Twentieth Report Contents

National Security Bill

1.This Bill is primarily concerned with putting in place measures to combat the threat of hostile activity against the UK’s interests from foreign states and other foreign actors. Its provisions include:

the creation of new offences relating to espionage and foreign interference;
the establishment of a system of prevention and investigation measures which are imposed on individuals who are reasonably believed to be involved in foreign power threat activity;
the establishment of a system of registering foreign activity arrangements and foreign influence arrangements;
provision about damages in national security proceedings and limiting access to legal aid for convicted terrorists.

2.The Home Office (“the Department”) provided a delegated powers memorandum (“the memorandum”) for the Committee.1 The first version of the memorandum sent to us was, however, deficient and, as a result, a revised version was provided.

3.In our report Democracy Denied?, we said that we would continue our practice of commenting on the quality of delegated powers memoranda–whether to commend or to criticise–to assist departments in preparing memoranda for future bills,2 a practice which the Government, in their response to the report, said they welcomed.3

4.The deficiencies of the original memorandum in this case included that it had failed to address all the powers contained in the Bill (including a Henry VIII power) and in some instances the descriptions given in the memorandum were inadequate.

5.A further deficiency was that the first version described a power as being subject to the affirmative procedure when it was in fact subject to the negative procedure. The Department, in the revised version, replaced the justification for the affirmative procedure with a justification for the negative procedure. This appeared to us to suggest that the justification followed, rather than determined, the choice between the negative and the affirmative procedure. In our report, Quality of Delegated Powers Memoranda,4 published in 2014, we recommended that departments should be encouraged to prepare a delegated powers memorandum in parallel with the policy development and early drafting stage of a bill, rather than being left until later in the process, so that policy makers and departmental lawyers would give proper consideration to the delegations of power that were needed and what their associated level of parliamentary scrutiny should be from the outset.5 We wish to take this opportunity to remind departments about the importance of this recommendation.

6.This further deficiency involved a power to make regulations under clause 77 and it is this power which we wish to draw to the attention of the House.

Clause 77—Power to publish and copy information

7.Part 3 of the Bill is concerned with establishing a registration scheme for foreign activity arrangements and foreign influence arrangements. Clause 77 confers a power on the Secretary of State to make provision in regulations about the publication and copying of information provided to the Secretary of State on registration under Part 3. The power includes specifying the types of information which are not to be published. Regulations under clause 77 are subject to the negative resolution procedure.

8.Information provided about foreign activity arrangements and foreign influence arrangements is liable to be both politically and commercially sensitive, as well as potentially impacting on national security, and therefore it seems to us there is likely to be significant political interest in the provision which is made in regulations about the publication of such information. The Department explains the use of the negative procedure on the grounds that the transparency objective underlying Part 3 is only met if a certain amount of information is made publicly available, and therefore the regulations are simply giving effect to the wishes of Parliament.6 The Department also relies on the fact that a policy statement is being prepared for the purposes of proceedings at Lords’ Committee stage. The memorandum says the following about the statement:

“This will demonstrate that only such information that is necessary for the public to know the identity of those who influence political decision-making in the UK shall be published, such as names of organisations, the nature and dates of the arrangements and activities, and the foreign entity that has directed the activity. Reasonable exclusions to publication will be available where publication may threaten national security or personal safety or for reasons of commercial sensitivity.”

9.We are not convinced by the Department’s reasoning. The fact that the regulation-making power itself establishes the principle that some information about foreign activity arrangements and foreign influence arrangements should be made public does not mean that the decision on precisely what types of information should be made publicly available is any less important so as to justify a lower level of Parliamentary scrutiny. Nor does it seem to us that the fact that the Government intend to issue a policy statement about how they propose to exercise the power justifies a lower level of Parliamentary scrutiny. Policy is liable to change, and therefore the regulations as they are made and as they evolve in the future will not necessarily always reflect the policy statement given to Parliament during the passage of the Bill. Accordingly, we consider that the affirmative procedure offers a more appropriate level of parliamentary scrutiny.

1 Home Office, Delegated Powers Memorandum, undated.

2 Democracy Denied? The urgent need to rebalance power between Parliament and the Executive, 12th Report, Session 2021–22 (HL Paper 106), para 150.

3 Government response from the Rt Hon. Jacob Rees-Mogg MP (24 January 2022) p 14: https://committees.parliament.uk/publications/8672/documents/88067/default/ [Accessed 12 December 2022].