National Security Bill

Debate between Lord Evans of Weardale and Lord Anderson of Ipswich

Committee stage
Wednesday 11th January 2023 Lords Chamber

[Lord Evans of Weardale (CB)]

My Lords, I listened with great interest to the argument made by the noble Lord, Lord Purvis of Tweed. I wonder whether I could ask the Minister, when he replies, to clarify the way in which the liabilities and immunities under this clause might impact, separately, the members of the intelligence services and the Armed Forces on the one hand, and, on the other hand, covert human intelligence sources, sometimes known as “agents” of the intelligence services, whose activities are authorised, I believe, under separate legislation. It does seem to me that it is very important that we should understand those two separate categories of action, and the way in which the proposed legislation would impact on those, because we are talking there about different legal regimes—although I speak as a lawyer and therefore I am willing to be corrected.

[Lord Anderson of Ipswich (CB)]

My Lords, that sounds right to me. Part 2 of the Serious Crime Act 2007 abolished the common-law offence of incitement and substituted three specific offences of encouraging and assisting serious crime. Schedule 4 expands the reach of Part 2 to the encouragement and assistance of crimes which are committed, or intended to be committed, abroad. Its provisions have been described by the Court of Appeal as “tortuous”. Professor David Ormerod, the former Law Commissioner, has written of its “incoherence” and “excessive breadth of liability”. The noble and learned Lord, Lord Judge, probably has a full and comprehensive understanding of it, but few lawyers and judges do, and even fewer can explain it to juries. It has, accordingly, rarely been used.

Intelligence officials—from what they have told the noble Lord, Lord Carlile, and me—share in the general bafflement. They cite the risk that they will be prosecuted for acts which are judged, in retrospect, to have been capable of encouraging or assisting the commission of an offence by a foreign intelligence partner. They take only limited comfort from the defence of acting reasonably in Section 50, and from the public interest test applied by prosecutors. The uncertainty, they say, prompts them to act with caution so significant as to have an operational impact.

Clause 28 proposes to address the situation by granting immunity from prosecution, in transnational cases, to those who are behaving in a way that is necessary to

“the proper exercise of any function”

of MI5, MI6 or GCHQ. No clue is given in the Bill as to how this test is to be applied. Compliance with the principles relating to the passing and receipt of intelligence relating to detainees, to which reference has just been made, would doubtless provide the answer in many cases but, as has also been said, there will be others that fall outside their scope.

The same broad immunity would be granted to members of the Armed Forces, not only for activities in support of the intelligence agencies but for any activities which constitute a “proper exercise” of the functions of the Armed Forces—whatever that means. No one has so far explained to me why such a broad immunity for the Armed Forces is necessary, even in circumstances with no intelligence connection. I hope the Minister will be in a position to do so.

I understand that the Intelligence and Security Committee of Parliament has been invited to scrutinise the justification for the claimed special treatment. I expect that it will have been shown operational examples that the noble Lord, Lord Carlile, and I, during our relatively short visit, were not. I hope that, before the Bill advances further, the committee will tell us what, if anything, it has concluded and whether those conclusions are confined to the agencies or whether they extend to the Armed Forces as well. For my part, I have general sympathy with the concerns expressed to me by agency lawyers—who are, in my experience, highly conscientious people—but, like the noble Lord, Lord Purvis, I would feel happier if I knew that an independent person or body, such as the Intelligence and Security Committee or the Independent Reviewer of Terrorism Legislation, had examined the secret materials and pronounced confidently on whether the concerns expressed to us are justified across the full range of circumstances in which they are being advanced.

However, let us assume, at least for the purposes of this debate, that there is a real problem of unquantifiable legal risk translating into excessive caution and reduced operational efficiency. Is the solution to place the agencies and the Armed Forces above the law? The question surely needs only to be asked for the answer to be apparent. We admire our intelligence and military personnel, with very good reason, but, be they never so high, the law in a democracy must always be above them. Modern intelligence co-operation means dealing with a wide range of international partners, some of them less scrupulous than others. Let there be no doubt that the crimes that some of them are capable of committing include some of the most serious of all: torture and unlawful killing. To remove all legal accountability for assisting and encouraging such acts, in particular by the sharing of intelligence, would send an unfortunate message to any person who might be tempted to cross the line. It would also send an appalling signal to the rest of the world.

Fortunately, two off-the-shelf solutions are available, each of them more palatable than Clause 28. The first is my Amendment 64, supported by the noble Lord, Lord Carlile, and the noble and learned Lord, Lord Judge. This would add activities caught by Part 2 to the scheme established by Section 7 of the Intelligence Services Act 1994—sometimes known as the “James Bond clause”, which the noble Lord, Lord Purvis, described, although it is certainly no simple immunity. Subject to further study of what he said, I do not think it does the trick without our amendment. Section 7 provides that those operating abroad, and in limited circumstances within the United Kingdom, are not liable for what would otherwise be crimes under UK law, but only if the commission of such crimes falls within the scope of an authorisation issued by the Secretary of State on tightly defined statutory grounds. Those authorisations, and the agencies’ compliance with them, are carefully scrutinised by the senior judges of the Investigatory Powers Commissioner’s Office—the successors of the noble and learned Lords, Lord Judge and Lord Brown of Eaton-under-Heywood—with the help of their skilled investigative teams. IPCO publishes its conclusions in its annual report, which demonstrates its exacting approach. The Investigatory Powers Commissioner, Sir Brian Leveson, would no doubt notify the Director of Public Prosecutions were it to find any illegality worthy of further investigation.

In this way, the requirements of the rule of law are maintained, and with three other advantages. First, and of some importance, IPCO scrutiny makes it more likely that any wrongdoing will actually come to light. Secondly, the agencies would not be exposed to police or prosecutorial investigations, unless, of course, they go beyond the scope of their authorisations. Thirdly, for any act within the scope of the authorisation the agencies have political cover from the Secretary of State, who would be unable to hang them out to dry. There would be some value in each of those matters, I would have thought, for the agencies themselves.

Like the existing Section 7, my solution would also apply to the Armed Forces to the extent that their actions are necessary for the proper discharge of a function of the security and intelligence agencies. Perhaps that limited application is all that the Armed Forces actually require, and I await the Minister’s comments on that.