National Security Bill

Lord Judge Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

Finally, I will refer to the role of the Director of Public Prosecutions, and I apologise for repeating something I have said before. Whatever the evidence, facts and national security elements, when there is a proposal that there should be a prosecution, even if there is evidence that might realistically lead to a conviction, the second part of the Crown Prosecution Service code test requires that the Director of Public Prosecutions should consider whether it is in the national interest to prosecute. Of course, there will be cases in which there may be evidence of criminality but it may not be in the national interest to prosecute; for example, where there was some unrevealable and key national security information that could not be disclosed in a court, thereby meaning that there could not be a fair trial, or where the individual concerned was faced with an impossible decision at very short notice, possibly with only seconds to decide—maybe the seconds it takes for the brain to send a message to the finger that is literally on a trigger. That seems to be a constitutional protection which is well provided for in the set-up and architecture we have. If we allow immunity, as the Government are asking, we will damage the quality of our law and our reputation among our allies in the world, and that is why I support the amendment tabled by my noble friend Lord Anderson, to which I have added my name.

[Lord Judge (CB)]

My Lords, I apologise for not being present at Second Reading; I was doing other business in the House. I feel particularly humbled, because if my noble friend Lord Carlile thinks that he was the junior to my noble friend Lord Anderson and therefore was short, I have reverted to something I have not been since 1964: a pupil. Pupils are allowed to take notes, but they are not allowed to say anything, and, if they do say anything, that marks the end of their pupillage—they are not wanted any longer. I hope noble Lords will forgive this pupil if I say just a few words in support of my noble friends.

Just look at Clause 28 and what it means. It means that we are creating an immunity from prosecution before any facts are known, before any inquiry has been made and before a crime has been committed. We are, in effect, rubber-stamping the possibility that a crime may be committed with no further investigation in public. We all understand that there must be cases of immunity: sometimes because the facts require it and sometimes because, to get at the facts, people are offered immunity if they tell the truth so that the worst features of a case can be grasped. We also recognise authorisations; that is an ordinary, elementary part of the system.

However, what if we say to a special individual or a special group of individuals, “Ah, you will not be prosecuted, whatever you do in any circumstances, because you are immune”? I hate to keep using this phrase in this Chamber, as I do from time to time, because your Lordships all understand it, but what is left of the rule of law if some of our citizens are entitled to break it with immunity and commit crimes with immunity? There is a perfectly good defence in the current Act, as the law stands, and there may be better defences. Indeed, I agree with and support the amendment proposed by the noble Lords, Lord Anderson and Lord Carlile. But what does Section 50 provide? It provides that an individual may, in circumstances that would otherwise be an offence, put forward that it was reasonable. That is a very good start. He may want the reasonableness of his behaviour—he will always want the reasonableness of his behaviour, if he really wants to prove that it is reasonable—to require an examination of all the facts. What happened? What was the situation? But that would be a defence, not an immunity, and there is a huge difference.

We all recognise, for example, that if someone is charged with an offence of violence, murder or serious bodily harm, of course he or she may say that they were acting in reasonable self-defence. They may ask for the circumstances to be looked at as they were. “Do not demand perfection”—as we do not—“in the face of an upturned knife or a gun, or a mob coming at me. Make sure that it is reasonable.” If the prosecution fails to demonstrate that it was not reasonable self-defence, there has never been a crime at all. It is decriminalised, but that is not immunity.

When I looked at this, I asked myself whether the House of Commons Library statement on it was correct. It says:

“The provision therefore appears to be intended to extend immunity from criminal prosecution to actions which could not be proved to have been reasonable.”


I agree with that analysis, and I would like the Minister to refute it if he can. But that is rather shocking, is it not? You can argue that maybe the burden of proof in Section 50 should be amended so that the burden is not on the defendant to prove that he acted reasonably, and it is for the prosecution to prove that he acted unreasonably. You might do that—and you might, as I said earlier, create different defences. You might create specific defences for different parts of those covered by Clause 28, such as the Armed Forces and, if I can call it so compendiously, the Secret Service.

Can the Minister then ask himself what the difference is between acting reasonably in Section 50 as it stands and acting in the proper exercise of the particular function, as is proposed here? Are we really going to legislate that an unreasonable exercise of function must always be treated by previous decision as a proper one, for which there can be no consequences? If so, there is no difference. What are we doing? Is it consistent with the rule of law to grant anyone, or any group of people, immunity from prosecution for serious crime before any facts have been examined? While we are about the rule of law, where does that leave the unfortunate victim of the crime? It leaves them with nothing.

If it is felt that we need to amend any part of the law, as is proposed here, we need to amend Section 50 as I have suggested and we need to use the amendment that the noble Lord, Lord Anderson, proposed. We must create a specific defence that recognises that there are particular circumstances where criminal liability will not follow. We must create a reasonable self-defence issue for those who carry out these duties for us.

[Lord Hope of Craighead (CB)]

My Lords, I think we need to remind ourselves that the United Kingdom is a party to the torture convention. The amendment in the name of the noble Lord, Lord Purvis of Tweed, raised a red flag in my mind because, when I saw the word “torture” and the implication in his amendment that Clause 28 as it stands could extend to granting immunity for acts of torture, that seemed to me plainly contrary to our obligations under the torture convention.

It is worth remembering two things about that convention. The first is that all states parties to it are prohibited from authorising torture in any circumstance. It is also an unusual convention because it creates a universal jurisdiction; in other words, any state party which finds somebody who has committed torture within its jurisdiction, wherever he comes from, can prosecute that individual for the act of torture. The idea of granting immunity from acts of torture, which is what this clause seems to do, is a false idea because you certainly cannot do that with regard to other states parties to the torture convention.

It seems to me that Clause 28 is fraught with danger for that reason. Therefore, I very much support the amendment in the name of the noble Lord, Lord Anderson.