Justice and Security Bill [HL]
(12 years, 1 month ago)
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Lord Beecham
Lord Beecham
My Lords, these amendments seek to confine the definition of “sensitive information” for the purposes of Norwich Pharmacal cases to intelligence effectively held by foreign intelligence services, rather than any intelligence service, including our own. So Amendment 74A would delete in Clause 13(3)(a) the reference to,
“held by an intelligence service”,
which would, of course, embrace our own intelligence services. Under Amendment 76A, Clause 13(3)(b) would cover, within the definition of “sensitive information”, information held on behalf of a foreign intelligence service. Amendment 76C would, at line 13, delete the paragraph so that the whole issue becomes that of a foreign intelligence service.
Amendment 80A, on the other hand, looks at the rather more significant issue of whether,
“disclosure is contrary to the public interest if it would cause damage (a) to the interests of national security”—
which is, of course, accepted—
“or (b) to the interests of the international relations of the United Kingdom”.
The wording of the amendment looks to have been truncated somewhat. The intention is the same as that of Amendment 80, in the name of the noble Baroness, Lady Williams, who is not in her place, but it would leave out reference to,
“the interests of the international relations of the United Kingdom”.
Of course, security matters would remain covered. The question is: what is the import of the Government’s intention to allow removal from disclosure in the interests of international relations?
One can envisage, of course, that international relations might include questions of national security, but there might also be other matters, such as trade relations with other countries. Are we to be obliged to protect documentation which might relate to, or have an impact on, our economic relations with a foreign country? It might not be an ally; it might simply be a trading partner, a country to which we are exporting or seeking to export goods; a country, perhaps, with an undemocratic regime. Why should these matters not be withheld to protect interests of that kind, as opposed to matters of national security? It will be interesting to hear the noble and learned Lord’s justification for that rather broader definition.
I repeat that we accept that the interests of national security are perfectly legitimate and should be protected. I beg to move.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, the noble Lord, Lord Beecham, has sought to explore whether it is possible to define the Norwich Pharmacal jurisdiction in a narrower way than is available under the Bill as it stands. As was well aired in the earlier debate—and, indeed, on the second day of Committee and at Second Reading—because the aim of a Norwich Pharmacal case is to achieve release of information, it is not possible to agree a monetary settlement in order to prevent that information being released.
It is a different situation in damages claims. In this case, the court can still order the Government to release information if public interest immunity is not upheld. It is therefore important that Clause 13 provides the necessary protection for material whose could cause damage to national security or, in the part that these amendments relate to, to the effective functioning of international relations with key foreign partners.
Lord Beecham
I am grateful to the Minister for his explanation. Both those matters go rather wider than is necessary to protect the particularly relevant considerations of national security. They could be used to justify almost anything in relation to the activities of other countries, and to protect them, as it were, from claims brought under the Norwich Pharmacal procedures. The very fact of the result of the Omar case—if it is upheld—would, in any case, indicate that the courts will not rush to supply or to authorise disclosure. To that extent, it may be that the Bill as drafted is unnecessary. I remain somewhat concerned at the breadth of reach of these proposals. However, in the circumstances I beg leave to withdraw the amendment.
Baroness Berridge
“Annual renewal
(1) The Secretary of State’s powers under Part 2 of this Act expire at the end of the period of one year beginning with the day on which this Act is passed.
(2) The Secretary of State may, by order made by statutory instrument, provide that the Secretary of State’s powers under Part 2 of this Act are not to expire at the time when they would otherwise expire under subsection (1) or in accordance with an order under this subsection but are to continue in force after that time for a period not exceeding one year.
(3) An order under this section may not be made unless a draft of it has been laid before Parliament and approved by a resolution of each House.”
Baroness Berridge
My Lords, along with the reporting and recording requirements in previous amendments, the new clause proposed by this amendment would keep Parliament abreast of the use of closed material procedures. It is modelled on the provision that was introduced when the control orders were introduced into our system. For the first five years they were subject to annual renewal because they were a novel jurisdiction. The same point applies here with the closed material procedures in civil proceedings.
In Committee, many of your Lordships have mentioned the impact that closed material procedures could have on public confidence in the judicial process. This amendment means that without a resolution of each House the powers fail, which is the appropriate mechanism for Parliament to act swiftly, should there be significant concerns about the understanding of and confidence in our judicial system. One of the agreed facts in Committee has been that this is a controversial mechanism to introduce into the civil justice system. It has been noted that Parliament would have introduced this despite the almost universal view of the special advocates that it is not to be recommended.
It is important to have a swift get-out clause to halt closed material procedures, which this amendment gives. Any mechanism that required primary legislation to amend the Act would take too long to deal with such a situation. I beg to move.
Lord Pannick
My Lords, I have added my name to this amendment. Nobody who has listened to or read our debates on Part 2 of this Bill over the past few weeks could doubt the importance or difficulties of the issues that we have been considering. Parliament may well decide that it is necessary to include these provisions in Part 2 but they undoubtedly are a departure from the fundamental principles of the common law. There is no doubt that they have a considerable novelty. It is essential that Parliament keeps these procedures under close review. Indeed, how these provisions are operating in practice will be vital to the balance between justice and security, which the noble and learned Lord the Advocate-General for Scotland has repeatedly and correctly in my view emphasised is the primary concern. An obligation on the Secretary of State to bring these matters back to Parliament for an extension of these provisions after a year will focus the mind of the Secretary of State and officials. It will give this House and the other place an opportunity to look at what has happened in practice. I hope that we will also then have the advantage—and it will be a real advantage—of seeing a report from the much respected independent reviewer of terrorism legislation, Mr David Anderson, on how these provisions have been applied.
I hope that I am not out of order in saying that I would very much hope that noble Lords might have the opportunity to hear directly from Mr Anderson, as we always benefited and still benefit from hearing his equally respected predecessor, the noble Lord, Lord Carlile of Berriew. The noble and learned Lord the Advocate-General for Scotland might want to suggest to his right honourable friend the Prime Minister that it would be most helpful to noble Lords if Mr Anderson were able to express views in this House as a noble Lord and participate in our debates. Whether we hear from Mr Anderson directly or indirectly I strongly support the amendment.
Lord Lester of Herne Hill
I am not sure that David Anderson QC can be made a Peer with sufficient speed to meet the wish of the noble Lord, Lord Pannick, but I can tell the Committee that the Joint Committee on Human Rights has asked him to give further evidence and we are anticipating preparing a report in time for Report stage that will include his views. That part of the amendment may be met through the committee system in an ordinary way.
Lord Beecham
My Lords, the sun has already set here, although not in Newcastle or even further north, so I shall not detain the Committee long. I support the amendment moved by the noble Baroness. She is absolutely right in what she said. I make an additional suggestion to that of the noble Lord, Lord Pannick, which is that the Intelligence and Security Committee could look at the position at the end of the year. Its deliberations could no doubt inform the discussion that will take place here and in the House of Commons in relation to an annual renewal. A number of assertions have been made about the likelihood of there being only a small number of cases and the impact of the proposed changes. Following the precedent referred to by the noble Baroness, it would be well to monitor those at least for a period until we can see clearly how the legislation works out in practice. I commend the amendment to the Committee.
Baroness Stowell of Beeston
My Lords, I am merely a Whip, and do not have any powers that would extend to conferring a peerage on anybody, but I will certainly ensure that those that have more authority are aware of the view of the noble Lord, Lord Pannick, about Mr Anderson QC.
The amendment moved by my noble friend Lady Berridge is part of a wider set of amendments that she has tabled—some of which we debated last week—which are part of a package of measures that noble Lords would like to see introduced in order to ensure that the Bill, if it becomes an Act, is reviewed post its Royal Assent.
I can understand the reasons behind that because, as we have acknowledged on many occasions, this is a Bill which would introduce very different measures to the justice system than have been in place hitherto. However, we believe that the amendment is not necessary. I hope I can explain why to the satisfaction of your Lordships this evening.
In the case of Norwich Pharmacal, the primary problem we are seeking to address is how we provide reassurance to our allies that we can protect information shared with us in confidence. We had an extensive debate about this before dinner. One question we could ask ourselves is: would we share a secret with someone knowing full well that it was only guaranteed to be safe for up to 12 months, and that after that time the person might be required to release that information? We expect our allies to protect intelligence material we share with them from disclosure, and they expect the same from us. The inadequacies in our current ability to properly protect classified information provided by foreign Governments have already seriously undermined confidence among our key allies, as we have heard this evening.
A time-limited protection will simply not provide enough reassurance. It would cause our allies to continue to doubt our ability to keep material safe from disclosure. For these reasons the measures in Clauses 13 and 14 of the Bill remain the only comprehensive safeguard against the serious damage that Norwich Pharmacal relief poses to our national security and international relations.
In relation to proceedings in which the CMPs introduced by Clause 6 would be available, we expect that current CMP live cases would be dealt with in the first year, with stayed cases spread over the two years thereafter, alongside other emerging cases. As noble Lords know who are more familiar with the law than I am, civil claim caseloads can be unpredictable in the long term. I believe it is important that claimants have the continued ability to bring all claims against the Government, and that matters are scrutinised by the courts, rather than returning to the current system, where in some circumstances justice is not possible.
I should remind the House that the Bill provides the power to remove a court or tribunal from the definition of “relevant civil proceeding”, as we heard in previous debates tonight, where there is no longer a case for it to be included. This is already provided for in the order-making power in Clause 11.
As we have discussed several times during previous debates, the final decision to hold a CMP in the High Court, Court of Appeal or a Court of Session will be made by a judge. The judge will determine whether a CMP goes ahead on the grounds that there is some material relevant to the case, the disclosure of which would damage national security. The judge would then decide how each individual piece of evidence should be dealt with, and whether that should be in closed session or in open session. We can be confident that the judge will ensure that the provisions for CMPs will be used only in the very specific and narrow circumstances where that test is met.
In the case of challenges of the Home Secretary’s decision to refuse someone British citizenship or to exclude them from the UK, we are dealing with a category of cases where the court has found that it is potentially fairer to the claimant for there to be a CMP available. The expiry of those clauses would reduce fairness by removing the ability to challenge those decisions effectively.
By way of contrast, there are similar provisions in the TPIM Act. My noble friend referred to the control orders and the introduction of a sunset clause when control orders, the predecessors of TPIMs, were introduced. Under Section 21 of that Act, the powers expire five years after Royal Assent. This can then be extended for further periods of five years. However, TPIMs are unique. They involve measures that have an impact on the daily lives of those subject to the orders, including restrictions on liberty. As a consequence Parliament decided that strict post-legislative measures were needed. There are no sunset provisions in place in any other context where CMPs are available.
I should also point out that in its report the Constitution Committee considered how the Bill should be reviewed after Royal Assent, and it did not recommend a sunset clause. Its report said that the House might wish to consider the Bill being independently reviewed five years after it came into force. As I explained in my response to Amendment 67A last week on day 3 of Committee, Bills are normally subject to review three to five years after Royal Assent. The Select Committee responsible will then decide whether it wishes to conduct a further post-legislative inquiry into the Act and it is right to leave it to the Select Committee to decide the form of independent post-legislative scrutiny.
As I said, I recognise that the amendment and others like it that we have discussed previously are inspired by a strong feeling among some noble Lords that we should have in place a thorough process for post-legislative scrutiny on a Bill that is introducing something different. But, as I hope I have been able to outline tonight, the measures that already exist will meet the objective that has been set out by those who spoke in favour of the amendments, and sufficient safeguards are in place without introducing a sunset clause. On the basis of that, I hope that my noble friend will feel able to withdraw her amendment.
Baroness Berridge
My Lords, I am grateful to the noble Lord, Lord Pannick, for illustrating how one can tangent with one amendment to introduce a slightly different topic. I am also grateful to the noble Lord, Lord Beecham; I think that we now have a score draw on whether there is support from the Benches opposite for my amendments.
I am of course disappointed to hear that my noble friend does not believe that this is necessary. There are distinctions between control orders that affect the liberty of the citizen as opposed to this jurisdiction. This is a very distinct jurisdiction to be introducing closed material procedures into. It will affect our civil justice process, which is very different from the other legislative regimes. In civil proceedings, it often calls the Government to account for their actions. Vast amounts of resources, as I saw going down to the High Court, are invested in putting someone under a control order. It was said that there is nothing worse for them than being in existence for only a year, even though so much is invested in them and it could have all fallen flat in that year.
Finally, it was said that people would not share secrets thinking that they would be secret only for a year, but there has been agreement around the House that this is a very narrow jurisdiction, particularly after the Omar case that we are dealing with, so there would be no massive knock-back effect on intelligence if there were some kind of sunset clause. I hope that we will be able to return to this matter later on in the proceedings on the Bill. I beg leave to withdraw the amendment.
Lord Lester of Herne Hill
“Overriding objectives
In performing their functions under this Part, the Secretary of State and the court must have regard, in particular—(a) to the overriding objective of protecting the interests of justice and fairness, and(b) to the need to ensure that any interference with the principle of open justice is no more than is necessary to protect the interests of national security.”
Lord Lester of Herne Hill
My Lords, the noble Lord, Lord Campbell of Alloway, once gave me some very wise advice. It was a kind of rebuke. He said, “Never make a serious point after the dinner hour”. I am sure that that was indeed wise advice, but I am going to make a serious point nevertheless.
The noble Lord, Lord Pannick, and I listened very carefully to the debate that took place on 11 July when the noble and learned Lord, Lord Wallace, indicated that he could not make a concession at that time about the principle of proportionality, but he would listen very carefully to what had been said by the noble and learned Lord, Lord Falconer of Thoroton, my noble friend Lord Thomas of Gresford and myself.
The principle of proportionality sounds foreign except to those who have had a proper classical education who will remember that the Greeks themselves and their philosophers developed the idea of the golden mean and a sense of proportion. That idea is rooted in our legal and political system and is as English as roast beef, Yorkshire pudding, and roast potatoes. It simply requires that the decision-taker should not use a sledgehammer to crack a nut.
Amendment 90 seeks to embody in the Bill principles which have to be taken into account by the Secretary of State and by the court in the way in which they interpret and apply the provisions of the Bill as a whole. It therefore requires that, in performing their functions under Part 2, the Minister and the court,
“must have regard, in particular … to the overriding objective of protecting the interests of justice and fairness, and … to the need to ensure that any interference with the principle of open justice is no more than is necessary to protect the interests of national security”.
Even though the Government may be unable to accept some of the other more prescriptive amendments, I very much hope that this amendment will find favour. I beg to move.
Lord Pannick
My Lords, I added my name to this amendment because, in light of the importance, the difficulty, the novelty, and the sensitivity of the issues that we have been debating, it is highly desirable that the Bill states on its face the objectives which the Secretary of State and the courts must seek to advance. The overriding objective of the courts is, indeed, to protect the interests of justice and fairness. That is what the Civil Procedure Rules state. Any interference with open justice must surely be confined to what is necessary, as the amendment says,
“to protect the interests of national security”.
Who could possibly object to that?
Lord Butler of Brockwell
My Lords, I rise to make a brief point. I do not doubt the seriousness of the noble Lord, Lord Lester, even after dinner—nor his good intentions. However, it seems to me that the word “overriding” introduces a dangerous note of ambiguity. What does it override?
Lord Lester of Herne Hill
I am sorry to interrupt but those words come from our governing Civil Procedure Rules. I did not invent them. It is described as the overriding objective because that is the fundamental principle of the rule of law.
Lord Butler of Brockwell
I think we agree that there are certain circumstances where the interests of justice and fairness should not override national security. We are seeking a balance. I would have no objection to this amendment if it said,
“must have regard … to the objective of protecting the interests of justice and fairness”,
followed by subsection (b).
Lord Falconer of Thoroton
If the Bill becomes law, rules of court will be made. Those rules of court will be governed at the outset by what is set out in the amendment of the noble Lords, Lord Lester and Lord Pannick. I have understood what they mean by the,
“overriding objective of protecting the interests of justice and fairness”,
as referring to the first category of case with which we are dealing—civil proceedings not Norwich Pharmacal. In order to be fair, there must be some limited disclosure because the alternative is no disclosure at all and that is unfair to one of the parties. As I understand it, the noble Lords, Lord Lester and Lord Pannick, are saying: “Do what you have to do in order to get the fairest possible result”. In relation to that first category of case, they are seeking to achieve fairness to both parties—the claimant and the defendant—where the defendant has a defence that it wishes to advance but it cannot do so without damaging national security. Therefore, pursuant to the rules, the courts would allow an arrangement whereby only one side sees that material. While that may not be fair in a perfect sense, it is the fairest way of dealing with the problem. National security is dealt with by the ability of the intelligence services to withdraw from the case if national security is offended by an order for public disclosure.
Subsection (a) deals, in effect, with the first category of case, while the second category of case, covered in subsection (b), deals with Norwich Pharmacal. What is said there is: retreat from the right to see something under Norwich Pharmacal only to the extent,
“necessary to protect the interests of national security”.
The rest of the Bill sets out how that is to be achieved. If there are any doubts about it, the courts can go to these basic principles in order to resolve them.
Despite the fact that this trespasses on the advice of the noble Lord, Lord Campbell of Alloway, this is quite a sensible and new way of legislating. Its first appearance, I am happy to say, was in the Constitutional Reform Act 2005 when the principle of upholding the rule of law was referred to in Section 1 as a freestanding obligation, not by reference to a particular provision. As time has gone by, it has been thought to be a beneficial provision. The approach taken by the noble Lord here is beneficial, particularly when we are dealing with issues as difficult as this. I do not think that putting in “overriding objective” is intended to be an excuse or a way of avoiding the need to address the detail of the issues elsewhere.
Finally, perhaps I may say this to the noble Lord, Lord Pannick. What a good idea. If we want to hear evidence from someone, we should make them a Member of the House of Lords. We will be hearing from Bob Diamond and others fairly soon.
Lord Wallace of Tankerness
My Lords, it is fitting, albeit after the dinner hour, that we come to consider this amendment at the end of our detailed consideration of the Bill in Committee. My noble friend Lord Lester and the noble Lord, Lord Pannick, have proposed an amendment that highlights important issues of principle that we have come back to continually in our debates, particularly when considering Part 2. It covers the values of justice and fairness, and how we ensure a proportionate response when the interests of the safety and security of the United Kingdom appear to conflict with the principle of open justice.
I agree with both noble Lords about the importance of these values. The fundamental rights to justice and fairness have guided the development of the provisions of this Bill from the beginning. I hope it has become clear during our debates, and as I said following the contribution earlier by the noble Lord, Lord Reid of Cardowen, that I do not believe there should be a binary choice between justice on the one hand and security on the other. That seems to be a false choice. The question is what we can do in the best way to maximise our achievement of both aims. The Lord Chancellor made clear in his foreword to the Green Paper that preceded this Bill that:
“These are matters of profound importance which go to the heart of our democratic values and our belief in human rights, justice and fairness. Inevitably they are immensely complex and difficult—but we must not shy away from this debate”.
I do not intend to go over all the points that have been made on this amendment and in earlier debates. Many of them are very much the issues that the Government have wrestled with when trying to formulate the provisions of this Bill. For example, the Government believe that there is scope for securing greater justice and fairness in our approach to civil proceedings. In particular, we have highlighted the difficulties where sensitive national security information is so relevant to the case that the current arrangements require the Government to make a choice between the justice of a fair judgment based on all the relevant evidence, even if that risks damage to national security, and the need to protect the safety and security of this country, even if that is at the expense of costly settlement in relation to serious allegations that the Government believe are unmeritorious. I therefore agree with all noble Lords who have spoken both to this amendment and in our preceding debates that these values are important.
I cannot fully support the amendment because I am not satisfied that the Committee has been given a satisfactory explanation of its effect in practice. It is all very well to agree the principles, but how would the Secretary of State behave differently under the present provisions in the Bill, and how would the courts behave differently? The Bill sets out in clear language the duty and functions of the Government and the courts, and if the Committee disagrees with that formulation, that is the whole purpose of our deliberations both at this stage and the next.
The second point is that the Government view the amendment as unnecessary as the Bill encapsulates the Government’s respect for the interests of justice, fairness and proportionality. I know that it is a matter that we have debated and which I confidently predict we will continue to debate.
Fundamentally, the Government consider that in the very narrow circumstances in which, under this Bill, material may be heard in closed session, such material should be considered by the court rather than excluded from it by a public interest immunity certificate. We must also protect information that is shared with us in confidence or that would inhibit the ability of our security intelligence agencies to keep us all safe if there is a risk that it could be disclosed.
Fairness, justice and proportionality are also reflected in the narrowness of the application of Part 2 of the Bill and the safeguards that are set out there. The Secretary of State must first consider public interest immunity before applying for a declaration that closed material proceedings may be used. Closed material proceedings are available only where disclosure of the material would damage national security and not on some wider public interest ground. Even where the court grants a CMP declaration, those civil proceedings remain entirely open, pending painstaking scrutiny by the court of each piece of material which the Government wish to have heard in closed session. If the court refuses to hear material in closed session, the court has real powers in the event that the Government nevertheless wish not to disclose the material. The court can require concessions or can exclude the material.
Above all, we believe that the CMP proceedings will be fair. I say that with confidence because the Bill makes it absolutely clear that it does not affect Article 6 of the European Convention on Human Rights, which guarantees a right to a fair trial. The Norwich Pharmacal provisions are strictly confined to intelligence service information or to where the Secretary of State has certified that certain types of disclosure would damage the interests of national security or international relations. The Bill makes provision for judicial scrutiny of the certificate.
It is these carefully calibrated provisions that respect justice and fairness and ensure that a proportionate approach is taken to any interference in the principle of open justice. I accept and understand that a number of noble Lords may yet remain to be persuaded by this calibration. It is on these detailed points that I am sure we will continue to look further and use our energies. I will endeavour to persuade noble Lords of the merits of the Government’s position.
I think we have had very useful debates in Committee. I accept that there are a number of issues on which noble Lords in Committee still have to be persuaded, but in relation both to civil proceedings and to the risk arising from the possibility of court order disclosure of sensitive material through the Norwich Pharmacal jurisdiction, I think there has been a general acceptance in most contributions that some provisions were required, albeit in a very small number of cases. I accept and acknowledge that the opposition Front Bench reserved its position on closed material proceeding.
I am conscious that nevertheless there are still points of detail that we will return to on Report. I have sought during Committee to give a detailed explanation of the rationale for the choices that the Government have made in bringing forward these provisions. I hope that that has helped to shed light on where the Government are coming from, and to inform the debate on these crucial, sensitive and important issues.
It is important that we continue these conversations as scrutiny of the Bill continues. As noble Lords are aware, I am keen to continue to engage on these issues outside the Chamber. I am sure that we will not use all our coming weeks in recess to focus on these, but there is a considerable amount of time during which I hope we can engage and consider them. I recognise their importance, and we will, I hope, have an opportunity to reflect and debate these details further on Report after the Recess. In that spirit, I would be grateful if my noble friend would agree to withdraw the amendment.
Lord Lester of Herne Hill
My Lords, this amendment has given the Minister the opportunity to look back on the proceedings in Committee, and it enables me to say that we very much appreciate the way in which he has done so and his open-mindedness. I should also like to say, coming back to Amendment 90, that the role of the Opposition in this area is of great importance. If the Opposition had simply accepted the Government’s position, there would have been very weak scrutiny. That is what happened in the United States Congress when the Patriot Act was introduced, where I am afraid Congress did not do its job properly. That cannot be said to be true of this House.
My noble friend asked: what is the point of Amendment 90—what is it intended to achieve? The noble and learned Lord, Lord Falconer, answered that by referring to the Constitutional Reform Act 2005. The value of having general principles is especially important in this area. We do not have a written constitution. We do not have a constitutional Bill of Rights. We rely on the European Convention on Human Rights under the Human Rights Act as a kind of substitute for a domestic charter of rights.
The Government’s attempt to incorporate principles in the Bill is in Clause 11(5). It is curiously drafted, but it relies, among other things, on Article 6 of the European Convention on Human Rights. I do not think that that is a sensible way to articulate the general principles, which are part of our legal heritage and political system. I would prefer the principles by which we stand under common and statute law to be in the Bill. Amendment 90 is intended only—apparently, this is common ground, because it is what the Government seek to achieve—to ensure that the two principles, which have to be fairly balanced, are taken into account in the way in which Ministers exercise their discretion and the courts exercise and apply the law. I take the point of the noble Lord, Lord Butler, that one does not necessarily need the word “overriding”, but it is in the civil rules of procedure. I am not persuaded at all that the case has been made for an absence of good British principles that are not wholly dependent on Article 6 of the European convention which, for various reasons, does not do the job perfectly.
Having said all that, of course I beg leave to withdraw the amendment.