I thank noble Lords for their contributions to this short debate. I will first speak to Amendments 23 and 33 at the same time, given the argument is much the same for both. I am happy to provide the clarity sought by noble Lords and, in particular, the noble Lord, Lord Ponsonby.
Harmful activity relating to prohibited places or cordoned areas around military aircraft can take place directly outside the boundaries of a place or cordon. This could include conducting surveillance, such as taking video or photographs of the sensitive place or aircraft, monitoring the activities of staff located at the site or conducting close-range information technology attacks from outside the place. It is therefore imperative that, where the police believe a person to be conducting such activity, they should be able to order them to move away. None the less, recognising that a cordon may be imposed at short notice, it is a defence provided for in the Bill for a person to prove that they had a reasonable excuse for failing to comply with a cordon under Clause 11. The effect of these amendments would be to reduce significantly the ability of the police proactively to stop damaging activity from taking place.
The police guidance that is being developed in collaboration with the College of Policing will provide further advice to forces on the use of powers in respect of an area adjacent to a prohibited place or cordoned area. I can confirm that this is addressed directly in the Government’s response to the JCHR’s report at paragraph 52 and onwards, and I again thank the committee for its close consideration of this Bill.
Amendment 24 adds a requirement that a police officer obtain authorisation before exercising a Clause 6 power. Due to the inherently sensitive nature of prohibited places, and the threats that they face, it is likely that the Clause 6 powers will be used rapidly to prevent serious and harmful activity from taking place—activity that could well jeopardise the safety of those working within the site itself. Policing often requires the judgment of officers to take quick and decisive action to prevent harm and keep the public safe. It is important that we continue to empower our officers to make these decisions where appropriate. Introducing a requirement for a constable to seek approval from a senior officer may add an extra layer of confusion as to when constables may or may not use their powers, potentially allowing harmful activity to be completed before the police can respond. We recognise that every effort should be made to help ensure that these powers are not used in a disproportionate manner, and, as such, we are working closely with the College of Policing to develop guidance that the police should use before exercising the powers granted under Clause 6.
Amendment 25 seeks to provide that it is an offence to fail to comply with a Clause 6 order only if the order was necessary and proportionate to protect the safety or interests of the United Kingdom. The legislation is clear that a constable may exercise a power under Clause 6 only if they reasonably believe that doing so would be necessary to protect the safety or interests of the UK. The Government therefore consider that this amendment is unnecessary. As with any such situation, where it is alleged that a constable has acted outside the scope of their powers, a decision to give the order is rightly open to challenge. As it is an important point, I will stress again that the Government are working closely with the College of Policing on the guidance which should be used prior to making any decision to exercise powers under Clause 6.
On Amendment 26, it is crucial for national security that the UK continues to protect all areas used for defence purposes and by the UK intelligence community. Carving out certain places over others within these categories in the way this amendment proposes risks creating gaps that hostile actors could exploit. It could require the Government to pinpoint their most valuable defence and intelligence sites in order to establish that they are indeed prohibited places and so put these places even more at risk of harmful activity—the very opposite of what the prohibited places regime is setting out to achieve. Moreover, the proposed amendment focuses only on the risk posed by entry to such sites, which fundamentally undermines the protection being given to these sites against a range of harmful activity. It also, in inserting this condition around potential risk, significantly reduces clarity on the face of the legislation as to what constitutes a prohibited place.
I understand the intention behind this amendment, which is to ensure that land that might already be accessible, or where there is not perceived to be a significant risk, is not covered by the provision. I want to assure noble Lords that Ministry of Defence land that can be lawfully accessed by the public and such areas of the British countryside with public footpaths do not need to be excluded, nor do the public need to be given authorisation to be in that area. Therefore, they will not commit an offence under Clause 5. They will be committing an offence under Clause 4 only if the conduct is a specified activity with a purpose that they know, or reasonably ought to know, is prejudicial to the safety or interests of the United Kingdom. It is important we are able to catch such harmful activity, even on publicly accessible land. Ministry of Defence land that can lawfully be accessed by the public is still used by our Armed Forces, often for purposes that are sensitive in nature, and it is critical they should be afforded the protections granted by the prohibited places provisions.
I will address Amendments 27, 28 and 30 together, given they all seek to extend the prohibited places provisions to the Crown dependencies and the wider British Overseas Territories. The Crown dependencies and British Overseas Territories are not a part of the United Kingdom, of course, but self-governing territories with democratic Assemblies able to legislate for themselves, including on national security. Should any British Overseas Territory or Crown dependency consider it necessary to designate prohibited places within their territory, they may make similar provisions in their own legislation.
It is of note that the Government consulted with the Crown dependencies on their inclusion within the prohibited places regime, and they have advised it would be preferred if they looked towards mirroring these provisions under their own law and legislation. It is only right and proper that the United Kingdom respects these decisions. I hope that addresses the point raised by the noble Lord, Lord Wallace. I am sure the Bailiwick of Guernsey will think long and hard about the Alderney breakwater. As the grandson of an Alderney girl, I can tell noble Lords how much that breakwater is a feature of conversation.
It is important to address why the Government have chosen to include land or buildings within sovereign base areas—particularly those of Akrotiri and Dhekelia—in the prohibited places regime. Sovereign base areas are critical for UK defence and have special constitutional status among the British Overseas Territories in that their administrator, who also holds the title of “Commander British Forces Cyprus”, is vested with all the executive and legislative authority. This unique context of the sovereign base areas is precisely why, at their request, we are also including the option to extend the provisions in the Bill to the sovereign base areas. As such, it is right that the UK continues to afford protections specifically to the sovereign base areas through the National Security Bill.
Amendment 29 creates a legislative requirement to inform the public of prohibited places. The safeguards in place within Clauses 4 and 5—namely, that a person must either have a purpose that they know, or ought reasonably to know, is prejudicial to the safety or
interests of the United Kingdom or know, or ought reasonably to know, that their conduct is unauthorised—protect those who have entered, or are in the vicinity of, a sensitive site without having any knowledge that they have done so.
The Government agree that, where it is reasonably practicable, every effort should be made appropriately to notify the public of areas designated as prohibited places through the use of signage surrounding these places. However, the Government consider that making it a legislative obligation to notify the public of the location of every site designated a prohibited place is not proportionate, given that Clause 7 already makes public the types of sites that will be prohibited places. Equally, any designation under Clause 8 will set out in law any further types of sites that will be prohibited places. Furthermore, and crucially, there will be a number of sites which, due to their highly sensitive nature, it would be harmful to UK national security if they were publicly declared as prohibited places.
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The police will exercise their judgment in deciding whether and when to ask a person to move on, using their powers under Clause 6, or arrest an individual on suspicion of an offence. As I have already said, the Government will ensure that the police have access to clear guidance to support these decisions.
The noble Lord, Lord Purvis, asked whether local authorities will be informed about prohibited places within their area. Clause 7 clearly describes the types of place that are prohibited places. If new sites are designated under the Clause 8 power, these listed sites, or a description of the new categories of sites, will be published online as part of the legislation.
Amendment 32 seeks to add an additional necessity test to the cordon power to limit this power to be used only in instances where it is necessary to secure and protect sensitive material until removal is completed. The Government consider that the proposed amendment seeks to impose a condition that would undermine the operational utility of the power. In the unlikely event that a military aircraft, or equipment relating to such an aircraft, needed to be secured, this amendment would require it to be necessary to impose the cordon to secure and protect the sensitive material until removal were completed. Necessity establishes a high bar for the police dealing with this live and evolving situation, so in our view it is important to retain the expediency test.
Importantly, Clause 10 already limits the duration for which a cordon may remain in place under this power, which makes clear that this power cannot be used permanently to cordon off and restrict access to areas surrounding these types of aircraft. Given that this addition negates the operational utility of this power, regrettably the Government cannot support the inclusion of this amendment.
On Amendments 34 and 35—I am sure the Committee will be glad that this is the final set of amendments for the prohibited places regime that I will speak to today—these amendments respectively provide that the reasonable excuse defence to a failure to comply with an order
under Clause 11 includes protest and journalism, and they introduce a requirement for the Government to issue guidance on the use of the powers in respect of a cordoned area to protect against inappropriate impacts on protest and journalism. I will discuss these together.
The Government’s concern with the addition of what is stated to be a clear exemption for protesters and journalists, by way of permitting them to disobey the lawful orders of a police officer at a cordoned area surrounding sensitive military aircraft, is that this will create avenues that hostile actors could exploit to gain access to or inspect sensitive material at these places. Furthermore, providing avenues that enable even legitimate journalists to take, and potentially publish, photographs of sensitive military aircraft or material could have serious implications for national security and should not be permitted. For these reasons, the Government cannot support this amendment.
However, the Government are in agreement with the noble Baroness, Lady Ludford, and the Joint Committee on Human Rights that clear guidance is required for the police powers included within the prohibited places regime and in relation to the use of this cordon power. I would like to reassure the Committee again that my officials are working closely with the College of Policing to develop guidance for the police when exercising the powers under Clauses 6 and 11. Accordingly, I invite noble Lords not to press the amendments.