I welcome the intentions of the Bill and I strongly support the work of the agencies in keeping us safe, but years of experience of trying to get to the truth on rendition—Britain’s facilitation of kidnap and torture—have made me cautious about it. Others have alluded to the shortcomings of Clause 28, and Clauses 82 to 85, among others, and I shall linger on their effects for a moment in the context of rendition.
As the noble Lord, Lord West, pointed out, Clause 28 would give effective immunity—a line of defence from prosecution—to politicians and those advising them for assisting or encouraging crimes such as torture, where their actions are deemed necessary for UK intelligence purposes. The word “necessary” is extremely important in this context. The effects of this clause are very broad and, in my view, disproportionate.
Clause 85 provides the means whereby, in civil cases, Ministers and their advisers could avoid paying damages, even where it is accepted that they carry liability, by citing “national security factors”. That also needs careful attention as a phrase: I was quoting from the Bill. The risk must be that, as a consequence, a number of obstacles —and the current arrangements are obstacles—to the practice of the UK’s facilitation of extraordinary rendition, the kidnapping of people and taking them to places where they may be maltreated or tortured, would be removed. An example might help.
In the Belhaj case, a Libyan family were tortured by Gaddafi after Mr Belhaj’s rendition with the assistance of American and British intelligence operatives. A criminal investigation followed—exactly the sort of investigation that these clauses might well close down. Ben Jaffey KC, who led in the Belhaj case, has concluded that the new clauses
“will in practice, allow UK intelligence services to carry out a range of grave criminal conduct, without existing safeguards of personal ministerial authorisation and oversight.”
Whether this transpires or not, even the appearance of it resulting would be damaging, a point made by the noble Lord, Lord Evans, earlier this afternoon. I do not think that even the appearance of such conduct should be made any easier, and these clauses need to be re-examined.
We need to have in mind that the existing checks on rendition have failed to prevent it. We also need to bear in mind that in the years following 9/11, Britain appears to have been involved in at least 70 cases,
according to the 2018 ISC report. The fact that the UK was involved in any rendition is bad in itself, but we should be concerned for at least two other reasons. First, the effects of such facilitation have been the opposite of those intended: they have hindered the security services, and those of other western agencies, in their efforts to collect intelligence. That is a point—I was more or less quoting there, too—made on more than one occasion by Sir Richard Dearlove, the former head of the SIS. Secondly, our involvement also undermines the values that we are seeking to export—a point not lost at all on President Putin, among others, at the moment. The fact that these clauses might weaken the checks in place on the facilitation of such practices is reason enough to be very concerned about them.
These clauses might have been less unacceptable if the Bill had contained an explicit role for Parliament’s watchdog of the security services, the Intelligence and Security Committee; but far from containing such a provision, the Bill makes no mention of the ISC at all. In my view, the ISC can and should be given the job of ensuring that such a unique carve out of Ministers and officials from the criminal law, and such an exclusion in practice from claims that might otherwise come from maltreated victims, are not misused by future Governments.
Given the secret nature of much of the information likely to be covered by these clauses, and by other parts of the Bill, the ISC provides the only realistic place for parliamentary scrutiny. In this context it is important to bear in mind that almost all other scrutiny routes, and almost all means of securing reasonable transparency about rendition, have been closed down or abandoned. The Justice and Security Act created an effective bar against information coming from FOI, and the judge-led Gibson inquiry into kidnap and torture was first suspended and then abandoned, the Government clarifying later that they had no intention to resuscitate it, nor anything similar.
Even the Intelligence and Security Committee itself has struggled. In its first investigation the ISC erroneously concluded that there had been no British involvement in kidnap and torture. This was, we were much later told, because the committee had been supplied with misleading information, apparently as a consequence of inadequate record-keeping by the agencies. The ISC’s second inquiry into kidnap and torture was abandoned in 2018 when the then Prime Minister denied the committee access to almost all the people in the security services who might have been able to help it find out what was really going on. That is why that inquiry came to a halt. So the ISC itself needs bolstering. It needs, in my view, with the exception of material concerning current operations, to be given access to all people and papers that it deems necessary for its work.
However, the powers of the ISC are largely a subject for another day. For now, what matters is that, at the very least, the ISC’s remit is extended to include this legislation. The noble Lords, Lord West and Lord Butler, both attempted to provide the ISC with such a role in respect of the National Security and Investment Act, but they appear to have failed. The same arguments that they developed about the need for ISC oversight in a parliamentary democracy apply here.
Paragraph 8 of the Government’s own MoU, agreed with the ISC, asserts that
“only the ISC is in a position to scrutinise effectively the work of the Agencies”.
Yet as the noble Lord, Lord Butler, put it in that earlier debate last year:
“It is as if the Government have acquired a watchdog, yet are unwilling to let it bark”.—[Official Report, 16/3/21; col. 241.].
I urge the Government to think again about Clause 28 and Clauses 82 to 85, and I urge them to at least provide the ISC with an explicit scrutiny role and put it in the Bill.
5.43 pm