My Lords, as the noble Baronesses, Lady Jones and Lady Hayter, and the noble Lord, Lord Black of Brentwood, have explained, this group concerns the definition of “foreign power”, both for the application of the foreign power condition and for the Clauses 3 and 15 offences concerned with assisting a foreign intelligence service and obtaining benefits from so doing.
The noble Baroness, Lady Hayter, also raised a number of further and very interesting points in relation to political parties affected by the Clause 30 definition of “foreign power”, not only in relation to the offences but because, by Clause 81, the definition in Clause 30 of “foreign power” is incorporated into Part 3, on “Foreign activities and foreign influence registration scheme”. I will be interested to hear the Minister’s reply to the detailed questions that she posed. Interestingly, there is no reference to foreign powers in the definition of the prohibited places offences under Clauses 4 and 5. I invite the Minister also to explain why that is, so that we can consider his explanation before Report.
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My noble friends Lord Purvis of Tweed and Lord Wallace of Saltaire and I have tabled Amendments 67 to 71, with the noble Baroness, Lady Hayter of Kentish Town. As we have said before, we are concerned that the move to defining national security by reference to the activities of foreign powers, whether hostile, indifferent or friendly, threatens unintended and undesirable consequences. The noble Baroness, Lady Jones, and the noble Lord, Lord Black of Brentwood, outlined the risks to journalism or civil society activity from the Bill’s definition of “foreign power”, and they were right to do so. However, more than journalism and legitimate campaigning may be threatened. Citizens’ legitimate co-operation with foreign Governments or their agencies may be criminalised—Governments who, while friendly, may not share all the political, diplomatic or strategic aims of the United Kingdom Government.
Our concern stems partly from the breadth of the expression,
“prejudicial to the… interests of the United Kingdom”,
interpreted, as we have heard, in line with the 1964 decision in Chandler v DPP, as meaning contrary to what the Government of the day perceive those interests
to be. A citizen could fall foul of these provisions on issues as disparate as environmental policy, energy policy, immigration or asylum policy, or aspects of economic policy. Even opposing views on the right way to handle industrial relations, a topical issue, might lead to some campaigning co-operation with a foreign Government being classified as seriously criminal behaviour.
Relevant conduct may also arise on occasions where the British Government or their military or commercial agencies are guilty of misconduct. On the second day in Committee, the noble Lord, Lord Carlile of Berriew, with a minor prompt from the noble Lord, Lord Butler of Brockwell, mentioned the case of Clive Ponting, in the context of juries declining to convict those who expose wrongdoing even where, as in that case, the judge had directed the jury that Mr Ponting’s defence offered him no defence in law. Your Lordships will remember that the case arose from the sinking of the “Belgrano” during the Falklands War, and concerned his disclosure of the falsity of government information about the position of the vessel and her direction of travel at the time that she was sunk.
I raise the case not only to reinforce the point made by the noble Lord, Lord Carlile, that this was a result we would all wish to avoid but to point out that Governments do commit wrongs and that it can be grossly unjust to criminalise behaviour exposing such wrongdoing. Such behaviour may well involve co-operation with agencies of a foreign power. It may be inimical to the interests of the UK Government of the day but, equally, such co-operation may be necessary to expose our own Government’s wrongdoing or change their behaviour.
We seek to amend the definition of foreign power to mitigate these risks. Amendments 67, 68 and 71 would remove altogether governing political parties of a foreign power from the definition. We believe that casting the net so wide as to encompass all governing political parties is unnecessary and wrong in principle. I say that entirely taking on board the point made by the noble Baroness, Lady Hayter, about the difficulty of defining a governing party, where different governing parties hold different positions in different parts of a country—as in the United States. It may not be so obvious in relation to the national Government here; we have a single party in government and a doctrine of collective responsibility. But, even here, political parties do not simply ape the views of Governments of their persuasion, as many former Ministers of all persuasions might attest; nor do they speak with one amorphous voice. However, where you have Governments who are coalitions of parties, often loose ones, including all governing political parties within the definition of a foreign power becomes ridiculous. Many European and other nations are in just that position.
Amendment 70 would remove NATO members from the definition of a foreign power and would give the Secretary of State power to remove other nations from the definition by regulation. This legislation should be directed strictly to our national security and to the defence and security of the United Kingdom. We regard it as wrong in principle to define as a threat to national security those friendly nations to which we are bound by a treaty of shared defence and mutual
support. The NATO treaty has been the bedrock of our national security since 1949. The Bill is simply wrong to define NATO members as foreign powers, so that for our citizens to co-operate with them risks their being criminalised as threatening our national security. We also suggest that there may be other friendly nations which the Government would accept should not be classified as foreign powers for this purpose. Our amendment allows for that.
Amendment 69 represents a move in the other direction from that which we have pursued elsewhere in the Bill, by widening the Bill’s ambit to define a foreign power to include
“a corporation or other economic or political entity that is in practice working on behalf of a foreign government, whether pursuant to contract or otherwise.”
The present definition excludes bodies which are in fact doing a foreign Government’s bidding and are not within the category of an agency or authority or part of a foreign Government, within the meaning of Clause 30(1)(c). Such a body may be an entirely independent private or public sector corporation or an unincorporated organisation, possibly employed under contract, or a loosely aligned body which is not a formal agency of government. The ties may nevertheless be so close as to be obvious, yet such bodies are excluded from the Bill’s present definition. I would appreciate a response to that point when the Minister replies.
This is a very difficult area for those of us who support the overall aims of the Bill but nevertheless wish to see it drawn sufficiently tightly to achieve those aims without going further to the detriment of personal liberty. The Bill needs tightening, with careful thought being given to this definition.