My Lords, the amendment to which I will speak was designed to limit the scope of the immunity which the Bill originally proposed to activities in support of the intelligence services, rather than extend it right across the Armed Forces. However, we now have a change, which I will come to in more detail; we are no longer discussing an immunity, thank goodness, but a statutory defence.
Intelligence gathering is difficult, and in the world of intelligence it is quite difficult to avoid breaking the law sometimes. When you are dealing with a hostile state or terrorist organisation, trying to get information from it which it does not want you to have can be quite complicated. There are ways of dealing with the issue, such as a public interest decision by prosecutors not to press a charge, or the expectation that such a charge would not be pressed. That needed to be backed up by authorisation at the highest political level for action which could be politically embarrassing or worse. No such authorisation should be given to torture, rendition to torture or other serious international crimes.
In the Bill, the Government presented us with a blanket immunity, precluding prosecution and unsupported by any specific ministerial authorisation, with no exclusion of torture or other egregious offences. So I strongly supported the suggestion made by my noble friend Lord Purvis, which has now been adopted by the Government, to strike out Clause 30 and replace it with a statutory defence based on the existing domestic provision. That is government Amendment 66 in this group. It is a lot better than the original Clause 30, but still raises some of the same questions.
First, will there be any change to the system of ministerial authorisation at Secretary of State level for activity which might be covered by this clause? That ministerial authorisation is a very important part of the system and its absence would be very damaging. Clearly a general immunity dispenses entirely with any need for it; I was extremely worried about that consequence. Some of the decisions which have to be taken are quite political in character; if an agency were discovered doing something contrary to the law of another country, as well as to our own, very serious political embarrassment could result. So it is in many ways a political decision, and there should be a process by which it can be made.
Secondly, why are we using the National Security Bill to confer a statutory defence not just on intelligence activity, but on any action which is
“the proper exercise of a function of the armed forces”?
In other words, we are creating a new defence for actions on the battlefield, or in a counter-insurgency operation, in areas in which international law is potentially involved. This has very significant consequences for those who break it.
When I first examined the original clause, it seemed to me that the Government were trying to embrace, within an immunity, those members of the Armed Forces who were engaged in intelligence work alongside the three civilian agencies. This would include military intelligence, both uniformed and civilian personnel—now, of course, I think that more fully recognises that the fourth pillar of UK intelligence operations, the military intelligence itself, is brought within the purview of the Intelligence and Security Committee. But I expected that the Government were trying to cover other Armed Forces personnel deployed to assist the intelligence agencies, which they do in a variety of ways. My Amendment 65 was designed to limit the coverage to those groups. But it appears, from the more explicit drafting of the Government’s new clause, that they intend the statutory defence to apply to any proper exercise of the functions of the Armed Forces. I find it surprising that we should attempt so fundamental a change in the law governing the Armed Forces on a tail-wind from a piece of national security legislation.
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I was also attracted by the amendment proposed by the noble Lord, Lord West, to insert “and proportionate” into this definition. I can think of actions which an intelligence agency or the military in a military situation might consider a proper exercise of their function, but which, on reflection, might be considered so disproportionate that the argument of necessity falls away—we cannot get the information that we need unless we do X, but X has such drastic consequences that we should not attempt to get the information in that way at all. You apply the same principle to a battlefield situation: it is a proper function of the military to try to win the battle or deal with an insurgent, but there may be circumstances in which the proper exercise of the function is not proportionate to what is involved.
I return to the breadth of the Government’s proposed new clause. Will the Minister explain how it interacts with international humanitarian law and the law on war crimes? Are we going to have cases taken in international courts because the clauses seem to remove a domestic remedy? I do not feel that the wider military aspect of the clause has been adequately examined and, in proposing this amendment, I seek a fuller explanation. I beg to move.