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—
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 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.