My Lords, I turn to government Amendments 38, 40, 41 and 42, and Amendments 43, 44, 45 and 45A in this group, tabled by other noble Lords.
The government amendments to Clause 13 are vital to the utility of the offence of foreign interference and will strengthen our response to hostile attacks against our democracy and society. We must stand up to aggression against diaspora communities in the UK, as well as provide further safeguards to help promote a healthy democracy. The aim of the offence of foreign interference is to create a more challenging operating environment for, and to deter and disrupt the activities of, foreign states that seek to undermine UK interests, our institutions, our political system or our rights, and ultimately prejudice our national security.
We know that states around the world, including the UK, conduct open and transparent influence activities, such as using diplomacy to shape and align policy to benefit shared interests. This is a welcome part of transparent international engagement and it is vital to the UK achieving its interests. However, some states seek to further their strategic interests by going further than overt political influence, such as through cultivating and manipulating relationships with individuals and entities in the UK where power and influence lies and using deception to shape public policy-making.
I will now provide further detail on the government amendments in this group. Government Amendments 38, 40, 41 and 42 deal with three key areas. They clarify the original policy intent in making provision for activity that forms a “course of conduct”, provide for the offence to capture reckless conduct, and, finally, provide definitions for the term “political process”. In addition, there are some minor and technical changes to give effect to the above. As regards the effect on the drafting, the original Clause 13 has now become three clauses. That is to make the provisions simpler with the changes that we have made.
On the amendments dealing with a course of conduct, noble Lords will note that the volume of changes appears substantial, but this is not a change of policy. Amendment 38 has given better effect to our policy intent in respect of third-party conduct. We must ensure that we capture scenarios where foreign interference is achieved through the actions of two or more people acting in concert, but where it cannot be proven that all individuals intended their actions alone to have an undesirable effect. A scenario could be where a person, P, works for a foreign power and intends to interfere with a person’s rights in the UK: for example, pressuring members of a diaspora community to stay silent on certain issues. If P subcontracts the prohibited conduct to another person—for instance, coercion of individuals—these amendments would allow us to charge P with an offence of foreign interference.
In respect of amendments to capture reckless conduct, we have carefully considered the comments made in the other place in respect of recklessness, as well as concerns from stakeholders, and consider it appropriate to add this offence. Not having recklessness leaves a gap where someone who is clearly aware they are involved in foreign interference activity but cannot be shown to have intended the relevant effects escapes a potential prosecution, for example because a person is motivated principally by money or a desire to get ahead.
Recklessness is a well-established and well-understood legal principle in the criminal law. A person is reckless when they foresee a risk that their conduct could, under this offence, cause one of the interference effects. A person must also proceed unreasonably in the circumstances with that conduct even when they are aware of the risks of continuing to do so. To be clear, this will not capture a person who has no appreciation of the risks at the time the conduct takes place.
Amendment 41 makes provision for a new clause which now includes the “interference effects”—previously in Clause 13—and adds a definition of “political process”, which will bring greater clarity to the scope
of the offence. The interference effects have had to be amended to take account of the addition of reckless conduct. “Manipulate” has been replaced with “interfere” to recognise that a person cannot recklessly manipulate something. We have maintained the high bar to meet an interference effect.
The Government’s position is that the references to
“proceedings of either House of Parliament”
in the government amendment on “Foreign interference: meaning of interference effect” and in Clause 68 on the meaning of political influence does not, and could not, displace the prohibition on impeaching or questioning proceedings in Parliament contained in Article 9 of the Bill of Rights, and is not intended to do this.
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In addition to interference in a political process, we have added political decisions. We want to capture the full spectrum of conduct in which a foreign power might seek to engage; this includes interference at the very heart of the political decision-making process in the UK. Therefore, in drafting terms, we have distinguished between “processes” and “decisions” because they are different things. The introduction of “political decisions” is an important addition to account for the way in which a foreign state might seek to interfere with how a person makes a decision rather than just interfering in a particular process, such as an election.
It is important to note that, in capturing interference in political processes such as how voters participate in elections or referendums, we are seeking to protect our democracy from malign activity. We are not seeking to capture influence on electors through general political discourse or campaigning. This offence is intended to protect our political processes from foreign interference. It is not intended to limit the cut and thrust of normal political debate. We have a tradition of robust political debate and freedom of speech in British democracy; we remain committed to protecting this freedom in public debate, which is crucial to a thriving democracy.
Amendment 42 makes minor changes to the provision for coercion, to make it clear that the behaviours in proposed new subsection (2)(a) to (e) are ways in which coercion can be committed, as opposed to the list being a definition of coercion. We have also narrowed the concept of making a misrepresentation by amending the wording to ensure that only misrepresentations where the person intends to be false or misleading are in scope of the offence. We have done this to make it clear that an accidental misrepresentation—for example, inadvertently using false statistics—would not be in scope of the new offence.
I thank noble Lords for Amendments 43 to 45A, which seek to introduce reporting arrangements around disinformation and would require further controls on political process. I will set out in my closing remarks that it is the Government’s position that these amendments are not necessary. I look forward to the debate on these important issues but, for now, I beg to move.