House of Lords
Royal Assent
NHS: Primary Care Trusts
(12 years, 4 months ago)
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Lord Hunt of Kings Heath
To ask Her Majesty’s Government what action they will take to prevent primary care trusts inappropriately restricting access to patient treatments.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, it is inappropriate for a primary care trust to impose blanket bans on treatments, or to restrict access to treatments on the basis of cost alone. The department will ask strategic health authorities to investigate any examples of such behaviour, and appropriate action will be taken.
Lord Hunt of Kings Heath
My Lords, in thanking the noble Earl, I remind the House of my health interests in the register. The noble Earl will be aware that there is now abundant evidence that some primary care trusts are restricting treatments that are deemed appropriate, in some cases against the guidelines issued by NICE. Given that, will he go further and seek to ensure that he and his ministerial colleagues intervene in the NHS where this is happening so that we can be satisfied that the NHS will still provide a comprehensive service?
Earl Howe
My Lords, yes, we will intervene if ever it is demonstrated that primary care trusts are restricting treatments on a blanket basis or on a cost basis unrelated to clinical need. Any arbitrary restriction on access to treatment of that kind is unacceptable. We have made that clear repeatedly, as has Sir Bruce Keogh, the NHS medical director, on a number of occasions. However, that is not the same as saying that the NHS should be unconcerned about value for money. It should be very concerned about it. It should not spend money on treating a patient when that patient is unlikely to derive clinical benefit from the treatment. Therefore, we need to distinguish that kind of case from the kind cited by the noble Lord.
Baroness Masham of Ilton
My Lords, will the noble Earl find out to how many cases the PCT in North Yorkshire has denied treatment in the past year? Is he aware of how distressing it is for very ill patients to have to appeal?
Earl Howe
My Lords, I do not have the figures for North Yorkshire in front of me but, as the noble Baroness is aware, there is a process for patients to make an exceptional case application to their primary care trust where the circumstances are deemed to be exceptional. We had a short debate about this matter the other day. However, there will inevitably be variation around the country in the extent to which treatments are seen as a priority for the local population in a given area.
Lord Winston
My Lords, it is a question not just of treatment but of investigations for treatment. Only last week, I saw a couple complaining of long-standing infertility who were refused a laparoscopy or an X-ray of the uterus on the grounds that they were not permissible as investigations under the National Health Service. It was limited by their primary care trust. Would the noble Earl care to comment on that?
Baroness Brinton
My Lords, given that there is no consistency in the name that PCT committees are calling themselves to make these judgments about treatments and pathways, and often these matters are reported or hidden in longer performance reports, can my noble friend ensure that PCTs are open and transparent in their decision-making on these treatments, including referencing how their decision reflects NICE guidelines, and also insist that the appeals process is equally accessible?
Earl Howe
Yes, my Lords, we emphasise this principle at every opportunity. Indeed, transparency is a central principle, as my noble friend will be aware, in the way that the NHS constitution instructs the health service to make decisions rationally and transparently so that patients can see the basis on which those decisions have been arrived at. Again, if that is not happening in any area I should be very glad to hear about it.
Lord Walton of Detchant
My Lords, in relation to the point made by my noble friend Lady Masham, is the Minister aware that the particular primary care trust in North Yorkshire has refused the funding for an operation for a bright young lady doctor who is enrolled on a training scheme in that area and who turns out to have a rare hereditary form of pancreatitis? Three surgeons, two in Newcastle and one in Leicester, have agreed as a team to operate on her, otherwise the condition will be progressive and eventually fatal, but the primary care trust has refused funding for the procedure on the grounds that it is somewhat experimental, even though it has been carried out successfully on a number of occasions before. Is this not a case that ought to be referred to the Advisory Group for National Specialised Services?
The Chancellor of the Duchy of Lancaster (Lord Strathclyde)
My Lords, perhaps we could hear from the noble Lord, Lord Soulsby.
Lord Soulsby of Swaffham Prior
Thank you, my Lords. This is an unfortunate Question in that it tends to imply that this system is widespread. However, my experience, admittedly only in one hospital in Cambridge —Addenbrooke’s Hospital—is quite the contrary. I do not know just how much my noble friend can comment on whether access for patients has been restricted nationally, but I would very much like to ask him to make sure that this Question is not a common reflection on the National Health Service and hospital service. I do not think that it is.
Earl Howe
My Lords, I agree with the noble Lord. The Co-operation and Competition Panel undertook a review of restrictions on patient care last year, and although it uncovered quite a number of examples of arbitrary rationing, those were cases that took place under the previous Government. We have banned all such cases. We do not believe that this kind of arbitrary restriction is at all widespread, and we have yet to receive any firm evidence that it is taking place at all.
Lord Bach
My Lords, I wonder if the Minister is aware of the widespread feeling of disgust and disappointment at the Government’s decision to close the ECMO cancer unit for children at the world-renowned Glenfield Hospital in Leicester. Is he aware that the quality of work done at that hospital has been praised internationally, and that many thousands of people in Leicester, Leicestershire and beyond are just appalled at the Government’s insensitive and brutal decision?
Earl Howe
My Lords, I am aware of the concern that the noble Lord has reflected in his remarks, but I think that it would be wrong of me to comment. That particular decision flowed directly from a review which was conducted by the NHS, quite consciously at arm’s length from Ministers. The matter is currently under scrutiny and I would not wish to pre-empt any decision that my right honourable friend the Secretary of State wishes to take.
NHS: Mental Illness
(12 years, 4 months ago)
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Baroness Thornton
To ask Her Majesty’s Government what is their response to the report How mental illness loses out in the NHS, published by the London School of Economics and Political Science on 18 June.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, we agree with the report’s insistence on both the importance of investment in mental health services and on the necessity of treating mental ill health as seriously as physical ill health. Our mental health strategy, No Health Without Mental Health, makes our commitment to these principles clear, and we are soon to publish an implementation framework that will help to embed them in NHS practice.
Baroness Thornton
I thank the Minister for that Answer. I remind the House that during the passage of the Health and Social Care Bill it was agreed that mental health should have the same, equal status as physical health. In that light, at present the 50 outcomes of the NHS outcomes framework include no health outcomes for the millions of people with clinical depression or crippling anxiety disorders. Do the Government have any plans to change that and, if so, when will they change it? When will we see mental health outcomes appear in the outcomes framework?
Earl Howe
My Lords, we have deliberately taken a generic approach to the NHS outcomes framework. That said, the framework for 2012-13 contains three improvement areas relating specifically to mental health: premature mortality in people with serious mental illness; employment of people with mental illness; and patient experience of community mental health services. Therefore, the noble Baroness is not quite right in what she has just said. Many of the indicators in the outcomes framework relate to all patients, including in relation to safety incidents, for example, or experience of primary care. Improving outcomes for people with mental health problems will be a crucial element of success.
Lord Alderdice
My Lords, five out of the six recommendations of this excellent report by the noble Lord, Lord Layard, and his colleagues emphasise the importance of IAPT, an excellent initiative begun by the previous Government, which is being built on by the coalition Government. However, from the time of the previous Government to now, I continue to receive reports that psychotherapy departments, particularly those that provide non-cognitive behaviour therapies such as art therapies, psychodynamic psychotherapy, group analytic psychotherapy and family therapy, are closing down or are unable to get contracts. Can my noble friend help me to understand why that might be the case since, while CBT is valuable and helpful in many circumstances, it is not the only approach to treatment that has been demonstrated to be helpful in those who need psychological therapies?
Earl Howe
I am very happy to take the advice of my noble friend, who is of course an expert in this area. Historically, it is true to say that access to talking therapies in the broadest sense has been very poor. That is why we have invested £400 million in rolling out the IAPT programme, which makes available a range of NICE-recommended therapies to a much larger cohort of people. However, I will take my noble friend’s point away and, if I can throw any light on the issue that he has raised, I will gladly write to him.
Baroness Hollins
My Lords, I, too, commend the report. What action would the Minister expect in response to two of the recommendations that relate to training? First, there is the recommendation that an automatic component of general practice training in future should include mental health. Only a minority of GPs currently receive any training in mental health. Secondly, with respect to the current recruitment crisis in psychiatry, it is recommended that we recognise that psychiatrists have an essential leadership role to play in mental health care.
Earl Howe
My Lords, as regards GPs, the Royal College of General Practitioners has identified improved care for people with mental health problems as a priority within its enhanced GP training programme, which forms part of the college’s proposals for a new evidence-based four-year programme of training.
As regards the workforce issues, I am aware that there is concern about recruitment into psychiatry. My department and the Royal College of Psychiatrists are looking into this matter. The royal college has established a task force to make recommendations to improve recruitment, and it is investigating the factors before medical school, during medical school, during foundation training and in core and higher psychiatric training so as to get to the bottom of the issue as best it can.
Lord Hunt of Kings Heath
My Lords, one of the important recommendations in the LSE Centre for Economic Performance report, which led to this Question, concerns the attitude of other doctors to psychiatrists and the issue that that has in relation to recruitment. The report says that,
“it is routine for”,
surgeons and physicians,
“to make derogatory remarks about psychiatry, which affects not just psychiatrists but also their patients”.
I wonder whether the noble Earl has any answer to that.
Baroness Greengross
My Lords, is the noble Earl able to deal with two blatant forms of age discrimination? The first is that the talking therapies are very often denied to older people; pharmaceutical alternatives are cheaper. The other is that, when a diagnosis of dementia is made, the way in which services are organised now means that those services have to be funded by local authority social care rather than the NHS. Given that dementia is a terminal disease, does the noble Earl not feel that this is unfair?
Earl Howe
My Lords, yes, and we have laid great emphasis on the need to bear down on unreasonable discrimination against elderly people. The noble Baroness is aware that the requirement to reduce inappropriate anti-psychotic medication for the elderly is a key part of the Prime Minister’s dementia challenge. Therefore, I identify completely with the remarks of the noble Baroness on that issue.
Social Care: Sustainable Funding
(12 years, 4 months ago)
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Lord Warner
To ask Her Majesty’s Government when they will announce their plans for sustainably funding adult social care.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the Government set out their plans for the funding of adult social care at spending reviews. The date of the next spending review has yet to be announced. At the last spending review the Government prioritised money for adult social care, announcing an additional £7.2 billion over four years. When combined with an ambitious efficiency programme, this will provide enough funding to enable local authorities to maintain current service provision.
Lord Warner
I thank the Minister for that Answer. However, is he aware that publishing a White Paper about adult social care without a funding plan is as much a work of fantasy as Fifty Shades of Grey, but without the fun of sex? Do the Government recognise that the longer they delay implementation of the Dilnot commission’s proposals—and here I declare my interest as a member of that commission—the greater will be the social care cost that shifts to the NHS, which has its own funding problems? Starting that implementation will cost around one-thousandth of annual public expenditure, as Andrew Dilnot has repeatedly said. Is it not time that the Prime Minister and the Chancellor engaged with this issue within cross-party talks to try to sort out the funding problems of adult social care?
Earl Howe
My Lords, we look forward to a continuation of the constructive cross-party talks that have taken place. We have been clear that we accept the principles of the Dilnot recommendations, including financial protection through capped costs and an extended means test. They are the right basis for any new funding model. That sets out, if you like, our high-level view on what a new funding system should look like, but there will be many questions to answer—such as on the level of the cap and whether the funding system should be voluntary, universal or opt-in—before we can make any firm decisions. It is right that we take time to work through this, including engaging with stakeholders to make sure that any reform is the right one. That means that the next spending review is the appropriate time to take those decisions.
The Chancellor of the Duchy of Lancaster (Lord Strathclyde)
My Lords, can we hear from the noble Baroness, Lady Campbell?
Baroness Campbell of Surbiton
My Lords, is the noble Earl aware that while these complex funding matters are being considered, many local authorities are severely reducing the levels of support provided to disabled people in ways that can curtail their independence, prevent them from working and participating in public life and, in some cases, force them into residential care? Is he aware, for example, that Worcestershire County Council proposes to radically restrict the maximum value of an individual disabled person’s care package, offering them no other choice than to enter residential care if they cannot meet the shortfall? Surely the Minister agrees that this runs entirely counter to the White Paper and government policy?
Earl Howe
My Lords, I am not aware of the Worcestershire example. What I will say is that the best local authorities are those that enter into a two-way dialogue with service users to see what is best and most appropriate for them in their circumstances. I recognise that this is a challenging settlement for local government, but if local authorities are prepared to reform their services and drive down costs, we believe that the additional investment from the NHS to social care, which we announced in the spending review, will enable local authorities to protect the care that people receive. Many councils are making the necessary changes to ensure that there is no drop in eligibility criteria.
Baroness Gardner of Parkes
My Lords, in view of the answers to the previous supplementary question and to the first Question, which stated that decisions should never be made purely on grounds of cost, is the Minister aware of a case in one of the London boroughs where a woman who has had multiple sclerosis for years and has been cared for by a very loving husband has now been told that she may be obliged to go into a care home because providing her care package at home is costing £79,000, while a care home could be provided for £71,000? That would perhaps not destroy, but put a terribly unfair strain upon, her marriage after all these years. Can the Minister assure us that in the Government’s plans for health and social care, factors other than cost will be considered?
Earl Howe
It would not be right for me to comment on an individual case such as the one mentioned by my noble friend, but I would say that local authorities have a duty to meet people’s eligible needs, and they should take account of a person’s resources as they do so. If a local authority were to change someone’s personal budget, we would expect it to consult and discuss with the service user how their needs and goals could best be met within the new budget. It should not, in most cases, descend to forcing any options on anybody.
Baroness Pitkeathley
My Lords, I was happy to give way to the noble Baroness, especially on her birthday. The Minister’s words may be comforting to many families when contemplating the future, and may provide comfort that the Government have plans for the future. However, what comfort will he give to my neighbour Margaret who is caring for her husband, who is in the last stages of Alzheimer’s, and is in despair with his and her physical and mental distress? Today—now—they face huge costs for care that is intermittent and often of very poor quality. How does the Minister address the poor-quality issue in the face of such a shortage of funds?
Earl Howe
My Lords, as I made clear, the Government and my department have made a very significant sum of money available to local authorities to bolster their social care funding. In the announcements we made last week we said that we were directing additional money to local authorities to support integrated care. I regret the instance that the noble Baroness cites, but it is part of the reason why, in our White Paper and in the announcements we made last week, there is a particular focus on quality and on ensuring that the tick-box approach—which I am afraid some local authorities have taken—should be a thing of the past.
Olympic Games 2012: Traffic
(12 years, 4 months ago)
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Lord Lea of Crondall
To ask Her Majesty’s Government what contingency plans they have made to deal with heavy traffic on key London roads when the Olympic route network becomes operational from 25 July.
Lord Lea of Crondall
My Lords, could I ask the noble Earl, Lord Howe, the Answer to the Question standing in my name on the Order Paper?
Earl Attlee
My Lords, I think the noble Lord got slightly confused there. The Olympic route network—the ORN—has been established to ensure the Games family get to events on time. Games lanes will operate flexibly and be open to all traffic when possible. Motorists should avoid central London and, like everyone, plan their journeys at the Get Ahead of the Games website. We have comprehensive traffic management plans in place and will be focused on getting people to their events on time and keeping London moving.
Lord Lea of Crondall
I thank the Minister for that Answer, which means that there is no contingency plan. There is no plan B. I will give an example of a major artery, and I declare an interest shared with many thousands of people in central London: I live on Southampton Row, a continuation of Kingsway, where there is one bus lane alongside one Olympic lane. In other words, it is a no-go area. The Evening Standard reported last Friday that Transport for London said that everyone could use the bus lane in those circumstances, but local officials say that is not the case. Is there not likely to be great confusion, at least after 25 July, leading to gridlock—which is of great concern for shops, buses, taxis and everyone in that area, and in similar areas around London—with no contingency plan in place?
Earl Attlee
My Lords, the noble Lord suggested that there is no contingency plan. There are very detailed contingency plans. For instance, Transport for London has designated alternative Olympic route network roads in case the primary Olympic route network becomes inoperative. As regards the problem that the noble Lord describes, I suggest that he consults the Get Ahead of the Games website. My officials tell me that I have to say “Get Ahead of the Games” in every single supplementary question I answer.
Lord Addington
My Lords, would the Minister agree that complaining about having some traffic disruption during the world’s biggest event is a little like someone who has sat on a fire complaining about their backside burning?
Earl Attlee
My noble friend is absolutely right. The world is coming to London in 2012. Our transport system faces unprecedented challenges, and the Olympic route network is essential to ensuring that the transport system works at Games time and to making the Games a great success, as I am sure they will be.
Baroness Butler-Sloss
My Lords, has the Minister tried to work the Get Ahead of the Games website? I am totally in favour of the Olympics and of seeing the signs on the roads. However, I wanted to find out whether I could come into London on a particular route. If the Minister tried the website, he would find it very difficult to find the answer.
Earl Attlee
My Lords, when I last answered a Question about the Olympic travel arrangements, I used the Get Ahead of the Games website, and it worked. Sometimes these websites take a little bit of getting used to. I urge noble Lords to persist with it. It is a very good tool, particularly to see which Tube stations will be very heavily congested, and at which times.
Lord Geddes
Could my noble friend confirm, or otherwise, that while the House is sitting, Members of the House may use the Olympic lanes when coming to and from the House?
Earl Attlee
My Lords, I suggest that that is an extremely unwise course of action. The policing of the Olympic lanes—the Games lanes—is similar to bus lanes. If the noble Lord thinks he can use a bus lane with impunity then he can try the Olympic lanes, but it is not something that I would recommend.
Lord Davies of Oldham
I find myself agreeing with the Minister that, of course, London has to offer a welcome to visitors from all over the world to these Games. The lanes are essential to the smooth running of the Games. Of course, there is already sufficient confusion and long tailbacks have been established on some routes and the lanes are not even in action yet. We must make every effort to make things clear to the public. Would the Minister strengthen the point that he made a moment ago that no privileged access to the ZiL lanes, apart from for Olympic officials, will be permitted and certainly not for Ministers of the Crown?
Earl Attlee
My Lords, I can assure the House that Ministers of the Crown do not have any privileges in regard to the use of the Games lanes, with the exception of when advised to use them by the security services, and that will apply to very few Ministers indeed.
Lord Hughes of Woodside
My Lords, how can the House have confidence in all the contingency plans here and there when, if we are to believe today’s press, a coach driver taking an Olympic team to the stadium could not find his way and took four hours to get there? He could not read a sat-nav and apparently was directed to the stadium only when someone managed to find it on their mobile phone.
Earl Attlee
My Lords, I expect all noble Lords have had a sat-nav moment. I certainly have in my driving career. LOCOG knows where all the Olympic coaches operated by it are on the Olympic network and, if something goes wrong, LOCOG will know. I do not know the full details about the coach to which the noble Lord refers, but I can assure noble Lords that LOCOG has a good system for managing the coaches.
Draft Electricity and Gas (Smart Meters Licensable Activity) Order 2012
Local Authorities (Mayoral Elections) (England and Wales) (Amendment) Regulations 2012
(12 years, 4 months ago)
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Baroness Verma
That the draft regulations laid before the House on 12 June be approved.
Relevant document: 3rd Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 12 July.
Parliamentary Commission on Banking Standards
(12 years, 4 months ago)
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Lord Strathclyde
1. That the Commons message of 16 July be considered and that a Committee of five Lords be appointed to join with the Committee appointed by the Commons as the Parliamentary Commission on Banking Standards, to consider and report on:
(a) professional standards and culture of the UK banking sector, taking account of regulatory and competition investigations into the LIBOR rate-setting process;
(b) lessons to be learned about corporate governance, transparency and conflicts of interest, and their implications for regulation and for Government policy;
and to make recommendations for legislative and other action;
2. That, notwithstanding the provisions of Standing Order 63(2), the following members be appointed to the Committee:
The Lord Bishop of Durham, Baroness Kramer, Lord Lawson of Blaby, Lord McFall of Alcluith, Lord Turnbull;
3. That the Chairman of the Commission be appointed by the House of Commons;
4. That the Commission shall, except as provided for in this order, follow the procedure of a select committee of the House of Commons;
5. That the Commission have power:
(a) to send for persons, papers and records;
(b) to examine witnesses on oath;
(c) to appoint specialist advisers;
(d) to invite specialist advisers (including Counsel appointed as specialist advisers) to examine witnesses;
(e) to adjourn from place to place;
6. That the Commission have leave to report from time to time and that the Reports of the Commission shall be printed, regardless of any adjournment of the House;
7. That the evidence taken by the Commission shall, if the Commission so wishes, be published;
8. That the Committee appointed by the House of Lords have power to report to the House any decision of the Commission reached pursuant to paragraph 9 of the Commons resolution of 16 July;
9. That the Commission shall have power to appoint sub-committees to consider matters specified by the Commission within the terms of this order and a sub-committee shall have:
(a) the powers in paragraph 5(a), (b) and (e); and
(b) the power to invite specialist advisers appointed by the Commission (including Counsel appointed as specialist advisers) to examine witnesses;
10. That the quorum of the Commission shall be two members of each House;
11. That the quorum of any sub-committee shall be one member from either House; and
12. That the Commission shall report on legislative action no later than 18 December 2012 and on other matters as soon as possible thereafter.
Arrangement of Business
(12 years, 4 months ago)
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Baroness Royall of Blaisdon
My Lords, the House of Commons rises today, as we all know, and noble Lords may recall that, during the Jubilee Recess when this House sat, the Government announced changes to tax policy to the media rather than to Parliament—that is to say, to our House. I would be grateful if the Leader of the House could reassure noble Lords that when the House of Commons has gone into recess any policy announcements will be made to this House, while it is sitting, as we are a House of Parliament, rather than to the media first. We shall be vigilant with regard to any sneaky Statements that might come out.
I also take this opportunity to wish a very happy birthday to the Chief Whip, the noble friend of the Leader of the House.
The Chancellor of the Duchy of Lancaster (Lord Strathclyde)
My Lords, I am sure that the whole House will join in those very happy returns to the Captain of the Honourable Corps of the Gentlemen at Arms.
There is no desire on the Government’s part to produce any sneaky Statements at all when the House of Commons is not sitting. Of course, this House will be sitting next week and any Statements, Urgent Questions or PNQs will be taken in the normal way.
Lord Grocott
Will the Leader of the House undertake to inform the House of the additional cost that will undoubtedly be incurred as a result of this House sitting as though it were a unicameral system for a week now, then the Commons sitting for a fortnight as though it were a unicameral system in September, and then this House sitting again a couple of weeks after that? It undoubtedly means that we will be functioning less efficiently with all sorts of committees, which affect Members of both Houses, being unable to operate as they would when Parliament functions in the normal way. However, I refer specifically to the costs of the Houses sitting in a way that the Government now seem bent on, which I do not think is for the convenience of the House or of the public.
Lord Strathclyde
My Lords, that is most bizarre. The House has sat on different days from the House of Commons for decades, as far as I can remember. If there are any additional costs, I shall let the noble Lord know. I do not think that there will be; we are not sitting, overall, for more days than otherwise we would have been.
Defence Equipment and Support
(12 years, 4 months ago)
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The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever)
My Lords, with the leave of the House, I shall now repeat in the form of a Statement the Answer given by my right honourable friend the Secretary of State for Defence to an Urgent Question in another place on defence equipment and support. The Statement is as follows:
“A key element in the transformation process under way in the Ministry of Defence is that of its equipment and support activities through its Materiel Strategy. Reforming the acquisition system to drive better value from the defence budget is a core element of the transformation process under way in the Ministry of Defence.
This will require changes to the Defence Equipment and Support organisation to ensure that it has the structures, management and skills it needs to provide the right equipment to our Armed Forces at the right time and at the right cost. Change is essential to tackle the legacy problems in defence acquisition that have historically led to cost and schedule overruns, and which have resisted previous attempts at reform. The current system does not help or support DE and S properly, and it is not delivering value for money for the taxpayer.
Analysis reveals the following root causes: a historically overheated equipment programme, in which far more projects were planned than could be paid for; a weak interface between DE and S and the wider Ministry of Defence with poor discipline and change control between those setting requirements for equipment and those delivering the programmes; and insufficient levels of business capability at DE and S for the scale and complexity of the portfolio it is asked to deliver.
The result of these combined issues has been significant additional costs in the defence budget, in the order of hundreds of millions of pounds each year. Earlier this year MoD officials were asked to focus their efforts on considering the comparative benefits which could be derived from changing DE and S into either an executive non-departmental public body with a strategic partner from the private sector, or a government-owned, contractor-operated entity. The work done to date suggests that the strategic case for the GOCO option is stronger than the ENDPB option. Further value-for-money work is under way to confirm this assessment.
In the mean time, as resources and commercial appetite constrain our ability to pursue these two options simultaneously to the next stage, we have decided that the department should focus its effort on developing and testing the GOCO option further. The work to determine value for money between the options will take place over the next few months. In parallel, we will begin to develop a commercial strategy, engaging with industry to hone our requirement. This work will support decisions later this year on whether to proceed with the GOCO option and whether to launch a competition for a private sector management company to run the organisation.
Provided that the further work demonstrates that the value-for-money case for GOCO over ENDPB/SP is conclusive, this will be followed by an investment appraisal that will test the GOCO against a public sector comparator. Ultimately, this would be followed by a decision on whether to proceed”.
My Lords, that concludes the Statement.
Lord Rosser
My Lords, I thank the Minister for repeating as a Statement the response to the Urgent Question that was accepted and answered in the other place earlier today.
The Secretary of State also issued a Written Ministerial Statement today, the last day before the House of Commons breaks for the Summer Recess. In that Written Statement as well as in the Statement that we have just heard, the Secretary of State set out his views on why the present system of procurement did not work as effectively as it might. He went on to say that the restructuring of defence equipment and support was key to maintaining the defence budget in balance.
Two options for restructuring have been considered—namely; either an executive non-departmental public body, with a strategic partner from the private sector, or a government-owned contractor-operated entity. The Government take the view that the work done to date “suggests” that the case for the government-owned contractor-operated company is stronger than the first option, but say that further value-for-money work is under way “to confirm this assessment”, which indicates that in the minds of some a conclusion has already nearly been reached.
In the mean time, the Secretary of State said in his Written Statement that,
“as resources and commercial appetite constrain our ability to pursue these two options simultaneously to the next stage, I have decided that MOD should focus its effort on developing and testing the GOCO option further”—
that is the government-owned contractor-operated option.
I have a number of questions for the Minister, although, before I start, I must say that I am not expecting him to be a walking encyclopaedia. If he is not able to respond to all my questions, it would be more than acceptable if he were able to give the answers subsequently in writing.
First, what would be the additional cost of pursuing the two options simultaneously to the next stage, and what exactly are the “resources and commercial appetite” constraints referred to? Unless it is going to cost a substantial sum, the constraints cannot be financial since the Secretary of State has told us that he has balanced the defence budget. He has also told us that the restructuring of defence equipment and supplies is key to the process of maintaining the budget in balance. This is hardly an issue one would have thought appropriate for not undertaking with complete thoroughness and openness and testing fully the merits of the two options when the Government agree that the work done to date only “suggests” that the GOCO option might be better.
The Secretary of State said more than once in his Statement today that the criterion is value for money and apparently only value for money. Is it literally the case that no other factors will be taken into account in determining the most appropriate form of restructuring for defence equipment and supplies? What factors are included within the criterion of value for money? Issues of national security must surely be involved in defence procurement, including security of sensitive information or the potential loss of skilled staff who may not wish to move to the private sector under the new structure proposed. How will non-monetary considerations be assessed against a value-for-money criterion?
The Statement refers to having a competition for the private sector management company to run the organisation. What kind of companies will be invited to tender? Will they be major defence contractors and, if so, would there not be a potential conflict of interest if such a company were running an organisation awarding contracts? Or, will major defence contractors or companies with defence contracts be excluded? In which case, what skills or expertise in the defence field would such a management company be expected to be able to show?
After all, we need to be very careful. We have just had an example of a major private company involved in the Olympic Games on the security side which has not exactly excelled itself. One of the issues in that case is that the Home Office said that it was not aware of the impending failure to deliver because contracts were with LOCOG and not direct with itself. Is that not a possible likelihood with the GOCO: namely, that Ministers become a step further removed from knowing what is actually happening, with the potential consequence of the kind of situation we have seen with G4S? The GOCO appears to bring a third party between the defence contractors and the Ministry of Defence, which may not be helpful.
Under the GOCO arrangement, where will commercial risk within the private sector lie in future? In particular, what commercial risk would lie with the GOCO? The GOCO will have contracts with defence contractors. If the defence contractor fails to deliver, presumably the defence contractor picks up the bill. However, what happens if changes are made to the specification? Will the GOCO and the private management company bear the additional costs, or will they continue to lie with the Ministry of Defence? What expertise is it considered that the private management company will bring that is not there at present? Will it be technical, or some other form, of expertise? Is it envisaged that all DE and S will be transferred over to the new private management company, and continue to work at its existing locations? Will military personnel continue to be part of DE and S if it becomes a GOCO, and on what basis will they be employed? As it will be run as a private company, will they be required to leave the Armed Forces? Is the reality in fact that the only change is that at boardroom level the GOCO will be run by private sector managers, who will not be required to have any defence experience, as opposed to DE and S being run by the Ministry of Defence?
Where will the GOCO fit in as far as the international dimension is concerned? There is the issue of our defence manufacturers being asked to provide equipment which will also meet specifications to make sales overseas achievable. There is also the political decision on whether to procure defence equipment from overseas which is made overseas, or whether to have equipment largely made and supplied from within our own country. Who will make those decisions: the GOCO or the Ministry of Defence? Will primary legislation be required if the government-owned, contractor-operated company is to be established?
The Statement by the Secretary of State also referred to testing the GOCO against a public sector comparator before finally deciding whether to proceed. Which public sector comparator would that be, and will the only criterion once again be value for money? Finally, how can we be assured that our brave troops on the front line, who it is widely accepted have the best equipment and supplies under the present DS and E structure, will continue to do so under the vague and unclear future now being proposed?
Lord Astor of Hever
My Lords, the noble Lord is quite right; I am not a walking encyclopaedia. I will do my very best to answer as many questions as I can, but I will write to the noble Lord with the answers to the others. I will also put a copy in the Library.
I will try and take the questions as they came at me. The noble Lord asked why we need to change DE and S. For decades, the MoD has wrestled without success with the legacy problems of defence acquisition. It is clear that addressing the problems within current structures will be extremely challenging. We will, however, develop a public sector comparator based on DE and S-plus, which will be an on-vote solution with enhanced capabilities. The noble Lord asked if primary legislation would be necessary. At the moment we feel that it probably will not be, but we are putting in place all the building blocks just in case.
The noble Lord asked why the GOCO route was preferable. Work to date indicates that the strategic case for GOCO is stronger than that for an ENDPB with a strategic partner. This is based on the significant qualitative benefits that a GOCO would bring. These include the flexibility of the private sector, the increased resources available to support successful delivery and the introduction of a change in culture and behaviour to improve DE and S’s focus on the bottom line. It gives us much more strategic freedom by allowing us to manage staff in a flexible way and to bring in private-sector skills.
The noble Lord asked about value for money. Officials expect to complete work on the value for money analysis in the next few months, for consideration by Ministers in the autumn. The value for money analysis is an extremely complex area of work, representing a business change without precedent in government and requiring thorough analysis to enable discrimination between the options. This is a big decision and it is worth spending the extra time now to ensure that we make it for the right reasons.
The noble Lord also asked about members of the Armed Forces. The requirement is for specialised expertise, knowledge and skills in areas not currently found in DE and S and the wider department. This external support is key to getting DE and S into a position to create an effective organisation going forward. An important element of the future organisational design of DE and S will be ensuring that the military continues to play a key role, which will be important for individuals’ careers.
I was asked why we rejected other models. It is clear that addressing DE and S’s problems within the current structures will be extremely challenging. Changing DE and S to a trading fund was ruled out early on the basis that it would not be suitable for its business. It would also not be appropriate to privatise the organisation. The noble Lord raised the international situation and the position of our allies. We are working with our international partners to ensure that their interests are protected during the transformation of DE and S.
Those are all the questions I managed to write down. As I said earlier, I undertake to write to the noble Lord on any others.
Lord Lee of Trafford
My Lords, this is a very short Statement for a huge issue. I remember taking two Bills through the other place nearly 30 years ago to privatise the Royal Ordnance factories and contractorise the dockyards, which I understand is probably the best example of a GOCO. I want to query the Minister’s response that we are unlikely to need legislation. I would be grateful if he could further explore that.
I have four specific questions. First, who is studying the comparative benefits of the two main options? Are they just MoD officials or are consultants involved as well, and what is the cost of those consultants? Secondly, I refer to the claim that,
“resources and commercial appetite constrain our ability to pursue these two options”.
I really do not understand what commercial appetite constraints are. The noble Lord, Lord Rosser, also raised this point in his remarks. Thirdly, is either option likely to involve civilian redundancies over and above the 25,000 already being targeted by the ministry? Finally, are there any examples of other countries effectively outsourcing their supplier of military equipment in this way?
Lord Astor of Hever
My Lords, I agree with my noble friend that this is a really big issue. I had only a short time in which to prepare for this Statement and that made me realise what a big subject this is. It may be an area on which we could have a debate in the House, and I would encourage my noble friend to go through the usual channels to see whether a debate could be set up. He asked why no legislation was necessary for this. I asked officials about that and their advice was that it is very unlikely—but just in case it is needed, all the building blocks are being put in place. No decisions on the future operating model of DE and S have yet been taken. The GOCO may require legislation, but the issue will be addressed in due course.
I cannot answer my noble friend’s question about whether it was just MoD officials involved in the decision-making process, but I understand that there will be no additional redundancies as a result of these changes. I am pretty certain that that is the correct answer.
Lord Craig of Radley
My Lords, one of the criteria that Mr Bernard Gray identified in his major study of DE and S was that a budget provision for a 10-year period should be made for the equipment programme. Many instances of overloading the programme in the past have probably been attributable to changes in the budget provision, which the Ministry of Defence had expected. Has an agreement been reached on the lines of what Mr Bernard Gray was looking for, with a 10-year guaranteed budget for the equipment programme? Without that it will be difficult to be sure that we will not overload the programme if there are cuts.
Lord Astor of Hever
I can assure the noble and gallant Lord, Lord Craig of Radley, that Bernard Gray, who wrote the report, is now working for the MoD—poacher turned gamekeeper. I am confident that he has extracted a lot of the assurances that he was after.
Lord Trefgarne
My Lords, can my noble friend confirm that the input of the chiefs of staff into the initiation of the defence procurement process—namely the preparation of staff targets and staff requirements—will remain untouched after the changes that he proposes?
Lord Astor of Hever
My Lords, I cannot give my noble friend that assurance, but I am pretty certain that the Chiefs of Staff will have had strong reassurances on that issue.
Lord Stirrup
My Lords, I am in no doubt of the need to improve the overall performance of Defence Equipment and Support. However, I have lost count of the number of major reorganisations to which the mechanisms for defence acquisition and logistic support have been subjected over the past decade and a half. It seems unreasonable to expect superior performance from any organisation that spends almost its entire time studying its own navel. Can there be sufficiently wide-ranging consultation this time so that whatever emerges from this particular exercise has some chance of enduring for at least a number of years, and so that we can get some performance out of the organisation rather than a wholesale change of deck-chairs every few years?
Lord Astor of Hever
My Lords, the noble and gallant Lord makes a good point. As we said in the Statement, no decision will be taken until the end of the year. We want to discuss this with as many people as possible, not least our own workers and the trade unions, so I can reassure the noble and gallant Lord.
Lord Burnett
My Lords, I endorse the point that my noble friend has made: we should have a debate not only on this matter, but on many other matters. Perhaps a debate will go some way towards highlighting the matters that the noble and gallant Lord, Lord Stirrup, mentioned. We have had severe and deep cuts to the Army, and questions as to the inequitable nature of the redundancy payments and of the capacity and capability of the reserves, however willing they are. But on this matter, will my noble friend explain the advantages to the Armed Forces of privatising the Defence Equipment and Support organisation? I hope that factors such as security of supply, urgency, value for money, secrecy and commitment are paramount in the minds of those who are deciding this policy.
Lord Astor of Hever
My Lords, I would certainly welcome a debate on this subject, not least of all because it would give me more time to swot up on a complicated subject. As for the advantages of privatising Defence Equipment and Support, and as far as the Armed Forces are concerned, there is a compelling case for reform. Analysis has shown that cost and schedule overruns have resulted in significant additional cost to the defence budget of the order of hundreds of millions of pounds each year. A GOCO offers the greatest likelihood of focused and sustained improvement. It has the strongest incentive for culture change and a drive for productivity. The Armed Forces will benefit from getting equipment and services on time and at the right price.
Lord Bach
My Lords, do the Government believe in the concept of a defence industrial policy? It seems to some of us that in reality this plan may mean that within a fairly short time we will be buying off the shelf from anywhere, at the expense of—and with no regard for—the British defence industry, which is an excellent manufacturing industry, one of the few that remain, providing many jobs and great skills, very much to the benefit of this country. Some of us worry that the ultimate consequence of this sort of decision will be to kill off the British defence industry. Does the noble Lord agree?
Lord Astor of Hever
My Lords, it is very nice to see the noble Lord back here discussing defence issues. I can assure him that we buy the best equipment for our Armed Forces. That is our starting and ending point.
Lord Boyce
My Lords, currently Defence Equipment and Support has stewardship of a key front-line activity, logistics support, which includes such things as running naval bases. However successful or otherwise one might view Defence Equipment and Support’s performance in this area, the current shock with respect to outsourcing of major critical activities has to be a concern. Can the Minister reassure the House that the area of logistics support to the front line will be very carefully guarded; for example, passing back the running of naval bases to the single services?
Lord Astor of Hever
My Lords, I can give the noble and gallant Lord that reassurance. Obviously, in the light of the G4S issue, we are looking at it even more carefully.
Lord Selkirk of Douglas
Can the Minister say whether the withdrawal of equipment that is surplus to requirements from areas such as Afghanistan will have any effect on the equipment programme?
Lord Astor of Hever
My Lords, we will have to decide whether to take the UOR equipment back into the core defence budget. It is much too early to give my noble friend an answer on that. We are looking at it very closely.
Lord Elton
My Lords, in mulling over his reply to the noble Lord, Lord Hunt of Kings Heath, will my noble friend—
Lord Elton
I am sorry, the noble Lord, Lord Bach. It is a mistake I have made before. Bad map-reading; I apologise.
Lord Elton
My Lords, if I can start again, can my noble friend tell us whether in any debate that we have he will be prepared to answer questions about how research and development will be continued under the new organisation? It is very important that the budgetary and technical skills of the department, the military and the commercial suppliers are co-ordinated. How is that going to be managed and by whom?
Lord Astor of Hever
My Lords, my noble friend makes a very good point. If we do have a debate, I undertake to answer as many questions as I possibly can, and I would ensure that I got sufficient briefing to answer my noble friend’s question on this important issue.
Lord Empey
My Lords, some of us in this House have had experience of a GOCO being established in Northern Ireland to run the water industry. My colleagues will know that it has not been a very pleasant experience. I urge the Minister to look at that example because failure in this area would be much more catastrophic. Is not planning for defence infinitely more difficult than virtually any other area of Government because events quite often occur that require changes in specification, which generate most of the cost overruns?
I also support the point made by the noble Lord, Lord Bach. We are second in the world in aerospace at the moment and there are strategic reasons why we need to maintain a defence industry, which do not always mean the cheapest contract wins. We have to maintain a long-term strategic capability in this country. I would certainly be looking forward to seeing that issue addressed in any proposals. I echo what other noble Lords have said in calling for an early debate on this and related issues.
Lord Astor of Hever
My Lords, as we said in the Statement, we have undertaken to consult as widely as possible, so I encourage the noble Lord to feed in any issues he has in relation to the water GOCO so that any lessons can be learned. I, more than anyone, want to see a strong defence industry in this country and we will do what we can to ensure that there is one.
Lord Williams of Elvel
The Minister said that he wants to consult as widely as possible. What form will that consultation take? We have had a Statement and a number of questions to which there are, apparently, no answers because the Minister says he has not been briefed. Will there be a Green Paper? Will there be a debate? What are the answers? It is a sad day in this House when we have a Minister saying, “I am terribly sorry, but I do not know the answer to any of these questions”.
Lord Astor of Hever
My Lords, that is very unfair. I did not say that I had not been briefed; I just said that I would welcome a debate because it would give me much more opportunity to talk at greater length about these very important issues. I never said that I had not been briefed—that is completely untrue—but I would welcome a debate in order to air all this and to hear any questions and issues that noble Lords have on this important subject.
Lord Stoddart of Swindon
My Lords, following the question from the noble Lord, Lord Bach, about the need to maintain a strong British defence industry, and the Minister’s agreement with that, is there any constraint on that policy through having to obey the strict rules under the single market by which contracts have to be advertised throughout the European Union? Value for money is an absolute, although there may be constraints upon the cost that is paid.
Lord Astor of Hever
My Lords, as I said earlier, I want a very strong British defence industry. We have to obey EU industrial rules, whether I like it or not; we have to stand by them.
Justice and Security Bill [HL]
(12 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
““national security” means an operation of the intelligence or military services”
Lord Hodgson of Astley Abbotts
Amendment 53 is a simple amendment, which merely inserts at the end of Clause 6(7) a definition for “national security” as meaning an operation of the intelligence or military services. If I say “simple”, it is probably deceptively simple, because I fully appreciate that its consequences are far from simple. Indeed, the noble Baroness, Lady Manningham-Buller, has very kindly told me that she does not agree with this approach, and as she has forgotten more about national security than I will ever know, I await with interest what she has to tell me on the other side of this coin.
I make two background points. One is that I am not wedded to the wording of the amendment. This is just the best that the organisation Reprieve and I could come up with. However, I am wedded—this is the second point—to the idea of a debate, so that we can explore the advantages and disadvantages of having a definition. Why, on balance, do I think that there should be a statutory definition? I suspect that, over the years, the absence of a definition has given the Secretary of State quite a lot of freedom. It may or may not, in the past, have been useful and helpful to have a flexible definition, but we are now looking at different things in the Bill and I think that the arguments about flexibility come under more stress and strain.
I will share with the Committee some examples of the flexible use of the phrase “national security” in the past. Some 40 years ago I applied to join the Foreign Office and it turned me down, greatly to its good fortune. I was told in my interview that if I had certain sexual preferences, this would give rise to questions of national security. More recently, I recall an elderly heckler of the then Prime Minister Tony Blair being detained under prevention of terrorism laws, which presumably also could give rise to questions of national security. The rather graphically described “spy HQ” overspend on both the MI5 and MI6 buildings, whose costs overran by £226 million, was able to be discussed only in part on grounds of national security.
Lord Deben
My Lords, I rise to support this amendment in much the same way as it was presented. In other words, I can understand that these may not be the words which the Government could accept, but some definition is essential and I can give a personal example of how I believe that to be so. During the time when I was in the other House, I sought to establish, for constituency reasons, the precise details of why a number of aeroplanes flew over my constituency to bomb an aspirin factory in Sudan. The information was available in detail in the United States. As I got nearer and nearer by asking a series of questions, I was told that I could ask no more questions because the Prime Minister had decided that it was a matter of national security not to tell me the terms under which these flights took place. It was very difficult to accept that because I could read in the American papers exactly what had happened, but evidently it was not something that could be given to me as a Member of Parliament in this country about something which had happened from this country, which had been an outrage and which was based upon false information provided by the American security services.
I am one of those who voted against the Iraq war on the basis that I did not believe what the Prime Minister was telling me—or rather I thought he told me more than he knew, which is perhaps a more polite and parliamentary way of putting it. One reason why I did was that I had learnt—as the French say—to méfier when it came to such a firm statement that it was about national security. We have gone through a period in which these words have been used more to avoid embarrassing comments and questions than to fulfil their important role of protecting our lives and those of our servicemen. I do not think that anybody could accuse me or my noble friend Lord Hodgson of being other than clearly on the side of the right, in more senses than one, so we are not likely to wish to undermine national security. However those of us who take that view have an important role in making sure that it is not misused, as it so often is. In this House we have a series of examples when, because of public outcry, we legislate in all sorts of areas, saying that there is a greater national good which overcomes the normal concerns. At no time is that more important than when we have a great concern about terrorism.
If we look back into history, some of the biggest losses of freedom have taken place in defence of national security and in the prevention of terrorism. In a sense, it is not for those who always dislike the forces of law and order to fight this battle; it is for those of us who are instinctively and almost by DNA on the side of the forces of law and order to explain why we are worried when this sort of thing happens. I have four children. One was taking a dog for a walk when it stopped—as dogs do—on the other side of Whitehall from Downing Street. While the dog fulfilled its purpose, a policeman approached my child and said that he should move on. My child politely said: “The dog is just about to finish”. The policeman said: “If you don’t, I’ll arrest you under the Prevention of Terrorism Act”. My child was intelligent enough to say: “I do not think, officer, that you can do that, but if you just let the dog finish”. It was only through the intervention of a senior officer that there was not what I might call “an incident”.
I know that this does not happen widely but it is very easy to use these phrases as though they help in these discussions. That is why I want a definition. “National security” is far too wide a phrase. It may be that we need to extend it from this, but I hope that the Government will take seriously the fact that the time when we are most concerned with terrorism is when freedom needs to be protected. It is now that we have to take these measures and make sure that we are not giving future Home Secretaries, Prime Ministers and the like the ability to use ill worded phrases to do things that, both in prospect and in retrospect, would do a great deal of harm.
The Marquess of Lothian
My Lords, I have very mixed feelings about this amendment. I said in my speech at Second Reading that national security should not be so widely interpreted as to give cover for embarrassment or incompetence. I am sure that is absolutely correct. Indeed, my noble friend Lord Hodgson made that point. However, I am very worried when we begin to interpret something such as national security in terms of specific operations or departments. In passing, I make the point that the Diplomatic Service may do many things overseas that affect national security. Many embassies that I have been to have protected rooms where such matters can be discussed. It would be naive to say that because they were done by the Diplomatic Service and not the intelligence service, those matters were not, in the terms of the Bill, ones of national security.
I do not have an answer. All I can say is that you know national security when you see it. The difficulty of looking at this in terms of legislation is that you cannot see it. To give one example, we debated earlier the activities of the Intelligence and Security Committee and the process of redactions. When a suggestion to redact is made by the Prime Minister, it has to be on the basis of national security. There have been cases in which the committee has argued that national security was not affected. In the course of a practical argument you can come to an answer about what is national security and what is not. This does not help the Minister on the Front Bench. However, I feel it is somehow better to leave the definition more open and allow it to be interpreted in the context of the individual circumstances of each event than to curtail it within the definition of the activities of various departments. In the end, we might find that we are throwing the baby out with the bathwater if we proceed in that way.
The Earl of Erroll
My Lords, I shall make a couple of topical points in support of the noble Lord, Lord Deben. This is very complex. In the old days, in a less complex world, we knew how to finesse these things in a common-law society. Now we are moving towards statute law. The French know how to disobey the law sensibly in view of local circumstances. They know that you cannot slavishly obey every rule. We have not learnt that yet, so we should be very careful about how we set the rules in case they are slavishly obeyed. Somehow blurring the boundaries is much more sensible. I am not sure that having this whole thing of national security quite works. We have seen photographers being stopped for photographing perfectly innocent targets in the name of national security. I am very worried about the way that certain people will use these rules to stop normal activities. We regard ourselves as a free country but, if we are not careful, we might cease to be free. We have to worry about how other people, less sensible than us, may interpret rules in a very strict way in the future.
Baroness Manningham-Buller
My Lords, I say to the noble Lord, Lord Hodgson, that I certainly did not say that I knew all there was to know on the subject. I understand the concern over the misuse of this phrase to which everyone has referred. No one in this Committee would support what happened to the son of the noble Lord, Lord Deben, and his dog or the use of the phrase to cover embarrassment. These things are absolutely not to do with national security, which is being used as blanket cover.
The Earl of Erroll
My Lords, there was one thing I forgot to say. It is important to the noble Lord, Lord Hodgson. I think Pepper v Hart applies only where there is a conflict between European directives or regulations and UK law and the interpretation of it. Therefore you may not be able to get a Pepper v Hart —as you might say—pronouncement from the Minister tonight.
Lord Thomas of Gresford
I think that is too narrow a definition of the Pepper v Hart principle. I seem to recollect that when this Bill was first discussed and promulgated, the Government were intending not to use the test of the interests of national security but what was in the public interest. That was thought to be extremely wide. The leader of my party and my noble and learned friend’s party, apparently—at least he claimed—fought for its reduction to the interests to national security. Where the public interest stops and national security begins is a fine line, or perhaps it is a fuzzy one, but it is up to the Minister to give to a judge who has to consider applications of this sort positive guidelines as to what the Government have in mind now they have reconsidered the original purpose of their Bill.
Lord Beecham
My Lords, the noble Lord, Lord Hodgson, is too modest in proclaiming that this is a simple amendment, since it goes to the heart of the whole principle of Part 2 of the Bill, which changes—potentially fundamentally—the approach to the operation of civil justice, though not of course criminal justice, in the provision of a system permitting, in circumstances that we are debating, material to be kept from one of the parties and utilised under the closed material procedures.
It is worth reminding ourselves of some of the concerns that have been expressed. I am particularly interested in the briefing submitted by the Northern Ireland Human Rights Commission, as it comes from a part of the country that has confronted security issues to a very considerable degree and has suffered considerable harm over the past few decades from activities that all of us would deplore and which would probably come within the compass of any definition of national security.
Nevertheless, the Northern Ireland Human Rights Commission in considering the Bill proclaimed that it was,
“regrettable that despite some modifications to the proposals in the Green Paper, and the declaration under clause 11 … of the Bill”,
concerning these matters, there remain,
“the risks to the right to a fair trial under Article 6”,
of the European Convention on Human Rights, and Article 14. The commission goes on to say—and this matter was referred to in Second Reading—that the Government have,
“yet to make an evidence based case as to how the current Public Interest Immunity provisions have failed to protect national security interests and therefore why a system of CMPs is needed at all”.
The commission affirms that it would appear that the Government are,
“prepared to sacrifice fair trial protections and wait for litigation to be brought by those alleging”,
a breach of Article 6,
“rather than ensure adequate protection from the outset”.
It advises that,
“the proposals are not likely to satisfy the requirements of Article 6 … in a significant number of cases”.
That is a fairly trenchant critique of the proposals. The commission concludes that the Government have,
“failed to demonstrate the need for the Bill’s provisions … The move from evoking a CMP on public interest grounds to national security grounds has been reported as an acceptable narrowing of the original proposals. Human rights law accepts national security as grounds for qualifying rights. However, NIHRC expresses concern that ‘national security’ remains a broad term that might still be relied on too readily by Government and in a manner that is not consistent with its human rights obligations”.
The briefing refers, as the noble Baroness, Lady Manningham-Buller, referred, to the national security strategy, with its references to pandemic diseases and,
“natural hazards along with increases in organised crime are listed as threats to national security”.
It concludes that the Government are,
“yet to be sufficiently definitive about what it means by national security for the purposes of requiring a court to permit a CMP in a civil case. The risk is that what is now claimed to be a ‘fix’ for a limited number of civil cases”—
and that is the Government’s case; the extent to which it is likely to be limited to very few cases is supported by Mr Anderson—
“becomes a ‘fix’ increasingly relied on by Government to obstruct scrutiny and attempts to seek redress”.
The commission’s are not the only concerns that have been expressed about the issue of definition. In evidence from the special advocate to the Select Committee, Mr McCullough stated that,
“there is the possibility that national security could be very broadly defined, unless some reassurance as to its scope were given. On one view at least, anything, or almost anything, involving international relations might be argued, and one could envisage being argued by the Government, as to have an impact on national security”.
Of course, as has already been indicated, it is not really possible to be definitive about what constitutes national security and what does not. It would be impossible to be conclusive because, as noble Lords have indicated, circumstances change and threats change, and it would be foolish to prescribe a definitive list. The noble Marquess, Lord Lothian, said of national security that you know it when you see it. The question is, in these circumstances, who is “you”? The Government may take a view; others may take a different view. Although these matters are difficult, we have to try to evolve a system that will give some guidance to those who operate the system and, indeed, those who may ultimately have to form a judicial position on individual cases.
The Marquess of Lothian
My Lords, Clause 6(2) states:
“The court must, on an application … make such a declaration if the court considers that … such a disclosure would be damaging to the interests of national security”.
My point is that, in order for the court to be able to make that decision, that court procedure is the time when you can actually “know it when you see it”. There may be arguments on both sides but the court has to resolve that. We, at the moment, are arguing that in a vacuum the court will have to decide it according to the particular circumstances.
Lord Beecham
It would, but the court would be assisted perhaps by an approach in which the Government in advance and in general terms—and not necessarily on a permanent basis—indicate what they consider is relevant for the purposes of these claims. They could, for example, say, “We have a national security strategy, but there are things in here on which we would not seek to rely in cases that might be brought”—say, organised crime or any of the other matters to which the commission referred and to which the noble Baroness, Lady Manningham-Buller, referred.
The noble Lord, Lord Hodgson, provides a definition that is both too broad and too narrow. It seems too broad if one looks simply at the definition of “intelligence or military operations”. There have been cases that resulted in inquests—to which these procedures would not apply—where, for example, there might be a question about whether equipment used during military operations was fit for purpose, and that might give rise to a civil claim, for example, by a wounded soldier; we know that such incidents have arisen. The noble Marquess might say that that does not really constitute national security for the purposes of bringing a claim. On the other hand, the definition could be considered too narrow, because one can envision circumstances in which there was no military operation but there was transportation of chemical or fissile substances or storage of such things, which were not necessarily for military purposes but which obviously would count as being relevant to national security because of the risk of terrorists seizing the equipment or substances. Those examples illustrate the difficulties but do not, perhaps, take us very far.
I wonder whether, in these circumstances, it might be a matter for the Government, possibly with the assistance of the Intelligence and Security Committee, to provide some guidance about what would be deemed to be relevant to the issue of national security in the event of an application being made, assuming that the basic principle is accepted and that the Government are found by Parliament to have made their case—and, I repeat, so far as the Opposition are concerned, we are not yet convinced of that. It may even be that negative definitions of the kind that I have indicated in relation, for example, to the national security strategy, might be helpful so that you can exclude certain things ab initio, and you might give an indication of things that are clearly included—military operations, I would have thought, certainly would be included.
The contributions of the noble Lord, Lord Deben, and, in particular, the noble Lord, Lord Hodgson, as well as that of the noble Earl, Lord Erroll, have indicated the breadth and depth of concern about the road we are embarking on. It is not beyond the capacity of the Government, with the advice and support of the ISC, to produce not a statutory definition, because that would be too rigid, but guidance that would assist the courts and others in considering these matters at the relevant time. Does the Minister consider that a step worth taking?
Lord Faulks
The noble Lord said that the party opposite is not yet convinced of the need for CMPs, and he made various suggestions about possible guidance or a definition that would assist on the question of national security. Does it follow that if there were further guidance or a better definition of national security along the lines he suggested, that would go some way to satisfying whatever needs to be satisfied in terms of the party opposite’s potential opposition to CMPs?
Lord Beecham
My Lords, we are capable of simple arithmetic, and it may be that, in reality, the Government will get their way on the principle. We will keep an open mind through Report stage and listen carefully to what the Government say. At the end of that process, we may or may not accept the case. If it is the wish of this House—in the first instance—and of Parliament as a whole to proceed with closed material procedures, we might come to what one could call the last-resort position of looking at how best to limit any application of the new procedure and how to make the best of the situation, in the interests of justice and the traditions that this country has espoused for centuries. It would be making the best of what we currently consider is a very bad job. However, we are open to evidence. There is not a great deal of evidence at the moment, although there has been some to which Mr Anderson referred—the three cases which seem to have persuaded him that there is a need for such a procedure. However, as I reminded the House the other night, he also said that the Government’s proposals were disproportionate and suggested measures that would have some mitigating effect on the process, if it were to be implemented.
That is the position of the Opposition. We are not taking a premature stance on this. It would be interesting to know, for example, whether the special advocates have, as suggested, actually been shown the files of the independent adviser who is to be consulted, or whether the process is going to take place at all, and what the view of the special advocates is. Your Lordships will recall that they were very critical. Almost all of them signed up to criticism of the proposals as they stood. In evidence to the Select Committee, Mr McCullough said that he would welcome the opportunity, if it were given, to look at the cases that seemed to have persuaded Mr Anderson to accept the principle, given that, as he made clear, he continued to think there would be only a limited number of cases. At the very least, the amendment has allowed us to look at ways in which such cases might be restricted to a small number, against criteria that, although not statutory, might be developed while the Bill is making its way through Parliament.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I am grateful to my noble friend Lord Hodgson for bringing forward the amendment. It is clear from the contributions that it raises an important issue. I certainly recall that on publication of the Bill, the issue of whether there was a definition of national security was raised not just by a number of Members of your Lordships’ House but more widely. It is important to define the type of material that closed material procedures should be used for. I hope that I can set out why we think we have reached in the Bill the right definition of the type of material that would be considered within a CMP—material that if released would damage national security.
The Government carefully considered the responses to the public consultation on the Green Paper, including consideration of the scope of the material to be covered, before bringing forward this legislation. The Bill makes provision for closed material procedures to be used only in contexts where there would be damage to national security. Examples of sensitive material that might be relevant to a case that would give rise to a duty to claim public interest immunity, and which could also be heard in a CMP under this legislation, include, for example, information from a sensitive source whose life or safety could be put in danger if openly disclosed. I think that example was given by the noble Baroness, Lady Manningham-Buller. Other examples include information relating to current operations that would be compromised if it were to be made public; intelligence material shared with the United Kingdom by foreign intelligence agencies; or the content of telephone calls or e-mails intercepted by the intelligence agencies that would not be admissible in open civil proceedings. It is difficult—a number of noble Lords said this in their contributions—to be completely prescriptive about all the types of damage to national security that could justify closed material proceedings.
The amendment in the name of my noble friend introduces a definition. I would assert that the term “national security” is clear, tried and tested. My noble friend Lord Lothian said that it is clear “when you see it”. One noble Lord asked: “Who sees it?” In this case, the judges see it. The Secretary of State makes an application to the court, and the judge determines whether it satisfies the condition that there would be damage to national security.
It has been for judges to interpret this term appropriately and flexibly. The flexibility of the current approach allows the judge to consider the arguments of the Secretary of State on their merits. Of course, the procedure, even at the initial gateway stage, would also allow special advocates to make representations to the court.
The noble Lord, Lord Beecham, mentioned Article 6 of the European Convention on Human Rights. It is important to remember that in Clause 11(5)—
Lord Hodgson of Astley Abbotts
The noble and learned Lord just said that the special advocates could make representations to the court. I am not a lawyer, as I have said frequently, but Clause 7(1)(b) states that,
“such an application is always considered in the absence of every other party to the proceedings (and every other party’s legal representative)”.
Does that not mean that only one side presents?
Lord Wallace of Tankerness
I think that my noble friend has an amendment later where we can explore this more fully. It is the case that special advocates could be engaged both at the second stage, when individual pieces of evidence are being considered, and, by virtue of Clause 10(4), at the application stage.
I will finish my point on Clause 11(5). Nothing in Clauses 6 to 11 should be read as requiring a court to act in a manner inconsistent with Article 6 of the European Convention on Human Rights. In that respect it could be said that Article 6 trumps the provisions expressly set out in Clauses 6 to11.
My noble friend expressed a recognisable concern that national security today might involve serious crime or international relations tomorrow. It is very clear that not only will it not, but that international relations and criminal activity have been considered and rejected for the purposes of closed material proceedings in civil cases. The Bill deliberately omits other aspects of the public interest from CMP clauses, such as international relations and the prevention of detection of crime, even though these categories are included in existing statutory CMPs. I hope that that gives the assurance that it is certainly the intention of the Government that there should not be definition creep, as it were.
My noble friend asked about Pepper v Hart, as did the noble Earl, Lord Erroll. It is not only when European Union issues are involved but when there is doubt in a court case about the interpretation of any primary legislation that the parties can resort to statements made in Parliament that should throw light on the interpretation. So this is not limited to an EU context. We cannot dictate to the courts how to apply Pepper v Hart, but doubtless, in future, parties to litigation will be able to read what I am saying today at the Dispatch Box and, if pertinent, advance cases to the court on that basis.
I have an embarras de richesses.
Lord Pannick
Can the Minister confirm that the concept of national security under the Bill is deliberately intended to be narrower than the other concepts included in the Bill? I have in mind Clause 5(5), which appears to contrast the concept of national security with the broader concepts of public interest, the prevention or detection of serious crime and the economic well-being of the United Kingdom. It appears from Clause 5(5) that those are distinct matters. National security is a much narrower concept, and similarly Clause 13(5) appears to contrast the concept of national security with the concept of the interests of the international relations of the United Kingdom. I understood the noble and learned Lord to confirm that those other concepts were not within the concept of national security.
Lord Wallace of Tankerness
My Lords, for the purpose of closed material proceedings and what we are dealing with here, national security is the specific concept, although it is not defined in the Bill. As I indicated, the Green Paper suggested that it might go wider to include some of the matters that the noble Lord, Lord Pannick, raised, but we have quite clearly indicated that that will not be the case in matters of national security. I give way to my noble friend who I understand was a counsel in Pepper v Hart.
Lord Lester of Herne Hill
I have two points. I do not understand why it is necessary to refer to Article 6 of the convention in the way that the Bill unusually does, given that the Human Rights Act requires the Bill to be read and given effect to—in so far as is possible—compatibly with convention rights, including Article 6, and given that the court is required under Section 6 of the Human Rights Act to act in a way compatible with convention rights, including Article 6. I have not before seen in any other legislation post the Human Rights Act the singling out of an article of the convention in that way. It seems to me to be troublesome as it might lead to some inferences that are incompatible with the scheme of the Human Rights Act.
On the same subject, the convention distinguishes between national security in the narrow sense and factors like the economic well-being of the country, to which the noble Lord, Lord Pannick, referred. Am I right in understanding that those are the kind of distinctions that the Government have in mind when they deal with national security in a narrow sense?
Lord Wallace of Tankerness
My Lords, I hope that Clause 11(5)(c) is not troublesome because it is intended to be the opposite. As we have already heard in our deliberations in Committee, concern has been expressed, even a short while ago by the noble Lord, Lord Beecham, about Article 6. The clause seeks to give reassurance and I hope that my noble friend will be satisfied with that. No doubt there may be something on which I can give further reassurance. I think I am right in saying that what is there follows what is in the TPIM Act and the Counter-Terrorism Act. Questions might be raised but it is there to make matters absolutely clear.
My noble friend Lord Hodgson said that he hoped that we would not allow a situation where citizens would be swept up by a wide definition of national security. My noble friend Lord Deben gave a graphic illustration of his son walking the dog. It will not be a constable or a high-ranking officer in Whitehall but a judge who will make the decision. Nor indeed—I shall make this very clear—is the intention to avoid embarrassment. In fact, an important purpose of the Bill is to allow material to be considered by the courts in cases where to exclude it may mean that a case has to be settled. The purpose is actually to allow a court to be able to consider it; this is far from wanting to sweep things under the carpet. If it were the case that, at some date in the future, a Secretary of State tried to use the provisions for the purposes of concealing embarrassment rather than to prevent damage to national security, that is something the court would be entitled to take into account when deciding whether the gateway test in Clause 6 was passed.
There is another point I would make to my noble friend Lord Hodgson, who said that the possibility of someone going to prison was important here. I would like to reassure both my noble friend and the Committee that the provisions in this part of the Bill relate to civil, not criminal proceedings. There would not be a situation, therefore, where a person would go to prison as a result of the provisions in this part of the Bill.
Lord Elystan-Morgan
My Lords, I thank the noble and learned Lord and I apologise for the fact that I missed the opening skirmishes of this debate. May I put a point to him which is utterly fundamental? The noble Marquess, Lord Lothian, said that we would know national security when we came across it. To put a judge in that position would mean that we would give them a legislative function as opposed to an interpretative function? That should be avoided, should it not? I do not expect an immediate answer from the Minister, but could I leave him to mull over this thought? It may be that a different approach could settle the matter in this way. If there was a definition of national security—something of the order of dealing with a situation that jeopardises, or has the potential to jeopardise, a fundamental function of the state—might that be not unacceptable?
Lord Wallace of Tankerness
My Lords, I will certainly mull over that point. However, in coming up with any definition, we would want to be very careful that it did not exclude things that should be included or include things that perhaps should be excluded. We will look very carefully at what he has said. The intention is that the concept should be a narrow one that will come into play in a very small number of cases. However, the definition set out in the amendment would not cover everything that is damaging to national security. Factors that are damaging to national security can change in accordance with assessments about the threat to the country. That was reflected in the contributions we have had, not least from the noble Baroness, Lady Manningham-Buller. If the definition is too narrow, we take the risk of legislation becoming unfit for the purpose for which it is intended. Sensitive intelligence and security material which security intelligence agencies hold and which is so vital to the discharge of their important statutory functions will have been acquired by them in a variety of ways and from a variety of different sources. Not all national security-sensitive material held by the security and intelligence agencies will by any means relate to, or be the result of, operations.
In view of this, we believe that the amendment is unduly limiting. For example, if information has been shared with United Kingdom agencies in confidence by foreign intelligence agencies, or has been disclosed to them in confidence by human sources, the amendment would not enable such information to be used within a CMP, however sensitive the provenance of the information and however confidential the relationship. There could also be a situation where the agencies have undertaken preliminary research and analysis before deciding whether there is a sufficient national security case to justify embarking on an intelligence operation. Information generated during the course of that preliminary work, whether or not an actual operation ensued, could well be highly sensitive in security terms and of significant relevance in a particular case. However, if the amendment was accepted, it would not be possible to use the information.
I think that it was the noble Lord, Lord Beecham, who said that there was a danger that the amendment was both too broad and too narrow at the same time. It could also go wider, in that not all matters—including operations by the military—would relate to national security. In fairness, my noble friend Lord Hodgson of Astley Abbotts accepted that the terms of the amendment might not be ideal. It is perhaps illustrative of the fact that any attempt to make a definition can often be either too limiting or too broad. The Bill recognises that national security is very much an issue for the Secretary of State.
Lord Butler of Brockwell
My Lords, in supporting the noble and learned Lord’s argument that the definition should not be too narrow, perhaps I may take him back to the point made by the noble Lord, Lord Pannick. He sought to establish that national security was a narrow definition by invoking the categories in new Section 59A(5), as inserted by Clause 5, which are,
“national security … the prevention or detection of serious crime”,
and,
“the economic well-being of the United Kingdom”.
It must be the case that national security would include some of those other categories. The most obvious one is,
“the prevention or detection of serious crime”,
which might be terrorist crime.
Lord Wallace of Tankerness
My Lords, the Green Paper suggested that there might well be the category of the prevention of serious crime. That was considered by the Government. I indicated earlier in my remarks that the Bill deliberately omitted from the definition other aspects of the public interest from the CMP clauses, such as international relations and the prevention or detection of crime, although they do apply in other statutory CMPs. But the consideration of the representations received in response to the Green Paper was to make it solely matters that would be damaging to national security.
The policy of successive Governments and the practice of Parliament has not been to define the term “national security”. As a number of your Lordships accepted, it has been to retain the flexibility needed to ensure that the use of the term can adapt to changing circumstances —for example, changes to the threat environment and advances in technology. The nature of national security threats and risks is constantly evolving. That, in turn, requires the Government and the security and intelligence agencies to maintain their ability to evolve.
My noble friend Lord Lothian suggested that it would be better to leave this open and the noble Lord, Lord Beecham, accepted that it was not always possible to be definitive. The current approach is based on the recognition that this is a flexible concept which evolves in the light of changing circumstances. As my noble friend Lord Hodgson said, we want to avoid a legal straitjacket. The risk of any attempt to be precise and exhaustive would be to constrain the ability of the security and intelligence agencies to adapt their operational approach and develop capabilities to meet new and unexpected changing threats.
I will conclude with a pertinent example. Neither weapons of mass destruction proliferation nor cyber attacks feature in what is fortunately a non-exhaustive list of threats to national security which the Security Service is specifically charged with countering in Section 1 of the Security Service Act 1989. But who could deny that, some 23 years later, these activities represent serious threats to the UK’s national security? The flexibility is there for the security services to be charged with responsibilities without there being an exhaustive list.
The noble Lord, Lord Beecham, accepted that there might not necessarily be a statutory definition and he raised a question about guidelines. I will certainly consider guidelines, but I am not entirely sure where they would fit into the guidance being given to the court, even with the help of the ISC in devising them. However, I know that the suggestion was made in a constructive manner and I will certainly think about it in a constructive way. I do not readily see how it will fit in, but I will certainly consider it. He may wish to elaborate on what he had in mind.
Lord Beecham
I particularly had in mind ruling out areas—the noble and learned Lord has already indicated some of them—that would not be deemed to fit within the definition that the Government seek to apply. It is an exclusive rather than an inclusive list that I think might be helpful,
Lord Wallace of Tankerness
My Lords, I hear what the noble Lord says. I have already tried in response to the debate to indicate some of the things that are excepted from the definition as we have it. With those considerations in mind, I invite my noble friend to withdraw his amendment.
Lord Hodgson of Astley Abbotts
My Lords, I began by saying that I did not believe that this was an open-and-shut case, and so it has proved. My noble and learned friend has referred to the “statutory straitjacket” and problems thereof. Interestingly enough, while the debate was going on, I was passed a note by one of my noble friends showing a case in which he was involved, where national security was invoked in quite an extraordinary way. I do not therefore think that I have yet reached entirely firm ground.
I am grateful to my noble friend Lord Deben for his powerful and very apposite remarks and speech. My noble friend Lord Lothian is of course an eminent Scottish advocate. I am not an advocate, Scottish or otherwise, but in reference to his remarks on Clause 6(2) about the court deciding, I am told that where a judge is faced with a statement by the Secretary of State leading to a CMP—not a weighing of evidence like we have in PII—to the effect that this would be damaging to national security, the judge is unlikely to push back on it. Therefore, the idea which the clause might technically give rise to is not, according to legal opinion that I have heard, likely in practice to happen. Those who have experience in your Lordships’ House will be able to discern this better than I can. That is something which we can no doubt explore another day.
I said that the noble Baroness, Lady Mannigham-Buller, had forgotten more about national security than I would ever know. It was meant to be a compliment, for the avoidance of doubt.
Baroness Manningham-Buller
I take it as a compliment. It just sounded as though I had been boasting, and I would not want to do that.
Lord Hodgson of Astley Abbotts
It certainly was not boasting. It was my remark, not any remark the noble Baroness made to me. I found her history lesson, as she described it, very useful. We started from a narrow definition which has now moved out to a much wider range of threats. Of course, one must accept her stricture about protecting sources of intelligence where men and women put their lives on the line to help provide intelligence that protects this country. I thought her suggestions about narrower definitions were very interesting. As we are going to be using CMPs in rare cases and we accept that this is a dangerous precedent in many ways, perhaps some relationship between the definition and the operation of this Bill might be helpful.
In conclusion, I just say that the shift in gears with this Bill—the widening use of CMPs—requires us to consider and reflect on how we use the term “national security” as the trigger without any definition. My noble and learned friend has given plenty of food for thought and I would like to have a chance to consider and reflect. In the mean time, I beg leave to withdraw the amendment.
Lord Thomas of Gresford
“Disclosure of information
The disclosure of information in civil proceedings pursuant to an order of the court is to be regarded for the purposes of the Security Service Act 1989 or the Intelligence Services Act 1994 as necessary for the proper discharge of the functions of the Security Service, the Secret Intelligence Service or (as the case may be) the Government Communications Headquarters.”
Lord Thomas of Gresford
My Lords, this amendment is concerned with an anomaly that was revealed in the case of Evans v Ministry of Defence. The case concerned the handing over of Taliban suspects by British forces to Afghan security police, with the distinct likelihood that they would be tortured. The security services argued that they were not required to disclose documents in their possession for the purposes of the case because they were not themselves being sued—they were not the party concerned. The defendants were the Ministry of Defence. They said that there was a statutory bar. By Section 2 of the Intelligence Services Act 1994, the chief of the Intelligence Service is under a duty to ensure that there are arrangements for securing that no information is disclosed,
“except so far as is necessary for the proper discharge of its functions”.
Section 2(2)(a) of the Security Service Act 1989 is of a similar effect. It was argued that it was not necessary even to reveal the existence of the relevant material in their possession since it was not disclosable. I am informed by the Bingham Centre for the Rule of Law that the Evans case is not the only case in which the security services have advanced that argument.
Clause 6(2) as currently drafted provides that CMP applications apply where a party to the proceedings,
“would be required to disclose material”,
and so it is still open to the security services to argue for what they call a statutory bar, which would mean that they were not required to disclose anything at all unless they were themselves being sued. Paragraph 3(4) of Schedule 1, which we have looked at on a number of occasions, is interesting because it makes a specific provision that disclosure to the ISC is,
“necessary for the proper discharge of the functions”.
It is there, presumably, to counter any argument that might be made by the security services that they were not required to disclose anything to the ISC in particular circumstances. If that specific provision is in place for the ISC, there is no reason why a similar provision should not be made for disclosure to the court under Clause 6(2), which is the purpose of the additional clause I have advanced. It would counter any argument that the security services would not be required to reveal anything unless they were being sued themselves. I beg to move.
Lord Pannick
My Lords, would the noble Lord clarify whether the court accepted the argument that it was outside the duties of the intelligence services because they were not themselves being sued?
Lord Thomas of Gresford
As I understand it, the court did not accept the argument.
Lord Beecham
My Lords, I am grateful to the noble Lord for a clear explanation of something which, I am afraid, I approached with complete bewilderment. I simply did not know the point he was aiming at. I do now and I am persuaded by his argument. I hope that the noble and learned Lord will be sympathetic to the case he has made because it is convincing and consistent with the approach to the Intelligence and Security Committee. Given that precedent, I would have thought not that it would damage the interests of the security services, but rather that it would strengthen the role of the courts and uphold the principles that Members across the House seek to maintain in terms of the operation of the justice system. I hope that the noble and learned Lord will accede to his noble friend’s plea.
Lord Wallace of Tankerness
My Lords, I am grateful to my noble friend for bringing forward this amendment. He rightly points to two pieces of legislation which govern the security and intelligence agencies, the Security Service Act 1989 and the Intelligence Services Act 1994. As my noble friend has indicated, they place an obligation on each of the agency heads to prevent the disclosure of information obtained by the agencies except on certain limited grounds set out in those Acts. In particular, the disclosure of information is permissible where necessary in the proper discharge of the functions of the agencies. Information held by the security and intelligence agencies will include information and intelligence from human source reporting, and therefore is essential to the agencies’ operational effectiveness and the protection of national security.
As I understand it, the concern behind this amendment seems to be that these provisions would prevent the agencies complying with their disclosure obligations in civil proceedings. However, it is our view that the amendment is unnecessary. The agencies take their disclosure obligations very seriously. In England and Wales, if the claim is a civil damages claim, for example, Part 31 of the Civil Procedure Rules will generally apply. Standard disclosure requires parties to disclose the documents on which they rely—documents which undermine their or another party’s case and documents which support another party’s case. If the claim is for judicial review, all public authorities are subject to a duty of candour which requires the public authority, when presenting its evidence, to set out fully and fairly all matters that are relevant to the proceedings. Naturally, part of considering these disclosure obligations is the question of whether PII should be claimed or, if Parliament passes Part 2 of the Bill, whether the Secretary of State should apply for closed material proceedings. In a case where the agency is being sued for civil damages or someone is applying for judicial review, it is part and parcel of the proper discharge of an agency’s function to defend actions taken in the discharge of its functions. I therefore believe that the amendment is unnecessary.
My noble friend has made reference to paragraph 3(4) of Schedule 1 concerning the ISC provisions. This paragraph reflects a provision in the Intelligence Services Act 1994 which treats disclosure by the agencies to the ISC as necessary for the proper discharge of their functions. It may be asked, as my noble friend did, why this provision is needed there and not in the context of civil litigation. It is simply because it is right to make it clear, as existing legislation does, that disclosure to the ISC is permitted.
My noble friend may well be raising a case where it is a question of third-party disclosure. He mentioned a case of Evans v Ministry of Defence and, on the intervention of the noble Lord, Lord Pannick, I understood him to indicate that that argument did not win the day. It is a case that I wish to consider in the light of what my noble friend has said. If the effect of this amendment would be to treat the disclosure into any civil proceedings, regardless of the identity of the parties or the subject matter of the proceedings, as somehow part of the proper discharge of the agencies’ functions, that would conflict with the agencies’ need and ability to operate in secret. This is vital to maintaining the trust and confidence of those with whom they work; or, as was said in the previous debate by the noble Baroness, Lady Manningham-Buller, information may come from a particular agent, and the secrecy of that is important. I am thinking in particular of proceedings that do not at all involve the agencies and where a request for disclosure is made. It is right that in these circumstances the courts consider whether disclosure would be necessary for the proper discharge of an agency’s functions before an order for disclosure is made.
I have indicated to my noble friend that I will look at the Evans case. Based on what he said, I am advised that it may be similar to and consistent with the arguments that the agencies made in the Omagh bombing case—namely, that Section 22A is a bar to third-party disclosure, and that it was for the courts to decide. I hope that he hears that the agencies take seriously the requirements of disclosure in civil proceedings under Part 31 of the Civil Procedure Rules. On that ground I urge that the amendment is unnecessary and ask my noble friend to withdraw it.
Lord Thomas of Gresford
I am most grateful to my noble friend for indicating that he will look at these cases. In the light of that I beg leave to withdraw my amendment.
“Independent judicial commissioners to sit with judges in closed material proceedings
(1) Where the court makes a declaration pursuant to section 6(1)—
(a) the judge in the relevant civil proceedings shall thereafter sit with four independent judicial commissioners who shall sit throughout all open and closed proceedings;(b) the independent judicial commissioners shall sit with the judge as judges of fact.(2) The independent judicial commissioners shall consist of—
(a) county court judges, serving or retired, who have been subject to security vetting, such security vetting to have been supervised by a High Court judge; or(b) retired judges of the High Court, Court of Appeal or Supreme Court; and in either case—(i) being persons who have had no professional or other substantial connection with the armed services or security services; and(ii) being persons who have, so far as possible, never before sat as judges or independent judicial commissioners in closed material proceedings.(3) Judgement shall be given in favour of the excluded parties in the relevant civil proceedings unless the judge and the judicial commissioners shall unanimously or by a majority verdict of not less than 4:1 find that the cases of the excluded parties have been disproved to a high degree of conviction.”
Lord Dubs
My Lords, let us suppose that we have the first case heard or not heard in public under these new procedures. There are bound to be doubts, particularly if it is a case that has achieved a certain amount of publicity and notoriety, about the reliability and integrity of a verdict that has been entered against a citizen after the court has heard the evidence against him or her in secret. It is something to do with the concept, in a phrase that I have heard, of the secret whispers that the judge will have heard. I am not for a moment suggesting that the judge would not behave with total reliability and integrity, but there is also the question of the public perception of how that has happened.
There has to be a concern that the public may perceive that a single judge might be thought of as being one-sided if he repeatedly hears the state’s evidence in secret and finds in its favour. All that we shall know is that the judge has heard a lot more than the rest of the world is able to discern. Is it possible to develop any safeguards against what would be a serious perception about how the judges have operated? I repeat that I am not in any way suggesting that the judge would not behave with integrity, but he has to be seen to do so by the public.
This probing amendment suggests that there is one way of lessening a critical perception on the part of the public. That would be to appoint judicial commissioners. They would be able to sit with the judge. It would not be the judge on his own, but there would be four judicial commissioners. As the amendment makes clear, these judicial commissioners would be security-cleared county court judges or retired members of the upper judiciary; they would be totally independent of the security services or the Armed Forces; and, wherever possible, they would not have sat on CMPs before. All I am talking about here is a very simple safeguard that would not affect the principle of what the Government are about.
By putting this amendment forward, I am in no way accepting the basic principle of CMPs, but if one tries to make something one does not like less bad, one is not necessarily accepting the principle of the thing—just in case there is any misunderstanding. Having said that, to make this work less badly than the Bill currently proposes, I am simply suggesting that it might be helpful to have independent commissioners sitting alongside the judge. I beg to move.
Lord Lloyd of Berwick
I have not had much time to consider this amendment but, on the face of it, it seems attractive. Of course, judges are quite used to sitting with assessors on questions of fact. Certainly that is true in patent cases at all levels and, if I remember correctly, the Restrictive Practices Court used to sit with lay assessors. It is true that in all those cases the assessor would be an expert rather than a judge, so he would not be able to overrule the judge on a question of fact. But that was not always so in other cases; for example, the president of an employment tribunal could always be overruled—and was sometimes overruled —by the two other members of the tribunal on a pure question of fact. Therefore, the idea of the judge in these cases sitting with other judges is not altogether startling.
However, the reason I support the amendment is rather different from the one given by the noble Lord, Lord Dubs. Being a judge can be a very anxious business. Of course, in the most serious criminal cases findings of fact are made by the jury, so the problem does not arise, but there are very serious civil cases where the judge has to make a finding of fact as to which side he believes, and that necessarily involves a finding that the other side is lying. I sat in many such cases and I often felt the need for someone sitting beside me who could either confirm or overrule my view. One surely cannot imagine a more serious sort of case than that which is going to be tried under the new closed material procedure, and I support the amendment for that reason.
I have doubts about subsection (3). I would have thought that two assessors rather than four would be sufficient for the noble Lord’s purpose. It would certainly have been sufficient for my purpose when I was sitting as a judge. I hope that the Minister will give a fair wind to this amendment, which I support.
Lord Faulks
My Lords, very briefly, while the idea of having those who are not the primary judges assisting that judge with making decisions is not unfamiliar—as the noble and learned Lord, Lord Lloyd, has said, it has precedent in a number of different contexts—this represents a rather elaborate and perhaps even cumbersome method of deciding these cases. It also must be borne in mind that the special advocates are particularly anxious to preserve the role of a single judge in whom they have great faith, judged on the limited experience of closed material proceedings. In fact, they very much favour the role of the judge using the existing PII process instead of CMPs, rather than advocating the rather broader process contained in the amendment.
Proposed new subsection (3) is perhaps unusual—which of itself is not an objection—but I respectfully suggest that the final provision requiring a reversal of the burden of proof to a high degree of conviction is really going it a little bit. It means that it will be very difficult indeed for the Government to rely on evidence and the whole purpose of the CMPs will be frustrated. That may indeed be the intention of the amendment but it is not a very satisfactory position.
Lord Pannick
My Lords, I share the concerns of the noble Lord, Lord Dubs, about the fundamental unfairness of the procedure by which the judge decides the case without one party having access to vital material and about the public perception of a decision made on that basis. However, it seems to me that the fundamental unfairness, and the perception of unfairness, is not caused by the identity of the judge or the fact that there is only one judge sitting. It does not seem to me that the fundamental unfairness, or the perception of it, will be diminished at all if the judge sits not alone but with two county court judges, four county court judges, or with two or four retired judges of the High Court, Court of Appeal or Supreme Court. That is not the cause of the fundamental unfairness.
Nor, with great respect, do I share the concern of the noble and learned Lord, Lord Lloyd of Berwick, that there is some onerous obligation on the judge who hears these cases alone. Judges are used to hearing difficult questions and deciding them. Judges decide, and have decided, similar issues in the context of control orders and they are now deciding them in the context of TPIMs. Of course, there are very considerable cost implications of having five judges instead of one whenever one has secret hearings and it will cause very considerable delay in these hearings. So although I understand the concerns, I do not think that this is a solution.
Lord Carlile of Berriew
My Lords, I fully understand the concerns that have been expressed by the noble Lord, Lord Dubs, however, for the reasons principally given by my noble friend Lord Faulks, I disagree with this proposal. It does scant justice to the judges who have shown great independence in the control order and TPIM cases that the noble Lord, Lord Pannick, mentioned. I do not understand the substance of this proposed amendment to be a complaint made by the special advocates at all. My view is that the way in which judges are trained and apply themselves to their cases does not require an elaborate amendment of this kind.
Lord Elystan-Morgan
My Lords, the motivations behind this amendment are, I have no doubt, noble, honourable and sensitive. I greatly respect, therefore, the arguments put forward by the noble Lord, Lord Dubs. I respectfully tend to agree with the noble and learned Lord, Lord Lloyd, that it may well be that there is a case for having what is almost a jury situation. In such a situation—again, bearing in mind that juries very seldom operate in civil cases—we would not normally have a jury in any event, but the real problem is, I think, a much deeper one.
Imagine a judge having to determine the fundamental issue of whether this matter is to be dealt with by way of a secret hearing. Does he look at the prose of the application by the Secretary of State or the affidavits? Does he look into the eyes of learned counsel to see whether there is a burning sincerity in the face of the counsel for the claimant or whether there are doubts genuinely registered in the face of the counsel for the defendant? Is the judge not placed in a situation that is virtually impossible?
To a large extent the question of a special advocate under Clause 5 and, I would say, to a limited extent the appointment of a special counsel under Clause 8, will deal with part of that. There will be a totally independent advocate, but an advocate, however brilliant, forensically skilled and eloquent, can be only as effective as the ammunition that he has at his disposal, which is the correctitude of certain facts that are relied on by a party. If that estimate, however genuine, is wrong, then the decision of the learned judge must be utterly fallacious. How do you deal with that situation? I harken back to debates that we had some years ago in relation to a criminal situation and PII. It seems to me that there is a very strong and unanswerable case for a special investigator operating under the special advocate. It does not seem from my reading of Clause 8 that there is any power for the special advocate to appoint such a person. However, the fairness of the situation will depend entirely on the assiduity with which some other person or body would be able to examine these sensitive facts. That person must be someone in whom the community has total confidence in terms of confidentiality and secrecy but also their competence to bring to the attention of the court that vital element of the correctitude or otherwise of those facts.
Lord Lester of Herne Hill
My Lords, in later amendments, we will be considering ways of making what at the moment is an unfair procedure fair, or less unfair. I agree with the noble Lord, Lord Pannick, that the procedure as it stands is not fair and also that it does not become any more fair by adding assessors or advisors to help the judge who has to decide whether to grant a declaration under Clause 6(1).
My experience of assessors or others—whether in an employment tribunal or in a county court for example—in dealing with discrimination cases, which are difficult and often involve weighing proportionality issues, has been an unhappy one. Along with others who have spoken, I have huge admiration for, and confidence in, the ability of our senior judiciary and agree with the noble Lords, Lord Pannick and Lord Carlile of Berriew, that our judges have displayed a very good ability to weigh competing interests in difficult cases.
It will be important to look later at ways of making the procedure fairer, but with all respect to county court judges, whether serving or retired, and to retired judges of the senior courts, I simply do not think that having more of them is going to make it easier. This is not a question of deciding facts, like a jury; it is a question of striking a balance between competing interests. That seems something that our senior judiciary are well able to do without being bolstered by any outside support.
Lord Beecham
My Lords, I pay tribute to my noble friend Lord Dubs, who has served with great distinction on the Joint Committee on Human Rights and of course has a long record of interest in matters of justice generally. However, I indicated to him during a conversation beforehand that I was not persuaded by his argument. I was persuaded, albeit temporarily, by the arguments of the noble and learned Lord, Lord Lloyd, but in the end I share the views of other noble Lords who have indicated that this is perhaps an overelaborate and unnecessary addition to the framework that would otherwise exist. One point that struck me is that it is a little invidious for a serving High Court judge to sit with current or retired county court judges. I do not mean any disrespect to county court judges, but am not sure—
Lord Elystan-Morgan
There are no county court judges. There have not been any since the Courts Act 1971. They are now circuit judges.
Lord Beecham
It is a while since I appeared before any judge whether county court or circuit. I meant the equivalent position. The noble Lord is clearly aiming at that tier in the judicial system and it strikes me as a little excessive. Equally, the provision for majority verdicts and so on would be somewhat invidious. Regretfully, I cannot support my noble friend’s amendment and I dare say that the noble and learned Lord will join the majority of those who have spoken in saying that the amendment would not be acceptable.
Lord Wallace of Tankerness
My Lords, the noble Lord, Lord Beecham, anticipated what the response would be. That said, it is only right to acknowledge the amendment moved by the noble Lord, Lord Dubs, and supported by the noble and learned Lord, Lord Lloyd, with reference to his own experience. I certainly accept that in moving his amendment the noble Lord, Lord Dubs, does not necessarily accept that we should be in the field of closed material proceedings. He made that clear, but he indicated that, in his view, it was necessary to have safeguards of the type proposed in his amendment. The Government’s position is that there are safeguards and in future groups of amendments we will be able to discuss the pros and cons of other potential safeguards.
As has been indicated, the amendment would require a judge in a closed material proceeding to sit with a panel of four additional judicial commissioners. In introducing these procedures the Government consider that we are providing the judiciary with another tool to deal with cases involving national security material. In the Justice and Security Green Paper, the Government floated the idea of a separate national security court with national security cases being diverted to it and different procedures being adopted in it. However, we concluded that national security is an aspect of disputes which may arise in any field of law and therefore it is better to keep cases in the ordinary courts where they arise while providing appropriate procedures, rather than moving different types of cases into one court where their only unifying factor is national security.
We are concerned that this amendment would be similar to creating a specialist court because it establishes an entirely different finder of fact for cases in which CMPs may be used. It envisages that the panel would preside over both the open and closed parts of the proceedings and this would fundamentally change the procedures adopted in the civil courts for cases in which national security is engaged. The oddity of what is proposed here can be illustrated by considering a case where national security material is important, but none the less is a small part of the material in the case. It might possibly even be a single document. Let us say that the court made a declaration that a CMP may be used and accepted an application that the document should be heard in closed proceedings. We would then be faced with proceedings which to all other intents and purposes were indistinguishable from other civil proceedings being presided over by a panel. We do not think that is right. My noble friends Lord Lester and Lord Carlile, and the noble Lord, Lord Pannick, made the point that single judges are well equipped to deal with this. My noble friend Lord Faulks made the point that subsection (3) very much changes the level and nature of the burden of proof and would materially change the nature of these proceedings. The noble Lord, Lord Pannick, indicated that it would also lead to cost and delay. I am always wary of talking about cost when we are dealing with such sensitive matters, but that would undoubtedly be the case.
The noble Lord, Lord Dubs, should be congratulated for coming up with an imaginative way of addressing his undoubted concerns. However, the Government believe it is better to retain the current judicial system in the civil courts and provide the judiciary with this new mechanism of the closed material proceedings rather than fundamentally alter the way in which the United Kingdom deals with civil proceedings by creating a finder of fact in cases of this sort.
I believe that it was the noble Lord, Lord Elystan-Morgan, who mentioned special advocates. They will provide the type of independent challenge that this amendment seeks to cover. I remind the Committee, as I am sure will happen on further occasions in our debates, of the case of M v Home Secretary in which the noble and learned Lord, Lord Woolf, granted an appeal on the basis of a rigorous cross-examination in the closed session. That in itself is testament to the work of special advocates in these situations. I hope that I and other noble Lords who have contributed have gone some way to encouraging the noble Lord, Lord Dubs, to withdraw his amendment, while recognising his motivation in putting it forward.
Lord Lester of Herne Hill
Will my noble and learned friend reassure the Committee that it is not part of the Government’s aim to change the overriding objective of the Civil Procedure Rules, which enable and require the courts to deal justly with cases?
Lord Wallace of Tankerness
I hope I indicated that we do not want to create something that is entirely different—some sort of national security court. Consistent with the other aspects of civil procedure, this is an additional tool to have closed material proceedings for material that would be damaging to national security if disclosed but should nevertheless be available to the courts.
Lord Dubs
I am grateful to the noble and learned Lord for his response, as I am to the noble and learned Lord, Lord Lloyd of Berwick, for obvious reasons. I thank him for his support. I cannot say that I have been overwhelmed by a tidal wave of approval from the rest of the Committee but that, as they say, is politics.
I have a very brief comment. The Bill will, after all, abolish juries. Given that we are abolishing juries, the proposal—
Lord Wallace of Tankerness
My Lords, these would be civil proceedings, which would be presided over by a single judge in any event. This does not relate to criminal cases, in which there would be a jury, but solely to civil proceedings.
Lord Dubs
My Lords, that is fair enough but the point of the judicial commissioners would be to help in establishing the facts. I have listened hard to the comments that have been made and will ponder them to see what sort of amendment might take into account the criticisms and would be appropriate when we get to Report stage. In the mean time, I beg leave to withdraw the amendment.
Lord Hodgson of Astley Abbotts
My Lords, in moving Amendment 55 I shall speak also to Amendments 56, 63, 64, 65, 66 and 67. This group of seven amendments spans Clauses 7 and 8. Their underlying purpose is to improve the relationship between the special advocate and his client—if that is the right word—and the special advocate’s ability to carry out his duties effectively. The group breaks down into three subgroups.
First, Amendment 55 concerns Clause 7(1)(b), under which the rules of court require,
“that such an application is always considered in the absence of every other party to the proceedings (and every other party’s legal representative)”.
This is the point that I made in the debate on a previous group of amendments. My amendment seeks to replace “is always” with “may be”. I accept that some, perhaps most, matters will be considered with national security in mind and so will have to be heard in a closed court. However, I wonder whether there will never be any matter that could be argued with a special advocate and other legal representation present. Obviously, one question is: what constitutes national security? We have had a debate about the looseness of that term. At the moment we have no definition of it. Then there are other sorts of information, such as that provided by the police and generated within the UK, which might come up and would not be within the closed material proceedings. I suppose the principle behind this is to increase judicial discretion and therefore fairness—an issue on which the Government have placed great stress. My last point on this amendment is that requiring a judge to hear CMP applications in the presence of only one side under all circumstances does not seem to fulfil the principles of natural justice.
The second group consists of Amendments 56, 64 and 65. This group is about the nature of the appointment of a special advocate and ensuring it is made in a timely fashion. Amendment 56 inserts a new paragraph after Clause 7(1)(b):
“that where a party is excluded from such an application his interests are represented by a special advocate appointed in advance of the court hearing such application and, if the application is granted, for the duration of the section 6 procedure and trial”.
The important words here are “in advance” and “for the duration of”. In other words, the special advocate needs to be given time for preparation and for consultation. My noble and learned friend may say that this will happen anyway but I am told—I stand to be corrected—that there is no statutory requirement at present and it seems to me that in these special circumstances it might be worth while to consider that.
Amendment 64 covers the same points in Clause 8. Clause 8(1) states:
“The appropriate law officer may appoint a person to represent the interests of a party”.
For me, the critical word is “may”. My amendment seeks to replace “may” with “must”. Again, the reasons for that are self-evident and run parallel with the supporting arguments I have given for my natural justice amendment.
Amendment 65 amends the same clause by removing the words,
“in any section 6”
and replacing them with,
“as soon as practicable following”
an application. Applications should not go unchallenged. Therefore it needs to be certain that the claimant is represented at the time of his application and during the proceedings.
The last group, Amendments 63, 66 and 67, is intended to try to strengthen the relationship between the special advocate and the claimant. Amendment 63 takes us back to Clause 7 and inserts two new paragraphs regarding what the rules of court must provide where the proceedings are in connection with a Section 6 declaration. They make it clear,
“that the special advocate is afforded the opportunity to take instructions from the party whose interests he is appointed to represent, and … that the special advocate is at liberty to apply to the court at any time if he considers that any relevant material should be disclosed”,
if he feels that is opportune.
Amendment 66 goes back again to Clause 8. Clause 8(4) states:
“A person appointed as a special advocate is not responsible to the party”.
That seems to me to be strangely indifferent and distant. I understand the nature of the relationship implied by “represent” and that is why my amendment does not propose that but it replaces “not responsible to” with the slightly warmer and more positive phrase,
“responsible for representing the interests of”.
That understands the positive nature of it but does not imply the normal professional duty and relationship.
Finally, Amendment 67 adds four new subsections. The proposed Clause 8(6) requires the special advocate to provide gists of material. We shall come to that in the next set of amendments. The proposed Clause 8(7) permits the special advocate to withdraw if,
“he considers that he is prevented or otherwise unable to properly represent the interests of the excluded party”.
I hate the split infinitive “to properly represent” but it provides a quite important albeit rather nuclear approach regarding the special advocate in the sense that he could draw attention to how the case was being run by withdrawing if he felt that his position had become untenable.
On proposed new subsection (8) in Amendment 67, the requirement for the special advocate to make a report to the ISC about each case for which he is responsible is intended to be an additional element of control. Proposed new subsection (9) would impose a duty and responsibility on him to preserve the confidentiality of closed material, except for the gist to which I referred under proposed new subsection (6), and except where material may lead to a crime that should be referred to the CPS. I have said before about that that I am the treasurer of the All-Party Parliamentary Group on Extraordinary Rendition. Some of the things that I believe have gone on in a rather shadowy way around that rather nasty practice could usefully be given some light. This would be a way in which that light could be shed.
To conclude, this group of seven amendments is intended to try to improve the quality of justice and the equality of arms by giving the special advocate a more defined role in Section 6 proceedings; ensuring that the special advocate attends proceedings where the issue is outside national security; ensuring that the special advocate is appointed in a timely fashion, before a Section 6 application is made; strengthening the ability of the special advocate to represent the claimant by ensuring proper access; and enabling the special advocate to resign if he feels that he cannot do his job properly.
The special advocates have circulated a paper to which I have already referred. I was particularly impressed by paragraph 17, where they list eight reasons why CMPs lack fairness and effectiveness. Three of their reasons seem to have relevance to this group of amendments. The special advocates think they are unfair because of the,
“prohibition on any direct communication with open representatives, other than through the Court and relevant Government body, after the SA has received the closed material”.
That is the first reason. The fifth reason refers to:
“A systemic problem with prejudicially late disclosure by the Government”.
The seventh reason refers to:
“The increasing practice of serving redacted closed documents on the Special Advocates, and resisting requests by the SAs for production of documents to them (i.e. as closed documents) on the basis of the Government’s unilateral view of relevance”.
These amendments are designed to tackle some of those problems. Some of the others in the list have importance, but those are the three most relevant. I beg to move.
Baroness Williams of Crosby
I mention again that I am not a lawyer, but I have the greatest respect for the noble Lord, Lord Hodgson of Astley Abbotts, who has done a very great service to this country in the excellent work that he and others have done in the All-Party Parliamentary Group on Extraordinary Rendition.
I want to underline what the noble Lord said about Amendment 66 and to ask my noble and learned friend on the Front Bench whether the wording could not be less sweeping than that in the Bill. Clause 8(4) states that,
“a special advocate is not responsible to the party to the proceedings whose interests the person is appointed to represent”.
I understand some of the problems and appreciate that there are difficulties here, but I ask my noble and learned friend to look again at the wording of the Bill. In particular, my understanding is that a special advocate is responsible for everything short of something that might put at risk national security; it does not mean that the special advocate has a way out of in any serious sense representing the interests of the person whom he has been appointed to represent. I think that that is the meaning of the wording of the Bill. Will my noble and learned friend consider wording that is less likely to raise any questions about the obligations of a special advocate for the people before them who have no other way to get across their case? I suggest that some wording that more precisely defines a special advocate’s duty and where it begins and ends would be much better than the wording currently in the Bill.
Baroness Berridge
My Lords, I support two particular aspects of this group of amendments. Following the comments of my noble friend Lady Williams, I, too, agree with the wording in the Bill in relation to the duties and responsibilities of the special advocates. In fact, while the Joint Committee on Human Rights was taking evidence, with the special advocates and lawyers in front of us, questions kept coming up about what their professional duties were to their client, with whom they could not communicate. It seemed to me, as a former lawyer, that it was perhaps one of the safest areas in many respects to have a client because there was no way that you could be sued for negligence when you could not communicate with the person whom you were supposed to be representing. It is a very unusual situation to put a professional in. We asked whether the Bar Council had given any guidance to advocates in this situation. I, too, found it very harsh for the Bill to say that the advocate is not responsible for the interests of the person whom they represent and I think that some more positive duty in the Bill would assist.
I also support proposed subsection (7) in Amendment 67, although it is not clear because it is an extension of the professional duties. Normally it is very clear to lawyers that they can withdraw from a case in certain situations, which are outlined in professional guidance. It is not clear whether a special advocate would have the same ability to withdraw from proceedings. I was always amazed that you could often be faced with two lever-arch files of A4 paper that contained the case papers, and when you got to trial, the trial boiled down to one or two key issues. In a particular case the issues may boil down to information as to where the claimant was on a particular day, and that becomes central to the case. So there may be one or two determining facts in a case. An advocate might be faced with information from the police and security services putting a connotation on certain facts, and be unable to turn to their client and say, “Where were you in August?”. In those circumstances the advocate might feel professionally that they could not represent the client’s interests properly. It is a corollary, I believe, of the situation that I raised in relation to previous amendments. In certain cases the judge may be in that situation as well, where one or two facts are so key to a case that, without hearing the claimant’s explanation of those facts, the case cannot be determined fairly. So this subsection gives the special advocate clarity that they can, in those circumstances, withdraw from the case. Therefore I support my noble friend’s amendments.
Lord Pannick
My Lords, my answer to the point made by the noble Baroness, Lady Williams of Crosby, is that regrettably Clause 8(4) is wholly accurate because the nature of the special advocates and the task that they are required to perform is that they are not responsible to the individual in whose case they are appearing. They are not responsible because they cannot tell the person concerned the information that is known to them, as the lawyer in the case. They cannot ask the individual to comment on that information or to give instructions to them on that information. If they speak to the individual concerned, what the individual tells them—the special advocate—may be wholly irrelevant to the case, unknown to the client.
Although the special advocate system is made available as being better than no representation at all, it is inherently and fundamentally unfair in that the individual concerned does not know the nature of the case against them; and nothing that the special advocate does, however competent and industrious they are, can affect that. I therefore think that there is no advantage in seeking to supply in the Bill what would be a fig leaf to conceal the reality of the situation; and the reality of the situation is precisely as it is put in Clause 8(4).
Lord Thomas of Gresford
My Lords, it also raises a very interesting question about which all lawyers will be concerned: who pays? When the special advocate is appointed in civil proceedings, does the losing party pay? Does the person who made the application—namely, the state—pay, win or lose? Where do costs lie in an event like that? When you have a provision in the Bill such as Clause 8(4) here, which states that the,
“special advocate is not responsible”,
to the claimant, how can the claimant possibly be responsible for his costs?
Lord Faulks
My Lords, the whole role of the special advocate is inherently unsatisfactory and is an exception to what we understand to be a normal way of proceeding in accordance with general notions of fairness. However, it is a practice that has become well established; it has evolved. There are a number of special advocates who have performed their roles with distinction and effectiveness, as the noble and learned Lord, Lord Woolf, said in a much-quoted judgment. Many of their concerns, referred to earlier in the debate, were directed towards the way in which material was disclosed and the lateness and inadequacy of such disclosure. There may be much in those criticisms. They are fairly familiar incantations from advocates, whether the proceedings are closed or open. They do not reflect well on anyone who is responsible for late disclosure in a case.
We should bear in mind that judges have shown themselves particularly astute at protecting parties whose cases are heard in a closed session. If there is unsatisfactory practice on the part of the Government in terms of late disclosure or not giving special advocates fair access to material that will enable them to do their task, that is not going to improve the Government’s prospects and will be reflected, I suggest, in the way in which the judge approaches the case altogether.
While I have considerable sympathy for what lies behind these amendments, I would respectfully suggest that the position of the special advocates is quite correctly set out in Clause 8(4). It is not an ideal situation but it is a situation that has developed, and I trust the judges to respond appropriately to the demands that this particular procedure presents.
Lord Gold
My Lords, I am concerned that, if the special advocate is made responsible, there is a greater risk that he will rely on this amendment and withdraw from the proceedings. Although this is not a perfect situation, it is better that the advocate is there and does not withdraw; otherwise there is no representation or no points made independently at all.
Baroness Manningham-Buller
My Lords, I want to comment on one of the amendments in this group. Looking at the first part of Amendment 67, I understand what this amendment is trying to do, which is to improve the relationship—or, indeed, to create the relationship. However, the special advocate is not able to judge the damage that would be caused by a summary. It is the relevant person who is defined in the Bill who prepares any summaries of material. I do not think that this is workable because the special advocate, however briefed he is, will not understand necessarily the sensitivities behind the intelligence and the damage that would be caused.
Lord Lester of Herne Hill
My Lords, I would just point out that Amendment 62, which has not been included with this group of amendments, will deal with a particular way of trying to alleviate the problems about the special advocate. We will come to that in the next group.
Lord Marks of Henley-on-Thames
My Lords, I had not intended to intervene in this debate, but having heard the noble Lord, Lord Pannick, and my noble friend Lord Faulks describe—accurately, one has to concede—the role of the special advocate and the limited responsibility that he has to the person whose interest he is appointed to represent, one is bound to come back to the amendments proposed by my noble friend Lord Hodgson and ask whether there is not a field that my noble and learned friend the Minister ought to consider—namely the degree to which we might fairly increase permitted disclosure to the person whom the special advocate is appointed to represent. There ought to be a guiding principle, consistent with what the noble Baroness, Lady Manningham-Buller, said, that there should be as much communication as is consistent with the interests of justice, short of disclosing material to the party from whom some disclosure that is prejudicial to national security is withheld. The special advocate’s position could be effectively carried out without compromising national security if some movement in that direction were to be conceded. It may be that my noble friend’s amendments do not achieve precisely that balance, but at the moment we have a system that is so restrictive of communication that it destroys the public confidence in the special advocate system that there might be.
Lord Beecham
My Lords, this is an important group of amendments, as are the amendments to follow which deal with the position of special advocates. The Constitution Committee, in its report of 15 June, made reference to the earlier report of the Joint Committee on Human Rights and stated:
“The use of Special Advocates has proven to be highly controversial”.
The report then quoted the 2010 report of the Joint Committee on Human Rights which stated that, even with the use of special advocates, the closed material procedure,
“is not capable of ensuring the substantial measure of procedural justice that is required”.
The Constitution Committee report continued:
“The Special Advocates themselves have voiced grave concerns as to the limitations inherent in their role. They submitted a … response to the Green Paper”,
which stated:
“Our experience as Special Advocates … leaves us in no doubt that CMPs are inherently unfair; they do not work effectively; nor do they deliver real procedural fairness”.
The Constitution Committee report added that even the Court of Appeal—which commended the special advocate system and said that it,
“enjoys a high degree of confidence among the judiciary”—
pointed out that the system is,
“‘inherently imperfect’ and that the system ‘cannot be guaranteed to ensure procedural justice’”.
Those are significant criticisms, even allowing for the efforts made by the distinguished body of men and women who serve as special advocates. I refer again to the evidence to the Select Committee about the special advocates, particularly the evidence of Mr McCullough, who was clear about the problems they faced. He said that the best they can do is,
“very limited indeed, particularly given the nature of intelligence material, which, very often, requires inferences to be drawn from circumstances that may have a sinister explanation … We, as the Special Advocates, are in great difficulties in displacing the sinister explanation if we cannot take instructions from the person who is in a position to provide the innocent explanation. So that is a fundamental difficulty”,
that they find themselves in under the Bill. In answer to a question from my noble friend Lady Lister in the same evidence session, he said that the legislative form of words that could be devised,
“would simply be that there is an obligation to give a minimum level of disclosure, which would enable the affected person to give effective instructions to their own representatives or to their Special Advocate. It would not be difficult to draft”.
That rather follows the line of the noble Lord, Lord Marks, in commending a procedure that would safeguard the element of national security but allow instructions—potentially, at least—to be given.
Lord Wallace of Tankerness
My Lords, this has been a very important debate on the role of the special advocates in the proceedings which are proposed in this part of the Bill. I am particularly grateful to my noble friend Lord Hodgson of Astley Abbotts for the way in which he introduced his amendments, in which he gave a very clear and concise indication of the purpose of each amendment and what the effect would be. That helped to set the tone for a very useful debate, and I appreciate the contributions from colleagues across the Committee.
Amendment 55 raises an important procedural point on how the application process for closed procedures would work in practice. My noble friend and I agree that it is essential that we balance fairness and national security. I hope I can set out why the balance has been struck in the way that it has and that the proposals put forward in the Bill are indeed fair.
Clause 7 means that an application for closed proceedings is always considered without any other party to the proceedings or their legal representatives being present. The amendment tabled by my noble friend would allow the court the discretion to allow another party into the application stage of the proceedings. Perhaps I can reassure my noble friend that special advocates are not excluded from the process of determining whether material should go into open or closed proceedings. Clause 7(1)(b) does not have that effect. Rather, it is to be read in the light of Clause 7(1)(a), which involves the application for material to be shown to the courts, special advocates and the Government only. Where Clause 7(1)(b) says,
“in the absence of any other party”,
it is not meant to exclude those referred to in Clause 7(1)(a). I hope that gives reassurance.
I indicated in an earlier debate that, by virtue of a later clause in the Bill, the role of the special advocates is there at the application—the original gateway stage, as we have come to call it—as well. At stage 2 of the CMP process there is a detailed document-by-document consideration during which special advocates can challenge each piece of sensitive material and make representations to the judge about why it should go into the open or be summarised, as well as make representations on the weight given to that material. This is what special advocates have done and do under current CMP cases very effectively indeed.
The noble Lord, Lord Beecham, asked how many times more information was made available. I am not sure whether that information is available. If it is, I will certainly share it, not only with the noble Lord but also with the Committee. However, in every case under the current statutory closed material proceedings, and indeed, I rather suspect, under those before the Al Rawi judgment where sometimes closed material proceedings were held with the concurrence of both parties, there have been incidents where specific pieces of evidence or specific documents have been admitted, allowed to be disclosed or ordered to be disclosed, so it may not be possible to give the full details in every case.
It is worth pointing out that there have been cases where, as a result of the work of the special advocates, the case for the excluded party has been successful. The noble and learned Lord, Lord Woolf, in M v Secretary of State for the Home Department has been quoted on a number of occasions in your Lordships’ House during these debates and clearly makes the point about the effectiveness with which the special advocates go about their work.
It is important to emphasise again that the judge will have a similar level of flexibility available to him or her under PII. For example, the judge will have the power to refuse non-disclosure, to permit non-disclosure of only parts of a document—in other words, redaction —to require summaries or gists, or to require a party to take action for refusal to disclose or summarise, for example, not to take certain points, or indeed to make concessions.
Where Article 6 so requires, the judge will always approach decisions about whether individual pieces of material are to be heard in closed proceedings from the perspective of the need to ensure that the proceedings are fair. Judges will refuse applications for material to be heard in closed proceedings where this is required by Article 6 fairness, and can order the Secretary of State not to rely on a particular argument if the Secretary of State is not willing to disclose material relevant to that point.
It is important to note that the application for a closed procedure could have open and closed parts. Only sensitive information which would damage national security would result in a proceeding taking place without the other parties, and I hope this explanation sets out the balance we have sought to strike.
Amendments 56, 63, 64, 65, 66 and 67 tabled by my noble friend concern the special advocates, and from the debate there is clearly concern in your Lordships’ House about the role of special advocates. These amendments highlight the important issues of how they are appointed and how they carry out their functions. I will endeavour to set out why I believe we have the necessary provisions in the Bill to allow the special advocates to operate as effectively as possible while at the same time safeguarding national security.
Lord Beecham
I wonder whether the noble and learned Lord could deal with this matter by accepting a slight modification to the wording so that there “must” be an appointment of a special advocate unless the party declines to accept the appointment.
Lord Wallace of Tankerness
That is a helpful suggestion. I am always wary of saying that, as it might cast doubt on what has been put in an earlier statute which is intended to do the same thing. An absolute requirement may lead to a special advocate being appointed in circumstances where it would be almost impossible for the person to function. I hope that the noble Lord is reassured that it is our intention that whenever an excluded person wants a special advocate, a special advocate will be appointed. I note what he says. Without wanting to cast doubt on what is in other statutes, we shall certainly have regard to what he says.
Lord Lester of Herne Hill
I appreciate that there is always the danger of what Lord Wilberforce once described as the “austerity of tabulated legalism”. I ask my noble and learned friend whether it is absolutely clear that, in exercising the rule-making power under Clause 7, nothing will be done to disturb the overriding objective, which is to enable the court to decide the case justly? That is a fundamental principle which must not be overridden, whatever the technical detail may be.
Lord Wallace of Tankerness
I would want to reflect on what the “austerity of tabulated legalism” actually means. We have had exchanges in earlier debates and we have set out why an express reference to Article 6 of the European Convention on Human Rights is incorporated into the Bill. I hope that my noble friend is assured by that. I am about to get to the point made by my noble friend Lady Williams. I will get there eventually.
Baroness Berridge
Following on from the point made by my noble friend Lord Lester about the overriding objective to act justly, if there is not a special advocate in the closed material proceedings, our courts will be hearing only one side in a completely unchallenged format. Therefore, is it not better to have the mandatory requirement? Even having a special advocate there who we know does not have an ordinary relationship with the client enables a more judicial decision to be made. Confidence in our courts will be more likely to be upheld if there is somebody probing potentially at the truth and not just acting on behalf of the claimant. One-sided proceedings could damage confidence in our judicial decisions.
Lord Wallace of Tankerness
The point I was making to my noble friend is that we are dealing with a rare and exceptional circumstance where an excluded person has indicated that they do not wish to appoint or provide instructions to a special advocate. Before acceding to my noble friend’s point, one would have to consider the almost impossible position that would put a special advocate in. It would be very difficult, if not impossible. That is why this is phrased as it is. It is very unlikely that that would happen. I am not aware that it has happened, but no doubt others who have practised will be aware. The noble Lord, Lord Pannick, is shaking his head. He is not aware of circumstances where that has happened. The great likelihood is that the excluded person will want a special advocate appointed to do the very kind of job that my noble friend rightly articulates.
My noble friend Lady Williams referred to the particular provisions in Clause 8 and to Amendment 66, which would remove the fact that a special advocate is not responsible to the party whose interests they are representing. The noble Lord, Lord Pannick, expressed very clearly why that provision is there in the form in which it is. The Bill makes clear that while the excluded party is not the client of the special advocate, the special advocate is specifically appointed to represent the interests of the excluded person. We believe that it is not possible to go further and to permit the special advocate and the excluded party to have a lawyer-client relationship. I fully understand my noble friend’s point but I think that the subsection is a product of the way in which the role of special advocate has developed. The concept of a party’s legal representatives being privy to information which is not disclosed to the client raises serious ethical and professional problems. That is why the provision is there. I think I am right in saying that it is reflected in some of the other statutory provisions where there are closed material proceedings.
Amendment 67 introduces a responsibility on the special advocate to provide a summary of closed material to the excluded party. There are two important aspects to that. First, the question of whether a summary should be provided is and should continue to be in the hands of the judge. It is the judge who will determine whether a summary of the evidence should be made available to the other party, whether this can be done without harming national security or whether it is deemed necessary for the proceedings to be fair, even where damaging to national security. Secondly, the special advocate, as I have indicated, is not in a position to determine harm to national security by deciding what information can be passed on to the excluded party. Rather, it is for the security and intelligence agencies to undertake this assessment. Special advocates have accepted that communication to the individual regarding the substance of closed material presents difficulties and may well not be possible without the involvement of the court and, in particular, the Government, to avoid the risk that inadvertently damaging disclosures are made. Mr Nick Blake, who is now a High Court Judge, gave evidence to the Joint Committee on Human Rights in 2007 while still a special advocate. In that evidence session he acknowledged that changing the rules to allow communication after service of closed material would put enormous responsibilities on special advocates not to disclose information inadvertently. We know that special advocates take that responsibility very seriously indeed. That is why we do not believe that it would be appropriate for the special advocates to determine the summary of the evidence to be made available.
Lord Hodgson of Astley Abbotts
My Lords, this was a menu of issues that I felt we ought to discuss today. I am exceptionally grateful to my noble friends Lady Williams and Lady Berridge for their support on Amendments 66 and 67. The noble Lord, Lord Pannick, did us non-lawyers a favour by revealing the full neutrality—or less than neutrality—of the special advocate. Describing my amendment as a “fig leaf” may have been a bit brutal, but it was at least clear. We now know where we stand, even if we are not reassured by it. I say to my noble friend Lord Gold that, whatever the rights and wrongs of the explanation given by my noble and learned friend on the Front Bench, to say that a special advocate has to stay because it is better that he stays, even if he does not like doing the job, than for the case not to be able to carry on, seems to be a strange way of following justice. My noble friend Lord Faulks seemed to be dangerously close to saying, “This is as good as it is going to get. Let’s trust the judges”. If we are not careful, we will put too much weight on the judges and on their judgment. We need to provide some buttress and support to them in their difficult choice and the difficult task that they carry out.
I am grateful to my noble and learned friend on the Front Bench for his extensive summing up. I am convinced by the arguments on Amendments 55 and 63. On Amendment 64, my noble and learned friend said that a claimant may not want to have a special advocate. Given what the noble Lord, Lord Pannick, said about the nature of the relationship, it seems that the claimant has virtually no interest in this at all. On “must” be appointed, it would be a good idea if he were appointed, because at least it would be better than nothing happening at all. That is an important issue and it is made more important by the way that the noble Lord, Lord Pannick, has illuminated the nature of the relationship or non-relationship.
With regard to Amendment 67, I am not suggesting that the ISC should have judicial scrutiny. I am trying to find a mechanism that will enable some body in which the Government, Parliament and society can have confidence to cast an eye over the way this procedure is working and ensure that the very important delicate balance, which we all know exists between national security and individual liberty, is maintained.
The speaking notes that officials prepared for my noble and learned friend did not get to the heart of what I was driving at. However, a lot of useful information was given by my noble and learned friend. I am extremely grateful to him and to all other noble Lords. I am sure that there are bits that we will want to come back to, but for the time being, I beg leave to withdraw the amendment.
Lord Hodgson of Astley Abbotts
My Lords, I am afraid that I have another group of amendments. In moving Amendment 57, I will also speak to Amendments 60, 61 and 68. Other amendments in this group, Amendments 58 and 59, will be spoken to by noble Lords more experienced in the law than I am. Again I await with some relief the arrival of the heavy artillery.
The purpose of this group of amendments is to encourage the use of gisting as a means of ensuring equality of justice. I accept that the amendments are quite challenging in the form that they have been put down, but I ask my noble and learned friend to see that they are balanced by the duty of confidentiality that was imposed on special advocates in my Amendment 67, which was in the group that we were just discussing.
Simply put, Amendment 57 omits Clause 7(1)(c), which imposes a duty on the court not to allow gisting. That strikes at the root of what this group of amendments is trying to achieve.
Amendment 60 takes Clause 7(1)(d) and replaces the words “consider requiring” with the word “require”, so that,
“if permission is given by the court not to disclose material, it must consider requiring the relevant person to provide a summary”,
would read,
“it must require the relevant person to provide a summary”.
As I said, the aim is to widen the use of gisting. Amendment 61 would omit Clause 7(1)(e) because it is again dependent on the national security definition and has in part been covered, as I said in my introductory remarks, by the duty of non-disclosure imposed by Amendment 67.
Finally, Amendment 68 would omit Clause 10(1) because I am not quite clear what it means. It seems to repeat Clause 7(1)(c) and I would be grateful if my noble and learned friend could explain why we need it.
In Committee, all our debates have had a pre-eminent underlying theme: how to balance the liberty of the subject with the need for national security and the judicial process. Gisting is one way to help that balance. I beg to move.
The Deputy Chairman of Committees (Viscount Ullswater)
My Lords, I must advise your Lordships that if this amendment is agreed to, I will not be able to call Amendments 58 and 59 because of pre-emption.
Lord Thomas of Gresford
I speak to Amendment 58 in my name and that of my noble friend Lady Hamwee. Clause 7(1) contains five paragraphs of which (a), (b), (d) and (e) are largely procedural. But paragraph (c), which states that,
“the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security”,
goes to the heart of the issue. Does the judge have any function when he is considering an application? Can he carry out a balancing exercise in which he can weigh the interests of not disclosing material against the interests of justice?
My amendment is simple. I note that my noble friend Lord Lester and the noble Lord, Lord Pannick, have a similar one to follow. I will not weary your Lordships with the argument for any length of time. It introduces the instruction to the judge that he must balance his decision and not simply follow a rubric that is laid out for him by the statute as currently drafted.
Lord Pannick
My Lords, I am certainly not the heavy artillery to which the noble Lord, Lord Hodgson, referred, but I will offer him some small arms fire in support. Amendment 59 is in my name and that of the noble Lord, Lord Lester of Herne Hill. As with all the amendments in this group, and as indicated by the noble Lord, Lord Hodgson, it is a further attempt to address the core problem with which the Committee has been concerned in relation to Part 2 of the Bill: that is, the need to ensure that the court is given power to order a CMP in the exceptional cases in which such a need arises, but only where there is no other fair and proper means of balancing justice and security.
Amendment 59, as the noble Lord, Lord Thomas of Gresford, said, is in similar terms to his Amendment 58. It would ensure that the rules of court would require the judge to ask whether the damage that the disclosure would do to national security would outweigh the public interest in the fair and open administration of justice. The Bill as drafted, as I understand it, would enable a CMP to be imposed even if the judge concludes that the damage done by not moving to a CMP was minimal, and even if the damage to fairness by denying open justice was substantial on the facts of the individual case. That cannot be right, especially when, as we have previously debated, a decision by a judge not to adopt a CMP would impose no obligation on the Secretary of State to disclose the material, because they would have the option of not continuing to defend the proceedings.
Amendment 59 is designed to implement the objective that was stated by the independent reviewer of terrorism, Mr David Anderson QC, in his oral evidence of 19 June to the Joint Committee on Human Rights. He said:
“The closed material procedure is a weapon that could usefully be added to a judge’s armoury, but it should be for the judge to decide on the fairest way to dispose of a case”.
At present, Clause 7 prevents that desirable objective from being achieved.
I will speak also to Amendments 60 and 62 in the group, to which I have added my name. Amendment 60 would require the judge, if ordering a CMP, not just to “consider requiring” a summary of the closed material to be provided to the other parties—it would require that such a summary of the closed material be provided.
Amendment 62 would require the court to ensure that the summary of the closed material contained sufficient information to enable the excluded party to give effective instructions to his legal representatives and to the special advocate. It would require the summary to satisfy that test even if it would impinge on national security. The reasoning behind Amendment 62 is that it sets out the bare minimum necessary to ensure a fair hearing. It is based on the criteria that were stated by the Appellate Committee of this House in the AF case in 2009 in relation to control order cases. Sufficient information was required by the Appellate Committee in a control order case to enable the subject to give effective instructions, even if such disclosure would have damaged national security. I declare an interest: I was counsel to AF in that case.
Lord Lester of Herne Hill
My Lords, my name appears on some of these amendments, and I will briefly make a couple of points. I say first to my noble friend Lord Hodgson that he makes a mistake if he refers to me as heavy artillery, since I was the most inefficient gunner officer during the Suez invasion. I lost an entire water-carrying convoy, and laid a smokescreen with 100-metre gaps in it. I do not regard myself as heavy except in a physical sense. Further, the noble Lord, Lord Pannick, referred to Blackstone Chambers, which is my chambers as well. However, I make it absolutely clear than under the cab rank principle, many members of my chambers have appeared on the other side in these cases. Certainly, although I listened to Ben Jaffey, I regard the fact that I am in his in chambers as immaterial.
The noble Lord, Lord Pannick, said almost everything that needs to be said, except that the Joint Committee on Human Rights itself recommended what is now Amendment 62. In paragraph 106 of its report, it recommends that,
“the obligation to disclose sufficient material to enable effective instructions to be given to an individual’s special advocate should always apply in any proceedings in which closed material procedures are used”.
In the previous paragraph, the report quotes my noble friend Lord Carlile as saying that AF standards—that is, these disclosure standards—,
“should apply to all proceedings in any event. I can see no respectable argument against gisting in any circumstances”.
The JCHR report concludes: “We agree”.
My other point is that although I am keen on the European Human Rights Convention setting minimum international standards, in this kind of area it is the common law standards and the standards of Parliament that really set fairness in this country. I sometimes worry that reliance on Article 6 of the convention, in a system where the civil law is very strong, may actually diminish the strength of the common-law system. So I hope that the fact that these amendments have the blessing of the all-party Joint Committee on Human Rights, of the special advocates and of my noble friend Lord Carlile, the former independent reviewer of terrorist legislation, as well as of those who spoke in this debate, will carry great weight with the Government.
Baroness Kennedy of The Shaws
My Lords, I agree with my legal colleagues in this House about the need for gisting as a step towards creating greater fairness. In my view, there has to be an obligation to disclose because the detainees in these cases—I have acted in them—are deeply disadvantaged. The noble Lord, Lord Pannick, has described powerfully the bewilderment and disappointment in detainees when an order is made against them, but they have not understood the case against them. I shall give an example because sometimes that helps us to root our understanding of why something might matter.
I took a case where a young man was to be deported on the grounds of concerns about national security. The gist of the case against him suggested that he had been present at a meeting in a house he shared with many other students at which discussions were held that were of concern to the authorities. Because the gist of the case was offered to us, it was possible to show that at the time the meeting took place the young man had been using a computer that was linked to the university in order to work on his thesis. The interactivity showed that he had been involved in quite complex, difficult work on his computer, which meant that he could not have been participating in and party to the meeting taking place in the house. That was one of the features of the case that made a real difference, but we would not have known about it if the gist had not been given to us. The force of something can only be brought home to those not involved in these cases by the use of a real example. The noble Lord, Lord Pannick, described people sitting in the court and being mystified by the process. That drives home just how unacceptable it can be.
I strongly urge that we do this least thing in trying to address the concerns about the whole business of closed material proceedings.
Lord Carlile of Berriew
My Lords, perhaps I may take a few moments to make four short points in support of Amendment 62, tabled in the name of my noble friend and the noble Lord, Lord Pannick. Gisting presents great advantages, above all of which, in a headline, is the advantage of fairness. First, it compels the Government’s advocates to focus on the real reasons for pursuing their particular point. Using the very good example cited by the noble Baroness, it enables them to see where they are wrong because an answer can be given if the gisting occurs. Secondly, it shortens the proceedings. If the gist is given, there have been quite a number of cases where the individual has seen that it is not worth opposing the application because he knows perfectly well where he was or what activity he was engaged in at a particular time. Thirdly, it is a fair process, or at least it is as close to a fair process as we are going to be able to achieve when dealing with national security. My fourth reason for supporting Amendment 62 relates to the other words in it which do not deal with gisting of itself. It concerns the ability,
“to enable the excluded party to give effective instructions to his legal representative and special advocate”.
I know that this is going to arise a little later too. To improve the procedure for arrangements to be made under the rules of court, it is absolutely essential for the individual to be able to give instructions to special advocates just as they can give instructions to their own counsel.
I think that this three-line amendment covers a multiplicity of issues and should be supported. I hope that my noble and learned friend on the Front Bench will see the sense of it.
Lord Judd
My Lords, perhaps it is an appropriate moment for someone who is not a lawyer to add a layman’s word. We debated these issues very fully at Second Reading and I believe that the helpful amendments before us are a good attempt to try to meet some of the anxieties that were expressed then. Speaking as a layman, what has always been important to me is the principle which has emerged from the history of our judicial system: someone who is accused of an offence should know the case against them so that they can defend themselves. The noble Lord, Lord Pannick, talked about how there is an element of unfairness in what is happening. That is true, but I think it is more fundamental than that. It is not just about unfairness; it is that we are breaching the principles of justice as they have emerged. That is what has happened because of the dreadful and appalling security issues which have arisen. As these procedures are applied, every possible effort should be made to keep the priority of justice at the forefront. Anything that can be done to achieve this should be pursued.
I am fearful that a certain sort of tendency could develop, but it should not be assumed that this is a change of gear which can easily be made in the process of a case. There must be a real and specific reason for doing it, and it should be limited to the fewest possible occasions. Even then, it is terribly important that we are certain that the principle of justice has been very much in the forefront of the minds of the judge and of everybody else before we pursue the technique.
We know that in the cause of combating terrorism and the extremism that leads to terrorism is crucial not to give ammunition to the cynical extremists who seek to exploit the impressionable with plausible argument. I cannot think of anything that has the potential to give more ammunition to an extremist wanting to recruit an impressionable person than for him to be able to say, “Look, there has not been proper justice in this case”. From that standpoint, the arguments we are putting forward are central to the issue of anti-terrorist and security policy itself. I am absolutely convinced of that. The people who have put forward these amendments are doing us a good service in terms of upholding the principles of justice and avoiding the terrible pitfalls of counterproductivity in the fight against extremism and terrorism.
Baroness Williams of Crosby
My Lords, I should like to follow the noble Lord, Lord Judd, in what one might call a very short interval for non-lawyers to speak. He has pointed to some crucial considerations that need to be borne in mind. I will turn for a moment to Amendments 58 and 59, which are crucial to a fair outcome of this complicated debate. In doing so let me say that I strongly agree with those who have argued for gisting as a way of moving a bit closer towards a just outcome for those who cannot be openly represented and, indeed, cannot instruct their representatives how to behave. It helps the people concerned feel that some sort of justice has been done.
We heard in the words of the noble Lord, Lord Hodgson of Astley Abbotts, the attempt to define national security in a way that would narrow down the implications to what was really of crucial importance to the nation. The response from my noble and learned friend on the Front Bench showed how difficult it is to make a definition of that kind. However hard we try there are always ways in which it is, as he said, either too narrow or too broad.
In Amendment 58, tabled by my noble friends Lord Thomas and Lady Hamwee, and Amendment 59, tabled by the noble Lord, Lord Pannick, and my noble friend Lord Lester, we have a way of getting back to a balance between what is represented by the need for security and what is represented by, in the words of the noble Lord, Lord Judd, the principle of justice upon which the whole of the British legal tradition has been based. That is exactly right. We have heard a paean of praise to our judges, saying that they are very capable of making difficult balanced judgments of this kind. The attempt to give back to them the decision about what that balance is is one that we can reasonably feel is in competent hands, where justice is likely to be the outcome.
What happens if one does not have Amendments 58 and 59 in this Bill? We have neglected this, or perhaps we had an earlier brief discussion about this at the beginning of the day’s proceedings but we have moved a long way since. What happens if one regards national security as having such a primary place that one forgets the interests of justice almost altogether? An example of it is the attitude of the general public, where they believe themselves to be put in a position of extreme difficulty and inconvenience because of a ludicrous pursuit of security. The noble Lord, Lord Deben, gave us an example of that.
Let me give another one, the way in which the concepts of health and safety are now held in almost universal ridicule by the population of this country. They were an attempt to go too far, to intervene too much, to interfere all the way through, in the ordinary rights and liberties of citizens. When you are told that you have to cut down a chestnut tree for fear of a conker falling on somebody’s head, or when you are told that you cannot allow young boys to try climbing a tree, you get to the point where the general public feel that this is a ludicrous overstatement of so-called security and safety, and they become disinclined to take any notice. That is a trivial example.
There are more serious examples. My political memory goes back quite a long way. In our history we have cases all too often forgotten, where security has trumped fairness and justice and left behind a real weakness in our democracy. Perhaps the supreme example of that was the decision to introduce the principle of internment into Northern Ireland’s politics. Just before this I was the Minister of State for Northern Ireland. It meant two things quite quickly. The first was a strong sense of a breach with what has been a long tradition of this country, at least as far as its internal justice is concerned. Secondly—and I will never forget the words used—this became a recruiting sergeant for terrorism. Even Lord Whitelaw, at that time Secretary of State, noticed how counterproductive internment was and how it led to more and more young Irish men and women letting themselves be recruited—signing up—for the production of terrorism. Internment was brought in in 1971 and was eventually dropped. Only after it was dropped was the path open to the Good Friday settlement and to what today is, if not a perfect, at least a much better outcome of the situation in Northern Ireland.
Lord Ashdown of Norton-sub-Hamdon
I have not been here today as much as I might have been and I am grateful to my noble friend for agreeing that I might intervene, but I want to reinforce her point. I was a young soldier on the streets of Belfast in 1970. When we marched into Belfast and into the Ardoyne we were welcomed by the Catholics with butties, as they called them, and mugs of tea. A mere year later, as a result of internment and other matters which followed swiftly around the time of Bloody Sunday, we were the enemy. It took us the best part of two decades to recover that trust among the Irish population, directly as a result of events that she has described.
Baroness Williams of Crosby
I am grateful to my noble friend. Nobody knows more directly and more at first hand than he exactly of what he is speaking, given his long and distinguished service in Northern Ireland in several capacities.
A second example that I know about, because I was living there at the time, was that the dreadful atrocity of 9/11 produced a great wave of attempts to introduce more security legislation in the United States. After a while this included a certain disregard for some of the crucial rights of human beings there. American citizens found time and again, understandably given the terrible effects of 9/11, that their fundamental rights began to be disregarded in the interests of security. It was an extraordinarily difficult balance that to this day United States jurists feel strongly has gone against the basic liberties of the human being.
The third example is ourselves. The noble Lord, Lord Deben, spoke movingly about his son and the dog across the street from No. 10 Downing Street. I might add that the Olympics are getting almost completely out of hand in the interests of what one might describe as an obsessive view about security. We go back to rather a trivial example. Yesterday I was in Trafalgar Square with my grandson. We went to see the famous Olympic clock that shows how many hours, minutes and seconds are left before the opening of the Olympic proceedings. However, in order to see the clock, which was approximately 40 yards into the square on a gloomy, wet evening, we had to pass no fewer than six security guards, and no fewer than three detailed and closely networked railings, which were impossible to pass, so we had to go round them in several directions to get anywhere. It took us about 20 minutes to cross Trafalgar Square, being asked all the way whether we had passports, what we were doing there and why, and other things like that. I am a great believer in creating job opportunities for young people, but I cannot help thinking that maybe a job working on, let us say, the refurbishment of older housing might be more constructive than sitting in Trafalgar Square stopping ordinary citizens like me from crossing it.
I am sorry to put it so strongly, but we are becoming obsessive on this issue. We are getting the balance badly wrong. This Bill is critical for the future of our liberties in this country and for the attitudes to justice of ordinary people whose support for that justice is critical in a democracy; there is no substitute for civic support for the rule of law. I plead with my noble friends on the Front Bench that they look closely at Amendments 58 and 59, which at least enable the judges in this country to restore a reasonable balance to the clear needs of national security, which I do not deny and which the noble Baroness, Lady Manningham-Buller, has put extremely well in this debate, recognising that there are two things to be balanced and not one thing to sweep away. I plead with my noble friend to consider accepting these amendments, because they are a crucial safeguard for the liberties of this country and which this Bill ought to include.
Lord Faulks
My Lords, it is a great privilege to follow the noble Baroness and I am sorry to bring an end to this welcome interval from lawyers and to return briefly to the dry legalities of the Bill. The question in this Bill of who decides national security has troubled me. Clause 6 seems to suggest that the judge has some role in deciding it. Amendment 59 suggests that an exercise should be performed by the judge in which he or she can assess, by balancing the various processes—presumably roughly in accordance with the ex parte Wiley approach—which should come first, the interests of justice or national security.
Baroness Berridge
My Lords, I will speak briefly in support of Amendment 62. My noble and learned friend the Minister has outlined that this is a balance of security and fairness. In a closed material procedure, I do not think it is wrong to say that the national security issue is a higher priority for the Government who are party to the proceedings, and fairness is higher up the priority list for a claimant who has been excluded.
Let us take the example of a claimant who has been excluded from the hearing and is sitting in the corridor whiling away the hours while the proceedings go on, and turns to the rules of court that have been drafted and looks at Clause 7, as we have it, unamended. How is the claimant not going to conclude, when looking at those rules, that almost the sole interest the court is required to take into account is national security? According to paragraphs (c), (d) and (e), the court has to consider giving a summary, but this is not required. To preserve the integrity of the court, Clause 7 is too constrained around the requirements of national security and does not bring in the need for fairness of the claimant, who will be sitting there wanting to know as much as possible about the evidence and, if possible, to know the gist of the case. Bringing in some consideration of the need for the claimant to have enough information to provide instructions is incredibly important. There must be some requirement given to the court to consider the issues of fairness under the rules.
Secondly, although I take full notice of the views of the noble Baroness, Lady Manningham-Buller, that the special advocates who are there on behalf of the excluded party cannot be the sole judge of whether national security is breached if a particular summary of the case is given, what would be the objection to including the special advocate in the process of deciding what the summary is? Perhaps they could be involved with the relevant party because, as the legislation is drafted, the duty of not revealing national security has in any event been given to the court, so why not have a process where at least the claimant would know that the special advocate is able to partake in that process to determine the summary and the court is the final gateway to ensuring that national security is not breached? Therefore, I support Amendment 62.
Lord Beecham
My Lords, the noble Baroness, Lady Berridge, has identified and emphasised the crucial nature of Clause 7. It is the fundamental problem with the Bill that, despite the protestations of the Lord Chancellor, it gives little discretion ultimately to the judge as to whether the closed material procedure should be invoked. Clause 7(1)(c) requires the court to give permission if,
“the disclosure of the material would be damaging to the interests of national security”.
It seems clear that any disclosure of matters affecting national security would suffice to preclude the material being made available. Therefore, we come back to the position that the noble Lord, Lord Faulks, referred to, as enunciated by the noble and learned Lord, Lord Hoffmann.
It is almost exactly 50 years since I first became acquainted with the noble and learned Lord, Lord Hoffmann, as a new student at University College, Oxford—where I was succeeded in due course, several years later, by the noble Lord, Lord Marks—and I have a great admiration for noble and learned Lord, who was a distinguished opponent of the South African regime. I find it rather surprising that he came to the conclusion that matters of this kind are a matter for the Executive and not the judiciary. It is not a view that can be recommended to your Lordships’ House. It strikes a dagger at the heart of our system, and the amendments before us provide the right approach to procuring a level of fairness that allows the judge to make a decision on the basis of a balancing exercise.
I entirely agree with the noble Baroness, Lady Berridge, and others who have laid an emphasis on the need to have that balancing exercise carried out. The amendments in the names of the noble Lords, Lord Thomas, Lord Pannick and Lord Lester, clearly are directed at securing that important balance and fulfilling the—unjustified—claims made for the Bill that ultimately it will be the judge who actually takes the decision; otherwise the decision is effectively made for him by the Secretary of State, and that is extremely undesirable. It follows that the amendments in relation to gisting, which the noble Lord, Lord Pannick, described as a minimum requirement, also have their place in a system which is fair to the parties.
The noble and learned Lord referred to the application of the European Court of Human Rights. Although I am sure that he is clear in his own mind that there is no real conflict with the human rights legislation, there is, perhaps, a question about that. Clause 7(1)(e), to which other noble Lords have referred, makes it clear, in relation to gisting, for example, that a summary does not contain material the disclosure of which would be damaging to the interests of national security. However, it is apparently the position that the European Court has previously struck down decisions made under the existing closed materials procedure on the basis that they were incompatible with the right to a fair hearing which, of course, Article 6 prescribes.
The case law suggests—I am referring now to a briefing from Justice, the organisation concerned with civil liberties and matters of this kind—that,
“a person must be given as much disclosure—whether through the provision of documents, evidence or a summary—as is needed to secure a fair trial”.
It refers in its briefing to the case of A v United Kingdom, in which,
“the Grand Chamber concluded that where insufficient material had been disclosed to an individual subject to a control order”—
of course, we are not talking about control orders here but about a civil claim—
“this rendered the hearing unfair and incompatible with the Convention”.
The briefing also refers to the case of AF, to which the noble Lord, Lord Pannick, referred. There must be a question as to whether the assurance of the noble and learned Lord, obviously given in good faith, that Clause 11(5) resolves these matters—because it emphasises the duties of the court under the Human Rights Act, such that,
“Nothing … is to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the Human Rights Convention”—
amounts to very much. On the face of it, it would appear that the provisions of the Bill, as drafted, would lead to conflict with Article 6.
Lord Lester of Herne Hill
Is the noble Lord aware of a case I once did, Tinnelly and McElduff v UK, where there was a conclusive certificate of national security under our law which prevented these Northern Irish Catholics from having the merits of their religious discrimination claim heard at all when they were blacklisted? The Strasbourg court said that that was clearly contrary to the convention and therefore the national security certificate that had been cleared by the Minister and by the Northern Ireland courts, which said they had no alternative, was held to be in violation of the convention.
Lord Beecham
I am grateful to the noble Lord, who brings another example of precisely the same point made in the briefing that I referred to and underlines the apparent discrepancy between the evident intentions of Clause 11(5) and the reality which would appear to be applicable. In looking at these amendments I think that your Lordships’ House may wish, when we come to Report—because we will not be voting today—to support the thrust of these amendments, which seek to import into what is patently an unsatisfactory procedure at the moment evidence of balance and fairness which would leave the decision where it ought to be, in the hands of the judge who is dealing with these matters, assisted, we hope, by the special advocate presenting a case on behalf of the other party to the case.
As matters stand, it does not look as though the Bill adequately reflects these requirements or, indeed, the requirements of Article 6. I hope that the Government will look again at the implications of the situation as it is now presented, bearing in mind the widespread concerns expressed around all these issues by eminent Members of your Lordships’ House, particularly the noble Lord, Lord Carlile, who was very clear that the Bill, as currently drafted, does not adequately deal with the need for fairness through a proper existing procedure. I thought that he made that case very effectively—as indeed did other noble Lords, legally qualified and not legally qualified—raising deep concerns about how the Bill will operate in practice, bearing in mind, again, that many of us still have to be persuaded that there is a substantial issue here, given that we have yet to be shown cases in which damage has been done by the system which has prevailed hitherto.
Of course, when it comes to disclosure the Government still have the last resort of not proceeding with the case. That has a financial cost and it may have other costs, but it preserves the rationale for the Bill’s provisions in that it preserves the interests of national security. If the Government feel that national security has to be protected, they can effectively stop the case by settling it or, perhaps, striking it out.
Lord Butler of Brockwell
Does the noble Lord think that it is a demonstration of damage being done that the Government have been unable to defend themselves in such cases and have had to settle?
Lord Beecham
There cannot be two winners in these situations. It is certainly less than satisfactory that a case does not proceed to a final adjudication, and it may be that the Government are therefore, to some degree, a loser. However, the question is whether that consideration should take precedence over the rights of the individual, the other party to the case, to have a proper hearing and to put his side of the case. We have to make a choice, and the choice should be, “By all means let us preserve national security, if that is the ultimate requirement, but not at the expense of the other party, whose right to access to justice will have been obstructed”. That is the decision that we have to make. We have to do a balancing process ourselves, as legislators, and I hope that that is the line that we take.
Lord Wallace of Tankerness
My Lords, I am grateful both to my noble friends and other noble Lords who brought these amendments forward and to all noble Lords who contributed to this debate. The amendments raise important issues concerning the Bill and it is therefore important that the House has had a thorough and well informed debate. I am acutely aware that noble Lords are concerned about the way in which the Bill draws the balance between the interests of national security and the role of the judge in providing fairness for parties in proceedings.
My noble friend Lady Williams is right to remind us—I do not know whether she used the words, but the sense of what she was saying was—that the price of liberty is eternal vigilance and that it is important, whenever there are issues such as this, that we give considerable scrutiny to the way our laws are framed.
Amendments 57, 58, 59 and 68 would, if accepted, remove the obligation on the court not to allow information to be disclosed if it would damage the interests of national security. Instead, the court would have to balance the damage done to national security with the public interest in fair and open justice.
On a slightly technical point, my noble friend Lord Hodgson asked why we need Clause 10(1), which he thought was perhaps repetitious. The answer is that Clause 10(1) refers to the Section 6 proceedings as a whole, whereas Clause 7(1)(c) deals only with the document-by-document process at stage 2, which determines whether individual pieces of material will be heard in open court or in a CMP.
The Wiley balancing exercise has been referred to in this debate and I believe it underlies Amendments 57, 58, 59 and 68. It may help in presenting the case to set out some of the background to this, although I am acutely aware that a number of your Lordships who have taken part in the debate are well aware of it. However, the pertinent and pressing questions are often asked in the contributions from the non-lawyers and it is therefore important to set the response in context. The traditional method of protecting sensitive material in civil proceedings is for the Secretary of State to claim public interest immunity. Under PII, which is a common law regime, the Secretary of State certifies that disclosure of the evidence in question would be contrary to the public interest and that the interests of justice in favour of disclosure are outweighed by that of the public interest. The public interest could include the interests of national security, good international relations, the detection and prevention of crime, or any other aspect of the public interest.
In deciding whether to permit non-disclosure, a court will consider whether the Secretary of State has struck the right balance. The court will consider those aspects of the public interest that favour non-disclosure against those that favour disclosure: for example, the public interest in trials being fair, in justice being open and in cases being able to be fully reported. This is sometimes called the Wiley balancing test after an important case on PII.
Normally, a claim for PII will be supported by a ministerial certificate and will be considered by the trial judge. Unless the fact of a PII claim being made is itself too sensitive to be disclosed to the other party, for example because it might risk revealing the existence or identity of an agent, the other party will be able to attend the hearing. This will be with a view to persuading the court that, in carrying out the public interest balancing exercise, it should order disclosure of the documents in question, for example because of their likely high degree of relevance to the case. If the court refuses a PII claim, the Government will need to consider whether to settle the proceedings rather than disclose the damaging material.
The question that these amendments pose to the Government is why the court should not be able to consider whether there are overriding public interests that point to disclosure. In short, the Government consider that the approach in the Bill is the right one because it is in the national security context. The only ground on which a court may permit material to be heard in closed session is on the narrow one that disclosure of material would damage the interests of national security. Aside from the important countervailing fair trial issues, which, as we have heard and as I will return to, are explicitly dealt with in the Bill, the Government consider that it would be truly exceptional for a different aspect of the public interest to outweigh the public interest in preventing damage to the interests of national security.
The Government have considered this issue carefully and have introduced safeguards that we believe ensure that there is justice for claimants and that the judge will have a crucial role in the process. The Government are committed to putting as much information as they can into the public domain and to complying with our obligations under Article 6 of the ECHR. I think it is important to set out in detail how the Government have balanced the judicial role to ensure that as much information as possible is given to the claimant and made public.
It is important to emphasise that, in reality, the Bill contemplates a two-stage test to any application for a CMP. The result is that CMPs are available in tightly defined circumstances in which the judge is given the final say over the use of a CMP and a similar level of flexibility to that available to a judge under PII. The first test, which I think we went over during the previous day in Committee, is on application by the Secretary of State to the judge for a closed material procedure on the basis that a party would be required to disclose material in the course of the proceedings, the disclosure of which would damage the interests of national security. The judge will grant the application if he or she agrees with the Secretary of State’s assessment and make a declaration that a CMP can be used. I think my noble friend Lord Faulks said it would certainly not allow a flippant use or a flippant claim of national security. Indeed, I believe it would not allow one where the real motivation was not about national security interests being damaged at all but covering up or concealing embarrassment.
There is then the second stage, at which the judge considers the treatment of each individual piece of material, in particular whether it should be heard in open or closed proceedings. The judge has a number of important tools with which to ensure that the proceedings are held fairly. The sole ground on which material may be heard in a closed hearing is where the court accepts that disclosure would damage the interests of our national security. Where the court permits the material to be heard in closed procedure, the court must consider ordering summaries to be given to the claimant or permitting only parts of documents to be heard in closed proceedings—in other words, redaction. If the court refuses the application for material to be heard in closed proceedings, the relevant person, usually the Secretary of State or a government agency, is required either to disclose the material, or the judge can direct the relevant person to not rely on that material—in which case it will be excluded from the proceedings—to make concessions or to take such other steps as the court may specify. This is a similar level of flexibility to that which is available to the judge under PII and ensures that, in practice, the amount of material heard in open session where a CMP is available will not be less than had a PII exercise occurred instead. At all stages, the court will make the necessary orders to ensure that the proceedings are conducted in a manner which complies with Article 6 of the European Convention on Human Rights.
The Government consider that the approach in the Bill is the right one in the national security context. It is used in other current CMPs such as TPIMs and SIAC. In any case, in practice, under current arrangements, if on the basis of its balancing test the court rejects a PII claim, in whole or in part, the Government use every tool available to them to ensure that that material remains protected—including, if necessary, withdrawing from the proceedings or settling.
Amendments 60 and 61 would require the court to order a summary of the closed material to be provided to the excluded parties and, in doing so, would remove the obligation to ensure that a summary of the closed material did not contain material the disclosure of which would be damaging to national security. There is already a provision for a judge to require disclosure where necessary for Article 6 to be enforced.
My noble friend Lady Berridge asked for special advocates to be involved in determining what that summary should contain in terms of Clause 7(1)(d). I can assure my noble friend that the special advocates are very much involved in that process. No doubt we will be arguing—and, as we have in past cases, arguing effectively—for as much information to be included as possible. We agree that information should be summarised if it can be. However, if these amendments were to be accepted, and the Government were unable to provide a summary due to the sensitivity of the information, the risk is that the Government would be forced to withdraw or settle. That would effectively mean that the problem we are trying to solve would still exist. Again, there would be silence on very important matters, there would be no final judgment for a judge and none of the questions posed by the claimant would be answered.
No one has sought to pretend that closed material procedures are better or as good as open proceedings, but we have said that second-best justice is better than no justice at all. The intervention of the noble Lord, Lord Butler, indicated that we are dealing with circumstances where there is arguably a defence but one that under present arrangements cannot be advanced because to do so would damage the interests of national security. We are seeking to allow that defence to be put forward, albeit by means of a closed material procedure.
I appreciate the concerns about the claimant getting as much information as possible and the process being fair. My noble and learned friend Lord Mackay indicated at Second Reading that we have to look not just at Clause 7(1) but Clause 7(2) as it interacts with Clause 7(3)—if a party is unable to provide a summary, then the court can order that party to make concessions or to not rely on that material. These are very real safeguards.
Amendment 62, which my noble friend Lord Lester and the noble Lord, Lord Pannick, have spoken to, and which was supported by my noble friend Lord Carlile of Berriew and by other noble Lords, suggests that the best way of ensuring compatibility with our European convention obligations is by adding to the Bill words that give effect to the judgment of your Lordships’ Judicial Committee in June 2009, in what I think is commonly known as case AF (No. 3). In that case, their Lordships ruled that for the stringent control orders before them, in order for the control order proceedings to be compatible with Article 6, the controlled person must be given sufficient information about the allegations against him or her to enable them to give effective instructions to the special advocate in relation to these allegations. I hope I have summarised fairly what the Judicial Committee of the House determined.
Lord Lester of Herne Hill
My difficulty with my noble and learned friend’s reply is that he keeps saying: “I hope that Members of the House will be reassured”, but we need reassurance in the legislation itself. The problem is that there are no controlling principles. We do not have a written constitutional charter of rights, the nearest we have is the European convention, which is pretty vague and not tailored to these particular needs. When we come to Amendment 90 at night-time on Monday, where the noble Lord, Lord Pannick, and I have tried to put in some constitutional standards, it will be interesting to see whether at least that is accepted. Does my noble and learned friend follow that what we seek to do is put some controlling criteria, other than ministerial assurances, in the Bill to make it constitutionally appropriate?
Lord Wallace of Tankerness
I understand the point being made by my noble friend, but what is in the Bill goes beyond a ministerial assurance. What is in the Bill is that nothing in Clauses 6 to 11 or in any provision made by virtue of them is to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the European Convention on Human Rights. I will come to this more specifically in a moment, but these will be matters that will be determined by the court; it is not a matter of ministerial assurance. As we saw in the case of AF (No 3), the courts asserted what was required to make the proceedings consistent with the requirements of Article 6. What is required to achieve fairness in accordance with Article 6 is a matter to be determined by the courts in the context of each individual case. The AF (No 3) disclosure requirement will, of course, be applied by the court when it considers that the requirements of Article 6 so demand to ensure that fair trial requirements are met. However, this does not mean that the AF (No 3) formulation would or should apply in all cases that use these closed procedures. We submit that we must allow the judges to assess the level of disclosure required in each case to meet Article 6.
My noble friend Lord Faulks said that he anticipated that I might refer to what the noble and learned Lord, Lord Hope, said in the case of Tariq. I fully intended to do so. The deputy president of the Supreme Court said in that case:
“There cannot, after all, be an absolute rule that gisting must always be resorted to whatever the circumstances. There are no hard edged rules in this area of the law”.
Reference has already been made in this debate to Mr David Anderson QC, who is in favour of gisting. In January this year, in evidence to the Joint Committee on Human Rights, reflecting on what the noble and learned Lord, Lord Hope, said, he said:
“The courts have … said that it is not a hard-edged area of law. In other words, it is one for them to decide on rather than for Parliament”.
Later he said,
“it is not an area where certainty can sensibly be provided by legislation ... I do not think I would like the legislation very much if it came out”.
Let me also remind your Lordships that the Justice and Security Green Paper suggested that we might consider legislating to clarify the context in which the AF (No 3) gisting requirement does not apply. The Government listened to the consultation responses, which held a majority view that situations in which the AF (No 3) disclosure requirement applied needed to be considered on a case-by-case basis in the courts. The Bingham Centre said:
“Establishing a statutory presumption as to the circumstances in which the AF (No 3) disclosure requirement applies would not avoid the need for the precise parameters of the principle being worked out in the courts. This issue cannot be resolved by domestic legislation alone but requires careful and detailed reference to ECHR and EU law. The content of UK legislation could not have any appreciable influence on the CJEU or ECtHR. Therefore we see no value in this suggestion. If anything, a legislative presumption would only complicate the law and lead to more rather than less litigation”.
I do not think there is any distance between us in trying to ensure fairness. I recognise the importance and significance of all the amendments, not least Amendment 62, but our position is that this would put hard edges into law where it is not desirable and where the courts themselves have indicated that they should be determined on a case-by-case basis. As I have also indicated, if in a particular set of circumstances the court’s view was that the gisting level required in AF (No 3) was the one required in that case, the regard the courts must have to Article 6 of the European Convention on Human Rights allows them to require that. The common law is as much part of our legal system as statute law, and I believe that the courts will continue to be the guardians of individual rights to a fair trial and that further legislation on this provision is not only unnecessary but may even be counterproductive.
Lord Judd
The noble and learned Lord in his full reply referred to the special advocates being on board and being involved in the process. Does he agree they are involved in the process with one and a half hands tied behind their back, because they will have had no opportunity to discuss the really crucial issues with their client, who might well have something relevant to contribute to the deliberations going on? When we talk about it being better to have an imperfect system of justice than no system at all, what concerns some of us is that this is an exceptional process and the Government should look seriously at a belt and braces approach to make sure that it is exceptional. Otherwise there is a tendency over time for it to become just an alternative.
Lord Wallace of Tankerness
I fully accept—and it was said from this Dispatch Box in earlier debates—that it is very much seen as an exceptional procedure. It is not intended to be run-of-the-mill, and nor would we wish it to be seen as “creep”. It is meant to apply in only a very limited number of cases where the Government believe that they have a proper defence to cases made against them, but where at the present time it is not possible to deploy that defence because it would mean disclosing material which would be damaging to the national interest.
As for the earlier point, it has been said on a number of occasions that the role of the special advocates is crucial. It will be crucial in arguing over and determining which pieces of material should be disclosed and which should not and in making representations as to what should or should not be in any gist. However, as I indicated in an earlier debate, it is important to remember, too, that we are dealing with civil proceedings in which the defendant will almost certainly be the state and the claimant will be the person who has been excluded. Therefore, they will know full well what their case is as it is their own case that they will be advancing. Before the closed material is made available to the special advocate, there will be an opportunity for the person who knows what his or her case is to discuss it with the special advocate.
Finally, many judges have gone on record as praising the very valuable work that special advocates do in these cases. It would be wrong to suggest otherwise. Perhaps the noble Lord is not suggesting that, but it would be wrong to give the impression that special advocates are totally hamstrung. They have a very good track record, as has been recognised by a number of senior judges.
Lord Hodgson of Astley Abbotts
My Lords, the length of the debate and the breadth and depth of contributions have indicated how important gisting is. My noble friend Lord Carlile spoke about fairness, the noble Lord, Lord Beecham, about balance, and my noble friend Lord Faulks about the dangers of not giving sufficient weight to the demands of national security. One of the problems with not practising law is that you do not have real-life examples, such as those produced by several noble Lords this evening, to back up the impact and give bite to their particular recommendations.
I shall briefly repeat what I said at Second Reading: my experience of working with, speaking to and meeting young Muslim men and women as part of the Speaker’s outreach programme in Birmingham and the West Midlands shows that they have a keen interest in how our justice system works and whether it delivers fairness and balance to all sections of our community. While these are probing amendments, I am sure that this is an issue to which we will come back. Now that my noble and learned friend has given us a lot of helpful information and a careful explanation of the procedure to be gone through, we will have time over the summer to reflect on this. We shall see where we come out, but I am sure we will want to have a further crack at this to make sure that our society and the communities within it do not feel that the justice system does not deliver fair, open and transparent justice to them. In the mean time, I beg leave to withdraw the amendment.
Education (Exemption from School Inspection) (England) Regulations 2012
(12 years, 4 months ago)
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Baroness Hughes of Stretford
That this House regrets that the Education (Exemption from School Inspection) (England) Regulations 2012 (SI 2012/1293) are both unnecessary and counterproductive as they would undermine the principle of all public services being inspected on a regular basis; undermine the professional oversight that is an essential part of good school governance; and run the risk of damaging children in cases where schools that have not been inspected then go into decline.
Baroness Hughes of Stretford
My Lords, the background to this Motion of Regret is the regulations that determine the framework for inspection of schools in England by Ofsted. Section 5 of the Education Act 2005 sets out the duty of the chief inspector to inspect schools at such intervals as are prescribed in regulations. The 2005 regulations made under Section 5 provide that the maximum interval between school inspections should be five years. However, the Education Act 2011, the passage of which we debated last year, now enables the Government to exempt specific categories of school from the chief inspector’s duty to inspect.
This is the first set of regulations to be made under the new power and has the effect of exempting from any further routine inspection any school that receives the highest Ofsted grading, which, as we know, is currently “outstanding”. Thus, in future, every school that is rated outstanding will not be routinely inspected further by Ofsted unless the school itself requests an inspection, in which case it will have to pay for it. The Government resisted amendments in Committee that would allow parents or local authorities to trigger an inspection.
The Government’s arguments in support of the change appear to be twofold. First, they say that exempting outstanding schools from future inspections will reduce, in the Government’s parlance, the “burdens” on such schools. Secondly, they say that it will enable Ofsted to target resources on less successful schools and so will have a cost benefit. Both arguments have some credence. However, for many years now, under successive Governments, Ofsted has moved towards a risk-based, proportionate approach to determining the frequency and intensity of inspection of particular schools. Successful schools can already expect to be inspected only once every five years. Therefore, risk assessments already enable Ofsted to target its resources effectively. However, to exempt schools from routine inspection entirely, and for schools to know that they henceforth they will be exempt, is not simply an extension of these developments. It is a significant qualitative change of a completely different order. It is wrong in principle and will have all sorts of adverse consequences in practice. I shall touch on both concerns—the principle and the practical implications.
The issue of principle derives from questions about the role of government in the delivery of our major public services. I would argue that the Government of the day have a duty both to the public generally, whose taxes pay for those services, and to the citizens who use the services. Surely the Government should be the guardians of both value for money and the quality of the public services provided. It is largely through regulatory and inspection regimes that the Government discharge their duty to service users and the wider public. That is why we have inspection of hospitals, GPs, police services, children’s homes and care homes. All major public services, whether provided directly by public bodies or indirectly through private, voluntary or independent organisations, are subject to inspection regimes to protect users and taxpayers. I know of no other services in which categories of provider are exempt. I would be grateful if the Minister could identify any for us, because I could not find any.
Because, for these very good reasons, this principle is so deeply embedded in the way we deliver public services; because many of these services are critical to people’s well-being; and because the people using them are often vulnerable in one way or another, it would be unthinkable for, say, excellent hospitals or care homes to be allowed to be completely exempt from future inspections. We can all predict the reaction if this were to be the case, so there are crucial questions that the Minister—with respect—has to answer, because they were not answered in this or the other place during the passage of the Education Act 2011. Why do the Government think exemption is acceptable for schools but not for hospitals, care homes and constabularies? Is this not an abdication of the Government’s duty to the public?
In striking the balance between the demands of inspection and the so-called freedom for schools, which the Government are promoting, have they not fallen too far on the side of the professionals and not sufficiently on the need to protect all pupils? The Minister may well say that the Government believe that they can trust schools to do the best for their pupils. We can for the most part, although not entirely, as experience tells us. However, that does not answer the point that it is wrong in principle for the provider of a service to be the sole arbiter of standards without any independent evaluation.
In addition to this fundamental issue of principle, there are a number of practical consequences to the exemption that I believe may have adverse effects on children and schools. I will mention three—other noble Lords will have other points—that are of particular concern to me. First, an outstanding rating at one inspection is not a guarantee of continuing excellence in standards of achievement. Outstanding schools decline. The 2010-11 Ofsted annual report reveals that 40% of the previously judged outstanding schools had declined at their subsequent inspection and three had plummeted to a rating of inadequate. For this reason, both the current chief inspector, Michael Wilshaw, and the former chief inspector, Christine Gilbert, have publicly expressed concerns about the proposal to exempt, as did the Education Select Committee.
Secondly, it is quite obvious that inspectors need regularly to see the full range of performance during their inspections in order satisfactorily to benchmark individual schools. If excellent schools are progressively excluded from the inspection regime there is a real danger that inspectors’ expectations will drift downwards over time as they lose touch with the very best practice.
Finally, inspections cover much more than the quality of teaching and learning. They have an important, and I would argue vital, role in telling us how well schools are addressing the wider well-being of pupils and preparing them for life challenges. Exam results alone cannot tell us how well, or even if, a school is teaching personal, social and health education, for example; how extensive the extra-curricular activities are; or, most importantly, how effectively a school is implementing good safeguarding policy and practice.
I know that if this exemption goes through—as I am sure it will—Ofsted has said that it will desktop assess outstanding schools regularly. However, that desktop analysis cannot possibly find out what is going on underneath exam results, and clarify and highlight whether there are any areas of concern, particularly in safeguarding and similar aspects of school life. For these reasons, and others that I suspect will be raised this evening, I believe that exempting any schools entirely from the inspection regime is a failure to children and parents. I beg to move the Motion.
Baroness Perry of Southwark
My Lords, I congratulate the noble Baroness on setting out her concerns. We know that she speaks from a very deep concern for the welfare of children and has a wish to see excellence in education, an aspiration which we all share. I know too that she has real concerns about the possibility of a school degenerating from outstanding to something less.
I want to take both aspects she mentioned, the practical and the principle, and to say a few words on why I believe that this set of regulations exempting some schools in this way is the right move. First, on the practical, I think the noble Baroness rather overemphasised the picture of schools that were never inspected. This is not what is going to happen. They will still be included in national surveys, with subjects and aspects of education, so her concerns that the people in Ofsted will no longer have the opportunity to see excellence is more than answered by the fact that they will still be able to see excellence across specific subject areas and specific aspects of education.
Secondly, the chief inspector’s risk assessment will be annual. It will be regular and look at more than simply exam results. It will look at any concerns raised about the outstanding schools which are exempt and will then, if necessary, trigger an inspection. The noble Baroness shares my concern that there is always a danger of a change in a school’s performance when a new head comes in—either for the better or for the worse. The regulations cover that eventuality. The chief inspector’s risk assessment will be speeded up after there is a change of leadership in the school. There again, any anxieties one might have have been addressed in the regulations.
There is a pathetic faith in the value of inspection. I say that as one who spent 18 years as an inspector. In the 20 years or so that Ofsted has been pursuing its inspections, this country’s young people have moved in their performance from being in the top five, six or seven by comparison with other countries to being down in 25th, 27th and 28th place in different subject areas. Although Ofsted, I am sure, has been pursuing its aims with the best of intentions, and no doubt the Government’s very tight regulations, particularly the previous Government’s regulations, for how Ofsted should go about its business, were all done with the best of intentions, it simply did not work in the way that it was hoped it would. The standards of performance in our schools have degenerated quite disastrously in comparison with the standards of performance of other countries over the period of Ofsted’s work. We need to start inquiring very deeply, rather than have a mantra of “inspection is good”, as to exactly what really does achieve quality in schools and education.
There is plenty of evidence that people perform at their best, whether professionally or in other areas, when they are trusted and feel valued. My very strong experience of talking to teachers and heads over the past decade or so is that they have lost that feeling of trust. They feel they are bound by an overweening inspection regime which has breathed down their necks. They are watching their backs and feel that the Government are permanently on their backs telling them things. That has been part of the Ofsted culture. I am happy to see that that is now being changed under the coalition Government. Ofsted is being changed very radically and made much more professional and much more limited in its inquisitorial role. That is a good thing. Nevertheless, for most teachers and schools, there is still a sense of being watched rather than being trusted. I believe passionately, as well as having seen the research evidence, that trust and value enable professional people and others to perform at their peak.
There must be accountability to balance autonomy. The more freedom that we give to exempt schools, the more it is essential that we decide what their autonomy should be. I would very briefly say that I think that there are three levels of autonomy that we should trust. The first is the professional code, to which teachers themselves rightly aspire. The conscience of the teacher in wanting to give his or her absolute best is the first level of accountability. That is what we must foster, help and encourage by giving them more freedom to do that, because it is the real guarantee of quality. It is only when teachers really feel that they are responsible for their own performance and that they are required to give the best to their pupils that the quality can really be guaranteed. The second level is that the head of the school and other senior people in the school are responsible for the quality of education in that school. We must foster that. Instead of their thinking that somebody is going to come from outside and judge them, they should take responsibility for themselves and be prepared to make those judgments and deal with any underperformance.
Finally, we have forgotten the role of governors here. The last port of call, rightly, is and ought to be the responsibility of the governors over the quality of what goes on in the school. If things start to go wrong, it is the governors who should blow the whistle and start taking action by changing the head or the other staff of the school. It is a matter of absolute principle that we should stop thinking that the Government are always the best judge of things and people. I love the phrase in the department’s Explanatory Memorandum to the regulations where it says:
“The intention is to give the best schools the power to manage their own performance and to be more accountable locally to their communities, rather than to central government”.
That is what I believe should happen.
Baroness Walmsley
My Lords, I do not have a “pathetic faith” in inspections, as my noble friend Lady Perry of Southwark, put it, as may become clear as I progress through my comments. The Explanatory Memorandum is very interesting and raises a number of issues. I am not against exempting outstanding schools and giving them more autonomy, as long as the risk assessment described in the memorandum is rigorous and properly applied. Paragraph 7.1, which my noble friend has just quoted, states that the policy intention,
“is to give the best schools the power to manage their own performance and to be more accountable locally to their communities, rather than to central government”.
Does this mean that the Government plan to restore the link between academies and their local authorities, allowing local authorities to monitor the performance of those schools and giving them the levers to ensure they are serving the community well? If not, that sentence is meaningless.
There is some detail about the risk assessment in the notes. It mentions that inspection will recommence if performance deteriorates significantly. How will that be judged? What is meant by “significantly”? Annexe A is even more interesting. It suggests that the changes will lead to higher quality inspections. Well, we would all like to see that, especially those of us who heard “File on 4” on Radio 4 on 1 July. We are told that Ofsted expects to save around £2.5 million per year through inspecting fewer schools. Can Ofsted plough back the money to improve the standard of inspection and inspectors, or does it have to be returned to the Treasury? In the latter case, how is Ofsted expected to improve the quality of inspections without any money?
Of course, Minsters always say that the quality of schools depends on the quality of teachers and school leadership. That is, of course, quite correct. In the same way, good inspections depend on the quality of the inspectors. There were some very worrying cases in the programme. Broughton Hall school in Liverpool is a case in point. It sends many pupils to Oxbridge and 97% of its pupils get five grade A to C GCSEs, even though it is located in a deprived area. The school was threatened by an Ofsted inspector with special measures, even though it had an award-winning outstanding head. There were 27 errors in the report. Ofsted refused to correct them all but gave the school a “satisfactory” rating. But we all know that, come September, “satisfactory” becomes “unsatisfactory”, so the stakes are getting higher. All the more reason therefore, why we are entitled to ask about the quality and fairness of the inspections.
In the programme Sir Michael Wilshaw, Her Majesty’s Chief Inspector of Schools, said:
“Schools have a right for the inspection to be rigorous, to be fair. If not they have a right to write in and their complaint will be looked at”.
But, “Where is the redress?”, said a head in the programme. He went on to say:
“If I get it wrong I will be held to account. Who holds Ofsted to account?”.
The problem is that Ofsted is not obliged to correct its mistakes. The adjudicator can look only at the way the original complaint was handled, not at the substance of the original judgment. Who does that? It relies on people going to judicial review, and we all know what that means.
All other regulators are held to account for the quality of their regulation by the Legislative and Regulatory Reform Act 2006. It was clearly the previous Government’s intention that Ofsted, too, should be held to account under this Act. The response to the consultation shows that very clearly. Does Ofsted fall under the LRRA 2006 or not—and, if not, why not? If it does, it should follow the Hampton principles, including transparency. After all, there is evidence that the number of complaints against Ofsted is rising. The department itself admits to one in 12 inspected schools. That is a lot. There is not enough information about the qualifications of those who inspect schools and about whether they are qualified teachers or have recent experience in school leadership or in the specialist subjects on which they are passing judgment. My noble friend Lady Perry, who is uniquely qualified to ask questions on these issues, asked a Written Question about how many were even qualified teachers, but did not get a straight answer. It is not even known how many HMIs have secondary leadership experience, let alone all the freelancers employed by agencies.
In the light of “raising the bar” for schools, will the Government start to collect this data and raise the bar for Ofsted? We all want to bring about improvement in our schools, but we need to have confidence in those who make judgments about school standards. Currently that is in question. It strikes me that the saving implied by the reduction in the number of inspections brought about by these regulations gives us a great opportunity. We need to start asking a lot more questions about the quality of Ofsted inspectors and inspections if they are to concentrate on core areas, as they are, and if the consequences for schools of the judgments that they make are to become more serious, which they are. That is only fair.
Lord Hunt of Kings Heath
My Lords, I congratulate my noble friend for allowing us to debate this important issue. I declare an interest; my wife is training to be an Ofsted inspector. I expect to learn much more about the process in the years ahead. I was surprised that the suggestion was made that the Committee stage of the Bill would resume at 8.30 pm. This debate is not time limited and I hope that we will not allow ourselves to be restricted in the Minister’s winding-up speech.
I accept what the noble Baroness, Lady Perry, said. Ofsted inspections are not everything. I also understand the criticisms that the noble Baroness, Lady Walmsley, made about specific Ofsted inspections. However, for parents and children Ofsted none the less provides a key safeguard if things go wrong in an individual school. That is why I am very much opposed to this statutory instrument; why, as noble Lords will recall, we had a vote on this at Report; and why many noble Lords remain concerned about the decision.
If ever one wanted to a reason to put forward to your Lordships’ House for needing this safeguard, it was the quite extraordinary decision of the Minister’s department this week to allow a free school to be opened by a group of creationists. The group behind the plans, known as the Exemplar Newark Business Academy, put forward a revised bid by basically the same people who proposed the Everyday Champions Academy last year, which was formally backed by the Everyday Champions Church. That bid was rejected explicitly because of concerns surrounding the teaching of creationism. In February 2011, while promoting the Everyday Champions Academy bid, the Everyday Champions Church leader, Gareth Morgan, said:
“Creationism will be taught as the belief of the leadership of the school. It will not be taught exclusively in the sciences, for example. At the same time, evolution will be taught as a theory”.
That bid was rejected, but it has resurrected itself—if I may use the term in relation to creationism and that belief. This is now going to be a bid by the Exemplar Academy without the formal backing of the church, but the website for the new academy was initially part of the Everyday Champions Church website, and the plans were launched at the Everyday Champions Church, described as a resubmission of a previous bid.
I use this, first, as an occasion to strongly protest against the decision of the Minister’s department on this matter. I find it outrageous—outrageous—that a school that clearly is going to be tempted down the creationism route has been authorised by the noble Lord. What safeguards are there apart from potential interventions by Ofsted if we find that creationism is being taught? What happens if Ofsted, first time round, makes it an outstanding school? For many parents there will be no recourse whatever. That is why one objects so much to the Government’s decision in this regard.
I recognise that exempt schools may still be subject to inspections as part of the chief inspector’s surveys of general subjects and thematic reviews. I noted what the noble Baroness, Lady Perry, said. However, what I find quite extraordinary is that this flies in the face of all the other regulatory regimes that are present in relation to public services, as my noble friend said. I thought that the Explanatory Memorandum was disingenuous—to put it kindly—when it stated in paragraph 7.3:
“Of the schools judged outstanding and inspected more than once since 2005, over 90% have remained either outstanding or good at their latest inspection”.
The reality at that time, as we discussed last year, was that, out of 1,155 schools that had been judged outstanding in that period, on subsequent inspection more than 30% had a reduced grading, including 58 that went from grade 1 to grade 3. What we see quite clearly is that outstanding schools do not remain outstanding. That is why this policy is so fatally flawed. I also refer the noble Lord to the college sector. I understand that in the inspections undertaken between January 2012 and May 2012, two outstanding colleges fell by one grade, two fell by two grades and one fell by three grades. Indeed, my understanding is that none maintained the outstanding grade.
I have seen no coherent, intellectual argument that would justify exemption for outstanding schools. There is no evidence that all outstanding schools remain outstanding. We hear about the risk assessment approach —the desktop approach—but I do not believe that there is confidence that that approach can get in to the school and actually see what is happening.
I will ask a number of questions of the Minister. First, we have heard that Ofsted will pay particular attention to a school or college where a new head teacher has been appointed. What about a considerable change in the leadership team? I also note that the consultation in March 2011—this order has not been consulted on but the original policy was consulted on—showed 60% of respondents supported a risk-based approach to determining which school should be inspected. Can the Minister tell me whether parents were brought into this consultation? If parents knew that this was going to happen, I doubt very much that they would have supported the policy.
Baroness Morris of Yardley
My Lords, I am surprised that this measure has come back as a statutory instrument, given our debate during the passage of the Bill. It is an ill advised piece of legislation. Like my noble friend who moved the Motion, I want to look at it on the strategic level and on points of detail.
The noble Baroness, Lady Perry, made a significant contribution because there has been agreement over the 30 years since her colleagues’ 1988 education Act that inspection constitutes an essential part of the infrastructure of education policy and it was the first time that I had heard any senior politician from any of the parties be so critical of inspection per se as part of the framework. If I follow the logic of what the noble Baroness said, I am left wondering why we are letting Ofsted into any school in the country. If Ofsted is so weak and if we should now start to question its role in the education service, it cannot be just for outstanding schools; it must be in respect of the schools for which we worry far more, which are the satisfactory and less-than-satisfactory schools in our education system. There was no logic in that.
I, for one, still believe that inspection has been an essential part of basic education policy for the past 30 years. Successive Governments have abided by this. The narrative goes something like: “We want to give more freedom to schools, to encourage them to innovate and take on local character, to trust them more and more, and we are more confident in doing that if there is an accountability mechanism at its core. The better the inspection framework and the better our testing and the publication of that data, the more successive Governments have felt that they could free up so much more of the education system”. I still abide by that. It has been a shared concern across the parties and I am really worried if Members on the Government Back Benches—and perhaps the Front Bench, from whom we will hear—begin to challenge that shared understanding that we have had for a number of years.
The noble Baroness, Lady Perry, talked about a fall in standards in our schools over the past few years. I fundamentally disagree with her. That is not what I have seen, and I do not believe it describes what is going on in our schools. However, I do remember—because I taught in it—the school system before we had any inspection at all. I would not want to go back to that. The standard of education, the quality of teaching and the number of children being let down was far greater before we had this accountability framework, including inspection, than it ever has been since. That is my first point. Strategically, the Government are pushing freedom for individual schools. Logically, they have every reason to care more about the inspection framework and the accountability framework, rather than less. They are throwing it away.
My second strategic point, or point of policy and substance, is that if you read the Explanatory Memorandum—which I think was disingenuous in many ways—it says that allowing outstanding schools not to be inspected by Ofsted is a reward for good performance. We have spent years trying to persuade schools that being inspected by Ofsted is not a punishment. It is something that is good for schools and good for teaching, which they should accept. If being exempt from inspection is a reward for good performance, what does it say about those schools that we are asking Ofsted to go into more frequently? It must be that it is a punishment for underperformance.
If struggling schools see Ofsted inspections as a punishment, rather than as something that can be an essential step in improving their performance, that absolutely takes away all the progress that has been made over the past 20 years in trying to get a new generation of teachers to view Ofsted in a completely different light.
The second point the Explanatory Memorandum makes is about freeing up staff time. Ofsted inspection should not be taking up lots of classroom time. That is why we have moved to shorter notice for inspection and to inspectors being able to come in with two or three days’ notice. It is an admission by government that having Ofsted in your school wastes the time of teachers. Frankly, if we want to free up time, it ought to be for teachers who are teaching in schools that still have a long way to go, rather than in those that are outstanding.
The last point, of course, is saving money. If this is a money-saving measure, say so. Let it be. Let us talk about that, but let us not pretend that it is a decent educational measure.
In terms of local accountability, one of the things about Ofsted is that it gives a national framework for inspection, and it does not actually rely on local accountability. I want a system where the schools in the poorest areas are compared with the schools in the richest areas; the south with the north; the east with the west; the poor with the rich; the ethnic minorities with the affluent white. Unless we have a national inspection framework, we will never get that.
On details of policy, most of these points have been made, but I will make one more. The panoply of bureaucracy that is being built up as part of the risk assessment will take away any extra time or money that might have come Ofsted’s way. As the years go by, there will hopefully be more schools that receive outstanding Ofsted reports, go into that category and will have to be risk-assessed every year. We are assured that there is no trigger or tick box, so careful judgments about all these schools will have to be taken into account.
I will finish with two or three questions, some of which build on those which have already been asked. First, I want to pursue one of the questions outlined by my noble friend Lord Hunt. He asked whether schools will be reinspected. If in future Ofsted criteria change, will schools be inspected again or will they be allowed to be free for life from inspection against a set of criteria that is no longer being used?
Secondly, why are special schools not in this group? If we are going to exempt outstanding schools, then why are we not going to exempt special schools?
Thirdly, the Explanatory Memorandum talks about, I think, 60% of people who were in favour of a risk-based approach to inspection. I am in favour of a risk-based approach to inspection, but I am not in favour of this. Will the Minister let us know what the consultation report said about the number of people who were in favour of this particular recommendation?
The Earl of Listowel
My Lords, I am most grateful to the noble Baroness for raising this very important subject. I share many of her concerns, particularly the concerns raised by several noble Lords about the rapid changes in school quality and how we can be sure we get on top of that in good time and do not allow some of these children’s education, and their time in school, to be wasted.
In one particular aspect of our education, which is faith schools—we have heard about creationism—there has been a lot of concern in debates on education Bills in this House about how they work in practice. Many faith schools deliver great education to children, but they are a special complexity for this country, and there is therefore concern about how this regulation may be implemented in that regard.
I have sympathy with the Government’s position. I listened with great interest to what the noble Baroness, Lady Perry of Southwark, said. I was reminded of the experience in Finland, where there is no school inspection system. Finland's Minister of Education says:
“Teachers in Finland can choose their own teaching methods and materials. They are experts of their own work, and they test their own pupils. I think this is also one of the reasons why teaching is such an attractive profession in Finland because teachers are working like academic experts with their own pupils in schools”.
Baroness Massey of Darwen
My Lords, I am very glad that my noble friend Lady Hughes of Stretford has put down this Motion of Regret. This is proving to be an important debate, quite rightly raising all manner of concerns. I find the notion of schools being exempt from inspection quite extraordinary and somewhat sinister. If this is about money, can we afford to downgrade excellence in education? Inspection is about checking on measures to improve quality in all aspects of school life.
I would like to pick up on some of the things said by the noble Earl, Lord Listowel. Inspection is not, of course, the only measure. I recognise that many schools have in place excellent self-assessment procedures. However, that is not the same as inspection. Who inspects the self-assessment procedures? I wonder whether the chief inspector’s risk assessment can kick in quickly enough or be rigorous enough. Regular inspection is something that many schools learn from; it makes them vigilant. My principal concern about exempting schools from inspection is that, as I know, the Minister must know and at least three other Lords have mentioned, schools can slip very quickly from being excellent, even good, to being not so good and not so excellent. I have known the loss of an inspiring head of department or an inspiring head teacher plummet a school into difficulties in less than a year. Deterioration of that kind can go unnoticed for a while but would not if inspection were in place.
School improvement partners were disbanded by this Government and not replaced. As a school governor, I found in south London that visits by the school improvement partner were a great help in examining pupil achievement and well-being, structural issues and staff training needs. That has gone. Where will the checks be? It is ironic that private schools are inspected regularly and thoroughly. Why will some state schools be exempt? This lack of inspection could well reinforce inequality. It is not fair on pupils and parents in state schools to remove controls on standards while they are maintained rigorously in the private sector.
I have seen good school inspection teams in operation. This is where I want to pick up on what the noble Earl, Lord Listowel, said. A good inspection team does not just pick up on academic achievement, although that is important. A good inspection team will recognise that some children have difficulty learning because of factors in their lives that inhibit learning, such as a home background that does not foster it. Schools must make good that deficit before children can take advantage of what the school offers. If they do not, and if they rely on developing self-esteem and overcoming disadvantage solely through literacy and numeracy, this has a profoundly negative effect on equality of opportunity. A Government who express a wish to overcome disadvantage should be ashamed to risk denying opportunities through negligence and through a lack of consideration for how schools are delivering consistently and appropriately for all pupils, including delivering on dimensions which are non-academic but which support learning.
I have just looked at the Ofsted subsidiary guidance issued to inspectors in January 2012. That guidance includes a spiritual dimension—the pupil’s perspective on life, their enjoyment of learning and so forth. It includes a moral dimension—the ability to recognise the difference between right and wrong and the consequences of actions. It includes a social dimension—co-operation and resolving conflict. It also includes a cultural dimension—responsiveness to artistic, musical, sporting, mathematical and cultural opportunities and exploring diversity.
Education is not education if these dimensions of learning are not considered, and they ought to be inspected. They are the less definable aspects of education. Inspection teams should look for a positive school ethos that fosters respect for others and respect for self. This ethos, embodied in and reliant on these less definable aspects and the dimensions that I have listed, can disappear even more quickly than academic achievement. It is terribly important to have inspectors go in, look around them and focus on the ethos of the school and the elements of learning that are essential to underpin all achievement.
I remember a discussion with the inspector for personal, social and health education. She had, in her reports, examples of good practice in different schools. That is another example of what inspection can do—to gather and share good work on all aspects of education. What a waste if that potential is lost.
I do not understand the logic of the Government’s thinking on these regulations. Good practice does not fear inspection. Inspection promotes vigilance and excellence. Excellence supports children in academic subjects and in personal and social well-being. I urge the Government to think again on this matter.
The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)
My Lords, we have had an interesting and wide-ranging debate. Many noble Lords have spoken with a great deal of passion. We have talked again about some of the issues that we discussed previously in Committee and on Report and we have talked about the whole question of inspection itself. A number of themes have been covered. I will concentrate my remarks on the Motion before us moved by the noble Baroness, Lady Hughes of Stretford. I will attempt to pick up on the points raised relating to that. If I fail, I will follow up any particular questions afterwards.
I think that it is fair to say that, although there is clearly disagreement between us as to the definition of “proportionate”, there is agreement in principle that having a more proportionate approach to inspection in itself is not a bad idea to pursue. But, as I say, there is a difference between what we mean by “proportionate”. I know that noble Lords opposite and others argue that “proportionate” means that all schools should be inspected automatically at least once every five years. I contend that “proportionate” means that so long as there are proper safeguards—obviously I will come back to that—it is possible that some schools can be exempt from routine inspections.
As I listened to the contributions this evening, a number of common themes emerged. The first was that schools can fail very quickly—how can we be sure that we will spot that? That was raised by the noble Baroness, Lady Hughes of Stretford, the noble Earl, Lord Listowel, and most recently by the noble Baroness, Lady Massey. How do you pick up failure? How will we share good practice? How will inspectors and others within the school system know what “outstanding” means and how will they learn from one another? The noble Baroness, Lady Morris of Yardley, asked to what extent the Government’s proposals were being driven by financial considerations. How will we know about safeguarding concerns? Is it right in principle that all schools should be inspected? I will come back and try to answer all those concerns, but I want briefly to put the Government’s overall changes in context, because that helps to explain why we are doing what we are doing.
Before Ofsted was established 20 years ago, back in 1992, we had not had regular inspection of all schools. There was no formal assessment of primary schools and there was no published performance information. The introduction of routine inspection was the start of a process of making parents and the public more aware of how schools were performing. Since then, as noble Lords are well aware, there have been a number of developments under both Governments which have led to much more information being available. Key stage 2 testing, for example, was introduced in 1994, performance tables were introduced for secondary schools in 1994 and primary school performance tables followed in 1996. As a result, today there is a huge amount of information available on how schools are performing. I very much agree with the point made by the noble Baroness, Lady Morris of Yardley, about having that information that we can share.
Lord Hunt of Kings Heath
My Lords, the noble Lord will know that the chief inspector is laying much greater emphasis on the quality of teaching and learning in the new judgment on schools. I would imagine that that would mean that a number of schools graded outstanding under the old regime would not be outstanding under the new one. I seek reassurance on this. I understand the argument for schools that are graded outstanding by the new chief inspector under the new criteria that he has brought in, but what I do not understand is why schools that were graded outstanding under the previous criteria will continue to be treated as outstanding.
Lord Hill of Oareford
The basic response to the question comes in two parts. First, to reclassify retrospectively schools that were once classified in a particular way is difficult. The judgment that is made at the time should be based on the framework within which they are operating. Secondly, as far as how these schools will be picked up is concerned, we do not intend that they should be re-inspected automatically, because they were found outstanding under the existing framework. But the point about outstanding teaching would be precisely the kind of issue that, in terms of prioritising schools for risk assessment, Ofsted would put at the top of its list with the focus that it now gives to outstanding teaching.
As I said on Report, Ofsted will carry out a targeted review during the academic year 2012-13 to look specifically at where the safeguarding arrangements remain strong in a sample of outstanding primary and secondary schools. The findings from that review will be published and used to inform the effectiveness of the new arrangements. We know much more about schools. We need to use inspection wisely and effectively. We know, including from recent evidence from the Institute of Education, that inspection has most impact in weaker schools. That is why we are keen to target inspection there.
There is no evidence that Ofsted is going soft on schools. Most of the time the department gets comments in the opposite direction. If anything the chief inspector has signalled a tougher approach, but it is right to recognise those schools that have demonstrated the strongest performance. We want to encourage the best school leaders to play a full and active part in wider system improvement, working in partnership with other schools, in federations and chains, as well as more formally, such as becoming national leaders in education. As my noble friend Lady Perry argued, we need to signal our trust in these leaders. One way of doing this is by recognising their hard work and not requiring them to be routinely inspected and asking them to spend more time working with other schools.
The noble Baroness, Lady Morris of Yardley, asked me about special schools. As far as vulnerable children are concerned the reason why the exemption regulations do not apply to special schools—pupil referral units and nurseries—is because we recognise that there is a concern about vulnerable children. We want the reassurance of knowing before one were to exempt them that we could satisfy ourselves that that was a wise course of action. The current intention is that they will undergo routine inspection, but we will keep that under review.
Baroness Morris of Yardley
Why are the data less reliable with those schools than they are with non-special schools? That has been the thrust of the Minister’s argument: that data are strong enough for us to be able to take this course of action. The data are the same for the special schools, so what is the problem?
Lord Hill of Oareford
There are some harder judgments to make about some of the children who might typically be in special schools or pupil referrals. That is a fair point. Given the particular sensitivity about those schools we would prefer to proceed cautiously in that respect.
At bottom, this is an argument about trust, not just about trust in schools—and I am not seeking to make a political point—but about whether we feel that we can trust Ofsted to do its job. There is a difference of opinion between us over the meaning of “proportionate”. What the Government have been doing has been made possible by the great increase in information that we have encouraged, as well as by the further strengthening of risk assessment that has been put in place, partly as a result of concerns expressed by Members of this House. It is no more than a logical expansion of developments in recent years. I commend the steps that we have taken to the House.
Baroness Walmsley
Since my noble friend appears to be drawing his remarks to a close, will he write to me about the questions that I asked him?
The Earl of Listowel
Before the noble Lord concludes, I thank him for his careful response. I may have missed his response to the question asked by the noble Lord, Lord Hunt, with regard to faith schools, but will the risk assessments also consider the impact of faith schools on the teaching of science, for example, and the need to monitor that area?
Lord Hill of Oareford
First, inspections into faith schools concerning the arrangements that those schools make around their religious education will continue in any case, even for exempt schools. If there are concerns of the kind raised by the noble Lord, Lord Hunt of Kings Heath, about individual schools, whether by parents, local authorities or others, those would be referred to Ofsted and Ofsted would need to take a view as to whether it needed to act.
Baroness Hughes of Stretford
My Lords, I thank the Minister and my noble friends and noble Baronesses opposite for their very thoughtful and detailed contributions to what has been a very important debate. It has boiled down to three crucial questions. I will be brief because I am mindful of colleagues who want to carry on with the main business. I will not delay the House but I would like to bring these three items to our attention.
First, is external inspection necessary, even if it is not of itself now sufficient, to assure quality of education for pupils and to reassure the public? Notwithstanding the contribution of the Minister and the views of the noble Baroness, Lady Perry, I do not think we have had an answer to that tonight, even though the Minister said he would address the Motion—and the first part of the Motion is about the undermining of that principle of regular inspection of public services. In every other service, the answer to that question is yes. In some critical services, as we heard from my noble friend Lord Hunt, inspection is not becoming lighter touch; it is becoming tighter. We have not heard the argument for schools uniquely to be exempt from inspection. We have not heard the Government’s answer to that question tonight.
Secondly, do we have the evidence that, contrary to other public services, outstanding schools exceptionally remain outstanding once they have been judged so to be? The answer is no, as we have heard. All the evidence says that many outstanding schools decline in standards; some decline dramatically and quickly, as my noble friend Lady Massey pointed out. If they can fall dramatically in relation to educational standards, they can certainly fall dramatically as well in relation to safeguarding and those other issues particularly germane to vulnerable children that the noble Earl, Lord Listowel, was concerned about, and I share his concern.
Thirdly, the Government’s argument comes down to the fact that the safety net, the annual desktop risk assessment, is there as a catch-all. As my noble friend Lady Morris pointed out, not only is this becoming an edifice in itself, but in my view it can never be a substitute for directly observing what is going on and talking to parents and teachers. I am afraid what came to mind when I was listening to the arguments in favour of this as an effective safety net was the Baby P case in Haringey, when I was a Minister, when we learned that Ofsted had very recently completed a desktop assessment of social care in Haringey, which obviously had failed to uncover the very serious problems in policy and practice. It seems to be common sense that a desktop analysis of data is never actually going to reveal what is going on.
I hope that the Minister has at least appreciated the genuine strength of feeling and concern on this side of the House—and I suspect elsewhere. I am not going to press this matter to a vote at this late hour but I hope that the Government will reflect and monitor what happens as a result of this measure. If this measure has some of the negative consequences that we fear in even one school, many children will have their educational years blighted unnecessarily and avoidably, and I think we all agree that that would be a tragedy. I withdraw the Motion.
Justice and Security Bill [HL]
(12 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Beecham
“Independent review of closed material procedure
The Secretary of State shall ensure that an independent review is conducted into the impact of the provisions under Part 2, to conclude three years after the coming into force of this Act, and shall publish a report on the review to both Houses of Parliament.”
Lord Beecham
My Lords, this amendment and the others in this group stem from the report of the Constitution Committee and representations from organisations such as Justice. The Constitution Committee records that my right honourable friend Sadiq Khan, the shadow Justice Minister, asked a question in the House of Commons about the number of cases in which a CMP had been adopted under the existing provisions, which relate to control orders and the like. The reply of the Minister, Mr Djanogly, was that there was no information, it had not been collated and it would be too expensive to provide such information. The Constitution Committee rightly points out that these are matters of considerable interest to the public and, indeed, to Parliament and such a record should be made available. It invites the House,
“to consider whether the Government should be required to maintain consolidated records”.
Amendment 67B looks to provide such information, as does Amendment 67A, again following the recommendation of the Constitution Committee and representations, in this case from Justice, that the Government should report on the impact of the provisions of the Bill. The noble Baroness, Lady Berridge, has a similar amendment, Amendment 88.
Amendment 67A talks of a three-year period because it seems sensible, given the suggestion that there are likely to be very few cases, to allow sufficient time to elapse to gauge whether that is right or not. It would perhaps be wrong to rely on a single year’s experience as the basis for a review. Three years is long enough, in my judgment. Justice suggests a five-year period, which seems to me to be too long, given the scale of the changes. I hope that the Government will accept that these amendments, which are of course tabled on the basis that we end up with a CMP provision, will facilitate a greater understanding of how the system works and allow consideration of modifications should any of the difficulties which some of us have canvassed today in Committee and on previous occasions be warranted. I hope that the Government will look benignly on these amendments: they are not in any way destructive and should allow a proper consideration of how matters progress should the legislation pass in something like its present form. I beg to move.
Baroness Berridge
My Lords, I shall speak to Amendment 88, which, as the noble Lord, Lord Beecham, has said, is in my name. I concur with much of his reasoning and concerns about the recording and reporting of these matters. The amendments would enable Parliament to monitor the use of these unusual court proceedings. I would be grateful if my noble friend would say whether the response given in the other place to the question from Mr Sadiq Khan still stands, as the Government have very helpfully agreed to compile a central database of closed material procedures for the use of special advocates. If the Government are able to compile that database for special advocates, could they not also do so for Parliament?
If the closed material procedures are granted by Parliament, it would be on the basis of there being a very small number of cases. This amendment would enable Parliament to monitor whether that is indeed the case. Unfortunately, things that are intended to be rare have a tendency to creep, as apparently Lord Williams of Mostyn assured your Lordships’ House in 1997 in relation to the introduction of SIAC. The closed material procedures are now used in a large number of statutory situations—I think about 14 different jurisdictions. I expect there will need to be some agreement as to how frequently a report is laid but it is important with such a closed system that as much information as possible comes into the public domain, particularly information that can be assessed by Parliament. Although not the subject of this amendment, the same argument applies to the use of closed material procedures generally, so that Parliament would know how often they are applied for, granted, appealed and, in particular, successfully appealed, as well as which government departments are making use of the procedures and under which legislative regime they are being used. I also believe that there could be useful comparative statistics on how often appeals are brought in jurisdictions where appeal is allowed on a matter of law alone compared to on a matter of fact, as in the civil proceedings considered under this Bill.
Amendment 88 adds the requirement for the independent reviewer of terrorism legislation to bring a report to Parliament, which I understand would be similar to the role of the independent reviewer in relation to control orders and now TPIMs. It could also perhaps provide a means for the independent reviewer to receive the continuing views of the special advocates, which have been such a concern to many people including the Lord Chancellor. Unless someone independent reads all these closed judgments in an area, I do not know how we will know if there are inconsistent decisions and perhaps cases that have been decided without knowledge of a previous precedent due to the fact that these are secret judgments. Some of that risk will of course now be averted by the new central database that I have mentioned, which will be available to special advocates. However, it will not be completely averted, in my view, due to the nature of the system and not in a way that Parliament can be assured of the integrity of the body of these decisions. The independent reviewer of terrorism legislation might even need a method of passing cases that he or she is concerned about to be reviewed by the court for the reasons I have outlined.
I believe it is very much in the Government’s interests to have as much information in the public domain and as much scrutiny as possible of a closed system. I also hope, along with the noble Lord, Lord Beecham, that there will be good news on Report on the principle behind this amendment.
Lord Pannick
My Lords, I added my name to Amendment 88 and entirely agree with what has been said by the noble Lord, Lord Beecham, and the noble Baroness, Lady Berridge. The noble and learned Lord the Advocate-General for Scotland said earlier this evening that CMPs are “second-best justice”. If we are to have CMPs as a necessary but regrettable diminution in the quality of justice, and if the quality of justice is to be strained in this way, with all the damage that is done to fair and open justice, it is essential that the legislation contains adequate provisions for reporting and review so that this new procedure can be carefully monitored.
Lord Judd
My Lords, I support these amendments for all the reasons we have discussed with previous amendments but will just make this observation. I do not want to be too manic depressive about the implications of this Bill but it seems that all this can become very routine—we have a report and an annual consideration, but we do things this different way. I am sure that noble Lords in all parts of the House know exactly what I am talking about and can imagine, late in the evening with very few noble Lords present, a ritual whereby the report comes before us and is considered. There will be a tremendous responsibility in the future. We all have a duty to keep this sense of responsibility alive and, as I put it earlier, to say this is an exceptional and—I certainly agree with the noble Lord, Lord Pannick—regrettable digression. It is exceptional and it must be justified. It must not become just an alternative on which we report, take note and so on. It is something that ideally should not be there. Of course, I take second place to nobody in my anxieties about the nature and gravity of the threats which confront us. Of course I take that very seriously. That is why it is all the more important that we do not cave in to the extremists and that we do not in the end give them a victory in the sense that we have diminished justice. There will be an ongoing task for us all to be vigilant on this matter.
Baroness Stowell of Beeston
My Lords, I am grateful to the noble Lord, Lord Beecham, my noble friend Lady Berridge and other noble Lords who have contributed to this short debate. It raises some important issues about how an Act of Parliament, especially one such as this, is scrutinised after Royal Assent. I understand the intention behind the amendments, which is to ensure that effective mechanisms are in place for reviewing the operation of CMPs and other aspects of the Bill. I also understand, support and indeed share the objective of ensuring accountability of Government to Parliament, particularly in an area where we are moving towards new measures which are different and mark a significant step away from what has been routine until this point.
Amendment 67A, moved by the noble Lord, Lord Beecham, would require an independent review of the impact of the provisions under Part 2 three years after Royal Assent. It may be helpful to remind noble Lords that any Act has always been liable to some form of post-legislative review, whether by a parliamentary committee or internally within Government. Since March 2008, an additional and more systematic process has been in place. Normally, three to five years after Royal Assent, the responsible department must submit a memorandum to the relevant Commons departmental Select Committee. The memorandum will include a preliminary assessment of how the Act has worked out in practice, relative to objectives and benchmarks identified during the passage of the Bill. The Select Committee, or another committee, will then decide whether it wishes to conduct a fuller post-legislative inquiry into the Act. The process applies to all Acts receiving Royal Assent in or after 2005. This process already covers a requirement for a review after several years. Therefore, I think that the objective outlined in the amendment of the noble Lord, Lord Beecham, is already covered.
Amendment 67B and the first part of Amendment 88 seek respectively to introduce annual and quarterly reports on the operation of this part of the Act. The noble Lord, Lord Judd, made an important point. While it is important to have a process for calling the Government to account and for reviewing the operation of the Act and the CMP process, we need to be careful of the law of diminishing returns by introducing a process that is so systematic that over time it is no longer as impactful as it might otherwise be. What is important is that the Government collect the relevant data so that if a Select Committee or any parliamentarian wants to ask a question, or if there is a debate or a parliamentarian wishes to scrutinise the operation of CMPs, we are in a position to do so. My noble friend Lady Berridge referred to that point. During the process between now and Report, as we consider the implementation phase of the Bill, we will carefully consider how best to do that. I will certainly take on board the points made in the debate.
The second part of Amendment 88 seeks to add the review of the provisions in Part 2 of the Bill to the remit of the independent reviewer of terrorism legislation. I am concerned about how practical such a proposal may be to achieve its aims, given that the remit of the independent reviewer has already been extended on several occasions. His statutory responsibilities relate to the Terrorism Act 2000, Part 1 of the Terrorism Act 2006, the TPIM Act 2011 and the Terrorist Asset-Freezing (Temporary Provisions) Act 2010. Furthermore, the Protection of Freedoms Act, which came into force this year, requires that the independent reviewer or someone on his behalf undertakes a review of any detention of a terrorist suspect beyond the current statutory limit and if the Government intend to commence functions in the Coroners and Justice Act 2009 relating to the independent reviewer inspecting places of terrorist detention.
The TPIM Act is unique in that its measures are designed to restrict the behaviour and activities of individuals suspected of involvement in terrorism who, the Government argue, cannot be prosecuted or deported. This is why Parliament legislated for close post-legislative scrutiny. David Anderson QC indicated, when giving evidence to the Joint Committee on the Draft Detention of Terrorist Suspects (Temporary Extension) Bills, that his role has already increased and that there is a limit to how much one person can do. It is important that we avoid diluting the effectiveness of the role by overburdening it. Notwithstanding this, I recognise the valuable contribution that David Anderson QC has made to the debate about the need for CMPs. His reviewer functions for asset-freezing and TPIMs already include the use of CMPs. There is nothing to prevent Mr Anderson or any future post-holder being asked to undertake ad hoc reports into issues of wider national security relevance or being invited by Parliament to give his opinions. It is important that any such ad hoc report should not seek to provide oversight or review of the judiciary’s decisions on individual cases. That would not be appropriate.
My noble friend Lady Berridge asked about the database that is being made available to the special advocates. I can inform her that the closed database is to ensure that special advocates have access to judgments for legal precedent value. However, the database will contain sensitive information and will not be appropriate for disclosure generally to Parliament.
All that said, I hope that I have gone some way to reassuring the noble Lord, Lord Beecham, and other noble Lords that the measures currently in place are sufficient to ensure that the Act, if the Bill achieves Royal Assent, is properly scrutinised and that the department takes seriously its responsibility to ensure that we are in a position to be held accountable in the way that Parliament has every right to expect. On that basis, I hope that the noble Lord feels able to withdraw his amendment.
Lord Beecham
My Lords, if I am right, this is the first occasion on which the noble Baroness has responded to a justice debate. I welcome her to her new responsibilities. I wonder whether she is by any chance related to Lord Stowell, an eminent 18th century judge from Newcastle. He was the brother of the Tory Lord Chancellor, Lord Eldon—the most reactionary Lord Chancellor that the country has ever had. Perhaps she would enlighten me on her genealogy or, if she is not sure, look into it.
Baroness Stowell of Beeston
I will not detain the House. He is no relation but I know of his existence, which is why my title is Baroness Stowell of Beeston.
Lord Butler of Brockwell
Perhaps I may point out that he had a connection with the college to which the noble Lord, Lord Beecham, and I also have a connection.
Lord Beecham
As does the noble Lord, Lord Marks. I had the misfortune to sit beneath the portraits of both those distinguished judges at my school and my college. I could not escape them but I would not wish to escape the noble Baroness.
Despite these warm words, I am somewhat disappointed by the noble Baroness’s reply on the amendments. Amendment 67A seeks, in effect, to replicate the independent review process of the independent reviewer of terrorism legislation without adopting that individual, as the noble Baroness, Lady Berridge, suggested. Having said that, it would not be beyond the wit of government to appoint a second independent reviewer of terrorism legislation and allied matters if that were thought to be required. It is the independence of the review that is essential. Furthermore, the post-legislative review process is normally designed to take place after three to five years. Five years is too long. This is a rather different piece of legislation from most of that which would be reviewed. We are dealing with some fundamental rights and a fundamental change in the justice system. It deserves special consideration. I hope the Government will think again about that. The same really applies to Amendment 67B. It is important that there should be in the public domain regular checks on precisely what use is being made of these procedures. Concerns have been expressed in Committee today that, like Topsy, the use of these things may simply grow. The legislature needs to keep an eye on developments here. The assumption is that there will not be many. That is an assumption which needs to be tested regularly. A compilation of statistics on an annual basis should help that.
Lord Hodgson of Astley Abbotts
Does the noble Lord agree that the phrase “mission creep” could be made for this sort of thing? We just find it spreading out. Mission creep would be a most dangerous aspect of this legislation.
Lord Beecham
I concur with that view, hence the need for regular reporting, not just of the statistics. The next amendment I will move will deal with other aspects. There does not appear to be available in general an indication of how much use is being made of the process under the present regime. It will be even more important when we are looking at the new developments that the Bill proposes. I am somewhat disappointed with the reply. It may well be that we will have to return to these issues on Report. In the circumstances, I beg leave to withdraw the amendment.
Lord Beecham
“Open statements for closed judgments
Closed judgments must be accompanied by an open statement from the court, which shall include—
(a) the reasons for the closed material procedure;(b) any factors which would be particularly relevant in determining whether all or part of the closed judgment could be made open at a later date;(c) the duration of open hearings and closed hearings;(d) the number of witnesses heard in closed proceedings, and the nature of those witnesses;(e) the length of a closed judgment;(f) whether national security was an issue in the proceedings; and(g) the date at which the closed status of the judgment should be reviewed, which must be no later than five years from the date of the judgment.”
Lord Beecham
My Lords, this amendment was suggested effectively by Dr McNamara of the University of Reading, who is conducting a research project around—as he puts it—how different arms of the state control and manage information about terrorism and security. It is a project that has involved a great many government departments and individuals from government to police forces and the like. He suggested that it would be sensible, again given the important nature of the proposals in the Bill, to look at how the system is working in somewhat more detail than simply the numbers of cases we referred to in previous amendments. The thrust of this amendment is to require a judgment when it is made to give the reasons for the closed material procedure, such as national security, as well as the other factors that are listed in the amendment—I will not take up the time of the House by repeating them all.
The essence is to have a clear view of what is happening in individual cases and ultimately to make possible the availability of the status of the judgment. Paragraph (g) of the proposed new clause would give a date at which the status of the judgment should be reviewed—in other words it would create the possibility of opening up the material at some point. That would not be an absolute requirement. It would still be a matter for determination as to whether the material should be disclosed, but a time period would at least set the clock running for that possibility. In some cases it would not eventuate but in others it might be appropriate for the material to be disclosed. This would reinforce the acceptability if CMPs come into play because the public would have some assurance that ultimately consideration would be given to disclosing material. That may allay some of the fears that surround the issue. I beg to move.
Lord Lester of Herne Hill
My Lords, this amendment is perfectly understandable and very prescriptive. It might be to the benefit of the House if I explained that I asked the Government in a Question for Written Answer whether they would introduce measures to ensure that judgments made by courts and tribunals under the closed material procedures were made public when the reasons for maintaining their secrecy no longer obtained. This, of course, relates to a later amendment.
My noble friend Lord McNally gave a Written Answer on 10 July, which may make any comment unnecessary. He said:
“Closed judgments contain highly sensitive material. For this reason they are not suitable for publication by law reporting organisations which are not security cleared. Closed judgments are usually handed down in tandem with an open judgment, and most judges”—
I emphasise “most”—
“state in their open judgment that a closed judgment has also been handed down ... Judges will put as much of their reasoning into open as possible, including statements of legal principle that are most likely to have cross-case relevance. It is open to special advocates and counsel for the Government to make submissions about moving material from the closed judgment to the open judgment. If the court is persuaded that it would not harm the public interest to do so, then material will be moved to the open judgment”.—[Official Report, 10/7/12; col. WA243.]
It then refers to the code of practice under the Freedom of Information Act. I mention that Answer because it shows that an unsatisfactory situation will obtain with regard to these judgments. Whether this or a later amendment or some other approach is needed, I have no doubt that standards are needed so that we get common—in fact universal—practice as to what we can do to make sure that judgments whose secrecy has been lost over time or because of particular circumstances may be made public in accordance with the principle of open justice.
Lord Pannick
My Lords, I, too, support the amendment, and not just because in principle it is right that judgments should be closed for as limited a time as necessary. There is also a very real practical consideration that, despite what the noble Lord, Lord McNally, said in his Answer that the noble Lord, Lord Lester of Herne Hill, quoted, there have been examples of closed judgments that contained statements of principle that were not in open judgments or that contained statements relevant to other cases or potential cases. The difficulty is that those practising in this area who represent individual litigants do not have access to this body of jurisprudence. If we are to create this closed material procedure, we have to recognise that we are creating a body of case law that is not generally available. That is a very real problem for the rule of law. One way in which to address the problem is to minimise as far as we reasonably can the length of time for which a closed judgment is not generally available. For that reason, in addition to the reasons already given, I support the amendment.
Baroness Berridge
My Lords, I, too, support the amendment and am aware that part of this issue is covered by a later amendment in a separate group. I want to raise the very practical point that leads on from the point made by the noble Lord, Lord Pannick. From hearing evidence in the Joint Committee on Human Rights, a very basic question arose: where, physically, are these judgments?
Normally, you can go into a law library and they are all there. Special advocates and other people just seem to be unaware of where, physically, this body of case law is stored. We know from the answer to Mr Sadiq Khan that it seems not to be collated centrally. It is a very important question. It sounds incredibly basic, but we need to know where, physically, these judgments are stored.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, it is obvious that the amendment moved by the noble Lord, Lord Beecham, is important and goes to a number of aspects of the use of closed judgments. I think it is agreed that we are constantly trying to balance fairness and national security. It is self-evident that closed judgments contain material that should not be disclosed in the interests of national security. Of course, this is the only basis on which a judgment can be classified as closed. As is the practice in existing statutory regimes for CMPs, such as TPIMs and SIAC cases, judges will hand down an open judgment, in tandem with a closed judgment, that contains the parts of the judgment that can be disclosed without causing damage to national security.
In February 2010, special advocates raised concerns about accessing a searchable database of closed judgments. I hope this goes some way in answering the point raised by my noble friend Lady Berridge. The Government agree that it is important to ensure that those who are entitled to access closed judgments are able to do so efficiently and effectively. We have been consulting the Special Advocates Support Office on the creation, storage and dissemination of the head notes and are in the process of finalising arrangements. We anticipate that the database will be populated with all historic closed judgments by the end of the summer. I know that does not go the whole way, as some noble Lords have indicated, but I hope that I have indicated that we have addressed the concern that was raised and are making significant progress towards meeting it.
The next part of my remarks will probably reflect what was said by my noble friend Lord McNally in his response to my noble friend Lord Lester. It is the case that judges will put as much of their reasoning into the open as possible, including the statements of legal principle that are most likely to have cross-case relevance. It is the role of special advocates to make submissions about what material can properly go into the open judgment. If the court is persuaded that it would not harm national security, material will be included in an open judgment rather than a closed judgment.
However, it is not always possible to provide an open statement containing the information as it is described in this amendment. For example, the amendment suggests that it should reveal the length of the closed hearing, the number of witnesses and the nature of those witnesses, which could be damaging to national security. If in the judgment the summary said that the closed session lasted five days while members of the Security Service gave evidence, this would provide to the claimant the knowledge that the intelligence services held a lot of information on them when they may not have been aware of that fact. As already outlined, it will be up to special advocates and counsel for the Government to make submissions about whether material can be included in an open judgment or should remain closed, with the final decision being for the court, which will decide that material should be classified as closed only if its disclosure would be contrary to the interests of national security.
The amendment also requires the judge to declare whether national security was an issue in the proceedings. I believe that this is unnecessary. As we have made clear on a number of occasions in Committee, the Bill makes it clear that the only reason a court can go in to a closed session is that the disclosure of some material relevant to the case would damage national security.
The Lord Chancellor’s code of practice on the management of records, issued under Section 46 of the Freedom of Information Act 2000, provides guidance on the management of records held by bodies subject to the Public Records Act 1958. Authorities are required to identify records worthy of permanent preservation and transfer them to the National Archives, a place of deposit for public records or the Public Record Office of Northern Ireland, as appropriate. Authorities all need to consider whether parts of records might be released if the sensitive information were redacted— in other words, rendered invisible or blanked out. Information that has been redacted should be stored securely and should be returned to the parent record when the exemption has ceased to apply.
I heard what was said by my noble friends and by the noble Lords, Lord Beecham and Lord Pannick, about when the national security considerations have in some respects flown off. I want to revisit this matter and discuss it with officials because I recognise the point that has been made. I am not going to pretend that there may be an easy answer to it, but if there is no longer a national security consideration, I see the force of what has been said. However, I have tried to describe the current arrangements for the storage and permanent preservation of records.
However, as things stand, it is up to the courts to decide the detail to include in their judgments. The Bill allows the judges to make these judgments with as much information available to them as possible, while ensuring that the interests of national security are not damaged. I do not believe that Parliament needs to go further and dictate to judges specific information that they are require to release, and I therefore do not believe that the many detailed parts of the amendment are necessary. I hope that in the light of that explanation, the noble Lord will be willing to withdraw the amendment.
Lord Lester of Herne Hill
I am very grateful to my noble and learned friend for his open-minded response, but there are two problems. One is the problem of legal certainty, which is how the public, lawyers and people who are not special advocates can know exactly what the law is. That problem is obviously a human rights convention problem as well as a common law problem. The second problem is about whose responsibility it would be to make sure, when secrecy has been lost and national security considerations are no longer there, that something is done to put a matter into the public domain. I am still puzzled about who would be responsible. The final point is: how can one get guidance to the courts to ensure a common approach? Is it contemplated that rules will be made through amendments to Clause 7 or that guidance will be given? Will the judges be consulted and so on? These are practical problems that are important to address. As I understand from the response of my noble and learned friend, he is open to thought and discussion about those kinds of practical matters.
Lord Wallace of Tankerness
My Lords, there were three points. First, I understand my noble friend’s point about the availability of judgments that are closed to people who are not special advocates. That is a difficult problem that I cannot readily see a solution to, given that the very reason why they are closed judgments is because of the sensitive nature of the information in them the disclosure of which could be damaging to national security.
The second point is very much one of detail. Who would determine whether there was, in fact, no longer a national security consideration? Where would the responsibility lie? That is the very issue that I want to consider, because how that would be addressed does not readily present itself to me. I sought to indicate that there is an issue here. I am not pretending for a moment that there is an easy answer, but the issue is important to consider.
On the third point that my noble friend makes about consistency, the difficulty—perhaps it is a reality rather than a difficulty—is that every case will be dealt with on its own individual circumstances. What goes into an open judgment or a closed judgment may well be the result of representations, debate and argument before the judge by special advocates. In those circumstances, it is difficult to ensure that there is rigid consistency because that might inhibit more openness in circumstances where a special advocate makes a compelling case that particular material ought to be included in an open, rather than a closed, judgment. It may be the counsel of perfection, or of the impossible, to think that there would be consistency when we are dealing with circumstances that can differ considerably from case to case. I think it must be left to the argument presented by counsel on both sides—special advocates and counsel for the Government—to determine what a judge puts into open judgment and what is put into closed judgment.
I hope that with those words, the noble Lord, Lord Beecham, will consider withdrawing the amendment.
Lord Beecham
I am grateful to the noble and learned Lord for agreeing to give consideration to that particular aspect. There are two issues here. One is public confidence in the system, for which some information about the process—I am not talking about detailed information about the closed material itself—needs to be in the public domain. The second issue is that this should be done in a systematic way, perhaps by the equivalent of the 30-year rule for Cabinet papers and the like.
I am not suggesting for a moment that we should set out to prescribe a given period at this point, but at some point the option of disclosing material ought to be built into the system. This should not necessarily be with a particular time frame in mind, but be a process that is available to the Government of the day to determine, perhaps in conjunction with the courts, what information might be released and when. That is something that we might look at further on Report, in addition to the point that the Minister has agreed to take back. However, in the circumstances I beg leave to withdraw the amendment.
Lord Thomas of Gresford
“Disclosure judge
(1) The jurisdiction of the court in section 6 proceedings shall be exercised by a judge designated by the Lord Chief Justice for such purposes.
(2) A judge so designated shall be referred to as “the disclosure judge”.
(3) The disclosure judge shall not be the trial judge of the relevant civil proceedings.”
Lord Thomas of Gresford
My Lords, I raised in my Second Reading speech the question of a separate judge for the determination of disclosure issues, in particular PII applications and Section 6 proceedings: that is, a judge who is separate and distinct from the trial judge. The reason I believe this to be a necessary safeguard in civil proceedings is because the trial judge in civil proceedings is the judge of fact. That is quite distinct from criminal proceedings in the Crown Court, where it is the jury that makes the decision on what has happened.
It was the procedure instituted in the Diplock criminal courts in Northern Ireland, where the judge, unusually, sat alone without a jury. He decided the facts and returned the verdict. The purpose of this practice was to build public confidence in the criminal trial process in the absence of a jury. The importance of public confidence in the system has been emphasised today, most particularly by my noble friend Lady Williams, but also by others who have referred to the need to keep public confidence in the judicial system.
This proposal has been the subject of discussion with the Minister, and with the Secretary of State, for which I am grateful, and I have been provided with a note which sets out the Ministry of Justice’s views. The first reason for its lack of support for my suggestion is that,
“it is better from the point of view of the administration of justice and judicial case management that the judge trying the case—who will have a direct interest in ensuring that he or she oversees a fair trial process—should be the judge who determines whether a CMP should be allowed”.
This totally ignores the fact that, in ordinary civil litigation, preliminary issues are the province of a Master of the Queen’s Bench, or a registrar. He deals with strike-out applications, case management, and in particular, with disclosure under Part 31 of the rules of the Supreme Court. Applications seeking further disclosure or contesting claims for disclosure are tried by the Master subject to appeal, not necessarily to the trial judge, but to another High Court judge.
In civil proceedings, unlike criminal proceedings, a two-tier system is in existence at the moment. Anything that is ruled out by the Master on the basis that it should not be disclosed or is irrelevant or inadmissible is not put before the trial judge. The trial judge does not become involved in these proceedings until the case is ready for trial and the disclosure issues are already dealt with.
Another aspect of the Master’s work is to deal with, as I said, strike-out applications, where allegations in the pleadings which are irrelevant or scandalous are struck out and never come before the trial judge at all. Clause 9 says that subject to Clauses 7, 8 and 10, the normal rules of court continue to apply, in relation to disclosure. That seems to mean that the Master would govern all applications in the case relating to material which is not the subject of a Section 6 application but, when it comes to sensitive material, those applications are dealt with by the trial judge. I do not believe that the Ministry of Justice has fully taken on board the standard everyday practice in civil proceedings, whether in London or across the country, where preliminary issues are not dealt with by the trial judge.
The second reason given by the Ministry of Justice for rejecting my suggestion is that relevant, but very sensitive, evidence, which would fall to be excluded otherwise from the proceedings under a public interest immunity application, is considered by the trial judge. I draw attention straight away to the difference between “material”, which is the word used throughout the Bill—Section 6 applications relate to material—and evidence, which is what is admissible and what is relevant and what the judge may take into account in coming to his decision.
The ministry says that:
“The issue is about allowing the judge to know the full facts, even in circumstances where they cannot be fully shared with the claimant. So there will usually be no question of the judge’s mind being swayed by evidence which ought not to be taken into account at all. It is about allowing the judge to take all the evidence into account”.
Of course, if all the material is put before the judge—not evidence, but material—he still has to exclude from his mind irrelevant and inadmissible material. Presumably that is multiple hearsay, inexpert opinion, the product of intercept and so on.
On intercept, I want to ask the Minister a very specific question. Under the provisions of this Bill on a Section 6 application, the judge is permitted to look at intercept material. Is he, as the trial judge, permitted to consider intercept evidence for the purposes of his decision on the issues between the parties on material that would be inadmissible in open proceedings? The Bill as drafted suggests that he may take such material into account in making a declaration under Clause 6 that a CMP application may be made, but nothing is said in the following clauses about whether he may take inadmissible evidence, like intercept, into account in formulating his judgment.
Indeed, there is a huge hole in this Bill. It deals with a Section 6 application and how you can make it; it deals with how the judge determines that application and what rules are to be applied; and it deals with how he is required to withhold material the disclosure of which he considers would be damaging to the interests of national security; but having made all those decisions what then? One would have expected a clause saying something to the effect that the judge in open court may take into account the material that he has considered in the Section 6 application. One would have expected at that point that the Bill would not be silent about what happens afterwards and to what degree he can take into account what he has seen but which he cannot disclose. If evidence is inadmissible in open proceedings, how can it be inadmissible in closed proceedings? The inherent unfairness of Section 6 applications is doubly compounded.
That brings me to the Government’s third point. Again, I quote:
“It is normal for judges at all levels to decide whether evidence is admissible and, if it is not, to put it out of their minds when reaching a judgment”.
That seems to confirm that the judge is to take into account only admissible evidence in deciding the issue. Again, I ask: does that apply to the intercept evidence that he is permitted to see in a Section 6 application? Does he put intercept out of his mind?
The fourth point is:
“This is true even when the judge is also the decision maker on the facts—for example in criminal cases in the magistrates’ court, where there is no jury; and in cases in the civil courts where PII claims are made”.
We are most certainly not dealing with criminal proceedings in the magistrates’ court in this Bill. I would be grateful if the Minister would indicate how often PII hearings do take place in such magistrates’ courts, where the magistrates carry out the Wiley test of weighing the interests of secrecy against the interests of justice. I have never heard of it happening. It may do, but I have never heard of PII applications determined by magistrates. In the civil courts, of course, I repeat, the judge discards material which he rules should not be disclosed as inadmissible —that is to say, it does not enter into the process of his determination of the issues in the case. He must sift out, from the material put to him in the Section 6 application, what is to be discarded because it is inadmissible and take into account only relevant evidence.
The final substantive point made by the Ministry of Justice is that a separate judge would have to review disclosure decisions as the trial progresses. Perhaps he would, but he would be fully informed of the state of the proceedings and of the issue which had arisen in the open proceedings, no doubt by the state’s representative, who would discuss the position with the claimant’s special advocate before such a hearing. There are ways of getting round what goes on in the open hearing which may be required to be reported back to the disclosure judge.
My point is that the designation of a disclosure judge by the Lord Chief Justice, although I put it might be more appropriate to say the Lord Chancellor, or, since it is civil proceedings, the Master of the Rolls would ensure that there is a cadre of judges, security cleared, who would develop expertise in this type of case. They would quickly be adept at redaction, gisting, disclosure to a security ring or whatever way they can deal with evidence or parts of evidence which might be disclosed to the parties. A disclosure judge could, for example, permit the special advocate to ask the claimant specific questions by way of taking instructions and could control the manner in which that would happen. If the disclosure judge decided there was a limited area of the evidence that justice demanded that the trial judge, but not the parties, should see, I suppose that in extremis that could be done. There could be a tiny residue of material which cannot be disclosed by gisting or in any other way to the parties in the open proceedings. Otherwise, however, the trial judge would deal with the issues between the parties only on the admissible and relevant evidence which the disclosure judge had decided should be open to them all.
The Government have suggested that the rationale of my amendment is to avoid the contamination of the judge’s mind in relation to material which he has seen but which is not shared with the parties. The use of the pejorative word “contamination” clouds the issue; the intention of the state in applying for Section 6 proceedings is exactly to influence prejudice or, if you like, contaminate the judge’s mind in coming to his judgment. I am concerned to ensure that justice is seen to be done in an open and transparent way that will command the confidence of the public and continued respect for the rule of law. I beg to move.
Lord Marks of Henley-on-Thames
My Lords, I added my name to the amendment put down by my noble friend Lord Thomas of Gresford. This debate is informed by the far-reaching discussion that we had last Wednesday on the relationship between PII and CMP. I suggest that in that debate there emerged a consensus around a series of principles which can be distilled as follows.
First, the use of CMP should always be a last resort given the inherent injustice in the trial judge seeing evidence that is withheld from one or more of the parties. Secondly, there should be substantial flexibility in considering how far a just determination of the issues could be achieved by relying on the PII procedure where the exclusion of security-sensitive material under PII would not make determination of the issues impossible. Thirdly, the court should always, as far as possible, make use of gisting, redaction and other ways of protecting security-sensitive material rather than relying on CMP. Fourthly, before resorting to CMP the court should always be satisfied that the public interest lies in having closed proceedings rather than in letting the case go without a determination on the merits at all. Finally, in any CMP, the use of closed material should be kept to the minimum.
Lord Pannick
My Lords, I sympathise with the objectives of the amendment and I agree with much that was said by the noble Lords, Lord Thomas of Gresford and Lord Marks of Henley-on-Thames. However, I have this concern about the amendment: in practice it will be very difficult indeed for judges to determine whether to move into a closed material procedure as an abstract preliminary question. We are far more likely to get a sensible result from a judge on whether it is necessary to move into a closed procedure, and a far more sensible result on the balance of competing interests, if the judge is fully aware of all the detail of the case and has heard the opening from the parties concerned on both sides with the open material. The judge will then be able to take a far more informed and sensible view on whether this exceptional procedure is really required.
I am very concerned that if these matters are addressed as a preliminary question, we may well find that judges—very properly, to protect national security—are going to authorise far more closed material procedures than would actually be necessary if the judge were fully aware of all the details of the case and had heard at least the opening statements on an open basis.
Lord Thomas of Gresford
Would not the problem then arise that disclosure is a preliminary part of the procedure in ordinary civil proceedings? It is upon disclosure and the pleadings that very important decisions are made: for example, for payments in and settlement of a case, and so on. As I understand the noble Lord, he is saying, “Well, leave it until the trial has begun and both sides, or at least the plaintiff, have opened their case. Only then should issues of disclosure take place”. Now, suppose the trial has started, the expense has been incurred, and something very significant appears as a result of a disclosure application which makes months of work completely unnecessary. Is that not the danger of his course?
Lord Pannick
The noble Lord is of course correct; that is a danger. However, very often, highly sensitive questions of disclosure that raise issues of PII are not dealt with as abstract, preliminary questions, but on the basis that in civil litigation, one needs to see precisely how the case is going to be argued, how material is going to be deployed, and what the issues are. I suggest to the noble Lord that it is going to be very difficult indeed, particularly in this exceptionally sensitive area, for a judge hearing matters on a preliminary basis to form an accurate and informed assessment of what we all agree are going to be exceptional categories of cases where closed procedures are appropriate, on this preliminary basis. That is my concern. It is a difficult issue.
Lord Thomas of Gresford
This is a very useful dialogue. I hope other noble Lords are listening. Is it not the case that strike-out applications, for example, and all sorts of issues are tried on the pleadings? Donoghue and Stevenson was tried on the pleadings. Major cases are tried on the pleadings because, unlike criminal procedures where the defence statements are laughable, in civil proceedings the case must be set out very fully and considered by both sides, and all the evidence must be produced up front, well before the trial starts.
Lord Pannick
The noble Lord is correct and I accept, at least to an extent, that there may be Clause 6 cases where a discrete, fundamental issue can be identified at an early stage. However, I suggest that there will also be cases—the majority, I suspect—where the issues will not be formulated and clarified in this specific way on a preliminary strike-out basis. I am concerned that it is inevitable that there will also be cases where fresh evidence comes to light or where, as a result of the way the case is put in the trial, new Clause 6 issues arise. It seems impractical to require the trial judge, who has already started to hear the case, then to say, “I am going to stop”, whereupon the issue would go off to a disclosure judge. There are real issues here and I am far from convinced that the amendment, the purposes of which I entirely sympathise with, will result in fewer CMPs than the procedure that is in the Bill.
Lord Faulks
My Lords, I share with noble Lords who have proposed this amendment the desire that there should be public confidence in the system. However, like the noble Lord, Lord Pannick, I do not think that this is the solution. It is true of course that there are circumstances in which it is desirable, if not essential, that one judge should hear one part of the proceedings and another should hear another part, but the question of it being desirable, as it were, to have separate judges is a different matter. In fact, there is quite a strong argument that there should be greater continuity. The days of having one judge hearing preliminary issues and summonses and then the matter moving on to another judge have to some extent been changed in the Commercial Court, the Technology and Construction Court and in many cases in the county courts, so that if possible there is the same judge with a grip on the case right from the beginning.
On the face of it there is considerable advantage to having continuity unless, of course, the process is going to result in injustice to the litigant. We are talking in the context of CMPs with a claimant who may feel that injustice is being done to him or her by virtue of the possibility of closed material provisions. All I can say is that if I were in the position of that claimant, I would much prefer the judge who first heard and no doubt scrutinised the application under Clause 6 to conduct the case throughout in order to make sure that there is fairness, to show the flexibility we discussed in the last session of this Committee, and to deal with what might arise in accordance with the guidance given by the Bill in such a way as to provide justice. Although I wholly understand what motivates the amendment, I fear that it is not going to achieve what it is intended to.
Lord Beecham
My Lords, as I said, I have a good deal of sympathy for the amendment proposed by the noble Lord, Lord Thomas of Gresford, and I am particularly seized of the argument of the noble Lord, Lord Marks. Ultimately it comes down to a question of the public perception of a situation where you have what appear to be secret trials at the behest of the Government of the day. That puts the case in a different category from other kinds of case where there is perhaps a lesser degree of public interest or concern about the nature of the proceedings as a whole.
Cases of this kind are distinguishable from the kind of case that the noble and learned Lord, Lord Woolf—another, if I may say, eminent Newcastle holder of high judicial office—referred to. There is a distinction to be made with cases where a judge can put matters out of his mind, and no doubt judges would be able to do so. However, I suspect that the public will be more concerned, to the degree that they are at all concerned about these things, in a case of this kind where we are talking in effect about closed procedures and what can be described loosely but not entirely inaccurately as secret trials.
Lord Wallace of Tankerness
My Lords, I am grateful to my noble friends for tabling these amendments. The issue of the role of the judge in providing fairness during a close material procedure is important. As my noble friend Lord Marks said, we have been looking in our debates at the careful balancing exercise by a judge in these matters. As he has said and other noble Lords have indicated, the issue of public perception and public confidence is important too. I understand why my noble friend might consider it fairer to have a separate judge to deal with the applications for a declaration that a CMP should apply and on individual pieces of evidence. This is a matter about which my noble friend Lord Thomas has been particularly anxious. He raised it at Second Reading and he has raised it with me and with the Lord Chancellor. We have given careful consideration to it. He has had the advantage of being able to anticipate what I am about to say to him, but I would still like to say it and perhaps give some explanation as to why we are not being persuaded by the merits of the proposal.
It is better from the point of view of the administration of justice and judicial case management that the judge trying the case should be the judge who determines whether a CMP should be allowed and what materials should be heard in closed proceedings. That judge has a direct interest in ensuring that he or she oversees a fair trial process. In earlier debates it has been put to the Government that we have supplied insufficient room for judicial discretion and it seems to us that a single judge in charge of the entire process is more likely to guarantee judicial discretion than if the roles of disclosure and trial are compartmentalised.
My noble friend is right to say that there will be cases too when masters decide pre-trial issues. My anticipation of what is likely to happen is much as described by the noble Lord, Lord Pannick, and echoed by my noble friend Lord Faulks. It is more likely that these issues come up in the course of the proceedings. In TPIM cases, for example, there are disclosure issues at the beginning. There is an ongoing issue of disclosure. These will be addressed as the case goes on. Indeed, fresh issues may well arise mid-case. It was also pointed out that in cases where public interest immunity is asserted, this is normally dealt with by the judge hearing the case. I am not saying that it could not be dealt with as a preliminary issue but it very rarely is.
In addition, the whole point of the CMP provisions is to ensure that relevant but very sensitive evidence, which would otherwise be excluded from the proceedings under PII, is considered by the judge. It is not a question of the purpose of this being to exclude material altogether from consideration in the case. It is in fact the opposite: it is to allow it to be considered in some very exceptional circumstances. It is about allowing the judge to know the full facts, even if they cannot be shared with the claimant for reasons of potential damage to national security. There will usually be no question of the judge’s mind being swayed by evidence that ought not to be taken into account at all. It is about allowing the judge to take evidence into account.
My noble friend asked about intercept evidence. The provision in Clause 6 is to put to one side whether or not there would be an exclusion for intercept material in determining whether a party would be required to disclose material, but it is the intention of the Bill that intercept evidence should be permitted. The provision for this is in paragraph 9 of Schedule 2. It is of course a matter for the courts and an individual judge in a particular case as to what weight would be given to that evidence. I hope that answers the very specific question that my noble friend raised.
Lord Thomas of Gresford
As I understood it, paragraph 9 of Schedule 2 refers to what the judge hears in the Section 6 proceedings. What I do not see, when he draws my attention to it, is that the judge can take into account intercept evidence in determining the issues between the parties in the trial. It seems to be quite wrong that you could take into account intercept evidence that you have heard in closed proceedings for the purposes of the trial when it would be inadmissible if the proceedings were not closed.
Lord Wallace of Tankerness
My Lords, I refer my noble friend to paragraph 9 and indicate that it is the intention that intercept evidence should be permitted before the court. We may wish to have a debate as to whether that is right or wrong—
Lord Thomas of Gresford
Perhaps I may point out the problem that then arises. The press have been full of “secret trials” and so on, and now, if the noble and learned Lord is right, the Government are proposing a secret trial, because inadmissible evidence, which you could not adduce in any form in an open proceeding, whether it is sensitive or not—intercept evidence may not be sensitive; the methods of obtaining it may be but the evidence may not be—could not be introduced in an open trial. Yet the noble and learned Lord is saying that the judge can decide the case—not the Section 6 application but the case—on inadmissible evidence that he has heard in secret. What are the press going to make of that?
Lord Wallace of Tankerness
My Lords, I will no doubt be corrected if I have got this wrong but I think it is the case that it is currently permissible in some other areas where there are closed material proceedings. We may well wish to have a fuller debate on intercept evidence rather than dealing with it as part of a debate on whether there should be a separate disclosure judge. I confirm that in fact it is available in all other closed material proceedings, so this is keeping it in line with what happens elsewhere. No doubt we may return to this if my noble friend wants a more fundamental debate on the role of intercept evidence. I just point out what the position is with regard to the Bill, since he asked a specific question.
In any event, judges are accustomed to consider material for the purpose of making evidential and disclosure decisions. It is normal for judges at all levels to decide whether evidence is admissible and, if it is not, to put it out of their minds. I know that there has been some discussion about the extent to which that is possible. Obviously, it is the case in dealing with PII claims where PII is successfully asserted. My noble friend asked about the number of PII claims in criminal cases in magistrates’ courts. That is not really the point that we were seeking to make in the speaking note which he saw; rather we sought to make the point that in magistrates’ courts there must, day in, day out, be cases, not of PII, in which magistrates have to decide on the admissibility of evidence. The argument is heard before the magistrates as to whether particular evidence is admissible or not and, if it is not, they have to put it out of their minds. The point I was making is that there is no problem in principle, even in criminal cases in magistrates’ courts, for judges to decide issues of fact and law. There are cases, too, when they will have to put out of their minds evidence which they have deemed to be inadmissible.
A separate judge would make review of disclosure decisions as the case progresses cumbersome, as was pointed out by the noble Lord, Lord Pannick. The disclosure judge would need to follow the progress of the case in order to understand potential implications for the fairness of proceedings before he or she was able to rule on disclosure issues, and that could cause delay. I accept that this is not the same as the amendment moved by the noble Lord, Lord Dubs, earlier this evening, but some of the same considerations arise.
I take this opportunity to clarify what I said in an earlier exchange with the noble Lord, Lord Dubs, when he said that the Bill will abolish juries. I think that I responded by saying that these are civil proceedings presided over by a single judge and do not relate to criminal proceedings where there would be a jury. For clarification and for the avoidance of doubt, the position is that the Bill amends the Senior Courts Act 1981, and its Northern Ireland equivalent, which contain a residual right to jury trial in some civil cases. I do not think that that was what the noble Lord, Lord Dubs, had in mind, but it is important to say that for completeness and clarification.
Lord Thomas of Gresford
For the avoidance of doubt, I was involved in a case of false imprisonment tried as a civil case in the Royal Courts of Justice in front of a jury, and I am not aware that that possibility has been abolished.
Lord Wallace of Tankerness
For completeness, the Bill allows the court, however, to refuse an application for a jury where it is of the view that the trial will involve a CMP. Highly sensitive information clearly could not be shared with a jury without presenting serious national security concerns and risks, but the original point is that the Bill does not affect trial by jury in criminal cases, since the Bill does not relate to criminal cases. Of course, criminal cases have been adduced with regard to Northern Ireland, where the practice is to have a separate disclosure judge but in a very specific context—the trial of serious terrorist offences in a climate where there a real risk of paramilitary and community-based pressures on jurors and a history of terrorist threats against judges. There, it is a very valuable safeguard, but I do not believe that such considerations apply to CMPs in civil cases.
I reassure my noble friend who raised this matter earlier that although we have given them considerable consideration, we remain unpersuaded by the arguments for a separate disclosure judge. We believe that the approach we are proposing here will lead to fairness with the same judge involved in all aspects of the case. Therefore, I ask my noble friend to withdraw his amendment.
Lord Thomas of Gresford
My Lords, I am not surprised, but I am very disappointed by that answer. I hope that things can settle down over the Recess so that the matter can be reconsidered. It seems obvious to me that it would be in the interests of justice for there to be a separate disclosure judge as I have described.
On the point raised by the noble Lord, Lord Pannick, of course issues can arise in the course of the case where what did not appear to be relevant becomes relevant. That can be covered—and one way of doing it would be to give the special advocate a watching brief throughout the case. Particularly if the Attorney-General is paying his expenses, there is no reason why he should not continue in that role, to watch how the case develops and to see if applications need to be made.
It must be in the public interest that disclosure should come at the proper time, early on in the proceedings before a case is ready for trial. At that point, as I indicated to the noble Lord, Lord Pannick, serious decisions are made: is this case one where you make or accept an offer, settle or negotiate? In what way can you shorten the cost and expense of a trial? Certainly in my experience, one always attempts to do that because a settlement may produce a better result than a judgment in your favour if you negotiate hard and well.
I wish I could expand a little further on this, but I am afraid I cannot. I ask leave to withdraw the amendment but hope that we will have further discussions on the matter and come back to it on Report.