This is a House of Lords and House of Commons Committee joint report, with recommendations to government. The Government has two months to respond.
Date Published: 19 October 2022
The National Security Bill is a welcome attempt to modernise espionage offences, replacing those within the Official Secrets Acts 1911, 1920 and 1939. Whilst these provisions are overall a positive step forward and are broadly in line with recommendations of the Law Commission’s recent review, there are risks within some of the provisions that offences are drawn too widely and could criminalise behaviour that does not constitute a threat to national security. Some would interfere unnecessarily and disproportionately with rights to freedom of expression and association, and the right to protest and may have a disproportionate impact on certain communities, particularly if new police powers are not exercised with restraint. The provisions on prevention and investigation measures, which were not included in the Law Commission’s Review, also engage the right to a fair trial, the right to liberty and security and the right to a private and family life in a way which gives us some cause for concern. The Government is seeking to introduce restrictions on the grant of legal aid and on damages being awarded to those who have been involved in terrorism, but in doing so risks impeding access to basic rights and legal protections. We therefore suggest the Bill is amended in a number of respects and hope the Government will engage with our proposals during its passage through Parliament.
In relation to espionage offences, we find that:
The legislation also provides that courts may exclude the public from criminal trials for offences under this Bill when necessary in the interests of national security. Whilst this seems to be an improvement on the existing law, the Government should consider whether the new necessity test should require exclusion of the public to be “necessary for the administration of justice” as well as having regard to the risk to national security.
Of more concern are the clauses in the bill which would grant immunity from prosecution for certain offences of encouraging or assisting the commission of an offence overseas. Such immunity would be granted if the conduct was necessary for the proper exercise of any function of the intelligence agencies or the armed forces. Any provisions that grant criminal immunity go to the heart of respect for the rule of law and the fundamentals of justice and fairness. We find that given there are existing immunities under the Serious Crime Act 2007 where a person has acted reasonably, further protections for conduct that is not reasonable are not necessary and we recommend the provisions be removed from this Bill.
Also of concern are the proposals in Part 2 of the Bill to introduce ‘State Threats Prevention and Investigation Measures’ (ST-PIMs or just PIMs). These are a set of restrictive measures that the Secretary of State could place on individuals that they reasonably believe are, or have been, involved in foreign power threat activity. Failing to comply with the measures imposed would be a criminal offence. The Bill would offer some protection for human rights, consistent with that currently provided in respect of Terror Prevention and Investigation Measures (TPIMs). We suggest, nevertheless, that there should be stricter limits on the time that a person can be subject to a curfew under a PIMS measure. Legal aid should always be made available when needed by those subject to such measures who wish to challenge them. Whilst we welcome the creation of a “reviewer” post, similar to the Independent Reviewer of Terrorism Legislation, we believe that its scope should be widened to match that role more closely allowing review of matters within the full ambit of the National Security Bill (and indeed other core national security legislation) not just the use of PIMS.
The provisions of Part 3 of the National Security Bill would make changes restricting both the award of damages (i.e. financial remedies in legal proceedings) in respect of those who have been involved in terrorist activity and the grant of legal aid to those with a terrorism-related conviction. The Explanatory Notes explain that this part of the Bill “prevents the exploitation of the UK’s civil legal aid and civil damage systems by convicted terrorists. This will prevent public funds from being given to those who could use it to support terror”. These proposed changes raise significant human rights concerns. In aiming to prevent damages being paid to those who have previously been convicted of terrorism related offences the legislation risks sweeping up low-level and historic offenders, denying them justice and ignoring the potential for rehabilitation. The Bill would also limit the ability of those who have been convicted of terrorism offences to gain access to legal aid which may be required to allow equal access to the law–for example in housing cases or cases of domestic violence. This risks both undermining the important principle of equality before the law and being counter-productive in terms of the rehabilitation and reintegration of former offenders. We propose the clauses restricting access to legal aid are removed from the Bill.
We acknowledge the recent tabling of clauses by the Government to introduce a foreign influence registration scheme (“FIRS”) and note that particular consideration will need to be given to the extent to which any registration scheme will impact on democratic rights including freedom of association and free speech. We regret that the clauses were not included in the Bill as introduced so that they could have been subjected to more effective scrutiny by us and others alongside the other provisions in this Bill.
The Bill does not address issues relating to the unauthorised disclosure of information (leaks) despite this being a significant part of the Law Commission’s recent review. The Law Commission set out clearly the ways in which the current law engages and potentially breaches the UK’s human rights commitments under the European Convention on Human Rights and suggests ways in which the law might be changed to overcome these issues. Whilst we appreciate this is a complex and controversial area of law in many ways, we hope this does not result in inaction and encourage the Government to consult on legislative provisions as soon as possible. Reform of the Official Secrets Act 1989 is needed to ensure adequate respect for free speech.
In several instances, the compatibility of national security and official secrets legislation relies on the ability of the court to read legislation as compatible with Convention rights so far as it is possible to do so, under section 3 of the Human Rights Act 1998. However, if the Bill of Rights is passed in the form in which it was introduced, the HRA will be repealed, and with it this requirement. This means that any incompatibilities will therefore become starker and more problematic. We call on the Government to explain how it will address any such incompatibilities in national security legislation.