My Lords, the amendments in this group would add a mental element of intention to prejudice the safety and security or defence interests of the UK to a number of offences in the Bill—those in Clause 3, assisting a foreign intelligence service; in Clause 4, entering a prohibited place; Clause 5, unauthorised entry to a prohibited place; and Clause 16, preparatory conduct to any of the offences in Clauses 1, 2, 4 or 12. The amendments also add, importantly, a similar mental element of intention to prejudice to the foreign power condition that we discussed in the last group, in Clause 29.
The Clause 3 offence of assisting a foreign intelligence service would require intent to prejudice the safety, security or defence interests of the United Kingdom to be proved. That would answer my criticism at Second Reading that the Bill would criminalise a private citizen who helped Mossad to trace possessions looted by the Nazis from their victims, or criminalise the private citizen who helped the CIA to trace war criminals and bring them to justice from whatever theatre. Noble Lords may remember that the only answer that the Minister, the noble Lord, Lord Sharpe, gave to my example of a citizen working for Mossad was that
“we would expect that the UK would have been made aware of such activity and it is possible that the UK would have made an arrangement with Israel. As such, the activity would have a defence in Clause 3(7)(c)(i)”.—[Official Report, 6/12/22; col. 156.]
On analysis, that is no answer at all. There is no legitimate reason why a British citizen should not assist the intelligence service of a friendly nation to achieve ends which are not remotely inconsistent with the interests of the United Kingdom. It is entirely wrong, not to mention high-handed and often either impractical or impossible, to suggest that the citizen should have to go through one of the hoops set out in Clause 7 of demonstrating a legal obligation, carrying out a UK public function, or being in accordance with an agreement with the UK or a proxy of the UK to make his or her conduct lawful.
The proper way out of this difficulty is to criminalise assistance to a foreign intelligence service only if it is intended to prejudice the safety or security or defence interests of the United Kingdom—although, as I pointed out in an earlier group, I am not wedded to those words. But it must be clearly defined, and that is the point of the proposal in Amendments 12 and 15. That is consistent with the aim of the Bill, which the clause as drafted, with its breadth, is not.
The noble Baroness, Lady Ludford, has Amendment 16 from the JCHR in this group, which we support, but we stress the need for the interests of the United Kingdom to be defined by reference to national security; the disjunctive safety or interests of the United Kingdom generally is not enough.
Amendment 19 adds a similar requirement to the Clause 4 offence of entering a prohibited place. That clause is less offensive as it stands, because it already
requires knowledge or imputed knowledge that the conduct in question is prejudicial to the safety or interests of the UK. If our amendments in groups 1 and 2 were accepted, as they have not been as yet, all Amendment 19 would add is a positive intention requirement, which we say is justifiable and needed but which would not cause great problems by its omission if those amendments were accepted.
Amendment 20 to Clause 5, the summary offence, is more in need of change, even if our amendments in groups 1 and 2 were accepted. The noble Baroness, Lady Ludford, has Amendment 21 in this group, with a similar change to Amendment 16 of requiring the intention to prejudice, which we support, subject to the same proviso regarding the definition of UK interests.
Amendment 47 adds an intentional prejudice element to the Clause 15 offence of obtaining a material benefit from a foreign intelligence service. Again, as drafted, this is far too wide and ill defined. If a journalist is paid to investigate or write a story for the intelligence service of a friendly nation, entirely compatibly with the national interests of the United Kingdom, he should not be guilty of a criminal offence unless the benefit derived was, in the words of the Bill,
“reasonable consideration for the provision of goods or services”,
and so was within the so-called excluded benefits in Clause 15(4).
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Why should the test be whether the benefit was reasonable consideration? Consider our journalist once again: in establishing that the benefit was reasonable consideration, the journalist would inevitably have to reveal and compromise their sources, contrary to all the requirements and protections of good journalism. The test should be whether the journalist intended to prejudice the safety, security or defence interests of the UK.
Finally, Amendment 66 would add an intentional element to the foreign power condition in Clause 29, which would make sense of that important clause. It would give the foreign power condition some bite. In the last group, the noble Lord, Lord Macdonald, relied on the foreign power condition as if it had bite, which it does not. Amendment 66 would give it bite and answer the objection to the foreign power condition by insisting that there should be an intention to prejudice the security or defence interests or safety of the United Kingdom. I beg to move.