King’s Speech

Lord Beith Excerpts

Wednesday 24th July 2024 Lords Chamber

[Lord Beith (LD)]

My Lords, the gracious Speech makes only limited reference to the criminal justice system and none to the crisis within it, but, even as it was being prepared, delivered and debated, the Government were making some significant steps. One that we have heard more detail on this afternoon is the release of 5,500 prisoners, not as part of a developing policy on the effective use of custody but as a crisis response to the fact that the prisons are full. This is clearly a disgraceful inheritance from the Tory Government and one that the Government have tackled with difficulty. However, the current Government cannot escape all blame for the situation: Labour ramped up the rhetoric on locking people up some years ago, which set a trend that has continued since and needs to be reversed.

One positive thing that the new Government have done is to appoint a Prisons Minister with knowledge, commitment and practical experience in rehabilitating offenders, the noble Lord, Lord Timpson. I congratulate him on his Maiden speech. I also welcome the appointment of our respected colleague the noble Lord, Lord Ponsonby of Shulbrede, to the department, and the noble Lord, Lord Hanson, with whom I worked on these issues when we were both in the Commons. These Ministers will need firm backing at Cabinet level for the steps they will need to take to end the chaos and redesign the system with the objective of reducing crime, not of winning headlines for talking tough.

I draw the Minister’s attention to the report on community sentences from our Home Affairs and Justice Committee, and I apologise that I cannot be at Friday’s debate, when he will hear more about it from my noble friend Lady Hamwee. I also commend the House of Commons Justice Committee’s report, Public Opinion and Understanding of Sentencing. That is the issue I want to touch on now.

Parliament proposes, the Sentencing Council interprets, and judges and magistrates impose sentences, which may include custody. Custody is a massively expensive and huge commitment of resources, in a criminal justice system that is desperately short of resources, but it has often been the most readily available option. In a particular court area, there may not be a combination of measures that could be effective in dealing with an offender, so custody becomes the alternative.

Why does our system put and keep in prison more people than any other system in a western European democracy? There are several reasons for imprisonment. The first reason is the protection of the public from dangerous and violent offenders, but that protection is necessarily limited by the fact that most offenders will eventually be released, and therefore need the prison system to provide—the second reason—rehabilitation by means of courses, training and other activity that can reduce reoffending. An overcrowded and understaffed prison system cannot do this. The third reason for custody is the belief that the risk of a prison sentence is a deterrent. There are some crimes for which that may be true, but some of the crimes we are most anxious to deal with do not fall into that category: domestic violence is not cured or prevented by the fear of a prison sentence, nor is much alcohol or drug-related violence.

We need to recognise that there is a fourth factor—a powerful one—promoting the inappropriate use of custody: prison sentence and its length is used by the public and the media as a yardstick by which to measure the relative seriousness with which we take any particular offence. Custody and its length are used as a proxy for disapproval and for indicating how seriously we take a crime. That distorts the effective use of the remedies that are available. Relying on a community sentence, however effective, is seen as not taking a crime seriously enough.

This is compounded by newspapers. I refer to an article in a newspaper that takes all these issues seriously and is working on them: the Times, which has a commission on justice. Last Thursday, we had the headline:

“Asylum seekers who snatched Rolex watch walk free”.


It is that “walk free” that so distorts the debate. In fact, they were given five-year criminal behaviour orders, subjected to six-month curfews, required to live in Home Office accommodation, required to complete 150 hours of unpaid work and 40 hours of rehabilitation, and banned from the City of Westminster. That does not sound like walking free to me.

This makes me reflect on the other side: I am not convinced that four-year or five-year prison sentences for disruptive but non-violent environmental protesters is a very good use of scarce resources. We need to develop the understanding that the way to take crime seriously is to make sure that the sentence is likely to reduce reoffending. That is the measure. I hope that the new Ministers can encourage rational debate on this issue so that we can start to use custody where it needs to be used and not abuse it when other things would work better.

Angiolini Inquiry Report

Lord Beith Excerpts

Tuesday 5th March 2024 Lords Chamber

[Lord Sharpe of Epsom (Con)]

Is it not lamentable that recommendation 14 had to be written at all in the 21st century? Frankly, it is pathetic that we still have to have this conversation about such behaviour. The noble Baroness is absolutely right that this is about leadership and culture, and the Home Secretary was extraordinarily explicit on that subject, as I referenced earlier. The culture change has to come from the top; leaders are responsible for setting the standards, and we obviously expect them to keep pushing for improvements to be made across policing.

The recommendation is directed at police forces. It is important to remember that there is local accountability via the office of the police and crime commissioner, and that local accountability absolutely should be engaging with all sectors the community—the people who elect them, after all—to do precisely that. However, the Government have invested in the College of Policing’s National Centre for Police Leadership, which has already set out national standards for leadership at every level. That has to be embedded across forces, so that officers at every rank know what is expected of them and what development they need to get there. That also goes back to a question that the noble Baroness, Lady Doocey, asked me about consistency, which I did not answer: she is 100% right that there is a lack of consistency across police forces. Of course, when all ranks are trained nationally, that will introduce the element of consistency that we clearly need.

I completely agree with the noble Baroness, Lady Hughes of Stretford. However, as the recommendation is directed at police forces, I have to maintain the operational independence line, as it is entirely appropriate that police forces should be free from central government control. Nevertheless, there is local control that could certainly exercise the type of oversight that the noble Baroness wants.

[Lord Beith (LD)]

My Lords, the Minister referred to local accountability. Is he satisfied that the various assurances and procedures that he described will apply to the Civil Nuclear Constabulary and other forces that do not have local accountability?

[Lord Sharpe of Epsom (Con)]

The noble Lord raises a good point. The Civil Nuclear Constabulary comes under the atomic energy people—I forget their precise title—and was referenced in Lady Elish’s report. I have not been party to the conversations that are going on there; I imagine that they are ongoing, and I would like to report back in due course, when I can. Obviously, I cannot say more at the moment.

Investigatory Powers (Amendment) Bill [HL]

Lord Beith Excerpts

Report stage
Tuesday 23rd January 2024 Lords Chamber

[Lord Sharpe of Epsom (Con)]

Yes. The noble Lord, Lord Fox, says, “Don’t get too excited”, and he is right.

I now turn to the government amendment in this group, Amendment 46. This proposed new clause amends the Investigatory Powers Act’s bulk equipment interference regime to ensure that sensitive journalistic material gathered through bulk equipment interference is subject to increased safeguards. Currently, Section 195 of the IPA requires that the Investigatory Powers Commissioner be informed when a communication containing confidential journalistic material or sources of journalistic material, following its examination, is retained for any purpose other than its destruction.

This amendment introduces the need for independent prior approval before any confidential journalistic material or sources of journalistic material are selected, examined, and retained by the intelligence agencies. It also introduces an urgency process within the new requirement to ensure that requests for clearance to use certain criteria to select data for examination can be approved out of hours.

The Government recognise the importance of journalistic freedom and are therefore proactively increasing the safeguards already afforded to journalistic material within the IPA. In doing so, we are also bringing the IPA’s bulk equipment interference regime into alignment with bulk interception, which is being amended in the same way through the Investigatory Powers Act 2016 (Remedial) Order 2023; that is being considered in the other place today.

In wrapping up, I once again thank noble Lords for the constructive engagement we have had on the Bill, singling out in particular the noble Lords, Lord Anderson, Lord West, Lord Coaker and Lord Fox. With that, I hope that noble Lords will support the Government’s amendment.

[The Deputy Chairman of Committees (Lord Beith) (LD)]

If Amendment 39 is agreed to, I cannot call Amendment 40 by reason of pre-emption.

Amendment 39 agreed.

Illegal Migration Bill

Lord Beith Excerpts

Consideration of Commons amendments
Wednesday 12th July 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

I beg to move.

[The Deputy Speaker (Lord Beith) (LD)]

The original Question was that Motion D be agreed to, since when Motion D1 has been moved as an amendment to Motion D. The Question therefore is that Motion D1 be agreed to. The matter will be decided by a Division.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, this is a consequential amendment and should just be moved formally by the House.

[The Deputy Speaker (Lord Beith) (LD)]

It is a matter for the House whether it is treated as a consequential amendment, and not one that I can rule on.

Motion D1 agreed.

Illegal Migration Bill

Lord Beith Excerpts

Committee stage
Wednesday 14th June 2023 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I moved Amendment 139A. The right reverend Prelate and I have often had our names paired on amendments on these issues. The story from the noble Lord, Lord Ponsonby, about Home Office officials sitting in court to see what they can pick up was truly shocking, whatever other conclusions one might draw about it.

I am unclear why it is necessary to apply the restrictions about sharing data, automatically or otherwise, when the subject is already detained, but I come back to my principal point—sadly, it is not the first time we have made it from these Benches—that we thought that the effective immigration control exemption in the Data Protection Act, and so much now comes within that, was far too wide and had dangers inherent in it. The examples given by the right reverend Prelate in the field of domestic abuse bear this out.

We have heard a lot about the Government wanting co-operation from victims with regard to the investigation and prosecution of traffickers and smugglers. It does not seem to me that not agreeing to a firewall is the best way to go about getting that co-operation.

[The Deputy Chairman of Committees (Lord Beith) (LD)]

Is the noble Baroness withdrawing her amendment?

[Baroness Hamwee (LD)]

I was just about to. I beg leave to withdraw the amendment.

Coronation: Policing

Lord Beith Excerpts

Thursday 11th May 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

Well, I absolutely could not agree with the noble Lord more.

[Lord Beith (LD)]

The success of the police’s actions over the Coronation as a whole surely does not prevent us from considering the long-term dangers, which we started to learn about during the Covid regulation period, of creating situations in which police officers are felt by citizens to be interfering with legitimate rights, whether it is protest or just the ability to walk in the countryside during the Covid regulation period, or to take home a tube of glue to repair some domestic damage. Surely we have to consider those long-term issues, while rejoicing in the fact that a good job was done by so many police officers.

[Lord Sharpe of Epsom (Con)]

I agree with the noble Lord: all of those matters should stay under active consideration, particularly as the nature of crime, disruption, protest and what have you evolves. But, overall, I also agree with the noble Lord that last weekend was a magnificent one in the life of the nation, and all of those involved should be applauded, including the people who went and those who protested peacefully.

National Security Bill

Lord Beith Excerpts

Report stage
Tuesday 7th March 2023 Lords Chamber

[Baroness Noakes (Con)]

My Lords, I got involved in Committee—my only appearance on the Bill—because of concerns brought to my attention about the impact of the registration scheme on huge swathes of ordinary, everyday business and commercial activity. I was much encouraged that at that stage my noble friend the Minister said that this was under review. I am more than pleased with the actual outcome. I know that once a Bill has been published it is very hard for the Government to do a radical overhaul, so we have to pay tribute to my noble friend the Minister and the Security Minister in the other place for having the courage to say that what we started with would not work well enough and to come back with such a significant set of revisions on Report. I thank him again for all he has done to achieve this.

[Lord Beith (LD)]

My Lords, I think I failed to hear something the Minister said earlier relating to Amendment 110A. I raise it because the noble Lords, Lord Anderson of Ipswich and Lord Carlile of Berriew, are both unable to be in the House this afternoon for various compelling reasons. The amendment helpfully tidies up part of the provision by ensuring that the reference to arrangements entered into before the clause comes into force does not apply to arrangements that have ceased to have effect. I think the Minister indicated that he was going to accept it and therefore, I presume, move it at the appropriate stage.

[Lord Purvis of Tweed (LD)]

My Lords, the noble Baroness, Lady Hayter, raised valid areas with regard to the sometimes complex relationships between political parties and the Governments of states, which I hope the Minister, who referred to foreign Governments, can go a little further and point to. It is absolutely right that that is one of a number of criteria set down earlier in the Bill, in Clause 32, and that the meaning of a foreign power includes

“a political party which is a governing political party”.

There will still be issues when it comes to relationships such as demand and supply and other kinds of relations, but I hope that the Minister will provide clarity and proper consultations so that, when we come to the finalised guidance and regulations, those issues will be very clear. The Minister will not be surprised to hear that, as in the earlier group, we are still hoping for that bit of clarification on the German Stiftungen and others represented by the kinds of organisations that the Stiftungen are—those that operate within a public policy and political sphere but are not directly linked to the Government or governing political parties although they are, by definition, political in their nature. I am sure that the Minister will respond to that when he winds up.

Like the noble Baroness, Lady Noakes, we have a number of scars on our back from legislation where we have tried to do heavy lifting in this Chamber to improve Bills. I tabled a number of amendments in Committee highlighting the concern that what had been brought forward was an unworkable scheme; I think we are now looking at a workable scheme. That is important for the security of our country.

I particularly welcome the draft registration forms, about which I had raised concerns in Committee. I am very pleased that the Minister will be having an active consultation. I am delighted that there will be an updated impact assessment. While the Minister said that that is required of the Government, in previous Bills some excuses have been made for impact assessments not to be updated, so I am very pleased about that. And on the draft regulations, as I said, I am delighted.

As I said on the earlier group, the Minister has been true to his word. I have just one final favour to ask of him. Given that I have been rather successful with colleagues in securing some concessions on this Bill, could he have a word with other Ministers, just to say that “Purvis is not always wrong”? Sometimes, we can do our job in this place; we can make the Government’s job a bit better and make unworkable schemes workable. I commend the Minister for how he has approached this so far.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

If they do not have the necessary security clearances, they obviously cannot, but, as I said earlier, that is part of the full consideration of the MoU and the various changes to the machinery of government that is currently under way.

[Lord Beith (LD)]

Has the noble Lord quite grasped the significant value of the ISC? I speak as someone who used to be on it. One aspect is its value to the Prime Minister, who gets a detailed assessment of aspects of security in circumstances where nobody else can, and he alone can do something about it. It is also an important guarantee to parliamentary colleagues in both Houses that things that cannot be disclosed are being examined by people whom colleagues trust, and that is very important in order to have some confidence that there is oversight going on.

[Lord Sharpe of Epsom (Con)]

I completely agree with the noble Lord. I certainly get it, and I hold the ISC in great respect, including the noble Lords in this House who are members. As I have said, the Justice and Security Act requires the Prime Minister to read the report before it is published. He gets an unredacted version, so he sees the full picture, and I have committed to take back the House’s concerns about attending the committee, via my noble friend Lord True.

If I may, I will turn to the tier 1 investor visa route, and I am afraid that I will have to repeat a number of things that I said in my opening remarks. The review of visas issued under the route took place relatively recently. A Written Ministerial Statement on 12 January set out the findings of that review, which reviewed visas issued between 2008 and 2015. That included that it had identified a minority of individuals connected to the tier 1 investor visa route that were potentially at high risk of having obtained wealth through corruption or other illicit financial activity. The Statement represented the Government’s substantive response to the commitment to undertake that review and publish its findings.

I am aware that the noble Lord, Lord Wallace, would have preferred that the published review included more information about specific individuals. I agree with his remarks about protecting our democracy and transparency. However, we have had to act responsibly in regard to the UK’s national security. We have sought to strike the right balance between setting out the broad findings of the review and the constraints on disclosing sensitive details, which must be withheld at the request of our operational partners to protect our border and the vital work of our law enforcement agencies. I think that those are perfectly reasonable points to have made in regard to the tier 1 investor visa.

I appreciate that I have not given as fulsome answers as all noble Lords would like, but in light of the answers that I have given, I request that noble Lords do not press their amendments.

National Security Bill

Lord Beith Excerpts

Report stage
Wednesday 1st March 2023 Lords Chamber

Moved by

[Lord Beith]

65: Clause 30, page 22, line 30, at end insert “when carried out in support of and with the authority of the Security Service, the Secret Intelligence Service or GCHQ”
Member's explanatory statement
The purpose of this amendment is to clarify that any immunity from prosecution conferred by this Clause does not extend to the activities of the Armed Forces in general, but only to those activities carried out in support of the Intelligence Agencies.

[Lord Beith (LD)]

My Lords, the amendment to which I will speak was designed to limit the scope of the immunity which the Bill originally proposed to activities in support of the intelligence services, rather than extend it right across the Armed Forces. However, we now have a change, which I will come to in more detail; we are no longer discussing an immunity, thank goodness, but a statutory defence.

Intelligence gathering is difficult, and in the world of intelligence it is quite difficult to avoid breaking the law sometimes. When you are dealing with a hostile state or terrorist organisation, trying to get information from it which it does not want you to have can be quite complicated. There are ways of dealing with the issue, such as a public interest decision by prosecutors not to press a charge, or the expectation that such a charge would not be pressed. That needed to be backed up by authorisation at the highest political level for action which could be politically embarrassing or worse. No such authorisation should be given to torture, rendition to torture or other serious international crimes.

In the Bill, the Government presented us with a blanket immunity, precluding prosecution and unsupported by any specific ministerial authorisation, with no exclusion of torture or other egregious offences. So I strongly supported the suggestion made by my noble friend Lord Purvis, which has now been adopted by the Government, to strike out Clause 30 and replace it with a statutory defence based on the existing domestic provision. That is government Amendment 66 in this group. It is a lot better than the original Clause 30, but still raises some of the same questions.

First, will there be any change to the system of ministerial authorisation at Secretary of State level for activity which might be covered by this clause? That ministerial authorisation is a very important part of the system and its absence would be very damaging. Clearly a general immunity dispenses entirely with any need for it; I was extremely worried about that consequence. Some of the decisions which have to be taken are quite political in character; if an agency were discovered doing something contrary to the law of another country, as well as to our own, very serious political embarrassment could result. So it is in many ways a political decision, and there should be a process by which it can be made.

Secondly, why are we using the National Security Bill to confer a statutory defence not just on intelligence activity, but on any action which is

“the proper exercise of a function of the armed forces”?

In other words, we are creating a new defence for actions on the battlefield, or in a counter-insurgency operation, in areas in which international law is potentially involved. This has very significant consequences for those who break it.

When I first examined the original clause, it seemed to me that the Government were trying to embrace, within an immunity, those members of the Armed Forces who were engaged in intelligence work alongside the three civilian agencies. This would include military intelligence, both uniformed and civilian personnel—now, of course, I think that more fully recognises that the fourth pillar of UK intelligence operations, the military intelligence itself, is brought within the purview of the Intelligence and Security Committee. But I expected that the Government were trying to cover other Armed Forces personnel deployed to assist the intelligence agencies, which they do in a variety of ways. My Amendment 65 was designed to limit the coverage to those groups. But it appears, from the more explicit drafting of the Government’s new clause, that they intend the statutory defence to apply to any proper exercise of the functions of the Armed Forces. I find it surprising that we should attempt so fundamental a change in the law governing the Armed Forces on a tail-wind from a piece of national security legislation.

--- Later in debate ---

[Lord Coaker (Lab)]

My Lords, this is a really important debate. Government Amendment 66 is a considerable improvement on what we had before, with respect to Clause 30. We have heard from noble Lords about their belief in that and their pleasure that we now see Amendment 66 before us. As my noble friend Lord West—I will come back to him—the noble Lords, Lord Anderson and Lord Carlile, and others have mentioned, there are still questions that the Government need to answer. I very much look forward to the Minister’s response, particularly to my noble friend Lord West, who very effectively laid out the fact that although the ISC welcomes the new clause proposed by Amendment 66, there are still some important questions for the Government. It is extremely important that the Government put their answers on the record, so they are there as testimony of what the Government expect of how the new Clause 30—as it will be—will operate.

The point made by the noble Lord, Lord Anderson, about the inclusion of the Armed Forces in this deserves a proper answer from the Minister. It is good to see the Armed Forces Minister here to have heard the noble Lord.

My noble friend Lord West laid before us how we got here, the relationship between the Home Office and the ISC, and the lack of a speedy response to some of the requests, which have led to some of the difficulties we have seen. If people had attended the committee, spoken to the committee and discussed with the committee —even if some of those discussions may have been difficult—some of these problems would have been resolved. Yet we have debate in the other place, debate here, and now it is only on Report that we get to a position where we seem to be on the verge of achieving what we all want.

I go back to a point I find quite astonishing, referring to the Intelligence and Security Committee’s annual report. My noble friend Lord West pointed to the lack of Home Office response. I lay this before each and every one of you: when do noble Lords think was the last time the Prime Minister went along? Do not answer that—there is no need to shout out. It is quite astonishing to read in the annual report that, despite repeated requests, no Prime Minister has been to the Intelligence and Security Committee since 2014. That is absolutely disgraceful. The committee was set up by this Parliament to oversee intelligence and security matters and to receive intelligence at a level we cannot be briefed on—quite rightly—and, despite repeated requests, the Prime Minister has not gone. How can a Prime Minister not go to the committee set up by Parliament to discuss matters of intelligence? I find it incredible.

A few weeks ago, I asked the noble Lord, Lord Sharpe, why this has not happened. The Government say, “The Prime Minister has been very busy over the last few weeks”, and he has been; he has been not just to Belfast but to numerous other places, including Parliament, to meet various groups. Why has it not been possible to meet the Intelligence and Security Committee? This is incredibly serious.

[Lord Beith (LD)]

I put it to the noble Lord that this is not a formality. The point of the Prime Minister meeting the committee is that it can draw attention to failings or problems that it cannot publicly disclose. The only route by which those failings or problems can be brought to account is by direct contact with the Prime Minister.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who spoke in this debate on Clause 30, the Serious Crime Act 2007 amendment. Before getting into the detail, I very much thank the noble Lords, Lord Beith, Lord West, Lord Ponsonby and Lord Purvis, and the noble Baroness, Lady D’Souza, for their amendments tabled in advance of today’s proceedings. I also thank the noble Lords, Lord Anderson and Lord Carlile, who have consistently shared their time and expertise with me and my team, across a range of national security matters.

I also extend my gratitude to the Intelligence and Security Committee, which recently took the time to write to the Home Office on this measure and cast a keen and critical eye, with officials, over the Government’s amendment tabled for today. I carefully noted the comments of the noble Lord, Lord West, as did my right honourable friend the Security Minister, who sat on the steps when he made them. I will obviously make sure that we reflect on that internally. I say to the noble Lord, Lord Coaker, that my noble friend the Leader of the House heard his comments, and I am sure he will reflect them back to the Prime Minister, but I am not responsible for the Prime Minister’s diary, so I cannot go further than that at this point. However, we will return to this subject in group 12, when the ISC MoU will be debated.

The Government’s shift in approach on the SCA amendment reflects our maintained commitment to ensuring that individuals working for UKIC and the Armed Forces are protected when conducting their proper activities in service to this country. The Government’s amendment replaces Clause 30 with a new clause that provides a defence for acts that are offences under Part 2 of the SCA by virtue of the extraterritorial provisions in Schedule 4. This defence would apply to those carrying out the functions of UKIC and the Armed Forces in supporting activities overseas; that is, it will be a defence for a person to show that their act was necessary for the proper exercise of a function of an intelligence service or the Armed Forces. I will shortly go into more detail on the Armed Forces, at the behest of my noble friend from the Ministry of Defence, so please bear with me.

As noble Lords will be aware, the current reasonableness defence in Section 50 of the SCA would cover encouraging or assisting crimes domestically. We believe that it is right that this new defence is limited to where UKIC and the Armed Forces are supporting activity overseas. The territorial applicability of this measure is identical to that of the original clause. This is because the acute issue caused by the SCA offences, and therefore justification for this amendment as presented to the ISC, relates to support to key international partners’ activity overseas.

The defence provides UKIC and the Armed Forces with more reassurance than the current reasonableness defence, in that the defence is based around the proper exercise of the functions of UKIC and the Armed Forces, rather than the more subjective requirement of proving “reasonableness”. We must remember that the tasks we ask these individuals to undertake, and the operational arrangements we have with our international partners, are ever more complex.

We still do not think it is appropriate that a potentially junior member of the agency or Armed Forces should be faced with the legal burden of proving that their activities were reasonable. Instead, the new defence imposes an evidential burden of proof on the individual to raise the defence. Once the defence has been raised, the legal burden would be on the prosecution to disprove it. It must be remembered that this amendment does not change the position for an individual who acts outside of those proper functions; they would remain liable for any wrongful acts. I believe that this strikes the right balance of providing appropriate protection while also having a clear route by which there can be proper legal consideration of any potential wrongdoing.

Noble Lords will now see an explicit responsibility on the heads of agencies and the Defence Council to ensure that their respective organisations have in place arrangements designed to ensure that acts of a member of their service that would otherwise be an offence under the SCA by virtue of Schedule 4 are necessary for the proper exercise of their functions. To be clear, that means that an act could not be considered within the “proper” exercise of a function of an intelligence service if it does not comply with the “arrangements” set by the relevant heads or the Defence Council.

In addition, the Government propose that there is ministerial responsibility for these arrangements; that is, the relevant Secretary of State must consider that the arrangements put in place by the heads of agencies and the Defence Council are satisfactory. Nothing in this proposed defence will change the current compliance and oversight arrangements, such as the Fulford principles and Overseas Security and Justice Assistance guidance, which is monitored by the Investigatory Powers Commissioner’s Office—

[Lord Beith (LD)]

On that point, there is a world of difference between the necessary task of a Minister satisfying himself that adequate arrangements exist within an agency—indeed, such arrangements have existed for years—and the Secretary of State being made aware of a potential action and required to approve of it, or prevent it from happening, once he has considered the major political implications it might have. If the system does not extend to that role in relation to individual actions, it will be severely deficient.

[Lord Sharpe of Epsom (Con)]

I will turn to ministerial responsibility if the noble Lord will bear with me. In fact, I am going to do it now. The Government propose that there is ministerial responsibility for these arrangements; that is, the relevant Secretary of State must consider that the arrangements put in place by the heads of agencies and the Defence Council are satisfactory. I have already said this, but there is more to say on the subject. Nothing in this proposed defence will change the current compliance and oversight arrangements, such as the Fulford principles and Overseas Security and Justice Assistance guidance, which is monitored by the Investigatory Powers Commissioner’s Office—IPCO—via regular inspections and regular scrutiny by the ISC. I will return to this in a second.

I now turn directly to the amendments tabled by the noble Lords, Lord Beith, Lord Anderson and Lord Carlile, which, in short, seek to do two related things: to restrict the activities covered by the defence for the MoD to those which are related to intelligence activities, and—in the case of the amendment of the noble Lord, Lord Beith—to restrict the defence to apply to the MoD only where it acts for UKIC.

I will now speak on behalf of the MoD and my noble friend Lady Goldie, who has sat through this debate. With reference to the Armed Forces, the amendment will enable more effective co-operation with our international partners. It will address operational challenges and remove the personal risk that trusted and dedicated individuals face for carrying out their proper official duties, whether as serving members of our Armed Forces or as intelligence officers within our UK intelligence community.

The amendment is principally concerned with addressing risks arising within an intelligence-sharing context, a primary activity of UKIC. What is perhaps less understood is the criticality of intelligence activity from an Armed Forces perspective, with intelligence sharing often forming a necessary part of wider co-operation with our allies. I assure noble Lords that the amendment is about clarifying the law and removing liabilities which sit onerously with individuals going about their lawful and legitimate duties.

The UK is committed to the rule of law and we would never collaborate or share information with a foreign partner with the intention of supporting unlawful activity overseas, but the SCA amendment does not change that. All aspects of the activities of our Armed Forces will continue to be bound by the relevant law of England and Wales and of international law. There will be no change to the UK’s international legal obligations, including under the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and on assisting an unlawful act under Article 16 of the International Law Commission’s Responsibility of States for Internationally Wrongful Acts.

This defence will apply only where activity is necessary for the proper exercise of a function of the Armed Forces, and any individual found to be working outside the proper functions of the Armed Forces will remain liable for those actions. Actions not in compliance with the MoD’s robust internal policies and processes, again such as the Fulford principles and the OSJA Guidance, which are designed to ensure that MoD officers do not knowingly support unlawful activity, would not be in the proper exercise of a function of the Armed Forces.

I turn to the amendment tabled by the noble Lord, Lord Anderson. My noble friend Lady Goldie thanks him for the opportunity to discuss this with him. I understand that, because of a technical omission, he may not move his amendment tonight, but my noble friend Lady Goldie has—

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[Lord Sharpe of Epsom (Con)]

My Lords, I go back to what I said to the noble Lord in previous debates on this subject: the activity is restricted to intelligence activity, and as such I believe that the amendment is eminently sensible. However, we cannot accept this current amendment, but the Government will take a very careful look at this apparent gap and will consider the best way to close it.

[Lord Beith (LD)]

My Lords, that was a very interesting final remark from the Minister. I hope it will prove to have some substance, otherwise we are left with legislation that I do not think can be interpreted in the way the Minister describes it. I am quite puzzled, but he has shown willing, so I hope he pursues it. I express my gratitude, particularly to the Minister for the Armed Forces for the care she has applied to this matter—we had a very detailed discussion with her and her officials—and to the Minister who is answering this debate, particularly for the amendment that gets rid of the awful Clause 30 and gives us something that is certainly a significant improvement in its place.

I still have perhaps three areas of particular anxiety in addition to the definitional point that the noble Lord, Lord Anderson, raised about “in support of intelligence”. One is the very fact that we are changing the law about what happens on a battlefield and what happens in a counterinsurgency, apart from the context of the discussion about the use of our Armed Forces in the non-intelligence world. This does not seem to be a good way to legislate. There would have been people involved in and engaged with the legislation if that is what it had been generally about, if it had been applying to the Armed Forces, but that is a rather unsatisfactory feature and not one that we can change at this stage.

I found what the noble Lord, Lord West, said about what happened between the ISC and the Home Office profoundly worrying. It really was disgraceful. I trust the accuracy of what he said and I am sure it can all be correctly documented, but that really is no way to deal with intelligence. Accountability for intelligence in the democratic context has always been quite difficult. The ISC has been developed over decades to provide a good mechanism to deal with that. When it is treated in that manner, it really is very serious and I hope the Minister has recognised that and is determined to go back to the office and really make a noise about this. It is just not acceptable and should not be acceptable to either House of Parliament.

My final worry, which I think can be resolved without statutory means but certainly remains, is the ambiguity about whether Secretaries of State will authorise significant measures that could fall within the scope of the new clause. In my view, it is an essential part of the system that agencies have the backing of a senior Minister when they engage in particularly difficult tasks, and that senior Ministers know what they are doing and are aware of what is being undertaken. If there is a political or legal risk, then Ministers should be aware of it. It is one thing to have a very good internal system—and I believe the agencies have good internal systems now—but quite another to be sure that, at the highest political level, there is both knowledge and authorisation. Frankly, if I were the head of an agency, which I have never been, my instinct would be to try to set up such a system, because otherwise the agency will always get the blame, even when the Secretary of State should have taken responsibility and might even have come to a different conclusion. I think that, over time, we need to make sure that Secretaries of State are sufficiently closely associated, otherwise they drift apart and agencies live in a world of their own. That is not how it should operate. But that, as I say, could be resolved without further legislation if there is determination to resolve it. On that basis, I beg leave to withdraw the amendment.

Amendment 65 withdrawn.

Public Order Bill

Lord Beith Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

[The Lord Bishop of Manchester]

My Lords, I shall speak very briefly in support of the amendment to remove Clauses 1 and 2 that my right reverend friend the Bishop of Bristol signed. She regrets that she cannot be in her place today. As the noble Baroness, Lady Chakrabarti, said, establishing new offences of locking on and being equipped for locking on have very significant consequences for the right to protest. A few days ago I got an email from a retired vicar in my diocese. He wrote to tell me he is awaiting sentencing: he has just been convicted of obstruction by gluing himself to a road during a protest by an environmental group. The judge has warned him and his co-defendants that they may go to prison. I cite his case not to approve of his actions—which I fear may serve to reduce public support for his cause rather than increase it—but because it clearly indicates to me that the police already have sufficient powers to intervene against those who are taking an active part in such protests. Anything extra, as the noble Lord, Lord Paddick, has just so eloquently illustrated, is superfluous.

[Lord Beith (LD)]

I would like to add to my noble friend’s very precise definition of the drawbacks of this clause. In more general terms, its provisions will lead to situations in which people do not know they are breaking the law and are then accused by the police of doing so. I should have said they do not know they might be breaking the law because of its broad terms. That is a very unhelpful situation should it arise; in my submission, it will arise quite frequently. The sorts of things that are covered by this provision are everyday household items—as my noble friend pointed out—such as glue or a padlock. I referred in earlier debates to the practice of young people of placing a padlock on a bridge—as a sign that they are eternally joined with each other—and throwing the key into the river so that it cannot be taken off again. Imagine the conversation you would have with a police officer when you are trying to explain those circumstances, and he thinks you are on your way to a protest.

Public Order Bill

Lord Beith Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

Noble Lords understandably have very strongly held opinions about everything that we are discussing tonight. We may disagree on whether a woman should have the right to choose to have an abortion. I know, though, that we all care about free speech and the right of people to be able to express their views, whether we agree with them or not. We must also ensure that women can safely and freely access their legal right to health services. I hope your Lordships will agree that Amendment 45 is a considered and reasonable solution to the issues that have been raised and will support it when it is pressed to a vote later.

[Lord Beith (LD)]

My Lords, I have viewed this issue from a civil liberties standpoint, and that left me rather alarmed at the wording of Clause 9 as it came to us from the House of Commons. It clearly indicated a willingness to extend our laws in ways we have never contemplated before, to the expression of opinion or to influencing people. I was profoundly unhappy with all that wording and not entirely convinced that the matter could not be dealt with using the existing law—as I remember from often quoted cases, it has been. It raised the worry in my mind of where else these principles could be applied—for example, to vaccination clinics if they were picketed by anti-vax people, or to scientific laboratories where animal experimentation is carried out and staff are very fearful of their names and addresses becoming known and of walking into work. These are dangerous things to import into our law but potentially attractive in a number of other situations.

After we tabled amendments in Committee, I met the Minister and Home Office civil servants. I am grateful for that meeting, as it really showed that work and effort was being put into trying to find a clause which was compliant with the ECHR, and which met the genuine concerns of those who brought it forward in the Commons. I am glad to say that the amendment in the name of the noble Baroness, Lady Sugg, has met a number of my concerns. It obviously could not meet my concern that we might have been able to do this by existing law, but it has more clearly directed the focus of the Bill to deal with the perceived harm, which is the intimidation, harassment or unfair pressure. It has not sought to hang measures which go far beyond what can be reasonably justified in a free society on to that definition.

A number of things that the original clause had in it are not to be found in the amendment proposed by the noble Baroness, Lady Sugg. Within the amendment, it is no longer a criminal offence to express an opinion—a concept that absolutely horrified me, and that no one could seriously suggest I would ever vote for given my political background and views. Nor does that amendment interfere with people’s liberties as to what they do in a private house, for example, as it explicitly makes an exception in that respect; nor does it impede directly the work that goes on inside churches if they suddenly find themselves inside a zone because the zone has been brought around them. One of the oddities of this legislation is that the shape of the zone is statutory and cannot take into account any particular local considerations.

The original clause would, in my view, have actually precluded discussions between staff who were arguing whether a late abortion was justified in particular circumstances. The clause was so wide and so dangerous and, again, the things I have listed have been addressed in the amendment in the name of the noble Baroness, Lady Sugg. What was included also was the case of accompanying persons who might be having a genuine discussion with the woman concerned—maybe her sister or her partner—and perhaps taking different views in the discussion that is taking place within that area. That accompanying person provision has been dealt with, and I am glad that it has been. I am sympathetic to the amendments in the name of the noble Baroness, Lady Morrissey, but my main concern is that, when this goes back to the Commons, it goes back in a form in which it is not likely to be defeated. I think we are approaching that point. I would have preferred to have dealt with this in another way and for a review to take place, but we are where we are. It is a difficult judgment for Members of your Lordships’ House—or, at least, I think it is difficult. In my view, the work that has been done to propose this new clause has gone a long way to meet the concerns once you accept that something has to be done. In time, it may be seen to have some defects which would need further remedying, but that has influenced my approach to it.

[Lord Weir of Ballyholme (DUP)]

My Lords, I rise to support Amendments 41, 42, 43 and 44. Like others, I have strong views on the subject of abortion; I suspect I am in a minority position within both this House and this country, but, as a number of noble Lords have said, today’s debate is not about abortion and what position any of us hold on that subject. That is a debate for another day.

I think there are two key points in relation to this piece of legislation which this group of amendments goes to: first, what is appropriate and proportionate in terms of the law, and, secondly, how do we protect everyone’s rights? I agree particularly with Amendment 44 from the noble Lord, Lord Farmer, as it deals with some of the very concerning wording in Clause 9. Also, it is surely a time for a level of pause for thought because, as the noble Lord, Lord Farmer, indicated, thankfully it is the case that we are not in the United States.

The current law regarding abortion has been in place for most of this country for longer than I have been on this earth—just about, if any of you want to guess my age in that regard. It is a question as to why this is suddenly an emergency-type situation. Are we seeing a scale of problems on the ground for which there is not an existing law? I would say that is not the case. We do need to have thoughtful law as to appropriate levels of protection for everyone, and therefore I am very much minded towards the proposal which says “Let us examine what actually the facts are, rather than rushing through a piece of legislation and indeed a clause which applies a particular draconian solution to that”.

On the issue of how we protect everyone’s rights, there are elements within Clause 9 that I think no one in this House could ultimately disagree with. If we are saying, for example, that we want to protect anybody, in any set of circumstances, from intimidation or threats, in every situation, I think all of us would say “Yes, protections need to be there”. Similarly, we would want to protect people from harassment, or from being impeded or blocked from something. Whether it is at a clinic or in any set of circumstances, I think everyone in this House would agree that those protections need to be there. I would question the necessity of this clause on those grounds, because a range of laws already provide that level of protection against threats and intimidation.

Leaving that aside, if that was all that was in Clause 9, there would not be so much of a problem. I appreciate that Amendment 45 softened the language in some regards in relation to this, but according to some of the aspects that are within Clause 9 at present, we are going to criminalise anyone who

“advises or persuades”

or

“attempts to advise or persuade”,

or—perhaps most worryingly of all—

“otherwise expresses opinion”.

If Clause 9 goes through unchanged, we are making an expression of opinion a criminal offence.

The alternative wording in Amendment 45 talks about making it a criminal offence to influence, but surely at the heart of the concept of freedom of speech, and the value of democracy, is the peaceful way in which people try to persuade others of their point of view? It should be a battle of ideas. I indicated clearly that, where that goes beyond the art of persuasion towards any level of threat or intimidation, it is unacceptable and should be criminal, but if we are criminalising expressions of opinion or influence, that is fundamentally wrong.

As I indicated, I have a different view from many within this Chamber on the issue of abortion. But, if we are to defend freedom of speech and the freedom to protest, it is very easy for any of us to stand up and say that we believe in freedom of speech on an issue that we agree with, and it is very easy for any of us to stand up in this Chamber or elsewhere and say that we support the right to protest whenever we agree with that protest. But surely the test within any free society is about defending the rights of people who hold opinions that we disagree with—views which we would find unacceptable.