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.
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.
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 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 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.