New Clause 9 - Use of Reasonable Force

National Security Bill – in the House of Commons at 3:54 pm on 16th November 2022.

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“(1) A power conferred on a constable by virtue of this Part—

(a) is additional to powers which the constable has at common law or by virtue of any other enactment, and

(b) is not to be taken as affecting those powers.

(2) A constable may if necessary use reasonable force for the purpose of exercising a power conferred on the constable by virtue of this Part.”—(Tom Tugendhat.)

This new clause confers on a constable the power to use reasonable force when exercising a power conferred on the constable by virtue of Part 1.

Brought up, and read the First time.

Photo of Nigel Evans Nigel Evans Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this it will be convenient to discuss the following:

New clause 1—Offence of failing to declare participation in arrangement required to be registered.—

“(1) A person who carries out an activity, or arranges for an activity to be carried out, in the United Kingdom pursuant to—

(a) a foreign activity arrangement required to be registered under section 61(1), or

(b) a foreign influence arrangement required to be registered under section 64(1) must declare that they are party to the arrangement, when making a communication to those in section 65(2)(a)(i) to (vi).

(2) A person who breaches the requirement in subsection (1) commits an offence.”

This new clause makes it an offence for a person to engage in activity pursuant to a foreign activity or foreign influence arrangement which is required to be registered, if the person does not declare that they are party to the arrangement when communicating with those in section 65(2)(a)(i) to (vi).

New clause 2—ffence of carrying out activities under a foreign activity arrangements: Disqualification from Parliament—

“(1) A person who is a Member of the House of Commons or the House of Lords commits an offence if—

(a) the person carries out an activity, or arranges for an activity to be carried out, in the United Kingdom pursuant to a foreign activity arrangement, and

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

(2) A person who is found guilty of an offence under subsection (1), and is a Member of the House of Commons, is disqualified from membership of the House of Commons.

(3) A person who is found guilty of an offence under subsection (1), and is a Member of the House of Lords, is disqualified from sitting or voting in the House of Lords, and sitting or voting in a committee of the House of Lords or a joint committee of both Houses.

(4) In this section, “foreign activity arrangement” has the same meaning as in section 61(2).”

This new clause would automatically disbar Members of the House of Commons and Lords who are found guilty of engaging in an activity pursuant to a foreign activity arrangement, where the person knows, or ought reasonably to know, that they are acting under the direction of a specified person.

New clause 3—Reviews of Parts 1, 4 and 5—

‘(1) The operation of Parts 1, 4 and 5 of this Act must be reviewed by a person, or people, appointed by the Secretary of State.

(2) The operation of Part 4 must be reviewed by the person appointed by the Secretary of State under section 36(1) of the Terrorism Act 2006.

(3) The operation of Parts 1 and 5 must be reviewed by either—

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

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

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

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

(b) each subsequent 12-month period.

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

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

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

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

New clause 4—Reporting on disinformation originating from foreign powers—

“(1) The Secretary of State must appoint a person or body to review the extent of disinformation originating from foreign powers which presents a threat, or potential threat, to national security.

(2) A review under subsection (1) must include an assessment of the extent of foreign interference in elections.

(3) A review under subsection (1) may include—

(a) examining the number and scale of offences committed, and estimating the number and scale of instances where an offence is suspected to have been committed, under—

(i) section 13, where Condition C is met, and

(ii) section 14, and,

(b) any other matters the person or body considers relevant to the matters mentioned in subsections (1) and (2).

(4) The person or body appointed under subsection (1) may be the Intelligence and Security Committee of Parliament, or another person or body the Secretary of State considers appropriate.

(5) A review must be carried out under this section in respect of—

(a) the 12-month period beginning with the day on which section 13 comes into force, and

(b) each subsequent 12-month period.

(6) Each review under this section must be completed as soon as reasonably practicable after the period to which it relates.

(7) The person or body must send to the Secretary of State a report on the outcome of each review carried out under this section as soon as reasonably practicable after completion of the review.

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

(9) The Secretary of State may pay to the person or body—

(a) expenses incurred in carrying out the functions of the reviewer under this section, and

(b) such allowances as the Secretary of State determines, except where financial provision is already made to the person or body for the discharge of the person or body’s functions, of which this section may form part.”

New clause 5—Proceedings relating to safety or interests of the United Kingdom—

“(1) This section applies where a court is considering proceedings under Part 1 of this Act, where the proceedings involve the safety or interests of the United Kingdom.

(2) In proceedings to which this section applies, the court must take account of how the interests of the Secretary of State or of the Government of the United Kingdom may differ from the interests of the United Kingdom, in order to satisfy itself that the interests of the United Kingdom have been appropriately identified and considered.”

New clause 6—Ministerial conduct—

“(1) This section applies in relation to any Minister of the Crown who engages with, or intends to engage with, or ought reasonably to know that they are about to engage with, a person who is a part of a foreign intelligence service.

(2) A Minister of the Crown may only engage with such a person if either of the following conditions are met—

(a) a senior civil servant is formally present at or party to the engagement, and a formal record of the engagement has been made by the senior civil servant; or

(b) a senior civil servant is not formally present at or party to the engagement, and a formal record of the engagement has not been made by a senior civil servant, but the written consent of the Prime Minister has been sought by the Minister of the Crown, and has been granted and formally recorded in writing.

(3) In this section “engagement” includes meeting in person or via electronic means, and corresponding in writing or via electronic means.”

New clause 7—Requirement to inform public of prohibited places—

“The Secretary of State must by regulations make provision so as to ensure that the public are given sufficient notice—

(a) that a location is a prohibited place within the meaning of section 7;

(b) of the circumstances in which an offence may be committed under sections 4 to 6 in respect of that prohibited place.”

This new clause would place an obligation on the Secretary of State to make regulations providing for the public to be given notice of prohibited places and the conduct which would amount to a criminal offence in relation to them.

New clause 11—Home Office review of the Tier 1 (Investor) visa scheme—

“Within two weeks of the passage of this Act, the Secretary of State must publish any findings of the Home Office review of the Tier 1 (Investor) visa scheme which relate to foreign influence activity.”

New clause 12—Report on actions taken in response to the ISC report on Russia—

“Within six months of the passage of this Act, the Secretary of State must lay before Parliament a report on the effect of the action taken by the Government in response to the recommendations of the report of the Intelligence and Security Committee of Parliament on Russia (HC 632 of Session 2019–21).”

New clause 13—Ministerial appointments: official advice—

“(1) The Cabinet Secretary must publish a memorandum in respect of any ministerial appointments made by the Prime Minister, where advice or concerns were communicated to the Prime Minister by civil servants that the appointment may be counter to the safety or interests of the United Kingdom.

(2) A memorandum under this section must set out that advice or concerns were communicated to the Prime Minister by civil servants, and in respect of which ministerial appointments.

(3) A memorandum under this section may not include details of the advice or concerns, where the Cabinet Secretary considers that inclusion of those details may be prejudicial to the safety or interests of the United Kingdom.”

New clause 14—Report requirement: Protecting democratic institutions and processes—

“(1) The Secretary of State must lay before Parliament a report, as soon as practicable after the end of—

(a) the period of 12 months beginning with the day on which this Act is passed, and

(b) every subsequent 12-month period, on his assessment of the impact sections 13 and 14 of this Act have had on protecting the integrity of the UK’s democratic processes.

(2) In this section “democratic processes” includes local democracy.”

Amendment 116, in clause 1, page 1, line 10, after “safety or” insert “critical”.

This amendment seeks to clarify the tests to be met before the offence of obtaining or disclosing protected information is committed.

Amendment 17, page 1, line 15, after “article” insert “with a Government Security Classification of Secret or Top Secret”.

This amendment would confine the offence of obtaining or disclosing protected information to information that has been classified as secret or top secret (rather than to all information access to which is restricted in any way).

Amendment 18, in clause 2, page 2, line 18, at end insert “(ca) the person’s conduct is prejudicial to the safety or interests of the United Kingdom, and”.

This amendment would narrow the scope of the offence of obtaining or disclosing trade secrets so that it applies only to trade secrets that would prejudice the safety or interests of the UK.

Amendment 117, page 3, line 1 , after “national” insert “, a UK resident, or a person in the employment of a UK person as defined in paragraphs (b) or (c)”.

Government amendments 40 to 42.

Amendment 19, in clause 3, page 3, line 32, after “Kingdom” insert “which are prejudicial to the safety or interests of the United Kingdom”.

This amendment would narrow the scope of the offence of assisting a foreign intelligence service in respect of activities within the UK so that it applies only to assistance that would prejudice the safety or interests of the UK (rather than to assistance of any kind).

Government amendment 43.

Amendment 119, page 4, line 7, at end insert—

“(aa) with the knowledge and consent of the UK security and intelligence services,”.

This amendment would clarify that activities undertaken with the knowledge and consent of the UK security and intelligence services would not constitute a criminal offence under this clause alone.

Amendment 120, in clause 4, page 5, line 17, at end insert—

“(7) No offence is committed under (1) if the conduct is for the purposes of protest, unless the conduct is prejudicial to the safety of the United Kingdom.”.

This amendment would restrict the circumstances in which access to a prohibited place for the purposes of protest would amount to an offence under this clause.

Amendment 20, in clause 5, page 5, line 25, at end insert—

“(ba) the conduct is prejudicial to the safety or interests of the United Kingdom,”.

This amendment would confine the offence of unauthorised entry etc to a prohibited place so that it applies only to entry etc that is prejudicial to the safety or interests of the UK.

Amendment 133, page 5, line 33, leave out “includes” and insert “may, depending on the circumstances, include”.

This amendment would mean taking a photograph or other recording of a prohibited place was not automatically a criminal offence of inspecting that place, but would depend on the circumstances.

Amendment 21, in clause 6, page 6, line 17, leave out paragraph (c).

This amendment would remove the power of the police to order a person to leave an area “adjacent to” a prohibited place.

Amendment 22, page 6, line 28, after “(2)” insert “, (a)”.

This amendment is consequential on Amendment 23.

Amendment 23, page 6, line 30, after “Kingdom” insert “, and (b) without prior authorisation by an officer of at least the rank of Inspector, unless obtaining that authorisation is not reasonably practicable”.

This amendment would impose a requirement that a police officer obtains authorisation from a more senior officer before exercising powers under clause 6.

Amendment 24, page 6, line 32 at end insert “which was necessary to protect the safety or interests of the United Kingdom and proportionate to that aim.”

This amendment would narrow the offence of failing to comply with an order made by a police constable in relation to a prohibited place so that it applies only to an order that was necessary and proportionate to protecting the safety or interests of the UK.

Amendment 25, in clause 7, page 6, line 37, after “means” insert “a place, entry to which could pose a risk to the safety or interests of the United Kingdom, and which is”

This amendment would narrow the definition of prohibited place so that it applies only to locations relevant to the safety and interests of the United Kingdom (rather than any Ministry of Defence land).

Government amendments 44 and 45.

Amendment 121, in clause 8, page 8, line 21, leave out “or interests”.

This amendment would restrict the power to designate additional prohibited places by regulation to where it was necessary to protect the safety of the United Kingdom.

Amendment 26, in clause 11, page 10, line 8, leave out paragraph (c).

Government amendments 46 and 47.

Amendment 14, page 20, line 35, leave out clause 27

Government amendments 48 and 49.

Amendment 124, in clause 28, page 21, line 23, at end insert—

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

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

Amendment 30, in clause 30, page 22, line 40, leave out paragraph (c).

This amendment would narrow the definition of foreign power threat activity to remove giving support and assistance (including that unrelated to espionage activity) to a person known or believed to be involved in offences under the Bill (but would retain conduct which facilitates or is intended to facilitate such offending).

Government amendment 50.

Amendment 118, in clause 31, page 23, line 25, at end insert—

““critical interests of the United Kingdom” include security and intelligence, defence, international relations, law and order, public health and economic interests;”.

This amendment seeks to clarify the tests to be met before the offence of obtaining or disclosing protected information is committed.

Amendment 125, in clause 37, page 26, line 25, leave out “reasonably believes” and insert “believes on the balance of probabilities”.

This amendment would apply the usual civil standard of proof in relation to decision to impose Prevention and Investigation Measures.

Amendment 126, in clause 38, page 27, line 35, leave out “four” and insert “two”.

This amendment would mean the Secretary of State could seek to extend a part 2 notice on two occasions rather than four.

Amendment 31, in clause 43, page 30, line 21, leave out from beginning to “before” in line 22 and insert “The chief officer of the appropriate police force must confirm to the Secretary of State that the condition in subsection (2) is satisfied before”.

This amendment, together with amendments 16 to 18, would require the Secretary of State to receive confirmation from the police that prosecution is not realistic before imposing a PIM, rather than requiring only a consultation on the subject.

Amendment 33, page 30, line 28, leave out “The matter is whether there is” and insert “The condition is that there is not”.

Amendment 34, page 31, line 14, leave out “responding to consultation” and insert “providing confirmation”.

Amendment 32, page 31, line 26, leave out “(1) or”.

Amendment 35, in clause 53, page 38, line 13, leave out “this Part” and insert “Part 1 and Part 2”.

This amendment would extend the review function of the Independent Reviewer to cover Part 1 of the Bill in addition to Part 2.

Amendment 3, in clause 58, page 41, line 8, at end insert—

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

Government amendments 61 and 62.

Amendment 130, in clause 61, page 43, line 19, after “P” insert “, whether directly or through intermediaries”.

This amendment would make clear that those making a foreign activity arrangement via intermediaries, would be required to register the arrangement.

Government motion to transfer subsection (2) of clause 61.

Government amendments 63 to 65.

Government motion to divide clause 61.

Government amendments 66 to 74.

Government motion to transfer subsection (2) of clause 64.

Government amendments 75 to 83.

Government motion to divide clause 64.

Government amendments 84 to 94.

Amendment 15, in clause 68, page 48, line 20, leave out paragraph (b).

Amendment 16, page 48, line 25, leave out paragraph (b).

Government amendments 95 to 101.

Amendment 131, in clause 70, page 51, line 10, at end insert—

“(3A) The information required of the person to whom an information notice is given must be limited to information the Secretary of State deems reasonably necessary to ensure the person is complying with the requirements of this Part.”

This amendment would place restrictions on the type of information the Secretary of State can require under clause 70.

Government amendments 102 to 108.

Amendment 1, in clause 75, page 53, line 39, at end insert—

“(h) an offence under section [Offence of failing to declare participation in arrangement required to be registered] committed in relation to a foreign activity arrangement required to be registered under section 61(1).”.

This amendment is consequential on NC1.

Government amendment 109.

Amendment 2, page 54, line 23, at end insert—

“(h) an offence under section [Offence of failing to declare participation in arrangement required to be registered] committed in relation to a foreign influence arrangement required to be registered under section 64(1) .”.

This amendment is consequential on NC1.

Government amendments 110 to 112.

Amendment 8, Page 56, line 4, leave out Clause 79.

Amendment 9, Page 56, line 26, leave out Clause 80.

Amendment 36, in clause 80, page 56, line 31, at end insert—

“(ba) the court is satisfied that any damages awarded to the claimant in those proceedings are likely to be used for the purposes of terrorism,”.

This amendment would remove the duty on the court to consider reducing damages in clause 58, unless the court considered the damages were likely to be used for the purposes of terrorism.

Government amendments 51 to 53.

Amendment 37, page 57, line 18, at end insert “or which it would award under section 8 of that Act had the claim been brought under it.”.

This amendment would prevent the reduction of damages in claims that could have been brought as a human rights claim under the HRA 1998 but were in fact brought on other grounds.

Amendment 10, page 57, line 30, leave out clause 81.

Amendment 11, page 58, line 5, leave out clause 82.

Amendment 12, Page 59, line 10, leave out clause 83.

Amendment 38, Page 59, line 14, leave out clause 84.

This amendment, together with Amendment 39, would remove the proposed limits on access to legal aid for persons with a conviction for a terrorism offence and the consequential power to make information requests related to those limits.

Amendment 5, in clause 84, page 59, line 29, leave out “F” and insert “G”.

Amendment 6, page 60, line 11, at end insert—

“(7A) Condition G is met where the offender is seeking legal aid for the purposes of—

(a) pursuing a civil order, where the purpose of the order is to protect a victim of domestic abuse, or

(b) participating in family court proceedings, and where the offender is a victim of domestic abuse.”.

Amendment 7, page 61, line 6, at end insert—

“”domestic abuse” has the same meaning as in the Domestic Abuse Act 2021;”

Amendment 39, page 61, line 15, leave out clause 85.

See explanatory statement for Amendment 38.

Government amendment 113.

Government new schedule 1—Control of a person by a foreign power.

Government new schedule 2—Exemptions.

Amendment 128, schedule 3, page 88, line 31, leave out sub-paragraph (4).

This amendment would prevent a disclosure order from having effect where disclosure is protected by an enactment.

Amendment 129, schedule 4, page 94, line 29, leave out sub-sub-paragraph (b), and insert—

“(b) there are reasonable grounds for believing that information which may be provided in compliance with a requirement imposed under the order is likely to be of substantial value, whether by itself or with other information, to the investigation; and

(c) there are reasonable grounds for believing that it is in the public interest for the information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained.”

This amendment would require the court to be satisfied of the same tests for customer information notices as set out in relation to disclosure orders in Schedule 3.

Government amendment 54.

Amendment 4, schedule 6, page 100, line 19, at end insert—

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

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

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

Government amendment 55.

Amendment 27, page 104, line 12, leave out sub-paragraphs (4) and (5).

This amendment would prevent it being permissible to delay informing a named person of an individual’s detention under clause 21, or that individual consulting a solicitor, for the purposes of asset recovery.

Amendment 123, page 112, line 13, leave out from “if” to the end of line 20, and insert “the person has previously been convicted of an offence under this Act.”

This amendment would restrict the circumstances in which fingerprints and samples from someone detained under clause 25 could be retained indefinitely, instead of the usual 3 years under paragraph 20(5) of Schedule 2.

Government amendments 56 and 57.

Amendment 28, page 124, line 13, leave out sub-sub-paragraphs (b) and (c).

This amendment would prevent it being permissible to postpone reviews of detention without warrant on the basis that the review officer is unavailable or, for any other reason, the review is not practicable.

Amendment 127, schedule 7, page 144, line 17, leave out paragraph 12.

This amendment would remove the power for the Secretary of State to impose participation in polygraph sessions as part of provisions in relation to Prevention and Investigation Measures.

Government amendments 58 and 59.

Amendment 13, page 175, line 1, leave out Schedule 13.

Amendment 132, schedule 13, page 176, line 29, leave out “there is a real risk that”.

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

Government amendment 60.

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

It is a pleasure to stand before the House today to introduce not just new clause 9, but many other new clauses that I and many others in this House have argued for at different times and in different places.

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

Plus a few others. So it is a great pleasure to be here today.

May I also place on record my enormous thanks to two right hon. Members—Maria Eagle will smile as I say this—who have done so much to get us to this position today? I refer to my right hon. Friends the Members for East Hampshire (Damian Hinds) and for Stevenage (Stephen McPartland), who have been extremely generous with their time and thoughts, including in private with me as well, in making sure that I am able to answer as many of her questions as I can, although somehow she has exceeded even their magisterial intellect. I am grateful that they have got us to this place, because this Bill is essential for the future defence of our nation.

The reason for that is because, of course, the world has changed. The reality is that national security in this country has changed and evolved in recent years, and the Darwinian challenge between the hunter and the hunted has led us to a position where we need to update not just our techniques, which can be done in private, but sadly our laws, which rightly must be debated in public.

I think we all agree with the core aims of the Bill. The first is to give our law enforcement and intelligence agencies the tools they need to tackle harmful activities in the United Kingdom carried out by, or on behalf of, foreign powers. However, to do that we also need to increase the transparency around those who seek to influence the politics and institutions of the United Kingdom through the foreign influence registration scheme. That is a very welcome addition. I know that many Members here, including those who have been on the Foreign Affairs Committee for the past five years, have called for it at various different points. The Bill has, at its heart, the protection of the national security of this great country that we all serve.

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

On that, I will give way—not for the last time, I am sure—to the right hon. Member.

Photo of Kevan Jones Kevan Jones Labour, North Durham

The Minister talks about Darwinian change, but evolution takes a long time. Many things in the Bill have been kicking around for at least six or seven years, and that includes the issue around the foreign influence registration scheme, which was only put in the Bill at Committee stage after it was omitted on Second Reading; even now, there are amendments to it. Is the Minister satisfied that the Bill—in terms of the major changes that it will achieve—will fulfil its purpose and that it has been properly scrutinised in this House?

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

What I am so pleased about with this Bill is that it introduces so many ideas that the right hon. Gentleman and I have discussed in private over many years when I was in a similar position to him—scrutinising a Government. The Bill introduces some of those ideas that, yes, he is right to say, seem to have been introduced quickly, but the reality, as he knows very well, is that they have been discussed slowly. Many aspects of the Bill not only date six or seven years into the past, but update aspects that date a lot further back. Sadly, some of our national security legislation is better placed to hunt those who would send secret notes on pigeons back to Germany than to hunt those sending secret messages through the internet. This is updating quite a lot of laws that date all the way back to the first world war. I am very glad that we are doing it, and I am very glad that the right hon. Gentleman’s scrutiny in the Bill Committee has been so rigorous and so onerous.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

My right hon. Friend is right that this is an important step. In particular, he is right about the foreign influence registration scheme, which has long been called for, including by the Intelligence and Security Committee, of which I am a member. He will also know that, because we have yet to discuss that in any detail, there may be confusion about the primary and secondary tiers—in other words, those things that are designated as being of more profound importance than these other things. Would it be helpful if he were to write to the ISC, setting out how he thinks they would work in practice, given that we understand that the secondary tier will be introduced by secondary legislation?

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

My right hon. Friend is right. I would be very happy to write to him. I can summarise it now by saying that the primary tier is that connected to political activity. Anybody from any foreign country who wishes to influence this House, this Parliament, any Members here, or indeed any political outcome, would be looking at the primary tier. That is the basic level, and it involves a registration on a website so that we can all know who has taken payment for what—which piper has been paid and by whom.

The enhanced registration is different and requires registration for a wider range of activities, but those depend on the specific foreign power and, indeed, the entity or operation within it. That is a different matter, and that will be down to the Secretary of State looking at what is reasonably necessary in order to protect the safety and interests of the United Kingdom—that is the enhanced tier, as we are calling it. That is the summary, but I will be happy to write to the ISC.

Photo of Chris Bryant Chris Bryant Chair, Committee on Standards, Chair, Committee on Standards

The Minister said that once somebody has registered on a website, we will all be able to see it. That may be true if we knew that that was where we had to look to check whether somebody coming in through the door, sending us a letter or inviting us to dinner as an MP was actually somebody who was working for a foreign power. Would it not be far more sensible, once somebody has registered, to require them to declare to any Minister, MP or Member of the House of Lords that that is what they were doing, so that there is a degree of protection for this House?

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

The hon. Member makes a very good point: there are many areas in which the individual concerned should certainly be doing the responsible thing and advertising it. The basis of this has to be a balance, so requiring people to register is, I think, a very good start. We need to take forward some of the recommendations that the hon. Member has made and the thoughts he has expressed, because he is absolutely right that transparency in all things is important.

Photo of Stewart Hosie Stewart Hosie Shadow SNP Spokesperson (Cabinet Office), Shadow SNP Spokesperson (Constitution)

The Minister has accurately described what the two different tiers of the FIRS scheme will do, but it is difficult to understand why the registration of harmful activity outside of political influencing, such as covertly acting as an intelligence officer, only applies to a foreign power that is set out in secondary legislation. Surely, if that activity is wrong, it is wrong whether the country is on an as-yet-undefined list or not.

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

I think the right hon. Member will find that espionage is illegal in the United Kingdom, whoever is carrying it out.

Photo of Julian Lewis Julian Lewis Chair, Intelligence and Security Committee of Parliament

The Minister is very forbearing, and I am glad of the opportunity to warmly congratulate him on his appointment and thank him for the positive way in which he has been reaching out to the ISC.

On the question of the second tier, there appears to be some sort of discrimination between countries that are friendly and those that are hostile, and—unless I misunderstand the Bill—only the hostile ones are going to appear in the secondary designation. If that is the case, could it not lead to some anomalous situations when diplomatic relations improve with a country, so we take it off the second tier, or they worsen and we put it on? There is bound to be a time lag in that sort of thing, so how practical is the second tier scheme as it is currently constituted?

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

My right hon. Friend makes a valid point. The challenge that we have, as he knows very well, is how we balance the responsibility to inform and how wide we go. I have spoken about this issue with my right hon. Friend in the past, and his judgment on this is something I have always valued, so it has always been very important to me that we share a view on it. However, I think we all agree that where a foreign power is seeking to influence our political life in the broadest sense, we should know about it, whoever is exercising that influence.

I take my right hon. Friend’s point about enhanced registration. Sadly, there is inherently a delay between the way that life changes and the response of Government —that is the reality of existence—but it is important for us to recognise that some countries and entities do require enhanced awareness. That is why it is important for us to have an extra tier.

Photo of Maria Eagle Maria Eagle Labour, Garston and Halewood

I am grateful to the Minister for giving way. He has talked about the challenges and the enhanced part of the scheme. Will it not be a challenge to use the scheme in practice, because he has to put the country concerned into secondary legislation? Is that not going to be diplomatically very difficult to do? Is the reality not that the complex way in which the Government have set out the scheme, with little scrutiny possible from either this Chamber or Committees, means that in practice it is not going to be used at all?

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

I think the hon. Lady knows me well enough to know that, having been sanctioned by three countries now, it is unlikely that I will be reticent in identifying those that I think are threats to the United Kingdom.

Photo of Chris Bryant Chris Bryant Chair, Committee on Standards, Chair, Committee on Standards

The right hon. Gentleman might not be in the job.

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

I am very confident that others will also be bold on His Majesty’s behalf. Whoever is fortunate enough to be representing His Majesty in the Home Office will be able to conduct those offices in the good fashion that people expect. [Interruption.] I will move on.

The core of the Bill is, of course, national security and our intelligence services, building on the work they have done to enable us to grow in confidence and prosperity. They have provided the security apparatus that allows freedom beneath and around it. That is an extraordinary luxury and a blessing that this country has been able to enjoy for many years and generations because of the courage and intellect of so many people. They require tools to conduct those tasks, and I am delighted that the Bill will sharpen some of those tools.

I am very glad that the twofold nature of the foreign influence registration scheme has now been set out—we are introducing something that other countries introduced a number of years ago—and that we are ensuring that we keep our politics and those who influence our country open and transparent, not silenced, so that we know who is actually conducting influence operations in our country and trying to shape our public debate. It is important that we support those measures. I am very glad that members of the Bill Committee, many of whom are here on both sides of the House, spoke out in favour of many aspects of the measures, and have supported the Government with new ideas and different ways of thinking, so that we have been able to listen and adapt.

As Members will know, I have listened to every view that has been raised across the House, and I am very pleased to say that we have come, I think, to a Bill that works. We have a Bill that can be sent and introduced to the other place, ready to then deliver for our agencies and those who keep us safe.

Photo of Kevan Jones Kevan Jones Labour, North Durham 4:15 pm, 16th November 2022

As my hon. Friend Maria Eagle said, we had four Ministers in the Bill Committee. Yes, the Minister has listened, but nothing in the Bill has changed. It is still a mess, and that goes back to the fundamental point about not including the Security Service Act 1989 in the reform that is needed. Let me tell the Minister now: the lack of scrutiny in this House means that the Bill will be absolutely torn to shreds in the other place.

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

The right hon. Gentleman will not be surprised to hear that we disagree on that element, but it has been a great pleasure to work on the Bill with him and with many others in the Chamber, and to hear their comments and criticisms. There are many other supplementary areas that I would like to work on in different places at different times, but the Bill answers the essential need that we have now, which is to update our national security legislation to keep the country safe and defend our people, and to ensure that those who have the courage, integrity and wisdom to keep us all safe have the tools at their disposal to do so.

Several hon. Members:


Photo of Nigel Evans Nigel Evans Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. We have already had four points of order, and we have limited time, so I ask Members to please be mindful of the length of their contributions so that we can get as many people in as we possibly can.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

It is a pleasure to be back in the Chamber at the Report stage of this hugely important piece of legislation. Bill Committee colleagues will join me in saying that it was not straightforward, for all the reasons that were highlighted in the multiple points of order. The Committee had no less than four Ministers and three Government Whips, and was forced to adjourn twice. Since Second Reading, the Bill has been the responsibility of three different Home Secretaries in—remarkably—the Governments of three different Prime Ministers.

We got off to a shaky start on the first day of the Bill Committee when the Whip, Scott Mann, who I am pleased has joined us this afternoon, was asked to act up as a Minister only minutes before the start. On one day, the Committee had to be adjourned because the second Minister was missing in action—the circumstances are still a mystery to this day. It was something of a relief, then, when the current Minister took office and we could turn to the serious detail of scrutinising and delivering long overdue and incredibly necessary national security legislation.

As we have said before, many of the new measures in the Bill have been born out of recommendations in the Intelligence and Security Committee’s 2020 Russia report and in the Law Commission’s “Protection of Official Data” report. With those solid foundations, we have been keen to work with Government to move the legislation forward and close the gaps in our defences. That could not be more timely in the light of stark warnings given by the director general of MI5 today, including about the fact that there have been at least 10 attempts to kidnap or even kill UK-based critics of the Iranian regime since January of this year.

That is not to say that we do not have some outstanding concerns about the detail of the provisions. In speaking to all the amendments grouped with new clause 9, I turn first to amendment 14, which was tabled by Mr Davis and my hon. Friend Dan Jarvis. I will spend some time discussing the detail of this amendment, because it is so important.

The original clause 23—now clause 27—was a big focus for hon. Members on both sides of the House on Second Reading. Crucially, it did not have the support of Opposition members of the Intelligence and Security Committee, which has statutory responsibility for oversight of the UK intelligence community. We will always look to work with the intelligence services to find solutions to any barriers they face in undertaking their invaluable work to keep the UK safe. As things stand, however, we have been unable to get an operational understanding of why the clause is necessary.

The security services have told me directly why they believe that they need clause 27. They say that schedule 4 to the Serious Crime Act 2007 allows for a risk of liability to individuals conducting their proper functions on behalf of the UK intelligence community, and that an offence can arise when support—for example, intelligence shared 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, which requires resolution. We are sympathetic to that view; we recognise that for perhaps quite junior members of staff to face that burden of potential liability when carrying out their proper functions under instruction does not feel quite right. However, we have sought throughout the process to find a way through that does not involve what feels like gold-plating of exemptions for the security services, which could erode entirely appropriate safeguards and due diligence when considering the risks and consequences of sharing information with partners.

As the Minister knows, there is a reasonableness defence under section 50 of the Serious Crime Act, which recognises that there may be occasions when it can be shown that an individual’s actions were justified in the circumstances. Of course, a prosecution would also have to be deemed to be in the public interest. On further probing of these defences, it seems that it is not the case that the reasonableness defence is not strong enough; rather, it is untested, as no such case has been brought. We do not believe that the fact that an apparently robust defence is untested makes a strong enough case for the proposals in clause 27. We hope that properly authorised activity to protect national security should and would be interpreted as reasonable.

We have sought legal advice, including from a King’s counsel who undertakes a great deal of work in the Investigatory Powers Tribunal, and engaged with a range of stakeholders who feel genuinely involved in this space. Given that we already have section 7 of the Intelligence Services Act 1994, which allows the Secretary of State to give immunity from civil or criminal liability for pre-authorised crimes abroad, why do we need the changes proposed in clause 27? Crucially, the existing scheme requires the UK intelligence community to secure permission in advance from the Secretary of State, requiring the Secretary of State’s personal approval, with safeguards in the decision-making process and oversight by the Investigatory Powers Commissioner, who is a senior judge. None of those safeguards are present in clause 27; it simply removes the relevant criminal liability. There would be no need to go to a Minister for approval; there would be no warrant for the Investigatory Powers Commissioner to consider.

Thirdly—the Minister and I have debated this—the Bill as drafted diminishes the role of a Minister in decision-making and accountability structures. Ministers will no longer need to make the difficult judgement, reviewed by the Investigatory Powers Commissioner, of whether to grant an authorisation under section 7 of the Intelligence Services Act. The Government have been keen to stress their commitment to the Fulford principles—“The Principles relating to the detention and interviewing of detainees overseas and the passing and receipt of intelligence relating to detainees”, making it 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…or extraordinary rendition. In no circumstance will UK personnel ever take action amounting to torture, unlawful killing, extraordinary rendition, or CIDT.”

However, those commitments are not on the face of the Bill.

With the understanding that there will be operational elements to these provisions, the details of which have not been and cannot be shared, we have pushed for engagement with the ISC, which is entirely the right place for those operational examples to be considered further. Were ISC members to be convinced of the case for clause 27, we might be in a different place. On that basis, we cannot support clause 27 and will vote for it to be deleted by amendment 14.

On a similar point, although we welcome much of the Bill, it is right that any provisions that include new and substantial powers are constantly evaluated for their efficacy and proportionality. Clause 53 recognises that.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

Efficacy and proportionality are the twin guarantees that underpin all security legislation and activity, as the hon. Lady is aware, but if anything, clause 13, for example, should go further than it currently does. She will know that that clause is built on the idea of intention—that people must intend to do harm—but people should know that they are likely to do harm if they act recklessly, and the Bill could be expanded in that direction. There is an unholy trinity of anarchists, liberals and Bolsheviks who oppose all legislation of this kind, but if anything, this legislation should be warmly welcomed and go further than it does.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

I am grateful for the intervention. The points that I am about to make about the value and role of an independent reviewer of this legislation relate to how, if some of the thresholds are not in the right place, such a reviewer can not only be both a check and a balance on the powers but make recommendations for going further in the legislation if we find that there is an operational case for doing so. That is the sensible and constructive point that the right hon. Gentleman knows I am making.

Clause 53 recognises the need for evaluation but deems only part 2 of the Bill to be necessary for review by an independent reviewer and fails to be explicit about who that independent reviewer will be. The Minister has been unable to confirm who will perform this oversight function, which we believe is integral to finding the appropriate balance of powers and freedoms. The scrutiny of terrorism legislation provided by Jonathan Hall KC has been invaluable. The independent reviewer of terrorism legislation function has identified weaknesses in terrorism legislation and highlighted areas where stronger safeguards are needed, as well as providing crucial and checks and balances on the powers.

When he gave evidence to the Bill Committee, I asked Jonathan Hall whether there is a logic to his office taking on the additional responsibilities and whether he had the capacity to undertake that work. He said:

“My answer is that I think it actually is quite a good fit for the reviewer’s job, and I think it probably is right that the person who does the independent review of terrorism legislation should also do the state threats legislation.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 6, Q4.].

With the highest regard for Jonathan Hall, we recognise the merit in adding to his remit the responsibilities created by clause 53. We can see the benefit of a coherent, joined-up approach to assessing both counter-terrorism and state threat legislation.

That said, were the Minister to make a case for the creation of a brand-new position, exclusively for the independent review of laws concerning state threats, we would certainly be open to that. We are, though, now reaching the Bill’s final Commons stages, and we are very much overdue an agreement that the role will begin immediately once the Bill is enacted, clarity on who will undertake the work, and a commitment that all the new provisions in the Bill will be considered in an annual review. Successive Ministers have understood the point and committed to sorting the situation out, but here we are with no progress and nothing to show for it on the face of the Bill, so we are keen to push new clause 3 to a vote.

In Committee, my hon. Friend Jess Phillips made a powerful case for the provisions in amendment 6, which sits alongside paving amendments 5 and 7. We made clear our concerns about part 4 of the Bill in the Committee. The restrictions on access to civil legal aid stand to do more harm than good if we do not recognise the problems in such an approach.

Let us consider the types of civil cases that legal aid might be needed for. People find themselves in civil and family court proceedings and in need of legal aid support for a multitude of reasons, including housing issues, debt problems and domestic abuse. For example, a victim of domestic abuse might need legal aid to help her to seek an injunction against her abuser. Non-molestation orders protect a victim or their child from being harmed or threatened by their abuser, while occupation orders decide who can live in a family home or enter the surrounding area. Such injunctions protect victims and children in particular. They save women’s lives. They are legal measures that protect women from violence.

My hon. Friend the Member for Birmingham, Yardley made the powerful point in Committee, based on her years of working in the sector, that it is easy to say that someone who has engaged in that type of criminality is not deserving of legal aid, but what if a woman’s abuser is a terrorist? The nature of terrorist offenders means that that is too often the case.

Photo of Kevan Jones Kevan Jones Labour, North Durham 4:30 pm, 16th November 2022

My hon. Friend is right that we discussed the issue in detail in Committee. Clearly, the only reason is seen to be that someone has been involved in terrorism. Does she agree, however, that there are many other people, such as rapists, paedophiles and murderers, of whom we also have a low opinion? The logical conclusion is surely that, if we restrict it in one area, we should restrict it for everyone.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

I am grateful to my right hon. Friend for making that powerful point. He is absolutely right that there is a distinct lack of consistency. If we are singling out specific criminal offences that we do not like, there is more that we could do to ensure that there is some consistency in that approach. There will be vulnerable people here who we want to check are not falling through the gaps, which would make the situation worse for us all.

What if a woman’s abuser is a terrorist? As I said, the nature of terrorist offenders means that that is often the case. For some of the lower-level offences covered by clauses 84 to 85—for example, that someone made a phone call on behalf of an abuser—it is easy for somebody to say, “I wouldn’t do that, because I’m not a terrorist,” but we all might if we were living in a household where we were terrorised. The danger is that more women in such cases will end up stuck with a terrorist making them be a terrorist, rather than being able to escape them. That is why we feel strongly that the Government should adopt amendment 6.

On some other changes that we would like to see, we have tabled new clauses 5 and 6. They were drafted in the wake of the revelations that Boris Johnson, when he was the Foreign Secretary, met former KGB officer Alexander Lebedev without officials or security at the height of the Salisbury poisoning case in 2018. That was immediately after the then Foreign Secretary had attended a meeting of NATO Foreign Ministers at NATO headquarters in Brussels to discuss the collective response to Russia’s use of Novichok on UK soil. We still have a series of questions about that encounter, not least who his guest was at that party and why we have not taken steps to sanction Alexander Lebedev, given the assessment of our Five Eyes partner Canada, which has sanctioned him.

Having made the case in Committee for new clauses 5 and 6, which both seek to put safeguards in place to prevent that type of security breach ever happening again, the Minister was keen to stress that he was not going to seek to defend the Administration of the right hon. Member for Uxbridge and South Ruislip, as if that time had passed and there was no need for any further changes to the law in this regard. When that exchange happened on the Tuesday, little did the Minister or I know that by the Thursday, remarkably, the right hon. Gentleman would be launching his campaign to come back as Prime Minister. None of us could have foreseen that, which is one more reason why I stress that the clauses would complement the Bill.

I appreciate that new clause 8, tabled by my right hon. Friend Mr Jones, has been deemed to be out of scope of today’s debate, but I remind the Minister of the remarks of the then Home Secretary, Priti Patel, on Second Reading:

“We are not shy of the issue and are certainly not ignoring it, but it is important that we focus on ensuring that individuals can make disclosures safely, which means protecting them through safeguards and proper routes. That work is still under way, and we need to go through it in the right way.”—[Official Report, 6 June 2022; Vol. 715, c. 571.]

We understand that the Home Office has engaged with trusted partners on what options look like in this space. Once again, we are all waiting for further detail on that front.

I now turn to the plethora of Government amendments. Frankly, late in the day additions to the Bill have plagued its scrutiny and Report stage is no different, as many right hon. and hon. Members have already said. I am pleased that the Government heard our concerns about places of detention and have clarified that only places

“owned or controlled by a police force” can be used as places of detention, which ensures that they will be subject to proper inspection regimes. We are satisfied that the Government have listened, so our amendment 4 is no longer necessary; Government amendment 54 brings those places within the scope of an existing inspection regime.

As the Minister knows, there are still outstanding concerns about the broad nature of clauses 79 to 83 in part 4. We welcome Government amendment 51, however, which seeks to tighten the definition of those in scope of clauses 79 to 83 to those involved in “terrorist wrongdoing”, but that will warrant further exploration in the other place.

On Government amendment 60, like a number of modern slavery charities—the point has already been made by Sir Iain Duncan Smith—we are really concerned about the lateness of this addition to the Bill and the scrutiny that has been avoided by adding it to the Bill at the final Commons stages. Justice and Care, which does outstanding work in placing victim navigators within police forces up and down the country, was keen to stress that there has not been any consultation with modern slavery charities concerned that they, like us, have had insufficient time to fully consider the possible impact on modern slavery victims. I could have asked the Independent Anti-Slavery Commissioner for their views, except there isn’t one. The Government have failed to appoint a new commissioner since Dame Sara left office in April, so I take this opportunity to suggest that the Government address that now as an urgent priority. I have to ask the Minister to outline the rationale for this move, and I want to be clear just how unhappy we are with this provision at such a late stage.

I am grateful to my hon. Friend Chris Bryant, who is so often my partner in crime fighting, for his amendments. I know he has a great deal of understanding in this area that has shaped the detail of his amendments, so I hope the Government are reflecting carefully on those.

Once again, we have sought at every stage and with every Minister to engage on the Bill constructively. We know that our police forces and security services need the provisions in the Bill to be able to keep us safe from the hostile state threats that are increasingly testing the UK’s resilience. I hope the Minister, who to his credit had to pick up the Bill in the final stages of the Bill Committee, hears our outstanding concerns today, recognises the spirit in which we strive to find solutions and continues to work with us towards a robust and proportionate Bill we can all have confidence in.

Photo of David Davis David Davis Conservative, Haltemprice and Howden

I welcome the Minister to his post. He is very much a round peg in a round hole—despite my historic critique of the Home Office, that is meant as a compliment. I thank him for seeing me and my colleague, Dan Jarvis, on the amendment the other day. He will be unsurprised that he did not persuade me, but I thank him for the time in any event. In view of the short time, I will focus mostly on amendment 14, which I hope we will press to a vote. It is in my name and that of the hon. and gallant Member for Bromley—not Bromley, but Barnsley Central; not quite Bromley. That amendment strikes out clause 27.

A decade and a half ago, the British public were shocked to hear stories of British complicity in American and other countries’ acts of kidnap, rendition, torture and assassination, typically but not always by drone strikes, with the collateral damage that that entailed. Collateral damage in this context is a euphemism for the deaths of innocent women and children who happen to be standing near the original target. I use this stark language to make plain the potential consequences of what might seem like bland legalistic language in the Bill.

The legal basis of those actions—I almost said atrocities, but of those actions—was the Intelligence Services Act 1994, when we first recognised the operation of the Secret Intelligence Service. Most notably, it inserted the melodramatically named “007 clause”—section 7—which empowered Ministers to authorise criminal behaviour overseas. I was one of the Ministers who took that Bill through the House. We Ministers were briefed very firmly that, in practice, that section would authorise bugging, burglary and blackmail—the normal behaviour of intelligence agencies seeking to penetrate enemy states and organisations—not kidnap, not torture and most certainly not a licence to kill.

We the Ministers on that Bill gave our word to the House that that was what it was for, but a decade later section 7 was used to authorise the enabling of rendition, torture and quite possibly assassination as well. We know the names of several victims of UK complicity: Binyam Mohamed, Abdel Hakim Belhaj, Fatima Boudchar, his wife, and Rangzieb Ahmed, to name just a few.

Photo of Alistair Carmichael Alistair Carmichael Liberal Democrat Spokesperson (Home Affairs), Liberal Democrat Spokesperson (Northern Ireland), Liberal Democrat Spokesperson (Justice)

It is worth reflecting and placing back on the record that we know the names of Belhaj and Boudchar only because somebody happened to find the papers unattended after the fall of Gaddafi. That was the only way that the truth about their cases came into the public domain.

Photo of David Davis David Davis Conservative, Haltemprice and Howden

The right hon. Gentleman is right, and it is also true that we found out about Binyam Mohamed only because of extended legal cases in the courts, which were resisted by the agencies at every turn. We know about Rangzieb Ahmed only because I got access to the in-camera papers. So this is a general problem and I will come back to that. A most recent example is Jagtar Singh Johal, who alleges that he was tortured by Indian authorities and was detained, we believe, as a result of British intelligence. Again, we know about that only because we could spot the case inside one of the commissioner’s reports. Accordingly, exactly because of that, this is literally the tip of the iceberg.

The Intelligence and Security Committee report on detainee mistreatment found 232 cases where UK personnel

“continued to supply questions or intelligence” to other intelligence services, after they

“knew or suspected that the detainee had been or was being mistreated.”

As I said, I have seen in-camera evidence that showed quite how deliberate some of those decisions were—absolutely in the knowledge that they would be used in the process of torture. That was done rather more broadly, even when the intelligence services did not know at all where the detainee was being held, or even whether they were being held legally or not. Those are the consequences of vague legislation that awarded too much power to the authorities.

We might therefore expect clause 27 to tighten up over-loose legislation to make Ministers, officials and agents more conscious of their responsibilities, not less. Instead, it does the exact opposite. Clause 27 would provide an exemption to schedule 4 of the Serious Crime Act 2007. Schedule 4 sets out the circumstances in which assisting and encouraging a crime that occurs overseas is still a criminal offence. Clause 27 means that it would no longer be an offence to assist a crime overseas where someone’s behaviour is necessary for

“the proper exercise of any function of the Security Service, Secret Intelligence Service or GCHQ or...the armed forces.”

In plain English, that would effectively insulate Ministers and officials from responsibility for assisting or encouraging heinous overseas crimes.

To see the potential impact of that, consider the case of Abdel Hakim Belhaj. Mr Belhaj, a Libyan dissident living in exile, was detained and subsequently tortured in both Thailand and Libya. It later emerged that UK information sharing had contributed to his detention and rendition. After years of litigation and wrangling, the Prime Minister wrote a letter of apology to Mr Belhaj, and the Government admitted responsibility for the role that UK intelligence played in his rendition. That was a civil rather than a criminal case, but if officials are certain that they will not face any criminal liability for assisting torture and other serious crimes abroad, reckless information sharing of the kind seen in Mr Belhaj’s case will occur more frequently and with more impunity.

I understand that one reason for the change in the clause is apparently to allow the easier transfer of bulk data. That is an especially risky activity to which to give legal cover. The transfer of bulk data is a euphemism for saying that we give the Americans—principally—so much data that we do not have time to check it all. That is it in a nutshell. As Edward Snowden revealed, that has historically amounted to unimaginably vast quantities of data, of course about suspects, but also about innocent people. Because of the high level of secrecy that applies to current bulk data issues, I have no current UK example to hand, but I can exemplify this by outlining the behaviour of our closest ally, and the principal recipient of bulk data, the United States.

The greatly respected President of the USA, Mr Barack Obama, used to go to the White House Situation Room on a Tuesday once a month to authorise a kill list—20 people who were going to be assassinated by the United States and who were perceived to be its enemies; typically, al-Qaeda officials and the like. President Obama talked proudly of how the best technology—artificial intelligence, algorithms and, crucially, bulk data—was being used to identify targets.

However, that comes with enormous risks, most plainly shown by the case of Ahmad Zaidan, who was selected for targeting by the US National Security Agency based on algorithms using bulk data. Fortunately, he was not assassinated. I say “fortunately” because there had been analysis of his telephone contacts and he had talked to Osama bin Laden and all the al-Qaeda high command, but, before the drone strike was organised, it was suddenly realised that he was the Pakistan office head of Al Jazeera. The analysis had thrown up an innocent man who could have been assassinated.

That is why we must be careful about what is handed over without knowledge of the bulk data. If we give greater legal cover to officials sending bulk data to other countries, cases of bulk data being used in the commission of serious crimes abroad—even against innocent people—will happen more frequently.

The powers given by the so-called “007 clause” are already too loose. Further loosening of the powers of the security and intelligence services could lead to further mistakes of execution and policy. Even slight carve-outs could lead to major problems. Under clause 27, the intelligence services or armed forces would be exempted if they are carrying out their proper function, but it is not clear what that will mean in practice. I have probably been one of the major critics in this House of torture and rendition, but I never believed that our officials were motivated by anything other than patriotic duty. I knew a large number of them, including the Ministers and senior officials involved, and they were not psychopaths. They thought that they were protecting our country and our national security. They thought that they were carrying out their proper function. However, intending to do good does not make evil right, and that is what happened. It has undermined both the liberty and the honour of our nation. In the week after Remembrance Sunday, we should remember that.

In the law, there is already a defence of acting reasonably. There is no obvious reason to go further than that. The dangers of doing so are stark; I hope that I have exemplified them. Instead, clause 27 creates an unnecessary carve-out for officials and Ministers. How can we reasonably criticise Saudi Arabia or Russia when they carry out foreign assassinations if they can point to our creating a law that allows us to do the same? For that reason, and that reason alone, I stress that I want the House to strike down the clause.

We are short on time, so I will talk only to amendment 12, which would take out clause 83. That clause will allow the courts to reduce damages paid to people who have suffered as a result of a crime—maybe torture—carried out by us. Again, it is, along with all the reductions of damages proposals, unnecessary. I will give not my view but that of the Government’s own independent reviewer of terrorism legislation, Jonathan Hall KC. First, he said that, given the existing legislation, why do we need anything else? Secondly, he said that the new provisions

“introduce a lower threshold than under the 2001 Act” and that the lower threshold for final deprivation of property is “novel”—by that, he means that it is dangerous. Finally, he said that the courts will already give “appropriate respect” to the views of the Government, so why do we need to go further?

Much of the Bill is important and necessary, but it is incredibly important that we learn from our own history, and in the last 20 years that history has been tragic. We should learn not to repeat that tragedy.

Several hon. Members:


Photo of Nigel Evans Nigel Evans Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. I will now announce the results of the ballot held today for the election of the Chairs of the Education Committee and the Transport Committee. Due to the compressed time in this Report stage, I will not take any points of order until just before the Adjournment at the end of business today. I hope everybody will be happy with that.

In the Education Committee Chair election, 452 votes were cast, one of which was invalid. The counting went to two rounds. There were 436 active votes in the second round, excluding those ballot papers whose preferences had been exhausted. The quota to be reached was therefore 219 votes. Mr Robin Walker was elected Chair with 228 votes.

In the Transport Committee Chair election, 448 votes were cast, none of which were invalid. The counting went to five rounds. There were 369 active votes in the final round, excluding those ballot papers whose preferences had been exhausted. The quota to be reached was therefore 185 votes. Iain Stewart was elected Chair with 192 votes.

Both Chairs will take up their posts immediately. I congratulate Mr Robin Walker and Iain Stewart on their election. The results of both counts under the alternative vote system will be made available as soon as possible in the Vote Office and published on the internet. Congratulations once again.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

It is a pleasure to follow Mr Davis. He has our full support, both in relation to amendment 14 and to what he said about clause 83.

A Bill of this nature is absolutely necessary and overdue, but I share the concerns of colleagues about the amount of time provided for debate and scrutiny. So short of time do we appear to be that the Minister, much as I respect and like him, did not actually even seem to speak about any of the amendments he has tabled today, including Government amendment 60, which is, frankly, absolutely outrageous, but I will come on to that shortly. It is essential, yes, that we update our espionage laws, but it is also essential that we update them correctly. If we do not do it correctly then: first, we risk severely criminalising behaviour that was not intended to be criminalised; secondly, we leave loopholes to be exploited by those who mean us harm; and thirdly, we confer powers way beyond what is reasonable or required. Our amendments seek to address all three dangers.

First, we have concerns about behaviour that should not be caught in the provisions. We have concerns about the impact of the legislation on protesters, journalists, non-governmental organisations, whistleblowers, those acting in the public interest and, now, victims of trafficking. In some cases, that is because of how some of the specific offences have been framed. For example, by catching someone who might

“approach or be in the vicinity of” a prohibited place, clause 4 risks seriously criminalising protesters at Faslane for example, assuming the Government still consider nuclear weapons as essential to the

“safety or interests of the United Kingdom”.

Similarly, the National Union of Journalists is concerned that clause 5 risks a chilling effect on its photographers by criminalising any photo of a prohibited place as “inspecting” it. We tabled amendment 120 to protect protesters who are simply in the vicinity of a prohibited place, and amendment 133 to ensure that taking a photograph of a prohibited place is not automatically considered an inspection of it and therefore an offence.

Other groups risk being caught in the Bill, because some of the overarching terms and the framework for deciding when there is foreign influence is perhaps not as tightly drafted as it should be. For example, the very important notion of the

“interests of the United Kingdom” is central to quite a few offences, yet that is a nebulous concept and appears to be whatever the Government of the day choose it to be. Depending on which day of the week it is and which Prime Minister is in office, fracking might be something the Government think is in the

“interests of the United Kingdom”.

That is an unsatisfactory way to describe a criminal offence, so we have offered a way to try to fix it. Amendments 116 and 118 list specific critical interests, above day-to-day political agendas of the Government, which need protecting. The Minister complained in Committee that the list was not long enough, so we added the ones he complained were missing. It is important to say again that the reason why we included those particular interests is that we are mirroring a scheme under the Official Secrets Act 1989, where specific interests requiring protection are set out: security and intelligence, defence, international relations and crime. The key point is that

“interests of the United Kingdom” is too broad and too wishy-washy.

We also have concerns about the “foreign power condition”, which is pivotal to deciding whether behaviour is caught by some of the new offences. In particular, as we have heard, there are many NGOs and other institutions with financial links to other Governments. That is why we tabled what is now amendment 124 in Committee to propose that the condition is made out only where the finance was specifically for the act that will be criminalised. However, we welcome Government amendments 48 and 49, which aim to address a similar problem.

Ultimately, like others, I think that the best answer to all these questions is not to make various tweaks here and there. If anything, our scrutiny of the Bill has convinced us more than ever of the need for an overarching public interest defence. We share the regret that we will not have that chance today.

Finally on this group of amendments, we also need to worry about trafficking victims who could be prosecuted as spies or foreign agents. I agree that it is outrageous for the Government to have introduced amendment 60 less than one week before the final stages of the Bill without explanation or evidence. Frankly, I dread the modern slavery legislation that seems to be coming down the track if this is a foretaste of it. People trafficked, enslaved and coerced into activities under this Bill, such as photographing a prohibited site or stealing information, could be punished as though they are guilty of espionage.

I alerted various trafficking charities and experts to the amendment on Monday. They were all completely and utterly unaware of it and certainly had not been consulted on it, despite some of those organisations being on Home Office working groups and the like. They have a million questions to ask about it. Frankly, I am so irritated about how the amendment has been sprung on us that I am absolutely determined that we have the chance to vote on it this evening.

Turning to the loopholes for those who would seek to harm us, I will mention a couple of amendments. On clause 2, on the theft of intellectual property and so on, we queried why that should be an offence only outside the UK in very limited circumstances, even though UK trade secrets were being protected and stolen under the offence. We tabled amendment 117 to ensure that there is also an offence not just when a UK citizen is a victim, but when a UK resident or person in the employment of a UK person is. Government amendment 40 addresses that point insofar as people who live in the UK, but it does not cover employees.

Most significantly, we worry about the rules on registration in relation to the foreign influence registration scheme. If a specified Government seek to direct activities directly in the UK, the operation of the foreign activity regime seems clear. However, it is hard to imagine that that is how things will generally operate. Surely intermediaries will be used much more often. If that intermediary is in the UK, again, the scheme should work, but what if the intermediary is still in a specified country? In theory, it seems as though the intermediary will be under an obligation to register the agreement, but that will not happen. Meanwhile, those doing the activities in the UK seem to have no obligation to register anything, as they have no direct agreement with the specified Government. That seems a possibly significant loophole, so we tabled amendment 130 to flag up the issue of how we deal with intermediaries.

Thirdly and lastly, let me turn to amendments that seem to grant excessive powers to the Government. Amendment 121 places restrictions on the additional sites that the Home Secretary can deign to be prohibited. Prohibited places have always previously related to security, so we think that new sites should also relate to security and that the nebulous concept of “interest” should not be enough to justify allowing a Home Secretary to add extensively to that list.

Clause 70, which is part of the registration scheme, creates ludicrously broadly drafted powers for the Secretary of State to ask for pretty much any information that she wants from any body or organisation that is or should be registering a scheme. That will be a huge number of bodies. However, if we look at clause 70, we see that there is no limit on the type of information that can be requested or the purpose of the request. There is no means to challenge or appeal against a notice. In Committee, the Minister said that the clause’s purpose was to allow the Home Secretary to seek such information as is necessary to make sure that people comply with the registration requirement. None of that is in the Bill, however, so amendment 131 would put that restriction in it. It is the bare minimum protection that we require.

The major overreach has been described by the right hon. Member for Haltemprice and Howden: clause 27’s carve-out for the security services in relation to the Serious Crime Act. I echo what the shadow Minister, Holly Lynch, said. We approached this with an open mind. Officials and staff have been successful in persuading us of the need for many parts of the Bill, but not here. As was remarked on Second Reading, other protections are in place. I have not heard any suggestion that members of the Intelligence and Security Committee have been persuaded by the services, so we, too, remain concerned that the proposal provides an enormous and unwarranted protection from prosecution, even where Ministers or officials provide information that leads to torture overseas.

The right hon. Member for Haltemprice and Howden has also addressed the powers provided to courts in relation to the award of damages, which rather stink of Ministry of Justice virtue signalling and politics. There are already powers to deal with those dangers, as the Minister sort of accepted today in his letter to members of the Bill Committee. Amendment 132, which is directly informed by the comments of Jonathan Hall KC, the independent reviewer of terrorism legislation, would at least mean that there has to be proof on the balance of probabilities before damages can be permanently confiscated—a modest proposal, and one that the right hon. Member has advocated. We are also sympathetic to the right hon. Member’s amendments to take the relevant provisions out altogether.

The Bill’s legal aid provisions are, frankly, utterly farcical. It is the criminal justice system that should be used to punish people, not the civil justice system. Our amendments 125 to 127 would clip the wings of the state threat prevention and investigation measures by ensuring that the normal civil test applies before they can be imposed, by reducing the number of times they can be extended, and by taking out provision for polygraph testing.

The powers to retain samples obtained after arrest under clause 25 indefinitely, rather than within the usual three-year limit, are too wide. If someone has had even a youth caution for something totally unrelated, their samples can be kept on file forever, unlike most other people’s. Amendment 123 would restrict indefinite retention to those who have previous convictions under the Bill.

In conclusion, we need some of the Bill’s provisions, but in too many ways it goes too far, and it certainly goes too fast. Our amendments seek to remedy that.

Several hon. Members:


Photo of Nigel Evans Nigel Evans Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. As hon. Members can see, there is quite a bit of interest in the debate. I am introducing an initial six-minute speaking limit, which I am sure will be reduced to accommodate everybody.

Photo of Iain Duncan Smith Iain Duncan Smith Conservative, Chingford and Woodford Green

I am grateful, Mr Deputy Speaker. I will not take that long.

Before I speak to the amendments in my name and those of other hon. Members, which are quite narrow, I want to address Government amendment 60, which I am quite surprised to find in the Bill. Peculiarly, it sets out a series of offences to which it is no longer a defence to claim modern slavery. I am surprised that many of them are not already captured elsewhere. Some of them are very general, such as “entering a prohibited place” and “foreign interference: general”. I always get worried when I see the Government tabling amendments that say things like “in general”, because it really means that they want to do something else that we do not know about. I accept that the amendment will make it into the Bill today, but I want to see what comes back from the other place once the Lords have managed to probe it and find out about it. I would be grateful if the Minister explained why the Government suddenly needed to put it in the Bill.

My amendments would strike out subsections (1)(b) and (2)(b) of clause 68. The Government seem almost to have cut and pasted some of the US legislation and possibly the Australian legislation. I know that the exemption for legal services appears in that legislation, but I am concerned. My amendment is a tightening-up exercise. I really wonder why we think it necessary to provide such a general exemption for legal services. I am sorry if there are practising lawyers present in the House, but if I know anything at all about how lawyers work, they will find ways to exercise the process of lobbying on behalf of organisations and individuals with no right to be here. They will not call it lobbying; they will find some term that is covered by “legal services” and then get on with it. That will also be a way of getting around the Crown prerogative.

I would be grateful if the Minister looks at the issue carefully and understands that there is a problem. I have talked to a lot of lawyers, and most of them believe that the exemption for legal services is not necessary. There is no reason why they should be exempted; the rules should apply directly to them. Either the definition of what constitutes legal services needs to be tightened up very carefully, or the exemptions should be struck out as the amendments require. I would like some indication from the Minister at the Dispatch Box that the Government will look seriously at the matter in the Lords and act on it. An exemption for legal services is unnecessary and will lead to lobbying by the back door; I am sure that all sorts of terms will be found that are covered by “legal services”.

Several hon. Members:


Photo of Nigel Evans Nigel Evans Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. After the next speaker, the speaking time limit will be five minutes. I call Dan Jarvis.

Photo of Dan Jarvis Dan Jarvis Labour, Barnsley Central

It is a pleasure to follow Sir Iain Duncan Smith and everyone else who has spoken, and a particular pleasure to follow Mr Davis. I agreed with all the points that he made. He has done the House a great service in explaining the context of the amendment that we tabled, and I am very grateful for it.

I say that mindful of the fact that we live in a world that continues to create new threats to our safety and way of life from a wide range of hostile states and actors. While their methods and origins vary, their intent is clear: to undermine our national security. Like others—like everyone who is in the Chamber at the moment, I am sure—I personally take these issues very seriously, and I also appreciate the complexities of the issues that we are debating today. None of this is easy, and I know very well the challenges that our security and intelligence services face every single day. I also know very well that our response to terrorism must always be unequivocal, but must always be legal.

I do not doubt the intentions that underpin the Bill. I have known the Minister for a long time, and I absolutely believe that he wants to do the right thing. This is the prism through which I view the Bill: I view it as someone who cares deeply for our country and wants to scrutinise the Bill in order to make it better, and to make our country both stronger and safer. It was in precisely that spirit that I tabled amendment 14, along with the right hon. Member for Haltemprice and Howden, with whom I have worked for some time on these issues.

I acknowledge that the Government’s intent in tabling clause 27—as I understand it—is to protect UK personnel in the intelligence services and the armed forces if they are found, in the course of their duties, to have committed a crime. However, I consider that the scope of the clause is too wide, and I fear that it would instead end up protecting Ministers and senior officials. As we heard earlier from the right hon. Member for Haltemprice and Howden, section 7 of the Intelligence Services Act already allows Ministers and senior officials to authorise some potentially unlawful activities, carried out by UK personnel overseas in the course of their duties. Clause 27, however, would provide protection for Ministers and senior officials who “encourage or assist crimes overseas”, such as giving a tip-off that leads to someone’s torture, as opposed to the direct commission of the crime itself. In that sense, it is, as drafted, unlikely to help UK personnel overseas who receive separate legal protections under the Intelligence Services Act. To that end, it is only right for the decision to prosecute, or not, to rest with the Director of Public Prosecutions, and not to be legislated away.

If clause 27 remains in the Bill, it will mean there is little chance of seeking justice in a criminal court for any crimes and human rights abuses abroad that have been enabled by UK Ministers and senior officials. The reality is that this will send a message that the UK Government are above the law, with near-guaranteed immunity for human rights abuses overseas. Clause 27 will undermine the UK’s position as a leader in promoting human rights, and prevent criminal sanctions against those who have enabled torture.

When providing evidence to the Intelligence and Security Committee in 2018, a senior security services official apparently described existing protections as “belt and braces”. Clause 27 would add a suit of armour, shielding the Government further from what I consider to be entirely legitimate scrutiny and accountability. It is using a sledgehammer to crack a nut, and that is not how we should be doing things. Stronger national security should not mean weaker human rights.

I oppose clause 27 because I believe that the Government’s intentions do not align with its consequences. I ask the Minister to listen carefully—as I am sure he will—to the concerns that are being raised this afternoon and have been raised with him previously, and to work with us to ensure that the Bill is improved and our country is kept safe, while also ensuring that human rights are protected. That is all I ask.

Several hon. Members:


Photo of Nigel Evans Nigel Evans Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. I have miscalculated—this is one of the reasons I was never made a Treasury Minister—and I want to give the Minister an opportunity to respond at the end. Sir Robert Buckland, you can have five minutes, but then we will go to four minutes.

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

Thank you, Mr Deputy Speaker. I will not be able to emulate the admirable record of my hon. Friend Sir Charles Walker, but I will do my best to be as succinct as possible. It is a pleasure to follow Dan Jarvis, who is right when he says that we have to strike a balance here: we need to protect our way of life but not protect ourselves out of the very values that we seek to defend—or, in other words, diminish the very rights that we want to protect. That is at the heart of all the national security legislation that I and others in this House have dealt with over the years. I am grateful to my right hon. Friend the Minister for Security for our conversations about these issues.

I cannot conceal my disappointment at the non-selection of new clause 8, in the name of Mr Jones, which was signed by me and others. It is inevitable that this issue will be revisited in the other place. There are two issues that arise from it that are of general application to the Bill and to the future reform of the Official Secrets Act, which has to come. The first is the potential creation of a public interest defence, which in my view is an essential substitute to the rather random guessing game that we have at the moment, with jury trials—however well directed the juries might be—ending up with verdicts that, to many of us, seem perverse.

The second relates to the recommendation to create a statutory commission to allow people to raise their concerns—to whistleblow, if you like—through an approved process. The Law Commission’s report of September 2020 made those very clear and cogent recommendations and I commend them strongly to my right hon. Friend the Minister. I think they go hand in hand. The time is here for the Government to start addressing these issues and to adopt those recommendations. To quote my hon. Friend the Member for Broxbourne in another context: if not now, when?

Photo of Kevan Jones Kevan Jones Labour, North Durham

There are many things in the Bill that I support, but I think it is a missed opportunity. It has been a messy process in Committee, as has been said, as a result of the number of Ministers we have had dealing with it, the late inclusion of things like the foreign agents registration scheme and the completely missed opportunity to reform the Official Secrets Act 1989. The new Minister is very good, but he is a bit like a friendly old bank manager: he listens to you, he agrees with you and he is sympathetic, but you do not get the loan at the end of the day. The point is, however, that this Bill will be changed radically in the other place, because we have not had the proper amount of time to do it.

I want to refer to clause 27, which has been spoken to by Mr Davis and my hon. Friend Dan Jarvis. I was on the Intelligence and Security Committee when we were discussing detention and rendition, and some of the things that went on then did not make for pretty reading. We do not want to go back to those days. Things were changed in the consolidated guidance and the principles were brought forward. One of the sops for the Committee—a phrase that everyone kept using—was that there could be a chilling effect on the security services. Everyone kept asking what the chilling effect would be.

A commitment was given to allow the ISC to have classified information on this, and the Chairman of the ISC wanted that before today because it would have given us an opportunity to say whether we were satisfied. Unfortunately, that was turned down, but we have had the initial information and I and other members of the Committee are not yet satisfied that there is justification for this. We have asked for more information, which we are going to receive, but it would have been handy to have it before today. Unless there is good cause, frankly I think it will be interesting to see how this can be justified.

Referring to something that Sir Robert Buckland said, I am disappointed that my new clause 8 was not selected. This is one of those things in the Bill that will come back. The equivalent new clause was selected in Committee only because James Gray and my hon. Friend Rushanara Ali in the Chair agreed to it, so I was not surprised that the Clerks knocked it out of selection, but it will not go away. My fear is that a great opportunity to modernise our national security landscape is being completely missed. I do not think we will see a Bill on public interest or reforming the 1989 Act, but it desperately needs to be done.

The way in which the foreign agents registration scheme was introduced in Committee was completely unacceptable. Not only are the Government trying to reinvent the wheel; they are trying to invent a new device. Part 2 will never be used, in my opinion, because it would create so much diplomatic fallout.

Finally, we need transparency on the public register. I have had representations from universities, including the Russell Group, that are concerned about how this provision fits with other Bills currently going through the House, such as the Higher Education (Freedom of Speech) Bill. This is a minefield. It is overcomplicated, and it could be a lot simpler and a lot more belt and braces. Although I welcome what is happening, this Bill will be very different when it comes out of the Lords. We have missed an opportunity, and it is the Government’s fault. When this Bill is enacted, we must not think that things cannot change any more, because there are other things that need to happen.

Photo of Jeremy Wright Jeremy Wright Conservative, Kenilworth and Southam 5:15 pm, 16th November 2022

In view of the time, I will only briefly say something about three areas of the Bill. First, amendment 14, in the name of my right hon. Friend Mr Davis seeks to remove clause 27, which excludes liability for assisting an offence overseas if the relevant behaviour is necessary for the proper function of the intelligence agencies or the armed forces. The key question being: how is that materially different from the defence to encouraging or assisting crime in section 50 of the Serious Crime Act 2007 of acting reasonably?

I am a member of the Intelligence and Security Committee, as is Mr Jones. As he said, we are due to receive further evidence on clause 27 and we are, therefore, not yet in a position to provide a view on it. It is probably right that I reserve my final judgment until I have considered that further evidence but, speaking personally, I am not persuaded that, within the parameters of the reassurance and protection it is reasonable to offer those acting on behalf of the intelligence agencies or the armed forces, clause 27 achieves anything that the current section 50 defence does not. The Minister will have to explain the difference between acting reasonably and acting in the proper exercise of a function, as this clause requires.

Photo of David Davis David Davis Conservative, Haltemprice and Howden

My right hon. and learned Friend will remember that, when the Overseas Operations (Service Personnel and Veterans) Act 2021 was first brought before the House, the International Criminal Court told the Government, “If you go too far with this and nobody can be prosecuted, we will prosecute.” Is there not the same risk with clause 27?

Photo of Jeremy Wright Jeremy Wright Conservative, Kenilworth and Southam

I hope my right hon. Friend is wrong, but the Government have to consider it for exactly those reasons. It would be not only wrong but profoundly embarrassing if the United Kingdom were to find itself in that position.

I hope the Minister can clearly explain the difference I outlined, because the only difference I can see is that it could be argued that “acting reasonably” may be applicable to more circumstances and, therefore, offer arguably broader protection than “acting in the proper exercise of a function.” We have heard it argued that the current defence is not sufficiently legally certain but, from experience, legal certainty is an elusive quarry. The concept of reasonableness is very familiar to the courts in a variety of contexts. Anyone looking for absolute certainty in every case will not find it, because all cases are different and must be considered on their merits.

The second area I want to mention is amendments 8 to 12, in my right hon. Friend’s name, dealing with the potential reduction of damages in national security proceedings where a successful claimant has committed wrongdoing related to terrorism. It is worth noting in passing that such wrongdoing is not limited to convictions for criminal offences, and we need to understand from the Minister what level of wrongdoing in this context would suffice to put someone’s damages in jeopardy.

The operative measure is clause 58(3), which says

“the court must decide whether, in light of its consideration of the national security factors, it is appropriate for it to reduce the amount of damages”.

So we need to know what “appropriate” means—or should mean. Surely it should mean appropriate in all the circumstances of the case and in the interests of justice overall—it would be helpful if the Minister could confirm that—and that there is no presumption in favour of reduction, nor is there an instruction to reduce damages where the factors set out are present. That is how I understand the clause, but I would be grateful if he could confirm it.

Lastly, I wish to discuss amendment 38, which would remove clause 84 and stands in the name of Joanna Cherry. That clause provides that, save for in very limited circumstances, civil legal aid would not be available in any case where it otherwise would be to those previously convicted of terrorism offences. My concern is that this is a very significant shift in the principles applicable to legal aid. At the moment, we award legal aid on the basis of the merits of the case and the financial circumstances of the individual applying, never before doing so on the basis of their previous character. This change would be very significant and it would need significant discussion, which, by definition, given the clock in front of me, it is not going to get today.

We need to be clear about what we would be saying if we made that change. We would be saying that whatever happens to that individual—however blatantly their rights may be infringed, in cases wholly unrelated to their previous conduct—the state will not assist them to defend their rights as it otherwise would, because of a previous criminal conviction. I am not sure that would be right and I am not sure that if it is, it makes any sense to specify only terrorism offences, rather than any other serious criminal offending. But whether it is right or wrong, we need to discuss it properly and not have it tacked on to this Bill, which is about something completely different, with very limited time to discuss it.

Photo of Alistair Carmichael Alistair Carmichael Liberal Democrat Spokesperson (Home Affairs), Liberal Democrat Spokesperson (Northern Ireland), Liberal Democrat Spokesperson (Justice)

It is a pleasure to follow Sir Jeremy Wright, who did the House a great service in bringing to us in four minutes what could have been the subject matter of a whole afternoon’s debate in itself, thus highlighting the total inadequacy of today’s proceedings for proper scrutiny of this Bill. I fear it will be filleted when it goes to the other place, and it deserves to be.

I added my name to new clause 8, but it is not available to debate and discuss. So much of what is in the Bill risks offering protection to people who do the wrong thing in the service of our country, while those who seek to expose that wrongdoing are to be left completely unprotected. Others have said it before, and I say it again now: this was the perfect opportunity to provide protection of that sort. If not now, when are going to see it?

It is a matter of significant regret that in an area of public policy where there is a substantial and natural consensus across the political parties, we have come to this stage in the proceedings of the Bill with so much division and disagreement, albeit a disagreement between those on the Treasury Bench and the Government Back Benches, not just between the parties. I do not think anybody in this House would not want to promote the security of our nation, and we all understand the complex and difficult situations in which pursuing that work often places people.

We also know, because it is human nature as much as anything else, that in these difficult and complex situations it is often possible to persuade oneself of just about anything. When that happens, it is necessary that somebody, somewhere, can be held accountable for it, because we are a country that believes, still, in the rule of law, and these things matter. That is why my colleagues on the Liberal Democrat Benches and I are so concerned about the content of clause 27 and clauses 79 to 83.

As I mentioned in my intervention on Mr Davis, the cases about which we know and are rightly shocked, we know about only because these matters came into the public domain by mere happenstance. It is eminently possible that the circumstances of Belhaj and Boudchar would not be known to us today but for the fact somebody who happened to be walking around Gaddafi’s palace during the fall of his Government found the papers that revealed the extent to which rights had been deliberately traduced. It is surely wrong that there should be protection for people who behave far outside British standards, notwithstanding Government policy and indeed the law.

The same is true in relation to clauses 79 to 83, which remain the subject of massive controversy. I am certain that they will be revisited, hopefully with more detail and vigour than we have been able to give them today, because they do not belong in a Bill of this sort. I hope that, when the Bill eventually comes back to this House, it comes back without them.

Photo of Ben Everitt Ben Everitt Conservative, Milton Keynes North

It is a pleasure to follow Mr Carmichael and to see so many members of the Bill Committee in the House on Report. It was a very constructive Committee, and I am pleased that we are all still vaguely getting on.

As the Minister said in his opening remarks, a number of clauses in the Bill update espionage legislation that goes back to world war one. Obviously we do not have time to go through all of them, but after putting the Bill into context, I will spend some time talking about clauses 13, 14, 20 and 21. The context is important. In my lifetime, and since the end of the cold war, we have lived through an era of what could be considered unprecedented global peace. In many ways, in the ‘90s, we took our eye off the ball. Once the Berlin wall came down, we took our eye off the ball on state-based threats. When things got hot in 2001, after 9/11, our national security legislation and our activity were focused much more on counter-terrorism, so now is the time to update our espionage legislation to counter state-based threats as well as counter-terrorist threats.

It is clear that state-based threats have not gone away. There are more Russian spies in London now than there ever were at the height of the cold war.

Photo of Ben Everitt Ben Everitt Conservative, Milton Keynes North

Because I have read it. [Interruption.] I will give sources to the House of Commons Library if I have to.

Those hostile threats are a real and present danger. Russia in particular is a danger. We know that the Skripal poisonings were the work of the GRU. We know that Russia continues to implement a range of hybrid techniques that undermine what it sees as its adversaries—to make it clear, that includes us. The use of disinformation, particularly through bot accounts on Twitter, has been used to foster division and political instability in countries.

The head of MI5 has declared that China, not Russia, is the biggest long-term threat to Britain’s national security. It is said that if Russia is a tropical storm, then China is climate change. This new threat requires new measures to protect us. We need to create new offences to tackle state-based sabotage. I refer to clause 13, in particular. I would argue to my right hon. Friend Sir John Hayes, who is not in his place, that we do go far enough.

Part 2 of the Bill covers prevention and investigation measures, which update our legislation to mirror the counter-terrorism legislation that we learned so hard in the noughties. In many ways, that reflects the new foreign intelligence threat that we face, which is much more like the threat of terrorism from the past 20 years. Espionage has never been the gentleman’s game that is portrayed in books and films, but now, in particular, we face some pretty gruesome threats. Clause 21, on arrest and detention, is also incredibly necessary in this day and age.

In summary, I support the Bill. We must bring our espionage laws up to date and into the 21st century.

Photo of Chris Bryant Chris Bryant Chair, Committee on Standards, Chair, Committee on Standards 5:30 pm, 16th November 2022

I, too, support the Bill, but I think part 3 is a complete mess. I do not think it will survive long in the House of Lords—I hope they do a proper job of scrutinising it, because we are certainly not able to do a proper job of scrutiny this afternoon. The Minister is a lovely chap, but if he were on the Back Benches, he would be saying exactly what I am saying now. We know that Ministers do that, because only days ago, George Eustice, the former Secretary of State for Environment, Food and Rural Affairs, told the whole House that the one thing he had been proclaiming to the world—that the UK deals with Australia and New Zealand were wonderful—was not what he really believed.

Of course, we need to tackle political interference by hostile states in the United Kingdom. Some of us have been arguing that point for a very long time, which is one of the reasons why I would like to see the tier 1 visa report published—I see the Minister nodding, so let us hope that he will have produced it by the end of the week. Secondly, I would like us to have the full Russia report, so that we know exactly what the Government knew about interference in British politics.

Some interference is overt, but much of it is covert, as Ben Everitt has just referred to. Some of it comes not from embassies, but from all sorts of different people who approach MPs and Ministers and seek to influence the British political system. Some of it is online targeting through bots and trolls, which may be done from St Petersburg, Tehran or wherever, but some of it happens on our own streets. Sometimes, it happens in Parliament through all-party parliamentary groups that receive support, whether secretariat or financial, that comes directly or indirectly from a foreign power. We need to be careful about that. We on the Standards Committee have had direct advice from Parliament’s director of security that this is the Achilles heel of the British political system at the moment.

MPs and peers, of course, do not have the resources to be able to personally check whether the person who is coming through the door has legitimate bona fides; we simply do not have that intelligence resource. That is why one of the amendments I have tabled seeks to establish that, once somebody has registered that they are working for a foreign power, they should declare that when they come to see a Member of Parliament or Government Minister. In Parliament, we do not just register: we declare. That is a simple thing and I am bewildered that the Government are not prepared to accept it.

My new clause 2 would, very simply, make it a new criminal offence for an MP or peer to work for a foreign power that has been specified by the Government to be a danger to the country. Why would anybody vote against such a measure? I have no understanding of why the Government would oppose it. Without my new clause, the Government might decide that, for instance, Iran or Belarus was to be one of the countries on the list and introduce that by regulation, but an MP or Member of the House of Lords would be free to work for that foreign power—all they would have to do is register the fact that they are doing so. I am sorry, but I think that should be a criminal offence. People have talked too easily of treachery and traitors in the political domain over the last few years, but this is an open door to treachery and treason, and I think we should close it.

Photo of Antony Higginbotham Antony Higginbotham Conservative, Burnley

It is a pleasure to speak in this debate and to follow Chris Bryant. I agree with everything that my hon. Friend Ben Everitt has said. I am incredibly supportive of the Bill overall, but I do have questions that it would be helpful to get clarity on in this debate, or—what I think is more likely—when the Bill goes to the other place. I say that because the questions and issues we want clarity on are so substantial that we cannot do them justice in the limited time we have today.

For me, those issues revolve around the foreign influence registration scheme and the exemptions to that scheme. I am mindful that the scheme was introduced into the legislation after we had taken evidence in Committee, so we did not get the chance to question some of the experts on what it would look like. I will address my remarks to clause 68 and Government new schedule 2, and to amendments 15 and 16, which stand in the name of my right hon. Friend Sir Iain Duncan Smith. I am particularly concerned about the legal services exemption. I do not understand why such a broad exemption is required. As my right hon. Friend said, it might be that we are just copying the US legislation, but we need a level of explanation. Removing the legal exemption is not about restricting access to legal services—we still fundamentally believe in natural justice and the rule of law—but we need transparency to prevent exactly the kind of lobbying that we have spoken about. I know that we are unlikely to vote on the amendments today, but we need that kind of transparency.

If we are trying to copy or mirror some of what the US has done, I would question the lack of any kind of exemption for academia, which Mr Jones spoke about. I have spoken to Universities UK, which is concerned about the enhanced tier proposed in FIRS and the impact it could have on UK R&D and on our competitiveness. The US registration scheme clearly has an exemption for

“religious, scholastic, academic, or scientific pursuits” provided that no political activities are included.

I am saying not that there should be an exemption for academic services but that we in this House need to debate properly what exemptions, if any, should apply to the scheme. Should there be an exemption for legal services? Should there be an exemption for academic work? I do not think we have the opportunity to consider that properly today, but I look forward to following the debate in the other place. I ask the Minister to think about some of those exemptions and, if we are to proceed with them, to give a proper explanation to the House about why they might be necessary.

Photo of Stewart Hosie Stewart Hosie Shadow SNP Spokesperson (Cabinet Office), Shadow SNP Spokesperson (Constitution)

The Minister said in relation to the foreign influence registration scheme that other countries have had similar provisions for some years, and of course, that is absolutely true. It is also true that the ISC is very much in favour of introducing a foreign influence registration scheme. We are concerned, however, that the scheme as proposed is more complex than the ones in the US and Australia but that it simultaneously does not go far enough, which is a problem.

Unlike the US and Australian schemes, the proposal is for the one here to be two-tiered. I welcome Government amendments 63 to 94 to restructure clauses 61 and 64, which at least makes some of this a little more comprehensible. However, that still leaves us with a primary tier that will capture all arrangements and activity undertaken on behalf of any foreign power for the purpose of influencing a political event or decision—that is welcome at face value—and a secondary tier designed to capture all other activity beyond political influence, including, for example, acting as a foreign intelligence officer. For arrangements or activity to require registration, however, they have to be undertaken on behalf of a country set out in secondary legislation, so the provision does not necessarily apply automatically to every country.

As I said earlier, it is difficult to understand why acting covertly as an intelligence officer outwith the political influencing sphere, for example, applies only where the foreign power is set out in secondary legislation. It is perfectly possible that intelligence operations will be undertaken by countries that are not named in the regulations and so will not require registration. That is self-evidently an omission and a weakness. Requiring all countries to register such activity would be a stronger deterrent.

As the scheme does not yet name a particular country that may be registered under the second tier, it is not clear which countries the Government intend to name when the Bill becomes law. It is also not clear what criteria will be used when deciding which countries to add to the list. Furthermore, as has been pointed out, these things can take some time. I do not know how swiftly the Government might react to add a new country threat, and I am certainly not at all convinced that when that threat is lifted, the Government will act swiftly to remove a country from the list in the secondary tier.

This is a bit of a dog’s dinner. The real risk is that the secondary tier, which could be valuable tool and which I want to see work, might end up not being used. As the Security Minister recognised in Committee, use of the enhanced registration requirement will be “limited”. We do not want this to be limited; we want it to be comprehensive, to be able to capture the majority of the risks. It would surely be far more effective to have one tier which applies to all countries and a broad range of covert activity.

Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington

For the record and as a message to the other House, I wish to say that I believe that the Government forcing through such a serious Bill in so limited a period of time today is a matter of contempt of this House and the parliamentary process.

I rise to speak because over a decade ago I gave an undertaking to one of my constituents that I would seek to ensure that no other person would go through what he had gone through. It worries me that sometimes this House’s collective memory is lost, so it is worth reminding people of what was happening in that period. There was a culture of unaccountability—almost of impunity—among some of our services, and the way they liaised with other nation states and their intelligence services resulted in the torture of our constituents.

My constituent was a young Asian doctor, who had just finished his training. He went on an altruistic, charitable expedition to Pakistan to work in hospitals there. He was picked up and for six weeks he was tortured. At the end of each torture session, which consisted of thorough beatings, he was interrogated by what could only be MI6. It was clear to us. I saw Ministers; alongside the Ministers were civil servants, and alongside them were, I believe, intelligence officers. I got the same response as has been given today, with the same phrasing: “We do not condone or support or participate in torture.” Well, they did on that occasion, and scarred my constituent for life. Even though he is now a successful consultant, he lives in fear still.

What was happening is that decisions were taken here about the arrest of my constituent and the questions that would be put to him at the end of the torture, as though at the end of the exercise we could have clean hands. It was unacceptable. I support amendment 14 because I fear that, if we try to lift some of the protections that our constituents have, we will recreate that culture of unaccountability and impunity and others will suffer like my constituent suffered. That is why it is important not to lessen the accountability of decision makers at every level, whether they are on the frontline or in ministerial offices here.

My second point can be stated briefly. I am the secretary of the National Union of Journalists parliamentary group. What this Bill has successfully done—I have never seen it before—is unite the Society of Editors with the NUJ and various campaigning bodies. They say the provisions will

“strip away longstanding safeguards that are in place to prevent the wrongful access of journalistic material and are a risk to sources and investigative journalism more widely.”

They also say the legislation may “criminalise” some investigative journalism and “chill” whistleblowing.

It is not right to criticise Mr Speaker’s selection of amendments, but we were hoping that an amendment that was in order would be crafted at this stage to provide at least some protection—the public interest protection. That is why I support amendment 3, tabled by the Labour Front-Bench team. If the other place does not insert a public interest protection, a review of the legislation at an early stage will be critical and may result in such a provision. I congratulate Joanna Cherry and Stewart Malcolm McDonald for the litany of amendments they have tabled trying to ensure at least some protection in the detail of the legislation for journalists, whistleblowers and others. I regret that it looks as though their amendments will not be made today.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Chair, Human Rights (Joint Committee), Chair, Human Rights (Joint Committee) 5:45 pm, 16th November 2022

I was here to speak to new clause 7 and amendments 17 to 28 and 30 to 39, but there is not enough time for me to do so. That is most regrettable, given the importance of the Bill.

I am here not in my personal capacity but as Chair of the Joint Committee on Human Rights. Our duty is to scrutinise legislation to check its human rights compliance, and we have done that. I remind Members that the Joint Committee is a cross-party Committee with half its members from the House of Commons and half from the House of Lords. That is just as well, because it will be in the House of Lords that our amendments get the attention that I believe they deserve. Although I am not really a fan of the House of Lords as an unelected Chamber, I am very much a fan of second Chambers. Nevertheless, it is regrettable that such a small amount of time has been afforded to us today to debate this important Bill, which we believe has significant human rights implications. Given the short time available to me, I shall make some general comments; as I say, I hope that our detailed amendments will get the attention they deserve in the House of Lords.

We broadly welcome the attempt to modernise espionage offences, but we have some concerns about the Bill’s provisions. The Bill is a step forward and many of its provisions are broadly in line with the recommendations of the Law Commission’s recent review, but there are risks that some of the provisions are drawn far too widely and could criminalise behaviour that does not constitute a threat to national security. We think that other provisions would interfere unnecessarily and disproportionately with rights to freedom of expression and association and the right to protest, and that they may regrettably have a disproportionate impact on certain communities in the United Kingdom, particularly if new police powers are not exercised with restraint.

The provisions on prevention and investigation measures, which were not included in the Law Commission’s review, also engage the right to a fair trial, the right to liberty and security and the right to a private and family life in a way that gives the Joint Committee cause for concern. We are also very concerned about the restrictions on the grant of legal aid and on the awarding of damages to those who have been involved in terrorism. They risk impeding access to basic rights and legal protections, as other Members have elaborated on. We have therefore suggested that the Bill be amended in a number of ways but, as I say, there is not sufficient time for me to address any of the amendments in any meaningful way.

Let me say one other thing before I sit down. The Bill does not address issues relating to the unauthorised disclosure of information—sometimes known as leaks—despite it being a significant part of the Law Commission’s review. The commission set out clearly the ways in which the existing law engages and potentially breaches the UK’s human rights commitments under the European convention on human rights, and suggested ways in which law might be changed to overcome such issues. Although the Joint Committee appreciates that this is in many ways a complex and controversial area of law, we hope that that is not going to result in inaction, and encourage the Government to consult on legislative provisions as soon as possible.

We believe that reform of the Official Secrets Act 1989 is needed to ensure adequate respect for free speech. That is why I added my name to new clause 8, tabled by Mr Jones, which I very much regret we are not able to debate today. Put shortly, we need a public interest defence in this country.

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

This has been a very full discussion involving many people. Although I sympathise with those who have quite rightly made the point that we could always have more time for these debates, the truth is that we had a lot of time in the Bill Committee and we are going to have to do much more work on this subject as its various elements evolve with the technology and the challenge. The truth is that if we had had this debate five, 10 or 15 years ago, we would have been debating different subjects, different nations and different elements of technology that have evolved into the threat that we sadly face today. Although I recognise that many hon. Members have understandably raised the number of hours and days that we have had today and in the past few weeks, the Government have listened and adapted the Bill to many aspects that have been raised in different ways.

Photo of Chris Bryant Chris Bryant Chair, Committee on Standards, Chair, Committee on Standards

One thing that the Government have certainly had plenty of time to get ready is the tier 1 visa report, as promised by five Home Secretaries. When will the Minister publish it?

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

It will not surprise the hon. Gentleman to know that one of the first things I did on arrival at the Home Office was to ask for it to be prepared for publication. I will come back to him with it, I hope, urgently—I will let him know.

Many different points have been raised. I pay enormous tribute to my many right hon. and hon. Friends who have spoken and to those who have approached the Bill with the diligence and seriousness that the subject demands, particularly the hon. Members for Halifax (Holly Lynch) and for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), who have been extremely supportive critics and have been challenging in the right spirit. I am glad to say that those discussions have resulted in most of the Bill going through in the way that was intended, and that those challenges and changes have improved it.

I accept that there are some differences of opinion. On areas such as the Serious Crime Act and the changes to statutory requirements, I believe that the Government are right because the exercise of the functions of an officer of the state are exactly what should be the limiting functions of their powers. That is why this reform makes sense, although my right hon. and learned Friend Sir Jeremy Wright raised some important points and challenges that we will have to look at.

My right hon. and learned Friend also asked about damages and whether they followed in the way that he described, and I agree that they do. The point is that we should neither make it harder or more applicable to have damages, nor prevent it where judges seek the discretion to do so. Where they have that discretion, they may continue to do it, but we are asking them to look and consider the situation in which those damages arose to make sure that they are truly applicable. It is merely a review policy, rather than a block. That is an important element of the Bill; judges may already have that power but this measure merely puts it on the statute book.

Much of the debate has focused on whistleblowers and the public interest defence, and the way in which various people could argue that they are acting in the interests of the wider polity in raising different objections. This is a hugely important area and I understand that many hon. Members have raised different points. The head of MI5, the heads of various agencies and many others who have engaged on it have been absolutely clear on this point, however, because we need to make sure that we are not introducing any defence that forces the Government to reveal the damage that has been done in order to provide a defence.

The reality is that forcing the publication of damages may indeed be further damaging to the initial offence. That is why although I take the point about the public interest defence, which is a wider question for the whole of Government and the whole country, and I take the point about whistleblowers, which is again a wider question and not specific to the Bill, I am afraid that I hold with the head of MI5 and others who have been extremely clear on this point.

Photo of Kevan Jones Kevan Jones Labour, North Durham

With the greatest respect, that is a weak argument, because there can always be closed hearings on national security grounds. I say to the Minister that this issue will not go away—the courts are deciding it anyway. I would sooner state a protection in law than leave it to the whims of a jury, which is what we have now.

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

I have a great trust in our jury system, and I know the right hon. Member does, too.

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

Oh, he does not. I do have trust in our jury system and I do have trust in the Great British people to make decisions appropriately. One of the decisions sometimes made by juries is to strike out a case because they disagree with it. I am afraid that is simply one of those—

Photo of Mary Robinson Mary Robinson Conservative, Cheadle

The public interest defence has been mentioned on several occasions throughout this debate. Notwithstanding the strictures of national security and of this Bill, it is important that people have a reliable route that they can take when they want to expose wrongdoing. Does my right hon. Friend consider that an office of the whistleblower might be such a route? I know the public interest defence is very likely to come forward again.

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

My hon. Friend is absolutely right to raise that. It is not specific to this Bill, but it is something that many of us have been considering for a while. I certainly agree that wider consideration is important in ensuring that those who have legitimate grievances and objections to what they may have been asked to do have a valid route for raising such questions.

I will go through a few of the other points very quickly. My right hon. Friend Sir Iain Duncan Smith and my hon. Friend Antony Higginbotham raised the point about legal services, and they were absolutely right to do so. Let me be quite clear that this is about privileged legal co-operation. Therefore, that privilege should be exempt—it should absolutely be exempt—so that those who have access to legal rights should be able to exercise them without the state’s intervention. That is essential to the rule of law and, indeed, to the protection of human rights in our country.

I should also make it quite clear that the Government have heard very clearly the points made about civil legal aid. These will be receiving very serious consideration in the coming days, and I look forward to updating the House in due course on where that goes to.

I briefly thank for their insights my right hon. and learned Friend Sir Robert Buckland and my hon. Friend Ben Everitt on the Government side, and of course my very dear friend, Dan Jarvis. Although we disagree, again, he remains a very close friend, and I look forward to discussing more of these issues with him in the future. I shall leave it at that.

Question put and agreed to.

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