Committee calls for amendments to National Security Bill
19 October 2022
Following legislative scrutiny of the National Security Bill, the Joint Committee on Human Rights has warned the draft legislation risks unnecessary interference with human rights by over-extending powers relating to espionage offences and criminalising behaviour that does not pose a threat to national security. It calls on the Government to amend the Bill to ensure its scope is better defined and it contains adequate checks on its application. The Committee further warns that restricting the award of damages and denying access to legal aid on the basis of claimants’ historic involvement in terrorism-related activity risks undermining both their rights and fundamental principles of equal justice.
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The National Security Bill aims to update legislation relating to espionage offences, replacing current law drafted in the first half of the twentieth century. The Committee finds that while this goal is welcome, the draft legislation risks including too broad a range of offences and activities that pose no risk to national security.
The draft legislation would change the focus of many espionage offences from conduct on behalf of an “enemy” to conduct on behalf of any foreign power. The Committee finds that this could have a disproportionate impact on some communities and calls for some nations, such as members of the EU, to be excluded. While several offences are only committed if actions are “prejudicial to the safety of interests of the United Kingdom”, this phrase has been interpreted as meaning contrary to State policy. The Committee is concerned that such a wide definition risks sweeping up legitimate protest or campaigning activities.
Under the Bill, immunity from prosecution would be granted for certain offences committed overseas if considered a legitimate exercise of any function of the intelligence agencies or armed forces. The Committee finds that granting such immunity, even where the conduct was reasonable, would call into question fundamental principles of justice and the rule of law. Adequate protections already exist under the Serious Crime Act, therefore further protections are unnecessary and should be removed from the Bill.
Plans to give the Home Secretary increased powers to place restrictive measures on individuals believed to be involved in or supporting illegal action on behalf of a foreign power are also of concern. The Committee notes it is vitally important national security assessments that justify ‘State Threats Prevention and Investigation Measures’ are carefully and accurately produced and the interests of individuals subject to the measures are effectively represented, including by ensuring access to legal aid. The Committee welcomes the “independent reviewer” post established to monitor the operation of these measures, but recommends they be given sufficient powers to scrutinise the full scope of the National Security Bill.
The Bill sets out further restrictions on those convicted of terror offences or found to have had involvement in terrorist activities from utilising the UK’s civil legal aid and civil justice systems, in order to “prevent public funds from being given to those would could use it to support terror”. The sweeping nature of these restrictions would go much further, potentially resulting in low-level or historic offenders being denied equal access to justice and the ability to enforce their human rights. The Committee finds that these symbolic proposals would undermine important principles of equality before the law and prevent reintegration into society, and calls for the provisions to be removed from the Bill.
The Committee is further concerned that clauses relating to the introduction of a foreign influence registration scheme have only just been published and without any human rights analysis. They will require scrutiny given their potential to infringe democratic rights. The Bill also fails to address issues related to the leaking of information and the need for a public interest whistleblowing defence, highlighted by the Law Commission’s recent review. The Committee calls on the Government to revisit these findings and consult on reforming the Official Secrets Act to ensure adequate protection for free speech.
Chair of the Joint Committee on Human Rights,
“It is right that legislation governing espionage offence be updated to better reflect the reality of the world in the 21st century. However, in its current guise the National Security Bill goes too far, with offences whose breadth puts at risk freedom of speech and freedom of assembly, an unnecessary extension of criminal immunity and measures that undermine the key principle of equal access to justice.
“We call on the Government to revisit the Bill and bring forward amendments to ensure that it protects national security without needlessly criminalising actions that pose no risk to it. It must also remove necessary impediments to the access of legal aid and damages to ensure that fundamental principles of justice and human rights are protected.”
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