My Lords, I thank all noble Lords who have participated in another lively and entertaining debate. Amendment 8 seeks to add a “safety or interests of the UK” test to Clause 2. Amendments 9 and 10 seek to narrow the definition of a “trade secret” so that it captures only information which is actually subject to measures to protect it. Amendment 11 seeks to expand the scope of a “UK person”. The Government reject these amendments and I will try to explain why.
The offence of obtaining or disclosing trade secrets targets threats designed to undermine our economic prosperity, tackling the whole-state approach to national security adopted by state actors. The Government believe that economic prosperity and national security are inherently linked. You cannot have one without securing the other, and Clause 2 seeks to protect both.
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Amendment 8 seeks to add a “safety or interests of the UK” test to Clause 2, but that risks reducing the operational utility of the offence significantly and bringing it too close in scope to Clause 1:
“Obtaining or disclosing protected information.”
There is also a real risk that this amendment would leave a wide range of activity out of the scope of Clause 2. Requiring a person’s conduct to meet the proposed test in this amendment would mean that the offence did not protect against the whole threat, which is not just to the UK’s safety or interests but to world-leading UK businesses and the value of the information they hold in cutting-edge technologies and ideas. Therefore, the Government reject Amendment 8.
There is no specific criminal offence in UK law which criminalises the theft of trade secrets by, or for the benefit of, foreign states. Our definition of “trade secrets” has been drafted the way it has to ensure that it is suitable for our specific purposes. The definition has been drafted to ensure the offence addresses the increasingly diverse set of tactics employed by state actors to undermine the UK’s national and economic security and targets a wide range of information.
I will go into some more detail on this, and I hope this will answer the questions from the noble Lord, Lord Coaker, about scope. This offence is designed to
tackle the modern threat posed by state actors conducting harmful espionage activity against the UK. State actors increasingly employ an increasingly diverse, and frankly alarming, set of tactics to undermine the UK’s national and economic security and target a wide range of information, as the noble Lord, Lord Carlile, pointed out.
The definition in the regulations does not account for information with future value and focuses solely on information with current commercial value. We are seeking to capture early-stage ideas, such as research, as well as established ideas subject to protective measures with industrial and economic value, as well as commercial value. Additionally, there is no requirement for the information to be protectively marked in our state threats offence, although we anticipate that much of the information targeted by foreign states will be protected. The existing definition in the regulations states that the information has to have been subject to reasonable steps to have been kept secret.
As to whether theft would be an appropriate offence for this, as the noble Lord, Lord Macdonald of River Glaven, noted, all elements of the offence have to be satisfied, including, crucially, the foreign power condition.
As the amendment highlights, the definition in Clause 2 extends to information that could reasonably be expected to be subject to protective measures even if it is not actually subject to such measures. This is because there will be a range of information that would be valuable to a foreign power but that would not necessarily have been identified as such by the holder of the information. This could include early-stage ideas and research. It would be against the UK’s interests for that foreign power to be able to obtain such information. Our definition therefore ensures that we capture a wider range of information from being misappropriated by foreign powers. The Government reject Amendments 9 and 10 because their effect would be that some information that should be included would be out of scope.
I now turn to Amendment 11, which would see the definition of a “UK person” in Clause 2(6) expanded to include a dual national who holds both British citizenship and citizenship of another country. A person with dual citizenship, one of which is British citizenship, would fall within the current definition of a UK person in Clause 2, and therefore the Government believe this amendment is unnecessary. The noble Lord, Lord Wallace, asked about amendments that potentially include the holders of BNO passports and what have you. They are comprehensively covered in Clause 2(7). The Government also reject this amendment as unnecessary.
The noble Lord, Lord Coaker, asked about the definition of UK persons. It goes beyond a UK citizen and includes someone who lives in the UK; it is not just UK citizens. The noble Lord also asked about foreign power and corporates. I would answer that it depends very much on the corporate. If I am wrong on that, I will write to the noble Lord.