National Security Bill

Lord Macdonald of River Glaven Excerpts

Committee stage
Monday 19th December 2022 Lords Chamber

[Baroness Manningham-Buller (CB)]

I will not take very long; I will just correct the suggestion of the noble Lord, Lord Wallace, that economic pressures on national security are a new addition. The Security Service Act 1989—the noble Lord, Lord Beith, who is not in his place, referred to this—talked about protecting the

“economic well-being of the United Kingdom”.

This is not a new issue. That is a point of clarification, for which I have not taken too much time.

[Lord Macdonald of River Glaven (CB)]

My Lords, on the minor tiff between the noble Lords, Lord Pannick and Lord Carlile, both of whom I have great respect for, I am inclined to side with the noble Lord, Lord Carlile. I have no doubt at all that economic well-being is an aspect of national security. It is worth observing that Clause 2(1)(d) requires that

“the foreign power condition is met in relation to the … conduct”

in question. In Clause 29, the “foreign power” condition is:

“For the purposes of this Part the foreign power condition is met in relation to a person’s conduct if … the conduct in question, or a course of conduct of which it forms part, is carried out for or on behalf of a foreign power, and … the person knows, or ought reasonably to know, that to be the case.”


That is the sort of conduct that we are talking about. We are not talking simply about one commercial organisation stealing a science secret from the University of Oxford; we are talking about this conduct being carried out at the behest of a foreign power, which rather colours the matter in the way that the noble Lord, Lord Carlile, described.

--- Later in debate ---

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the Minister has given no quarter. I suppose that is to be expected on the first day of a Committee on a Bill, with the Government defending their position as thoroughly as he has done. I hope that when he does read Hansard, as he has just promised to do, he will realise that there are a great many areas in which flaws in the Bill have been exposed—and exposed in particular by this group of amendments—where it is quite plain that conduct that ought not be criminal runs the risk of being criminalised. The question asked by my noble friend Lord Purvis of Tweed just a moment ago exposed the danger for people working for a foreign intelligence service if they are British citizens; they are plainly caught. There are a number of areas where assisting a foreign intelligence service, for instance, gives rise to particular difficulties.

Before I go on to any detail, let me say that it is a dangerous path for a Government to say that they do not believe that there would be many unjustified prosecutions because the public interest test for a prosecution would not be met. Let us remind ourselves that the prosecution services have to consider two things: first, whether there is a reasonable chance of a conviction on the evidence, and, secondly, whether it would be—

[Lord Macdonald of River Glaven (CB)]

Realistic.

[Lord Marks of Henley-on-Thames (LD)]

“Realistic” is better than “reasonable”; the noble Lord knows far better than I what the test is.

The second point is whether it would be in the public interest to prosecute. That is a decision made by prosecuting authorities. What we are concerned about in this Committee is what conduct is criminal and merits a conviction in a criminal court. That carries with it the question of how a judge will be constrained to direct a jury as to what criminal conduct is. We have to get that right. Nowhere is that better shown than in this group of amendments.

The noble Baroness, Lady Jones of Moulsecoomb, was referred to jocularly in an earlier group by the Minister, the noble Lord, Lord Sharpe, who said that she often does not agree with government policy and the interests of the United Kingdom as defined by government policy. Of course, he is right that she often does not agree with government policy, but she is right to point out the danger of ill-thought-out laws that go too wide, criminalising behaviour that is no more than the democratic expression of dissenting views. That is one of the evils at which this whole suite of amendments that we have tabled is directed.

An example of how the Bill goes too far was highlighted by the response of the noble Baroness, Lady Manningham-Buller, to my Mossad example. She said that, of course, Mossad operating in the United Kingdom would be—I forget the phrase she used—notifiable activity, or it would notify of the activity. That is not the concern I was expressing. The concern that I and others were expressing is that a private citizen helping a foreign intelligence agency in the interests of the United Kingdom or compatible with them, without a government sanction and without working for the Government, would be criminalised. I suggest that it is wrong for that private citizen to be dependent on the Government, prosecuting authorities or the Attorney-General taking the view that the public interest test was not met.

In connection with the points made by the noble Lord, Lord Pannick, we simply heard no answer to his question about the tendering of legal advice. I know the Minister said that consideration would be given to that, but that calls into question the whole gamut of queries raised in this House, in this Committee and elsewhere about where the Bill goes too far. I suggest that where a Bill is too wide because it offends against human rights so that human rights are infringed and obviously infringed, the law can become positively dangerous—that is why the JCHR position taken on a number of these amendments is so important; I agree completely with the noble Lord, Lord Coaker, on this. We do not just have to consider a benign and friendly Government steeped in the traditions of British democracy. As the noble Baroness, Lady Chakrabarti, who is not here today, often says, you have to consider the possibility arising of a Government who are wholly against the traditional freedoms that are protected by our law on human rights. I suggest that that is the danger that we are concerned to defeat.

I therefore invite the Minister and his colleagues to go away and think very carefully about the breadth of these clauses and about the strength of the amendments that we have suggested to them, and to discuss with those people who have proposed amendments—we will all be willing to discuss these amendments and any refinements there should be; we are not wedded to the wording as it is the principles that are involved. Thus, by the time the Bill comes back on Report, they can be far more clearly defined, and the intent to prejudice national security—the subject of the Bill—should be clearly made out before anyone is subjected to serious criminal consequences as a result of misguided prosecutions and convictions that will inevitably flow from the misguided wording of the Bill. Having said that we will discuss it, at this stage I beg leave to withdraw the amendment.

National Security Bill

Lord Macdonald of River Glaven Excerpts

Committee stage
Wednesday 11th January 2023 Lords Chamber

I hope that the Minister, in responding to this debate, will be clearer than at Second Reading. I think that the justification the Government have provided is not strong enough. The expansions are far too strong. There are concerns that this would provide immunity, and there is a lack of risk assessment, for some of the serious crimes that I indicated. The preference would be for the whole clause to be taken out—I agree with the noble Lord, Lord Coaker, on our contention that the clause should not stand part—or at the very least for the Government to be very clear with regard to the interaction on the very serious offences outlined in my amendment. I beg to move.

[Lord Macdonald of River Glaven (CB)]

Before the noble Lord sits down, I just wonder whether he considers that there may be a difference between intentional killing, on the one hand, which may or may not be wrong, depending on the circumstances and context, and torture and sexual violation on the other, in respect of which it is very difficult to conceive that they could ever be right. Does he think that there may be a distinction?

[Lord Purvis of Tweed (LD)]

I understand the case. The Consolidated Guidance to Intelligence Officers and Service Personnel does not make the distinction. It does make the distinction that there is a lack of clarity when it comes to cruel, inhuman and degrading treatment and punishment. Our definitions of that may differ from those of some of our allies, or of others we are working with. For the other two areas, there is no distinction as provided for under the consolidated guidance. Indeed, the risk assessment criteria that all officers currently have to operate under—the checklist that exists within the guidance that they have to go through before entering into any of the security work with agencies—include all of these areas, including where senior personnel and legal advisers conclude that there is risk of torture or CIDT, and also lawful killing. This is in addition to what authorisations under the ISA may bring about.