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Baroness Stowell of Beeston
My Lords, as we continue the Second Reading debate on the Justice and Security Bill, and at the risk of sounding boring, I feel duty-bound to remind noble Lords that speeches from Back-Benchers are expected to be kept within 15 minutes. When I remarked on this earlier, I should have stressed that exceptions to those guidelines are made on occasion, rather than frequently.
Lord Hodgson of Astley Abbotts
My Lords, as we return to the debate on this very important second reading, I need to begin by saying I am not a human rights lawyer. I am not a lawyer at all. I have had no contact or involvement with the intelligence or security services, so I tread rather warily and carefully into this specialist area for fear that the ground may open and swallow me up.
My interest in this area comes about because I am the treasurer of the All-Party Group on Extraordinary Rendition. I am also a trustee of Fair Trials International. Therefore in my rather amateurish and non-legalistic remarks, I want to focus on what seem to me as a layman some of the dangers and challenges of Part 2 of the Bill. My experience in those two particular roles is that the processes of international justice, or perhaps I should say, justice with an international aspect, do not always proceed as smoothly or as even-handedly as we all would wish.
The issue of partial access to information and the inability to check its veracity causes me concern because of what happens at Fair Trials International. The average FTI case usually involves someone of modest means being somehow swept up in the proceedings. By definition, the proceedings are normally abroad and the partial sharing of information and the inability to challenge their veracity comes about because the defendant does not understand what he is being accused of because it is in a foreign language, which means that he cannot test the truth of the case against him. All too often, once the full facts are laid out and once everyone knows what is being complained of, the defence is able to ensure that the case falls away. I want to ensure that in the Bill we are not creating circumstances in which these sorts of events become prevalent.
My second general concern stems from the fact that in my professional life I have worked in the City and I have spent some time as a regulator. The regulator of financial services has to create a balance, not on the époque-like matters that we are discussing this afternoon, but on the level of regulation. Too much regulation will be very expensive in money or management-time terms, will discourage innovation and will diminish the reputation of the financial community of this country over a period of time. On the other hand, too little regulation, with a free for all, no standards of behaviour and lower market confidence, will have the same effect. So I quite understand that a balance has to be struck.
However, the danger in real life is that regulators are, by their very nature, risk averse. An innovation that never happens reflects no discredit on a regulator but a failure does: it is public, it is controversial and it damages reputation. There is an inevitable tendency to raise the bar. In effect, there is always a danger of what we call regulatory capture. As we go through the Committee stage of the Bill, I want to be convinced that there is not an equivalent of regulatory capture taking place in this area.
My third general point, which is more specific to this Bill, is that I am currently undertaking a review of the Charities Act for the Government and there have been strong suggestions from certain quarters that charities in the United Kingdom are raising considerable sums of money which are to go overseas for purposes that are less than charitable. That is a serious accusation. The fact that donations in this country, no doubt enhanced by gift aid, should end up in the hands of al-Shabaab or the Taliban, is indeed worthy of investigation. When one looks into it in detail and asks for even minor facts to be produced, there is very little. There are a few wisps of smoke perhaps but certainly no fire. The Charity Commission has been called on to investigate only a handful of cases. That sort of broad statement about our intelligence and security, which is long on assertion but which turns out to be very short on fact, makes me concerned about whether we have the balance of the Bill right and whether what we may be surrendering in our civil liberties is yet justified.
As a result of this Bill, if I read it correctly, we are going to surrender, or certainly substantially amend, the right of citizens to hear and to challenge all the evidence presented by the state against them in the High Court and substantially amend the right of victims of kidnap, rendition, torture and other unlawful abuse to obtain evidence from the state to help to prove their case. That right applies only where the state has been involved in, or has facilitated, the commission of the wrongdoing.
If we are to surrender those two substantial matters, why are existing processes for the public interest immunity certificates suddenly inadequate? I understand that the system of PII has been operating for more than 50 years without significant government complaint. As the noble Lord, Lord Pannick, said, in applying the PII system, the courts have a raft of weapons that they can deploy to keep confidential the sensitive features of government evidence while permitting the essentially relevant parts to be disclosed. These include hearing parts of a case in camera with both parties represented; the use of confidentiality rings; redacting the sensitive parts of documents to which the noble Lord referred; allowing evidence to be gisted; and directing informers or secret agents to give evidence anonymously behind screens. My noble and learned friend Lord Mackay in his remarks earlier said that there were residual issues which were not covered by these provisions. I understand that and I obviously will stand corrected by him. I look forward to having a chance to discuss what those residual issues are. The report from the special advocates, who I assume know a bit about this area and certainly a great deal more than I do, says in paragraph (7):
“There is no fundamental difficulty with the existing principles of public interest immunity … which have been developed by the courts over more than half a century and which enable the courts to strike an appropriate balance between the need to protect national security (and other important public interests) and the need to ensure fairness. Nor is there any sufficient evidence that the application of these principles has caused insuperable logistical difficulties in any particular cases”.
That is my first broad concern.
My second broad concern is the assertion that CMPs are being used. A judge will still be able to weigh up the strength of the evidence before deciding whether a CMP may be used. I understand from what my noble friend was saying earlier from the Front Bench that it is a procedure which could be described as PII light. When I see the use of the words “must” and “must ignore” in Clause 6, it seems to me that the judge will have relatively little discretion. Reviewing evidence and making an assessment seems to me to be one thing—that is the PII procedure—but presumably the Secretary of State will turn up at the court and make a strong assertion that national security is involved, otherwise why would you have a CMP application? I leave it to those of your Lordships' House who are involved in the legal profession to tell me whether or not a court is likely to rebut such an assertion involving national security. My view is that it seems unlikely but I have no direct evidence.
My concerns on this point are further increased by the lack of transparency about CMP procedures and the extent to which they will be used. I can find no provision for closed judgments to be opened up at a later date, when secrecy is no longer required, so that the public can see how they worked; I see no requirement for notice to be given by the Government that a CMP will be sought; and I see no requirement for any reporting of the number of requests for and granting of CMPs. These are the pieces of information which should at least shed some light on this difficult area and go some way to reassuring us and the general public.
My third and final point is to repeat what has been said by other noble Lords about the Norwich Pharmacal case in Clause 13, where I believe that subsection (3), which defines “sensitive information”, is extremely broad and frankly could be used to cover almost any sort of information that the Government of the day might find it helpful to include.
I want to reassure my noble friend that I am not nihilistic about the Bill, nor am I naive about it. I do not think that the world is an entirely sunny place. Nor do I think that it is filled exclusively with friendly people of a sunny disposition. Further, I certainly do not wish to belittle, demean or hinder the activities of our security services. I am profoundly grateful to those men and women who are prepared to devote their careers and sometimes their lives to keeping me, my family and the country safe. Those men and women also have civil liberties that need protecting, which is why I still remain to be convinced that the balance of the Bill is right.
Lord Dubs
My Lords, I am not a lawyer and I have searched my mind about whether I have ever seen an official secret in my life. The answer is that I do not think that I have. In Northern Ireland, we had Cabinet minutes which were heavily redacted and the contents had appeared in the papers before I read them anyway. I do not count that as having seen any official secrets, so perhaps I am disqualified from contributing to this debate.
I recall that in the past, not that many years ago, the name of the director of MI5 or MI6 was an official secret. We were not even to know that such people existed. That has moved on now and it is much more possible to have some element of knowledge and scrutiny of the security services. Of course, the threats in the intervening years have become more international and more serious, and to deal with them has required more international co-operation. I say that in the context of how anybody would look at the Bill.
I regret that the noble Baroness, Lady Manningham-Buller, will speak after me because I would have liked to have known what she had to say before I contributed, although I had a little chat with her a few minutes ago so I have some idea. I remember vividly the contribution that she made when we debated 42-day detention. She knocked the Labour Government for six with a short maiden speech, which many of us who were present will remember vividly and almost word for word. I regret that I cannot listen to her before making my contribution.
I want to talk mainly about Part 2 of the Bill. This is not a specialist issue just for lawyers: it is central to our country and to the way that the rule of justice operates. It is constitutionally a significant change. It undermines the principles of open justice and natural justice. I welcome the concessions that the Government have made between the Green Paper and the Bill, but I contend that there are still weaknesses.
I served on the Joint Committee on Human Rights. I was rotated off about three weeks ago, so I am not as up-to-date as I would like to be, but I recall that when we published our report on the Green Paper it was embargoed. The Deputy Prime Minister made a passionate statement criticising the Green Paper. I assumed that he had somehow got hold of a copy of the embargoed report because the timing was too close to be coincidental, but be that as it may. I also welcome the report of the House of Lords Constitution Committee.
Clearly, there must be concern about the anxieties in the United States and other countries that we might reveal information given to us in confidence. On the other hand, we have had examples where the Americans themselves have not been that good at keeping secrets. Indeed, there was one instance in addition to the one quoted. In the Yemen case, the Americans leaked or revealed the fact that one of our people had given valuable information from Yemen. That endangered the safety of that individual. I say that only to demonstrate that the Americans themselves are not always as good at keeping to the principles that we are told are the basis for this legislation.
I welcome the fact that inquests will be excluded. I welcome the fact that the Bill will confine itself to national security material and that SIAC’s jurisdiction will include the possibility of JRs regarding citizenship and exclusion from the UK. However, there is something I do not understand. If someone has lived in this country for some years and then applies for citizenship, why is that aspect covered by the secrecy implicit in the Bill? Surely, if a person has been here for years, we know that he or she is here and we are onto them. Indeed, there is an argument that we should keep quiet and see what else we can learn from them. If we start challenging their entitlement to citizenship, albeit in a secret court, we are actually giving the game away. I do not understand the argument there. Perhaps the Minister can reveal it.
The key issue is the secret hearings and the CMP material inherent in Part 2 of the Bill. Of course, the problem is that the Government may use and rely on closed material even though other parties are not allowed to see it. To quote again from the noble and learned Lord, Lord Kerr, who has been quoted before:
“Evidence which has been insulated from challenge may positively mislead”.
That surely has to be the theme for those of us who are concerned about the Bill.
I understand that the courts traditionally are reluctant to challenge the Government on national security matters and if the Government say that it is a national security matter, the courts will normally accept that. The effect of the Bill will be largely to replace PII with CMP where the Government want that to happen. In truth, the Bill preserves the PII process in cases involving national security where in the Government's words it is more appropriate. But as the Bill stands, it is the right of the Secretary of State—his exclusive discretion —to decide which way to go. I think that that is more power than should be the case. I do not believe that the Government have fully demonstrated the case against PII.
I understand that the key benefit of the PII procedure is that there can be balance. The courts can balance one consideration against another. That is surely its particular strength. If we are throwing that out, that is a retrograde step. Do we have to have the alternative of the Secretary of State saying either that PII is okay or we have to have CMP? I wonder whether there might not be a way in which the strength of PII and the benefits of CMP as alleged could be put in such a way that the court itself could decide which of the two methods to use. I am not sure how well that would stand up, but I put it forward to the Minister as a possibility that might get the Government off the hook.
As for Norwich Pharmacal, I share the concerns that have been expressed by others. In particular, Clause 13(5) refers to disclosure that would be damaging,
“to the interests of national security, or … to the interests of the international relations of the United Kingdom”.
That seems to be very wide indeed. I understand national security, although it is vaguely defined. But if we are talking about damage to the international relations of the United Kingdom, all sorts of things damage our international relations, even a leak about something that a British embassy is doing. I wonder whether that is going too far and if we dropped that the Norwich Pharmacal jurisdiction approach would still apply more happily.
I turn briefly to Northern Ireland. While it is good that inquests have been excluded from the Bill as a whole, there is still a range of civil proceedings in Northern Ireland dealing with the legacy of the conflict that will be affected by the introduction of CMPs. I give three examples. There are possible challenges to the PSNI, possible concerns about decisions by the historical enquiries team and possible miscarriages of justice. Some of the issues in Northern Ireland are very serious. We have already had difficulties with the Finucane case with too much secrecy causing lack of confidence in the system. I wonder whether we are not getting into rather difficult terrain by applying this approach to some of the sensitive issues in Northern Ireland. I noted with interest the suggestion of the noble Lord, Lord Thomas of Gresford, that there should be a disclosure judge as well as a Diplock judge. I do not know enough about that, but that is another option worth considering.
I notice that the Government for the first time retain the right to use intercept evidence in CMP cases. Given all the arguments that we have had about intercept evidence, I still believe that we should find a way, where appropriate, of occasionally using intercept evidence in our courts as a way of bringing people to justice. Every time the Joint Committee on Human Rights had a meeting with Home Office officials we were told that it was all being considered, but nothing seemed to come out at the other end. It is interesting that the Government have in a small way conceded the case by saying that intercept evidence may be used in CMPs. I hope that that is a sign that the use of intercept evidence in a wider sense is still on the Government’s agenda.
Baroness Williams of Crosby
My Lords, I am happy to join the noble Lords, Lord Hodgson of Astley Abbotts and Lord Dubs, in being one of the outsiders contributing to this debate. It has such an important nature that it is important that those who are not lawyers as well as those who are take a substantial part in it.
In many ways, what has happened to the Bill is a great credit to some of the recent changes that have been made in Parliament. The fact that we have had a brilliant and succinct report from the Constitution Committee and a very full, factually based and sensible report from the Joint Committee on Human Rights says a great deal about the way in which committees are now beginning to complement and in many ways strengthen what has been something of a weakness in the House of Commons: its ability to scrutinise legislation going through Parliament. These two committees have served us extraordinarily well and I think it would be appropriate on this occasion for me to pay a passing tribute to the shade of the late Lord St John-Stevas for having made such a major and significant contribution to our constitutional development.
The Deputy Prime Minister deserves a word of praise. Having intervened fairly early in the process of considering the Bill, he was able almost immediately to challenge two elements of the Green Paper that were particularly disturbing: one of those aspects being the particular right of Ministers to decide whether a court should be held in closed session; and the second being, in my view at least, the attempt to include inquests within the scope of the CMP. I think he deserves recognition for having intervened and drawn attention to these two particularly extreme and in many ways odious provisions of the Green Paper.
Having said all that, I am also delighted with the strengthening of the position of the Intelligence and Security Select Committee—on this I think I share the view of the noble Lord, Lord Butler of Brockwell. The decisions that it should choose its own chairman and that it should be accountable to Parliament rather than just to the Prime Minister are significant steps in gaining much greater accountability over the whole area of intelligence. For reasons that I will come to a little later, that is vital.
On the Bill itself, I have to admit that the state of the judiciary, as well as the care taken by the Select Committees of Parliament, has been impressive. I share the view of my noble friend Lord Lester of Herne Hill that the judiciary has consistently behaved with extraordinary integrity and real commitment to the concept of human rights and the individual liberties of our citizens, and at the same time has been sensitive and aware, all the way through, of the national security requirement. We are extraordinarily lucky in the judiciary that we in this country enjoy and we need to do everything that we can to sustain it.
One aspect that is perhaps particularly important is the limitation of the introduction of the CMP into civilian proceedings. As has already been mentioned in the debate, it is quite striking that the special advocates could not have been clearer in their views that any further extension of the CMP into civilian proceedings would be unacceptable and would contribute very little to the quality of judicial statement and conclusion in our country. Given the pressures on them, it seems quite remarkable that they achieve near unanimity in a bold and strong statement about their position on the Bill. We have to pay careful attention to this because, as we know, virtually every currently practising lawyer who has had direct experience of the CMP in his or her own proceedings was deeply clear that it was a very unfair procedure and that steps to make it fairer were very difficult to attain. Also very clearly indicated was their view that a much stronger case needs to be made even in the field of national security and certainly beyond it in looking very hard at the CMP proposal.
In many ways the special advocates also regarded public interest immunity as a more satisfactory safeguard for the claims of those who came before the courts. Such cases became particularly difficult—this was mentioned in debate—where claimants invoked the Norwich Pharmacal precedent whereby information had to be disclosed, as my noble and learned friend Lord Wallace pointed out, originally with regard to intellectual property. However, as it was extended from intellectual property and ingeniously used as a way to get access to sensitive security matters, it obviously presented the Government with a very serious difficulty. Under present practice, it meant the Government withdrawing cases altogether rather than risking disclosure. This could lead to an unjust outcome. The former Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern, is clearly particularly exercised about the possibility of injustice here. I wonder whether he would agree that judges must be consulted on the balance of interest in deciding whether a court should accept the CMP and whether he could be asked to explain openly their reasons for giving such a decision.
The Government’s response to the Green Paper was far too cavalier on the essential principles of natural and open justice. Even in the redrafted Bill, Clause 13 defines “sensitive information”, which I know has now been somewhat changed to “national security information”, far too loosely and ranges far too wide. What my noble friend Lord Lester had to say about this was absolutely right. It therefore provides for unacceptable and unaccountable executive power by including within the definition a certificate by the Secretary of State if he or she considers that disclosure might damage the interests of national security or the international relations of the United Kingdom. This latter condition—I share this worry with the noble Lord, Lord Dubs—is usually interpreted by the media as being damaging to our relations with the United States, but it might also of course include damaging our relations with other countries that lack any commitment to the rule of law or to refuse the use of torture as something that can be presented in evidence.
I therefore ask my noble and learned friend Lord Wallace of Tankerness whether the Government are absolutely sure that other countries, not including the United States, could not object, for example, to there being a decision to allow this material to be used if they found it offensive to their view of themselves regardless of whether they had a commitment to the human rights of other human beings and whether they had a proper commitment to laws that establish the freedom and independence of courts. There are a large number of countries—I could mention some but for reasons of diplomacy I will not—that are very close allies of the United Kingdom and that have virtually no commitment to the rule of law. What, therefore, is the position meant to be if they then use this part of the Bill to claim that they should not have been forced or compelled to make any revelations at all.
I turn briefly to the concept of security itself, which has become an autonomous noun—a self-justifying concept. Security may be understood as securing the health and safety of innocent citizens. The noble Marquess, Lord Lothian, made this his central definition of security, but I find it very difficult to do that. The concept of security should also be understood as securing the liberties and freedoms of a democratic society, not in principle contradicting them. I find it very hard to believe that security is strongly established if it is set in contradiction to these basic values. There is a worrying inclination to move in that direction: to treat security, as I said, as an autonomous noun—as something that has a right to itself other than that fundamental right of protecting individual liberty and safety and the basic values of a democratic society.
After 9/11—I should probably now declare a rather modest interest as a member of the governing committee of the Belfer Center for Science and International Affairs at Harvard—some measures were taken that gave security precedence over any other values and rights. Among some of those precedent measures were measures that went quite directly contrary to what most of us would regard as the fundamental principles of being a law-abiding society. I am a little disturbed by our debate having paid so little attention to what I have to say is one of the shaming dimensions of intelligence: the whole story that has emerged about extraordinary rendition and the misuse of intelligence to bring about results and ends that are simply not compatible with those basic values.
I strongly argue that one of the great concerns that we ought to share is the continuation of the existence of Guantanamo Bay, despite the general intentions of President Obama to get rid of it when he was first elected in 2008. We should also be disturbed by the appalling story of extraordinary rendition by the CIA, which, deeply regrettably, some British intelligence was involved in and which has not yet fully emerged into the light of day.
I shall say this very carefully: an American President under increasing pressure from Congress, particularly a Congress of somewhat extreme views about how civil liberties should be subordinated in every possible instance where there is a clash with so-called security, could use Clause 13 as a way to demand the wider use of the CMP in the British judicial and political system. I for one would find that deeply regrettable.
I conclude by saying that it is rather ironic that the Government have not proposed the use of security-cleared lawyers in such cases. In this the United States has shown strength by insisting that such security-cleared lawyers can be trusted in the recent habeas cases of two people who are being retained at Guantanamo Bay. The US has been willing to accept, as we have not, that security clearance is a sufficient and substantial safeguard. We seem disinclined even to look at the possibility, but I would add it to the list of options referred to by the noble Lord, Lord Dubs, as one of the various alternatives. This is one that we might want to look at.
Another might well be the one proposed by my noble friend Lord Thomas of Gresford, which draws on the Diplock court principle and priority, with the idea of a separate judge having particular responsibility for the levels of disclosure. The judge would have to satisfy him or herself that there had been no failure to disclose where necessary, but equally whether there should be any insistence on disclosure that runs contrary to natural justice and natural law. Finally, one other prospect might be looked at carefully. It was mentioned earlier by the noble Lord, Lord Pannick—the more extensive use of various forms of redaction as a way of dealing with the problem.
There are several options before the Government, all of which should be carefully considered because one or more of them are preferable to the direction that we are moving in under Clauses 6 and 13. I hope that the Government will give serious and detailed consideration to these proposals because, with amendment, the Bill will make a useful contribution. Without amendment, it will stand as something that should not be allowed to pass into law.
Baroness Berridge
My Lords, I am a member of the Joint Committee on Human Rights. When we were considering the Green Paper and now the Bill, I seemed always to have had in mind the statue of Lady Justice at the top of the Old Bailey, but when seeking to balance the various injustices in these situations I have come to conclude that her scales need at least seven pans.
First, the Government assert that they are not able to defend themselves and are forced into the settlement of claims. I agree with the Lord Chancellor that that is “extremely unsatisfactory”. Secondly, the Bill would have the claimant and the lawyers in the corridor of the court and evidence seen fully by only one party. Thirdly, in civil proceedings there can be an appeal on the facts, but if, as the Government assert, these cases are so saturated in intelligence information that most of the judgments are secret, people will be less able to appeal and correct decisions.
Fourthly, there is the exclusionary nature of PII where the evidence is not considered by either side. Fifthly, there are apparently strike-outs of meritorious claims, but currently the only example is the case of Carnduff and Rock. Sixthly, how do we ensure the continued development of the balancing of public interest immunity in national security cases? Seventhly, is there information that has previously been disclosed in court proceedings, and thus available to the general public and the press, that would now remain secret? Some of the injustices do not relate to individual cases as the Bill will change the judicial system. It is a fine balancing exercise that, I would add, gives you a headache, and inevitably people will come to different conclusions about the least bad solution.
However, Lady Justice is usually blindfold, which is apt in this situation as your Lordships cannot observe a CMP in full. That is, the hearing has one party excluded. I trooped down to the Royal Courts of Justice in the February Recess to watch a control order case. I spent nine years as a civil advocate and I can spot a court case when I see one, but this did not feel like a court case: namely, a case in which parties try evidence before a judge. It was more like manoeuvrings, with the open advocate, the special advocate and the judge trying to assist to ensure that enough of the allegations were known before the whole thing—the trial of the allegations and most of the evidence—was held in secret behind what I discovered are literally the locked doors of the court. The controlled person was not even there. When I queried that, I was told that it is not unusual because, “there is not really much point”. What I saw worried me and convinced me that the best people to determine this issue were those who have actually done these hearings, which will not necessarily be the most experienced practitioners, judges or academics.
That leaves three groups: those I will call the CMP judges, whose views are not known to Parliament; David Anderson, the independent reviewer; and of course the special advocates. David Anderson QC accepts that CMPs have the capacity to operate unfairly, especially if there is no gisting of the evidence. The last group are the most experienced, and they are not at all convinced. In fact, “inherently unfair” has been their consistent criticism of CMPs. Again, I agree with the Lord Chancellor when he said that the,
“evidence of the special advocates most unsettled me”.
It has been suggested that the special advocates underestimate the effectiveness of CMPs, but that is unusual for any group of lawyers, especially one that includes 22 QCs, not because they are arrogant but because they are really excellent at what they do; QC is a top brand. I would like to see the Government gain the support of these independent advocates before being prepared to support such a fundamental change to our judicial process. I might add that these lawyers, the special advocates, will secure more work if we have more CMPs, and that is a rarity in my experience.
On the injustice of evidence excluded under PII, I join the noble and learned Lord, Lord Morris, but I would be grateful if my noble and learned friend the Minister could set out the statistics of how many cases in the past have led to the successful exclusion of all material, and how many have led to the partial admission of material in open court, such as that achieved so ably in the 7/7 inquest. Further, was this technique used in the Guantanamo Bay litigation which the Government have relied on so heavily? Were exclusionary PII applications made in those proceedings? Also, I am perplexed that the Government apparently settled the al-Rawi case before knowing whether they could have a closed material procedure. When questioned by the Joint Committee, the Lord Chancellor maintained that the Government could have defended the claim if they had had a closed material procedure, but if the Supreme Court had decided in their favour, no proceedings would be left to try. I am perplexed about this.
Moving on, it is hard to see how to ensure the future development of PII in national security cases when under this Bill the judge would be required to accede to an application if there is any national security information relevant to the case, even if he considers that the case could be tried using the existing PII rules. I suspect that we will find amendments tabled during Committee on the Bill. Will less information be available in the public domain than there should be? I think there is a danger that closed material procedures will restrict it.
As I understand the Bill, the difference between closed material procedures and public interest immunity is illustrated using an extension of the example cited in the Constitution Committee’s report of an aircraft accident where the family ended up suing the Government. Let us imagine that we have gone into a closed material procedure and it becomes clear for the first time, behind closed doors, that cockpit video footage exists. That footage is played behind the closed doors. It is akin to the footage that many noble Lords will have seen from a recent inquest into a friendly fire incident that was leaked to the Sun newspaper. Is there any way in which the judge, in a closed material procedure, can balance the interests and pierce the wall of the closed material procedure to put that video into the public domain, given the level of intense interest both in the press and among the public since they know of its existence? As I understand the Bill, that would not be possible. Of course, the claimant may win the claim and the judge may use the powers under Clause 7 to enforce concessions on the claimant, but the public and the claimant will never see that video.
Civil claims are not always about winning or money but about knowing the evidence that establishes the allegation. The same is true for the press, as Ian Cobain, the Guardian journalist who gave evidence to the committee, said. His allegations were viewed as conspiracy theories by the Government, but documents disclosed in court proceedings have sadly proved otherwise. As I understand the Bill, CMP applications are ex parte, so there will never be cases in which the press should be represented to argue the open justice issue. Also, apparently meritorious claims are struck out as the intelligence is so central that it cannot be tried. As I understand the Bill, a claimant is not helped as only the Secretary of State can apply for closed material procedures.
What of confidence in Lady Justice herself? I rely here on the words of the noble Marquess, Lord Lothian, that it is perception that matters. We do not legislate in a vacuum and there is concern about the level of trust that the public have in institutions—except, I think, in the monarchy and the judiciary. On “Thought for the Day” this very morning, the right reverend Prelate the Bishop of Norwich helpfully summed this up for me when he said that confidence in our institutions is dependent on our trust in the individuals in them. Do the public have such confidence in the groups that will give evidence behind closed doors in a closed material procedure?
Before I am accused of being a fantasist, I pray in aid evidence from the Deputy Assistant Commissioner of the Metropolitan Police, Sue Akers. Her witness statement to the Leveson inquiry is as follows:
“Alleged payments by journalists to public officials have been identified in the following categories: Police; Military; Health; Government; Prison and others. The evidence suggests that such payments were being made to public officials across all areas of public life. The current assessment of the evidence is that it reveals a network of corrupted officials”.
Your Lordships will remember better than I the West Midlands serious crime squad. I am not a doomsday merchant, but one has to think about what happens if this system goes wrong. Who will do the public inquiry? Not, I think, a judge—not because they lack the integrity but because what is being asked of them is beyond the capacity of any human being if both sides are not there to bring forward the evidence and to rebut one another’s claims. Human beings are fallible. Home Office officials have been known to use the power to redact documents to cover up Home Office mistakes. MI6 was found to be incompetent at checking where its seconded staff were for over a week. How will all this not be less challengeable if behind closed doors?
Finally, I ask the Government to consider very carefully the implications of the following scenario. What will be the position under this Bill of the trial in which the right honourable Jack Straw MP is currently sought to be added to proceedings in his personal capacity over allegations from a Libyan military official that he authorised his rendition to Libya? The Government are an existing party to these proceedings and a CMP would be eminently possible. Is Mr Straw going to sit in the corridor outside a locked court? Imagine that Mr Straw loses the claim and has to pay £500,000 damages, and all that is done behind closed doors. He has also previously had security clearance, so he will potentially have knowledge to rebut these allegations from his direct experience, which he will not be able to use.
Baroness Manningham-Buller
Ministers do not have security clearance—if only.
Baroness Berridge
I welcome that correction from the noble Baroness, but I think that the majority of the point still stands. Do your Lordships trust the Twittersphere to carry this information properly without muddying the waters with potentially inaccurate party political accusations? “The Conservative and Liberal Democrat Government changed the law and Jack Straw, the former Labour Foreign Secretary, had to pay damages”—is that fewer than 140 characters? Will this enhance confidence in our judicial process?
Civil justice, with its disclosure provisions, is often the only avenue open to individuals to get the details of what has happened. This should not be underestimated. It is an old adage that justice must not only be done but be seen to be done. Could this Bill actually make matters worse for the security services and the Government? Can no one knowing the truth actually be better than, “We know but we cannot tell you why.”?
Lord Judd
My Lords, the House owes a very deep debt of gratitude to the noble Baroness for an extremely courageous and hard-hitting speech. With her background, we would all do well to listen very carefully to what she has to say. I also put on record my own admiration for the continued work of the Joint Committee on Human Rights. As a former member, I know just how much time and hard work is involved in that committee, and the whole House should be grateful to its members for all they do. I wish there was more evidence that the Government gave higher priority to dealing with the arguments put forward by the Joint Committee on Human Rights when participating in debates of this kind—this is not a party point because, frankly, it was also true of the previous Government.
The relationship between democracy, security, human rights and law is always very complex and intricate. Secrets are inevitable if we are taking security operations seriously. The crucial issue in a democratic society is who decides what should be the secrets and where the ring-fences should be placed. There will be checks and balances—they are inevitably needed—but this is a crucial issue that needs very careful scrutiny. I get worried by talk of trade-offs. I do not think that “trade-offs” is the right term. Human rights and certain fundamental principles of law are non-negotiable. There may be exceptions, but that is not a trade-off. The moment you start talking about trade-offs, you are suggesting that certain human rights and principles of law are not absolute. They should be absolute.
I am glad to see the remit of the Intelligence and Security Committee being extended. I am also cautiously optimistic about greater accountability to Parliament. Of course, ideally that committee should be accountable to Parliament. If, as we examine them, the terms of the legislation suggest that parliamentary accountability is being strengthened, this will be important.
Obviously, I am not a lawyer. My background is totally different. Therefore, I hope that the House will forgive me if I flat-footedly walk around as a lay man in the debate, but sometimes the lay men should be heard. For me, the starting point is: what kind of United Kingdom do we want to live in? I think all of us here would agree that the quality of justice was very central to the kind of United Kingdom in which we want to live. We would like to have a model with which we are happy and which can be a model for the world. When we prattle and preach about the responsibility of other nations to implement the rule of law, it starts with our own demonstrable commitment to upholding those principles.
What are those principles? Habeas corpus is obviously central—no person ever being detained without knowing for what reasons they are being detained and what is being alleged against them; that is absolutely crucial. Justice being seen to be done—not in corners or in secret clubs or secret arrangements, but manifestly, publicly seen to be done—is essential. Justice being open is another of those principles—our adversarial system is very important. When I was on the Joint Committee on Human Rights, we went to look and were perhaps a little tempted by and flirted a bit with some of the investigatory traditions of other systems of justice in Europe. I think that most of us came back absolutely convinced about our own. It is through honest, adversarial procedures in court that the truth can be established. It is about a constant search for truth. I would add that compassion—the compassion that comes only from those who are strong and self-confident—is of course an important element in the administration of the law.
It has been a hard struggle to move forward on those principles. We only have to think, in this anniversary year of Dickens, of what was happening in Britain in the 19th century. We have come a long way since the 19th century, and we are the trustees of the outcome of that struggle. It could all too easily be thrown away.
We must also be aware of the issue of counterproductivity—this is something we must never forget. We live in a complex society. I use the word complex again, but complexity is central to life in my own estimation. It is so easy inadvertently to strengthen the wrong elements in society by alienating important sections of the community which become subject to the manipulation of extremists and others. We must fall over backwards not to make that mistake. I believe—and I am somebody who was nurtured in the Second World War, when we stood very firm on these principles —that the more acute the nature and size of the challenge, the more important it is to stand firm by the principles of the society we are defending. That is the hallmark of confidence and real strength.
I am afraid—and I must say it—that too often I see evidence of retreat and erosion in the face of terrorism and extremism. Each retreat represents a victory for the extremist, and we must never forget it. It also creates corrosive precedents. What should always be exceptional can too easily become convenient. We should strive always to deal with offences, however grave, within the normal judicial system and the normal procedures of our penal system. It would be disastrous if it became established over time that in this country we had first-class law available to some people and second-class law available to others.
I am afraid that sometimes we are rather good in Britain at refusing to face up to the harsh realities of what we may be generating. If we have special courts and special advocates, and if there are powers to withhold information—in effect on government say-so—when does the detainee become a political prisoner? What is the absolute dividing line between a detainee and a political prisoner? We very often use language about political prisoners in reference to other societies, but we must ask some very honest questions here about ourselves. We ought to listen to the special advocates on this. I remember that when I was on the Joint Committee on Human Rights the special advocates gave evidence to us. It was very powerful to see how unhappy they were about their lot and how they felt that they were being expected to perform in a way that was absolutely alien to their training as lawyers in this country—the principle of defending somebody with whom you are not allowed to discuss the real substance of what it is all about.
I have listened with fascination in this debate to those who are pre-eminently well qualified to comment on what is before us. It seems to me essential that all the time we are considering the Bill and putting it under scrutiny, we should have four questions in mind. First, does it regenerate and uphold a resolve and unshakeable commitment to open justice? Secondly, does it strengthen the means to deal convincingly and effectively with allegations of serious state wrongdoing? Here of course I have in mind torture and rendition in particular. Torture is an abomination. It is cruel to the people tortured, it is damaging to the people doing the torturing, and it is a total contradiction of everything we say that our civilised values are about. It is easy to say that, but are we taking the action that is demanded if we are serious in that judgment? Thirdly, does the Bill convincingly counter the dangers of manipulation of court proceedings by government, especially when government action goes against the considered wisdom of the judge? Fourthly, does the Bill effectively reverse what I believe to be a disturbing and accelerating trend towards curbing the ability of the public to hold the Government and their agencies to account through the courts? Here I cannot help making a comparison with another Bill that has just gone through this House: I am still dismayed by the way in which we have limited the availability of legal aid in our society. What are we doing to the quality of justice in the United Kingdom?
Let me conclude simply by saying that it is arguable that the 20th century saw a high point in the development of quality UK justice in the context of democracy. It will be a tragedy if the 21st century becomes one in which, by a weak and sad reversal of those considerable achievements, we produce an inferior system of justice. We must not let the extremists and the terrorists win.
Lord Macdonald of River Glaven
My Lords, I declare an interest as chair of Reprieve, an NGO campaigning against the death penalty and secret prisons around the world. It was involved in the Binyam Mohamed case. I start by acknowledging two things. First, the Bill is a significant improvement on the Green Paper that preceded it, and a very welcome improvement. Secondly, there may be a very limited category and number of civil cases in which closed proceedings may be necessary to ensure that justice can be done in circumstances where, if there were no closed proceedings, material critical to the fair resolution of an issue would be excluded from the court’s consideration. This, of course, could include fair resolution in favour of the claimant as well as in favour of the defendant. I would expect this to be a very small—exceedingly small—number of cases.
My question for the House is whether the Bill as currently drafted achieves an appropriate balance between delivering justice in that very small category of cases and the wider public interest in enjoying a justice system that is open and public. Will the Bill deliver that very small—exceedingly small—number of cases, or might it deliver rather more; indeed, too many? My view is that, despite the obvious improvements, there is still a way to go. I want to focus on two areas: public interest immunity and the Norwich Pharmacal jurisdiction.
Public interest immunity has served us very well over many years and judges are very experienced in the exercise of this jurisdiction. It enables a party to the proceedings to invite a judge to conclude that any given material, while relevant to an issue in the case, should be withheld from that case on public interest grounds. Naturally, those public interest grounds can include national security grounds. In conducting this exercise, the judge is required to balance the public interest in protecting sensitive material from disclosure against the private litigant’s legitimate interest in seeing material that may assist his case or undermine the case of his opponent.
I am not aware that it has ever credibly been suggested that judges in our courts are inclined to get this balance wrong. My own experience over many years, including during the five years that I served as Director of Public Prosecutions, is that our judges do not get this balance wrong, despite what American intelligence agencies may quite erroneously believe. Some aspects of the Bill appear to have been included because of what almost everybody accepts is a misapprehension on the part of a foreign intelligence agency.
At present, the Bill requires the Secretary of State merely to consider public interest immunity and presumably to reject it as a suitable mechanism before going on to apply for a close material procedure. This is not enough. I urge the Government to take the opportunity represented by this legislation to strengthen, rather than undermine, our PII jurisdiction. As the Joint Committee on Human Rights has said, it should be placed on a statutory footing to strengthen confidence and to increase clarity. Such a reform could include, among other things, the test to be applied when national security material is the subject of a PII application.
I also believe that it would strengthen the integrity of any CMP were it to be invoked only following a full PII process. In other words, the judge would be invited to rule, in accordance with traditional PII principles, that the relevant material sought to be withheld could properly be withheld on public interest grounds. Having made that ruling, the court would then go on to consider, again on conventional PII principles, the extent to which a redacted form of the material, or a summary, could safely be disclosed consistent with the public interest.
Finally, if at the conclusion of this conventional PII process a party wished to go on to apply that the court should go into closed session to hear any remaining material permitted to be withheld under PII, only then would the court be empowered to accede to that application to the extent that it felt a fair trial would be impossible in the absence of factoring that material into its consideration of the issues in the case.
The scheme would be: first, consider the relevance of the material to issues in the case—normal PII; secondly, consider the extent to which its disclosure might damage national security—normal PII; thirdly, consider the extent to which redaction or summary can cure the problem—normal PII; fourthly, in appropriate cases after that process, rule that the material may be withheld on grounds of public interest; and only then, fifthly, upon an application by one of the parties, rule that the material withheld can be considered by a court in closed session because, in the view of the court, a failure to do so would render the proceedings as a whole unfair. It would be a strong PII system as we understand it today, with the possibility in a small number of cases, once that process had been exhausted, for the court to go into closed session. Such a scheme would encourage a focus throughout the process on the important principles to be decided. It would very strongly discourage abuse or inappropriate, overhasty recourse to the CMP procedure, which is, I fear, a real danger under the current proposals.
I turn to the Norwich Pharmacal jurisdiction and Clauses 13 and 14. These are far too widely drawn for the following reasons. Clause l3 relates to “sensitive material”. The listing of this category of material as deserving of special protection is an unfortunate throwback to the excesses of the Green Paper. Worse, whole swathes of material are deemed to warrant, without any further consideration, the tag of “sensitive”, so that they are automatically and absolutely excluded from disclosure. This includes any material emanating from the intelligence services in the widest sense.
Of course, some material emanating from the intelligence services, though certainly not all of it, may be “sensitive”, but that is the wrong test. It has been abandoned in the rest of the Bill and it should be absent from Clause 13. The test should be the extent to which a disclosure would be damaging to national security, as it is elsewhere. Even then, there should be no automatic carve-out. The power to withhold this material should be subject to a judge’s ruling on the merits, as it is in the case of an application for a CMP. It should be the same test.
Even worse, Clause 13(3)(e) allows the Secretary of State to specify that any other material may be excluded if its disclosure in his judgment could damage national security or damage the interests of our international relations. The exercise of this exceedingly broad executive power is reviewable by a judge, but not on its merits and only on JR principles; that is, the judge can reject the Secretary of State’s certification only if he finds its exercise to have been “irrational”. This test does not provide adequate supervision over such a sensitive exercise of ministerial power, undermining, as it must be, of important principles of open justice.
The Norwich Pharmacal jurisdiction can sound a dry and technical subject, but, as my noble friend Lord Lester of Herne Hill has pointed out, it exists in cases where a great deal may be at stake, including the very life of the complainant who may, for example, be residing in a foreign prison and potentially facing sentence of death, as was the case with a number of Guantanamo Bay inmates. As things stand, the courts will make a Norwich Pharmacal order only where the party against whom it is sought has become mixed up in wrongdoing and where the interests of justice require it. Are we now to say that, however mixed up in wrongdoing the party against whom disclosure is sought may have been, and however strongly the interests of justice may demand disclosure, the behaviour of the wrongdoer, if it is an intelligence agency, shall be afforded total and automatic protection in all third-party applications of this sort? I do not believe that we should say that and this proposal goes too far. It causes deep offence to conventional legal principles because it ousts the effective supervisory role of the court in a way that is almost calculated to lead to injustice, even on a heroic scale.
I accept that, in cases in which national security issues are genuinely engaged, some adjustment to the Norwich Pharmacal jurisdiction may be appropriate, but the solution is emphatically not entirely to exclude certain bodies from its range. The solution may be, as I think the JCHR indicated, a presumption against disclosure in national security cases in the Norwich Pharmacal jurisdiction, overturnable by the judge if, in his or her view, serious injustice is likely to occur in the event of non-disclosure.
Even in the field of national security, I do not believe that it is in the broader public interest to move to a scheme where the interests of justice are entirely exiled from the equation so that they cease to exist as a check against the abuse of state power.
Baroness O'Loan
My Lords, having had some experience of matters relating to national security involving many of the considerations inherent in this Bill, I absolutely recognise the importance of protecting intelligence sources, intelligence methodologies and those agents who have the complex and often difficult task of running the sources who are often engaged in the very issues on which they provide intelligence.
Such activity is of course regulated but much of it occurs in real time and in situations in which the Security Service necessarily exercises a degree of discretion —for example, about the involvement of sources in crime or terrorism. The noble Baroness, Lady Berridge, referred to where things go wrong. In Northern Ireland, there is a body of evidence about such circumstances. Examples are sources being funded to make trips to other places to buy arms and munitions for the purposes of terrorism, and sources who admit to murder not being prosecuted for those murders because the important thing is to retain their services as sources, the consequence being a lengthy career in serious crime, which could have been prevented. A balancing of the public interest, or even the administration of justice, with their ongoing activities might have led to different state action from that which occurred.
I mention that because it is important that, as far as possible, there should be no provision that enables the Government to withhold intelligence or other sensitive information relating to national security in a manner that prevents a litigant asserting and proving his case if our current situation with regard to the operation of government and the rule of law is to be maintained and, hence, our national security is to continue to be protected. Introducing further limitations to judicial oversight and involvement, as proposed in the Bill, cannot be welcomed where alternative measures can be taken that will better serve the interests of both openness and justice. In that context, it might be useful to consider the references of the noble Lord, Lord Grenfell, to the disclosure judges and their activities in Northern Ireland.
There are mechanisms for the accountability of the Security Service and anti-terrorist policing, to which we have reference in the Bill, but I think that, with respect, the current arrangements cannot inspire great confidence because of the very limited resources and opportunities for access afforded to those who are charged with the responsibility. Great atrocities, both here and in the United States, have led to calls for examination of what happened—for example, with the Omagh bomb 14 years ago or with 9/11. The reality is that the intelligence services do not operate alone; they operate with the police and other statutory agencies. Sometimes there has to be a public inquiry, and we have seen several in Northern Ireland. In such circumstances, there will be consequential disclosure and such inquiries may well be in the interests of national security, so we cannot start with the assumption that everything has to be protected.
I welcome the exclusion of inquests from the Bill. However, I should like the Government to explain why inquests should be excluded but civil actions for damages against the Government taken by the loved ones of those who have died should be subject to the possibility of a CMP. The response cannot simply be that Article 2 does not apply to civil actions. The perception is that the effect of that provision is that the Government might be influenced in their decision to withhold information because to disclose information would be very costly in terms of the damages that they might have to pay. Of course, the claimant may not know the extent of wrongdoing which may have led to death or serious injury and may therefore be inclined to settle for a sum which does not reflect the extent of wrongdoing. I heard the Minister say that without CMPs the Government would have to settle cases which they could otherwise defend because they must protect national security. It is possible that the perception outside your Lordships’ House will be that the Government are creating, perhaps unwittingly, a damage limitation mechanism exercised by virtue of this provision.
It is important in dealings with other Governments that our Government should not become complicit by omission or commission in any wrongdoing by those Governments. The removal of people to places where torture and inhuman treatment is likely on the basis of security intelligence is risky, to say the least. I have referred previously in this House to the case of Maher Arar, who was transferred by the Americans to Syria on the basis of intelligence obtained by torture. Mr Arar spent a year in Syria tortured by the Syrian authorities before he was released to return to his homeland of Canada—the Syrian Government and the Canadian Government both acknowledging that he had had no involvement at all in al-Qaeda. There are lessons for us in such cases.
We must have proper arrangements for the transmission of intelligence between countries in the interests of each country’s national security, but we must also acknowledge that countries have a wide moral responsibility to share intelligence to protect life. It is important that the United Kingdom does not bow to threats of non-sharing but, rather, asserts clearly the integrity of the judiciary in the United Kingdom and the fact that there has been no breach of security and that our legal processes are competent to deal with such matters without the introduction of blanket bans such as might emerge from the application of Article 13.
Central to the rule of law in the United Kingdom are presumptions of openness and fairness. It is, in part, confidence in the rule of law which allows us governance. The Select Committee on the Constitution said in its third report:
“This is a constitutionally significant reform, challenging two principles of the rule of law: open justice and natural justice”.
Those basic principles should not be diminished—and that is what the Bill will do—unless it is absolutely necessary. The Supreme Court in Al Rawi concluded that such measures would require “compelling evidence”. The necessity and proportionality of the measures in the Bill must be considered if your Lordships are to decide whether to approve the Bill or its individual clauses.
If we look at the response of those with significant experience in the area, we see that the Joint Committee on Human Rights, of which I am now a member, states that, even with special advocates, CMP,
“is not capable of ensuring the substantial measure of procedural justice that is required”.
It does not accept that replacing PII with CMP is justified. Special advocates have said that CMPs are inherently unfair: they do not work effectively and they do not deliver procedural fairness. The Court of Appeal, commenting on the special advocates procedure, said that even it is “inherently imperfect” and,
“cannot be guaranteed to ensure procedural justice”.
Justice has observed:
“There is nothing in the Bill to address unfairness”.
If we examine the proposed CMP, we see that much of the judge’s discretion and authority, which currently exists under the PII procedure, is negated by the CMP. The power all lies in the hands of the Secretary of State, who can apply for a declaration and then make the applications. The court must grant the application. The court may not even consider whether a PII procedure would be a better alternative. Once that is done, there will be consideration of individual pieces of evidential intelligence, but the reality is that the special advocate procedure does not permit full challenge of the material presented. Once the special advocate has seen the material, he can have no further discussion with the litigant; he has no responsibility to the litigant. That would be fine were it not for the complexity inherent in the assessment and examination of intelligence. The noble and learned Lord, Lord Kerr, stated most compellingly in Al Rawi—this has been referred to repeatedly—
“To be truly valuable, evidence must be capable of withstanding challenge … evidence which has been insulated from challenge may positively mislead”,
a court. Can the Minister confirm how the Government propose to ensure the necessary and full examination of national security material in the absence of such great judicial involvement in scrutiny?
Nothing in the CMP procedure would equate to any attempt to carry out the balancing of interests in the administration of justice exercise, which was developed in the Wiley judgment. The Constitution Committee stated that it is,
“difficult to see the justification for removing the Wiley balancing exercise”.
Will the Minister consider the introduction of some provision to mitigate the inherent unfairness of the Bill, whether by way of disclosure of material to legal representatives or in redacted form, as suggested?
I support the remarks of the noble Lords, Lord Pannick and Lord Lester, about the effect of the Bill on the Norwich Pharmical procedure. There continues to be no definition of national security—something which alternatively mystifies and occasionally benefits those who are required to make decisions in the interests of national security. It is also important to bear in mind that nothing is absolute. Even the identity of sources may be revealed, as was clearly demonstrated in the comments of Lord Chief Justice Carswell in the Northern Ireland case of Scappaticci. He stated, in the context of the “neither confirm nor deny” policy, that the Minister,
“can depart from the NCND policy … if there is good reason to do so to meet the individual circumstances of the Applicant’s case.
He continued—this is profoundly important for us in our law-making function—
“A decision maker exercising public functions who is entrusted with a discretion may not, by the adoption of a fixed rule of policy, disable himself from exercising his discretion in individual cases”.
We must accept the reality that there are cases in which the general rules about non-disclosure of intelligence material will have to be disregarded. It happens now, for example, if somebody is murdered and a source can give vital evidence about the murder but revealing the source would compromise him as a source. This will happen and he will then be repatriated to a new existence—something which he may not find particularly palatable, but it deals with the problem and with the requirements of justice. It is also the case that intelligence-gathering methodology has evolved. What might have been required to be protected even in 2006 may no longer require protection in 2012. It may be that the Minister will assure me that such consideration will always be part of the making of decisions about whether to apply for a CMP or whether simply not to make an application.
I seek assurances from the Minister on the provision in Clause 13 that,
“disclosure is contrary to the public interest if it would cause damage … to the interests of … international relations”.
There is no definition of what this damage might consist of, or of what objective criteria should be used to determine whether disclosure would cause such damage. There is a very clear proportionality and human rights issue here. Issues of the protection of national security are not new. We have long been engaged in battles to preserve and protect our national security, and I use that term in its widest sense. Procedures for dealing with the problem have evolved in a very measured way and the PII system is probably a very good example in this context.
Finally, why did the Government choose not to put PII procedures on a statutory basis, as many have recommended, in an enhanced form but, rather, to move towards the extension of the CMP, which has been described in such negative terms by so many of great distinction who have served this country so well? At this point, I endorse the suggestions made by the noble Lord, Lord Macdonald, regarding the introduction of a statutory PII process with the possibility of, in very exceptional circumstances, a closed material process. This would surely meet the objectives.
Lord Black of Brentwood
My Lords, I do not intend to detain your Lordships long as I have just one central point to make, but as it relates in part to the media I must first declare my interest as director of the Telegraph Media Group and draw attention to my other media interests in the register. I slightly wonder whether I should follow the example of the noble Lord, Lord Judd, and declare that I, too, am a flat-footed layman, somewhat intimidated by the assembly of the great legal minds that have graced this debate.
As we have heard in many eloquent speeches, the Bill goes to the heart of some fundamental constitutional principles and, indeed, human rights: the duty of government to safeguard the state and its citizens and, consequently, their right to life; the right of defendants to a fair trial, based on information on which they have had a chance to comment; and the demands in a free society for open justice, fully and fairly reported on, and indeed scrutinised, by an independent and robust media.
In the debate on the gracious Speech, I raised some concerns that, based on the Green Paper which foreshadowed the Bill, this legislation would end up undermining some of those vital principles and expressed a great anxiety, which was echoed in the report of the Joint Committee on Human Rights, at,
“its failure to consider the impact of such a radical departure from long established principles of open justice on the media’s ability to report matters of public interest”.—[Official Report, 15/5/12; col. 361.]
It is to their great credit that the Government listened to the widespread concerns expressed by the media and many others about the Green Paper’s proposals and likely impact in this area and have acted so decisively to deal with them in the Bill before us. That is warmly to be welcomed and it shows quite how important consultation is in such legislation. I think that the noble Lord, Lord Butler of Brockwell, made that point earlier.
I am particularly grateful to my noble friend the Minister of State for his courtesy in writing to me after the debate on the gracious Speech to reaffirm the Government’s strong commitment to open and transparent justice and to outline, as we have heard a number of times today, how their proposals relating to CMP with significantly strengthened judicial control would provide much needed safeguards. I understand that his most helpful letter, dated 11 June, about the media aspects of this legislation is in the Library of the House. Those safeguards will go a long way to protecting the integrity of media reporting, with claims and allegations—and indeed the outcomes of cases—continuing to be made and reported on in open court, with material remaining closed only where it is compatible with Article 6 rights under the European convention. It is also extremely welcome news that the Government have decided that inquests should not be held in secret. A number of noble Lords have referred to that.
I still have some areas of concern, such as the power under Clause 11 allowing the Secretary of State to make an order that would extend CMPs to any court or tribunal, with, as I understand it, important procedural provisions contained in rules of court not subject to the same detailed scrutiny as primary legislation debated in this House. It is crucial that such a move, entailing a substantial departure from our tradition of open justice, will be permissible only in the rarest of cases. I am sure that is what the Government intend and it would be helpful to have confirmation of that.
That said, this is, in the scheme of things, an issue more of subsidiary concern on which I hope we will be able to get reassurances. I ask my noble friend the Minister to continue the Government’s constructive dialogue, particularly with the media, that has to date been so effective and to discuss any further suggestions that may come forward for additional improvements intended to safeguard public oversight in this area.
This important Bill is a complex balancing act, as we have heard in so many contributions, between open and fair justice and the security of the citizen. Achieving such a balance between security and liberty, like trying to mesh together Hobbes and JS Mill—not a task I would wish to undertake—is fiendishly complicated. We have heard many concerns today and I have certainly listened to thought-provoking comments. I was struck by the speech of my noble friend Lady Berridge. However, from my vantage point, the Government are to be congratulated on listening to legitimate concerns and striking the balance with care. As a leading article in the Daily Telegraph on 30 May put it:
“We are facing a continuing threat from terrorists whose methods are ever more sophisticated, and the manner in which we counter those threats must be protected. This measure reinforces the rule of law without giving ground to those who would do us harm”.
Those are sentiments with which I concur. At the start of this debate, the noble and learned Lord said that we should test this legislation by whether it is a sensible and proportionate response to the threats that our society faces. In my view, it passes that test.
Lord Campbell-Savours
My Lords, I will confine my remarks to Part 1 of the Bill and the Intelligence and Security Committee’s operations. I listened to the very reassuring remarks made by the noble Lord, Lord Butler of Brockwell, who poured praise on the committee on the basis of his experience not only as a member but as one of those who engineered the construction of the committee. He was also able to watch that committee’s operation in the early days, when people such as me from the awkward squad in the House of Commons were put on it in an attempt to reassure the public.
I was a member of the committee between 1997 and 2001, under the excellent chairmanship of the noble Lord, Lord King of Bridgwater. In 1998, I set out in a paper to the then Prime Minister, Mr Blair, my provisional views on reform of the committee. Sadly, at that stage my views were rejected; they were a minority view that I had been pushing inside the committee. I wanted a committee of Parliament—not of parliamentarians—under a modified Select Committee structure, especially adapted to deal with the handling of national security issues. I should report that in the late 1990s there had been much discussion in the committee in private on whether we should go down the Select Committee route. I recall one particular day when we were discussing the amendment to the annual report from our committee, where we were hassling over the wording so as not to lead the public to believe that we were going to go down that route but to inform them that there was at least an argument going on within the committee on that matter—and that is 14 years ago.
The debate has now moved on. I hope to deal in Committee with some of the recommendations that I made at the time. However, the heart of my case today is that the model the Government are adopting is wrong. Some of the changes I welcome; but I regard the changes that are being made as essentially cosmetic. They will not meet the concerns of Members of the other House, or the expectation of the public, where they have an interest in these matters. Furthermore, the reforms might perhaps be counterproductive. Let us take the process of appointment. Under Clause 1(3) and (4), the Bill proposes that a person is not eligible for membership unless nominated by the Prime Minister. A member is then appointed by Parliament, effectively under a resolution of the House. At the moment a person is appointed by the Prime Minister on a recommendation of the Whips. I know that over the years members of the committee have tried to convince the public that they are appointed by the Prime Minister; the reality is that all members of that committee were appointed on the basis of Whips’ recommendations, certainly in the House of Commons. The only difference under the Bill is that the House will have to approve, on a resolution—a rubber stamp—the Prime Minister’s recommendations, which means a payroll vote, supported by the opposition Front Bench, backed up with an informal Whip, with bi-party guidance in support. It might even on occasions be a fully whipped vote.
As one of the Commons awkward squad, I was involved in challenging a Select Committee nomination, which very rarely happens in the House of Commons, certainly on only a few occasions over my 21 years there. One never has the support of the Whips, as a challenge is seen as an assault on the workings of the usual channels. What I am arguing, therefore, is that that is no great change.
On the wider issue of ISC operations, there are effectively no changes. On the block on ministerial membership, the length of service, the dissolution of the Commons, the resignation arrangements, quorum and membership cap, determination of procedures, reports, approval by the Prime Minister, and agreements on the remit between the agencies and committee, there is very little change. There is certainly little change on areas which will be set out from the Front Bench by my noble friend Lady Smith of Basildon. The only real areas of change are the arrangements on access to operational material and arrangements for the selection of the chairman, both of which I oppose.
Let us take access to operational material. Under present arrangements:
“The position for the present ISC is that the Director-General of the Security Service, the Chief of the Intelligence Service or the Director of the Government Communications Headquarters (as well as the relevant Secretary of State), is able to decline to disclose information because it is sensitive information which, in their opinion, should not be made available. Paragraph 3 removes this ability for the Agency heads to withhold information. The ability to decide that information is to be withheld will instead rest (solely) with the relevant Secretary of State (for the Agencies) or Minister of the Crown (for other government departments)”.
I am quoting from the Explanatory Memorandum. Well: Secretaries of State; ministerial responsibilities. I regret to say that my then right honourable friend Robin Cook is not here to defend his case today; but I was on the committee where Robin Cook had responsibilities in these areas. When he gave evidence to us on one occasion—it has never been made public before, but I am not breaching national security by saying what happened—we were appalled by how defensive he was towards the services. He was most unwilling to provide for us information which the committee felt that it was entitled to hear. That was the view of all members of the committee, including the chairman, at the time. Let us take the position of Michael Heseltine, for whom I have very great regard, in the early 1980s, when he was in pursuit of CND. Are we saying that people like that should be able effectively to veto information being given to the committee when the law provides that the committee has access to operational material? In other words, they would be able to say, “This material cannot be given to the committee”. I have far more faith in the heads of service long before I am prepared to trust Ministers to take particular decisions as to whether the flow of information should be vetoed. To put it more bluntly, I have more faith in the Stephen Landers or the Baroness Manningham-Bullers of this world and in their decisions on these matters than ever I would have in the decision of a Minister of the Crown. Ministers of the Crown on occasions will make thoroughly political decisions; sometimes even their personal credibility might influence the judgments that they make. I think that it is an error of judgment to go down that route.
Under the question of access to operational material, let us take the definition of “sensitive” that might apply to the provision of information to the committee. I quote again from the Explanatory Memorandum on the Bill. Under the present arrangement:
“The position for the present ISC is that information is considered sensitive information, if (among other reasons) it might lead to the identification of, or provide details of, sources of information … or operational methods available to the Agencies; or if it is information about particular operations which had been, were being or were proposed to be undertaken in pursuance of any of the functions of the Agencies. Paragraph 4 extends these parts of the definition of sensitive information … to cover also equivalent information relating to any part of a Government department, or any part of Her Majesty’s forces, which is engaged in intelligence or security activities”.
I read that as meaning that under sub-paragraph (5)(a) and (b) of paragraph 3 of Schedule 1 to the Bill, we are giving a power perhaps to a junior Minister, perhaps even to a Parliamentary Secretary, to block access to operational material in any department if that Minister, adequate or inadequate, wise or unwise, perhaps even being manipulated, decides that the issue is either national security-sensitive or is not reportable to a departmental Select Committee. That is not a reform; it is a fudge.
Then we have the arrangements for the selection and appointment of the chairman. Under Clause 1(6):
“A member of the ISC is to be the Chair of the ISC chosen by its members”.
In other words, at the beginning of a Parliament, perhaps on a change of government, new members of the committee, without any knowledge whatever of the internal dynamics of the committee which are important, of individual member relationships with the agencies, or of the kind of work to be undertaken, are to be asked to appoint a committee chairman. I regard that proposition as ludicrous. When I was first appointed to that committee in 1997, I would not have supported Tom King as chairman. As far as I was concerned, having just come through 17 years in Opposition, to me he appeared to be an abrasive former Cabinet Minister. However, within a matter of months, I realised that he was absolutely ideal for the job; he was perfect in the chair and I would have supported him all the way; but not at the time, after the general election in 1997. Yet under this arrangement, new members will go into that committee and they will be required to vote for a new chairman of the committee. That proposition is quite ludicrous.
The model is wrong. What is my alternative? For a start, it should be a committee of Parliament, not of parliamentarians. We are going partly down that route. The committee should be a creature of Parliament, not of the Executive. I still believe that it is a creature of the Executive because of the ministerial veto. It is not a Select Committee and yet the Labour Party has supported full Select Committee status right through since the debates of 1988, almost 24 years ago. My noble friend Lord Richard made an important contribution to the debate in this House and my noble friend Lord Hattersley, as the shadow Secretary of State at the time, made a similar contribution in the House of Commons, supporting the Select Committee structure. So why are we still arguing the toss after some 24 years? It is widely known that committee members wanted some change, but I do not know what change or even whether this is what they really want. Is real reform being blocked in Cabinet, or perhaps by some boys in short trousers in Downing Street, or is there some legal reason? What is the reason for the fudge?
I believe that the committee should be a Select Committee, meeting on the Parliamentary Estate, established under a modified Select Committee structure, approved by a special resolution of Parliament, with procedures specifically adapted to deal with the handling of issues of national security. It would have the protection of parliamentary privilege, which could be fully considered by the Joint Committee currently being established to deal with the issue of privilege. It could hold those who deliberately misled it in contempt, which is currently the position with Select Committees. It could take evidence under oath and publish reports with the right of the agencies to request redaction, subject to appeal from agency or committee to the Prime Minister, which I call the security override. It should have the power to refer material to other Select Committees, again subject to the override, and have the power to call for persons and papers under similar arrangements. It would be a credible mechanism for the issuing of statements on issues of national security where the agencies might be in the dock in public opinion, as against the present position of a nod and a wink to sympathetic journalists.
I turn to the issue of the handling of operational information and of sensitive material more generally. As I have said, I completely reject the idea that Ministers should effectively have a veto on the flow of such information to the committee. The chairman of the committee should have open, unrestricted access to all post-operational security material, described in the Explanatory Memorandum as,
“retrospective oversight of the operational activities”.
It would be for the chairman in consultation with the agencies, not for Ministers, to decide on whether any operational information should be withheld from the committee for reasons of national security; or for the chairman in consultation with Ministers more widely where other Select Committee considerations were in mind. The chairman would decide. The chairmanship of the committee would then be crucial. Noble Lords will now see why I do not want it to be elected.
This model would change the entire dynamics of the operation of the committee. For a start, you could not elect its chairman. It would subtly change the nature and form of accountability. That appointment would have to be on the agreement of the Prime Minister and the Leader of the Opposition and would be an appointment of trust. Malcolm Rifkind, the noble Lord, Lord King of Bridgwater, my noble friend Lady Taylor of Bolton and others who followed could have done that job and been fully trusted by the agencies to be given access to that material. They would then be responsible for deciding what information the committee was given where issues of the veto arose.
I could go further, although I am still turning it over in my mind. I could argue that there are circumstances in which such a chairman could be given access to pre-operational material on the basis that it could not in any circumstances be disclosed to the committee. Post-operation, of course, it could then fall under the general heading of retrospective oversight and the chairman would then have the discretion, following consultation with the agencies. Noble Lords will note that I have excluded Ministers from the process. The discussions that regularly take place between the Government and the agencies would have no bearing on accountability to the committee. I am proposing a very different model, and I hope that the Government are listening.
Lord Strasburger
My Lords, I am in a small but growing minority in this debate in that I am neither a distinguished lawyer nor a member, not even a former member, of the ISC.
When compared with many other countries, it is remarkable how much the British people hold the courts in high regard and respect their decisions. This is partly because our judges are seen as incorruptible, independent and wise, but the main reason is that court decisions are the result of a process that is fair and transparent. By “fair” I mean that the court will give no privileges to either side, even when one side is the state. This principle is known in European jurisprudence as “equality of arms” and is a very British concept. An important aspect of equality of arms is that each side has an opportunity to see the other side’s evidence, to challenge it and test it, and to call evidence of their own to rebut it. The decision that is made after that process has been respected as one that we have good reason to respect.
What does transparency mean in this context? The principle of transparency entails that proceedings should be open to the public unless there is a very good reason why not. The court should make plain the reason for its decision. No matter how high our regard for the judge, it is very hard to trust his or her decision if you do not know how and why it has been reached.
Closed material proceedings are a big departure from the principles of transparency and fairness. The Government are proposing that, in civil cases where they are the defendant and are being accused of wrongdoing, they should be able to stack the proceedings in their favour on what is probably the deciding issue in the case. CMP is not just a secret hearing with the press excluded; the litigants and their lawyer are also locked out. The Government’s lawyer would have a private meeting with the judge who will decide the case and give him or her so-called evidence that their opponent cannot see. I say “so-called evidence” because it will simply be assertions that have not been tested or challenged. It may be mistaken or could even be complete fiction. Even so, the Bill requires the judge to take this highly dubious information into account when reaching a verdict—a very one-sided arrangement that cannot in any way be described as fair.
What led to the creation of CMPs in the first place? They were introduced for Special Immigration Appeals Commission hearings involving foreigners for whom a national security deportation was being considered. Previously such appeals were held in total secrecy and, by comparison, CMPs were a bit less bad. We are now being invited to extend CMPs from this highly specialised application to civil cases, where the Government are the defendant and are being accused of wrongdoing.
However, that is not the end of this mission creep. Buried in the Bill, in Clause 11(2), is the power for the Secretary of State to amend the definition of “relevant civil proceedings” by statutory order, into who knows what areas of our justice system.
Of course, we have a good idea of how far the Government would really like to go in extending the scope of CMPs. The Green Paper sought to apply CMPs to all civil proceedings involving the Executive. Secret and unfair hearings, therefore, could have been invoked by a hospital trust fighting a medical negligence claim, or a local authority defending itself against a claim for maladministration. For now, the Lord Chancellor has rowed back on that ambition in the face of a mountain of protest, but he has shown us the ominous and dangerous road that he wants to take us down.
What of the safeguards that the Government have trumpeted? We are told that the case judge will decide whether CMPs will be invoked, not the Minister. However, there is a disconnect between what the Government are saying on this and what is actually on the Bill. According to the Bill at present, judges will have their hands tied, with no discretion to consider the competing interests of disclosure in the interests of justice and national security. This, therefore, will effectively be a ministerial decision, with no effective judicial oversight.
What, then, is the problem that this Bill seeks to solve? The current system of PII certificates works well. It allows a balance to be struck between the requirements of justice and national security. If a Minister believes that disclosure could harm the public interest, he or she signs a certificate to that effect. The court then considers the issue, and the judge has a number of ways to handle the information in question. He can withhold it, release it, redact it before he releases it, protect the identity of the witness, and he has a number of other nuanced solutions. The PII system works well, and the Government have failed to bring forward a single example of where the PII system has led to a disclosure that has been damaging to our national security.
In fact, the Bill requires a Minister to “consider” the PII route before applying for a CMP, but the wording of this provision is so weak and easy to evade that, in effect, Ministers can and will demand CMPs without giving any serious consideration to the much fairer PII route. If this Bill is to proceed, before the Minister can ask for a CMP he should have to demonstrate to the court that for some reason a PII certificate will not do the job.
What do others think of this Bill? The House could do worse than listen to the views of the special advocates, specially vetted lawyers who are appointed to serve the court in CMPs. If anyone knows about the grimy details of this part of the justice system, they do. In a memorandum signed by 50 special advisers—which is basically all of them—they say that,
“CMPs are inherently unfair and contrary to the common law tradition … the Government would have to show the most compelling reasons to justify their introduction … no such reasons have been advanced … in our view, none exist”.
There you have it from the horse’s mouth. No reason has been advanced and none exists for making part of our civil justice system inherently unfair. That is the opinion of the specialist lawyers with deep knowledge of this type of proceedings and with no axe to grind at all.
What, then, is behind this solution without a problem? Over the past few months we have been offered a series of spurious justifications for this draconian Bill, all of them without any evidence to support them that stands up to scrutiny. I put it to the House that this Bill has nothing to do with protecting national security or preventing the CIA from withholding intelligence from our agencies because they do not trust our courts, or with saving the Government from having to settle civil cases for large sums because they cannot use sensitive data to defend themselves. All these reasons and others have been advanced at various times with little or no evidence to support them.
I put it to noble Lords that the real problem that this Bill is designed to solve is the justified embarrassment that the security agencies suffered when a recent civil case exposed their involvement in rendition and torture. In that case, the previous Government sought to conceal from the courts seven paragraphs that admitted what the Americans did to the litigant while he was in their custody.
The judge’s view was that:
“Of itself, the treatment to which”,
the litigant,
“was subjected could never properly be described in a democracy as ‘a secret’ or an ‘intelligence secret’ or a ‘summary of classified intelligence’”.
This Bill might have prevented the exposure of this wrongdoing and it may do so in the future if we pass it without major amendments.
Lord Lester of Herne Hill
I am sorry to interrupt my noble friend but that is not quite right. The previous Government attempted to provide that information to the United States Military Commissions, but were thwarted from doing so by the American intelligence authorities. What the British Government sought to do was entirely honourable and they did not seek to conceal it from our own court. I thought I should just place that on the record.
Lord Strasburger
I thank my noble friend for that. The Lord Chancellor has indulged in plenty of comforting rhetoric in an attempt to assuage the serious concerns that many people wiser than I have about this Bill. The problem is that there is a yawning chasm between his words and those in the Bill. For example, he assures us that the judge will decide whether CMP will be used but the Bill as currently worded makes clear that the judge’s hands will be tied and will have little option but to grant the Minister’s request for CMP, even if he or she believes that the case could best be tried using PII rules. The judge will not be able to adjudicate between the competing arguments of justice and national security.
As it currently stands, this Bill is a toolkit for cover-ups. As such it is a threat to our democracy and we have a lot of work to do to fix its serious shortcomings. I hope that my noble and learned friend the Minister will listen to the strong misgivings about this Bill around the House, among civil liberties campaigners and, particularly, the special advocates who have a much more balanced and independent view of these matters than the politicians and the security agencies.
I will listen carefully to the Minister’s response today and in Committee. I hope that he is able to give me comfort to support a much-improved version of the Bill in the future but there is a long way to go.
Lord Faulks
My Lords, this Bill was always likely to be controversial and contributions so far have shown that that is the case. Part 2 has been a particular focus of attention. It is concerned with restricting the disclosure of sensitive material in court proceedings. A number of noble Lords have spoken who are not lawyers, and I entirely agree that the issues that this Bill throws up are not solely the possession of lawyers. I am, however, an advocate and as such am instinctively opposed to any erosion of the principle of natural or open justice. Evidence should be heard and read by litigants and their representatives, and their comments and reactions to it are a fundamental part of what we recognise to be a fair trial, whether that trial is in criminal or civil proceedings.
The Bill involves the extension of CMPs to include civil proceedings. It should be emphasised that CMPs are not of themselves a novelty and exist in a number of different contexts, as the Minister has described. The extension was presaged by the Green Paper, and the Government’s proposals have been much commented on in the media and by various interested parties. The Government have acknowledged the contribution of those who commented on the proposals, not least the JCHR, of which I am now a member, although I claim no credit for that contribution as I was not a member at the material time. I am conscious of some of my distinguished predecessors on that committee. Contributors to the debate even included the Daily Mail, a newspaper that normally causes the party opposite to reach for their collective smelling salts.
In response to representations, the Government have made some important modifications to their original proposals. The most important seems to be that the CMPs will be appropriate only in the disclosure of evidence that would be,
“damaging to the interests of national security”,
rather than in criminal proceedings or disclosure that might damage international relations. I share with the noble Marquess, Lord Lothian, some little confusion as to why inquests fall into a separate category. As the noble Lord, Lord Lester, has said, this may be to do with the jurisprudence in Strasbourg about Article 2 and its expanded approach. The questioning in inquests may be rather different than in civil proceedings or judicial review proceedings, or the Government, as a reasonable matter of political expediency, may have responded to public disquiet.
Be that as it may, there appear to me to be certain relevant questions about what remains of CMPs. Have the Government made their case for an extension of CMPs, and if so are there sufficient safeguards in the Bill to minimise any risk to justice? The problem with the current system is that the Government are between a rock and a hard place. They may take the view that in disclosing material that will damage the interests of national security, but using PII if the application is successful, they may not be able to defend proceedings without what may be crucial evidence in their favour. The result may be that there is an inappropriate compromise of a civil claim.
The noble Lord, Lord Thomas, says that the Government are apparently in favour of the settlement of proceedings. This is not what I detect from the anxiety behind this Bill; they are in fact against inappropriate settlements where evidence has not been adduced. On the other hand, if the PII application is unsuccessful and the judge in performing the relevant balancing exercise decides to order the disclosure of material, the Government, consistent with their assessment of the potential damage in disclosure, will be placed in a position where they may have to settle a claim, to which there is if not an actual then at least a potential answer. This cannot be satisfactory and is of itself damaging to the interests of justice. The Government are entitled to justice, too.
The noble Lord, Lord Pannick, says quite rightly that in the course of looking at the doctrine of PII, judges have developed a range of responses to mitigate the stark choice that is sometimes presented to the Government. The ingenuity of judges includes the redaction of material and anonymisation and other procedures, but sometimes—this has been the case in the past and will be so again—the Government are left with that stark choice, which I understand is the philosophy behind this part of the Bill.
I am naturally concerned by the comments about CMPs that have been made by the special advocates, some of whom I know well. Many of their points seem valid; in particular, I am unsure how a satisfactory assessment of prospects of success can be made in the absence of critical evidence. How, too, can cases settle on the basis of a proper assessment of likely outcome—and here I acknowledge the point made appropriately by the noble Lord, Lord Thomas? How is Part 36 of the Civil Procedure Rules to operate? I am also very sympathetic to their very understandable regard for their clients’ interests, which they feel may be compromised by the lack of a free flow of communication between the special advocates and open advocates and by the risk that some relevant piece of information may remain unchallenged because of this lack of communication.
I am much less convinced, however, by the suggestion that PII is working well. I am entirely sure, as the noble Lord, Lord Macdonald, pointed out, that judges are performing the balancing exercises wisely, but for the reasons I have given the operation of PII may on occasion simply fail to deliver a just decision.
The use of CMPs will inevitably be what has been described by the independent reviewer as a second-best solution. However, it is significant that David Anderson QC, in the course of his providing memoranda to the JCHR, was convinced that there was a need to have a CMP available as an option in civil cases, albeit that it might not need to be exercised anything other than very occasionally, and I agree.
Special advocates, whatever their reservations about these procedures, are known to be tenacious in the defence of their clients and in challenging evidence adduced in CMPs. It must be recorded that a number of distinguished judges, not least the noble and learned Lord, Lord Woolf, who is not in his place, have said that CMPs are capable of producing justice and are consistent with it. Other judges, such as the much quoted noble and learned Lord, Lord Kerr, have observed that the lack of informed challenge, based on instructions, may leave the judge with a significant disadvantage in assessing the cogency of relevant evidence.
While in theory that is undoubtedly right, experience of our judiciary tells me that if evidence is adduced under CMPs, judges are likely to be particular rigorous in assessing its value. For example, if what is adduced amounts to double hearsay from a dubious source, that evidence, which could be unchallenged, is unlikely to be of much persuasive value. I simply do not recognise the scenario described by the noble Lord, Lord Strasburger, whereby little bits and fragments of assertion are put forward and expected to be relied upon by judges. It seems to me that if the Secretary of State elects to invoke CMPs, he or she is likely to do so only when the evidence is of real cogency. Let us not forget that the Government have lost cases after CMPs.
It is also worth observing that the extension of CMPs relates to civil proceedings involving claims for damages or judicial review, rather than to criminal proceedings, as we were reminded by the noble Lord, Lord Butler of Brockwell. While all cases should be subject to a full and preferably open hearing, the extension provided by this legislation is not concerned with criminal charges with a potential for loss of liberty.
The relative roles of the judge and the Secretary of State were much discussed in the responses to the Green Paper. It is for the Secretary of State to make the application, and the court must then make an appropriate declaration. However, I agree with the noble and learned Lord, Lord Mackay of Clashfern, that under Clause 6(2) one would expect the judge to try and devise strategies and to be interventionist in order to have a mode of trial that can, if possible, avoid CMPs, which are perhaps a last resort—but a necessary last resort.
It is said that Clause 6(5), which provides that the Secretary of State must first consider making a claim for PII, is of very little force. However, I would expect the Secretary of State to need to satisfy a judge that there had been at least consideration of such an option, and an explanation provided as to why PII was not used. The rules of court that are to be made pursuant to Clause 7 require a judge to consider providing a summary or gist of the material that is not damaging, within the definition of the Bill. Presumably, it would enable the claimant to provide some comments on the relevant evidence. This would need to be carefully done, but it would provide a potentially important safeguard.
The role of the Human Rights Act is also of importance. Article 6—the right to a fair trial—is specifically referred to in the Bill and provides another safeguard. In fact, we had well established principles of fair and open justice long before the Human Rights Act came into force. However, if one is to view these provisions in Human Rights Act terms, it should be remembered that Article 2 of the convention places an obligation on the Government, as a public authority, to protect the life of their citizens. In focusing on litigants, we should not forget the rest of the population, whose well-being may well be jeopardised by the disclosure of sensitive material.
Such concerns also colour my approach to the removal of the Norwich Pharmacal remedy in relation to sensitive material. It is vital that we protect the sources of our intelligence and that we maintain the confidence of our allies who provide us with that intelligence. If there was any doubt about that, it was confirmed by the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian. This remedy is concerned with cases in which foreign litigants want to see material that we hold innocently and does not affect cases where the Government are alleged to have been involved in wrongdoing, although I do not particularly like the expression “legal tourism” in this context. While I understand why the Government have chosen a wide definition of sensitive material, I invite the Minister to explain why the definition needs to be quite as wide as it is in the Bill. I do not suppose that it is intended to deny access to what most people might regard as non-sensitive material, but the Bill at least has the potential to allow such an approach.
We have heard a lucid analysis of the Binyam Mohamed case by the noble Lord, Lord Lester; and other noble Lords, including the noble Lord, Lord Pannick, referred to it. It can be seen from an examination of that case law that the courts in fact showed a considerable degree of deference to the security services, and some of the concerns expressed by other countries may be rather lacking in justification. However, it has to be remembered that the Norwich Pharmacal power is unqualified. The Government do not have the choice that they have in relation to the CMPs, and if ordered to produce this material they have to comply with the order.
Whether or not the fears of the United States and other countries are unfounded, it is critical for the safety of our country in these dangerous times that we do not jeopardise that relationship. I appreciate that the Government are placed in a very delicate dilemma, and it seems that we should have profound sympathy with their response, albeit that modifications may be made in the rigour of that test, which will more satisfactorily balance the respective interests.
This Bill will be thoroughly scrutinised by your Lordships’ House—
Lord Lester of Herne Hill
My noble friend may not be aware of the fact that in the Binyam Mohamed case, after the Norwich Pharmacal order was made, the court reserved the question of public interest immunity, but it never had to be decided because he was then released. It would not have been all or nothing. It is quite clear from the judgments that there would have been something. The courts, having decided Norwich Pharmacal, could then have decided on PII. I am not sure whether that is appreciated.
Lord Faulks
I entirely appreciate that. It is one reason why I suggest that there may be some modification to the test that we may ultimately arrive at, after having considered this matter in Committee. This Bill will be thoroughly scrutinised in Committee by your Lordships’ House, and it is clearly right that it should be. I hope and trust that we can avoid hackneyed references to Kafka and the Star Chamber. I am sorry that in an otherwise lucid speech by the noble Lord, Lord Beecham, he did not resist that temptation. The Government have a duty to protect us. This Bill is situated at the junction between that duty and the need to protect civil liberties and the integrity of the trial process. Please let us not forget the people of this country and those in the security services who labour silently on our behalf to protect them, in the course of our zeal to trumpet our commitment to the rights of litigants.
Baroness Hamwee
My Lords, it is not unusual at this stage of a debate to think that everything has been said and that everyone has said it. Indeed, on this occasion the people who have said it are those who know about the subject. There is one exception, because there is one Back-Bench contribution still to be made. I am sure that what I have said will apply to that contribution as well. Your Lordships are too polite to say, “Well sit down then”. However, like some of us, I acknowledge that I speak from a degree of ignorance and, some might say, naivety. The noble Lord, Lord Hodgson, described his feelings as apprehension. I would say that apprehension does not begin to describe it.
Part 1, which deals with the oversight of intelligence and security activities, had been eclipsed by Part 2 in the comments that we received before this debate. It is interesting, and encouraging, that more attention has been given to Part 1 than I expected. It is very significant, not least because we want to avoid the litigation which may be the subject of Part 2. However, just as the question about Part 2 is whether the Bill has drawn back enough from what was floated in the Green Paper, on Part 1 the question is whether the provisions go far enough to meet concerns to achieve all that could be achieved, or are we in danger of missing an opportunity? That would be a pity given the calls, to which reference has been made, for strengthening the powers of the Intelligence and Security Committee and for making changes to its composition, its staffing and its remit to support that strengthening.
There are a lot of related terms for the functions of such a committee: oversight, examination, supervision and scrutiny. “Oversight” is in the heading of Part 1. I wonder whether that is the right word. The functions described are essentially retrospective, and the ability to put material in the public domain—which, to me, is fundamental and possibly the main part needing scrutiny—is constrained. Indeed, the committee itself may not always be able to access key information. However, to be positive, I note that the functions under Clause 2 adding the operational function, which are new in comparison with the 1994 Act, are there and that is welcome.
Operational matters which are not current are of significant national interest. We might want to unpack what that means later. They also have to be consistent with the memorandum of understanding which Clause 2 provides for. I ask the Minister whether we are able to see a draft of the memorandum of understanding so that we can debate it in context, or perhaps a draft or framework or some clues about the principles referred to in Clause 2.
The new status of the committee is important but, given that its reporting function is subject to prime ministerial edit—other noble Lords have said much the same thing—it still reads as a creature of the Executive. Perceptions are important and it is important to demonstrate independence. I note that what is defined as sensitive information, subject to restrictions on disclosure, is to cover not only the three agencies but also,
“any part of a government department, or any part of Her Majesty’s forces, which is engaged in intelligence or security activities”.
I accept, as the noble Marquess, Lord Lothian, pointed out, that national security is narrower than public interest.
The role played by government departments in the intelligence landscape is an issue and I do not think that that is an irrelevant comment. For some time, I have been wondering whether the Home Office, for instance, would have a different culture if the Office for Security and Counter-Terrorism were not embedded in it; they are in the same building. Perhaps I may indulge in a small flight of fancy: if the Home Office building were used, for instance, by civil liberties campaign groups, there would be a very different sort of conversation around the water cooler.
One of the difficulties is that, by definition, intelligence is not evidence, as has been said by many noble Lords. The ISC cannot substitute for the judicial process. We have the Investigatory Powers Tribunal investigating individual complaints. Is that worth exploring? I want this committee to be quite ambitious, so is it worth exploring whether it should have some sort of role in dealing with complaints and perhaps even with inspections? I also wonder aloud whether the committee might have a role—perhaps I am about to be struck by a thunderbolt—in confirmatory hearings of senior appointments.
We need to find out how to do these things without jeopardising what is sensitive within the definition. We know that the intelligence services are understandably sensitive about sensitive material. Even if there is too much such material to make redaction practicable, some such role might provide some reassurances.
In summary, I am searching for ways for the ISC to use procedures, not to be hamstrung by them. Others have spoken in detail on Part 2 and I acknowledge how far the Bill is from the Green Paper—and it was a Green Paper. If it is possible for something to enter one’s DNA during one’s late teens and early 20s, the fact that a lawyer should be able to take full instructions from his client worked its way into my DNA as I learnt my profession. It is not a matter of a client giving a monologue, but there has to be a dialogue with questions to the client and a discussion of what will or might be said against him. The noble Lord, Lord Judd, said that the special advocates made it clear that the procedures were alien to their training. Evidence is not evidence unless it is the subject of test and challenge. Almost all speakers have referred to that. I use the term “unease” as a description for my response to what is proposed now. I suspect that no one in this Chamber or who has been involved with the Bill is complacent about it.
Is it possible to loosen restrictions on special advocates to security-clear “normal” lawyers, if there is such a thing? I think that my noble friend Lady Williams suggested that. My noble friend Lord Thomas of Gresford shared ideas about changes in the process. I share a concern that closed material procedure will become the default mechanism—it will become normalised. Like my noble friend Lord Macdonald, I acknowledge that there is a small number of cases where some such procedure may be required to achieve justice. Some call CMP “secret justice”, but that is not a term that I like, because we and the public need to be convinced that it is justice as well as secret.
I noted the comments that the judiciary is deferential to the Government on security matters. I suspect that the Government may not see it that way, given some of the comments that we have heard about the judiciary over the years. The noble Lord, Lord Faulks, referred to a particular case. I do not share that reading of deference. Instead, I hope that I see the integrity to which my noble friend Lady Williams referred.
Because of that element of my DNA, I was keen during the passage of the recent Protection of Freedoms Bill to pick up an issue that was highlighted by the Bar Council, and I will mention it briefly today because I hope to return to it in Committee. I refer to the issue of legal professional privilege, which ought to sit easily within the Bill. I hope to use the Committee stage to pursue how to prevent the use of RIPA powers of surveillance, covert human intelligence sources, interception of communication and the acquisition of communications data to target legally privileged information while permitting it to be accessed when a lawyer/client relationship is abused for criminal purposes. One cannot do one’s best for a client if he does not have confidence that what he says is privileged and he edits his story. The noble Lord, Lord Henley, who is to respond to the debate, will be familiar with that. He was very helpful in meeting the Bar Council during the Protection of Freedoms Bill and I will trouble him again.
Last week, I had the privilege of judging some awards for good scrutiny. There are many dedicated and imaginative scrutineers out in the rest of the world. It reminded me that some words are not jargon. They are very important terms and they will never go out of fashion. Justice is obviously one and so, too, are transparency and accountability.
Baroness Manningham-Buller
My Lords, I declare an interest. I spent 33 years in the Security Service, but I also have a strong interest in the rule of law. I retired more than five years ago and the difficulties of intelligence and the civil courts, which is what we are talking about rather than the criminal courts, and the problem of Norwich Pharmacal have largely arisen since I retired.
Some important points have been made in today’s Second Reading, with many of which I sympathise. When we come to Committee, no doubt there will be a number of amendments that will seek to refine and improve the Bill. At this stage, I want to talk about the three main themes of the Bill in the order in which they come. I start with the Intelligence and Security Committee.
In the 1980s, although the noble Lord, Lord Butler, said that the intelligence and security agencies were anxious about such scrutiny, I can remember many in my service arguing for it. We felt that some parliamentary oversight—what those words mean, I agree with the noble Baroness, Lady Hamwee, is not entirely clear—was necessary. We thought that there was a democratic deficit. We found little support from the Prime Minister of the day or from the Government for that sort of committee. Not until many years later, in 1994, did it come into existence.
As the noble Lord, Lord Campbell-Savours, says, what we are seeing here is evolutionary not radical change. It is worth saying that my predecessors, I believe my successor and I have over the years ignored the narrow rubric of the Act, which says that the committee should confine itself to looking at matters of “policy, expenditure and administration”. This was always risible because all of those things are intimately connected with the operations of the service. Although we did not do so to begin with, because confidence needed to build up, certainly over the years we have sought to be very open with the committee and, looking for example at the 7/7 report that has extensive details of operations, we have been so.
I never refused to answer a question of the committee. That may have been because the committee itself was quite sensitive in not asking me, for example, the identity of my most important agent in the IRA or al-Qaeda because the committee itself understood that, in order to fulfil its function, it did not need this sort of really sensitive intelligence. The committee will evolve further. From my own view, I do not see a problem with it becoming a Select Committee. I am very interested and flattered that the noble Lord, Lord Campbell-Savours, thinks that he would get more truth from the head of the committee than the Ministers, on which I could not possibly comment. I end this bit by saying that it is very much in the interests of the security and intelligence agencies that parliamentary oversight is as thorough and convincing as possible. This is why, when my name was put forward to be on the committee, I said I could not possibly do it because the committee would be looking at things when I was director general.
This brings me on to the closed material proceedings. I understand the very real concern expressed in this House and outside that what the Government are proposing in resorting to secret justice—probably itself a contradiction in terms—is to conceal wrongdoing and to protect what should rightly be exposed. From my reading of it—and I accept that a number of bits need amendment—the Bill tries to address serious dilemma in very few cases, though we can argue in Committee how well.
I am interested that the noble Lord, Lord Macdonald, and the noble Baronesses, Lady O’Loan and Lady Hamwee—and probably many others earlier in the debate, I cannot remember—acknowledge that there may be some small, narrow band of cases where the dilemma on how to deliver justice is to bring highly relevant but sensitive material that would be excluded by PII into court and not keep it out. It is surely fair to claimants and to defendants in civil cases that such material is put in. The judge will decide whether it will be a CMP procedure.
Currently, a number of serious distortions in small cases seem to occur. Allegations become facts because they cannot be defended. Settlements presume guilt, even when the Government admit no liability. Perhaps almost more importantly, claimants may get financial satisfaction, but only that. Whether through these proposals or others, we need a way that is safe to test the allegations, some of which, as the noble Lord, Lord Pannick, said, are extremely serious and of the gravest nature against the Government and agencies like my own. These need to be properly investigated by the court and a determination made, which, I suggest, cannot happen without secret material.
This brings me to Norwich Pharmacal, which is new to me. I am interested to hear from present members of the parliamentary committee that it is already seriously damaging the exchange of intelligence, perhaps from a false perception of what the High Court determined.
The control principle is a pretty fundamental one. If we threaten and undermine it, we will be the losers. There is an exchange of intelligence around the world, not just with the Americans. All our European friends produce hundreds of pieces of information a day. It comes from Australia, New Zealand and Belgium—not much from Belgium, but a bit. We receive lots from France, from Germany, from Spain and from friends in the Middle East. We receive intelligence from countries and states that are not friends, and whose intelligence exchange has to be carefully handled. There is an enormous amount of intelligence.
The sources of foreign intelligence, just the same as those of our intelligence, are often fragile. Human sources can be exposed and killed. They have Article 1 rights to life just the same as other people. Technical sources can be quickly compromised and rendered useless. Other countries will not share with us if doing so jeopardises, or they judge it to jeopardise, their sources of intelligence. Who can blame them? We would do the same. We will not always or, indeed, even usually know or be able to judge the risk to their sources. Of course they make a judgment before handing us the intelligence, but if the judgment is that that would risk exposure, they will not hand it over. We need that intelligence when faced with a globalised threat.
I had further points I wanted to make in my speech, but many of them have already been covered by other speakers. I shall therefore end by saying that I have heard a lot in the debate about the conflict between liberty and security. Fundamentally, I feel that these are not concepts that should be in conflict. Security underpins liberty and, as I said in my Reith lectures, without security there is no liberty. I should say that I agree strongly with the comments of the noble Baroness, Lady Williams of Crosby, on that. When we reach the Committee stage, I hope that it is within our capability to pass an Act that damages neither liberty nor security and delivers justice that, while it is not open and therefore definitely second best, is better than the absence of justice in a very narrow range of cases where the use of highly sensitive material in court is necessary.
Baroness Smith of Basildon
My Lords, we have had an interesting and informative debate and I hope that the Minister is grateful for the detailed and useful comments that have been made. They are an indication of the kind of debate we will have in Committee, which I think will be very constructive. Not only has this debate been worthwhile and informative, but I was struck by where the areas of agreement are, where the areas of disagreement and concern are, and where there is broad agreement on those areas of disagreement and concern, if the noble Lord follows my logic.
I suppose that I have to declare a non-interest in that I am one of those who the noble Lord, Lord, Lord Hodgson, referred to as an “outsider” and who my noble friend Lord Judd called a “flat-footed layman”. However, I should say that in the debate today the majority of speakers were non-lawyers—only narrowly, but we made the majority. I would argue that while it is a legal debate and there are strong legal implications or stages, it is not just a legal debate. As the Minister said when he introduced the debate, these are complex issues that go to the heart of our democracy and our security, so the Government have to find a correct balance that takes into account our national security while not losing sight of individual rights. As many noble Lords indicated, there are times when finding that correct balance is challenging.
I was interested in the analogy drawn by the noble Baroness, Lady Berridge, of the statue of Lady Justice and her seven scales. I know she meant it to be an amusing comment, but there is a lot in it which reflects how complex and difficult these things are. She made quite a serious point in that regard. What is clear is that the level of expertise available in your Lordships’ House to contribute to this debate will try to seek the consensus that the Government originally referred to. It might be that one of the reasons the Government started the Bill in your Lordships’ House was to make use of that knowledge, experience and expertise.
If I may digress slightly, noble Lords may recall that in making the case for an elected House with 15-year terms, the Deputy Prime Minister Nick Clegg described your Lordships’ House as having a “veneer of expertise”. That is hardly the case today. We have not seen a veneer of expertise; we have seen very strong expertise, not just from the lawyers that I have mentioned and senior members of the Bar and the judiciary, but members and former members of the Intelligence and Security Committee and the Constitution Committee, those with professional experience of security agencies, those with experience of government, former Ministers, journalists and those with a record of standing up for the protection of civil liberties and human rights. I think that the Deputy Prime Minister also said that the knowledge in the Lords was 40 years out of date. The collective knowledge in this House goes back well beyond 40 years but it is also up-to-date, and that will be very valuable as we progress to Committee.
I do not want to dwell in any detail on the Ministry of Justice issues that my noble friend Lord Beecham has already referred to, but will focus mainly—although not exclusively—on Part 1 of the Bill regarding the oversight of intelligence and security activities. The noble Lord, Lord Butler of Brockwell, referred to the “modernisation” of the committee. I always baulk slightly at the word modernisation because it often means technology and doing things differently for the sake of it. But I think he went on to describe the kind of progress that he was seeking and perhaps the words “progressive reform” might be a better way of looking at this.
The Bill seeks to reform the ISC by giving it the formal statutory function of overseeing the wider intelligence community, not just the agencies but including counterterrorism and the Home Office. It provides for retrospective oversight of operational activities, as happened once before with the 7/7 report that we have heard about. It also provides the power to require information from agency heads, with a veto only by the Secretary of State—or Minister if it is the Cabinet Office—and that Parliament will elect the ISC from a list put forward by the PM after consultation with the Leader of the Opposition. The proposal is that the chair should be chosen by members of the ISC, not the Prime Minister.
In the main, we support what are sensible proposals to strengthen the ISC’s power of scrutiny, which stem, I understand, from the ISC’s own report, published last summer. There is widespread support for improved oversight and scrutiny, but a number of noble Lords, including my noble friend Lord Campbell-Savours and the noble Baroness, Lady Manningham-Buller, asked whether these proposals go far enough and whether there was scope to strengthen them further. It would be helpful to consider a number of additional items to improve the scrutiny and oversight; for example, for the ISC or its chair to have a greater ability to view individual cases, such as control orders, or for the chair to be a senior opposition MP.
The Government should also consider authorising, where appropriate, some of the committee’s hearings to be held in public in order to strengthen public confidence in the committee. In the same vein, we believe it would be helpful and would benefit public accountability for the agency heads to come before the committee in public once a year, just as they do in the US Congress. Furthermore, we want to give further scrutiny in Committee to the ministerial veto over the release of information. Specifically, we want to probe the Government’s definition of “sensitive information”. I will come back to that because it was raised by several noble Lords, but we want to probe what the Government mean by the definition in sub-paragraph (3)(b) of paragraph 3 of Schedule 1, which refers to,
“information of such a nature that, if the Minister were requested to produce it before a Departmental Select Committee of the House of Commons, the Minister would consider (on grounds which were not limited to national security) it proper not to do so”.
I am not clear why this is necessary over and above the test of national security and sensitive information.
As the Bill progresses, we would also be interested to hear the justification for Clause 3(4). It allows the Prime Minister to order the exclusion of part of the committee’s report to Parliament if the Prime Minister considers, after consultation with the ISC, that it is prejudicial to the discharge of the functions of any of the agencies.
I move on to Part 2. Clauses 13 and 14 relate to the Norwich Pharmacal jurisdiction. This has been referred to today by a number of noble Lords. In discussing its implications, there are two issues: first, whether the Government have correctly identified the problem and, secondly, whether they have correctly identified the solution. As we have heard, the Norwich Pharmacal case was an intellectual property rights case in 1974. It set the precedent of residual disclosure jurisdiction, whereby the courts can order disclosure of information by a third party—neither the plaintiff nor the defendant—if the following conditions pertain: the information is required in order to bring action against an alleged wrongdoer; the third party against whom the order is sought is “mixed up”, however innocently, in the wrongdoing; and the third party is in a position to provide the information sought.
Clearly, in 1974, no-one envisaged the extension of this case to intelligence—that was never the intention—but the Binyam Mohamed case in 2010, mentioned already, highlighted the possibility of application of the principle to the disclosure of foreign intelligence. I understand that there were other cases as well. According to the Government’s independent reviewer of terrorism legislation, David Anderson QC, this case also prompted concerns among our intelligence partners that the UK Government could no longer guarantee the control principle, which is that intelligence shared with us would not be published by our courts. There is an interesting quote from David Anderson QC, who says:
“The realisation that secret US material could in principle be ordered to be disclosed by an English court, notwithstanding the control principle, and that the Government had no power to prevent this from happening, appears to have come as a genuine shock to many influential people in America”.
I must say that until the noble Baroness, Lady Manningham-Buller, spoke, I was quite disappointed that so much of the debate centred around intelligence sharing and our relationship with the Americans. As the noble Baroness pointed out, there are many other countries with which we share information and which are valued intelligence partners.
We appreciate that the control principle is a central understanding of our intelligence-sharing relationships with other countries and it is therefore essential to provide the necessary assurances to our international partners that this will be safeguarded. We must also recognise that there are profound implications of Norwich Pharmacal in terms of jeopardising foreign intelligence sharing, and the evidence seen by David Anderson QC appears to justify these concerns. Therefore, any solution must provide adequate guarantees to our foreign intelligence partners that intelligence shared will not be forcibly disclosed.
However, as has been rightly indicated by several noble Lords in the course of this debate, the key question here is whether the Government’s proposals to resolve this problem, in the words of David Anderson QC again, provide “proportionate limitations” to the Norwich Pharmacal precedent. We can support the direction of the Government’s policy, but we want to work with them to get the detailed definition of the clauses right. We will wish to probe some of our concerns around, for example, the Government’s definition of sensitive information, and specifically how tightly this definition is drawn. The first point of principle is whether it does the job that the Government say it does—that is, whether it provides the necessary assurances for our foreign intelligence partners. However, equally important is whether it is drawn more widely than is necessary for the specific purpose of safeguarding that control principle. The noble and learned Lord, Lord Mackay of Clashfern, and the noble Lord, Lord Pannick, both queried the extent of the definition of sensitive information, as did the noble Lord, Lord Macdonald. We want to probe the Government further on exactly what they mean in their definition of sensitive information. We also want to know what they mean by,
“information relating to an intelligence service”,
and the justification for that inclusion as part of the definition of sensitive material.
In relation to the public interest test under Clause 13(3)(e) of the definition, we will want to probe further what the Government mean in Clause 13(5)(b) by the interests of international relations. The noble Lords, Lord Dubs and Lord Macdonald, also referred to this. The clause refers to the damage,
“to the interest of the international relations of the United Kingdom”.
I can certainly understand the need to act in the interests of national security and appreciate the importance of international relations, but we will need to be assured that this will be in the public interest as defined by the Bill and not for reasons of political expediency on the part of any Government. As the noble Marquess, Lord Lothian, said, something cannot be excluded merely because it is embarrassing to government.
I do not recall mention in today’s debate of the fact that the proposals seem to extend wider than simply information derived from foreign agencies but also cover information originating from our own agencies that relates to foreign countries. The justification for that cannot be on the basis of preserving the control principle, because it does not relate to information shared with us by our foreign partners. Therefore, we would be interested to hear the Government’s explanation and justification for their intention to extend the scope of the Bill in this way.
The noble Lord, Lord Pannick, referred to open, natural justice being a constitutional principle but not sacrosanct, but he made it clear, taking up the point made by my noble friend Lord Beecham in his introduction, that we need far more information from the Government on whether this is justified. Like the noble Lord, Lord Lester of Herne Hill, we are not in principle against closed material procedures, but their use here would require a very high bar. The Government have yet to provide sufficient information to reach that bar. The noble Lords, Lord Pannick and Lord Macdonald, said that the case had not yet been made and both gave very interesting examples of how PII could be used in some enhanced form to create what the Government are seeking. If the case for CMPs relies on the 27 cases that the Government have spoken about, it is clear that a greater examination of those cases is necessary. That will require a far longer, more in-depth study by the independent reviewer or the ISC, because far more information on those cases is needed.
This has been a useful and interesting debate which has given us good material for the next stage of the Bill. If the objective of your Lordships’ House is to improve the legislation, the experience that was on offer in today’s debate and the information gained from it will enable us to do that.
The Minister of State, Home Office (Lord Henley)
My Lords, this has been an interesting and long debate. It seems quite a while since we started at 3 pm. We have got through some 22 speakers and I find myself being the 23rd. It is a short Bill, of some 16 clauses, but it raises some pretty big issues and has attracted a very distinguished congregation—if I may put it in those terms—to speak on it.
There has been some comment about the number of lawyers here today, and I was very grateful to the noble Lord, Lord Dubs, for being the first to point out—echoed by others—that this is not just a legal Bill and not just for the lawyers. I was glad that the noble Baroness, Lady Smith, having done a quick count, pointed out that the non-lawyers are in the majority in this debate, which is probably as it should be. However, as the noble Baroness said, it has attracted a lot of other distinguished speakers. We are very grateful for the presence of all those who are members of the JCHR and the Constitution Committee; all those who, like my noble friend Lord Lothian and the noble Lord, Lord Butler, are currently members of the Intelligence and Security Committee; and former members, self-described as part of the awkward squad, in the form of the noble Lord, Lord Campbell-Savours.
We are grateful for all that, and I hope that, as part of this debate and a fairly lengthy Committee stage and other stages, we will be able to go some way towards achieving the consensus that the noble Lord, Lord Lester, was looking for. It will not be possible to get consensus on every item, because I think that there are some fairly deeply held views that cannot be brought together, but I am sure that there are many things on which we will be able to get agreement. I am sure, too, that we will make every effort to ensure that the best possible Bill leaves this House to go on to another place. As my noble friend Lord Faulks, stressed, we need a very thorough Committee and later stages.
As I said, it is a short Bill that raises some extremely big issues. My noble and learned friend Lord Wallace took it in its proper order. He dealt first with Part 1 and then with Part 2 on the restrictions on the disclosure of sensitive material. If noble Lords will bear with me, I prefer to take it the other way round, because there has been far more talk in the debate about Part 2 than Part 1, but I will get to Part 1 in due course. I must also say in my opening remarks that it will obviously be very difficult for me to answer all the points put this afternoon in the necessarily shortish speech that I have to make, but I shall try to cover some of the broad themes. I hope that my noble and learned friend and I will be able to write to noble Lords and copy those letters to others as appropriate after the debate and ensure that we get those letters out before Committee, which, I understand, will be in the week commencing 9 July, so we have a little time to do that.
I begin with Part 2, with CMPs and Norwich Pharmacal. That has obviously excited most of the debate. Like my noble and learned friend the Advocate-General, I believe that the case is made to change how we deal with sensitive information in our courts. The novel application of Norwich Pharmacal jurisdiction to national security information has had consequences with key allies, as many noble Lords mentioned—I think the first was the noble Lord, Lord Butler. It is not just America, as some have implied, it is all our key allies. However, the provisions in the Bill are not driven solely by our intelligence partners. Secret intelligence generated by the UK’s own security and intelligence agencies could be liable to be disclosed as well. Parliament has recognised that the work of the security and intelligence agencies is of a special type. Information is core to their work and special arrangements already cover how they use and disclose it.
Although we all aspire to be able to hear every court case in open court with all relevant information disclosed to all parties in the case, I think that most noble Lords have accepted that there will be times when some of that information cannot be disclosed without damaging the public interest. The question we must put to ourselves—this will take some time in the course of our debate in Committee—is how we deal with that situation. Settling cases or asking the court to strike them out as untriable, may mean that claims, often making extremely serious allegations, can go unexamined and we are unable to get to the truth of what happened. I do not believe that that is justice.
PII has been another approach. It enables cases to go ahead with fully open proceedings but at the expense of excluding relevant and sensitive material from the case. That can work in some cases, but there are times when it does not—for example, where a case is saturated in sensitive material, as David Anderson QC put it. A successful PII application can render a case untriable or leave the Government unable to defend themselves without damaging national security. That can be unfair for claimants or for the Government.
CMPs have been the solution to that problem and they have worked successfully in a number of contexts. The noble Lord, Lord Butler, said that they were the least worst option. My noble friend Lord Lothian described them as being, on balance, about right. Openness is sacrificed for part of the proceedings, and this enables all relevant material, including national security sensitive material, to be taken into account by the court, but it is done in such a way that the proceedings are fair and the interests of any party excluded are properly represented. The Supreme Court has stated that it is for Parliament to decide what the procedures should be for dealing with such cases. The Government produced the Green Paper and we listened to the views. Again, many noble Lords, I think particularly my noble friends on the Liberal Democrat Benches, have accepted that we listened to the views and have moved forward a great deal from what was in the Green Paper and put forward for public consultation. We have brought forward the amended proposals in this Bill.
Noble Lords have highlighted a number of key issues in this debate and those discussions that we will have during subsequent stages of the Bill will obviously let us explore whether the Government have the balance right in these important matters. Perhaps I might deal with one or two of the points that have been raised that deserve some response at this stage, if I can find the right bits of paper—they are all here but in a strange order.
First, I wanted to cover the points made about special advocates and the recent paper that they put to the Joint Committee on Human Rights. I have seen their evidence, which I believe was published last week. The special advocates are reiterating arguments which they have made and, in effect, have had rejected by the courts. To some extent, special advocates do themselves a disservice. They are extremely effective, particularly in arguing in court that more information should be disclosed, and have helped to win cases by challenging closed evidence on occasions. The best way of dealing with this would be to quote what the noble and learned Lord, Lord Woolf, said in M v Secretary of State for the Home Department. He stated:
“Having read the transcripts, we are impressed by the openness and fairness with which the issues in the closed session were dealt with by those who were responsible for the evidence given before SIAC … We feel the case has additional importance because it does clearly demonstrate that, while the procedures which SIAC have to adopt are not ideal, it is possible by using special advocates to ensure that those detained can achieve justice and it is wrong therefore to undervalue the SIAC appeal process”.
I commend that to the special advocates and would suggest that they reflect on it.
I turn to the Binyam Mohamed case, which the noble Lord, Lord Lester, raised and has dealt with. He probably knows more about it than anyone else. On the information revealed in that case and whether it was in the public domain, my understanding is that the Court of Appeal ordered that seven paragraphs redacted from the Divisional Court’s judgment, which contained a summary of US intelligence reporting, should be restored to the judgment despite the existence of a PII certificate from the Foreign Secretary. The judge in the US did not put the contents, or a summary of the contents of the US intelligence reporting provided to the UK, into the public domain. The court made findings of fact based on allegations about Binyam Mohamed’s treatment that were not challenged by the United States Government.
I turn from that to the questions raised by the noble Baroness, Lady Ramsay, about the Bill’s provisions on intercept and how the evidence to support the conclusions of the Privy Council’s report on intercept would be used in criminal cases. The amendment contained in this Bill to Section 18 of RIPA lifts the prohibition in Section 17 of that Act so that intercept material can also be discussed in a CMP. This is in line both with other, existing statutory CMPs and with our desire to take account of all relevant information in CMPs.
As the noble Baroness knows, the Government are separately conducting an extensive and detailed review in order to assess the benefits, costs and risks of introducing intercept as evidence in criminal proceedings. This work continued under the guidance of the cross-party group of Privy Counsellors that she referred to. It will report in due course. I appreciate—I answered a question on this a few months ago—that we have been using that expression “in due course” for some time. However, I think that it underlines the very great difficulty of coming to a reasonable solution in this matter. I myself have changed my views this way, that way and again, and I know other far more distinguished people than me who have looked at this in much greater detail than I have who have also found it very difficult to come to a final decision. However, the process will continue. I was grateful that the noble Baroness referred to the work being done by the distinguished body of Privy Counsellors that is dealing with that.
The noble Lords, Lord Dubs and Lord Pannick, and other noble Lords, dealt with the whole question of whether it was for the courts to decide between PII or closed material proceedings. We are not convinced that the question of whether there should be a PII claim or a CMP should be left to the courts. It is a very important constitutional point that the Executive in the end have to be the guardian of the United Kingdom’s national security interests. Obviously, the courts will play an essential role in scrutinising the Government’s exercise of these functions. However, we believe that the question of whether to claim PII, and, accordingly, a CMP, should be left to the Home Secretary.
Similarly, the noble Lord, Lord Macdonald, suggested that a CMP should be held only after a full PII exercise, but we believe that it would be costly and illogical to go through a potentially lengthy PII process first. It may be obvious at the beginning, for example, that too much will be excluded. We understand that the Lords Constitution Committee did see the need for full PII; the report says that we can see force in the argument that it will sometimes be otiose to push the PII process to its completion before turning to a CMP.
Lord Pannick
Does the Minister at least accept that a CMP should be a last resort if, and only if, there are no effective means of addressing all relevant factors?
Lord Henley
That is a point that we will consider at much greater detail when the noble Lord puts down his amendments, which I am sure will appear. We will discuss that in Committee and no doubt at later stages. The point is that at the moment I am making our case and want to clear the arguments in detail. That is why I was rather loath to take too many interventions in this winding-up speech. I appreciate that my noble and learned friend took some seven interventions in opening, but on this occasion I am going to resist most of them, because the important point is that we discuss these matters in Committee, when we can deal with them in greater detail. The noble Lord will then be allowed to intervene to his heart’s content.
I see that my time is beginning to run up, and I want to get on. However, I shall say one more thing on this. I will deal with the question on sensitive information in Norwich Pharmacal clauses, which a number of noble Lords—my noble and learned friend, Lord Mackay, and the noble Lords, Lord Pannick and Lord Dubs, for example—all seemed to think was somewhat too wide. I must stress that this is the definition in the Norwich Pharmacal clauses; I appreciate that the noble Baroness also raised the definition of sensitive information for the Intelligence and Security Committee in Schedule 1, but that is obviously a different matter.
The fact is that virtually all material sought by Norwich Pharmacal applicants from the security and intelligence agencies is material the public disclosure of which would damage the public interest in safeguarding national security. Applicants do not seek open-source information or other unclassified material from agencies; they seek information specific to them that would be held by an agency and available only from that agency. If it was information necessarily derived from sensitive sources or from techniques or capabilities from a foreign intelligence department, all or any of that could be damaging to the public interest if disclosed. The approach taken in the clause in the Bill mirrors the protection of such information found, for example, in the Freedom of Information Act.
I turn to the less controversial part of the Bill, Part 1—if I can find the right part of my notes—which deals with oversight. This part had somewhat less coverage than the rest of it, but, after the speech from the noble Lord, Lord Campbell-Savours, and the interventions from the noble Baroness, Lady Smith, I am beginning to understand that it might generate just a bit of controversy and I might have some work to do, unlike my noble and learned friends, as I do that part of the Bill in Committee. I did not want to overlook the important changes that we are making to this and it is right that we should periodically re-examine the way in which we scrutinise that work. Again, I pay tribute to the current members of the Intelligence and Security Committee.
We are grateful to the noble Lord, Lord Butler, and my noble friend Lord Lothian for sharing the benefit of their experience of sitting on that committee. I am also grateful for the views that we heard from the noble Baroness, Lady Manningham-Buller, particularly what she said about trusting the head of the security services far more than she would trust Ministers. I will take that on the chin. I think she was echoing what the noble Lord, Lord Campbell-Savours, said, but she echoed it with approbation.
I recognise the experience that the noble Lord, Lord Campbell-Savours, has, and I am pleased that we will have an interesting time in Committee on that aspect of the Bill. The noble Baroness, Lady Ramsay, was concerned about the membership and thought that there was scope in the Bill for more Members of this House. I do not believe that there is any detail in the Bill about how many there can be, but I think the current rules are that at least one must come from each House, so it would be possible to have eight Peers and one Member of the Commons, or it could be the other way around. It will be for the Committee to decide what the appropriate number should be. That is something that we can discuss.
Lord Campbell-Savours
Prior to us going into Committee, might the Minister find out for what reason it is not to be a parliamentary Select Committee, as against the structure proposed? There must be some explanation.
Lord Henley
Again, my Lords, I was interested in the noble Lord’s suggestion. I do not think that it is necessarily the right path to go down, but that is the sort of point that we need to argue about and try to reach some agreement on in Committee. I am sure that the noble Lord will put down amendments and that we will have the opportunity to discuss them. I look forward to hearing the views of his Front Bench and other Members of this House.
I have more or less used up my time and have answered a mere tithe of the very good points that have been raised. As I said, we are going to have a detailed Committee stage in due course, when we will get to a lot of these detailed points. I look forward to that process, as does my noble and learned friend. Both of us will write a number of letters over the coming weeks that we hope will at least make it easier to deal with these matters. With that, I commend the Bill to the House.