Counter-Terrorism and Border Security Bill — House of Lords, 2018-12-17
Topic: Law and Crime
Susan Williams (Conservative, Centre-right): My Lords, with this group of amendments we return to the question of the proper scope of the powers in Schedule 3. The noble Lord, Lord Anderson, has again argued that police powers of this kind should only be available to the police to tackle criminal behaviour. As I highlighted in Committee, and would like to stress again, these new powers to examine persons at ports and the border area are specifically designed to mitigate the threat from all forms of hostile state activity. Limiting the scope of these powers would limit the range of threats that we would be able to detect, disrupt and deter, thereby leaving the country vulnerable The noble Lord is correct that many of the activities we are concerned about may be criminal in nature, including offences under the Official Secrets Act 1911. However, not only is this legislation generally recognised to be outdated and not fit for the modern age, but not all hostile activity would fall within scope. The noble Lord is right that we need to consider modernising the law in this area, and the House is aware that the Law Commission is undertaking a review of criminal law surrounding the protection of official data, which includes all the Official Secrets Acts, but this work will necessarily take some time to come to fruition and, until we know the outcome, it would be wrong to narrow the scope of the provisions in Schedule 3. To do so would necessarily inhibit our ability to counter hostile activity, as the police would naturally err on the side of caution when conducting stops, given the risk of challenge about whether the stop or subsequent questioning was clearly for the purpose of determining whether the examinee is, or has been, involved in serious crime I recognise the noble Lord’s concerns that the breadth of the power could encompass activities which are not considered crimes. If such activity threatens the safety of our citizens, our democracy and our national security, it is only right that we afford the police the powers to investigate, prevent and discourage these acts in order to protect us. Some hostile activity would not be considered criminal activity under the law as is stands—for example, the proliferation of disinformation. We know that certain states routinely use disinformation as a foreign policy tool and have seen evidence of this happening elsewhere In recent years, some states have attempted to influence opinions online by using human and automated troll farms to establish fake social media profiles or spread disinformation. One can imagine a scenario in which a member of one such troll farm, controlled by a foreign power that has been observed attempting to influence public debate in the UK, travels to the UK. The act of sowing discord through proliferation of disinformation is not a crime in the UK, but you can imagine a scenario in which it would threaten our national security. Under the noble Lord’s proposed amendment, police officers at ports would be rightly unwilling to ask about these activities, as they are not illegal. Interference operations are not restricted to the online space. Suppose an individual with suspected links to a hostile foreign intelligence agency travels to the UK, with the intention of meeting parliamentarians under a benign pretext, but with the real intention of influencing them to support a particular position which would be of benefit to that state. This type of activity is not illegal in the UK; the individual is not obliged to disclose that they have an ulterior motive of seeking to influence parliamentarians, but noble Lords understand that this activity is a threat to our national security and risks undermining our parliamentary democracy. Under the noble Lord’s amendment, as this type of activity would not be classified as a crime in the UK, police officers at ports would be unable to ask questions of a sufficiently detailed nature to provide the level of insight necessary to properly understand, assess, further investigate or disrupt the threat that this activity would present Some individuals may not even be aware that they are acting on behalf of a hostile actor. They may think they are working for a charity or a friend. Many of the serious crimes that we would consider linking to Schedule 3 require an intention element on the part of the individual We have reflected carefully on comments made, including by the noble Lord, Lord Paddick, about the scope of the "threatens the economic well-being of the United Kingdom" limb of the definition of a hostile act. There were concerns that legitimate business ventures would fall within scope of the power. This limb of the definition is intended to ensure that these powers can be used to mitigate hostile acts such as damaging the country’s national infrastructure or disrupting energy supplies to the UK. It is not our intention that these powers are available to examine those travelling only to conduct legitimate business To address these concerns, I have tabled Amendment 34C, which narrows the scope of the "economic well-being" limb. This amendment will provide that an act is a hostile act under this limb only if it threatens the economic well-being of the UK, "in a way relevant to the interests of national security" The other government amendments in this group make consequential changes to other references to the economic well-being of the UK in Schedule 3 The noble Lord, Lord Anderson, asked whether the IPC will have the resources needed to review the use of Schedule 3. The Government are committed to ensuring the Investigatory Powers Commissioner has the resources that he or she needs to fulfil all their functions, including Schedule 3 when these provisions come into force. However, I should emphasise that we expect the use of Schedule 3 powers to be very low, certainly far below the number of Schedule 7 examinations conducted in 2017 At this point, perhaps I may remind noble Lords that the Home Office is reviewing whether there is a need for new counter hostile state activity legislation. I have already mentioned the Law Commission review of the Official Secrets Acts, but our work is not confined solely to that area of criminal law. Of course, any reforms to the Official Secrets Acts or any other new offences will require further primary legislation and, in taking this work forward, I can assure the noble Lord that we will examine as part of the work whether there are any changes that we ought to make to Schedule 3 In taking this wider work forward, we will also have the benefit of the annual reports on the exercise of Schedule 3 powers by the IPC. I am confident that in reviewing this, having all the resources he needs in place, the commissioner will adopt the same robust approach as did the noble Lord, Lord Anderson, when he was the Independent Reviewer of Terrorism Legislation. He will not hold back from making recommendations if he considers that, in the light of the experience of operating these powers, changes should be made to Schedule 3. Moreover, the provisions of the Bill will be subject to the normal five-year post-legislative review I hope that, given this explanation, the noble Lord will be content to withdraw his amendment. I have explained the need to maintain the current scope of the power subject to the narrowing of the "economic well-being" limb.