1: Clause 1, page 1, line 9, leave out “, or ought reasonably to know,”
Member's explanatory statement
This amendment is intended to tighten the scope of the offence in Clause 1.
My Lords, all the amendments in this group are in my name and that of my noble friend Lord Purvis of Tweed. Before speaking to them, I make a general observation which is applicable to nearly all the amendments we have put down for debate today.
Broadly, Part 1 of the Bill is aimed at updating and clarifying the law against espionage, sabotage and subversive behaviour which threatens the safety, security or defence of the United Kingdom. We and the whole House support that aim, which is clearly described in the Long Title: to
“Make provision about threats to national security from espionage, sabotage and persons acting for foreign powers.”
However, as I said at Second Reading, we on these Benches wish to ensure that the Bill sticks to that remit and is not so wide as to damage individual liberties which our security and defence services are there to protect.
The amendments in this group would ensure that guilt of the relevant offences could be established only on the basis of actual knowledge of essential facts, and not merely what is often called imputed knowledge. The Bill talks of what a person ought reasonably to know rather than what they might be deemed to know. However, we object to the addition of
“or ought reasonably to know”
after “know”.
I shall remind your Lordships briefly of the offences covered by these amendments and the sentences proposed for them. The offences in Clause 1, “Obtaining or disclosing protected information”, and Clause 12, “Sabotage”, both attract a maximum sentence of life imprisonment. All four offences in Clause 2, “Obtaining or disclosing trade secrets”, Clause 3, “Assisting a foreign intelligence service”, Clause 4, “Entering a prohibited place for a purpose prejudicial to the UK”, and Clause 15, “Obtaining etc material benefits from a foreign intelligence service”, attract a maximum sentence of 14 years imprisonment. The offence in Clause 5, “Unauthorised entry etc to a prohibited place”, is in a different category because it is a summary offence, but, apart from that Clause 5 offence, all these offences are treated very seriously indeed.
My Lords, I venture a few thoughts on this phraseology. The crucial question is: how much would the prosecutor have to prove about the state of knowledge of the defendant? In some contexts, when phraseology of this kind is used, it is necessary to show what the individual knew was the state of the law and what information that individual had at the relevant time from which a conclusion should be drawn.
The problem with the phraseology here is that it is so general that it is not clear whether the knowledge the individual had is to be the actual knowledge which that person had, which is one thing, or, as has been suggested by the noble Lord, Lord Marks, imputed knowledge. If we are dealing with imputed knowledge, the situation becomes much more serious, particularly having regard to the fact that one is concerned with not just the safety of the United Kingdom but the interests of the United Kingdom, which itself is an unfortunately vague expression. I think it would help the Committee if the Minister would explain exactly what a prosecutor would be expected to have to prove in order to establish the offence.
Putting myself into my former position of prosecutor, I would find it quite troublesome to have to face up to proving not only what the individual knew about the law but what the individual knew about the facts. But it would be quite reasonable for me as a prosecutor to have to do that. To impute knowledge of facts to an individual with an offence as serious as this is to take the matter a long way from a reasonable punishment with the extreme penalties mentioned in this clause. It would be helpful if the Minister would explain exactly what would need to be proved in order to establish the offence so that the noble Lord and those supporting know exactly where they are.
My Lords, I rise to support my noble friend and have added my name to these amendments. I apologise to the Committee that I was not present at Second Reading. The Minister knows that I was in Malawi supporting the launch of a parliamentary programme and explaining to our colleagues in Malawi the benefit of line-by-line scrutiny of legislation, which I know the Minister will be relishing over these coming days in Committee. As my noble friends indicated at Second Reading, and as my noble friend has indicated today, we take threats to our country very seriously, and we will work constructively with the Government in the scrutiny of the Bill.
I was struck by the remarks of the former head of the SIS, Sir Alex Younger, when he gave evidence to the Public Bill Committee in the Commons and said that the need to address the changing threats was in front of us. He said:
“What I would call grey threats … often presented us with real challenges, particularly when actors or states felt themselves at war with us and we did not feel ourselves at war with them, for good reason. My career saw less emphasis on conventional threats and more on grey space. Most of my career was devoted to counter-terrorism, which was the dominant example, but subsequently we saw state actors working in sub-threshold space—operations short of conventional war—to harm us.”—[Official Report, Commons, National Security Bill Committee, 7/7/22; cols. 11-12.]
In many respects, it is that grey space that we are seeking to address. I understand the Government’s challenge ahead but, as my noble friend indicated, casting the net so widely without a sharp mesh, I am not sure we will have the kind of security the Government are intending for us to have in this area.
This will be very apparent when we get to Part 3, when it comes to foreign interference in the registers, and other parts. I know the Minister will be in listening mode for a lot of Committee, but I hope he will consider pausing at that part of the Bill for further consultation, because what was apparent at Second Reading—many other noble Lords have, I am sure, received representations from a wide variety of groups, as I have—is that more consultation on that part of the Bill is necessary. Pausing that and bringing it back for the economic crime Bill may be an appropriate way forward. That is a debate we are yet to have, but I just wanted to give the Minister foresight of the case we are making.
My Lords, the amendments in this group, tabled by the noble Lords, Lord Marks and Lord Purvis, intend to tighten the scope of offences in Clauses 1, 2, 3, 4, 5, 12, 15 and 29. This is achieved in these amendments by leaving out
“or ought reasonably to know”
from the relevant clauses, meaning that an offence is committed under these clauses only if the person
“knows … that to be the case.”
The practical effect of these amendments is therefore that offences are committed only when a person knows that their actions are damaging. Given that the offences in the Bill could carry significant sentences, as we heard from the noble Lord, Lord Marks, the Committee is right to probe to what extent a person must know that they are committing such an offence, especially as it will otherwise be up to the courts to determine whether a person ought reasonably to have known that they were committing the offence.
However, it is not unusual for offences to be committed when a person ought reasonably to know. There is a recent example of this, which includes the Criminal Justice and Courts Act 2015. I was recently googling it, and it seems that the Act was passed by the coalition Government.
Further to this, if an offence is committed only when a person knows it to be the case that their actions are damaging, it could be difficult to get a successful prosecution. None the less, it is right and helpful that the Committee should ask the Minister to expand on the points we have heard in this short debate.
As the noble Lord, Lord Marks, said, juries often decide on the state of somebody’s mind when an action is committed, and the decision as to whether the defendant is guilty or not guilty can easily turn on their perception of the state of the person’s mind. The noble and learned Lord, Lord Hope, spoke about the difference between knowledge and imputed knowledge. As he said, it would indeed be helpful if the Minister could expand on the level of imputed knowledge that may be expected to secure a conviction.
My Lords, I thank noble Lords for their broad support for the Bill and the noble Lord, Lord Marks of Henley-on-Thames, for introducing these amendments.
The test that a person
“knows, or ought reasonably to know”
the effect of their conduct recurs throughout the offences and measures in Part 1 of the Bill. Failing to include an element of objectivity in this test would risk seriously undermining the offences and not criminalising behaviour for which we consider individuals should be culpable. Those conducting state threats activity are likely to be skilled at their tradecraft and will be adept at hiding their activities from our intelligence and law enforcement agencies. It is important that we do not hinder our ability to prosecute in these cases.
We consider that knowledge is an appropriate threshold for these offences and the foreign power condition. However, we believe it is also right to include constructive knowledge in these provisions. Given the seriousness of the offences to which this test applies, it is essential that an element of objectivity is included to ensure that offences can still be prosecuted where individuals are unjustly claiming not to have known the relevant consequences or circumstances. It is, of course, right that those who could not have seen those consequences or circumstances should not be criminally liable under these offences.
I think it is helpful at this point to draw noble Lords’ attention back to the 1911 Official Secrets Act, which we are replacing with this Bill. The offences under that legislation cover certain actions, such as obtaining information, by a person
“for any purpose prejudicial to the safety or interests”
of the United Kingdom. Those offences require a no-fault element to be proved in relation to the prejudice to the safety or interests of the state. The proposed amendments to Clauses 1, 4 and 12 contain the same requirement for prejudice to the safety or interests of the United Kingdom, but, importantly, and as recommended by the Law Commission, introduce a subjective fault element. We agree with the Law Commission that these offences should contain a subjective fault element. Crucially, the offences would not capture a person who genuinely could not reasonably have known the effect or nature of their conduct.
I want to make it quite clear that, for the reason that was expressed earlier, I do not object to the idea of objectivity here, because it is sometimes extremely difficult to prove that someone knew something. The phraseology being used is pointing in the right direction, but there are two different levels of knowledge. The first is the knowledge of the background facts, and then there is the knowledge that flows from the conclusion based on those facts. Both of those are built into the rather short phraseology of this clause.
Taking those as two separate things, I can agree that the conclusion to be drawn from those facts can be looked at objectively. My question is: how much is the prosecutor going to be dependent on imputed knowledge of the background facts? It would be consistent with some other contexts in which reasonable knowledge is used to say that you look to see what information is possessed by the individual. Taking that as a given, you look at what facts the individual knew, and then you look at the conclusion that ought to be drawn from those facts. I hope I have made it clear that there are two stages here and my concern is about the first stage—whether the clause is imputing knowledge to the individual which that individual does not have. If it is going that far, it is taking a very serious step.
I thank the noble and learned Lord for that clarification. I do not think the clause is imputing that but I will read Hansard very carefully and, if I may, I will come back to him in writing on this point.
The noble Lord, Lord Purvis, will pick me up if I do not address the Official Secrets Act 1989, but that is due to be discussed in group 33 on a subsequent Committee day, so I ask if we can come back to that detail then, if that is acceptable.
Of course, as long as it is on the basis of the point that my noble friend raised—that we will have two pieces of legislation. The 1989 Act will cover serving or former members of the intelligence services, but this Bill means that there will now be two competing pieces of legislation. I do not know which the Government intend will trump the other.
I understand where the noble Lord is coming from. I commit to making sure that we explain that in considerable detail at the appropriate time, if that is acceptable.
For the reasons I have given, the Government cannot accept the tabled amendments and I ask the noble Lord to withdraw.
My Lords, I shall certainly withdraw the amendment at this stage at the end of what I have to say, and will then consider it and my other amendments with the Minister and others between now and Report.
I am grateful for the incisive consideration of imputed knowledge by the noble and learned Lord, Lord Hope, supported, as I understood it, by the noble Lord, Lord Ponsonby, who clearly articulated the difference between the basic knowledge that you must have and the conditions for imputing knowledge. That is what the Government’s drafting of all these clauses in the Bill simply does not address.
My noble friend Lord Purvis of Tweed pointed out the very difficult coexistence of the Bill with the Official Secrets Act 1989, which I think the Minister accepted and said that we are going to come back to. It is difficult precisely because it is not simply a competition between offences that involve serving or former intelligence officers and those involving any person; it is also that there is a carefully defined defence under the Official Secrets Act that does not apply here, and the offences can be made out on the basis of imputed knowledge.
The point made by the Minister, that the requirement for actual knowledge might hinder prosecutions, would be a good one were it not for the fact that juries are very good at determining whether or not people who deny knowledge actually have it, as the noble Lord, Lord Ponsonby, pointed out. With the exception of the Clause 5 offence, these are all indictable-only offences, as you would expect, carrying very serious penalties. A defendant who denies knowledge will have that denial very carefully considered, and the underlying facts that he knew, or can be shown to have known, will be considered to enable a jury to decide whether he actually knew.
Amendment 1 withdrawn.
20 of 249 shown
Yet in order to be guilty of the offences, the defendant does not actually have to know essential facts. It is enough if they “ought” to know them. In Clause 1, the offence is committed if the person
“obtains, copies, records or retains protected information, or … discloses or provides access to protected information”.
Clause 1(b) provides that the person’s conduct has to be
“for a purpose that they know, or ought reasonably to know, is prejudicial to the safety or interests of the United Kingdom”.
In the next group, I will make the point that the interests of the United Kingdom concerned ought to be the “security or defence interests”, not just interests in general. But in this group, our point is that, in order to be guilty under this clause, the person should actually have to know that their conduct was for a purpose that was prejudicial to the UK. It should not be sufficient to constitute guilt that they merely “ought to have known” that, even if they did not. That is the point of our Amendment 1.
Another unsatisfactory feature of this and other clauses is that the clause presupposes an actual purpose—that purpose, presumably, being the reason for the defendant’s actions. It would be very odd if, the prosecution having established the purpose, the additional requirement of knowledge could be met not by showing that the defendant knew that that purpose, which was his or her own, was prejudicial to the national interest but merely that they “ought” to have known that.
Under Clause 2, which is the trade secrets offence, the defendant’s conduct, under the Bill, has to be “unauthorised”. However, as drafted, the defendant does not have to know that the conduct is unauthorised; it is enough if the defendant “ought” to have known that. Our Amendment 7 would change that.
Under Clause 3, “Assisting a foreign intelligence service”, it should be required, we say, that to convict a person of this offence, they actually knew—the Bill says that they ought to have known that it was “reasonably possible”—that
“their conduct may materially assist a foreign intelligence service”,
not merely that they should have realised that the possibility existed. Amendment 14 would address this. We also say that the word “likely” would be more effective than the words “reasonably possible”, but that is addressed in a later group.
In Clause 4, the offence of entering a prohibited place suffers from the same inherent problem as the Clause 1 offence. The purpose has to be proved, but the defendant does not actually have to know that the purpose was prejudicial to the safety or interests of the United Kingdom; it is enough that they “ought reasonably” to have known. The clause heading, “Entering etc a prohibited place for a purpose prejudicial to the UK”, highlights the illogicality. How can you have that purpose if you do not actually know that the purpose is prejudicial at all? Yet the clause as drafted says that you can; that should go, and our Amendment 17 would remove it.
Clause 5 is the summary offence of unauthorised entry to a prohibited place. Under the Bill, proof of actual knowledge of the lack of authorisation is unnecessary; again, merely the defendant “ought” to have known that. Our Amendment 22 addresses that.
Regarding Clause 12, the very serious sabotage offence, the same point applies to the purpose as in Clauses 1 and 4. Again, we say that guilt ought, crucially, to depend on actual knowledge that the purpose was prejudicial. Amendment 36 addresses that.
Amendments 46 and 48 make similar points about the defendant’s knowledge of the source of benefits provided by a foreign intelligence service. Amendment 65 would amend the application of the foreign power condition in Clause 29, which states that
“the person knows, or ought reasonably to know,”
that the conduct is carried out
“on behalf of a foreign power.”
The foreign power condition in the Bill is a very important condition for liability for a number of these offences. How can it possibly be just for the law to provide that the condition can be met if a person does not know that their conduct is carried out on behalf of a foreign power and naively does not catch on, just because it is later decided that even if they did not know at the time, they should have realised? Juries can, and frequently are asked to, come to a conclusion about what defendants know or knew or even what they believe or believed. Juries are good at determining actual states of mind, drawing conclusions from the evidence they hear and see.
To take a simple example, the Theft Act defines receiving stolen goods as:
“A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods”.
But here we are concerned with the proposal that juries should decide cases not on the basis of conclusions they reach about an actual state of knowledge or belief but on views they may take about what the defendant did not know but should have done. These are value judgments, not true decisions of fact.
We are not suggesting that imputed knowledge is never used in the criminal context, but where it is the context is very different. It is used, for example, for insider trading in Canada, where professional insiders receiving tips are able to be found guilty on conclusions that they ought to have drawn. It is used in the Protection from Harassment Act 1997 in respect of defendants who should have known their own conduct would amount to harassment. In the Official Secrets Act 1989 the reference is broadly to unlawful disclosures by Crown servants and contractors or others to whom confidential information was entrusted. They have a defence to unlawful disclosures if they show they did not know and had no reason to believe that the disclosures were unlawful. The burden of proof is reversed, I accept, but I suggest that is because of the positions the defendants hold or held. However, lack of knowledge or of the reason to believe in a state of fact amounts to a defence even then, so that liability is a long way from these cases because these provisions may catch anyone with no special relationship to the Government on an assessment that the defendant did not know the relevant facts but ought to have done so. Our position is that that is unjust. I beg to move.
As my noble friend indicated—and I defer to his legal knowledge and that of others with extensive legal knowledge who will be participating in Committee—I am struck that because of the Government’s choice not to reform the Official Secrets Act 1989, we will have two competing offences with two contradictory defences. Under this Bill, as my noble friend indicated, anyone who discloses protected information is committing an offence. In the 1989 Act, if an intelligence officer or former intelligence officer discloses any information relating to security or intelligence, they can be imprisoned for up to two years.
Under this Bill, anyone disclosing protected information to a foreign power or a body under the authority of a foreign power faces life imprisonment. However, as my noble friend indicated, in Section 1(5) of the Official Secrets Act 1989 there is a form of defence:
“It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence he did not know, and had no reasonable cause to believe, that the information, document or article in question related to security or intelligence or, in the case of an offence under subsection (3), that the disclosure would be damaging within the meaning of that subsection.”
There is no equivalent in this legislation, and I would be grateful if the Minister would outline in very clear terms why.
Part of the rationale given by the Minister in the House of Commons was that the difference between this and the Official Secrets Act is that with this, for any prosecution, three tests have to be met. I suspect we will hear quite a lot in Committee about the three tests. The Minister, Stephen McPartland, indicated that the three tests for someone to be prosecuted under this part of the Bill were,
“conducting harmful activity with regard to information that is protected effectively, knowingly prejudicing the safety or interests of the United Kingdom, and acting in a way that benefits a foreign power.”—[Official Report, Commons, National Security Bill Committee, 12/7/22; col. 80.]
But “harmful activity” and “protected effectively” are not specified in the Bill and “benefits a foreign power” is not necessary in Clause 29.
Because of the breadth of Clause 29, in some areas it is opaque. For example, does someone have to prove objectively that they did not know they were providing a service to a foreign power because they were providing it for an authority of a power? That means that the objective test, on a subjective element under this clause, is problematic.
The Minister in the Commons was not clear with regard to what the three tests are, and Clause 29 is broad. It would therefore be preferable for there to be a far more objective approach, as there is in the 1989 Act, rather than what is in this Bill. On that basis I support the amendments in my noble friend’s name.
The noble Lord, Lord Purvis of Tweed, reminded us of the complexity of dealing with “grey space”, as he referred to it. This is an opportunity for the Minister to try to clarify the situation so that prosecutions can be appropriately brought and reasonably thought to have secured an appropriate conviction.
Perhaps I might provide a hypothetical scenario of how the proposed amendment could affect the foreign power condition in Clause 29. It is possible that an individual is unaware that they are working for an undercover foreign agent. The noble Lord, Lord Purvis of Tweed, made a very good point about the grey area in which much of this activity takes place. Let us imagine that the security services tell that individual that the person they are working for is, in fact, a foreign agent but the individual refuses to believe it despite clear warnings. At this point, it would be reasonable to make that individual culpable should they continue activities at the behest of the foreign agent, whereas it might prove difficult to successfully prosecute the individual if knowledge had to be proved.
To be clear, the individual in this example would still need to meet all the other tests in any given offence to be charged with that offence. Meeting the foreign power condition is not in itself wrongdoing.
The same logic applies to other amendments tabled. In Clauses 3 and 15, I am sure the whole House would agree that it is not right that an individual should escape liability when they reasonably should have known that their conduct could assist a foreign intelligence service or that they were receiving a benefit from a foreign intelligence service. A purely subjective test would make these offences very difficult to successfully prosecute.
Constructive knowledge is applied by the courts in other circumstances and the Government are confident that this test is appropriate. There will be a range of culpability between those who have actual knowledge and those who should have known, but that is something that is appropriate for sentencing rather than conviction. I hope that goes some way to answering the question put by the noble and learned Lord, Lord Hope—ah, apparently not.
On that basis, I suspect that, at the end of the deliberations on the Bill, the House may well want to ensure that, for a conviction to stand, it is a question not of hindering prosecutions but of whether a conviction on reasonable evidence is a likely outcome. When that is considered, I believe that actual knowledge should be required, although I of course wish to consider this over the intervening stages of the Bill. On that basis, I beg leave to withdraw the amendment.