National Security Bill

Baroness D'Souza Excerpts

2nd reading
Tuesday 6th December 2022 Lords Chamber

[Baroness D'Souza (CB)]

My Lords, like others in this Second Reading debate, I welcome the Bill. It updates security legislation that was designed to protect UK security in the context of the Second World War, as has been written recently by those who know. Threats to the security of this country and others have changed fundamentally in the last 20 years or so and, as has been pointed out by experts, are increasingly concerned with state-promoted terrorist action that includes undermining democratic institutions. Countering these threats before they can become destructive action is clearly necessary. That said, there are areas in the draft Bill that would benefit from clarification and, in some clauses, a serious rethink. Of the latter, I refer mainly to Clause 28, Clauses 82 to 85 and Clause 86, supported by Schedule 15.

My approach is informed by universal rights, the prohibition of involvement in criminal acts by Ministers and/or officers of the state and the implied legal cover for those who are. Such criminal acts might include targeted torture and killing. The Bill also appears to protect officials in the UK rather than those operating overseas. It was argued during the passage of the Bill in the other place that Clause 28, as written, could condone foreign assassination, for which we severely castigate other states, and not only make the UK liable to accusations of hypocrisy but undermine any moral leadership it continues to hold. It is worth recalling, as both my noble colleagues fore and aft have already done, that the ISC has documented the extent to which UK politicians and officials were involved in abuses overseas; for example, in the extraordinary rendition and subsequent torture of Abdel Hakim Belhaj in 2004 in Libya.

UK Ministers and officials already have a defence under the Serious Crime Act 2007 against criminal prosecution for “reasonable action”, taking into account the purpose of the action and any authority under which action is taken. It is questionable therefore if the extended legal cover in this Bill is necessary.

Clauses 82 to 86 pose a serious blow to those seeking legitimate damages awarded in civil cases by citing the newly introduced “national security factors”. Efforts in the other place to delete this clause on Report were unsuccessful. Instead, the Government introduced the all-encompassing phrase of “terrorist wrongdoing”, which can be invoked to discredit any such claim and prevent recompense. The phrase is to too broad to be meaningful and once on the statute book would exist as a hostage to fortune.

Terrorist wrongdoing would certainly cover direct efforts to build destructive weaponry, such as bomb making, but it could also encompass merely the purchase of hydrogen peroxide. A further rationale has been advanced that it is necessary to limit any financial recompense in a civil case, from re-investment in terrorist action. This restriction does not apply however to other sorts of revenue such as the lottery, and given the extremely low standard of proof for terrorist wrongdoing, protection and justified recompense for survivors of state-sponsored torture remain paper-thin.

Bearing in mind too that many states around the world use the accusation of terrorism activity to silence legitimate dissenters, these clauses could very easily act as an obstacle to claims made by torture survivors against unsubstantiated allegations. As is now universally accepted, survivors of torture require a formal acknowledgment of the wrong that has been done to them as part of their recovery. These clauses, if applied, would undermine the very notion of justice, so important to them.

The human rights organisation Reprieve has documented several ongoing cases where this clause, as currently set out, adversely affects torture survivors in their quest for redress. Other human rights bodies, including Redress and Freedom from Torture, similarly question the clauses in that they provide Ministers and officials with immunity from crimes that are specifically mentioned in the international treaties as crimes against humanity. I am sure that there will be reasoned debate and amendments to the Bill that will allow it to go through speedily, as it should, but many of us will press for amendments to Clause 28 and Clauses 82 to 86.