Amendment 53 is a simple amendment, which merely inserts at the end of Clause 6(7) a definition for “national security” as meaning an operation of the intelligence or military services. If I say “simple”, it is probably deceptively simple, because I fully appreciate that its consequences are far from simple. Indeed, the noble Baroness, Lady Manningham-Buller, has very kindly told me that she does not agree with this approach, and as she has forgotten more about national security than I will ever know, I await with interest what she has to tell me on the other side of this coin.
I make two background points. One is that I am not wedded to the wording of the amendment. This is just the best that the organisation Reprieve and I could come up with. However, I am wedded—this is the second point—to the idea of a debate, so that we can explore the advantages and disadvantages of having a definition. Why, on balance, do I think that there should be a statutory definition? I suspect that, over the years, the absence of a definition has given the Secretary of State quite a lot of freedom. It may or may not, in the past, have been useful and helpful to have a flexible definition, but we are now looking at different things in the Bill and I think that the arguments about flexibility come under more stress and strain.
I will share with the Committee some examples of the flexible use of the phrase “national security” in the past. Some 40 years ago I applied to join the Foreign Office and it turned me down, greatly to its good fortune. I was told in my interview that if I had certain sexual preferences, this would give rise to questions of national security. More recently, I recall an elderly heckler of the then Prime Minister Tony Blair being detained under prevention of terrorism laws, which presumably also could give rise to questions of national security. The rather graphically described “spy HQ” overspend on both the MI5 and MI6 buildings, whose costs overran by £226 million, was able to be discussed only in part on grounds of national security.
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Those are some of the different sorts of issues that have given the Minister of the day discretion to use that particular term. I accept that that was then and this is now, but under this legislation, the Secretary of State has the power to use “national security” as a trigger for the closed material procedure, with all that that entails, and which noble Lords have been discussing these past few days in Committee. Given these new powers, “national security” needs to be defined, first, and not least, to avoid the danger of citizens being swept up by a future Secretary of State’s view of what constitutes national security—perhaps against the background of great national anxiety because there
has been some outrage or other—and, secondly, and equally importantly, because the Government of the day should not be able to use the phrase to avoid incidents that reveal embarrassment or incompetence. Although the narrowing of the term from that of “sensitive information” since the Green Paper is welcome, “national security” still covers a potentially broad range of definitions. For the purpose of this legislation, it would seem sensible to limit it, perhaps to operations of the intelligence services or the military, or seek to limit it to an identifiable operation that would impact on the security of British citizens.
The special advocates have been prayed in aid a lot in Committee and I am afraid that I am going to do so again. They say in their briefing that there has been,
“no attempt to define ‘national security’. This leaves open the possibility that the Government will in the future seek to argue that cases currently understood as impacting on the international relations of the United Kingdom or on serious crime fall within the phrase ‘national security’. The Government should be invited to make clear, either by amending the Bill or by making a Pepper v Hart statement, that it will not argue for such an expansive interpretation of ‘national security’”,
in the future.
I accept that there are arguments on the other side against this, which can best be summarised by the problems caused by the legal straitjacket of a statutory definition and the inability to respond to changing circumstances. Perhaps at some date in the future, a case that clearly involves national security will somehow fall outside the statutory definition, which would be a tragedy. Speaking against my major argument, I see the force of this, since I have been carrying out the charity review, where we have been trying to consider a statutory definition of “public benefit”. That suffers from exactly the same issues—it changes all the time and the voluntary and charity movement shifts and creates new areas of activity. In the end, I concluded against a statutory definition because of the inflexibility it would impose, particularly given the entrepreneurial nature of the sector. But—and it is a big but—“public benefit” does not result in people going to prison for offences based on evidence they are not, or cannot be, told about.
On balance, I think that a statutory definition should be brought in. As with all the amendments I will be moving on this part of the Bill, this is a probing amendment and I look forward to hearing the Government’s view on the principle, not the precise words chosen. I beg to move.