National Security Bill

Debate between Lord Pannick and Lord Purvis of Tweed

Committee stage
Wednesday 18th January 2023 Lords Chamber

[Lord Pannick (CB)]

My Lords, I have added my name to many of the amendments in these groups. I declare an interest as a practising barrister in public law cases, occasionally in cases concerning natural security.

I entirely agree with the powerful speech that the Committee just heard from the noble Lord, Lord Marks. The award of damages for civil wrongdoing is one of the primary means by which the court remedies the wrongdoing and deters future wrongdoing. That the award of damages is central to our system of justice is confirmed by Clause 83(6), which recognises that the court may not decide to reduce damages to a claimant under the Human Rights Act. By seeking to allow a reduction in damages for non-human rights cases, these clauses would introduce a lesser standard of justice.

I am very unclear why what is unacceptable for a human rights case should be thought acceptable for other civil litigation. That is especially so when the concerns which the Government have about paying damages when they are found to be liable are most likely to arise in cases which do concern human rights violations: cases where the allegation is made—and for the purpose of this clause we must assume is proved to the satisfaction of the court—that the state has been complicit in acts of torture or murder, perhaps by undercover officers. Such grave acts can be and are pleaded as human rights violations.

I appreciate that the Government are keen to remove legal liability, including human rights liability, for claims based, for example, on UK military action abroad, but if liability were to be excluded for such alleged conduct, there would be no need for provisions on damages. Why deal with this by reference to the remedy rather than to liability?

These clauses are not even concerned with a case where the terrorist’s wrongdoing had a causal connection with the Crown’s conduct, which forms the basis of the Crown’s liability for its wrongdoing. Clause 83(4)(a) makes it clear that there is no need for such a causal connection. In any event, as the noble Lord, Lord Marks, correctly explained to the Committee, existing legal principles would apply in such circumstances. Therefore, I need to be persuaded by the Minister that there is any principled basis for these clauses.

[Lord Purvis of Tweed (LD)]

My Lords, the noble Lord, Lord Pannick, and my noble friend have comprehensively outlined why both these clauses are unnecessary in law but also go far beyond what is necessary and will be damaging in practice. I need not add very much other than to say that I have put my name to the amendments that my noble and learned friend Lord Wallace of Tankerness, who was unable to be with us today, has put down with regard to Clauses 82 to 86 stand part and, as my noble friend indicated, the other amendments that would seek to reduce the impact.

The clauses undermine considerably mechanisms for holding government to account, as the noble Lord, Lord Pannick, said, through civil claims. In addition to seeking a remedy, such claims have been positive in changing policy and practice. Therefore, the impact of the clauses, as Reprieve together with the other bodies referred to by my noble friend have indicated, could be to allow Ministers and officials to avoid paying damages to survivors of torture and other abuses overseas.

National Security Bill

Debate between Lord Pannick and Lord Purvis of Tweed

Committee stage
Wednesday 11th January 2023 Lords Chamber

[Lord Pannick (CB)]

My Lords, I share the concerns which have been expressed in this debate about the breadth of Clauses 29 and 30, particularly in relation to public interest journalism, as expressed by the noble Lords, Lord Black and Lord Faulks, and the noble Baroness, Lady Stowell.

One of the problems is that Clause 29(2)(c) ensures that the foreign power condition applies merely because there is

“other assistance provided by a foreign power”.

That is an incredibly broad definition. The provision of information would potentially fall within the scope of that definition. There is also the concern, which has been explained by the noble Lords, Lord Marks and Lord Wallace, that the foreign power definition in Clause 30(1)(e) extends to a political party—not just to political parties generally but, as Clause 30(2) makes clear, to any party which has any member of the Government in a coalition. So it extends very broadly, particularly in Europe, to any number of political parties.

The noble Lord, Lord Marks, made the point that one of the mischiefs here is that there is no attempt to exclude governing parties in our allies—NATO countries, Australia, New Zealand and Five Eyes countries—which is quite extraordinary. The anomaly is even greater, because if the Committee looks at Clause 30(3)(a) there is a specific exclusion for any political party which is

“a governing political party of the government of the Republic of Ireland”.

I would be very grateful if the Minister could explain why there is that specific exclusion —not that I have anything against the Irish—but not for any political party that operates in our other allies, particularly NATO allies. The anomaly is even greater, because it is not beyond the realms of possibility that, in the next few years, Sinn Féin may be a political party that is part of the Government of the Republic of Ireland, possibly in a coalition.

None of this makes any sense. Could the Minister please clarify, explain and reflect on whether this is really a sensible way to proceed?

[Lord Purvis of Tweed (LD)]

My Lords, I wish very briefly to follow that excellent point, because the Government have not been clear in ironing out the anomalies in the definitions. The noble Lord, Lord Pannick, and others are absolutely right in agreeing with the noble Baroness, Lady Hayter, who raised this point.

The reality is that a junior party in a coalition Government, which might be under some form of political arrangement that is different from ours and which could be one of our sister parties, could be considered to meet the “foreign power condition” in the Bill. A person’s conduct could then fall foul of Clause 29(5) if that person

“intends the conduct in question to benefit a foreign power.”

I would like to benefit my liberal sister parties’ prospects in other countries by working with them on a philosophical basis, and vice versa. That is why we exist as political parties. The Bill would consider that conduct to be intending to benefit a foreign power. That surely cannot be right for an open democracy when we want to encourage political parties.

Not only that: before the aid cuts, we were spending considerable sums of money through the Westminster Foundation for Democracy to develop political party links. So we have on the one hand the Government funding the WFD, encouraging and in fact paying and providing support to parliamentarians to work with sister parties, and on the other saying under the Bill, “By carrying out the work that we’re funding, you’re also aiding a foreign power”, which is nonsense. At the same time, there is a concern that, under the definition in Clause 30(1)(c), a foreign public sector broadcaster, for example, could be considered a foreign power under the Bill, so any journalists working with, say, CBC in Canada would fall foul of the Bill because that would be an “authority” of a foreign power, unless specific changes are made.

There is also the point that my noble friend Lord Marks made. Part of the anomaly is that the Bill creates too many difficulties for journalists of state broadcasters to operate and potentially has a chilling effect on sister party collaboration, which the Government themselves seem to promote and support, but at the same time it does not include private sector enterprises that, although they are not formally an agency or authority of a foreign Government and a foreign Government is not responsible for their affairs, could include a private sector sovereign wealth fund of a state, which might or might not be listed on a stock exchange and which may or may not, in effect, be a private sector arm of the interests of a foreign power. So any interaction we have through the strategic interests of a wealth fund of a Gulf state, or of a private sector enterprise that may or may not be established and fully operational in the private sector but which our intelligence agencies say is, in effect, an arm of or has some interaction with the Communist Party of China, is not covered.

The anomalies in the “foreign power condition” need to be ironed out. These amendments will help in that way. I hope the Government will be able to provide greater clarification.

Northern Ireland Protocol Bill

Debate between Lord Pannick and Lord Purvis of Tweed

Committee stage
Tuesday 25th October 2022 Lords Chamber

[Lord Pannick (CB)]

I entirely understand the noble Lord’s political grievance, but the fact is that Article 16 is part of the protocol and the political grievance cannot itself provide the basis for necessity in international law. This group of amendments is seeking to understand what the legal advice of the Government is.

[Lord Purvis of Tweed (LD)]

I always find it very interesting to follow the noble Lord. As I said before, I have been trying to understand his dilemma. For all the accusations against these Benches, suggesting that we may have been party to shifting goalposts to the Government is a stretch too far in any sport, whether it is rugby or football. We have been fairly consistent with our warnings, and I refer the noble Lord to Hansard when we debated the protocol and I raised these issues in 2019. We knew there were going to be the difficulties, because what the noble Lord wanted, we knew the Government were not going to satisfy. We have had three years of government gymnastics—I am mixing my sporting metaphors all over the place—trying to present a political argument which we knew was fundamentally flawed.

The only way that this will be sustainably resolved, if one part of the UK, Northern Ireland, is to remain part of the single market, is for there to be agreement. Unilateral actions against treaty obligations is not a sustainable solution to any of these problems. I understand when the noble Lord talks about a lack of trust. It is a stretch for him to make an impassioned contribution such as that and then say, “But I am going to argue passionately in favour of a Bill that gives unprecedented Henry VIII powers” to the exact same people he has said he had lost entire trust in.