National Security and Investment Bill

Public Bill Committee, 26 November 2020.

Examination of Witnesses

Graham Brady (Conservative, Altrincham and Sale West)

Q80 Before calling the first Member to ask a question, I should like to remind all Members that questions should be limited to matters within the scope of the Bill and that we must stick to the timings in the programme motion that the Committee has agreed. For this session, we have until 12.15 pm.

I welcome the two witnesses from Slaughter and May. Can I ask you to introduce yourselves for the record, please?

Chi Onwurah (Labour, Newcastle upon Tyne Central)

Thank you very much, Ms Wright and Mr Boney, for sharing your expertise and time with the Committee. It is indeed extensive experience of mergers and acquisitions.Q

I am sure you are aware that many countries—the US and Canada are just two—give some sense of the factors that might be considered under a national security assessment. Do you think it would be helpful for market participants to have greater clarity about the types of factors that would be considered? How could we give that clarity while retaining the sensitivity and discretion that are needed on those matters?

Joined to that, there are cases such as Arm and DeepMind where economic security became national security over time. When considering what national security is, what links do you see between national security and economic security or sovereign capability? Can they better be reflected in the Bill?

Chi Onwurah (Labour, Newcastle upon Tyne Central)

Q You mentioned, and I think it is absolutely right, the issue about going from a standing start to such an increase in the number of callings but also in the number of notifications—the impact assessment estimates 1,830 notifications. That is on the acquirer and does not take into account the fact that almost every start-up seeks capital investment at some point and I imagine would, therefore, as a consequence have to think about this regime. What impact do you foresee on the UK’s investment climate and especially on capital sources for small and medium-sized enterprises? How could that impact be mitigated or encouraged to be as positive as possible?

Nadhim Zahawi (Conservative, Stratford-on-Avon)

Q May I return to the national security issue—as opposed to the wider public interest test, which is an important question—and get your view as to the Bill’s scope, which is very much focused on national security, versus the wider public interest, to which I think my colleague’s first question alluded?

Chi Onwurah (Labour, Newcastle upon Tyne Central)

To clarify, my question was this: how would you distinguish between national and economic security?

Nadhim Zahawi (Conservative, Stratford-on-Avon)

My question is more about your reflections on the Bill being narrow in its purpose to deal with national security versus the wider public interest.

Graham Brady (Conservative, Altrincham and Sale West)

Mr Boney, do you have any observations while we are waiting for the tech to work?

Graham Brady (Conservative, Altrincham and Sale West)

Lisa, it looks like we have got you back now. Would you like to add anything?

Nadhim Zahawi (Conservative, Stratford-on-Avon)

We lost you while you were talking about a “degree of unpredictability”, Lisa.

Stephen Kinnock (Labour, Aberavon)

ThankQ you very much for the really excellent evidence you have already given us. I want to go back to what Mr Boney said about de minimis thresholds and whether you might look at introducing de minimis thresholds for particular areas, sectors or industries that I guess you would say are considered to be low risk from a security point of view and highly beneficial to the UK economy, which should therefore affect our thinking about how you might filter this whole process. But are there not other considerations on filtering as well? In essence, this is a risk management process and you have to identify the highest risks. Surely issues of critical national infrastructure would place a type of acquisition into the high-risk quadrant. If the acquirer is close to a state or Government—particularly a hostile Government—that would place it in the high-risk quadrant. Therefore, on having a more filtered process, is the de minimis threshold the right way to go, or would it not be better to have a strategic approach based on a hierarchy of risks?

Stephen Kinnock (Labour, Aberavon)

Thanks very much. Does Ms Wright want to add anything?

Stephen Kinnock (Labour, Aberavon)

Q I want to explore a bit further the issue of critical national infrastructure, which is defined by the Intelligence and Security Committee as the Government’s 13 sectors ranging from energy to transport infrastructure and anything that relates to public health. With covid, we have seen the massive importance of how we have been overexposed in certain supply chains, and that might have an effect on our thinking about critical national infrastructure. To what extent does that influence your work on mergers and acquisitions and your thinking about whether such mergers and acquisitions in areas of our critical national infrastructure are in the national interest?

Simon Baynes (Conservative, Clwyd South)

Thank you both for your submissions this morning. I want to go further into the issue of how you, the Government or the agency it sets up to do this makes a judgment about whether a small or start-up company really falls within being a threat to national security. I imagine that that might be quite a difficult judgment to make. I am putting to one side the issue of mandatory notification, which Mr Kinnock has looked at in more detail. I am saying that once it has been notified, how do you make the judgment about whether it is a threat to national security?Q

I would have thought that there are two aspects to that. One is the nature of the acquirer, which is partly what you have already alluded to. The second part is that I would have thought that it is quite difficult to ascertain whether something at the cutting edge of technology is or is not a threat. I would have thought that that is a really difficult judgment to make in practice. Do you have any thoughts on that, and what experience do you have of other regimes trying to make that kind of judgment?

Peter Grant (Scottish National Party, Glenrothes)

Good morning, Ms Wright and Mr Boney. I want to look in more detail at the kind of information that might be included in the Secretary of State’s clause 3 statement, which will set out the kind of factors that they will take into account in deciding whether they needed to intervene.Q

There is a fair amount of information in the Bill and the documents published alongside it about the kinds of businesses being acquired or taken over that might give rise to concern. There are quite clear definitions of what constitutes a trigger event, whether it is a purchase of shares or whatever, but there is very little detail about how the Secretary of State will decide which potential acquirers pose a threat. There are clearly good reasons why that information cannot be made public in too much detail, but is the fact that there is so little on the face of the Bill about how that decision is arrived at a problem? Does it make it less certain and therefore more likely to result in legal challenge?

Peter Grant (Scottish National Party, Glenrothes)

Q Thank you. I will focus a bit more on the definition of a trigger event, and in particular the catch-all provisions that define when somebody becomes a person with significant influence or control over a company.

The Companies Act 2006 has similar requirements for a company to notify Companies House if certain things happen that put someone in a position of significant influence. From a lay person’s point of view, such as my own, some of those provisions are almost word for word the same in the Companies Act and the Bill. Some appear to have the same effect but the wording is different, and therefore there will potentially be occasions when the definition is different. Would there be benefits in completely aligning both pieces of legislation so that a particular event either has to be notified or does not have to be notified? Otherwise, there is the possibility that some events will have to be notified under the Bill, and other events will have to be notified under the Companies Act but not the Bill.

Mark Garnier (Conservative, Wyre Forest)

I will carry on with the line you took just now about an investor’s potential influence over or access to a company. A little earlier, you were talking about start-ups who sought to get staged financing in order to try to build their businesses. Of course, there are more ways of getting investment than just getting equity. We know that if a business has a relatively small amount of equity but a huge amount of debt, the provider of the debt has much more influence over the company than perhaps the shareholders do. We saw that on the banking commission when we looked at the role of bondholders in influencing banks, compared with equity holders. Clearly the bondholders, in effect, had much more influence.Q

The other thing is that a start-up company can raise money in other ways. The Bill tries to make sure that we are not losing intellectual property, but a business can raise finance by licensing the intellectual property that we are trying to protect—I am not sure that that would come within the scope of this Bill—or even sell the intellectual property and license it back again. There are various other ways in which a company can raise finance, over and above equity, where there is a huge amount of influence or it falls outside the Bill. Clearly, crucial national infrastructure is a very different thing, but intellectual property is something that is very difficult to grab hold of; it is like trying to grasp a handful of sand. Given the objectives, I wonder how the Bill tackles those other areas, which seem to allow malign investors a way through.

Mark Garnier (Conservative, Wyre Forest)

Q And the debt issue—the fact that debt holders can be more influential over businesses than equity holders?

Nickie Aiken (Conservative, Cities of London and Westminster)

From your professional point of view and experience to date, what could be the long-term impact of the Bill on UK business and investors? Will the Bill help or hinder the global position on investing into the United KingdomQ ?

Sam Tarry (Labour, Ilford South)

Picking up the idea of bringing us into line with global peers and equivalent countries, there are many different regimes and you both have incredible global experience legally. If you have experience of dealing with companies and transactions, mergers and so on, particularly in the US, you will know that it has the Committee on Foreign Investment in the United States, with its white list of almost green-lighted countries, which they can deal with slightly differently. Should we consider something like the US does with its more established regime and having not necessarily an approved list but different layers for our regime, from the most hostile countries through to those who are our closest alliesQ ?

Graham Brady (Conservative, Altrincham and Sale West)

We are almost at the end of the time available for this session, so there will be no further questions for these witnesses, but thank you, Ms Wright and Mr Boney, for being so generous with your time and assisting the Committee so much. We will now move on to the next witness—either we will suspend the sitting briefly until everything is sorted out or we will move seamlessly on—but thank you both very much.

Examination of Witness

Graham Brady (Conservative, Altrincham and Sale West)

Q Would you mind, Professor Martin, just introducing yourself for the record and for the benefit of the Committee?

Chi Onwurah (Labour, Newcastle upon Tyne Central)

Q Welcome, Ciaran; it is great to see you here. Thank you so much for sharing your expertise: as the founder of the National Cyber Security Centre, you have a great deal of expertise. I want to ask you to talk about a question that I have raised a number of times and that your expertise should be able to give us a real view on, which is about understanding the distinction, if there is a distinction, between national security and economic security concerns. You will be familiar with a number of cases, such as Arm and DeepMind, to name just two, that involved an economic security issue, you could argue—in terms of sovereign capability in artificial intelligence in the case of DeepMind, and of mobile silicon in the case of Arm—but that pretty swiftly turned into national security concerns. This Bill identifies a number of different sectors or areas—up to 17, I think— where a notification will be mandatory. How can we look at understanding or reflecting a distinction between evolving economic security and, ultimately, our national security?

Chi Onwurah (Labour, Newcastle upon Tyne Central)

Q Thank you. I am very taken by your definition of sovereign and friendly capability. Indeed, that is exactly what we do not have in our 5G networks, hence the mess with Huawei.

Moving on slightly, a comment made numerous times on Second Reading was about the role of the intelligence services. Indeed, my right hon. Friend the Member for North Durham (Mr Jones) asked for more intelligence in the process. How can the Bill better ensure that the intelligence services, including the National Cyber Security Centre, have input and scrutiny and, indeed, provide their expertise as part of the process so that the appropriate decisions are taken?

Nadhim Zahawi (Conservative, Stratford-on-Avon)

Q Professor, that was excellent and I am very grateful for it. I will follow on from that thought and ask about the proposed powers within the regime for the Secretary of State to gather that information, which, as you quite rightly remind us, is not necessarily secret but about understanding the technology, or a particular piece of the technology, within the sector. What are your thoughts on the regime for the Secretary of State to be able to gather that information to inform a decision or to call in witnesses, so that they are able to really understand that particular issue and therefore make a decision on it?

Stephen Kinnock (Labour, Aberavon)

Q This is very interesting evidence. I want to ask you a little bit more about China. As you rightly pointed out, much of this is in the public domain, and the Made in China 2025 strategy is very clear about the objective, which is to achieve global technological dominance. Given your experience at the National Cyber Security Centre, can you share with us a little bit more about how that would manifest itself in practice? What do you see as China’s next moves, in terms of rewriting the rules on technology and on creating that dominant position that you have talked about? How do you see that manifesting itself?

Stephen Kinnock (Labour, Aberavon)

Q Given what you just said about the nature of the threat, how should that inform the composition of the investment security unit, which is going to be placed in BEIS and will be the primary locus for the screening of acquisitions? Would you say that it needs to have absolutely leading expertise in technology in the issues that you mentioned—quantum and so on? Should it also have China experts and people who speak Mandarin?

Andrew Bowie (Conservative, West Aberdeenshire and Kincardine)

Professor Martin, I have been listening with interest—it has been fascinating—especially when you were talking about the need to balance national security, Q the national interest and economic security. I have been reading the very good briefing by the Law Society of England and Wales, which suggests that the Bill could be improved by the insertion of a definition of national security. Do you agree?

Peter Grant (Scottish National Party, Glenrothes)

Q I understand the reluctance to have an explicit legal definition of national security, but would there be a benefit in having an “except for” clause that makes it clear that certain activities do not come under the category of a threat to national security? Would that help to allay fears about infringements of rights of democratic participation—the right to protest and so on?

Peter Grant (Scottish National Party, Glenrothes)

Q There has been some discussion of whether the investment security unit is best placed within BEIS, the business Department. Do you have a view on that? Does it matter where in government it is based? If it does, would BEIS be your preferred location, or do you think it should be based elsewhere?

Peter Grant (Scottish National Party, Glenrothes)

I will leave it there, Sir Graham. I may want to come back later, but I will let someone else in now.

Simon Baynes (Conservative, Clwyd South)

Q Thank you for your excellent evidence, Professor Martin. You said, if I understood you correctly, that the process needs to be relatively open about why it is making decisions, but I foresee problems, particularly where there are issues of confidentiality and national security. Would you explore that a little? I note that within the terms of the Bill, decisions will be subject to judicial review or appeal, and the Government will be able to apply for a closed material procedure to protect sensitive matters in such proceedings. It seems to me that there is a potential problem there in relation to commercial and national security information sensitivity, so the “openness” of the system might be fairly limited and it might not be as respected as it could be.

Mark Garnier (Conservative, Wyre Forest)

Q I want to refer back to some earlier questions about the skills within the investigatory unit that would be within BEIS. With your knowledge of Government, do you see any sort of experiences that can be carried over from the export control joint unit within the Department for International Trade? They do not have all the skills there, but they draw on skills from other Departments, particularly when it comes to arms export control and the eight consolidated criteria. Do you think there is potentially an opportunity in the day-to-day structure of the investigations unit for some lessons to be learned and carried across from the ECJU? Or do you think that is irrelevant?

Mark Garnier (Conservative, Wyre Forest)

Do you think it should be formalised or do you think an informal relationship with other Government Departments will be adequate?Q

Peter Grant (Scottish National Party, Glenrothes)

Q Good afternoon, Professor Martin. As part of the provisions for transparency and parliamentary oversight of the way the powers in the Bill would be used, the Bill would require the Secretary of State to have a statement approved by Parliament and then reviewed at least once every five years. Does that time period seem reasonable to you? Is there an argument for a shorter review period, especially in the early days when everybody will be feeling their way as to how the Bill works?

Peter Grant (Scottish National Party, Glenrothes)

To be fair, there is nothing to stop MPs from asking questions about international security, but the chances of us ever getting an answer may be somewhat less.

Chi Onwurah (Labour, Newcastle upon Tyne Central)

Q You have placed a lot of emphasis on the right technological skills and said that they should be forward looking, for a number of reasons, including identifying new technologies, but also giving clarity and certainty to businesses. Where do you see those tech skills being located? How can the Bill ensure adequate appropriate access to them?

Graham Brady (Conservative, Altrincham and Sale West)

I will now thank you very much, Professor Martin, for giving your time so generously and being of such assistance to the Committee. Given that the next witness is not due to give evidence until 2 pm, I invite the Government Whip to propose the adjournment.

Graham Brady (Conservative, Altrincham and Sale West)

We now come to our third panel. We will hear oral evidence from Mr James Palmer, senior partner from Herbert Smith Freehills. This will last until 2.30 pm. Mr Palmer, welcome; thank you for joining us. Would you be so kind as to introduce yourself for the record?

Chi Onwurah (Labour, Newcastle upon Tyne Central)

Thank you very much, Mr Palmer, for sharing your expertise with us today. I see that you were on the takeover panel for SoftBank’s £24 billion takeover of Arm. Did you consider at the time that that might raise concerns for economic security and national security? More generally in your experience of takeovers and mergers, how would you—or would you—distinguish between economic security and national security on a current and forward-looking basis, if I can put it like thatQ107 ?

Chi Onwurah (Labour, Newcastle upon Tyne Central)

Q Thank you, Mr Palmer; those are very interesting and important points. In your answer to my next question, I would like you to reflect on how this could be better. You make points about the spectrum, and particularly about the need for expertise and wide-ranging consideration in this process. Do you have concerns or suggestions about how they could be better reflected in the Bill?

Also, we have heard a number of times today that under the Bill—this will be reflected in your experience—we are going from 12 call-ins to a much bigger number: 90 or 100. And the impact assessment estimates that, I think, 1,870 notifications might come in under the new regime. Could you consider how best to reflect that or to put in place the skills and the resources for the Bill, and say a little about what impact you think it might have on the attractiveness of investing in UK companies and, in particular, small and medium-sized enterprises?

Chi Onwurah (Labour, Newcastle upon Tyne Central)

Q Thank you. You made it clear that you are praising the Department for the work it has done, and I accept your reluctance to criticise it; I think you are right—there is a lot of work, and this is a very complex area. Do you have any direct recommendations you would make to the Department in terms of what might need to change and in particular the preparations it should make for dealing with this large number of notifications?

Nadhim Zahawi (Conservative, Stratford-on-Avon)

Q I was going to ask you about whether the Bill is proportionate between being very focused on national security—albeit, as you quite rightly point out, there is a spectrum of that—versus public interest, but I think that you have answered that issue in saying that you would very much guard against expanding it.

Stephen Kinnock (Labour, Aberavon)

Thank you very much indeed for your useful and interesting evidence. I want to ask about some tangible examples, just to get a sense of where you stand on this spectrum—in this debate between economic openness and national security. You have made your position on it quite clear, which is that we should not sacrifice one to the other. Do you think that the Arm-SoftBank transaction would have gone through under this regime?Q

Stephen Kinnock (Labour, Aberavon)

Q What about AstraZeneca and Pfizer, which, of course, did not go through, mainly because of the political debate that raged around it?

Stephen Kinnock (Labour, Aberavon)

Thanks very much. Do I have time for one more?

Graham Brady (Conservative, Altrincham and Sale West)

If it is very quick.

Stephen Kinnock (Labour, Aberavon)

Q Could you just say a word about comparable jurisdictions, such as the United States, where their CFIUS law brings into play the extent to which the acquirer has a history of compliance with US law, and the same for us—not just the acquirer, but perhaps also the state that that acquirer comes from?

Graham Brady (Conservative, Altrincham and Sale West)

We have less than five minutes left, so I suspect that this will be the last question. Mark Garnier.

Mark Garnier (Conservative, Wyre Forest)

When you were answering Chi Onwurah’s question, you posed the question, why would you buy a company if there is just a 1% risk that you would not be able to sell? I was going to ask you how the Bill could be market distorting in terms of the valuations of some of these businesses. You raise a very good point about investing in a business where you think you have fewer buyers than there were originally because of the Bill. That is a very important point. The flip side of that is the extent to which the Bill could be used as a frustrating measure for hostile takeovers. Have you done much on the price-distorting nature of what is going on?Q

Mark Garnier (Conservative, Wyre Forest)

Q Very quickly, although this looks at equity investment, do you have any thoughts about the fact that debt holders can be much more influential and therefore possibly get away with the assets?

Graham Brady (Conservative, Altrincham and Sale West)

I am afraid that brings us pretty much to the end of the time available. Many thanks, Mr Palmer, for your time and your assistance to the Committee.

We will move seamlessly on to the next session and hear evidence from David Offenbach, a consultant at Simons Muirhead & Burton. While he is taking his seat, let me say to those members of the Committee who were not able to ask questions last time that I will try to make sure that you get an opportunity on this occasion or a future one.

Graham Brady (Conservative, Altrincham and Sale West)

Welcome, Mr Offenbach. May I ask you to introduce yourself for the record?

Graham Brady (Conservative, Altrincham and Sale West)

That’s all right. Thank you very much. Shadow Minister, Chi Onwurah.

Chi Onwurah (Labour, Newcastle upon Tyne Central)

Q Thank you very much, Sir Graham. Welcome, David, and thank you so much for sharing your expertise and experience with us and for giving me an opening, which I cannot resist: what are your suggestions for improving this Bill?

Chi Onwurah (Labour, Newcastle upon Tyne Central)

I have a quick follow-up question. Should we consider a separate test of public or strategic interest, or are you saying that our economic and security interests are intertwined, so it is the definition of security interests that needs to be expanded? What are your views on that?Q

Nadhim Zahawi (Conservative, Stratford-on-Avon)

Q Welcome, Mr Offenbach; thank you very much for making the time. I wanted to get your view on how you think the Bill deals with the range of sanctions available to the Secretary of State in order to protect national security. How do you see that?

Sam Tarry (Labour, Ilford South)

Thank you, Mr Offenbach. This is very interesting evidence, and clearly you and the previous witness have really exposed this tension—this debate—between having an open and liberal economic approach, and our self-interest and national security. This is not a new debate: Peter Lilley Q had his famous Lilley doctrine, and earlier this week, we heard from Sir Richard Dearlove. Most of the Committee members listened in earnest to that discussion.

For me, there is something really important we need to explore a little bit more when it comes to our approach, in terms of rushing to be the most open, the most liberal, the most pro-business country we can possibly be, and the exposure that is left—in this case—to China. Just thinking about that, are there particular areas of law that you think need to be tightened up and thought about alongside this, and that need to be looked at in tandem, perhaps around IP protection, licensing and that kind of thing?

Sam Tarry (Labour, Ilford South)

Q Clearly there would be some serious resourcing implications around that. Thinking about what you said earlier, about a number of different examples that have been in the press about major UK-owned companies that were the subject of various takeovers, would you like to say a little about how industrial strategy could also relate to national security?

Simon Baynes (Conservative, Clwyd South)

Thank you very much, Mr Offenbach, for your interesting comments which, as my colleague has said, are in sharp contrast to Mr Palmer’s point of view—so that is helpful to usQ . I have two questions. Apart from the lack of inclusion of public interest, are you broadly happy with the Bill as it stands, in terms of what it is seeking to achieve? I suspect you are.

Simon Baynes (Conservative, Clwyd South)

Q You refer to other regulatory regimes being tougher, but I think Mr Palmer’s point was that there would be other regimes that are weaker and more liberal. I think the point that he was trying to make is that if controls are tightened here, the capital, knowledge and companies will go elsewhere. Do you not see that as a risk?

Simon Baynes (Conservative, Clwyd South)

Q I think that Mr Palmer’s point, if I understood him correctly, was that if we bring the Bill in, we create a tougher regime than there is at the moment. I think he used the example of Ireland, and I hope I am not misrepresenting what he said, but he said it was potentially an environment that would have a less structured regime, and therefore could take business away from us, to put it crudely.

Peter Grant (Scottish National Party, Glenrothes)

I see from the profile that we have been given that you have considerable experience in land transaction—the legalities of land transactions—as well as company law and so on. Given that part of the Bill that we have not looked at much so far is about controls on the purchase and acquisition of land and other physical assets, as well as companies, are you comfortable with the fact that the processes for controlling potentially hostile purchases of land assets are similar to those being proposed for company takeovers or company acquisitions? Is there any reason why there needs to be different processes for them both?Q

Peter Grant (Scottish National Party, Glenrothes)

Q One important distinction is that while companies legislation is almost entirely reserved to the UK Parliament, a lot of legislative authority for land registration is devolved to the Scottish Parliament and the Scottish Government. Is there a risk of an unintended consequence—that we end up with legislation being passed here that could have an impact on the devolution of land use and purchase regulation to the Scottish Parliament?

Peter Grant (Scottish National Party, Glenrothes)

Q Finally, going back to the acquisition of companies, although it could also be relevant to the acquisition of properties, a key factor is going to be the identity of the person or the business who wants to make the acquisition. That is okay if everybody can see who the owner is. Is the Bill tight enough to give adequate protection against a potentially hostile buyer who sets up a holding company under an anonymous name in some offshore jurisdiction, so that the ultimate buyer of the asset in the United Kingdom is not made public? Is the Bill strong enough to protect against anybody using that as a way of buying up assets that they would not have been allowed to buy up if they had done so in their own name?

Peter Grant (Scottish National Party, Glenrothes)

Q But what about once you get to the point where you follow the beneficial ownership and find that it is a company registered somewhere offshore, where the identities of the directors, who have ultimate control, or the shareholders, are not made public?

Peter Grant (Scottish National Party, Glenrothes)

Q So you are suggesting we need to block any purchase of a sensitive asset from a company whose ultimate controlling partner is registered in a tax-haven type regime overseas. Would you go as far as that?

Peter Grant (Scottish National Party, Glenrothes)

Q You were suggesting earlier that the definition of the national security interest needs to be widened to include other national interests such as the strategic economic interest. Are you suggesting that there are some businesses or some assets in the United Kingdom that, although they do not have any national security implications, should not be allowed to be bought over by a company whose ultimate controlling partner remains anonymous?

Andrew Bowie (Conservative, West Aberdeenshire and Kincardine)

Mr Offenbach, thank you very much. I have a very quick question. You ran through a long list of acquisitions at the beginning of your evidence, most of which I think you would suggest were not in the national interest, although people may disagree. Given the Bill as it stands, which, if any, of those acquisitions would have been thwarted or prevented by it? Which, if any, of those acquisitions would have fallen foul of running the risk of being a threat to national security?Q

Matt Western (Labour, Warwick and Leamington)

Thank you, Mr Offenbach, for your evidence this afternoon. I am interested in the example you gave in your statement. Has the pandemic changed the way you view national securityQ ?

Matt Western (Labour, Warwick and Leamington)

Q What is your view on the Bill’s assessment that state entities and funds pose less of a risk than private entities to the UK?

Matt Western (Labour, Warwick and Leamington)

Q Going back to my previous question, do you think that we should think about areas such as climate change and other things that are perhaps not necessarily of immediate urgency—some would say, of course, that climate change is urgent—as matters of national security?

Stephen Kinnock (Labour, Aberavon)

Q Thank you very much for this useful and important evidence. I have one relatively specific question based on your expertise in real estate. The statement of political intent states:

“Land is generally only expected to be an asset of national security interest where it is, or is proximate to, a sensitive site, examples of which include critical national infrastructure”.

Do you think that scope is too narrow? For example, we know that property in London is used to launder large amounts of money—nefarious organisations often own property in London and use it for nefarious purposes. London is sometimes referred to as a laundromat for dark money. Do you think that that is a national security risk and should be included in the scope of the Bill, and that the land definition in the statement of political intent should reflect the money laundering issue?

Graham Brady (Conservative, Altrincham and Sale West)

If there are no further questions at this point, I will say thank you very much, Mr Offenbach. The next witness is not due until 3.15 so we will have a 10-minute suspension.

Graham Brady (Conservative, Altrincham and Sale West)

We will now hear oral evidence from our fifth panel. We welcome Mr Creon Butler from Chatham House. We have until 4 o’clock for this session. Mr Butler, may I welcome you to the Committee? Please will you introduce yourself for the record?

Chi Onwurah (Labour, Newcastle upon Tyne Central)

Q Welcome, Mr Butler, and thank you for sharing your expertise with the Committee. Your expertise is considerable, given that you have advised on policy issues such as climate change, national resource security, global health security and economic security. There are clearly many aspects of security. Are both the distinction and the links between national security and economic security appropriately reflected in the Bill, or could they be better reflected?

Chi Onwurah (Labour, Newcastle upon Tyne Central)

Q Are the other tools or powers needed to make interventions with regard to strategic capability in place under the Enterprise Act 2002, such as for the Arm takeover? I am not sure that they are. Given your experience, will you say a bit about the level of resourcing and expertise the unit would need to make such assessments?

Nadhim Zahawi (Conservative, Stratford-on-Avon)

Q Welcome, Mr Butler, and thank you very much for your attendance. Reflecting on the changing nature of the national security threats that we are now facing, which you alluded to in your answer to my colleague, the hon. Member for Newcastle upon Tyne Central, how do you think the Bill builds on the Enterprise Act 2002? It has been 18 years since that legislation was introduced, so it would be great to get your take on that. Given your CV, it is worth getting your reflection on that while we have you here.

Stephen Kinnock (Labour, Aberavon)

Thank you very much for the very interesting evidence that you are providing. I want to focus on the acquirer risk element of the Bill. The statement of political intent states thatQ

“the National Security and Investment regime does not regard state-owned entities, sovereign wealth funds—or other entities affiliated with foreign states—as being inherently more likely to pose a national security risk.”

Do you agree with that assessment? Logic would seem to suggest that the closer an entity is to a foreign Government, the more likely it is to pose a risk to our national security.

Stephen Kinnock (Labour, Aberavon)

The Bill does not suggest a special regime, but it also seems to say explicitly that the state-owned characteristic should not be considered, because the statement of policy intent says that it is not inherently more likely to pose a national security risk. It does not seem to do either of the two things you are suggesting.Q

James Wild (Conservative, North West Norfolk)

Mr Butler, given your experience in the National Security Secretariat, I want to ask you a few structural questions. How you think the NSS should be linked into the new investment security unit in BEIS?Q

James Wild (Conservative, North West Norfolk)

Q That is helpful. On the operational point, do you have a view on the timescales for turning round the reviews and assessments within the Bill as it stands?

Matt Western (Labour, Warwick and Leamington)

Q I wonder, Mr Butler, if you would elaborate on, and give more examples of, the sorts of international threats that you see us facing, in terms of not just national security but economic security, and the links between the two.

Peter Grant (Scottish National Party, Glenrothes)

Q Good afternoon, Mr Butler. You highlighted the problem of identifying the fact that an acquiring party may have hostile intent towards us if we do not know who is really in control and who the ultimate owners are. One way of addressing that is simply to have a built-in presumption against allowing any acquisition of a security-sensitive asset or business by a company whose ultimate owners are not identified. Do we need to go as far as that? If not, what else could we do to protect ourselves from hostile elements, which will undoubtedly use that back-door access, if it is left open?

Peter Grant (Scottish National Party, Glenrothes)

Q To be clear, you mentioned in your answer the need to regulate foreign-registered companies from certain types of acquisitions. Does that also apply to UK-registered companies, which are in turn owned by foreign companies? The bad guys will set up a UK company to do all the bad stuff through. Do you agree that we need to follow the chain of ownership and control right back to the ultimate controller?

Stephen Flynn (Scottish National Party, Aberdeen South)

Thank you, Mr Butler, for your evidence so far. It has been incredibly enlightening. It is probably fair to say that national security—what is tantamount to national security—is an ever-evolving feast, particularly given the technology that is now available. Do you feel that the scope of the Bill, particularly the consultation of the 17 sectors that have been included, satisfies your concerns around national security? I am particularly thinking of social media and the level of data that is pertinent within that. Do you think that is adequately covered by the Bill as it standsQ ?

Graham Brady (Conservative, Altrincham and Sale West)

There are no further questions, so thank you, Mr Butler, for your time and your assistance to the Committee. We have our witness for the sixth and final panel in the witness in the room, so we can move on seamlessly and a little early.

Graham Brady (Conservative, Altrincham and Sale West)

We have until 4.30 pm at the latest for this session. Mr Jackson-Moore, will you introduce yourself for the record?

Chi Onwurah (Labour, Newcastle upon Tyne Central)

Thank you for sharing your expertise with us, Mr Jackson-Moore. What impact do you expect the measures in the Bill to have on the sovereign funds and others you represent—the investors and potential acquirers of UK assets? You said clearly that you were not an expert in national security—why should you be? —but how will you identify those acquirers who may be considered to pose a national security threat? What kind of engagement would you expect to have with the Department for Business in order to make that sort of call?

Chi Onwurah (Labour, Newcastle upon Tyne Central)

Q Would you be expecting to advise your clients as to whether the proposals in the Bill might impact on them? Would you expect to be able to engage with the Department in order to establish that? Have you made, for example, predictions of the number of transactions in which you are involved that might be subject to the proposals in this Bill?

Chi Onwurah (Labour, Newcastle upon Tyne Central)

Q Specifically on whether they meet the definition of an overseas acquirer, I was also interested in this. I think one of the assumptions has been that there will be a large number of self-notifications in order to get guidance early on, but you seem to be implying that that might be considered to be declaring yourself as a threat to national security, and that might be a barrier.

Chi Onwurah (Labour, Newcastle upon Tyne Central)

Q What that says to me is that, while the impact assessment looks at the cost to the acquirer, there will actually be a cost to the acquired party in terms of clearing themselves in advance or clarifying what their situation is, and I do not think that is covered in the impact assessment as it stands.

Nadhim Zahawi (Conservative, Stratford-on-Avon)

Q Following on that, Mr Jackson-Moore, the current regime under the Enterprise Act 2002 stipulates that the assessment of transactions is dealt with on a case-by-case basis by the Government. This legislation effectively puts into law the timeline by which assessments are made. Do you think that and other provisions in this Bill will send a message to the industry and to the investment community of a slicker, more efficient way of dealing with assessment of transactions?

Graham Brady (Conservative, Altrincham and Sale West)

Stephen Flynn.

Stephen Flynn (Scottish National Party, Aberdeen South)

Q You caught me making a note there, Sir Graham; apologies. Thank you very much for your evidence so far, Mr Jackson-Moore. It has been incredibly helpful. If I have picked you up correctly, you perhaps inferred that the level of guidance that companies would be seeking in order to provide that assurance is not necessarily there. If that level of guidance is not there, do you feel that that will have an impact on investment ultimately?

Stephen Flynn (Scottish National Party, Aberdeen South)

Q As a follow-up to that, in terms of the fact that the Bill is obviously coming before the consultation has been concluded on the sectors and the consequences therein of being caught within a sector or not, do you think that that timeline will have an impact on investment in the short to medium term?

Andrew Bowie (Conservative, West Aberdeenshire and Kincardine)

Q Earlier on today, and two days ago, we discussed the link between national security and national interest, and I am sure you would agree with me that attracting inward investment is very much in the national interest. We have just heard from the hon. Member for Aberdeen South about the effect that this might be having. We do very well as a country in terms of attracting inward investment; I think we are No. 1 in Europe. As the Bill stands right now, do you think it will have a detrimental effect on our ability to attract inward investment to the UK?

Stephen Kinnock (Labour, Aberavon)

Q Thanks very much for that helpful evidence. I want to focus on this issue of the target risk and the type of asset that is potentially being acquired. I am interested in the role of private equity in the residential care home sector. Large swathes of our residential care homes are owned by private equity companies. I just wonder whether you think residential care, and social and public services of that nature, should be defined as a critical national infrastructure?

Stephen Kinnock (Labour, Aberavon)

Q I am sorry; I saw that you have done a lot of work with private equity and thought that you may have been involved in that aspect of it. On sovereign wealth funds, do you see the China Investment Corporation—I do not know if you have ever done any work with it—as an arm of the Chinese Communist party?

Mark Garnier (Conservative, Wyre Forest)

Q My apologies for not being here at the beginning. I am interested in your work on sovereign wealth funds and private equity funds, in terms of working out the value of an investment asset. We heard evidence in the first session this afternoon—I do not know if you were here—than the fact that this Bill will restrict the number of potential buyers out there might then restrict the amount of interest coming in to start with; an investor with a target company to invest in may have limited numbers of people that they could sell it to when they want to exit, which will adjust the price. Have you had any thoughts about that at all?

Mark Garnier (Conservative, Wyre Forest)

Competition?

Mark Garnier (Conservative, Wyre Forest)

Q Let me rephrase the question, then. Countries have directions of travel. Do you think that our direction of travel, as evidenced by things like Brexit and possibly this Bill and others, is a direction to a less attractive place, or not? If you were in government with a five-year plan to try to make us attractive, would this be part of your plan?

Mark Garnier (Conservative, Wyre Forest)

That is very helpful. Thank you.

Graham Brady (Conservative, Altrincham and Sale West)

We have no further questions from the Committee, so thank you very much, Mr Jackson-Moore, for your time and assistance. We are finishing slightly ahead of time, but I invite the Government Whip to propose to adjourn.