National Security Bill

Lord Purvis of Tweed Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

Moved by

[Lord Purvis of Tweed]

63A: Clause 28, page 21, line 14, at end insert—
“6 Paragraph 5 does not apply in relation to an alleged offence under section 44, 45 or 46 that relates to conduct involving—(a) the intentional unlawful killing of a person,(b) torture or inhuman, cruel or degrading treatment or punishment, or(c) the violation of a person’s sexual integrity.7 Paragraph 6 does not prevent a decision not to prosecute in the public interest.”Member’s explanatory statement
This probing amendment would ensure that the immunity provided to Ministers and officials who assist or encourage crimes under the Serious Crime Act 2007 does not cover torture, murder or sexual offences.

[Lord Purvis of Tweed (LD)]

My Lords, this debate concerns the intelligence agencies and what the appropriate procedures are within the rule of law where they authorise, are aware of, encourage or assist in the commissioning of an offence or are engaged, either at home or abroad, in relations with other agencies or bodies where the risk of breaches of the law arises. The Government’s intent seems to be to seek total immunity from any prospect of prosecution for actions at home or abroad; to widen the authorisation powers of the SIS and GCHQ under the Intelligence Services Act 1994; and to provide brand-new immunity to MI5 and all UK Armed Forces, thereby expanding the current practice to actions at home, which, up to now, have had no immunity.

At Second Reading in the Commons, the Government failed to make a convincing case. We continue to be concerned about such widespread immunity; this view is supported by the Joint Committee on Human Rights and the ISC. At Second Reading in this House, the Minister said:

“Section 7 ISA authorisations are not available in all the circumstances in which the SCA”—


Serious Crime Act—

“risks arise. Those authorisations primarily apply to overseas activities, meaning that Section 7 could not generally be used to protect officers when carrying out activities in the UK. Section 7 authorisations may be sought only by SIS and GCHQ, and not by MI5 or the MoD.”

He also said:

“The Government believe that UKIC and the Armed Forces should have a targeted protection that provides far greater clarity and certainty”.—[Official Report, 6/12/22; col. 155.]


However, he did not say why class authorisations that exist under the ISA would not cover these areas. We know that there have been considerable discussions, both in the ISA and elsewhere, about class authorisations rather than those that are specific. If the Minister could state why class authorisations for the SIS are not working, I would be grateful, because this is a major change.

For domestic activities, for example for MI5, there are the Security Service’s Guidelines on the Use of Agents Who Participate in Criminality and the authorisations issued in accordance with them. The terms of the guidance were made public in a redacted form in March 2021 during a successful appeal by the Government in the Court of Appeal, where a case arguing—unsuccessfully—that there was de facto immunity for the Security Service’s activities was heard. I quote the guidance, which said that

“it may sometimes be necessary and proportionate for agents to participate in criminality to secure or maintain access to intelligence that can be used to save life or disrupt more serious criminality, or to ensure the agent’s continued safety, security and ability to pass such intelligence.”

It goes on to say that an officer is “empowered” under the Regulation of Investigatory Powers Act 2000.

Paragraph 9 of the guidance is clear:

“An authorisation of the use of a participating agent has no legal effect and does not confer on either the agent or those involved in the authorisation process any immunity from prosecution. Rather, the authorisation will be the Service’s explanation and justification of its decisions should the criminal activity of the agent come under scrutiny by an external body, e.g. the police or prosecuting authorities.”


That is the current situation. The guidance goes on:

“In particular, the authorisation process and associated records may form the basis of representations by the Service to the prosecuting authorities that prosecution is not in the public interest.”


This is a scheme that up until March 2021 the Government said had been operating well. They have not made the case for why that needs to change significantly. The judgment also highlighted that the Security Service works under a memorandum of understanding between it, the police and the counterterrorism division of the Crown Prosecution Service. The judgment went on to tell us that there were corresponding protocols in Scotland and Northern Ireland.

Clause 28 of this Bill now allows otherwise criminal actions here in the UK which encourage or assist crimes overseas to be carried out, setting aside previous guidance. This is extremely broad and changes dramatically the practice and the operation of that current guidance, with little justification. I went into a little detail about the domestic situation because it illustrates how a process operates which allows proper intelligence work to be carried out while retaining no immunity from the rule of law. This will now be abolished with Clause 28. For the UK and abroad, as I have indicated and as we discussed at Second Reading, the SAS has powers under the ISA and, as I indicated, there can be class authorisations as well as individually targeted authorisations.

In the Government’s response to the ISC’s report on privacy and security, they went into a little more detail about class authorisations, but it was very clear that such authorisations are under the statutory oversight of the Intelligence Services Commissioner. Under Clause 28, there would be no equivalent of this oversight, and that is a considerable diminution of the ability for there to be oversight of the operations of SIS and GCHQ.

One of the highlights of the Government’s annual human rights reports, the most recent of which was published in early December 2021, is the stress that they put on the human rights guidance on overseas security and justice assistance, or OSJA. It states that when the UK is working with other countries, primarily with their justice and security systems, on addressing threats such as terrorism, serious organised crime or conflict, a risk assessment process must be carried out prior to providing justice or security sector assistance. The institutions are relevant in this context, where the UK Armed Forces intelligence agencies are working with foreign bodies and their armed forces and the police, primarily their gendarmerie, paramilitary forces, presidential guards, intelligence and security services, coastguards and border guards—the list is fairly extensive.

The OSJA guidance sits alongside the Cabinet Office’s Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees. Under OSJA guidance, before any work is undertaken with one of the foreign bodies, a risk identification process must be carried out on human rights concerns, specifically on whether assistance or co-operation might directly or significantly contribute to the use of the death penalty, unlawful or arbitrary arrest or detention, torture, unlawful killing, enforced disappearance, unfair trial, or denial of justice and unlawful interference with democratic rights. The checklist also states that there must be a risk system on violations of the right of the child, human trafficking, and persecution of an identifiable group. All these areas will now be swept away with a risk assessment process, because of this blanket immunity. If it is high-risk, Ministers must be consulted unless ministerial approval has already been given for the specific activity. This will include, for SIS, a 1994 authorisation, and under current law, Ministers must operate under the terms of the Serious Crime Act.

However, this guidance is now redundant, with the Bill removing a major component of the UK’s promotion of human rights by providing wide immunity to our Armed Forces. The Minister in the Commons, in making the case for this clause, stated that the current process created too much delay. He said:

“The impact of that approach is that vital and otherwise legal intelligence opportunities are currently being delayed or missed as the SCA risks are worked through”.—[Official Report, Commons, National Security Bill Committee, 14/7/22; col. 181.]


He promised to provide examples to the ISC. I would be grateful if the Minister can confirm whether those examples have been provided and if I can be briefed on those examples as the Front-Bench spokesman of my party. I have not seen any examples, demonstrating that there has been considerable delay.

The consolidated guidance for intelligence agencies exists because they do not have the powers of detention, either in the UK or overseas, that the Armed Forces may have. There has been considerable concern about the wide extension of this clause to all of the Armed Forces. Paragraph 7 of the guidance states:

“When we work with countries whose practice raises questions about their compliance with international legal obligations, we ensure that our co-operation accords with our own international and domestic obligations.”


This is now being changed dramatically.

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[Lord Macdonald of River Glaven (CB)]

Before the noble Lord sits down, I just wonder whether he considers that there may be a difference between intentional killing, on the one hand, which may or may not be wrong, depending on the circumstances and context, and torture and sexual violation on the other, in respect of which it is very difficult to conceive that they could ever be right. Does he think that there may be a distinction?

[Lord Purvis of Tweed (LD)]

I understand the case. The Consolidated Guidance to Intelligence Officers and Service Personnel does not make the distinction. It does make the distinction that there is a lack of clarity when it comes to cruel, inhuman and degrading treatment and punishment. Our definitions of that may differ from those of some of our allies, or of others we are working with. For the other two areas, there is no distinction as provided for under the consolidated guidance. Indeed, the risk assessment criteria that all officers currently have to operate under—the checklist that exists within the guidance that they have to go through before entering into any of the security work with agencies—include all of these areas, including where senior personnel and legal advisers conclude that there is risk of torture or CIDT, and also lawful killing. This is in addition to what authorisations under the ISA may bring about.

[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.

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[Baroness Manningham-Buller (CB)]

My Lords, I had not intended to say anything on this part of the Bill, not least because all these lawyers at various levels of leading counsel, pupil-master and so on do so much better than me. It seems to me that it is wrong in principle for members of the security and intelligence services to have immunity from the law.

I think that the noble Lord, Lord Purvis—the Minister may deal with this in his summing up—has confused the authorisations that are approved for CHIS activity involving criminality with what this part of the Bill seeks to do. I hope that in his reply the Minister will acknowledge the wide concern within the Committee, including from people such as me who have spent a career in the Security Service, and will consider an amendment to address some of these problems.

I quite comprehend that it is not necessarily easy to explain what the problem is that we are trying to address without revealing secrets but, again, I endorse the view that it would be helpful to hear what the ISC has thought on these matters. We heard from the noble Lord, Lord West of Spithead, at an earlier stage, that he and the ISC recognised that there was a problem that needed addressing. For my part, I am unable to support this as a solution.

[Lord Purvis of Tweed (LD)]

I am grateful to the noble Baroness and of course defer to her very considerable expertise in this area. The point I am seeking to make is that, from my understanding of the CHIS authorisations under the 1994 legislation, some of those will now no longer be necessary because of the blanket immunity under this clause. In fact, many of them will not be, because the authorisations for SIS to act abroad will now be expanded by this clause, with SIS being able to act here for supporting acts that are unlawful abroad as well as officers operating abroad, which is unlawful. The point that I was trying to make is that this clause brings the two together.

[Baroness Manningham-Buller (CB)]

I will have a short word with the noble Lord, Lord Purvis, afterwards in the dinner break, if he does not mind.

[Lord Purvis of Tweed (LD)]

Terrifying—please, no.

[Baroness Manningham-Buller (CB)]

The noble Lord may have confused covert intelligence sources as agents—I am sorry; this is terminology—and agents are not full members of the security and intelligence services. The Minister will answer this better than I can anyway; I am sorry to intrude again.

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[Lord Sharpe of Epsom (Con)]

I am afraid that I do not have those figures to hand. I am not sure that I will be able to get them, but I will do my very best to find out and come back to the noble Lord on that question.

[Lord Purvis of Tweed (LD)]

I am grateful to the Minister for giving way, and I look forward to that reply when it comes in writing. If I have this right, the Minister said that it makes no difference—there is no change—to the approach on unlawful killing, torture or cruel or inhuman treatment. Is he saying that this clause does not provide immunity in offering assistance to others who would be committing unlawful killing, torture or cruel or inhuman treatment?

[Lord Sharpe of Epsom (Con)]

As I said earlier, I think this is confined very much to the intelligence support by the Armed Forces—is that what the noble Lord is referring to?

[Lord Purvis of Tweed (LD)]

I am grateful. No, it is not. The Minister said that there was no change to the approach on unlawful killing and torture. My reading of this clause is that there would now be immunity for offering assistance to others to carry out unlawful killing or torture.

[Lord Sharpe of Epsom (Con)]

I do not believe that there is immunity for that, but I will clarify that if I am incorrect.

Moving on, caution when considering the legality of support to our partners is of course correct and will continue. However, the current impact of the SCA offences means that vital intelligence-sharing opportunities have been delayed or missed, even when UKIC and the Armed Forces are fully compliant with other legal and policy requirements, such as the Fulford principles and the overseas security and justice assistance guidance, which ensure, for example, that support to international partners is in line with our human rights obligations. I have the principles and guidance to hand. If anybody would like me to go through them in detail, I will, but they are long so it will delay proceedings. I will await an intervention, if any noble Lord wishes me to do that.

UKIC’s and the Armed Forces’ adherence to and compliance with the principles are monitored by the Investigatory Powers Commissioner’s Office—IPCO—via regular inspections, and they are also routinely scrutinised by the Intelligence and Security Committee. Ministers are directly accountable for the work of the agencies and the legality of their operations. When things go wrong, it is entirely right that there is scrutiny of and accountability for the organisations’ activities, and I commend the important work that the ISC and IPCO undertake in this space. Meanwhile, any individual found to be working beyond the proper functions of the security and intelligence agencies or the Armed Forces will remain personally liable for those actions. This is right and fair.

However, I have heard the views of the House about this clause. The Government are in close consultation with the Intelligence and Security Committee, UKIC and the Armed Forces, and we are carefully reflecting on the views expressed and considering whether a change in approach is appropriate. It is important to note that those who have seen the very sensitive information which is relevant to this issue have agreed that there is a problem to solve—including the ISC, which has seen specific examples—and I am committed to us reaching a consensus on this matter.

Turning directly to the amendment in the names of the noble Lords, Lord Anderson and Lord Carlile, Section 7 of the Intelligence Services Act allows the Secretary of State to give authorisations for acts outside the British Isles, provided that the acts are done as necessary for the proper function of SIS or GCHQ—though not MI5 or the Armed Forces—and that the nature and consequence of the acts will be reasonable. These authorisations are clearly not currently available in all the circumstances in which SCA risks arise. I understand that this amendment seeks to address that gap and provide a solution to the application of the SCA offences. It also seeks to utilise an existing power for ministerial authorisation which is overseen by the Investigatory Powers Commissioner. These are obviously legitimate and valuable objectives. Section 7 authorisations provide a carefully used route by which the agencies can seek ministerial approval in advance of planned activities. They require Ministers to consider, in relation to specific acts, whether they are necessary and whether the consequences are reasonable. Once authorised, they can remove criminal and civil liability for those acts.

There will invariably be instances where the SCA risk does not manifest itself initially and becomes apparent only much later. Where a risk is not identified in advance, a Section 7 authorisation would not be sought to cover it. In these cases, those acting for UKIC or the Armed Forces would not be adequately protected should concerns about SCA offences arise later. Further, this scenario could lead to an unintended consequence of seeking to use Section 7 authorisations for hypothetical risks, creating an unhealthy reality in which more conduct is approved than would be otherwise without providing meaningful consideration of those risks. I am sure the House shares our desire to find a targeted solution to that problem. It would be a perverse outcome indeed if this well-intended amendment were to lead to less consideration of the SCA risks rather than more. Whether it is a class authorisation or a targeted one, as referred to by the noble Lord, Lord Purvis, the reasons why Section 7 authorisations are inappropriate remain the same.

In short, the Government do not believe that Section 7 authorisation is the best solution to the specific operational issue and do not believe it would improve the clarity of the application of the SCA offences to all the complex operational scenarios that arise in ongoing, carefully considered but agile international collaboration. It is more desirable to remove this risk in a targeted way as per Clause 28, avoiding the burden of potentially missing, and/or the overuse of, Section 7 authorisations for SCA risks.

The noble Lords, Lord Purvis and Lord Beith, talked about criminal conduct and authorisation of this for covert human intelligence sources. I think they may have conflated this with the issue at hand. No amendment is being proposed to the criminal conduct authorisation regime which governs the action of agents. We are concerned here with support for our international partners’ activities, so I agree with the noble Lord, Lord Evans, and the noble Baroness, Lady Manningham-Buller, who articulated this point very well.

I now turn to the amendment from the noble Lord, Lord Purvis, which aims to table provisions which explicitly state that Clause 28 does not cover torture, murder or sexual offences. Again, it is a legitimate attempt to clarify Clause 28. However, it is one which the Government deem unnecessary for reasons that I have partly outlined already but will continue to set out.

[Lord Sharpe of Epsom (Con)]

I am going to do it right now: there is no immunity for inciting or assisting others to kill or torture.

[Lord Purvis of Tweed (LD)]

Could the Minister give a little more information as to why there is no immunity?

[Lord Sharpe of Epsom (Con)]

The noble Lord does not want there to be immunity.

[Lord Purvis of Tweed (LD)]

No. Why, under this clause, would there continue to be no immunity?

[Lord Sharpe of Epsom (Con)]

Perhaps I could get to the end and then clarify this. As I said earlier in relation to the SCA, I can confirm that the examples that the noble Lord, Lord Purvis, asked about have been provided to the ISC. As the noble Lord, Lord Coaker, pointed out, it has agreed that this is a problem that requires a solution.

It is vital to acknowledge that Clause 28 will not create blanket criminal law immunity or change the application of all other criminal law offences, including those criminalising torture anywhere in the world, as I have said a number of times. The UK remains committed and subject to international legal obligations, including under the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, and international obligations on assisting an unlawful act under Article 16 of the International Law Commission’s articles on state responsibility for internationally wrongful acts. The amendment to the SCA offences applies only when persons acting for UKIC or the Armed Forces are acting within the proper exercise of their functions. We do not consider that the activities that are of concern and the focus of this amendment would amount to the proper exercise of those functions. I hope that is clear.

I want to be clear that any individual found to be working outside the proper functions of the intelligence agencies or Armed Forces will remain personally liable for those actions under the SCA offences, as well as other applicable laws. Meanwhile, it will still be possible for legal challenges to be brought against the intelligence agencies and Armed Forces in relation to allegations of unlawful behaviour, whether in the form of judicial review, civil damages claims or through a referral to the Investigatory Powers Tribunal. That is exactly as it should be.

In response to the point from the noble Lord, Lord Carlile, I say that the Government’s position is that this amendment is not intended to, nor would it have the effect of, removing the role of the relevant Secretary of State from the oversight of the intelligence and security services.

The noble and learned Lord, Lord Judge, and the noble Lord, Lord Coaker, spoke about the current reasonableness defence and effectively why it is not enough. There is an existing reasonableness defence in Section 50 of the SCA, as has been noted, which was included in recognition that there may be occasions when it could be shown that an individual’s actions were justified in the circumstances.

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[Lord Sharpe of Epsom (Con)]

That is what I am saying. I will come back to whether it should be on the face of the Bill in due course.

[Lord Purvis of Tweed (LD)]

I am very grateful for that last interaction between the noble Lord, Lord Pannick, and the Minister. I am also grateful for the Minister continuing to have a degree of open-mindedness. I do not know where I sit on the cascade of legal hierarchy, but I think it is lower order. I do not know if it is just me, but a frisson of nervousness went through my spine when the noble Baroness, Lady Manningham-Buller, asked for a quick word outside. If I could avoid that, it would be better.

I am well aware of the distinction between SIS officers working under a CHIS authorisation and what is covered under the ISA. I am also well aware of MI5 officers running agents who carry out criminal activity. The point I was trying to make is that there are clear distinctions and that we have procedures with regard to MI5 officers running agents who carry out criminal activity, but there is no immunity for them to do so. The point I made in my opening remarks is that the processes that MI5 has are effectively the defence. The concern with the breadth of this immunity is that those processes will no longer be the case.

I am also well aware of our international obligations, but it is under domestic law that we would realise what those natures are. Because of the extraterritorial nature of the schedule in the SCA, I am still not convinced in the reading of it that our intelligence services and Armed Forces would be able to operate under domestic law in offering assistance to others carrying out criminal acts. Those criminal acts may well also be breaches of international law. I am grateful for what the Minister said, but I am also grateful for his willingness to engage further on that.

I hope the Minister took on board the consensus with regard to concerns about the Armed Forces. The point I made at the start of this debate is that, unique among the SIS and GCHQ included within this, the Armed Forces have powers of detention. Therefore, the processes under way under the MoD doctrine for risk assessments on torture, cruel, inhuman or degrading treatment, extraordinary rendition or rendition, and unacceptable standards of arrest and detention are all areas of considerable concern, if there is immunity for our Armed Forces when working with others.

Of course, the guidance that exists also includes the receiving of unsolicited information or providing or sharing information on collaboration. These risk assessment processes are in place—they are in published principles and guidelines—and the considerable concern is that they will be washed away by the extent of the immunity.

I am grateful to the Minister for being open. I still think that he has not sufficiently addressed all the areas of concern, not least that there would be a considerable diminution of independent oversight in the operation of this. I will withdraw my amendment at this stage. I accept the Minister’s word that he will engage fully before Report, and I hope he will be able to put in writing responses to all the issues that have been raised on this so that we can study it carefully before Report. In the meantime, I beg leave to withdraw the amendment.

Amendment 63A withdrawn.

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[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.