Clause 7 - Meaning of “prohibited place”

National Security Bill – in a Public Bill Committee am 2:00 pm ar 12 Gorffennaf 2022.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Stephen McPartland Stephen McPartland Minister of State (Home Office) (Security) 2:00, 12 Gorffennaf 2022

I beg to move amendment 5, in clause 7, page 7, line 3, at end insert—

“(ca) any land or building in the United Kingdom or the Sovereign Base Areas of Akrotiri and Dhekelia which is—

(i) owned or controlled by the Security Service, the Secret Intelligence Service or GCHQ, and

(ii) used for the functions of the Security Service, the Secret Intelligence Service or GCHQ;”.

This amendment and Amendments 7 and 8 make provision for sites used by the intelligence services to be prohibited places.

Photo of James Gray James Gray Ceidwadwyr, North Wiltshire

With this it will be convenient to discuss the following:

Government amendments 6 to 8.

Clause stand part.

Clause 8 stand part.

Photo of Stephen McPartland Stephen McPartland Minister of State (Home Office) (Security)

Amendments 5 to 8 make critical additions to the definition of “prohibited place” in clause 7. The sites used by the UK’s intelligence services are some of our most sensitive locations and must be afforded the measures and protections given by the wider prohibited places provisions. These measures will mean that those who commit unlawful conduct can face prosecution under either of the two new prohibited places offences in clauses 4 and 5. Moreover, the police will have powers to stop people engaging in conduct in relation to a prohibited place that may harm the safety or interests of the United Kingdom. While the Government initially intended to add these sites by way of regulations, on reflection we concluded that it would be preferable to give Parliament the opportunity to debate the provisions up front—lucky me!

The amendments make provision for sites used by the intelligence services to be prohibited places under the meaning of “prohibited place” in clause 7. Under amendment 5, any land, building or part of a building used for the functions of the intelligence services will be designated only if it is also owned or controlled by those services. That offers safeguards so that places used temporarily for the functions of the intelligence services would not be designated; that would not be proportionate. I will not dwell on amendments 6 to 8, which are consequential, centralising the definition of a building for the purpose of the clause and providing a definition of GCHQ.

Turning to clause 7 stand part, section 3 of the Official Secrets Act 1911 sets out the places that are, or can be by declaration, a prohibited place under existing legislation. They are mainly defence-related sites or those that are used, or can be used, in times of war. Clause 7, which replaces those provisions, defines what sites will be prohibited places for the purposes of the two offences in clauses 4 and 5 and the police powers in clause 6, and it has been drafted to continue to capture the majority of the sites that are set out as prohibited places in the existing provisions.

The language and drafting has been simplified to ensure that there is clarity about what is or is not a prohibited place under the clause, removing long lists of terms that are less relevant for modern legislation. The definition in the clause includes Crown land or a vehicle in the UK or the sovereign base areas of Akrotiri or Dhekelia used for UK defence purposes or for the defence of another country. That covers the range of defence sites, including military barracks, bases and military headquarters.

Limiting prohibited places to Crown land in the UK or the sovereign base areas ensures that the provisions retain a focus on places important for UK defence, and that the range of sites covered does not become disproportionate or impractical. The definition is extended to sovereign base areas in Cyprus because there are several military bases there that are important for UK defence and should be covered by these provisions, as they are now.

Clause 7 also ensures that we can continue to capture defence vehicles as prohibited places. A vehicle used for defence purposes would include military transportation that is either sensitive in itself—for example, aircraft, vessels, submarines or tanks—or used for the purposes of transporting sensitive defence technology, equipment or weaponry. That may include trains or convoys used for the purposes of transporting weaponry. It is crucial that those vehicles are afforded the protection that the prohibited places regime provides.

Clause 7 also designates Crown land or vehicles in the UK or the sovereign base areas used for the purposes of the defence of a foreign country or territory. It is imperative that these provisions extend to and protect the sites and vehicles that the UK’s allies use and operate. For example, there are several military bases in the UK out of which our allies operate; those need to continue to be afforded the protection given by the prohibited places regime. Lastly, clause 7 covers buildings or vehicles designated by regulations made under the clause 8 designation power.

Clause 8 provides for the Secretary of State to declare additional sites as prohibited places by way of secondary legislation. In order to do so, the Secretary of State is required by the clause to reasonably consider the designation necessary to protect the safety or interests of the United Kingdom. The designation can be made either by listing specific sites or vehicles or by introducing a description of sites or vehicles. Any site that met such a description would thereby be designated—for example, the listing of UK defence vehicles would capture military aircrafts, tanks, submarines and vessels. The clause maintains our existing ability to designate sites while ensuring it is appropriately modernised and futureproofed, as recommended by the Law Commission.

When deciding whether a designation to declare an additional prohibited place through the power in clause 8 is necessary to protect the safety or interests of the United Kingdom, the Secretary of State must have regard to certain matters, including the purpose for which the place is used; the nature of the information held, stored or processed on the land or in the building or vehicle; and the nature of any equipment, technology or material that is located on the land or in the building or vehicle. That requirement provides safeguards to ensure that only sites at risk of harmful activity can be designated as prohibited places.

The power to designate additional prohibited places is limited to land or buildings in the United Kingdom or the sovereign base areas in Cyprus, or any vehicle. Although it may seem broad to enable the designating of any vehicle around the world as a prohibited place, in most instances it would be possible to capture harmful activity at such vehicles only within the United Kingdom or in countries with which we have extradition agreements, given the difficulty of enforcing the offence overseas. It is beneficial to be able to designate a vehicle anywhere in the world because, unlike land or buildings, vehicles are clearly capable of being moving targets at different locations.

In the near term, the Government intend to designate as prohibited places certain sites in the nuclear sector, including major licensed nuclear sites. Specific nuclear sites such as Sellafield and Dounreay are currently designated as prohibited places under the existing provisions of the Official Secrets Act 1911. The Government want to ensure that sites in the sector continue to be afforded protection under the reformed prohibited places regime. Consultation is currently ongoing with the nuclear sector to ensure that the range of places that require designation as prohibited places are captured and that the impact of any designation is fully considered before a decision to designate is made.

Given that in rare cases it may be necessary to rapidly designate a site as a prohibited place in response to intelligence about an imminent threat at a certain location, the reformed designation power is subject to the negative parliamentary procedure. The power could be needed to rapidly designate, for example, medical research facilities used during a public health crisis that may be the target of state threat activity. Even in such rapid cases, the Secretary of State must still reasonably consider designation necessary to protect the safety or interest of the United Kingdom and we would expect that, where reasonably practicable, the Secretary of State would consult with the landowner.

A designation power to declare additional prohibited places is a crucial part of the reformed regime. By futureproofing the provisions in such a way, we can continue to capture and deter those who seek to conduct harmful activity at the United Kingdom’s most sensitive sites, as the threat landscape will undoubtably evolve over the coming years. I ask the Committee to support the inclusion of clauses 7 and 8 in the Bill and to agree to the amendments.

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

Let me take clauses 7 and 8 and Government amendments 5, 6, 7 and 8 together. As the Minister has outlined, clause 7 defines a prohibited place for the purposes of clauses 4 to 8. The definition includes Crown land and vehicles used for defence purposes; places used for the invention, development, production, operation, storage or disposal of weapons; and land, buildings or vehicles designated by regulations made under clause 8.

Clause 8 provides for the Secretary of State to declare additional sites as prohibited places by way of secondary legislation. This will ensure that additional sites that are vulnerable to state threat activity can be designated when it is considered necessary. The Committee will note that, historically, the list of prohibited places has had a strong, if not total, military focus.

We just need to read the legislation to be struck by how dated it is. The Official Secrets Act 1911 defined a prohibited place as:

“any work of defence, arsenal, naval or air force establishment or station, factory, dockyard, mine, minefield, camp, ship, or aircraft belonging to or occupied by or on behalf of His Majesty, or any telegraph, telephone, wireless or signal station, or office so belonging or occupied, and any place belonging to or occupied by or on behalf of His Majesty” and so on. While reflective of the contemporary climate and the threats posed to the UK, this list has long been out of date. We therefore welcome this expansive update for defining what a prohibited place is, as well as giving the Government the ability to adapt the list where there is a reasonable case to do so. In the light of that, we recognise that Government amendments 5, 6, 7 and 8 complement the clause in that aim.

That said, I did probe the Law Commission during last Thursday’s evidence session on this point. It is important that this legislation is laid in such a way that it is not used by Government or future Governments to infringe on other democratic freedoms. During the consultation period of the Law Commission’s report on the Official Secrets Act, a number of stakeholders expressed concern about giving the Home Secretary such powers to designate a new site as a prohibited place.

The Trinity Mirror raised concern that an unchecked power to create designated sites based on national security may create a new criminal offence without parliamentary debate and could potentially stifle legitimate investigations in the public interest. WhistleblowersUK stated that the list should not end up being widened to include council officers or schools, for example. It would be incredibly worrying if a Home Secretary interpreted this power to allow himself or herself to mark places that served a purpose in the execution of an unpopular Government policy, for example, as a prohibited place. I outlined these concerns to Dr Nicholas Hoggard of the Law Commission, who provided some reassurance. He said,

“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.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 51, Q96.]

I look to the Minister for the same political assurances: that such powers would not be used should the Government find that to declare somewhere a prohibited site would serve a purpose in the execution of an unpopular Government policy, for example. Having gone through the prohibited places National Security Bill factsheet on the Government website, I have already asked the Minister what information should be in the public domain to confirm that somewhere is a prohibited site.

I completely accept that somewhere might be so secure that extensive signage and its inclusion on any such list might not be appropriate. However, in the event of our Pokémon GO example, it is about being able to check without needing to travel to a prohibited place to observe the signage to find out, which might itself bring someone in scope of earlier offences. I want to ensure that the status of such a site, the restrictions and the consequences of not adhering to those restrictions are appropriately and clearly communicated to the public.

Before closing, I want to bring the Minister’s attention to clause 7, where we have sovereign based areas overseas for UK defence purposes. He has made the undertaking to consider military powers within the earlier clauses on police powers. It is my understanding that the Ministry of Defence police would not provide that service to these sites deemed to be prohibited places within clause 7. Once again, he might need to write to us to work through some of that detail further.

Photo of Kevan Jones Kevan Jones Llafur, North Durham

Mr Gray, we know that it is officially summer when you remove your jacket.

Photo of James Gray James Gray Ceidwadwyr, North Wiltshire

Order. In 25 years in this place, I have never once removed my jacket until now. I am embarrassed!

Photo of Kevan Jones Kevan Jones Llafur, North Durham 2:15, 12 Gorffennaf 2022

Possibly this historic day shows the effects of global warming.

I was a little surprised at some of these amendments, to say the least. I want some clarification first of all, and then I will come to some other issues. Clause 7 says that a “prohibited place” relates to Crown land used for the extraction of

“metals, oil or minerals for use for UK defence purposes”.

I would like to define why it has been outlined in that way in the Bill.

I found Government amendment 5 quite surprising. There are quite a lot of assets that our defence and intelligence use around the world that are not known about, and it is important that they are not in the public domain. Government amendment 5 identifies a military area or base, but the Minister will know—or he might not yet have been briefed on this—that many sites around the world are used for defence and intelligence purposes; those are not in the public domain for very good reasons. How do they come into the scope of the Bill? I would not suggest for one minute that we should list them all—if we knew where they all were, that would be wrong. But I want to know how the legislation intersects with the protections that those sites clearly need.

The Bill talks of the Crown estates that we actually hold or control, but there are a number of occasions where we are collocated with other forces. We do not control those areas, although our defence and intelligence services will be using them. I am trying to think of a couple of examples. A few weeks ago I was in Lithuania with the rapid reaction force, a coalition of different nations under NATO, and the UK contingent was located in a wood outside Tallinn. That deployment was a temporary arrangement. How would that be defined under the Bill? Technically, that area is under the control of the Lithuanian defence force. Would that operation be classified in the Bill?

Likewise, I look back to deployments in Afghanistan and Iraq and the green zone, for example. We clearly had defence and intelligence assets there, but we did not control a lot of those areas in terms of force protection or even areas shared with other nations. How does the Bill cater for the jointness of those operations, some of which will be temporary and some permanent?

I accept that it would be completely wrong to put all these sites into the Bill but it is important that we understand how those sites—temporary or permanent—interact with the Bill. This morning, my hon. Friend the Member for Halifax mentioned the Pokémon question and I raised the flying eagle. How will the Bill be effective when it comes to such a person being seen to penetrate a prohibited area? Will it catch people who end up there by accident?

I support the amendments, but think they need a bit more clarification. If the Minister does not know the answer to my questions, I will be happy for him to write to me.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

Clause 7 and the Government amendments to it seem to make sense; my concern is about clause 8. I read the exchange that the shadow Minister referred to, when she asked the Law Commission about the broad powers in clause 8; it was one of the very rare occasions when I was not absolutely convinced by the answer that came back. At the end of the day, clause 7’s definition of “prohibited place” is very defence oriented, and it will now be defence and security oriented. But clause 8 opens the definition up to any sort of land at all and the nebulous concept of the safety or interests of the United Kingdom: if the Secretary of State considers it reasonably necessary for the safety of UK interests, a place can be added to the list.

I worry about immigration detention facilities or a fracking site being added to the list. Regardless of the rights or wrongs of the policy, that is a fairly significant extension to how the whole policy area operates. That is where our concern lies. Has it been opened up too broadly? I appreciate that the Minister says we need flexibility and to be nimble, but I worry that we have left it too open to potential—abuse is probably too strong a word—overgenerous interpretation.

Photo of Stephen McPartland Stephen McPartland Minister of State (Home Office) (Security)

I commit to write to the hon. Member for Halifax—and the whole Committee—to answer her point about the police. I totally accept the genuine concern I am hearing from across party lines about what safeguards are in place to ensure that a place is designated for reasons of defence as opposed to Government embarrassment. The safeguard is that the power to designate only be exercised may if the Secretary of State reasonably considers it necessary to do so in order to protect the safety or interest of the United Kingdom.

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

There is that difference between safety and interest; it would be quite easy for a Home Secretary, if she has an unpopular deportation policy—to give a topical example—to argue that that it in the UK’s interest rather than its safety. That gives us cause for concern.

Photo of Stephen McPartland Stephen McPartland Minister of State (Home Office) (Security)

I appreciate that. We have heard this morning and in previous sittings about that tension in respect of the Government interest and defence. There is case law that defines it. The purpose of the Bill is to provide the intelligence services with the tools they need to keep the country safe. They feel that they need these tools to do that. There are safeguards. The idea behind the number of factors is that there are a variety of checks on the Secretary of State, so they would have to demonstrate all the way through that they have considered that multitude of factors and that it was necessary for the defence of the country.

On the point made by the right hon. Member for North Durham, I cannot believe I am going to say this but I cannot tell him what I have been briefed, for national security reasons. The reality is that in these clauses we have moved away from designating places to categories. One of the categories is unavowed sites. That means that some of the sites that he suggested would be covered by the category.

Photo of Kevan Jones Kevan Jones Llafur, North Durham

As long as they are covered, that is fine. I do not want the Minister to start referring to any of them.

Photo of Stephen McPartland Stephen McPartland Minister of State (Home Office) (Security)

Another query raised was about oil and metal, which I understand are already in the existing provision for use in defence. That is why we refer to those areas. Finally, we are not designating military bases abroad, other than sovereign bordered areas, purely because of difficulties with jurisdiction and making that work.

Amendment 5 agreed to.

Amendments made: 6, in clause 7, page 7, line 4, leave out

“(including a part of a building)”.

This amendment is consequential on Amendment 7.

Amendment 7, in clause 7, page 7, line 24, at end insert—

“‘building’ includes any part of a building;”.

See Amendment 5.

Amendment 8, in clause 7, page 7, line 37, at end insert—

“‘GCHQ’ has the meaning given by section 3(3) of the Intelligence Services Act 1994;”—

See Amendment 5.

Clause 7, as amended, ordered to stand part of the Bill.

Clause 12 ordered to stand part of the Bill.