National Security Bill

Lord Beith Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

[Lord Hacking (Lab)]

My Lords, I follow on from the early comments from the noble Lord, Lord Anderson, about the confusion and difficulties of interpretation of the provisions before us and similar provisions that have created certain headaches, which he referred to, for those who have a responsibility to enforce our laws. I have already complained about the length of this Bill, which has 65 pages and schedules of double that length. Once again, we are not having any thoughts about the users of the Bill, those who have to enforce the provisions of our legislation. I refer to members of the Security Service, the Secret Intelligence Service, GCHQ, police officers, lawyers—perhaps we have no compassion for their difficulties in interpretation, although I do as I am a lawyer—right up to the judiciary. I am sorry if I am bleating again about this problem, but it continues in our legislation and here is another bad example.

Since I am standing up, I shall make a few comments about the provisions in Clause 28. There must be extreme worry that they give Ministers and officials effective immunity from crimes such as targeted killing and torture. Clause 28 blocks accountability for Whitehall involvement in war on terror crimes and, to take a broader view, Clause 28 undermines the UK’s centuries of legal prohibition of torture-related crimes and the UK’s position when criticising other Governments for their crimes. One thinks of the example of the awful murder of Jamal Khashoggi in Turkey. Indeed, looking broadly at these provisions, one is reminded of President Bush’s tenure of office in the United States of America, when certain members of the Justice Department issued papers justifying torture, such as waterboarding and so forth, and saying that it fell within the constitution of the United States. This Bill brings out many of those unhappy memories.

As for the alternatives, we have had the alternative of the noble Lord, Lord Purvis, who said towards the end of his speech that he agreed with my noble friend Lord Vernon, and of course he is quite right about that. Oh, sorry; Coaker is his surname—I am referring to my noble friend Lord Coaker with extreme familiarity, and to his application to remove Clause 28 altogether.

I have not been able to study this in detail, but I am told that the provision proposed by the noble Lord, Lord Anderson—I mentioned this to him outside in the Lobby, just before we came in—does not go far enough to disable sanctuary to Ministers of State and so forth. We are not saying that they are going to commit these crimes, but our law should not permit those down the line to do so. It is all right for the top members of the intelligence services to behave themselves, but then you may not get the same dicipline down the junior line and there is misbehaviour that should be punishable and for which there should not be immunity.

[Lord Beith (LD)]

My Lords, the provisions of this clause and its defects have been set out very well by my noble friend Lord Purvis of Tweed, and there has been some really helpful analysis from the noble Lord, Lord Anderson.

I will just make a preliminary point. The inclusion of the Armed Forces in this provision is wholly inappropriate, simply on the basis that it is the wrong place to deal with what is a much wider problem and raises many other issues—battlefield situations; civilian situations such as we experienced in Northern Ireland, where we have had difficult court cases to deal with; and issues around the proper defence that veterans might wish to advance when involved in contentious matters. To push this into a provision about intelligence services does not seem the right way to deal with it.

One qualification that the noble Lord, Lord Anderson, made was that there may be a case for including actions of the Armed Forces in direct support of the intelligence services, but that is as far as I think it reasonable to go on an issue of wide importance that affects the international reputation of this country. I would rather we were simply dealing with the issue of how we provide the appropriate cover for intelligence services when they have reason to act outside the law. What an easier world it would be if we never asked intelligence services to act outside the law, but that is not possible. The range of things that intelligence organisations can become involved in if they are acting outside the law includes things that, on discussion and explanation, most people would find understandable and acceptable, right through to things that are utterly unacceptable—and which have happened. We think particularly of torture and rendition to torture, which has been our worst recent example. Many people would understand that, if you are dealing with a covert human intelligence source engaged with a terrorist group or some other group of people, at some point you will inevitably get into a situation in which both that source and the officer running that source have questions about what is permissible. You need a mechanism that can handle those things, and we thought we had one.

The provisions we have had until now have worked in a wide range of cases, and the ultimate recourse in difficulty is the decision of the Attorney-General on whether a prosecution is in the public interest. On the face of it, it perhaps looks too limited in some ways but, as I say, for the most part it has worked. There is a case being made now that in some situations it is not sufficient, but to move from that to a general immunity, not restricted in the kinds of illegality it can cover, is worrying and dangerous. To do so by way of a system that does not embody authorisation at its heart is a really serious mistake, and I am glad that the noble Lord, Lord Anderson, touched on this.

It cannot be acceptable for an intelligence agency to be able to act in a way which goes outside the law, without having had to make reference to some democratic authority before doing it, whether by way of a class provision or because of the serious nature of the specific incident or action that is involved. Were we to allow that to happen, which will be the case if this provision goes through unamended, Ministers could then always say “I knew nothing about it—it’s not part of my job to know. I just tell them to get on with it and let me know when they’ve finished”. That situation is not acceptable for either Ministers or the agencies, which then of course take all the blame and have to make political decisions—for example, on whether taking such action is going to cause massive international complications. Should an intelligence agency decide that, or should it be decided at the highest political level? Of course, it leaves accountability out of the system altogether.

The accountability is inevitably limited by the nature of what we are talking about. It may depend almost entirely on the judicial forms of accountability which the noble Lord, Lord Anderson, helpfully described—the commissioners and the tribunal, supported also by the work of the Intelligence and Security Committee, which should be told more about the kinds of operation that have to take place. There are mechanisms to have that accountability, which will only rarely be able to be exercised on the Floor of this Chamber or that of the Commons because of the nature of what is being done, but there should be a process of authorisation.

What I fear out of all this is either Ministers being able to say, “This is all very regrettable, but I knew nothing about it”—when it is not something that Ministers would be consulted about—or a situation in which the service says, “We’d better not tell the Minister because it would be very difficult for him to authorise this”. These are great dangers, and we must not pass legislation which fails to address them.

[Lord Carlile of Berriew (CB)]

My Lords, as is his wont, the noble Lord, Lord Beith, started with a very cogent and important point. The issue about the Armed Forces is both legally and politically distinct. It hardly needs explanation in this Committee as to what those distinctions are, for they are evident to us every time one of those cases is considered.

It is also a pleasure to follow the noble Lord, Lord Hacking, whose return to your Lordships’ House is very welcome to us. He brings a richness of experience on issues which include the quality of the jurisdiction within which we live. Great attention should be paid to the point he made about the way in which our jurisdiction should retain its fundamental values.

In the provisions suggested by the Government in the Bill, I am afraid that I see the words “double standards” above the mirror every time one looks at them. Immunity is inimical to our system of law—full stop. Take the Khashoggi case as an example. I am not suggesting for one moment that we in this country would do anything quite as bad as that murder, nevertheless there could be other outrages committed. If we look at the Khashoggi case and the way that the country that committed that outrage has brushed it under the carpet of immunity, we see how dangerous it is to go down this slippery slope. I will not say a great deal more, but it is a particular pleasure for me to be able to take, as it were, the role of junior counsel to my noble friend Lord Anderson. He opened these amendments with superb and supreme clarity, in my view, and I would only muddy the waters if I said too much more.

I want to make a couple of other points, though. It seems to me that the existing involvement of the Secretary of State in at least some of the decisions to which we are referring does much more than give cover or protection to the individuals who might commit the acts complained of. It shows that political responsibility is taken for those acts, and it is real political responsibility because that Secretary of State is almost always accountable to the other place and will have been elected to it. Misleading actions on the part of, heaven forfend, any Secretary of State could have very serious repercussions in our democratic polity.

--- Later in debate ---

[Lord Beith (LD)]

The Minister has repeated several times his reference to the Armed Forces, but, up to now, always in the context of support for intelligence organisations’ activities. It would be helpful if he could clarify—he is nodding; I think he is indicating that he might do so—whether the inclusion of the Armed Forces is intended to confer the immunity on their general range of activity or is intended to be confined to their support for the intelligence agencies.

[Lord Sharpe of Epsom (Con)]

The noble Lord has pre-empted me by about a second. A number of noble Lords have asked why the Armed Forces are included, including the noble Lords, Lord Purvis, Lord Anderson, Lord Beith, Lord Carlile and Lord Coaker. The Ministry of Defence collaborates with a diverse array of allies and partners, with intelligence sharing often forming a key part of such efforts. The Armed Forces also work closely with the UK intelligence and security community, helping to protect the UK from myriad threats overseas. The protection provided for in Clause 28 seeks to ensure that where our Armed Forces collaborate and provide authorised operational support with international partners, as with UKIC, support can continue without exposing individual staff or officers to personal risk of criminal liability. I hope that answers the question to the noble Lord’s satisfaction.

[Lord Beith (LD)]

It would answer the question if the clause was so defined as to limit the extent of the immunity to acting in support of the intelligence agencies. However, as I read it, it does not do that.

[Lord Sharpe of Epsom (Con)]

I will continue, but I will come back to that, if I may.

I want to return to the question asked by the noble Lord, Lord Coaker, and the noble and learned Lord, Lord Hope, seeing as we are talking about the application of this, and also to the point on torture. There will be no change to the UK’s other domestic and international legal obligations, including those under the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and international obligations on assisting an unlawful act, which is Article 16 of the International Law Commission’s articles on state responsibility for internationally wrongful acts. I hope that is unequivocal enough.