Justice and Security Bill [HL]
(12 years, 4 months ago)
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Lord Hodgson of Astley Abbotts
My Lords, Amendment 69, which is also in the name of the noble Lord, Lord Dubs, is one of a group of three, and our names are also attached to Amendment 69ZB. I will pass the baton to him—appropriately in this Olympic week—for the second amendment in a minute.
The group of amendments is concerned with Clause 10, the general provision about Section 6 proceedings, and subsection (2), which is about rules of court relating to Section 6 proceedings. Paragraph (b) says:
“enabling or requiring the proceedings to be determined without a hearing”.
My amendment seeks to leave out those words.
When my noble and learned friend winds up this debate, he may say that this is just a case of avoiding expense where no hearing is needed. If so, I understand the purpose, but I do not entirely support it or agree with it. Carried to an extreme, this would deprive the special advocate and/or the claimant of any opportunity to engage to any extent in this part of the procedure. We are talking here about closed material proceedings—secret hearings—about which there may be public concern.
I hope that my noble and learned friend will be able to explain why the interests of transparency and open justice do not command the idea that some hearing, however formal, formulaic or brief, would be appropriate. In particular, I hope that he will explain why the word “require” should appear here; I understand why “enable” should be included, but requiring proceedings to be determined without a hearing seems a step too far. I beg to move.
Lord Dubs
My Lords, I shall speak to Amendment 69ZB, but before that I comment that in previous Committee sittings on the Bill, the Government have had hundreds of thousands of pounds-worth of free legal advice—some of it contradictory, but advice has been there. They are not going to get any from me because, like the noble Lord, Lord Hodgson, I am not a lawyer, so I tread tentatively along this path.
Amendment 69ZB is somewhat more complicated than the amendment by the noble Lord, Lord Hodgson, to which my name is also attached. I understand that it is a well preserved tradition that in common law there are rules against the admission of hearsay evidence, inexpert opinion evidence and other unreliable forms of. However, I also understand that in recent years there has been a move away from those rules, because it is now easier for evidence to be challenged and the trial judge can, with the benefit of that challenge, assess how much weight to give to the evidence.
The difficulty is that, in a CMP regime, the judge cannot assess the reliability of unchallenged evidence; he is disabled from doing that. The public and the excluded party need to be reassured that the state will be permitted only to allow private evidence to deprive the citizen of a verdict if that evidence is deemed reliable by objective standards. That is my first point.
Secondly, there is a duty of frankness on the Secretary of State. The provisions in proposed new subsections (6)(b) and (f) do no more than ensure that an excluded citizen will get the same protection as is usually afforded to an absent party in the High Court—one might refer to ex parte proceedings, and so on. It would be unreasonable for the Secretary of State not to make such full and frank disclosure to the court when he is obtaining the huge advantage of a CMP.
The material must be relevant to the following matters: any issue in the case; the question of whether any evidence is admissible; and, in the case of hearsay statement, whether it was obtained by torture and whether it was accurately recorded. Next, there is the reliability of the evidence: whether the source was subjected to threats or bribes to induce him or her to give information. Then, as regards witnesses, there is the existence of lines of inquiry or names of witnesses. Given the disadvantage faced by the special advocate in challenging the state’s case, the state should give any special advocate the leads it has. That echoes the traditional common-law rule—I think it is known as the old Peruvian Guano case—which obliges the party to disclose lines of inquiry in any civil litigation. Finally, there is any evidence relevant to whether the CMP is necessary at all. The need for that disclosure is self-explanatory.
Proposed new subsection (6)(b) prohibits the Secretary of State from redacting parts of documents disclosed to the special advocate. After all, special advocates are already security cleared. There can be no justification based on security risk or privacy to suppress parts of otherwise relevant documents from those within the security ring or circle. If part of the document is relevant, the entire document should surely be seen so that everything can be read in its context. Quotations out of context may not be meaningful.
Then there is the question of banning evidence obtained by torture or cruelty. Evidence should not be admitted unless the court is convinced that it was not procured by torture or other cruel treatment. There is a danger that statements from persons in detention abroad may have been obtained in this way. Given that there is already a ban laid down by the Supreme Court on using statements obtained by torture, and that only the Government would have access to information about how statements were obtained, surely it is only fair that the burden of proof should rest upon the Government to show how such statements were obtained when they seek to use them in evidence. The excluded party would have no ability to make such inquiries.
Lord Thomas of Gresford
My Lords, I shall speak to Amendment 69ZC in my name and those of my noble friend Lord Marks of Henley-on-Thames and the noble Lord, Lord Pannick. This Bill says nothing about the trial judge’s approach to the material that has been disclosed to him once the Section 6 proceedings have been completed. The word “material” is used throughout Sections 6 and 7, and Section 6(3) implies that the judge should consider intercept material: that is, material that would not be admissible in open proceedings under Section 17(1) of the Regulation of Investigatory Powers Act 2000. I remind your Lordships very briefly of what it says:
“(1) Subject to section 18, no evidence shall be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of or in connection with any legal proceedings [or Inquiries Act proceedings] which (in any manner)—
(a) discloses, in circumstances from which its origin in anything falling within subsection (2) may be inferred, any of the contents of an intercepted communication or any related communications data”.
Perhaps your Lordships will be only too aware of the campaign that the noble and learned Lord, Lord Lloyd of Berwick, has carried out, with my support, for intercepted material to be allowed as evidence in court, but that has never been a position that the Government would take.
The word “material”, which appears in Sections 6 and 7, is not evidence upon which the court may act. The amendments that have just been outlined by the noble Lords, Lord Hodgson of Astley Abbotts and Lord Dubs, spell out examples of such excluded evidence: evidence obtained by torture, inexpert opinion, or hearsay that cannot be admitted in the usual way by a notice to the other party. However, the amendment from the noble Lord, Lord Hodgson of Astley Abbotts, does not include the product of intercept.
It would be quite unacceptable for the trial judge to take into consideration, in determining the issues between the parties, anything that not only is never disclosed to the claimant but that would not be admissible in evidence if it were disclosed. The claimant would be doubly prejudiced: there would be evidence given against him in secret that was not admissible, if the judge were to take it into account.
The whole purpose of the civil rules of procedure is to ensure that the cards are on the table. Pleadings are followed by disclosure, and it is at that stage in particular that the parties take important decisions about preparations for trial, the nature and extent of the evidence they wish to call, including witnesses or documents and acceptance of offers, settlement of the case, payments into court and so on. That is why we have the system that we do: so that the cards are on the table before we ever get anywhere near a trial. In this Bill, the Government seem to want to deal from the bottom of the pack and, just for the purpose of saving the cost of settlement in a particular case, disregard the violation of centuries of open and accountable justice. Is it the unstated purpose of this Bill to reveal intercept and similar other inadmissible material to the trial judge in the hope that it will produce a judgment that is favourable to the Government? I hope that that is not the purpose of the Bill, but the way it is progressing leads me to believe that it might be.
My amendment has the merit of setting out in the Bill the parameters which the judge at trial will follow after he has concluded these Section 6 proceedings. He will exclude from his consideration anything that would be inadmissible if disclosed to him as material in closed proceedings. He will dismiss that when he comes to consider the issues in open proceedings.
Lord Pannick
My Lords, I support what has been said by the noble Lord, Lord Thomas of Gresford. I added my name to Amendment 69ZC because I was concerned to hear the noble and learned Lord the Advocate-General for Scotland say last Tuesday night, at col. 220, that the Bill would allow the judge to look at intercept evidence in closed proceedings. I had not previously understood that this was the purpose and effect of paragraph 9 of Schedule 2, and that is my fault. However, as a matter of principle it is surely one thing for the Bill to allow the judge in a secret procedure to look at material that is admissible in court but which the state is unwilling to have looked at in open court because of its sensitivity. One understands the purpose of those provisions. It is quite another thing for the state to be allowed to rely in the closed hearing on material that is, in any event, inadmissible in open court.
I had understood the Government’s defence of the closed material procedure to be that the state should not be in a worse position because the evidence on which it wishes to rely cannot be adduced in open court. To allow the state to rely on intercept evidence in the closed procedure—evidence that is inadmissible in open court—would put the state in a better position in a closed material procedure than in an open proceeding, and that cannot be right. Nor can it be a defence of such an arrangement for the Minister to argue, as he did briefly last Tuesday night when we touched on this important issue, that this is what happens in other closed material proceedings. I do not recall the House giving any consideration to this important issue on those occasions. We are now being asked to expand the scope of closed material proceedings very substantially, and I hope that we can now address the issue of principle.
Lord Marks of Henley-on-Thames
My Lords, I have been one of those persuaded by the Government of the need for Part 2 of this Bill: that there may indeed be cases in which the injustice of being unable to achieve a determination of the issues in the case outweighs the injustice inherent in having the case tried in part by closed material procedure.
In being so persuaded, however, I have been one of those who have been extremely reluctant to see such a departure from the principles that normally guide us in civil proceedings. That persuasion has been on the basis that closed material proceedings would be a last resort only and that the decision to hold such proceedings would be taken only on the basis that national security required certain material to be withheld from the public at large and from the excluded party or parties, despite the serious unfairness inherent in that procedure.
However, it would be fundamental that, except for the departures from ordinary procedural law inherent in the withholding of security-sensitive information, the proceedings before the judge would otherwise be ordinary civil proceedings. Moreover, the material before the judge, which he could consider in coming to his conclusion, would be evidence that he or she would ordinarily be able to hear and take into account in ordinary civil proceedings.
If that were not to be the case, and material that would be inadmissible in an ordinary case were to become admissible because the proceedings were held as a CMP, that would set them apart from the ordinary procedural law of the land and create an entirely new security court of a type that many in this House would find both alien and sinister. Furthermore, it would undermine the whole concept of the use of a CMP being a last resort, because the very fact of the CMP would give a party seeking to introduce evidence that would otherwise be inadmissible a litigation advantage. That would make the CMP procedure desirable in itself, irrespective of any considerations of national security. The CMP would then become a parallel and less fair procedure than ordinary civil proceedings in a way quite unintended by those of us who see the need for the Bill.
For those reasons, I support this simple amendment, which makes absolutely clear the position of the admissibility of material considered by the judge. I hope that the Minister will accept the amendment and reassure us on this important point in closing.
Lord Goldsmith
I start by apologising to the Committee that I have been unable to take part in the debate on the part of the Bill that I wanted to take part in—this part—due to other commitments. It would have given me the opportunity to say more than I will say now about how concerned I am about the departures from traditional ways of resolving disputes, which other noble Lords have referred to. All the amendments that have been moved deserve careful consideration by the Government, and I will underline why that should be so.
First, as soon as one moves to a different procedure for determining civil disputes, it is important that one makes sure that the safeguards for litigants are available. Whereas in ordinary civil litigation one may simply be able to reply on the general approach of the court to make sure that those safeguards are there, in this novel and as yet uncharted territory one does not know. That is why it seems right that the Government should carefully consider, as noble Lords’ amendments propose, the detailed procedural safeguards that should take place. That is all the more so—this is my second reason —because this is a one-sided procedure. In circumstances in which the Government determine that they wish to go down closed material procedures, these considerations apply all the more because the risk is that the Government see the advantage to them of this procedure rather than to the litigant.
Looking at the way in which the Bill would operate, I also think about how some of us might have to explain this procedure to colleagues in other countries. They will ask, “Is it true that England, a country that we thought had such strong safeguards for liberty, can now have procedures in which evidence is relied on by the state against an individual without that individual seeing it?”. I have spent a lot of time overseas and I will find that difficult to justify. I will find it all the more difficult to justify if—and this is why I support the amendment moved first by the noble Lord, Lord Hodgson of Astley Abbotts—I had to say, “And what is more, it is true that the judge made the decision for that procedure to apply without there even being a hearing as to whether it should”. I would find that very difficult indeed to justify.
Lord Lester of Herne Hill
My Lords, I am probably surplus to requirements, but I agree with each of the last four speeches and want to add a couple of obvious points. As the noble and learned Lord, Lord Goldsmith, emphasised—and I think he is the first to do so—what we are doing in Parliament now will be closely watched not only in the United States but throughout the common-law world. If the Bill goes through in its present form, I have no doubt that it will be cited as a model to be followed elsewhere, and there will be great pressure from across the Atlantic for this to happen. Therefore, we are the only safeguard to ensure that the legislation that is enacted complies with the principles of open justice, natural justice and equality of arms.
I know that the particular difficulty about intercept evidence—and I strongly support those who want to use it—is that the moment it comes to be seen by a claimant, very sensitive questions will be asked about sources and so on, and that would have to be handled with great care. However, my understanding is that in the United States intercept evidence is used, with proper safeguards. Is anything in this part of the Bill echoed in the United States in respect of intercept evidence? My understanding is that it is not, and that therefore these provisions, to which four Members of the House have objected, would not apply to equivalent United States legislation. If that is true, it is an even further argument in favour of these amendments.
Lord Woolf
My Lords, the submissions put before noble Lords by various Members of the House in favour of these amendments, given their source, require the very greatest attention. I make no cavil at all about the spirit in which they are put forward, but I suggest that the House needs to look at the amendments with regard to how judges operate in practice. The situations in which there are closed proceedings are very limited indeed. Here we are dealing with the use of closed material in civil proceedings, where it is even rarer for there to be the sort of closed proceedings that have been necessary in trials by jury in the criminal courts. A small minority of cases in civil proceedings are tried by a judge alone. Indeed, if there were a need for closed hearings, it would not be practical for what is envisaged here to be used in those very few cases where a jury might care because there is then a purpose in the closed proceedings. The jury could not be told of the evidence that would be the subject matter of the closed proceedings and therefore there could not be any purpose in the judge making a ruling that certain evidence should be heard in closed proceedings.
Having indicated, I hope, the context that we must look at, I find it extraordinary that it should be thought necessary for a judge, in this unusual situation when there is to be a closed hearing, to be told what he has to do to safeguard as far as possible the party which does not have access to the material. Any judge hearing these matters is going to find throughout the hearing that that is his primary responsibility. I would suggest that perhaps it is dangerous to be too specific in what he can do and what he must do because the whole of civil procedure has evolved so that a judge is put in charge of a case and he manages it in accordance with the overriding principle that is being relied on by those who wish to amend this legislation so as to achieve justice and fairness as far as possible. While I am very much in sympathy with all noble Lords who have supported these amendments, I question whether we are necessarily being constructive with regard to this issue.
What we have given as the justification for the closed procedure is that it will actually assist in achieving justice. In considering what justice is required, one must not look at the matter entirely from the point of view of one party alone. If the Government are the defendant in the proceedings, they have important responsibilities to put before the court to ensure that the rights of the citizen to be protected are not damaged inadvertently by what is proposed. We must remember that, in this very special area of national security other states are very sensitive that their material, which they regard as important for their purposes, should not come in to the public domain. It is in that situation that these procedures, as I understand them, are being proposed. As I have suggested, the judge would apply the ordinary principles with regard to weighing the material that he would apply in other proceedings, and also with regard to its admissibility. I look forward to hearing how the Advocate-General deals with the point that is now being taken with regard to the intercept evidence. That evidence is not normally admissible in proceedings, and it is not evidence that a judge can look at. I suggest that, if he were to hear it inadvertently, he would not be entitled to rely on it unless there was some reason that made it admissible.
Therefore, I hope that the Advocate-General will in due course explain why the normal rules, which I suggest must apply in so far as possible here, are not applicable also in the special circumstances of closed hearings.
Lord Mackay of Clashfern
My Lords, I think that this may be an opportunity for the Home Office, in particular, to reconsider the advice apparently previously to it by the holder of the office of Attorney-General. With this possibility, there may be a way of introducing more flexibility into the general role with regard to intercept evidence than seems to exist at present.
Baroness Manningham-Buller
My Lords, I should like to comment on paragraph (e) in Amendment 69ZB tabled by the noble Lords, Lord Hodgson of Astley Abbotts and Lord Dubs. I can assure the Committee from my past experience in the Security Service that if this paragraph were to appear in the legislation, it would have a chilling effect on sources and on their willingness to provide information. I predict that many existing sources would refuse to continue in their role and new ones would resist recruitment.
Sources provide a range of information—some of it to be discounted and some of it valid but all to be assessed, which is something that the judge will seek to do. Some of that intelligence from human sources has prevented major atrocities and loss of life. However, when individuals agree to provide that information in confidence, they seek reassurance that their lives will be protected, and anonymity is key to that. If they were identified, I am afraid that not only would they need to be resettled but very few more would be willing to work for the Government.
Lord Beecham
My Lords, my noble friend Lord Dubs referred to the quantity and indeed the quality of legal advice which has been proffered to the Government and to the noble and learned Lord in particular by several Members of your Lordships’ House. I would not presume to offer legal advice but, if I did, my charging rate would be considerably less than that which noble and learned Lords would, quite rightly, be able to charge. Nevertheless, I support the thrust of the amendments that we are now discussing. I take the point made by the noble Baroness in respect of paragraph (e) in Amendment 69ZB, and I think she has a significant point in that respect. However, the overriding concern is not to depart far, if at all, from the basic provisions of our system in guaranteeing a fair trial of the issues in civil, as well as criminal, matters and in the question of equality of arms.
The noble and learned Lord, Lord Woolf, referred to the perhaps superfluous character of amendments which seek to empower judges to do what they can in any case do. I do not read the amendments quite in that way, particularly Amendment 69ZB, much of which imposes a duty on the Secretary of State, in particular in relation to the disclosure of information to the special advocate for the purpose of the hearing. That seems to me a compelling argument. I do not necessarily subscribe to every one of the points made in that amendment but I think that, taken as a whole, they are matters which the Government should consider very carefully, and I entirely endorse the views of my noble and learned friend Lord Goldsmith in that regard.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I am grateful to my noble friend for bringing forward this amendment and to other noble friends and noble Lords who have spoken to amendments in this group, which concern how Clause 6(1) proceedings and closed material procedures will operate in practice. The noble and learned Lord, Lord Goldsmith, was right to expect that the Government will take these issues seriously. In embarking upon these kinds of procedures, I assure not just the noble and learned Lord but the whole Committee—as I have sought to do during our deliberations—that these are matters on which the Government have given considerable care to putting the proper balances and provisions in place. Indeed, that goes without saying to the amendments that have been proposed in this group, although I reiterate the point, which I think I made earlier in Committee, that it is the intention that this should apply to a very small number of cases; nevertheless, it is important that the provisions are well considered and thought through.
I say to the noble Lord, Lord Dubs, and indeed to others who in earlier debates have almost apologised for not being a lawyer, that my fellow lawyers who are present will know that the questions that come from people who are not lawyers are sometimes the ones that are the most penetrating and that you have to be on your toes for. Those who are non-lawyers should not shy away from a very full and active participation in these deliberations. Very often, they raise the issues that put us on our mettle.
Taking Amendment 69 first, the provision that the amendment would remove allows rules of court to enable or require the court to determine proceedings without the need for a hearing. I hope that I can provide reassurance that there is no sinister intent behind this provision. The intention of the Bill is that civil proceedings in which closed material proceedings are required will continue as regular civil proceedings as best they can, save only for the sensitive material elements that will be considered in closed session. It is emphatically not the intention that the whole proceedings should pass through the gateway to being closed proceedings in their entirety.
However, it is important that the Bill does not interfere in any way with the court’s ability to exercise its normal case management powers; for example, where decisions can be made on the papers without a hearing, particularly if the parties have agreed such a course. This is well precedented in other closed material proceeding contexts, most recently paragraph 2(2)(b) of Schedule 4 to the Terrorism Prevention and Investigation Measures Act 2011. The rules made under that paragraph provide for certain matters to require a hearing, with exceptions where a hearing is not required, such as with the agreement of the parties or where the matter has already been determined. It is that kind of situation that is anticipated by the provision in the Bill.
Amendment 69ZB would insert, rather than remove, some specific requirements for rules of court to contain certain provisions concerning the burden and standard of proof and the reliability and admissibility of evidence under a closed material proceeding. The Committee will have heard the noble and learned Lord, Lord Woolf, indicate that these are issues where, particularly when dealing with situations such as this where the judiciary takes a very close interest in trying to ensure fairness, there can sometimes be dangers in being too specific. Again, I emphasise the point that the intention is for the proceedings to continue as regular civil proceedings as far as possible. The very purpose of closed material proceedings is to ensure that all relevant material can be fully considered by the court in coming to a judgment without damaging national security interests. It follows that the disclosure of sensitive material to the court and special advocate will be full and open, precisely because it is not being made more widely.
I will look at each of the various elements of this amendment in turn. The amendment seeks to introduce a new subsection (6) to Clause 10, paragraph (a) of which relates to the burden and standard of proof. I assure the noble Lord, Lord Dubs, that evidence adduced here will be subject to challenge by special advocates. On more than one occasion in Committee, reference has been made to comments from judges, particularly Court of Appeal judges, who have looked at the body of evidence and transcripts and have commented on the rigour with which special advocates undertake this responsibility. As drafted, the change in the burden of the standard of proof would apply to any proceedings in which a declaration under Clause 6(1) had been made. It would impose a burden of proving any fact on a party that holds the sensitive material, and requires facts to be proven to a high degree of conviction.
Therefore, in damages claims against the Government, if the Government hold material that cannot be disclosed in open court for reasons of national security, this amendment would require them to disprove the claims made against them to a high degree of conviction. I accept that the phrase “high degree of conviction” is a novel term, but it is presumably intended to import something more like the criminal standard of proof into these civil proceedings. This would place too high a burden on the Government. There would be no requirement on the claimant to prove their claims, only on the Government to disprove them, so not only would the standard of proof be raised but the burden would be reversed. Similarly, where another party in proceedings held the sensitive material, they would be placed at a significant disadvantage. This change in the burden and standard of proof is especially hard to justify when it is remembered that there may well be cases where the closed aspects of the proceedings may be only a very small part of the overall proceedings.
Proposed new paragraph (b) would require the Secretary of State to make full disclosure of sensitive material to the court and special advocate, along with the information on the reliability of that evidence and the existence of witnesses. There is already sufficient provision for this in the Bill. Clause 9 requires rules to be made to ensure that normal disclosure rules still apply to closed material proceedings, subject to Clauses 7, 8 and 10. Nothing in these clauses affects the normal rules of disclosure where, in relation to judicial review, for example, a duty of candour is required of the parties.
Therefore, the Secretary of State will in any case be required to put all information before the court, including, in closed proceedings, all information even if that may be viewed as damaging to national security. We believe, therefore, that this amendment is unnecessary. With regard to proposed new paragraph (b)(ii)—the part of the amendment that would require disclosure of the reliability of evidence—it is the case that, in practice, assessments of the accuracy and reliability of the evidence on which the Government are relying are provided to the court and can be used to test the evidence. We believe, therefore, that this part of the amendment is also unnecessary.
Proposed new paragraph (c) deals with the exclusion of evidence obtained by torture. Courts at both domestic and international level have established that the use of evidence obtained by torture is not permitted in legal proceedings. This principle of international law, contained in Article 15 of the United Nations Convention Against Torture, is one that the Government resolutely support, and it would apply in closed material proceedings as it would in open proceedings. The special advocate would be able to challenge any evidence adduced by the Secretary of State in closed proceedings on the grounds that it was obtained by torture or inhuman or degrading treatment. It would be for the judge to decide, on the balance of probabilities and based on the arguments of both parties, whether this challenge was substantiated and, if so, whether the evidence can lawfully be admitted, and, if so, what weight can be placed upon it.
Following the Judicial Committee of your Lordships’ House in A and others v Secretary of State for the Home Department (No 2) in 2005, a court cannot admit evidence if it concludes, on a balance of probabilities, that it was obtained by torture. There is, therefore, existing protection against the use of torture evidence. To increase the evidential threshold in the way that this amendment purports to do would be to allow a special advocate to introduce a new standard of proof to proceedings, simply by raising the question of torture. The House of Lords has previously held that the current standard is the proper one and is in accordance with our international obligations, not least the UN Convention Against Torture. We believe, therefore, that there is no need to change it.
Proposed new paragraph (d) would render inexpert opinion evidence inadmissible. Inexpert opinion evidence is allowed in regular civil proceedings in certain circumstances, such as where the opinion or belief of a witness is relevant to an issue or is a way of conveying facts personally perceived by him or her. Such evidence can be valuable and to exclude it completely in closed material proceedings could have a detrimental effect on the ability of courts to reach decisions in those cases. However, it is important to emphasise that in closed material proceedings it remains open to the judge to decide what evidence to accept, and what weight to place on that evidence. The special advocate will be able to cross-examine witnesses, expert or inexpert, in order to establish the veracity and reliability of their evidence. We believe that with this safeguard in place, and due to the potential importance of non-expert opinion evidence, the amendment should be rejected.
Proposed new paragraph (e) would restrict the use of hearsay evidence. We heard the comments of the noble Baroness, Lady Manningham-Buller, who feared that this particular part of the amendment could have a very chilling effect on people coming forward and engaging in work on behalf of the security services. It is important to reiterate that the Bill does not seek to change the general approach in relation to evidence, save to ensure that material that would damage national security if disclosed is only provided to the court and the special advocate. Again, the role of the special advocate here is to challenge the evidence, as a normal legal representative in regular civil proceedings would do. Hearsay evidence would be admissible under the Bill, as it is in other closed material procedures and in civil proceedings generally. The special advocate could challenge the evidence as to its credibility and the weight to be attached to it as robustly as any other advocate.
Proposed new paragraph (f) seeks to add a provision permitting the court to strike out a case where there is any failure to comply with the directions of the court. As a general proposition, that is part of the court’s general case management powers. More specifically, in the context of the closed material procedure, the Bill contains in Clause 7 a requirement that rules are made to give the court certain powers where a party refuses to disclose material but has not received the authorisation of the court not to disclose. These powers would include directing that a party make such concessions as the court specifies, which could include having to concede the case altogether.
I hope that this explanation gives some reassurance as to the nature of what the Bill sets out to achieve in procedural terms, and explains why the Government consider that the two amendments proposed—which I recognise have been moved and talked to with the objective of trying to ensure fairness—are not in fact necessary to address the concerns from which they derive.
Lord Thomas of Gresford
The amendment is not related to intercept evidence. Intercept evidence is part of it, but I am saying that the open civil proceedings should continue and that the judge should come to his conclusion on admissible evidence. Intercept is an illustration. Indeed, my amendment arises, as the noble and learned Lord will remember, from his unusually equivocal answer last Tuesday when I asked him the direct question.
Lord Wallace of Tankerness
I apologise if I was equivocal, but I thought that I had indicated that the issue revolves around the use of intercept evidence, as the noble Lord, Lord Pannick, mentioned when he quoted what I said. I rather thought that the quote he used was quite unequivocal, which caused the surprise.
My noble friend asked whether the purpose of the Bill was to make inadmissible material admissible to support the Government. It is worth indicating that the purpose behind the closed material provisions is to ensure that the court can consider as much relevant material as possible, be it helpful or unhelpful to the Government. The most obvious example is material that might otherwise be excluded by PII, but material that might otherwise be inadmissible because of RIPA provisions we seek to make admissible in these provisions.
The noble Lord, Lord Pannick, indicated that the Government had not considered intercept before in closed material proceedings. Section 18 of RIPA, as amended, has a long list of contexts, including any proceedings before SIAC. The most recent time when Parliament considered this matter was in paragraph 4(2) of Schedule 7 to the Terrorism Prevention and Investigation Measures Act 2011. Were the amendment to be incorporated into the Bill, a judge in a closed material proceeding could not consider relevant intercept material because the law prevents its disclosure in open hearings.
Paragraph 9 of Schedule 2 includes provision for an amendment to Section 18 of the Regulation of Investigatory Powers Act 2000 to allow for intercept material to be admitted in any Section 6 proceedings. It is our view that the amendment is necessary if intercept material is to be adduced or disclosed in the closed part of any proceedings where the court has declared that a closed material application may be made. If Section 18 is not amended, the current prohibition on disclosure in Section 17 of RIPA will prevent intercept material being adduced within such proceedings. Consequently, it would narrow the scope of material available in the case and could undermine the wider purpose of CMPs, which is to make available as much material, helpful or unhelpful to the Government, as possible.
I have highlighted that a judge can consider intercept material in reviewing an application for a CMP or in proceedings where a declaration has been made. It is right and proper that this is the case, but I accept, and it is evident from the debate, that it is a matter that attracts views on different sides. The noble and learned Lord, Lord Goldsmith, referred to some of the history of the use of intercept evidence.
Some surprise was expressed in the report of the Joint Committee on Human Rights in response to the Government’s Green Paper on justice and security. Paragraph 49 states:
“Since one of the driving forces behind the Green Paper is said to be the Government’s desire to ensure that, wherever possible, evidence is put before a court rather than excluded from its consideration, it does seem surprising that the admissibility of intercept as evidence is not included within the scope of the Green Paper”.
It goes on:
“We accept that the Green Paper is mainly concerned with civil proceedings, and the question of the admissibility of intercept as evidence has tended to focus on its use in criminal prosecutions. However, intercept is also relied on by the Government in a number of other contexts and we find it surprising that the Government is going to such trouble to make sure that evidence can go before a judge when material which sometimes forms a substantial part of the material relied on by the Government will still not be admissible under the proposals in the Green Paper. There is now a very long history of Reports, from this Committee and others, urging legislative reform to enable the admissibility of intercept. In our Report on the TPIMs Bill, we expressed concern about what appeared to be the significant decline in the number of successful prosecutions for terrorism offences over the last few years ... We reiterate our and our predecessor Committee’s recommendations that legislation to provide for the admissibility of intercept as evidence be brought forward as a matter of urgency”.
I accept that that goes wider than is specific to this Bill, but it indicated some surprise that, in the Green Paper at least, the Government had not flagged up the possible use of intercept, if indeed the intention is indeed to get as much relevant material before the court as possible. Therefore, the Government have made provision in the Bill for that to happen.
Lord Lester of Herne Hill
My Lords, I am very grateful to my noble and learned friend. I agreed to those paragraphs as part of the Joint Committee on Human Rights, and it is perfectly right to draw attention to them. That is why I support the use of intercept evidence in the context of this Bill. However, the noble and learned Lord, Lord Woolf, placed justifiable reliance on the fairness of judges and the overriding interest in the interests of justice in interpreting the Bill. Would my noble and learned friend accept that when we come at least to Report, we need to consider the safeguards?
This Bill restricts judicial discretion in certain ways. It does not leave it at large. It does not leave the overriding interest in natural justice, or the pursuit of justice, as a free-standing consideration that trumps everything. Therefore, will my noble and learned friend consider with an open mind—I am sure he will—questions such as AF disclosure to special advocates as one of the safeguards to try to do the best we can to secure equality of arms in this context?
Lord Wallace of Tankerness
My Lords, that perhaps goes wider than the specific issue of intercept evidence. However, I have of course indicated on a number of occasions a willingness to engage.
For completeness, my noble friend asked about the United States procedures. While they are similar in many respects, it is important to remind ourselves that the legal frameworks between the United States and the United Kingdom also differ. There are significant operational differences, so comparisons are of limited value, but it is certainly an issue on which I am willing to engage with my noble friend.
It is clear that there are different views on this and, in his memorandum to the Joint Committee on Human Rights, Mr David Anderson QC, the independent reviewer of terrorism legislation, said:
“The major benefit of existing CMPs are that they allow the court or tribunal to decide the issues before them on the basis of all the evidence—including the intercept evidence that is otherwise not admissible in legal proceedings. If a CMP is to be introduced into civil proceedings, it should be on condition that section 18(1) of RIPA be amended so as to add civil litigation CMPs to the list of proceedings in which intercept evidence can be admitted”.
On the point made by my noble friend Lord Marks, I think there is a perception that this will always be in the interests of the Government. I accept the decision of Mr Justice Ouseley in the case of AHK, which I think related to naturalisation and so would come out separately under Clause 12 but under a judicial review. The Secretary of State might well, in a judicial review, come to a particular decision because she had access to material from intercept. If that evidence is not to be made available, and is to be withheld from the court that is considering a Secretary of State decision that is being judicially reviewed, justice might well not be done to the claimant.
The point is that other statutory CMPs can hear RIPA material—intercept evidence. Therefore, the exception to the rule would be if we did not allow this RIPA material to be held in civil proceedings, which could be to the detriment of claimants bringing cases against the Government. It is very clear that this is an issue that we will wish to consider.
On the point made by my noble and learned friend Lord Mackay of Clashfern, I accept that there are important differences between criminal procedure and civil procedure. I am advised, too, by my noble friend Lord Henley that your Lordships will have another opportunity to explore this issue when he answers an Oral Question from the noble and learned Lord, Lord Lloyd, tomorrow on the wider issues relating to intercept evidence.
There are evidential differences between criminal and civil proceedings, so the fact that intercept evidence may be used in closed material proceedings of a civil nature does not read across to criminal cases where the disclosure obligations on the prosecution to the defence are much stronger than the corresponding disclosure obligations in civil proceedings.
I have sought to address the specific points of procedure that were mentioned by my noble friend Lord Hodgson and the noble Lord, Lord Dubs, as well as to deal with the issue of intercept evidence. I hope that, having heard these arguments, the noble Lord will withdraw his amendment.
Lord Thomas of Gresford
Perhaps I may repeat that I do not, in my amendment, refer only to intercept evidence. It deals with what is admissible evidence in civil proceedings. At the end of that, I am still left in some doubt. I started with the position that the noble and learned Lord, Lord Woolf, enunciated that a judge would be able to do what was justice in a particular case and would not require direction. But it struck me when we discussed the matter last Tuesday that this was a means of putting before the judge—the decider of the facts—material that he would never otherwise see if the proceedings were open. It is fundamentally unfair that that should be so.
Is that the position of the Government? Do they really want the judge to decide not whether closed proceedings should be held, which is what Section 6 is about, but in the trial of the issue—the determination of who wins the case—whether to use material, of which intercept evidence is one example, that if there were no such proceedings would never play a part in the trial? Is that the position?
Lord Wallace of Tankerness
My Lords, there is a danger of going over some of the ground that we went over at an earlier stage. There are two stages to what we are proposing. There is what we have commonly come to describe as the gateway stage and there is the subsequent stage where individual pieces of evidence are argued over and special advocates make representations on those individual pieces of evidence. If the impression has been given that somehow intercept evidence is in a category of its own and will not be allowed to be challenged by the special advocates, then that is a wrong impression. Like other pieces of evidence, it will be subject to robust argument and debate overseen by a judge who, as the noble and learned Lord, Lord Woolf, said, is there to ensure that there is fairness. It is not a question that somehow such evidence is in a special category and in a box not to be challenged and not to be talked about.
Lord Hodgson of Astley Abbotts
My Lords, I am extremely grateful to my noble and learned friend for the very full response he has given to the debate. Obviously, there is a lot of information for us to absorb and think about during the Recess before we get to the next stage of the Bill.
When a couple of non-lawyers such as the noble Lord, Lord Dubs, and I propose an amendment and we are followed by a past Lord Chancellor, a past Attorney-General, a past Lord Chief Justice and a past head of the security services, we need to be pretty careful about what we are doing and sit up and listen. The purpose of the amendments was to improve the balance and the fairness. They were probing amendments at this stage and intended to shine a light of transparency wherever and as far as we could.
The noble and learned Lord, Lord Woolf, argued about proportionality. He said that this would apply in only a limited number of cases in civil proceedings and that the issue of judicial discretion could carry the day. However, in previous debates I have said how in a very few cases that could involve the minority community and in particular the Muslim community, which could have a disproportionate impact on the way that our society operates and the way that justice is seen to be operating. I have referred to my own visits to schools and so on as part of the Lord Speaker’s outreach programme, where one sees how extremely sensitive these communities are about the way our judicial system works. Therefore, I am concerned about that. I am also concerned about what the noble Lord, Lord Beecham, said about mission creep. His Amendment 69A concerns another area of danger in Clause 11—where the mission could be expanded quite a lot on the basis of regulation—which we all need to explore.
The noble Baroness, Lady Manningham-Buller, feels that I have got it in for the security services. I have not got it in for the security services at all—
Baroness Manningham-Buller
I assure the noble Lord that I have no such thoughts.
Lord Hodgson of Astley Abbotts
I am merely testing the case and, as I have said before, I quite understand the anonymity of sources and the danger of publicity to them. However, perhaps I may just say that the amendments that the noble Lord, Lord Dubs, and I have tabled today refer to the role of the special advocate, who is security cleared. Therefore, we should be able to rely on that.
With regard to Amendment 69, my noble and learned friend said that this was an issue of case management where the parties have agreed and that it was business as usual. Unfortunately, this is where the ice cracks under my feet because I have no idea whether that is a good argument. I see nothing about parties having agreed in the Bill at present. However, I am sure that we will have a chance to consider this further. I will certainly need further advice before going any further on the point. Therefore, at this stage, I beg leave to withdraw the amendment.
Baroness Berridge
“( ) Rules of court relating to section 6 proceedings must make provision—
(a) requiring the court concerned to notify relevant representatives of the media of proceedings in which an application for a declaration under section 6 has been made,(b) providing for any person notified under paragraph (a) to be permitted to intervene in the proceedings,(c) providing for a stay or sist of relevant civil proceedings to enable anyone notified under paragraph (a) to consider whether to intervene in the proceedings,(d) enabling any party to the proceedings or any intervener to apply to the court concerned for a determination of whether there continues to be justification for not giving full particulars of the reasons for decisions in the proceedings, and(e) requiring the court concerned, on an application under paragraph (d), to publish such of the reasons for decision as the court determines can no longer be justifiably withheld.”
Baroness Berridge
My Lords, this amendment to Clause 10 relates to two matters: open justice in paragraphs (a) to (c) and the nature of secret judgments in paragraphs (d) to (e). The amendment also bears the names of the noble Lord, Lord Pannick, and my noble friend Lord Lester. I will deal with each of these matters in turn.
Paragraphs (a) to (c) simply provide that the press would be notified of a Clause 6 application for a declaration that the proceedings may require closed material proceedings. Paragraph (b) enables the press to intervene and, if they wish to do so, they might need the services of a special advocate. A subscription-based e-mail alert system would be a simple, cheap and effective method of notification.
In the seminal case of Scott v Scott, Lord Shaw said that open justice is a sacred part of our constitution and our administration of justice. One of the main criticisms by the Joint Committee on Human Rights on the Green Paper was that it lacked any consideration that the interests of the public are served by the press having access to proceedings. In fact, the Joint Committee referred to open justice as the “missing issue” in the Green Paper.
This amendment is somewhat analogous to existing situations in our judicial process, such as where there is a media injunction. Of course, the media can make representations for it to be lifted. It is also analogous to the situation where certain newspapers intervened in the Al Rawi litigation. They were represented by my noble friend Lord Lester to argue the impact that closed proceedings would have on their access to information.
I am very grateful that various media representatives and lawyers gave evidence to the Joint Committee. Mr Cobain from the Guardian maintained that certain material substantiated allegations that the British Government had been closely involved in rendition that the disclosure process in court proceedings brought into the public domain for the first time. He said that he had previously been told by the Government that such allegations were conspiracy theories and that, without the disclosure process, documents, such as a telegram from the Foreign Secretary to various UK missions around the world explaining that no objection would be made to the transfer of British nationals to Guantanamo Bay, would not have been seen. He maintained that, under this closed material regime, the press would not have access to that evidence. Accordingly, the press, and therefore the public, would be arguably less able to scrutinise government actions or to know whether the press allegations by the press are indeed mere conspiracy theories.
During the consideration of these issues over many months now, it has been brought home to me that the public need to know the judge’s reasons—and, obviously, giving an open judgment is one of the main ways in which our judges are held accountable as it enables them to be scrutinised or even appealed. The disclosure and discovery procedures of a court case can also be a vital tool to convert a mere allegation or theory into established fact. Often those processes are the only way in which that information is made public. This amendment would enable the media to make representations—I emphasise on behalf of the public interest, not their own—to see this material and have an open trial.
Paragraphs (d) and (e) of the amendment are, I confess, probing in nature. They seek further details of the Government’s view on the recommendation made by the Joint Committee on Human Rights to deal with important questions raised in relation to closed judgments in a legal system that relies so heavily on precedent. One of my abiding memories from university is that of going into the law library for the first time and seeing all those bound volumes stacked from floor to ceiling. That shine wears off when one is trying to understand the complexity of some of the judgments. I am grateful to know that by the end of the summer the Government will have compiled a systematic database of the headnotes of the existing judgments in closed material procedures. It was troubling to the Joint Committee to hear from special advocates that they did not have access to secret judgments and that it could be merely by chance that they would find out about a case that might be relevant to the one they were involved in. Can my noble and learned friend Lord Wallace say why the database is not to cover the whole case being compiled, or was I the only lawyer who was occasionally led astray by an inaccurate headnote? That would also answer what I believe is an outstanding question: where physically are these judgments held?
Paragraphs (d) and (e) would introduce a mechanism for a party to apply for a secret judgment to become an open judgment and goes beyond the mere review of a judgment that was dealt with in subsection (g) of the new clause proposed in Amendment 67C in Committee on 17 July. I am grateful to my noble and learned friend Lord Wallace for saying that he understood the issue and would revisit the point about secret judgments when,
“the national security considerations have in some respects flown off”.—[Official Report, 17/7/12; col. 209.]
However, it is not only when secrecy has disappeared that there can be a need to open up these judgments either for review or possibly for appeal. There have been a number of instances where the evidence of a witness in a case, often an expert but sometimes a police officer, has been so discredited in its methodology or by the witness’s veracity, that other cases where that witness’s evidence has been relied on need to be looked at. Although it is a rare situation, unfortunately one has only to think of the conduct last week of Chief Inspector Anthony Tagg, who was found by the judge to have lied under oath in the trial relating to the deaths of three men during the riots last summer in Birmingham. It is an example of where other cases in which he has given evidence may have to be looked at. It can only support confidence in our justice system if, as the amendment outlines, a party is allowed in these circumstances to request the court to look at the secret part of a judgment. I hope that the Government will support both aspects of the amendment as I believe that it puts the missing element of open justice firmly back into the Bill. I beg to move.
Lord Pannick
My Lords, I have added my name to this amendment and I support what the noble Baroness, Lady Berridge, has said. It is often the case, when courts consider whether to go into closed proceedings in other contexts, such as in family law cases or in those that concern confidential personal information, that the persons who object are representatives of the media. The litigant who is adversely affected may be playing only a very limited role in the proceedings or they may have reasons of their own for not objecting to the closed hearing. It will often assist the court in deciding whether to go into a closed procedure if it hears from representatives of the media as to the disadvantages of doing so and the relevant law in respect of the matter. But the media can make those representations only if they are notified of the possibility of the court moving into a closed session.
As the noble Baroness, Lady Berridge, has said, the amendment addresses a second topic, one that this Committee addressed briefly last Tuesday night, and that is the vital need to ensure that there is the possibility of a periodic review of whether a judgment needs to remain confidential. The concern is that there will be, as there already is in relation to control order decisions and TPIM cases, a body of case law, the contents of which is known only to a very few people. The case law is known to officials, to counsel who have represented the Home Office, to counsel who have acted as special advocates and to some judges. However those counsel and those judges may be aware only of the decisions in the cases in which they have played a part, yet this case law may contain information which is very important to the determination of later cases.
This is a very real problem for a common law system in that some of the case law is secret. I understand that it has been suggested—only partly in jest—that a set of secret law reports should be published, a subscription to which could only be bought by those with security clearance. It may be necessary—this is what we are debating in relation to Part 2—for Parliament to depart from basic principles of fairness and openness, but it is then vital for us to build express procedural safeguards into this Bill, safeguards that do not undermine the maintenance of secrecy.
The noble and learned Lord, Lord Woolf, just expressed the view that it is unnecessary for Parliament to tell the judges how to protect fairness. He is right. All the judges in this area have been and continue to be concerned about maintaining fairness in the procedures in control order cases and in TPIM cases. Nevertheless, I consider it is very important that Parliament should do all that it can to set out clearly, for the avoidance of doubt, the existence of vital safeguards in this area, both to give confidence to the individuals concerned and to ensure that we avoid so far as possible the inevitable expensive and protracted litigation. Two of these vital protections are set out in this amendment—that the press should have notification of a proposal to go into closed procedure and that there must be an opportunity periodically to review whether to maintain the secrecy of a closed judgment after a period of time.
Lord Lester of Herne Hill
My name is also on this amendment. When I heard my noble and learned kinsman Lord Woolf indicate in his speech why we should trust the judges, I was reminded of what Archbishop William Temple once said:
“Whenever I travel on the Underground I always intend to buy a ticket, but the fact that there is a ticket collector at the other end just clinches it”.
However good our judiciary might be, it is important that the legislation should just clinch it.
The principle of open justice is a constitutional one anchored in our written and unwritten law and in the Human Rights Act both as regards the right to a fair and public hearing of civil and criminal proceedings protected by Article 6 of the convention, and the right to freedom of expression protected by Article 10. As my noble friend Lady Berridge has indicated, the principles were laid down most famously in Scott v Scott in 1913 when Lord Haldane, Lord Chancellor, referred to:
“the general principles as regards publicity which regulated the other courts of justice in this country”,
as being of “much public importance”.
“They lay down that the administration of justice must, so far as the trial of the case is concerned, with certain narrowly defined exceptions . . . be conducted in open court”.
Later Lord Haldane noted in the same case that the power of an ordinary court to hear in private cannot rest merely on the discretion of the judge. He said:
“If there is any exception to the broad principle that requires the administration of justice to take place in open court, that exception must be based on the application of some other and overriding principle which defines the field of exception and does not leave its limits to the individual discretion of the judge”.
The principle of open justice was reaffirmed by the English Court of Appeal, including the noble and learned Lord, Lord Neuberger, the Master of the Rolls, whose appointment as president of the Supreme Court I am sure we all greatly welcome. That Court of Appeal, as recently as 7 February 2012, was dealing with the successful appeal against the refusal by the district court to grant access to documents supplied to the court for the purpose of extradition to the United States of two individuals alleged to have been involved in bribing Nigerian officials by a subsidiary of the US company Halliburton. Lord Justice Toulson gave the leading judgment, in which he observed that the principle of open justice,
“has been recognised by the common law since the fall of the Stuart dynasty”.
After he quoted from Scott v Scott, he cited a New Zealand case, Broadcasting Corporation of New Zealand v the Attorney-General, in which the president, Sir Owen Woodhouse, another great and famous jurist, observed that,
“the principle of public access to the Courts is an essential element in our system. Nor are the reasons in the slightest degree difficult to find. The Judges speak and act on behalf of the community. They necessarily exercise great power in order to discharge heavy responsibilities. The fact that they do it under the eyes of their fellow citizens means that they must provide daily and public assurance that so far as they can manage it what they do is done efficiently if possible, with human understanding it may be hoped, but certainly by a fair and balanced application of the law to the facts as they really appear to be. Nor is it simply a matter of providing just answers for individual cases, important though that always will be. It is a matter as well of maintaining a system of justice which requires that the judiciary will be seen day by day attempting to grapple in the same even fashion with the whole generality of cases. To the extent that public confidence is then given in return so may the process be regarded as fulfilling its purposes”.
Lord Justice Toulson of course recognised that there are exceptions to the principle of open justice, but they must be justified by some even more important principle. In the Binyam Mohamed case, the Lord Chief Justice, the noble and learned Lord, Lord Judge, declared:
“Without the commitment of an independent media, the operation of the principle of open justice would be irremediably diminished”.
He recognised the special significance of the open justice principle in cases involving allegations of wrongdoing against the Executive.
As my noble friend Lady Berridge observed, the Joint Committee on Human Rights, in its report on the Green Paper, pointed out that the significant implications of the Government’s proposals for freedom of the media to report matters of public interest and concern did not feature at all. The committee regarded that as a “serious omission” and, at paragraph 217, called for the,
“human rights memorandum accompanying the Bill to include a thorough assessment of its impact on media freedom and on continuing public confidence in the administration of justice”.
When it came, the human rights memorandum contained just four brief paragraphs, paragraphs 32 to 35, asserting that the Bill is compatible with the freedom of the press because,
“in all cases where the test for closed proceedings is met it will be possible to justify the interferences with Article 10 rights as necessary and proportionate in the interests of national security”.
The Government’s response to our report provides even less comfort on that score. It states at page 15 that, in the Government’s view,
“the proposals will enhance transparency and public trust, not undermine it”,
and that,
“the media can be expected to have increased opportunities to report on substantive findings in cases that raise matters of significant public interest”,
because more relevant material will be put before the court to enable it to reach a decision in cases which currently cannot proceed. It is disappointing that there is nothing in the Bill so far to address the JCHR’s significant concerns about the impact upon media freedom and democratic accountability. As it stands, the Bill would undermine principles that have guided this country for centuries, threatening to violate open justice and free speech where they are most needed, especially in the context of cases involving allegations of wrongdoing by citizens against the executive.
I will not trouble the House with the convention case law that supports all of this, but I will say that to avoid arbitrary laws there are two fundamental requirements anchored in our legal system and in the convention. First, the law must be reasonably certain and foreseeable so as to be accessible to the citizen. Secondly, the law must provide adequate safeguards against abuse. The memorandum from the Government on the convention issues does not mention these vital safeguards of the rule of law and constitutional rights. The Bill as it stands would authorise the courts in future cases, without any prescribed and foreseeable criteria and safeguards, to operate a closed system of justice, shielded from public scrutiny. The virtue of Amendment 69ZA is that it requires rules of court to be made that would strike a fair balance between open justice, freedom of expression and national security, while satisfying the principles of common law and the convention.
Finally, as the noble Lord, Lord Pannick, and the noble Baroness, Lady Berridge, have indicated, on the question about the publication of judgments in this area, the principle of legal certainty makes it absolutely essential that everybody should know the nature and scope of the relevant law. I remember in arguing the thalidomide case at Strasbourg many years ago that, because of the uncertainty of the law, we relied on the abuse by a Roman emperor who wrote the law on the top of very tall pillars, which prevented Roman citizens from being able to see it properly. That is an example in Roman law of the vice of legal uncertainty. A similar problem will arise if judgments given by the courts in cases of this kind remain altogether secret with no safeguards for them to be published when their secrecy is no longer necessary. I very much hope that those points will be addressed, whether in these amendments or others.
Lord Beecham
My Lords, we have previously debated amendments that would help to secure oversight of this system, if indeed this Bill survives the legislative process. Most, though not all, noble Lords who have spoken in the debates in Committee have expressed considerable reservations about the principle. Most have then spoken to amendments that would mitigate the effect of the principle if indeed it emerges in the final transition of the Bill to the statute book.
For my part, I concur very strongly with the views of the noble Lord, Lord Pannick, and the noble Baroness, Lady Berridge, regarding the establishment of a system for identifying the case law and the judgments and making them available, at some point at any rate, to inform the judicial process. That seems very important to me and certainly I lean towards amendments that ultimately would require the publication of reasons for a decision.
I am less attracted, however, by the first parts of the amendment moved by the noble Baroness, which would allow the media to intervene in proceedings. I am not quite certain of the form in which such intervention would take place, but in any event I am not at all persuaded thus far that this is something that would materially assist the process as opposed to simply promoting the interests of the media. It is difficult to see how that would work in practice, so we cannot support those elements of the amendment.
However, we look to the Government to respond constructively to the points made about the recording and availability of case law and the justification for particular decisions being made at a point when security interests are no longer as strong as when the closed material procedures, if indeed they exist, are implemented in a particular case. There ought at some point to be a disclosure. To that extent we sympathise with that part of the amendment, but in relation to its first parts we cannot really support what the noble Baroness is trying to do.
Baroness Stowell of Beeston
My Lords, I am grateful to my noble friend Lady Berridge for tabling this amendment because it is important that, in a Bill such as this, we have an opportunity to discuss freedom of expression and the media’s important role in holding the Government to account and scrutinising what happens in this country. I think my noble friend suggested that one of the purposes of her amendment was to ensure that there is public trust in the judicial system. She certainly made several remarks about the importance of open justice, and was joined in that by other noble Lords. We obviously share that objective and, from the report of the Joint Committee on Human Rights, we are aware of its concerns about the impact on public trust and confidence in the courts.
However, it is important that we remind ourselves that this Bill is also about allowing justice to be done where that has not been possible before—and doing so in a way that is as fair as we can make it. Throughout the debates on the closed material procedure aspect of the Bill the Government, through my noble and learned friend, have been at pains to stress that as much material and judicial reasoning as is possible without damaging national security will go into open court. The special advocates will assist with pushing as much material as possible out of the closed case into open court, and at all stages of the process: at the application stage, during the substance of the case and at the point of judgment, when they will challenge the material in the closed judgment and make representations about why it should be in the open. The media will have access to all open elements of proceedings, as normal. Indeed, as I will come on to explain, we believe that in this process they will have access to more material than they might otherwise have had.
My noble friend and the noble Lord, Lord Pannick, referred to safeguards. I think the noble Lord said that it was important to build in safeguards in order not to undermine the need for secrecy. There was some consensus built around the later legs of the amendment, which refer to what I might describe as the declassification of the judgments. I will come back to that later.
My immediate response to the first part of the amendment is that it raises some practical difficulties as far as giving the media access to intervening in the proceedings. Indeed, I was interested to hear the noble Lord, Lord Beecham, express his doubts about whether that would actually add to the proceedings. While I know that my noble friend mentioned the suggestion of the media being appointed a special advocate in order to be able to intervene in proceedings, it is important to recognise that the media is not in and of itself an institution with a formal responsibility to represent the public interest. The media have several functions, whether to report or to investigate. Certainly in open proceedings, they are there representing the public alongside the public who are already there. To give them access to something that is closed because the nature of the discussion and the evidence at issue could, if brought into the open, damage national security, would seem an anomaly. It would also be difficult to make possible in practice.
Lord Lester of Herne Hill
I fully accept that Article 10(2) has exceptions and that the Bill falls within those exceptions. The problem is one of a lack of legal certainty. As my noble friend has indicated, the restrictions must be prescribed by law, and legal certainty therefore requires some accessibility. When courts think of making injunctions that affect freedom of speech, such as Spycatcher-type injunctions, they give notice to the press so that it can come along and explain why it thinks that the procedure or injunction is inappropriate. I perfectly understand, as the noble Lord, Lord Beecham, said, that there is an objection to the press being present throughout the proceedings, but I have not so far heard any reason why the press cannot at least be informed. The press could come along on a Section 6 application and explain why it thinks that the procedure is appropriate when wrongdoing has been alleged. I do not understand, either, why there should be no mechanism to ensure that judgments that are secret should be published when they have lost their secrecy. Those are the kinds of issues that arise under Article 10.
Baroness Stowell of Beeston
I shall come on to the issue of redacted judgments in a moment. As to whether the press should be notified at the point of application for a CMP, it may well be informed, but it will not be informed if the issue is related to national security. That is the clear distinction between this kind of case and a PII case because, if the Secretary of State is making an application under CMP, she is doing so because she considers national security to be at risk.
The important points of principle for certainty are generally dealt with on the face of the open judgment. When that is published, the certainty that the noble Lord looks for will be provided. Sensitive details of the case may not be released but this does not mean all details will be placed in closed judgments. Judges are well accustomed to considering what material is published in a final judgment. At the moment the media and the public do not get this information. Instead, they are left with accusations that have not been investigated.
Lord Falconer of Thoroton
From what the Minister said, I am not clear whether it is envisaged that the fact of an application being made for a closed material proceeding should be kept secret. I had not understood that that was the purpose of the Bill or that any rules of court could be made to make the fact of the application secret. What is the Government’s intention towards that process? Is it intended that there will be certain circumstances when even the fact of an application under Section 6 is to be kept secret?
Baroness Stowell of Beeston
As I understand it, in some instances the fact of the application will not be made public because that is also what happens now under PII. If the knowledge that the application has been made could give rise to concern about national security, it would not be made public, but that does not mean that all applications would be kept secret. If necessary, I will come back to clarify that point for the noble and learned Lord.
On the points covered in proposed new paragraphs (d) and (e), to which all noble Lords have referred, about closed judgments and the point at which they may no longer be considered classified or secret and could be made public, I refer noble Lords to the extended debate in Committee last week when my noble and learned friend made the following point:
“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”.—[Official Report, 17/7/12; col. 209.]
However, we are considering this matter and will continue to do so between now and Report.
My noble friend Lady Berridge referred again to the database of closed judgments. I responded to her last week, I believe, that that issue is now in hand because of the useful contributions from the JCHR on this matter. She went on to ask whether it could go beyond the head notes to form cases. I do not have an answer for her at the moment but I will, of course, come back to her. As to the very specific points raised about the same issue by the noble Lord, Lord Pannick, I believe that I have already covered those in the remarks that I have just made.
In conclusion, we are discussing points of fundamental importance concerning freedom of the press and public trust in the justice system. I will come back to the noble and learned Lord on his point, but I hope that I have been able to demonstrate that the Bill will help to enhance transparency and public trust rather than undermine them, and in doing so we will reinforce the principles of open justice while protecting the UK’s national security.
I noticed the noble and learned Lord looking at me rather sceptically then. Before I sit down, I think that it is worth repeating that during this process only some material will be considered in closed proceedings. The material that will be in open proceedings will be accessible to the media, and there will be more than there is at this time. The arrangements being considered will ensure that the media will have access to the cases in a way that is consistent with their responsibility to report and to hold the Government to account, but, as I said at the start, they do not have a formal role in that process. Primarily what we are looking for in this Bill is that we are allowed to ensure that justice is done where it has not been seen to be done previously. That is an essential part of what we are trying to achieve. I hope that my noble friend feels able to withdraw her amendment.
Lord Lester of Herne Hill
The Minister has referred twice to the vital principle that justice must be done, but on neither occasion has she added the usual part of that, which is that justice must be done and must manifestly be seen to be done. Between now and Report, could the Government reflect on the implications of having a procedure where even the fact of an application for closed proceedings under Clause 6 would be secret? I know of only one precedent for that kind of thing in this country. It was Defence Regulation 18B during the Second World War, which led to the infamous decision in Liversidge v Anderson. I cannot believe that such a conclusion is what the Government really intend.
Baroness Stowell of Beeston
I always listen carefully to the points that my noble friend makes. This is about ensuring that justice is done, and of course justice should be seen to be done. It has been said many times before in debates on this Bill that this is not the optimum system, and it is not the one that we would want to follow. However, if the Government are to be able to defend themselves against allegations and indeed if somebody is to have the opportunity to make a claim against the Government and see that claim through, we think that this system will deliver that. We are bringing forward this Bill because ultimately that is what we want to achieve.
Baroness Berridge
My Lords, I am grateful to the noble Lords, Lord Pannick and Lord Lester, for their contributions on this amendment. I am also grateful, in part, for the contribution of the noble Lord, Lord Beecham. I hope that he can be persuaded of the need to inform the media, and not only for the reasons outlined by the noble Lord, Lord Pannick. In my view, in reality these cases are going to be twin-tracked. Either legal proceedings will be preceded by allegations in the media or allegations will be made at the same time as those proceedings. That is the nature of these cases. Unfortunately, they often involve allegations of rendition and so on. Therefore, it is very important to think through thoroughly the implications of not notifying the press when those allegations will be rolling at the same time in our national newspapers, on Twitter and in blogs. It is important to understand the implications of not informing the press of the application for a closed material procedure.
I am not surprised to hear from the noble Lord, Lord Beecham, of the practical difficulties of notifying the media in these circumstances. There is also some weight in the comments of my noble friend Lady Stowell in relation to the anomaly of having a special advocate representing a public interest and seeing information to which the public does not have access. However, I think it is accepted that this system is anomalous and that there are going to be practical difficulties in ensuring open justice. When you have an anomalous system, it is not surprising if you breed slightly more anomalies in trying to achieve the best result you can in the circumstances. It is important to remember that, if it is told, the press will be there representing the public administration of justice. That is a serious matter that counterweighs the anomaly or the practical difficulties. As I have outlined, there has been a tradition of the press intervening and representing the issues in certain cases.
Before closing, I wish to refer to two matters that were mentioned. My noble friend Lady Stowell talked about the public preferring evidence to be taken into account so that the Government can defend themselves, and she also mentioned the money that is paid out if they cannot do so. A lot of confidence is placed in the public’s view of this system. I do not like to rely on opinion polls because I think that the answers depend on how the questions are phrased. However, what evidence are the Government relying on? There is a high degree of public mistrust. As soon as you mention secret trials, you get a very adverse reaction, particularly when dealing with actions against the Government in these circumstances. I should be grateful for some clarification of the basis on which the Government are sure that the public are behind the introduction of this system.
Finally, my noble friend outlined something that has been an issue throughout a lot of the debate on these amendments. She mentioned only some material being closed. At the same time, a big thrust of the Government’s argument has been that these cases are saturated by intelligence material. Therefore, we need some explanation here. It may be that only some material will be closed but we are also talking about cases that are saturated by intelligence material and where most of the proceedings will be closed and therefore the secret judgment will perhaps be a blank. I hope that the Minister can provide further clarification. I beg leave to withdraw the amendment.
Lord Beecham
Lord Beecham
My Lords, this amendment and the other amendments in the group relate to what are extraordinarily wide powers that Clause 11(2) and subsequent subsections would confer on the Secretary of State to amend, for the purposes of the legislation, the definition of “relevant civil proceedings”. The Delegated Powers Committee looked in some detail at these matters and I rely heavily on its observations. It raised significant concerns and made it clear that, while, of course, the procedures are confined to civil proceedings, the effect of the Bill is to permit any such civil proceedings to be ones in which the procedures can be invoked.
Subsections (2) to (4) of Clause 11 confer a very wide power on the Secretary of State to amend the definition and to amend the definition by affirmative order. In so doing, courts or tribunals can be added or removed and rules can be prescribed. The committee stated that:
“The powers are undoubtedly wide”.
They might, indeed, in the view of the committee, be exercised so as to specify a coroner’s court. Of course your Lordships will recall that the question of inquests has been mentioned more than once. The Lord Chancellor has indicated that procedures would not apply to inquests but, on the face of it, that decision could be changed under the provisions of Clause 11(2), by order, to be approved, as I have indicated, by affirmative resolution. In addition to that, there is the possibility of some urgency being required in the mind of the Government and that is also a question which the committee addressed. There is the possibility of a made affirmative procedure being invoked under which a change could be instituted by, effectively, tabling an amendment. Although, ultimately, that would have to be approved, it would take effect immediately.
The committee, while acknowledging the Government’s concerns about urgency, pointed out that if a situation arose in which it was felt that an application needed to be made in proceedings before a court or tribunal which was not initially specified and for which, therefore, an order would have to be brought forward, the Government,
“does not explain why it is thought that an order which attracts the draft affirmative procedure should offer any speedier means of meeting that perceived need for amending legislation than, for instance, a short Bill fast-tracked through both Houses”.
It said, and I think that there is considerable force in the argument, that that approach,
“would at least ensure that control over further extensions of the ‘closed material procedure’ would remain with Parliament, rather than with the Government”.
Nevertheless, it took the view that the House should consider,
“the scope of the powers conferred so that it may appreciate the unconstrained nature and extent of the provision that might be made under them by this or any future government. The House may wish to consider whether the Bill should be amended to restrict that scope or to include any such safeguards as the House might regard as necessary for ensuring Convention rights are observed and for protecting the interests of open justice”.
The Constitution Committee thought that the made affirmative procedure might be more appropriate, but the Delegated Powers Committee felt that that would perhaps be the least likely way to meet the need for urgency.
The provisions here are extensive. The procedure that the Government propose to adopt does not really allow sufficient parliamentary scrutiny and leaves the decision, as the Delegated Powers Committee made clear, in the hands of the Government when there is an alternative if a situation of urgency arises. Your Lordships might think that this is much too broad a power to be left in the way that this clause and its subsections provide and I sense that the other amendments in this group reflect that view. I hope that the Government will reconsider and go back, before Report, to the recommendations of the Delegated Powers Committee and seek to amend this provision as it currently stands to one that is more acceptable and more consonant with the procedures of parliamentary scrutiny of what might be significant changes to the scope of the Bill. I beg to move.
Lord Hodgson of Astley Abbotts
My Lords, I have tabled Amendment 70 in this group. The noble Lord, Lord Beecham, has covered the points and I do not wish to weary the Committee with repetition. Amendment 70 would remove subsections (3) and (4), as well as subsection (2), and is therefore more brutal in its application. One of the briefings I received on this part of the Bill said that this was a potentially,
“unwarranted extension of an unsatisfactory procedure”.
I therefore support what the noble Lord was saying about the dangers of mission creep, which we have discussed before. As we keep hearing it stressed that this is going to be a very rare procedure, it seems strange that we should allow courts to be added in what is essentially a pretty cavalier manner. I am all for statutory instruments and their positive nature, but they are unamendable and inherently too weak to tackle something that is as dangerous and difficult as this area that we have been discussing these past few days.
Subsection (4)(a) refers to “explaining the meaning” of “rules of court”. Do they really need to be explained? Are we not, as the noble and learned Lord, Lord Woolf, has explained to us, able to rely on judicial discretion and ability to interpret? I am concerned that explaining the meaning of the rules of court carries with it, in some more sinister way, an instruction as to what they mean and what judges should do. Similar wording in subsection (4)(b),
“enabling provision of a particular description to be made by such rules of court”,
seems to me, as a non-lawyer, to carry with it a degree of direction and fixed purpose that does not fit well with the sensitivity of the nexus that we have been discussing between civil liberties and the need to protect national security.
Baroness Turner of Camden
My Lords, I am not a lawyer but I am a former trade union official and tend to look at the proposed legislation before us from the standpoint of people who are working in industry and are members of unions. I am most concerned about the possible impact of this law on employment legislation.
We know that the Government are currently considering employment law and have been considering employment tribunals now for a very long time. Every time I have asked about employment tribunals I have been told that they are under consideration and that the Government are looking at them, and so on and so forth. Every time that employment tribunals, or tribunals of any kind, make an appearance in legislation, I ask what the Government are up to and what it means. Can we be told whether there is an impact on employment in subsections (2) and (4)? It is these two subsections, referred to in Amendment 70, that first attracted my attention. Can we be told precisely what these subsections are intended to involve regarding reference to tribunals, with all that that could mean for employment law?
Lord Soley
My Lords, I intervene as a member of the Delegated Powers and Regulatory Reform Select Committee, to which my noble friend Lord Beecham has already referred and which has been referred to on the other side of the Chamber. I do not speak for the Committee, but I can say quite clearly that we spent some considerable time on this and were very concerned about it. We all know the powers as Henry VIII powers. Whenever we have these, we look at them carefully and with considerable concern about the power of Parliament being sidelined in relation to the power of the Government.
The context of all this is my own involvement in many of these issues, going right back to the 1970s and 1980s when I first started working with some of the legislation dealing with the emergencies in Northern Ireland and with other prevention of terrorism Acts. The tendency in all these things is for the Government to require the extra powers, for reasons which we all understand and are very sympathetic to, because on one side of the equation is the need to deal with the difficult situations but to do so by exercising the proper rule of law, and on the other is the right of Parliament to oversee what the Government have done.
I have made this point before but I make it again simply to reinforce the context of this. If we look at the history of these sorts of Acts, we see that they have a long involvement in the Government taking additional powers, very often in difficult situations, and then extending those powers into other areas. I have referred in the past to the Official Secrets Act 1911. Not long after that Act, MI5 and MI6 were created. However, neither MI5 nor MI6 had a legal existence until the 1980s; we literally did not put them into law. If we look at the prevention of terrorism Acts in the 1970s and 1980s, we see that we often legislated for drastic situations in which we needed to protect the public but did so in a way in which Parliament was increasingly marginalised. I had a great objection to one of the prevention of terrorism Acts, which had in effect a more than Henry VIII power whereby the Home Secretary alone could exclude a person from one part of the United Kingdom to another part without reference to Parliament.
What did the Delegated Powers and Regulatory Reform Committee focus on here? It was on this very issue of the power that the Government are taking. I refer here not so much to the report which my noble friend Lord Beecham has dealt with very well, but to the notes provided to the Delegated Powers Committee: the Home Office and Ministry of Justice memorandum. This is not new material.
Paragraph 47 of the memorandum says:
“It is appropriate to make provision in the Bill for this power”—
that is, the power to define the relevant civil proceedings in a court, excluding the criminal courts of course—
“because it is possible that a case not within the scope of the current definition of ‘relevant civil proceedings’ will arise, such that a CMP is needed for the just consideration of the case to be heard before a different court or tribunal”—
a point that we are all aware of—
“whilst at the same time there is a need to protect national security sensitive evidence from disclosure”.
Again, that is something we are all very aware of. It continues:
“Furthermore, if this happens, the need to provide for the possibility of a CMP in such proceedings will be pressing in terms of time”.
The last sentence says:
“For these two reasons it is considered appropriate to provide for this power, since the changes can be made more quickly than amending primary legislation”.
The concern of the Delegated Powers Committee in this respect was what form of parliamentary control could be had over this sort of extension. This is the sort of creeping power that I have described and which any Government, not just this one, could in the future extend to other courts. The exception in the Bill itself is of course criminal courts. The Delegated Powers Committee took the view that there was no reason why this should not extend to coroners’ courts, even though the Government have, as I understand it, expressed the view that it should not in fact do so. However, there is nothing in the Bill to say that it does not. My worry would be that, given that there is a whole range of issues—including the point just made by my noble friend about trade unions, although this might be less likely in the nature of the information required—this would extend to tribunals as well. It could be extended across the board to many other areas of the law, which would be damaging and dangerous.
In the Delegated Powers Committee report we asked why, if there was urgency of time, we were looking at an affirmative procedure. An affirmative procedure is not fast; nor, incidentally, is the super-affirmative procedure referred to in the constitutional law report by the Constitution Committee, which suggested a super-affirmative procedure to deal with this. That is not a fast procedure either. If we need a rapid response—and I for one accept that a rapid change will be needed at times to deal with a case—one begins to look for a different way of addressing these urgent and difficult situations.
I have often felt, particularly as a member of the Delegated Powers Committee, that we do not really have the best system available to look at delegated powers. We almost need additional ways of doing this, and perhaps there will be a discussion on that when we come to another report issued by the Delegated Powers Committee on another occasion. I would simply say that, in the current situation, a Bill put through both Houses as a fast reaction to this would be a better way of dealing with it, not least because a Bill that is put before both Houses in the expedited system that we are quite used to when dealing with terrorist situations can also have a sunset clause in it. In other words, the action given to the Government and approved by Parliament to allow the Government to take this additional power could have a finite lifespan.
If we suddenly felt that we needed this power for a coroner’s court hearing, for example, there is no reason why a Bill could not be moved through this House quite rapidly and have a sunset clause in it so that it would expire after a certain period of time. We have done that before; we did it with the prevention of terrorism Act in the 1980s, so it is perfectly possible to do this. My concern, and that of most other members of the Delegated Powers Committee, was that this is a very real Henry VIII power that gives the Government great powers which Parliament is not given sufficient control over. That is the history of this sort of legislation. Parliament always needs to be alert to its duty—and it is a duty—to protect the citizens of a country from a Government having excessive powers.
In following up my noble friend’s comments on all this, I would certainly ask the Government for an explanation of why an expedited Bill through both Houses would not be a better option than an affirmative order, whether a super-affirmative order or a conventional affirmative order; or, indeed, whether the Government agree that there is considerable danger in any Government, with the best will in the world, faced with serious problems of the type that we have these days, being content to allow for a situation that is not only not fast—because the affirmative procedure is not fast—but that extends considerable power to the Government, which in most circumstances we would not accept.
Lord Marks of Henley-on-Thames
My Lords, I will speak to Amendments 70A and 70B in my name and the names of my noble friends Lady Williams of Crosby and Lord Thomas of Gresford. I speak as a member—a very new member—of the Delegated Powers and Regulatory Reform Committee.
Our amendments are in narrower terms than the amendments tabled by the noble Lord, Lord Beecham, the noble Baroness, Lady Smith, and those of the noble Lords, Lord Hodgson and Lord Dubs. Amendment 70A is prompted by the concern mentioned by the noble Lords, Lord Beecham and Lord Soley. Clause 11(2) and (3) gives the Secretary of State the power to add courts and tribunals to the very restricted list of courts that may hold closed material proceedings. That list comprises the High Court, the Court of Appeal and the Court of Session. That plainly involves the power to add coroners’ courts.
It is in that respect that the Joint Committee on Human Rights took the view that there was no case for inquests to be made the subject of closed material procedures. Not only did the committee reject the argument that coroners were liable to be disabled from conducting full investigations by the exclusion of sensitive material, but it pointed out, rightly in my view, that the use of CMPs in inquests would probably be a breach of Article 2 of the European Convention on Human Rights. That right to life article carries with it a procedural requirement for states to investigate suspicious deaths. On the basis of cases both here and in the European Court of Human Rights, such investigation has to be open and enable the families of the deceased to be involved in the proceedings. Compliance with those requirements would not be possible in any meaningful way where an inquest was held with a CMP.
The Government’s response to the JCHR report was to concede that there would be no inquests held under the closed material procedure. In his foreword to the Government’s response, my right honourable friend Ken Clarke, the Justice Secretary, went further and said that CMPs,
“will only be extended to civil cases in the Court of Appeal and High Court, and the equivalent courts in Scotland and Northern Ireland”.
That is in accordance with the Bill as drafted. That extra concession to exclude the lower courts was rightly made. It is important that this extremely sensitive procedure, where it has to occur, should be managed at the highest level. I suggest that both concessions should be made binding and should not be capable of being removed in effect by executive action.
Even if one could envisage the extension of CMPs to other proceedings, there is no reason, as the noble Lord, Lord Soley, pointed out, why that should not be achieved by further primary legislation. I disagree slightly with the noble Lord in that I would suggest that there is no case based on urgency. It is inherent in the nature of inquests that there is no extreme urgency. Indeed, we have all seen that inquests are frequently adjourned for very long periods to allow other proceedings or investigations to take their course. In the case of other civil proceedings, if CMPs are warranted they can be instituted in the High Court, where a CMP application can be made. As the noble Lord, Lord Beecham, pointed out, the Delegated Powers and Regulatory Reform Committee drew our attention to the scope of the powers conferred so that we in this Committee could appreciate the unconstrained nature and extent of the provision that might be made under them by this or a future Government. I suggest that the committee was right to do so.
Amendment 70B would remove from Clause 11(3)(b) the Henry VIII provision in relation to the power to change the definition of “relevant civil proceedings”. There would be no power for the Secretary of State to amend, repeal or otherwise modify any enactment, leaving the Secretary of State with a power to make only minor provisions, such as those that might be necessary to take into account the passage of other legislation. Taken together with Amendment 70A, this amendment would draw the sting from Clause 11(2) and (3) as it stands. I commend the amendments to the Committee.
Baroness Williams of Crosby
My Lords, I want to add only a short comment to the remarks made by my noble friend. I can think of nothing that would do more to undermine public confidence in the judicial system than an attempt to try to include coroners’ courts. I will be assured that there has been a promise from the Lord Chancellor that this will not happen, but I cannot understand why the Bill still clearly indicates that there could be a power to include such a court. The Bill says that in exact terms. The idea of excluding the CMP in an inquest would so outrage large sections of the public, especially on publicly very sensitive cases, that I can think of little that would do more to undermine confidence.
I also strongly agree with the general thrust of the remarks made by the noble Lord, Lord Soley. He rightly understands that there is a tendency to have what one might call “executive mission creep”. The temptation to extend powers if there is nothing to limit them more strictly in the Bill is a very powerful temptation indeed. The noble Lord is quite right to say that the procedure laid down here is relatively slow. It is also, to be frank, if I may, relatively inefficient because it depends to a great extent on the interest that is shown in the House of Commons in the procedures that are put before it. Sadly, the story of affirmative procedures is often rather of neglect of the issues and substance put before the House.
The noble Lord is absolutely right to argue that primary legislation would be a more appropriate way to safeguard citizens’ freedoms than to rely on this cumbersome procedure. I strongly hope that the Government will reconsider this very wide-ranging legislation, with very few limits on it. I wonder whether it would be possible perhaps to redraft the legislation in narrower terms and to have more effective accountability. Many of us in the Committee would feel rather more confident about the ability of the legislation to win public support and public confidence.
Lord Pannick
My Lords, I share the concerns that have led to these amendments. The views of the Committee and the other place on whether the Bill contains an adequate balance between justice and security will depend on the scope of the Bill and on the scope of the concept of relevant civil proceedings. The wider the scope of the Bill, the less willing Parliament will inevitably be to approve Part 2; and the wider the scope the more willing Parliament must be to include amendments that provide safeguards in respect of the closed procedures.
Given that we are debating this Bill on the basis of the current scope that it contains, it seems fundamentally wrong in principle to give the Secretary of State a power thereafter to expand the Bill’s scope in a manner that when that proposal comes before Parliament will prevent us proposing any amendments that would introduce necessary safeguards that Parliament might think are required in the light of the expanded scope of the Bill.
With the Committee’s permission, I shall return—I have checked the facts—to a matter raised by the noble Baroness, Lady Stowell, in her response to the previous group of amendments. She told the Committee, as I understood her, and as the noble and learned Lord, Lord Falconer of Thoroton, understood her, that the Government may envisage that an application for a closed material procedure may be made in secret, without notification to anyone. My understanding, which I have confirmed, is that under the old control order procedure and the existing TPIM procedure, the application for a closed hearing is always made in public. Indeed, it has to be made publicly because the whole point of the special advocate procedure is that the special advocate before the closed procedure starts can talk to the litigants concerned and obtain information from them.
Furthermore, once a judgment is given, there is always an open judgment, which always refers to the closed judgment—if there is a closed judgment—without of course disclosing the confidential material that is in the closed judgment.
Like the noble and learned Lord, Lord Falconer of Thoroton, I would be very grateful if there could be clarification as soon as possible as to whether it is really the Government’s intention, in relation to the closed material procedure, that applications could be made in secret, entirely differently from how the control order and TPIM regime works.
Lord Lester of Herne Hill
My Lords, I have a couple of extra concerns to add to what has already been said. The first is political. As I understand it, this Bill has been introduced on the express understanding of both parts of the coalition that coroners’ inquests would be excluded. I see my noble and learned friend nodding in agreement to that. However, the power that is included here would enable a future Secretary of State to take that away, either during the coalition Government or when the coalition ends. That would be a breach of faith, and we should not now be legislating in a way that makes that possible. It seems to me to be a condition of this Bill that under no circumstances is it to apply to coroners’ inquests, for all the reasons that the Joint Committee and everyone else put forward.
My second problem is that these are civil proceedings, as we are constantly being reminded, so they affect the civil rights and obligations of the parties to those proceedings. When we were enacting the Equality Bills, the question frequently arose as to whether it would be fair and reasonable for a Government to take a power to amend the exceptions to that legislation, which is civil, in order to affect the rights and freedoms of the individual. In introducing both the Equality Act 2006 and 2010, the previous Government took powers to amend, but only by means of removing exceptions, not by anything that would affect the fundamental balance of civil proceedings.
What troubles me is that if this Bill goes through without adequate safeguards of the kind we are pressing for, the use of the powers conferred to amend—to add tribunals by delegated legislation—will not be able to add further safeguards; the question will only be whether a new, further tribunal may be added. That will fundamentally affect, anyhow, the rights and liabilities of the parties to that tribunal.
To take the example in the employment field referred to by the noble Baroness, Lady Turner, one can add a whole new set of restrictions that would apply, for example, to civil litigation in the employment field. That is not something that any previous Government would have contemplated. These powers are not simply Henry VIII in analogy, but maybe a later generation of kings under the Stuarts.
Lord Butler of Brockwell
My Lords, it is clear from this debate that two types of issue arise with this group of amendments. One is the issue of whether this is an appropriate use of delegated powers. The other could be described as an issue of policy: whether it is right for the Government to keep open the possibility of adding other types of proceedings, particularly inquests, to those to which the procedures in this Bill are available.
On the first matter of whether this is an appropriate use of delegated powers, as the noble Lords, Lord Soley and Lord Marks, said, we had a long and agonised debate on this in the Delegated Powers Committee. I do not need to add to what the noble Lords said; they summarised the case very well. The reluctance of the Delegated Powers Committee is evident from the words of the conclusion that it reached, where it said that,
“we are reluctant—albeit with considerable misgivings—to recommend in terms that the delegation of powers in clause 11 is inappropriate”.
In other words, the committee was not prepared to go as far as to say that this use of delegated powers was inappropriate, but it thought that this should be a matter for the opinion of the House, and it thought also that the House should consider whether some constraints and limitations should be put on that. I hope that is a matter that the Government will consider.
On the question of policy, as to whether it is right to retain a power to extend the range of proceedings to which the powers in the Bill would be appropriate, I deal directly with the sensitive issue of inquests and coroners’ courts, because that is where the shoe would be most inclined to rub. The noble Lord, Lord Lester, suggested that the Government have declared a policy of excluding inquests because this was the agreement on both sides of the coalition. My impression, I must say, is that this conclusion was reached with greater enthusiasm by one party to the coalition than the other. Indeed, I have heard on one or two occasions the Secretary of State for Justice being asked why this conclusion was reached and he has not been able to give a very convincing answer, other than that this was the way it came out in discussion.
It is difficult to see why the logic that the Government have applied for closed proceedings in other cases should not be available in inquests. The logic is rather similar. It is not often that I disagree with the noble Baroness, Lady Williams of Crosby, and I entirely see her point that it would be very distressing for the public if the proceedings in an inquest could not be entirely in the open. However, again the question arises: is it more disturbing to the public that some proceedings should not be open, or that there is some material relevant to the conclusion of the inquest that is not brought to bear at all? This is the issue that arises with the rest of the Bill. It is quite difficult to see why the Government have reached this conclusion in one case and an opposite conclusion in the other.
Lord Lester of Herne Hill
My Lords, the noble Lord, Lord Butler of Brockwell, has great experience of ordinary majority Governments but none at all of coalition Governments. Will he accept that we are now in a different world from that which he ever experienced, and that when you have coalition Government, and the two parties to the coalition reach an agreement, if the coalition is to survive and prosper, that agreement must be followed, however difficult for one party or the other?
Lord Butler of Brockwell
My Lords, I am not denying for a moment that this is a conclusion of the coalition. It clearly is. I am just asking whether it is a very logical conclusion.
This is a serious point. There are, I believe, 30 inquests waiting to happen in Northern Ireland, which still have to be undertaken. It is difficult to foresee all the circumstances that might arise. We have got to allow for the possibility that there might be proceedings—inquests, but also perhaps other proceedings—where we would wish, the Government would wish, and perhaps the public would wish, that it would be better that secret information was taken into account than it was not taken into account at all.
For that reason, and with the same reluctance that the Delegated Powers Committee had, I come down, on balance, on keeping these provisions in the Bill. The Government have said they not going to use them, but I think it would be wise to keep the provisions in the Bill, in case circumstances arise in which we would regret their absence.
Lord Beecham
Would the noble Lord then turn his mind to the question of the procedure to be adopted in those cases, because that is what the amendments seek to do? Does he accept that it would be better to have a Bill taken quickly through the House than to have the affirmative procedure that would otherwise be the case, with all its limitations, to which noble Lords have referred?
Lord Butler of Brockwell
My Lords, that is a very reasonable point and I address it with diffidence. It is obviously a bigger and more difficult undertaking to launch rapidly an emergency Bill than to have an order. If the case were good enough, it would be better to have a procedure that could be undertaken rapidly than to have the need for urgent legislation. But I do not take a very strong stance on that matter.
Baroness Berridge
My Lords, I, too, am grateful for the clarification from the Minister in relation to the exclusion of inquests for this particular reason: I understand that, outside of Northern Ireland, there are currently only two inquests outstanding in England and Wales—the case of Azelle Rodney and that of Mark Duggan from last summer. I am certain that, in the first case, the proposal is to use the Tribunals and Inquiries Act to conduct that inquest, and I believe that that is also to be the suggestion in the Mark Duggan case. The reasoning behind that is, I believe, that intercept evidence is to be considered.
One can see that it is a small step in the argument to say, “We are using the Tribunals and Inquiries Act and intercept evidence so why not, because we can under this Bill as it stands, use intercept evidence in a closed material procedure?”. It is a small step of reasoning to move into closed material procedures in inquests.
In relation to the issue of procedure and having legislation that goes quickly through the House, one can understand the concerns that exist at the moment in relation to the Mark Duggan situation. In those instances, Parliament should reconsider the matter. We would need to consider all the impacts on public confidence and the outworkings of using a secret procedure in such a high-profile case and an inquest of that significance.
Lord Reid of Cardowan
My Lords, I first apologise that I missed the first few speeches because I was unavoidably detained, but I have listened to quite a few of the speeches over the period and I have tried to read as much as possible of these debates when I have missed them. I have been impressed by the commentary on legal matters, matters of process and by the justice side of what the noble Lord, Lord Pannick, referred to earlier—the balance of justice and security—but I am afraid that I have searched in vain for anyone outside of the Front Bench doing anything in detail to analyse the security context. In other words, we cannot possibly judge whether these are appropriate measures in general unless we judge them in the circumstances of today. As the noble Lord just said, the situation with a coalition Government means that we are living in different times from previously, but the situation of living with the threat that we have today means that we are also living in different times from previously.
I have read with great interest the legal commentaries. I have found them outstanding in their quality and certainly outstanding in their quantity. I always defer to noble Lords with expertise in the human rights area and in the legal area on matters of law and advice on human rights, but I hope that noble Lords will forgive me if I do not defer on deciding on matters of security. I would have been horrified when I was Home Secretary had it been suggested to me that the overall strategic position on security and defence, for which the noble Lord, Lord King, and I had responsibility, was better served by having a lawyer decide rather than an accountable politician. Therefore, although this may be a minority speech, it is one worth bearing in mind for those who are speaking to these amendments today, not least on closed material procedures but not exclusively on them.
My starting point is to ask why these proposals are coming forward in the form that they are today. I am not a lawyer. I am a historian and therefore the two important questions to me are “Why is something happening?” and “Why is it happening when it is happening?”. Of course, there can be motivations ascribed. I have heard it said that this is merely mission creep. I have heard that it is the malevolence of the intelligence services: it is their guilt and wish to cover up future proceedings. But there may be a simpler answer: that circumstances have changed, and in particular that the nature of the threat has changed.
I say that on an evening when, unpopular as it may be to certain elements of the press, the chemical weapons and weapons of mass destruction debate seems to have been put back on our front pages. It is now widely recognised that they are sitting just across from Iraq. People are naturally very worried about what would happen if they fell into the hands of some of the terrorist groups at present operating in Syria. That is an example of the nature of the modern threat.
Noble Lords will know that there are two essential elements of threat: intention and capability. After 9/11, there can be no doubt that there are people in the world who have an unconstrained intent to commit unconstrained mass murder, including in this country. Whereas 60 years ago there were states with that intention, they lacked the capability. The scientific and technological basis on which they might operate their intent was limited to CO2 from the fumes of cars or vans or to Zyklon B canisters. That is not the case today. Chemical, biological and radiological weapons are also capable of extending unconstrained massacre of human beings. That is what has been in the minds of those charged with the security of the country since 9/11—unconstrained intent and unconstrained capability.
The second feature of that, which brings me to the amendments today and the Bill before us, is that there is now a seamless threat. This is not a threat in one country. It is not a threat that appears only in two countries. I did not deal with one threat that was in fewer than two or three countries, and in one it involved people in 29 different countries. If you have a seamless threat, you have to have a seamless response.
We are no longer, if we ever were, an island fortress, not just with cyber but with some of the potential threats that face the citizens of this country, whom the Front Bench are charged with protecting. If we are to have a seamless response, above all it requires absolute trust between those agencies and those Governments who are working together. That trust and dependence are now far greater than 30 or 40 years ago. Therefore, the breach of that trust, inadvertently or otherwise, through institutions or processes, legal or other operations, becomes a huge hole in the creation of a holistic security policy.
I am not suggesting today that any of the ideas that have been put forward or the amendments are necessarily wrong, and I am certainly not suggesting that they are badly motivated. They are not malevolent; they spring from a natural inclination to oversee government, particularly when government exercise powers that are abnormal. Sometimes, they will be based on first principles and sometimes you will ask where the logic to this is, as the noble Lord, Lord Butler, asked earlier. To that particular question I will tell him that there is no logic. It is a political decision taken for political reasons. It is the result of political discussions. It has been decided to concede in order to gain what is left. I do not expect the Minister to say that, but it is obvious to all of us.
At the end of the day, political decisions have to be made. All I want to do today is put in the minds of everyone who speaks, from every background, the experience in making decisions such as this of those of us who have had the privilege—and burden, in some ways—of being charged with the security of the country. It is not because we are Cromwellian in character; it is not because we have a blind spot for mission creep; it is not because Ministers on the Front Bench will not question the agencies—it is quite proper that they do so. It is because the first premise on which they should base the balance of justice and security is an understanding of the security element, as well as the details of the justice element and the justice process.
Lord Soley
My Lords, I think my noble friend misunderstands a key point of what we are saying. I agree almost absolutely with everything that he has said—and, indeed, we have discussed this on many occasions before. However, I want to bring the purpose here to his attention. The government document from the Ministry of Justice said that these powers are wanted so that changes can be made more quickly than by amending primary legislation. I know that Parliament and parliamentary control is important to him. However, if he had been Home Secretary, what would he have decided if I had come to him and said, “Look, you need to change this legislation. Ask for an affirmative order, which will take a month or two; try to amend it, which will take a couple of months; or have a quick Bill going through both Houses”? If he would have decided the latter, he is on my side.
Lord Reid of Cardowan
The noble Lord knows that I always listened and, for the most part, conceded when he made representations on these matters. I have no problem with what he suggested earlier. I was careful not to attack or to try to criticise any particular amendment. The great omission is not the quality or substance of the amendments put forward, but the fact that we have been debating this in a vacuum.
The noble Lord, Lord Pannick, said that there has to be a balance between justice and security. I completely accept that. It is never an easy balance. There have been times in our history where the security situation has been such that we have had to take abnormal measures to constrain or expedite the justice element of that. I accept that it is much more difficult to perceive that today because we do not have a war. However, there is undoubtedly a conflict of sorts, which is a threat to the people of this country. What if—and I hope to God it is an “if”—something happens which could have been prevented by the exchange of intelligence of which we were not in receipt because we had not maintained trust? I do not just mean the trust of the United States but of all our allies. The great tragedy that was avoided in August 2006 involved intelligence sharing not just between the United States and ourselves but on a much wider basis. Two and a half thousand British citizens were at risk in that single event.
All I ask is that noble Lords and colleagues bear that in mind, so that we do not approach this purely from the position of legalism or legal principles. These principles are extremely important; certainly, do not abandon oversight. However, recognise that lying behind the proposals brought by the Government is a motivation which I at least—having been there and seen it with one or two other noble Lords who are here today—judge more benevolently than some of the critics of the Government.
Lord Pannick
Does the noble Lord accept that most of the amendments debated so far have been resisted by the Government not on the basis that they would undermine national security but rather, as I understand it, because they are unnecessary safeguards?
Lord Reid of Cardowan
The Government must speak for themselves. I am not a member of the coalition—though, with every passing day, it looks as though they may want others to join in place of those who leave. The Government must phrase their own reaction to the noble Lord’s position. I would much rather that we were transparent, out at the front and talked about it. I have just noticed other people here who are much better versed in matters of intelligence than I am. However, in listening to the speeches in here and reading those that I did not hear, I noticed a dearth, if not a complete absence, of one element of the balance we are trying to find—that is, a description of the security circumstances and an explanation of why these proposals might be brought forward at this time. I hope that the Government will perhaps do a little more of that, because we could all learn with a little education.
Lord Lester of Herne Hill
Does the noble Lord accept that there is no monopoly of knowledge about national security? I served a Home Secretary long before the noble Lord and we fashioned the first anti-terrorist legislation in 1974. Would he accept that one of the worst things we can do is to fashion legislation in this country that gives colour to the idea that British justice is second-rate or discriminatory in balancing national security and liberty?
Lord Reid of Cardowan
On the noble Lord’s first point, I not only accept that but I recognised in my opening remarks that people here other than me had discharged that responsibility. I agree entirely with his second point. At heart, the struggle—not the only struggle but the major one—is a battle of values. It is an ideological battle. Certainly, it displays itself in acts of terrorism, bombs or death but at heart it is a clash of values. Therefore, everything we do has to be seen in that context. There is a propaganda weapon for those who oppose the very essence of our values if we conduct our affairs so that there is an obvious contradiction between the values we espouse and what we do. However, that has to sit alongside the fact that, on some occasions, these values have to be defended as a whole. That has meant that we have had to take abnormal measures on occasions. The key thing is accepting that they are abnormal and extraordinary, rather than trying to pretend that somehow they are just run of the mill or justifying them on the existing system. The second thing is to make the argument about why they are necessary. If one fails to make this argument, one will end up in the position indicated by the noble Lord, where what one does appears to contradict what one says.
Lord Thomas of Gresford
The noble Lord has not been able to be with us in our deliberations. However, does he appreciate that, thus far in the Bill, the Government have not suggested that there is any risk to security at all? Does he appreciate that the purpose of the provisions discussed until now concerns the fairness of trials? Security arises in what we are about to debate very shortly. Up to this point, security has not featured because it is not an issue on the provisions we have discussed.
Lord Reid of Cardowan
I thank the noble Lord for that remark. Again, I am not on the Front Bench so I am not making their arguments for them. I am making my argument. As far as the security situation is concerned, whatever is said by the Front Bench, for more than half of the past 10 years we have been either at “severe”—the second highest level—or “critical”, which is not only a likely but an imminent threat of terrorist attack. This demonstrates the fact that we are discussing not a normal security situation but a very difficult one—not least as we approach the Olympics.
Lord Wallace of Tankerness
My Lords, I thank all noble Lords who have tabled these amendments and who have taken part in this debate. The noble Lord, Lord Reid of Cardowan, has given a context to these deliberations. I think that he would agree with us—and I mention here the intervention of my noble friend Lord Lester—that justice or security is not a binary choice. This is a justice and security Bill, not a justice or security Bill. As we deliberate and go through these provisions, it is important that we seek to uphold the national security, which is a responsibility above all on the Executive, and also ensure that the values of justice—which is a cornerstone of what we believe in and what makes us as a nation—are upheld.
The comments of the noble Lord, Lord Reid, may also have some pertinence as we move to the next stage of the Bill, which deals with the Norwich Pharmacal jurisdiction. He pointed to the importance of trust and the consequences of breach of trust.
As an introductory comment, perhaps I may say to the noble Lord, Lord Pannick, that my noble friend and I will write to him about the point he raised about the last set of amendments. I do not think it would be appropriate, when dealing with these amendments, to rerun the arguments put forward for the previous group. However, before Report stage, we will write to noble Lords who took part in that debate.
Understandable concerns have been raised. In many Bills I have taken part in, quite proper discussion takes place about the use of secondary legislation, its appropriateness, the circumstances under which it should be used, and its actual nature. If Amendments 69A or 70 were to be accepted, as my noble friend Lord Hodgson has said, it would remove the order-making power entirely. The question posed by the amendments is this: why do we need the order-making power at all?
Perhaps I may set out why the Government arrived at the approach we have taken in the Bill with regard to the definition of “relevant civil proceedings”. In the Green Paper, the Government consulted on making closed material proceedings an option for any civil proceedings in which sensitive material was relevant. However, the firm steer from the consultation exercise was that the scope of the Bill should be narrowly focused. That was a point made by my noble friend Lord Marks and in the comments of my right honourable friend the Lord Chancellor. After careful consideration of the consultation responses, the Bill provides that closed material proceedings can be used only for hearings in the High Court, the Court of Appeal and the Court of Session. It is in these courts that the difficult cases have arisen, so the Government have defined relevant civil proceedings narrowly in the Bill.
If that is the case, why do we need an order-making power to extend the definition? As was indicated by the noble Lord, Lord Soley, when he quoted from the memorandum that was submitted to the Delegated Powers and Regulatory Reform Committee, the point is that the case for extending CMPs to another civil context may emerge in the future. Where there is a case for change, it is important that there is a mechanism that will allow CMPs to be used swiftly in relevant proceedings. Naturally, we may be asked if we have any particular case in mind. I reassure your Lordships that if there was an obvious example of a difficult area, we would be making the case for its inclusion in the definition of relevant civil proceedings today. But it is possible that difficulties may arise in areas wholly unexpected or unanticipated, and it would then be important that CMPs were available as a matter of some urgency. Noble Lords may be aware that Parliament has already legislated 14 times to provide CMPs in different contexts, and therefore it is not inconceivable that some new context that we cannot foresee today will arise in the future in which they will be necessary.
Perhaps I may say in response to the noble Baroness, Lady Turner of Camden, who asked about employment tribunals, that legislation is already in place with regard to closed material proceedings in such tribunals. Indeed, it was the subject matter of the deliberations of the Supreme Court in the case of Tariq, the judgment of which was reported either last year or earlier this year. The current review of employment tribunals by the Department for Business, Innovation and Skills does not have anything to do with closed material proceedings.
The crucial thing about the power is that it is subject to the affirmative procedure, which means that the exercise of the power would have to be debated and approved in both Houses before being made. Before gaining that approval, the case for change would have to be made to each House on the basis of evidence that is sufficient to convince both Houses. I cannot for a moment imagine that it would be given a clear ride. That is a safeguard and it means that rather than standing here and trying to persuade your Lordships that a broader definition of relevant civil proceedings is needed for the sake of flexibility, the Government will have to put their case at the time of seeking approval of an order.
As has been said, the order-making power has been the subject of scrutiny by both the Delegated Powers and Regulatory Reform Committee, of which the noble Lord, Lord Soley, and my noble friend Lord Marks are members, and the Constitution Committee. The Government appreciate the careful consideration that both committees have given the power. I note that neither committee recommended the removal of the power, but it is fair to note, and as was pointed out by the noble Lord, Lord Soley, and quoted by the noble Lord, Lord Butler, that the Delegated Powers and Regulatory Reform Committee had reservations about the scope of the power. However, it concluded tentatively but nevertheless clearly that it would not recommend that the delegation of powers is inappropriate.
No doubt members of the committee will know better, and I will come on to address the issue of coroners’ courts shortly, but paragraph 6 of its report indicated that one of the concerns was extending the use of this power to those courts.
Lord Soley
The key point is that instead of doing it with a delegated power, we do it with a fast-tracked Bill. I hope that the Minister will deal with that because I would point out to him that the information given by both the Ministry of Justice’s own department and the Cabinet Office suggest that it is necessary that it be done quickly. However, that is not in the notes to this Bill. It is almost as though they have not thought about it.
Lord Wallace of Tankerness
I certainly will come on to that. Both the Constitution Committee and the Delegated Powers and Regulatory Reform Committee raised means of proceeding as alternatives to the power. The Constitution Committee asked whether the super-affirmative procedure was more appropriate, similar to that set out in Part 1 of the Legislative and Regulatory Reform Act 2006. In particular, that procedure would enable parliamentary representations to be made about a draft instrument and for the Minister to make changes to the instrument in the light of those representations. The Government indicated in their response to the committee that they do not agree with that approach. The powers in Part 1 of the 2006 Act are wide-ranging. Under the order-making power in the Bill, there will be at the heart a simple question: should the CMP procedure under the Bill, then the Act, be available for a particular court or tribunal? The affirmative procedure allows for a straightforward yes or no answer.
As the noble Lord, Lord Soley, has indicated, the Delegated Powers and Regulatory Reform Committee asked what would be the advantage of the affirmative procedure over a short emergency Bill. Another Bill to address a narrow problem may well be unnecessary given that the detail of how CMPs should work will have been discussed during the passage of this Bill. Although such legislation might be passed quickly if the circumstances required it—it is always possible to bring forward emergency legislation—the affirmative procedure may also be exercised in urgent circumstances. While it is not for me to say what the agenda of the Constitution Committee would be, it would not seem to be beyond the wit of appropriate parliamentary committees to consider an affirmative order if one were brought forward.
On the whole, the Government consider that the affirmative procedure has the right mix of speed and accountability. However, in situations like this where people have put forward important points following deliberation in the various committees as to what the balance should be, we should reflect on them. The Government believe that they have struck the right balance, but there has been an important elaboration in the course of your Lordships’ debate of the understanding of what lay behind the committee’s considerations.
Lord Goldsmith
Before the noble and learned Lord moves on, can he say something about why the Government do not see advantages in the super-affirmative procedure which, as he has indicated, would allow at least some adjustments to be made in the event that an additional set of civil proceedings were added to the list which might not be covered by the existing legislation?
Lord Wallace of Tankerness
I sought to indicate why we do not agree with the approach of the Constitution Committee. We think that the powers set out in Part 1 of the Legislative and Regulatory Reform Act 2006, which lead to the super-affirmative procedure suggested by the noble and learned Lord, are not appropriate. If the procedures are in place, it should be a straightforward yes or no decision as to whether a particular tribunal or civil proceeding is added.
I want to come on to a point made by my noble friend Lord Lester. He suggested that there would be no opportunity to do anything different in a Bill. The provisions in the other subsections allow for some powers,
“to make supplementary, incidental, consequential, transitional, transitory or saving provision”,
in an order. If there was a particular feature—I will suggest in a moment what some of those features might be—it could be taken into account within the terms of the order.
One of the other concerns that has been expressed in the debate relates to the possible extension of CMPs to inquests. Following consideration, and particularly taking into account the responses to the consultation on the Green Paper, the Government decided not to cover inquests in the Bill. Both the Constitution Committee and the Delegated Powers Committee discussed whether the order-making power could be used to include inquests at the coroner’s courts, the Delegated Powers Committee considering that the power could be used in this way.
The Government’s view is that the order-making power could not be used in this way. This is because we believe inquests are sui generis inquisitorial proceedings. While they are clearly not criminal, I believe they are inquisitorial rather than civil proceedings. Unlike civil proceedings with parties who may seek to settle or withdraw at any stage, an inquest must be concluded in order to establish the reason for the death. An inquest is a limited form of public inquiry to determine who the deceased was and when, where and how the deceased came by his or her death. There are no parties, only properly interested persons who are entitled to examine witnesses.
We believe there would be necessity for primary legislation if this was to be extended to inquests and by extension to fatal accident inquiries in Scotland.
Lord Marks of Henley-on-Thames
I am sorry to interrupt my noble and learned friend but I am just confused as to how the Government can argue that a power which may be exercised to add or remove a court or tribunal in non-criminal proceedings—which by his own admission these are—cannot be said to extend to a coroner’s court. It was that problem that exercised the Delegated Powers Committee and we saw no reason for the conclusion for which my noble and learned friend is arguing.
Lord Wallace of Tankerness
We shall have to agree to differ. Considerable thought has been given to this and we believe that it would not be possible to extend the power here. I am always wary of putting “for avoidance of doubt” clauses into Bills, and I know parliamentary counsel also have anxiety about these things. If that helped, I would certainly be prepared to look at it to put that beyond doubt, although I do so with the caveat that by putting in such things, you have to watch you do not stir up more problems than the ones you are trying to resolve.
We do not believe that the order-making power here can be extended by this coalition Government or any future Government to inquests without primary legislation.
I would like to pick up on the points made by my noble friend Lady Berridge and the differences between civil proceedings, between parties and the inquisitorial nature of a coroner’s inquiry. The Government recognise that inquests have a unique role in our justice system. In inquests where intelligence evidence cannot be disclosed without risking national security and public safety, we will continue to use existing arrangements. In such circumstances, the Government can make a public interest immunity application to exclude the material. The coroner will exclude the material if he or she decides that the public interest in withholding the information outweighs the public interest in disclosing it. An inquest can also be converted into an inquiry under the Inquiries Act 2005. My noble friend made that point in regard to the inquest into the death of Azelle Rodney which could not proceed because neither the coroner nor the jury could see highly sensitive material. To allow all the material to be seen, the inquest was converted into an inquiry with terms of reference mirroring the purpose of the inquest.
With regard to the Mark Duggan case, it would be inappropriate for me to comment at this Dispatch Box on how the Inner North London and North London coroners propose to handle any sensitive material in their conduct of the inquest into the death of Mark Duggan. It is for the coroners concerned in these cases to decide the best course of action.
Finally, Amendments 70A and 70B would limit instead of remove the order-making power. Amendment 70A would omit the aspect of the power which would enable the adding or removal of a court or tribunal. We believe it is the key aspect of the power and so we could not accept it being limited in this way.
Amendment 70B would omit the aspect of the order-making power which enables orders to be made which amend or repeal any enactment, and I fully understand why Parliament is always wary of any such power. The provisions are for the situation where the definition of “relevant civil proceedings” is changed and certain supplementary or consequential changes are needed. An example of this is in subsection (4), and I hope that it meets the specific concerns raised by my noble friend Lord Hodgson. So, if a tribunal is added, Clauses 6 to 11 of the Bill may need to be adapted for use in relation to that tribunal. The power could be used to explain what “rules of court” mean for the tribunal because tribunals have “procedural rules” rather than “rules of court”. These sorts of differences would be reflected in the use of that power.
I hope I have been able to explain why the Government reached this position.
Baroness Williams of Crosby
Perhaps I may press my noble and learned friend one stage further. The material says that a court can be added or excluded as the case may be, and to a lay person saying that it does not apply to a coroner’s court sounds like a Red Queen in Alice in Wonderland announcing that what seems obvious is the opposite of what is obvious. Will my noble and learned friend consider either dropping paragraph (a) or making a particular reference to the exclusion of coroner’s courts so that those of us who are not deeply into legal language would be able to understand the Government’s intention?
Lord Wallace of Tankerness
I take the point made by my noble friend Lady Williams. I said I would be willing to look at words like:
“for the avoidance of doubt this does not include coroner’s courts”.
I caveated it because I am always wary of parliamentary draftsmen finding 10 reasons why that will mean 20 different things. In that spirit, I hope she will be reassured that not only do we not intend to include inquests, but we do not believe that the wording here does include inquests. However, I am prepared to look at that to see whether there is a wording which will put that beyond doubt and reassure those who think that there is no belt-and-braces position as things stand.
I have sought to give reassurance on these important issues, and particularly it is important that Parliament scrutinises the powers available to Government by secondary legislation, perhaps a fortiori in circumstances such as this. I will reflect on what has been said in the course of this Committee’s discussion.
Lord Beecham
My Lords, I refer first to the speech of my noble friend Lord Reid of Cardowan who had a long, distinguished political career crowned by his time as Home Secretary. He is perfectly right to remind us of the serious threats that might affect this country’s security and the change in the world in which we live. But as the noble Lord, Lord Thomas of Gresford, implied, what we are looking at in this part of the Bill is not an area which would open up this country to any particular threat of that kind. We are talking about closed material procedures in civil proceedings in which if there were to be a threat to security from the disclosure of documents, the Government can effectively pull the case. They do not have to disclose the documents. The cost of that will take another form but it is no cost to national security, so I hope the noble Lord will be comforted by that. He may have a more relevant point when we come to the next amendment.
My noble friend, on taking office as Home Secretary, famously described the Home Office as he then found it as “not fit for purpose”. The amendments that we are discussing this afternoon are intended to make, so far as possible, this part of the Bill fit for purpose because—as many of your Lordships have indicated—currently that is not the case.
That is clearly the view of the Delegated Powers Committee, although it does not go so far as to propose a particular amendment. I remind the Minister that the Committee refers to,
“the unconstrained nature and extent of the provision that might be made under them by this or any future government”,
under the proposals in the Bill as they now stand. That is a pretty wide description of the scope that the Delegated Powers Committee was considering and, as I said in moving the amendment, it then invited the House to consider whether there should be amendments to restrict that scope or include any safeguards. The noble and learned Lord was saying the answer to that should be no so far as your Lordships’ House is concerned.
Having listened to the closing remarks of this speech, I hope he will think further about that matter, because it does not seem to leave us in a very satisfactory position. The general view of those who have spoken would be to prefer primary legislation, however expedited, rather than secondary legislation—which effectively cannot be amended—to add to the scope of the civil proceedings referred to in the Bill. I beg leave to withdraw the amendment.
Lord Lester of Herne Hill
“( ) Section (Statutory PII for national security sensitive material) applies in disclosure proceedings to which this section applies.”
Lord Lester of Herne Hill
My Lords, in moving the amendment, I have to speak to the other 14 amendments which have been grouped, which are all to do with the Norwich Pharmacal principle. That does not include Amendments 76 or 80. The amendments are designed to include the scheme created by the Bill for what is known as Norwich Pharmacal applications in national security cases. A Norwich Pharmacal application is made for disclosure of documents or information where five conditions are met. These are as follows. First, the claimant has to show that he has an arguable case in the main litigation. Secondly, the defendant has to be involved in or mixed up—whether innocently or otherwise—with the underlying claim. Thirdly, the Norwich Pharmacal jurisdiction is the remedy of last resort, so the claimant must show that he or she has no other way to obtain information. Fourthly, the court will order only such limited disclosure as is shown to be necessary. Fifthly and ultimately, the court must be satisfied, having taken into account each of those factors that the information should be disclosed in the public interest.
The Norwich Pharmacal procedure is a common law procedure devised by the great Scottish Law Lords, Lord Reid and Lord Kilbrandon, with three English Members of the House of Lords. I mentioned that because one of the Government’s less good ideas is that it does not apply in Scotland. I have little doubt that if a case arose, it would apply in Scotland. I placed in the Library my research into Norwich Pharmacal worldwide, and it is applied throughout the common law world and, in a slightly different form, in the United States.
This will test whether I would be any good as a diplomat. The United States is a key ally. It is essential that our security services and theirs should be able to co-operate fully on the basis of mutual trust and understanding. I entirely understand, as did the Joint Committee on Human Rights, the need to give full reassurance to our allies across the Atlantic that the British justice system fully protects national security in all relevant contexts.
Lord Pannick
My Lords, I have added my name to amendments in this group. We are dealing here with the power of the courts to order disclosure of evidence to individuals who have a properly arguable case that the representatives of this country have been involved in wrongdoing. The powerful memorandum from the 50 special advocates pointed out that these cases may involve the gravest of allegations, concerning torture or death abroad in which the authorities of this country are said to be involved. In that context, I am sure that this Committee will want to consider very carefully indeed whether the restrictions on disclosure of information are necessary and whether there are proper safeguards.
There are three linked defects in Clause 13, which these amendments seek to address. The first defect is that the concept of “sensitive information” is very broadly defined indeed. The second defect is that only in relation to some of this sensitive information does the judge have any power at all to decide whether disclosure would in fact damage the public interest. The Minister will clarify the matter in due course, but as I understand the Bill the judge’s power under Clause 14 to review whether there is damage to the public interest applies only in Clause 13(3)(e) cases and not to the other categories in Clause 13(3)—that is all of the intelligence services information. The third defect is that the judge has no power at all in any case to balance the harm to the public interest by disclosure against the detriment to the individual, and indeed the detriment to the public interest, by concealment of this information, which may show the involvement of the authorities of this country in very serious wrongdoing.
Baroness Williams of Crosby
My Lords, the noble Lord, Lord Pannick, recited directly from the Constitution Committee in its very excellent finding about the width of the phrase “sensitive material”. As usual, we owe a great deal to the common sense of the Constitution Committee in drawing our attention to this kind of matter. I fully appreciate the argument for narrowing down and more closely defining the phrase so that it is not as wide and vague as it is in the Bill. However, before we conclude our discussion on this group of amendments, I also want to refer to one to which no noble Lord on the committee has so far referred at all. Amendment 77A points to the requirement for disclosure on matters that are directly related to international law, to the work of the human rights conventions and to issues concerning, for example, the various United Nations conventions to which this country is party.
The other amendment relating directly to this issue is Amendment 73A. There is a great deal to be said for that but let me say a word or two, because my point relates very directly to the speech of the noble Lord, Lord Reid, which almost completely neglected the significance of international law, international conventions and international agreements under the United Nations. I believe we have hardly discussed this element in our consideration of this Bill. We would be most foolish to continue to neglect that element.
Let me give one personal piece of evidence. For a substantial part of my life I have been involved in issues concerning the danger of nuclear weapons, which of course threaten not only our security but that of a much wider part of the world. How is it that we have come to deal with this? Not entirely successfully but fundamentally, international law and international convention have so far managed to avoid a nuclear war anywhere in the world over a period that is now 60 years long. In other words, security is achieved not just by taking very strong steps toward suppressing those who threaten it but by building up an international consensus that supports the concept of limitations on certain kinds of behaviour.
I regret that the noble Lord, Lord Reid, is not in his place as I would have liked to have taken him on directly on this. He referred, for example, to the danger of chemical weapons, which are now alleged to be in Syria. One of the most successful international conventions up to now is that regarding chemical weapons. It has been almost completely obeyed, with some rare exceptions, of which Saddam Hussein in Iraq might have been just one. Generally speaking, chemical weapons have not been used in warfare, not even in civil war—the most awful kind of war—although that may no longer be true in Syria; we do not yet know. I say very strongly that the point about Amendment 77A is to build in an additional exclusion to the suppression of information where it directly affects our commitment and our signature to international conventions and international rights, because they are a critical part of what it is to have both justice and security.
I will go one step further. It is crucial that we recognise that there is, outside the whole of the issues that we are considering here, a distinct obligation on the United Kingdom, which has been in the forefront, largely along with its fellow members of the European Union, in pressing for international conventions and international law. It has, for example, taken a leading part in the non-proliferation treaty on nuclear weapons, on chemical and biological weapons and, on an issue dear to the heart of my noble friend Lord Lester, establishing human rights and the many discussions that we have had on the European Convention on Human Rights, which needs to be protected by national as well as international law. Therefore, when we look at Clause 13, and particularly Clauses 13 and 14 together, we need to be clear that we must protect these international rights and international conventions, and that we cannot do so if a large part of the information relevant to them is simply suppressed.
Amendment 73A lists a whole set of international conventions on genocide, abuse, torture and so forth that should be taken into account and respected in the way the Bill is drawn up, interpreted and—not least—drafted. It is crucial that we have an amendment of this kind to the Bill, which shows the precious nature and status of these elements in international law; otherwise, we are undermining our own signatures and commitment to these pieces of legislation.
Clearly, there is a particular problem. So far our American ally has not been carried by, for example, the idea of the International Criminal Court. It has not been carried, so far, by the acceptance of some version of the European Convention on Human Rights. That means the United Kingdom is in rather a special place. It shares with its great ally, the United States, a commitment to human liberty, the rule of law, and to national law, being close to one another in similar systems. However, it does not share our commitment to international law, in particular along the lines that I have addressed in my remarks.
We have to balance two things that are not easy to balance. We have a commitment to the concept of growing international law, particularly the International Criminal Court, which has become central in insisting that there are such things as crimes against humanity and which must be upheld and respected as a fundamental part of what we mean by international security, if not always national security. Our duty is essentially to protect that element of our commitment and our belief in international law despite the fact that many of our allies do not wholly share it. I mention the United States because of its rich tradition of national law. I could, sadly, mention a number of our other allies which have virtually no commitment to human rights internationally at all.
I am not clear how we handle the issue concerning international relations in Clause 13(5) with no distinction at all between those who share—to use the phrase of the noble Lord, Lord Reid—“our values” and those who simply do not, and have not subscribed to, for example, conventions on torture or degrading and inhumane treatment. At this point, I merely wish to push for consideration of Amendments 77A, 73A and other amendments that address the issue of obedience and respect for international law. If we are going to continue to discuss this whole group of amendments, we really have to take that major elephant in the room into consideration or we will sell ourselves and our world very short.
Lord Thomas of Gresford
My Lords, Amendment 76 is in my name and that of my noble friend Lady Hamwee. Amendment 76 is very much in the same terms as Amendment 75 and I accept everything that has been said by my noble friend Lord Lester, the noble Lord, Lord Pannick, and the noble Baroness, Lady Williams of Crosby. Therefore, I will restrict my remarks to a question. What is the purpose or justification for an absolute bar in Norwich Pharmacal proceedings against disclosure of material in the possession of the security services? As I understand it, the certification procedures for the Secretary of State apply to all other material in anybody else’s hands.
The Secretary of State has to take a decision in which he considers the public interest or, as my noble friend Lord Lester suggests, whether there is a breach of the control principle, which is a rather narrower test. His decision is subject to review on judicial review grounds in Section 6 proceedings. What is it about the security services that enables them to escape the consideration of the Secretary of State, the public interest and Section 6 proceedings on judicial review grounds? I see no reason for singling out the security services from such control.
Baroness Berridge
My Lords, Amendments 71 to 75, 77 to 79 and 81 to 87 all have my name on them. As the detail of those amendments has already been outlined by my noble friend Lord Lester and the noble Lord, Lord Pannick, I will follow the noble Baroness, Lady Williams, and focus on the core purpose of Amendments 85, 73A and 77A, which is to introduce limited grounds for the disclosure of information received in confidence by the intelligence services and amend what would otherwise be a complete ban on disclosure under Clause 13.
These amendments are required, as David Anderson QC pointed out to the Joint Committee on Human Rights in his evidence, when he said that,
“you are not going to get away with a blanket exclusion of all evidence in the hands of the security service, or even all evidence in the hands of the Government, as they suggest at one point”—
he means in the context of the Green Paper.
Although the disclosure jurisdiction that we deal with today began in the intellectual property field, it is completely by accident that the principles behind the jurisdiction were first applied there. On considering these amendments, I reread the judgment of the noble Lord, Lord Reid, in the Norwich Pharmacal case. It is clear that the jurisdiction is based on sound principle. It is important to consider that principle as it goes to the heart of why these amendments are required.
It is best understood by a threefold division of cases—and I would term myself a Championship not a Premier League lawyer here. First, there are cases where the person, usually the UK Government, is directly responsible for the wrongdoing and a civil case is brought directly against them as the defendant. Clause 13 leaves those actions completely unaffected. Secondly, there are cases where the person in question is a bystander, spectator or mere witness to the wrongdoing. In those circumstances, no action can be brought against that person, they are not even complicit and Norwich Pharmacal will fail.
However, there is a small, narrow group of situations—which are, as the noble Lord, Lord Pannick, has outlined, even narrower after the case of Omar—where, although not directly responsible for the wrong, there is sufficient connection to the wrongdoing that a requirement attaches to you to disclose information or material in your possession that helps the victim of the wrongdoing to seek redress; that is, more often than not, court proceedings. This obligation is based on the limited culpability that attaches as one is mixed up, even innocently, in the wrongdoing. I would term it a bit like moral velcro. Being mixed up in wrongdoing sticks you with certain limited responsibilities.
The kind of mixing up by the UK Government, in cases such as that of Binyam Mohamed, is questioning a man after you should have, at the very least, been aware that he had been tortured. When I read of the injuries to Binyam Mohamed it was rather disturbing. According to the findings in that case, the UK took some of the fruits of that torture by questioning him, although it is important to emphasise clearly that the UK Government were in no way involved in that torture.
I accept, of course, the evidence of the Joint Committee on Human Rights that the intelligence services in the United States, for example, are disclosing less intelligence to the United Kingdom because of the fact, or perception, that the information could be disclosed through our courts. But the first caveat is the Government’s own Green Paper, which outlines that there is no suggestion that key threat-to-life intelligence would not be shared. The second caveat is whether this fact or perception is justified. As the UK courts have never ordered the disclosure of such material, and any Norwich Pharmacal application that could be made subsequent to the case of Omar would be followed by a PII application as well, the risk is minimal. Allowing limited Norwich Pharmacal applications as outlined in these amendments would be a proportionate response to that minimal risk.
It is also interesting to note the change of position by the United States concerning whether the control principle was breached in the case of Binyam Mohamed, as outlined by the ISC report for 2009-10, in which the United States does not seem to think that there has been a breach of the control principle. In the 2010-11 report, the United States seemed to think that there had been one. It is interesting to note that it is the same time period which saw the mass of WikiLeaks disclosures. I would be saddened if the mistaken perception of our judicial processes or an understandable oversensitivity to the control of its own intelligence material could lead to a change in our law to exclude this jurisdiction from human rights cases, especially when, unfortunately, the alleged wrongdoer may also be the United States.
I would expect that the mere receipt of intelligence information that discloses wrongdoing, even information obtained by torture, is being a witness. Can my noble friend the Minister explore whether the requirement that in national security cases a greater culpability of connection to the wrongdoing other than being innocently mixed up would satisfy the concerns of the United States? If complicity by the United Kingdom is needed, cases where Norwich Pharmacal would apply should be very rare.
In essence, the argument from the Government is that our intelligence services lack certain information and therefore our national security could be at greater risk. I expect the Government to oppose the amendments, especially as it is the first duty of the Government to protect their citizens. I agree that it is the first duty, but it is not the first principle—otherwise protecting national security could justify torture, and it is crystal clear from the Reith Lecture from the noble Baroness, Lady Manningham-Buller, that the UK does not. Protecting national security and even going to war must still be conducted within certain ethical and moral constraints, which include that if you get mixed up in the wrongdoing you may—subject to five stringent tests in the Norwich Pharmacal case, and following a PII application—have to disclose material to help the victim defend himself against a capital charge. I fully accept that the United Kingdom is the junior partner in this situation, and is probably more reliant on intelligence material from the United States than vice versa. But your ethical and moral principles are often tested—or perhaps only tested—when you are the less powerful person in the situation, not when you are in command.
I end with a very simplistic point. The remedy may not even need to be legislation. If the UK does not get mixed up in, as opposed to merely receiving information about, other countries’ wrongdoing and, a fortiori, if the United States ceased this kind of wrongdoing, it can rest assured that the veil of the control principle cannot be pierced by Norwich Pharmacal. The remedy to some extent lies in the hands of the United States, and it is regrettable that President Obama did not fulfil his election promise to close Guantanamo Bay, which might have provided a line in the sand in this group of cases. I am pleased to live in a place with the high ethical constraints of Norwich Pharmacal and that we have a mechanism to release such information in situations that could literally save a man from the electric chair. The door to such information should be hard to open, but not absolutely barred. I support this group of amendments.
Lord Falconer of Thoroton
My Lords, it has been a very powerful debate. I am particularly grateful to the noble Lords, Lord Lester and Lord Pannick, for maybe seeing a way through a very difficult issue. Both issues that the Bill raises are difficult, but this is the more difficult. The first one, about fairness and making sure that one sticks to fair procedures, necessarily involved a solution whereby the courts made the balance. Ultimately, if there was damage to national security, the intelligence services would be able, if they wanted, to withdraw the case and there would be no damage to national security. This is a much more difficult one because the intelligence services do not have the option of withdrawing from the case.
As the noble Baroness, Lady Berridge, and the noble Lord, Lord Lester, explained, in a Norwich Pharmacal application, when no proceedings are afoot you go to court and say that either the British Government or the intelligence services have either committed wrongs or got mixed up in wrongdoing, and you ask them to disclose documents that show their involvement, not necessarily with the intention of suing the British Government but because you may wish to sue someone else. The courts have dealt with that by saying, “Okay, we’ll consider these Norwich Pharmacals”. If it is concluded that the position is made out whereby one would, prima facie, make a Norwich Pharmacal, the courts then say to the Government, “Okay, we are going to make a Norwich Pharmacal subject to the Government making a PII application”. Then the courts have to balance whether national security outweighs the interests of the individual. I do not know how that balance is to be struck, because it is not easy to strike it as it would be in ordinary litigation. Indeed, except in two cases, it has never been struck. It is not open to the Government to say, “Okay, we’re going off the field at this point”. If the court makes the order and overrides the public interest, it is disclosed.
That process has unquestionably caused some of our allies concern. The effect of the Binyam Mohamed case was that, even though two out of the three judges said that the control principle had not been broken because the intelligence material was no longer secret—I refer to the principle that if one country gives another country intelligence, the other country cannot use that intelligence without the first country’s consent—the United States Government now give us less information than they did previously. That is what Mr David Anderson said in his supplemental memorandum for the Joint Committee, which expressly said that it did not know whether it was right or wrong and that all it had to go on was what Mr Anderson said. However, he was clear that the effect of the court making it clear that a balance had to be struck, as unquestionably is the case, was that people did not feel so secure about the intelligence that they gave and so gave less. However, as the noble Baroness, Lady Berridge, and other noble Lords have said, they will give us intelligence when there is an immediate threat to life.
The effect of the current position is that we get less intelligence material from the United States of America and maybe our other allies because they are worried that the English courts might order their disclosure. The Joint Committee on Human Rights took the view in the light of that—this is my reading of it—that the minimum should be done to give the reassurance required to get the maximum protection in relation to intelligence. If you took that approach, is what the Bill proposes the minimum that can be done to provide protection?
The noble Baroness, Lady Berridge, described a typical Norwich Pharmacal stripped of any complication about intelligence. It would involve me going to have a cup of tea in a cafeteria in Thames House or Vauxhall Cross and me slipping on the floor, breaking my leg and saying that I would sue whoever owns the building, which is the intelligence services—but they say, “Actually, an independent contractor cleans the floor and it is absolutely their fault that you slipped”.
I could bring a Norwich Pharmacal order if the intelligence services did not tell me who the contractor was in order to bring my action for a broken leg because it had inadvertently got mixed up in wrongdoing. The effect of Clause 13(3) of the current Bill is that, because the information was held by an intelligence service, it would not be able to say, “No, you cannot have the information about who cleans the floor”. It would be the same if I were run over by a van carrying papers to the FCO and I wanted the maintenance records held by someone else; it could say no.
It is plain that the Government do not intend to cover those sorts of cases. What they do intend to cover are the cases where there is a genuine threat to the control principle and you cannot deal with it because the courts are absolutely right in saying that if the courts are going to make a decision they must have a balance.
Lord Lester of Herne Hill
My Lords, the noble and learned Lord has expressed his opinion so clearly that I find it very difficult to ask him a question. The burden of what he is saying is that he thinks that the solution is an absolute ouster clause—something that makes the Minister’s certificate conclusive in all circumstances. My understanding is that that is not the position under the law of the United States. Even with its State Secrets Protection Act and its Patriot Act, it does not go that far.
The evidence in the Binyam Mohamed case that was given by Mr Morton Halperin was that intelligence services in both countries recognised that there are some rule-of-law exceptions. What troubles me is that there are cases now pending in the European Court of Human Rights with names such as al-Nashiri, I think, where the court is requiring States parties to disclose information where there are allegations of rendition and torture. Will the noble and learned Lord at least accept that the Bill could limit the power of the Secretary of State to certify so as to exclude the grossest cases of human rights violations so that it is not completely absent, that being an obligation on the Secretary of State that might or might not be traditionally reviewable?
Lord Falconer of Thoroton
There are two points. First, I am seeking to say what the dilemma is for the House. It is necessary for the House first to come to a conclusion about whether there is a difficulty in relation to the flow of information. If it comes to the same conclusion as the Joint Committee on Human Rights came to, based on Mr Anderson’s evidence, the question is: what is the right solution? I think that everyone around the House agrees that it should be proportionate.
On the specific questions, I am not in favour of a complete ouster and, as I understand it, neither are the Government, because they are saying that any certificate given by the Secretary of State is subject to judicial review, so it would not be an ouster of a sort that other Ministers tried on previous occasions. This would leave in the ability to say, “Could a reasonable Minister have given such a certificate?”. There are two bits to that. The approach of the noble Baroness, Lady Williams, is to cut out of the approach that is being suggested anything that might make an allegation of human rights abuse. I can see the attraction of that, but the consequence is probably that Norwich Pharmacal is left untouched, and you have the problem of less intelligence coming. I do not want to sound too dramatic but the indications from the intelligence services, which I do not question in any way, tend to be that that might have a significant effect on the Executive’s ability to protect more individuals. I can see the former head of one of the intelligence services behind me correcting me on this, but it is quite a significant part of the ability to protect ourselves.
If one took the route of the noble Baroness, Lady Williams—if I may call it that—that would avoid giving any protection at all. The route of the noble Lord, Lord Lester, is, “Take the approach that is being suggested. Have the ability to certify. Limit it to the control principle. Cut out everything else. Make it judicially reviewable but accept that there are occasions when there will be gross breaches”. I think he is suggesting in his Amendment 85 that it is something more than a judicial review balance, something else apart from judicial review, because it says in effect that the principles of judicial review will apply to considering where the public interest lies, including considering whether there have been gross breaches of international law. That is not quite the wording but that is what it amounts to. That still seems to me like judicial review, so it is for the Minister to decide whether there is a basis for concluding that it might affect the control principle. If he comes to that conclusion, the certificate is not attackable. That appears to be what is being proposed.
Baroness Manningham-Buller
My Lords, this is obviously one of the trickiest bits of the Bill and I am very grateful for the analysis of the noble and learned Lord, Lord Falconer, because he has forced the Committee to focus on some of the key issues. This was not a problem when I was director-general. Norwich Pharmacal was not being used in national security cases, so it is a relatively new phenomenon.
If the Committee will allow me, I should like to make a slight deviation on the question of public interest. I accept that there have been occasions when Governments of all persuasions have used secret certification to label things secret when they have not been secret at all. I acknowledge that that has happened. However, I hope that the Committee will really accept—some speakers appear not to have done so—that there are real and serious secrets that, if exposed, will cause substantial risk to the public interest. I know that I keep saying that and I hope that noble Lords will forgive me if I repeat it.
The noble Lord, Lord Reid of Cardowan, made a speech about the threat. I shall not go into that because I retired five years ago and I think—in fact, I know—that the nature of the threat has changed. However, the practicality of intelligence work is that you have to work with a great many other services. If he were in his place, I would contradict the noble Lord, Lord Reid, saying that you trust them all, because of course you do not. In some cases, you are dealing with countries with very different standards of law and different attitudes to human rights and so on. On the other hand, as I said in my Reith lecture, you cannot just talk to the Swiss, however nice that would be. We are facing a global threat. We need to talk to the parts of the world that have an understanding of and familiarity with that threat, and the security and intelligence community does so with caution and care. It will not always get it right but it is tuned into the problems.
The reality is that we do not deal just with the United States. The noble Baroness, Lady Berridge, is right that we are the net receiver of intelligence from the United States—naturally enough, as it spends squillions on its intelligence community and it is very much bigger. However, we also deal with people around the world, including our European allies, with whom intelligence is exchanged extensively every day of the week. We deal with people in the Middle East and the Far East and all around the world. Therefore, we have a difficulty because we will not always know where the intelligence that we are given is derived from and we immediately run into the issue of how it has been obtained. Questions will not resolve that—you will not get the answers. If we have a reduction in intelligence, we will begin to lose insights, and according to David Anderson that is already happening.
It is no consolation to me at all to be told that the Americans will still give us life-saving intelligence. How will one know that it is life-saving? The nature of intelligence work is putting together information from perhaps five or six different countries and 20 different organisations—little bits and pieces of a jigsaw that, together, might save lives. If something tells us, “This is going to happen tomorrow, so you can do something about it”, that is fine, but intelligence is very rarely obviously life-saving when it is first received. Therefore, if that intelligence is reduced or rationed for reasons that, if the noble Lord, Lord Lester, is right, may be mistaken in some cases, that will be a very serious problem for the United Kingdom.
I should also like to point out an irony here. Some of these problems might not have arisen if we had had a closed material procedure, which we talked about on an earlier part of the Bill, at an earlier stage. Putting much more material into the court—albeit through the, as I absolutely accept, not entirely satisfactory arrangement of CMPs—means that there is a chance for HMG to defend themselves and for the claims of a claimant to be scrutinised and judged by an independent judge. I suggest that not being able to defend themselves has been very damaging for the Government and for the intelligence and security community. Anecdotal allegations have assumed the status of facts. Some have been, and are being, investigated as crimes, and obviously it would be inappropriate for me to mention those in any detail on this occasion. However, others are left in limbo, unresolved and under damaging clouds of accusation. Therefore, if in future we can resolve those, that will be very helpful. If we can reach a solution to the difficulties of Norwich Pharmacal that protects other people’s intelligence from this sort of exposure, we will still be in business. If we cannot protect it, it will not just be the Americans who reduce the flow of intelligence, as David Anderson described in his evidence, but many other people as well.
Lord Falconer of Thoroton
My Lords, the noble Baroness, Lady Manningham-Buller, has made a very powerful intervention—if that is what it was—on my speech. I just want to summarise where I had got to and finish my speech. I think that the issues for the Committee are as follows. First, is the Committee satisfied that there would be a significant loss of intelligence? I found the speech of the noble Baroness, Lady Manningham-Buller, very powerful in that respect. Secondly, if there were a significant loss of intelligence, what would the right course be? In my respectful submission, the right course would be to do the minimum required to protect the intelligence. It may well be that the minimum is the certification process. However, a question arises from that. The noble Baroness said that there are real secrets and I accept that. The real secrets may not only come from somebody else; they may be ones that we find ourselves. Finally, do not ask the courts to make these decisions. By all means subject them to judicial review but ultimately let the responsibility rest where it rests, which is with the Secretary of State, who should certify on the advice of the intelligence services.
Lord Butler of Brockwell
My Lords, I sense that it would be convenient for the Committee if we finished this debate before the dinner hour, so I shall confine myself to just two or three sentences. I think that the noble and learned Lord, Lord Falconer, has made all the points that I want to make, as has my noble friend Lady Manningham-Buller.
I am one of your Lordships’ representatives on the Intelligence and Security Committee. We visited the United States and our experience would endorse what Mr David Anderson said—that the flow of intelligence from the United States is being limited. I do not want to exaggerate this but the point is that the trust of the US has been weakened and we need to restore that trust. It matters not that the grounds for the breaking of that trust may not be justified. It has been diminished and, unless we can respect the control principle completely and unless other countries believe that information that they give to us will be protected in all circumstances, that trust cannot be restored. So I absolutely agree with the noble and learned Lord. We do not want to give the courts let-outs and we do not want to have a balance; if we have any exceptions, we will not be completely trusted. The responsibility must rest on the Secretary of State and only if that happens can other countries be assured that their confidences are safe with us.
Lord Wallace of Tankerness
My Lords, I thank all noble Lords who have contributed to this debate. Initially, my noble friend Lord Lester set up the framework of what a Norwich Pharmacal order is like and how it is sought. I am particularly grateful to the noble and learned Lord, Lord Falconer of Thoroton, for very clearly indicating some of the consequences of a Norwich Pharmacal order being granted, unlike what we were debating earlier in terms of civil proceedings in an action for damages where it is always open to the Government to settle or to abandon a case or a defence, rather than put information into the public domain. In this case, we are dealing with a court order requiring disclosure.
This is a difficult issue and one to which we have given considerable thought. The aim of a Norwich Pharmacal application is to force a third party who is mixed up in the suspected wrongdoing of another to disclose information that the claimant needs. In the case of sensitive information, this has usually been for another set of legal proceedings elsewhere, often overseas. It is an equitable remedy developed, as has been said, in the intellectual property sphere. However, since 2008 there have been no fewer than nine attempts to use this jurisdiction in relation to disclosure of sensitive material, such as secret intelligence, which either belongs to the United Kingdom Government or which our allies have shared with us.
As has been said, the Government do not have an option to withdraw from or seek to settle these proceedings. If a judge orders disclosure and a PII claim is unsuccessful in relation to the material, there is no option other than to release the sensitive material. We have had experience of the damage done to our interests of national security—it has been referred to in more than one contribution to this debate—in the dramatic effect of the Binyam Mohamed case on our intelligence-sharing relationship with the United States.
My noble friend Lord Lester and the noble Lord, Lord Pannick, said—it has been said in a number of discussions around this issue—that no national security information was disclosed in the Binyam Mohamed case; it had already been put into the public domain in the United States. The real concern arises out of the Court of Appeal ordering that seven paragraphs which had been redacted from the Divisional Court’s judgment and which contained a summary of US intelligence reporting should be restored to the judgment despite the existence of a PII certificate from the Foreign Secretary. A critical factor in the Court of Appeal’s reasoning was that a court in the United States had made findings of fact directly relevant to the content of that reporting.
The judge in the United States case did not put the contents, or a summary thereof, of the United States intelligence into the public domain; he made findings of fact based on allegations about Binyam Mohamed’s treatment made in another case that were not challenged by the US Government. Crucially, knowledge of the content of the United States intelligence reporting was not in the public domain until the publication of the redacted paragraphs following the order of the UK Court of Appeal. It is the means by which the UK had had the information that was the sensitive part and we believe that what has happened since, as reflected by a number of contributions to this debate, not least the contribution of the noble Lord, Lord Butler of Brockwell, has had a real effect on the flow of information.
The noble Baroness, Lady Manningham-Buller, made the point that, although very obviously any immediate life-threatening information in the hands of the United States intelligence services would be handed to us, very rarely does that happen. Obviously, if there was direct information about a possible terrorist attack tomorrow there is no doubt that they would share it with us, but as I understand the nature of the intelligence process, it may be one part of a jigsaw puzzle that does not necessarily mean anything to the United States intelligence people who would normally share it with us, but it might be a crucial part of the jigsaw puzzle for the United Kingdom intelligence services, because it might allow a picture to be made that was not possible before. It is the loss of that kind of material that would spark concern.
The Government have received clear signals that, if we are unable to safeguard material shared by foreign partners, we can expect the depth and breadth of sensitive material shared with us to reduce significantly. Each time a claim is made, our partners must confront the possibility of their secrets being disclosed, even if the case never reaches the point where a court orders disclosure. It is that concern that we seek to address.
Obviously, I recognise that efforts that have been made in framing these amendments to deal with the very difficult issues that we are grappling with. My noble friends Lord Lester and Lord Hodgson have tabled amendments that would restrict the clauses relating to Norwich Pharmacal relief to control principle material. By that we mean the important concept that in intelligence exchanges it is essential that the originator of the material remains in control of its handling and dissemination. My noble friends have rightly observed that, in explaining the Bill, the Government have highlighted the particular difficulty where individuals seek disclosure of material covered by the control principle, but the case for reform goes wider than that. This was acknowledged in the closing comments of the noble and learned Lord, Lord Falconer, and I think that I made reference to it on Second Reading. We must also protect intelligence gathered and generated by our own intelligence services as well. The lives and safety of intelligence service staff, as well as the safety of their sources and the effectiveness of the techniques that they use to gather information, could be jeopardised if information is disclosed. Preventing the disclosure of sensitive material produced through the capabilities of our own intelligence services is as important, I submit, to our national interest as protecting material that has been shared by our allies.
The intelligence services have a legal obligation to protect the safety of sources, including, where applicable, the duty under Article 2 of the European Convention on Human Rights. The secrecy of operations and investigations and the limit or the extent of the intelligence services’ coverage and capability are all of crucial importance and, if they were compromised, it would be harder to prevent terrorist attacks and protect public safety. Limiting the protection afforded by Clause 13 to control principle material would diminish the Government’s ability to protect domestically generated intelligence. We believe that this could have severe impacts on the direct activities of our intelligence services as well as on intelligence-sharing relationships.
On a practical level, limiting the definition to control principle material would be challenging. It is often difficult or unfeasible to separate control principle material from domestic material. For example, there may be correspondence between the intelligence services commenting on control principle material, or assessments based on a mix of domestic and foreign material, which it would be difficult to distinguish between. There are therefore inherent difficulties in identifying what qualifies as control principle material. As has been mentioned in the debate, Mr David Anderson QC discussed these practical difficulties in his recent evidence to the Joint Committee on Human Rights and the control principle itself is part of the broader principle that intelligence relationships should remain confidential.
The amendment in the name of my noble friend Lord Thomas of Gresford would remove the absolute exemption for intelligence service material and rely instead on a certificate-based process for sensitive material whose disclosure would be damaging to the interests of national security or international relations. In a commendably concise intervention, he asked what the justification for the absolute bar is. Unlike in other parts of government, the work of the intelligence services is inevitably covert and secret. We have heard arguments that there may well be cases that would fall under the exemption but where the material sought is not sensitive. The simple fact is that material from the intelligence services sought in Norwich Pharmacal applications is, by its nature, security-sensitive and its disclosure would damage the public interest in safeguarding national security. Applicants do not seek open-source information or other unclassified material from the intelligence services.
I note the point made by the noble and learned Lord, Lord Falconer, about the hypothetical case where he slips. The obvious thing to do there would be to sue the agency, which is the occupier. If it wished to bring in a third party, the contractors, it could do so and all the normal processes would flow from that. All the cases that have arisen under this have been dealing with applications in respect of very sensitive materials.
Lord Thomas of Gresford
My Lords, may I ask a succinct question? The Minister has justified the absolute ban in relation to the security services and has encouraged claimants to sue the British Government, as opposed to suing a foreign Government and making a Norwich Pharmacal application. If the claimant were to sue the British Government, would material in the hands of the security services which had been obtained through a friendly ally be disclosable in Section 6 proceedings?
Lord Wallace of Tankerness
My Lords, I think this is the point. If the claimant were to sue the British Government, if the allegation was that the British Government had been directly involved in wrongdoing—although there has been no such suggestion; I think that would get pretty short shrift—we would come back to what we have said with regard to this whole debate on Section 6 proceedings. We would wish as much information to be before the court as possible. The crucial difference between these proceedings and the proceedings in Norwich Pharmacal, as the noble and learned Lord, Lord Falconer, explained well, is that under civil damages claims, if the information should come out or the court does not allow the material to remain closed, it is still open to the Government to withdraw from the case or to settle the case. The crucial difference between that and Norwich Pharmacal is that if PII is not successful, then there is no alternative but to disclose.
Lord Thomas of Gresford
Is it right that the court would see that material? Would it see the material from a friendly foreign power that was absolutely barred from disclosure in the Norwich Pharmacal proceedings?
Lord Wallace of Tankerness
Yes, the court would see it. If I have got that wrong, I will certainly say so; but I think that that is the whole point of having closed material proceedings. The material can be made available to the court so that the whole picture can be obtained. The Secretary of State retains the option not to put the material into the public domain, although consequences may flow from that.
Lord Lester of Herne Hill
My Lords, I hope that I will not be criticised for seeking easy popularity in this House by saying that I am going to make a very short reply. I regard the dinner hour as something that should happen at the customary time for dinner, and not breakfast. I am conscious that my noble friend Lord Howell of Guildford and his colleagues have another very important debate to come.
I shall simply say this. First, I am extremely grateful for what has been a most important debate. I am particularly grateful to the Minister for his very full reply, so full and so interesting that I think studying it carefully will be very beneficial. I am a bit more pessimistic than he is, and perhaps more so than the noble and learned Lord, Lord Falconer of Thoroton, about the ability to keep the courts away when there are cases of indirect, and not direct, responsibility. There are knotty and difficult questions about the Human Rights Act, the European Convention, extra-territoriality, jurisdiction and so on. I am not yet persuaded that the certification procedure, perhaps extended beyond these amendments, is not the better approach, with limited judicial review. That is something we will need to consider. However, I am grateful to everybody. I agree in particular with the noble and learned Lord, Lord Falconer, that we should seek the minimum necessary to give reasonable and complete assurance.
Finally, I want to say to my noble friend Lady Williams of Crosby that most of what I have learnt about the law was in the United States in the early sixties. It is not really true that the United States has not been a friend of international human rights. On the contrary, whether we start with Nuremburg, the UN International Covenant, the International Criminal Court, or in other ways, the United States has been championing international human rights. The only snag is that it will not apply them in the United States itself in the way that we do. Nevertheless, I learnt most of my international human rights law there and not here. I hope that what I have said may one day be read by the legal adviser to the Department of State, my good friend Harold Hongju Koh, who will understand that I respect its system very much indeed. I also agree with all of those who say that we must find a way of winning its unqualified support in sharing national security information. I beg leave to withdraw the amendment.
Baroness Stowell of Beeston
My Lords, as in the debate last week, tonight’s dinner break business is not time-limited. However, unlike in last week’s debate, I suggest that we have an hour’s break for dinner. I am grateful to my noble friend Lord Howell of Guildford and others due to speak tonight for their patience. I am sure that we will be ready to get cracking again in an hour’s time, but perhaps noble Lords will watch the monitor as we do not need to keep strictly to one hour.