Clause 48 - Reports on exercise of powers under this part

National Security Bill – in a Public Bill Committee am 12:00 pm ar 8 Medi 2022.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Question proposed, That the clause stand part of the Bill.

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

With this it will be convenient to discuss the following:

Clause 49 stand part.

New clause 2—Reviews of Parts 1, 3 and 4

“(1) The operation of Parts 1, 3 and 4 of this Act must be reviewed by a person, or people, appointed by the Secretary of State.

(2) The operation of Part 3 must be reviewed by the person appointed by the Secretary of State under section 36(1) of the Terrorism Act 2006.

(3) The operation of Parts 1 and 4 must be reviewed by either—

(a) the person appointed by the Secretary of State under section 36(1) of the Terrorism Act 2006, or

(b) a different person appointed by the Secretary of State.

(4) Reviews under this section must be carried out in respect of—

(a) the 12-month period beginning with the day on which any section in this Part comes into force, and

(b) each subsequent 12-month period.

(5) Each review under subsection (1) must be completed as soon as reasonably practicable after the period to which it relates.

(6) The person or people mentioned in subsections (2) and (3) must send to the Secretary of State a report on the outcome of each review carried out under subsection (1) as soon as reasonably practicable after completion of the review.

(7) On receiving a report under subsection (6), the Secretary of State must lay a copy of it before Parliament.

(8) Section 36(6) of the Terrorism Act 2006 shall be read such that the ‘expenses’ and ‘allowances’ mentioned therein may include the discharge by the person or people of their functions under this section.”

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

Clause 48 requires the Secretary of State to report to Parliament every quarter on the exercise of her powers under this part of the Bill. The Committee will recognise the parallel to similar measures in the TPIM Act 2011. Although details of the operation of the system and of particular cases will necessarily be sensitive and cannot be disclosed publicly, the clause acts as an additional safeguard by welcoming public scrutiny of the use of the regime and powers, and offers reassurance that crucial information about the operation of the regime will be public and kept up to date. Crucially, that information will include the extent of the Secretary of State’s use of her powers and the number of cases in which measures are imposed. It will also include details of court judgments handed down in the relevant period that relate to the use of those powers.

Clause 49 requires the Secretary of State to appoint an independent reviewer to review the operation of part 2 annually. First, the reviewer is required to undertake a review of the operation of the STPIM regime as soon as is reasonably practical at the end of each year, and a report on the outcome of the review must be sent to the Secretary of State as soon as is reasonably practical after the review has been completed. Then, the Secretary of State is obliged to lay the report before Parliament. That replicates the approach in TPIMs, for which the annual reports have been an effective way of examining the Government’s use of their powers.

The independence of the Independent Reviewer of Terrorism Legislation, combined with their unrestricted access to Government papers and intelligence, has led to real insight and informed reports that have aided the functioning and development of the TPIM regime. Using the same approach for STPIMs will ensure similarly robust scrutiny. Omitting the clause would undermine the level of oversight and transparency of the regime. I hope the Committee agrees that the provision is important for the effective operation of STPIMs.

New clause 2, tabled by the hon. Member for Halifax, proposes commitments to review annually the operations of parts 1, 3 and 4 of the Bill. I thank the hon. Lady for tabling the new clause and I understand the intention behind it. Appropriate oversight of national security functions—particularly the use of intrusive powers—is important. A range of oversight mechanisms are in operation and govern both the UK’s intelligence agencies and the police, which are the primary bodies that will utilise the new powers in the Bill.

As I have just mentioned in addressing clause 49, the Government have made a commitment to an independent reviewer of part 2 of the Bill. Although there may well be merit in extending oversight of the legislation beyond part 2, careful consideration must be given to how that is done. In some cases, it could create an undesired overlap of duplication of responsibility. The Committee discussed that earlier—a little bit before my time—in the context of the hon. Lady’s proposal for an independent body to monitor disinformation. There are further examples of potential duplication, such as the powers in clause 22, which are already the responsibility of the Investigatory Powers Commissioner.

The new clause also proposes that part 3 of the Bill be reviewed by the Independent Reviewer of Terrorism Legislation. As the Committee knows, part 3 contains measures to freeze civil damages awarded to claimants who are seen as representing a real risk of using their award to fund acts of terror, and measures to restrict access to civil legal aid for convicted terrorists. As a result, it is already in the remit of the Independent Reviewer of Terrorism Legislation to review those measures. An explicit commitment to oversight of part 3 of the Bill is therefore unnecessary and would duplicate the existing discretion of the Independent Reviewer of Terrorism Legislation to review and report on terrorism-related legislation.

With those points in mind, the Government cannot accept new clause 2 at this stage. Although I fully appreciate the purpose behind the new clause, I ask the hon. Lady to withdraw it for now. The Government take oversight of the Bill seriously, and we will consider the best way to approach it. I will be in touch with her about that.

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

I am grateful for the way the Minister has approached the new clause. I accept entirely the volume of work he has had to do in the past 24 to 36 hours.

We feel quite strongly about some of the proposals we are advocating for in new clause 2. There is an acceptance of the real value of the work undertaken by the independent reviewers right across the agencies that work with this type of legislation. We think we are largely doing the Government a favour in putting these proposals forward.

Let me work through the other elements of this group. As the Minister outlined, clause 48 creates a duty for the Secretary of State to report to Parliament on a quarterly basis on the exercise of certain powers under part 2 of the Bill. Given the seriousness of the measures, we very much welcome this accountability and transparency as to the use of part 2 notices, providing an evidence base that will help both parliamentarians and the independent reviewer undertake their roles in assessing the effectiveness and proportionality of STPIMs.

Subsection (1)(b) states that the Secretary of State will

“lay a copy of each such report before Parliament”,

mirroring section 19 of the Terrorism Prevention and Investigation Measures Act 2011, which states that the Secretary of State must update the House on active TPIMs every three months. However, the clause does not state explicitly whether a written statement will be laid before both Houses, rather than just, for example, the Intelligence and Security Committee or another subsection. I had the opportunity to clarify that with Home Office officials earlier this week, who confirmed that the intention was to lay the report before both Houses, and I am grateful to them for that; none the less, we would welcome the Minister’s commitment to ensuring that that happens.

I also take this opportunity to make the point that the TPIMs statements have taken longer to publish in recent months. In 2021, and prior to that, they were being presented to the House within two months. The latest report, which covers December 2021 to February 2022, was presented in June, taking four months to prepare. The report covering March 2022 to May 2022 has not yet been published. We would like to make a request to return to the timely publication of those statements and a plea that the STIPM equivalent starts as it means to go on.

I will turn to clause 49 and our new clause 2, tabled in the name of my hon. Friend the Member for Birmingham, Yardley, the shadow Home Secretary, my right hon. Friend Yvette Cooper, and myself. Clause 49 states that the Secretary of State

“must appoint a person to review the operation” of part 2 of the Bill and that the independent reviewer must carry out a review every 12 months. We have probed previously as to who will perform that function, as we believe the oversight is integral to finding the appropriate balance of powers and freedoms. I hope the Minister will be able to clarify who the independent reviewer will be. Will those responsibilities be added to those of an existing independent reviewer, or will a new post be created for this legislation?

As my right hon. Friend the shadow Home Secretary outlined on Second Reading, the scrutiny provided by David Anderson QC and Jonathan Hall QC of terrorism legislation has been invaluable. Members across the Committee will know that their scrutiny has identified weaknesses in terrorism legislation and highlighted areas where stronger safeguards are needed, and provided crucial checks and balances on those powers.

Giving evidence to the Committee, Jonathan Hall outlined the value of the independent function of his office in reviewing TPIMs, stating:

“When I review TPIMs, I have a completely free hand. I am able to interrogate officials and able to see whatever I want. That is really important. I am not just looking at judgments in courts, or just reading documents; I am actually there able to interrogate, test and challenge. That is what I do. Also, I think it is important that Parliament and the public have a sense of what is going on. Regrettably, because legal aid has not been made available in all cases for TPIMs, there are now fewer court cases, so general information about how this important but serious power is being exercised is relatively cut off. The independent reviewer can provide a lot of transparency about how it is operating.”

I asked him whether there is a logic to his office taking on the additional responsibilities and if he had the capacity to do it. He said:

“My answer is that I think it actually is quite a good fit for the reviewer’s job, and I think it probably is right that the person who does the independent review of terrorism legislation should also do the state threats legislation. The reason is that this new legislation is really modelled on terrorism legislation. In crude terms, the concept of the foreign power condition sits in place of the purposes or acts of terrorism, and then there is the same framework in terms of very strong arrest power, detention up to 14 days, strong powers of cordons and search and investigations, and, of course, the PIMs. There are so many learning points between the two regimes that it does make sense.”––[Official Report, National Security Public Bill Committee, 7 July 2022; c. 5-6, Q4-5.]

We have the highest regard for Jonathan Hall; we recognise the merits in adding the responsibilities created by clause 49 to his remit and we can see the benefit of a coherent, joined-up approach in assessing both counter-terrorism and state threat legislation. That said, if the Minister were to make a case for the creation of a brand new position exclusively for the independent review of these laws, we would certainly be open to that. Sir Brian Leveson, in his capacity as the Investigatory Powers Commissioner, also has some responsibilities as an independent reviewer, so there are options.

At this stage in proceedings, clarity on who will undertake that work is necessary, as is agreement that their role will begin immediately once this legislation is enacted. The Minister might be aware that the position of the Independent Anti-Slavery Commissioner has, unbelievably, remained vacant since Dame Sara Thornton left the post. There have also been a series of gaps and delays in the appointment of other posts providing crucial oversight. We refuse to allow the Government to let that happen in this instance.

As I have said several times before in our discussions, it is odd that clause 49 deems just part 2 provisions eligible for ongoing independent review. We feel that the new provisions created by the rest of the Bill should be similarly subject to the same ongoing consideration. This legislation is required in a space that is dynamic and can shift quickly. We are often dealing with highly capable state-sponsored individuals with potentially unlimited resources. They will adapt to the barriers that we put in place, so it would seem logical that we continue to keep the legislation under review.

With new clause 2, we have replicated the framework of clause 49 and extended it to the remaining parts of the Bill. We anticipate that the Independent Reviewer Of Terrorism Legislation would automatically take in part 3, as I think the Minister has confirmed. He has already issued a five-page assessment of the terrorism clauses in this Bill which was not entirely complimentary to the Government’s approach. My hon. Friend the Member for Birmingham, Yardley will come to that. However, there is precedent for having further oversight of the measures, rather than exclusively of those in part 2 of the Bill. Jonathan Hall has assumed that he already has responsibility for part 3, so I hope the Minister can as a minimum confirm that that is the case.

In his final contribution, before the recess, the Minister’s predecessor, Stephen McPartland said:

“Here is the bit that the hon. Lady and our friends in the SNP will be most keen to hear about: as with TPIMs, there will be an independent reviewer to ensure that clause 40 and the whole of the STPIMs regime will be implemented correctly.”––[Official Report, National Security Public Bill Committee, 19 July 2022; c. 240.]

While I very much welcome that, I am certainly not overly excited by it. That is on clause 49, and we have consistently argued that clause 49 must be extended. This is one of the areas that we feel most strongly about, so, with that in mind, I urge the Minister to reconsider whether he will support new clause 2.

Photo of Stewart Hosie Stewart Hosie Shadow SNP Spokesperson (Cabinet Office), Shadow SNP Spokesperson (Constitution) 12:15, 8 Medi 2022

Clause 48 requires quarterly reports by the Secretary of State on the exercise of powers to impose, extend, vary, revoke or revive part 2 notices. Clause 49 requires an independent reviewer of this part—that is, the STPIMs. Annual reports are to be prepared and laid, and that is all good and well. The only issue we have is the scope of the clause 48 report, in that its requirement is

“the exercise of the powers”,

while the scope of the clause 49 review is about

“the operation of this Part”.

It is important that the review includes information about the workings of what I described as potentially Kafkaesque rules for reviews and appeals in schedule 7. I will be very brief, but new clause 2, in the name of the hon. Member for Halifax, which calls for a broader review requirement to cover parts 1, 3 and 4 of the Bill, does seem rather sensible.

Photo of Kevan Jones Kevan Jones Llafur, North Durham

The amendment from my hon. Friend the Member for Halifax is, as I said earlier, part of a broader piece about ensuring that we get the balance right between giving our security services, agencies and people the powers that I personally support, and providing proper scrutiny for the individual and for the operation of the Bill. That is the thing that has been missing from the Bill. Knowing Sir Brian Leveson, the Investigatory Powers Commissioner, I know that system works well in terms of warrantry and so on. If we are going to give powers to our agencies to do their job rightly, we have to ensure that they are robust and reviewed as things change.

I know the Minister is only a day or a bit into his job, so he might not be able to accept an amendment today, but I think this aspect needs to be looked at throughout the Bill. It was certainly raised with his predecessor, though I cannot remember if it was his immediate predecessor or the one before that.

My other point is to do with this issue of laying before Parliament. I support that, but the report will be very anodyne in terms of what it can provide in public, so I might look to the Intelligence and Security Committee. I am not looking for work for that Committee, but it has the ability to access material that cannot, for obvious reasons, be put in the public domain. The Minister will soon learn about the battles going on at the moment with parts of the Cabinet Office, Home Office and various other agencies about our role and access to material. We already get, for example, the independent commissioner’s report, but we have an ongoing row about our access to the annex, which we had in the past but for some reason are now not allowed to have. Given the role of Parliament and for its reassurance, will the Minister consider the ISC having access to the information that cannot be put in the public domain? That would be helpful. I accept that some people think the ISC just agrees with everything the agencies do, but it is another review body that can give assurance to the public and Parliament that the powers are proportionate.

We know that once we implement the Bill, we will learn and powers will change. I am not against Brian Leveson, the independent tribunals and the Investigatory Powers Commissioner—they do a fantastic job. They have helpfully pointed to some of the lessons that need to be learned, for example, from the terrorist attacks in London and Manchester. The ability of parliamentarians at least to ask the questions and have access to the information that cannot be put in the public domain would be an added layer of scrutiny, allowing the public to know at least that we have a full spectrum to ensure that such things are done proportionately and are working effectively.

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

I thank hon. Members for the tone of this discussion. I appreciate that scrutiny is important. This is about protecting not just the rights of individuals, but the agencies that are carrying out such important work on our behalf. Their heroism and courage on operations need to be protected, so that the agencies are not later found in legal difficulty in areas where they have acted not only with integrity but with enormous courage. I therefore appreciate the tone.

Briefly, I will touch on the question of scrutiny and laying before the House. I will make an absolute commitment to bring forward reports as soon as possible. I appreciate that there have been a few issues of late, which may have delayed things. I assure the hon. Member for Halifax that I will do my best to ensure that those timelines are reduced and are as sharp as possible. I absolutely appreciate her point. The issue of being laid before both Houses is made absolutely clear in the publication.

To touch on the question of who the commissioner might be, that has not been resolved as yet. I appreciate the hon. Lady’s point and there is merit on both sides of the argument, but either way, there is huge merit in ensuring that whoever is doing TPIMs has a very close connection with whomever is doing STPIMs. Whether that is a newly appointed individual or the extension of a role, I am happy to ensure that they work closely together.

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

We have been probing that during the passage of the Bill. Because that role is so crucial to the oversight that needs to follow the rest of the provisions in the legislation, can the Minister, as an absolute minimum, confirm that that person will be in post and that that issue will have been resolved by the time the Bill is enacted, so that that is not an ongoing question that starts to run into the legislation being enacted?

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security) 12:30, 8 Medi 2022

The hon. Member will be aware that I have been in post for only a few hours, so I will be cautious about making commitments that I cannot keep, but I can assure her that I will do my absolute damnedest to make sure that they are in post, because I can see exactly the point that she makes and I appreciate it. As I say, this is about protecting the rights not just of those who are subject to the provisions but of those carrying out the protection of our state and our nation.

Question put and agreed to.

Clause 48 accordingly ordered to stand part of the Bill.

Clause 49 ordered to stand part of the Bill.