite right; I should have said that, and I meant to. I apologise to the Committee; that is what I meant to say. I thank the noble Lord for clarifying that.
I am quite sure that no apology was needed for what was plainly a slip in a detailed speech made without reference to lots of notes. But the point is an important one, because the protection of the interests of the United Kingdom is free-standing, and the point that almost every noble Lord who has spoken has made is that, because they are defined, there is no clarity at all.
The noble Lord, Lord Carlile, talked about opacity. It is not just opacity; it is that no one can know what is criminal. The prosecutors are there to decide what they will charge—certainly with the consent of the Attorney-General where that is required. However, where they make that decision, the jury is left with an impossible position. The judge is bound to direct the jury properly, under the terms of Chandler—that the interests of the United Kingdom are effectively what the Government of the day determine those interests to be—and the offense is left effectively without any clarity at all. That is our objection. I take it a little further, but it is an objection that illuminates the danger of going down that path. It is unjust not to have clarity about what behaviour is criminal, particularly where the sentences are so serious. It is also damaging to public confidence in the criminal law itself if prosecutors and defenders cannot know what is criminal and what is not.
I quite accept that I cannot be, and am not, wedded to the particular words of our amendments. They struck me as capturing what I believe the Bill to be about. However, we need to find a clear definition that is about national security, dealing with threats to national security, which may well be economic security and health security, howsoever defined. We need definition if we are now going to introduce offences that are applicable to every person, across a wide range of activities, and expect convictions upon them. That said, and in the hope that we will look for further clarity in the remaining stages of the Bill, I beg leave to withdraw my amendment.
Amendment 2 withdrawn.
Amendment 3 not moved.
4: Clause 1, page 1, line 15, after “article” insert “with a Government security classification of “Secret” or “Top Secret””
Member's explanatory statement
This amendment is recommended by the JCHR and would confine the offence of obtaining or disclosing protected information to information that has been classified as secret or top secret (rather than to all information access to which is restricted in any way).
My Lords, the debate on Amendment 4 flows fairly naturally from the previous debate. The amendment flows from the report by the JCHR, which I am a member of, and is designed to
“confine the offence of obtaining or disclosing protected information to information that has been classified as secret or top secret (rather than to all information access to which is restricted in any way).”
As the offence relates to the sharing of information, freedom of information—which is of course protected under Article 10 of the European Convention on Human Rights—is engaged, including the potential that it could catch journalism, political expression or whistleblowing activity. This could potentially capture a wide range of information, not least given the uncertainty we have just been discussing as to how the words
“safety or interests of the United Kingdom”
might be applied in a given case.
The requirement that the information be “restricted in any way”, or even that it might be “reasonable to expect”—that also harks back to the preceding debate—that information be restricted in any way, lacks clarity and legal certainty. As your Lordships can see, common themes are emerging. It would of course catch information that was not protected but it was reasonable to expect that it would be. The Government’s Explanatory Notes set out that it would cover non-classified information accessible in a building with restricted access, such as a government building.
I recall the severity of the offence; with a potential punishment of life imprisonment, it might be reasonable in the light of that to expect that it would attach to a clear type of information such as that categorised as “Secret” or “Top Secret”. It seems unreasonable and disproportionate that the offence should attach to information simply categorised as “protected”, or indeed official information that is not restricted at all.
The offence as currently drafted in Clause 1 does not make it sufficiently clear what information is considered to be protected for the purpose of this offence. It creates an unacceptable level of legal uncertainty, raising concerns about compliance with rights to liberty and security, the right to a fair trial and the right to freedom of expression, as protected by Articles 5, 6 and 10 of the ECHR.
As proposed by the JCHR report, in the interests of improving legal certainty and proportionality, this amendment proposes that the clause be amended to say that it applies only to information at a certain level of categorisation and therefore sensitivity, such as “secret” or “top secret”. The report suggests that the details of what could be included could be contained in a non-exhaustive indicative list or specified in a statutory instrument, but this amendment is designed to tighten up the offence so that it does not spread too far or impact too much on freedom of expression, journalism and other lawful activities. I beg to move.
My Lords, our Amendment 6 would omit Clause 1(2)(b). Your Lordships will know by now that Clause 1(2)(a) deals with protected information as being when
“access to the information, document or other article is restricted in any way”,
as my noble friend Lady Ludford has explained. However, Clause 1(2)(b) goes on to say that
“it is reasonable to expect that access to the information, document or other article would be restricted in any way”—
that way being entirely unspecified.
It is our position that the inclusion of Clause 1(2)(b) takes the clause far too wide. There is no answer to who would be doing the restricting, or what the determinant would be of when and how it would be reasonable to expect restriction. It might be completely reasonable to expect a mad authoritarian Government to restrict the most innocuous but possibly controversial informational document for the purpose of saving public or national embarrassment. Yet that would not make the entirely unjustified restriction on the information or document any less unreasonable; nor would it make the removal of the document from the public domain more justifiable.
This is a misplaced provision, and it should go. We agree with my noble friend Lady Ludford on the JCHR’s Amendment 4, that the restriction of prohibited information ought to be limited to “secret” and “top secret” categories as a matter of definition.
My Lords, I apologise for not being present at Second Reading. I cannot even claim, like the noble Lord, Lord Purvis of Tweed, that I was broadcasting the benefits of line-by-line scrutiny to a foreign power. I was performing a long-arranged judicial function in the Channel Islands.
I am well disposed in principle to Clause 1, and I entirely understand why the concept of protected information is not limited to “secret” or “top secret”, as the JCHR recommended. However, in the interests of obtaining a little more clarity, perhaps I might press the Minister on this point. Paragraph 63 of the Explanatory Notes states:
“Protected information includes, but is not limited to, classified material.”
Three examples are given. One is about information on the identity of police officers working with security and intelligence services. One is about information on intelligence officers operating in a foreign state. I suspect that they do not get much more classified than that. One is classified information on a defence system.
Bearing in mind that those examples appear to relate to classified information, I would be grateful if the Minister could explain, first, what circumstances he can envisage in which it should be an offence to obtain or disclose information that is not classified, or that could not reasonably be expected to be classified, applying Clause 1(2)(b). Secondly, how is one supposed to know that non-classified information is protected, given that the only controlling factor, other than the purpose of protecting the safety or interests of the United Kingdom—which, as the Committee has just heard, is very broadly framed—is that access should be restricted in some way? On one view, “restricted” could apply to anything, however innocent, that is not actually published. I assume that such a broad meaning is not intended, but could the Minister give us more of a clue as to where the line is drawn?
My Lords, this group relates to the new offence of obtaining or disclosing protected information. Both amendments pertain to what information should be included in this offence. While the offence currently applies to all restricted information, Amendment 4, moved by the noble Baroness, Lady Ludford, would confine the offence to “secret” or “top secret” information. This amendment reflects recommendations by the JCHR.
His Majesty’s information assets may be classified into three types: “official”, “secret”, and “top secret”. The practical effect of the amendment is therefore to exclude the disclosure of “official” information from the offence. However, according to a 2018 Cabinet Office paper, official information could have
“damaging consequences if lost, stolen or published in the media”
“not subject to a heightened threat profile.”
The Official Secrets Act 1989 includes offences on the disclosure of each classification of information. Amendment 6, tabled by the noble Lord, Lord Marks, and which the noble Lord, Lord Purvis, put his name to, leaves out part of the definition of protected information, which states that
“it is reasonable to expect that access to the information, document or other article would be restricted in any way”.
As noted by the noble Lord, Lord Marks, and in the Explanatory Notes, this is a subjective view of the information.
Given that security officials and civil servants would likely have knowledge of whether or not information is restricted, the inclusion of this line, which would create an offence for when a person should reasonably expect it to be restricted, could impact journalists and civil society. I therefore think that this is an opportunity for the Minister to clarify how he expects that people should be able to reasonably expect that information is restricted or not. I look forward to his response.
My Lords, I thank all noble Lords, and the noble Baroness, for their contributions to this short debate. I also thank the Joint Committee on Human Rights for its report and its close scrutiny of the Bill. I take the opportunity to confirm that the Government’s response has been published today, and I have asked for a copy to be placed in the Library of the House.
The Government consider that limiting what can be captured under “protected information” to specific security classifications, as the noble Baroness’s amendment seeks to, risks creating loopholes within the provision that could significantly undermine the operational utility of the offence. There are already limits to what “protected information” covers: protected information is any information, document or other article, where, for the purpose of protecting the UK’s safety or interests, access to it is restricted, or it is reasonable to expect that access would be restricted. I therefore suggest that there lies the answer to the question posed by the noble Lord, Lord Ponsonby. Moreover, the current definition of protected information would cover instances where information may have been misclassified but would still be extremely harmful if shared widely.
In contrast to the proposed amendment, the current definition of protected information also includes instances where seemingly less sensitive unclassified information or lower-classification information from within a government building or on a government computer system was obtained but could undermine the safety of the United Kingdom if disclosed to a hostile actor.
To answer the question asked by the noble Lord, Lord Marks, this could include the floor plans of a government building or even an organisational chart of a team working within that building. There are many examples of official documents at lower classification levels that may also be harmful if disclosed, such as information about a UK trade deal with another country. It is imperative that this breadth of information is also covered within the definition.
On Amendment 6, the Government consider that limiting what can be captured under protected information by removing any information where it is reasonable to expect that access is restricted in any way risks undermining the operational utility of the offence. It is critical that information where access is not restricted but would reasonably be expected to be is captured by this offence. For example, this would cover the theft of the identity documents of an intelligence officer from within their place of work because the context of the theft would mean that it would be reasonable for the person to expect that that sort of information would be protected. Another example might be where a pile of papers that were not marked as classified were stolen from inside a government building and then disclosed to a foreign power. There is a reasonable expectation that, given where they were being held, access to those papers was restricted, whereas if we accepted this amendment such information would not meet the test of protected information. I am sure the Committee would agree that this type of information should clearly be caught as protected information.
To be clear, meeting the definition of protected information is just one of three tests in Clause 1, all of which need to be met to bring a prosecution: a person must obtain or disclose protected information for a purpose that they know or ought reasonably to know is prejudicial to the safety or interests of the UK and the activity must be conducted for, or on behalf of, or with the intention to benefit a foreign power.
The “foreign power” test, which we will come on to later in the Bill, is extremely broad. Under Clauses 29 and 30, the “foreign power” test can cover the public service broadcaster of Canada. So, if someone who believes that our Government are committing wrongdoing provides a document to the public broadcaster in Canada because they believe that our Government are doing wrong, which is in the global interest, would that be covered, with potential life imprisonment, under this Bill?
It would be the case only if those three tests that I have just described are met for the purposes of the offence in the Bill. So it would have to be that the information was protected, that the person ought reasonably to know that, and that its disclosure was prejudicial to the safety or interests of the UK. I imagine that will be the topic of some debate in the context of the hypothetical example that the noble Lord mentioned. It also has to be done with the intention to benefit a foreign power. I cannot see that, in the hypothetical situation the noble Lord mentioned, that issue realistically would arise because the combination of these tests means not only is the proposed offence proportionate but an appropriately high bar has to be met to bring a prosecution under this clause. The Government therefore consider that the definition of protected information is justified and cannot accept the proposed amendments. I invite the noble Baroness, Lady Ludford, to withdraw her amendment.
Following up on my noble friend Lord Purvis’s question, would it not probably be in the interests of Canada in the example he gave to expose wrongdoing on the part of the Government of the United Kingdom? The Government of the United Kingdom might define the interests of the United Kingdom in accordance with government policy in a way which was inimical to the interests of Canada and the offence would still be committed.
I find the hypothetical example that the noble Lord postulates hard to follow, because it seems difficult to envisage a situation where a prosecutor could conclude in those circumstances that there was a prejudice to the Government of the United Kingdom and a benefit to the Government of Canada, and that the other elements were present. It seems a most unlikely scenario.
I would just like to make sure the Minister is very clear with the Committee. All the decisions that would take place would have to have an objective view that that foreign power benefits. But in my reading, the Bill does not state that. It is simply that providing information to an authority of a foreign Government, which could be a public sector broadcaster such as CBC, is under this Bill. No one has to make the decision that that public broadcaster is then seeking to benefit the Canadian Government. That is not in this Bill.
It is the intention to benefit that foreign power that is in this Bill, and it seems to me that that is a sufficiently clear and adequate definition to afford protection under the proposed section.
My Lords, I was just looking up to see whether the words “intended to benefit a foreign power” were actually in the Bill, but I did not have time. In skimming through, I did not see them.
The Minister’s response has not really reassured me. The lack of definition of “interests of the UK”, with a question mark over what that means and how you could conflate the interests of the country and the interests of the current Government, coupled with the potentially wide definition of “restricted”, suggests, to myself and my noble friends on these Benches at least, a lack of precision and an opportunity that is too wide, especially considering that the penalty that could be faced is life imprisonment. Surely, there is an onus on us to secure a tight definition of offences in this Bill.
The other missing element, which we will come to in further discussions, is the lack of a public interest defence or a whistleblowing defence. What we are facing here is considerable uncertainty about what the real scope of the offence could be. As my noble friend Lord Marks said, the term “restricted in any way” is so undefined, it could cover innocuous but controversial documents, which could be restricted to prevent embarrassment. That is the discussion we keep having on journalism and whistleblowing: we should not open the door to the criminalisation of obtaining or publishing material that could be embarrassing to the ruling party.
I scribbled some notes, but I am afraid I cannot remember which noble Lord made this point. I think it was the noble Lord, Lord Anderson. How are we meant to know what non-classified information is protected? It could apply to anything, however innocent, that was not published. If the Government have a document that they regard as restricted, even though it is not classified, the fact that it has not been published would mean it was restricted, although it may not be damaging except possibly to the reputations of the Government or Ministers.
If I were to get hold of a document saying that a Bill—for the sake of plucking something out of the air, let us say the Northern Ireland Protocol Bill—is designed to assuage some elements of political opinion in the party in power but is highly damaging to the diplomatic and economic interests of the United Kingdom, would that fall within the terms of the offence under Clause 1? In those circumstances, what is the nature of the restriction? What is the harm committed and what is the test of UK interests?
We keep coming back to the considerable grey areas in this whole package around Clause 1 and other clauses. I think we will want to explore this matter further. Otherwise, we are driving a coach and horses through the exercise of freedom of expression and other rights under the European Convention on Human Rights, which for the time being the UK is still a party to.
I think my noble friend and I are reading the same version of the Bill, but I am not sure the Minister is. There is no reference to benefiting a foreign power with intent, so I hope that at some stage during Committee the Minister will be able to clarify this position.
I thank my noble friend very much for that extremely useful intervention. I think we will have further discussion on this whole lack of precision in definitions in the Bill, especially considering the nature of the potential penalty: life imprisonment. You cannot afford to be vague about definitions in that context. In the meantime, I beg leave to withdraw my amendment.
Amendment 4 withdrawn.
Amendments 5 and 6 not moved.
Clause 1 agreed.
Clause 2: Obtaining or disclosing trade secrets
Amendment 7 not moved.
8: Clause 2, page 2, line 18, at end insert—
“(ca) the person’s conduct is significantly prejudicial to the safety or interests of the United Kingdom, and”Member’s explanatory statement
This amendment is recommended by the JCHR and would narrow the scope of the offence of obtaining or disclosing trade secrets so that it applies only to trade secrets that would prejudice the safety or interests of the UK.
My Lords, this is a JCHR-recommended amendment under Clause 2, which is about making it an offence to obtain or disclose trade secrets, punishable by up to 14 years’ imprisonment. Again, the JCHR feels that, as the offence is about the sharing of information, freedom of information—protected under ECHR Article 10—is engaged, including the potential that it may catch journalism, political expression or whistleblowing.
It is difficult to justify this as being in the interests of national security because no element in the offence has a link to the interests of national security, or indeed to the safety or interests of the United Kingdom. In their human rights memorandum the Government did not address the compatibility of this offence with ECHR Article 10. In the offence there is no requirement for there to be any detriment to the UK or to the public. As such, this seems to be really an offence of theft affecting a private actor. It does not really belong in a national security Bill.
The examples given in the Explanatory Notes relate to artificial intelligence and energy technology, which suggests that the Government envisage industries with links to critical infrastructure and national security concerns for this offence, rather than mere commercial secrets—important but not relevant in the Bill—relating to industries that pose no risk to national security. But as drafted the offence risks catching all trade secrets, no matter their relevance or lack of relevance to national security. As I say, that is more properly governed by the offence of theft. In his reply, perhaps the Minister can tell me why it is not covered by the offence of theft.
This amendment would add to the clause a requirement that the disclosure of a trade secret is
“prejudicial to the safety or interests of the United Kingdom”.
We on these Benches have also tabled amendments to tighten up the definition of
“interests of the United Kingdom”.
As in all our other discussions this afternoon, this is about precision and targeting rather than sweeping up all kinds of things that are not properly part of a national security Bill.
My Lords, I rise with some trepidation to disagree with these amendments, for reasons that I will try to give briefly. Amendment 8 and, indeed, all the others in the group are concerned with intellectual property. My entry in the register of interests discloses involvement with a strategy consultancy. In that role, we sometimes make ourselves available for the investigation of imposter frauds, for example. Many of those frauds can be connected with the attempted theft of intellectual property, not just by individuals and companies but by nation states. Some of those nation states are extremely big and powerful and have the capacity to make full use of the secrets they steal to become world leaders in the marketing of such goods.
I would suggest, with respect, that Amendment 8 shows a misunderstanding of the issue by the JCHR. Indeed, the reason why the proposed Clause 2(1)(ca)—Amendment 8—is not needed is that the reasons for this provision are well set out, in subsection (2)(b) in particular. This is for the protection of some very important and extraordinarily valuable intellectual property, which is created in, and in the interests of, this country. Indeed, if one looks at the other amendments, in particular those seeking to amend subsection (2), one has to think for only a moment to see the problem, and that these amendments defy that problem.
Let us take the example of a university computer science or physics laboratory where leading-edge research is being done or, to take something extremely topical, a vaccination laboratory where research is being done that could make a huge difference to humankind in general. As it happens, it could also make an enormous amount of profit for those creating the scientific inventions and, given the advantages they gain through taxation, for the Government.
It seems to me that the provisions in the Bill are absolutely needed to protect those scientists and inventors. There is a stage between the idea—which may come to someone in the bath or shower—and the production of a patent or copyright during which that idea is not protected by registration. These provisions precisely protect that intermediate area between the idea coming into the scientist’s head and its being registered and protected under the intellectual property legislation, which can be quite slow, very expensive and very complex.
So I respectfully suggest to those who have tabled these amendments that they are not needed and that, in fact, the Bill gives the right sort of protection precisely where it is needed, in the clause in question.
I respectfully disagree with the noble Lord, Lord Carlile. He may well be able to make a compelling case that there is a mischief that here needs to be addressed, but it is surely nothing whatever to do with national security, which is the subject of the Bill. The noble Baroness, Lady Ludford, is right that it is puzzling that there is no requirement in Clause 2 that it be established that the conduct in question is prejudicial to the safety or interests of the United Kingdom. The desirability of improving intellectual property law is really not an appropriate subject for a Bill of this nature.
Moreover, the noble Lord, Lord Carlile, says that if one looks at Clause 2(2)(b), that paragraph ensures the protection. I remind the Committee that all that Clause 2(2)(b) does is define a “trade secret” as information that
“has actual or potential industrial, economic or commercial value which would be … adversely affected if it became generally known”.
That is the loosest possible definition of a commercial trade secret. It is impossible to understand why matters of that sort should be dealt with in the Bill; indeed, that information may be enjoyed or owned by a foreign individual or company.
Trade secret law is very well developed. It includes remedies for damages and for injunctions. To include Clause 2 in the Bill would attract not just the considerable criminal penalties that the noble Baroness, Lady Ludford, referred to, it would invoke Clause 16, on the criminality of preparatory acts—
My Lords, if this is an intervention, could the noble Lord make his point, please?
The noble Lord asked to make an intervention, which is why I allowed him to, and I regret that he used the procedure of the House to make a speech. He will be free to make a speech if he wishes to do so.
No, I am not letting the noble Lord in now. I am sure he will make a speech if he wishes to in a moment.
I will respond to the noble Lord’s intervention, if I may be allowed a moment to do so. His intervention completely misses the point. He seeks to impose upon us his definition of national security. I do not share his definition of national security. If there is theft by a major state overseas of important intellectual property that has yet to be registered and which could make a huge difference to this country, in my view that falls well within the definition of national security. Indeed, that is why the Government have chosen to include economic issues in the broad definition of national security. So I respect my noble friend’s intervention but I disagree with it. I shall listen very carefully to any speech that he makes—after I have sat down.
I am very sorry. I apologise to the noble Lord and the Committee; I thought he had sat down, and I was not the only Member of the House who thought so.
I have made my speech. The only point that I was going to add was that if we retain Clause 2, it includes the preparatory acts under Clause 16 and the powers of search under Clause 21. For all those reasons, I think Clause 2 should not be included in the Bill.
My Lords, the noble Lord obviously did not know that the noble Lord, Lord Carlile, had not sat down, but he perhaps ought reasonably to have known.
This exchange has focused my mind much more on the following question: part of the grey zone that we are dealing with is whether or not economic security is now part of national security. To a considerable extent, it is. I have not yet fully understood the relationship between the Bill and the National Security and Investment Act, passed last year, which deals with, among other things, some aspects of intellectual property. There may well be—but I am not sufficiently expert on it—a degree of overlap between that Act and what is proposed here.
I am grateful to the noble Lord for giving way. The National Security and Investment Act 2021 deals with investment and the transfer of more than 25% of the equity in certain types of companies, and it is very clear. A unit has been set up, in two departments at least, to deal with those provisions. There is no real relationship between this provision and the NSIA.
I am reassured. I declare a certain interest: I have a number of relatives in aspects of scientific research. My son tells me that he is a systems biologist, but I note that engineering biology and synthetic biology are defined in the NSI Act among the strategic areas, and they are in some ways very similar to systems biology. So that is part of my active interest in this area. I am well aware that, in our universities, we have a large number of multinational teams working on the cutting edge of advanced science in a number of different areas. That is part of the grey zone with which we are now dealing and which it is extremely difficult to come to grips with.
I will speak to my Amendment 11, which is very much a probing amendment, raising the question of how we handle the very substantial number of dual nationals we have in this country, both living here and living in other countries—in some cases, they are long-term residents in other countries. If we are moving towards an increasingly unfriendly and difficult international environment, as we are already seeing, dual nationals will come under increasing pressure, not just from what we may do, mildly, within the Bill but from the other countries of which they have citizenship and with which they have connections. We have seen the pressures that the Iranian Government are willing to push on to the family members of dual nationals or single British citizens living in this country, and we have seen the same in China. Therefore, there are a number of questions about whether we need to take on board the presence and complexity of our dual-national citizens as part of the complications of the Bill.
I am also conscious that, unless the Minister can reassure me, we have no idea how many dual nationals we have, who they are or where they are. All the questions I posed during the passage of the Elections Act about our overseas citizens, and potential overseas electors, have told me that we have very little idea of who and where they are. I raise this because I simply do not know whether there is a problem or how serious it may be. But it seems to me that we should pay more attention to a world in which some hostile foreign states will do their best to bring all the pressures that they can on British citizens with origins in their country or dual citizens.
I will not take very long; I will just correct the suggestion of the noble Lord, Lord Wallace, that economic pressures on national security are a new addition. The Security Service Act 1989—the noble Lord, Lord Beith, who is not in his place, referred to this—talked about protecting the
“economic well-being of the United Kingdom”.
This is not a new issue. That is a point of clarification, for which I have not taken too much time.
My Lords, on the minor tiff between the noble Lords, Lord Pannick and Lord Carlile, both of whom I have great respect for, I am inclined to side with the noble Lord, Lord Carlile. I have no doubt at all that economic well-being is an aspect of national security. It is worth observing that Clause 2(1)(d) requires that
“the foreign power condition is met in relation to the … conduct”
in question. In Clause 29, the “foreign power” condition is:
“For the purposes of this Part the foreign power condition is met in relation to a person’s conduct if … the conduct in question, or a course of conduct of which it forms part, is carried out for or on behalf of a foreign power, and … the person knows, or ought reasonably to know, that to be the case.”
That is the sort of conduct that we are talking about. We are not talking simply about one commercial organisation stealing a science secret from the University of Oxford; we are talking about this conduct being carried out at the behest of a foreign power, which rather colours the matter in the way that the noble Lord, Lord Carlile, described.
My Lords, I had two points to make, the first of which, about foreign power, has just been made by the noble Lord, Lord Macdonald, so I will not repeat it. The second is more of a question. The noble Baroness, Lady Ludford, asked, “Why not charge theft?” I have no doubt that I will be advised by the Minister, but is there not a requirement that you have to deprive somebody permanently of something to constitute the offence of theft? I can see some potential argument that somebody charged under that offence would say that they had no intention to deprive that person permanently of that information.
My Lords, I have not yet spoken to Amendments 9 and 10, which I was proposing to do before my noble friend spoke for us. Before doing so, I join my noble friend Lady Ludford in opposing the protection of all trade secrets without any requirement for there to be prejudice to the interests of the United Kingdom. That amendment, which has been proposed on behalf of the JCHR, seems to me to be sensible. I also share her bemusement, and that of others, that trade secrets are included in the Bill, because the way in which they are included is extremely wide.
The noble Lord, Lord Pannick, has pointed out that Clause 2(2)(b)—he read it aloud, but I will not repeat doing so—is so wide that it effectively covers any information which has any commercial value of any significance. Of course, that information is important, and, to that extent, I accept the points made by the noble Lord, Lord Carlile. However, state actors may also steal, or act nefariously in respect of, trade secrets—as may others, be they state actors or not. They may be from the United Kingdom or abroad. They may be connected to national security, but if the Bill will deal with trade secrets, they need to be defined in such a way that it is confined to trade secrets that present a threat to national security. The Bill goes far too wide if we include wide threats to trade secrets in the criminal proceedings—which, as my noble friend Lady Ludford said, carry very heavy sentences—without the need to prove the threat to national security as an element of the criminal offence. As the noble Lord, Lord Pannick, said, threats to trade secrets are normally dealt with in the civil courts, where the protection to intellectual property is customarily and very frequently dealt with every day.
It is absolutely right, as the noble Lord, Lord Macdonald of River Glaven, pointed out, that there is a requirement that the foreign power condition must be met. However, the foreign power condition in Clause 29 is not a very difficult hurdle to surmount. The present drafting does not require any prejudice to the security, defence or other interests of the United Kingdom. It is met if conduct is carried out not by a state Government but by any entity controlled or financially assisted by a foreign power—so that could be a commercial organisation that happened to be state-controlled. For “foreign power”, we have to read that as any power or any other state, including any friendly Government from anywhere in the world.
Our Amendments 9 and 10 tighten up the wording on trade secrets in Clause 2, but only in a limited way: by requiring that a trade secret must be subject to measures to prevent it becoming generally known or available to rival experts in the field. We suggest that it is simply not satisfactory—
I have been listening very carefully to the noble Lord, whom I always listen to with great respect. Can I take it that he or his party will put down an amendment to the Long Title of the Bill in due course? Perhaps he has not read the Long Title in full, because, as far as I can see, it covers all these amendments in the exact way in which they are intended. We are in danger of over-sophisticating a non-existent definition of national security.
I am bound to say that I discussed that before the noble Lord came in. Since, in my opening speech on the first group of amendments, I quoted specifically from the Long Title of the Bill dealing with Part 1 offences, I do not accept the criticism that I have not read it. Nor do I accept the criticism that it is apposite to threats that have nothing to do with national security, because the Long Title—which starts by dealing with Part 1, as far as the first semi-colon—is about making provision about threats to national security. My point is that, if you protect trade secrets in these very wide terms, it may include threats to national security, but it is not limited to threats to national security and it may go far wider.
It is not satisfactory for trade secrets to qualify for protection just because the information in those secrets might be reasonably expected to be subject to measures to prevent them becoming known generally. What would the measures be? Would they be imposed by a court, by government or by regulation? That is undefined. Perhaps the Minister, in replying, would explain what those measures might be. How does it help to protect trade secrets that are not subject to any protective measures, as the Bill specifically envisages? The clause raises far more questions than it answers.
My Lords, I will very briefly follow my noble friends to agree with that proposition. There has been reference to the foreign power condition, and I will refer to that too.
First, I take the opportunity to say that I am grateful to the Minister for what he said to me earlier by highlighting Clause 29(5). Yes, it does include that the foreign power condition can be met,
“if the person intends the conduct in question to benefit a foreign power”,
without necessarily identifying that foreign power. However, that is not an exclusive meeting of the test, as my noble friend Lord Marks has indicated. The test can be met, for example, if one of two business partners who has some intellectual property or something of commercial value is in negotiations with, say, a sovereign wealth fund in the Gulf and then there is a dispute between the two business partners. While one wants to sell that to the sovereign wealth fund in the Gulf, the other says, “You can’t do that, because that is now in breach of the National Security Bill, because I believe that this is a trade secret.” That is because a foreign power, under Clause 30(1)(c), is
“an agency or authority of a foreign government”,
so a sovereign wealth fund seeking investment could be within that definition. Therefore, I have sympathy for the point made by the noble Lord, Lord Carlile, but a counterpoint has been raised by asking whether the Bill is the most appropriate way for national security to cover those aspects—and, on balance, I do not think that it is.
However, I agree with the noble Lord, Lord Carlile, that the acquisition, use or disclosure of a trade secret is unlawful where the acquisition, use or disclosure constitutes a breach of confidence in respect of confidential information. As I understand it, that was the thrust of his argument. That is also the law: we have transposed the Trade Secrets (Enforcement, etc.) Regulations 2018 into UK law, so we have that intellectual property legislation—including a nine-page trade secrets regulation. I listened very carefully to what the noble Lord said, and all of it, I think, is covered within existing legislation. The question then arises as to what the intent would be if one is either selling a trade secret or giving a trade secret to a foreign power to advance that foreign power.
That could absolutely be included in the Bill. The concern is that, given the way the Bill is drafted, so many other aspects could also be. That is the point we are trying to tease out: whether the Government intend that trade secrets are, as the noble Baroness indicated, some form of economic warfare, espionage or tactic. That is where the interest of the Bill should lie. It should not be the mechanism whereby trade disputes, commercial disputes or intellectual property disputes are resolved. Ultimately, that is where the Bill could be used. I do not think there are any in this Committee, but I am certain there are creative lawyers who might look for the most appropriate vehicle for the less appropriate cause. I am worried that the Bill would become one of those.
My Lords, the amendments in this group relate to the new offences of obtaining or disclosing trade secrets. We support these new offences and agree that the Government should safeguard against threats to the UK’s trade policy. We see them as important amendments. None the less, we have had an interesting and important debate today. As the noble Lord, Lord Marks, has outlined, Amendments 8, 9 and 10 are about trying to understand why the Government believe that the offences need to have such a wide scope and whether narrowing them down would really have the unintended or bad consequences that the Government believe they would.
I have a couple of specific questions for the Government. The Bill says that there has to be a direct link to a foreign power, but suppose somebody obtains information such as a trade secret and sells it not to a foreign power but to a competitor business. Is that covered under the legislation? Is it the case that, under the Bill, to prosecute there would need to be a link from the individual to a foreign power and not just to a competitor within the UK?
The measures in Clause 2(4) to (7)—I think the noble Lord, Lord Wallace, referred to this in his Amendment 11—are really quite important. Why can the offence take place only outside the UK if it is in respect to possession by a UK national, as opposed to a UK national and/or a UK resident, or any other description of persons? Having talked about a narrow definition, I wonder why the Government have restricted the measures in subsections (4) to (7) to a UK national. I would be interested to hear the Government’s answer to that.
An interesting discussion and debate has taken place within the Committee about the JCHR recommendation. It is an interesting point that we will all want the Government to clarify. What is the Minister actually saying to the points from the noble Lords, Lord Carlile and Lord Marks, and the noble Baroness, Lady Ludford? The JCHR quite clearly states that:
“The theft of trade secrets that pose no risk to national security is more properly governed by the offence of theft (and other breach of confidence and intellectual property rules) than through new espionage offences.”
It would be interesting to understand whether the Government think the JCHR is wrong or whether it has a point. If the JCHR is wrong, why do the Government believe it is wrong? Maybe the points made by the noble Lord, Lord Carlile, have greater relevance with respect to this Bill. With those few remarks, I look forward to the Minister’s response.
My Lords, I thank all noble Lords who have participated in another lively and entertaining debate. Amendment 8 seeks to add a “safety or interests of the UK” test to Clause 2. Amendments 9 and 10 seek to narrow the definition of a “trade secret” so that it captures only information which is actually subject to measures to protect it. Amendment 11 seeks to expand the scope of a “UK person”. The Government reject these amendments and I will try to explain why.
The offence of obtaining or disclosing trade secrets targets threats designed to undermine our economic prosperity, tackling the whole-state approach to national security adopted by state actors. The Government believe that economic prosperity and national security are inherently linked. You cannot have one without securing the other, and Clause 2 seeks to protect both.
Amendment 8 seeks to add a “safety or interests of the UK” test to Clause 2, but that risks reducing the operational utility of the offence significantly and bringing it too close in scope to Clause 1:
“Obtaining or disclosing protected information.”
There is also a real risk that this amendment would leave a wide range of activity out of the scope of Clause 2. Requiring a person’s conduct to meet the proposed test in this amendment would mean that the offence did not protect against the whole threat, which is not just to the UK’s safety or interests but to world-leading UK businesses and the value of the information they hold in cutting-edge technologies and ideas. Therefore, the Government reject Amendment 8.
There is no specific criminal offence in UK law which criminalises the theft of trade secrets by, or for the benefit of, foreign states. Our definition of “trade secrets” has been drafted the way it has to ensure that it is suitable for our specific purposes. The definition has been drafted to ensure the offence addresses the increasingly diverse set of tactics employed by state actors to undermine the UK’s national and economic security and targets a wide range of information.
I will go into some more detail on this, and I hope this will answer the questions from the noble Lord, Lord Coaker, about scope. This offence is designed to tackle the modern threat posed by state actors conducting harmful espionage activity against the UK. State actors increasingly employ an increasingly diverse, and frankly alarming, set of tactics to undermine the UK’s national and economic security and target a wide range of information, as the noble Lord, Lord Carlile, pointed out.
The definition in the regulations does not account for information with future value and focuses solely on information with current commercial value. We are seeking to capture early-stage ideas, such as research, as well as established ideas subject to protective measures with industrial and economic value, as well as commercial value. Additionally, there is no requirement for the information to be protectively marked in our state threats offence, although we anticipate that much of the information targeted by foreign states will be protected. The existing definition in the regulations states that the information has to have been subject to reasonable steps to have been kept secret.
As to whether theft would be an appropriate offence for this, as the noble Lord, Lord Macdonald of River Glaven, noted, all elements of the offence have to be satisfied, including, crucially, the foreign power condition.
As the amendment highlights, the definition in Clause 2 extends to information that could reasonably be expected to be subject to protective measures even if it is not actually subject to such measures. This is because there will be a range of information that would be valuable to a foreign power but that would not necessarily have been identified as such by the holder of the information. This could include early-stage ideas and research. It would be against the UK’s interests for that foreign power to be able to obtain such information. Our definition therefore ensures that we capture a wider range of information from being misappropriated by foreign powers. The Government reject Amendments 9 and 10 because their effect would be that some information that should be included would be out of scope.
I now turn to Amendment 11, which would see the definition of a “UK person” in Clause 2(6) expanded to include a dual national who holds both British citizenship and citizenship of another country. A person with dual citizenship, one of which is British citizenship, would fall within the current definition of a UK person in Clause 2, and therefore the Government believe this amendment is unnecessary. The noble Lord, Lord Wallace, asked about amendments that potentially include the holders of BNO passports and what have you. They are comprehensively covered in Clause 2(7). The Government also reject this amendment as unnecessary.
The noble Lord, Lord Coaker, asked about the definition of UK persons. It goes beyond a UK citizen and includes someone who lives in the UK; it is not just UK citizens. The noble Lord also asked about foreign power and corporates. I would answer that it depends very much on the corporate. If I am wrong on that, I will write to the noble Lord.
I am not going to disagree with the Minister, but on the question of the letter—and I am pleased that he is writing to me—could he put it in the Library, and do that with respect to all the letters, so that every noble Lord can see his answers to the various questions?
Yes, I am happy to give that reassurance. This is just me flying somewhat solo, so I shall clarify that, but I can think of a number of circumstances where it would very much depend on the corporate. But I shall seek official clearance on that. In light of all those answers, I respectfully ask the noble Baroness to withdraw her amendment.
My Lords, that was another interesting debate. I am very grateful to the noble Lord, Lord Pannick, for defending the honour of the JCHR against a charge of naivety from the noble Lord, Lord Carlile, which I reject. I am sure that the JCHR is capable of understanding the noble Lord’s points.
As the noble Lord, Lord Pannick, said, there is a mischief here. As the noble Lord, Lord Macdonald, said, economic espionage can be against national security—and it can be, but I think that the Minister went further than that. He said that economic prosperity and national security were synonymous. That is a very broad assertion. For instance, the shareholders in Tesla apparently believe, because the share price of Tesla has dropped rather fast, that Elon Musk has neglected the economic prosperity of Tesla by his concentration on Twitter. I do not think that any of us would regard the share price of Tesla as affecting the national security of the United States. I believe that the Minister is wrong in saying that economic prosperity and national security are synonymous, but of course I accept that economic espionage can certainly damage national security.
As my noble friend Lord Marks said, my Amendment 8 intends precisely to put in a test or condition that the theft of a trade secret is prejudicial to the “safety or interests of the United Kingdom”, preferably with that term redefined by amendments from these Benches. Without that condition, as the noble Lord, Lord Pannick, said, Clause 2 does not belong in this Bill. I conclude that I am really not persuaded by the arguments against Amendment 8. When damage to economic prosperity is also harmful to national security, that would be satisfied, if a test of that was added—and I have not heard an argument as to why that test is missing from Clause 2. If the Minister is correct that economic espionage and damage to national security are synonymous, what is the harm of putting in a definition, as the amendment suggests? But I have not yet persuaded the Minister, or indeed some other Members of the House, so for the time being I beg leave to withdraw the amendment.
Amendment 8 withdrawn.
Amendments 9 to 11 not moved.
Clause 2 agreed.
Clause 3: Assisting a foreign intelligence service
12: Clause 3, page 3, line 23, at end insert—
“(c) intends that the conduct will prejudice the safety or security or defence interests of the United Kingdom.”Member's explanatory statement
This amendment adds a further intentional element to the offence in Clause 3.
My Lords, the amendments in this group would add a mental element of intention to prejudice the safety and security or defence interests of the UK to a number of offences in the Bill—those in Clause 3, assisting a foreign intelligence service; in Clause 4, entering a prohibited place; Clause 5, unauthorised entry to a prohibited place; and Clause 16, preparatory conduct to any of the offences in Clauses 1, 2, 4 or 12. The amendments also add, importantly, a similar mental element of intention to prejudice to the foreign power condition that we discussed in the last group, in Clause 29.
The Clause 3 offence of assisting a foreign intelligence service would require intent to prejudice the safety, security or defence interests of the United Kingdom to be proved. That would answer my criticism at Second Reading that the Bill would criminalise a private citizen who helped Mossad to trace possessions looted by the Nazis from their victims, or criminalise the private citizen who helped the CIA to trace war criminals and bring them to justice from whatever theatre. Noble Lords may remember that the only answer that the Minister, the noble Lord, Lord Sharpe, gave to my example of a citizen working for Mossad was that
“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)”.—[Official Report, 6/12/22; col. 156.]
On analysis, that is no answer at all. There is no legitimate reason why a British citizen should not assist the intelligence service of a friendly nation to achieve ends which are not remotely inconsistent with the interests of the United Kingdom. It is entirely wrong, not to mention high-handed and often either impractical or impossible, to suggest that the citizen should have to go through one of the hoops set out in Clause 7 of demonstrating a legal obligation, carrying out a UK public function, or being in accordance with an agreement with the UK or a proxy of the UK to make his or her conduct lawful.
The proper way out of this difficulty is to criminalise assistance to a foreign intelligence service only if it is intended to prejudice the safety or security or defence interests of the United Kingdom—although, as I pointed out in an earlier group, I am not wedded to those words. But it must be clearly defined, and that is the point of the proposal in Amendments 12 and 15. That is consistent with the aim of the Bill, which the clause as drafted, with its breadth, is not.
The noble Baroness, Lady Ludford, has Amendment 16 from the JCHR in this group, which we support, but we stress the need for the interests of the United Kingdom to be defined by reference to national security; the disjunctive safety or interests of the United Kingdom generally is not enough.
Amendment 19 adds a similar requirement to the Clause 4 offence of entering a prohibited place. That clause is less offensive as it stands, because it already requires knowledge or imputed knowledge that the conduct in question is prejudicial to the safety or interests of the UK. If our amendments in groups 1 and 2 were accepted, as they have not been as yet, all Amendment 19 would add is a positive intention requirement, which we say is justifiable and needed but which would not cause great problems by its omission if those amendments were accepted.
Amendment 20 to Clause 5, the summary offence, is more in need of change, even if our amendments in groups 1 and 2 were accepted. The noble Baroness, Lady Ludford, has Amendment 21 in this group, with a similar change to Amendment 16 of requiring the intention to prejudice, which we support, subject to the same proviso regarding the definition of UK interests.
Amendment 47 adds an intentional prejudice element to the Clause 15 offence of obtaining a material benefit from a foreign intelligence service. Again, as drafted, this is far too wide and ill defined. If a journalist is paid to investigate or write a story for the intelligence service of a friendly nation, entirely compatibly with the national interests of the United Kingdom, he should not be guilty of a criminal offence unless the benefit derived was, in the words of the Bill,
“reasonable consideration for the provision of goods or services”,
and so was within the so-called excluded benefits in Clause 15(4).
Why should the test be whether the benefit was reasonable consideration? Consider our journalist once again: in establishing that the benefit was reasonable consideration, the journalist would inevitably have to reveal and compromise their sources, contrary to all the requirements and protections of good journalism. The test should be whether the journalist intended to prejudice the safety, security or defence interests of the UK.
Finally, Amendment 66 would add an intentional element to the foreign power condition in Clause 29, which would make sense of that important clause. It would give the foreign power condition some bite. In the last group, the noble Lord, Lord Macdonald, relied on the foreign power condition as if it had bite, which it does not. Amendment 66 would give it bite and answer the objection to the foreign power condition by insisting that there should be an intention to prejudice the security or defence interests or safety of the United Kingdom. I beg to move.
I have watched quite a number of debates in your Lordships’ House and am always struck that the Government invariably reject all the wonderful advice they get from their KCs and former judges. I appreciate that it is much harder when they disagree, but perhaps they ought to look a little more closely at these amendments, read Hansard and think about changing some of the Bill.
These are extremely serious offences. They are meant to protect national security, but currently they do not need intention to be proven. That is incredibly important. A person could unwittingly commit a serious criminal offence without having the foggiest clue that they were doing anything wrong. That is not to suggest that ignorance is a defence, but unintentional consequences to the UK’s interests should not be a serious criminal offence.
One example that is extremely important to me is journalists and whistleblowers exposing government wrongdoing. As the noble Baroness, Lady Ludford, said in the previous group, it is a perfectly legitimate activity that risks being criminalised by this legislation. The intention of journalists and whistleblowers is not to harm national security but to hold power to account. That is partly what your Lordships are doing in this House, so we should take every opportunity to support journalists and whistleblowers who do it too. I am concerned that they might be trapped by this legislation.
Likewise, the offence in Clause 15 risks criminalising people for receiving a benefit from an intelligence service. Those benefits include receiving information. A person could commit a criminal offence simply through a foreign intelligence service telling them some information which they may not want to hear, potentially completely against their will. Overall, these clauses are deeply flawed and need substantial rewriting.
My Lords, I will speak to Amendments 16 and 21. I will get a bit repetitive in the debates on this Bill, since I am speaking to amendments stemming from the JCHR, whose job is to pay attention to human rights.
The problem that Amendment 16 seeks to address is that the conduct that could be criminalised is very wide and could include conduct that engages a number of human rights, most obviously freedom of expression, as the noble Baroness, Lady Jones of Moulsecoomb, said—journalism, other political expression and possibly whistleblowing—but also freedom of association and the right to protest. The Government have not sought to justify any interference with human rights in respect of this new offence in their human rights memorandum. It seems difficult to argue credibly a national security justification for bringing proceedings under this clause when there is no prejudice to the safety or interests of the United Kingdom in the test of the offence.
Conduct outside the UK is not caught unless it is
“prejudicial to the safety or interests of the United Kingdom”
but that test does not apply to conduct within the UK. I hope the Minister can explain why. The JCHR gives the example that the offence would seem to criminalise a French national in the UK who alerts the French intelligence authorities to a terrorist threat in the UK. Let us posit that they do not know how to alert the authorities in the UK. It does not seem very sensible to criminalise such behaviour. Amendment 16 suggests a requirement that the conduct must have the potential to harm UK interests—
I may have misunderstood the noble Baroness, so perhaps she would be kind enough to clarify. Did she say that the French intelligence service would not know how to contact the British authorities about an incident in the UK? It may be my fault for not hearing—I apologise if it was.
It is possible that I gabbled. I would not suggest that the French intelligence authorities would not know how to contact their UK counterparts; I think we all hope and believe that there is close collaboration between them.
I assure the noble Baroness that they absolutely would.
Of course; the example in the JCHR report was of a French national in the UK—an ordinary person working in a bar or a bank who alerts the French intelligence authorities to a terrorist threat in the UK. It may or may not be hugely realistic, but that would be criminalised, which does not seem very sensible. The focus of Amendment 16 is to add a test of
“prejudicial to the safety or interests of the United Kingdom”,
always with the caveat that we want that test to get further attention and elaboration.
Amendment 21 concerns the offence of entering a prohibited place, which is punishable by up to 14 years’ imprisonment. Clause 5 is about accessing a prohibited place where
“the person knows, or ought reasonably to know, that their conduct is unauthorised.”
There is no requirement in this offence for any prejudice to the safety or interests of the UK. The JCHR suggests that it is more akin to an offence of criminal trespass—it will have nothing to do with national security, unless there is some sort of test of national security.
All the amendments I have spoken to today are about tightening up definitions so that we do not inadvertently catch what ought not to be criminalised behaviour and avoid any clash with human rights under the HRA and the ECHR.
My Lords, I share the concerns expressed by the noble Lord, Lord Marks, and the noble Baroness, Lady Ludford, about the breadth of Clause 3, particularly Clause 3(1), and the absence of any requirement that the defendant intends that the conduct will prejudice the safety or security or defence interests of the United Kingdom.
The noble Lord, Lord Marks, gave a practical example relating to Mossad which I will not repeat. I have a concern because of my professional interest as a practising barrister, and I would welcome advice from the Minister as to whether I will be committing a criminal offence under Clause 3(1) if I give legal advice to a foreign intelligence service in carrying out UK-related activities. Clause 3(1) refers to “conduct of any kind”; it is a criminal offence, punishable with 14 years’ imprisonment, for me to materially assist a foreign intelligence service in carrying out UK-related activities. My advice, of course, may be to say to that foreign intelligence service, “You can’t do this in the United Kingdom, it would be unlawful, and you should be aware of that”, but what are the potential defences if I am prosecuted? Under Clause 3(7), it is a defence for me to show that I am acting
“in compliance with a legal obligation under the law of the United Kingdom which is not a legal obligation under private law”.
I am very doubtful that my actions as a practising barrister fall within that provision. It is a defence, however, under Clause 3(7)(b)
“in the case of a person having functions of a public nature under the law of the United Kingdom”.
I do not have that; I am a mere practising barrister. Clause 3(7)(c) relates to some agreement with the United Kingdom; that does not apply.
The only other defence that I could offer when I am prosecuted at the Old Bailey for giving legal advice is the exemptions for legal activity which are in Schedule 14, but they seem to me—and I would be delighted to be corrected if I am wrong—to be exemptions confined to the provisions to which we will come which concern requirements to register foreign activity arrangements and foreign influence arrangements. We are not talking about that; Clause 3 is not concerned with any of that. My question to the Minister is please can I be told whether the legal advice that I give as counsel to a foreign intelligence service falls within the scope of Clause 3(1). I raise this not just because I am very concerned not to end up at the Old Bailey but because that demonstrates that Clause 3(1) is far too wide. It really needs to be redrafted to ensure that it addresses only matters of national security.
My Lords, I understand the wish of the noble Lord, Lord Marks, to define and narrow this part of the Bill. To a degree, I have some sympathy with him. I would like to answer the Mossad point and make a second point. For Mossad to operate in the United Kingdom, there would be an understanding that it should declare its activity. Therefore, I do not think this problem would arise unless it deliberately chose to conceal it, because it would be seeking support and help.
The second point is that if we make it too narrow about what British interests are, we will exclude those foreign intelligence services—including some of our friends—who act against their own citizens in this country, which we would regard as against British interests in the broadest sense though it does not directly threaten British interests. There is a range of activity that this Bill seeks to capture which is not absolutely directed against the UK but may be directed against other people here and which is unacceptable.
My Lords, I have been out of the House for about three months, and it is very refreshing to come back to your Lordships’ House and one comes back with a rather clear mind. If one just reads the contents of Amendment 12—I have not had time to study the other clauses that the noble Lord, Lord Marks of Henley-on-Thames, is addressing—and the simplicity of it, one wonders what the Government could be objecting to. I, of course, share the concern that the noble Lord, Lord Pannick, should not go to the Old Bailey and be sent to prison.
My Lords, we all hope that the noble Lord, Lord Pannick, will not be criminalised by this Bill, but we look forward to the Minister’s response and for the exemptions to which the noble Lord referred to cover him.
I want to make a couple of brief remarks, again supporting what the noble Lord, Lord Marks, is trying to do, which is to narrow the focus—that has been the subject of much of the debates have had on the various amendments. This amendment would require an intention that the conduct will prejudice the safety or security or defence interests of the United Kingdom and apply that to a number of clauses. The noble Lord, Lord Marks, has outlined quite adequately why a discussion about that and a decision for the Government are needed. I hope that the Minister will explain why the Government do not think it is necessary rather than just dismissing it.
I wanted something to be clarified, notwithstanding the fact that it may be a simple response. On visiting many military bases, one finds people outside them taking photographs and numbers and watching the activity because it is a pastime; it is something that is of interest to them. I do not think that the Bill will criminalise that, but on behalf of people who have an interest in something that I personally would not have an interest in doing, I wonder whether the Minister could clarify it. I have seen people taking photographs at RAF bases of the planes taking off. It is simply something of interest to them. It would be helpful for the Minister to clarify that they would not be caught by the Bill, even if unintentionally.
The noble Baroness, Lady Jones, was right to remind us about intention. It is important. We will come to the public interest debate later, but she referred to journalists and whistleblowers, who risk being criminalised even though their intention is not to undermine national security. That will take us to the public interest defence debate that we will get to later in the Bill.
In answer to the points and amendments from the noble Baroness, Lady Ludford, I think that the JCHR amendments—whether or not they are all right, and we heard a debate earlier on about them—are really important for the JCHR to have put before the Committee. What it is essentially saying is, “We think this is possibly something which impacts on the freedoms that we enjoy in our democracy”, freedom of expression being the one that the noble Baroness just referred to. The Government seek to modernise the national security law, which we all agree with—there is no disagreement in the Committee about that—but the noble Baroness, Lady Ludford, should not apologise for the JCHR; rather, we should congratulate it on coming to all of us and asking us to justify what we are doing and on asking the Government to justify what they are doing in the name of national security. There is a compromise to be made sometimes between national security and complete freedom to do X, Y or Z. All of us accept that. The debate, as we heard on earlier amendments, is where you draw the line. I, and other noble Lords, think it is important—whether in respect of this group or others—that a debate takes place in this Parliament, and we should attempt to do better at defining what we actually mean rather than just leaving it to the courts.
I say to the noble Baronesses, Lady Ludford and Lady Jones, and to others who continually remind us about the JCHR that I am sure it is sometimes immensely irritating to the Government, but that is the job. That, in a non-flippant way, is important, because there are compromises with freedom of expression, freedom of association, freedom to do X, Y or Z, and freedom for people to go about doing things exactly how they want to. It is a price we pay for our national security; how high that price should be is something we should not flinch from debating in this House.
The amendments from the noble Lord, Lord Marks, seek to put intent into these offences. If the Government do not believe that is important, it is necessary to argue the case as to why. On whistleblowers, journalistic freedom and so on, which the noble Baroness, Lady Jones, mentioned, I am sure we will come to that debate later when we discuss the public interest defence. I finish by saying again to the noble Baroness, Lady Ludford: more power to your elbow.
My Lords, I thank noble Lords for another very interesting short debate. These amendments seek to amend or add a safety or interests test to the various offences throughout the Bill. I will address each offence separately, given the different effect each amendment will have on each offence.
Amendments 12, 15 and 16 would narrow the scope of the offence of assisting a foreign intelligence service, so that the offences would apply only to assistance that would, or is intended to, prejudice the safety or interests of the United Kingdom. The Government reject these amendments. We believe that any activity taking place in the UK on behalf of a foreign intelligence service that the UK has not even informally agreed would be inherently prejudicial to the safety or interests of the UK. I pause, as here lies at least some explanation to the noble Lord, Lord Pannick, who none of us want to see in the dock in Court 4 of the Old Bailey.
Creating an additional legal test to prove beyond reasonable doubt why that activity is prejudicial would add an unnecessary hurdle for a prosecution. The noble Lord, Lord Marks, asked why the Government are criminalising assisting a friendly foreign intelligence service in the case of Mossad. The noble Lord, Lord Pannick, and the noble Baroness, Lady Manningham-Buller, also dealt with this example. I would say that we are criminalising covert assistance and I highlight the additional safeguard of the public interest test in the prosecution. We believe that any activity taking place in the UK on behalf of a foreign intelligence service that the UK has not even informally agreed to would be inherently prejudicial.
We would be happy to consider further the point raised by the noble Lord, Lord Pannick, on the drafting of Clause 3, but need more information about that hypothetical situation. Who would counsel be advising and when? For example, is he advising a foreign intelligence service which has an agreement to operate in the UK? In those circumstances, the prosecutor’s options would of course be very different.
On Amendment 16, the existing distinction between activities taking place inside the UK and those taking place overseas was deliberate. For activity taking place overseas, Clause 3(4) requires the conduct to be prejudicial to the safety or interests of the UK. This has been done to ensure that we target activity overseas which has an appropriate link to the United Kingdom. On this amendment, and Amendments 12 and 15, it is the Government’s view that activity taking place inside the UK, where not covered by the defences in Clause 3(7) and without even informal agreement or consent, is inherently prejudicial to the UK’s safety or interests.
As I understood the example from the noble Baroness, Lady Ludford, of a French citizen working in a bar or a bank, surely the answer is that they could simply call 999. I do not think there is any need to tighten up the definition in the context of the example she gave. In further response to the points the noble Baroness raised, I quote from paragraph 43 of the Government’s formal response to the JCHR report:
“Alerting a foreign intelligence service to a potential terrorist plot against the UK would not be conduct in relation to UK activities by that intelligence service. If the UK and France have an agreement to work on such activity together in the UK then that would fall under one of the defences available.”
Regarding Amendment 19, it is the Government’s view that an individual who knew, or reasonably ought to have known, that their conduct has a purpose that is prejudicial to the safety or interests of the United Kingdom should not be outside the scope of the offence simply by virtue of it not being the intention behind the activity to cause harm to the UK. To require the higher level of intention that this amendment seeks to introduce would create gaps that would jeopardise our ability to prevent harmful activity at the sensitive sites these provisions seek to protect. The Government consider it correct to penalise such conduct irrespective of the specific intention of the perpetrator, so long as they have, or should have, knowledge of the damage their action could cause. The Government therefore cannot accept the proposed amendment.
I will address Amendments 20 and 21 together, given that they both would add some variation of the safety or interests of the UK test to Clause 5. For the current Clause 5 offence to be committed, a person must engage in specified conduct in relation to a prohibited place that is unauthorised. They must know, or ought reasonably to know, that their conduct is unauthorised. This therefore protects those who have no reason to know that the activity they are conducting at that specific location is not authorised. There is no requirement to prove intent against the United Kingdom, as the offence is aimed at circumstances where activity is unauthorised but it cannot be established that a person had a purpose they knew, or reasonably ought to have known, was prejudicial to the safety or interests of the UK. For example, if a person trespasses on a site that they know is a prohibited place and steals something from it, that is not on the face of it damaging to the safety or interests of the UK. This is reflected in the lower maximum penalty for this offence of six months’ imprisonment.
The Government consider that including a further condition to prove that conduct is prejudicial to the safety, security or defence interests of the UK significantly reduces the utility of this offence and creates an unhelpful overlap with the Clause 4 offence. This would result in these provisions not being able to capture the full range of potentially harmful activity that prohibited places face. I add that it would seem clear that the innocent photographer taking pictures of RAF aircraft at an air show would not be caught by this offence for the reasons I have set out.
Amendment 47 would add an additional condition to the offence provided in Clause 15(1). The Government reject this amendment because it would create an additional and unnecessary evidential burden to overcome, severely limiting the efficacy of the offence at preventing hostile foreign intelligence activity against the UK. I suggest that no one would ever be prosecuted in the hypothetical situation advanced by the noble Lord, Lord Marks.
The effect of the amendment would be to require the person committing the offence to know, in all circumstances, what the foreign intelligence service intended to do through the provision of the relevant material benefit. Furthermore, the prosecution would be required to prove that knowledge in court on the basis of admissible evidence, which would be a difficult task.
Were this offence to be amended as suggested, it could be simply circumvented by the foreign intelligence service ensuring that the person who would otherwise commit the offence is not told what is intended. In such circumstances, conduct as set out in the offence as drafted would not be a crime. It is the Government’s view that a foreign intelligence service funding operations in the UK is inherently prejudicial to the safety or interests of the United Kingdom.
As to Amendment 49, noble Lords seek to include an additional element of intent as part of the preparatory conduct offence under Clause 16, through the addition of a provision requiring proof that persons engaged in preparatory conduct were acting with a purpose that they knew would prejudice the safety or security or defence of the United Kingdom. In the Government’s view it is unnecessary to include this additional element; if a person engages in preparatory conduct with the intention that it will lead to one or more such offences, the preparatory conduct offence will be committed only if the person has the intention that each element of those offences will be met in the future. I do not accept that the offence could be unintentionally committed in the manner postulated by the noble Baroness, Lady Jones.
Amendment 66 seeks to include an additional limb to the foreign power condition, requiring the conduct in question to be carried out for the purpose of prejudicing the safety or security or defence interests of the United Kingdom. This additional test would have the effect of narrowing the foreign power condition and, in turn, all of the offences and measures to which it applies, as we have already seen in the course of discussions on other sets of amendments.
Each offence in the Bill has been carefully drafted with consideration as to the necessary elements. For those offences which already include a requirement for prejudice to the safety or interests of the UK, the proposed amendment would be unnecessary and duplicative. For those offences which do not already include a safety or interest of the UK test, the proposed amendment would mean that we would not capture all the behaviour about which the Government are potentially concerned. For all of those reasons, I invite the proposers to withdraw the amendment.
The Minister has the advantage of having read the Government’s response to the JCHR report. As a mere member of the JCHR, I know that, unfortunately, two months after Report, it did not come in time for this Committee, let alone Second Reading. I look forward to reading it.
I did not follow every detail of what he read, but could the Minister tell me what guards against someone being prosecuted under Clause 5,
“Unauthorised entry etc to a prohibited place”?
The clause raises worries about protestors, journalists, photographers and so on, and does not have a test of breaching national security because the criteria in Clause 4—where there is a test of prejudice to the safety or interests of the UK—are not met. It could look as though you have the lower offence, with the possibility of six months imprisonment, where there is no purpose to assist a foreign power and no prejudice to the interests of the UK, but the catch-all of Clause 5, where anyone who wanders on to Ministry of Defence land can attract a six-month prison sentence, whether or not they have done any espionage or harm to the security of the UK. What is the defence to Clause 5 being some sort of compensation for not being able to charge under Clause 4?
As I sought to explain to the Committee, the Clause 5 offence can be committed only where a person engages in the specified conduct in relation to a prohibited place that is unauthorised, and they must know, or ought reasonably to know, that their conduct is unauthorised. It is specifically the point, as I hope I alluded to in my remarks earlier, that the Clause 5 offence is the summary-only offence, which is intended to preclude unauthorised entry to prohibited places to avoid the risk of national security consequences.
Can I respectfully ask the Minister to write to me before Report, and place a copy in the Library, with a fuller explanation of why I would not be committing a criminal offence by giving advice to a foreign intelligence service? The noble Lord asked what advice; the very simple example I gave was being asked by a foreign intelligence service to advise it whether certain conduct would be unlawful in this country. Would it be a criminal offence for me to advise it on that? Grateful though I am to the Minister for his expression of the hope that I do not end up at the Old Bailey, I would like greater comfort than that. He did perhaps go a little far in suggesting that that would be the view of all noble Lords, but I am grateful for his personal assurance.
I will endeavour to make sure that that letter goes to the noble Lord as soon as it is prepared.
I have a genuine query. The Minister referenced a number of times, as I think was cited, that if a foreign intelligence body is operating in the UK unauthorised, it is now considered to be prejudicial to the safety and interests of the United Kingdom. Why is that activity not unlawful?
The activity itself is made unlawful in the provisions of the Bill. Is that the point that the noble Lord is making?
So it is unlawful for a foreign intelligence service to carry out any activities within the UK if they have not been prior approved by UK intelligence services. Is that correct?
As the noble Lord is aware, it is the effect of Clause 2 to prohibit the offences of espionage and assisting a foreign intelligence service. Therefore, those offences in Clauses 1 and 3 of the Bill would have the effect of criminalising activity of the type described by the noble Lord.
I am grateful to the Minister; I am purely seeking clarification for the benefit of my own ignorance. I am concerned that it is not very clear. If a friendly intelligence service is carrying out UK activities, which is not espionage against the United Kingdom, the Government are saying that this is prejudicial against the safety and interests of the United Kingdom but it is not unlawful, but a UK citizen advising on that basis is unlawful. Would it not be clearer to state that that activity is unlawful?
I note the noble Lord’s remarks. I am not entirely sure that I follow the logic, but I will study Hansard carefully and take it back to the department.
My Lords, the Minister has given no quarter. I suppose that is to be expected on the first day of a Committee on a Bill, with the Government defending their position as thoroughly as he has done. I hope that when he does read Hansard, as he has just promised to do, he will realise that there are a great many areas in which flaws in the Bill have been exposed—and exposed in particular by this group of amendments—where it is quite plain that conduct that ought not be criminal runs the risk of being criminalised. The question asked by my noble friend Lord Purvis of Tweed just a moment ago exposed the danger for people working for a foreign intelligence service if they are British citizens; they are plainly caught. There are a number of areas where assisting a foreign intelligence service, for instance, gives rise to particular difficulties.
Before I go on to any detail, let me say that it is a dangerous path for a Government to say that they do not believe that there would be many unjustified prosecutions because the public interest test for a prosecution would not be met. Let us remind ourselves that the prosecution services have to consider two things: first, whether there is a reasonable chance of a conviction on the evidence, and, secondly, whether it would be—
“Realistic” is better than “reasonable”; the noble Lord knows far better than I what the test is.
The second point is whether it would be in the public interest to prosecute. That is a decision made by prosecuting authorities. What we are concerned about in this Committee is what conduct is criminal and merits a conviction in a criminal court. That carries with it the question of how a judge will be constrained to direct a jury as to what criminal conduct is. We have to get that right. Nowhere is that better shown than in this group of amendments.
The noble Baroness, Lady Jones of Moulsecoomb, was referred to jocularly in an earlier group by the Minister, the noble Lord, Lord Sharpe, who said that she often does not agree with government policy and the interests of the United Kingdom as defined by government policy. Of course, he is right that she often does not agree with government policy, but she is right to point out the danger of ill-thought-out laws that go too wide, criminalising behaviour that is no more than the democratic expression of dissenting views. That is one of the evils at which this whole suite of amendments that we have tabled is directed.
An example of how the Bill goes too far was highlighted by the response of the noble Baroness, Lady Manningham-Buller, to my Mossad example. She said that, of course, Mossad operating in the United Kingdom would be—I forget the phrase she used—notifiable activity, or it would notify of the activity. That is not the concern I was expressing. The concern that I and others were expressing is that a private citizen helping a foreign intelligence agency in the interests of the United Kingdom or compatible with them, without a government sanction and without working for the Government, would be criminalised. I suggest that it is wrong for that private citizen to be dependent on the Government, prosecuting authorities or the Attorney-General taking the view that the public interest test was not met.
In connection with the points made by the noble Lord, Lord Pannick, we simply heard no answer to his question about the tendering of legal advice. I know the Minister said that consideration would be given to that, but that calls into question the whole gamut of queries raised in this House, in this Committee and elsewhere about where the Bill goes too far. I suggest that where a Bill is too wide because it offends against human rights so that human rights are infringed and obviously infringed, the law can become positively dangerous—that is why the JCHR position taken on a number of these amendments is so important; I agree completely with the noble Lord, Lord Coaker, on this. We do not just have to consider a benign and friendly Government steeped in the traditions of British democracy. As the noble Baroness, Lady Chakrabarti, who is not here today, often says, you have to consider the possibility arising of a Government who are wholly against the traditional freedoms that are protected by our law on human rights. I suggest that that is the danger that we are concerned to defeat.
I therefore invite the Minister and his colleagues to go away and think very carefully about the breadth of these clauses and about the strength of the amendments that we have suggested to them, and to discuss with those people who have proposed amendments—we will all be willing to discuss these amendments and any refinements there should be; we are not wedded to the wording as it is the principles that are involved. Thus, by the time the Bill comes back on Report, they can be far more clearly defined, and the intent to prejudice national security—the subject of the Bill—should be clearly made out before anyone is subjected to serious criminal consequences as a result of misguided prosecutions and convictions that will inevitably flow from the misguided wording of the Bill. Having said that we will discuss it, at this stage I beg leave to withdraw the amendment.
Amendment 12 withdrawn.
13: Clause 3, page 3, line 25, leave out “it is reasonably possible may materially” and insert “is likely materially to”
Member's explanatory statement
This amendment provides for a higher threshold to be met for the offence in Clause 3.
My Lords, this group contains only Amendment 13. That said, there ought to be two amendments, because a further amendment in exactly the same terms is required to Clause 3(2)(b).
Clause 3 deals with assisting a foreign intelligence service, and Clause 3(2)(a) provides that a person commits an offence if they engage in conduct
“that it is reasonably possible may materially assist a foreign intelligence service in carrying out UK-related activities.”
For some reason that I cannot explain, we did not propose that Clause 3(2)(b), which provides that the person
“knows, or ought reasonably to know, that it is reasonably possible their conduct may materially assist a foreign intelligence service in carrying out UK-related activities”
should be similarly amended. If this goes further, there will be such an amendment.
The test of “reasonably possible” is hopelessly vague. It is 14 years for a reasonable possibility, for an offence that includes, I remind noble Lords, indirectly providing goods or services—any goods, any services—that it is reasonably possible may materially assist a foreign intelligence service in carrying out UK-related activities. Again, I remind noble Lords that UK-related activities may mean any activities taking place in the UK—such as meeting for lunch or renting out a venue for a party. That casts the net far too wide.
We have proposed a modest amendment that it should be likely that there will be assistance. That is Amendment 13, and it is the minimum needed alongside our other amendments to the Clause 3 offence. We need to help to limit the ambit of the clause to fit the mischief at which it is aimed. I beg to move.
My Lords, I too have a question to ask about this. I thank my noble friend for introducing these amendments so comprehensively. My question relates to Clause 3(2)(a) because it is so broadly scoped.
I am fully aware that there are many extremely professional UK-based organisations that provide training, support, advice and consultancy on security matters. In fact, it has become part of an industry for those who used to serve in some of our Special Forces and intelligence industry. By and large, it is done extremely professionally, which is to their credit. However, under the Bill, presumably, all that activity now needs to cease because it is criminalised. A person will commit an offence where
“it is reasonably possible their conduct may materially assist a foreign intelligence service in carrying out UK-related activities”,
which would mean training within the UK. Therefore, any consultancy—for example, a privacy sector security concern that trains allies in the Gulf and carries out any of that activity here in the UK—presumably is now liable for 14 years in jail. Can the Minister clarify whether that is the case?
My Lords, as the noble Lord, Lord Marks, mentioned, there should be a second amendment to go with Amendment 13. There is only one amendment in this group.
Clause 3 means that for the first time it will be a criminal offence to be a covert foreign agent and engage in activity that assists a foreign intelligence service. While the clause currently states that an offence is committed when a person engages in conduct that
“it is reasonably possible … may materially assist a foreign intelligence service”,
this amendment would mean instead that an offence is committed only if it is likely materially to assist a foreign intelligence service. The impact of the amendment is that it increases the threshold for the likelihood of whether an action assists a foreign intelligence service, reflecting concerns raised by the JCHR. As the noble Lord, Lord Marks, said, this would be punishable by up to 14 years’ imprisonment, so we look forward to the Minister clarifying why the offence is not more tightly drawn.
The noble Lord, Lord Purvis, raised a very interesting question about the large group of consultants with experience of the security services and forces who provide training to any number of actors across the world, and how they may be caught by this provision. I look forward to the Minister’s answer.
My Lords, Amendment 13 seeks to narrow the scope of the offence provided for in Clause 3(2). For brevity, I will refer to a foreign intelligence service as a FIS.
The Government reject this amendment because we do not consider it to be necessary. Clause 3(2) provides for an offence where a person engages in conduct which it is reasonably possible may materially assist a FIS in carrying out UK-related activities. Amendment 13 seeks to change this to “likely materially to” assist a FIS. We do not consider there to be a difference between the two terms. I recognise the spirit in which this amendment has been made, to raise the bar for this offence being conducted, but I assure noble Lords that for this offence to apply, a person not only needs to engage in the conduct that it is reasonably possible may assist a FIS but must know, or ought reasonably to know, that it will assist a FIS in carrying out UK-related activities.
To ensure that we do not capture legitimate activity, there are defences in Clause 3(7). Not only will we not criminalise activity conducted in accordance with an agreement to which we are a party—such as agreements with our Five Eyes partners based in the UK—but we will exclude law enforcement and others who are legally obliged under UK law to assist a FIS. That goes some way to answering the question asked by the noble Lord, Lord Purvis. Additionally, where someone with public functions—
My reading of it is that, taking the defence in Clause 3(7)(b) as an example, if I was providing Special Forces training—unlikely though that might seem—because I have functions of a public nature, I would be fine, although I do not think anyone would wish to receive Special Forces training from me. I was asking specifically about UK private sector bodies—consultancies and those that carry out those functions. I am happy for the Minister to write to me if he does not have an answer now, but I do not think that private sector enterprises are covered by any of the defences in Clause 3(7).
My Lords, my reading of it is not the same as the noble Lord’s, but I will seek clarification and happily write to him on that.
The noble Lord, Lord Marks, raised a hypothetical about assisting foreign intelligence services. I am happy to provide a few more which may clarify the scope of this clause. Hypothetical examples of a person assisting a foreign intelligence service in carrying out its activities could include aiding intelligence-gathering operations or providing a financial benefit to a foreign intelligence service, or someone working for a foreign intelligence service to entice an individual into working for them. I hope that clarifies it to some extent.
It is important to note that the threat posed by espionage, as we have said in previous groupings, is constantly evolving. It is important that our legislative provisions withstand the test of time. We must safeguard against a rapidly changing and complex threat landscape in which foreign powers and their intelligence services use a whole-of-society approach to conduct hostile activity against the UK. That is why Clause 3 is such an important part of the Bill. We therefore reject this amendment and respectfully ask that it be withdrawn.
I was going to ask the Minister something before he sat down, but he sat down so fast.
My concern with the Government’s approach, and the Minister’s approach in his response, is that it describes activities without reference to the legal definition of the activities concerned. Clause 3(1) involves the person committing the offence if the person
“engages in contact of any kind”.
Under Clause 3(4):
“‘UK-related activities’ means … activities taking place in the United Kingdom”.
It is not necessary to identify the service. As my noble friend pointed out, Clause 3(7) does not cover the private sector.
My amendments are very simple and very short, but even that raising of the threshold the Government resist. We are at a loss to understand why the Government are not prepared to bring a more forensic approach to the definitions in our criminal law. I quite appreciate and agree that the offence, in principle, of assisting a foreign intelligence service to the prejudice of the interests of the United Kingdom—which we say should be clearly defined—is a very important part of the Bill. But it is wrong to draft the law in such a way as to catch any conduct that attracts the displeasure of our intelligence services, our prosecuting authorities or government policy. It is important to define criminal conduct in such a way that it criminalises only conduct that ought properly to be a criminal offence when committed not only by United Kingdom citizens but by others who have absolutely no intention of assisting a foreign intelligence service to the detriment or prejudice of the United Kingdom. I beg leave to withdraw the amendment.
Amendment 13 withdrawn.
Amendments 14 to 16 not moved.
Clause 3 agreed.
Clause 4: Entering etc a prohibited place for a purpose prejudicial to the UK
Amendments 17 to 19 not moved.
Clause 4 agreed.
Clause 5: Unauthorised entry etc to a prohibited place
Amendments 20 to 22 not moved.
Clause 5 agreed.
Clause 6: Powers of police officers in relation to a prohibited place
23: Clause 6, page 6, line 18, leave out paragraph (c)
Member's explanatory statement
This amendment is recommended by the JCHR and would remove the power of the police to order a person to leave an area “adjacent to” a prohibited place.
My Lords, the offences and powers in Part 1 of the Bill, which are about entering a prohibited place, are incredibly wide and were detached to significant areas of the British countryside such as Ministry of Defence land covered by public footpaths frequented by tourists, hikers and dog walkers. My amendments in this group aim to guard against innocent members of the public inadvertently committing a criminal offence and to tighten up the conditions for the police to exercise their powers.
It does seem disproportionate to apply the restrictions, and police powers and criminal offences, to land, vehicles and buildings which do not disclose any significant risk to the safety or interests of the UK. Of course, under Clause 8, the Government would give themselves powers to declare additional land, buildings or vehicles to come under the definition of prohibited places. It may not be possible for the public even to know how much of this land and how many vehicles and buildings are Ministry of Defence property and prohibited places. They could risk committing an offence without being aware that they were approaching a Ministry of Defence car, which may have no markings at all, or walking along a coastal path which was Ministry of Defence property. My noble friend Lord Marks was talking in the previous group, or maybe the one before, about how dangerous it is to have wide definitions in criminal law. That is intrinsically bad but imagine if we got a truly authoritarian Government in this country.
So there are dangers to the principles of legal certainty and the rule of law associated with the proposed offence of being in a place where a person cannot reasonably know that they are not allowed to be. Let us say they are walking along a footpath, looking at the beautiful view and the landscape. To discover that they are committing a criminal offence would be a very nasty surprise. Indeed, the place could be simultaneously prohibited and yet accessible to the public through being a footpath. That is doubtless why the Law Commission report recommended that the Minister be under a duty to place signs around prohibited places, to ensure that people know that they might be entering such a place where these offences would apply. That is the object of Amendment 29.
All of the amendments in my name are on the question of ensuring a proportionate interference with normal human rights and freedoms, even without getting into people who want to protest or do some other lawful activity—other than tourists, walkers and dog-walkers out for a nice day.
There needs to be a test whereby places are prohibited only if they are of particular defence or national security sensitivity. One of the dangers that we talk about, particularly in Amendments 23 and 33, is that these powers and criminal offences could apply in allowing the police to order a person to leave
“an area adjacent to a prohibited place”.
What does that mean? How close do you need to be? That could be a vast area of countryside adjacent to a prohibited place—is it 20, 50 or 100 yards, or 10 miles? This is a very dangerous phrase and should certainly come out.
I turn to the other amendments. Amendment 24 asks for a police constable to have
“authorisation from a more senior officer before exercising powers under Clause 6”.
Amendment 25 would bring in my test—by now traditional—of being
“necessary and proportionate to protecting the safety or interests of the UK”.
Similarly, Amendment 26
“would narrow the definition of prohibited place”.
Amendment 32 is a suggestion to make it clear that Clause 9 applies only to a military vehicle crash site, as the Government’s Explanatory Notes said it would. That would appear to meet the Government’s intentions. Amendment 34 seeks to ensure that the provisions do not
“impact unduly on the right to protest and on journalism”,
so an exemption is proposed for these. We also ask in Amendment 35 for guidance on the use of these
“powers in respect of a cordoned area”.
Essentially, these offences and powers potentially have an incredibly wide effect and impact, and, indeed, could lead to people being uncertain about whether they are committing a criminal offence. To not even know, I suggest, is a real mischief in a democratic society, and it will have a chilling effect on people having fun and enjoying themselves in the countryside, let alone on protesters and journalists, who have a right to exercise their human rights under the Human Rights Act.
Basically, this part of the Bill requires a considerable amount of work, as suggested in the amendments that I have tried to describe, to make it compatible with people’s normal human rights, civil liberties, freedom of expression, freedom of association and ability simply to go about their normal business. The Government ought to respond positively to these amendments. I beg to move.
My Lords, I have three amendments in this group. I suppose I should declare interests in relation to the amendments of my noble friend Lady Ludford. I have been stopped by the MoD police twice in my life: outside RAF Fylingdales when walking with a local Liberal Democrat councillor, and outside RAF Menwith Hill, where I had stopped to address a meeting of splendid Quaker women who constituted the Campaign for the Accountability of American Bases. We were watching American servicemen in the ceremony in which they took down the union jack. There are no British servicemen on the base most of the time.
I want to talk about the probing amendments I have put down on why the Crown dependencies and British Overseas Territories do not appear here. I explain my interest—and form—on this, which dates back to the Royal Commission on the Constitution of 1970-74, on which I was a very junior witness. I learned about the deep ambivalence surrounding the relationship between the Crown dependencies and the UK in particular, and about the British Overseas Territories.
I note that, in the Procurement Bill, which we have just passed through this House, the Crown dependencies are included under the definition of “a UK supplier”. However, under a number of other Acts that we have passed through this House in the last few years, they exclude themselves. They move in and out in various different ways.
In a number of these territories and dependencies, there are places of considerable concern to our security and interests: the Falkland Islands, the British Indian Ocean Territory, Ascension Island, Saint Helena, et cetera. The Crown dependencies I am much less sure about, although I know there is a Territorial Army base on Jersey. The last time I looked at the official Guernsey website, it still said that Guernsey’s contribution to British defence is the maintenance of the Alderney breakwater. That is a very interesting conceit. When, nearly 20 years ago, I asked the Ministry of Defence a Written Question on the importance of the Alderney breakwater, an official phoned me up to say, “We don’t understand your question”. On further investigation, he said that they had ceased to be concerned with the Alderney breakwater at the time of the Second World War.
There are many ambivalences here but surely, they should be part of this Bill. They are neither foreign nor entirely British. They are of importance to the UK, in financial terms and, when it came to the Falklands, in military terms. I am assured that there are some facilities on Ascension Island. There are certainly facilities on the British Indian Ocean Territory, although they are of course primarily American, and I think there are fewer than two dozen British servicemen there. However, they should be in the Bill and are not. I merely wish to ask why.
My Lords, anybody watching a wonderful BBC documentary series about Ordnance Survey maps a few years ago would have seen the rather amusing part about a gap in the centre of London on the Ordnance Survey map as result of the Official Secrets Act. That was because it was forbidden to have the Telecom Tower on the map because it was a prohibited place for national security, so none of our foes were able to know where it was by studying the Ordnance Survey map. I hope that we avoid such absurdities with this Bill.
In Committee in the Commons, the Minister stated that there is not, nor will there be, a register of prohibited places. I hope the Minister can provide some more clarity with regard to that today. The offences under the Bill are so significant and potentially draconian that some of the issues that my noble friend Lady Ludford indicated might well come about, because the Minister in the Commons was unable to state in clear terms how people will know where a prohibited place is. Some might be perfectly obvious, such as some of the bases which my noble friend Lord Wallace approached with a Liberal councillor, but others are not. I understand entirely that there will be some areas where the Government do not wish to promote the activities or make it clear where they are, but how will they approach inadvertent activity, given that someone statically observing a prohibited place through an iPhone lens or a binocular lens could inadvertently be committing a criminal offence? I simply do not know how the Government intend to ensure that people are aware that they are potentially falling foul of this legislation.
Not only that but the Bill allows Ministers to move quickly to extend prohibited places. It does so by general description, as the Minister said in the Commons. Prohibited places do not have to be specified, as I understand it. They can be categorised, so that all areas that meet the general specification will become prohibited places. Is there a mechanism so that local authorities or local police are informed, even if no local communities are going to be informed? The Minister in the Commons said
“some sites will not want people to know exactly where they are and what they are doing because they will become targets. Once again, there is a balance to be struck in relation to provision for the intelligence community”.—[Official Report, Commons, National Security Bill Committee, 12/07/22; col. 107.]
Of course there needs to be a balance but, as with some other elements of the Bill, we see no other part of the balance. We see no mechanism that will protect the interests of people who are inadvertent.
The Government have also indicated that they might have to move very fast. There is of course merit in understanding that if there has been an alert about a threat, certain areas might need to be prohibited. I am not advocating it, but I am curious about the choice that has been made. The Government have not chosen to go down the route of the “made affirmative” procedure, which other legislation has if something has to be done urgently. They say that if there is a threat risk, to allow a prohibited place to be put in place they will bring it forward using the negative procedure and consult on it. It does not really ring true as far as how urgent a response that would be to a national security threat.
However, there are significant wider concerns when it comes to the powers that the Government are seeking. Where are the limits for the extension of prohibited places? Would it be, for example, that an immigration centre could not become a prohibited place under this Bill? Would it be that local government department buildings could not be prohibited places? What is the limit? Unless there is a limit, notwithstanding if there is an immediate threat—I think there are procedures anyway with regard to securing areas where the police think that offences are to be carried out, and for the safety of the public there are mechanisms that can secure places under existing legislation—how do we know how far Government want to extend those prohibited places? Unless we are clear, that raises the considerable concern that they can be used to prevent peaceful protest or concern.
My final question comes to a curious element in Clause 7(1)(a)(ii), which refers to the prohibition of places
“for extracting any metals, oil or minerals for use for UK defence purposes”.
As I understand it, these are not areas that are used exclusively for defence purposes, because the Bill does not say so. On extracting metals, minerals and oils that can be used for defence purposes, can the Minister say categorically that the Government cannot decide that sites of extraction of any carbon minerals could suddenly become prohibited places; that is, a fracking site?
We know that, understandably, a nuclear installation could come under this, but I am curious about why the powers under the Bill to make a prohibited place refer just to the police, not including the Civil Nuclear Constabulary under the Civil Nuclear Police Authority. I am also curious about why, with regard to military and sovereign bases, the Royal Military Police and the Royal Air Force Police are not similarly empowered. If the Minister can clarify those points, I would be grateful.
My Lords, the amendments in this group span Clauses 6 to 11 and cover the new offences of
“Entering and inspecting places used for defence etc”.
These clauses are intended to update the prohibited places provisions which fall within the century-old Official Secrets Act 1911. Given that technological developments, such as the use of drones, are providing new methods of accessing protected sites, it is right that the Government are evolving the offences, and it is right that this Committee is probing how these new offences will be implemented.
The 12 amendments in this group are probing and were recommended by the JCHR. They seek to tighten or narrow the offences and definitions. Amendment 34 in the name of the noble Baroness, Lady Ludford, raises the unintended consequences of these provisions on the right to protest and on journalism. This will be a common theme throughout Committee stage, and my Amendment 88, which will be debated at a later date, will consider the implications of later clauses for journalists and civil society.
Amendment 26 in the name of the noble Baroness, Lady Ludford, and Amendments 27, 28 and 30 in the name of the noble Lord, Lord Wallace, raise questions about where prohibited places may be located and probe why they may include any MoD land and why Crown dependencies and overseas territories are excluded. Given the sentences which offences may carry, it is important that the Minister clarifies the type of locations which will be included. As the noble Baroness, Lady Ludford said, the purpose of this group of amendments is to give greater certainty and narrow definitions. She asked the rhetorical question—perhaps it is not a rhetorical question; it is a literal question—of how people will know whether they are in prohibited places.
The noble Lords, Lord Wallace and Lord Purvis, explored quite interestingly why overseas territories are not included within the definitions, and I look forward to the Minister’s answer on that point. The noble Lord, Lord Purvis, asked other questions about who will be informed. If it will not be the general public, will it be local authorities or police forces, and which police forces will it be? The purpose of this suite of amendments is to look at the limits on the extension of prohibited places and at who should expect to be informed about any such extension. I look forward to the Minister’s answer.
I thank noble Lords for their contributions to this short debate. I will first speak to Amendments 23 and 33 at the same time, given the argument is much the same for both. I am happy to provide the clarity sought by noble Lords and, in particular, the noble Lord, Lord Ponsonby.
Harmful activity relating to prohibited places or cordoned areas around military aircraft can take place directly outside the boundaries of a place or cordon. This could include conducting surveillance, such as taking video or photographs of the sensitive place or aircraft, monitoring the activities of staff located at the site or conducting close-range information technology attacks from outside the place. It is therefore imperative that, where the police believe a person to be conducting such activity, they should be able to order them to move away. None the less, recognising that a cordon may be imposed at short notice, it is a defence provided for in the Bill for a person to prove that they had a reasonable excuse for failing to comply with a cordon under Clause 11. The effect of these amendments would be to reduce significantly the ability of the police proactively to stop damaging activity from taking place.
The police guidance that is being developed in collaboration with the College of Policing will provide further advice to forces on the use of powers in respect of an area adjacent to a prohibited place or cordoned area. I can confirm that this is addressed directly in the Government’s response to the JCHR’s report at paragraph 52 and onwards, and I again thank the committee for its close consideration of this Bill.
Amendment 24 adds a requirement that a police officer obtain authorisation before exercising a Clause 6 power. Due to the inherently sensitive nature of prohibited places, and the threats that they face, it is likely that the Clause 6 powers will be used rapidly to prevent serious and harmful activity from taking place—activity that could well jeopardise the safety of those working within the site itself. Policing often requires the judgment of officers to take quick and decisive action to prevent harm and keep the public safe. It is important that we continue to empower our officers to make these decisions where appropriate. Introducing a requirement for a constable to seek approval from a senior officer may add an extra layer of confusion as to when constables may or may not use their powers, potentially allowing harmful activity to be completed before the police can respond. We recognise that every effort should be made to help ensure that these powers are not used in a disproportionate manner, and, as such, we are working closely with the College of Policing to develop guidance that the police should use before exercising the powers granted under Clause 6.
Amendment 25 seeks to provide that it is an offence to fail to comply with a Clause 6 order only if the order was necessary and proportionate to protect the safety or interests of the United Kingdom. The legislation is clear that a constable may exercise a power under Clause 6 only if they reasonably believe that doing so would be necessary to protect the safety or interests of the UK. The Government therefore consider that this amendment is unnecessary. As with any such situation, where it is alleged that a constable has acted outside the scope of their powers, a decision to give the order is rightly open to challenge. As it is an important point, I will stress again that the Government are working closely with the College of Policing on the guidance which should be used prior to making any decision to exercise powers under Clause 6.
On Amendment 26, it is crucial for national security that the UK continues to protect all areas used for defence purposes and by the UK intelligence community. Carving out certain places over others within these categories in the way this amendment proposes risks creating gaps that hostile actors could exploit. It could require the Government to pinpoint their most valuable defence and intelligence sites in order to establish that they are indeed prohibited places and so put these places even more at risk of harmful activity—the very opposite of what the prohibited places regime is setting out to achieve. Moreover, the proposed amendment focuses only on the risk posed by entry to such sites, which fundamentally undermines the protection being given to these sites against a range of harmful activity. It also, in inserting this condition around potential risk, significantly reduces clarity on the face of the legislation as to what constitutes a prohibited place.
I understand the intention behind this amendment, which is to ensure that land that might already be accessible, or where there is not perceived to be a significant risk, is not covered by the provision. I want to assure noble Lords that Ministry of Defence land that can be lawfully accessed by the public and such areas of the British countryside with public footpaths do not need to be excluded, nor do the public need to be given authorisation to be in that area. Therefore, they will not commit an offence under Clause 5. They will be committing an offence under Clause 4 only if the conduct is a specified activity with a purpose that they know, or reasonably ought to know, is prejudicial to the safety or interests of the United Kingdom. It is important we are able to catch such harmful activity, even on publicly accessible land. Ministry of Defence land that can lawfully be accessed by the public is still used by our Armed Forces, often for purposes that are sensitive in nature, and it is critical they should be afforded the protections granted by the prohibited places provisions.
I will address Amendments 27, 28 and 30 together, given they all seek to extend the prohibited places provisions to the Crown dependencies and the wider British Overseas Territories. The Crown dependencies and British Overseas Territories are not a part of the United Kingdom, of course, but self-governing territories with democratic Assemblies able to legislate for themselves, including on national security. Should any British Overseas Territory or Crown dependency consider it necessary to designate prohibited places within their territory, they may make similar provisions in their own legislation.
It is of note that the Government consulted with the Crown dependencies on their inclusion within the prohibited places regime, and they have advised it would be preferred if they looked towards mirroring these provisions under their own law and legislation. It is only right and proper that the United Kingdom respects these decisions. I hope that addresses the point raised by the noble Lord, Lord Wallace. I am sure the Bailiwick of Guernsey will think long and hard about the Alderney breakwater. As the grandson of an Alderney girl, I can tell noble Lords how much that breakwater is a feature of conversation.
It is important to address why the Government have chosen to include land or buildings within sovereign base areas—particularly those of Akrotiri and Dhekelia—in the prohibited places regime. Sovereign base areas are critical for UK defence and have special constitutional status among the British Overseas Territories in that their administrator, who also holds the title of “Commander British Forces Cyprus”, is vested with all the executive and legislative authority. This unique context of the sovereign base areas is precisely why, at their request, we are also including the option to extend the provisions in the Bill to the sovereign base areas. As such, it is right that the UK continues to afford protections specifically to the sovereign base areas through the National Security Bill.
Amendment 29 creates a legislative requirement to inform the public of prohibited places. The safeguards in place within Clauses 4 and 5—namely, that a person must either have a purpose that they know, or ought reasonably to know, is prejudicial to the safety or interests of the United Kingdom or know, or ought reasonably to know, that their conduct is unauthorised—protect those who have entered, or are in the vicinity of, a sensitive site without having any knowledge that they have done so.
The Government agree that, where it is reasonably practicable, every effort should be made appropriately to notify the public of areas designated as prohibited places through the use of signage surrounding these places. However, the Government consider that making it a legislative obligation to notify the public of the location of every site designated a prohibited place is not proportionate, given that Clause 7 already makes public the types of sites that will be prohibited places. Equally, any designation under Clause 8 will set out in law any further types of sites that will be prohibited places. Furthermore, and crucially, there will be a number of sites which, due to their highly sensitive nature, it would be harmful to UK national security if they were publicly declared as prohibited places.
The police will exercise their judgment in deciding whether and when to ask a person to move on, using their powers under Clause 6, or arrest an individual on suspicion of an offence. As I have already said, the Government will ensure that the police have access to clear guidance to support these decisions.
The noble Lord, Lord Purvis, asked whether local authorities will be informed about prohibited places within their area. Clause 7 clearly describes the types of place that are prohibited places. If new sites are designated under the Clause 8 power, these listed sites, or a description of the new categories of sites, will be published online as part of the legislation.
Amendment 32 seeks to add an additional necessity test to the cordon power to limit this power to be used only in instances where it is necessary to secure and protect sensitive material until removal is completed. The Government consider that the proposed amendment seeks to impose a condition that would undermine the operational utility of the power. In the unlikely event that a military aircraft, or equipment relating to such an aircraft, needed to be secured, this amendment would require it to be necessary to impose the cordon to secure and protect the sensitive material until removal were completed. Necessity establishes a high bar for the police dealing with this live and evolving situation, so in our view it is important to retain the expediency test.
Importantly, Clause 10 already limits the duration for which a cordon may remain in place under this power, which makes clear that this power cannot be used permanently to cordon off and restrict access to areas surrounding these types of aircraft. Given that this addition negates the operational utility of this power, regrettably the Government cannot support the inclusion of this amendment.
On Amendments 34 and 35—I am sure the Committee will be glad that this is the final set of amendments for the prohibited places regime that I will speak to today—these amendments respectively provide that the reasonable excuse defence to a failure to comply with an order under Clause 11 includes protest and journalism, and they introduce a requirement for the Government to issue guidance on the use of the powers in respect of a cordoned area to protect against inappropriate impacts on protest and journalism. I will discuss these together.
The Government’s concern with the addition of what is stated to be a clear exemption for protesters and journalists, by way of permitting them to disobey the lawful orders of a police officer at a cordoned area surrounding sensitive military aircraft, is that this will create avenues that hostile actors could exploit to gain access to or inspect sensitive material at these places. Furthermore, providing avenues that enable even legitimate journalists to take, and potentially publish, photographs of sensitive military aircraft or material could have serious implications for national security and should not be permitted. For these reasons, the Government cannot support this amendment.
However, the Government are in agreement with the noble Baroness, Lady Ludford, and the Joint Committee on Human Rights that clear guidance is required for the police powers included within the prohibited places regime and in relation to the use of this cordon power. I would like to reassure the Committee again that my officials are working closely with the College of Policing to develop guidance for the police when exercising the powers under Clauses 6 and 11. Accordingly, I invite noble Lords not to press the amendments.
I have two quick questions for the Minister. I was grateful for his response to me with regard to local authorities. Can he clarify which lands will be categorised under the Crown interest? Under Clause 7(4)(b), they are
“an interest belonging to a government department or held in trust for His Majesty for the purposes of a government department”.
It is not singled out, so is my assumption correct that these government departments include devolved Administration departments—the Scottish Government, et cetera?
Similarly, I was grateful for the Minister’s reference to the College of Policing, which was also referenced in Committee by his counterpart in the House of Commons. I have heard no reference to the Government working with the Scottish Police College, which is the relevant body north of the border because the College of Policing is only for England and Wales. This is important, because many of these lands are north of the border, where I live. If the Government are consulting, they need to consult with the Scottish Police College as well. I would be grateful for that assurance.
Yes. My suspicion is that both answers are in the affirmative, but I am afraid I do not know for sure. I will find out from my officials and write to the noble Lord. I thank him for raising that.
My Lords, I am quite disappointed by the Minister’s responses on this. There are considerable dangers in this part of the Bill. The Minister referred to the fact that the offence under Clause 4 is committed only if
“the person knows, or ought reasonably to know,”
that their conduct
“is prejudicial to the safety or interests of the United Kingdom.”
We have been around those houses before. Ought ramblers reasonably to know that they are
“in the vicinity of a prohibited place”?
Again, what does that mean? It is like “adjacent”. I do not think the Minister replied on the meaning of “adjacent”; forgive me if I missed that. It is all very difficult for some normal, uncriminal person to know that they are committing an offence under Clause 4. Clause 5 also says they “ought reasonably to know”. It is all rather reminiscent of being “in the vicinity” or “adjacent”. The Government also have powers to designate more places as prohibited.
The Minister drew our attention to the defence
“to prove that the person had a reasonable excuse for that failure”
under Clause 11 in relation to a cordoned area. As far as I can see—I might have missed it—there is no such reasonable excuse defence in relation to the offences under Clauses 4 and 5 on entering or unauthorised entry to a prohibited place. If I am wrong, no doubt the Minister will be able to write to correct me.
This all seems quite reminiscent of the Covid restrictions. In the last couple of days, the human rights barrister Adam Wagner did a review of Matt Hancock’s diaries, or so-called diaries. Presumably, as he is an ex-Cabinet Minister, this publication would have been vetted by the Cabinet Office. This is the Minister who would have signed off all the SIs on Covid restrictions—200, or however many there were. The publication by Mr Hancock says that these were all SIs under the Coronavirus Act, which is not true; they were under the public health Act 1984, if memory serves. It went through the Cabinet Office with no one picking up that the reference was to the wrong law. This is reminiscent of the chaos among the police in applying the restrictions, their failure to distinguish between guidance and law, and the general outrage among the public at being told they could not do things that actually were not illegal. This did not help the reputation of and trust in the police.
I foresee similar echoes from the provisions of this Bill, of an outraged Middle England—or middle UK—where people find themselves adjacent to or in the vicinity of a prohibited place on Ministry of Defence land having had no reason to know about it. The Minister said he would try to consider putting up notices, but I do not think there has been any guarantee. So someone might not know that they were in the vicinity of a prohibited place that is defence land, committing an offence with potentially draconian penalties. This is inadequate as law. The Minister did say that there would be guidance, but there was guidance for the Covid regulations and that did not always solve the problems.
So, while I hear what the Minister says, I will want to return to some of the issues in this part of the Bill. The proposed law is sloppy. It could find innocent people either criminalised or dissuaded from taking their normal walk because they are not sure whether they are allowed in an area, and there could be a general chilling effect on people’s leisure activities. That said, and with the intention of having another look at all of this on Report, I beg leave to withdraw my amendment.
Amendment 23 withdrawn.
Amendments 24 and 25 not moved.
Clause 6 agreed.
Clause 7: Meaning of “prohibited place”
Amendments 26 to 28 not moved.
Clause 7 agreed.
Amendment 29 not moved.
Clause 8: Power to declare additional sites as prohibited places
Amendments 30 and 31 not moved.
Clause 8 agreed.
Clause 9: Power to designate a cordoned area to secure defence aircraft
Amendment 32 not moved.
Clause 9 agreed.
Clause 10 agreed.
Clause 11: Powers of police in relation to a cordoned area
Amendments 33 to 35 not moved.
Clause 11 agreed.
Clause 12: Sabotage
Amendments 36 and 37 not moved.
Clause 12 agreed.