Fifth Report - Legislative Scrutiny: National Security Bill

We understand that the term “enemy” within espionage offences has become unworkable and should be replaced. However, we have concerns that treating all those with links to other States as potentially hostile for the purposes of espionage laws might have the impact of stigmatising certain communities unnecessarily. There is the potential of a chilling effect on otherwise legal activity such as protest or journalistic activities. New espionage offences, with the potential for stigmatising certain communities are only proportionate if such offences, and their enforcement, focus on the sort of conduct and relations that are a risk.

The Government should consider whether the definition of “foreign country or territory” in clause 25(4) should exclude Commonwealth States, European Economic Area member States, and/or the Republic of Ireland. The Government should justify any decision to include these groups of States within the definition of “foreign power” in clauses 24–25. The Government should provide further information about how these offences are expected to be policed, how it will reduce any risks of discrimination against diaspora communities in the UK, and how it will counteract any potential chilling effect on otherwise lawful activity.

Providing support or assistance to a person should not be grounds for arrest, or a prevention and investigation measure, where there is no link to supporting or assisting them in espionage activities or otherwise in the commission of an offence. Clause 26(1)(c) should be deleted from the Bill, or alternatively the support or assistance should be explicitly linked to espionage activity.

The use of the “safety and interests of the United Kingdom” phrase without any indication of the severity of the potential prejudice to those interests, or as to how it may be interpreted creates legal uncertainty as to how these criminal offences might apply. It is contrary to rule of law principles to establish offences that lack legal certainty and sufficient clarity. Moreover, it is contrary to Articles 5 (the right to liberty and security) and 6 ECHR (the right to a fair trial) to prosecute and subsequently imprison people for offences that lack sufficient clarity.

To ensure that there is the required level of legal certainty for the creation of a criminal offence, the Government should consider clarifying the phrase prejudicial to the “safety and interests of the United Kingdom” either to specify the types of conduct envisaged, or to include a threshold test as to the severity of the prejudice to the interests of the United Kingdom.

The Government should consider inserting a requirement in the new offences in clauses 2, 3 and 5, that conduct be “prejudicial to the safety or interests of the United Kingdom” (preferably once clarified to offer greater legal certainty). If it declines to do so, the Government should justify this decision and explain how it will ensure that these offences do not inadvertently criminalise benign activity.

The offence of obtaining or disclosing protected information in clause 1 does not make sufficiently clear what information is considered to be protected for the Legislative Scrutiny: National Security Bill 51 purpose of this offence. As such, it creates an unacceptable level of legal uncertainty, raising concerns about compliance with the right to liberty and security, the right to a fair trial, and the right to freedom of expression as protected by Articles 5, 6 and 10 ECHR. To improve legal certainty and proportionality as to when this offence should apply, the Government should consider amending the offence to clarify that it only attaches to protected information that is (or that the defendant knows or reasonably ought to know should be) subject to a certain level of categorisation, such as “Secret” or “Top Secret”. Details as to what is included within the definition of protected information could be contained in a non-exhaustive indicative list or specified in a Statutory Instrument to improve clarity and legal certainty.

The theft of trade secrets that pose no risk to national security is more properly governed by the offence of theft (and other breach of confidence and intellectual property rules) than through new espionage offences. It is not appropriate to create espionage offences, with the potential to impact significantly on human rights, that relate solely to private commercial matters with no risk to national security.

Clause 2 should be amended to require an adverse impact to the UK’s national security in order for this specific espionage offence of obtaining a trade secret to be committed. An amendment to add in a requirement that the disclosure of the trade secret be “prejudicial to the safety or interests of the United Kingdom” would seem to address this concern. Alternatively, a reference to national security or critical infrastructure might be considered.

The Government should consider whether there should be a defence of whistleblowing for offences under clauses 1 and 2 of the Bill.

There should be a requirement that for a clause 3 offence to be committed, the conduct must have the potential to harm UK interests. An amendment to this effect would ensure that any interference with human rights and liberties would be justified and not disproportionate. The Bill should be amended to add “prejudicial to the safety or interests of the United Kingdom” to clause 3(4)(a).

The Government should consider how best to ensure that the offences in clauses 4 and 5 do not impact the right to protest, as protected under Articles 10 and 11 ECHR. The Government and the police should produce clear guidance setting out how the powers under clause 6 will be exercised and the reviews that they will undertake to ensure these powers are only being used where it is proportionate to do so and will not be used to impact unduly on the right to protest. Clause 6 should be amended to ensure that an offence is only committed if the use of police powers was proportionate and necessary to protect the safety and interests of the UK.

Where land does not disclose any particular significant risk to the safety or interests of the United Kingdom, it would seem disproportionate to apply the restrictions, police powers and criminal offences in clauses 4–6. Clause 7 should be amended so that it does not apply to all Ministry of Defence land and vehicles used for defence purposes (including those easily accessible to the public), irrespective of the real risk 52 Legislative Scrutiny: National Security Bill posed by that Ministry of Defence property, but instead only applies to those areas of Ministry of Defence land whose entry would pose a real risk to national security.

As it stands, there is a risk people will commit offences related to being in, or in the vicinity of, Ministry of Defence property without knowing they had done so. There should be an obligation on the Minister to display notices on all entrances to “prohibited places” informing the public that this is a prohibited place, and that entry would be a criminal offence. The Bill should be amended to this effect.

In order for clauses 4–6 to represent a proportionate interference with human rights and freedoms, the Government must ensure that places are only prohibited if they are areas of particular defence or other national security sensitivity. The Government must also ensure that reasonable authorisation is granted for protests to take place in the vicinity of “prohibited places”.

The police must produce a clear code setting out how they will use the powers in clause

References to powers in respect of an area “adjacent” to a “cordoned area” seem to constrain activity going beyond the cordoned area and into other private or common land, which would seem to lack clarity and potentially create an unjustified interference with people’s rights on private or public land. Similar concerns arise in respect of areas adjacent to “prohibited places” in clause 6. The Government should delete the references to “adjacent area” in clause 11(1)(c) and 6(1)(c) unless it produces an adequate justification for the necessity and proportionality of applying these powers in relation to adjacent areas.

Clause 9 would benefit from an amendment to make it clear that it is intended to refer to a military vehicle crash site, as set out in the Government’s Explanatory Notes to the Bill. An amendment to require a code or guidance for the use of police powers in respect of these provisions could also help to ensure that these powers are exercised in a proportionate manner that does not inappropriately impact on journalism and protests.

A restriction of the offence of sabotage to relate to critical infrastructure or a potentially significant impact might help to clarify the threshold for this offence and to ensure that it is only applied where that would be proportionate to do so.

It will be important to ensure that democratic political activity is not inadvertently criminalised by the foreign interference offence in clause 13. The Government should consider amending clause 13 to explicitly provide that an offence is not committed if it is an exercise of free speech (giving due weight to the importance of political speech or religious speech) or the right to protest protected under Articles 10 and 11 ECHR.

The preparatory conduct offence in clause 15 could criminalise preparing to protest at certain key sites—and indeed could carry a maximum sentence of life for Legislative Scrutiny: National Security Bill 53 preparing to protest. It will be important to ensure that those exercising their right to protest are not inadvertently caught by this provision and, importantly, that it is not policed in a way to suggest that they would be so caught. The Government should set out how they intend to ensure that clause 15 is not used to unduly interfere with the right to protest.

The Government must justify the necessity of the police warrant powers in paragraphs 10 and 24 of Schedule 2 and should consider whether further safeguards might be appropriate. In particular, the Government should consider including greater protections for confidential journalistic material.

The reviews of detention without warrant should only be able to be postponed for well-defined and justified reasons. Paragraphs 29(1)(b) and 29(1)(c) of Schedule 3 should be deleted from the Bill.

The process for a judicial warrant contains some guarantees. However, we have some concerns given the potential for a person’s access to their lawyer to be delayed, the potential for a detainee to be excluded from part of the hearing, and the potential for information relied upon to be withheld from the detainee and their legal representative. As a result, it is possible that a detained person may not be told sufficient information to enable them to be in a position to counter any claims made against them in a part of the hearing from which they are excluded. There are therefore risks that this process does not contain sufficient protections against arbitrary detention. A requirement that a person should be able to know the case against them might improve the protections in paragraph 40 of Schedule 3.

We note in particular that the provisions to withhold information from the detainee and their legal representative extend, under paragraphs 41(3) and (4) of Schedule 3, to matters relating to recovering the proceeds of crime, rather than anything relating to national security. The Government should justify the use of detention based on undisclosed/closed material where the concern relates solely to proceeds of crime. Failing a compelling explanation, paragraphs 41(3) and (4) of Schedule 3 should be deleted.

Restrictions and delays on access to a lawyer and on letting a person’s loved ones know where they are constitute serious impediments to accessing basic rights for a person detained without charge. Whilst such restrictions may be proportionate if necessary for imperative reasons of national security, such as to prevent immediate serious harm to another person, the case is less compelling where the objective is solely asset recovery. Paragraphs 9(4) and (5) of Schedule 3 should be deleted from the Bill. (Paragraph 96) The principle of open justice & the power to exclude public from proceedings

The principle of open justice is fundamental to the proper administration of justice and the right to a fair trial. We welcome the replacement of section 8(4) OSA 1920 with clause 31, such that the public could only be excluded where this was “necessary in the interests of national security”. The Government should reconsider the need to 54 Legislative Scrutiny: National Security Bill include a reference to the interests of justice as part of this test. The test in clause 31 might thus be amended to read “necessary for the administration of justice, having regard to the risk to national security”. (Paragraph 103) Criminal Immunity: Offences under Part 2 of the Serious Crime Act 2007

Any provisions that seem to grant criminal immunity to officials go to the heart of respect for the rule of law, human rights and the fundamentals of justice and fairness. Given the existing defence of acting reasonably in section 50 Serious Crime Act 2007 (including based on subjective information), we do not consider that the case has been made for clause 23. We recommend the deletion of clause 23. (Paragraph 111) Part 2: Prevention and Investigation Measures (Clauses 32–56)

Given the intention that these measures should be used in “cases that cannot be prosecuted or otherwise disrupted”, a requirement that the Secretary of State confirms with the police that prosecution is not realistic or feasible before a PIM is imposed would appear to be consistent with the policy justification. We recommend that the Bill is amended to include such a provision.

The use of closed proceedings in the review of Prevention and Investigation Measures (PIMs) raises concerns in respect of Article 6 ECHR, the right to a fair trial. However, the Bill provides for material to be disclosed, or not relied upon, if keeping it from the subject of the PIM would result in impermissible unfairness. This should be enough to ensure compliance with Article 6, as long as adequate legal aid is made available to the subjects of PIMs. To ensure that legal aid is available to a subject of a PIM in any legal proceedings concerning the Prevention and Investigation Measures, an Order should be made under section 11(6) Legal Aid, Sentencing and Punishment of Offenders Act 2012, exempting PIMs proceedings from the criteria in that section.

Restrictions and obligations imposed under Prevention and Investigation Measures (PIMs) are likely to engage the right to private and family life under Article 8 ECHR. Article 8 issues will need to be raised in court proceedings where PIMs are reviewed. Given the likelihood of material being considered in closed proceedings, hampering the ability of the individual subject to the PIM to challenge it, it is vitally important that national security assessments are carefully and accurately produced and that closed advocates are given the time and resource needed to represent the individual’s interests effectively.

A more effective protection against interference with Article 5 rights would be to include within the National Security Bill a strict limit on the number of hours for which a subject of Prevention and Investigation Measures could be required to remain in their residence: for example, 14 hours per day. The Government should consider amending the Bill to include such a limit.

We welcome the inclusion of an independent reviewer of the Prevention and Investigation Measures regime under Clause 49 of the Bill. However, this role should be extended to cover other parts of the Bill and other core national security Legislative Scrutiny: National Security Bill 55 legislation in the same way that the Independent Reviewer of Terrorism Legislation has a remit wider than just the Terrorism Prevention and Investigation Measures regime. We recommend that the Independent Reviewer’s role be extended to cover Parts 1 and 2 of the National Security Bill. The Government should review whether the Independent Reviewer could also cover other core national security legislation. (Paragraph 130) Part 3: Persons Connected with Terrorism: Damages and Legal Aid

It is important that remedies for human rights violations are not reduced by the courts, simply because they have been identified through claims brought otherwise than under the HRA. The Bill should be amended to ensure that all damages awarded for what amount to human rights violations are exempted from the restrictions on damages in clauses 57–59.

Damages should not be reduced based simply on factors identifying the claimant as unworthy of compensation or excusing the Government for actions that have been found to be unlawful. Before any reduction in damages should be made in the widely defined “national security proceedings”, the defendant should be required to satisfy the court that the damages are likely to be used for terrorist purposes. Furthermore, to avoid the defendant being able to avoid legal consequences for its unlawful conduct, the Government should explore whether any amount by which damages are reduced could be paid to an appropriate charitable cause, such as a charity supporting the victims of terrorism.

The need for a new regime to allow for damages awarded in legal proceedings to be seized and ultimately forfeited on the basis of a real risk that they will be used for terrorist purposes has not been made out. To prevent damages awards being spirited away for terrorist purposes, the existing freezing and forfeiture regime could be extended so that applications can be made to the court dealing with the damages award.

In the absence of significant reform to the system of Exceptional Case Funding, it is likely that the provisions of the Bill removing legal aid for terrorist offenders will impede access to justice and the enforcement of basic human rights. There is also potential for them to be counterproductive in respect of reducing terrorist offending. These provisions have been proposed for symbolic reasons, and as such, the Government has not provided sufficient justification for the impact they will have. Clauses 62 and 63 should be removed from the Bill in the interests of access to justice and the effective enforcement of human rights. (Paragraph 164) Other Matters Arising

It is important that Parliament is given sufficient time to consider any foreign influence registration scheme; it is unfortunate that these clauses were not in the Bill as introduced. Any foreign influence registration scheme must contain adequate protections to ensure that it does not interfere unduly with democratic rights, including freedom of association and free speech. (Paragraph 166) 56 Legislative Scrutiny: National Security Bill

We are concerned that the Official Secrets Act 1989 may be incompatible with Convention rights, including the freedom of expression and the right to a fair trial. We consider that the Government should take action to address these concerns as soon as possible. There seems to be a certain level of consensus that a whistleblowing or public interest defence is needed—and that such a defence should not catch data dumps but should be available for genuine cases of whistleblowing. The Government should set out its timetable for addressing these concerns given the potential of this legislation to negatively impact on free speech.

The Government should clarify whether, if the Bill of Rights is passed as introduced, it intends to preserve the interpretations made using section 3 Human Rights Act. If it does not intend to preserve these interpretations, it should explain how it intends to remedy the incompatibilities in Official Secrets Act 1989. (Paragraph 176) Legislative Scrutiny: National Security Bill 57