Justice and Security Bill [HL]

Baroness Berridge Excerpts

Tuesday 17th July 2012 Lords Chamber

[Baroness Berridge]

My Lords, I support two particular aspects of this group of amendments. Following the comments of my noble friend Lady Williams, I, too, agree with the wording in the Bill in relation to the duties and responsibilities of the special advocates. In fact, while the Joint Committee on Human Rights was taking evidence, with the special advocates and lawyers in front of us, questions kept coming up about what their professional duties were to their client, with whom they could not communicate. It seemed to me, as a former lawyer, that it was perhaps one of the safest areas in many respects to have a client because there was no way that you could be sued for negligence when you could not communicate with the person whom you were supposed to be representing. It is a very unusual situation to put a professional in. We asked whether the Bar Council had given any guidance to advocates in this situation. I, too, found it very harsh for the Bill to say that the advocate is not responsible for the interests of the person whom they represent and I think that some more positive duty in the Bill would assist.

I also support proposed subsection (7) in Amendment 67, although it is not clear because it is an extension of the professional duties. Normally it is very clear to lawyers that they can withdraw from a case in certain situations, which are outlined in professional guidance. It is not clear whether a special advocate would have the same ability to withdraw from proceedings. I was always amazed that you could often be faced with two lever-arch files of A4 paper that contained the case papers, and when you got to trial, the trial boiled down to one or two key issues. In a particular case the issues may boil down to information as to where the claimant was on a particular day, and that becomes central to the case. So there may be one or two determining facts in a case. An advocate might be faced with information from the police and security services putting a connotation on certain facts, and be unable to turn to their client and say, “Where were you in August?”. In those circumstances the advocate might feel professionally that they could not represent the client’s interests properly. It is a corollary, I believe, of the situation that I raised in relation to previous amendments. In certain cases the judge may be in that situation as well, where one or two facts are so key to a case that, without hearing the claimant’s explanation of those facts, the case cannot be determined fairly. So this subsection gives the special advocate clarity that they can, in those circumstances, withdraw from the case. Therefore I support my noble friend’s amendments.

[Lord Pannick]

My Lords, my answer to the point made by the noble Baroness, Lady Williams of Crosby, is that regrettably Clause 8(4) is wholly accurate because the nature of the special advocates and the task that they are required to perform is that they are not responsible to the individual in whose case they are appearing. They are not responsible because they cannot tell the person concerned the information that is known to them, as the lawyer in the case. They cannot ask the individual to comment on that information or to give instructions to them on that information. If they speak to the individual concerned, what the individual tells them—the special advocate—may be wholly irrelevant to the case, unknown to the client.

Although the special advocate system is made available as being better than no representation at all, it is inherently and fundamentally unfair in that the individual concerned does not know the nature of the case against them; and nothing that the special advocate does, however competent and industrious they are, can affect that. I therefore think that there is no advantage in seeking to supply in the Bill what would be a fig leaf to conceal the reality of the situation; and the reality of the situation is precisely as it is put in Clause 8(4).

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[Lord Wallace of Tankerness]

I would want to reflect on what the “austerity of tabulated legalism” actually means. We have had exchanges in earlier debates and we have set out why an express reference to Article 6 of the European Convention on Human Rights is incorporated into the Bill. I hope that my noble friend is assured by that. I am about to get to the point made by my noble friend Lady Williams. I will get there eventually.

[Baroness Berridge]

Following on from the point made by my noble friend Lord Lester about the overriding objective to act justly, if there is not a special advocate in the closed material proceedings, our courts will be hearing only one side in a completely unchallenged format. Therefore, is it not better to have the mandatory requirement? Even having a special advocate there who we know does not have an ordinary relationship with the client enables a more judicial decision to be made. Confidence in our courts will be more likely to be upheld if there is somebody probing potentially at the truth and not just acting on behalf of the claimant. One-sided proceedings could damage confidence in our judicial decisions.

[Lord Wallace of Tankerness]

The point I was making to my noble friend is that we are dealing with a rare and exceptional circumstance where an excluded person has indicated that they do not wish to appoint or provide instructions to a special advocate. Before acceding to my noble friend’s point, one would have to consider the almost impossible position that would put a special advocate in. It would be very difficult, if not impossible. That is why this is phrased as it is. It is very unlikely that that would happen. I am not aware that it has happened, but no doubt others who have practised will be aware. The noble Lord, Lord Pannick, is shaking his head. He is not aware of circumstances where that has happened. The great likelihood is that the excluded person will want a special advocate appointed to do the very kind of job that my noble friend rightly articulates.

My noble friend Lady Williams referred to the particular provisions in Clause 8 and to Amendment 66, which would remove the fact that a special advocate is not responsible to the party whose interests they are representing. The noble Lord, Lord Pannick, expressed very clearly why that provision is there in the form in which it is. The Bill makes clear that while the excluded party is not the client of the special advocate, the special advocate is specifically appointed to represent the interests of the excluded person. We believe that it is not possible to go further and to permit the special advocate and the excluded party to have a lawyer-client relationship. I fully understand my noble friend’s point but I think that the subsection is a product of the way in which the role of special advocate has developed. The concept of a party’s legal representatives being privy to information which is not disclosed to the client raises serious ethical and professional problems. That is why the provision is there. I think I am right in saying that it is reflected in some of the other statutory provisions where there are closed material proceedings.

Amendment 67 introduces a responsibility on the special advocate to provide a summary of closed material to the excluded party. There are two important aspects to that. First, the question of whether a summary should be provided is and should continue to be in the hands of the judge. It is the judge who will determine whether a summary of the evidence should be made available to the other party, whether this can be done without harming national security or whether it is deemed necessary for the proceedings to be fair, even where damaging to national security. Secondly, the special advocate, as I have indicated, is not in a position to determine harm to national security by deciding what information can be passed on to the excluded party. Rather, it is for the security and intelligence agencies to undertake this assessment. Special advocates have accepted that communication to the individual regarding the substance of closed material presents difficulties and may well not be possible without the involvement of the court and, in particular, the Government, to avoid the risk that inadvertently damaging disclosures are made. Mr Nick Blake, who is now a High Court Judge, gave evidence to the Joint Committee on Human Rights in 2007 while still a special advocate. In that evidence session he acknowledged that changing the rules to allow communication after service of closed material would put enormous responsibilities on special advocates not to disclose information inadvertently. We know that special advocates take that responsibility very seriously indeed. That is why we do not believe that it would be appropriate for the special advocates to determine the summary of the evidence to be made available.

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I share with all noble Lords a desire for fairness and for safeguards to be inserted, but I respectfully submit that we must not be too dismissive of national security, although equally it should not be lightly invoked.

[Baroness Berridge]

My Lords, I will speak briefly in support of Amendment 62. My noble and learned friend the Minister has outlined that this is a balance of security and fairness. In a closed material procedure, I do not think it is wrong to say that the national security issue is a higher priority for the Government who are party to the proceedings, and fairness is higher up the priority list for a claimant who has been excluded.

Let us take the example of a claimant who has been excluded from the hearing and is sitting in the corridor whiling away the hours while the proceedings go on, and turns to the rules of court that have been drafted and looks at Clause 7, as we have it, unamended. How is the claimant not going to conclude, when looking at those rules, that almost the sole interest the court is required to take into account is national security? According to paragraphs (c), (d) and (e), the court has to consider giving a summary, but this is not required. To preserve the integrity of the court, Clause 7 is too constrained around the requirements of national security and does not bring in the need for fairness of the claimant, who will be sitting there wanting to know as much as possible about the evidence and, if possible, to know the gist of the case. Bringing in some consideration of the need for the claimant to have enough information to provide instructions is incredibly important. There must be some requirement given to the court to consider the issues of fairness under the rules.

Secondly, although I take full notice of the views of the noble Baroness, Lady Manningham-Buller, that the special advocates who are there on behalf of the excluded party cannot be the sole judge of whether national security is breached if a particular summary of the case is given, what would be the objection to including the special advocate in the process of deciding what the summary is? Perhaps they could be involved with the relevant party because, as the legislation is drafted, the duty of not revealing national security has in any event been given to the court, so why not have a process where at least the claimant would know that the special advocate is able to partake in that process to determine the summary and the court is the final gateway to ensuring that national security is not breached? Therefore, I support Amendment 62.

[Lord Beecham]

My Lords, the noble Baroness, Lady Berridge, has identified and emphasised the crucial nature of Clause 7. It is the fundamental problem with the Bill that, despite the protestations of the Lord Chancellor, it gives little discretion ultimately to the judge as to whether the closed material procedure should be invoked. Clause 7(1)(c) requires the court to give permission if,

“the disclosure of the material would be damaging to the interests of national security”.

It seems clear that any disclosure of matters affecting national security would suffice to preclude the material being made available. Therefore, we come back to the position that the noble Lord, Lord Faulks, referred to, as enunciated by the noble and learned Lord, Lord Hoffmann.

It is almost exactly 50 years since I first became acquainted with the noble and learned Lord, Lord Hoffmann, as a new student at University College, Oxford—where I was succeeded in due course, several years later, by the noble Lord, Lord Marks—and I have a great admiration for noble and learned Lord, who was a distinguished opponent of the South African regime. I find it rather surprising that he came to the conclusion that matters of this kind are a matter for the Executive and not the judiciary. It is not a view that can be recommended to your Lordships’ House. It strikes a dagger at the heart of our system, and the amendments before us provide the right approach to procuring a level of fairness that allows the judge to make a decision on the basis of a balancing exercise.

I entirely agree with the noble Baroness, Lady Berridge, and others who have laid an emphasis on the need to have that balancing exercise carried out. The amendments in the names of the noble Lords, Lord Thomas, Lord Pannick and Lord Lester, clearly are directed at securing that important balance and fulfilling the—unjustified—claims made for the Bill that ultimately it will be the judge who actually takes the decision; otherwise the decision is effectively made for him by the Secretary of State, and that is extremely undesirable. It follows that the amendments in relation to gisting, which the noble Lord, Lord Pannick, described as a minimum requirement, also have their place in a system which is fair to the parties.

The noble and learned Lord referred to the application of the European Court of Human Rights. Although I am sure that he is clear in his own mind that there is no real conflict with the human rights legislation, there is, perhaps, a question about that. Clause 7(1)(e), to which other noble Lords have referred, makes it clear, in relation to gisting, for example, that a summary does not contain material the disclosure of which would be damaging to the interests of national security. However, it is apparently the position that the European Court has previously struck down decisions made under the existing closed materials procedure on the basis that they were incompatible with the right to a fair hearing which, of course, Article 6 prescribes.

The case law suggests—I am referring now to a briefing from Justice, the organisation concerned with civil liberties and matters of this kind—that,

“a person must be given as much disclosure—whether through the provision of documents, evidence or a summary—as is needed to secure a fair trial”.

It refers in its briefing to the case of A v United Kingdom, in which,

“the Grand Chamber concluded that where insufficient material had been disclosed to an individual subject to a control order”—

of course, we are not talking about control orders here but about a civil claim—

“this rendered the hearing unfair and incompatible with the Convention”.

The briefing also refers to the case of AF, to which the noble Lord, Lord Pannick, referred. There must be a question as to whether the assurance of the noble and learned Lord, obviously given in good faith, that Clause 11(5) resolves these matters—because it emphasises the duties of the court under the Human Rights Act, such that,

“Nothing … is to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the Human Rights Convention”—

amounts to very much. On the face of it, it would appear that the provisions of the Bill, as drafted, would lead to conflict with Article 6.