Investigatory Powers (Amendment) Bill [HL]

Debate between Lord Carlile of Berriew and Lord Anderson of Ipswich

Report stage
Tuesday 23rd January 2024 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, it is a pleasure to follow such a strong and powerful speech, and to agree with so much of it. I will speak to Amendment 40, which is based on my report of last year and repeats an amendment that I tabled in Committee and that was introduced there by the noble and learned Lord, Lord Hope of Craighead, my co-signatory then as now. The amendment has two objectives. The first is to ensure that the third part of the triple lock is not too easily wrested away from the Prime Minister.

We are often told that someone is unavailable when they are travelling, are in a meeting, have stepped out of the office or have simply asked not to be disturbed for the afternoon. Indeed, the noble Baroness, Lady Manningham-Buller, used the word in the first of today’s debates on the Bill, albeit in a different context, to describe the status of a Minister, as she put it, during the night or over the weekend. Nobody suggests that reasons such as these should be sufficient for the third lock of the triple lock to be handed to someone else. Unavailable is simply the wrong word. The public interest, in clear and accessible laws, requires us to use the right word. Using the wrong word and then glossing it by guidance or Statements from the Dispatch Box is not a good alternative. I suggest that the right word is “unable”, and I am delighted that the Intelligence and Security Committee and the noble Lord, Lord West, had the same thought in their Amendments 39 and 43.

The second objective of Amendment 40 is to allow provision to be made for the situation in which a Prime Minister is available to apply the third lock but might be considered, or consider himself, unable to do so by reason of conflict of interest. This could be the case if the communications in question were addressed to or from a Prime Minister’s sibling in Parliament. I see that the noble Lord, Lord Johnson of Marylebone, has just left his place. It could be the case if those communications were addressed to or from the Prime Minister himself or herself. Nobody doubts that the agencies currently have the power, and will continue to have the power after the Bill is passed, to request a Prime Minister’s communications to be intercepted. Nor is there any mystery about what will happen if such a request is ever made. It will be put to a Secretary of State for authorisation—presumably the Home Secretary or the Foreign Secretary, depending on the context. If that authorisation is granted, a judicial commissioner—presumably the most senior of them, the Investigatory Powers Commissioner—will be asked to approve it. So far, so uncontroversial.

The issue that arises is what should happen next. Under Clause 21, the request must be put before the Prime Minister unless it happens that he is ill or away from secure communications, in which case the third lock can be passed on to another Secretary of State and the Prime Minister’s communications can be intercepted without his knowledge. A precedent for the delegation of this most sensitive of powers already exists; indeed, it exists in the text of this Bill. But what if the Prime Minister is available? In such a case, the third lock must, under Clause 21, be left in the hands of the Prime Minister himself. He is statutorily barred from passing it on to anyone else, even if he—or, let us say, the Cabinet Secretary on his behalf—took the view that he is unable to take the decision for reasons of conflict of interest. That is notwithstanding the fact that conflict of interest, as the noble and learned Lord, Lord Hope, said in Committee,

“surely is a reason why a Prime Minister, although available, should not exercise the power”.—[Official Report, 13/12/23; col. 1902.]

That principle is so important that perhaps the undoubted practical difficulties to which the noble Lord, Lord West, referred need to take second place to it.

The triple lock was designed to ensure that the communications of parliamentarians could be intercepted only with the consent of the Prime Minister. It was not designed to give the Prime Minister himself an effective veto over the interception of his own communications. Immunities or quasi-immunities of that kind might have their place in some presidential systems, but they seem out of place in a parliamentary system in which the Prime Minister is primus inter pares. However, just such an immunity is perpetuated by Clause 21, and the amendments on this theme from the noble Lord, Lord West, which I otherwise support, do not remedy the situation.

Amendment 40 does not prescribe a detailed solution to this sensitive problem, but it leaves the door open to one. My concern in tabling it was to ensure that we do not legislate in such a way as to prevent a solution being found to the situation in which a conflict of interest arises in circumstances that would be vanishingly rare but that, if they ever did arise, could be of the highest importance to our national security.

I have reflected on what could be done without Amendment 40 if there were serious grounds to intercept a Prime Minister’s personal communications because one of his correspondents or the Prime Minister himself were under suspicion. Perhaps a possible answer would be to wait until the Prime Minister was out of reach of secure communications and then proceed with the interception if the approval of a judicial commissioner and two Secretaries of State could be secured. That is not a very principled or satisfactory answer to the issue of conflict of interest, but it is permitted by Clause 21 and might still be better than a prime ministerial veto. I should say that everything I have said about Clause 21 and interception applies also to equipment interference under Clause 22.

I hoped to generate a debate on this topic by tabling this amendment and, thanks to your Lordships’ indulgence, I have had a chance to do so. I would like to have invited the House of Commons to debate it too, but without the numbers to press this amendment to a vote there will be no such invitation, at least by this route. None the less, I am grateful to the ministerial team and to their shadows in your Lordships’ House and the Commons for discussing this issue with me in a degree of detail. Neither team suggested to me that the prospect of intelligence interest in the communications of a Prime Minister was too fanciful a prospect to be worth considering, although it may be that the two teams have different examples in mind of why it is not. However, I detected a developing sense on both Front Benches that the conflict issue might be one for the “too difficult” box.

I will not divide the House, but I close with these questions to the Minister: is it the Government’s position that the Prime Minister, uniquely among members of the Government, should have a veto over the interception of his own communications in circumstances in which the normal authorisation and approval criteria have been met? If so, why? If not, what answer do they have to the issue of conflict of interest?

[Lord Carlile of Berriew (CB)]

My Lords, it is a pleasure to follow that brilliant exposition by my noble friend of the problem that he tries to deal with in Amendment 40. After yesterday’s slightly more tense proceedings in this House, I have had a pleasant afternoon supporting the Government. In that spirit, I wish briefly to add some words to what has been said by my noble friend.

The notion of conflicts of interest is not a difficult one. Lawyers dealing with extremely complex cases have to deal with that problem more or less every day. It is something with which we are familiar. The notion that a Prime Minister could face a conflict of interest is not ludicrous. If we just look at the way in which proceedings have proceeded so far in the Covid inquiry, for example, we know that the most intense examination is now given to past communications. We are in a different age from the era when Prime Ministers did not use social networking. We are coming to a period when there will be a Prime Minister whose youthful exchanges with his or her friends will be available to public inquiries in the years to come. It is easy to imagine circumstances in which conflicts of interest might occur. For example, there could be conflicts of interest arising from kinship, as my noble friend Lord Anderson mentioned. Conflicts of interest could arise from earlier employment or from books and articles that person has written. We recently had a Prime Minister who has written quite a lot of interesting books but certainly provoked some interest of another kind when he was Prime Minister.

I urge the Minister not to brush aside this issue of conflict of interest, because it could happen, and it is better to anticipate these things than to leave them till later. I ask the Government to take seriously Amendment 40, for the reasons that have been given by the noble Lord, Lord Anderson, so we can return to this matter before the Bill is passed.

National Security Bill

Debate between Lord Carlile of Berriew and Lord Anderson of Ipswich

Report stage
Wednesday 1st March 2023 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, I will speak to Amendment 68 on the supplementary sheet in my name and that of the noble Lord, Lord Carlile. The immunity that preceded this Clause 30 may have been doomed from the moment the noble Baroness, Lady Manningham-Buller, began her speech in Committee by saying that

“it seems to me that it is wrong in principle for members of the security and intelligence services to have immunity from the law”.—[Official Report, 11/1/23; col. 1452.]

She was right. That was just one reminder of how fortunate we are in the calibre and integrity of our intelligence chiefs, including those who have found their way into your Lordships’ House.

We now have a further statutory defence which would bite on encouragement or assistance of foreign crimes, which, although unreasonable and thus outside the scope of the existing Section 50 defence, is none the less considered necessary for the proper exercise of a function of an intelligence service or the armed services. A defence is, as has been said, in any view more acceptable than an immunity. But the likely marginal gain of this one seems limited, and its purpose is obscured.

So I ask the Minister in this new context to deal with the issue which, as we have just heard, the ISC did not look at. Why is this defence so broad in its application to the Armed Forces? The Minister indicated in Committee that the immunity was

“confined very much to the intelligence support by the Armed Forces”.—[Official Report, 11/1/23; col. 1458.]

We all know that the Armed Forces sometimes deploy in support of intelligence work overseas by the agencies. We also know that the Intelligence Corps has its own abilities for the gathering and analysis of intelligence. That is captured by my amendment, though perhaps not by that of the noble Lord, Lord Beith.

What justification is there for extending this new defence to activities of the Armed Forces that are not intelligence related? Exceptions to the rule of law should be tightly controlled. Why should service personnel be exempt from the same law that applies to the rest of us outside the special circumstances of intelligence? From the debate in Committee, I understood those were the only circumstances thought relevant. I hope the Minster will be able either to explain this or to accept my amendment to his amendment. In the light of what we have just heard from the noble Lord, Lord West, the Minister also has a great deal of explaining to do in relation to the important points that he raised.

I would like to make two comments on Amendment 67, in the name of the noble Lord, Lord West. I have two reservations about it. Necessary and proportionate is the test, and I would have thought that conduct that is necessary and proportionate is also reasonable, and therefore would benefit in any event from the Section 50 defence. I just wonder how much this really adds.

Secondly—I defer to more experienced criminal lawyers than me, of whom there are at least two in the House—the concept of proportionality could be quite a complicated one to explain to a jury. I am not sure I can think of any other criminal offence in which that concept exists. Proportionality in law, as I recall, is a four-part test, explained by the Supreme Court in the Bank Mellat case. That might rather complicate the route to a verdict. However, those are technical points.

The objections raised by the noble Lord, Lord West, are very serious. It is in the interests of the agencies to co-operate to the very fullest extent with the ISC. It is in the interests of all the rest of us, and I am quite sure it is in the interest of the Home Office as well. It is very distressing to hear that that did not happen in this case. So, in view of the serious points that the noble Lord made, and despite my rather lukewarm feelings about his amendment, I shall listen very carefully to what the Minister has to say in response. I sense that perhaps this is a discussion that will need to continue.

[Lord Carlile of Berriew (CB)]

My Lords, I rise briefly, I hope, to say that, first, I agree with everything that my noble friend just said and will not repeat it. Secondly, I regard Amendment 66 to be a considerable improvement on what we were faced with before we started the Bill. Indeed, it is not a provision that provides immunity, it is evidence-based, it has a strong public interest element, but it is not perfect. One of the complaints I have received—only anecdotally but from authoritative sources—is a lack of understanding, among fairly senior public servants, of why the Secretary of State no longer carries any responsibility for the sort of decisions referred to in Amendment 66. The requirement in its subsection (5) that the Defence Council must ensure that the Armed Forces must have various arrangements in place is welcome as far as it goes, by why are Secretaries of State being eased out of any level of responsibility for decisions of this kind? I am not sure there is total confidence, among the kind of officials I have referred to, in the Defence Council to be as definable a source of responsibility as the Secretary of State.

National Security Bill

Debate between Lord Carlile of Berriew and Lord Anderson of Ipswich

Committee stage
Wednesday 21st December 2022 Lords Chamber

[Lord Carlile of Berriew (CB)]

I thank my noble friend for that correction—yes, it was Ponting, not Westland. I apologise; I had the wrong incident in my mind.

My fourth point is about the life sentence contained in subsection (3) of the proposed new clause. I simply do not like tautologies such as “manifestly unjust” in criminal sentencing provisions. In my view, if there is to be a provision of this kind—we have been told that it has been drafted very carefully—it should not contain tautologous phrases like that. “Unjust” will do very nicely, as far as I am concerned.

My fifth point is about the authority for such a prosecution. The noble Lord, Lord Bethell, referred to the involvement, presumably, of the Director of Public Prosecutions in authorising such a prosecution. However, as drafted, this proposed new clause would permit a private prosecution, which could be stopped by the Director of Public Prosecutions only in certain circumstances. Private prosecutions—often justifiably—are becoming more fashionable and frequent, particularly in fraud cases which the authorities are not able to undertake for reasons of scale and cost. Those are perfectly defensible private prosecutions, as results in the courts have shown. However, the use of private prosecutions for oblique motives in this context seems to be a very realistic possibility. I therefore urge that if we are to have a revised treason offence, it should be prosecutable only with the authority of the Attorney-General.

Finally, the House should pay very close attention—I would say this, as a former Independent Reviewer of Terrorism Legislation—to the views of Jonathan Hall KC, who has considered this matter in detail and with whom I agree. I also simply pose a rhetorical question: who seriously thinks that ISIS would be discouraged in any way whatsoever by the introduction of this clause? The Government are right in the decision they have taken, and I hope that they will stick to their view.

[Lord Anderson of Ipswich (CB)]

My Lords, it is a pleasure to follow two such clear and thought-provoking speeches. When this House has debated treason offences in recent years, it has generally been in the context of lending support to terrorist groups, particularly in foreign theatres such as Iraq and Syria. It has never seemed to me that there is much point in bringing treason into this. The bristling arsenal of counterterrorism law is already equal to any conceivable type of assistance to terrorism or adherence to a terrorist cause, whatever the nationality of the subject and regardless of the state, if any, against which terrorism is directed. As the noble Lord, Lord Bethell, put it, the boundaries are closely drawn and abundantly clear.

Prosecutions for treason in this area would certainly have the potential to raise the emotional temperature, both for us and for the terrorists themselves. I am against such prosecutions because they are exactly what the terrorists want: to elevate their squalid and immoral behaviour into some sort of noble cause. I remember this point being well made from the Government Front Bench by the noble Baroness, Lady Williams, who is not in her place, shortly after I joined your Lordships’ House in 2018. She said that

“prosecuting terrorists for treason would risk giving their actions a credibility … glamour and political status that they do not deserve. It would indicate that we recognised terrorists as being in some formal sense at war with the state, rather than merely regarding them as dangerous criminals.”—[Official Report, 31/10/2018; col. 1382.]

No doubt this is why militant republicans in Northern Ireland were not given the platform of treason trials but rather prosecuted for murder, firearms and explosives offences and, more recently, catch-all offences such as the preparation of terrorist acts, which carries a maximum sentence of life imprisonment.

If we are looking for simple and effective ways to prosecute foreign terrorist fighters—particularly if they are suspected to have been active in a country where assistance from the authorities in gathering evidence is unlikely to be forthcoming—we would do better to concentrate on the offence of entering or remaining in a designated area, which was pioneered in Denmark and Australia, recommended for consideration in one of my own reports as independent reviewer, and introduced by the Counter-Terrorism and Border Security Act 2019. However, I believe that no terrorist hotspot has ever been designated under that Act, so the provision remains unused.

This amendment moves the debate on, as the noble Lord, Lord Bethell, explained, in that it relates to aiding not terrorism, but hostile foreign powers. The clause would target those who assist the Governments of countries with which we are at war or which wish to attack the UK by unspecified means including, I assume, cyberattacks on our national infrastructure. Unlike its Australian equivalent, which was introduced after 9/11 but is still to be used for the first time, it would relate only to hostile state activity—indeed, hostile state belligerence.

I look forward to hearing the Minister’s view on whether there is a gap in our law regarding assistance to the enemy—or will be one once the Bill, including Clauses 3 and 13, has become law. There might be a gap: I believe that Canada and New Zealand have their own laws against assisting the enemy, though I am not very familiar with them. Our own Foreign Enlistment Act 1870, introduced to restrict mercenary activity in the wake of the American Civil War and Franco-Prussian War, may not be as antiquated as the Treason Act 1351, but it was last used in the aftermath of the 1896 Jameson raid. It should certainly be reviewed if we are thinking of legislating in this area.

As we heard from the noble Lord, Lord Bethell, advocates of a treason law are often motivated by a sense that betrayal—in the words of the Policy Exchange report to which he referred, which was co-authored by the current Security Minister—

“is a specific crime against society and one that deserves punishment.”

I entirely understand that feeling, but betrayal is a regrettable fact of life, and one which we do not consider deserves special punishment in other contexts. The child who kills his parents betrays the family bond, but parricide and matricide are simply types of murder. Those who betray the most sacred bond of all—that of matrimony—may be called adulterers but are not criminalised at all. Can it be said that the bond of citizenship is of a wholly different nature, such that to break it must attract the most severe consequences? I think that is a difficult argument to make, particularly in circumstances where it is now so easy for the Home Secretary to break that bond by depriving people of their citizenship whenever she considers it

“conducive to the public good”.

Incidentally, that is something I hope we will look at some day: in the 15 years to 2020, there were 175 such deprivations on national security grounds alone.

This amendment, interestingly enough, does not follow the Policy Exchange model. Like its enacted but unused Australian equivalent, it has nothing whatever to say about betrayal. It applies to everyone, without limitation to British citizens or even to those who have been given leave to enter and remain in the United Kingdom. I assume it is not intended to apply extraterritorially, or it would criminalise the soldiers of foreign armies, contrary to the principle of combat immunity. But if the amendment is motivated by the desire to punish the betrayal of those who owe allegiance to the Crown, it does not succeed in that aim. Indeed, it is difficult to see why it flies under the banner of treason at all.

My position is simple. If there is a gap in the law as regards material assistance to the enemy, I would be in favour of filling it with an offence punishable by life imprisonment. That offence would be directed to our protection and would therefore apply to all persons within the jurisdiction. Betrayal of a bond of allegiance to the state would be an aggravating factor but not the basis for a separate treason offence, which is needed in neither the terrorism context nor the hostile state context.