My Lords, as is his wont, the noble Lord, Lord Beith, started with a very cogent and important point. The issue about the Armed Forces is both legally and politically distinct. It hardly needs explanation in this Committee as to what those distinctions are, for they are evident to us every time one of those cases is considered.
It is also a pleasure to follow the noble Lord, Lord Hacking, whose return to your Lordships’ House is very welcome to us. He brings a richness of experience on issues which include the quality of the jurisdiction within which we live. Great attention should be paid to the point he made about the way in which our jurisdiction should retain its fundamental values.
In the provisions suggested by the Government in the Bill, I am afraid that I see the words “double standards” above the mirror every time one looks at them. Immunity is inimical to our system of law—full stop. Take the Khashoggi case as an example. I am not suggesting for one moment that we in this country would do anything quite as bad as that murder, nevertheless there could be other outrages committed. If we look at the Khashoggi case and the way that the country that committed that outrage has brushed it under the carpet of immunity, we see how dangerous it is to go down this slippery slope. I will not say a great deal more, but it is a particular pleasure for me to be able to take, as it were, the role of junior counsel to my noble friend Lord Anderson. He opened these amendments with superb and supreme clarity, in my view, and I would only muddy the waters if I said too much more.
I want to make a couple of other points, though. It seems to me that the existing involvement of the Secretary of State in at least some of the decisions to which we are referring does much more than give cover or protection to the individuals who might commit the acts complained of. It shows that political responsibility is taken for those acts, and it is real political responsibility because that Secretary of State is almost always accountable to the other place and will have been elected to it. Misleading actions on the part of, heaven forfend, any Secretary of State could have very serious repercussions in our democratic polity.
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Retaining the role of the Secretary of State is therefore very important; it is one part of those standards which we should be upholding. It is important to remember always that we do not have a written constitution. When we are considering the constitutional implications of proposals made in Parliament, we therefore must look for bits and pieces of our unwritten constitution to find the assurance that we are acting and legislating in a proper way. That is what we are here for in your Lordships’ House, and the involvement of the Secretary of State is significant. I do not want to repeat what I said about Section 13 of the Bribery Act on a previous occasion; it has already been referred to by my noble friend Lord Anderson.
Finally, I will refer to the role of the Director of Public Prosecutions, and I apologise for repeating something I have said before. Whatever the evidence, facts and national security elements, when there is a proposal that there should be a prosecution, even if there is evidence that might realistically lead to a conviction, the second part of the Crown Prosecution Service code test requires that the Director of Public Prosecutions should consider whether it is in the national interest to prosecute. Of course, there will be cases in which there may be evidence of criminality but it may not be in the national interest to prosecute; for example, where there was some unrevealable and key national security information that could not be disclosed in a court, thereby meaning that there could not be a fair trial, or where the individual concerned was faced with an impossible decision at very short notice, possibly with only seconds to decide—maybe the seconds it
takes for the brain to send a message to the finger that is literally on a trigger. That seems to be a constitutional protection which is well provided for in the set-up and architecture we have. If we allow immunity, as the Government are asking, we will damage the quality of our law and our reputation among our allies in the world, and that is why I support the amendment tabled by my noble friend Lord Anderson, to which I have added my name.