Justice and Security Bill [HL]

Baroness Berridge Excerpts

Wednesday 11th July 2012 Lords Chamber

[Lord Woolf]

I agree that there are dangers, in the way the Bill is drafted at present, of it being thought that there is a straitjacket, but there would be an equal danger of a straitjacket if we adopted either of the alternative forms of amendment that have been proposed so far, although I am bound to say that I prefer the option of the noble Lord, Lord Thomas, and the reasons he explained, to the reason previously put forward by the noble Lord, Lord Lester, and others. If you come second in line in putting forward amendments, you can usually do things marginally better than the previous attempt, and I think that has applied here.

As the noble Lord, Lord Pannick, rightly pointed out, the Bill as it is at present is not as clear as it should be. It is very difficult to express it in a more satisfactory way than has been expressed already, but it could be done and I am sure that if the matter is reconsidered it will be possible to make the situation clear beyond peradventure. I would urge that this approach is adopted.

I should also make it clear that I think that the noble Lord, Lord Carlile, is right in saying that in most situations that are covered by the Bill the result will be preferable to both sides if the closed hearing procedure is adopted rather than PII, because PII has the very unfortunate effect that you cannot rely on the material that is in issue, whereas both the claimant and the Government may want to rely on that material. That is a good reason for having the closed-hearing procedure.

[Baroness Berridge]

My Lords, I had planned to speak to Amendments 39 and 40 but what I am about to say relates to what is now being described as the overriding objective of this group of amendments. Whichever it is, it is important that the name “public interest immunity” is retained as, even when we are dealing with national security-sensitive information, it is not government immunity, although it is often claimed by the Government as a party. When it is, it is done on behalf of and for the benefit of the public and not the Government.

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[Lord Falconer of Thoroton]

Yes, indeed, and in relation to that the Government would be free to withdraw their defence—indeed this is the route that was taken, as I understand it—at which point national security would be protected. It is that situation that we are dealing with first. As I was saying in relation to Norwich Pharmacal, which we shall deal with at a later stage in proceedings, the Government do not have the option of withdrawing from the case. The consequence of this is that they may be forced to disclose information that any reasonable person would think damaging to national security. Equally significantly, those foreign intelligence agencies that provide us with information might consider that it is no longer politick or sensible to do so.

This evening, however, we are dealing with the category of fairness in the context of civil proceedings, rather than danger to national security. The change proposed by this Bill is significant. Very helpfully, in answer to one of the many reports that Parliament has produced on this issue, the Government have set out the list of circumstances in which closed proceedings are possible at the moment. Generally, they are terrorist-related and not usually in relation to resolving a dispute between two civil claimants; it is about whether the state is going to do something not good as far as the individual is concerned. Therefore, this would be a significant change.

Issue number one for the Government is to establish that there is a sufficient problem—unfairness to the state—to demand this quite significant change. Here in the Chamber we are all aware that in the Al Rawi case the Supreme Court said closed proceedings generally are not fair. That does not mean this is not the answer because it may be the best that can be done. However, we need to pause before introducing a system where, as the noble and learned Lord, Lord Kerr of Tonaghmore, said—and everybody agreed with this—closed proceedings could lead to a situation where a judge is looking at material that is not only not cross-examined but might be misleading.

What is the case for the change? The Joint Committee on Human Rights, on which the noble Lords, Lord Faulks and Lord Lester, and the noble Baroness, Lady Berridge, sit, had quite detailed hearings about this. To start with, it did not get any evidence. After it closed its witness sessions, it got evidence from Mr David Anderson QC who said that there may be “a small but indeterminate” number of cases,

“both for judicial review … and for civil damages, in respect of which it is preferable that the option of a CMP … should exist”.

In relation to those cases, it was his view that,

“there was material of central relevance … that it seemed highly unlikely could ever be deployed”,

except in closed proceedings.

David Anderson QC divided his two sets of cases into judicial review and ordinary civil damages claims. The judicial review proceedings were all in respect of refusing naturalisation or excluding an undesirable from this country. Those judicial review proceedings are now dealt with under Clause 12, so we put them to one side. He said that three civil damages claims were the foundation of his case that there was this small group of cases in respect of which CMP might be useful.

In response to what David Anderson QC said, a number of special advocates put in evidence in which they questioned his conclusion that the evidence referred to could be deployed only in closed session. They referred to the fact that in every case in which they had been involved, which slightly reflects what the noble and learned Lord, Lord Woolf, said, there always proved to be a way, whether by redactions, gisting or some other means, in which the material was deployed in some way without damage to national security. That is where the evidence rests at the moment.

I should say that I was Solicitor-General for a period of time. One of the things that the Solicitor-General does is look at PII certification. There were some difficult problems that were getting worse when I left the post. I suspect that they got worse after I left because the situation in the world changed. I should also say that David Anderson gave very sensible advice and was highly respected. We are in a position where the only person who has seen the detail of the cases is David Anderson QC for whom I have great respect. We are also in a situation where it is perfectly possible—the noble Baroness, Lady Manningham-Buller has said this—to envisage cases where intelligence is completely the defence on which the Government would legitimately rely but could not disclose. As the Joint Committee on Human Rights has said, the Government have slightly damaged themselves by the strange way in which they have deployed their case. We are willing to be persuaded, but we need to be persuaded.

[Baroness Berridge]

There is a slight update on the position of the Joint Committee on Human Rights. As a result of Mr David Anderson QC seeing those cases, he came back to give evidence to us. The suggestion was put to him that the special advocates look at those three cases. After he saw those cases and said what the noble and learned Lord has outlined, we received representations saying, “That is not a correct procedure. We need to go in as well to see those cases and to see whether they cannot be dealt with”. At the moment, I believe that the special advocates with security clearance have been invited to go in and look at those cases, so that we can have two views on whether those cases can be determined under the present system.

[Lord Falconer of Thoroton]

I was aware of that. The Joint Committee on Human Rights said:

“The flexible and imaginative use of ancillary procedures (such as confidentiality rings and ‘in private’ hearings) has meant that to date there is no example of a civil claim involving national security that has proved untriable”.

So the committee is saying that there may be ways around that. I find it difficult to imagine that the key point about the closed material procedure is that the claimant does not see the documents. From what has been said—this may well be right—the claimant is the person you do not want to see the material. How does a confidentiality ring or an in-private hearing deal with that fundamental point about closed material proceedings? From this side of the House, we understand what is being said but query whether the case is yet proved.

On the second issue, let us assume that you need something because the case is to be treated as proved in relation to these three cases, which is what is relied on. Is what the Government are proposing the right answer? Remembering that the point here is fairness and not the protection of national security, in our respectful submission, the solution is obviously flawed. There are two problems with it. First, it says that where a Minister certifies or contends that national security would be damaged—no balancing exercise: end of story—closed material proceedings are allowed. No balancing would be allowed.

There is a little bit of movement on the other side in relation to that. I say that because Clause 6(1) states:

“The Secretary of State may apply to the court seised of relevant civil proceedings for a declaration that the proceedings are proceedings in which a closed material application may be made to the court … The court must, on an application under subsection (1), make such a declaration if the court considers that … such a disclosure would be damaging to the interests of national security”.

There is no balancing of any sort before you get to the declaration of Clause 6(1).

Clause 7(1)(c) makes provision for rules of court and states that,

“the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security”.

Once even the most minor damage to national security is established, the door comes down and you do not disclose.

I cannot believe that that is what the Government intend in relation to this. They do not even include in the provision anything along the lines of “Before you do that, think very carefully about whether the problem can be avoided by any one of the many means currently used”. My two big worries about the Bill in this respect would be, first, that there is no balancing exercise and, secondly, that there is no requirement for there to be thinking about whether there are means by which it could be avoided in other ways.

The noble Lord, Lord Thomas, and the noble and learned Lord, Lord Woolf, came together in an unusual combination in relation to this. They said that maximum flexibility is the answer and I agree. This is not a maximum flexibility situation. For the two reasons that I have given, I would respectfully submit that the Government have got it wrong in relation to this.

What is the answer? For the reasons I have given, I think that what the noble Lords, Lord Faulks, Lord Lester and Lord Pannick, have proposed does not quite get there. I cannot understand why the obvious answer, at the moment, is that you give a judge the power to rule that it is PII and is not disclosed; or that it is disclosed in full; or that, in exceptional circumstances, it should be heard in a closed material proceeding. With the amendment in the names of the noble Lords, Lord Faulks, Lord Lester and Lord Pannick, you end up in a situation where only if you say no to disclosure can there then be a closed material procedure. However, there must be cases where it is a finely balanced thing. If the court was forced to choose between disclosure and non-disclosure, it would choose disclosure, but if it also had the option of a closed material procedure, it would take that. The amendment does not allow for that flexibility.