National Security Bill

Lord Carlile of Berriew Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

[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.

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[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.

[Lord Carlile of Berriew (CB)]

I apologise for interrupting the noble Lord. Before he moves on, could he give us two figures which I am sure he must know or could be given very quickly? First, in relation to the security services, how many cases have there been in the past 10 years of the kind we are discussing in which the Director of Public Prosecutions has had to make a decision as to whether a prosecution should take place? Secondly, how many events have been affected adversely over that period by the existing state of the law?

[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.

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[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.

[Lord Carlile of Berriew (CB)]

I am very sorry to interrupt the noble Lord again. He said that this would not remove the oversight of the Secretary of State and I absolutely accept that. Of course the Secretary of State will have oversight, but does the noble Lord accept that authorisation by the Secretary of State, at least in some cases, will no longer be a requirement?