National Security Bill

Lord Beith Excerpts

2nd reading
Tuesday 6th December 2022 Lords Chamber

[Lord Beith (LD)]

My Lords, like previous legislation on intelligence and security, the Bill gives significant powers to agencies and Ministers, and it creates new offences. Its purpose is to help protect our citizens, but it is in the nature of these powers and this work that, in order to be effective, much of it must operate in secret, without the visible accountability we would normally expect. Therefore, there are alternative forms of accountability: commissioners, reviewers of terrorist legislation, the courts, the tribunal and the Intelligence and Security Committee, on which I will concentrate.

I was a member of that committee from its establishment in 1994 until 2008. One of the consequences of being on it rather a long time is that this debate is full of people from whom I took evidence during that period, not excepting the noble Lord, Lord West, the only present member of the committee in this House, who made such a valuable contribution to the debate earlier. The committee was created when, until very recently, the existence of the agencies was either denied or not acknowledged, and when the Five Eyes alliance was a secret. The result was that it was a battle—I suspect it still is—to get the level of access essential to the committee doing its job.

I see that job as having two principal purposes: to ensure that the secret parts of government operate competently and efficiently, with adequate resources; and to ensure that they do not do what Parliament would not allow them to do if they were openly accountable. I see it as a reassurance—or an intended reassurance—for Parliament that a representative group of colleagues not beholden to the Executive has sufficient access to the secret activities of government and sufficient independence of judgment to ensure that these objectives are properly met.

As time went on, the committee increased its access, helped by a new generation of agency heads, many of whom recognised that it was in the interests of their service to have effective accountability. We had many battles, particularly with Ministers. Battles continue, including the doomed attempt to instal Chris Grayling as the committee’s chairman. The Justice and Security Act 2013 strengthened the committee’s position, particularly in relation to operations and the important inclusion of defence intelligence in the committee’s remit. This Bill makes no further changes, but it creates further issues and processes for the committee to monitor. I want to focus on two examples of the problems it faces.

The first is the disengagement of Prime Ministers from the committee, which has occurred under several recent Prime Ministers. Because reports are redacted, the normal process of parliamentary and political reaction leading to improvement is severely limited. On some quite major issues, only the Prime Minister has full access to the committee’s conclusions. He or she needs to respond directly in discussion with the committee. Meetings between the committee and the Prime Minister were normal practice after the annual report was produced, and for some special reports as well. They should resume.

The second issue is what appears to be an obscuring of ministerial involvement in difficult and highly controversial issues where the agency’s actions may or may not have specific authorisation from the Minister. That brings me to Clause 28, which has been referenced. It provides a defence that “extra-territorial application” of the Serious Crime Act 2007 would not apply if the action or the assisting or encouraging of that action was necessary for

“the proper exercise of any function of the”

intelligence agencies or the Armed Forces. It is not a new problem, but it used to be dealt with by ministerial authorisation, which would be available only when the circumstances were exceptional and the action proportionate and defensible. As I understand it, ministerial authorisation is not required under this formula—or so it appears. It might not even be sought if it were thought better for the Minister not to know about it. That would be a very unhealthy state of affairs to encourage.

Serious issues may be raised by this provision. They range from very minor breaches of local law in intelligence-gathering right up to rendition resulting in torture. We should not have a situation in which the relevant Minister can claim that they were not fully consulted, briefed or asked for any specific authorisation. The ISC pointed out in its 2010 report on detainee mistreatment that:

“The Guidance is insufficiently clear as to the role of Ministers, and what (in broad terms) can and cannot be authorised. The Guidance should … make clear that Ministers cannot lawfully authorise action which they know or believe would result in torture.”


What if Ministers are never asked because of Clause 28? Ministerial approval, or its refusal, is an essential part of the chain of accountability, and it needs to be maintained and backed up by ISC scrutiny of Ministers’ actions in this area.

This brings me to my experience of the committee’s attempts to establish what submission was made to Ministers on the potentially controversial action outside the United Kingdom involving an intelligence agency. Several of our reports made reference to the stonewalling in this instance, with numerous mutually inconsistent excuses being offered for failing to provide the documentation. I refer right back to the 2006-07 annual report, under the chairmanship of the noble Lord, Lord Murphy of Torfaen, which reported that, at its meeting with the Prime Minister, the committee had been

“told that the matter would be reviewed once again, although this instruction does not appear to have filtered down to those concerned.”

Referring to the Government’s position as “untenable”, the committee revealed how many years it had been submitting this demand for the disclosure of specific documents. Although the paragraphs were published, No. 10 successfully demanded that the number of years the committee had been seeking this documentation would be redacted—and it was.

You cannot serve on the ISC without becoming aware of how many very able and, in some cases, very courageous people work in intelligence agencies and the related organisations on our behalf. Effective accountability in a form which is compatible with the secrecy of their work is in their interests, just as it is in the interests of the citizens they protect. It is also in their and our interests that the legislation they work under is fit for purpose. As noble Lords have indicated so far in this debate, there is considerably more work to be done to ensure that this Bill meets that test.