It would, but the court would be assisted perhaps by an approach in which the Government in advance and in general terms—and not necessarily on a permanent basis—indicate what they consider is relevant for the purposes of these claims. They could, for example, say, “We have a national security strategy, but there are things in here on which we would not seek to rely in cases that might be brought”—say, organised crime or any of the other matters to which the commission referred and to which the noble Baroness, Lady Manningham-Buller, referred.
The noble Lord, Lord Hodgson, provides a definition that is both too broad and too narrow. It seems too broad if one looks simply at the definition of “intelligence or military operations”. There have been cases that resulted in inquests—to which these procedures would not apply—where, for example, there might be a question about whether equipment used during military operations was fit for purpose, and that might give rise to a civil claim, for example, by a wounded soldier; we know that such incidents have arisen. The noble Marquess might say that that does not really constitute national security for the purposes of bringing a claim. On the other hand, the definition could be considered too narrow, because one can envision circumstances in which there was no military operation but there was transportation of chemical or fissile substances or storage of such things, which were not necessarily for military purposes but which obviously would count as being relevant to national security because of the risk of terrorists seizing the equipment or substances. Those examples illustrate the difficulties but do not, perhaps, take us very far.
I wonder whether, in these circumstances, it might be a matter for the Government, possibly with the assistance of the Intelligence and Security Committee, to provide some guidance about what would be deemed to be relevant to the issue of national security in the event of an application being made, assuming that the basic principle is accepted and that the Government are found by Parliament to have made their case—and, I repeat, so far as the Opposition are concerned, we are not yet convinced of that. It may even be that negative definitions of the kind that I have indicated in relation, for example, to the national security strategy, might be helpful so that you can exclude certain things ab initio, and you might give an indication of things that are clearly included—military operations, I would have thought, certainly would be included.
The contributions of the noble Lord, Lord Deben, and, in particular, the noble Lord, Lord Hodgson, as well as that of the noble Earl, Lord Erroll, have indicated the breadth and depth of concern about the road we are embarking on. It is not beyond the capacity of the Government, with the advice and support of the ISC, to produce not a statutory definition, because that would be too rigid, but guidance that would assist the courts and others in considering these matters at the relevant time. Does the Minister consider that a step worth taking?
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