My Lords, I rise to support my noble friend and have added my name to these amendments. I apologise to the Committee that I was not present at Second Reading. The Minister knows that I was in Malawi supporting the launch of a parliamentary programme and explaining to our colleagues in Malawi the benefit of line-by-line scrutiny of legislation, which I know the Minister will be relishing over these coming days in Committee. As my noble friends indicated at Second Reading, and as my noble friend has indicated today, we take threats to our country very seriously, and we will work constructively with the Government in the scrutiny of the Bill.
I was struck by the remarks of the former head of the SIS, Sir Alex Younger, when he gave evidence to the Public Bill Committee in the Commons and said that the need to address the changing threats was in front of us. 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 sub-threshold space—operations short of conventional war—to harm us.”—[Official Report, Commons, National Security Bill Committee, 7/7/22; cols. 11-12.]
In many respects, it is that grey space that we are seeking to address. I understand the Government’s challenge ahead but, as my noble friend indicated, casting the net so widely without a sharp mesh, I am not sure we will have the kind of security the Government are intending for us to have in this area.
This will be very apparent when we get to Part 3, when it comes to foreign interference in the registers, and other parts. I know the Minister will be in listening mode for a lot of Committee, but I hope he will consider pausing at that part of the Bill for further consultation, because what was apparent at Second Reading—many other noble Lords have, I am sure, received representations from a wide variety of groups, as I have—is that more consultation on that part of the Bill is necessary. Pausing that and bringing it back for the economic crime Bill may be an appropriate way forward. That is a debate we are yet to have, but I just wanted to give the Minister foresight of the case we are making.
As my noble friend indicated—and I defer to his legal knowledge and that of others with extensive legal knowledge who will be participating in Committee—I am struck that because of the Government’s choice not to reform the Official Secrets Act 1989, we will have two competing offences with two contradictory defences. Under this Bill, as my noble friend indicated, anyone who discloses protected information is committing an offence. In the 1989 Act, if an intelligence officer or former intelligence officer discloses any information relating to security or intelligence, they can be imprisoned for up to two years.
Under this Bill, anyone disclosing protected information to a foreign power or a body under the authority of a foreign power faces life imprisonment. However, as my noble friend indicated, in Section 1(5) of the Official Secrets Act 1989 there is a form of defence:
“It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence he did not know, and had no reasonable cause to believe, that the information, document or article in question related to security or intelligence or, in the case of an offence under subsection (3), that the disclosure would be damaging within the meaning of that subsection.”
There is no equivalent in this legislation, and I would be grateful if the Minister would outline in very clear terms why.
Part of the rationale given by the Minister in the House of Commons was that the difference between this and the Official Secrets Act is that with this, for any prosecution, three tests have to be met. I suspect we will hear quite a lot in Committee about the three tests. The Minister, Stephen McPartland, indicated that the three tests for someone to be prosecuted under this part of the Bill were,
“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.”—[Official Report, Commons, National Security Bill Committee, 12/7/22; col. 80.]
But “harmful activity” and “protected effectively” are not specified in the Bill and “benefits a foreign power” is not necessary in Clause 29.
Because of the breadth of Clause 29, in some areas it is opaque. For example, does someone have to prove objectively that they did not know they were providing a service to a foreign power because they were providing it for an authority of a power? That means that the objective test, on a subjective element under this clause, is problematic.
The Minister in the Commons was not clear with regard to what the three tests are, and Clause 29 is broad. It would therefore be preferable for there to be a far more objective approach, as there is in the 1989 Act, rather than what is in this Bill. On that basis I support the amendments in my noble friend’s name.