National Security Bill

Debate between Kevan Jones and Steve Baker

2nd reading
Monday 6th June 2022 Commons Chamber

[Mr Kevan Jones (North Durham) (Lab)]

It is a pleasure to follow the right hon. and learned Member for Kenilworth and Southam (Sir Jeremy Wright), and I congratulate him on his recent inclusion in the Queen’s honours list.

This Bill has been long coming; we have been waiting for several years now. The Government have made some improvements in it, but overall it is disappointing. As my hon. Friend the Member for Garston and Halewood (Maria Eagle) said, it is not the comprehensive legislation we were promised and, as has already been mentioned, it does not include the reform of the Official Secrets Act 1989.

The right hon. Member for New Forest East (Dr Lewis), the Chair of the Intelligence and Security Committee, which I have the privilege of being a member of, said that the Committee has called for nearly the past 20 years for the reform of the 1989 Act. I am one of the two remaining members of the Committee who were on it when we considered our Russia report. We made very clear in the recommendations of the report, published in 2020, that there was an urgent need for reform of that Act, which we described as not being fit for purpose. More importantly, we took evidence from the agencies, which all said that the Act was in need of reform. We recommended that it should be reformed, and said that without any major reform the security services would continue to have their hands tied when trying to tackle the job that we give them.

It is surprising that reform of the 1989 Act has not been brought forward in this Bill, because it has not just been raised by the ISC and the security services; the Government themselves have repeatedly said that the Act needs to be changed and reformed. In a 2020 report, the Law Commission also concluded that the Act was “outdated” and in “urgent need of reform”. Like my hon. Friend the Member for Garston and Halewood, I am at a loss as to why this reform is not in the Bill.

The 1911 to 1939 Official Secrets Acts are clearly repealed through the Bill, but if we do not change the 1989 Act, the current problems will persist. As has been mentioned, the requirement to prove damage from unauthorised disclosures is in most cases a real barrier to prosecution, and in some instances leads to more sensitive information having to be produced in court. That is a deterrent; it is a weakness that explains why the Act is not being used. Also, as I mentioned in an intervention on the Home Secretary, the maximum sentence under the 1989 Act is two years. In the Bill, we are introducing life sentences. I do not know what deterrent two years would be, even with the hurdles we have to get over, so I am at a real loss as to why these reforms have not been included in the Bill.

I am not clear from what the Home Secretary said when that reform will be brought forward. We all know how tight legislative time is. I would have thought that once the Government had a large Bill such as this one, they would want to do everything at once. Could it be that there is a lack of time? No, I do not think so, because the changes being put forward have been considered over many years. We need an explanation from the Government as to why this reform is not being done.

[Mr Steve Baker]

The right hon. Gentleman is making some very good points. I rather imagine that the damage that could be caused by an unlawful disclosure could include people losing their lives, and that one problem is that proving that damage could lead to yet further people losing their lives. I do not wish to tempt him where he must not go, but can he give those of us without access to classified information any indication of whether my worst imaginings are in any way accurate? If they are, it seems to me that a life sentence might be appropriate.

[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.

--- Later in debate ---

[Mr Baker]

My hon. Friend makes his point extremely well, but I hope he will not mind if I say that I do not want to be diverted to that subject, not least because I want to foreshorten my speech a little.

My other point about STPIMs relates to the introduction of polygraphs, which is an area that I have not had the chance to research as much as I might have liked. Can my right hon. Friend the Minister let us know whether this is the first time that we have legislated for their use or whether a new principle is being introduced into our law? Polygraphs are not perfectly reliable. I have read the explanatory notes, but I wonder whether their introduction is an innovation.

I am really concerned about the development of certain trends in the rule of law, as evidenced in arguments that I have made. As a result of the Online Safety Bill, we now have the concept that some speech is legal but harmful, which seems to me a fuzzy concept of what is and is not allowed in law. That is not where I want our country to be, but I accept that I am not a learned mind in this place—I am only a humble aerospace and software engineer, and an MSc in computer science does not always cover such difficult matters of fuzzy logic.

The main issue that I want to address is about extraordinary rendition. Schedule 3, “Detention under section 21”, in part 1, “Treatment of persons detained under section 21”, under the cross-heading “Place of detention”, states:

“(1) The Secretary of State may designate places at which persons may be detained under section 21.

(2) In this Schedule a reference to a police station includes a reference to any place which the Secretary of State has designated under sub-paragraph (1) as a place where a person may be detained under section 21.”

Putting it in plain English, the Secretary of State may make provision to detain people other than at police stations, and constables must take those people to those places. Colloquially, when we were looking at extraordinary rendition, those places were known as secret prisons. I would very much like to know from the Minister why we need to nominate other places to detain people. Will they be detained to the same standard as in a police station? I would very much expect so. What are these places? I am aware of some of them, but where are they, and for what reason can people not be detained at a police station?

That point brings me on to extraordinary rendition. Look at what happened to us after 9/11—the wars we waged, the principles of civilisation and freedom that had kept us free and given us something to be proud of and to fight for, and which we undermined. “The Principles relating to the detention and interviewing of detainees overseas and the passing and receipt of intelligence relating to detainees”—a Government document that is freely available—makes it absolutely clear that the

“UK Government does not participate in, solicit, encourage or condone unlawful killing, the use of torture or cruel, inhuman or degrading treatment (‘CIDT’), or extraordinary rendition. In no circumstance will UK personnel ever take action amounting to torture, unlawful killing, extraordinary rendition, or CIDT. The UK takes suggested incidents of this kind very seriously: these allegations against UK personnel are investigated and complaints in this context are brought to the attention of authorities in other countries”.

Having bumped into some relevant officials, I am extremely satisfied that we take this very seriously.

Going back to the earlier commissioner’s report that I read out, I am absolutely not casting aspersions on our brave and honourable staff, every one of whom, on the few occasions I have met them, I have been incredibly impressed by. I believe that they are seeking to uphold the very highest standards. That is why I put it to my right hon. Friend the Minister that this Bill would be a great moment to put these principles on a statutory footing. In that way, in future, when there is another panic over terrorism and security under another Government who are perhaps not as strongly principled as this one—perhaps with not quite the same culture at the top of adherence to and compliance with the law—we can all be reassured that we will not allow ourselves to come on to conduct that I will touch on in a moment.

[Mr Kevan Jones]

Since the issue of rendition, we have had the consolidated guidance and now we have the principles where the warrants are overseen by the Investigatory Powers Commissioner. Having reviewed the principles in terms of the ISC, it is clear that they are quite robust not only in the safeguards they give but in training people throughout the organisation to ensure that they adhere to them.

[Mr Baker]

I have read enough of the various documents to know that the right hon. Gentleman is absolutely right, and I am glad to agree with him.

I do not want to open up too many old wounds, but I have read the excellent book, “Account Rendered”, by the now Lord Tyrie, which includes some purportedly declassified top secret documents on how the CIA conducted their interrogation techniques. I very much hope that Ministers responsible have read those documents, because I found it quite nauseating. I am ex-forces. If you are ex-forces, then at some time in your life you are actually committed to killing our enemies, but even so I found it nauseating to see just how degrading authorised American interrogation techniques could be. The list of what they would do includes the attention grasp, or grasp by collars; walling, or slamming people against a false flexible wall; the wall standing stress position; the facial hold; facial slap stress positions; waterboarding—I think we can pretty clearly be disgusted by that—and cramped confinement, including putting insects in a box with a person who you know has a phobia. Imagine combining all these things using nudity, control of diet and restraint, putting them all in sequence deliberately for prolonged periods. That is what the declassified documents in “Account Rendered” give an account of.

I completely agree with the right hon. Member for North Durham (Mr Jones) that these principles are absolutely robust, and I am 100% certain in my own mind that our brave officials—men and women good and true, noble and decent—would never want, in any sense, however distant, to be complicit in extraordinary rendition for the purpose of degrading treatment. I am absolutely clear about that. But our job in this House is not to simply trust the great and good people that we have today; it is to put in place a law that makes sure that in future everyone can understand that we do not do these things, not least because showing that we are on the right side of the argument will help us to recruit agents overseas.

I am dead serious about this. It is no reflection on my very high estimation of the people who serve us and keep us safe; it is about worries about the future when there is another panic about another terrorist attack. I say to my right hon. Friend the Minister: if public-spirited lawyers draw up clauses that can put these excellent, robust principles on a statutory footing, I will certainly seek to maximise support for it, because in future we must make sure that no Government of any colour can ever discredit our great people by raising even the slightest suspicion that we might have been even distantly complicit in cruel, inhumane and degrading treatment of prisoners.