National Security Bill

WRITTEN EVIDENCE SUBMITTED BY REPRIEVE (NSB01)

WRITTEN SUBMISSION TO THE PUBLIC BILL COMMITTEE CALL FOR EVIDENCE ON THE NATIONAL SECURITY BILL

Reprieve is a legal action charity which seeks to uphold the rule of law and the rights of individuals around the world. Over the past 20 years, Reprieve has provided legal and investigative support to hundreds of prisoners on death row, the families of innocents killed in drone strikes, victims of torture and extraordinary rendition, and scores of prisoners in Guantanamo Bay. Reprieve welcomes the opportunity to submit to the Public Bill Committee’s legislative scrutiny of the Overseas Operations Bill.

EXECUTIVE SUMMARY

1. Reprieve’s submission sets our core concerns with the National Security Bill as it stands, focusing in particular on Clauses 23 and 57-60:

a. Clause 23 would give Ministers and officials effective criminal immunity for assisting and encouraging crimes abroad like ordering an unlawful targeted killing or providing assistance to a torture interrogation. The Clause would disapply Schedule 4 of the Serious Crime Act 2007, which makes it an offence to encourage or assist the commission of a crime overseas, when the politician or official’s action is deemed "necessary" for the functions of the intelligence services or armed forces. [1] There are no express limits on what criminal activity this may cover, meaning that Clause 23 could be used to protect UK Ministers and officials from prosecution where they have encouraged or assisted with crimes including torture, extraordinary rendition, or unlawful targeted killing via drone strikes or any other method.

b. Clause 23 would destroy the UK’s moral authority in condemning crimes like Jamal Khashoggi’s murder by Saudi Arabia, or international poisonings by the Russian Government. Under this legislation, were Ministers or officials in the UK to have been involved in encouraging or assisting the commission of offences that could include murder or poisoning overseas, they would be given immunity for their role in these crimes if they were thought "necessary" for the functions of the intelligence services or armed forces. The UK has rightly condemned atrocities such as the murder of Jamal Khashoggi allegedly ordered by Crown Prince Mohamed Bin Salman [2] or the attempted killing of Sergei Skripal allegedly ordered by President Vladimir Putin. [3] Were Clause 23 enacted into law, it would gravely undermine the UK’s ability to condemn and seek accountability for such crimes.

c. Clause 23 would thwart accountability for Whitehall involvement in war-on-terror style abuses. Parliament’s Intelligence and Security Committee has extensively documented how during the war-on-terror era UK politicians and officials became involved in torture and extraordinary rendition. [4] Many such cases remain unresolved, and few substantive policy changes have been made to prevent future such abuses. Clause 23 would give effective criminal immunity for political actors involved in such abuses in future.

d. Clause 23 would undermine the UK’s centuries’ old legal prohibition on torture and related abuses. The UK has a proud history of banning torture, including through landmark changes made under Margaret Thatcher’s Government to create the specific criminal offence of torture. Clause 23 would represent an unprecedented change to the UK’s criminal law, effectively shielding Ministers and officials from the reach of centuries of UK law against murder and mistreatment, where they encourage or assist those offences.

e. Clause 23 would give Ministers and officials a special carve-out from British justice, placing them above ordinary members of the public. The Crown Prosecution Service (CPS) and Director of Public Prosecutions (DPP) make their own judgements about whether to bring prosecutions in individual cases, including against Ministers and officials. Clause 23 would undermine their important constitutional role by giving Ministers and officials an effective carve-out from prosecutions relating to criminal activities they assist or encourage others to do overseas.

f. Clauses 57 to 60 would limit the rights of victims of torture or other crimes to seek redress for any UK role in their treatment on the basis of so-called ‘national security factors’, which could be used to reduce or refuse the awarding of damages in civil claims. The effect of the clauses would be to enable Ministers to excuse complicity in abuse and evade paying damages, for example by claiming that in getting mixed up in torture the UK was seeking to "prevent or limit" some other risk of harm. This would in turn limit victims' ability to seek legal redress for the harms suffered.

2. Ministers and officials should not be able to escape the consequences of actions they order or encourage others to do or eliminate accountability for abuses by legislating it away. Reprieve recommends Parliament remove Clause 23 as well as Clauses 57-60 from the National Security Bill.

CLAUSE 23 COULD GIVE MINISTERS AND OFFICIALS EFFECTIVE IMMUNITY FOR CRIMES LIKE TARGETED KILLING AND TORTURE

3. The Serious Crime Act 2007 makes it an offence to do anything in the UK that encourages or assists the commission of a crime overseas. [5] Crimes under these provisions would include, for example, working in the UK to plan and order an unlawful assassination overseas (encouraging the offence of murder under the common law of England and Wales) or sending information from the UK overseas to be used in a torture interrogation (assisting the offence of torture under section 134 of the Criminal Justice 1988).

4. Clause 23 would disapply, in certain circumstances, paragraphs 1, 2, and 3 of Schedule 4 to the Serious Crime Act, which makes UK-based involvement in overseas offences a specific crime. Clause 23 would do so where this is deemed "necessary for the proper exercise of any function of the Security Service, the Secret Intelligence Service or GCHQ" or necessary for "the proper exercise of any function of the armed forces". [6]

5. Reprieve believes this provision is targeted at protecting Ministers and officials from criminal liability where they encourage or assist others to commit crimes overseas while they are in the UK. These crimes could include the kinds committed as part of UK involvement in war-on-terror abuses like torture or extraordinary rendition. Clause 23 could let Ministers and Whitehall officials off the hook for encouraging or assisting with such crimes from the UK.

6. During the Bill’s Second Reading debate, several MPs made clear that Clause 23 is not necessary on the basis existing legislation is sufficient, with former Attorney General Sir Jeremy Wright QC reminding the Home Secretary that there already exists a defence of ‘acting reasonably’ under the Serious Crime Act 2007. [7] Three members of the Intelligence and Security Committee raised the same concerns, with Kevan Jones stating that such a wide-ranging immunity provision for actions taken in Whitehall "is certainly something I have never seen raised by the security services at the Intelligence and Security Committee". [8]

7. Indeed, Section 7 of the Intelligence Services Act 1994 already seeks to immunise intelligence officers who commit crimes overseas. Clause 23 would take these powers even further, effectively immunising Ministers and officials against prosecution for activities taken in Whitehall which encourage or assist potentially serious crimes overseas.

CLAUSE 23 WOULD DESTROY THE UK’S MORAL AUTHORITY IN CONDEMNING CRIMES LIKE JAMAL KHASHOGGI’S MURDER BY SAUDI ARABIA

8. In giving Ministers and officials a special carve-out from the criminal law, Clause 23 risks gravely undermining the UK’s efforts in seeking accountability for international crimes and damaging its reputation as an upholder of the rule of law.

9. In October 2018, journalist and dissident Jamal Khashoggi was murdered by Saudi operatives in Turkey. The US Government concluded from its investigation of the killing that Saudi Crown Prince Mohammed Bin Salman ordered the murder from Riyadh. [9]

10. President Putin is believed to have ordered multiple murders on UK soil, [10] with a UK public inquiry finding that he likely ordered the killing of Alexander Litvinenko in November 2006, [11] and the UK Government stating that it was "overwhelmingly likely" that he ordered the poisoning of Sergei Skripal in March 2018. [12]

11. While the UK Government rightly seeks to challenge the abuses of Crown Prince Salman and President Putin, it risks gravely undermining these efforts by attempting to immunise Ministers and officials who might encourage or assist with similar abuses from the UK. This risks playing into the hands of autocrats, opening up the UK up to charges of hypocrisy that gravely undermine the UK’s standing to oppose these abuses – something the Russian Government already seeks to take advantage of in responding to UK criticism over President Putin’s actions. [13]

CLAUSE 23 WOULD THWART ACCOUNTABILITY FOR WHITEHALL COMPLICITY IN TORTURE AND UNLAWFUL KILLING

12. Without any express limits in the legislation on the crimes for which effective immunity may be granted, we have serious concerns that Clause 23 could be used to limit criminal accountability for the worst abuses during the so-called ‘war on terror’.

13. For example, senior MI6 officer Sir Mark Allen was accused of aiding the torture and rendition of Libyan dissident Abdul Hakim Belhaj and his pregnant wife Fatima Boudchar, when in 2004 he passed intelligence on the couple to the CIA and Libyan intelligence services. [14] Then-Foreign Secretary Jack Straw was himself accused of signing off on this activity. [15]

14. While the UK Government eventually apologised to the couple for the UK’s role in their appalling mistreatment, this was not before a lengthy police investigation into the activities of Mr Straw and Sir Mark, although the Crown Prosecution Service (CPS) ultimately declined to bring charges against them on the basis that there was insufficient admissible evidence to proceed. [16]

15. In another example, the UK has provided extensive support to UK drone operations overseas amid concerns that this is leaving it complicit in unlawful strikes which have killed thousands of civilians, including children. Just last year, a group of Yemeni families wrote to Secretary of State for Defence Ben Wallace asking him to confirm or deny suspicions that the UK Government had been involved in unlawful strikes that had killed their loved ones. [17] The Joint Committee on Human Rights, in its investigation of the UK’s policy on drone strikes overseas, raised serious concern that both UK personnel and Ministers could face criminal prosecution for any involvement in unlawful strikes. [18]

16. There remains the real possibility that senior Ministers could be criminally liable for unlawful strikes signed off from Whitehall. Prime Minister Boris Johnson, while Foreign Secretary in 2017, made comments which suggested he might have ordered drone strikes that broke international law, leaving former Attorney General Dominic Grieve to suggest that if this were true, "he has put himself in breach of the criminal law". [19] Clause 23 seeks to ensure that UK Ministers and officials would be effectively immunised from prosecution for their involvement in serious crimes in such circumstances.

CLAUSE 23 WOULD UNDERMINE THE UK’S CENTURIES-OLD PROHIBITION ON TORTURE AND RELATED ABUSES

17. Torture has been banned since the Long Parliament’s Abolition of the Star Chamber in 1640, [20] although as early as 1628 it was acknowledged that no such punishment as torture "is known or allowed by our law". [21] In 1988, Margaret Thatcher’s Government explicitly designated it as a domestic offence by section 134 of the Criminal Justice Act, banning the torture of anyone, anywhere in the world. Key parts of the Serious Crime Act 2007, which Clause 23 would disapply, made it an offence for a Minister or official in the UK also to encourage or assist the offence of torture overseas.

18. Parliament has previously rebuffed Government attempts to grant effective immunity for torture committed by UK personnel. In 2020, it attempted to effectively decriminalise torture through the Overseas Operations (Service Personnel and Veterans) Act, with a so-called ‘triple lock’ against prosecutions for UK personnel overseas. In its original form, this would have had devastating consequences for the British Army’s reputation worldwide and the UK’s efforts to achieve accountability for crimes such as torture.

19. Following interventions by former military MPs such as David Davis and Dan Jarvis, [22] as well as prosecutors from the International Criminal Court, [23] the Government was forced to back down and ensure that the Act would not block prosecutions for the worst crimes such as torture. But with Clause 23, the Government is seeking to go even further – not protecting British troops operating overseas, but Ministers and officials authorising abuses from behind their desks in Whitehall.

CLAUSE 23 WOULD PLACE MINISTERS AND OFFICIALS BEYOND BRITISH JUSTICE

20. Clause 23 would also seriously undermine the role of UK prosecutors, by effectively giving immunity for Ministers and officials who encourage or assist in torture and other serious crimes abroad from their desks in Whitehall. The CPS have discretion not to bring charges against those involved in crime where there is insufficient evidence or no public interest in prosecution, as part of their crucial constitutional role in the UK’s justice system.

21. Clause 23 would gravely undermine that role. Instead of prosecutors being able to make their own independent decision to whether to bring a prosecution in the public interest, it would create a special carve-out for Ministers and officials from British justice, one not available to ordinary members of the UK public.

22. Torture survivors such as Abdul Hakim Belhaj have brought legal proceedings challenging the judgement of UK prosecutors where they have declined to bring charges against Ministers and officials complicit in abuse. [24] But Clause 23 would potentially strip torture survivors of even this means of redress.

CLAUSES 57-60 WOULD BLOCK SURVIVORS OF TORTURE FROM GETTING REDRESS

23. In addition, Clauses 57 to 60 would allow Ministers and officials to evade giving redress to survivors of torture and other abuses overseas. It does so by introducing a series of ‘national security factors’ which UK courts would be required to take into account when considering whether to award damages in civil claims. The result could be that victims are denied avenues of redress and damages, despite proven British official involvement in the abuses they suffered.

24. To do so, Clause 57 introduces the concept of ‘national security proceedings’, which covers proceedings before any court that are deemed to "relate to national security". This is itself so broadly defined as to include any proceedings relating to the intelligence services or where any party has "at any stage, presented evidence or made submissions relating to national security".

25. In any proceedings meeting this definition, Clause 58 allows the UK Government to make an application to the court that the ‘national security factors’ must be considered when awarding damages for UK Government wrongdoing. There is nothing in these clauses to suggest in what circumstances a court might refuse such an application.

26. In such cases, courts would be required to take these ‘national security factors’ into account and limit – potentially to zero – the damages for which the UK may be liable. These factors include:

- That the claimant has committed "wrongdoing involving the commission of terrorism offences or other involvement in terrorism-related activity";

- That there was "a connection between conduct of the claimant and the conduct of the Crown complained of in the proceedings";

- That there was "a risk of harm the Crown sought to prevent or limit in carrying out that conduct"; and

- That there was a "limitation on the ability of the Crown to prevent the conduct occurring, including on the basis of the conduct having occurred overseas or the conduct having been carried out in conjunction with a third party".

27. These ‘national security factors’ are transparent excuses for UK involvement in torture which are designed to shield the Government from legal consequences. It is important to underscore that they can only apply when courts have already found the UK Government liable for wrongdoing, and a court is determining what damages to award.

28. The factors then write into law several reasons why Ministers and official should be let off the hook for paying damages to survivors of abuse. For example, those who get involved in torture often claim to be seeking to avert greater harms, which one of the national security factors directly suggests. But as found by the US Senate Intelligence Select Committee’s inquiry into the US torture programme, the US’s use of torture generated no actionable intelligence. [25] It should never be relied on in efforts to protect the UK.

29. Further, another national security factor enables the Government to suggest that it was ‘limited’ in its ability to stop someone’s torture because the mistreatment took place overseas at the hands of a third party. But as Parliament’s Intelligence and Security Committee found during its investigation into UK complicity in torture during the early years of the ‘war on terror’, the intelligence services routinely resorted to "simple outsourcing of action they knew they were not allowed to undertake themselves" – including torture and extraordinary rendition. [26] This national security factor would enable the Government to rely on this damaging practice to evade paying compensation to the victims of that very practice.

30. In addition, some of the national security factors amount to what is in essence victim-blaming. One factor suggests that damages may be limited because of a "connection" between the conduct of the survivor of torture and that of the UK Government. While this provision is extremely vague, Reprieve is concerned that the UK Government will seek to use this provision to suggest that an individual’s ‘conduct’ led the UK Government to take steps which ended up harming them, thereby claiming that even torture survivors may have brought their abuse on themselves by becoming of interest to the authorities. This would be despite repeated evidence of how innocent people have been swept up by UK partners overseas and suffer mistreatment, such as what happened to Khalid El-Masri when he was abducted and tortured by the CIA in an appalling case of mistaken identity. [27]

31. Importantly, while Clause 57 excludes from the definition of ‘national security proceedings’ any claims under the Human Rights Act 1998, this amounts to no safeguard for survivors of abuse. While some claims for redress are brought under the HRA, most survivors of torture seek redress through ordinary civil claims relating to harms under the UK’s civil law. Clauses 57-60 would potentially enable Government to evade paying any and all damages for UK complicity in torture brought under UK tort law.

RECOMMENDATIONS

32. Clause 23 of the Bill would give Ministers and Whitehall officials effective carve-outs from the criminal law, while Clause 57-60 would put into law faulty and dangerous excuses for complicity in torture which would let Ministers off the hook for abuse. Reprieve recommends Parliament to remove Clause 23 as well as Clauses 57-60 from the National Security Bill.

For more information, please contact Jack Steele at jack.steele@reprieve.org.uk and Dan Dolan at dan.dolan@reprieve.org.uk.

June 2022