My Lords, the noble Lord, Lord Pannick, and my noble friend have comprehensively outlined why both these clauses are unnecessary in law but also go far beyond what is necessary and will be damaging in practice. I need not add very much other than to say that I have put my name to the amendments that my noble and learned friend Lord Wallace of Tankerness, who was unable to be with us today, has put down with regard to Clauses 82 to 86 stand part and, as my noble friend indicated, the other amendments that would seek to reduce the impact.
The clauses undermine considerably mechanisms for holding government to account, as the noble Lord, Lord Pannick, said, through civil claims. In addition to seeking a remedy, such claims have been positive in changing policy and practice. Therefore, the impact of the clauses, as Reprieve together with the other bodies referred to by my noble friend have indicated, could be to allow Ministers and officials to avoid paying damages to survivors of torture and other abuses overseas.
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The concern about this is compounded by the previous debates that we had on Clause 28. There is now a considerable way because of the removal of the extraterritorial nature of the Serious Crime Act 2007 in Clause 28, which we debated earlier in Committee. In addition, it seems as if, together, the Government are seeking deliberately to move towards a very high level of impunity for our intelligence services, especially when it relates to some extremely serious cases.
That is why the elements in Clause 83(4) require careful consideration. The national security factors that the Government seek to put into statute would, as we have heard, include “conduct having occurred overseas”, under Clause 83(4)(a)(i). Here, it is important to raise the case of Mr Belhaj with regard to the Libyan Government, and that of Mr Johal and the Indian Government, because the practical effect of using this sub-paragraph would be to place the UK’s foreign intelligence service outside the scope of civil legal claims if any of those activities had happened abroad and, indeed, as the Government themselves so defined.
Secondly, Clause 84(4)(c)(ii) refers to
“the conduct having been carried out in conjunction with a third party.”
This opens up the valid concern raised by Parliament’s Intelligence and Security Committee in its investigation into alleged UK complicity in torture during the early
years of the so-called war on terror. The committee said that the British resorted simply to the
“outsourcing of action which they knew they were not allowed to undertake themselves”,
including torture and extraordinary rendition. That element of this clause would therefore mean a high degree of impunity with regard to that.
The triggering element of this issue is in Clause 83(3)(a), which refers to
“wrongdoing involving … the commission of a terrorism offence, or … other involvement in terrorism-related activity”.
A concern has been raised that this is so broad that arguably it means that anyone accused of terrorism by a foreign state can be captured by it. I would be grateful if the Minister could clarify whether that is the case because it is significantly concerning.
We have heard about the Independent Reviewer of Terrorism Legislation’s concerns regarding the restriction of victims’ right to redress. These clauses provide significant concern, not only standing alone with regards to civil law; together with Clause 28, they would be a retrograde step and should not be part of the Bill.