Examination of Witnesses

National Security Bill – in a Public Bill Committee am 3:01 pm ar 7 Gorffennaf 2022.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Dr Nicholas Hoggard, Professor Penney Lewis and Rich Owen gave evidence.

Photo of Rushanara Ali Rushanara Ali Llafur, Bethnal Green and Bow 3:21, 7 Gorffennaf 2022

We will now hear from Dr Nicholas Hoggard, Professor Penney Lewis and Mr Rich Owen. We have until 4 o’clock for this session. I would be very grateful if the witnesses introduced themselves for the record.

Dr Nicholas Hoggard:

Hello, I am Dr Nick Hoggard. I was the lead lawyer for the Protection of Official Data project at the Law Commission, which was the project referred to us by the Cabinet Office. It informs a number of the offences in part 1 of the National Security Bill.

Professor Penney Lewis:

I am Professor Penney Lewis. I am the criminal law commissioner at the Law Commission, so I led that project in its latter stages.

Rich Owen:

I am Rich Owen. I am here today in my capacity as the chair of the access to justice committee for the Law Society. I am also director of a pro bono law clinic, the Swansea Law Clinic, which is part of Swansea University, and the chair of a regional advice network for Swansea, Neath and Port Talbot, which was set up by the Welsh Government.

Photo of Scott Mann Scott Mann Assistant Whip

Q Thank you very much for being with us this afternoon. The Law Commission undertook a review, and the result of the review has fed into this Bill. Do you agree that we as a Government have responded to the Law Commission’s recommendations on the Official Secrets Act and made the right legislation?

Professor Penney Lewis:

That is a great question. This Bill implements the first part of our report, which was concerned with the espionage offences. I think it is worth saying that we did not envisage that any one statute would implement all the recommendations that we made in that report, even were the Government minded to accept them all.

The second and third parts of the report concern unauthorised disclosure and the role of the public interest in relation to unauthorised disclosures. We understand that the Government are still considering those recommendations. But in relation to the espionage recommendations, yes, this Bill implements our recommendations. There are minor differences, which is to be expected as part of the parliamentary drafting process, but we are very pleased that the Government have accepted those recommendations.

We had several concerns about the existing offences; as the previous witness mentioned, they were not fit for the current threat. The focus, for example, on enemies was unhelpful. It did not—does not—fully reflect the nature of the threat against the UK. It also risks causing offence to states with which we are not at war. We had concerns about the territorial ambit of the offences, which are addressed by this Bill—the offences in part 1. We were also concerned that there were not sufficient culpability thresholds, such that individuals might be prosecuted for the existing offences without being sufficiently culpable. We are pleased to see that those thresholds have been raised in the offences in the Bill.

Dr Nicholas Hoggard:

As a matter of generality, I think Penney has it absolutely right: the offences reflect well the recommendations that we made. As Penney said, there are some differences that will arise naturally in the course of drafting and negotiating with parliamentary counsel, but our view is that the spirit of our recommendations has very much been carried through. There is probably not much more I need to add at this point.

Photo of Scott Mann Scott Mann Assistant Whip

Q One final question from me: I would welcome your reflections on some of the new powers to address some of these state threats, particularly the investigatory powers and STPIMs.

Professor Penney Lewis:

I am afraid that I will be less happy about that question. The Law Commission was asked to look at the Official Secrets Act. The project’s terms of reference focused on official Government data, so we have not looked at those matters. There are a number of matters contained in the Bill that were well outside the scope of our project, and I am afraid that we just cannot comment on them.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

Q Thank you for your time today. Can I take you through some different parts of the Bill for your assessment? Perhaps Dr Nicholas Hoggard could answer, as I have had a good look through the chunky read that is the “Protection of Official Data” report and given your work on it. Clause 8 gives the Secretary of State the ability to designate somewhere as being a prohibited place to protect the safety or interests of the UK. Are you comfortable with some of the definitions and powers there?

Dr Nicholas Hoggard:

Yes, I think we are. One of our concerns about the existing offences in the 1911 Act was that the existing prohibited places—though extensive; it is an extensive and complicated piece of drafting—have a strong military focus, and they do not necessarily reflect the way that critical national infrastructure, for example, or sensitive information is held by the Government.

There are some powers for the Secretary of State that exist under the 1911 Official Secrets Act, but they are quite restricted. What is good to see about the powers under this Bill is they are quite principled powers. The basis on which the Secretary of State can define something as a protected place is much more transparent. There are just three limbs that are easy to understand. That basis for affording the Secretary of the State the power is much more useful. It is more transparent, but it also enables us to capture within the offence places where there is actually a real risk of harm arising from hostile state activity.

On that front, I would say the power is good in so much as it aligns with the spirit of our recommendation. The fact that there will be parliamentary oversight of this process is important. It was a fundamental feature of our recommendations, and the negative resolution procedure is an important part of that process. The Secretary of State’s powers are more effective than is permitted under the current law, but also there is sufficient oversight.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

Q So you do not think the ability to do so in the interests of the UK, as well as for its safety, gives some quite sweeping powers, which would be open to challenge?

Dr Nicholas Hoggard:

I do not think so. We gave some consideration to the differences throughout the project in many different parts of legislation between, say, national security and safety, and interests of the state. There is a risk that one ends up swimming in a sea of semantic exercises and trying to work out what the differences and permutations might be. The requirement to consider what might be necessary to designate a prohibited place in the context of the safety or interests of the state is an important power. I do not think it affords unlimited sweeping power to designate anything.

I think safety or interests of the state still make up a relatively confined subset of consideration. It does not enable somebody to start thinking about, in very broad terms, what might be necessary. I suppose the concern, which was raised by Government at the time and some of the stakeholders, was that if you frame these considerations in the context of national security alone, that might unnecessarily narrow the inquiry. Our position is that safety or interest of the state is consistent with a lot of the wording that already exists within the Official Secrets Act, it is consistent with the wording in some of the Bill and it avoids what might risk being an unduly narrow focus on national security.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

Q Can I probe other panel members? There are a number of areas where we talk about the UK interest here. Do you think there is any merit in separating UK interest and Government interest in the event that you have information that will embarrass Government but would not be putting UK national security to any detriment? Is there merit in separating those two principles?

Professor Penney Lewis:

The espionage offences here really do not fall into that category. The kinds of offences that you are talking about are the ones currently in the Official Secrets Act 1989 that are about unauthorised disclosure, where there is legitimate concern about information that is embarrassing. Indeed, we recommended a mechanism for authorised disclosures to an independent statutory commissioner, which would have appropriate investigatory powers to look into, for example, disclosures that might be embarrassing to the Government.

However, in relation to these offences, they have with them conditions that relate to the purpose of the person committing the offence that take them outside of someone who is leaking information, whether to embarrass the Government or not, and focus them squarely on someone who is acting to help a foreign power. I think we are in a slightly different realm here: the realm of espionage and not the realm of leaks.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

Q Thank you. Can I ask for your thoughts on clause 23, which is on the extension of powers to the security services? The security services feel quite strongly about that and we have heard from them earlier today around encouraging or assisting offences. Did you have any thoughts at the Law Commission about that?

Professor Penney Lewis:

Sadly, no. That was not within the scope of our project. It really exceeds the focus of our project on official Government data, so we did not make any recommendations in relation to those kinds of powers and we do not have a view.

Photo of Damian Hinds Damian Hinds Minister of State (Home Office) (Security)

Q I turn to Mr Owen, briefly, to ask about the forthcoming foreign influence registration scheme. From your perspective, what would be your hopes on behalf of the legal profession for that scheme and do you have any concerns?

Rich Owen:

We think the solicitors’ profession should be subjected to the scheme in just the same way as any other, although we would like an exception on grounds of legal professional privilege. This is an ancient common-law right going back 400 years or more. It is also regarded as a human right and as a corollary of everyone’s right to receive legal advice and assistance and we feel it plays a crucial role in the proper administration of justice.

To be clear on what we mean by legal professional privilege, it is communication between a client and lawyer whose dominant purpose is to seek legal advice, or a communication between a client and lawyer in anticipation of pending or actual litigation. We therefore think that if there is a foreign influence registration scheme without legal professional privilege, then solicitors acting for foreign states or foreign state-related actors, such as companies controlled by or influenced by foreign states, would have to disclose documents. We think that profoundly compromises the rule of law and the fairness of trials, and will affect the relationship between client and lawyer.

I think it is easy to forget that legal professional privilege is not a privilege for solicitors or lawyers; it is for the client. Of course, clients want to be open with their lawyers when they are seeking advice, and we think this scheme would inhibit that openness. Of course, very often, the reason why they want to be open with their lawyers is that they want to know how to comply with the law, rather than breach it. That is why an exemption is needed in any such scheme.

Photo of Damian Hinds Damian Hinds Minister of State (Home Office) (Security)

Q What would the loopholes or potential unintended consequences be to such a provision, and how would you guard against them?

Rich Owen:

It is important to know the limits to legal professional privilege. It cannot be used to further a crime—because of the so-called “crime-fraud exception” or the “iniquity exception”—so if a solicitor advances an assertion of legal professional privilege in bad faith, then they are not in a privileged situation and could potentially be charged with conspiring to pervert the course of justice.

Legal professional privilege would complement any scheme. The Home Office consultation on a possible scheme said it would respect the human rights framework. That privilege is an ancient common-law right. It is has also been recognised as a human right. The consultation also said that a scheme would not interfere with legitimate activities. It would be a legitimate activity to seek advice from your lawyer and not have that advice disclosed. If anyone was furthering that for espionage purposes, then that would not be a privileged situation; they would be acting outwith legal professional privilege.

Photo of Damian Hinds Damian Hinds Minister of State (Home Office) (Security)

Q So you are not saying that you think that lawyers should be exempted from registering? Your objection is specifically about disclosure of documentation.

Rich Owen:

Yes. Well, we are looking for something similar to the Australian scheme. The Australian legislation specifically exempts legal professional privilege, as well as seeking legal advice and assistance. That sort of model, which expressly exempts legal professional privilege, would be a suitable way forward for the scheme.

Photo of Sally-Ann Hart Sally-Ann Hart Ceidwadwyr, Hastings and Rye

Q I just want to look at the provisions relating to arrests without warrant, which is in clause 21 and schedule 3. The provisions relating to that include the ability to delay access to a solicitor and delay notifying a person’s family of their detention. Based on similar provisions for terrorism suspects, do you regard that as proportionate and necessary? Can I go to Dr Hoggard first?

Dr Nicholas Hoggard:

You can, although I am afraid I will have to be very boring. Speaking with my Law Commission hat on, we are limited in what we can say with respect to those things that did not form part of the scope, regarding the protection of Government data. I am very sorry; I do not mean to be deliberately unhelpful, but we do not really—

Rich Owen:

Well, those provisions are modelled on terrorism legislation, when they concern a serious risk to the public, and there are suitable safeguards attached to them as well, so the position of the Law Society is to regard that provision as proportionate.

Photo of Sally-Ann Hart Sally-Ann Hart Ceidwadwyr, Hastings and Rye

Q Okay, thank you. I would just pick up, Mr Owen, on something that Mr Hinds mentioned about the FIR scheme and legal professional privilege. I was a bit confused; can you clarify if the FIR scheme would help prevent abuse of legal professional privilege, or are you saying that lawyers would be exempt from that?

Rich Owen:

I was saying that an exemption on grounds of legal professional privilege, or seeking legal advice and assistance, could not be used for espionage, because you are outwith legal professional privilege. You are seeking to advance a crime, so that does not come within the ambit of legal professional privilege.

Photo of Sally-Ann Hart Sally-Ann Hart Ceidwadwyr, Hastings and Rye

Q I only ask that because I know that with the sanctions against Russian oligarchs there was a bit of confusion over that generally.

Rich Owen:

Yes. There has to be access to justice for everyone, including rich people. They can communicate with their lawyer, and if they need advice on the law, that should be privileged. However, if they are seeking, through their communication with lawyers, to advance a criminal offence, then that is outwith legal professional privilege.

Photo of Sally-Ann Hart Sally-Ann Hart Ceidwadwyr, Hastings and Rye

Thank you for the clarification.

Photo of Rushanara Ali Rushanara Ali Llafur, Bethnal Green and Bow

We have a little more time if anyone has any further questions?

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

Q Perhaps I can return to my previous discussion with Professor Lewis on the issue around UK interests and Government interests? Putting aside the issue around leaks, I want to think about the “Assisting a foreign intelligence service” elements in clause 3. I will use a hypothetical. If there is a Foreign Secretary who has met with a former KGB officer, and you have that information and want to put it in the public domain—an outrageous example that would never happen—would the Government have grounds to say that, in disclosing that, you have acted against UK interests rather than Government interests? That is despite the fact that there was no material advantage to a foreign intelligence service or detriment to UK interests.

Professor Penney Lewis:

I am sorry but I am going to be very boring again. The offence in clause 3 is not the implementation of one of our recommendations. It is one of the offences that was outside the scope of our project. The main espionage offences that are in the existing Official Secrets Act, which implement our recommendations, are in clauses 1 and 4 of the Bill.

Dr Nicholas Hoggard:

I will add to that without going outside our own remit, but thinking more broadly about the distinction between UK interests and Government interests. To re-emphasise a point that Penney made earlier, the essence of espionage offences lies in that purpose prejudicial. That is why we see in those offences that have the purpose prejudicial element—where your purpose is prejudicial to the safety or interests of the United Kingdom—that the sentence is so much greater.

The mens rea—the fault element—of those criminal offences lies in that purpose prejudicial. You need not only your purpose but to have known, or ought to have known, that your purpose was prejudicial to the safety or interests of the UK. Also, you must have known, or ought to have known, that you were acting to benefit a foreign power on behalf of a foreign power. Taken together, it is that essence that makes those offences substantively different from the sort of behaviours that might embarrass a Government—or a Government Minister. That sort of thing often falls for consideration within unauthorised disclosure offences, but it is not really the meat of an offence focused on the active interference with the proper safety or interests of a state.

Regularly throughout the project we met with a number of the UK intelligence community in Cobra with the Government security group. The evidence we heard of the nature of hostile state activity does not really have a bearing on the sort of material that sometimes gets disclosed that might embarrass Government Ministers. They are two quite different creatures.

Photo of Damian Hinds Damian Hinds Minister of State (Home Office) (Security)

Q Turning to Law Commission colleagues, you have conducted a very comprehensive review of the four Official Secrets Acts. Let us set aside the Official Secrets Act 1989, which is, as you rightly say, in a different category, because it is about disclosure rather than espionage. Looking at the Acts of 1911, 1920 and 1939, I think it would be useful for the Committee’s deliberation to hear a little about how you went about your review and what you learned along the way—perhaps about if you conferred with your equivalent commissions in other countries and what you heard about the changing nature of the threat that we are trying to deal with and so on.

Professor Penney Lewis:

Maybe I will start with the high level and then Nick can come in with a bit more detail. I should preface my answer with a slight caveat. This project started in 2015. Nick joined the Law Commission in February 2019 and I joined in January 2020, so while we were heavily involved in the final report, neither of us were involved in drafting the consultation paper or in the consultation period, which happened in 2017. None the less, we have read the consultation responses, and I can also talk slightly more generally about how we go about doing a consultation.

We were asked to take on this project. The way we work is that we undertake a pre-consultation investigative phase where we talk to stakeholders. That involved Government stakeholders, including Government security stakeholders. We talked to a lot of academics who work in this field. We talked to the media, because obviously they were particularly interested in the 1989 Act, and various organisations that are interested in freedom of expression and open government. We then drafted a consultation paper, which contained provisional proposals for reform. We put those out to public consultation. We had a three-month consultation period, and we had a number of consultation events during that. At the same time, we are continuing to talk to Government security colleagues, as Nick mentioned.

We eventually came to an agreement with Government security colleagues about how they would brief us about the details of the threat facing us without us then being in a position where we would have to say in our report, “Well, we have heard all this secret evidence. We can’t tell you what it is, but trust us that these are the recommendations we think will safeguard the security and interests of the UK”, and without also putting the security and interests of the UK at risk. We agreed a confidential briefing process that involved Nick and me. We then also agreed the disclosure by Government of hypothetical examples that they had drafted to represent the real threats that they told us about confidentially and securely.

Throughout the report, there are hypothetical vignettes that illustrate particular risks. Those are the Government and intelligence services’ creatures, but they were the way in which we were able to reflect the reality of the threat. We then considered the consultation responses and the information we had had from the Government security group. We actually changed a number of things we had said in our consultation paper, so in between the provisional proposals and the recommendations there are a number of significant differences, particularly in relation to the 1989 Act. We then published a report in 2020, which contained our final recommendations for reform.

Dr Nicholas Hoggard:

I will go into some specifics of what we learned, which is generously open-ended. What Penney says is correct; there were a number of changes that followed the consultation paper, come the final report. One of the major reasons for that was our engagement more substantively with confidential material and representatives from the UK intelligence community—UKIC—and across a number of Departments. It became increasingly clear to us that the scale of the threat was of an order of magnitude that, even in relatively recent integrated reviews, had not really been reflected. That scale really comes from the cyber-threat. I do not want to repeat what far more sophisticated witnesses said earlier in respect of that, but it also became increasingly clear to us that the way in which very capable state actors were wielding that cyber-threat meant that certain of the original provisions we had made needed to be reconsidered.

One example of that would be the extraterritoriality provisions, both in relation to the espionage offences and the unauthorised disclosure offences. The nature of the way in which cyber-information is held—of course, cyber-information now basically means all information—has changed. The existing offences under the 1911 Act and its ancillary Acts are now almost quaint in the way that they perceive espionage as something that happens on our territory. Of course, that is simply not the case anymore. These extraterritoriality provisions, though relatively unusual for criminal offences, are none the less vital if we are to capture the sort of behaviour that we see now. I think the process we went through in engaging with UKIC was actually vital for the understanding of, and background to, some of the recommendations that we made.

Photo of Rushanara Ali Rushanara Ali Llafur, Bethnal Green and Bow

If there are no further questions, can I thank our witnesses? We will now move to the next panel.