Clause 65 - Minor and consequential amendments

National Security Bill – in a Public Bill Committee am 3:45 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:

Government amendments 39 to 44.

That schedule 11 be the Eleventh schedule to the Bill.

Clause 66 stand part.

Government amendment 64, in clause 67, page 48, line 25, at end insert—

“(za) regulations under section (Requirement to register foreign activity arrangements);

(zb) regulations under section (Meaning of ‘political influence activity’);

(zc) regulations under section (General exemptions);”

This amendment provides that regulations made under the specified provisions are to be made using the affirmative procedure.

Amendment (a) to Government amendment 64, line 4, at end insert—

“(zd) regulations under section (Registration information);

(ze) regulations under section (Information notices);”

Government amendment 65.

Clauses 67 to 73 stand part.

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

Clause 65 introduces schedule 11, which makes minor and consequential amendments to other legislation. I will not dwell on paragraphs 1 to 3, which repeal the Official Secrets Acts 1911, 1920 and 1939, and which are no longer needed in the light of the Bill. I am aware that the Committee has already touched on paragraphs 4, 5, 7 and 8 when discussing the powers of arrest, detention and biometrics.

I will briefly speak about paragraph 6, which makes a necessary consequential amendment to the Official Secrets Act 1989. The 1989 Act already, and quite rightly, provides that it is an offence under the Act to make an onward disclosure of material obtained through an offence under section 1 of the Official Secrets Act 1911 —that is, espionage. The Bill replaces the reference to the 1911 Act provision, which has been repealed, with the relevant provisions in the Bill, which are designed to criminalise the same conduct. Other references to the 1911 and 1920 Acts have also been replaced with the relevant provisions in the Bill.

Turning to the Government amendments, the Police and Criminal Evidence Act 1984 contains a list of offences, referred to as “qualifying offences”, whereby when a person is arrested but not convicted of such an offence police have the option to retain biometric data such as fingerprints for three years. Qualifying offences currently include terrorism offences, murder, rape and kidnap. Schedule 11 of the Bill already amends the Police and Criminal Evidence Act to include the most serious offences in the Bill, such as obtaining or disclosing protected information and sabotage, in the list of qualifying offences, which also includes attempts or conspiracy to commit those offences.

Schedule 11 amends PACE to insert the most serious offences in the Bill under the heading of “National security-related qualifying offences”. Amendments 39 to 44 seek to add the offence of preparatory conduct in clause 15 to the list of qualifying offences, as well as to the definition of national security-related qualifying offences. As we have already discussed in Committee, malign actions by states have the potential to cause significant damage to the United Kingdom and its interests, and the preparatory conduct offence ensures that law enforcement can intervene at an early stage when preparatory activities are under way. I ask the Committee to support all the amendments.

Clause 66 provides a mechanism for the Secretary of State to make, via regulations, additional consequential amendments to other legislation where necessary. That will ensure that the legislative framework remains coherent. Clause 67 makes provision in relation to the powers to make regulations in the Bill, including specifying the parliamentary procedure applicable to specific provisions. The powers that, when exercised, will require regulations made under them to be subject to the affirmative procedure are specified in paragraph 6. These are regulations that make consequential amendments to primary legislation, and that require the use of, and bring into force, a code of practice on making video recordings of interviews of detained suspects under schedule 3.

Government amendments 64 and 65 are technical amendments relating to the foreign influence registration scheme. While I will briefly set out the practical effect of the amendments, I am mindful that the next Committee sitting will consider the substantive amendments—so we will touch on them then in greater detail—and the new clauses relating to the scheme. I therefore do not intend to cover the substance at this point.

Government amendment 64 provides that three powers to make regulations under the foreign influence registration scheme are to be subject to the affirmative procedure. The first is where a foreign power, part of a foreign power, or an entity subject to foreign power, is to be specified by the Secretary of State for the purposes of enhanced registration requirements. The second is where the Secretary of State wishes to make provision for further cases, in addition to several proposed exemptions, to which the registration requirements or prohibitions do not apply. The final power is where the Secretary of State wishes to specify a person exercising functions on behalf of the Crown for the purpose of extending provisions relating to registerable political influence activities to capture communications made to that person.

The powers I have described are capable of having significant effect on the scheme’s scope and operation, as well as on members of the public who will need to comply with the requirements. It is therefore appropriate that their use should be subject to Parliament’s scrutiny and approval. As they are all powers that have been designed to allow the scheme, and the requirements as tabled, to adapt to the evolving nature of state threats, there is necessarily no further detail in the legislation. Members will also be aware that this is a power for which I have campaigned, from my position as Chair of a Committee, and I am very pleased to be here introducing it. It is an enormously important act to protect our nation.

The amendment proposed by the hon. Member for Halifax would subject regulations regarding registration information, and information notices, to the affirmative procedure. As I have just detailed, the powers that are subject to the affirmative procedure could have substantial impact on the scheme’s scope and operation, and thus on the volume of arrangements and activities that are registerable. While the regulation-making powers relating to information to be provided as part of the registration and the operation of information notices are important procedural aspects of the scheme, I do not consider it necessary to subject them to the affirmative procedure. Those powers cannot be used to impact the scheme’s scope. Our intention for those powers will be set out in further detail as we consider the relevant substantive new clauses on Tuesday.

Government amendment 65 provides that if a draft statutory instrument containing regulations under new clause 11, which introduces the requirement to register foreign activity arrangements, is treated as a hybrid instrument in either House of Parliament, this SI should proceed in that House as if it were not a hybrid instrument. That relates to the enhanced registration requirements I have just mentioned. It is critical that the Secretary of State can move quickly in making such regulations by ensuring that those SIs are not delayed by proceeding as hybrid instruments. Furthermore, it would not be appropriate to consult those countries or entities, as would be required under a hybrid instrument, given that a specification would only be made to reflect a state threats concern. I appreciate that debates on all of those areas are to follow and so I will not delve into them further at this point.

Clause 68 sets out that the Bill expressly binds the Crown. That means that the provisions apply to the Crown; for example, it clarifies that Crown servants cannot commit offences under the Bill. Clauses 69 and 70 of this Bill set out the extent of the Bill, which is explained in detail in the explanatory notes accompanying the Bill. Clause 71 provides that, save for this part that comes into force on Royal Assent, the Act will come into force on a day appointed in regulations.

Clause 72 provides that the Secretary of State may, by regulations, make transitional or savings provision in connection to the coming into force of the Act. Transitional and savings provisions contain rules to ensure a smooth transition from the current law to the new law, for example, to transition from the current to the new prohibited places regime. Finally, clause 73 simply sets out the short title of this legislation. I hope the Committee supports clauses 65 to 73 of the Bill, along with the Government amendments that I have set out.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office) 4:00, 8 Medi 2022

I am grateful to the Minister for that comprehensive run-through of the different elements within this part 4 grouping. I will speak to the collection of clauses and amendments, which encompass the remaining provisions in part 4. Clauses 65 and 66 give powers to the Government to consequentially amend legislation based on the content of the Bill. We spoke to the House of Commons Library in order to assure ourselves that this was a conventional allocation of powers, and did not go beyond what was necessary. I am grateful to the Library staff for their feedback.

Government amendment 64 provides that regulations made under the specified provisions for the foreign influence registration scheme, which we have not yet got to, are to be made using the affirmative procedure. It seems an odd arrangement that we are debating the process for the regulations without having first considered in detail the substance of those provisions. However, here we are. We will come to the FIRS provisions; despite how long the scheme has been in the pipeline, it is fair to say that a great deal of the detail of those measures is still to be determined—and is yet to be determined in regulation. It is right that they are subject to the affirmative procedure and to proper scrutiny when that detail has been worked through. We hear and understand that it may take some time yet, but it is an important point.

Further to Government amendment 64, there are two more provisions for regulations on registration information and information notices, which merit the same approach for the reasons I have just outlined. Our amendment to Government amendment 64 seeks to extend it only to ensure a consistent level of scrutiny of what will be serious new measures. It would allow the measures to be considered by hon. Members in Committee and would ensure that they deliver what is needed. On that basis, I ask the Minister to adopt our small, but entirely appropriate, change to Government amendment 64.

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

I am grateful for the hon. Lady’s point. I want to correct a comment that I made. I said the provisions apply to the Crown and this meant that Crown servants could not commit the offences. What I meant was they can commit the offences in the Bill, and that is the whole point of the regulation and this change to allow the freedom that is required.

Question put and agreed to.

Clause 65 accordingly ordered to stand part of the Bill.