Let me start by saying that, unusually, I agreed with every word that was said by the right hon. Member for Dundee East (Stewart Hosie). He will have to get over that in his own time! Indeed, I can make broadly the same comment about nearly all the Back-Bench speeches that have been made so far. There has been considerable consensus on both sides of the House.
There is no doubt that the Bill is needed, and it is probably overdue. However, like all national security legislation, it is written from the point of view of the enforcers. The enforcement agencies’ lawyers will have done most of the drafting, so it is no surprise that it leans towards the state, and no surprise that parts of it are drafted in vague terms. I can best exemplify that by referring to one of my own mistakes.
Clause 23 allows Ministers effectively to authorise criminal acts. I was one of the Ministers who took through the Intelligence Services Act 1994, which created the Intelligence and Security Committee. It also created a number of rights. Section 7, which was known as the “007 clause”, conferred the right, in effect, to commit crimes on behalf of the state.
I went to see the then head of MI6, and I said to him, “Why do you need this? You do not even kill people any more.” His response was “That’s because you do not ask us to, Minister.” I resisted the temptation to pursue what I assume was a joke. Nevertheless, the presumption at the time was that the legislation would be used for bugging, burglary and blackmail and little else, as those are the three crimes typically used by the agencies. In practice, within a decade or so it was being used to excuse rendition, and subsequently, of course, torture and all the things that followed from that. I am not sure what the limits of its actions are today, but that demonstrates
clearly to me that we have to be very precise indeed about what the House is authorising Ministers to do within the limits of the law.
What is more, this carve-out—which, as I have said, could be used for purposes that we are not considering today—could end up being extremely damaging to us. After all, we criticise nations from Russia to Turkey for the things that are done there, including the assassinations of journalists, presumably authorised by Ministers within those Governments under their legal systems, and here we are creating the equivalent within our own legal system. It is not too hard to see how that could be turned against us in propaganda terms.
This is not the first time that we have done that in recent years. Just a couple of years ago, with the Overseas Operations (Service Personnel and Veterans) Bill, we had a proposal that would have exonerated British soldiers who had committed crimes abroad, including murder and torture and war crimes. I proposed an amendment to the Bill, which did not get very far until Lord Robertson, the ex-head of NATO, and six Chiefs of the Defence Staff signed up to it in the Lords whereupon the Government had to pay attention. The ICC said that if we did this, it would prosecute. That is the other thing that we need to bear in mind with this—we are not necessarily the last port of call in judging what can and cannot be prosecuted.
My view on clause 23 is that we should be very careful about defining exactly what it is that we are attempting to permit. We should not leave any doubt whatever, or we will find that it will both fail and do us harm, let alone the moral breach that we will be committing.
My second issue relates to the matter raised by the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, whose statements are more authoritative than those of anyone else because the Bill is effectively modelled on legislation that he reviews. He says that it is unclear why we need an additional regime for the forfeiture and freezing of assets intended for use in terrorism, when such a regime already exists in law. His concern about it is that the new regime would use a lower threshold, requiring only a “real risk” that the funds would be used in terrorism, rather than that they were “intended to be used” for those purposes, He says that that “goes further than necessary”. Nobody in this country knows better where the appropriate line should be drawn than him, and we should be very careful to pay attention to what he says.
Jonathan Hall also questioned, as did my right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright), the need for “symbolic” restrictions on access to legal aid based on something other than reducing the risk of terrorism. It would run the risk of the farcical situation where someone convicted of terrorism-related offences perhaps 20 years ago would be unable to rely on civil legal aid in seeking an injunction against a domestic abuser. I am quite sure in my mind that that is not what the Minister or the Government intend, but we should make it very plain that that is not the case, and amend it accordingly.
I agree with everything said by virtually everybody who spoke on the need for an update of the Official Secrets Act 1989. I am not remotely surprised that the Government are hesitant about that; there is a huge dammed up resistance to changes because they have to get it right first time.