There are no major political differences in our wish to improve our export performance, including to China. As part of this debate, we need to examine and address the reason for our continuing poor export performance. Noble Lords are aware that the National Audit Office published a report recently on how we support exporters overseas. It makes for interesting reading. It says that exports need to grow by 10% a year, every single year, to meet the Government’s target of doubling our exports to £1 trillion by 2020. It goes on to say that there seems to be no credible plan or measurement of progress to reach that target. Obviously, UKTI has a key role but it supports too few exporting British firms, according to the NAO. That is not good enough. We have to help more firms to export. Government cannot bridge this gap by itself; it is the firms that do it. We have to help those that already do to export more.

Finance is important in underwriting that. As Daniel Kawczynski, a Conservative MP who has written a report into UKTI performance, has said, over the past 18 months, just 18 small companies have used government export guarantee products which are aimed specifically at them. If we do not deliver more from that route, we are not going to be successful overall. To address this weakness requires an overall system-wide approach within the UK to guide us forward—a rethink of our industrial strategy over the recent period. Whether we pursue this successfully will matter far more in the long run to our economic relationship with China than anything else.

Labour has a credible agenda which the coalition seems to lack. This includes financing innovation, building skills, developing our regions and reforming our banks to ensure that they support the real economy. The economic recovery seems finally to be getting going again after a long and protracted period of stagnation, and that return to growth is something to celebrate and nurture. However, with business investment still on hold, bank lending to SMEs still contracting, youth unemployment still very high and living standards still falling for millions in this country, for most people, there is so far no recovery at all. This is no time for complacency.

In a recent speech the Shadow Chancellor said to the CBI:

“Britain has always succeeded, and can only succeed in the future, as an open and internationalist and outward-facing trading nation, with enterprise, risk and innovation valued and rewarded. Backing entrepreneurs and wealth creation, generating the profits to finance investment and winning the confidence of investors from round the world … That is why we believe it is so vital that government works closely with all businesses—large and small: to promote open markets, competition and long-term wealth creation;

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and to reform our economy so that, by using and investing in the talents of all, we can deliver rising living standards not just for a few but for everyone in every part of the country”.

We have heard today from several noble Lords that they are optimistic that the UK economic relationship with China will improve as China makes the inevitable transition from being the workshop of the world to being a knowledge and service economy. As this occurs, the argument goes, the Chinese will demand more of our excellent services in areas such as finance, the wider professions, health and higher education. As the noble Lord, Lord Haskel, warned us, we must be careful. In recent years, British universities have congratulated themselves on the large numbers of Chinese who have chosen to study in the UK. They have been welcomed here, and they have also become necessary to the survival of many of our departments and courses. There are various reasons why these students choose the UK, but an important one has been the lack of appropriate courses at home. However, that is fast becoming an obsolete reason, as Chinese higher education develops. The traditional elite universities have taken stock of international examples, welcomed new staff out of foreign postgraduate training, recruited foreign lecturers, started to reform teaching and curricula and developed new courses. Some 1,300 private universities have been established, usually with flexible, practical and very work-oriented courses and modules.

So China presents three challenges to the model we have of us being the experts, giving them UK higher education. First, China will not for long be a source of overseas students if its own universities overtake ours. Secondly, Chinese higher education clearly intends to offer its services in the world education market. Thirdly, in China there are, at present, 16 million students in higher education, with plans for 20% of secondary school leavers to be in higher education by 2010 and 50%—a familiar figure—by 2050. Even if a small proportion of these have a first-rate education and can use English, they will be competing with our graduates in virtually every field, unless, again, we can provide something very special from within the United Kingdom. Does the Minister agree that it is important to learn the lessons of Chinese education, both positive and negative, and apply them to our own institutions?

We have heard that the Government are desperate to secure Chinese investment in the UK. The tough regulatory approach to banking that was introduced after 2008 has been relaxed to promote trading in the Chinese currency in the City. Guaranteed electricity prices—double the present level—have been offered to secure Chinese investment in the EDF nuclear station at Hinkley. We are not against these measures per se, but we would like to see a much more serious debate about their justification and the implications that will flow from them, so perhaps the Minister will comment on that when he responds.

According to a recent article in the Economist in June this year, perhaps the single most disappointing aspect of the British economy in recent years has been its export performance, about which I have been talking. Against that background we have to remember that sterling is 25% cheaper on a trade-weighted basis than it was in 2008, and yet the trade deficit was still a stubborn £36 billion last year—more than 2% of GDP.

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Of course, as many noble Lords have pointed out, this is partly the result of a fundamental economic mismatch. Britain’s strength is in services; China’s hunger currently is for raw materials and machine tools. China seized 80% of the world’s metals supply last year, boosting exports from Australia in the process. The odd British firm, such as Rio Tinto, has cashed in, but countries such as Germany, whose firms sell kit used in Chinese factories, have done so very much better.

The prospects for British cultural exports are much brighter. However, as has been raised, there are real concerns about IP protection in China. In 2011, Britain’s global exports of TV formats—exciting programmes such as “Strictly Come Dancing” and “MasterChef”—were worth £1.5 billion. I hope that these figures will begin to attract more attention from UKTI, particularly in relation to developing economies and China.

However, the truth is that other countries appear to be taking better advantage of the shifts in China’s economy. I shall end with some questions for the Minister. As many noble Lords have mentioned, Britain seems to have gone out of its way to establish a reputation as a country hostile to business visitors, tourists and students. Visa processing is still slower than for the rest of the EU. As a result, London loses out to Paris as the place where wealthy Chinese like to go to shop. Visa restrictions hold back exports in more subtle ways, too. The Economist points out that Britain’s architectural practices, for example, often want to hire staff from the countries where they plan to bid for work, but this is almost impossible.

In 2011, the Prime Minister said that he wanted to double trade with China by 2015, but the gains that have been made are small. A much touted 2011 trade pact with China covered some 3% of the existing commerce between the two countries. Germany and China, for example, recently agreed on a deal which was 10 times bigger. Is the target set in 2011 still the one for which he is aiming?

My noble friend Lord Haskel mentioned that the warm public welcome for the Dalai Lama’s visit last year, which was largely arranged through No. 10, has not helped relations between the two countries. Like the noble Lord, Lord Watson, I would be grateful if the Minister would comment on that, particularly in the light of the rather underwhelming reception accorded to the Chancellor and the Mayor of London when they visited China recently.

Human rights concerns still affect our relationship with China. It is not just the regular house arrests but the lack of press freedom, the oppression of minorities and the fact that religious dissidents continue to be locked up. What representations have been made? What has the noble Lord said to his Chinese counterparts when he has led delegations to China? It would be interesting to reflect on that.

A continuous theme running through our discussions is that of language. How do we deal with that? How do we get people to speak Chinese? The Economist notes that whereas there is a network of trade envoys covering emerging and developing economies including Azerbaijan, Indonesia and Mexico, there is still no envoy for China. Is that the case? Will the Minister also comment on a long-promised agriculture attaché who apparently has still not been appointed?

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2.23 pm

The Minister of State, Department for Business, Innovation and Skills & Foreign and Commonwealth Office (Lord Green of Hurstpierpoint) (Con): My Lords, I am very grateful to my noble friend Lord Dobbs for tabling today’s debate and for his very informed and insightful comments. Indeed, I thank all noble Lords for their very wide-ranging contributions. I pay especial tribute to my noble friend Lady Neville-Rolfe for her extremely insightful maiden speech, which focused particularly on conditions in China, as did the noble Lord, Lord Stevenson. I also pay tribute to my noble friend Lord Whitby for his insightful comments on what it is like at this end as Chinese investment transforms British economic conditions.

This is an extremely important topic for us all and a very complex one. We have covered a lot of ground in this debate and I will find it something of a challenge to respond to all the questions and summarise all the themes in the allotted time. I like to think that I have come and gone to China over a long time but I am humbled by the fact that the noble Lord, Lord Watson, first went there in 1977 and the noble Lord, Lord Haskel, who first went there in 1978. I am a mere newcomer, having first gone there in 1983. However, I think the thought resonates with all of us that this is a society and an economy that is changing rapidly and profoundly, and will continue to do so. The challenge posed by this enormous, sophisticated and cultured country, and our engagement with it, is of profound importance to British society and the economy.

As China continues to grow, so do our shared interests and responsibilities. Our relationship is broader and deeper now than at any time in our history. As I say, China is changing fast. I could go on at length but one manifestation of that change is that Chinese companies are increasingly going global and are on their way to establishing global brands rather in the way that the Japanese did after the war and South Korea more recently. China will be next.

China is also becoming more sophisticated in its own research and development. It now files the largest number of intellectual property patents of any country in the world. Interestingly, there are more cases of IP theft going through Chinese courts than in any other country in the world—some 84,000 in 2012, only 2% of which involved foreign companies. .In other words, China has got to the stage where IP is an issue for Chinese businesses dealing with Chinese businesses, which I think means that we can take some comfort that the authorities mean what they say and intend to create a robust environment which protects intellectual property and stamps out corruption and fraud.

China is changing in other ways, too. The international role of China is changing profoundly, as my noble friend Lord Howell of Guildford so articulately explained. This is a country that is taking its place on the world stage. We often talk about an emerging power. It is not an emerging power; it is re-emerging, or retaking its place on the world stage. I like to remind my colleagues in business that in 1820 China had the largest economy in the world and, 200 years on, it will be the largest economy in the world again.

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China is also a country with a deep cultural past. As the right reverend Prelate the Bishop of Guildford reminded us, and others echoed, this is a country with a long-standing philosophical and religious perspective. I have met some of the characters mentioned by the right reverend Prelate and they are very remarkable people. The authorities are very keen to see a harmonious development of Chinese society and recognise the role that faith groups can play, particularly in an urbanised environment.

That brings me to my next point. China is not merely changing fast but urbanising fast. The figures are enormous. A number of speakers cited figures in relation to aspects of China’s growth. China has the most of almost everything these days, and the challenge posed to it by urbanisation over the next 20 to 30 years will be the biggest for any country, except possibly India. Something like 50% of its population live in cities now, but this will increase to 60% in as little as 20 years’ time. The implications for urban infrastructure, urban planning and the whole economy are profound. The rapid transformation presents enormous challenges for the Chinese authorities. Sometimes I think that the popular impression of China is that the authorities sit in Beijing smiling quietly as more and more Chinese companies invest and take over the world. That could not be further from the truth. The authorities are very conscious of the significant challenges of developing a very complex and large society, and of the need to rebalance. They are well aware that at the moment the Chinese economy is too dependent on investment and exports and needs to rebalance itself.

They are also well aware of the issues in the rural areas: poverty, issues of land ownership, the flow of immigration into the cities, which it is increasingly difficult to control, and so on. Demand for products and services like healthcare and education is expanding very rapidly and will continue to do so for the next generation. On the plus side of these challenges, a middle class is developing with the same sort of appetite for branded goods that we all take for granted. It is, therefore, no surprise that, as has been quoted, Jaguar Land Rover now finds China to be its largest market. Some 80,000 vehicles were sold there last year, and the number is growing rapidly. It is the second largest exporter of cars to China after BMW. So there are lots of challenges and plenty of opportunities, too.

Two important themes have dominated this debate and I will touch on both of them. The first is education and culture. My noble friend Lord Dobbs spoke about Chinese language tuition in schools and universities. I share his view of the importance of increasing the sensitivity of the younger generation in this country to Chinese, which is about both Chinese studies and Chinese languages. I am very pleased to report that my grandson is, almost exactly at this moment, doing a presentation on the warring kingdoms period of Chinese history. So he is being made to learn something about that great country.

The Government are committed to the learning of languages, including Chinese, in schools and universities. We undoubtedly start from a low base in the case of Chinese, but in 2013 the number of students entering for a GCSE in Chinese increased by 20% compared to

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the previous year and there were more than 3,000 A-level entries. It is a low base, but at least the direction of travel is right. In higher education, language study is about choice. We have seen some shifts towards languages that will better support employment outcomes in growth economies, including Chinese. In 2011-12 the number of students at UK higher education institutions taking Chinese studies was 1,870: a small number, again, but the direction of travel is good. It is important to note that there are many students not studying Chinese who increasingly get a component of Chinese studies as part of more multidisciplinary programmes. There are Chinese centres at Sheffield and Nottingham, to name but two.

There is plenty of work to do. My noble friend Lord Lexden and others, including the noble Baroness, Lady Dean, also pointed out the importance of education, not just at university but at school level. We recognise the importance of schools introducing children to Chinese at a young age and also the importance of being open to Chinese students wanting to come here at secondary and tertiary level. Another aspect of this is the importance of the engagement of British universities and other colleges in China. The noble Baroness, Lady Dean, referred to the work of Nottingham Ningbo. There are a number of other British colleges and universities: Dulwich College in Shanghai is just one of them. There are now some 230 research partnerships between British educational institutions and Chinese ones. We cannot be complacent about this. The noble Lord, Lord Stevenson, reminded us that the Chinese are rapidly upping their game and the old-fashioned notion that we have all the expertise and they have all the need is, frankly, behind us. We should recognise these as joint experiences: partnerships where we learn together about matters of importance to both our economies and societies.

There is plenty of competition in the English-speaking world. As the noble Baroness, Lady Warwick, said, the Australians have learnt the lessons of some of their mistakes. We must make sure we have a supportive approach to letting Chinese students, and others, into the British education system. We need to minimise the impact of immigration rules on universities. I have been asked in this House before whether I would take up the question of excluding students from the immigration numbers. In response to that suggestion, I have taken it up and am happy to have another go.

Another theme that came up repeatedly, not entirely unrelated to education, is visas. The noble Baroness, Lady Valentine, and others, drew attention to the ease with which you can get a Schengen visa. There is some mythology around the numbers of these visas and where people actually go. In his opening speech, my noble friend Lord Dobbs said that seven times as many Chinese visitors go to France as to Britain. This is actually quite difficult to verify. One hard figure we do have is the number of visas issued. In 2012, the French issued 277,000 visit visas and we issued 210,000. So they issued one-third more than us rather than seven times more.

Chinese exit data on first destinations for Chinese travelling abroad show that the UK was the top European destination in 2010 and second to Italy in 2011. My general point is not that we should be complacent but

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that the numbers are quite hard to pin down. It is plain that we need to expect more and more Chinese visit visas over the coming years, both for tourism and for business and educational purposes. Specifically, we expect the number of visa applications to top 1 million by 2017. To facilitate that, and the processing of this very large increase in the number of applications, we introduced a number of measures.

Last month, in Beijing, the Chancellor of the Exchequer announced measures to streamline and simplify the visa process for Chinese nationals who want to visit the UK for business, study or pleasure. This includes plans to open a 24-hour visa service and streamlining the UK and Schengen visa application process. As the noble Baroness, Lady Valentine, pointed out, the Schengen process itself is moving—or so they claim—to biometrics, which will level the playing-field. I hope that we will increasingly be able to provide, in effect, a one-stop-shop service for Schengen and UK visas. We will, of course, always be left with the greater flexibility of Schengen. I suspect there is no one in this House who would argue for us joining the Schengen accord at the moment.

We will do our best on visas and I assure noble Lords that the Government recognise the importance of ensuring that the process works as seamlessly as possible. The forms are now in Mandarin, which was a good start. We now have more offices around China: more than the Schengen area does. Progress is being made in discussions with Schengen about how to converge the two processes as much as possible. I noted comments from a number of noble Lords on the importance of ensuring that the visa entry rules for both students and business are as business-friendly and education-friendly as we can make them. I am always happy—and so is UK Trade and Investment, the office which I oversee—to discuss any problems that specific institutions or firms have with getting people in, within the context of the overall policy. We are plainly not going to throw the whole policy up in the air but we need to make sure that, in practice, it works for business as seamlessly as possible.

I turn to inward investment, which is a very important topic for the economy in general. It is a great and long-standing competitive strength of this country that we are open for inward investment from all countries in the world. It is very difficult to imagine a number of our obvious competitors being as sanguine as we are about investment in, for example, the water supply of the national capital. Some 9% of Thames Water is owned by the Chinese sovereign wealth fund, as is 10% of Heathrow. We welcome these investments. We also welcome the deal announced by EDF in respect of Hinkley Point C, which is a good deal for this country. The entire nuclear industry, irrespective of who is investing in it and who is building it, needs to be properly regulated, for all the obvious reasons, but we are committed to the importance of nuclear as part of the energy mix. We have to invest substantially over the next 10 to 20 years in nuclear rebuild and we should welcome the involvement of foreign direct investment—including from China—so long as it is properly regulated and overseen.

The noble Lord, Lord Haskel, mentioned Chinese banks in London. The fact that we offered to allow

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them to operate through branches, as opposed to subsidiaries, does not mean that we are not going to regulate them, although they are, of course, regulated by the authorities in Beijing—not in Shanghai, incidentally—which would be the case whether or not they were subsidiaries or branches. They will also be regulated by the Prudential Regulatory Authority, whether they are subsidiaries or branches, according to the highest standards that the PRA thinks fit. I am very happy to assure the noble Lord on that point.

Huawei has already been discussed and I am not sure that I have anything useful to add to the exchange that has already taken place. I know the managers of that company, both here and in Shenzhen. I believe that they are committed to doing good business in this country and are certainly investing and building up the skill base in the way that my noble friend Lady Wheatcroft mentioned. All Members of the House will be aware of the security arrangements that are in place and are currently subject to review, following the report from the Intelligence and Security Select Committee.

I turn to exports, which are the other side of the coin. Every speaker has referred to the fact that we have a long way to go on this. We start from a low base and market share. I have always found completely unacceptable the notion of being behind not merely Germany, which is possibly understandable, but France and Italy. The good news is that we have now overtaken Italy. The good news is also that we have grown faster than all three of those countries for the past three years, but this is a long journey and we have to keep at it.

The importance of building relationships and making long-term commitments is something that everyone has underscored. It is true everywhere but it is certainly true in a country like China. Businesses need to spend time and need help. When it comes to small businesses, which were referred to by a number of noble Lords, it is important for the British Government to ensure that the role of UK Trade and Investment, working in partnership with the China-Britain Business Council, is as effective as possible in supporting those who make that journey by de-risking the decision for them and helping them to attend trade fairs. I am pleased to report that we have increased the number of resources we have on the ground in China, not merely in Beijing but around the country. We have increased the amount of money available for attendance at trade fairs and, by the way, we have increased the number of trade advisers in this country.

In respect of finance, we have substantially revamped UK Export Finance; it is not now the case that as few companies have been able to access UKEF as the noble Lord, Lord Stevenson, referred to. Indeed, its business is growing rapidly and I have asked it to triple its book over the next two or three years. I am afraid that I shall not be in office to see this happen but will be cheering from the sidelines. UKEF is now on the way and the momentum is clearly there. It now has more than £1 billion of support for small businesses, compared with almost nothing three years ago. So the direction of travel is there. We need to keep at this. It is a long journey, and we need to keep investing. I have mentioned UKTI and UK Export Finance.

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In response to the noble Lord, Lord Wilson, I should like also to refer to the capabilities in the Foreign Office. We have 60 new staff working across the network in China, a third of them focused on less well known provinces and second-tier cities. I was recently in Wuhan, a city that we the British have neglected; the French are the dominant foreign presence there and we need to put that right. What is true of Wuhan will, frankly, be true of dozens of other cities. We have a long way to go. We have been investing in language training in the Foreign Office. I have some numbers somewhere that I cannot find, so I will write to the noble Lord, Lord Wilson, with the details. We have substantially increased the amount of Mandarin training in the Foreign Office because we fully endorse the notion that its officials are at their most effective if they can speak the language.

I will respond explicitly to some of the points made by the noble Lord, Lord Stevenson. I do not have the time to discuss Britain’s industrial strategy, except to say for the record that we the coalition believe that it is a coherent strategy that is bearing fruit, and we need to stick at it. We need to invest in the skills that equip the next generation to succeed in a competitive world. There is no turning back from this globalisation. There is no turning back from the challenge of ensuring that education and apprenticeship systems work correctly, that we connect up research and development at university level with businesses and that we invest in appropriate partnerships in key sectors. The sectors involved for the British economy are very wide—all the way from advanced manufacturing and aerospace, through IT, the creative industries and practically every sector in between.

Perhaps I may conclude with just 30 seconds on Hong Kong, as my time is up. Hong Kong remains extremely important to the British relationship with China generally, as well as being important in its own right. I had the great honour of living in Hong Kong when the noble Lord, Lord Wilson, was governor there, and I have seen it change rapidly over the years. The closer economic partnership agreement is in place between Hong Kong and the mainland, which means that a company operating in Hong Kong can do business in the mainland without further restrictions, and several hundred British companies in Hong Kong have the opportunity of building their business in the mainland through the Hong Kong gateway. It is a very important asset in terms of the competitiveness of British businesses in China, when compared with that of our European counterparts and others.

Finally, I come back to the importance of this debate. No country is strategically more important to us than China. This is a long journey forwards in the relationship. It is a complex country and there are massive opportunities. Of course there are many political and economic challenges on the way through. The dialogue needs to be open, honest and continuous. Given that two or three of your Lordships quoted Mao’s saying that the longest journey begins with a single step, I should like to add another: this journey is a marathon, not a sprint.

2.46 pm

Lord Dobbs (Con): I am delighted and honoured that the debate has been so fruitful; it has overflowed

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with experience, insight and enthusiasm. I thank every Member of this House who participated. My noble friend Lord Green’s summing up has been most helpful; he has been for so long at the sharp end of things and his time at the coalface has been hugely productive. He deserves his retirement but we shall miss him. I must once again congratulate my noble friends Lord Whitby and Lady Neville-Rolfe who made their first speeches in this House. But my friendly neighbourhood Whip has whispered in my ear—a loud Chinese whisper—that we are out of time. I must apologise, therefore, for being unable to refer to other individual contributions. I hope that noble Lords will understand and forgive me for that. The debate has been a credit to this House. Its messages were put quite superbly and came across loud and clear. The Chinese sometimes say that Britain is a small island, a long way away, which makes a lot of noise. It means at least that they hear us, and that sounds like a pretty good place to start—and also to stop. I beg to move.

Motion agreed.

Security Services: Supervision

Question for Short Debate

2.48 pm

Asked by Lord Soley

To ask Her Majesty’s Government what plans they have to review the supervision of the security services.

Lord Soley: My purpose in bringing this Question before the House is to try to initiate some long-term thinking on the way in which we supervise our security services, the impact of high technology, the pace of change compared to our legislative process, and, importantly, the freedom and security of the internet.

Let me begin by saying that there is no reason to doubt the importance of the security services to the freedom of the people of this country and their safety. I say that not least because of my memory of my involvement in Northern Ireland in the 1980s. Equally we have to be clear about what we are defending. We are defending freedom and a way of life, which, as we all know in this place, means that we have to have a good system of parliamentary accountability for the security services. I do not take the view that accountability has been totally useless, or whatever some people have alleged, but there is considerable room for change, and we ought to start addressing that in some detail, which is why I want a slightly longer debate than we are able to have in this one hour.

My first point to the Minister, to which I hope he will give some long-term thinking, is the pace of change in technology. It is a crucial problem and has been so for some years. Technology, particularly information technology, moves so fast that the ink is hardly dry on the Acts of Parliament that we pass before they are out of date. We really have to find a new way of dealing with this. There are a number of possible options, but the one I have looked at with some interest—and I know that this has been referred to in discussions about the data communications problem—is a hybrid between a Select Committee and a legislative Committee that looks at the constantly changing

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technology and how to bring changes into effect in existing legislation. We have a number of ways in which we do this in other areas in the House. The Delegated Powers and Regulatory Reform Committee, which I was on, is one way of doing it; we ought to consider that. This House is very strong on science and technology, and we have here people with a great knowledge of information technology. The suggestion that I make to the Minister—although it is a matter for the House authorities as much as for him, but support from the Government would be helpful—is that he look at whether we could introduce a committee process which would enable a detailed look at the way the rapid change in science and technology affects our legislation, not just on the security services, although clearly that is the most important one in the current context.

The other issue I ought to say in opening is that although I would disagree entirely with Snowden’s release of all this information, which I think was grossly irresponsible, in my humble judgment, if he were put on trial before a jury in this country, he would probably be found not guilty on the basis of a public interest defence. There is probably enough in what he has done that revealed to us things that we did not know about which would give him a good defence in that area. I do not think the Government are necessarily thinking of it, but getting into a battle either with newspapers, Snowden or anybody else on this would likely be a losing battle. It would be far better to address the issue than to deal with it that way. I only wish that Russia and China could have a Snowden as well; actually, it might even the field up a little bit.

I turn now to the internet. Next year, it will be 25 years since the invention of the internet by Sir Tim Berners-Lee. I hope we will find ways of celebrating that because it is, in my judgment, by far the most important way in which the people not just of Britain, but of the world have been able to communicate, and it has been a great engine for freedom. However, what has happened recently has been a gift to some of the more authoritarian countries and some of the more authoritarian organisations which would like to close down the freedom of and access to the internet. One of the things that is most troubling about what has been happening with the security services is this business of interception of the internet services. For example, the Google fibre-optic cable being breached is a matter for concern. One has to ask whether the Prime Minister, any other Minister or the intelligence committee knew that that was about to happen. Was it ever considered by them?

This brings us straight into the third and main point of this debate, which is whether we can improve the way our security services are subject to parliamentary oversight. Much of the comment made outside has been based on an assumption—a wrong assumption—that because the security services, through the Tempora system, have been hoovering up lots of information, all of that information has been read or looked at. It has not been; it is the case that in Britain, you need to have a warrant if you are going to look at the content of these things. What troubles me is that, although you might need a warrant in the UK, you do not

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necessarily need it overseas. There is a particular problem here in that the communications network between Britain, Australia, New Zealand, Canada and the United States—the so-called “five eyes”—are interchanging information all the time and are using our systems. Therefore, it must be said that, given that the United States is now accepting that it intercepted the phone of Angela Merkel, the Chancellor of a friendly and liberal power, now with a very good constitution—not least because we wrote it—the very least that should have happened is that the British Government should have been aware of it. However, It was probably done with some interaction with GCHQ, even if they did not know about it. In other words, I suspect that the inter-linkage between the National Security Agency of the United States, GCHQ here and the other surveillance organisations in New Zealand, Australia and Canada is not really supervised by any of the parliamentary structures in any of these countries.

We have a very real problem, which is far greater than we have had in the past, about how we carry out effective oversight of security organisations operating on all our parts. The Intelligence and Security Committee is doing very good work, and I greatly welcome the way they have opened up their processes in recent times. I am sure the Minister will want to record that. I still say that it is not enough, and that we should have a long, hard look at the way in which we oversee this international co-operation, because it means we will be involved in some of the things we might say we would not do, like tapping the Chancellor of Germany’s telephone. I do not know whether that was done as the result of the ability of the Tempora programme in GCHQ, but a Minister should have known and should have been able to give a clear reply of, “Yes, we did know that” or, “No, we did not know that”. I suspect that the answer is that we did not; in fact, I am almost sure of it, but it might have been done as a result of that co-operation. That linkage is extremely important, and we cannot ignore it.

There are other areas of this supervision that are critical to us. MI5 and MI6 have been quite good recently at opening up and speaking in public, but I can not say the same about GCHQ. GCHQ needs to be much more open than it has been, with all the difficulties that implies. When I suggested a while ago that GCHQ ought to be much more receptive to visits from parliamentarians, whether of this House or the House of Commons, the answer was, “Well, we are nervous about some MPs or Members of the Lords”. My response to that is, “Well, I am nervous about some of the people who work for GCHQ”, more than one of whom I have met and would have some anxiety about. We cannot address it that way; you have to say that they must be accountable to Parliament and we must be able to have those discussions. As MI5 and MI6 have discovered, you can actually deal with the difficult questions and challenges that you face in a parliamentary system. It is that which makes us stand out above the others and makes us different from some of the other countries that are delighted about what Snowden is doing—but he is not, of course, looking at their own systems, which they would desperately hide from all of us.

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I have finished slightly within my time, not least because I hope to give a little more time to others and to extend this debate on other days, but I ask the Minister to take away and look at this business of how we legislate for high-technology change in a slow legislative process.

2.58 pm

Lord Blencathra (Con): My Lords, I congratulate the noble Lord, Lord Soley, on securing this debate. I deeply wish that it were not necessary, but in my view, the legal basis under which the security services operate—RIPA—is no longer fit for purpose. I say that as the Peer who had the privilege to chair the Joint Select Committee on the Draft Communications Bill last year, the so-called “Snoopers’ Charter”. We considered the rapidly changing technology, and no area is changing faster than this. I refer the Minister to our conclusion in paragraph 289, where we recommend the super-affirmative procedure.

I pay tribute to all my colleagues in both Houses who have not been properly and publicly thanked for the excellent job they did on that Joint Select Committee. We made a pretty good job. We decimated the draft Bill and came up instead with workable solutions which were unanimously agreed by the whole committee, even though many of us had very different views on the balance between security and privacy. The conclusions we came to in our report were as follows:

“It is the duty of government—any government—to maintain the safety and security of law-abiding citizens, so that they may go about their lives and their business as far as possible in freedom from fear. This is not only in the public interest; it is in the interest of law-abiding members of the public. For this the law enforcement authorities must be given the tools they need. Reasonable access to some communications data is undoubtedly one of those tools. But the Government also have a duty to respect the right of citizens to privacy, and their ability to go about their lawful activities, including their communications, without avoidable intrusions on their privacy”.

We went on to say:

“Our overall conclusion is that there is a case for legislation which will provide the law enforcement authorities with some further access to communications data, but that the current draft Bill is too sweeping, and goes further than it need or should”.

Those were the conclusions we came to last year in the light of what we knew then. Although Prism and Tempora were at the centre of what we were being asked to look at, we were deliberately kept in the dark about them. It is my personal view that the draft Bill was clearly an attempt to legitimise what the security services were doing already. Of course, they may be talking publicly about it, but they refuse to come to Parliament to tell us about the Bill they were demanding that we pass. This situation cannot be allowed to continue. We need a wide-ranging debate about the balance that we described in our conclusions. We said that they should have reasonable access to some communications, not uncontrolled access to anything they liked or beyond what Parliament intended. This is the key point: whether the security services were technically operating under some part of RIPA is irrelevant. What is wrong, as we have discovered over the past few months, is that they were doing things way beyond the imagination of Parliament and which we did not know about. I have no brief for the Guardian

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and its general, Polly Toynbee, bleating for someone else’s money to be spent on its favourite causes, but in my opinion the newspaper has done a service by revealing the reach and the extent of what was being done in our name.

I detest traitors who reveal secrets which endanger national security, but there is a greater threat to our freedom when powerful agencies of the state feel that Parliament must be kept in the dark about the parameters under which they operate. I say “parameters” because we do not need to know, nor should we know, the operational techniques and methodology of the security services, but we should have known that they had the Prism and Tempora capability and were using it under rules agreed by Parliament.

In the early 1980s, I sat in a trench in Germany and asked my commanding officer, “What is my mission, Sir?”. “Your mission, Maclean”, he said, “like the rest of us, is to try to hold them back for 48 hours to give the politicians time to nuke ‘em”. In those days, breaching national security could have resulted in the complete nuclear annihilation and destruction of the western world, and that was what traitors like Burgess, Philby and the other Maclean were doing. It is preposterous for senior figures now to suggest that Snowden is in the same league as those traitors. He is not, and that should be obvious. There is also a need for a debate about what is national security now. Clearly a dirty nuclear bomb in central London which renders the capital unusable and uninhabitable for 50 years is a mega threat to national security. However— and I choose my words very carefully so that I am not misunderstood—much as a terrorist bomb that kills 100 people is an abominable evil and we should try to stop it, is it a threat to national security in the same way as nuclear annihilation in the 1980s? Is it a threat that requires the communications of 56 million law-abiding people to be collected in case there is an evil terrorist among them? I do not know, but I do know that this Parliament—your Lordships’ House and the other place—must debate it and collectively strike the balance between reasonable access on the one hand and privacy on the other. We must have replacement legislation for RIPA along the lines recommended by my committee, with proper checks and balances on the security services. We need that debate, it must be wide-ranging, and we need it soon.

3.04 pm

Lord Reid of Cardowan (Lab): My Lords, I have had the good fortune of working with our intelligence agencies as Secretary of State for Defence, Minister for the Armed Forces, Home Secretary with responsibilities for counterterrorism and Secretary of State for Northern Ireland. I have to say right at the beginning that I know at first hand the good that the security services do and about the lives they have saved. Those are not the hundreds that the noble Lord just referred to, but in one case it was thousands. Overall, it has been many, many thousands of lives in this country. I know also that much of the good that they do is never recognised precisely because it is their job to prevent evil happening. I want to put that on the record right away.

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Let us start with the obvious. It is right and fitting in a democracy that all the agencies of the state are accountable to and overseen in an appropriate fashion by the elected representatives of the public. The intelligence agencies are a special case since inevitably much of the work they have to do must be carried out in secret. That does not mean that they are unaccountable. Indeed, over the decades we have constructed an elaborate degree and system of oversight. Their work is carried out in accordance with a strict legal and policy framework which ensures that their activities are authorised, necessary and proportionate—I will come back to this. At the heart of the framework are two Acts of Parliament, not only the Regulation of Investigatory Powers Act 2000, which was mentioned by the noble Lord, but also the Intelligence Services Act 1994.

A rigorous system of oversight of the activities of intelligence services is already in place, incorporating warranty oversight by Secretaries of State, detailed review by the Interception of Communications Commissioner and the Intelligence Services Commissioner, and scrutiny by the Intelligence and Security Committee. Today, the fundamentals of this system of oversight have been added to by the interviewing of all three heads of the intelligence services in public and on television. That is an extension that is happening even as we speak. The fundamentals of the system of oversight and accountability have not changed, and indeed we have been assured of this by the Foreign Secretary himself.

What is the present controversy all about? If the fundamentals and the objectives of the intelligence services have not changed, what is it that has changed? It is the world that has changed, and it has done so exponentially. That is not least in terms of electronic communications, as referred to by my noble friend Lord Soley. Cyberspace is now an environment that permeates everything we do. It is an environment that offers great opportunities for information, communication, personal empowerment and advances for good, but it is also an environment that offers equally great opportunities for the bad: for, among others, international crime, terrorism, paedophiles and hate crimes. These, and others intent on malevolent action, no longer communicate directly using a simple telephone line from A to B. Put simply, they now communicate across the world by voice over ISP, the internet, by e-mail, by text or by concealment on web pages. That is what has changed, and crucially, all of these traverse the globe. They are transnational, not even international. All those whose activities are of malevolent intent use these electronic means.

I can tell noble Lords that when I was Home Secretary I looked at a number of plots, on some occasions between 40 and 60. Not one was confined to this country alone. All of them involved communication between people in at least two countries, while a major one involved people in 20 countries. That is the nature of the world in which we now live. The job of the intelligence agencies has thus been made infinitely harder in maintaining surveillance. I can tell the House that Sir Iain Lobban has only just told today’s hearing that we have to, “anticipate, discover, analyse, investigate and respond, and we have to do that globally”. That is him speaking for GCHQ. How can I tell noble Lords that? It is because I have an iPad which communicates

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to me in real time via the BBC what is being said in another place and communicates that simultaneously around the world. That is the world we are now living in and which our intelligence agencies have to cope with. They are faced with an infinitely greater task than ever. They are still looking for needles in a haystack, but the haystack is now global; it is huge in size.

We have been assured by the Minister that the nature of the surveillance and the fundamental principles underlying it have not have changed, and therefore in order to discover who is communicating with whom, the security services have to operate under RIPA, and in order to look at any content, they must have a warrant from a Home Secretary; that has not changed. So it is incumbent upon us to recognise that while information should not be kept unnecessarily out of the public domain, a balance must be struck. In order to safeguard sensitive methods and sources and to ensure that the secret intelligence agencies stay secret, some of that oversight must take place behind closed doors.

The intelligence agencies need oversight and scrutiny, but they need to operate in the real world as it exists today. We may not have caught up with this real world, but this can be no excuse for them because, ultimately, the lives of our fellow citizens depend on the intelligence agencies catching up with the real world, and as I said, thousands of lives have been saved. So they require scrutiny and supervision, but they also need our understanding and support in the vital work they do for this country.

3.11 pm

Lord Strasburger (LD): My Lords, I thank the noble Lord, Lord Soley, for initiating this important debate. Let me start with two tributes. First, I pay tribute to our security services which do an excellent job of keeping us safe. My second tribute goes jointly to the American whistleblower Edward Snowden and to the Guardian, which has published his astonishing revelations. Both have been brave and highly responsible—all but one of the Guardian articles was approved in advance by the Government—and were it not for them, we and the rest of the world would still be in the dark about what the NSA and GCHQ are up to.

This scandal, for that is what it is, is not the fault of GCHQ, which naturally will grab all the tools it can until it is stopped. The blame falls on those in this country and in America who should have been watching over the spies. In the UK, I am talking about the Cabinet in this Government and the previous Government, the National Security Council and the Intelligence and Security Committee. These bodies are supposed to oversee the security services. It is their job to ensure that the British people are not only safe but that their privacy is protected and that intrusions into our private lives are proportionate and justified. In the case of GCHQ’s Project Tempora, they have all failed miserably.

The only way such highly intrusive powers can be granted in a democracy is with the informed consent of the people, via Parliament. Parliament was certainly not informed about Tempora, nor has it given its

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consent. We parliamentarians knew nothing about the way GCHQ was helping itself to the private data of every citizen until the


exposed it. The Cabinet, the NSC and the ISC have all been asleep at the wheel while GCHQ ran out of control.

The ISC, which has the most intimate access to the security services and should have known what was going on, lacks resources and the skills needed to understand the technologies being used. It has clearly failed to ask the awkward questions it should have been asking. The ISC must be unfit for purpose, even in its recently modified guise, and there are questions about its independence. Parliament should not have had to rely on a whistleblower to reveal Tempora’s massive abuse of power.

Furthermore, the Home Office has deliberately ensured that Parliament is kept in the dark. Last year, I sat on the Select Committee on the draft Communications Data Bill, under the very able chairmanship of my noble friend Lord Blencathra, and listened to Home Office officials repeatedly justify the Bill by adamantly asserting that there was a 25% shortfall in the communications they could collect and that this gap was hampering the fight against terrorism. At no time did they disclose, not even in the two private sessions, that for years GCHQ has been collecting far more data than that Bill would have given it and that there is no shortfall. That deliberate deception of Parliament is an affront to democracy, and those officials should be seriously considering their positions.

So what needs to happen now? First, there needs to be a vigorous public debate about what we are prepared to allow our security services to do and the boundaries of their reach into our private lives. I hope that the outcome would be permission for intrusive and up-to-date powers of interception for the police and security services where there are convincing grounds for suspicion of serious crime. Equally there needs to be a strong prohibition of mass untargeted surveillance of ordinary, innocent citizens. There will be a need for new legislation to replace RIPA, which was full of deliberate loopholes when it was written and is now hopelessly out of date. There needs to be very strong and sceptical oversight which reports directly to Parliament and has the necessary resources and skills and real teeth. Most of all, we need a sea change in the Government’s approach to the trade-off between liberty and control.

The Snowden cat is out of the bag. He has 58,000 secret documents, and so far the Guardian has published excerpts from just 17 of them. There must be much more to come. It will no longer do for the Government to sit Canute-like on the beach while a tsunami of further revelations engulfs their old policy of sticking their fingers in their ears and muttering that they do not discuss security matters. They must stop trying to shoot the messenger by attacking the Guardian. They must also stop pretending that Britain has the best oversight of its security services in the world when that oversight has spectacularly failed to spot and prevent intrusive surveillance of every citizen without Parliament’s knowledge and consent.

Our Government must now engage in the public debate about what spying the people will or will not tolerate—a debate that has been happening for some

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time in America, from the President down, and also in France and Germany. The status quo is no longer an option. It is time for the Government to engage fully in the debate.

3.17 pm

Lord Foulkes of Cumnock (Lab): My Lords, I, too, congratulate my noble friend Lord Soley on obtaining this debate. Like him and my noble friend Lord Reid of Cardowan, I admire the work of the intelligence and security services. They have averted substantial terrorist threats and, unlike the noble Lord, Lord Blencathra, I think that is of national interest. I also understand and agree with what my noble friends Lord Reid and Lord Soley said about the challenges of new technology. However, I will follow what the noble Lord, Lord Strasburger, has just. Some recent reports have shown the inadequacy of the scrutiny of those services by the Intelligence and Security Committee as currently comprised. That is what I want to concentrate on in my few remarks today.

I am not surprised, frankly, at what has happened. For four years, I served as the only representative of this House on the nine-person committee and experienced some of the difficulties of scrutinising the intelligence and security services. I had some radical ideas and some changes to propose and managed, along with others, to persuade the Government to increase the number of committee members from this House to two. I was surprised, although maybe I should not have been, that I was summarily removed from the committee by the coalition. What was even more disturbing was that no Labour Peer was appointed by the Prime Minister in my place—no Labour Peer served on that committee. I have great admiration for the many qualities of the two Peers appointed. However, I doubt if my old friend, the noble Marquess, Lord Lothian, and the noble Lord, Lord Butler, a former head of the Civil Service, have at the top of the list of their qualities a reputation for radical and challenging questioning. In fact, two more stalwart pillars of the establishment would be very hard to find.

The ISC is, as I understand it, being reconstituted and is to become a joint parliamentary committee rather than a committee appointed by the Prime Minister. However, I must say, with respect to the Minister, that the secrecy surrounding the way in which this committee is to be constituted would do MI6 proud. It is not the open procedure that Parliament ought to have. Can the Minister, in replying, clarify exactly what the composition of the committee will be, how it will be appointed and how it will operate? My view is that, like any other Joint Committee, the House of Lords should have roughly half of the members, especially as we are going to be bearing half of the cost. I suggest that the size of the committee might be increased to 11 members, with five from the Lords and six from the Commons. The latter would include the chair, who should be a member of the opposition party, like the chair of the Public Accounts Committee, to give the committee greater credibility. I have great respect for the current chair, Sir Malcolm Rifkind—I have known him for 50 years, since he was young man—but, to be honest, it does not instil confidence among the public and in Parliament that the committee will undertake

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radical and effective scrutiny when you have someone in the chair who has so recently been Foreign Secretary and had those kind of responsibilities himself.

In order to ensure that the committee is seen as effective and impartial, the members of the committee need to be chosen by as democratic a procedure as we can possibly devise. We are not the most democratic House, but at least we can try to work on some kind of democratic procedure so that the members are accountable to both Houses. I am asking the Minister to cover this in his reply, but suggest that if we had five Peers, two might be chosen by the Labour group, two by the government parties and one by the Cross-Benchers. They would have an opportunity to report back to the groups on what is happening and what their experience has been. Of course, it is up to the Commons to decide how its members are chosen, but I hope there would be some degree of accountability.

Further changes are of course needed in the operation of the committee. For example, when I was on the committee, we had no staff to carry out investigations. We were not allowed to appoint staff to go into the departments and carry out investigations on our behalf. Previously, the committee had an investigations officer, but that was stopped by the Government because, no doubt, he was investigating too much. The committee needs some capacity in that respect.

The changes in membership should be made first. For the committee to have some credibility, it needs to have some accountability. I hope that the Minister will give noble Lords a clear indication in his reply that there are going to be changes in the constitution, composition and operation of the Intelligence and Security Committee. If we do not get those kinds of assurances, some in the media and among the public will continue to take that view that somehow, in some ways, the Government have got something to hide.

3.23 pm

Lord Judd (Lab): My Lords, I join other noble Lords in thanking my noble friend Lord Soley most warmly for having had the courage to initiate this debate. If anything has been established in the very important deliberations so far in this debate, it is that there is a need for a proper, full debate, and a much wider public debate, about the issues at stake. If nothing else, my noble friend is to be congratulated on that.

I should say at the outset that I have, of course, been a Defence Minister and a Foreign Office Minister. I was a Defence Minister in the days when we had service Ministers, and I was very proud to be Minister for the Navy. As such, I was regularly briefed by the head of intelligence in the Navy, who was a very enjoyable admiral, so it was a good conversation. I shall always savour the day on which he came to see me with his briefings and said, “Minister, I think I ought to let you know that the head of the Russian Navy is describing you as Cold War Warrior Judd”. I am not sure that that would be immediately recognised by all my colleagues and the rest, but I will always savour that occasion.

I grew up in a non-conformist Christian family, and one of the realities of growing up in that kind of culture was that from a very young age I was encouraged

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to realise that, whatever I might do with my life, God knew everything. My theological thinking has rather moved forwards since those days, but I do not think that at any point in my evolution have I seen GCHQ or the NSA as God. That is the point. God was there as a moral balance in life. He was your conscience. There is immense power in the hands of these authorities now, but no one—including, I believe, most of those working in them—would begin to believe that they are the moral authority of the world; they are there to preserve security.

I have been convinced for a long time that if you make a hard analysis of the threats that face us as a nation, the combination of terrorism, the fact that small numbers of people can do terrible things and the increasing accessibility of the material for mass destruction is a nightmare. One only has to think of the whole business of germ warfare, crude nuclear weapons and the rest to imagine what could happen. If I have one comment for the noble Lord, Lord Blencathra, after his very powerful speech, it is that I am not quite sure how he comes to his conclusion in the equation he put before us, because I do not think that it is just a matter of more localised, small incidents or nuclear war. I think that there is a whole gradation in between and that the real dangers lie in that area. That is why intelligence is indispensable. For a long time, I have felt that our security lies very much in the realm of intelligence and in ensuring that it is properly staffed and properly resourced.

Therefore, going back to my point about God, if I may, it is all the more important that everyone can be certain that in the leadership of the intelligence agencies there are people committed, second to none, to the principles of liberal democracy and freedom that they are defending. It is important that that commitment and understanding permeates the whole organisation and that the internalised culture is that what it is doing is defending freedom, democracy and a decent society. That is a terribly easy thing to say but a terribly difficult thing to achieve.

I believe that we need to look very hard at the criteria for selection in the intelligence services, the training and the leadership at all levels. Otherwise, the excitement, the intoxication and the challenges of the task could become dominant; there is also the danger of counterproductivity.

I emphasise that, like others who have spoken, I believe this country owes a tremendous tribute to the courage and dedication of the overwhelming majority of people working in the security services and what they do on our behalf. I believe, therefore, that it is our duty not only to scrutinise, which we are doing today, but to stand firmly by those who have this concept of responsibility and of what they really are there to do. We must deal very severely with those who abuse that task or who indulge in things that I believe could ultimately be described as treason. Extremists work best when there is a culture of sympathy. We must never allow things to happen which accentuate that culture and which introduce more doubt among thinking people, thus opening up the opportunity for extremists to recruit and to strengthen their cause, and I am afraid that we are in danger of that happening.

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3.29 pm

Lord Rosser (Lab): My Lords, I add my thanks to my noble friend Lord Soley for securing this debate. It is timely as today, as my noble friend Lord Reid of Cardowan has graphically pointed out, is the first public hearing for the Intelligence and Security Committee in front of the cameras with the intelligence chiefs. Of course, it is timely also because of the recent spate of stories in our national press about some alleged activities of our intelligence services that has raised the issue of oversight and the effectiveness or otherwise of current legislation.

There have already been significant changes in legislation over the past year or so relating to the Intelligence and Security Committee. These have led to the committee reporting not to the Prime Minister of the day but to Parliament, which also now has the final word on who will be the members of the committee, and to the committee in future choosing its own chairman from among its own members rather than that being a decision for the Prime Minister.

The Justice and Security Act 2013 now requires the intelligence agencies to respond to requests from the committee for information and to provide the information that it is seeking. Previously, the agencies could decline to give the information requested. Included in the information that now has to be provided if sought is that regarding nationally significant operations. The committee is also now in a position, which it was not before, to send its staff into GCHQ, MI5 and MI6 to look at papers and files that relate to an investigation that it is undertaking, and it is for the committee and the staff concerned to decide what it is they want to see. Those are significant recent changes as far as the powers of the ISC are concerned.

In addition, we have the two commissioners, the Intelligence Services Commissioner and the Interception of Communications Commissioner, with responsibilities for overseeing the performance of the agencies, including GCHQ, under Parts 2 and 3, and under Part 1 of the Regulation of Investigatory Powers Act respectively.

My noble friend Lord Soley referred to the advances in technology and the way in which the speed of technological innovation can quickly overtake Acts of Parliament set up to define the limits of surveillance. As I understand it, the Intelligence and Security Committee intends to conduct an investigation into whether the Human Rights Act, the Regulation of Investigatory Powers Act and the Intelligence Services Act, and the interaction between them and the policies and procedures that underpin them, remain relevant with regard to the balance between security, liberty and privacy, given the significant advances in technology over the past few years.

An investigation of that nature is important, and we also need to be sure that the oversight arrangements are operating effectively, and are such—and remain such—as to inspire public confidence that what our intelligence and security services are doing is what they should be doing and are authorised to be doing, and is proportionate, not what they may have the capability of doing, which is something else. Co-operation is vital in the field of intelligence gathering, not least in the sharing of information with friendly

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countries and allies. Any activity that calls into question that trust could have serious security implications.

At a political level the intelligence agencies are ultimately responsible to the Prime Minister, but on a day-to-day basis it is Secretaries of State who are expected to balance national security considerations against the need to protect against an intrusion on individuals’ right to privacy. In the House of Commons on 10 June this year, the Foreign Secretary said that ministerial oversight and independent scrutiny was there as well as the scrutiny of the Intelligence and Security Committee, and that,

“the idea that operations are carried out without ministerial oversight, somehow getting around UK law, is mistaken”.—[

Official Report

, Commons, 10/6/13; col. 37.]

Opening e-mails or tapping a phone requires a warrant in the United Kingdom, and effective legislation and oversight arrangements should ensure that that is what happens. However, in the light of the Foreign Secretary’s statement that the idea that operations are carried out without ministerial oversight is mistaken, will the Minister confirm that that statement also covered any operations that may be conducted by or with the knowledge of our agencies outside the UK, whether in relation to United Kingdom bodies or citizens or to bodies or citizens of other countries?

We all recognise the importance of the work that our intelligence and security services undertake in protecting us against criminal and terrorist activity, international cyberattack and international global terrorism, and in ensuring our national security. We also recognise the reality that nearly all operations that have foiled a terrorist plot in this country in recent years have been dependent on information from communications data. I suspect that we will never fully appreciate or understand the debt we owe to our intelligence and security services since, for obvious reasons, the detail about what they do and how they do it cannot be in the full public domain.

It was Sir David Omand, a former head of GCHQ, who said that democratic legitimacy demanded that where new methods of intelligence gathering and use were to be introduced, they should be on a firm legal basis and rest on parliamentary and public understanding of what is involved, even though the operational details of the sources and method used would normally need to remain secret.

A number of issues and concerns have been raised in the debate, not least by my noble friend Lord Soley, who also made some proposals for change. I very much hope that the Minister will go as far as he feels he can in responding to them.

3.55 pm

The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con): My Lords, I join other noble Lords in thanking the noble Lord, Lord Soley, for presenting this topic for debate, and I am grateful to all noble Lords who spoke so eloquently in this debate. I think that noble Lords will understand that, in line with the practice of successive Governments, I shall not comment on specific issues relating to the work of the intelligence agencies. I shall focus on the breadth and depth of supervision of the UK’s intelligence agencies, and the fact that they are second to none

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and—given recent reforms extending parliamentary oversight, of which this House is very much aware—fit for purpose.

Secret intelligence helps protect national security, tackle terrorists and stop criminals. But this does not mean the activities of the intelligence services go unchecked. Successive Governments have rightly introduced measures to ensure that the use of intrusive powers needed to obtain intelligence are governed by a strict legal and policy framework compatible with the Human Rights Act. This ensures that intelligence activities are authorised, necessary and proportionate, and provides robust statutory oversight.

Oversight starts within the intelligence agencies themselves, which enforce rigorous internal controls. Their recruitment and training procedures are designed to ensure that those operating within them can be trusted to do so lawfully and ethically. A culture of compliance with the letter and spirit of the law pervades everything they do. Noble Lords have rightly paid tribute to the work of those in the intelligence agencies. In their most recent reports, both the Intelligence Services Commissioner and the Interception of Communications Commissioner commended the integrity and professionalism of the agencies’ staff.

In addition, of course, Secretaries of State are accountable to Parliament and the public for the agencies’ actions. They take decisions on whether to authorise the use of intrusive powers by the intelligence agencies. Senior members of the judiciary are appointed as Interception of Communications and Intelligence Services Commissioners to oversee the process of authorisation of intelligence activity, which includes reviewing the decisions of Secretaries of State and reporting to the Prime Minister on their work.

Several honourable Members in the other place recently urged the commissioners to play a more visible role. I agree. Oversight must be seen to be effective. That is why, as noble Lords mentioned—indeed, the noble Lord, Lord Reid of Cardowan, gave us an up-to-date briefing on what was going on down the other end—the Intelligence and Security Committee is, for the first time, holding an open evidence session with the three heads of the intelligence agencies. It is because of this landmark occasion that the noble Lord, Lord Butler of Brockwell, as a member of the ISC, told me that, contrary to his wish, he would not be able to participate in today’s debate. However, we should remember that so much of the commissioners’ work—and, of course, that of the ISC—involves extremely sensitive information and that there will be limits to what they can responsibly report on publicly.

Separately, the Intelligence and Security Committee examines the policy, administration, past operations and expenditure of the intelligence agencies. Noble Lords will remember that earlier this year the Justice and Security Act significantly reformed and strengthened the committee’s powers. As a result of that Act the intelligence agencies are more accountable to Parliament and no longer have the ability to withhold information from the ISC. The new ISC has a broader remit, extra powers to consider past operational activity, and twice the resources. Those reforms were not conjured from thin air but followed public consultation on the best

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way to modernise judicial, independent and parliamentary scrutiny of the intelligence agencies, while allowing them to get on with keeping us safe.

The noble Lord, Lord Foulkes of Cumnock, asked what the composition of the ISC will be and how it will be brought together. I can say that with the new appointments process, although the PM nominates the members after consultation with the Leader of the Opposition, Parliament will appoint the ISC. The reforms in the Justice and Security Act mean that the ISC will itself select its chair. Should the committee wish to nominate a member of the Opposition as the chair, it will be free to do so. I hope that that will reassure the noble Lord.

Lord Foulkes of Cumnock: I am grateful to the Minister for that. However, can he clear up the point I raised about the balance of membership between the two Houses? As I understand it, we are being required to provide 50% of the running costs. We are also used to Joint Committees of both Houses having roughly equal membership. Can he assure us that that will be the case with this committee?

Lord Taylor of Holbeach: If I sought to reassure the noble Lord, I might make a mistake. However, I will check that out and write to him. The noble Lord makes a very good point as a loyal Member of this House, and I hope that I will be able to give him a positive answer.

We have to give these new arrangements time to bed down and to prove their effectiveness. I am certain that the committee will succeed in giving Parliament and the public confidence that the Executive and the agencies are properly held to account. As the noble Lord, Lord Soley, said, the whole business of keeping legislation up to date is a matter for the House authorities, and he made an interesting suggestion about how we can keep pace with technical change. However, that is a matter not only for the Government but for the House authorities as well.

Supervision does not stop with the ISC. The courts provide an independent avenue for anyone who wishes to complain about intelligence activity. Anyone who feels that they have been subject to improper use of intrusive powers by the intelligence agencies can complain to the Investigatory Powers Tribunal, which provides independent judicial oversight. If it decides that legislation has been breached or human rights infringed, it can quash warrants, order the destruction of records and award financial compensation.

One need only look at the range of activity this year alone to see that the system works. The ISC has published reports on foreign involvement in UK critical national infrastructure, communications data, and GCHQ’s alleged activity in relation to PRISM. It is now reviewing the tragic killing in Woolwich in May and will begin another review next year into intelligence legislation, which may assist with the point made by the noble Lord, Lord Soley. The Interception Commissioner is investigating reports related to interception following the Snowden leaks. A judicial review of the police’s decision to stop David Miranda in August is currently being heard by the courts, and

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the independent reviewer of terrorism legislation—David Anderson QC—will then report on the police’s use of terrorism powers in that case.

The Investigatory Powers Tribunal is considering several cases arising from the Snowden leaks that have been brought by parties including Liberty and Privacy International. If these investigations and legal cases lead to criticisms, recommendations for change, or adverse judgments, the Government will listen, reflect and respond. This is how effective oversight works, and this is how we can best ensure that Parliament and the public can have confidence in the work of intelligence agencies while protecting the secrets that need to remain secret.

I will now comment on some of the points made by noble Lords in the course of the debate. I welcomed all the contributions, which were good. I do not necessarily share the views of my noble friend Lord Blencathra on the proportionality of different levels of terrorism. I thank the pre-legislative Joint Committee on the draft Communications Data Bill, which did Parliament great justice in its scrutiny. The ISC undertook similar scrutiny of that Bill; it took evidence from the intelligence agencies and was briefed on GCHQ capabilities in this area. From its informed position, it considered there was still a communications gap requiring legislation. The noble Lord, Lord Reid of Cardowan, paid right and proper tribute—

Lord Reid of Cardowan: Given the Minister’s accolades for all the work done by both the ISC and the committee of the noble Lord, Lord Blencathra, can he tell us what has happened to that Bill? What is the blockage?

Lord Taylor of Holbeach: I do not think that there is a blockage, but I think it is sensible that we reflect on the two committees’ contributions to the legislation. No doubt the Government will bring forward legislation in due course to cover the gap that was detected in our ability to handle modern communications.

Lord Reid of Cardowan: I am grateful, but given that a gap has been identified, that means there is a gap in counterterrorism, surveillance and national security. Can the Minister explain why it is taking so long to reflect on that, when so much work has already been done? Will he comment on the suggestion that the blockage is actually the Deputy Prime Minister?

Lord Taylor of Holbeach: I think that the noble Lord is being a little mischievous on this particular issue. Heaven forfend that he should be so. He knows the background against which the issue is being debated. All I can say is that the challenge to be effective in the real world, and maintain a proper balance, is what the Government are seeking to do. That is why we are so supportive of having proper scrutiny of the security services. I have been interrupted. I hope noble Lords will forgive me, but I must rush because otherwise I will run out of time.

I reassure my noble friend Lord Strasburger that the ISC has very much increased resources, and is now responsible not just to the Prime Minister but to Parliament itself. The communications data gap relates to what is happening in the UK. GCHQ is a foreign

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intelligence-gathering agency, and this is its core mission. The Communications Data Bill focused on the communications gap in this country.

The noble Lord, Lord Judd, made one of his usual passionate contributions. I noted his call for a longer debate on these issues. I would welcome this. However, the shortage of time has not inhibited noble Lords in the expressiveness of their contributions.

I thank the noble Lord, Lord Rosser, for his contribution. It is not technical capacity that governs intelligence gathering but the need for intelligence. I cannot comment on the Foreign Secretary’s statement applying to overseas activities, but all of GCHQ’s work is carried out in accordance with a strict legal and policy framework which ensures that its activities are legal, necessary, proportionate and targeted. I hope that we can say that of all the activity that is done in our name by these important parts of our national security apparatus.

Armed Forces: Legal Challenge

Motion to Take Note

3.50 pm

Moved by Lord Faulks

To move that this House takes note of the case for protecting the armed forces from vulnerability to legal challenge.

Lord Faulks (Con): My Lords, it is entirely appropriate that today, as we approach Remembrance Sunday, we should be discussing the Armed Forces. The subject of the debate is their vulnerability to legal challenge or what is sometimes described as the increased juridification of military conflict.

It is an enormous privilege to bring the debate to your Lordships’ House. I am conscious of the fact that included in the list of those to speak in the debate are noble and learned Lords, noble and gallant Lords, and others with real experience of the issues which this debate involves and who can enlighten your Lordships’ House. I, on the other hand, am a mere lawyer. To be more specific, I am a barrister who has spent a considerable amount of the past 20 years of my professional life patrolling the borders of the law of negligence, acting for public authorities, the emergency services and professionals—but not the Ministry of Defence. I was also special adviser to the Department of Constitutional Affairs on the compensation culture.

The law of armed conflict is well established. It is no part of my argument today that we should be resiling from the Geneva convention or any other of our humanitarian international obligations or that war should in any way be a law-free zone. However, what concerns me and many others is the encroachment of our national law into the way our Armed Forces conduct themselves. The law of negligence in particular is far better suited to civilian life, such as accidents at work, or events that take place in a controlled environment, or at least one capable of being controlled.

The recent publication by Policy Exchange of The Fog of War provides a penetrating analysis of the way in which the law has developed and reaches the conclusion that,

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“recent legal developments have undermined the Armed Forces’ ability to operate effectively on the battlefield”.

If this is correct, we must question whether it is time for a change in the law.

Many noble Lords will be aware of the Supreme Court’s decision this year in the case of Smith v Ministry of Defence, in which, by a majority of four to three, the court concluded that the claim should go to trial so that a judge could decide on the evidence whether the claims were covered by the doctrine of combat immunity, or could give rise to a claim based on the Human Rights Act. There are a number of reasons why I will not go into the detail of the facts of the case. First, it is not concluded. Secondly, it used to be a convention, not sufficiently honoured, that Parliament did not criticise judges. Thirdly, whatever the law should be, those who brought these claims have suffered bereavement or serious injuries and can only have our profound sympathy. Finally, even those like me who are alarmed by the implications of this judgment could not but admire the detailed and thorough analysis of the issues contained in the speech of the noble and learned Lord, Lord Hope, who spoke for the majority in the case.

However, the issues of principle which arise from that case are important and should be debated. Are judges to blame for the current situation? It is undoubtedly the case that the approach of the courts to difficult questions of immunity from claims has changed. For example, in Hughes v National Union of Mineworkers in 1991, the Court of Appeal decided that police officers who were quelling serious public disorder should not be liable for negligence on public policy grounds. The decision stemmed in part from the case of Hill v the Chief Constable of West Yorkshirein 1988, in which the House of Lords Appellate Committee decided that the police were immune from claims in negligence for failing to catch the Yorkshire Ripper, albeit that they may well have made mistakes which, if avoided, could have saved the life of the last victim or victims of Peter Sutcliffe.

The law in relation to combat immunity is judge-made. It was explained most recently in the cases of Mulcahy in 1996 and in Multiple Claimants v Ministry of Defencein 2003. It is not a neat and tidy area of the law. Its scope seems likely to be very closely confined in the future. It must be acknowledged that rather few of our judges have served in the military, whereas in the post-war period almost all would have done so. But this does not explain entirely the opening up of the law. Sir Alan Moses, in his thoughtful preface to The Fog of Law, suggested that the expectations of the public in terms of the care which should be taken in ensuring the safety of the military was a significant factor in judges’ thinking and that they probably reflected what much of the general public might think about the issue.

Another explanation is provided by Professor Anthony Forster, who points to the fact that recent developments have been,

“wars of choice rather than wars of national survival”.

One of the difficulties in the Smith case and its predecessors was the question of where so-called battlefield immunity begins and ends. There is no obvious reason

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why a common or garden accident which takes place at a training establishment should be any different from one that happens in an ordinary factory environment, although this may not apply to some of the more extreme forms of training which are necessary to be ready to fight in theatre. But if the doctrine of combat immunity is insufficiently precise for judges’ tastes, the effect of the Supreme Court finding is that a court will then have to examine in detail whether there was fault and, if so, whether that fault fell one side or another of the rather uncertain line which defines combat immunity or, as the Supreme Court preferred, whether it would be fair, just, and reasonable to conclude that no duty of care was owed.

In practice, this means a trial with witnesses having to justify their decisions and actions. I have recently been acting for the fire brigade in a case in which it was alleged that the incident commander was negligent in fighting a major fire in which firefighters died. It was suggested to him that the fire should not have been fought at all or that he should have ensured the evacuation of firefighters much earlier. Watching him being told that he was responsible for the death of his comrades who were close friends was an unedifying experience. That is what will happen with the military even if the case ultimately results in the exculpation of those concerned. I am driven to agree with the noble and learned Lord, Lord Mance, who gave a minority judgment in Smith. He said that the approach taken by the majority,

“will in my view make extensive litigation almost inevitable after, as well as quite possibly during and even before, any active service operations undertaken by the British Army. It is likely to lead to the judicialisation of war, in sharp contrast with Stark J’s dictum in

Shaw Savill

(1940) that ‘war cannot be controlled or conducted by judicial tribunals’”.

One of the lawyers who is acting for a number of claimants in this rapidly growing field—and it is growing fast—was quoted as saying this in the Times on 19 October of this year:

“The court is the best place to decide these very difficult issues”.

I could not agree less. The studied calm of the Royal Courts of Justice, with vast numbers of documents and the luxury of time in which to consider issues, not to mention the benefit of hindsight, is a world away from the field of military activities. No fog, my Lords, in Court 12. Barristers like me, whose experience of military matters is restricted to an undistinguished period in the combined cadet force at school, will be seeking to second-guess military commanders facing life-or-death decisions based inevitably on less-than-perfect intelligence and almost certainly on less-than-ideal equipment at any one time. I am afraid that it is simply not enough to suggest that the courts can, in each individual case, sort out what is a purely policy matter, and therefore not capable of review by the courts, from a matter that crosses the boundary into combat immunity. The very process of deciding those issues will involve challenging military decisions on procurement, tactics and deployment, whether on a macro or micro scale. The noble and learned Lord, Lord Mance, is surely right.

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We are thus entering a period where there is a risk that military decisions will be questioned and thus potentially affected by the decisions of judges. Civil servants are told to consider, when doing their work, to have regard to the hypothetical judge on their shoulder. Our Armed Forces will have such a judge with them, to paraphrase Winston Churchill, on the sea and in the oceans, in the air, on the beaches, on the landing grounds, in the streets and in the hills.

How does the Human Rights Act help? Clearly, the Strasbourg Court is not the appropriate venue in which to decide matters of fact and judgment. However, it is possible that the European Court of Human Rights may decide that any restriction on the liability of the Ministry of Defence potentially or actually violates Article 2 of the convention—or some other article, possibly Articles 3 or 8. I have real difficulty in understanding what Article 2, the “Right to Life”, really means in the context of armed conflict. There is something strangely poignant when the mother of a soldier says to the press, after the decision in Smith, “Now all those soldiers have the right to life”. Perhaps that is the effect on the public’s mind of the decision.

So what can the Government do about this? They can legislate to define combat immunity. They can consider reviving Crown immunity, something that is open to them under Section 10 of the Crown Proceedings Act 1947. They can legislate fully to exempt the MoD from corporate manslaughter and corporate homicide. They can derogate from the European Convention on Human Rights during deployed operations, as other countries have done. These are just some of a number of recommendations that Policy Exchange has put forward.

In answer to the noble and gallant Lord Craig of Radley, on 23 October, the Minister said that the Government were hoping,

“that the Court will provide clarification of combat immunity”.—[

Official Report

, 23/10/13; col. 1003.]

Whatever clarification is forthcoming, it will not be a solution to the problem that I have attempted to identify.

Nothing that I suggest should in any way derogate from the military covenant or diminish the Armed Forces Compensation Scheme, which provides compensation on a no-fault basis. However, to treat our brave men and women as subject to the assessment of the courts in the same way as a factory owner who has failed to fence his machinery is in my view highly inappropriate. The courts have given their response. It is not, in my judgment, the right one, and it is time for the Government and Parliament to respond.

4.03 pm

Lord Thomas of Gresford (LD): My Lords, I thank the noble Lord, Lord Faulks, for bringing forward this important debate. I declare an interest as the chair of the Association of Military Court Advocates.

The mood of this House in the debate on the prospect of military involvement in Syria demonstrated a response to public opinion which has become less enamoured of military campaigns. The public are hugely supportive of the lower levels of the Armed Forces but less confident of the political and senior

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military leadership. There remains from the historic concept of Crown immunity a statutory power under Section 2 of the Crown Proceedings (Armed Forces) Act 1987 to prevent any proceedings in tort by servicemen and their families against the Crown altogether. It has never been invoked or brought into effect, no doubt because it would be political death for any Minister or his party to deny relief to the injured and bereaved arising out of the unpopular wars of choice in Iraq and Afghanistan. That power remains, however, as a backstop if this country ever again becomes involved in a general conflict with a large number of casualties.

Since there is currently no general immunity from suit, the Ministry of Defence must deal with actions, based on Article 2 of the European Convention, or on negligence at common law, brought by relatives of those killed, by injured servicemen, and by those who have been detained by British forces.

The Ministry of Defence has fiercely resisted the application of the European Convention on Human Rights in theatres of war. From my participation in the Baha Mousa case, I recall a brave officer in the Army Legal Service being reprimanded by a top civil servant in the MoD for daring to suggest that the treatment he observed in Basra of Iraqi prisoners—being hooded, hands bound, kneeling in the dirt—could amount to inhuman and degrading treatment in breach of Article 3. He was told, dismissively, by the MoD that, if he were right that the European Convention applied in Iraq, the Government should make him Attorney-General in place of the then Attorney-General who had advised otherwise.

It was the unanimous view of the Supreme Court in the Smith case that not only captured prisoners, but service men and women who have relinquished almost total control over their lives to the state, can claim the protection of the convention, even when serving outside the United Kingdom or Europe. The debate was about the scope of Article 2— that everyone’s right to life should be protected by law. In what area is it fair, just and reasonable to extend the protection of that article to service men and women? It used to be common ground that matters of high policy and the exercise of political judgment in the use of resources were not justiciable, but nor were decisions taken by commanders in the heat of battle.

In claims based on negligence, the fallback defence of the MoD has been the ill defined concept of “combat immunity”—an exemption from tortious liability in the context of actual or imminent armed conflict. Its boundaries have not been settled, and it was held that this can only be determined on the facts as found at trial. The majority in Smith were prepared to countenance actions based on inadequacies of procurement, of training, and of material which have led to death and injury.

The purpose of the paper, The Fog of Law, published by Policy Exchange, is to criticise the very limited area of potential liability outlined by the majority in Smith. It seeks, in my view, to undermine the role of the judiciary by complaining of “judicial creep”. The authors argue that the commander in the field will be looking over his shoulder; they say that his ability to act with flexibility and determination will be threatened.

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I consider that to be nonsense, in the light of the views expressed across the Supreme Court in the case of Smith.

The authors of The Fog of Law reflect the views of the Ministry of Defence as demonstrated in its very interesting study entitled, Risk:The Implications of Current Attitudes to Risk for the Joint Operational Concept, published in the Guardian on 26 September 2013. That MoD paper refers to the benefits which can accrue from a “who dares wins” approach to military action, an approach which will encourage individuals to accept risk. It requires positive action by the MoD to mitigate the effect of risk aversion, to preserve the utility of the Armed Forces,

“by influencing those who might mistakenly place crippling restrictions on our actions”.

The study goes further, suggesting a series of changes in MoD thinking and practices, which include reducing the profile of the repatriation ceremonies. The Royal Borough of Wootton Bassett is clearly not its favourite town. It wishes to,

“reduce public sensitivity to the penalties inherent in military operations”.

“Penalties” is Civil Service speak for death and injury. Its future work, it states, is to collect evidence,

“to demonstrate the latitude offered by existing legal frameworks”.

Wittingly or not, the authors of TheFog of Law paper seek to provide that evidence. I consider The Fog of Law paper to be a wholly unjustified and over-the-top attack on the standards of justice which should protect those who volunteer for the armed services.

Recently, in September, before a judicially led defence department inquiry in Washington DC, I was proud to outline the leadership role the United Kingdom had taken, both in the courts and in the Armed Forces Acts passed by this Parliament, in applying the rule of law to the military sphere, not least in the revolution of its courts martial processes. A series of cases from Findlay onwards in the European Court of Human Rights led to changes that are welcomed not merely in the services but in the services judiciary. It would be sad to see the Ministry of Defence take a backward step.

It is certainly not the role of the judges to run the Army, but the decision in Smith is miles away from that. The days when our Armed Forces were effectively isolated and self-contained, standing slightly apart from public attitudes, as the MoD paper succinctly puts it, are well and truly over. In a competitive market, the services require recruits of sufficient number and quality to operate increasingly sophisticated equipment and to endure the harshest of conditions. They should have all such measures of protection against death or injury and all such guaranteed human rights as is fair, just and reasonable having regard to the inevitable risks they have volunteered to run. A democratic society demands no less.

4.11 pm

Lord Hope of Craighead (CB): My Lords, I must, of course, declare an interest as I was, indeed, the author of the decision in Smith v Ministry of Defence which has given rise to this debate. I appreciate very much that our decision has given rise to concern, so I very much welcome the opportunity that the noble Lord, Lord Faulks, has given us to examine some of the issues that the case has raised.

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When a judge writes a judgment, one of the rules that he has to work with is that the judgment must speak for itself. It is not open to him to add anything to it or to subtract anything from it once it has been issued, and it is not my intention to do that, nor would I wish to do so. However, I thought that it might help if I were to say a little about how the leading judgment which I wrote is designed and about what it says, as it is vital to any decisions about where we go from here that it should not be misunderstood.

As the noble Lord, Lord Thomas of Gresford, indicated in what he has just said, under our system it is open to anybody who believes that he or she has a claim of damages against a public authority to bring that claim to court. When that claim is brought before the court, the judge has to deal with it. There are two sides to every argument and the issues cannot be ducked, however difficult or uncomfortable they may be.

The claims with which we were dealing arose out of casualties sustained in two distinct phases of the United Kingdom’s engagement in Iraq. The first was a friendly fire incident involving two Challenger tanks during combat operations on the fourth day of the offensive. The second involved the use of Snatch Land Rovers on two occasions during a period when our forces were exercising the powers of government for the provisional Administration in Iraq—assisting the civil power, in other words. These claims were brought under two distinct branches of our law. The claims in the two Snatch Land Rover cases are brought under the Human Rights Act for breach of a convention right. The Challenger friendly fire claims dealing with combat do not raise a human rights issue at all. They are brought under the common law only. The second of the two Snatch Land Rover cases has an additional case under the common law, too.

As for the human rights claims, we held that a decision of the Strasbourg court left us with no alternative but to hold that the protection of the right to life under Article 2 of the convention applies to members of the Armed Forces when they are serving anywhere outside the territory of the United Kingdom, as well as inside its territory. Of course, as has been pointed out, that raises the question of how that article was to be applied in the situations that were described to us in these cases. The majority held that the court did not have sufficient facts to decide the issue for itself, so the Snatch Land Rover cases would have to go to trial. However, we gave as much guidance as it was open to us to give in paragraph 76 of the judgment. I said that the court must avoid imposing unrealistic or disproportionate obligations on the state in connection with the planning for, and conduct of, military operations in situations of armed conflict. It would be easy to find that the claims are beyond the reach of Article 2 when those thought to be responsible were actively engaged in contact with the enemy. In the Snatch Land Rover cases, it was not open to us to declare that the state had absolute immunity in these matters. The law with which we are dealing—human rights law, convention law—does not work that way, but we expected the trial judge to pay very close attention to the guidance which we were giving.

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Under the common law claims, we first had to examine the doctrine of combat immunity, which has been referred to, because the MOD argued that all the common law claims should be struck out on this ground. As noble Lords have heard, the majority rejected that argument. But it is very important to note that the claims in the Challenger friendly fire incident—when it was plain that our forces were, indeed, engaged in combat—were not directed at those who were conducting the operations on the ground. Those who formulated the claims were very careful to direct their claims in a different direction. The complaints were of failures in training and the provision of equipment, which occurred long before the tanks crossed the start line. So the issue which has caused concern was not directly raised at all in the Challenger tank claims. The majority view was that combat immunity did not apply to things done or admitted to be done at that preliminary stage. However, it is crucially important to note—and I cannot stress this point too strongly—that we did not say that the doctrine of combat immunity no longer exists: it remains part of our law. The noble Lord, Lord Faulks, gave us a description of people engaged with the enemy on the beaches, in the air and in other situations. That is not what our judgment was dealing with, and there is nothing here which deprives commanders, and those serving under them in that situation, of that protection while they are engaged in combat.

The difficult question we were left with arose in the Snatch Land Rover cases and it was a different one. It was whether the immunity applies to what was going on in Iraq after the combat phase was over, when our troops were, as I have said, assisting the civil power, no doubt in situations of considerable danger. Here too, the majority held that the court did not have the information to decide for itself whether the claims should succeed. We did not rule out the possibility of applying the immunity, but the issue had to go to trial because we needed to know more—as will the judge—about the precise situation with which our forces were dealing at the time. In paragraph 99 of the judgment, I repeated the guidance given in paragraph 76 that, when considering the issue of what is just and reasonable, great care must be taken not to subject those responsible for decisions at any level who are engaged in operations of the kind that were being conducted in Iraq after the end of hostilities to duties that are unrealistic or excessively burdensome.

As the Minister has made clear on several occasions, the case is now in the hands of the trial judge. I suggest that it would be premature to draw any further conclusions until his decision is known. However, I hope very much that it will be appreciated that those serving in our Armed Forces, to whom we owe so much, are not as vulnerable to legal challenge as some people have been suggesting. As the author of the judgment, and as a former national service officer, I am greatly encouraged by the perception that the noble Lord, Lord Thomas of Gresford, has taken from it and the way in which he has appreciated the guidance we were trying to give.

4.19 pm

Lord Craig of Radley (CB): My Lords, I very much welcome the opportunity that the noble Lord, Lord

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Faulks, has given the House to debate this topic, and I commend strongly his excellent speech.

For all my 40 years of service, service discipline, enforcement and review were the responsibility of the chain of command. Since then, service legal arrangements have changed to accord more closely with human rights legislation and the view that misbehaviour and crimes in the services should largely be judged independently of that chain of command. The services have adapted, but what concerns me more is that the Armed Forces Act and human rights legislation are potentially incompatible.

Only service men and women effectively contract with the state to make the ultimate sacrifice if required, backed by the Armed Forces Act to enforce discipline and obedience. No other public servant is placed in this position. To disobey a lawful command, even one that for operational reasons may place an individual at serious risk of injury or even death, is a criminal offence under Armed Forces law. But today or in the future will the commander be at risk of a charge under human rights legislation? I acknowledge that this has not yet happened and that today’s commanders have been given assurances that the MoD would give them full support if ever it did. As has been mentioned, the Minister sought to reassure me, in answer to my topical Question following the Supreme Court judgment last June. He said:

“I do not expect it to be open to a soldier facing a charge of failing to follow orders to argue that his human rights trumped those orders”.—[Official Report, 25/6/13; col. 657.]

However, could it not go the other way, when protracted legal hindsight is brought to bear on the heat and urgency of operational decisions?

In 1998, in concert with Lord Campbell of Alloway, I tabled amendments on Report and at Third Reading to exclude the Armed Forces from the Human Rights Bill. While acknowledging that the Armed Forces were a public body as defined in the Bill—now the Human Rights Act 1998—we argued that special considerations applied to Armed Forces personnel, who may be, and often are, treated differently by legislation. As I said:

“There are offences of conduct prejudicial to good order and discipline, of disobeying a lawful command, and so on, which have no direct parallel in civilian life. These are enacted because they underpin and are vital to the operational effectiveness and discipline of the Armed Forces. Without further elaboration, the conclusion is self evident. The Armed Forces may be, and often are, treated differently by legislation”.—[Official Report, 19/1/98; col. 1354.]

The fashion of the time—remember we were not then engaged in major expeditionary operations overseas and the services were almost sidelined in the public mind—was to believe that civilian-style management rather than military-style leadership was what the services should adopt, particularly in peacetime. At Third Reading of the Human Rights Bill, the Lord Chancellor sought to assure the House. He said that,

“the Secretary of State for Defence takes the view that the Bill raises no issues which are special to the Armed Forces”.

Later in his speech he said:

“I urge your Lordships to be of the view that the convention is a flexible instrument. It poses no threat to the effectiveness of the Armed Forces”.—[Official Report, 5/2/98; col. 768.]

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Since then numerous cases against the MoD have been brought under that Human Rights Act. The Lord Chancellor’s reassurances have been frittered away, most spectacularly by the way that the Supreme Court findings last June were publicised. The court’s view—albeit a minority one—that such cases were not suitable for resolution by a court seemed to be a ray of hope that could help inch the problem back to greater realism. The noble Lord, Lord Faulks, quoted the wording of the minority view, and it is worth repeating. It stated that,

“the approach taken by the majority will in my view make extensive litigation almost inevitable after, as well as quite possibly during and even before, any active service operations undertaken by the British army … ‘war cannot be controlled or conducted by judicial tribunals’”.

Should that realism be translated into new legislation? There is a proper reluctance in some quarters not to try to make changes because of the variety of cases that are sub judice and because today’s service men and women might be encouraged to believe that their rights were being eroded. Nevertheless, I remain concerned that there is a need to be proactive, not to await events only to find that the problem has become far more difficult and disruptive to the effective command and control of forces and personnel in operational situations.

The changes since the Human Rights Act 1998 and the assurances given then and the recent Supreme Court ruling show that this issue still has legs and will run and run unless remedies are devised and provided. This said, what proactive approach might be taken? The Policy Exchange think tank, which has been mentioned several times, argued in its study entitled The Fog of Law that such legal mission creep could paralyse the effectiveness of the military. It came up with seven options for tackling this problem. I floated two, Crown immunity and combat immunity, in my topical Question last month:

“Will Her Majesty’s Government consider new legislation to define combat immunity? ... Could this be incorporated in the Defence Reform Bill now in passage through Parliament?”.—[Official Report, 23/10/2013; col. 1003.]

Following further discussion, I now accept that this is not the right moment for primary or secondary legislation, although we should not ignore the public’s present strong support for the Armed Forces. After withdrawal from Afghanistan, and in the absence of other major overseas adventures, that support will surely fade.

The quinquennial Armed Forces Bill, due in 2016, would, however, provide a vehicle for further legislation, giving time for preparation and avoiding prejudice to current sub judice cases. A proactive game plan must be the Government’s approach. There needs to be a well resourced team charged with instigating study in academia and elsewhere to prepare the way. Waiting until something worse turns up before moving would be wrong and a deplorable failure of political and military leadership. I hope that the Minister will be robustly proactive tonight.

4.27 pm

Lord Hamilton of Epsom (Con): My Lords, I congratulate my noble friend Lord Faulks, who described himself as “a mere lawyer”. I know him to be more

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than a mere lawyer; he is an extremely good one, and therefore he must be well aware that, with this debate, he is stepping into a serious legal minefield.

The report by Tugendhat and Croft, to which reference has already been made, has made it quite clear that they do not consider that the military should be in any way above the law. It does present us, however, with enormous problems. I am not a lawyer, but I would like to divide the two activities of the military into two separate categories. One I would describe as the heat of battle and the other is cold blood.

I will deal with cold blood first. I do not think there is any excuse for an armed serviceman to murder a helpless prisoner. I do not think that the brutal treatment of detainees who are completely helpless victims in the hands of those who are supposed to be looking after them can be defended in any way. I remain to be convinced that any serious intelligence got through torturing detainees has actually saved British lives. On top of that, we leave the moral high ground when we descend into this sort of behaviour, and, inevitably, it gets out. What is almost beyond doubt is that when this stuff does get out, the effect it has justifies the actions of terrorists to carry out even more atrocious acts which put British lives at risk. So, in the category of cold blood, I do not think that anything other than the ruthless application of the law should be applied.

The heat of battle, though, is very much more difficult. The problem is that the law deals in facts; it does not deal in context. Let us face it, the military are the only people who are in the business of actually having to kill people. That puts them in a unique position in our society. If a soldier shoots a civilian, and that civilian is subsequently found to be unarmed and going about his lawful business, it sounds as though he has committed an unforgivable act, but if the context is one of ambushes, sniper fire and suicide bombings, the whole context changes that act. We have to accept that the pressures our military have been under in Helmand province, for instance, where they are dealing with a population some of whom are more than happy to kill them while others are not, completely changes the context in which acts like that are carried out.

I remember reading in the paper about the US Marine Corps in Helmand a few years ago. Some US marines were watching a rather distinguished looking Afghan man standing some way away in a field. They had him in their binoculars and they were wondering what on earth he was doing. This went on for some time, but eventually, they gave up, saying, “We won’t bother”. One marine turned around to walk away, whereupon the man picked up a rifle and shot him in the back. If you are dealing with that sort of environment, it is extremely difficult to bring the courtroom into the actions that soldiers take in such circumstances. If you are on live round training in the military, where you walk down a theoretical alley and targets pop out all around, I have to tell noble Lords that it is very difficult not to shoot the nun straight through the head because your reactions have to be very quick, and sometimes people get it wrong.

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With the wisdom of hindsight, the military could have avoided practically every disaster that has ever happened, but the problem is that good armies are trained to take the fight to the enemy. The British Army in particular specialises in the friendly approach of winning hearts and minds, but that does not come without risk, and it is certainly very difficult when you are dealing with people such as Afghans.

On a totally separate issue, I turn to the question of civil liability. I have to say that during my military career, comprising a rather undistinguished three years, I never heard a shot fired in anger. However, I was nearly killed twice while training in Thetford in Norfolk. The first time was when my platoon was acting as the enemy at night. I was running ahead, because the platoon was behind the rest of the battalion that we were supposed to be attacking, when I fell into a bomb crater. Very luckily, I turned completely head over heels and landed on my back at the bottom of what was really quite a deep crater. If I had not done so, I might have broken my neck and died. Later on in our training we were training with live rounds. I inspected the Bren gun of the guardsman who had been firing and it was clear. I walked forward. He put the magazine back on to the gun and pulled the trigger. Those who know about Bren guns will know that that means that the thing goes off. The butt of the gun was on the ground and the bullet went straight over my head.

Are we saying that, if I had been killed in either of those circumstances, it would have been right for my family to have sued the Army because of something it had done wrong? Come on, let us live in the serious world. My noble friend Lord Faulks compared training in the Army to the Factories Acts and so on, but I do not believe that life is like that. You have to train in reasonably extreme circumstances in the military, and you run risks when you do that. Regrettably, people die quite regularly when training with the British military. If they all sue because someone did something wrong and someone died, where on earth will we end up? It strikes me that we are moving into very difficult territory if we do that.

The noble and learned Lord, Lord Hope, referred to Snatch Land Rovers. We deployed Snatch Land Rovers not because we had much more sophisticated vehicles that we could have used instead, but because we had nothing else at the time. The military has a great habit of being equipped to fight the previous war, never the current one. Eventually Snatch Land Rovers were replaced, but the fact is that we did not have the option to use anything better. This is another thing that is almost inevitably going to happen with the military. On day one of any conflict, it is never going to have the right equipment to fight that particular war.

We have to be very careful that we do not go down the same road as the National Health Service, where everyone now sues if something goes wrong with the result that it costs the taxpayer hundreds of millions of pounds a year. It would be regrettable if the military suffered the same fate.

4.35 pm

Lord Guthrie of Craigiebank (CB): My Lords, I start with a blunt and basic point. For those who have not experienced active military service, it is difficult to

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understand the pressures and friction of the battlefield. Decisions have to be taken by men who are under stress, often under fire, on the basis of incomplete information. Those decisions have to be taken quickly. Delay could mean death or defeat. In an office it is possible to come to a view, to seek advice, to make a couple of telephone calls and to reconsider. No such indulgences are possible when you and your men are in action. Armed combat is a unique activity. It follows that it must be governed by different rules.

This does not mean that armed combat is lawless activity. On the contrary, for centuries, men who fought were aware of some rules of chivalry, even if they were not always observed in modern times. The Geneva Convention and the law of armed conflict both attempt to restrain the brutalities of war. Service men and women are instructed early in their careers as to their responsibilities. There are limits. Let us not be squeamish: in combat, men are trying to defend their country by killing its enemies. It follows that civilian norms cannot apply. Things which happen on the battlefield are absolutely unthinkable in normal times.

If health and safety at work were to prevail on all occasions the Armed Forces would have to be disbanded. As for human rights, no right is more basic than the right to life. In combat, a soldier might be ordered to advance towards virtually certain death. Then there is a duty of care. All commanders do indeed have a duty to care for their men. They also have a duty to achieve their objectives.

That might all sound like common sense. I hope it does. In previous generations, that is how it would have been regarded. In the early stages of the Falklands War, when we started to suffer casualties, the then Prime Minister, Margaret Thatcher, was upset. It took her husband to comfort her, saying that that was the sort of thing that happened in war. He knew because he had been there and seen it. Denis Thatcher was right. Yet in recent years, common sense has often been brushed aside. Health and safety and the European Convention on Human Rights have both been imported into contexts where neither is really applicable. In effect, members of the judiciary has been brought into the front line of combat, where they really should not be as often as they are.

That is not the fault of the judges. I agree with all that the noble and learned Lord, Lord Hope, said. I blame successive Governments, who did nothing to prevent legal mission creep. They could on occasions have sought derogation, but they did not. Legal mission creep is dangerous. As a young officer about to lead your men into action, you do not know how long the action will take or when and whether you will come under attack. Many things are on your mind. You are already aware of Geneva Convention rules, and it is intolerable that you should also be burdened by the thought that in some months’ time, your every action will be dissected by lawyers. That has happened in the coroners’ courts from time to time.

If noble Lords wish to consider all this in more detail, I, too, recommend the Fog of Law pamphlet produced by Policy Exchange. One of the authors, Colonel Tom Tugendhat, was wounded in Afghanistan and knows what he is talking about. Whether we

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disagree with it—and I do not—I believe that many hundreds of servicemen and servicewomen support what he says. That is what they feel.

I am anxious, because we need our Armed Forces. I hear no sound of swords being hammered into ploughshares. We live in a dangerous world, in which our survival depends on the dedication of our Armed Forces, who are willing to embrace discipline, to confront danger and to do their duty at whatever cost and sacrifice. We have an exceptional national resource. However, legal mission creep and the fog of law on the battlefield put that in jeopardy. We cannot, and must not, arrive at a situation in which our soldiers are afraid to fight not because of the enemy—that day, I hope, will never come—but because of the lawyers back home, backed by legislation that is inappropriate for the battlefield.

The British public respect the military and are grateful for its efforts, which buoys up the soldiers. The problem arises with the politicians, the public representatives. If they are serious about preserving our military ethos, it is they who must act. I agree with all that the noble Lord, Lord Faulks, said in his introduction to the debate. We should think very hard about what our servicemen and servicewomen think. They are worried.

4.42 pm

Lord Bew (CB): My Lords, I thank the noble Lord, Lord Faulks, for securing this debate and for his excellent speech. I speak with some trepidation, not being a noble and learned Lord or a noble and gallant Lord. I am not even, as the noble Lord, Lord Faulks, put it, slightly whimsically, a mere lawyer. I speak as an academic, but as one who discovered, on reading the important and commanding academic article by Professor Anthony Forster in International Affairs, Vol. 88, on the process of juridification of armed conflict, that I had played a somewhat unwitting role in this process, as historical adviser to the Bloody Sunday tribunal.

Professor Forster lists a number of key moments in the period since I became an adult, over the last generation, in which one can see this process of the juridification of armed conflict. Some have already been referred to in our discussions, such as the Supreme Court ruling in Smith this summer, and the Baha Mousa case. However, he also mentions the Bloody Sunday inquiry, and what it tells us about changing attitudes, a number of times. He makes a very serious point: it is an obvious example not just of the way that the judiciary has become engaged in the process of the use of force by our soldiers but of how the concept of national interest has changed, in the sense that it was inconceivable for British Governments to formally challenge, in that way, the past use of our soldiers in conflict at a later date. The decision of the Blair Government in 1998 to reopen the issues dealt with by the Widgery inquiry in the early 1970s is an example of the way in which the traditional concept of national interest has changed, for good or ill.

Professor Forster’s point in his article is that, emotionally and in a number of ways, our society’s view of these questions is in the process of flux and change; I think this is indisputable. I remember being

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a student in Cambridge in 1972, when Bloody Sunday occurred, and there is no question that that day, when 14 innocent civilians were killed, is one of the least happy days in the history of the British Army. I remember watching the demonstration of students in Cambridge. I can see in my mind’s eye the people in that demonstration, one of whom, for example, came to hold one of the highest offices of state. There is no question that, in this respect, our attitude as a society and the attitude of leaders, public opinion and so on has evolved.

In some respects, the Widgery tribunal is often discussed a little unfairly. Lord Widgery actually said that a majority of those who died on the day were innocent—that has been forgotten—and the Army’s response to discovering his view was one of being disturbed. However, it is hard to avoid the sense that the structure of feeling surrounding the tribunal was very different from the structure of feeling that we have today. It has already been referred to by noble Lords that, in the post-war period, judges themselves had often served in the military, as had Lord Widgery. A key issue in the Bloody Sunday tribunal was the role of the general in Northern Ireland, General Ford, who had been a very brave soldier at the D-day landings. It is almost inconceivable that these recollections and emotional associations were not in Lord Widgery’s mind when he considered the issues posed by Bloody Sunday; it is humanly inconceivable.

We have now moved into a very different world. Lord Justice Moses refers to this in the introduction to the Policy Exchange pamphlet that has been referred to a number of times during this debate. He talks about remembering, as a boy, cases coming up before a judge where a burglar comes into the court, puts on his regimental tie and medals and the judge regretfully looks at him and returns half the merited sentence for the crime. This world has gone completely; it is not to return. I know that and Professor Forster knows it. We know that the Widgery tribunal inquiry was inappropriate and inadequate. He states clearly that he has no regrets about being an historical adviser to the new tribunal. It is not a question of trying to create a context in which the Armed Forces operated outside civilised standards. Politically we have to be aware of the fact that, in the wars of choice that have been referred to in recent times, as the fundamental ideological justification of these wars has been the defence of human rights, it is all the more important that our Armed Forces are perceived to behave properly in context, as far as possible, with obligations to human rights.

However, we have reached a fundamentally unstable point. I listened with great interest today to the words of the noble and learned Lord, Lord Hope. I do not want to be misunderstood. There is an argument about whether the four were right in the Supreme Court, whether the three were right in the Supreme Court, and whether there were exaggerated fears out of the ruling that came from the majority on the Supreme Court. I understand that argument and I am extremely grateful to the noble and learned Lord for the way in which he explained the position with great clarity today. However, the real problem is that we are

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on a slippery slope once we move to a rights-based jurisdiction, away from the unproblematic concepts of national interest and the relationship between the state, the judiciary and the Armed Forces that existed a generation ago when I was a young man. We are now in a new place. Indeed, Professor Forster says at the end of his piece that once you move away from those concepts to rights-based arguments, because of the difficulty of reconciling and aligning competing rights, the context is always unstable.

That is why, despite the hints that come from on high, there will be no end to litigation on this subject; the floodgates are absolutely open, despite the hints that people perhaps misunderstand the full implications of the ruling of the majority in the Supreme Court. That is why, like the noble and gallant Lord, Lord Craig, I was attracted to the argument on the question of Parliament looking again at combat immunity. Perhaps the noble and gallant Lord is right to believe that this is not the right step at this moment, although there are other steps that Parliament might consider taking. However, what is certain is that there is no stability in the place that we have currently reached, and we owe our Armed Forces that stability.

4.50 pm

Lord Freeman (Con): My Lords, I join colleagues in congratulating the noble Lord, Lord Faulks, on an excellent speech. I find myself in complete agreement with his contribution to this important debate, and my remarks would march very much in time and in tune with what he said.

I want to make what some noble Lords might feel is a rather narrow point, but for me it is very important: the impact of the uncertainty that has been created on the major challenge that we face in increasing our Reserve Forces, particularly the Army reservists. Twenty years ago we had something like—my noble friend Lord Trefgarne will confirm this—50,000 reservists. That fell to 15,000 only quite recently.

Lord Trefgarne: My Lords, we aimed for 83,000.

Lord Freeman: I defer to my noble friend on the statistics. Now, however, we are looking to increase the numbers to something like 35,000. The uncertainty that has been created by this discussion, however erudite and legal, is causing problems already. I say this as president for the past 10 years of the Reserve Forces Association, and the questions that I get—few at the moment, but they will gather speed and pace—about the liability of reservists who are serving abroad alarms me, and gives me concerns about our ability to reach our target of recruitment over the coming years. It is rather poignant that today the MoD has sent out a call for 1,500 extra reservists for service abroad, principally in Afghanistan.

I make a plea to the Minister and, through him, to his Secretary of State to come to a conclusion fairly quickly. I appreciate that the advice Ministers are receiving is, “Let’s wait and see what the results are of the lower court’s consideration of the issue”—the noble and learned Lord, Lord Hope, referred to two present cases. We cannot wait too long; we need clarification on this issue. I for one, and I dare say a number of noble Lords on this side of the House,

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would probably favour taking clear action on the Convention on Human Rights and disallowing it in relation to the activities of the Armed Forces, not just on the battlefield but in planning and preparation for conflict.

I look forward to the Minister’s response and hope that we can clarify the situation so that this major task of increasing our reservists can be done in a slightly calmer fashion and we can allay their fears that they might be subject to litigation in the courts of the United Kingdom.

4.53 pm

Lord Ramsbotham (CB): My Lords, I, too, congratulate and thank the noble Lord, Lord Faulks, for obtaining this important debate, and in doing so say that I suspect that I speak for many members of all three Armed Forces. I also thank Nicola Newson for her quite excellent Library note, which sets out the arguments for and against legal challenge so clearly and fairly.

During my own Army service, I watched the advance of what the Policy Exchange calls “legal mission creep”. I will begin my contribution by venturing that not enough note has been taken of one very good explanation for this—namely, that the nature of the active operations in which our Armed Forces have been involved has changed since the end of World War 2.

General Sir Rupert Smith, in his important book, The Utility of Force, refers to them as “wars amongst the people”, because no longer are they between uniformed armed bodies of people fighting within geographically defined areas, but between a uniformed armed body of people and a number of un-uniformed, sometimes armed, people, who mingle with other un-uniformed, usually unarmed, people in the places where they live. Therefore the law of armed conflict and the Geneva conventions are not always applicable. During confrontation with Indonesia, my riflemen had to understand both what was allowed in combat with the Indonesian army when we were in Indonesia, and how to behave towards the inhabitants of that part of Sarawak in which we were based when looking for possible infiltrators.

Northern Ireland was different again. Traditionally, in what were called internal security operations, the police handed a situation over to the Army, who took the necessary military action, possibly including opening fire, after which they handed it back to the police as quickly as possible. Unfortunately, when the Army was introduced into the Province in August 1969 it was as policemen, the Royal Ulster Constabulary being exhausted. I have always regretted this, because of the problem it posed for our soldiers. They were expected to be firm, fair and friendly—like armed policemen—most of the time, but when military action was required they had to act within the law, and were told that if they did so in good faith, they had nothing to worry about. To guide us we all had to carry a yellow card on which the appropriate circumstances were printed. We also used what were known as “flying lawyers”, who interviewed those involved in any incident, at the scene, before memories clouded over. But all that was before the European Convention on Human Rights.

However, it is my experience of European legislation that seems to me most relevant to this debate. When I was Adjutant General, or personnel director, I and my

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Navy and Air Force opposite numbers were told that we had to introduce industrial tribunals into our service judicial systems. When I asked whether they came before or after the Queen, I was told that that was irrelevant, because the Bill bringing this European legislation into United Kingdom law had already had its First Reading. Having asked to see it, I passed the Bill to the Director General of the Army Legal Services, who within five minutes told me that it was totally unacceptable, because it allowed an employee to take his employer to an industrial tribunal if ordered into a place of danger. In Army terms this meant that OC B Company could take his commanding officer to an industrial tribunal if ordered to attack an enemy position.

I asked what the French, German and Italian armed forces had done about this, to be told that their Governments had sought, and been granted, dispensation for them. I asked why ours had not done so, and was pleased that, later, dispensation was sought and agreed. I mention this because I have the distinct impression that, while full of gratitude for the work of Ministry of Defence legal staff and civil servants, who understand the difficulties of the transposition of human rights legislation to the battlefield, ancient or modern, members of the Armed Forces do not feel the same about those in other parts of the Government, who are in a position to seek dispensation for them. Currently they agree with my noble and learned friend Lord Hope that they should await a ruling of the European Court of Human Rights before they know whether the Supreme Court judgment in the Smith case will affect operations and their commanders.

I suspect that, had the need for dispensation been considered years ago, my noble and learned friend Lord Hope might not have been required to deliver his leading judgment, from which I will quote the following words. He stated that,

“it is of paramount importance that the work that the armed forces do in the national interest should not be impeded by having to prepare for or conduct active operations against the enemy under the threat of litigation if things should go wrong”.

I do so because my noble and learned friend clearly understands the demands of both command and active operations, and appreciates the importance of the former not being saddled with inappropriate limitations when planning or conducting the latter.

I note that Policy Exchange recommends consideration of derogation from the European Court of Human Rights during deployed operations. I prefer to seek appropriate dispensation for our Armed Forces as a matter of course as early as possible in a legislative process. However, whichever route is chosen, I hope that those responsible for the consideration of how our Armed Forces may be protected from vulnerability to legal challenge will have the words of my noble and learned friend ringing in their ears.

5 pm

Lord Brown of Eaton-under-Heywood (Non-Afl): My Lords, I originally put my name down to speak in this debate because I understood that my noble and learned friend Lord Hope of Craighead would be unable to be here. It had been my overriding concern to make plain that Smith is a good deal more nuanced and measured a judgment than generally understood,

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that the senior judiciary giving the majority judgment in Smith had not lost their marbles, and that the reaction has been something of an overreaction in terms of estimating the damage that it does to our fighting capabilities. The Defence Secretary was quoted as saying,

“We can’t have troop commanders living in fear of how lawyers back in London might interpret their battlefield decisions”,

and somewhat similar concerns were expressed by noble and gallant Members of this House during Questions. Those concerns are substantially misplaced. When my noble and learned friend Lord Hope told me that he could take part in the debate after all, I wondered whether to scrub from the list. However, I decided not to, partly because not having been on the case I am perhaps better able than him to emphasise the comparatively limited effect of the majority judgment. I also want to make plain that I am prepared to acknowledge and recognise the problems that the majority judgment creates for the future, perhaps not merely for the Armed Forces but for the justice system as well.

As to the limited effect of the judgment, three things must be recognised. First, members of the Armed Forces, notwithstanding that they are on active service abroad, come within the UK’s jurisdiction for the purposes of the European Convention on Human Rights. That was the unanimous decision of all seven members of the Supreme Court in Smith, and that conclusion was plainly now dictated by a Grand Chamber decision in Strasbourg—a decision, I may add, that was contrary to what we had previously decided in the Appellate Committee here in the House, to which I was party.

Secondly, however—this is very important—it by no means follows that the fact that a claimant was on active service abroad when killed or injured is irrelevant to a claim under the convention; far from it. As the majority’s judgment makes plain, the convention will not be applied as imposing on states obligations which are unrealistic and disproportionate. Policy decisions made at a high level of command and things done on the battlefield will necessarily fall outside the protection of the right to life under Article 2 of the convention and a wide measure of appreciation is given to member states as to what are the requirements of armed service are.

Thirdly, all the various claims that were considered—claims under the human rights convention and separate claims brought in common law negligence, without reference to the convention—which were grouped together in Smith in the Supreme Court, were being dealt with at a preliminary stage of the litigation, namely as strike-out applications. The question for the court was therefore: should these claims be allowed to proceed, however unpromising they might appear, to see whether once all the facts were established they should succeed, or—this was the minority conclusion—should they receive their immediate quietus on the basis, frankly, that enough was already known to decide that they could never properly succeed? The majority, of course, took the former view, but made it plain that it was far from clear that all, or indeed any, of these claims would in the end actually succeed. So much for the limited effect of the judgment.

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I will now turn briefly to the problems which, as I have already said, I nevertheless recognise that the majority judgment poses for the future. This appears clearly from the judgments of the minority, in particular those of the noble and learned Lord, Lord Mance and Lord Carnwath, with whom the noble Lord, Lord Wilson agreed. The problem is this: to say that first, high-level policy decisions, and secondly, battlefield decisions, fall outside convention protection, leaves a wholly undefined area of middle ground between those two extremes; an area within which the majority suggests that, depending on all the detailed facts of the case, liability might arise. That, as the minority judgment suggests, makes extensive litigation almost inevitable in a number of cases, and is likely to lead to the “judicialisation of war”. These passages have already been emphasised by various of your Lordships. It might, therefore, have been preferable to have ruled with the minority that on the known facts, without the need for any more, no positive obligation to protect life could arise under Article 2 of the convention, and Strasbourg would not suggest otherwise and, similarly, that it would not be fair, just and reasonable to impose on the Ministry of Defence any common law duty of care in respect of any of these deaths or injuries; rather they should be regarded as falling within the scope of this somewhat ill defined defence of combat immunity. That is the burden of the argument of the noble Lord, Lord Faulks, and I have to say, one can readily see its attractions.

As to the way ahead, it must now surely be necessary to await the final outcome of these particular actions, hopefully sooner rather than later. One would have thought they should be expedited. Parliament cannot legislate retrospectively in respect of these claims. Depending then on how matters appear, legislation may be thought desirable. I suggest that this would most sensibly and conveniently be done by the Secretary of State making an order—the noble Lord, Lord Thomas of Gresford, has already referred to this path—pursuant to Section 2 of the 1987 Act which would revive the effect of Section 10 of the 1947 Act. Essentially this would exclude tort liability for the injury or death of any member of the armed services in connection with warlike operations or activities abroad.

I will make a brief final point. Legislating to allay the fears of those who may be criticised—soldiers or the Ministry—in these cases is also by definition legislating to end the compensation hopes of a number of brave injured soldiers. It may be the right thing to do, but we should not lose sight of that consideration.

5.08 pm

Lord Rosser (Lab): My Lords, this is an important issue, and I, too, express my thanks to the noble Lord, Lord Faulks, for providing the opportunity to discuss the matter in some detail and shortly to hear the Government’s position from the Minister. Virtually all—if not all—of your Lordships who have spoken have been able to call on their direct and practical knowledge of the law or on their direct and practical knowledge of the realities of conflict and the realities of the way in which our Armed Forces operate and

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work on our behalf. Unfortunately I am not in that position. Like the noble Lord, Lord Ramsbotham, I am extremely appreciative of the Library note.

Although, as has been said, there have been previous decisions by courts that have given rise to the concerns that have been expressed today, it has been the Supreme Court judgment last June, apparently changing a Supreme Court judgment from 2010, which has raised the profile further of the issue of our Armed Forces and their vulnerability to legal challenge. Shortly before the Supreme Court judgment, in May this year the High Court apparently ordered hundreds of inquest-style public hearings to investigate alleged unlawful killings and mistreatment of civilians by British forces in Iraq. Recent legal challenges to the Armed Forces have fallen into two main categories: those relating to the Armed Forces’ treatment of civilians and those which relate to the Armed Forces’ treatment of their own personnel.

Although I am not a lawyer, I would like to talk about the Supreme Court judgment and what, as I perhaps mistakenly understand, it said. The proceedings concerned three sets of claims arising from the deaths of three of our servicemen and serious injuries to two others in Iraq. The first set, brought in negligence, arose from a friendly fire incident involving British tanks and alleged failures by the Ministry of Defence properly to equip the tanks involved and give the soldiers adequate recognition training. The second set arose from the detonation of improvised explosive devices level with the Land Rovers in which the soldiers were travelling and claimed that the Ministry of Defence breached the European Convention on Human Rights by failing to take preventive measures to protect life in the light of the real and immediate risk to life of soldiers who were required to patrol in the Land Rovers. The third set, like the first, was also brought in negligence, by—I believe—the son of one of the soldiers killed in the Land Rover incident, and claimed various alleged failures on the part of the Ministry of Defence.

The Ministry of Defence argued at the Court of Appeal that the Land Rover claims should be struck out because at the time of their deaths the two soldiers were not within the jurisdiction of the UK for the purposes of the European convention and because, on the facts put forward, the MoD did not owe a duty to the soldiers at the time of their deaths under Article 2 of the convention, the right to life. The Ministry of Defence also argued on the Challenger tank claims and the third set, the negligence claim, that they should be struck out on the principle of combat immunity and because it would not be fair, just or reasonable to impose a duty of care on the Ministry of Defence in the circumstances of those cases.

The Court of Appeal decided that the Land Rover claims should be struck out and that the Challenger claims and the negligence claim should proceed to trial. The Supreme Court decided unanimously, as has been said, that in relation to the Land Rover claims the two soldiers were within the UK’s jurisdiction for the purposes of the European convention at the time of their deaths. By a majority, the Supreme Court held that the Land Rover claims should not be struck out on the ground that the claims were not within the scope of Article 2 of the European Convention on

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Human Rights and, also by a majority, that the Challenger claims and the negligence claim should not be struck out on the ground of combat immunity or on the ground that it would not be fair, just or reasonable to extend the MoD’s duty of care to those cases. The effect of the Supreme Court’s decision was that all three sets of claims could proceed to trial.

The summary provided by the Supreme Court to assist in understanding its decisions states on the Land Rover claims under Article 2 of the European convention:

“In this area, the court must fully recognise the wide margin of appreciation to be given to the state and avoid imposing obligations which are unrealistic or disproportionate”.

It also states:

“The circumstances in which the various decisions were made need to be inquired into before it can be determined with complete confidence whether or not there was a breach of article 2. However, given the Court’s guidance on the margin of appreciation to be given to the state, it is far from clear that the claimants will be able to demonstrate such a breach”.

On the Challenger claims and the further, separate, negligence claim, the summary says that:

“The doctrine of combat immunity should be construed narrowly and should not be extended beyond its established scope to the planning of and preparation for active operations against the enemy. The Challenger claims are not within the scope of the doctrine because they relate to decisions which are sufficiently far removed from the pressures and risks of active operations against the enemy. The … negligence claim is less obviously directed to things done away from the theatre of battle so it is arguably within the doctrine”.

The summary then goes on to say:

“The circumstances in which active operations are undertaken by the UK’s armed services today vary greatly and cannot all be grouped under a single umbrella as if they were all open to the same risk of judicialising warfare. However, considerations similar to those affecting the Snatch Land Rover claims under article 2 arise in relation to whether it would be fair, just and reasonable to impose a duty of care on the MoD in this area. The question whether the negligence claims in this case entail subjecting the MoD to duties that are unrealistic or excessively burdensome cannot properly be determined without hearing evidence”.

The Supreme Court has not determined the outcome of the claims it addressed in its judgment. It has made the decision that the claims should proceed to trial. It is not for me to interpret the wording in the Supreme Court summary document, which clearly states that the full judgment of the court is the only authoritative document.

I have, however, noted what the noble and learned Lord, Lord Hope of Craighead, said today. It is clear that there is now a feeling of uncertainty over where our Armed Forces and the actions that they take now stand in relation to the law and the vulnerability to legal challenge. Whether the position will be clearer when the cases that were before the Supreme Court have been to trial remains to be seen.

The Government are clearly concerned about the lack of clarity. Subject to what the Minister has to say, the Government appear to be waiting, not unreasonably, for the outcomes of these cases in the hope that the decisions will provide greater clarity before determining what, if any, action needs to be taken and, accordingly, what advice should be given to Armed Forces personnel.

Cases are, of course, determined on their merits and on the evidence that is placed before the court, but clarity is often dependent on judgments laying down clear principles and guidelines that can be applied and

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taken into account by those who might be contemplating legal action and by those who feel they might be subject to legal proceedings. Nobody wants to see a situation in which our Armed Forces are less able than they are now to protect, further and act in the national interest on our behalf because of uncertainty over the legal position or because of new or changed legal considerations and the perceived or real prospect of vulnerability to legal challenge that did not exist before.

I am aware that the Ministry of Defence now has to deal with a considerable increase in claims in the light of earlier judicial decisions and no doubt also, in some cases, of a feeling that the exact legal position should now be tested. It is interesting to note that in his dissenting opinion to the Supreme Court decision, the noble and learned Lord, Lord Mance, said that,

“the approach taken by the majority will in my view make extensive litigation almost inevitable after, as well as quite possibly during and even before, any active service operations undertaken by the British army. It is likely to lead to the judicialisation of war”.

Dealing with claims costs time and money and deflects resources, human and financial, from other defence-related work. Apart, however, from the vital need to get uncertainty resolved so that proper consideration can be given as to whether and, if so, what further action needs to be taken by government, the other key issue is whether our Armed Forces, involved in or preparing for operations, are being inhibited in what they do on our behalf in the national interest as a result of uncertainties about exposure to potentially successful legal challenges and claims. I hope the Minister will be able to give assurances that that is not the case because, if it is, we are in a very difficult and serious situation.

5.18 pm

The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever) (Con): My Lords, I, too, am grateful to my noble friend Lord Faulks for tabling this Motion. It is timely for this House to take stock of recent legal developments which could, in different ways, have important consequences for the ability of our Armed Forces to conduct operations and, therefore, for our national interest.

All military operations carry a degree of risk. As the noble and gallant Lord, Lord Guthrie, said, armed combat is a unique activity. Good commanders are adept at forecasting, assessing, and carefully managing risks in the preparation and execution phases of operations. The Armed Forces of the United Kingdom must at all times seek to operate within the rule of law and to take account of how the law changes. There is nothing new about that. But what does cause the Government concern is the extent to which legal developments are creating uncertainty and imposing costs which may have an impact on how our Armed Forces are able to train and operate.

One direct consequence is that the Ministry of Defence has been grappling with rapidly increasing numbers of legal claims arising from operations, together with escalating costs, largely as a result of these legal developments and the increasing willingness of individuals to litigate. I welcome the fact that these issues are of

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increasing interest and concern to others. The House of Commons Defence Committee recently announced an inquiry into the legal framework for UK military operations in future, including the protections and obligations for operational and deployed UK Armed Forces personnel. The Ministry of Defence has submitted its observations to the Committee, and we look forward to learning of its conclusions.

The recent report by the Policy Exchange called The Fog of Law, to which a number of noble and noble and gallant Lords have referred, was therefore a timely contribution to the discussion and raised a number of very important questions. It was written by authors with a great deal of hands-on experience of military planning and operations, so its conclusion,

“recent legal developments have undermined the armed forces’ ability to operate effectively on the battlefield”,

deserves respect and careful consideration. None the less, I would not go quite that far, or not yet. I do not believe we have reached the stage where the ability or operational flexibility of our Armed Forces has been significantly impaired or that military decision-making has been hamstrung. I think that that answers the question asked by the noble Lord, Lord Rosser. Crucially, I cannot point to any specific incident in which it appears that concerns about legal liability have been responsible for failure to take operationally necessary measures in the course of combat.