Baroness Jones of Moulsecoomb:

Moved by Baroness Jones of Moulsecoomb

66A: Clause 29, page 21, line 33, at end insert “but, where the conduct or course of conduct is for the purposes of journalism or civil society activity, subsections (1)(a) and (2) may be satisfied only if the conduct or course of conduct is instigated by or under the direction and control of a foreign power within the meaning of subsection (2)(a) or (b).”

My Lords, I do not get frightened easily, but we have talked a lot about nerves here, and walking into your Lordships’ Chamber earlier and seeing a dozen KCs, former judges and members of the intelligence community was slightly unnerving—thank goodness, they are leaving; that relaxes me enormously. I declare an interest as the mother of a journalist, although not one who works in this sort of area. A lot of journalists and organisations have contacted me to express serious concern about this National Security Bill, because things are not clear.

As it stands, there is a huge risk to whistleblowing and public interest journalism, and these legitimate activities—in fact, one could call them absolutely crucial activities for our democracy—could now put journalists at risk of serious criminal consequences. The so-called foreign power condition does not even distinguish between our allies and our adversaries. This will mean that journalists and NGOs will have to be careful when receiving information from any Government, even an innocuous press release from, for example, the United States Government or a local authority in France. Any information received from foreign sources which might reflect badly on the UK Government could put journalists at risk of prosecution under this law; worse, the journalist would commit an offence just by receiving the information, without even publishing it. That is utterly illogical. Journalists have a right to inform the public and the public have a right to know. The Bill is therefore potentially very damaging for the freedom of the press. We rely on journalists to report on corruption of all kinds, so we must amend the Bill. I beg to move.

My Lords, I too did not speak at Second Reading. Unlike the noble and learned Lord, Lord Judge, who is no longer in his place, it was not because I was doing other things in the Lords but because I had not read the Bill. The fact that I have now looked at it brings me to the Committee today. Before I speak, I declare an interest both as a board member of the ABI, although that is not relevant to this amendment, and as a member of the Labour Party. The reason is that I speak to Amendment 68, to which I have added my name.

We will come to Part 3 later but the definition of “foreign power” in respect of Part 3, as spelled out in Clause 81(1), is in Clause 30. Clause 30(1)(e) covers political parties in government, or members of political parties that are in government. Schedule 14 exempts these, or at least the political parties in government, from the Clause 69 requirement to register. However, on a reading of it, it sounds as though that covers only foreign parties in government and not others. Therefore, I am not certain whether the Clause 14 exemption covers political parties in opposition. If it does not, political parties in opposition in other countries are covered as foreign powers.

I confess that some of the noble and learned Lords who have just left have been extremely helpful in giving me advice on this; in case your Lordships think that these are all my own words, I have had the benefit of extremely good advice on this. It sounds as though the exemption in Schedule 14 is only for the governing parties themselves and not necessarily for individuals of those parties or for those acting on behalf of political parties. It also appears that the exemption covers only registration and influencing, and probably not the activities of overseas political parties, even those from friendly states, such as Five Eyes states, with which of course we do a lot of business. So I think that those parties come under Clauses 65 and 66, according to the definition.

I hope the Minister will have enormous clarity when he spells this out in his reply, and I also hope that either the noble Lord, Lord Marks, or the noble Lord, Lord Purvis, will speak on this and can clarify it more than I can. It is interesting whether, if an overseas party—the US Democrats, for example—organised a dinner here, perhaps at Labour Party conference, that would need to be reported, and indeed with the threat of criminal proceedings if it was not. Would any of those political parties coming over here and having meetings with any of us count as activities and would they have to be reported within 10 days, and so on?

We also do a lot of joint working, in our case with the German SPD; we work on environment and trade, and a lot of other issues, and sometimes we buy them lunch—occasionally they buy us lunch. Is that covered by what would have to be declared? Similarly, would we have to report meetings, perhaps with MEPs from across the European Union when they were over here, or is it only those from non-governing parties? Therefore, if we have a mixed group of MEPs coming here, would those from governing parties be exempt but not those in opposition?

If the Minister thinks he is fairly junior down the pecking order, I think I am the tea lady who brings in the tea to barristers, so I hope he will be able to clarify all of this and that it is just me who is confused. However, as my noble friend Lord Hacking said earlier, this legislation should be easy to read. It does not just have to be right in what we want it to say; it is incredibly important that anyone who could be affected by it can pick it up. I am not a lawyer but I am pretty involved in politics, and if I can read it and not understand a word of it—I may be at the stupid end —I doubt that anyone else will be able to.

Part of the reason for the next issue is that there has not been any pre-legislative scrutiny on this Bill, which would have clarified some of this; nor has there been any consultation on these issues. If there are going to be a lot of reports, particularly on political parties in opposition coming over here, we risk having such an enormous number of reports that they become meaningless. If all these activities get reported, the actual dodgy ones, if you like, may be hidden in plain sight.

I know that, either in giving evidence somewhere or in writing, Edward Lucas looked at the case of anti-money laundering. He showed that there are 3,000 reports of anti-money laundering a day; quite a lot of them probably come from your Lordships’ House since we are all PEPs and must be reported on. However, it means that, if you start getting that number of reports, they are meaningless because you cannot see the wood for the trees.

Later on—probably in the next day of Committee—we will come on to how all this will affect business, academics and investors. My concentration today is on friendly political parties from friendly states and the possible attempt to criminalise any work that they do on influencing decision-makers. If I have read it correctly, the Bill refers not simply to decision-makers in government but to their ability to try to influence a political party. In the case of the Labour Party—I am sure that other parties can speak for themselves—we are a member of international party groupings; for example, we are a member of the Party of European Socialists. Needless to say, when we have elections for a new president or general secretary, we are lobbied by overseas parties about who we should vote for. I hope the Minister is going to clarify that there is no way in which that attempt to influence a political party could possibly be covered, because my reading of the Bill is that it is close to it.

If the Government’s intention in all this is to get at the Chinese Communist Party, would it not be easier for them either to say that or to put in “political parties identified by government under a statutory instrument”? This would capture political parties, be they the French Socialists, the American Democrats or whatever the equivalents of the Liberal Democrats and the Conservative Party are. There is also an underlying problem behind this. It seems to me that the Bill implies that all foreign political parties, which I believe are essential to democracy, are somehow suspect. The tone of the way in which that part of the Bill is written is dangerous and unedifying.

Can the Minister clarify what exactly the Government’s position is? If governing parties are foreign parties as defined in Clause 30(1)(e) but are exempt from both the requirements to register under Schedule 14 and the prohibition on carrying out unregistered political influence activities, does that exemption apply to individual party members—including committees and sub-committees of parties—or entities associated with the party? We could have coming here a policy group that is associated with a party that could be active here. Since the obligation to register applies not to the foreign principal but to the person directed by them, are the exemptions sufficient to cover them?

Then there is the issue of parties that are not in government. On good advice from somebody who is present in the House at the moment, they seem to be in a worse position because they are foreign principals under Clause 67 and are not exempted under the foreign powers exemption. It therefore looks as if any communication that they direct to an MP, a Member of the Scottish Parliament, a Member of the Welsh Assembly or a Peer for the purpose of influencing them would have to be registered—again, possibly on pain of criminal prosecution. Can the Minister make a distinction on whether overseas parties in opposition may be caught by this measure? How would he define them? At the moment, is America a Democrat country or a Republican country? The Republicans control the House, but there is a Democrat in the White House. Which one counts as a governing party if, as we read it, parties in government are exempted but those in opposition are not? Who runs America at the moment? Is this really what the Government want to do?

Also, could an individual be required under Clause 72(2) to provide to the Government information about any arrangements made? What safeguards against political abuse are there for provisions relating to providing confidential communication? It seems to me that this clause on political parties—indeed, trying to cover them in an important Bill about national security—is completely out of line with what I think is the Bill’s intention.

My Lords, I speak in support of Amendment 66A in the name of the noble Baroness, Lady Jones of Moulsecoomb. This really important amendment gives us a chance to look at the Bill’s potential impact on investigative reporting. At the heart of that is Clause 29. I declare my interest as deputy chairman of the Telegraph Media Group, which is a member of the News Media Association, and note my other media interests.

I support this Bill, which rightly tackles the grave threats to the security of our country; I am sorry that I, too, was unable to speak to that effect at Second Reading. I support this probing amendment because it highlights a substantive issue arising from the Bill that relates to public interest and investigative journalism. Although more could be done—I will mention a couple of points in a moment—this is a limited, practical, technical amendment that does not in any way impact on the Bill’s vital central mission but deals with a serious threat to media freedom.

I do not for a minute believe that this Bill’s provisions will be used regularly to prosecute journalists but, crucially, I do believe that there are circumstances where it could be deployed to stop a major piece of investigative reporting—I will explain why—because of the subsequent chilling impact on investigative journalism, not least because of the rightly high, heavy sentences involved. I also think that there are major issues of press freedom globally on this point because the way in which we legislate in the UK, especially on issues of national security, tends to be copied in a much more dramatic fashion in far less democratic countries; this issue was powerfully raised in a letter from international press freedom organisations that was published today in the Times and which I co-signed as chairman of the Commonwealth Press Union.

I want to make one general comment before I come on to the specifics of this amendment. For more than 25 years, I have been involved in one way or another in major pieces of legislation that are not intended to have any impact on the media. However, unforeseen consequences often become apparent as they are scrutinised and the potential risk becomes clear. On almost every occasion, Governments of every persuasion have acted to amend a Bill to protect the legitimate interests of media freedom. I believe that this is one such occasion when the Government or this House should act when problems become evident. Where public interest journalism is concerned, we must always act with the utmost caution.

Let me explain the crux of the problem. Modern public interest journalism in a digitally connected world inevitably straddles national boundaries. It involves a combination of civil society and media organisations working together to report on leaked documents from the public and private sectors, the publication of which is genuinely in the public interest. It often relies on whistleblowers, who expose themselves to serious risk, and those who provide information that substantiates the truth of claims. The Panama papers and the Uber files are two such investigations, but this point also applies to straightforward reporting, such as that by the Daily Telegraph on Chinese influence in the UK and British citizens being placed on a Chinese watch-list; the reporting of the Daily Mail on the horrific experiences of female submariners on-board nuclear submarines; and the BBC’s story last year about a spy who used his status to terrorise his partner before moving abroad to continue intelligence work while under investigation. You can see how arguments might be made about any of these reports potentially being of use to a foreign intelligence service.

The problem arises because of the wide definitions used in Clauses 1 and 3 and particularly at the foreign power condition in Clause 29. Together, they could potentially criminalise one of the core functions of journalism: reporting on leaks of information about Governments, organisations and companies. They could cause problems for civil society organisations that work legitimately with journalists on investigations if those organisations are funded by foreign Governments, many of whom, like the United States, are of course sympathetic to the UK. They could cause serious problems for sources, who might reveal restricted information such as trade secrets when disclosing information clearly in the public interest to organisations that accept financial assistance from foreign states. They could cause serious problems for those collaborating with UK and international organisations which receive funding from foreign Governments. The admirable Organized Crime and Corruption Reporting Project, to take one such case, receives donations from the US Department of State and the Ministry of Foreign Affairs of Denmark. As we have heard, there is no distinction in the Bill between hostile and friendly sources of funding which would provide protection for such collaboration.

These might all be theoretical issues, as I am sure that my noble friend will say. When it comes to media freedom, history shows us that we must take the utmost care with problems of theory. However, one issue is most certainly not theoretical: the chilling impact that results from the combination of all these pitfalls and from this clause. When the potential sanctions under the Bill are so grave, would whistleblowers really want to take the risk? Would those involved in an investigation who might be needed to corroborate information be willing to take the chance? Would journalists want to put themselves and their editors and publishers in jeopardy? Would civil society organisations affected be prepared to do so? I suspect that the answer to all those questions is no, which would have significant repercussions for investigative reporting, particularly on international matters, something that the Bill never intended to do. The key point is this: journalists and whistleblowers may fall within the scope simply because they ought to have known a story about how a Government might assist another country. That is an incredibly low bar and cannot possibly be right.

The Bill does not need major surgery to deal with these issues. Instead, it needs the tightening up of the foreign power condition and the wording in Clauses 1 and 3. Ideally, as well as looking at this amendment, the Government will think again about Amendments 65 and 66 tabled by the noble Lord, Lord Marks, which have already been debated. Sadly, I was unable to contribute to that debate. Further technical amendments and tweaks to language will be needed in relation to the search powers in Schedule 2. Amendment 75 tabled by the noble Lord, Lord Marks, which I support, would also be helpful.

There must be a holistic approach to the problems of journalism arising from this Bill. I would be grateful if my noble friend could look again at that issue in the light of this debate and consider two points, both of which arise from the amendment moved by the noble Baroness, Lady Jones. First, “ought reasonably to know” in this clause is a low bar when the Bill is aimed at those who absolutely know what they are doing because they are involved in espionage. Let us raise the bar and not potentially criminalise whistleblowers—who already put themselves in serious danger—civil society organisations and journalists by taking that criterion out.

Similarly, we should ensure that the Bill’s provisions are aimed at those deliberately carrying out something which they know prejudices or is intended to prejudice the safety, security or defence of our country, not those who stumble into the purview of criminal sanctions while doing their job in the public interest. I am very grateful to the noble Baroness, Lady Jones, for tabling Amendment 66A, as it deals with a serious problem in a technical and proportionate way that in no way undermines the vital purpose of the Bill.

I very much hope that my noble friend is able to respond positively to this debate, either by bringing back an appropriate government amendment protecting media freedom on Report or, at the very least, giving a powerful signal from the Dispatch Box that the Bill is not aimed at journalism and those who work with journalists, or at hampering investigative reporting.

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.

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.

My Lords, I declare an interest as the chairman of the Communications and Digital Select Committee. It was because I was chairing a meeting of that committee that I was unable to speak at Second Reading.

I will speak briefly about the potential effect and unintended consequences of this important legislation on investigative journalism. Before I go any further, I should say that I am grateful to the noble Baroness, Lady Jones, for the opportunity to debate this matter. As my noble friend Lord Black already explained, comprehensively and very powerfully, the potential chilling effect on legitimate journalism is of particular concern. That is real and we must find a way of avoiding it, without diluting the intentions and objectives of this Bill, which I, like other noble Lords, support.

I am grateful to my noble friend the Minister for meeting me and others, with some of his officials, in December to discuss our concerns. I look to him for reassurance that the Government remain alive to this problem and open to discussion. I am not sure whether Amendment 66A from the noble Baroness, Lady Jones, is the answer to the problem; it may need to be combined with Amendments 65 and 66, which have already been debated. As my noble friend Lord Black already said, what we need here is a holistic approach to the point in question, which is around making sure that important investigative journalism is able to continue.

As a result of this very important legislation, I would not want, for example, deficiencies in military equipment that cost the lives of our Armed Forces not to be exposed. That example was put to me by some of the media organisations that have been in touch. They reminded me that that particular piece of journalism led to a change in the then Government’s commitment to defence expenditure and, subsequently, a ministerial apology—albeit several years later in a public inquiry. I do not want us to legislate in a way that risks journalists not exposing these important matters, if they fear that doing so would lead to them committing a crime that would attract serious penalties. I support the arguments that my noble friend Lord Black has put forward, and I look forward to my noble friend the Minister’s response and, as I have already said, to our continuing discussions on this matter.

My Lords, my name is on Amendment 70 and I want to speak to Amendments 68 and 71. I stress that, in getting this Bill right, we need to make sure that it does not lead to a level of overreporting that swamps the Home Office, with a great deal of cynicism and a negative reaction from those who are asked to do the reporting. In the last week, I have received a dozen representations, not just from media and academic sources—the liberal metropolitan elite, whom the Minister may regard as not terribly important—but from the City and commercial enterprises, which are as worried about the negative impact that the Bill could have on their international activities as those in universities are.

I admire the speed with which the Minister talks when he responds to our questions, but I hope that he is carefully considering the reasoned and sometimes expert criticisms that we have of this Bill, that he is more concerned to get the Bill right than to get it through and that, between Committee and Report, we will have some long, further conversations on particular aspects of the Bill about which the House has been concerned.

To expand on that a little, I thought the Minister was a little flippant about my suggestion that there were non-state threats from the right in a number of countries, including the United States. He may have been following the attempted coup in Brazil. The reports of it that I read suggested that the Conservative Political Action Coalition in the United States was actively tweeting in support of Bolsonaro and may well have provided funds, and that Steve Bannon and his organisation were also actively in support of Bolsonaro. These things should worry us as much as terrorist and state threats, and this is another dimension that we need to think about in this Bill.

We know that foreign money has come into this country, that there have been some very odd things, such as the Conservative Friends of Russia element, in which the right has appeared to work with what we regard as the foreign left. Those sorts of things need considering. I look forward to the letter that the Minister will be sending me shortly—I hope—on the question of spiritual injury, which the discussion last week suggested is unenforceable and almost undefinable, and therefore should not be in the Bill. I also hope that we will have further discussions on the impact on diaspora communities and dual nationals, because the extent to which our diaspora communities have relations with parties in the other countries to which they have links, and with the Governments of those foreign countries—be it Pakistan, Israel or wherever—is going to be complicated further by the Bill. We need to get to the end with an Act which commands public acceptance and public consent. Incidentally, it is likely to come into effect just before the next election, and if there was an adverse reaction to its implementation, the Government are likely to suffer.

Some of us have seen the letter that Kevin Rudd sent to the Australian Government in response to their scheme some years ago, in which he lists the 35 foreign powers with which he was involved in 23 different capacities. I was thinking last night that perhaps I ought to try this for myself: I have been active in Liberal International. I am sorry that the Conservative Party withdrew from the European People’s Party, and has many fewer international links, except with the Republican Party in the United States, than the Labour Party or the Liberal Democrats, but part of the life of someone concerned with international issues in the Liberal Democrats is to meet liberals in government, or not in government, in a range of other countries.

I used to chair the UK-Netherlands forum, to regularly attend the Brussels Forum, and was for 10 years the research director of the Transatlantic Policy Forum, in the course of which I became very friendly with a number of Congressmen, Senators and others; one of my closest friends from that period is now Deputy Secretary of State. That is not dealing with a hostile country, nor is talking to US Senators. My colleague, the noble Lord, Lord Campbell of Pittenweem, is a member of the North Atlantic Assembly; he does that on a regular basis. We need to be very careful not to get into positions where people start thinking: “Should I report this? Do I need to report this?”

What about the occasions on which I have spoken to meetings of former students of the London School of Economics or St Antony’s College, Oxford, in Berlin, Brussels and Helsinki? At one point, I found myself in the sauna of the president of the Finnish central bank, chatting about British politics and Europe. I should probably report that, and say what I was wearing at the time.

Britain declares itself to be a global country—global Britain—a science superpower, a world financial centre, and a leading democracy and open society. The Bill needs to be compatible with those objectives, not getting in the way of them. If we say that this applies every time one meets someone in authority in Washington, Paris or Berlin, that is absurd and contradictory to our principles. At the very least, we need to think about which countries we care about and which countries we are relaxed about. We have friendly countries, democratic countries; we should not intend to treat them as if they were China, Russia or Iran. Those are the purposes of these amendments, and we should have further dialogue on that. I would say that, having taught students from foreign countries on many occasions—my wife and I, between us, have taught two Prime Ministers, a President of the European Commission and various others—we meet them occasionally; that is not unusual. There are many others involved in politics in Britain who have similar international links. How does this cope with the sorts of informal conversations on shared approaches to the international order which we all have on those occasions?

I think that this is too complicated and far too bureaucratic, and we need to think carefully how we tighten and narrow it, in order to win and hold public consent and produce an Act which will last for 10 to 20 years, and not just until the next Government come in.

My Lords, I will not be disclosing quite as much as the noble Lord, Lord Wallace, did, but I will disclose that I am the chairman of the Independent Press Standards Organisation, and it is in that context that I want to add a few remarks. I am also grateful to the noble Baroness, Lady Jones, for her amendment giving those of us who are concerned—I am sure that I speak for the whole Committee—about the potential effect, no doubt unintended, that the Bill might have on press freedom. I do not want to rehearse all that has been very well set out by the noble Lord, Lord Black, and the noble Baroness, Lady Stowell. What is vital, of course, is to think what potential chilling effect this might have on journalism, particularly public interest journalism.

One point that is perhaps worth emphasising is how expensive public interest journalism is, how heavy it is on resources and how easy it is for editors to say: “Look, this is far too difficult; you may not get what you want, it is expensive, and what is more it may be unlawful.” If you look at Clause 3(2) of the Bill, and are thinking about running a story to do with armaments, as the noble Baroness, Lady Stowell, said—I think that she was probably referring to the Snatch Land Rover issue; she confirms that that was the case—then you might well say to yourself that this is highly risky, because we are going to run a story about something which would be of interest to a foreign power with which we might be in conflict. It is just that sort of thing which this, in the absence of some sort of tailored amendment to the Bill, would have the unintended consequence of not just putting a journalist at risk but of somebody simply saying that they are not going to do the story or spend money on this.

So I hope that the Minister, who is otherwise preoccupied at the moment, may be able to consider these matters carefully, knowing how important public interest journalism is. I should say that I received some briefing from the Guardian. Although IPSO regulates 97% of those publications that we receive, it does not regulate the Guardian, so this does not in any way influence the job that I have.

My Lords, I share the concerns which have been expressed in this debate about the breadth of Clauses 29 and 30, particularly in relation to public interest journalism, as expressed by the noble Lords, Lord Black and Lord Faulks, and the noble Baroness, Lady Stowell.

One of the problems is that Clause 29(2)(c) ensures that the foreign power condition applies merely because there is

“other assistance provided by a foreign power”.

That is an incredibly broad definition. The provision of information would potentially fall within the scope of that definition. There is also the concern, which has been explained by the noble Lords, Lord Marks and Lord Wallace, that the foreign power definition in Clause 30(1)(e) extends to a political party—not just to political parties generally but, as Clause 30(2) makes clear, to any party which has any member of the Government in a coalition. So it extends very broadly, particularly in Europe, to any number of political parties.

The noble Lord, Lord Marks, made the point that one of the mischiefs here is that there is no attempt to exclude governing parties in our allies—NATO countries, Australia, New Zealand and Five Eyes countries—which is quite extraordinary. The anomaly is even greater, because if the Committee looks at Clause 30(3)(a) there is a specific exclusion for any political party which is

“a governing political party of the government of the Republic of Ireland”.

I would be very grateful if the Minister could explain why there is that specific exclusion —not that I have anything against the Irish—but not for any political party that operates in our other allies, particularly NATO allies. The anomaly is even greater, because it is not beyond the realms of possibility that, in the next few years, Sinn Féin may be a political party that is part of the Government of the Republic of Ireland, possibly in a coalition.

None of this makes any sense. Could the Minister please clarify, explain and reflect on whether this is really a sensible way to proceed?

My Lords, I wish very briefly to follow that excellent point, because the Government have not been clear in ironing out the anomalies in the definitions. The noble Lord, Lord Pannick, and others are absolutely right in agreeing with the noble Baroness, Lady Hayter, who raised this point.

The reality is that a junior party in a coalition Government, which might be under some form of political arrangement that is different from ours and which could be one of our sister parties, could be considered to meet the “foreign power condition” in the Bill. A person’s conduct could then fall foul of Clause 29(5) if that person

“intends the conduct in question to benefit a foreign power.”

I would like to benefit my liberal sister parties’ prospects in other countries by working with them on a philosophical basis, and vice versa. That is why we exist as political parties. The Bill would consider that conduct to be intending to benefit a foreign power. That surely cannot be right for an open democracy when we want to encourage political parties.

Not only that: before the aid cuts, we were spending considerable sums of money through the Westminster Foundation for Democracy to develop political party links. So we have on the one hand the Government funding the WFD, encouraging and in fact paying and providing support to parliamentarians to work with sister parties, and on the other saying under the Bill, “By carrying out the work that we’re funding, you’re also aiding a foreign power”, which is nonsense. At the same time, there is a concern that, under the definition in Clause 30(1)(c), a foreign public sector broadcaster, for example, could be considered a foreign power under the Bill, so any journalists working with, say, CBC in Canada would fall foul of the Bill because that would be an “authority” of a foreign power, unless specific changes are made.

There is also the point that my noble friend Lord Marks made. Part of the anomaly is that the Bill creates too many difficulties for journalists of state broadcasters to operate and potentially has a chilling effect on sister party collaboration, which the Government themselves seem to promote and support, but at the same time it does not include private sector enterprises that, although they are not formally an agency or authority of a foreign Government and a foreign Government is not responsible for their affairs, could include a private sector sovereign wealth fund of a state, which might or might not be listed on a stock exchange and which may or may not, in effect, be a private sector arm of the interests of a foreign power. So any interaction we have through the strategic interests of a wealth fund of a Gulf state, or of a private sector enterprise that may or may not be established and fully operational in the private sector but which our intelligence agencies say is, in effect, an arm of or has some interaction with the Communist Party of China, is not covered.

The anomalies in the “foreign power condition” need to be ironed out. These amendments will help in that way. I hope the Government will be able to provide greater clarification.

My Lords, we of course support the overall aim of the Bill. We also support the overall aims of the part of the Bill these amendments seek to address. The noble Baroness, Lady Jones, introduced this group, for which I am grateful. She said that she is the mother of a journalist; I am the father of a journalist.

Same one?

No; I cannot respond to that gallantly, can I? I will plough on.

Interestingly, my son recently completed a master’s in journalism at City, University of London. He told me that the public interest part of the journalism course was the least attended, partly because there are fewer jobs in it, which I thought was interesting and worth reflecting on. It is a very important part of any journalist’s work, but it is not where the majority of students choose to study. I thought that was an interesting observation.

The amendments in this group relate to defining a foreign power for the purposes of its activity in the UK. The noble Baroness, Lady Jones, moved her Amendment 66A, which would ensure that journalists and civil society are not wrongly included. This debate could have spread over to the group we will discuss on Monday on the foreign influence registration scheme and how that affects businesses, universities and political parties. In a sense, we will revisit a lot of these issues. Nevertheless, noble Lords have made points that will bear repeating, because they can be repeated in that context.

The noble Lord, Lord Marks, tabled similar amendments to create exclusions in certain instances. Amendments 67 and 69 would expand the definition to include corporations working on the behalf of foreign Governments. It is worth reflecting on the Government’s previous inconsistent approach to Huawei in 5G networks, and their lack of understanding of the risks. I believe that this underlines a need for a more coherent strategy. Serious questions remain following the 2020 announcement that Huawei would be removed from UK 5G networks, which we believe was long overdue, about why it was given the go-ahead in the first place. The Huawei case was sadly illustrative of how, in the past decade, the Government have allowed our national security to become an afterthought, creating risks to it. We on this side of the House believe that the Government need to invest in homegrown alternatives to end our national dependence on high-risk vendors.

My noble friend Lady Hayter made a number of very interesting points about political parties, which were picked up by other noble Lords in the debate. I would be interested to hear the Minister’s answer to the points she raised.

The noble Lord, Lord Black, referred to the letter in the Times today to which he was a co-signatory. The noble Baroness, Lady Stowell, also spoke about the potential chilling effect of the Bill’s provisions as they are currently drafted. They both spoke about the importance of a public interest journalism.

The noble Lord, Lord Wallace, made a point that I think will be repeated on Monday but is well worth repeating. It is the problem of overreporting. That is a theme that has run through all the briefings which I have received and that I am sure all noble Lord have received. It a fear in the university sector, the business sector and political parties, and literally hundreds of NGOs are also concerned about this matter—but that is something that can be talked about on Monday, as I have just mentioned.

When the noble Lord, Lord Purvis, summed up, he put his finger on the main problem with this section of the Bill, which is defining the anomalies of political parties, whether they are in government or not, or are part of coalitions or are opposition parties, and the many sorts of relationships which all political parties have internationally and how that works with the points made by the noble Lord, Lord Black, about the importance of public interest journalism, and how that is a very international approach, often dealing with leaked information and illegal information, and how journalists are to be protected in pursuing that valuable work. So this is a complex area. I am sure the Minister will, as usual, be very careful in his answer, but I hope he retains an open mind, as he did on the previous group when we were considering issues raised in this Committee.

My Lords, I again thank all noble Lords who have participated in this debate. Amendment 66A seeks to exclude journalism and civil society activity from the foreign power condition unless the conduct is instigated by or is under the direction or control of a foreign power. I acknowledge the intention of the noble Baroness, Lady Jones of Moulsecoomb, to protect legitimate activity from being criminalised under the Bill with this amendment. However, the Government do not believe that the Bill criminalises legitimate activity and, as such, it is our view that this amendment is unnecessary.

The Committee will be aware that the foreign power condition provides a single and consistent means by which a link between a person’s activities and a foreign state can be drawn. Meeting the foreign power condition is not in itself wrong. It becomes relevant when the other elements of the offences to which it applies are met. As such, the Government do not believe there is a risk to those who engage in legitimate acts, such as journalism or forms of civil society activity.

Turning to the specifics of the amendment, we know that those with hostile intent seek to hide their activities under the appearance of legitimacy, and this amendment could therefore create a gap in our ability to prosecute such individuals. This amendment would mean that an activity carried out with the financial or other assistance of, in collaboration with, or with the agreement of a foreign power would not meet the requirements of the foreign power condition. As a consequence, where a state threat actor posing as a journalist has been engaged in harmful activity which is an offence under the Bill, they would not commit an offence even if we could show that they were receiving specific funding in relation to that activity from a foreign power. This would produce an unwelcome effect whereby those seeking to cause harm to the UK could pose as journalists or members of civil society groups or operate through proxies in order to make it more difficult to be prosecuted.

The Government understand that journalists and those conducting civil society activity can be acting wholly legitimately when receiving funding from a foreign power or working in collaboration with it. However, the other requirements for offences to be committed mean that those legitimate acts would not be captured. In answer to my noble friend Lord Black, I can be clear that this Bill targets wrongful activity from states, not whistleblowing —but we will be coming back to whistleblowing later in today’s session. I also hope that those comments reassure my noble friends Lord Black and Lady Stowell and, of course, the noble Lord, Lord Faulks.

I now turn to Amendments 67 to 71 on the meaning of foreign power, which were tabled by the noble Lords, Lord Marks of Henley on Thames and Lord Purvis of Tweed. The noble Lords have tabled an amendment to remove from the definition a political party which is the governing political party of foreign Government. The inclusion of governing political parties addresses situations where there is a dominant political party or parties within a country to such an extent that it may be difficult to disentangle whether harmful activities are being carried out on the direction of the ruling party or the Government. We know all too well that states seeking to exert their influence or cause harm to the United Kingdom will do so through a number of different vectors, and we do not wish to create a gap in our legislation which state actors could exploit.

How then, if you seek to attack political parties that are effectively Governments, do you correspondingly exclude political parties that are not in any sense responsible for the activities of the Government, even though they may form a small part of such a Government? The point we made about coalitions is in point and illustrates one of the points we are concerned with, which is that, in a desire to encompass everything that ought to be encompassed, you pull into the net all kinds of fish that ought never to have been caught.

I of course understand where the noble Lord is coming from, but the point is that this relates to the activities of these political parties and those who are working for them. Therefore, I am not entirely convinced that it would be appropriate to exclude the smaller parties in, say, a coalition.

I was going to go on to explain why certain governing political parties in the Republic of Ireland have been carved out, in answer to the question asked by the noble Lord, Lord Pannick. A political party that is both the governing political party in the Republic of Ireland and a political party registered in Great Britain or Northern Ireland is excluded from the definition of a foreign power, as noted. This exclusion is included in recognition of the fact that there are political parties that contest elections in the Republic of Ireland and in the United Kingdom to ensure that the provisions in the Bill do not inadvertently impact cross-border politics.

A further amendment has been tabled seeking to add corporate or other entities.

Is the Minister moving off political parties? If so, he has not answered any of the questions that I posed, and I hope he is going to do so before he moves off political parties. The idea is that we are going to call in political parties—and only governing parties, although under Schedule 4 they are the ones that are excluded, not opposition ones—but other countries do not necessarily have a definition of political parties in the way that we do. In fact, until PPERA, in 1998 or whenever it was, I cannot remember, we did not have a definition of political parties or a register of them. So, in other countries that do not have them, how on earth are you going to know who is a political party?

Apart from that, there is the question I put about whether they are in opposition or in government, and what the answer is on America. If one is trying to get at agents acting on behalf of a Government, all you have to do—I used to be general-secretary of the Fabian Society—is call yourself a think tank rather than a political party, and then presumably you can do the activity. So, if this is a way of try to get at organisations that work on behalf of Governments, only calling them political parties, of which in many countries there are no definitions anyway, is, I have to say, somewhat the wrong approach. Will the Minister give me answers to the questions I posed in my contribution?

I thank the noble Baroness for that. She will forgive me if I do not get involved in what is the correct, or legitimate, Government of the United States. I do not think that is for me to opine.

It will be for the noble Lord or his successor to opine, because it is in the Bill. There is no secondary legislation attached to it about what the definition will be. This is Pepper v Hart. What is going to be taken is the Minister’s words at the Dispatch Box. If the Minister is saying that he cannot define which is the governing party in America, how do we know who we can meet and who we have to register?

As regards the registering point, the noble Baroness is—as the noble Lord, Lord Ponsonby, suggested—perhaps straying into the FIRS situation, which we will discuss at considerable length on Monday. I think that will deal with a number of the questions the noble Baroness has posed with regard to registration and so on. Can we come back to that on Monday, please?

As regards opining as to the Government of the United States, I choose not to do so purely because it would potentially be a political can of worms, but I acknowledge the fact that obviously there is a President who comes from a different party from the majority party in one of the two Houses.

So there will be meetings that we can have now, and if—God forbid—Mr Trump wins, suddenly the parties with which we are allowed to talk will change because it is Mr Trump rather than Mr Biden. Is that really what the Minister is saying?

No, I do not believe that is particularly what I am saying. I suspect we will have to come back to this for precise definition purposes, and I am happy to commit to do so.

A further amendment has been tabled, seeking to add corporate or other entities to the foreign power definition. We believe this is unnecessary as it is already covered in the foreign power condition provision, which covers indirect links, under Clause 29(3). This explicitly provides that a person’s conduct could meet the foreign power condition if there is

“an indirect relationship through one or more companies”.

The legislation therefore covers cases where a person is receiving tasking through a company that is under the ownership, control or direction of a foreign power. It is vital that states are not able to circumvent the measures in the Bill by working through proxies to deliver harmful effects.

The noble Lord, Lord Ponsonby, asked specifically about state-owned companies and Huawei in particular. We have not included state-owned companies in the definition of a foreign power as these companies often have their own non-state objectives. Instead, the legislation captures circumstances where a person acts directly or indirectly

“for or on behalf of a foreign power”.

That includes cases where a person knows, or ought reasonably to know, that the activity they are conducting for a state-linked company is being carried out for or on behalf of the foreign power, or where they intend to benefit a foreign power. Offences may be committed by bodies corporate, including those established in other jurisdictions. In addition, the legislation provides that where an offence is committed by a company

“with the consent or connivance … or … due to any neglect” of an officer of the company, that officer of the company may be guilty of the offence.

In answer to the noble Baroness, Lady Hayter, I have just mentioned that a number of the questions she raised and subjects she covered are more appropriately dealt with under the FIRS discussion we will have on Monday. That also applies to a number of the things raised by the noble Lord, Lord Wallace. As noble Lords know, that part of the Bill—Clauses 65 and 66 —was introduced late into the House of Commons, to which the noble Lord referred. I am sorry if the noble Lord, Lord Wallace, thinks I was frivolous as to the potential for right-wing threats to our national security. Just for the record, I am completely agnostic about from which end of the political spectrum threats are made to our national security.

Finally, noble Lords have tabled an amendment to exclude members of NATO and other nations, via regulations, from the definition of a foreign power. It is important to note that the National Security Bill focuses on harmful conduct undertaken by a person, not the foreign power they seek to benefit. Actively excluding certain states could create an unwelcome gap in the legislation, particularly given that we know that states sometimes look to act through proxies. These amendments, therefore, could lead to us being unable to take necessary and appropriate action against harmful activities. Noble Lords will wish to note the case of Daniel Houghton, the dual British-Dutch national who attempted to sell sensitive information to the Dutch intelligence services in 2010. Were NATO states to be excluded from the definition of a foreign power, cases like Daniel Houghton’s would not be captured by the offences and measures in the Bill.

For those reasons, the Government cannot accept these amendments and I ask noble Lords not to press them.

My Lords, I am afraid I do not accept the Minister’s idea that these things cannot be criminalised, so I will bring my amendment back on Report. I thank noble Lords for contributing to my amendment, particularly the noble Lord, Lord Black, with his expertise—which goes way beyond mine. I ask the Minister for a meeting to discuss this, because it is quite a fundamental point and bears further discussion. In the meantime, I beg leave to withdraw.

My Lords, we need to come back to the question of a definition of a foreign power. The idea of a potential threat from Canada, Australia or the Netherlands, let alone the United States—which already has military forces in bases in this country—appears to be entirely disproportionate. We know there are serious threats from a number of hostile countries. That is what the Bill needs to focus on. If it spends a huge amount of time and demands a huge amount of effort from all those affected by it, reporting on the conversations they have had in Paris, Copenhagen, The Hague, et cetera, it will be less able to work out what is happening with Afghanistan and others—the real threats. That seems to be part of what is mistaken in the design of the Bill, and we need to come back to that before Report.

Amendment 66A withdrawn.

Clause 29 agreed.

House resumed. Committee to begin again not before 8.20 pm.