Clause 1 - Obtaining or disclosing protected information

National Security Bill – in a Public Bill Committee at 9:25 am on 12th July 2022.

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Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs) 9:25 am, 12th July 2022

I beg to move amendment 46, in clause 1, page 1, line 10, leave out “prejudicial” and insert “damaging”.

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

Photo of James Gray James Gray Conservative, North Wiltshire

With this it will be convenient to consider the following:

Amendment 47, 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 48, in clause 27, page 21, line 4, at end insert

““critical interests” includes security and intelligence, defence, international relations and law and order”.

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

Clause stand part.

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

It is a pleasure to serve under your chairmanship, Mr Gray. I welcome the new Minister to his place and wish him all the best in his new role. I certainly foresee this experience as being thrown in at the deep end, but it is a Bill on which there is broad consensus, so I hope that it is not too much of a baptism of fire and that he enjoys it.

It is nice to be able to join colleagues. I was sorry to miss the evidence session last Thursday, as I was indisposed, but I have read the transcript, and the session seemed to prove incredibly useful. I therefore did not miss the usual experience I have at around this time of a Bill Committee, when I think, “If only I had been able to hear or read that evidence before drafting my amendments, they might have been slightly different.”

Let me reiterate our position: the vast majority of provisions in the Bill are welcome and probably long overdue. Clause 1, like clause 4, implements part of the Law Commission’s review recommendations. The clauses are broadly welcome and should stand part of the Bill. Our amendments to clause 1, like most of the handful of other amendments we have tabled, are simply designed to probe whether the offences are drawn tightly enough. The crimes that we are talking about are serious—the offence in clause 1 can lead to life imprisonment. I do not think that anybody on the Committee would say that that is not appropriate when a person steals or hacks protected security information at the behest of a foreign Government and puts the lives of UK citizens at risk.

The amendments are simply designed to ask whether the offence might catch conduct that it was not intended to catch, particularly behaviour that might embarrass the Government but is not in any genuine sense prejudicial to our safety. The shadow Minister put that question to the Law Commission witnesses last Thursday. Professor Lewis responded that such questions are probably legitimate in relation to the Official Secrets Act 1989 and leaks, but the offence is different in this case because of the requirement to be acting for a foreign power. She said succinctly:

I think we are in a slightly different realm here: the realm of espionage and not the realm of leaks.—[Official Report, National Security Public Bill Committee, 7 July 2022; c. 52, Q98.]

On the whole, I absolutely accept that point, and I fleetingly considered withdrawing some of the amendments, but there are questions about whether that distinction is 100% correct. There are legitimate concerns—they were raised on Second Reading and in the written briefings provided to MPs in advance of it—that the clause also catches behaviour that is more akin to a disclosure under the 1989 Act.

Article 19 and the Campaign For Freedom of Information argue that some of the broad concepts used in clause 1 combine in a way that puts civil society organisations and journalists at risk. I am grateful to those groups for their Second Reading briefings, which have largely prompted my remarks this morning. They point to several features of the clause that cause difficulty. First, it covers material that does not bear a security classification, and information is in scope even if it is not restricted but the person receiving it reasonably believes that it should have been.

Secondly, the concept of “safety or interests of the United Kingdom” is essentially determined by the Government of the day, so it is a policy of the state and, potentially, a broad concept. Thirdly, as well as not being confined to hostile states, the foreign power condition appears to be met simply by obtaining funding from a friendly Government who are pursuing perfectly reasonable aims.

That combination of factors gives rise to concerns for NGOs and journalists. I will give some hypothetical examples of each, which I have borrowed from Article 19. Let us say that an NGO in the UK has some general overseas funding from a friendly Government to campaign on climate change. The Government of the day decide that fracking or new coal are essential for UK interests—who knows where we might be in a few months’ time? The NGO is provided with leaked information undermining that policy—perhaps about the safety record of the company being lined up to operate the plan—and publishes it. Has the NGO involved committed a criminal offence? The way the clause is worded suggest that it might have.

Mr Davis made the point that lots of excellent organisations receive funding from overseas foreign powers, as they are currently defined. In fact, a list would include ActionAid, Anti-Slavery International, Article 19, Client Earth, Global Witness, Index on Censorship, Media Defence, the Organised Crime and Corruption Reporting Project, Privacy International, Reprieve—from which we heard evidence last week—and Transparency International. The funders of those NGOs include organisations such as the Danish International Development Agency, IrishAid, New Zealand’s Ministry of Foreign Affairs and Trade, the US State Department’s Bureau of Democracy, Human Rights and Labour, and the US State Department’s Office to Monitor and Combat Trafficking in Persons—there are many more in that vein. That is why we have concerns about the effect of clause 1 on NGOs.

In contrast, if a different NGO—one just across the road—had published that document online, it would not be committing an offence, not just because it does not receive any such foreign funding, but because the 1989 Act is more specifically about the subject matter or material that leads to an offence of disclosure—namely, it would have to relate to security and intelligence, defence, international relations and law enforcement. Environment or energy policy—or fracking, in my example—would not be covered. The punishment under the 1989 Act would be two years’ imprisonment, not life, so there is real inconsistency between the disclosures caught by the Bill and those caught by that Act.

My second example relates to journalism. What happens if, rather than directly publishing the leak, the NGO passes it to a journalist who reports the leaked information as part of their story? If that journalist is employed by a UK news organisation, all is well, because the foreign power conditions are not met. However, if the journalist works for another Government state broadcaster—even a friendly one—the foreign power condition is adequately met. One reporter commits no offence at all; another reporter—who perhaps works for Danmarks Radio or any other state broadcaster—commits an offence that could mean life imprisonment.

Our amendments offer different ways of addressing that. Amendment 46 would reintroduce the test of damage. Interestingly, the Law Commission’s proposals for reform of the 1989 Act recognise that damage can sometimes act as a public interest test, and that it is a concept worth keeping in relation to offences that could be committed by journalists or citizens generally, even if the Law Commission was arguing for removing it in relation to other disclosure offences.

Our amendments would also clarify what interests are protected by that serious offence, and would match the clause up with what is protected by the 1989 Act. Amendment 48 mentions simply “critical” interests—meaning security, intelligence, defence, international relations and law and order.

There is another alternative that I will come to later, which relates to fixing the foreign power clause so that NGOs are not caught if they get funding from benign foreign powers for perfectly reasonable purposes. Those are different alternatives, and I would be interested to know whether the Government accept that those two scenarios are caught by the clause. If so, what is their response?

Photo of Stephen McPartland Stephen McPartland Minister of State (Home Office) (Security)

It is a pleasure to serve under your chairmanship, Mr Gray, and to be here in Committee. I will start with the clause and then deal with the amendments tabled by—let me see if I can get this right—the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East.

Photo of Stephen McPartland Stephen McPartland Minister of State (Home Office) (Security)

Thank you.

I will quickly respond to some of the hon. Gentleman’s points. There are a variety of protections throughout the Bill. One is that someone has to be doing activity designed to benefit or help a foreign power in order to commit an offence. Secondly, most of the offences in part 1 of the Bill need sign-off from the Attorney General. Thirdly, the Crown Prosecution Service has to be satisfied that prosecuting is in the public interest. Those are three very large protections that exist throughout the Bill. As we go through the Bill clause by clause, we must always remember those three big principles.

I will start by referring to the recent case of the individual working in the British embassy in Berlin who was extradited and charged, and to the conviction of a Ministry of Defence contractor in 2020 under the existing espionage legislation, which indicate the threat that is posed by those looking to harm the United Kingdom by committing espionage. Clauses 1 to 3 create four separate but overlapping offences to ensure that the Bill proportionately covers the wide range of threats and harms that constitute espionage, without capturing legitimate activity. The clauses are supported by other provisions in the Bill, including the “prohibited places” provisions, by building on and modernising our existing tools in the Official Secrets Acts 1911, 1920 and 1939. The new provisions continue to criminalise harmful activity while reducing the risk of loopholes that can be exploited by sophisticated state actors. I will speak later to clauses 2 and 3, and to the “prohibited places” regime.

Before I get into the detail of the offence set out in clause 1, it is important to flag that, along with other offences in the Bill, it will apply only in circumstances where there is a clear link between the activity and a foreign power. This is provided for by the foreign power condition, which we will discuss in more detail later. In essence, a person’s conduct must be carried out for, on behalf of, or with the intention to benefit a foreign power. This responds to the recommendation, made by the Law Commission in its 2020 “Protection of Official Data” report, to move away from outdated concepts.

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

The foreign power condition includes activities carried out with the financial or other assistance of a foreign power. The concern is that if an NGO gets regular funding for environmental or human rights work, it would be accidently caught by the foreign power condition. A journalist who works for a friendly state broadcaster would also be caught by the foreign power condition. We still think that such scenarios are a concern.

Photo of Stephen McPartland Stephen McPartland Minister of State (Home Office) (Security)

As I said earlier, we have three huge protections. One is that activity must be for, or on behalf of, a foreign power. I understand the point the hon. Gentleman is making, but there are another two layers on top of that protection. The first is that the Attorney General’s consent must be obtained. Secondly, the Crown Prosecution Service must be satisfied that prosecution would be in the public interest. Those are three very strong layers of protection that would help protect an NGO if it were to do something inadvertently.

Photo of Maria Eagle Maria Eagle Labour, Garston and Halewood

I welcome the Minister to his place. Having such protections in place is all very well, but the real issue is the chilling effect this could have in the kinds of circumstances that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East has set out. It is not right, is it, for us to criminalise activity that we do not really want to criminalise, but then say, “Well, the Attorney General will sort it out later in each individual case.”? That is not really a very good way of legislating.

Photo of Stephen McPartland Stephen McPartland Minister of State (Home Office) (Security)

We are not talking about legislating in that way. If the hon. Lady will forgive me, we are saying that there are three layers of protection. The first layer is that people would be deemed to be obtaining or disclosing protected information for, or on behalf of, a foreign power. The next layers would involve the Attorney General and the Crown Prosecution Service. The hon. Lady, as a lawyer, will be very well aware that the CPS always determines whether it feels it is in the public interest to prosecute. People will not be caught up by accident, and I think we are getting into theoretics by going further and further down that line.

Photo of Ben Everitt Ben Everitt Conservative, Milton Keynes North

I am struck by the hypothetical example given by the hon. Member for Cumbernauld, Kilsyth and—

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

Just go with Cumbernauld, if that helps.

Photo of Ben Everitt Ben Everitt Conservative, Milton Keynes North

Okay, we will just go with Cumbernauld. The hypothetical example referred to a Government of the day diversifying their energy sources so that, potentially, they were less reliant on fuel and power from a possibly hostile foreign state. The Minister has detailed the extra layers of defence that will act in the public interest. Does he agree that in the hypothetical example cited we would want some protection from foreign interference in Government policy—a democratically elected Government of the UK?

Photo of Stephen McPartland Stephen McPartland Minister of State (Home Office) (Security)

My hon. Friend is correct. Three tests must be met for someone to be prosecuted: conducting harmful activity with regard to information that is protected effectively, knowingly prejudicing the safety or interests of the United Kingdom, and acting in a way that benefits a foreign power. Forgive me, but I do not believe that an NGO will accidentally fail all three of those tests.

Photo of Kevan Jones Kevan Jones Labour, North Durham

But it may, because subsection (1)(b) states that a person commits an offence if

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

An NGO might think that putting something into the public domain is in the public interest. They may not even take into account that that disclosure may damage UK security. For example, in this morning’s newspapers—

Photo of James Gray James Gray Conservative, North Wiltshire

Interventions should be brief.

Photo of Kevan Jones Kevan Jones Labour, North Durham

The story of alleged shootings by the SAS has clearly been put into the public domain. I would argue that disclosure is not in the public interest of the UK, but people are arguing that it should be in the public domain.

Photo of Stephen McPartland Stephen McPartland Minister of State (Home Office) (Security)

That example demonstrates how important the Bill is, because it sets out that activities that are illegal will still be illegal if actors are acting in a particular manner. The Bill is trying to bring current provisions up to date to provide our intelligence services with the toolkits they need to keep our nation safe and secure. I believe that the three tests are strong enough to help provide those protections.

Photo of Kevan Jones Kevan Jones Labour, North Durham

I accept that, but just take this morning’s example cited on the BBC of the alleged illegal acts by the SAS. Someone has got the information, put it in the public domain and may feel that it is in the public interest for it to be scrutinised. Will that damage our interests? Yes, it will. The Government might think that that disclosure will help a foreign power or damage our interests—and I would argue that possibly it will—but that is not to question the judgment of the individuals who have decided that the allegation should be in the public domain.

Photo of Stephen McPartland Stephen McPartland Minister of State (Home Office) (Security)

I understand the right hon. Gentleman’s point, but I believe that we have three very strong tests that must be applied: the information must benefit a foreign power, the Attorney General must consider the case, and the CPS must decide that it is in the public interest to prosecute. Those three tests and protections run throughout the Bill.

Photo of Jess Phillips Jess Phillips Shadow Minister (Home Office)

I recognise that the Minister is trying to make progress and I apologise for intervening, but does he have any concerns about the Attorney General test? Does he think that the Attorney General does not protect the Government from embarrassment? Does he think that the law always comes above with the Attorney General?

Photo of Stephen McPartland Stephen McPartland Minister of State (Home Office) (Security) 9:45 am, 12th July 2022

Current events demonstrate that we never protect the Government from embarrassment!

Before I get into the detail of the offence itself, it is important to flag that, along with other offences in the Bill, it will apply only in circumstances where there is a clear link between the activity and a foreign power. That is provided for by the foreign power condition, which we will discuss in more detail later. It responds to recommendations in the Law Commission’s 2020 “Protection of Official Data” report about moving from outdated concepts such as “enemy”.

Clause 1 enhances our ability to tackle the threat of espionage by introducing a modern offence to capture those unlawfully obtaining, copying, recording, retaining, disclosing or providing access to protected information. Protected information is any information, document or other article that is or could reasonably be expected to be subject to a form of restriction of access in order to protect the safety or interests of the United Kingdom—for example, if the information is stored within a secure Government building or has a form of restricted classification. Protected information can cover a wide range of Government material, including information such as raw data, documents such as committee reports and other articles such as memory sticks.

Protected information includes, but is not limited to, classified material. That is important, given that serious harm can be caused by obtaining or disclosing seemingly non-sensitive information that, if used in a certain way by sophisticated state actors, could be capable of damaging the United Kingdom’s national security. However, I want to be clear that the definition will not cover truly benign items such as the lunch menu of the Home Office canteen.

Like the existing espionage provisions, and as recommended by the Law Commission, clause 1 will require that a

“person’s conduct is for a purpose…prejudicial to the safety or interests of the United Kingdom”.

The term

“safety or interests of the United Kingdom” has been interpreted in case law as meaning the objects of state policy determined by the Crown on the advice of Ministers, which includes national security. That enables the United Kingdom to respond to threats targeted against its wide range of interests.

Amendment 46 would require that a person’s conduct be instead for a purpose that they know, or ought reasonably to know, is damaging to the safety or critical interests of the UK. That would create a higher evidential threshold to secure prosecution in an area that is often difficult to evidence due to the sensitive nature of the information that may have been obtained or disclosed. Put simply, we would have to explain why it caused damage, which may require evidence that compounds the damage. That would provide challenges to our law enforcement agencies and courts, and is likely to result in fewer prosecutions being pursued, offering further opportunities to those looking to harm our country through acts of espionage. The use of “prejudicial” mitigates some of that risk.

Photo of Maria Eagle Maria Eagle Labour, Garston and Halewood

I am grateful to the Minister for setting out the difference between those two words, but can he give us an example? The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East gave a theoretical example to illustrate why he tabled the amendments. Can the Minister give us an example of something that is prejudicial and not damaging?

Photo of Stephen McPartland Stephen McPartland Minister of State (Home Office) (Security)

I will come on to that in a bit. I will provide an example shortly.

Photo of Stephen McPartland Stephen McPartland Minister of State (Home Office) (Security)

You are very welcome. I would not want to get it wrong.

Amendments 47 and 48 would introduce and define the term “critical interests”. In the amendments, “critical interests” is defined to include security, intelligence, defence, international relations and law and order. Although I recognise that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East tabled the amendments to attempt to specify exactly what should fall under UK interests in order to add clarity, I must stress that it limits the scope and utility of the clause 1 offence and risks creating loopholes that could be exploited by those looking to harm the UK. There is also the risk that the offence would become quickly outdated as the UK’s interests naturally and properly evolve. Notably, the list does not include economic interests or interests relating to public health, to name just two areas that would be overlooked by such a definition. Those are areas that are targeted by hostile actors and should rightly be protected.

The safety or interests of the UK test is used not only in clause 1, but in several other offences throughout part 1 of the Bill, such as sabotage or entering a prohibited place with a purpose prejudicial to the UK. There is a risk that creating a notably different test under the clause 1 offence would confuse the legal interpretation of the tests under those other offences and may have a significant impact on their operational utility.

Finally, I reiterate that the test of a person conducting activity

“prejudicial to the safety or interests” of the UK already exists and is understood in the courts. Just last week at an oral evidence session, the law commissioner invested considerable time and effort in reviewing this area of law, outlining their support of the Government’s decision to retain that term. They commented that the

“safety or interest of the state is consistent with a lot of the wording that already exists within the Official Secrets Act…and it avoids what might risk being an unduly narrow focus on national security.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 52, Q97.]

Moving away from the amendments, it should be noted that instead of using “enemy”, as in the espionage provisions, the offence in clause 1 includes a foreign power condition. That moves the offence away from labelling countries as enemies, which is less relevant in the 21st century.

The hon. Member for Garston and Halewood asked about the difference between prejudicial and damaging. The damage requirement would require the court to demonstrate harm and explain why it is damaging, whereas prejudice is broader and could include reducing future opportunities. That will also mitigate some of the risks associated, as I have said. It provides a wider test so that we can intervene at an earlier stage of a plot or something else that would affect our national security.

I turn to the extent of the provisions under the 1911 Act. An activity that takes place wholly outside the UK would be an offence only if it is committed overseas by a UK national or officer, such as a Crown servant. Technological developments in a more global world mean that it is now more likely that information that warrants protection to safeguard the safety or interests of the UK may be vulnerable to activity that takes place outside the UK by a wider range of actors—for example, a locally engaged security guard working in a UK embassy stealing papers, or the theft of information held there digitally via cyber means.

To keep pace with the modern threat, the extraterritorial jurisdiction for the offence has been expanded so that the offence can be committed anywhere in the world and by anyone, regardless of their nationality. The extraterritorial jurisdiction is a critical reform within the offence as a better defence for the United Kingdom against a modern espionage threat, whose global nature is not reflected in the current provisions in the espionage offence of the Official Secrets Act 1911.

Another key difference from the existing offence is the increase in the maximum penalty available to life imprisonment. The emergence of modern vectors such as cyber means that espionage has the potential to cause a greater level of harm than was possible in 1911 when the United Kingdom’s espionage offences and penalties were first drafted. In the most serious cases, an act of obtaining or disclosing protected information can result in the loss of life or can gravely undermine the United Kingdom’s ability to defend itself from a range of threats. This demonstrates the United Kingdom’s resolve to make it more difficult and detrimental for hostile actors to undermine our country’s interests and safety by committing acts of espionage.

Although we will come to this in more detail later in Committee, I want to flag a key safeguard that applies to prosecutions to this and other serious offences in part 1. Given that state threat activity and the United Kingdom’s response can have a significant impact on the safety and interests of our country and wider international relations, the Attorney General’s consent, as I said earlier, must be obtained in the case of England and Wales before a prosecution is taken forward. In Northern Ireland, the consent of the Advocate General must be sought.

I stress the importance and need for reform of the espionage laws in the Official Secrets Acts 1911, 1920 and 1939. Recent and ongoing events make it clear that the threat from state threat activity, particularly acts of espionage, is of continuing concern and we must have robust protections in place. The introduction of the offence of obtaining or disclosing protected information as a core part of the Bill provides measures to tackle the harmful espionage activity that the United Kingdom faces. That is why clause 1 is so vital. I encourage my fellow Committee members to support it and I ask that the hon. Member withdraw his amendment to it.

Photo of James Gray James Gray Conservative, North Wiltshire

Before I call the shadow Minister, it might be helpful if I clarify the order of debate that I normally expect to see. The person who has proposed an amendment moves it. By and large, anybody else then takes part in the debate, including the shadow Minister. The Minister replies to the debate and then the proposer gets a short whack at the end. On this occasion, I will call the shadow Minister, and then the Minister will have an opportunity to reply before the proposer rounds up.

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

I am eternally grateful, Mr Gray. It is great to see you joining as Chair of this Committee on this particularly important piece of legislation. Thank you for the refresher on the order in which the Front-Bench spokespersons take part in proceedings.

We have had a highly unconventional start to this Bill Committee. I do not think anybody is more relieved to see the Minister in his place—perhaps the Government Whip. I really do welcome the Minister to his place and wish him all the very best. I know he has made every effort to get across the detail of the Bill in the incredibly short time he has had to prepare. I echo the sentiment we expressed on Second Reading and offer him the assurance that the Bill has our support. It is right, and increasingly urgent, that our laws are updated. We intend to be nothing but constructive in our scrutiny, deliberations and suggested additions, as we work together to ensure that the legislation is as effective as we all need it to be.

The Home Office’s impact assessment is clear that:

“The threat from hostile activity by states is a growing, diversifying and evolving one, manifesting itself in several different forms including espionage, foreign interference in our political system, sabotage, disinformation, cyber operations, and even attempted assassinations.”

I was struck by the testimony of Sir Alex Younger, the former chief of the Secret Intelligence Service, in last week’s evidence session. In response to a question about how threats to the UK have changed, he said:

“What I would call grey threats…often presented us with real challenges, particularly when actors or states felt themselves at war with us and we did not feel ourselves at war with them, for good reason.

My career saw less emphasis on conventional threats and more on grey space. Most of my career was devoted to counter-terrorism, which was the dominant example, but subsequently we saw state actors working in subthreshold space—operations short of conventional war—to harm us.—[Official Report, National Security Public Bill Committee, 7 July 2022; c. 11-12, Q21.]

Following detailed pieces of work such as the Intelligence and Security Committee’s “Russia” report and the Law Commission’s “Protection of Official Data” report, we have been calling for progress in this legislative area for many months, so we welcome the opportunity to work with the Government to get it right.

As the Minister has outlined, clauses 1 to 3 will introduce three new espionage offences: obtaining or disclosing protected information, obtaining or disclosing trade secrets, and assisting a foreign intelligence service. As was highlighted by the Government’s integrated review in 2021, state threats to Departments, national infrastructure, British businesses and private individuals are growing and becoming ever more complex. The situation in Ukraine and the ongoing Russian aggression have brought about an urgency to introduce new offences in this area, but make no mistake: this has been an emerging trend in contemporary national security threats for years.

The director general of MI5, Ken McCallum, in his joint address to UK businesses, journalists and academics with the director of the FBI last week, said that alongside the situation in Ukraine, the

“most game-changing challenge we face comes from the Chinese Communist Party. It’s covertly applying pressure across the globe… We need to talk about it. We need to act.”

I thank the director general and all those who are working so hard in our UK intelligence community for the work that they undertake around the clock to keep us safe. They have to respond to threats that most of us cannot begin to comprehend. We are grateful for their service, and it is at the forefront of our minds as we consider what they need from us in order to do their job. Therefore, these new offences, which reflect the changing dynamics of the challenges to our national security, very much have our support.

Clause 1 criminalises obtaining or disclosing protected information. Further to the Minister’s introduction to the clause, we heard from the witnesses last week about the need for the clause. It is a particular focus of the Law Commission’s “Protection of Official Data” report, and the commission confirmed that it was satisfied that the offences

“reflect well the recommendations that we made.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 50, Q94.]

In explaining why the offences are required, the “Microsoft Digital Defence Report”, which was published in October last year, identified that Chinese actors engaged in this type of activity mostly targeted data and intellectual property exfiltration. A broad range of sectors has been targeted, including comms infrastructure, the defence industrial base, IT, education, law firms and medical research. Interestingly, the report said:

“In the last year, espionage, and more specifically, intelligence collection, has been a far more common goal than destructive attacks.”

However, rather than commercial or industry targets, Microsoft’s data shows that

“nearly 80% of those targeted were either in government, NGOs, or think tanks.”

Its analysis suggested that,

“Think tanks often serve as policy incubators and implementers, with strong ties to current and former government officials and programs. Threat actors can and do exploit the connections between the more traditional NGO community and government organizations to position themselves to gain insights into national policy plans and intentions.”

The theft of research, policy development and datasets has been the focus of hostile state actors in recent months, so we are satisfied that there is a need for the new offence created by clause 1.

On Scottish National party amendments 46, 47 and 48, tabled by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East—this is the third Committee I have served on with him, and it has taken three Committees for me to be able to reference his constituency with any degree of certainty—we will also seek to probe some of the questions that he highlighted.

There are some recurring principles throughout the Bill, which manifest themselves in clause 1, and it would be useful to work through them in these early stages. The condition that

“the person’s conduct is for a purpose that they know, or ought reasonably to know, is prejudicial to the safety or interests of the United Kingdom” must be satisfied in order for the offence to have occurred. The principle of “ought reasonably to know” recurs in the offences created by clauses 1, 2 and 3, and later in the Bill, so I am keen to work through the notion, further to the conversation I have had with the intelligence community directly. In some of my discussions, there has been a sense that a clear and robust representation may be made in order to communicate to a person that their conduct, if it persists, will bring them within the scope of the offence.

One example is the security services interference alert, issued in January to Members of this House. One would expect that that would put it beyond any doubt that the conduct of someone continuing to engage or supply information to an individual named in that way is prejudicial to the safety or interests of the United Kingdom, removing any ability to plead ignorance. Is that type of formal intervention required for someone to commit an offence under the “ought reasonably to know” stipulation? If not, will the Minister provide further clarity about the other ways in which he envisages that condition being met?

Former members of the UK’s intelligence community have put it to me that the combination of a relatively broad definition of “protected information” in clause 1, combined with a maximum sentence for these offences being imprisonment for life, a fine or both makes the clause quite a beast, in terms of what it does. I recognise the need for seriousness for all the reasons I have outlined, but I am mindful that “protected information” has a much broader definition than “classified information”. It is not beyond the realms of possibility that a naive young person visiting the House of Commons comes across a misplaced hard copy of what should be a password-protected document, takes a photo and puts it on their Facebook page—if that is indeed what young people use for social media nowadays. For other potential scenarios, hon. Members are limited only by their imagination. I have no doubt that they will be relieved that I will leave it to just that one. As stupid and unhelpful as that is, has that person opened themselves up to life imprisonment?

The Minister said that the Home Office menu will not be captured by these offences, but there is a plethora of examples between the Home Office menu and very serious information, and that requires some working through. I am sure the Minister will assure me that there will be sliding scale of offences up to and including life imprisonment at the disposal of the judiciary, which will presumably be dealt with in the sentencing guidelines. Will he confirm that that will be the case? Can he remind Members of the process of the development of the sentencing guidelines, and the timeframe in which we might expect to see them alongside the Bill? An indication of the value of the fines available to the judiciary would also be incredibly helpful.

Photo of Stephen McPartland Stephen McPartland Minister of State (Home Office) (Security) 10:00 am, 12th July 2022

It is a pleasure to follow the hon. Lady and I thank her for her kind words. She asked a number of questions, which I will do my utmost to answer.

Protected information is information, documents or other articles to which, for the purpose of protecting UK safety or interests, access is restricted, or it is reasonable to expect that access would be restricted. The hon. Lady’s example of taking a photograph inside the House of Commons would not be considered that. Throughout the Bill there are three tests. First, would the activity assist a foreign power? Secondly, would the Attorney General give consent? Thirdly, would the Crown Prosecution Service consider it to be in the public interest to prosecute? Taking a photograph inside the House of Commons or of something a bit more restricted than the Home Office lunch menu would not come under the provision.

The hon. Lady referred to the director general of MI5; this is about giving the Home Office, the intelligence services and the intelligence community the tools they need to tackle the wider threat. The British public trust the UK intelligence community to do the job and to have the powers. People often worry when other agencies get wider powers, but that is not what is happening in the Bill.

On being able to intervene at an earlier stage, the provisions in the Bill provide a toolkit to allow the intelligence community to intervene earlier in some matters in order to work with people to stop them progressing into specific acts that would break the law. It will help people who may be going down the wrong path, as well as helping the intelligence community to act at a much earlier stage.

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

I am grateful to everyone who has taken part in the debate and to the Minister for his response. As I say, I absolutely accept the case for a clause such as this one. However, the Minister’s explanation of the protections in place in respect of the two scenarios that I outlined falls a long way short of what I would regard as satisfactory.

I outlined three solutions or protections. One was the foreign power condition; I have explained already why both the NGO and the journalist in those scenarios would meet the foreign power condition, so that does not work. Thereafter, we are left with the Attorney General and the Crown Prosecution Service. That offers no protection at all. From the point of view of the rule of law, people need to know whether they have broken the law or are committing an offence that is punishable by life imprisonment. We cannot leave that journalist or NGO in that position by saying it all depends on what the Attorney General or the Crown Prosecution Service thinks.

I have no idea whether the Attorney General or the Crown Prosecution Service would regard that NGO and journalist as having committed an offence that they would want to prosecute. As Members have said, that leaves a big chilling effect on that NGO and journalist. They have no certainty that they will not be prosecuted for the activities they undertake. They open themselves up to the possibility of life imprisonment for what, on the face of it, has all the characteristics of a disclosure of information, which should be dealt with, if at all, under the Official Secrets Act 1989 rather than in this Bill.

Photo of Kevan Jones Kevan Jones Labour, North Durham

I have been told that this may be outside the scope of the Bill, but it seems to me that what is missing from it is a public interest defence for those individuals. That protection not being in the Bill opens people up to what the hon. Gentleman describes.

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

That is a fair point. In the light of the lack of satisfactory safeguards we have heard this morning, we may have to revisit that question. There is an issue of scope in relation to sticking that into the 1989 Act, but I do not see any reason why we could not include it in some of the offences in this Bill. Unless the Government can come up with better safeguards than have been offered this morning, we are going to have to revisit that.

I urge the Minister to go away and think about this issue. I am actually more worried about those two scenarios now than I was at the start of the day. I am not absolutely sure that the amendments that I tabled are the right ones, so we will revisit the issue on Report. In the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 ordered to stand part of the Bill.