National Security Bill

David Davis Excerpts

2nd reading
Monday 6th June 2022 Commons Chamber

[Priti Patel]

I thank my hon. Friend for his incredibly important question. The Bill will cover aspects of hostile state activity, and he will hear the details of that as I make progress with my remarks. Much of the work on organised crime and criminality in the United Kingdom is led by the National Crime Agency, and it is heavily involved in this work as well. As well as money laundering, we have debated sanctions in recent months. Some of our financial work to follow the money is embedded in the Economic Crime (Transparency and Enforcement) Act 2022, which is part one of the legislation, and we will introduce the economic crime Bill—part two of the legislation—in which there will be much more of that work.

Money laundering is one aspect of organised gangs’ criminality. For people to have the money to launder, a whole sequence of criminality goes with that. That could involve drugs and firearms and, tragically, as we know, people smuggling. We know that the case in Purfleet, in which 39 people died tragically in the back of a lorry, emanated from organised criminality in Northern Ireland. We were able to take that case to court through the work of the police and the National Crime Agency. There is, of course, much more that we need to do collectively.

We have to ensure that we have every possible domestic lever to keep our country safe and prevent terrible acts of criminality and harm from occupying a permissive environment in which they can fester and grow. The Bill brings together vital new measures to address the evolving and ever-changing threats that we face and to protect the British public—to protect our country and our citizens—by modernising aspects of counter-espionage laws.

[Mr David Davis (Haltemprice and Howden) (Con)]

I do not think that anybody would question the Home Secretary’s commitment to the safety that she is trying to engender for the British public, but I draw her attention to the comments of Andy Hall QC—her adviser on counter-terrorism—who raised concerns about some of the thresholds with respect to the use of assets and money. He oversees the equivalent legislation elsewhere, so he knows well what he is talking about. Although I think that we are all going in the same direction, can we be careful in Committee and on Report to take on board what he says to make sure that we do not undermine the rights of British people while we are protecting them?

[Priti Patel]

My right hon. Friend is absolutely right. That is why the Bill has been constructed in a sensitive manner with our agencies and partners, based on expertise and insight. This is about how the laws will be applied to individuals in specific cases, so the sensitivities must always be considered. A case-by-case approach is rightly required when it comes to the application of our laws, as well as to law enforcement and how we pursue these matters further.

The Bill brings together many measures, but I would like the Chamber to indulge me for a minute—particularly off the back of this weekend—as I pay tribute to our world-class law enforcement and intelligence agencies. We were all touched to see the numbers of people who came to London to see Her Majesty and celebrate the platinum jubilee. Our law enforcement and intelligence agencies came together, ensuring that in every aspect of our celebrations the British public were kept safe by remarkable people, who worked tirelessly; I pay tribute to them. It is their expertise that we are trying to preserve, enhance and develop through the Bill. We want to ensure that they have all the tools and protections they need to deal with this ever-changing and evolving landscape.

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[Mr Jones]

I would not want to go anywhere near what is in the hon. Gentleman’s imagination. All I can say is: yes, we are talking about information that will have an impact not only on our general security, but on the security of individual agents and others. That is why I support the Law Commission’s recommendations to introduce a public interest defence and to create an independent statutory commissioner to investigate wrongdoing or criminality where disclosure would otherwise constitute an offence under the 1989 Act.

The absence of reform means that if we pass the Bill as it is now, there will be nothing in it to guard against large, mass disclosures of sensitive information; we will still rely on the 1989 Act. Even if somebody indirectly helped foreign powers, I cannot see how we could bring them to book under this Bill. We should support the introduction of a public interest defence, because it would make it easier to bring prosecutions. I have heard some people say, “This would really give journalists and others an opportunity to throw secrets out there.” No, it would not; it would put the onus on them to argue in court that it is in the public interest that the information is disclosed. It would be welcome, as it would ensure that people thought about what they did.

[Mr David Davis]

Does the right hon. Gentleman agree that the Katharine Gun case is a good demonstration? The prosecution was dropped at the point of trial, probably because the Government could not predict how a jury would interpret her public interest defence rights without any codification.

[Mr Jones]

The right hon. Gentleman raises an interesting point. Without reform, the courts will define public interest anyway. I would sooner have this place define it than leave it to the courts or allow an ad hoc system to build up over time. I do not understand why the Bill does not take that opportunity, because it would help. Some journalists think that it would be a way of stymieing them, but I think it would clarify the position on the information that can be put in the public domain and would actually help to make that defence. I would rather have this House than a court of law setting those parameters.

The Law Commission made another recommendation that I think worthy of consideration, although we need to work out how it would work in practice:

“an independent commissioner to receive and investigate complaints of serious wrongdoing where disclosure of the matters referred to may otherwise constitute an offence under the Official Secrets Act 1989. That commissioner would also be responsible for determining appropriate disclosure of the results of that investigation.”

That would provide another valve in the pressure cooker of the system when people think that wrongdoing needs to be highlighted.

I would love to know why the Government have missed the opportunity to bring all these things forward in the Bill. I hope that as it passes we can insert some of them: that would not only strengthen the Bill, but give our security services the toolkit that they need.

The foreign influence registration scheme, which we called for in the 2020 Russia report and which is supported by the agencies, would make it unlawful to be an undeclared intelligence officer. I accept that there are issues with definition, but the consultation on the Bill described it as a key component of the new regime, yet for some reason it is not in the Bill. I hear the Home Secretary’s promises, but—call me old-fashioned—I think we should have it before us today to debate on Second Reading.

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[Mr David Davis (Haltemprice and Howden) (Con)]

Let me start by saying that, unusually, I agreed with every word that was said by the right hon. Member for Dundee East (Stewart Hosie). He will have to get over that in his own time! Indeed, I can make broadly the same comment about nearly all the Back-Bench speeches that have been made so far. There has been considerable consensus on both sides of the House.

There is no doubt that the Bill is needed, and it is probably overdue. However, like all national security legislation, it is written from the point of view of the enforcers. The enforcement agencies’ lawyers will have done most of the drafting, so it is no surprise that it leans towards the state, and no surprise that parts of it are drafted in vague terms. I can best exemplify that by referring to one of my own mistakes.

Clause 23 allows Ministers effectively to authorise criminal acts. I was one of the Ministers who took through the Intelligence Services Act 1994, which created the Intelligence and Security Committee. It also created a number of rights. Section 7, which was known as the “007 clause”, conferred the right, in effect, to commit crimes on behalf of the state.

I went to see the then head of MI6, and I said to him, “Why do you need this? You do not even kill people any more.” His response was “That’s because you do not ask us to, Minister.” I resisted the temptation to pursue what I assume was a joke. Nevertheless, the presumption at the time was that the legislation would be used for bugging, burglary and blackmail and little else, as those are the three crimes typically used by the agencies. In practice, within a decade or so it was being used to excuse rendition, and subsequently, of course, torture and all the things that followed from that. I am not sure what the limits of its actions are today, but that demonstrates clearly to me that we have to be very precise indeed about what the House is authorising Ministers to do within the limits of the law.

What is more, this carve-out—which, as I have said, could be used for purposes that we are not considering today—could end up being extremely damaging to us. After all, we criticise nations from Russia to Turkey for the things that are done there, including the assassinations of journalists, presumably authorised by Ministers within those Governments under their legal systems, and here we are creating the equivalent within our own legal system. It is not too hard to see how that could be turned against us in propaganda terms.

This is not the first time that we have done that in recent years. Just a couple of years ago, with the Overseas Operations (Service Personnel and Veterans) Bill, we had a proposal that would have exonerated British soldiers who had committed crimes abroad, including murder and torture and war crimes. I proposed an amendment to the Bill, which did not get very far until Lord Robertson, the ex-head of NATO, and six Chiefs of the Defence Staff signed up to it in the Lords whereupon the Government had to pay attention. The ICC said that if we did this, it would prosecute. That is the other thing that we need to bear in mind with this—we are not necessarily the last port of call in judging what can and cannot be prosecuted.

My view on clause 23 is that we should be very careful about defining exactly what it is that we are attempting to permit. We should not leave any doubt whatever, or we will find that it will both fail and do us harm, let alone the moral breach that we will be committing.

My second issue relates to the matter raised by the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, whose statements are more authoritative than those of anyone else because the Bill is effectively modelled on legislation that he reviews. He says that it is unclear why we need an additional regime for the forfeiture and freezing of assets intended for use in terrorism, when such a regime already exists in law. His concern about it is that the new regime would use a lower threshold, requiring only a “real risk” that the funds would be used in terrorism, rather than that they were “intended to be used” for those purposes, He says that that “goes further than necessary”. Nobody in this country knows better where the appropriate line should be drawn than him, and we should be very careful to pay attention to what he says.

Jonathan Hall also questioned, as did my right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright), the need for “symbolic” restrictions on access to legal aid based on something other than reducing the risk of terrorism. It would run the risk of the farcical situation where someone convicted of terrorism-related offences perhaps 20 years ago would be unable to rely on civil legal aid in seeking an injunction against a domestic abuser. I am quite sure in my mind that that is not what the Minister or the Government intend, but we should make it very plain that that is not the case, and amend it accordingly.

I agree with everything said by virtually everybody who spoke on the need for an update of the Official Secrets Act 1989. I am not remotely surprised that the Government are hesitant about that; there is a huge dammed up resistance to changes because they have to get it right first time.

[Bob Seely]

I am very aware of my right hon. Friend’s background. What would he do about oversight of DSF, because it does seem to fall between two Committees, and, as such, it seems to exist in a bit of a black hole when it comes to oversight.

[Mr Davis]

Can my hon. Friend explain the point?

[Bob Seely]

I am talking about the oversight of the DSF—Director Special Forces. Arguably, at the moment, it does not fall within the remit of the Ministry of Defence. It does not fall within the remit of the Foreign Affairs Committee and it does not fall within the remit of the Intelligence and Security Committee. Does my right hon. Friend think that it needs oversight, and how would he provide oversight of that rarified world that exists between the agencies and traditional defence?

[Mr Davis]

My hon. Friend is tempting me into an area in which I will lose all my friends, as he well knows. My off-the-cuff response—and it is just an off-the-cuff response—is that it is an appropriate area for oversight by the ISC, not by the Defence Committee, simply because of the confidentiality and classification elements that apply.

Let me return to the question of the Official Secrets Act 1989. I agree with everything that has been said so far. I agree that we should look very closely at the Law Commission proposals, because we need certainty. What we have at the moment is an interpretation of the law by juries—whether it is the Ponting case, the Katharine Gun case, where we did not even get to the point because the Government ran away from the case on the first day of trial, or the Derek Pasquill case. In each case, we had an interpretation of the law on a commonsensical basis by juries. Thank heavens for that, frankly, because they have more sense, many times, than the Government have in these areas, but we need predictability on both sides. We need officials to know that if something is done that they think is against the public interest, they can be reasonably confident that the provision will be carried out. That, if it operates properly, will improve the public service. On the other side, the Government should also have a right to know what is coming in that area.

I will make one or two other small points. On the foreign power conditions in the Bill, Reprieve, Privacy International, Transparency International and other excellent organisations that do very good work have received some funding from other nations’ Governments. It does not seem to be the intention that the Bill would have them fall foul of this law, but that might be the effect, so we have to be very clear about how that works. Perfectly legitimate organisations could be left committing an offence, under this area of the Bill, if they use leaked information—which may not even be classified—to challenge Government policy. That requires a closer look.

[Craig Mackinlay (South Thanet) (Con)]

My right hon. Friend is covering clauses 24 onwards, on the meaning of foreign power and influence thereon. There have been instances involving Members of the House during the past few turbulent years, when we had negotiations during the European Union; I did not agree with where they were going with their negotiations with the other side, outside Government channels, but I still believed that they had the right to do so. I am a little concerned that the Bill might capture that type of behaviour. Has he considered that? I would be interested to know Front Benchers’ thoughts on that as well.

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[Mr Davis]

My hon. Friend makes a point about something from which I have scars. I had to go and negotiate while I was being undermined by Opposition Members. I agree, of course, that that is their right and power. Indeed, it is no great secret that I recommended the current Leader of the Opposition, the right hon. and learned Member for Holborn and St Pancras (Keir Starmer), for a Privy Counsellorship so that he could be properly briefed—not so that he could undermine me, but so that he could do his job properly. Obviously, democracy has rough edges and we must respect that in the Bill, as we do elsewhere.

My last point relates to the foreign influence registration scheme, which my right hon. and learned Friend the Member for Kenilworth and Southam spoke about. At present, that is not in the Bill. The Government have assured us that it will be introduced at a later stage. I hope that it is introduced early enough for proper and adequate scrutiny. This will not be easy to get right, partly because of the comments that my hon. Friend the Member for South Thanet (Craig Mackinlay) made. It is clearly a very different issue if someone is working on behalf of China, and we should not paint them with the same brush as those who are working for—my notes say “reliable allies like France”, but I should say “allies like France”. The simple truth is that we have to get this absolutely right.

I welcome the Bill, which, overall, is overdue. However, I make this point to the Front-Bench team: I hope that the Government will allow plenty of time—I will not say “sufficient time”—for the consideration of those elements. The Government have not brought some things to the House because they are not ready yet. That means that they have to respect the House by giving the Bill a large amount of time on Report, so that we can debate carefully every single issue that I raised.

National Security Bill

David Davis Excerpts

Report stage
Wednesday 16th November 2022 Commons Chamber

[Holly Lynch]

I am grateful to my right hon. Friend for making that powerful point. He is absolutely right that there is a distinct lack of consistency. If we are singling out specific criminal offences that we do not like, there is more that we could do to ensure that there is some consistency in that approach. There will be vulnerable people here who we want to check are not falling through the gaps, which would make the situation worse for us all.

What if a woman’s abuser is a terrorist? As I said, the nature of terrorist offenders means that that is often the case. For some of the lower-level offences covered by clauses 84 to 85—for example, that someone made a phone call on behalf of an abuser—it is easy for somebody to say, “I wouldn’t do that, because I’m not a terrorist,” but we all might if we were living in a household where we were terrorised. The danger is that more women in such cases will end up stuck with a terrorist making them be a terrorist, rather than being able to escape them. That is why we feel strongly that the Government should adopt amendment 6.

On some other changes that we would like to see, we have tabled new clauses 5 and 6. They were drafted in the wake of the revelations that the right hon. Member for Uxbridge and South Ruislip (Boris Johnson), when he was the Foreign Secretary, met former KGB officer Alexander Lebedev without officials or security at the height of the Salisbury poisoning case in 2018. That was immediately after the then Foreign Secretary had attended a meeting of NATO Foreign Ministers at NATO headquarters in Brussels to discuss the collective response to Russia’s use of Novichok on UK soil. We still have a series of questions about that encounter, not least who his guest was at that party and why we have not taken steps to sanction Alexander Lebedev, given the assessment of our Five Eyes partner Canada, which has sanctioned him.

Having made the case in Committee for new clauses 5 and 6, which both seek to put safeguards in place to prevent that type of security breach ever happening again, the Minister was keen to stress that he was not going to seek to defend the Administration of the right hon. Member for Uxbridge and South Ruislip, as if that time had passed and there was no need for any further changes to the law in this regard. When that exchange happened on the Tuesday, little did the Minister or I know that by the Thursday, remarkably, the right hon. Gentleman would be launching his campaign to come back as Prime Minister. None of us could have foreseen that, which is one more reason why I stress that the clauses would complement the Bill.

I appreciate that new clause 8, tabled by my right hon. Friend the Member for North Durham (Mr Jones), has been deemed to be out of scope of today’s debate, but I remind the Minister of the remarks of the then Home Secretary, the right hon. Member for Witham (Priti Patel), on Second Reading:

“We are not shy of the issue and are certainly not ignoring it, but it is important that we focus on ensuring that individuals can make disclosures safely, which means protecting them through safeguards and proper routes. That work is still under way, and we need to go through it in the right way.”—[Official Report, 6 June 2022; Vol. 715, c. 571.]

We understand that the Home Office has engaged with trusted partners on what options look like in this space. Once again, we are all waiting for further detail on that front.

I now turn to the plethora of Government amendments. Frankly, late in the day additions to the Bill have plagued its scrutiny and Report stage is no different, as many right hon. and hon. Members have already said. I am pleased that the Government heard our concerns about places of detention and have clarified that only places

“owned or controlled by a police force”

can be used as places of detention, which ensures that they will be subject to proper inspection regimes. We are satisfied that the Government have listened, so our amendment 4 is no longer necessary; Government amendment 54 brings those places within the scope of an existing inspection regime.

As the Minister knows, there are still outstanding concerns about the broad nature of clauses 79 to 83 in part 4. We welcome Government amendment 51, however, which seeks to tighten the definition of those in scope of clauses 79 to 83 to those involved in “terrorist wrongdoing”, but that will warrant further exploration in the other place.

On Government amendment 60, like a number of modern slavery charities—the point has already been made by the right hon. Member for Chingford and Woodford Green (Sir Iain Duncan Smith)—we are really concerned about the lateness of this addition to the Bill and the scrutiny that has been avoided by adding it to the Bill at the final Commons stages. Justice and Care, which does outstanding work in placing victim navigators within police forces up and down the country, was keen to stress that there has not been any consultation with modern slavery charities concerned that they, like us, have had insufficient time to fully consider the possible impact on modern slavery victims. I could have asked the Independent Anti-Slavery Commissioner for their views, except there isn’t one. The Government have failed to appoint a new commissioner since Dame Sara left office in April, so I take this opportunity to suggest that the Government address that now as an urgent priority. I have to ask the Minister to outline the rationale for this move, and I want to be clear just how unhappy we are with this provision at such a late stage.

I am grateful to my hon. Friend the Member for Rhondda (Chris Bryant), who is so often my partner in crime fighting, for his amendments. I know he has a great deal of understanding in this area that has shaped the detail of his amendments, so I hope the Government are reflecting carefully on those.

Once again, we have sought at every stage and with every Minister to engage on the Bill constructively. We know that our police forces and security services need the provisions in the Bill to be able to keep us safe from the hostile state threats that are increasingly testing the UK’s resilience. I hope the Minister, who to his credit had to pick up the Bill in the final stages of the Bill Committee, hears our outstanding concerns today, recognises the spirit in which we strive to find solutions and continues to work with us towards a robust and proportionate Bill we can all have confidence in.

[Mr David Davis (Haltemprice and Howden) (Con)]

I welcome the Minister to his post. He is very much a round peg in a round hole—despite my historic critique of the Home Office, that is meant as a compliment. I thank him for seeing me and my colleague, the hon. Member for Barnsley Central (Dan Jarvis), on the amendment the other day. He will be unsurprised that he did not persuade me, but I thank him for the time in any event. In view of the short time, I will focus mostly on amendment 14, which I hope we will press to a vote. It is in my name and that of the hon. and gallant Member for Bromley—not Bromley, but Barnsley Central; not quite Bromley. That amendment strikes out clause 27.

A decade and a half ago, the British public were shocked to hear stories of British complicity in American and other countries’ acts of kidnap, rendition, torture and assassination, typically but not always by drone strikes, with the collateral damage that that entailed. Collateral damage in this context is a euphemism for the deaths of innocent women and children who happen to be standing near the original target. I use this stark language to make plain the potential consequences of what might seem like bland legalistic language in the Bill.

The legal basis of those actions—I almost said atrocities, but of those actions—was the Intelligence Services Act 1994, when we first recognised the operation of the Secret Intelligence Service. Most notably, it inserted the melodramatically named “007 clause”—section 7—which empowered Ministers to authorise criminal behaviour overseas. I was one of the Ministers who took that Bill through the House. We Ministers were briefed very firmly that, in practice, that section would authorise bugging, burglary and blackmail—the normal behaviour of intelligence agencies seeking to penetrate enemy states and organisations—not kidnap, not torture and most certainly not a licence to kill.

We the Ministers on that Bill gave our word to the House that that was what it was for, but a decade later section 7 was used to authorise the enabling of rendition, torture and quite possibly assassination as well. We know the names of several victims of UK complicity: Binyam Mohamed, Abdel Hakim Belhaj, Fatima Boudchar, his wife, and Rangzieb Ahmed, to name just a few.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

It is worth reflecting and placing back on the record that we know the names of Belhaj and Boudchar only because somebody happened to find the papers unattended after the fall of Gaddafi. That was the only way that the truth about their cases came into the public domain.

[Mr Davis]

The right hon. Gentleman is right, and it is also true that we found out about Binyam Mohamed only because of extended legal cases in the courts, which were resisted by the agencies at every turn. We know about Rangzieb Ahmed only because I got access to the in-camera papers. So this is a general problem and I will come back to that. A most recent example is Jagtar Singh Johal, who alleges that he was tortured by Indian authorities and was detained, we believe, as a result of British intelligence. Again, we know about that only because we could spot the case inside one of the commissioner’s reports. Accordingly, exactly because of that, this is literally the tip of the iceberg.

The Intelligence and Security Committee report on detainee mistreatment found 232 cases where UK personnel

“continued to supply questions or intelligence”

to other intelligence services, after they

“knew or suspected that the detainee had been or was being mistreated.”

As I said, I have seen in-camera evidence that showed quite how deliberate some of those decisions were—absolutely in the knowledge that they would be used in the process of torture. That was done rather more broadly, even when the intelligence services did not know at all where the detainee was being held, or even whether they were being held legally or not. Those are the consequences of vague legislation that awarded too much power to the authorities.

We might therefore expect clause 27 to tighten up over-loose legislation to make Ministers, officials and agents more conscious of their responsibilities, not less. Instead, it does the exact opposite. Clause 27 would provide an exemption to schedule 4 of the Serious Crime Act 2007. Schedule 4 sets out the circumstances in which assisting and encouraging a crime that occurs overseas is still a criminal offence. Clause 27 means that it would no longer be an offence to assist a crime overseas where someone’s behaviour is necessary for

“the proper exercise of any function of the Security Service, Secret Intelligence Service or GCHQ or...the armed forces.”

In plain English, that would effectively insulate Ministers and officials from responsibility for assisting or encouraging heinous overseas crimes.

To see the potential impact of that, consider the case of Abdel Hakim Belhaj. Mr Belhaj, a Libyan dissident living in exile, was detained and subsequently tortured in both Thailand and Libya. It later emerged that UK information sharing had contributed to his detention and rendition. After years of litigation and wrangling, the Prime Minister wrote a letter of apology to Mr Belhaj, and the Government admitted responsibility for the role that UK intelligence played in his rendition. That was a civil rather than a criminal case, but if officials are certain that they will not face any criminal liability for assisting torture and other serious crimes abroad, reckless information sharing of the kind seen in Mr Belhaj’s case will occur more frequently and with more impunity.

I understand that one reason for the change in the clause is apparently to allow the easier transfer of bulk data. That is an especially risky activity to which to give legal cover. The transfer of bulk data is a euphemism for saying that we give the Americans—principally—so much data that we do not have time to check it all. That is it in a nutshell. As Edward Snowden revealed, that has historically amounted to unimaginably vast quantities of data, of course about suspects, but also about innocent people. Because of the high level of secrecy that applies to current bulk data issues, I have no current UK example to hand, but I can exemplify this by outlining the behaviour of our closest ally, and the principal recipient of bulk data, the United States.

The greatly respected President of the USA, Mr Barack Obama, used to go to the White House Situation Room on a Tuesday once a month to authorise a kill list—20 people who were going to be assassinated by the United States and who were perceived to be its enemies; typically, al-Qaeda officials and the like. President Obama talked proudly of how the best technology—artificial intelligence, algorithms and, crucially, bulk data—was being used to identify targets.

However, that comes with enormous risks, most plainly shown by the case of Ahmad Zaidan, who was selected for targeting by the US National Security Agency based on algorithms using bulk data. Fortunately, he was not assassinated. I say “fortunately” because there had been analysis of his telephone contacts and he had talked to Osama bin Laden and all the al-Qaeda high command, but, before the drone strike was organised, it was suddenly realised that he was the Pakistan office head of Al Jazeera. The analysis had thrown up an innocent man who could have been assassinated.

That is why we must be careful about what is handed over without knowledge of the bulk data. If we give greater legal cover to officials sending bulk data to other countries, cases of bulk data being used in the commission of serious crimes abroad—even against innocent people—will happen more frequently.

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[Sir Jeremy Wright (Kenilworth and Southam) (Con)]

In view of the time, I will only briefly say something about three areas of the Bill. First, amendment 14, in the name of my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) seeks to remove clause 27, which excludes liability for assisting an offence overseas if the relevant behaviour is necessary for the proper function of the intelligence agencies or the armed forces. The key question being: how is that materially different from the defence to encouraging or assisting crime in section 50 of the Serious Crime Act 2007 of acting reasonably?

I am a member of the Intelligence and Security Committee, as is the right hon. Member for North Durham (Mr Jones). As he said, we are due to receive further evidence on clause 27 and we are, therefore, not yet in a position to provide a view on it. It is probably right that I reserve my final judgment until I have considered that further evidence but, speaking personally, I am not persuaded that, within the parameters of the reassurance and protection it is reasonable to offer those acting on behalf of the intelligence agencies or the armed forces, clause 27 achieves anything that the current section 50 defence does not. The Minister will have to explain the difference between acting reasonably and acting in the proper exercise of a function, as this clause requires.

[Mr David Davis]

My right hon. and learned Friend will remember that, when the Overseas Operations (Service Personnel and Veterans) Act 2021 was first brought before the House, the International Criminal Court told the Government, “If you go too far with this and nobody can be prosecuted, we will prosecute.” Is there not the same risk with clause 27?

[Sir Jeremy Wright]

I hope my right hon. Friend is wrong, but the Government have to consider it for exactly those reasons. It would be not only wrong but profoundly embarrassing if the United Kingdom were to find itself in that position.

I hope the Minister can clearly explain the difference I outlined, because the only difference I can see is that it could be argued that “acting reasonably” may be applicable to more circumstances and, therefore, offer arguably broader protection than “acting in the proper exercise of a function.” We have heard it argued that the current defence is not sufficiently legally certain but, from experience, legal certainty is an elusive quarry. The concept of reasonableness is very familiar to the courts in a variety of contexts. Anyone looking for absolute certainty in every case will not find it, because all cases are different and must be considered on their merits.

The second area I want to mention is amendments 8 to 12, in my right hon. Friend’s name, dealing with the potential reduction of damages in national security proceedings where a successful claimant has committed wrongdoing related to terrorism. It is worth noting in passing that such wrongdoing is not limited to convictions for criminal offences, and we need to understand from the Minister what level of wrongdoing in this context would suffice to put someone’s damages in jeopardy.

The operative measure is clause 58(3), which says

“the court must decide whether, in light of its consideration of the national security factors, it is appropriate for it to reduce the amount of damages”.

So we need to know what “appropriate” means—or should mean. Surely it should mean appropriate in all the circumstances of the case and in the interests of justice overall—it would be helpful if the Minister could confirm that—and that there is no presumption in favour of reduction, nor is there an instruction to reduce damages where the factors set out are present. That is how I understand the clause, but I would be grateful if he could confirm it.

Lastly, I wish to discuss amendment 38, which would remove clause 84 and stands in the name of the hon. and learned Member for Edinburgh South West (Joanna Cherry). That clause provides that, save for in very limited circumstances, civil legal aid would not be available in any case where it otherwise would be to those previously convicted of terrorism offences. My concern is that this is a very significant shift in the principles applicable to legal aid. At the moment, we award legal aid on the basis of the merits of the case and the financial circumstances of the individual applying, never before doing so on the basis of their previous character. This change would be very significant and it would need significant discussion, which, by definition, given the clock in front of me, it is not going to get today.

We need to be clear about what we would be saying if we made that change. We would be saying that whatever happens to that individual—however blatantly their rights may be infringed, in cases wholly unrelated to their previous conduct—the state will not assist them to defend their rights as it otherwise would, because of a previous criminal conviction. I am not sure that would be right and I am not sure that if it is, it makes any sense to specify only terrorism offences, rather than any other serious criminal offending. But whether it is right or wrong, we need to discuss it properly and not have it tacked on to this Bill, which is about something completely different, with very limited time to discuss it.