My Lords, this debate concerns the intelligence agencies and what the appropriate procedures are within the rule of law where they authorise, are aware of, encourage or assist in the commissioning of an offence or are engaged, either at home or abroad, in relations with other agencies or bodies where the risk of breaches of the law arises. The Government’s intent seems to be to seek total immunity from any prospect of prosecution for actions at home or abroad; to widen the authorisation powers of the SIS and GCHQ under the Intelligence Services Act 1994; and to provide brand-new immunity to MI5 and all UK Armed Forces, thereby expanding the current practice to actions at home, which, up to now, have had no immunity.
At Second Reading in the Commons, the Government failed to make a convincing case. We continue to be concerned about such widespread immunity; this view is supported by the Joint Committee on Human Rights and the ISC. At Second Reading in this House, the Minister said:
“Section 7 ISA authorisations are not available in all the circumstances in which the SCA”—
Serious Crime Act—
“risks arise. Those authorisations primarily apply to overseas activities, meaning that Section 7 could not generally be used to protect officers when carrying out activities in the UK. Section 7 authorisations may be sought only by SIS and GCHQ, and not by MI5 or the MoD.”
He also said:
“The Government believe that UKIC and the Armed Forces should have a targeted protection that provides far greater clarity and certainty”.—[Official Report, 6/12/22; col. 155.]
However, he did not say why class authorisations that exist under the ISA would not cover these areas. We know that there have been considerable discussions, both in the ISA and elsewhere, about class authorisations rather than those that are specific. If the Minister could state why class authorisations for the SIS are not working, I would be grateful, because this is a major change.
For domestic activities, for example for MI5, there are the Security Service’s Guidelines on the Use of Agents Who Participate in Criminality and the authorisations issued in accordance with them. The terms of the guidance were made public in a redacted form in March 2021 during a successful appeal by the Government in the Court of Appeal, where a case arguing—unsuccessfully—that there was de facto immunity for the Security Service’s activities was heard. I quote the guidance, which said that
“it may sometimes be necessary and proportionate for agents to participate in criminality to secure or maintain access to intelligence that can be used to save life or disrupt more serious criminality, or to ensure the agent’s continued safety, security and ability to pass such intelligence.”
It goes on to say that an officer is “empowered” under the Regulation of Investigatory Powers Act 2000.
Paragraph 9 of the guidance is clear:
“An authorisation of the use of a participating agent has no legal effect and does not confer on either the agent or those involved in the authorisation process any immunity from prosecution. Rather, the authorisation will be the Service’s explanation and justification of its decisions should the criminal activity of the agent come under scrutiny by an external body, e.g. the police or prosecuting authorities.”
That is the current situation. The guidance goes on:
“In particular, the authorisation process and associated records may form the basis of representations by the Service to the prosecuting authorities that prosecution is not in the public interest.”
This is a scheme that up until March 2021 the Government said had been operating well. They have not made the case for why that needs to change significantly. The judgment also highlighted that the Security Service works under a memorandum of understanding between it, the police and the counterterrorism division of the Crown Prosecution Service. The judgment went on to tell us that there were corresponding protocols in Scotland and Northern Ireland.
Clause 28 of this Bill now allows otherwise criminal actions here in the UK which encourage or assist crimes overseas to be carried out, setting aside previous guidance. This is extremely broad and changes dramatically the practice and the operation of that current guidance, with little justification. I went into a little detail about the domestic situation because it illustrates how a process operates which allows proper intelligence work to be carried out while retaining no immunity from the rule of law. This will now be abolished with Clause 28. For the UK and abroad, as I have indicated and as we discussed at Second Reading, the SAS has powers under the ISA and, as I indicated, there can be class authorisations as well as individually targeted authorisations.
In the Government’s response to the ISC’s report on privacy and security, they went into a little more detail about class authorisations, but it was very clear that such authorisations are under the statutory oversight of the Intelligence Services Commissioner. Under Clause 28,
there would be no equivalent of this oversight, and that is a considerable diminution of the ability for there to be oversight of the operations of SIS and GCHQ.
One of the highlights of the Government’s annual human rights reports, the most recent of which was published in early December 2021, is the stress that they put on the human rights guidance on overseas security and justice assistance, or OSJA. It states that when the UK is working with other countries, primarily with their justice and security systems, on addressing threats such as terrorism, serious organised crime or conflict, a risk assessment process must be carried out prior to providing justice or security sector assistance. The institutions are relevant in this context, where the UK Armed Forces intelligence agencies are working with foreign bodies and their armed forces and the police, primarily their gendarmerie, paramilitary forces, presidential guards, intelligence and security services, coastguards and border guards—the list is fairly extensive.
The OSJA guidance sits alongside the Cabinet Office’s Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees. Under OSJA guidance, before any work is undertaken with one of the foreign bodies, a risk identification process must be carried out on human rights concerns, specifically on whether assistance or co-operation might directly or significantly contribute to the use of the death penalty, unlawful or arbitrary arrest or detention, torture, unlawful killing, enforced disappearance, unfair trial, or denial of justice and unlawful interference with democratic rights. The checklist also states that there must be a risk system on violations of the right of the child, human trafficking, and persecution of an identifiable group. All these areas will now be swept away with a risk assessment process, because of this blanket immunity. If it is high-risk, Ministers must be consulted unless ministerial approval has already been given for the specific activity. This will include, for SIS, a 1994 authorisation, and under current law, Ministers must operate under the terms of the Serious Crime Act.
However, this guidance is now redundant, with the Bill removing a major component of the UK’s promotion of human rights by providing wide immunity to our Armed Forces. The Minister in the Commons, in making the case for this clause, stated that the current process created too much delay. He said:
“The impact of that approach is that vital and otherwise legal intelligence opportunities are currently being delayed or missed as the SCA risks are worked through”.—[Official Report, Commons, National Security Bill Committee, 14/7/22; col. 181.]
He promised to provide examples to the ISC. I would be grateful if the Minister can confirm whether those examples have been provided and if I can be briefed on those examples as the Front-Bench spokesman of my party. I have not seen any examples, demonstrating that there has been considerable delay.
The consolidated guidance for intelligence agencies exists because they do not have the powers of detention, either in the UK or overseas, that the Armed Forces may have. There has been considerable concern about the wide extension of this clause to all of the Armed Forces. Paragraph 7 of the guidance states:
“When we work with countries whose practice raises questions about their compliance with international legal obligations, we ensure that our co-operation accords with our own international and domestic obligations.”
This is now being changed dramatically.
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Paragraph 8 of the guidance makes clear that, in carrying out their work, UK personnel retain “personal liability”, but it also states that
“the circumstances covered by this guidance may engage the responsibility of the UK—with the potential for damage to its international reputation.”
This, again, is being dramatically altered.
In 2019, the Government published The Principles Relating to the Detention and Interviewing of Detainees Overseas and the Passing and Receipt of Intelligence Relating to Detainees. There is equivalent Ministry of Defence policy as well. This guidance also covers staff of SO15 in the Metropolitan Police Service and officers of the National Crime Agency. Clause 28 refers only to
“the Security Service, the Secret Intelligence Service or GCHQ”
and the Armed Forces. It specifically does not relate to SO15, the Metropolitan Police or the NCA, and it does not mention employees of the Ministry of the Defence. Why is that? If it is to prevent the vulnerability of individual officers who would fall under the scope of the SCA, why are the Government being partial in this Bill and not being consistent with the existing Cabinet Office principles and the guidance?
Finally, I will refer to Amendment 64. I understand the case that will be made—I am sure it will be made extremely well—by the noble Lords, Lord Anderson and Lord Carlile. I would be grateful for clarification on my reading of Amendment 64. I have also read that, for the SIS and GCHQ, Section 7(4) of the Intelligence Services Act would cover Schedule 4 to the SCA 2007. I would be interested to know whether that reading of Section 7(4) is incorrect. I understand that Amendment 64 would reduce the scope from the Armed Forces and MI5, and therefore it is probably preferable, but it would retain the expansion for the SIS of immunity for domestic activities that support or potentially assist criminal activity abroad. It would therefore extend the current approach.
The Minister needs to make it clear why the expansions in Clause 28 are justified. The Minister in the House of Commons said:
“The clause means that … where an individual has operated in good faith and in compliance with proper processes they would not face the risk of liability for the offences under the SCA.”—[Official Report, Commons, National Security Bill Committee, 14/7/22; col. 182.]
But there is no way of knowing whether the individual has operated in bad faith and does not comply with proper processes, because all the guidance I referred to, setting out the proper processes, will be swept away. It is a general carve-out. If an individual working in good faith and in compliance would not face the risk of liability, is the Government’s position that, if they do not act in good faith and do not follow proper processes, the individual is still liable? There is no oversight by the independent commissioner and there would be no reporting requirements, so no one would ever know and there would be no duty on any of the agencies to make this clear.
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.