My Lords, I thank all noble Lords who have contributed to a fascinating and wide-ranging debate. If the noble Lord, Lord Coaker, is not sure where it leaves him if the noble and learned Lord, Lord Judge, is a pupil, I am under absolutely no illusions where I am left.
I turn to Clause 28, the Serious Crime Act 2007 amendment. I thank the noble Lord, Lord Coaker, for his advance notice of interest in this measure and the noble Lord, Lord Purvis, for our discussions to date
on this Bill. I also very much thank the noble Lords, Lord Anderson and Lord Carlile, who provided advance notice of their intention to table this amendment and have generously shared their time and expertise with me and the team on this measure, as the critical friends to the national security world that the Committee knows them to be.
I will speak to the purpose of the SCA amendment and the amendments tabled by noble Lords. Respectively, they seek to remove the SCA amendment in Clause 28 from the Bill and replace it with an amendment to Section 7 of the Intelligence Services Act 1994, or ISA, and to add to Clause 28 to ensure that exemption from liability for individual Ministers and officials who assist or encourage crimes under the SCA would not cover torture, murder or sexual offences. However, before I come to that, it is right to express our thanks to those who work tirelessly to keep us safe, as the noble Lords, Lord Anderson and Lord Coaker, did, while recognising that we should carefully examine any changes to the law which might regulate or enable their activities.
I will briefly tell noble Lords why Clause 28 is in the Bill and why the amendment to the SCA is necessary. In essence, it is vital that we solve an unintended consequence of the SCA which currently exposes those acting for our intelligence and security agencies—MI6, MI5, GCHQ: the UK intelligence community, which I will henceforth call UKIC—and our Armed Forces to potential legal jeopardy and limits their operational agility. This can limit their ability to keep the UK safe, including through our international collaboration with trusted partners, which is vital in the modern world.
The SCA creates offences when an act is done which is capable of “encouraging or assisting” an offence and the person intends or believes their act may encourage or assist an offence. These offences are complex and were predominantly introduced to ensure the police could tackle those directing serious organised crime—for example, capturing those who knowingly directed violence or the importation of drugs but distanced themselves from criminal conduct. There is no minimum level of contribution to the offence which may be encouraged or assisted; the contribution can be small and indirect and there is no need for an offence to be ultimately committed. I will come back to the noble Lords’ amendment, but say here that these are obviously not circumstances that always lend themselves well to pre-authorisation.
Clause 28 focuses on this very specific area of criminal law which is having an operational impact to the detriment of the UK’s security. It is not a general immunity and it would not change the application of all other criminal law offences. It does not make it legal to encourage or enable torture or rendition or solicit murder and does not limit the offence of misconduct in public office. In addition, Clause 28 does not remove civil liability or change either the UK’s international law obligations or UKIC’s or the Armed Forces’ rigid adherence to these obligations. I will come back to that in a moment.
At present, UKIC and the Armed Forces are required to carefully apply the provisions of the offences, sometimes at fast pace and in critical scenarios, as has been noted, and some of which may have life or death
consequences—all while they work with our international partners to help protect the UK. We are talking, for example, about sharing intelligence to combat terrorist attack plots. Delays and limits on activity arise solely due to SCA risks when otherwise seniors are clear that there is no wrongdoing and that the activity represents a proper function of the organisation. The offences in the SCA are therefore creating a “chilling effect”, as the noble Lord, Lord Coaker, referred to, across UKIC and the Armed Forces in the delivery of their mission, and impacting on their ability to keep our country safe.
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