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Public Bill Committees

Debated on Thursday 14 July 2022

National Security Bill (Fifth sitting)

The Committee consisted of the following Members:

Chairs: † Rushanara Ali, James Gray

† Bell, Aaron (Newcastle-under-Lyme) (Con)

† Eagle, Maria (Garston and Halewood) (Lab)

Elmore, Chris (Ogmore) (Lab)

† Everitt, Ben (Milton Keynes North) (Con)

† Hart, Sally-Ann (Hastings and Rye) (Con)

† Higginbotham, Antony (Burnley) (Con)

Hosie, Stewart (Dundee East) (SNP)

† Jones, Mr Kevan (North Durham) (Lab)

Jupp, Simon (East Devon) (Con)

† Lynch, Holly (Halifax) (Lab)

† McPartland, Stephen (Minister for Security)

† McDonald, Stuart C. (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)

† Mann, Scott (North Cornwall) (Con)

† Mohindra, Mr Gagan (South West Hertfordshire) (Con)

† Mumby-Croft, Holly (Scunthorpe) (Con)

† Phillips, Jess (Birmingham, Yardley) (Lab)

Sambrook, Gary (Birmingham, Northfield) (Con)

Huw Yardley, Bradley Albrow, Simon Armitage, Committee Clerks

† attended the Committee

Public Bill Committee

Thursday 14 July 2022

(Morning)

[Rushanara Ali in the Chair]

National Security Bill

Clause 16

Aggravating factor where foreign power condition met: England and Wales

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

Although the Bill provides a range of offences specifically targeted at state threats activity, it will not always be appropriate or possible for harmful activity to be prosecuted under the Bill. Where offences already exist on the statute book that deal effectively with the relevant state threats activity, there is no need to create a similar offence in the Bill. For example, the offence of murder deals effectively with state-sponsored assassinations.

While the Bill provides a suite of offences and accompanying tools and powers, there remain cases in which it will be difficult to secure prosecution due to the covert nature of the activities and the difficulties involved in presenting admissible evidence to a court to illustrate all the components of an offence beyond reasonable doubt. In some cases, however, it might be possible or more appropriate to charge the individual with another offence on the statute book.

The aim of the aggravating factor in clauses 16 to 18 is to ensure that in such scenarios the state threats element is acknowledged in court and offenders are sentenced accordingly. The state threats aggravating factor will apply in cases where the foreign power condition—to which I have referred a number of times in Committee—is satisfied. Currently, if someone is convicted of an offence and it is known that the offence was linked to state threats activity, the judge may take that into account, but there is no formal mechanism to require the judge to factor that in when making a sentencing decision, and there are no clear definitions to enable the court to apply that consistently. This is in contrast to terrorism, where there is already a statutory requirement to acknowledge a terrorist connection when considering the seriousness of certain offences. That has been effective in cases such as those of the murder of Jo Cox MP, and Lee Rigby, where the seriousness of the offences was aggravated by the sentencing judge because of the terrorist connection, so a higher sentence was imposed.

The Government believe that the state threats aggravating factor should be available in relation to any offence. A state threat is a unique national security threat that can take a wide range of forms. We must ensure that our justice system is able to acknowledge all forms that such activity might take, and be able to penalise it accordingly.

Clause 19 ensures that the aggravating factor can apply to those who are convicted of offences in service courts. The service courts system applies to those who are bound by the Armed Forces Act 2006—for example, serving members of the armed forces. The state threats aggravating factor will apply in the same way in service courts as it does in civilian courts, in that if an offender pleads guilty to or is found guilty of an offence—for example, theft—and the foreign power condition is met, the offender’s sentence will be aggravated accordingly.

I support the proposals. My concern, which is one I will express throughout the passage of the Bill, is the Bill’s relationship with the Official Secrets Act 1989, under which the maximum penalty is two years. The Minister or his officials might not know the answer now, but I am happy for him to write to me. How will the two Acts intersect? Clearly, if someone has committed an offence, they will want to be found guilty under the Official Secrets Act, under which the sentencing powers are limited, as opposed to under the Act that this Bill will become. That will be the problem with the Bill—I still cannot understand why the Government did not do both: what they promised, which was the full reform, and a Bill for a new Official Secrets Act.

As the right hon. Gentleman knows, we are reforming the first three Official Secrets Acts, but not the 1989 Act, with the Bill. We will write to him with the information to explain how that is going to work.

In summary, the aggravating factor provides another tool for prosecutors to deploy, and helps to future-proof the Bill by ensuring that our judicial system can respond to any evolving state threats and activity in the future.

It is a pleasure to see you in the Chair, Ms Ali. I very much welcome your early judgment call on jacket wearing; we are all eternally grateful.

Clause 16, as the Minister outlined, inserts new section 69A into the sentencing code to provide a new aggravating factor for sentencing when the foreign power condition is met in relation to an offence. The court will make its determination on the basis of the usual information before it for the purposes of sentencing, which may include the evidence heard at trial or evidence heard at a Newton hearing following a guilty plea. If the court determines that the foreign power condition is met in relation to conduct that constitutes the offence, it must treat that as an aggravating factor when sentencing the offender and must state in open court that the offence is so aggravated.

We are introducing a measure that will mean that, if an individual is found guilty of an offence that is not outlined in the Bill, but the foreign power condition can be proven, a judge may aggravate their sentence. On Second Reading, the Home Secretary provided a serious recent example to highlight why she felt the measure was needed, and we very much recognise the merit in that.

However, I note that a sentence would be aggravated only up to the maximum available for the original offence. I have sought a legal opinion about whether there is a precedent for aggravating an offence beyond the maximum sentence where deemed appropriate. Although the judge ultimately has discretion to sentence beyond the sentencing guidelines, it is far from common practice and will be subject to appeal.

I want to work through the application of the measure. For example, if someone acting on behalf of a foreign state were to commit a section 18 assault against someone who was going to speak at an event against that Government as a means of preventing them from honouring that commitment, it might be possible to prosecute them under some of the new offences in the Bill. If that is not the case and they are prosecuted for the section 18 assault, the foreign power condition having been met and the sentence aggravated, it is still subject only to the maximum sentence for a section 18 assault. I feel that the weight of the very serious sentences in this Bill will not be felt by the perpetrator in that instance.

Will the Minister outline why we are not able to push the sentences under clauses 16, 17 and 18 further? Will he comment on whether the usual so-called early plea discount will be ruled out in cases where the foreign power condition is met?

Clause 17 introduces the measure for offences in Northern Ireland, and clause 18 makes a corresponding provision to the one in clause 16 for sentences to be aggravated where the foreign power condition is met for offences in Scotland. Clause 19 amends the Armed Forces Act 2006 to make corresponding provision for service courts considering the seriousness of a serious offence for the purposes of sentencing. The case for tougher sentencing is even stronger in those circumstances, given that people serving in the armed forces and acting on behalf of our nation potentially have a level of access to the UK security apparatus that others do not have. We recognise the seriousness and necessity of these measures, and fully support them, but will the Minister address the points I have raised?

It is a pleasure to serve under your chairmanship, Ms Ali. I have one very short point. I am very supportive of these measures. Clause 18, as we have heard, relates to Scotland. As I understand it, it operates and is drafted similarly to other aggravations in Scottish criminal law. I just want to be absolutely sure that the Government are collaborating closely with the Scottish Government to ensure it fits with the schemes in Scottish criminal law. What discussions has he had with compatriots up there?

I am very grateful for hon. Members’ responses and support for these clauses, and I will try to provide clarity on the points made by the hon. Member for Halifax.

Serious offences that have a state threat component, such as murder and violent offences, already have significant penalties, as the hon. Lady said, and the aggravating factor will therefore allow for those sentences. However, she is right that for lower-level offences such as harassment, stalking or common assault, this would be a useful example of how these powers can be used if someone is not able to use some of the other clauses, so that they can identify that this person is part of the problem, and the person can at least be prosecuted for something, whereas at the moment it would not really be possible to prosecute them.

Also, the aggravating factor allows for an increase in the sentence, but within the sentencing code. The hon. Lady is correct that if it was a one-year sentence under the guidelines, the aggravating factor would be a maximum sentence of one year.

Question put and agreed to.

Clause 16 accordingly ordered to stand part of the Bill.

Clauses 17 to 19 ordered to stand part of the Bill.

Clause 20

Powers of search etc

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

With this, it will be convenient to consider the following: Government amendment 12.

That schedule 2 be the Second schedule to the Bill.

Robust investigative tools are crucial to enable the police effectively to counter threats by state actors, which operate using highly sophisticated means and often have access to significant resources and are skilled in tradecraft.

Clause 20 introduces schedule 2, which provides the police with powers of search and seizure when investigating threats posed by state actors to the UK and its interests. These powers replace the power of search in section 9 of the Official Secrets Act 1911.

Under the existing powers and those provided in schedule 2, the police can act on a reasonable suspicion that a relevant act has been, or is about to be, committed. This threshold is a crucial element within the provisions to enable the police to act with the necessary speed to counter state threats activity.

Can the Minister clarify what he means by “reasonable”? I know what it means in law, but I also know that there is a reasonableness test in the existing section 7 of the Act, which the security services say is not enough? So why is it okay here and it is not okay when it comes to clause 23?

The difference is that under the Police and Criminal Evidence Act 1984, or PACE, the police need to be able to identify in this situation that a crime has been committed, whereas for this measure the police are trying to intervene earlier, so that they can stop a crime from being committed. Effectively, that is what the difference is.

We will debate clause 23 when we get to it—

No, no—we will debate clause 23 when we get to it. I will be very happy to talk about clause 23 then.

No. [Laughter.]

As I was saying, clause 20 introduces schedule 2 to the Bill. Under the existing powers and those provided by schedule 2, the police can act on a reasonable suspicion that a relevant act has been, or is about to be, committed.

The threshold is a crucial element within the provisions to enable the police to act with the necessary speed to counter state threats activity. General search and seizure powers, such as those provided under PACE, are comparatively restrictive because they do not allow the police to act pre-emptively when there is intelligence to indicate that an offence is about to be committed. So, both the Ministry of Justice in 2014 and the Law Commission in 2020 reviewed the existing power, concluding that it was necessary and that reliance on PACE powers alone would limit the ability of the police to disrupt and investigate state threats.

These powers may only be used to deal with the most serious offences covered by this Bill, as well as where state threats activity involves violence or constitutes a serious threat to life or public safety.

Turning to the powers themselves, part 1 of schedule 2 legislates for powers of search and seizure as they apply in England, Wales and Northern Ireland. They provide for the police to gain access to material likely to be evidence of a relevant act, which covers specific offences or certain acts or threats under the Bill.

Where the relevant act has been, or is about to be, committed the powers in part 1 of this schedule are different, depending on the nature of the material sought to reflect the enhanced safeguards that are required to protect confidential material.

Under paragraph 2, for non-confidential material, the police can obtain a warrant to enter and search premises and to seize and retain material. There are two key conditions that a court must be satisfied are met for such a warrant to be granted: first, that a relevant act has been, or is about to be, committed and, secondly, that the material sought on a premises is likely to be evidence of that act and is not confidential material. Should the police apply for an all-premises warrant, an additional condition applies: it must not be reasonably practicable to set out all the premises that the person of interest occupies or controls, but that may need to be searched. To access confidential material, a production order must be obtained, should this course fail or be unavailable through a warrant.

For a production order to be granted, there are four tests or conditions, all of which must be satisfied for a judge to grant a production order. First, there must be reasonable grounds to suspect that a relevant act has been, or is about to be, committed. Secondly, it must be confidential material that will likely evidence a relevant act and not be legally privileged. Thirdly, the material must be likely to be of substantial value to the investigation. Finally, it must be in the public interest considering the benefit it would provide to the investigation in question and the circumstances in which it is held.

Given the nature of the material, it is right that more robust tests must be met before access to this material is granted. If granted, a production order requires a person to produce or give the police access to material. There are also circumstances in which a judge may grant a production order where the police suspect that evidence will come into a person’s possession within 28 days. That mirrors the power available in counter-terrorism legislation—that is an important point. In certain circumstances, a constable can apply to a judge to grant a warrant to enter premises, and search for and seize confidential material. This type of warrant cannot be granted unless it satisfies all four of the same tests that are required for a production order.

In addition, the warrant must be required for one of several reasons, including, first, that it is not practicable to communicate with the person who may grant access to the premises or material. Secondly, that it would be seriously prejudicial to the investigation to do so or, thirdly, that a production order has not been complied with. Under paragraph 8, a constable can obtain an order from a judge for a person to provide an explanation as to why they had in their possession certain material recovered during the execution of the above powers. That enables police to build a greater picture of how material came to be in an individual’s possession and for what purposes they held it.

Investigators have a responsibility to pursue all legitimate lines of inquiry, regardless of where they may lead, and this power provides a vital tool to support the investigative inquiries of the police. Part 1 of schedule 2 provides specific powers for search and seizure in urgent cases whereby a superintendent may authorise the police to enter premises, search for and seize material if it appears to them that the case is one of great emergency in which immediate action is necessary. Similarly, there is an emergency power to require an explanation. Again, these powers are likely subject to safeguards, which I will come on to shortly.

Part 2 of schedule 2 provides a similar set of powers for police in Scotland, but with minor differences to reflect their devolved powers. In addition to the conditions I have already covered, there are additional safeguards within these provisions, including, first, that orders and warrants must be made by an independent judicial authority in all cases, expect in cases of great emergency. Secondly, in the rare instance that the urgent powers are exercised by a senior police officer, the Secretary of State must be notified of their use, and if certain confidential material is recovered during the search that the police want to retain as evidence, its retention must be authorised by a judge. I will come to that in more detail shortly. Finally, nothing in the schedule provides for access to legally privileged information.

Recognising the importance that we place on press freedoms, there are specific safeguards that govern the handling of confidential journalistic material. In an exceptional case where such material is seized during a search that has been authorised under the urgent procedure, a warrant must be sought from a judge for its continued retention. In instances where a warrant is refused, a judge may direct that the confidential journalistic material be returned or destroyed. That reflects recent case law and ensures that the provisions provide appropriate protection for journalists.

Government amendment 12 is to schedule 2. As I am sure hon. Members would agree, it is important that court rules are able to be amended to cover the powers of search and seizure provided for in schedule 2, if required. This technical amendment achieves that. Under part 1, paragraph 2 of schedule 2, a constable can apply for a warrant to enter a premises and search for and seize material classed as non-confidential where they suspect a relevant act in the Bill has been, or is about to be, committed. As provided for in paragraph 2(1)(b), a constable in Northern Ireland must apply for that type of warrant from a lay magistrate. Government amendment 12 will ensure that, should it be necessary to do so, the court rules can be amended to reflect any specific requirements that apply to the application and issuing of such warrants.

In summary, the Government have reformed an existing tool, the utility of which has been independently recognised and provided for in its use in state threats investigations, while ensuring that it is subject to a range of modern and vital safeguards. I ask the Committee to support the inclusion of clause 20 and schedule 2 in the Bill, along with Government amendment 12.

I thank the Minister for his explanation. Clause 20 and schedule 2 deal with the power of entry, search and seizure in relation to the new offences created by part 1 of the Bill. There are a number of powers here that seem largely appropriate and proportionate for the reasons outlined by the Minister.

However, I will press the Minister on paragraphs 3 and 4 of part 1 in schedule 2, on the production orders relating to confidential material. These provisions set out the conditions that must be met in order for a constable to apply to a judge for a confidential material production order. I was listening carefully to what the Minister said on that. The person specified in that order then has to produce, within a specified period, any material that they have in their possession, custody or control.

The specified period is seven days. The clause says that it is seven days unless it appears to the judge that a different period would be appropriate in the particular circumstances of the application. Why is it seven days? Given the seriousness of some of the offences and the consequences of confidential material being in the hands of someone who should not have it—potentially to the benefit of a hostile state—that feels like quite a long period for such material to be able to be used against us. I would be grateful if the Minister explained the rationale for specifying the period as seven days.

My second point is that there is a lot going on in schedule 2, much as there is in schedule 3. While there are provisions for an ongoing review of the powers created by part 2 of the Bill, at clause 49, I think that part 1 should be reviewed by an independent reviewer to safeguard against any unintended consequences once the legislation is enacted. That is why the Opposition have tabled new clause 2; we will make the case for that provision when we reach the appropriate point.

I broadly welcome the provisions. As the hon. Member for Halifax said, they are extensive powers, so I am very sympathetic to her suggestion that they should be subject to review in the same way that other parts of the Bill are. I appreciate that those extensive powers are modelled on the equivalent provisions in terrorism legislation. I have no problem with those provisions being borrowed from such legislation, but they need to be justified in their own context. The Minister has usefully set out why exactly they are needed here. The SNP is broadly supportive of that.

I have a couple of questions. I am not familiar with the idea of allowing police officers or sheriffs to order a person to explain material that is seized. I see that is borrowed from terrorism legislation. However, I wonder how that works alongside the right not to require someone to self-incriminate, particularly when there is an emergency power for police officers to require an explanation—if that is not complied with, it can be a criminal offence. I am interested in how that works; I assume it works in the context of the terrorism legislation, but it would be interesting to hear a bit more about that. I am also interested in the idea of what a “great emergency” amounts to. That is not a concept that I have seen before. Are we talking about threat to life and limb, essentially? I am not sure about that.

My only other point is that how the provisions on search and seizure apply depends largely on how the foreign power condition operates. I said at the outset of our debates on clause 1 that I have some difficulties with how broadly some aspects of the term were drawn. For example, the non-governmental organisations I referred to during that debate and journalists working for a foreign state broadcaster can be brought within the foreign power condition, meaning that they are subject to the search-and-seizure powers. We can probably come back to that in the context of clause 1, but it is relevant to our discussion. It could be those people who are searched or who have documents seized under the schedule, including confidential journalistic material.

Those are a couple of points to emphasise, but we broadly support what is in the clause and the schedule.

I am grateful for Members’ support. To sum up, the important thing is to recognise that between 2017 and 2022, the powers relating to great emergency have been used seven times in England and Wales and once in Scotland, and they have never once been used by a senior police officer during that five-year period. This will not happen weekly or monthly; it will be a very rare event. We are trying to mirror the legislation that has proven to be successful in the Terrorism Act 2000. The seven days figure also mirrors the legislation in that Act. I totally accept the point made by the hon. Member for Halifax: if the judge has the evidence in front of him and wants to make it a different time period, that is then a judicial decision as opposed to any other kind of decision.

Question put and agreed to.

Clause 20 accordingly ordered to stand part of the Bill.

Schedule 2

Powers of entry, search and seizure

Amendment made: 12, in schedule 2, page 62, line 9, after “rules” insert “and magistrates’ courts rules”.—(Stephen McPartland.)

This amendment enables Northern Ireland magistrates’ courts rules to make provision about proceedings under Schedule 2.

Schedule 2, as amended, agreed to.

Clause 21

Arrest without warrant

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

Currently, the police must rely on the powers of arrest and detention available under the Police and Criminal Evidence Act 1984, as we discussed earlier, when tackling state threats activity. In contrast, under the Terrorism Act 2000 the police have enhanced powers to facilitate early disruption and the investigation of acts of terrorism and terrorism-related activity.

The enhanced police powers are available for terrorism investigations and have proven very effective at tackling the threat. We consider the risks posed by state threats to be similar and to require enhanced powers and tools. Clause 21 creates a new arrest power whereby a constable can arrest without a warrant anyone who they reasonably suspect is or has been involved in foreign power threat activity. If an individual is arrested under clause 21, the further provisions in the clause and in schedule 3 will apply. We will debate the latter powers shortly.

The police must currently arrest an individual for a state threats offence under the arrest power in PACE. On arrest under PACE, the constable must specify the offence that the person is suspected of committing or being about to commit. For example, that could be foreign interference under clause 13 or obtaining or disclosing protected information under clause 1. As we all know, state threats actors are highly trained operatives, with police often needing to rely on sensitive intelligence to build their case and understand the threat that the suspect might pose to UK national security.

In some circumstances, police might have evidence to suspect an individual’s involvement in state threats activity but might not yet have the full picture to determine the intended offence. In such circumstances, where police have the intelligence to indicate that state threats activity is imminent, police can deploy the arrest power in order to prevent that person from committing the activity. That early disruption by the police is critical in saving time and ensuring that the activity is not allowed to occur. That prevents harm to UK national security and potentially prevents harm to people’s lives.

The clause is modelled on the similar arrest power that operates under the 2000 Act, which has been shown to be effective in providing the police with an early disruption tool. I ask the Committee to support the clause.

The clause provides a power of arrest without warrant and includes provisions about subsequent detention. The explanatory note explains that the provisions are modelled on those in section 41 of and schedule 7 to the Terrorism Act 2000, as the Minister said, which give police officers the power to arrest persons suspected of terrorism-related offences without a warrant.

We recognise the importance of granting law enforcement officers this power. The sense within policing is that it will provide the police a window in which to work, in order to undertake the necessary analysis and investigative work needed to confirm if an act of espionage or sabotage has been committed. Once a more substantive offence is established, the person in question must then be arrested for that offence, which would trigger the further relevant detention powers.

I have a query from within law enforcement, which relates to subsection (9). If the warrant for further detention is refused, a person can still be detained in hospital or if they are removed to hospital because they needed medical treatment. I am not aware that any such provision to continue to detain someone on the basis they need medical treatment when the application has been refused exists within any other detention powers. I would be grateful if the Minister could clarify that point.

The provisions are for very significant powers of arrest and people can remain under arrest for a quite striking period of time, so we should be cautious. The key issue for me is subsection (1), because arrest without a warrant is justified not by the suspicion of a specific event set out in the Bill, but by involvement in foreign power threat activity. Will the Minister say a little more about why that decision has been made?

We will obviously get to clause 26 and the definition of “foreign power threat activity” soon, but it is a much broader concept than being under suspicion of one of the particular offences in the Bill. It could be somebody providing assistance or support to individuals, or known to be involved in certain types of conduct. Why have these powers of arrest without warrant been drafted differently compared with the powers on search and seizure? The search-and-seizure powers relate to specific offences under the Bill. The power of arrest without warrant applies to a much broader category of people. Given the significance of the powers, and how long people can be detained for, it is important that we push the Minister a little bit further on why the Bill has been drafted in this way.

I am grateful for the contributions and the general support. On safeguards, the powers mirror the powers in the Terrorism Act 2000, which are very important and have proven to be very disruptive, as well as useful and effective in keeping the country safe. It is critical that the police have strong powers of arrest and I outlined the reasons for that. Currently, a person can be detained for 24 hours. These provisions allow a detention for 48 hours, which would have to be reviewed periodically after 12 hours, so there are safeguards. The provisions mirror the 2000 Act, which has proven very effective and very disruptive.

On the question asked by the hon. Member for Halifax, the detention clock stops if the individual goes to hospital. If a warrant is refused, they can only be detained for 48 hours. These may appear to be very significant powers, but a person is not going to be held for a huge number of days.

Question put and agreed to.

Clause 21 accordingly ordered to stand part of the Bill.

Schedule 3

Detention Under Section 21

I beg to move amendment 45, in schedule 3, page 70, line 27, at end insert—

“(1A) A place designated by the Secretary of State under sub-paragraph (1) must be subject to an independent inspection by—

(a) Her Majesty’s Inspectorate of Constabulary, or

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

I will speak to amendment 45, tabled in my name and those of my hon. Friend the Member for Birmingham, Yardley and the shadow Home Secretary, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper). I will also address the wider schedule 3 powers.

The amendment reflects the place of detention powers at the start of schedule 3, which gives the Secretary of State the power to designate places at which persons may be detained under section 21. The Minister’s predecessor was asked repeatedly whether he could clarify what types of buildings could be designated places of detention beyond police stations on Second Reading. In response, he said:

“I do not think that this is an appropriate forum in which to discuss the detail of such measures, but I hope I can reassure my hon. Friend on that particular point. As I have said, this is to allow for cases in which such capacity is required owing to operational need, and it cannot be outside the United Kingdom.”—[Official Report, 6 June 2022; Vol. 715, c. 636.]

I am still not convinced about the provisions based on that response.

The provisions in paragraph 1(1) of schedule 3 give the Secretary of State the power to designate places at which persons may be detained under section 21. However, sub-paragraph (2) states that in the entire schedule a reference to a police station includes a reference to any place that the Secretary of State has designated. That means that as long as the Secretary of State says, “I designate this place”, any building in the UK—it does not even say “building”—or any place can be a police station. Can that possibly be adequate and correct?

My hon. Friend makes an incredibly important point. I was just about to say that operational need provided a reason for the appalling asylum accommodation provided by the Home Office during the pandemic, and we now know that the official guidance was ignored. That leads to a great deal of concern about the ability to designate any type of building as a place suitable to detain somebody.

To introduce some safeguards, we propose an amendment whereby any such place designated as a place of detention must be subject to an inspection regime. We have given the Government some discretion to determine who the most appropriate body to do that would be, given the absence of any steer at all, as my hon. Friend has just said, about what type of buildings might be used. Her Majesty’s inspectorate of constabulary and fire and rescue might be the most obvious choice. I hope the Minister will reflect on that and adopt our sensible and measured proposal.

Schedule 3 is massive—32 pages of powers. To consider the implications of it all once enacted is an enormous undertaking. That is why I come back to this principle when making the case for new clause 2.

It is a pleasure to serve under your chairship, Ms Ali. I have some sympathy with the amendment as I am always against things that give Ministers or the Executive broad powers. As my hon. Friend the Member for Halifax has already said, the powers seem to be unlimited. We are talking about national security and the confidence that we should have in our agencies to act in our interests, with the best of intentions and proper oversight, so the amendment is important. What does “any site in the UK” mean? My hon. Friend said that that was quite a broad power, and I want to ask about sites in the UK that are not under the control of the UK Government, such as US sites. Could Mildenhall airbase, a US airbase in the UK, be designated as one of these sites? I raise that because it limits UK authorities’ oversight and jurisdiction.

People may ask why that is important, but I am very conscious that we should always ensure that civil servants, Ministers and others have historical knowledge and take into account what happened in the past. I served on the Intelligence and Security Committee when we did our inquiry into detainee mistreatment and rendition in 2018. I have to say, it did not make for pretty reading. We did not shy away from the facts, and the actions of our agencies and certain Ministers—including some Ministers in the Government I served in—did not come out of that report very well. Guidance and regulations were put in place to ensure that did not happen again. I would like some clarity about whether such bases could be designated under this measure? Some of those sites could potentially have been used for what the ISC report on rendition highlights. They certainly were abroad, but this is about sites that are actually in the UK.

I looked at the amendment in a lot of detail, and I discussed it with my officials and challenged them. I think the hon. Member for Halifax makes a very, very important point and has a strong case, and she will be delighted to know that, although I will resist the amendment today, I will commit to consider it and whether the Bill should clarify that only sites located in the UK can be designated as places of detention. I share her concerns about the possibility of rendition and stuff outside the UK. I will go into a bit more detail for her, and hopefully that will help the right hon. Member for North West Durham—

Sorry—North Durham.

I am grateful for the way the hon. Member for Halifax has tried to help us improve the Bill. She has been constructive throughout.

Paragraph 1 provides a delegated power for the Secretary of State to designate places where someone may be detained after arrest for foreign power threat activity under clause 21. If arrested under PACE, suspects are taken to a designated police station and held in a custody cell, unless they are being questioned, when they will be in an interview room. When arrested under the Terrorism Act 2000, suspects are taken to a TACT custody suite. If a TACT suite is not available—for example, because the nearest one is located too far away—as an alternative a police station can be used.

There are five TACT suites in England and Wales, one in Scotland and one in Northern Ireland. Currently, they are all located inside police stations. Police use TACT suites in the first instance because they are designed to hold suspects for longer periods and address their specific personal needs. They are also designed to take into account the operational requirements for handling those suspects. For example, they are bigger and they ensure that, when multiple arrests have been made, suspects cannot communicate with other. The staff are also specially trained to deal with those types of suspects.

Under the designation power in paragraph 1, the Secretary of State will issue a certificate to the chief officer in charge of a facility to affirm its accreditation. The designation will be published through the routine Home Office circular update, so it will be publicly available to view. In order for a facility to be designated, it must meet the technical standards of custody suites set by the Home Office and Ministry of Justice. The power means that a bespoke custody suite or other suitable facilities built or identified in the future outside a police station, where they meet the standards above, can be designated as a place of detention by the Secretary of State. That is just future-proofing.

Her Majesty’s inspectorate of constabulary and fire and rescue services already independently assesses the effectiveness and efficiency of police forces. It already regularly inspects police custody conditions and, in 2019, published a joint inspection with Her Majesty’s inspectorate of prisons of TACT custody suites in England and Wales.

The Minister has just given a great deal more information than is written in the Bill. Paragraph 1(1) states:

“The Secretary of State may designate places”,

and, at sub-paragraph (2), that

“a reference to a police station includes a reference to any place”

so designated. That could be a square in the middle of a field. Will the Minister consider inserting into the legislation some of the detail that he has just put on the record to make it clear that a specific power is being taken to designate more custody suites?

As I have said, I am very interested in the amendment and am looking at possibly doing something along similar lines. I am trying to get the facts out. I heard what was said about the response on Second Reading so I am trying to be open and transparent and to put stuff on the record, in the official record of the sitting. I am doing the best that I can to be open, so that people are not concerned about rendition or people being taken overseas.

I am grateful to the Minister for giving way again. I am glad to hear about the amendment, but that is of course about inspecting such places. As he is doing more work, does he mind also taking away the suggestion that I have just made? He might like to make it clearer in the legislation that we are talking about custody suites and not about squares of ground in the middle of a field or any other such place.

I am always happy to take away the hon. Lady’s suggestions.

My initial concern with the amendment is that, as drafted, it adds little value, just a statutory requirement for Her Majesty’s inspectorate to fulfil a role it is doing already. I note all the concerns of hon. Members, however—

It takes a lot to get that in a Bill Committee. My hon. Friend the Member for Garston and Halewood is right—this needs clarifying in the Bill. When the Minister goes away to think about it, will he look at and ask officials about the issue of those sites that are in the UK, but outside the control of Her Majesty’s Government? I will not say too much, but we occasionally work with organisations and countries in certain places in the UK, but do not control what goes on there. Will he reflect that when doing his work?

I will come back to the right hon. Gentleman on that. As I have said, we will be designating sites and that information will be publicly available. I am not sure that he would want to make the information about the sites he mentions publicly available.

But that is not what the Bill says at the moment, as my hon. Friend the Member for Garston and Halewood said. It gives sweeping powers to designate things, and I am always against giving such sweeping powers to the Executive—whether it is the present Government or the Government I was a member of—or to anyone. When the Minister comes back, clarification would be welcome, even if that is for the Bill to require publication.

I hear what the right hon. Gentleman says. If the hon. Member for Halifax is kind enough to withdraw the amendment, I commit to considering it further. I will look to provide further clarity in the legislation.

I am very grateful to the Minister for the spirit in which he has responded, taking our concerns about this element of the Bill seriously. I am reassured by his commitment, that he understands what we are trying to achieve with the amendment and that he will seek the best way to deliver that in the Bill.

Slightly separately, the clarity and detail that he has been able to provide about the minimum standards for the places of detention were welcome. In addition to putting that on the record today, however, I think that he has understood the point made by my hon. Friend the Member for Garston and Halewood on the need for it to be put on the face of the Bill and that he will continue to have a positive personal impact on some of the detail of the provisions. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment 13, in schedule 3, page 81, line 26, leave out sub-paragraph (3) and insert—

“(3) In any other case, paragraph 19 material must be destroyed unless it is retained under any power conferred by paragraphs 20 or 21.”

This amendment and Amendments 15, 18 and 22 make provision for the indefinite retention of fingerprints, data and other samples taken from a person who is or previously has been convicted of a specified offence.

As we have discussed, clause 21 provides for a state threats power of arrest. If an individual is arrested under that power, the further provisions in schedule 3 will apply. As part of that, schedule 3 provides for a new regime whereby biometric data, such as fingerprints and DNA profiles, that are collected on arrest for foreign power threat activity may be retained for an initial period of three years, with the option to extend the retention period for a further two years where considered necessary. A similar provision is made in schedule 9 for those subject to state threats prevention and investigation measures, or STPIMS. These are the same timeframes and procedures that operate for arrest under the Terrorism Act 2000—once again, we are trying to mirror the terrorism legislation.

The group covers a number of technical Government amendments to the biometric regimes in schedules 3 and 9. I turn first to amendments 13, 15, 18, 22, 28, 29, 30, 31 and 36, which relate to the indefinite retention of biometric data in certain circumstances. Again, the amendments put the new retention regime in line with what already operates for arrests made under PACE and the Terrorism Act. The law rightly sets strict limits on how long biometric data, such as fingerprints and DNA, can be retained where a person is investigated but ultimately not convicted of an offence. In certain circumstances, including under the Bill, biometric data taken in the course of an investigation can be retained for longer periods, and further retention of that data can be authorised, but the principle is that the data will be deleted unless further retention is specifically provided for. Where a person has been previously convicted of an offence, their biometric data can be retained indefinitely, subject to the requirement for ongoing review that is set out in the Data Protection Act 2018.

Both the Police and Criminal Evidence Act 1984 and the Terrorism Act 2000 allow for the indefinite retention of biometric data taken during an investigation, if it is found that an individual has previously been convicted of a recordable offence. This means that if an individual has previously been convicted of any offence that could carry a term of imprisonment, their biometric data taken during any new investigation can be held on the police national database indefinitely, irrespective of the outcome of that new investigation.

Generally, these are very sensible measures. There has obviously been some major redrafting of the schedule for the Government amendments to be necessary, and it would be interesting to hear why that is. I am looking at Government amendment 18, which says:

“For the purposes of paragraph 20, a person is to be treated as having been convicted of an offence if…the person has been found not guilty of the offence by reason of insanity”.

Why is that instance included here? The person has been found not guilty by reason of insanity. They have not admitted the offence, unlike in the situation described in proposed new paragraph 20A(1)(a)(i), whereby a person has received a caution and admitted the offence. By contrast, this person has been found not guilty.

I know, and I will write to the hon. Lady, because I do not know the answer.

As we have already discussed in Committee, state threats activity poses a serious and enduring risk to UK security, and the Bill must provide law enforcement agencies with the tools they need to combat hostile activity. Indefinite retention of biometric data enables the police and the security services to use the data to support investigations into state threats offences and other criminal activity. That mirrors the approach taken in PACE and the Terrorism Acts.

Given that threat, it is right that where an individual with a previous conviction for a recordable offence is arrested under the state threats arrest power in clause 21, or is subject to a STPIMs notice, biometric data taken under those regimes should be retained indefinitely. Accordingly, the amendments provide for indefinite retention of biometric data in these circumstances in schedules 3 and 9 respectively.

Out of an abundance of caution, the provisions were not included when the Bill was introduced while we considered the questions raised by the Gaughran judgment. Based on the UK response to that judgment, I am pleased to confirm to the Committee that these provisions are indeed compatible with the European convention on human rights and, therefore, should be included in the Bill.

As highlighted, state threats investigations can be complex and resource-intensive. By bringing forward the amendments, we are strengthening the ability of the police to use biometric data to support criminal investigations. Not agreeing to the amendments would create a position where the police’s ability to retain biometric data of a person with a previous recordable conviction would be more restricted than in other cases.

Aligning our approach with that of TACT and PACE ensures consistency in respect of biometric regimes. The requirement for ongoing review of retention, in accordance with the Data Protection Act 2018, ensures that interference with the right to respect the private and family life of persons to whom the data belongs is necessary, proportionate and in accordance with the law. I will now speak briefly to the remaining amendments in the group, which are comparatively minor and technical.

Before the Minister moves on, I get the general thrust of why those amendments have been tabled but my concern is the inclusion of people who have accepted a caution or even a youth caution. It seems quite extreme to make them subject to lifelong retention of significant information on them. They have not been tried and the fact that they have had a caution means that, presumably, the circumstances were not the most serious. Does he have anything to say about those circumstances?

I am grateful for the intervention. What we are trying to do is to mirror what is in TACT and PACE to keep the regimes identical so there are not different ones for different areas. Obviously, if someone has accepted a caution, they have in essence accepted that they were guilty of an offence—they have just not proceeded to court.

Would not an additional safeguard in those circumstances be to ensure that before a youth caution is offered and accepted in any given case, it is made clear to the individual concerned that if they were to accept it, it would mean the retention of their data for their entire life? In those circumstances, the individual concerned could consider whether they really wanted to accept the caution or go for a trial.

The hon. Lady makes an important point. I would add that it is “may” be held indefinitely not “will”. There is still an element of choice and discretion.

The Minister is correct about that, but perhaps the individual who may be considering accepting a youth caution and their adviser ought to be advised, before they do so, that there “may” be a consequence of biometric data and so on being kept for that person’s entire life, so they can make a proper decision about whether they want to accept the caution in full knowledge of the potential consequences.

My understanding is that that what happens under TACT and PACE, and that would be the intention for what would happen under this legislation, so the regimes mirror each other.

Amendments 16 and 17 to schedule 3 separate the reference to the Chief Constable of the Police Service of Northern Ireland from those in England and Wales in the list of chief officers who can extend the period of biometric retention. They make no practical change to the provisions.

Amendments 14, 25 and 27 address some unnecessary duplication in the list of databases against which biometric data obtained under the powers in schedules 3 and 9 can be searched. Amendment 26 provides that data obtained under the powers in schedule 9 can be searched against data taken under the provisions of the Terrorism Prevention and Investigation Measures Act 2011.

Amendments 19 and 32 add the British Transport police and the Ministry of Defence police to the list of forces that can make a national security determination under schedules 3 and 9 respectively, to make it clear that the powers are available to those forces. A national security determination allows for the extended retention and use of biometric material for national security purposes. It must be made in writing by a chief officer of police for a maximum of five years, with the option of renewing. Amendment 32 adds the National Crime Agency to the list of forces that can make such a determination in schedule 9, bringing it into line with schedule 3.

Amendments 23, 24, 37 and 38 make provision to clearly identify the responsible chief officer of police in relation to fingerprints or samples taken by a constable of the Ministry of Defence police or the British Transport police.

Finally, amendments 20, 21, 34 and 35 amend the definition of police force for the biometric provisions to remove reference to the various armed forces police forces. Members will be glad to know that I have come to the end of one of the more technical groupings of amendments to the Bill. I ask the Committee to support the amendments.

Having heard the Minister’s detailed explanation for this group of Government amendments, I will come back to the issues in the slightly wider discussion on schedule 3, which is the next proceeding.

I do not need to say much more. The Minister understands from my intervention that I have some reservations about the lifelong retention of the materials. I shall give that further thought. Other parts of the relevant amendment are perfectly sensible, so I will not oppose the amendment at this stage. Further thought should be given to it, though. The Government have explained a number of times how they are copying what is in the counter-terrorism legislation, which is fine and understandable but does not in of it itself justify the measures in this sphere of behaviour. I will look at the matter again. I want to put on the record that I am slightly uneasy about that type of provision.

I am grateful for the support for the amendments.

Amendment 13 agreed to.

Amendments made: 14, in schedule 3, page 82, line 22, leave out “or 42”.

This amendment removes reference to paragraph 42 of Schedule 3 to the Counter-Terrorism and Border Security Act 2019 from a list of provisions under which fingerprints, data and other samples may be taken. Reference to paragraph 42 is not needed because its contents are already covered by paragraph (e).

Amendment 15, in schedule 3, page 82, line 26, leave out sub-paragraph (2) and insert—

“(2) Paragraph 19 material may be retained indefinitely if—

(a) the person has previously been convicted—

(i) of a recordable offence (other than a single exempt conviction), or

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

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

(2A) In sub-paragraph (2)—

(a) the reference to a recordable offence includes an offence under the law of a country or territory outside the United Kingdom where the act constituting the offence would constitute—

(i) a recordable offence under the law of England and Wales if done there, or

(ii) a recordable offence under the law of Northern Ireland if done there,

(and, in the application of sub-paragraph (2) where a person has previously been convicted, this applies whether or not the act constituted such an offence when the person was convicted);

(b) the reference to an offence in Scotland which is punishable by imprisonment includes an offence under the law of a country or territory outside the United Kingdom where the act constituting the offence would constitute an offence under the law of Scotland which is punishable by imprisonment if done there (and, in the application of sub-paragraph (2) where a person has previously been convicted, this applies whether or not the act constituted such an offence when the person was convicted).

(2B) Paragraph 19 material may be retained until the end of the retention period specified in sub-paragraph (3) if—

(a) the person has no previous convictions, or

(b) the person has only one exempt conviction.”

See Amendment 13.

Amendment 16, in schedule 3, page 83, line 37, leave out “and Northern Ireland”.

This amendment and Amendment 17 clarify the identity of the specified chief officer of police in Northern Ireland.

Amendment 17, in schedule 3, page 84, line 5, at end insert “, and

(c) the Chief Constable of the Police Service of Northern Ireland, where—

(i) the person from whom the material was taken resides in Northern Ireland, or

(ii) the chief constable believes that the person is in, or is intending to come to, Northern Ireland.”

See Amendment 16.

Amendment 18 in schedule 3, page 84, line 5, at end insert—

“20A (1) For the purposes of paragraph 20, a person is to be treated as having been convicted of an offence if—

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

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

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

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

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

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

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

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

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

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

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

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

(i) the fixed penalty, or

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

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

(2) Paragraph 20 and this paragraph, so far as they relate to persons convicted of an offence, have effect despite anything in the Rehabilitation of Offenders Act 1974 or the Rehabilitation of Offenders (Northern Ireland) Order 1978 (S.I. 1978/1908 (N.I. 27)).

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

(4) For the purposes of paragraph 20—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(7) For the purposes of paragraph 20 and this paragraph—

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

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

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

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

(8) If a person is convicted of more than one offence arising out of a single course of action, those convictions are to be treated as a single conviction for the purposes of calculating under paragraph 20 whether the person has been convicted of only one offence.”

See Amendment 13.

Amendment 19, in schedule 3, page 84, line 21, at end insert—

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

(cb) the Chief Constable of the British Transport Police Force, or”.

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

Amendment 20, in schedule 3, page 89, line 36, leave out paragraphs (j) to (l).

This amendment removes reference to the Royal Navy Police, the Royal Military Police and the Royal Air Force Police from the definition of “police force”. Those forces should not be included in that definition because members of those forces do not have the power to obtain fingerprints, data or other samples under Schedule 3.

Amendment 21, in schedule 3, page 90, leave out lines 1 to 3.

This amendment removes reference to the tri-service serious crime unit from the definition of “police force”. Members of that unit should not be included in that definition because they do not have the power to obtain fingerprints, data or other samples under Schedule 3.

Amendment 22, in schedule 3, page 90, line 3, at end insert—

“‘recordable offence’ —

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

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

See Amendment 13.

Amendment 23, in schedule 3, page 90, leave out lines 6 to 24 and insert—

“‘responsible chief officer of police’ means—

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

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

(c) otherwise—

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

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

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

This amendment and Amendment 24 make provision identifying the responsible chief officer of police in relation to fingerprints or samples taken by a constable of the Ministry of Defence Police or the British Transport Police Force.

Amendment 24, in schedule 3, page 90, line 24, at end insert—

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

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

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

See Amendment 23.

Question proposed, That schedule 3, as amended, be the Third schedule to the Bill.

I want to conclude some earlier remarks that I made as part of the discussion on amendment 45 and the discussion on some of the Government amendments. There is an awful lot going on in schedule 3. I repeat the point: it is massive—it is 32 pages of powers. An ongoing consideration of the implications of all those powers is quite a significant undertaking. That is why I come back to making the case for new clause 2, which would ensure that part 1 of the Bill is subject to the same ongoing scrutiny as part 2, under clause 49, and as counter-terrorism legislation, which a great deal of this Bill is already based on.

We have talked about part 1 of the schedule; the delay in the exercise of rights under part 2 should also be kept under review, alongside the points about the retention of biometrics that were made by right hon. and hon. Members. Even if the Minister cannot share with the Committee some justification for all the measures today, I very much hope he will discuss that further with the Intelligence and Security Committee in the deliberations on the Bill that he has promised to have with the ISC.

I am grateful to the hon. Lady for her support. I know that we will debate things later on. As I have said, we are currently in discussions about how we can securely provide further information to help to provide further clarity. I cannot say more than that.

Question put and agreed to.

Schedule 3, as amended, accordingly agreed to.

Clause 22

Border security

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

Under schedule 3 to the Counter-Terrorism and Border Security Act 2019, counter-terrorism police have the power to stop, question and, if necessary, detain and search individuals travelling through the UK border. As part of a schedule 3 examination, counter-terrorism police are able to retain protected materials by following a lengthy authorisation process. Protected materials include confidential business and journalistic material, as well as legally privileged material. The powers are a vital tool for counter-terrorism police and form part of a range of national security checks that enable the determination of whether a person at a UK port or border area has current or previous involvement in hostile state activity.

The use of protected materials in investigations, particularly confidential business material, can be a helpful insight into a person’s involvement in hostile state activity, whether it be espionage or a disinformation campaign. To use protected materials seized during a schedule 3 examination, an examining officer must currently seek authorisation from the Investigatory Powers Commissioner, who is a serving or retired High Court judge. In most cases, the material must not be examined or used for investigations until authorisation has been granted. Currently, that can take up to six weeks.

Clause 22 will remove the definition of confidential business material—material defined as acquired in the course of trade—from the definition of protected material under schedule 3. This will remove the requirement for the Investigatory Powers Commissioner to authorise the retention of copies of confidential business material. The Bill will replace that authorisation process with a new safeguard: the requirement for a counter-terrorism police officer of at least the rank of superintendent to authorise access to such material.

The clause will bring the schedule 3 safeguards for confidential material into line with those that apply to schedule 7 to the Terrorism Act 2000. It will mean that police do not face lengthy and unnecessary delays to examining material in a schedule 3 stop.

I have some sympathy with this clause; the Investigatory Powers Commissioner has a big job on their hands anyway. I wonder whether the Minister could say whether he has given any thought to the Investigatory Powers Commissioner not just looking at the material and giving it authorisation but having retrospective powers to dip in and see whether things have been done correctly.

I will take that idea away and consider it. We do not want to enable somebody at the border to say that something is confidential material so that the police cannot look at it for up to six weeks. That would just be the easiest defence. We are dealing with incredibly sophisticated experts and they will know what to say to ensure that the material will be held in abeyance.

The Government are only amending the safeguards for confidential business material and will not change the authorisation safeguard for other material within the definition of protected material or confidential journalistic material, for which judicial authorisation is a proportionate safeguard. I am sure Members agree that it is only right that the security services should be able to use critical information in real time during a schedule 3 examination to address live national security risks posed to the UK. I assure Members that this essential amendment to schedule 3 to the 2019 Act will strengthen and streamline state threats investigations to disrupt and deter hostile state activity.

The drafting of clause 22 is complicated and I have had to speak to a number of experts to try to unravel it. It amends schedule 3 to the Counter-Terrorism and Border Security Act 2019, as the Minister outlined. In essence, it allows examining officers a right to confidential material that would currently require the authorisation of the Investigatory Powers Commissioner. I am grateful to the commissioner, Sir Brian Leveson, in his capacity as the independent reviewer of schedule 3, and his office for their insight on the clause.

If I have understood it correctly—I am sure the Minister will correct me if I have not—the clause amends schedule 3 to the 2019 Act to reflect the position of schedule 7 to the Terrorism Act 2000. Schedule 3 subjects are far more likely to possess confidential business records than those stopped under schedule 7. That means the requirement for judicial approval is engaged in the majority of schedule 3 stops. It is therefore important to assess whether the requirement for a judicial authorisation in such cases is necessary and proportionate, taking into account both the sensitivity of the category of protected material and the purpose of the statute specifically to counter hostile state activity.

The Investigatory Powers Commissioner’s Office said

“We are not aware of any other statute that requires judicial authorisation for the retention of confidential business records acquired direct from a person in a public setting such as a port”.

The closest is perhaps schedule 1 to the Police and Criminal Evidence Act 1984, commonly known as PACE, although this is restricted to material on private premises. There is no requirement in PACE to seek judicial authorisation to seize or retain confidential business material found during the search of a person in a public place, or if such material is unexpectedly encountered on private premises.

Confidential business records are protected in PACE as “special procedure material” because they have a degree of special sensitivity that Parliament has decided merits certain access requirements in the context of criminal investigations. The Investigatory Powers Act 2016 does not include any similar requirement for judicial authorisation to acquire confidential business records using covert investigatory powers. The sensitivity of this category of material is not the same as that of legally privileged or journalistic material, the safeguards for which will not be affected by the proposed amendment to schedule 3—I hope the Minister can confirm that that is the case.

The statutory purposes in schedule 3 go well beyond criminal investigations and include national security or protecting life and limb. On that basis, it seems unlikely that the interests of the business, trade or profession would outweigh the interests of national security in any circumstances, or that judicial authorisation should be necessary for the retention and use of confidential business records in circumstances that might prevent death or serious injury.

Having considered those points in the round, the Investigatory Powers Commissioner has concluded that the Home Office’s proposals to replace judicial authorisation for confidential business records with one of internal authorisation from a senior officer strike the right balance and align the definition of confidential material with that of the 2016 Act. Inevitably, that view has very much shaped our judgement on clause 22, but I suggest that it is another area where keeping the provisions under review to mitigate any unintended consequences is the responsible thing to do.

Let me turn to who has the powers to make and retain copies of confidential material. Page 35 of the explanatory notes outline that “examining officers” have that power. However, schedule 7 to the 2000 Act defines an examining officer as a constable, immigration officer or a customs officer. In paragraph (j) of the policy background section of the explanatory notes, it states that part 1 amends schedule 3 to the Counter-Terrorism and Border Security Act 2019

“to allow counter-terrorism police officers to retain copies of confidential business material…without the authorisation of the Investigatory Powers Commissioner. This will allow counter-terrorism police to progress operations and investigations into state threats…at the required pace and reflects the position in schedule 7 to the Terrorism Act 2000”.

Paragraph 17 of schedule 3 to the 2019 Act, on the power to make and retain copies, confirms that the examining officer, only when they are “a constable”, can retain copies when necessary and potentially needed as evidence in criminal proceedings. The references to various different roles in the different supporting documents to the Bill make it a bit of a mess. I was listening carefully to the Minister, but I would like further clarity about who has the powers. Given that we have references to examining officers—who can have different roles—to counter-terrorism police specifically and to an examining officer who can be a constable, I wonder whether the Minister can tidy it up for us on the record and be explicit about who has the powers at the border.

My understanding is that the amendment of the authorisation safeguards to access confidential business material in schedule 3 brings it completely into line with other policing powers. It is not likely that access to confidential business material would be subject to a higher level of safeguarding where there is already consistent precedent set by PACE 1984, the IPA 2016 and schedule 7 to the 2000 Act. As we have said, it does not affect legal, profession or journalistic material, and the provisions are reviewed by the Investigatory Powers Commissioner as part of their statutory function. Only trained counter-terrorism officers will be able to use the powers. I hope that provides the clarity that the hon. Lady requires.

Question put and agreed to.

Clause 22 accordingly ordered to stand part of the Bill.

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

Adjourned till this day at Two o’clock.

National Security Bill (Sixth sitting)

The Committee consisted of the following Members:

Chairs: † Rushanara Ali, James Gray

† Bell, Aaron (Newcastle-under-Lyme) (Con)

† Eagle, Maria (Garston and Halewood) (Lab)

† Elmore, Chris (Ogmore) (Lab)

† Everitt, Ben (Milton Keynes North) (Con)

† Hart, Sally-Ann (Hastings and Rye) (Con)

† Higginbotham, Antony (Burnley) (Con)

Hosie, Stewart (Dundee East) (SNP)

† Jones, Mr Kevan (North Durham) (Lab)

Jupp, Simon (East Devon) (Con)

† Lynch, Holly (Halifax) (Lab)

† McPartland, Stephen (Minister for Security)

† McDonald, Stuart C. (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)

† Mann, Scott (North Cornwall) (Con)

† Mohindra, Mr Gagan (South West Hertfordshire) (Con)

† Mumby-Croft, Holly (Scunthorpe) (Con)

† Phillips, Jess (Birmingham, Yardley) (Lab)

Sambrook, Gary (Birmingham, Northfield) (Con)

Huw Yardley, Bradley Albrow, Simon Armitage, Committee Clerks

† attended the Committee

Public Bill Committee

Thursday 14 July 2022

(Afternoon)

[Rushanara Ali in the Chair]

National Security Bill

Clause 23

Offences under Part 2 of the Serious Crime Act 2007

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

This is the clause that many of us have been looking forward to. I am not going to take interventions during my speech; I will set out the reasons why I believe the clause is correct, then I will listen carefully to speeches from hon. Members and then sum up.

Collaboration with key international partners is a vital part of intelligence and national security work. We cannot maximise our national security capabilities and keep people safe without sharing intelligence and benefiting from the capabilities and expertise of our close and trusted allies. Those individuals who work on behalf of the UK are highly skilled and experienced in ensuring that UK activity is necessary and proportionate. Domestic and international law is applied to all activities and there are robust safeguards in place.

The Serious Crime Act 2007 creates offences when an act is done that is

“capable of encouraging or assisting”

an offence and the person “intends” or believes that their act may encourage or assist an offence. Those offences, which were predominantly introduced to ensure that law enforcement had the tools to tackle those orchestrating serious organised crime, are complex and create an incredibly low threshold for liability. There is no minimum level of contribution to the offence that may be encouraged or assisted. The contribution can be small, it can be indirect, and there is no need for an offence to be ultimately committed.

At present, the UK intelligence community and armed forces are required to apply those complex offences to the many and varied scenarios in which they work with our international partners to help protect the UK. They exercise significant caution in their engagement with partners to prevent SCA thresholds being met and the risk of liability for individuals being realised. The impact of that approach is that vital and otherwise legal intelligence opportunities are currently being delayed or missed as the SCA risks are worked through.

There is also an important point of principle here. The Serious Crime Act offences mean that it is the individuals working within intelligence, security and military organisations who carry the risk of liability, despite operating within all authorisations and in the interests of UK national security.

The Committee heard oral evidence from both Sir Alex Younger, the former head of MI6, and Sir David Omand, the former head of GCHQ, on the fairness and appropriateness of individual officers carrying this risk. They believe that the liability risk sitting with individuals is “not right”, and is “morally wrong”. The Government agree with them and do not think it is right or fair to expect the risk of liability to sit with individuals who are acting on behalf of our intelligence services or armed forces for their authorised purposes. Instead, responsibility should sit with the UK intelligence community and the armed forces at an institutional level, where they are subject to executive, judicial and parliamentary oversight.

The clause removes criminal liability for offences of encouraging or assisting crime, but only where the activity is necessary for the proper exercise of the functions of the security and intelligence services or the armed forces in support of activity taking place overseas. This is not a broad general immunity from prosecution; rather we are amending a targeted piece of legislation in response to specific operational issues that are impacting the ability to keep us safe today.

The clause means that in instances where an individual has operated in good faith and in compliance with proper processes they would not face the risk of liability for the offences under the SCA. The risk I have outlined would be removed for activity that we ask of individuals in the course of their roles in keeping us safe.

I am confident that the SCA amendment is appropriate and proportionate, because the UK has one of the most rigorous intelligence oversight regimes in the world. There are myriad safeguards and processes in place that manage the way that UKIC and the MOD work with and exchange information with international partners to prevent potential wrongdoing.

I also have confidence in those we are providing protection to. They are expert and highly trained men and women undertaking intelligence and security work, whose judgment and skill we should respect and have faith in. Of course, those working with our international partners will still need to comply with all other domestic and international law and be beholden to the statutory frameworks and policies that govern the UK intelligence community and armed forces activity.

The policies include the overseas security and justice assistance guidance and the Fulford principles, the implementation of which is assessed by the Investigatory Powers Commissioner annually and reported to the Prime Minister. That means that clause 23 does not in any way make torture legal, for example. UKIC’s activities also remain under the regular inspection of the Investigatory Powers Commissioner’s Office—

The right hon. Gentleman will have the opportunity to make his own speech, and I will listen.

Let me also be clear that clause 23 will not enable activity by individuals who, acting outside the proper functions of their organisations, contribute to criminal activity by others or commit criminal offences themselves. We will retain the ability to prosecute anyone for other offences should their behaviour in support of international partners amount to a criminal offence. Further, it will not remove the ability to challenge the UK intelligence community or armed forces on their activities through judicial review, civil damages claims, or a complaint to the Investigatory Powers Tribunal in relation to the use of intrusive powers.

To conclude, clause 23 is really about supporting UKIC and armed forces officers, who we ask to undertake vital work on our behalf, by ensuring that when they work with our partners in good faith, according to wider domestic and international law, and in support of vital national security aims to keep this country safe, they do not risk personal criminal liability for any actions of that partner state. Responsibility for any action that we cannot support should surely sit at an institutional level, which is what will be the case under clause 23.

It will come as no surprise to the Minister—we have had the opportunity to discuss this—that we are extremely concerned about clause 23, which amends the Serious Crime Act 2007. We have had the opportunity to discuss this privately with the Minister and his predecessor, and with the UK intelligence community directly, and I am minded of just how much detail of those conversations we might want to put on the record. The clause was a big focus for Members from across the House on Second Reading. As the Minister knows, crucially, it did not have the support of members of the Intelligence and Security Committee, which has statutory responsibility for oversight of the UK intelligence community.

The Labour Party will always work with the intelligence services to find solutions to any barriers that they face in undertaking their invaluable work and keeping the UK safe. As things stand, we have been unable to get an operational understanding of exactly what is broken and requires fixing. I have heard directly from the security services about why they believe they need clause 23—the Minister has sought to outline that again in his contribution. Schedule 4 to the Serious Crime Act allows for a risk of liability to individuals conducting their proper functions on behalf of the UK intelligence community. An offence can arise where support—for example, intelligence sharing—provided in good faith later makes a small or indirect contribution to unlawful activity by an international partner. The security services are keen to convey that their caution in this regard is having an operational impact that requires a resolution.

My hon. Friend is outlining the protections. SIS and GCHQ staff also have protection under section 7 of the Intelligence Services Act 1994, where there is ministerial authorisation. Like her, I struggle to understand what incidents there could be of an individual being liable, if they were covered by these authorisations and the Act that she refers to.

My hon. Friend makes an important point, which I will explore in more detail in a second. I go back to the point that the security services have conveyed to us that their caution is having an operational impact, which requires a resolution. We are sympathetic to that. We recognise that a junior member of staff facing that burden of potential liability when carrying out their proper functions under instruction does not feel right. However, I look to the Minister to find a way through the matter that does not involve what can feel somewhat like a gold-plating of exemptions for the security services, which stands to entirely erode appropriate safeguards and due diligence when considering the risks and consequences of sharing information with partners. As the Minister knows, there is an existing reasonableness defence in section 50 of the Serious Crime Act, which recognises that there may be occasions when it could be shown that an individual’s actions were justified in the circumstances.

My hon. Friend is right to refer to the defences that already exist because to agree with the clause, we would need to see that the existing offences and defences are not working. There does not seem to be much evidence of that. Section 53 of the Serious Crime Act sets out the factors to be considered in determining whether it is reasonable for a person to act as he did. That includes any purpose or authority he claims to have been acting under. An individual working for our intelligence service has clearly got extensive protection under that existing provision. Does my hon. Friend agree?

I am grateful to my hon. Friend. As a lawyer, she has a great deal of experience navigating some of this legislation, and she makes a powerful point about the reasonableness defence. In addition, a prosecution would have to be deemed to be in the public interest.

This morning we saw the Minister use reasonableness in clause 20, but he is not prepared to use it here. Does my hon. Friend agree that reasonableness in law is a well-established notion? Does she find it odd that the Minister relies on it in one clause, but in this one he prefers to say that it will somehow not work?

My hon. Friend makes the point that, while we will get into the detail of reasonableness and the concern that it is potentially untested in these circumstances, it is a well-established principle across British law. Again, that certainly supports the robustness of the existing defences around reasonableness. On further probing of these defences, and this is exactly his point, it seems that it is not the case that the reasonableness defence is not strong enough, rather that it is untested in these specific circumstances, as no such case has been brought against the intelligence community. We do not believe that that is a strong enough case for the proposals in clause 23. We hope that properly authorised activity to protect national security would and should be interpreted as being reasonable.

I am not currently satisfied, and neither are members of the Intelligence and Security Committee, who we will hear from shortly, that there are grounds to support clause 23 as drafted. I have taken further legal advice, including from a QC with a great deal of experience of the Investigatory Powers Tribunal. Can the Minister answer the following questions? First, as has been said by the hon. Member for Garston and Halewood, given that we already have section 7 of the Intelligence Services Act—this relates to the serious end of some of what we are talking about here—which allows the Secretary of State to give immunity from civil and criminal liability for pre-authorised crimes abroad, why do we need these changes?

Importantly, the existing scheme requires the UK intelligence community to secure permission from the Secretary of State in advance, requiring their personal approval, with safeguards within the decision-making process and oversight by the Investigatory Powers Commissioner, who is a senior judge.

Can the Minister confirm that none of those safeguards are present in clause 23, which simply removes the relevant criminal liability? There would not be a need to go to a Minister for approval and there would not then be a warrant for the Investigatory Powers Commissioner to consider. Secondly, can the Minister clarify what it means for something to be “necessary” for the proper functions of UKIC or the armed forces with no proportionality required?

Thirdly, this clause diminishes the role of a Minister in the decision-making and accountability structures. Ministers will no longer need to consider matters and make the difficult judgments—judgments that are reviewed by the Investigatory Powers Commissioner—on whether to grant an authorisation under section 7 of the Intelligence Services Act 1994.

In Reprieve’s written evidence, it said that clause 23 would give Ministers and officials a special carve-out from British justice. I know that the Government have been keen to stress their commitment to the Fulford principles relating to the detention and interviewing of detainees, and the passing and receipt of intelligence relating to detainees, making clear that

“The UK Government does not participate in, solicit, encourage or condone unlawful killing, the use of torture or cruel inhuman or degrading treatment (“CIDT”), or extraordinary rendition. In no circumstances will UK personnel ever take action amounting to torture, unlawful killing, extraordinary rendition, or CIDT.”

However, those commitments are principles that are not set out in this Bill.

Finally, it is not clear to us why clause 23 proposes extending this immunity to the armed forces. The armed forces already have protection under section 7 of the Intelligence Services Act 1994 if they are acting as part of conduct that has received

“authorisation given by the Secretary of State under this section.”

This section—section 7—covers lawful acts of war.

Dan Dolan, the director of policy and advocacy at Reprieve, giving his evidence last week on this matter, read out a quote given by MI6 to the Intelligence and Security Committee’s inquiry on detainees, with respect to authorisations under section 7 of the 1994 Act. He said:

“ The Secret Intelligence Service said that, in the cases they were talking about, ‘we are…always going to go for a section 7 authorisation. Because…why should my officers carry the risks on behalf of the Government personally? Why should they? So…as we have already discussed, serious risk is…a subjective judgement. So we will go for belt and braces on this.’”

He went on to say that

“I think that ‘belt and braces’ is the important phrase to think about, because that is MI6 describing the separate 1994 section 7 authorisations as a belt-and-braces approach to protecting officers from criminal liability.”

Mr Dolan said he felt that this was evidence that the existing regime worked, with the section 7 mechanisms being well utilised to protect officers from liability. That brings us back to the question that Mr Dolan himself asked:

“So why do we need clause 23?” ––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 66.]

I myself have to put a question to the Minister: is there a problem with the ministerial authorisation process that is generating the need for clause 23?

Before closing, I have outlined that we are not at all satisfied that the case has been made for clause 23. We have said that there are operational elements to this discussion that may not be suited to consideration by this Committee. However, I know that the Minister has pledged to seek to fully brief members of the ISC, which is entirely the right place for these operational examples to be considered further, and the judgments of ISC members on this issue will certainly inform our thinking.

If the Government and the security services can demonstrate that there is a genuine operational requirement for change, we will work through solutions, but the solutions must include entirely appropriate scrutiny and oversight, which clause 23 currently does not provide.

I understand that clause 23 seeks to address a specific operational challenge currently faced by the UK intelligence community and the armed forces. The clause removes criminal liability for the offences of encouraging or assisting crime, but only where that activity is

“necessary for—

(a) the proper exercise of any function of the Security Service, the Secret Intelligence Service or GCHQ, or…the armed forces”

and only in support of activity taking place overseas. That is because in a specific scenario legislation is affecting the ability to collaborate with key partners and achieve legitimate shared national security objectives.

Essentially, we are trying to avoid there being a disincentive to sharing information that makes us safe. Looking at it the other way, we are trying to remove the liability from a brave young officer who is doing their job and keeping us safe.

On the hon. Member’s second point, frankly there is already no liability, because that has already been covered. Can he give an example of where the security services have not been able to carry out their functions because of the absence of the clause?

That is probably beyond what I can say here, and indeed beyond what I am aware of. It is one of those situations in which, were I a Minister, I would be happy to write to the hon. Gentleman—but I am not. Far from gold-plating, as referred to by the hon. Member for Halifax, clause 23 does not create a blanket criminal law immunity for our intelligence officers. It does not change the application of other criminal law offences that overlap with those underneath the Serious Crime Act 2007. It provides no change to the UK’s international law obligations.

I assume that the Minister agrees that the approach undertaken in the Bill is more limited and targeted than the approach other key allies have deemed necessary to protect those working on their behalf. Indeed, last week we heard from Alex Younger, the former chief of the Secret Intelligence Service. During his oral evidence he noted that there is an international precedent for such measures. He was referring to Australia; I understand that it was section 41 of the Australian Intelligence Services Act 2001, where there is a much broader immunity. That Act states:

“A staff member or agent of an agency is not subject to any civil or criminal liability for any act done outside Australia if the act is done in the proper performance of a function of the agency.”

Clause 23 is much more limited than that example. Rather than a proposal for wholesale immunity, it will just remove the legal risk for individuals’ actions that are done in good faith and following all authorised processes. That risk should not be underestimated given the chilling effect that we have discussed over the past couple of weeks. That effect can prevent or even delay the sharing of critical intelligence with international partners. Thus, the line of argument that the provision is too broad does not really hold when considered in the context of what our key allies are doing in relation to sharing information.

I express my support for clause 23, and the core principle that this is the right thing to do. We do not expect the current criminal liability of the Serious Crime Act offences to sit with trusted individuals who are conducting authorised, highly sensitive and vital national security work to keep our country safe.

I rise to support a lot of what the hon. Member for Halifax has said already. Nobody on the Committee doubts the importance of collaboration; we all recognise how crucial that is. I do not think that any of us doubt that the services have approached the Government having identified what they perceive to be a problem, and that the Government are genuinely engaged in trying to resolve that. One of the challenges that we face as parliamentarians is the degree of confidentiality and secrecy that surrounds their operations, which sometimes makes it difficult for us—particularly if we are not members of the Intelligence and Security Committee—to properly understand the nature of the problem and how it can be resolved.

I am very conscious of what the hon. Gentleman has said, but to date neither the Government nor the security services have provided any justification or examples to the ISC as to why the clause is needed.

I am grateful to the right hon. Gentleman, who is a member of the ISC, for clarifying that. For that reason, I am not dead set in my opposition to the clause by any stretch of the imagination—I am open to persuasion. However, we need evidence through the ISC that there is a problem and that clause 23 is the best way to solve it. As matters stand, I cannot say that I have been persuaded of either of those things.

First and foremost, it remains difficult to see how officers of the services in question can commit an offence under the 2007 Act unless they intend an offence to be committed, or, secondly, unless they have a belief that their action will assist an offence. That is a high threshold, even before defences kick in.

We have heard already that the section 50 defence of acting reasonably applies. Given the “purpose” and “authority” under which any action of information sharing would take place, it surely seems very likely that that defence could easily be made out. That point has already been made by a member of the ISC this afternoon. It almost looks like that defence, in section 50(3) of the 2007 Act, was designed with employees of the agencies in mind. The Minister has asserted that the defence is vague, but they seem to be a perfect fit for some of the circumstances that we are considering.

Even if the Minister is correct, perhaps the better response would be to amend the defence, rather than disapplying schedule 4 altogether. It is not clear why it can be argued that the reasonable defence is any more vague than the concept in this clause of

“the proper exercise of any function”.

It is not clear to me what conduct that concept is and is not supposed to cover. We need clear explanations and I do not think we have been given them.

Will the Minister give an example of conduct that is a proper exercise of any function of the services, but that is currently subject to the chilling effect of the 2007 Act and would therefore be saved by the Bill? Why is such conduct not able to get over the threshold of the reasonable defence already? Why, as has been asked, is such conduct not able to be authorised under section 7 of the Intelligence Services Act 1994? What type of data sharing is subject to this chilling effect and what causes that effect? Is it the remote possibility of data being used for a very serious crime or the significant chance it could be used for a less serious crime? Is it both? Is it neither? It is very hard to get a handle on what precisely the provisions are aimed at.

The Minister knows that concerns were raised on Second Reading about the potential for the clause to have a much more significant effect on actions that could, for example, support rendition or torture. He has set out today and in correspondence that domestic and international law means that such action would not be protected by clause 23. We will give that further consideration, but, in my view, the Government have much more to do to persuade us that there is a real problem here, and one that requires legislative intervention.

Even if a problem does have to be addressed, I am still to be convinced that this is the right response. Are there other options we could look at? Of course there are. For example, in last week’s evidence there appeared to be the suggestion that it was not so much the risk of conviction that was feared, but the risk of an investigation and being dragged to the courts and having to establish a defence of reasonableness. That was one of the problems.

Different things could be done. The clause could be moved around so that it is not a defence, where the burden lies on the person accused. We could make it an intrinsic part of the offence in the first place, so that nobody is dragged to court and has to establish the defence. There are other things that could be done—for example, requiring certain authorisations for prosecutions and so on.

Let us have that discussion, assuming that we can be persuaded that there is a problem here. Are there different ways to address it? For the moment, we remain a little bit in the dark on what precisely the nature of the problem is, and are unconvinced that the provisions in the clause are the best way to resolve any problem that does exist.

Our intelligence and security services are this country’s frontline of defence, and we need to ensure that they remain the best and most professional in the world. To do that, they need to know that if an individual makes a decision in good faith and in accordance with all relevant procedures, to keep us safe, that individual should not be at risk of criminal liability. That responsibility must lie with the organisation.

In a moment.

Last week, Sir Alex Younger, former chief of the Secret Intelligence Service, said the issue was a point of principle. Contrary to some alarmist news reports and those opposed to clause 23, Ministers and spies will not be given immunity from committing crimes overseas. Clause 23 does not have any effect on any other criminal offences that might apply to an individual’s actions.

I thank the Minister for reading his speech very well, but I take issue with the implication of what he said at the end, and I feel a bit annoyed about it.

The implication is that if someone ask questions about clause 23, somehow they are not supportive of our security services. I am the longest serving member on the Intelligence and Security Committee and a former Defence Minister, and I think most people who know me in the House know that if I am anything, I am a supporter of our security services and defence forces. It is therefore a bit churlish for people to argue that asking questions somehow means that I want to inhibit the work of our defence and security services; I certainly do not.

Having been on the ISC since 2017, I am aware of the bravery involved in the difficult jobs of our security services. I never cease to be amazed when I hear about some of the things they do. The general public would have no idea of the difficult judgment calls they sometimes have to make.

However, I am also a big supporter of proper oversight of our security services. We have the ISC, the Investigatory Powers Commissioner and the Investigatory Powers Tribunal, and that is the web we have in our democracy to ensure that the security services operate legally and that they are supported in what they do. In fact, the director general of MI5 often says in front of the ISC that those three organisations give it the legitimacy to operate. That is a good thing in a democracy, and I agree with him.

What worries me is the justification for why clause 23 is needed. We have heard it before, but we just heard the hon. Member for Milton Keynes North use the phrase “a chilling effect”. In their evidence, Sir Alex Younger and Sir David Omand also supported this provision. I have huge respect for those two gentlemen: they are good public servants whose service has done this country a huge amount of good. However, from reading the transcript—I was abroad when they were here last week; I apologise—I do not quite get the point that they were getting at. They used words, which have just been used again, such as principles and morals, and the idea that the onus somehow lies on the individual officer.

If that was the case, I would totally agree that the onus should not be on the individual officer because, having seen what they do, I know they have to make key judgment calls. In their evidence, I do not think that Alex Younger or David Omand gave us any examples of why this measure is needed.

I have been listening carefully to the right hon. Gentleman. He mentioned oversight as a key part of the functions of our security services. I waited for him to develop the point further into liability, which is what we are discussing here. Will he elaborate on what he means in relation to oversight when, I think, clause 23 specifically refers to liability?

It is about both. I will come to liability, because I do not think that individual officers are liable due to existing legislation. As for what I mean by oversight, I am clear that the structures we have for the authorisation of things that are not pleasant should include oversight—whether from the ISC, the tribunal or the Investigatory Powers Commissioner. We do not live in a society—thank God—where Ministers and the Executive can just say to the security services, “Do x, y and z.” That would be wrong. That is why it is important to have oversight and checks and balances in the system, which were not always there. This morning, I referred to a very sad time in our history—I was a Minister at the time. It was not a good time for our security services, and we should have been ashamed of some of the things that were done.

I want to see an example of what Sir Alex Younger and Sir David Omand were talking about last week. If there is a specific problem, I would be sympathetic and say, “Right, we need to get that sorted.” It may be a broad notion. We are talking about principles and morals, and it is very difficult to legislate on morals—certainly the Conservative party gets into difficulty when we talk about morals—but I would like to know specific examples that would lead to a liability.

Let me turn to the existing protections. Schedule 4 to the Serious Crime Act 2007 includes the offence of encouraging, assisting or commissioning an offence abroad. Clause 23 amends schedule 4 of the Serious Crime Act to disapply that offence when the activity is deemed necessary for the proper exercise of a function of an intelligence agency or the armed forces. The Government are basically asking for a carve-out, which I find extremely rare.

Does my right hon. Friend agree that putting in legislation a carve-out from an entire class of offences—in this case, the inchoate offences of crimes committed abroad—engenders more suspicion among those who worry about the intelligence services than would be the case if the law applied properly to them with appropriate defences?

I do. Since I have been on the ISC, I have always been amazed when I read accusations made in this place or in public about what the security services get up to. Frankly, if they did, good—but, given the scope of their ability to do things, we should bear in mind the difference between fact and fiction.

The important point is that what the security services do must be proportionate, legal and in the interests of this country’s national security. As I say, they have to take some difficult decisions, and there is a difference between a ministerial authorisation to do something and what happens on the ground. The Minister is not sat there with a pen, saying, “No, you can’t do that. You can do that.” It is down to the individual officer, and I accept that there are huge issues around that. That is why we had the consolidated guidance, which then developed into the Fulford principles. That came out of that dark time.

I was on the ISC when we did our very long inquiry into detention, mistreatment and rendition in 2018, and it was not pretty reading. Ministers—in some cases, we named them—took decisions that were not legal. I have been assured by the agencies in evidence that I and the ISC have received that the consolidated guidance has since been updated to the Fulford principles, and a large exercise has been undertaken to ensure that all officers at all levels understand the principles and how to enact them.

That gives us that legal protection. There are people who want to attack our security services. That large exercise gives me huge assurance, and it means that parliamentarians are in a strong position, when people start accusing the security services, to stand up and say, “Well, actually, that is rubbish. These are the rules that we follow, and they are of the highest standard.” They protect not just the work that the security services do, but us as a country.

Carving this out worries me, as it does my hon. Friend the Member for Garston and Halewood. The Government want to disapply the measure, but there is already a reasonableness protection. We discussed reasonableness this morning. Section 50(3) of the Serious Crime Act 2007 sets out that:

“Factors to be considered in determining whether it was reasonable for a person to act as he did include…any purpose for which he claims to have been acting”

and

“any authority by which he claims to have been acting.”

I think that is very clear.

If we now have a situation whereby the agencies and armed forces are concerned that the conduct may not be reasonable, it is difficult to see how it would be deemed necessary for the proper exercise of the functions of the intelligence services or military. The reasonableness test is there and, as I have already said, we have other protections whereby the Secret Intelligence Service and GCHQ also protect their staff from liabilities in relation to offences committed abroad through ministerial authorisation under section 7 of the Intelligence Services Act 1994. The important thing about all that is whether the Investigatory Powers Commissioner can ensure that it is done properly.

To get back to the point, what is the problem? I do not see it. Call me old-fashioned, but if there is a problem, I am up for solving it. However, I do not think that we should try to change things if there is not a problem, and none of the agencies has yet come forward to explain in detail what the problem is.

I accept what was said earlier about the ISC. The individual examples, if there are any, will cover highly classified information—that is why the ISC is there: we can take evidence and look at that information—but there has been no attempt at all by Government Ministers or the security services to give us the examples. One of my colleagues will speak in a minute, but I speak on behalf of the ISC, because we have discussed this issue. We cannot give clause 23 a nod through at this point until we have been convinced that there is a need for it.

My hon. Friend the Member for Halifax made a point about scrutiny. The great thing about having the Investigatory Powers Commissioner is that they can look at warrants and ensure that they are not just legal but proportionate. If we have this provision, who will oversee the individual cases? I get the point that the two former heads of security services made in their evidence about the onus being on the individual. Yes, it is, but those individuals rightly have a huge degree of protection. I would not want to see that in any way diminished because they have the law behind them. In some cases, they also have ministerial warrants, which add to the judicial process.

For those who say that if someone ask questions about this provision, they are against the security services, let me put it the other way. If it is not justified, it will be used as a way to say that the security services now want to go back to the bad old days when things happened that were not under the scrutiny of either Parliament or the judiciary. That would be a retrograde step and would give opponents—as I say, they are against whatever the security services do—a stick to beat them with. I am certainly not in favour of giving those people anything with which to beat the security services.

We could vote against the clause, but I do not think that is the right way forward. I and other members of the ISC would like the Government to provide us with examples of where the chilling effect has been a problem for intelligence sharing, so that we can at least have a look. I accept that other members of the Committee might wonder why they cannot see it—trust me when I say, “You can’t.” I think most people would understand the reasons why that is.

I wanted to be very clear earlier—I wanted to make a point. I agree that the Government will give the ISC examples.

That is very welcome, but we do not just want that in writing—we want to have the agency heads actually come and speak. I think we have a meeting with them scheduled for some time in October. We would like to get them to come and argue why they need these changes. We need that as well.

The Minister might need to give it a bit more thought, too. I accept that he is new to his post, and he obviously has time to look at this over the summer—depending on what happens at the beginning of September. I know that I have poked fun at the Minister, but we get on well, we have worked closely on other Committees and I even got him promoted on a Committee once, which he was eternally grateful for. Can he just look at the oversight, too? If the Bill does go through, what are the oversight mechanisms for it?

I will not go through all the points that have already been made, although I do feel quite strongly about some of this. I generally endorse what has been said by my hon. Friend the Member for Halifax and my right hon. Friend the Member for North Durham—my fellow member of the ISC. Like him, I do not think it is true to say that anybody on this Committee or any of our parliamentary colleagues are intent on trying to stop the intelligence and security services doing their job. They do a very important job and they do it very well. It is dangerous work and we want to support them as much as we can.

But we are a democracy. One of the things that concerns me about clause 23 is its wholesale disapplication of an area of the law that applies to all the rest of us. If we are going to do that for the intelligence services, it is important that we are very clear that it is necessary. It applies only for a certain type of offence in a certain place—overseas—but it is a wholesale carve-out. The clause says that an entire schedule to the Serious Crime Act 2007, which sets out inchoate offences abroad, does not apply if “any relevant behaviour” was necessary for

“the proper exercise of any function”

of the relevant services. That is a wholesale carve-out. I cannot think of too many other examples of that. I do not know if the Minister has a list of examples of other wholesale carve-outs from liability from the criminal law for particular officers of state organisations, but I think it is quite rare.

In those circumstances, I could tell from the evidence we were given that the Government have been asked for this by the relevant services. It did not seem to me that it was coming from the Government—that the Government were saying, “You must have these extra powers.” I accept that they are responding to requests, but because this is a wholesale carve-out from liability for criminal acts, it is important that it is properly justified. We all know about the difficulties of properly justifying it, because a lot cannot be brought into the public domain, but what we have had in the public domain has not been very convincing.

I expect that many people in their day-to-day life would like to have impunity from criminal liability for something that they might do, but it is not something we should be granting easily. The arguments for it need to be very strong. There are already defences that make it harder for people working in the intelligence community to be found guilty of some offences. They have defences that others do not. By the way, it is probably philosophically right that the law should apply to those people but that they should have extra defences. In legislative terms and for the good of society as a whole, it is probably better to do it that way round than to disapply the law to a particular type of person.

I would expect to hear why the current arrangements do not work, but I have not heard that. I did not hear it in the evidence we took from Sir Alex Younger and Sir David Omand. If I can characterise the issue in this way, they both said, “We would rather have this. We feel very strongly that we would rather have this,” but they were unable to give us any examples of why the current arrangements did not work. In fact, I asked Sir Alex whether some of the current arrangements worked. I asked him about the ministerial authorisation, and he just told me that he was not a lawyer, which is not a convincing answer when someone is asking for a whole area of the criminal law to be disapplied. Sir Alex obviously felt strongly about the matter—I could see that. That is perfectly legitimate, but as a scrutiny Committee and as parliamentarians, we need to hear a little bit more.

I hope the Minister will understand—I do not particularly like the fact that he refused to take interventions, but that is his choice—that everybody on this Committee is seeking to do the right thing. We do not want to make a change to the law that opens up our intelligence and security services and our armed forces to accusations that they can act with impunity abroad. Based on some of the evidence that has been sent to the Committee from those who campaign on these issues, some people think that the clause does precisely that. I do not agree with some of what is in the submission from Reprieve that we received recently, but that submission contains quite a representative sample of what people in our society would probably think if they were to take a look at this clause.

A wholesale carve-out from liability under an area of the criminal law is a very serious step to take. I am not saying it is not the right thing to do, because we should take requests from the agencies and armed forces seriously—as the Minister is clearly doing—but I remain unconvinced. Such a carve-out could have unintended consequences, such as making it much less likely that thoughts will be focused on making sure that activity is lawful. We need to make sure these proposals are the right way forward, and that their advantages outweigh their disadvantages. We have been told that reasonableness is a vague concept, but it is vague only in the sense that it is very flexible and can, and does, apply in many areas of the law; its meaning is relatively well known. To my mind, if the agencies and armed forces are concerned that their conduct might not be considered reasonable, it is difficult to see how it could be necessary for the proper exercise of their functions.

The other safeguard in this area is surely that if there were to be any prosecution of an agency staff member or a member of the armed forces, the Attorney General would also have to agree to that prosecution. That would be a pretty high bar to get over.

It would be a very high bar to get over. If we are being told—there was an element of this in the evidence we heard—that there is a chilling effect on individuals trying to do their jobs, those individuals may need to be a bit better trained in what the law says, what it means and what they are able to do. In any event, whatever the law ends up being—whether it is this Bill, or what we already have—it is not a bad thing for those who operate at its margins to know precisely what they can and cannot do. I worry slightly that having a complete carve-out from liability might swing activities a bit too far in the other direction.

There are pros and cons to any way of doing this. I do not want the Minister to think I am being hostile; I am certainly not. I just want us, as the House of Commons, to be sure, when we consider this further, that this way is right and will work better than what we already have. I, for one, cannot see how this will be better than what we already have; I think that in many ways it will be worse.

It has been a great pleasure to listen to the debate and Members’ speeches. I can feel the frustration in the room. I share that frustration, because I have been told by the intelligence services that we need clause 23 because the schedule it amends is having a damaging impact on critical operational activity aimed at keeping the UK safe. That is the reason why we need clause 23. I wish that we could tell the Committee everything, and that we could just all agree to it, but that is what I am told by the intelligence services, so I have frustration too.

I will try to answer some of the questions, and then sum up. We have been asked about section 7 authorisations. Some of the Committee have been in their roles a little longer than I have been in mine, so they will be aware that section 7 authorisations can be sought only by SIS and GCHQ—not by the MOD or MI5—so this is about trying to create reassurance across all the UK intelligence community.

On section 50 and the reasonableness defence, the defence has never been tested in the context of activity of the intelligence services and the armed forces, so we feel it is more appropriate for them to demonstrate that their actions were carried out as necessary in the proper exercise of their functions.

If what the Minister says is accurate—that the defence has never been tested—how can he say that it does not work?

What I am trying to say is that we want our UK intelligence services to be focused on keeping us safe and not to worry about whether or not they will be able to deal with a long court case on their actions. As things currently stand, the UK is—

Let me give an illustration of the issue. If my hon. Friend saw someone in need of cardiopulmonary resuscitation on the floor, would he give them mouth-to-mouth and pump their chest? Is that something he would do? Would he do it if he thought he could be prosecuted for causing grievous bodily harm if he broke a rib? That would be his defence. That is a simplistic example to illustrate the issue.

I am grateful to the hon. Lady for her intervention. I do not think I would be any good at giving anybody CPR. However, I understand the spirit in which she made the intervention and am grateful for that.

I do not want to get distracted, because this is very serious. I will give way to you in a minute, Kevin; I want to get this point across. [Interruption.] Sorry—I will give way to the right hon. Member for North Durham in a moment.

As the law stands, a member of staff acting in the proper exercise of their organisation’s functions would bear the burden of proving that they had acted reasonably when there is no precedence as to what “reasonably” means in those circumstances. The provision would change that position so that the prosecution would need to prove that a member of staff’s actions were not necessary for the proper exercise or function of their organisation, taking into consideration all the information about the legitimate ways in which those functions could be exercised.

The Minister has just said that the reasonableness test has not been used. The Attorney General would also have to get over that bar. Alongside that sits the old consolidated guidance—now the Fulford principles—which is quite clear about what actions officers should take in certain circumstances to avoid what we had before. If it has not been tested, I cannot see what the problem is.

The problem is that the UK’s intelligence services are telling us that, every single day, their operatives are second-guessing themselves on operations to keep this nation safe. I believe what they are telling me.

The provisions in section 47 of the Serious Crime Act mean that a person need only believe their activity will encourage or assist such an act, but they might also be reckless as to whether the act is done, with all the necessary elements required for that particular offence to be committed—the offence does not have to be committed. We are talking about the intelligence operative’s state of mind at the time of sharing intelligence. That is what is relevant.

If that is the justification, why do we not just bin the consolidated guidance and the Fulford principles, on which such judgments are based? The rendition inquiry has great examples of where we passed on information knowing that it would be used for rendition and torture. I have been assured by the agencies, and I have no reason to doubt them, that there has been a huge training programme to ensure all officers fully understand the consolidated guidance and the new Fulford principles. This is clutching at straws, frankly.

I am grateful for the right hon. Gentleman’s point of view.

Clause 23 is primarily aimed at removing the risk and fear of prosecution from individuals within these organisations when undertaking their necessary authorised duties. Sir Alex Younger said:

“Through this legislation and other measures, we can make sure that these risks are attached to the appropriate person or people or entity. I am much less comfortable as a leader about the idea that we therefore ask individual men and women in the UK intelligence community to suck it up. I do not think that is right.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 14, Q26.]

We have already had a conversation about the difference between theory and practice, and the reality is there is a risk that individual UK IC officers will face criminal sanctions for doing their job. I agree with Sir Alex Younger that that risk should not exist.

Question put and agreed to.

Clause 23 accordingly ordered to stand part of the Bill.

Clause 24

The foreign power condition

I beg to move amendment 54, in clause 24, page 19, line 5, at end insert—

“(2A) The conduct in question, or a course of conduct of which it forms part, is not to be treated as carried out for or on behalf of a foreign power if financial or other assistance of a foreign power under subsection (2)(c) is provided otherwise than specifically for the conduct or course of conduct.”

This amendment ensures that organisations that receive funding from foreign powers are not guilty of offences if that funding was not for the conduct or course of conduct that would otherwise amount to the offence.

With this it will be convenient to discuss the following:

Clause stand part.

Clause 25 stand part.

We now come to two of the most important concepts in the Bill: the foreign power condition and the meaning of “foreign power.” Proving that the foreign power condition has been met is crucial to establishing many of the serious criminal offences for which we are legislating in this Bill, and all sorts of consequences flow from it in the powers to seize and search. It is vital that we get clauses 24 and 25 absolutely correct.

On the whole, the concepts are broadly in the right area, particularly in clause 24. The concept includes an agent acting on behalf of a foreign power, and with knowledge, or reasonable knowledge, that that is the case. The idea of “ought reasonably to know” being sufficient to make out a connection is perhaps a concern, but I understand why it is required for the legislation to work. I look forward to hearing more from the Minister on the thinking behind it.

To cut to the chase, the Committee will recall that, thanks to a briefing from Article 19 on clause 1, I raised the potential problem that the foreign power condition could be attached to certain unintended groups, and I highlighted two groups in particular: non-governmental organisations that receive some funding from foreign powers for perfectly good and positive reasons, and I gave an example of NGOs that fall within that bracket; and journalists who work for state broadcasters, including in countries that are our very close allies. These two groups are at risk of being caught up in the Bill because the foreign power condition is expressly met when conduct is

“carried out with the financial or other assistance of a foreign power”.

The Minister set out three protections during our consideration of clause 1: the foreign power condition itself; the discretion of the Attorney General; and the public interest test applied by the Crown Prosecution Service. Several members of the Committee spoke about why the AG’s oversight and the CPS’s discretion are insufficient. We had a debate about the chilling effect, a concept that we have just been discussing, and the fact that that would essentially leave NGOs and journalists to make decisions about whether to publish information or not based only on the very vaguest of ideas that the CPS or the AG might come to their rescue. That is not really protection at all.

As for the third protection—the foreign power condition —as far as I recall, the Minister did not dispute or expressly accept that the foreign power condition would be met in these cases. Does the Minister accept that the conduct of those NGOs and journalists could meet the foreign power condition, simply because of what they do? That is the most important question I will ask him in this debate.

Our amendment tries to stop groups being caught up in the provisions of the Bill as a result of simply receiving funding from a foreign power, when that funding has been put to perfectly legitimate and reasonable uses. The amendment requires there to be a connection between the funding and the conduct that is being complained about. For example, if the US State Department funds an NGO for human rights research, completely unrelated conduct, in particular the publication of “protected information”, would not be treated as a foreign power activity or espionage unless it was specifically linked to that funding. I accept that my amendment may not be perfect, and I can see there would be problems with it, but I think there has to be an acceptance that the clause as it stands is not perfect and there has to be protection for NGOs and journalists.

I have another concern about clause 24, particularly subsection (5) and the interaction between subsection (5) and (6). The idea of someone being brought within the ambit of espionage legislation on the basis that their act is motivated by an attempt to benefit a foreign power, even an unknown foreign power, and that is all—none of the other factors in clause 24(2)—seems dangerously liable to be able to attach itself to behaviour to which it should not be attached. Behaviour that is motivated by trying to help people in a foreign country could suddenly take on a new angle and be seen as helping a foreign power.

I will give a final example of what I am trying to get at here, which is basically whistleblowing. What if a person working for an international company here discloses a trade secret of that company to a regulator in an allied country, because the product that that company supplies there is a dangerous breach of that other country’s regulations? It seems to me that the drafting of the foreign power condition confuses whistleblowing with some of the espionage offences. Have we drawn the foreign power condition too broadly?

In relation to clause 25, on Second Reading I wondered whether the definition of foreign power was too narrow and might not cover enough of the damaging actors who engage in some of the behaviours we are so concerned about. However, the key point is that an actor can form part of an indirect relationship between the conduct of the foreign power under clause 26.

I will close my remarks there. Does the Minister accept that some of these examples are caught by the foreign power condition, in particular NGOs, journalists working for a foreign state broadcaster and whistleblowers who reveal a trade secret to a regulator working overseas? Are they caught by the foreign power condition? If so, surely we must change the drafting of the Bill.

I will speak to clauses 24 and 25 and, having heard the contribution from the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, about his amendment 54.

Clause 24 provides for the foreign power condition that is fundamental to almost all the new offences created by the Bill. I appreciate that the Minister has confirmed that we will see the detail of a foreign interference registration scheme before we return to Committee in September, but it will be particularly interesting to see how the provisions in clause 24 interact with a registration scheme, and what an asset that stands to be if it is done properly.

Clause 24(1) provides that the condition is met if a person’s conduct or a course of conduct is carried out for or on behalf of, or with the intention to benefit, a foreign power. In addition, for the condition to be met, the person must know, or reasonably ought to know, that the conduct has that relationship to the foreign power, which I think is clear enough.

Subsection (2) sets out a welcome but non-exhaustive list of different types of relationship between the foreign power and the person engaging in the conduct that would result in a person being considered to be acting for or on behalf of the foreign power.

Under this clause, conduct is deemed to be carried out for or on behalf of a foreign power if it is instigated by a foreign power, it is directed or controlled by a foreign power, it is carried out with financial or other assistance from a foreign power, or it is carried out in collaboration with or with the agreement of a foreign power. It strikes me that thousands of people in the UK could meet all the foreign power stipulations in subsection (2) without ever engaging in any criminality—for example, if they work for a legitimate state-owned company, such as an airline operating out of the UK, or in a foreign embassy. I am keen to see the detail of the registration scheme, so that we have transparency and clear lines about what is welcome and entirely appropriate conduct on behalf of a foreign power and what is not.

Subsection (6) states that is not necessary to identify the particular foreign power that the person intends to benefit. That provision is intended to cover when a person attempts to help a foreign power, but has not yet determined the particular foreign power. I can see how this part of the clause rightly captures the conduct of someone motivated by financial gain, who seeks to sell information or intellectual property to the highest bidder, or perhaps by a desire to cause harm to the UK as a result of a grievance.

For the reasons I have outlined, I imagine that we will come back to clause 24 when debating further parts of the Bill. It would have been advantageous to consider the clause alongside the detail of the foreign influence registration scheme. We will have to undertake that separately, but we recognise that clause 24 is fundamental to this legislation.

Clause 25 defines a foreign power for the purpose of clause 24 and sets out the persons and bodies that comprise a foreign power. We welcome the much-needed update and clarity of what constitutes a foreign power for the functioning of clause 24 and the new offences created by the Bill. I note that the Law Commission’s report, “Protection of Official Data”, made a clear case for replacing “enemy” with “foreign power” and looked to the Canadian Security of Information Act 2001 and the US Congress’s Espionage Statutes Modernisation Bill, which was introduced in 2010, as starting points.

The Official Secrets Act 1911 provides that it is an offence for a person to make or obtain

“any sketch, plan, model, or note”

or

“any secret official code word, or pass word…or other document or information which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy”.

The Law Commission felt that as the term had been drafted with enemy states in mind, it was unclear whether a court would construe “enemy” broadly enough to encompass non-state actors, such as an international terrorist group. It was further concerned that the inclusion of the term “enemy” had the potential to inhibit the ability to prosecute those who commit espionage. We have already heard quotes from Sir Alex Younger’s testimony last Thursday. In response to a question about how threats to the UK have changed, 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.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 11, Q21.]

I therefore welcome the change from enemy to foreign power to ensure that we can secure prosecutions against the right people.

That said, concerns were raised in submissions to the Law Commission’s consultation and I wonder if the Minister can respond to those. Guardian News and Media gave the following example:

“If a journalist obtains information that a nuclear defence installation is unsafe, that concerns have been reported to the appropriate authorities, but have been discounted, and the journalist then proceeds to investigate whether the information is true, they should not be placed at risk of prosecution. Under the existing wording of section 1 OSA, the ‘of use to the enemy’ requirement would it is submitted make such a prosecution unlikely, however if that wording were changed to a foreign power, and a foreign state-owned institution was thinking of bidding to decommission the plant, this could catch the journalist. Such activity by a journalist should not be considered to be espionage.”

Again, it would have been advantageous to consider this clause alongside the foreign influence registration scheme, which will presumably be clear about who needs to register and why, aligned with subsections (1) and (2) of clause 25, but I hope that the Minister can respond to the concerns raised in that example.

We have already spoken in some detail about the foreign power condition, but I will now specifically address that condition and the meaning of “foreign power”. In doing so, I hope to cover some residual concerns from our first day in Committee and some concerns that I have heard today.

Throughout the Committee’s sittings so far, I have tried to demonstrate that I am listening and am trying to work with colleagues across party lines to get to a position in which we are providing what the United Kingdom’s intelligence community needs and are comfortable that we have scrutinised the Bill. The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East may be reassured when I get to the end of my speech, just as the hon. Member for Halifax was reassured about her amendment earlier.

As the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East waits in excitement, let me say that the foreign power condition provides a single and consistent means by which a link to a foreign state can be drawn in relation to offences of obtaining or disclosing protected information or trade secrets, sabotage, foreign interference and the state threats aggravating factor. The foreign power condition can be met in two scenarios: first, where a person is acting for or on behalf of a foreign power; and secondly, where a person intends that their conduct will benefit a foreign power.

I will start with the first scenario. Clause 24(2) provides a non-exhaustive list of situations in which conduct will be treated as being carried out for or on behalf of a foreign power. They include acts instigated by or under the direction or control of a foreign power. Such links may be either direct or indirect. States are known to work through proxies to deliver harmful effects, and it is important that states cannot use that approach to evade prosecution.

I reassure the Committee that this provision will not capture people who do not know or could not possibly know that they were acting for or on behalf of a foreign power. Clause 24 requires that

“the person knows, or ought reasonably to know”

that their conduct is being carried out for or on behalf of a foreign power. That is an important part of the test: it ensures that a person who actively chooses to turn a blind eye to something that should rightly raise concern, or who acts in wilful ignorance of the facts before them, cannot argue that they did not commit the offence because they did not know about the link to the foreign power. What a person ought reasonably to know will be considered in the light of the relevant circumstances of the case. For example, what a civil servant who is acting in the field of national security and has received relevant training and guidance on the threat ought reasonably to know is likely to differ from what is expected of a member of the public.

Where our authorities consider a person to be carrying out harmful activity with a state link, this can be drawn to a person’s attention, providing a strong deterrent against a person continuing with that activity. This aspect of the foreign power condition will be met if a person’s conduct, or the course of conduct of which it forms part, is carried out for or on behalf of a foreign power. The clause provides that “course of conduct” covers circumstances in which a foreign power has tasked a person with carrying out conduct in general but not with carrying out a particular act, such as an act of sabotage, or in which an act forms part of a wider course of conduct that includes the acts of other people. In such cases, it would be sufficient to demonstrate that the individual was operating under the general tasking of which the conduct forms part, rather than needing to show an explicit arrangement in relation to the specific conduct, which may not necessarily exist.

Let me move on to the intention to benefit. Not all state threat activities will be orchestrated or instigated by a state. For example, individuals could act to benefit a state independently for financial gain or out of ideological sympathy or dissatisfaction with the UK. In that situation, the individual might not even have decided which foreign power they intended to benefit at the point when they engaged in the particular conduct, so the foreign power condition will be

“met in relation to a person’s conduct if the person intends the conduct in question to benefit a foreign power”,

regardless of whether the foreign power can be identified.

I just want to repeat that I find that potentially worryingly broad. If somebody does something motivated by the interests of the people of country Z, I worry very much that they could suddenly be treated as if they were benefiting the Government of Z. The foreign power condition would therefore be met and they could be guilty of espionage for whatever act they had undertaken. It just seems incredibly broadly worded. Someone who is simply doing something for the benefit of a people could be caught up in this legislation.

I think the intention that we are trying to get across is clear. I understand that the hon. Gentleman has a concern about how broad the scope is, so if he gives me a few moments, I will try to move on to that point.

My view is that clause 24 forms a key concept that will determine the circumstances in which activities will come within the scope of the Bill or beyond it. Amendment 54 seeks to make it explicit that those who receive funding from a foreign power legitimately will not be guilty of an offence under the Bill where that funding is entirely unrelated to the harmful conduct. I want to reassure the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East that this reflects the intention of the provision. The provisions are designed to provide that the funding of an organisation must have a sufficient link to the offence in order for the foreign power condition to be met and an offence to be made out; a tangential link will not suffice. To help contextualise that, and reflecting on Tuesday’s debate, I thought it would help to provide a bit more detail on how the foreign power condition interacts with the offences.

Using the offence of obtaining and disclosing protected information as an example, the offence will be made out only if all the limbs of the relevant test are satisfied. This means that a person would commit an offence only if they obtain, disclose or carry out other specified conduct in relation to protected information. That conduct is for a purpose they know, or reasonably ought to know, is for a purpose prejudicial to the safety or interests of the UK, and the foreign power condition is met in relation to that conduct.

I want to be really clear that a person who engages in the harmful conduct above would commit the offence only if they have a purpose prejudiced in relation to that specific conduct. So it is not sufficient to prove that a person has a genuinely prejudicial position against the UK; the conduct has to be carried out with that prejudicial purpose.

The same is true of the foreign power condition. The foreign power condition has been designed to apply in relation to the conduct that is caught within the offence. So where the foreign power is satisfied because the conduct in question, or a course of conduct of which it forms part, is for or on behalf of the foreign power, the defendant must also either actually know or should know that to be the case.

The hon. Member cited the example of an NGO that receives funding from a foreign power. My and the Government’s interpretation is that there would have to be a link between the funding they receive and any activity that they carry out that could meet the offence for that activity to be for or on behalf of the foreign power. So the NGO would also have to know the conduct was linked to this funding, or they should know that it is. They should not be convicted of an offence unless that link was demonstrated beyond reasonable doubt in a court of law.

I want to be really clear. The foreign power condition, as a standalone concept, is not a statement of wrongdoing. So a person can meet the foreign power condition while carrying out wholly legitimate activities. It is an issue only if the foreign power condition is met in relation to harmful conduct specified in the Bill. In the case of a person who obtains or discloses protected information, the offence is designed so that a person would commit the offence only if they had a purpose prejudicial to the safety or interests of the UK and then either knew or ought reasonably to have known that they were acting for or on behalf of the foreign power in relation to that conduct. For example, they had an arrangement with the foreign power under which they would obtain or disclose that protected data, or they intended the foreign power to benefit from obtaining or disclosing of protected data.

So the foreign power condition would not cover a case where a foreign power incidentally benefits from activity. Nor has it been designed to apply in cases where a person receives general funding from a foreign power not linked to the relevant conduct. But clearly it is right that a person can be prosecuted for an offence where all the relevant conditions, including the foreign power condition, are satisfied and can be proven beyond reasonable doubt.

I hope the Committee is reassured that the intention behind our provisions and the hon. Member’s amendments align, but I recognise the importance of ensuring that the legislation clearly gives effect to that intention, and while I do not think the hon. Member’s amendments are the answer, I will consider further whether there is any more that we can do to ensure that this intention is properly reflected in the legislation.

Having set out the conditions under which acts in the Bill will be considered as linked to a foreign power, I now turn to clause 25, which gives meaning to the term “foreign power”. The Bill follows the Law Commission’s recommendation to replace the existing link of “an enemy”, as set out in the Official Secrets Act 1911, with a definition of a foreign power. As we have already debated, the concept of an enemy no longer serves to reflect the modern age. The change from “enemy” to “foreign power” is accompanied by a wider set of changes in the structure of the Bill, such as the foreign power condition itself, which ensures that the Bill’s provisions are appropriately targeted at the harmful activity that we need to combat.

It is important that the legislation captures the various components of a state that could seek to influence or direct harmful activities in or against the UK. As such, a foreign power will include a Head of State acting in his or her public capacity, a foreign Government or parts of the Government, or person exercising such functions, a local government organisation, an agency or authority of a foreign government, part of Government or local government, and a political party that is a governing political party of a foreign Government.

Clause 24, and indeed the Bill as a whole, recognises and respects the unique circumstances and nature of politics in Northern Ireland. Accordingly, clause 25 excludes a political party that is both a governing political party in the Republic of Ireland and a political party registered in Great Britain or Northern Ireland from the definition of a “foreign power”. This reflects the fact that there are political parties that contest elections in the Republic of Ireland and in the United Kingdom, and ensures that the provisions in the Bill do not inadvertently impact cross-border politics. The foreign power definition provides the parameters within which persons and bodies will comprise a foreign power for the purposes of the Bill and is a critical part of ensuring that the provisions in the Bill address the right harmful activity.

I am grateful to the Minister for setting that out. It is particularly helpful to hear his views on the NGO scenario and his explanation of the requirement for some sort of link between the financial arrangements and the specific conduct being complained of. The reason for tabling the amendment is that we did not think that that was necessarily clear enough on the face of the Bill. We will give further thought to whether this aspect needs to be tidied up, so that it is absolutely clear, and I am grateful for his undertaking to look at that as well. I will have to work through some of the other scenarios as well, but it has been helpful to get quite a lot of that on the record. We shall give it some further thought, but in the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 24 and 25 ordered to stand part of the Bill.

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

Adjourned till Tuesday 19 July at twenty-five minutes past Nine o’clock.

Written evidence reported to the House

NSB03 The Russell Group and Universities UK (UUK)

Levelling-up and Regeneration Bill (Fourteenth sitting)

The Committee consisted of the following Members:

Chairs: Sir Mark Hendrick, † Mr Philip Hollobone, Mrs Sheryll Murray, Ian Paisley

† Atherton, Sarah (Wrexham) (Con)

† Benton, Scott (Blackpool South) (Con)

† Farron, Tim (Westmorland and Lonsdale) (LD)

Fletcher, Colleen (Coventry North East) (Lab)

Gibson, Patricia (North Ayrshire and Arran) (SNP)

† Henry, Darren (Broxtowe) (Con)

† Johnson, Gareth (Dartford) (Con)

† Jones, Mr Marcus (Minister of State, Department for Levelling Up, Housing and Communities)

† Lewell-Buck, Mrs Emma (South Shields) (Lab)

† Maskell, Rachael (York Central) (Lab/Co-op)

† Moore, Robbie (Keighley) (Con)

† Mortimer, Jill (Hartlepool) (Con)

† Nici, Lia (Parliamentary Under-Secretary of State for Levelling Up, Housing and Communities)

† Norris, Alex (Nottingham North) (Lab/Co-op)

† Pennycook, Matthew (Greenwich and Woolwich) (Lab)

Smith, Greg (Buckingham) (Con)

† Vickers, Matt (Stockton South) (Con)

Bethan Harding, Adam Mellows-Facer, Committee Clerks

† attended the Committee

Public Bill Committee

Thursday 14 July 2022

(Morning)

[Mr Philip Hollobone in the Chair]

Levelling-up and Regeneration Bill

Before we begin, I have a few preliminary reminders for the Committee. Please switch electronic devices to silent. No food or drink is permitted during sittings of this Committee, except for the water provided. Hansard colleagues would be grateful if Members emailed their speaking notes to hansardnotes@parliament.uk.

Clause 84

National development management policies: meaning

I beg to move amendment 87, in clause 84, page 92, line 9, leave out lines 9 to 16 and insert—

“(2) Before designating a policy as a national development management policy for the purposes of this Act the Secretary of State must carry out an appraisal of the sustainability of that policy.

(3) A policy may be designated as a national development management policy for the purposes of this Act only if the consultation and publicity requirements set out in clause 38ZB, and the parliamentary requirements set out in clause 38ZC, have been complied with in relation to it, and—

(a) the consideration period for the policy has expired without the House of Commons resolving during that period that the statement should not be proceeded with, or

(b) the policy has been approved by resolution of the House of Commons—

(i) after being laid before Parliament under section 38ZC, and

(ii) before the end of the consideration period.

(4) In subsection (3) ‘the consideration period’, in relation to a policy, means the period of 21 sitting days beginning with the first sitting day after the day on which the statement is laid before Parliament under section 38ZC, and here ‘sitting day’ means a day on which the House of Commons sits.

(5) A policy may not be designated a national development management policy unless—

(a) it contains explanations of the reasons for the policy, and

(b) in particular, includes an explanation of how the policy set out takes account of Government policy relating to the mitigation of, and adaptation to, climate change.

(6) The Secretary of State must arrange for the publication of a national policy statement.

38ZB Consultation and publicity

(1) This section sets out the consultation and publicity requirements referred to in sections 38ZA(3) and 38ZD(7).

(2) The Secretary of State must carry out such consultation, and arrange for such publicity, as the Secretary of State thinks appropriate in relation to the proposal. This is subject to subsections (4) and (5).

(3) In this section ‘the proposal’ means—

(a) the policy that the Secretary of State proposes to designate as a national development management policy for the purposes of this Act or

(b) (as the case may be) the proposed amendment (see section 38ZD).

(4) The Secretary of State must consult such persons, and such descriptions of persons, as may be prescribed.

(5) If the policy set out in the proposal identifies one or more locations as suitable (or potentially suitable) for a specified description of development, the Secretary of State must ensure that appropriate steps are taken to publicise the proposal.

(6) The Secretary of State must have regard to the responses to the consultation and publicity in deciding whether to proceed with the proposal.

38ZC Parliamentary requirements

(1) This section sets out the parliamentary requirements referred to in sections 38ZA(3) and 38ZD(7).

(2) The Secretary of State must lay the proposal before Parliament.

(3) In this section ‘the proposal’ means—

(a) the policy that the Secretary of State proposes to designate as a national development management policy for the purposes of this Act or

(b) (as the case may be) the proposed amendment (see section 38ZD).

(4) Subsection (5) applies if, during the relevant period—

(a) either House of Parliament makes a resolution with regard to the proposal, or

(b) a committee of either House of Parliament makes recommendations with regard to the proposal.

(5) The Secretary of State must lay before Parliament a statement setting out the Secretary of State's response to the resolution or recommendations.

(6) The relevant period is the period specified by the Secretary of State in relation to the proposal.

(7) The Secretary of State must specify the relevant period in relation to the proposal on or before the day on which the proposal is laid before Parliament under subsection (2).

(8) After the end of the relevant period, but not before the Secretary of State complies with subsection (5) if it applies, the Secretary of State must lay the proposal before Parliament.

38ZD Review of national development management policies

(1) The Secretary of State must review a national development management policy whenever the Secretary of State thinks it appropriate to do so.

(2) A review may relate to all or part of a national development management policy.

(3) In deciding when to review a national development management policy the Secretary of State must consider whether—

(a) since the time when the policy was first published or (if later) last reviewed, there has been a significant change in any circumstances on the basis of which any of the policy set out in the statement was decided,

(b) the change was not anticipated at that time, and

(c) if the change had been anticipated at that time, any of the policy set out would have been materially different.

(4) In deciding when to review part of a national development management policy (‘the relevant part’) the Secretary of State must consider whether—

(a) since the time when the relevant part was first published or (if later) last reviewed, there has been a significant change in any circumstances on the basis of which any of the policy set out in the relevant part was decided,

(b) the change was not anticipated at that time, and

(c) if the change had been anticipated at that time, any of the policy set out in the relevant part would have been materially different.

(5) After completing a review of all or part of a national development management policy the Secretary of State must do one of the following—

(a) amend the policy;

(b) withdraw the policy's designation as a national development management policy;

(c) leave the policy as it is.

(6) Before amending a national development management policy the Secretary of State must carry out an appraisal of the sustainability of the policy set out in the proposed amendment.

(7) The Secretary of State may amend a national development management policy only if the consultation and publicity requirements set out in section 38ZB, and the parliamentary requirements set out in section 38ZC, have been complied with in relation to the proposed amendment, and—

(a) the consideration period for the amendment has expired without the House of Commons resolving during that period that the amendment should not be proceeded with, or

(b) the amendment has been approved by resolution of the House of Commons—

(i) after being laid before Parliament under section 38ZA, and

(ii) before the end of the consideration period.

(8) In subsection (7) ‘the consideration period’, in relation to an amendment, means the period of 21 sitting days beginning with the first sitting day after the day on which the amendment is laid before Parliament, and here ‘sitting day’ means a day on which the House of Commons sits.

(9) If the Secretary of State amends a national development management policy, the Secretary of State must—

(a) arrange for the amendment, or the policy as amended, to be published, and

(b) lay the amendment, or the policy as amended, before Parliament.”

This amendment stipulates the process for the Secretary of State to designate and review a national development management policy including minimum public consultation requirements and a process of parliamentary scrutiny based on processes set out in the Planning Act 2008 (as amended) for designating National Policy Statements.

It is a pleasure to serve with you in the Chair, Mr Hollobone. We had an extensive debate on Tuesday about the powers provided by clause 83 and the fact that they represent, in our view, an unacceptable centralisation of development management policy and a downgrading of the status and remit of local planning. Clause 84 is important, and the provisions in it relate directly to the previous debate, because it sets out what constitutes a national development management policy and provides the statutory basis for such policies and their operation.

As hon Members will note, the clause provides an extremely broad definition of what a national development management policy is, with proposed new subsection 38ZA(1) clarifying that an NDMP can be anything relating to development or use of land in England that the Secretary of State, by direction, designates as such a policy. Proposed new subsection 38ZA(2) provides for powers that allow the Secretary of State to modify or revoke a national development management policy, and proposed new subsection 38ZA(3) makes it clear that they have to consult about any modification or revocation only if they believe it is appropriate to do so. Given the fact that, as we spent a lengthy period of time considering in the last sitting, it is the Government’s intention that national development management policies will override local development plans in the event of any conflict between the two, we are strongly of the view that the powers clause 84 provides the Secretary of State with are unacceptably broad.

I ask Government Members to look up from their digital devices for a moment and to consider precisely what the Government are proposing here and the future implications of that for their constituencies and the individual communities they represent. These powers would allow a future Minister, of whatever political allegiance, to develop an NDMP that could encompass literally any policy designated by them as relating to development or use of land in England; to determine not to consult on the development of that policy or its modification if they saw fit; and then to use that policy to overrule any local or neighbourhood plan in conflict with it at the stroke of a pen. No one who values localism and the role of effective local and neighbourhood plans in enabling communities to develop a shared vision for their area should feel comfortable with the provisions in the clause.

Amendment 87 simply seeks to impose a degree of transparency and accountability when it comes to the use of the powers, by clarifying the process by which the Secretary of State must designate and review a national development management policy, stipulating, first, that it must include minimum public consultation requirements, just as there are intensive consultation requirements for local plan policies, and secondly, that it must be subject to the same level of parliamentary scrutiny as is currently the case for designating national policy statements, as set out in the Planning Act 2008. It cannot be right that national policies that will have a far greater impact on local communities than any existing national policy statement and that the Government intend will trump local development plans in the event of a conflict can be developed without any public consultation or parliamentary approval process.

If the clause is left unamended, the danger is twofold. First, we fear that the use of the powers will be viewed by the public as yet another means of disempowering communities and hoarding more control at the centre, with all the implications that has for public engagement in a planning system that already suffers from low levels of trust and confidence, with people feeling that their concerns are overlooked and their interests subordinated to other priorities.

Secondly, without a minimum of public consultation or parliamentary oversight in designing NDMPs the Government are far more likely to get it wrong, because they will be developing and designating national policy without appropriate input from communities and their representatives about how the needs and aspirations of their areas are best served. If the Government are determined to force through a suite of NDMPs covering the broad range of policies that, to repeat the test set out in the policy paper, “apply in most areas” and to render local development plans subordinate to them in the event of a conflict, the least they can concede is that the Secretary of State be directed to consult with institutions, authorities and other bodies before making, revoking or modifying NDMPs—not just the initial suite of NDMPs, but any that follow in future years—and to ensure that appropriate parliamentary oversight takes place.

I am grateful to my hon. Friend for his amendment and the speech he has just made. This is the pivotal part of the whole Bill. It is about ensuring that there is a full and proper process—one that should eliminate risk and maximise the representation of local interest.

We had a really helpful discussion on Tuesday that explored why the amendment was needed in the first place, and I am sure the Minister soon recognised the democratic deficit the Bill would create. The Government have left a hole in the Bill, because it defines the process for establishing a national development management strategy but not the extent to which the strategy could apply, and it also fails to take forward the considerations of our communities. This provision does not belong in primary legislation, and the Minister should reflect today and over the summer on what his Government are trying to do.

The Minister said that he will be developing more detail over the summer, but we are considering the Bill line by line today. As my hon. Friend outlined, his amendment has done the work on how to govern the process for the Minister. First, on designation, there must be an in-depth consultation and any issue must come before Parliament. If an issue is of such magnitude that it requires Government to say that they need to override a local plan, surely there has to be a proper process. After all, planning does not just suddenly occur. I was scratching my head about what would constitute a national emergency that required planning permission. The only thing I could think of—the Minister may correct me—would be a war, but then we would have separate legislation to address that. On Tuesday, the Minister himself struggled to articulate where the thresholds would be and exactly what would constitute such a situation.

I have been thinking further about how our planning process is devised and the importance of co-production within our planning process. Why would this national development management strategy override a process of local planning? There could be no reason. If we think about unpopular things that the Government want to force through, such as mining hydrocarbons, fracking and so on, they should not be happening, because our planet cannot sustain their use. The same applies to building road infrastructure, but then again there are processes and national policy statements that can be made for those things.

High Speed 2 or an airport are perhaps the only other examples. We cannot sustain more air travel because of the climate crisis, and HS2 had a national policy statement —again, it has had its own legislation and processes. I really cannot imagine what is in the Government’s mind that is of such magnitude that it should require the overriding of a local plan and the hopes and aspirations of our local communities. Certainly in my community, local people have not had their aspirations heard in the planning process, because we have not had a local plan. There has been imposition by developers, using the powers they have, and it has just run into conflict, gridlock and pain. I cannot see why a Government would want to excite that in a community.

I am sure the Minister will give serious consideration to this matter, if not today, then through the summer. Opposition Members have made it clear that these clauses are an unnecessary development, but I am sure the Minister will hear that point even louder from Government Members.

It is a pleasure to serve under your guidance today, Mr Hollobone. This proposal from the Government feels rather tin-eared, and the amendment—or something like it, at the very least—seems appropriate. It is good that the official Opposition have put forward a route that the Government could choose to go down.

It seems odd that there is not a worked-out process for properly scrutinising and consulting on national policy statements that could have huge ramifications for every part of this country. This is a very diverse country: we have four nations, and communities that are rural, urban and suburban. National planning policy could have many different ramifications on different communities.

I think of my own community, with 67 parish councils and the need for them to be involved and to understand the issues. Further north in Cumbria, we have the very live issue of Britain’s first new coalmine in 30 years potentially being given permission later this summer—we will wait and see about that. It will be hugely significant for the community it could impact directly, but it will also have a national impact. For us not to have a level of scrutiny and consultation for national plans—something that a local authority would be slaughtered for not doing with its own local plans—seems to be very wrong and, as I say, somewhat tin-eared.

It goes back to a theme that I have tried to develop throughout debates on this Bill, which is about trying to understand the motivation. It could be that the Government are just being tin-eared and have not thought this through properly. That is entirely possible—Governments do that. The question is, who is this for? Is this devolution? Is this empowering local communities? That is what the Government claim it is. Or is it just for the convenience of central Government? If there are national plans and a national planning framework allowing Government to take forward their central agenda without proper consultation of local communities—be they rural or urban or in any part of this country—that will meet with huge opposition, including in the constituencies of Opposition Members.

It is a pleasure and an honour, as ever, to serve under your chairmanship, Mr Hollobone. I thank the hon. Member for Greenwich and Woolwich for tabling this amendment. The national development management policies are an important change to the system, and I understand the desire to ensure that they are properly considered.

The amendment has three elements: consultation, parliamentary scrutiny and policy review. I will deal with each in turn. On consultation, the existing clause already imposes an obligation on the Secretary of State to ensure that such consultation and participation as are considered appropriate take place. The previous Secretary of State was clear in his comments to the Levelling Up, Housing and Communities Committee that consultation on the national development management policies will indeed be carried out. The consultation specified by the amendment is therefore unnecessary.

Moreover, we need to bear in mind the possibility that circumstances may occasionally arise in which the Government need to make urgent change. I heard what the hon. Member for York Central said earlier, and I would like to give her an example that became apparent during the pandemic of when we had to act quickly. Hon. Members will recall, during the first part of the pandemic, the significant issue with food supply. One of the decisions that was therefore made at a national level was to disapply planning conditions relating to the hours during which supermarkets could be served by delivery vehicles. Because of the way supply chains were at that point, it was extremely important to get food through to the stores. In those circumstances, it may not be feasible to do everything that the amendment seeks to do, for reasons that I hope she understands.

In relation to consultation, the Minister just said that it depends on what the Secretary of State thinks is appropriate. Is there anywhere else in our legislation where things are left to the whim of a particular Secretary of State in that way? I cannot believe that the Minister thinks that is an acceptable way to conduct planning.

I thank the hon. Member for her question. We need to look at what is being put forward today. Clearly, the passage of the Bill has some time to run, and we have to look at this issue in the context of the national planning policy prospectus that is being put out later this year so that hon. Members get a wider understanding, and I hope they will be able to respond to that.

I thank the Minister for giving way again. Surely the prospectus should come first, before we consider implementing this legislation. It seems like things are being done in a completely back-to-front way, and I do not understand why. This is not a good way to make legislation.

I understand what the hon. Member says, but clearly this process will take some time. There are other parts of the process that follow today’s proceedings and Committee stage. By the time we get to that point, I am sure hon. Members will have been able to see the national planning policy prospectus and understand it more fully.

I am grateful that the Minister was able to produce an example of where a national planning decision would override a local plan, but he talked about logistics, which does not come into the local planning process. That example was operational—it was not actually to do with planning. Can he drill down to say when a national development management policy would override a local plan?

Clearly, the example I gave follows from national policy and the conditions that can be placed on planning decisions. That necessity came forward when the Secretary of State had to take a view in what was, at the time, a national emergency.

Further to that point, is the Minister seriously saying that a logistical issue about the opening times of supermarkets is the type of policy that will be covered by an NDMP?

What I am explaining is an example of where powers need to be taken, sometimes at short notice, in the national interest.

To move on, let me turn to parliamentary scrutiny. I have listened to the debate with interest, and I appreciate the points that have been made. The existing provisions for scrutiny of national policy statements, on which I believe the amendment has been modelled, play a particular role, given the way that those statements provide a framework for decisions on nationally significant infrastructure projects, which are decided by Ministers.

National development management policies will serve a broader purpose and will sit alongside policies in locally produced plans as the starting points for considering the suitability of development proposals. They will carry forward the role that successive Governments have played since the 1940s in setting high-level national policy that influences plans and decisions. The sort of things that we envisage them covering are standard policies—for example, avoiding inappropriate development in a green belt and areas at significant risk of flooding or coastal erosion; protecting nationally important habitats and heritage, and assets such as listed buildings; and ensuring that access for pedestrians, cyclists and people with disabilities or reduced mobility is taken into account when assessing development proposals.

As I have said, we have committed to consulting on national development management policies, and this is the first step in the process. The prospectus, which we will publish shortly, will set out more of our initial thinking on the scope of the policies, and the principles for their production. I am sure that the hon. Member for Greenwich and Woolwich will read that document with interest when it comes out, and I hope that it will provide further reassurance on our commitment to transparency and full engagement as we develop the policies.

As the national development management policies will be public, parliamentarians and the public may still hold the Government to account, in the usual way, for the content of those policies. The nature of national development management policies differs from national policy statements, so we believe that the clause strikes the right balance.

We will continue to keep national policies under review by listening closely to colleagues, to the public and to the evidence presented to us, as Governments of all complexions do as a matter of course. It is not clear to me that the amendment would necessarily fit into that context. I have listened to the strength of feeling during the debate, and I hope that the national planning policy framework prospectus, when published, and my response to the three major issues that have been raised in discussing the amendment, will reassure Members. I will continue to reflect on the issues that have been raised, particularly in relation to responses to the prospectus. I hope that the hon. Gentleman will feel able to withdraw his amendment.

I am extremely disappointed by the Minister’s response. The hon. Member for Westmorland and Lonsdale was right to use the phrase “tin-eared”. That is what the Minister’s response was, and I hope he will reconsider.

The amendment and the clause go to the heart of the problem with the Bill. Is it a vehicle to empower communities and their representatives, or to override them when the Government of the day think that is the appropriate thing to do? Where the Government fall on that question is clear from the Minister’s answer. Let me reiterate that the level of scrutiny that we are asking for is not excessive or inappropriate; it is a minimum public consultation requirement in the way that currently applies to local planning policies, and the same level of parliamentary scrutiny as for designated national policy statements.

The Minister’s response was very telling. He said: “Well, the Secretary of State”—the previous Secretary of State now—“has committed to consultation.” That is all well and good, and I hope the prospectus will come in the summer, but it is not about that or about what the previous Secretary of State said; it is about what the Bill says. The Bill says that a Secretary of State needs to consult on an NDMPs if he or she considers it “appropriate”. If a Secretary of State in a future Labour Government brings forward an NDMP, does not consult on it, and uses it to override a local development plan in a constituency of one of the Members now on the Government side of this Committee, those Members would be the first to cry foul the use of such powers. The clause guarantees only that a Secretary of State needs to consult if he considers it appropriate.

On parliamentary scrutiny, the Minister said that NDMPs are different from national policy statements because they have a broader purpose. If they have a broader purpose, surely there is all the more need for basic parliamentary accountability and scrutiny, in the way that currently applies to such statements under the Planning Act 2008.

I am extremely disappointed by the Minister’s response, as he can tell. I hope that he will go back and reconsider this issue and those that we raised in the debate on clause 83, because we will certainly discuss these matters again, if not on Report in this place, then in the other place. I will not press the amendment to a vote, but I urge him to reconsider. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Clause 84 provides the statutory basis for national development management policies in England. As they will play an important part in the planning process, the clause puts a necessary safeguard in place: they must be designated by the Secretary of State so that their status is clear, they must relate to the development or use of land and, most importantly, they must be subject to appropriate consultation before they can have effect.

The clause is necessarily broad in scope so that national policies can address the various planning considerations that apply across the country, from basic policies for protecting the green belt to those for avoiding areas of high flood risk. That will free up local plans to focus on matters of local importance.

We intend to consult fully on the scope and content of these policies before they are first introduced to ensure we have heard a wide range of views before deciding what is best set out at a national level, and before deciding what the policies themselves will say. Alongside clauses 83 and 84, they will be instrumental in making it easier to prepare local plans that reflect communities’ priorities for their areas while providing a sound basis to address the general planning considerations that apply across the country. I therefore commend the clause to the Committee.

Question put and agreed to.

Clause 84 accordingly ordered to stand part of the Bill.

Clause 85

Contents of the spatial development strategy

I beg to move amendment 93, in clause 85, page 92, leave out lines 26 and 27.

This amendment would remove an additional legal test within London’s Spatial Development Strategy that could preclude the insertion of policies which contribute to the effective strategic planning of Greater London but would also apply to other urban areas or are not specific to Greater London.

With this it will be convenient to discuss the following:

Amendment 94, in clause 85, page 92, line 27, at end insert—

“(c) supporting policies within the Spatial Development Strategy that achieve objectives for the benefit of strategic planning of Greater London.”

This amendment would enable the Mayor of London can include policies in a Spatial Development Strategy that contribute to the effective strategic planning of Greater London.

Amendment 95, in clause 85, page 93, line 5, at end insert—

“(2DA) The determination of whether a matter is of strategic importance to more than one London borough for the purposes of subsection (2D) lies solely with the Mayor of London.”

This amendment is intended to remove ambiguity about whose opinion is relevant in relation to whether or not a matter is of strategic importance to more than one London borough.

Amendment 96, in clause 85, page 93, line 9, at end insert—

“(2F) The spatial development strategy must include statements dealing with the general spatial development aspects of—

(a) such of the other strategies prepared and published, or to be prepared and published, under the enactments mentioned in section 41(1) above as involve considerations of spatial development, and

(b) such of the Mayor of London’s other policies or proposals as involve such considerations, whether or not the strategy, policy or proposal relates to the development or use of land.”

This amendment would retain provisions relating to the Mayor of London’s Spatial Development Strategy which relate to the spatial development aspects of the other Mayoral strategies.

Amendment 97, in clause 85, page 93, leave out lines 13 to 19.

This amendment would remove inserted subsection (10), which would place constraints on the Mayor of London’s Spatial Development Strategy relating to national development management policies.

Amendment 91, in schedule 7, page 241, line 16, leave out “with respect to design”.

Amendment 92, in schedule 7, page 241, line 18, after “met” insert

“in support of plan-making or”.

Clauses 85 and 86 relate to the spatial development strategy in London. I hazard a guess that the subject is not likely to set Government Members’ pulses racing, but it is important none the less, and I feel duty bound to do it justice as the only Member present who represents our glorious capital city.

On the surface, clause 85 appears relatively innocuous. It would seem that it is simply a matter of bringing the London plan in line with other spatial development strategies and providing greater clarity on the matters that can and cannot be covered by a spatial development strategy. However, once one digs into the detail, as I have, it quickly becomes apparent that taken together with two proposed changes set out in schedule 7—proposed new section 15CC, on supplementary plans—it is far more insidious. It amounts, in effect, to the rolling back of London’s strategic planning powers in important ways.

Let me say a little at the outset about why curtailing the strategic planning powers that Greater London enjoys would be harmful. London’s devolved strategic planning powers have been a huge success story over the past two decades under successive mayoral administrations. Since the first draft London plan was published in 2002, successive plans have facilitated a step change in the planning of our country’s only global city. London has been able to lead the way in planning policy approaches in a wide range of areas, whether focused on tackling climate change, addressing biodiversity loss, improving fire safety, addressing poor air quality or increasing the supply of affordable housing and the pace of its delivery.

The results speak for themselves: since the creation of the Greater London Authority, annual net housing supply has doubled and new homes in London lead the country in design, quality and energy efficiency. Indeed, the co-ordinated strategic planning approach that London has adopted has been so successful that the Government are proposing, through this Bill, to allow the new combined county authorities essentially to adopt it.

Despite the tacit recognition of the success of London’s strategic planning powers that the provision of the new power to CCAs implies, clause 85 and parts of schedule 7 explicitly curtail their effective use by putting in place significant additional restrictions on the preparation of future iterations of the London plan. They do so in four ways: first, proposed new subsection (2A)(b) states that policies can be included in a future London plan only if they are designed to achieve objectives that relate to the

“particular characteristics or circumstances of Greater London”.

We believe that is unnecessarily restrictive. There are many objectives that the London plan should appropriately be working toward that are not specific to the characteristics or circumstances of London, whether that is climate change, biodiversity and green infrastructure, supporting town centres and high streets, or parking and suburban housing development.

The purpose of strategic planning in London is not to constrain itself purely to matters that are demonstrably only relevant to that city, but to provide a strong statutory framework for the constructive and co-ordinated planning of our capital. Our amendment 93 would remove the additional legal test, thereby allowing the inclusion of policies within a future London plan to achieve objectives that may not be solely applicable to our capital.

Secondly, proposed new subsection (2D)(b) states that policies can be included in the London plan only if they are strategically important to more than one London borough. It is not clear why that qualification is necessary, given what is set out in subsection (2D)(a), which precedes it, and it risks inhibiting strategic planning in relation to issues that are clearly of strategic importance but that fall within the boundaries of a single borough.

To use a case that I am familiar with in my constituency, the boundaries of the Maritime Greenwich world heritage site lie solely within the Royal Borough of Greenwich, but of course it is of strategic importance to London, just as the Charlton riverside opportunity area in my constituency is of strategic importance to London’s housing market. Our amendment 94 would resolve the problem by clarifying that it is for the Mayor of London to determine what is of strategic importance to more than one London borough.

Thirdly, clause 85(3) removes the link between London’s spatial development strategy and other mayoral strategies by replacing the relevant parts of section 334 of the Greater London Authority Act 1999. That is problematic because it would mean that the London plan is no longer required to set out spatial policy for those strategies, despite the fact that the planning system is an incredibly important means of delivering on a number of policy objectives, at least in so far as they relate to the built environment.

Let us consider health inequalities in London. The planning system clearly has the ability to promote and support public health measures through access to open space, sports facilities and a range of healthy food choices, including allotments. The London plan currently requires an assessment of the impacts of new development on health, as well as the mitigation of those impacts.

I also draw the Committee’s attention to London plan policies that deliver against the Mayor’s environment and transport strategies. The implementation of those strategies is profoundly affected by the built environment: from a building’s energy performance to prioritising brownfield sites with good transport accessibility and design that reduces air pollution and increases active travel.

We believe that the explicit duty that exists for the Mayor to address via the London plan the spatial elements of other mayoral strategies should remain so that strategic planning can continue to help secure positive change in the environmental, economic and social spheres, rather than leaving other mayoral strategies as nothing more than a wish list that cannot be effectively implemented. Our amendment 96 would restore the link between the two in the Bill.

Fourthly, although the Bill provides new powers for the creation of mayoral supplementary plans in London, the powers to produce them as set out in schedule 7 are far narrower than the powers provided to local authorities to produce their own. Line 16 on page 241 states that a supplementary plan produced by the Mayor

“may include requirements with respect to design”,

thereby excluding, for example, detailed guidance about non-design matters such as affordable housing.

Line 18 on the same page specifies that supplementary plans can be used only for guidance about how to determine a planning application, rather than about how to do plan making, thereby preventing a mayoral supplementary plan from providing advice to London boroughs in preparing their own local plans so that there is general conformity with the London plan. Our amendments 91 and 92 resolve those two issues.

London is as exposed as any other part of the country to the Government’s determination to give primacy to national planning policy through national development management policies, as set out in clauses 82 to 84, and it would be damaged by them in the same way if the Government determined to use NDMPs to impose inappropriate national policies on our capital city.

However, the additional ways in which the Bill curtails the effective use of London’s strategic planning powers by putting in place the significant additional restrictions I have set out will add further complexity to the plan-making process in our capital and impact on London’s ability to meet the future challenges it faces, whether in co-ordinating the delivery of housing or optimising investment in transport and other infrastructure.

I urge the Minister to think again about what is actually proposed in clause 85 and the parts of schedule 7 that I have referenced, and about the impact that those unnecessary restrictions will have on our capital, and to accept this group of amendments.

I am very concerned about this part of the Bill. If we ask people in England which part of our country has the most autonomy and sovereignty and is listened to the most, most of them will say London—and they would be broadly right. It is really concerning to any person in this country who cares about genuine devolution and the empowerment of local communities that the part of England with the most powers devolved to it is having many of those powers curtailed, qualified and restricted by the clause, and the amendments are important because they put a spotlight on that issue.

Some of the language around levelling up may in fact be divisive, because it is about setting ourselves against one another. Rural communities are the poorest and most needy in England, but there is much that binds us all together. We need to consider ourselves as a United Kingdom and to make common endeavour, but we can do that only if we trust one another, give communities genuine sovereignty and power, and trust them.

Again, there is a theme with the Bill: it is about levelling up and devolution in name, but in reality it is about a lack of trust in the local electorate, local communities and local leaders—in this case, the Mayor of London. Anybody in this country—in England at least—who is concerned about their autonomy, their sovereignty and the devolution they want for their community should be deeply concerned about this proposal and should stand in solidarity with communities in London, who seem to be having theirs curtailed in the Bill. That is the opposite of levelling up and the opposite of devolution, and it increasingly sounds not like devolution but like delegation.

Clause 85 reaffirms the vital role of the London plan in setting strategic policy for the capital. However, the London plan is intended, and was originally designed, to deal only with matters of strategic importance in London. Those are limits to which the London plan has not always strictly adhered, and it now often touches on matters that no one would consider as strategic in nature, but rather as instances of applying the strategy.

Let me give an example of where the Mayor of London has overstepped that strategic objective. Policy H16 in the London plan refers to laundry, bedding and linen services, which do not seem overly strategic. The inclusion of non-strategic matters means that the London plan is far lengthier and more detailed than it needs to be—the current London plan is over 500 pages long. Not only does that increase the time taken to produce it, but it makes it more complicated for the people of London to work out what policies apply in their area and how those interact.

One of our most important objectives in reforming the planning system is to give a distinct and clearly defined role to each part of the development plan. By clearly specifying that the London plan must cover matters of strategic importance to London, we are making the plan’s role and its relationship to individual local plans easier to understand.

The text that amendment 93 proposes to remove also underlines that policies should relate to the particular characteristics or circumstances of London. During the preparation of the London plan, there is nothing in the Bill that would prevent the Mayor of London from considering matters that affect London but relate to areas outside Greater London. However, I hope we can agree that the policies themselves should relate to the area for which the Mayor has jurisdiction. Likewise, on amendment 94, it seems entirely reasonable that any policy included at the level of the London plan should have more than a local impact. Otherwise, it would be properly a matter for the appropriate local planning authority’s local or supplementary plans.

On that subject, under the provisions in the Bill, the Mayor of London may prepare a supplementary plan relating to design matters for the whole of Greater London, and amendments 91 and 92 concern that new power. I agree entirely with the intention behind amendment 92, but the amendment is needed to achieve that aim, because the Mayor’s supplementary plans will be part of the development plan, and schedule 7 inserts proposed new sections 15CA(5)(g) and 15CC(8), which provide that, in preparing local and supplementary plans, London boroughs—as local planning authorities—must have regard to the development plan.

Turning to amendment 91, supplementary plans provide local planning authorities with the flexibility to bring forward policies for specific sites, or groups of sites, quickly—for example, in response to a new opportunity that had not been identified in the local plan, or to set design standards too detailed for the local plan itself. They are not intended to supplant the primacy of the local plan or to circumvent the fuller process to which local plans will be subject. Supplementary plans are therefore primarily intended as a tool for local planning authorities to set more granular policies. Allowing the Mayor to set such policies would be contrary to the strategic—rather than locally specific—role of the Mayor. The Mayor’s role should be in setting design standards on a London-wide basis.

That is what the Mayor’s supplementary plan power provides for, while not precluding the Mayor from producing guidance on particular planning matters—a tool that I understand he has made good use of. However, the Mayor of London does not allocate sites in the London plan. Therefore, the ability to produce site-specific supplementary plans is not necessary. In the same way, in the current system, the Mayor does not produce supplementary planning documents.

That leads on to the effect of amendment 97. The London plan has never been able to allocate specific sites. It will retain its ability to identify broad locations for development, which will inform site allocations in individual local plans produced by London boroughs. Local plan making is the correct level at which to allocate individual sites for development, as boroughs work closely with their communities to identify the most suitable sites.

The Mayor should therefore not be able to allocate sites for development through either a supplementary plan or the London plan itself. That preserves the defined roles for strategic planning relative to the local plan. For that reason, it would be inappropriate for the Mayor alone, as suggested by amendment 95, to determine what should constitute “strategic” across more than one borough. That is not to say that the Mayor’s opinion on what constitutes a strategic matter is not essential. However, it is legitimate for other organisations and people, including the boroughs and those examining the London plan, to take a view on the issue.

In addition—although I do not think we need to repeat our earlier debate on this point—we have included the requirement not to be inconsistent with, or to repeat, any national development management policy, to ensure that the whole planning system, from national to local level, is consistent. That allows those matters that are best dealt with at the national level to have status, without requiring repetition in the development plan, potentially at both the strategic and local plan level.

Finally, on amendment 96, we want to remove unnecessary obligations from plan makers. Removing the requirement for the Mayor to include statements on general spatial development aspects of their other strategies and policies does not bar the Mayor from so doing. It merely allows the Mayor to judge how far it would be helpful to do so. I hope we can agree that that is a more sensible position.

I am aware that I have spoken at some length on these points, but I hope that has been helpful for the Committee. In the light of what I have said, I hope that the hon. Member for Greenwich and Woolwich will feel able to withdraw the amendment.

I must confess that I am slightly disappointed with that answer. I appreciate that, in reading his remarks, the Minister has addressed each of the amendments in this group, but I do not think he has provided a convincing defence of why the Bill as it stands needs to be that way or of how restricting the Mayor’s powers in the way the Bill intends will not lead to harmful impacts of the kind I set out. I do not intend to press the amendments, but I very much hope that the Minister will continue to engage in dialogue with the Greater London Authority about these specific points. In one way or another, I think we will come back to these issues; if not, I expect that the noble Lords in the other place will do so. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

The Localism Act 2011 abolished regional spatial strategies, which acted as strategic plans for the regions of England. The exception was London, where the Mayor has retained the power to produce a spatial development strategy, better known as the London plan.

The London plan acts as the strategic plan for the capital, and local plans produced by London boroughs must be in general conformity with it. It sets out the planning framework for the capital, which includes the setting of a London-wide housing target broken down into individual housing targets for boroughs. It cannot allocate sites, but it can identify broad locations for development, the details of which are established in subsequent local plans. Local plans require closer consultation between plan makers and the people they represent, making them better placed to identify specific sites for development.

Since 2011, the power to produce an SDS has been extended through devolution deals to three mayoral combined authorities—Greater Manchester, the Liverpool city region and West of England—with the intention to give the equivalent power to West Yorkshire in the future. The Bill will expand the power to produce an SDS to all local planning authorities in England outside of Greater London and the mayoral combined authorities I have mentioned. Groups of authorities will be able to use the powers on a voluntary basis when they feel that they would benefit from such a plan.

Spatial development strategies are prepared by an elected Mayor or a combined authority to provide the strategic policies for the development and use of land in the area they cover. The Government wants the development plan system to be clear and efficient. By setting out clearly what a spatial development strategy can and cannot do, clause 85 will be instrumental in achieving a system that is easier to engage with.

Spatial development strategies enable a co-ordinated approach to planning across multiple local authorities and are an effective mechanism for resolving cross-boundary issues. The London plan has broadly been seen as a useful plan at that spatial scale, with each newly elected Mayor choosing to commence work on a new London plan shortly after entering office. It provides a clear and accountable mechanism for setting planning policy across London boroughs and for redistributing housing need across the city.

The London plan is intended to deal only with matters of strategic importance to London. However, that intention has not been strictly adhered to, as I mentioned earlier, and increasingly the London plan has included detailed development management policies on a range of issues that are not usually considered to be of a strategic nature. That increases the length and detail of the plan and the amount of time taken to produce it. It also means that the London plan encroaches on aspects of policy that should be dealt with at either local plan level or national level, which creates overlap between several types of plans and makes plans longer than they need to be.

The amendments made by clause 85 will ensure that the distinction between spatial development strategies and local plans remains clear. The clause will amend the provisions of section 334 of the Greater London Authority Act 1999 to update the permissible content of a spatial development strategy and will ensure that the purpose and scope of this type of development plan is clear.

In particular, at proposed new subsection (9), it is clear that a spatial development strategy must not be site specific, and nor can it be inconsistent with or repeat national policy. Proposed new subsection (9) also prohibits spatial development strategies from identifying particular sites, preserving that level of detail for the local plan, where such specificity is more appropriate. Unfortunately, only one member of this Committee is from London, but I am sure that the hon. Member for Greenwich and Woolwich would accept that his particular local authority knows local people on a more granular level than the Mayor does, because the Mayor works at a strategic level. Therefore it is a far better principle for the local authority to identify sites and make decisions on them.

The amendments made by the clause will mark a change to the current scope of the London plan and mean that it needs to be consistent with national development management policies. Proposed new subsection (2D)(b) introduces a new and additional requirement for strategic matters to be of strategic importance to more than one London borough. The clause deliberately uses the same wording as proposed new section 15AA of the Planning and Compulsory Purchase Act 2004, as inserted by schedule 7 to the Bill, which applies to the content of a joint spatial development strategy. The strategy can be prepared by partnerships of other local planning authorities around the country outside of combined authority areas, meaning that a spatial development strategy will have the same effect whichever system it is produced under. Again, that will help to clarify and demystify the planning system.

London plan policies would, in future, need to avoid conflict with national development management policies, which the Bill empowers the Secretary of State to prepare, and to be of strategic importance to more than one borough. The Levelling-up and Regeneration Bill will not affect how the Mayor consults on or gains approval for the London plan or the role of either the Mayor or the Secretary of State in relation to it.

Question put and agreed to.

Clause 85 accordingly ordered to stand part of the Bill.

Clause 86 ordered to stand part of the Bill.

Clause 87

Plan making

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

The clause introduces schedule 7, which will replace the majority of part 2 of the Planning and Compulsory Purchase Act 2004, namely sections 15 to 37. Schedule 7 contains new provisions relating to different elements of the development plan—specifically joint spatial development strategies, local plans, minerals and waste plans, and supplementary plans. The details of those provisions will be debated throughout these sessions.

In summary, the proposed changes will ensure that plans are faster for local authorities to produce, easier for communities to navigate, engage with and understand, and more focused on things that matter locally. The reforms will support local planning authorities to produce local plans and keep them up to date—something that has proven challenging for many under the existing system. Local planning authorities and communities invest considerable time and effort in preparing local plans, but many plans take too long to produce. The average plan takes seven years, and plans are frequently out of date and can be difficult to understand.

Decisions on planning applications are meant to be plan-led, but in practice local plans cannot always be relied on for guiding decisions, especially when they are not up to date or do not set clear standards for development to follow. To make the system more responsive and flexible, local authorities will be given new powers to collaborate voluntarily with each other on joint spatial development strategies. They will also be able to introduce new policy at pace through supplementary plans.

There are two specific elements of the current plan-making system that the Government are not looking to retain. The first is the requirement for local planning authorities to produce a statement of community involvement. Such statements do little to drive meaningful dialogue with communities during plan production. Instead, the Secretary of State will produce guidance setting out much clearer expectations around how local planning authorities should engage people in the planning process.

Secondly, we do not propose to retain the duty to co-operate. The duty has been widely criticised as inflexible and burdensome, causing significant delays to the production of local plans. It will be replaced with a more flexible policy-based approach to addressing strategic issues that cut across authorities. That will be set out in a revised national planning policy framework in due course.

Just to check that I understood the Minister correctly, is he saying that the new flexible alignment test, which is to follow in the Bill, will come in only at the point that the NPPF is finalised in 2025? Is he saying that that is when we should expect this new test to appear?

Clearly we will need to ensure that the new test is workable. We will have to consider that very carefully, and we will no doubt consult on it. I will need to come back to the hon. Gentleman about the timeframe in order to provide him with that information. However, given the important changes that this clause enables us to introduce, I commend it to the Committee.

Question put and agreed to.

Clause 87 accordingly ordered to stand part of the Bill.

Schedule 7

Plan making

I beg to move amendment 112, in schedule 7, page 224, line 14, after “authorities” insert “or county councils”.

This amendment and amendment 113 would enable county councils to prepare joint spatial development plans.

With this it will be convenient to discuss the following:

Amendment 113, in schedule 7, page 224, line 16, after “authority” insert “or county council”.

See explanatory statement for Amendment 112.

Amendment 103, in schedule 7, page 224, leave out lines 19 to 22.

This amendment would leave out inserted section 15A(2)(b) and make combined authorities eligible for a joint spatial development strategy.

Amendment 102 in schedule 7, page 233, line 41, at end insert—

15AJ Duty to co-operate in absence of joint spatial development strategy

(1) This section applies in any area in which a joint spatial development strategy is not operative.

(2) Each person who is—

(a) a local planning authority,

(b) a county council in England that is not a local planning authority, or

(c) a body, or other person, that is prescribed or of a prescribed description, must co-operate with every other person who is within paragraph (a), (b) or (c) or subsection (10) in maximising the effectiveness with which activities within subsection (3) are undertaken.

(3) In particular, the duty imposed on a person by subsection (2) requires the person—

(a) to engage constructively, actively and on an ongoing basis in any process by means of which activities within subsection (4) are undertaken, and

(b) to have regard to activities of a person within subsection (10) so far as they are relevant to activities within subsection (4).

(4) The activities within this subsection are—

(a) the preparation of a joint spatial development strategy,

(b) the preparation of development plan documents,

(c) the preparation of other local development documents,

(d) the preparation of marine plans under the Marine and Coastal Access Act 2009 for the English inshore region, the English offshore region or any part of either of those regions,

(e) activities that can reasonably be considered to prepare the way for activities within any of paragraphs (a) to (d) that are, or could be, contemplated, and

(f) activities that support activities within any of paragraphs (a) to (d), so far as relating to a strategic matter.

(5) For the purposes of subsection (4), each of the following is a ‘strategic matter’—

(a) sustainable development or use of land that has or would have a significant impact on at least two planning areas, including (in particular) sustainable development or use of land for or in connection with infrastructure that is strategic and has or would have a significant impact on at least two planning areas, and

(b) sustainable development or use of land in a two-tier area if the development or use—

(i) is a county matter, or

(ii) has or would have a significant impact on a county matter.

(6) In subsection (5)—

‘county matter’ has the meaning given by paragraph 1 of Schedule 1 to the principal Act (ignoring sub-paragraph 1(1)(i)),

‘planning area’ means—

(a) the area of—

(i) a district council (including a metropolitan district council),

(ii) a London borough council, or

(iii) a county council in England for an area for which there is no district council,

but only so far as that area is neither in a National Park nor in the Broads,

(b) a National Park,

(c) the Broads,

(d) the English inshore region, or

(e) the English offshore region, and

‘two-tier area’ means an area—

(a) for which there is a county council and a district council, but

(b) which is not in a National Park.

(7) The engagement required of a person by subsection (3)(a) includes, in particular—

(a) considering whether to consult on and prepare, and enter into and publish, agreements on joint approaches to the undertaking of activities within subsection (3), and

(b) if the person is a local planning authority, considering whether to agree under section 28 to prepare joint local development documents.

(8) A person subject to the duty under subsection (2) must have regard to any guidance given by the Secretary of State about how the duty is to be complied with.

(9) A person, or description of persons, may be prescribed for the purposes of subsection (2)(c) only if the person, or persons of that description, exercise functions for the purposes of an enactment.

(10) A person is within this subsection if the person is a body, or other person, that is prescribed or of a prescribed description.

(11) In this section—

‘the English inshore region’ and ‘the English offshore region’ have the same meaning as in the Marine and Coastal Access Act 2009, and

‘land’ includes the waters within those regions and the bed and subsoil of those waters.”

This amendment would require local authorities and other public bodies to co-operate on local planning measures in the absence of an operative joint spatial development strategy on the lines of section 33A of the Planning and Compulsory Purchase Act 2004. This duty would encompass co-operation by all relevant local authorities on preparation for such a strategy.

Schedule 7 is 40 pages long and it contains a very wide range of provisions on plan making, many of which are complex. The amendments in this group relate to the provisions concerning joint spatial development strategies.

We support the new power in proposed new section 15A that allows two or more local planning authorities to work together to create one of these strategies. If done well, we believe they that will provide a high-level investment framework, more choice of where to direct development, greater opportunity to deliver sustainable growth and a means of translating national policy priorities, from levelling up to net zero, on a place-based basis.

In our view, joint spatial development strategies are likely to provide a much more attractive and deliverable strategic planning model than provided for by existing joint strategic plans, which have proved problematic, given that they are prepared and tested by means of an arrangement essentially designed for detailed local plans. Allowing groups of authorities to come together and collaborate to prepare and test strategic planning policies in relation to matters that cross local boundaries, whether that be infrastructure or affordable housing, by means of a joint spatial development strategy, is clearly a good thing, and it is crucial that more authorities do that.

At the end of the day, we cannot ignore the economic, social and environmental geography of England if we want to meet the challenges our nation faces and secure its long-term prosperity. To take just one example of why more cross-boundary strategic planning is essential, the Environment Agency’s climate change allowances analysis estimates that 32 district authorities, from the Humber to the Thames, are at risk of up to 1.5 metre sea level rises over the next 80 years. Clearly, no one district authority can deal with an existential threat of that magnitude on its own, so we must have better frameworks for enabling co-operation on that and other types of cross-boundary challenge, with effective accountability baked into them. However, we believe that there are three distinct weaknesses with the concept of joint spatial development strategies, as set out in proposed new sections 15A to 15AI of schedule 7, and the four amendments seek to address them.

First, and I am happy to be corrected by the Minister if this is not the case, given the complicated patchwork of powers resulting from devolution, it is our understanding that joint spatial development strategies cannot be prepared where there is an existing mayoral combined authority or combined authority, even in instances where an MCA or CA does not currently have the powers to prepare a spatial development strategy, as is the case with the North East Combined Authority, the North of Tyne Combined Authority, the Tees Valley Combined Authority and the West Midlands Combined Authority, or has chosen not to enact the existing powers, as is the case with the South Yorkshire Mayoral Combined Authority and the Cambridgeshire and Peterborough Combined Authority. If that is the case, it would appear effectively to rule out swathes of urban England that the Government rightly consider to be priority areas for levelling up.

We believe it would be sensible to enable and encourage existing mayoral combined authorities and combined authorities to come together to create joint spatial development strategies. If the Government feel that option is too expansive, they could consider instead enabling MCAs and CAs to create joint spatial development strategies, but prohibit from doing so those that have existing powers to develop them. I concede that amendment 103 is not the most elegantly drafted amendment, but it is designed to probe the Government on that point. It would remove proposed new section 15A(2)(b) from page 224, thereby rendering combined authorities eligible for the new power to create a joint spatial development strategy.

Secondly, the Bill provides for joint spatial development strategies to be solely the responsibility of local planning authorities. That means that in two-tier areas, which as we have discussed in previous debates cover 80% of England, county councils will have no statutory duty to support the preparation of a spatial development strategy and will play no role in decision making relating to them. That strikes us as odd given that county councils have responsibilities in a range of significant areas that impact on spatial decisions and priorities, including statutory responsibilities for transport and other strategic infrastructure. They are lead flood, public health and minerals and waste authorities, and they have responsibility for the new local nature recovery strategies.

We believe that excluding county councils from involvement in joint spatial development strategies is problematic in terms of who owns the strategies and of accountability and the provision of resources to sustain them. We believe that there is a case for giving county councils a voice, alongside local planning authorities, when it comes to preparing a joint spatial development strategy—something that could be achieved with some small changes to schedule 7 to make it clear that all relevant authorities within a given area, whether they are district or unitary authorities or county councils, have responsibility for and should be involved in preparing one of these strategies. Amendments 112 and 113 would make that possible by specifying that county councils also have access to the new powers, allowing them to participate in the creation of one of these strategies.

Thirdly, and most importantly, as the Minister said, the Bill specifies that joint spatial development strategies are entirely voluntary. They therefore rely on the willingness of local planning authorities to agree to work together to tackle major cross-boundary challenges in relation to issues such as the spatial distribution of development or the provision of strategic infrastructure. Not only that, but schedule 7 replaces section 33A of the Planning and Compulsory Purchase Act 2004, thereby abolishing the duty to co-operate, as the Minister said.

As such, if the schedule is not amended, in a given geographic area where authorities do not come together to use the new powers provided by the Bill to create a joint spatial development strategy there will be no statutory arrangement to encourage them to work together on strategic planning other than the new flexible alignment test that is to be set out in national policy in due course. Yet as we consider the clause, we have absolutely no idea what that flexible alignment test will look like and how it will apply. The Minister said he will write to me with more details, and I very much appreciate that. At the moment, we are legislating blindfolded as to how the flexible alignment test will operate.

Even once the Government’s flexible alignment test has been set out, however, it will not provide a statutory arrangement for strategic planning in the way the duty to co-operate does. We fully recognise that the duty to co-operate has not been uniformly successful—I put that as diplomatically as I can. Although there are examples of it making a positive difference, such as the joint work being done by the East Riding of Yorkshire Council and Hull City Council, in the main it has not been effective. The West of England’s recent experience is perhaps the most well-publicised example of its failings. We would argue that that is because it was a mechanism introduced primarily to prevent non-strategic planning in the context of local plans and the distribution of new housing following the scrapping of regional spatial strategies and regional development agencies, rather than one designed to foster the kind of deep strategic co-operation that enables areas to meet their cross-border challenges and the sharing of unmet local need to adjacent authorities.

In the absence of any provision for democratic and accountable regional and sub-regional planning, however, the duty to co-operate at least provides a minimum standard for cross-border strategic planning. By scrapping it and determining to replace it with only a discretionary new power, our fear is that the Bill risks resulting in even less cross-border strategic planning co-operation, because the incentive structure is not right. That flaw in the Bill could be addressed in a number of ways. The Royal Town Planning Institute has suggested various ways of incentivising authorities to participate in new joint spatial development strategies, whether that is by integrating them with devolution deals or providing tangible rewards such as funding or infrastructure provision.

Amendment 102 merely probes the Government on the issue by coming at the problem from the other way and reinserting the duty to co-operate in the Bill, ensuring that it would continue to apply to any authorities that determined not to voluntarily enter into a joint spatial development strategy. In that way, it seeks to provide a clear incentive for authorities to use the new power provided for by proposed new section 15A, but ensures that if they do not, there is not a complete absence of any statutory arrangement designed to foster cross-border strategic planning.

I trust that the Minister understands the points that I have made. I hope that in responding to these four amendments, he will indicate whether the Government will consider making combined authorities eligible for the new power, whether they will allow all tiers of authorities in a given area to participate in the creation of joint spatial development strategies and whether they will give some consideration to how best authorities might be incentivised to make use of the new power to create them.

This is an important part of the Bill. I am comfortable with much of the direction that the Government seek to go in, but if we are to offer the power to develop joint spatial development strategies, it should be to everybody. I will make particular reference to national parks in England and the duty to consult with them.

It is worth bearing in mind that national parks are quasi-local authorities. In many ways, they have the functions of a local authority, particularly when it comes to planning and some other associated issues. They do not have council tax-raising powers and they are not directly elected in any shape or form in England or Wales. In Scotland, there is an element of direct election to the national parks.

I will make two suggestions. First, the needs of national parks and areas of outstanding natural beauty are significant. They are parts of the country that we have collectively decided are so important that they need to be protected for environmental reasons, to provide education and enlightenment about our heritage and our culture, and to protect the communities within them. I am especially concerned about that latter point.

In national parks, decisions are made about housing, planning and development that have a huge impact on the lives of the people who live within them. The Lake District national park has between 40,000 and 50,000 full-time residents, a not inconsiderable number of people whose lives are affected by an unelected authority. By the way, the national parks do a great job—I have a lot of time and praise for what the Lake District national park and the Yorkshire Dales national park in my constituency do—but it is not true to say that they make their decisions entirely democratically.

When we are consulting and imposing a duty to consult, we must have a duty to consult the national parks. They must not be considered things to be overlooked, and communities must not be overlooked. We need to remember that decisions made about affordable housing and allowing farmers to do something on their farms that might enable them to diversify and to provide a home for agricultural workers, or a home for a farmer to retire into so that a young farmer can come and take their place, are often decided by people who do not live in the national park and who are not elected by the local community.

It would be interesting if the Minister could reflect on the extent to which the Government might consider learning from the Scottish example, whereby a number of members of national park authorities are directly elected. When we place a duty to consult, which means that we bring in the national parks, we should consult people who are there representatively, who are democratically elected and who are there to speak on behalf of the community. If we do not do that, the national parks will continue to be considered simply places for people to visit, not places for people to live. It is essential that we consider the living, vibrant communities of our national parks, as well as the fact that they are huge assets for the nation as a whole.

Although I understand the reasons for the amendments, our intention is for the reformed planning system to be district-led. As we have discussed previously, we do not want to see planning or any other powers being drawn upwards as a result of our reforms. As such, joint spatial development strategies need to be driven by the authorities closest to their communities.

We agree that county councils should play an important role in the plan-making process. They will have significant influence over the development of a joint spatial development strategy, and we envisage that they will be closely involved with its day-to-day production. To make sure that happens, we are giving them the formal status of statutory consultee so that they can bring their experience and expertise in a range of issues, particularly highways, transport, flood mitigation, education and the rules on waste, to the creation of a joint spatial development strategy. Planning inspectors examining the joint spatial development strategy will want to see evidence of work on those key issues and to make sure that any views expressed by the county council have been properly taken into consideration.

The approach that we are proposing strikes a balance between ensuring that joint spatial development strategies are developed at the right level and ensuring that the views and expertise of county councils are part of the process. Likewise, in areas with an elected Mayor, we believe it is vital that the Mayor is formally involved in the production of a spatial development strategy, in order to provide clear and accountable leadership for it. That is why combined authorities should not be eligible to produce a joint spatial development strategy. In such cases, the Mayor, with the support of all the member authorities, can approach the Government to ask for spatial development strategy powers to be conferred on them as part of their devolution deal.

I hope that was the response that the hon. Member for Greenwich and Woolwich was looking for. His amendments seem to view spatial development strategies as a co-ordinating layer in the planning system. Amendment 102 seeks to resuscitate the duty to co-operate, which is widely agreed—most Conservative Members would agree, at least—to have been an ineffective mechanism, criticised as inflexible, bureaucratic and slow. That is why the Bill abolishes it. We can all agree that it is vital for local planning authorities to work together to make sure that cross-boundary issues are properly addressed. We expect them to plan for, and deliver, the housing and infrastructure our communities need. The planning system provides a number of mechanisms to assist them in doing so to which we are adding.

We intend to replace the duty with more flexible policy within the revised national planning policy framework, upon which we will consult. This will enable local planning authorities to address any issues of alignment during the preparation of a plan. At present, if an authority fails the duty its local plan must be withdrawn. The Bill also introduces a new requirement to assist with plan making, which we will consider more fully in due course. That will ensure the involvement of those who are vital to production of plans, including the delivery and planning of infrastructure. As such, joint spatial development strategies should not be seen as a co-ordinating function, replacing the duty to co-operate. I hope that the hon. Member for Greenwich and Woolwich will agree to not to press the amendments to a vote.

I am grateful to the Minister for that response. On the issue of mayoral combined authorities and combined authorities, I cannot say that I am entirely convinced. However, I note the detailed response he gave me to the amendment, and I will give it further consideration. On the issue of county councils, the Minister says that they will be closely involved. I remain concerned that not giving them equality of status will be harmful. I am aware that the Department is concerned that if we do not get county councils to bring resources to the table for the new joint spatial development strategies, it may have effects that the Government do not want.

On the issue of the duty to co-operate and the voluntary nature of those new powers, I remain concerned about what happens and how that impacts on the Government’s wider policy objectives in areas where authorities do not make use of the power when we have removed the only statutory arrangement to enable them to co-operate. I urge the Minister to go away and give that some thought. If the Minister is not comfortable reintroducing the duty for those who have not taken up those powers, will he at least think again about whether the incentive structure might be tweaked to ensure that the majority of areas make use of the powers? I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Ordered, That further consideration be now adjourned. —(Gareth Johnson.)

Adjourned till this day at Two o’clock

Levelling-up and Regeneration Bill (Fifteenth sitting)

The Committee consisted of the following Members:

Chairs: Sir Mark Hendrick, Mr Philip Hollobone, † Mrs Sheryll Murray, Ian Paisley

† Atherton, Sarah (Wrexham) (Con)

† Benton, Scott (Blackpool South) (Con)

† Farron, Tim (Westmorland and Lonsdale) (LD)

Fletcher, Colleen (Coventry North East) (Lab)

Gibson, Patricia (North Ayrshire and Arran) (SNP)

Henry, Darren (Broxtowe) (Con)

† Johnson, Gareth (Dartford) (Con)

† Jones, Mr Marcus (Minister of State, Department for Levelling Up, Housing and Communities)

† Lewell-Buck, Mrs Emma (South Shields) (Lab)

† Maskell, Rachael (York Central) (Lab/Co-op)

† Moore, Robbie (Keighley) (Con)

† Mortimer, Jill (Hartlepool) (Con)

† Nici, Lia (Parliamentary Under-Secretary of State for Levelling Up, Housing and Communities)

† Norris, Alex (Nottingham North) (Lab/Co-op)

† Pennycook, Matthew (Greenwich and Woolwich) (Lab)

† Smith, Greg (Buckingham) (Con)

† Vickers, Matt (Stockton South) (Con)

Bethan Harding, Adam Mellows-Facer, Committee Clerks

† attended the Committee

Public Bill Committee

Thursday 14 July 2022

(Afternoon)

[Mrs Sheryll Murray in the Chair]

Levelling-up and Regeneration Bill

Because it is so hot, I am happy for Members to remove their jackets, if they so wish.

Schedule 7

Plan making

I beg to move amendment 121, in schedule 7, page 227, line 15, at end insert—

“(e) other community organisations representing members of that community”

This amendment would extend the group of determining bodies to include community groups.

It is a pleasure to see you in the Chair, Mrs Murray. Given that planning has to be about our local communities, I find it astounding how little agency communities, community groups and residents have in the process. As we heard this morning, it seems that their voices will be diminished by the Bill, rather than expanded. Therefore, I believe that my amendment would help give communities some agency within the planning process.

The Opposition really value civil society, and we value individual residents and their different views. We value businesses and our community groups, and I believe that their knowledge and passion for the local area is irreplaceable. They know the challenges, the investment that is needed, and the people. They should be the drivers of development, and they should be seen as central participants in any planning process or development. The amendment is designed to ensure that copies of reports are received by local communities, whose voices seem diminished in the Bill, because Labour wants to amplify the voices of the people most affected by planning.

In my constituency, there are just too many groups to mention. However, if we are looking at the planning process for transport, I think about the York Bus Forum, Walk York and the York Cycle Campaign, which provide the best analysis of the current and future transport needs of our city. York Civic Trust has just undertaken a piece of deliberative democracy to establish a future transport strategy, and it would want to receive a report in order to reflect on the findings and to ensure that it can fully participate in the planning process.

In York, we have a city full of historians and archaeologists who understand the value of place making; we have a university full of housing specialists; and we have York Central Co-Owned, or YoCo, which has been engaging residents in dialogue on future developments. York Disability Rights Forum can highlight issues of access. Our local enterprise partnership, universities and colleges, and business partners are working on York’s future economy. They, too, would want to be engaged in the planning process, yet community groups seem so absent and do not even receive reports of strategies in order to be able to take planning forward and to be part of the consultation on the future of what they spend 24 hours a day working for.

We have resident groups that are actively looking at planning. We all have such groups in our constituencies, and I am sure that all hon. Members will recognise their strength. We are proud of them because of their dedication and attention to detail, and the inclusion of the community is urgently needed in the planning and consultation process. My amendment would build on that expectation and stop communities being locked out of planning, because our planning system is all the poorer without them. I will shortly go on to explain why their prominence must change but, for now, I believe that the first step is to involve communities in consultations by sending over copies of strategies, which is something that the Minister should not block.

If we have such expertise in our communities, let us bring it into the heart of the planning process so that we get the very best housing, economic space and environment, and so that the people who know their area best—the local residents and other stakeholders—have greater agency in planning processes. I have tabled a number of amendments to stimulate the Government into working through how residents can have a greater say over the future of their communities.

York Central is a classic example. Right from the start of the process, the community have been told that they will have a voice in the project at the next stage. As we go through each stage and are told that their time will come, my conclusion is that they may get to choose the colour of the spring bulbs, but nothing significant. At every step of the process there is no opportunity for real community engagement. The promised voice never comes. Residents have organised into community groups with the hope that their collective voice will be heard, yet it is not.

Whether for York Central or the York local plan, the very people who should have the greatest voice have the least. In both scenarios, political expediency of the ruling council parties has placed political self-interest over the interests of the city. In York Central, the partners’ agenda is to secure the opening of the National Railway Museum by 2025—we all understand the importance of that. Network Rail getting a capital receipt has further blocked and locked out local people’s voices. The contempt is staggering.

The Minister would weep at the conduct of his own party, not to mention the Lib Dems and Greens, in the political process of planning in York. I will talk more about the solution in my next set of amendments. I urge Government to think more about the brilliance that will come from more community inclusion in the consultation processes, engaging our community groups by ensuring that they are included in the information and are sent a copy of the strategy. Surely that is the first stage.

It is a pleasure, as ever, to serve under your chairmanship, Mrs Murray. I congratulate my hon. Friend the Member for York Central on this sensible amendment, which I am very supportive of. It simply specifies, as she so clearly articulated, that local community groups be included in the list of bodies that are sent a copy of any joint spatial development strategy adopted.

The Government have extolled the virtues of this legislation in part on the basis that it will demonstrably improve local engagement in the planning process. It surely follows that Ministers would welcome the engagement of community organisations when it comes to the new strategies that schedule 7 provides for. Given that all the amendment does is to ensure that a copy of any such strategy created and adopted is sent to the representative community organisations, I cannot for the life of me think of a convincing reason why the Government would not accept it.

It is a pleasure to serve under your guidance, Mrs Murray. I am also keen to support the sentiment behind the amendment tabled by the hon. Member for York Central. Confidence in the planning process is at an all-time low. In any of the constituencies of right hon. and hon. Members, confidence in communities in the planning process will not be great. In mine, land is of such enormous value around national parks and areas of outstanding natural beauty.

To have an amendment to the Bill that allows us to formalise a greater level of consultation and involvement of local communities seems very wise. If we can get the consent of local communities and have communities shape how they are developed in the years to come, the chance of people having confidence in the decision-making process and local democracy of the planning process is that much higher.

I am very lucky to have a constituency where every square inch is parished—there is not a single part of my community without a parish council. We have a default consultee on behalf of the community in every single town, village and valley in Westmorland and Lonsdale, and throughout much of the rest of Cumbria as well. There are community groups that ought to be formally involved in that process, so that the right decisions are made. People feel so frustrated.

In our community, we are the opposite: we want houses to be built. We see the decimation of our local communities—I can talk elsewhere about the evaporation of the housing market to second home owners and holiday lets. We desperately need homes that are affordable and available for local people. We do not get people saying, “Not in my backyard”; they are saying, “In my backyard now.” But we want houses that are useful to us: affordable, social rented and guaranteed for a local working population and those who are retired.

People are frustrated by a lack of adequate provision when it comes to drainage, flood prevention, sewerage, school places—all those sorts of things. If the community were properly involved, it would give its consent and approval to schemes that would otherwise get opposition.

We also see an imbalance in the process—the developer can appeal and the community cannot—which adds to the general sense that planning is a process by which things happen to communities, not by which communities decide what happens to them. The sentiments behind this amendment are good, and I really hope the Government will take it into account.

It is an absolute pleasure to serve under your chairmanship, Mrs Murray. Although I understand the reasons for the amendment, the list of bodies in proposed new section 15AB(3), to which participating authorities should consider sending a draft joint spatial development strategy, is already comprehensive and can reasonably be assumed to include most community organisations. That includes voluntary groups, bodies representing religious groups and bodies representing the interests of racial, ethnic and national groups. However, it is not exhaustive, and authorities are free to send drafts to whichever organisations they feel necessary.

Our approach strikes the right balance between ensuring wide consultation while not putting unreasonable burdens on participating authorities and making the process unnecessarily onerous. I hope that, with those reassurances, the hon. Member for York Central will withdraw her amendment.

I appreciate the debate that we have had on amendment 121. The parish system is incredibly good at engaging people because it is so local. The hon. Member for Westmorland and Lonsdale highlighted its establishment in the rural environment, but it is less prevalent in more urban environments, so we need to look at how to encourage the growth of parish councils across the country. They can be of real value and can get people to engage in their communities. Indeed, they are a first step for many in politics, as they are a less political environment in which to make decisions about their local community. There is some real strength in that. We will talk about neighbourhood plans, and it is important that we look at their inclusion as we work through the Bill.

I thank my hon. Friend the Member for Greenwich and Woolwich for his comments about the importance of putting people at the heart of planning; they often seem very much at the periphery. I looked very carefully at the Bill before drafting the amendment, and there is a bit of a vacuum in it, so it could be strengthened. Later this afternoon I will talk a little more about the importance of agency and voice, because they are absent.

I hear what the Minister says about the other organisations that are included, and his comments are helpful. If community groups feel excluded from the process, the Minister’s words highlighted that the clauses do not exclude them. Therefore, if they are unable to get hold of a copy of a report, I am sure those words will be very valuable in raising a challenge in the planning system to ensure that people get access to data. I am happy to withdraw the amendment, but I will be returning to the scene very shortly. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment 88, in schedule 7, page 228, leave out line 5.

This amendment, along with Amendment 89, would explicitly ensure that people would have a right to be heard at an examination in public in relation to the Joint Spatial Development Plan part of the development plan.

With this it will be convenient to discuss the following:

Amendment 89, in schedule 7, page 228, line 9, at end insert—

“(8) Any person who makes representations in relation to the strategy must (if that person so requests) be invited to appear before and be heard by the examiner.”

See explanatory statement for Amendment 88.

Amendment 90, in schedule 7, page 246, line 29, leave out lines 29 and 30.

This amendment would prevent the general rule for hearings for supplementary plans taking the form of written representations and would instead enable the examiner to determine the form of the examination.

As I mentioned this morning, this is an incredibly technical schedule. It covers measures as diverse as powers to intervene in local plan making, a duty to prepare local design codes, neighbourhood priority statements and many other things. The three amendments relate to the important issue of public participation in the two new constituent parts of local development plans that the schedule introduces—namely, joint spatial development strategies, which we have already discussed; and supplementary plans.

It depends whether a local planning authority is in Greater London or subject to other devolutions deals, but in the main it is local and neighbourhood plans that presently constitute the development plan for most parts of England. Clause 82(3) expands the list of what can be included in a development plan to include spatial development strategies and supplementary plans, both of which will have the same legal status as a development plan in decision making, ironically taking us back to a situation where development plans are comprised of a suite of documents, not unlike what was introduced in the 2004 reforms and scrapped in 2011 on the basis that it was all too complicated.

There are obvious cost implications of Planning Inspectorate examinations, but in general terms we do not take issue with the creation of these two new documents, which will respectively provide an opportunity for multiple local planning authorities to achieve joint strategic objectives and for individual planning authorities to produce documents concerning site-specific needs or opportunities that have a clear weight and status in the way that supplementary planning documents currently do not.

However, when it comes to these two new documents, which I repeat will have the same legal status as a development plan in decision making, schedule 7 does not provide an automatic right for communities to be heard in the way they must be in relation to local and neighbourhood plans. In relation to joint spatial development strategies, new section 15AC in schedule 7 explicitly denies the right of residents to be heard, subsection 6 specifying:

“No person is to have the right to be heard at an examination in public”.

In relation to supplementary plans, new section 15DB in schedule 7 prescribes that “the general rule” is that submissions to independent examination

“take the form of written representations.”

Objecting to the respective denial and qualification of the automatic right for communities to be heard in relation to these two new documents may seem like a relatively trivial matter. After all, how many people are ever likely to attend a public examination to comment on a joint spatial development strategy or to press for a chance to share their views in person about a supplementary plan at an independent examination? But there is an important principle at stake here.

There are very few civil rights afforded to members of the public within the English planning system. For example, there is no legal right to be heard in relation to individual planning applications and appeal rights are only available to applicants as opposed to objectors. Virtually the only right that members of the public have within the system is that of objecting to and subsequently being heard in person at the examination of a local development plan.

The exercise of that right is not just a theoretical good. It has tangible benefits in terms of good plan making being regularly utilised effectively in relation to local plans to challenge the quality of evidence submitted in support of them, to question witnesses, to allow for the introduction of local knowledge, and to gauge the level of community support or opposition for specific policies within a proposed plan.

As I have mentioned, the Bill is explicit that new joint spatial development strategies and supplementary plans are to have the same weight and legal power over local decision making as the local plan. As such, they will become a core component of the development plan in many local areas. We believe that the public should therefore enjoy the same right to be heard in relation to these new documents as they do in respect of local and neighbourhood plans.

In not explicitly providing them with that right, the Bill will give communities no direct say over important strategic decisions or site-specific design requirements. The public may have greater access to information about these matters as a result of the planning data requirements in chapter 1 of part 3, but no meaningful way of interrogating the quality or content of them because they will have been shut out of the key decision-making forum that is the examination. That cannot be right.

We feel that the denial of the right to be heard when it comes to spatial development strategies and supplementary plans is likely to have very real implications for local plans themselves, and therefore for trust