My Lords, I thank the Minister for his introduction and the very helpful briefings he has given me. I also thank the services for arranging that. While in the business of thanks, I thank the services for all they do on our behalf now, in the past and in the future.
First of all, I will set some context for this Second Reading debate. We are all united in our desire to protect our country, our democracy and human rights and freedoms across the world. We agree with the Joint Committee on Human Rights, which said in its recent report that, overall, this Bill
“is a welcome attempt to modernise espionage offences … and … broadly in line with recommendations of the Law Commission’s … review”.
We support the passage of the Bill and much that is in it.
The Bill introduces new measures to update the protection of the UK’s national security, the safety of the British public and the UK’s vital interests against modern hostile activities and threats posed by state and non-state actors. Many of these threats reflect the modern age in which we live, through cyberattacks and information and disinformation campaigns that
are used to undermine or destabilise our institutions or policies, with direct interference always a possibility. All of this is delivered in ways and by using methods that were unthinkable in the past, so change is long overdue.
However, in responding to these changes, in renewing our national security interventions and in reflecting on our policies, we should never undermine the very values that we cherish and seek to protect. So, as I said, in supporting the Bill, we will challenge the Government, hold them to account and challenge them to explain why certain policies and powers are needed. This is not to undermine national security but to demonstrate confidence in our institutions. Transparency and openness are, as far as possible, a strength. Shining a light on what we do—debating security in this Parliament and implementing actions that are then subject to scrutiny here and in the courts—stands in sharp contrast to other states and bodies across the world that are shrouded in mystery and operate in total secrecy in the shadows. The contents of this Bill, therefore, are to be welcomed in general, but there are areas which need further debate during this Second Reading, in Committee and beyond.
First, I say to the Minister that, in discussing such changes and details, there must be absolute confidence that the Government practise what they preach. Does the Bill make it absolutely clear that a Foreign Secretary, or any other Minister, should not be meeting former KGB officers in secret and without officials, and that, if advice is given by the Security Service about the appointment of any Peer, as reported, it is acted on? The Public Administration and Constitutional Affairs Committee said in its report, published just last Friday:
“The reappointment of the home secretary sets a dangerous precedent. The leaking of restricted material is worthy of significant sanction under the new graduated sanctions regime introduced in May, including resignation and a significant period out of office.”
In his response, can the Minister reassure us all that everyone in the Government will act according to the principles that have been have laid out, and that the Bill will help to achieve this? It seems to me that someone working for any of the services doing the same would at least have been severely reprimanded, if not sacked.
Clause 1(1)(b) refers to
“the safety or interests of the United Kingdom”,
and the term is used or implied throughout the Bill. Who decides what that is? What are the “safety or interests” of the UK; what does the term include and exclude? Sometimes there is real debate in this House as to what the actual interests of the UK are. Should we not seek to define that, rather than just leaving it to the courts? Too often, we abrogate our responsibility; we are the legislators, and we should debate such issues. Again, as the JCHR says:
“More thought must be given to how the legislation will affect whistle-blowers, protesters and journalists who are engaged in activities which are part of a healthy functioning democratic system.”
This was a warning from a cross-party Joint Select Committee of this Parliament. Do we need a public interest test in the Bill? I have no doubt that this will be debated. What protections are there for investigative campaigners and journalists? It simply will not be
good enough for the Government to say that there is nothing to fear. What does it mean that an offence is committed only if the “foreign power condition”, which is explained later in Bill, “is met”? Yet, from Clause 29 onwards, the clauses do not say “hostile power”, so the scope is extended, and we will need to discuss and debate that.
Who has to register under the lately added foreign activities and foreign influence registration scheme? How were the exemptions in Schedule 14 arrived at? A lot more detail and clarity will be needed. The Minister will have to be a lot clearer than, for example, in Clause 63, which states that “specified persons” will be “specified … in regulations”.
So many bodies, groups and individuals receive foreign support quite legitimately. We are told by the Campaign for Freedom of Information that the following have recently received or receive some funding from foreign Governments for their international work: Action Aid, Anti-Slavery International, ClientEarth, Global Witness, Privacy International and Reprieve, to name a few. Are they affected by the regulations in the legislation? Who else is and why? These are serious questions. Protecting information should not be about protecting Governments from the exposure of mistakes, embarrassment or worse.
In keeping the Bill—or Act as it will be—under review, who will be the independent reviewer? Jonathan Hall, the Independent Reviewer of Terrorism Legislation, keeps TPIMs under review. Will it be him or his office or whoever follows him? Will they be responsible for the STPIMs in the Bill? What about other parts of the Bill? Mr Hall has said:
“My answer is that I think it actually is quite a good fit for the reviewer’s job, and I think it probably is right that the person who does the independent review of terrorism legislation should also do the state threats legislation.”—[Official Report, Commons, National Security Public Bill Committee, 7/7/22; col.6.]
Do the Government agree? What is the thinking on that?
Surely, as the Minister outlined, one of the most contentious parts of the Bill is Clause 28. It creates an exemption under the Serious Crime Act for MI6, GCHQ and our Armed Forces when acting in the proper exercise of any function of an intelligence service or Armed Forces. We believe that this would remove the need to get a Section 7 authorisation under the Intelligence Services Act 1994, which allows the Secretary of State to give immunity from civil and criminal liability for pre-authorised crimes abroad. We believe there is a real risk that Clause 28 removes the role of Ministers even when there is a reasonable defence also available. The implications that possibly result from this are clear and, at the moment, unjustified. Why do the Government believe it necessary? As the House of Commons Library briefing stated:
“The provision therefore appears to be intended to extend immunity from criminal prosecution to actions which could not be proved to have been reasonable.”
This is hugely contentious and, notwithstanding what we may hear about further reassurances given to the ISC, it clearly cannot in its present form be right. Many senior MPs of all parties have criticised the clause for allowing actions with no safeguards, such as ministerial approval. As my colleague Holly Lynch
MP said, or as David Davis MP said, how will we be able to criticise other nations for laws which allow their services to conduct foreign operations in that way when we will have a law which will do the same?
There are many other aspects to the Bill, including restricting the award of damages and the granting of legal aid, which will require debate. We also look forward to associated actions regarding the online harms Bill and what liaison is taking place for that. The need for joined-up government is clear if we are to take the example of Hikvision. Does this Bill deal with a technology that has raised such security concerns that the Government themselves will exclude it from their own buildings? In Committee, the Minister also committed to considering whether the Bill should clarify whether only sites located in the UK can be designated as places of detention. Has that been clarified?
We all wish to ensure national security. We all wish to modernise to meet the fresh challenges and the new threats we face. This Bill is an important chance for us to debate where the line should be drawn between security and our freedoms and democracy. Eroding those freedoms and human rights cannot be justified simply by saying “security” or “national interest”. They need to be argued for, with careful decisions made as to the correct balance. This Bill gives us the chance—the opportunity—to do that and we should take it. In doing so openly and transparently, we can showcase our democracy and respect for freedom even in the face of the new threats we face. Of that we can, and should, be proud.
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