National Security Bill

Lord Hope of Craighead Excerpts

Committee stage
Wednesday 21st December 2022 Lords Chamber

[Lord Purvis of Tweed (LD)]

My Lords, it is a privilege to follow the noble Lord. I share his views and those laid out so well by the noble Lord, Lord Carlile. I thank the noble Lord, Lord Bethell, for allowing us to pose some fundamental questions, but I share the concerns of others who have spoken about whether this amendment answers them. Who are the enemy, and what is an attack? These are not easy questions to answer. I respect those who have worked in our intelligence services and have grappled with these questions over many years. Framing legislation to neatly define who our enemy is at any given time is not easy, nor is it easy to define what an attack is.

From reading the notices provided by MI5 earlier this year and the speeches made by intelligence services leaders, in many respects, it seems that we are under perpetual attack. It is hard to define in the modern sense those grey areas that the noble Lord, Lord Evans, and I discussed on Monday. What is an attack and what is preparatory to an attack? Perpetual cyberactivity can be either an end in itself or preparatory to a bigger effect. In many respects, we are in a state of war with Russia, with hybrid and economic warfare. Our sanctions are not penalties for actions; they are meant deliberately to overtly change the behaviour of a foreign power. I understand the rationale behind the amendment, but it perhaps does not address that clearly. When the noble Lord, Lord Bethell, responds to the debate, I would be grateful if he could clarify the meaning of “an attack”.

I welcome proposed new subsection (2)(e), which references acts that

“prejudice the security and defence of the United Kingdom”.

This is along the lines of what we were arguing for on Monday—trying to sharpen these areas. So we have persuaded someone on this—if not the Minister.

I think this raises another question, which was also raised on Monday. If a foreign intelligence service carries out activity which is not authorised or approved by our intelligence services, the Minister said that that was prejudicial to the safety and interests of the United Kingdom, but he did not say it was unlawful. This now raises an issue that we have to debate further in Committee. Some of the activity which could be defined as attacks or activity against the security and defence of the United Kingdom is not currently unlawful. We need to tackle that.

I close by agreeing very strongly with the noble Lord, Lord Anderson, that either in further consideration of this Bill or separately, we must look at how we interact with the issue of mercenary groups and groups that we would categorise as terrorist groups but that other countries would categorise as civil society groups or NGOs, which are fully funded and equipped by foreign states and operate in other countries, but are threats to UK nationals and UK interests. I travelled to north Iraq many times during the time when Daesh had overtaken Mosul. I saw many groups that were fully funded by Iran operating, sometimes with our compliance, sometimes with our approval and sometimes with our co-operation. At other times, they were operating absolutely against those interests, as with the interaction between some of the terrorist forces and some of the rapid deployment forces. I have seen first-hand in Sudan and elsewhere the Wagner Group, which is fully funded and equipped by Russia. How we cover mercenary and other groups that are not neatly defined within the proscriptions of terrorist legislation is something we also need to tackle. While I do not think this amendment would enable us to tackle this, it has allowed us to raise some of these fundamental questions, so I am grateful.

[Lord Hope of Craighead (CB)]

My Lords, I hesitate to intervene in a debate after speakers who know a great deal more about this subject than I do, but I wonder why “treason” has to go into the heading of this proposed new clause. It does not add anything to the meaning of the words that are there already:

“aiding a hostile foreign power”.

The problem is, if you use the word treason you raise the temperature of the debate, for the reasons mentioned already.

If there is a gap to be filled, as the noble Lord, Lord Anderson, has suggested, I invite the Minister and the noble Lord, Lord Bethell, to drop the word treason. It is unnecessary, as there is enough description in the headnote as it is. For all sorts of reasons, when you use the word treason people think of all sorts of other things. It is unnecessary to get into that debate if you can describe the offence in the remaining words as simply aiding a hostile foreign power. People may say it is treason but you should not label it as such for the purposes of the administration of justice.

--- Later in debate ---

[Lord Bethell (Con)]

My Lords, I am enormously grateful for the thoughtful and detailed debate we have had on this amendment. I will address a few of the points—I cannot address all of them—and I will seek to be brief.

This amendment is not about the past—it is not about Clive Ponting or Lord Haw-Haw and what happened a long time ago—but about the future. The future has states that use as a strategy the suborning of our citizens as an important part of hybrid warfare, at a scale and with a sophistication that we just have not seen for more than a generation—for two generations—and which, given the way in which they do it, we have probably never seen before. That is why this amendment is important: it is to combat a strategic threat from our enemies.

It fills a gap. The suborning of our citizens is not wholly covered by everything in the Bill at the moment, but I take on board the points made by the noble Lords, Lord Carlile and Lord Anderson, and the noble and learned Lord, Lord Hope, and others on this. Duplication is not a sin in drafting laws. I have seen it happen before and I think that there is a gap that could be occupied by an amendment such as this.

A number of noble Lords asked what kind of attack this might cover. It would absolutely cover the contribution to a cyberattack. That is exactly the kind of modern warfare that our enemies are seeking to suborn our citizens to join in on, and therefore we should be thinking very much indeed about all the contributions our citizens could make to hybrid war when we are thinking about this.

As regards the impact on ISIS or a terrorist group, I completely agree with the noble Lord, Lord Carlile, that ISIS is not going to be intimidated. I am more worried about Kimberley—the person who does not know that they are doing something wrong by helping one of our enemies.

Lastly—I will try to keep my comments brief; I appreciate that I have not tackled all of the points—I confess for a moment here to a massive cognitive dissonance. Noble Lords and noble and learned Lords have spoken about their anxieties about the word “treason” as if it was a super-hot piece of vocabulary that was too hot to handle. I simply do not have that sentiment at all; it does not touch me in the same way that it clearly touches others. I thought the noble and learned Lord, Lord Hope, spoke very well about that. Words such as theft, rape and terrorism are important parts of our legal vocabulary. I regard treason as simply akin to any one of those, and the arguments made—

[Lord Hope of Craighead (CB)]

The problem is—I speak as a former prosecutor—that if you are facing a jury with a charge that has “treason” on it, that elevates the temperature of the debate. It is much easier if you concentrate on the actual words of the offence that you are trying to get the jury to focus on. That is the point. The prosecutor has to decide whether he or she wants to use the word treason at all in the charge. It is better to avoid it if you can get the substance of the defence into ordinary language and get the jury to consider the facts in the light of ordinary language without being diverted by the more exciting “treason”. That is my point.

[Lord Bethell (Con)]

My Lords, pragmatism is completely right; I understand the noble and learned Lord’s point and I do not doubt his insight in the slightest. I have a slightly different perspective. That seems to be an argument to rehabilitate the thought rather than to avoid the crime. If something is happening that threatens our national security and is a crime, we need to think of ways of communicating that to juries and to prosecutors. In the same way, juries sometimes struggle with “rape” and are sometimes reluctant to convict—but obviously that is not a reason to not take rape to trial. Given the mood of the House, I beg leave to withdraw the amendment.