Justice and Security Bill [HL]

Debate between Baroness Berridge and Lord Falconer of Thoroton

Monday 23rd July 2012 Lords Chamber

[Baroness Berridge]

My Lords, Amendments 71 to 75, 77 to 79 and 81 to 87 all have my name on them. As the detail of those amendments has already been outlined by my noble friend Lord Lester and the noble Lord, Lord Pannick, I will follow the noble Baroness, Lady Williams, and focus on the core purpose of Amendments 85, 73A and 77A, which is to introduce limited grounds for the disclosure of information received in confidence by the intelligence services and amend what would otherwise be a complete ban on disclosure under Clause 13.

These amendments are required, as David Anderson QC pointed out to the Joint Committee on Human Rights in his evidence, when he said that,

“you are not going to get away with a blanket exclusion of all evidence in the hands of the security service, or even all evidence in the hands of the Government, as they suggest at one point”—

he means in the context of the Green Paper.

Although the disclosure jurisdiction that we deal with today began in the intellectual property field, it is completely by accident that the principles behind the jurisdiction were first applied there. On considering these amendments, I reread the judgment of the noble Lord, Lord Reid, in the Norwich Pharmacal case. It is clear that the jurisdiction is based on sound principle. It is important to consider that principle as it goes to the heart of why these amendments are required.

It is best understood by a threefold division of cases—and I would term myself a Championship not a Premier League lawyer here. First, there are cases where the person, usually the UK Government, is directly responsible for the wrongdoing and a civil case is brought directly against them as the defendant. Clause 13 leaves those actions completely unaffected. Secondly, there are cases where the person in question is a bystander, spectator or mere witness to the wrongdoing. In those circumstances, no action can be brought against that person, they are not even complicit and Norwich Pharmacal will fail.

However, there is a small, narrow group of situations—which are, as the noble Lord, Lord Pannick, has outlined, even narrower after the case of Omar—where, although not directly responsible for the wrong, there is sufficient connection to the wrongdoing that a requirement attaches to you to disclose information or material in your possession that helps the victim of the wrongdoing to seek redress; that is, more often than not, court proceedings. This obligation is based on the limited culpability that attaches as one is mixed up, even innocently, in the wrongdoing. I would term it a bit like moral velcro. Being mixed up in wrongdoing sticks you with certain limited responsibilities.

The kind of mixing up by the UK Government, in cases such as that of Binyam Mohamed, is questioning a man after you should have, at the very least, been aware that he had been tortured. When I read of the injuries to Binyam Mohamed it was rather disturbing. According to the findings in that case, the UK took some of the fruits of that torture by questioning him, although it is important to emphasise clearly that the UK Government were in no way involved in that torture.

I accept, of course, the evidence of the Joint Committee on Human Rights that the intelligence services in the United States, for example, are disclosing less intelligence to the United Kingdom because of the fact, or perception, that the information could be disclosed through our courts. But the first caveat is the Government’s own Green Paper, which outlines that there is no suggestion that key threat-to-life intelligence would not be shared. The second caveat is whether this fact or perception is justified. As the UK courts have never ordered the disclosure of such material, and any Norwich Pharmacal application that could be made subsequent to the case of Omar would be followed by a PII application as well, the risk is minimal. Allowing limited Norwich Pharmacal applications as outlined in these amendments would be a proportionate response to that minimal risk.

It is also interesting to note the change of position by the United States concerning whether the control principle was breached in the case of Binyam Mohamed, as outlined by the ISC report for 2009-10, in which the United States does not seem to think that there has been a breach of the control principle. In the 2010-11 report, the United States seemed to think that there had been one. It is interesting to note that it is the same time period which saw the mass of WikiLeaks disclosures. I would be saddened if the mistaken perception of our judicial processes or an understandable oversensitivity to the control of its own intelligence material could lead to a change in our law to exclude this jurisdiction from human rights cases, especially when, unfortunately, the alleged wrongdoer may also be the United States.

I would expect that the mere receipt of intelligence information that discloses wrongdoing, even information obtained by torture, is being a witness. Can my noble friend the Minister explore whether the requirement that in national security cases a greater culpability of connection to the wrongdoing other than being innocently mixed up would satisfy the concerns of the United States? If complicity by the United Kingdom is needed, cases where Norwich Pharmacal would apply should be very rare.

In essence, the argument from the Government is that our intelligence services lack certain information and therefore our national security could be at greater risk. I expect the Government to oppose the amendments, especially as it is the first duty of the Government to protect their citizens. I agree that it is the first duty, but it is not the first principle—otherwise protecting national security could justify torture, and it is crystal clear from the Reith Lecture from the noble Baroness, Lady Manningham-Buller, that the UK does not. Protecting national security and even going to war must still be conducted within certain ethical and moral constraints, which include that if you get mixed up in the wrongdoing you may—subject to five stringent tests in the Norwich Pharmacal case, and following a PII application—have to disclose material to help the victim defend himself against a capital charge. I fully accept that the United Kingdom is the junior partner in this situation, and is probably more reliant on intelligence material from the United States than vice versa. But your ethical and moral principles are often tested—or perhaps only tested—when you are the less powerful person in the situation, not when you are in command.

I end with a very simplistic point. The remedy may not even need to be legislation. If the UK does not get mixed up in, as opposed to merely receiving information about, other countries’ wrongdoing and, a fortiori, if the United States ceased this kind of wrongdoing, it can rest assured that the veil of the control principle cannot be pierced by Norwich Pharmacal. The remedy to some extent lies in the hands of the United States, and it is regrettable that President Obama did not fulfil his election promise to close Guantanamo Bay, which might have provided a line in the sand in this group of cases. I am pleased to live in a place with the high ethical constraints of Norwich Pharmacal and that we have a mechanism to release such information in situations that could literally save a man from the electric chair. The door to such information should be hard to open, but not absolutely barred. I support this group of amendments.

[Lord Falconer of Thoroton]

My Lords, it has been a very powerful debate. I am particularly grateful to the noble Lords, Lord Lester and Lord Pannick, for maybe seeing a way through a very difficult issue. Both issues that the Bill raises are difficult, but this is the more difficult. The first one, about fairness and making sure that one sticks to fair procedures, necessarily involved a solution whereby the courts made the balance. Ultimately, if there was damage to national security, the intelligence services would be able, if they wanted, to withdraw the case and there would be no damage to national security. This is a much more difficult one because the intelligence services do not have the option of withdrawing from the case.

As the noble Baroness, Lady Berridge, and the noble Lord, Lord Lester, explained, in a Norwich Pharmacal application, when no proceedings are afoot you go to court and say that either the British Government or the intelligence services have either committed wrongs or got mixed up in wrongdoing, and you ask them to disclose documents that show their involvement, not necessarily with the intention of suing the British Government but because you may wish to sue someone else. The courts have dealt with that by saying, “Okay, we’ll consider these Norwich Pharmacals”. If it is concluded that the position is made out whereby one would, prima facie, make a Norwich Pharmacal, the courts then say to the Government, “Okay, we are going to make a Norwich Pharmacal subject to the Government making a PII application”. Then the courts have to balance whether national security outweighs the interests of the individual. I do not know how that balance is to be struck, because it is not easy to strike it as it would be in ordinary litigation. Indeed, except in two cases, it has never been struck. It is not open to the Government to say, “Okay, we’re going off the field at this point”. If the court makes the order and overrides the public interest, it is disclosed.

That process has unquestionably caused some of our allies concern. The effect of the Binyam Mohamed case was that, even though two out of the three judges said that the control principle had not been broken because the intelligence material was no longer secret—I refer to the principle that if one country gives another country intelligence, the other country cannot use that intelligence without the first country’s consent—the United States Government now give us less information than they did previously. That is what Mr David Anderson said in his supplemental memorandum for the Joint Committee, which expressly said that it did not know whether it was right or wrong and that all it had to go on was what Mr Anderson said. However, he was clear that the effect of the court making it clear that a balance had to be struck, as unquestionably is the case, was that people did not feel so secure about the intelligence that they gave and so gave less. However, as the noble Baroness, Lady Berridge, and other noble Lords have said, they will give us intelligence when there is an immediate threat to life.

The effect of the current position is that we get less intelligence material from the United States of America and maybe our other allies because they are worried that the English courts might order their disclosure. The Joint Committee on Human Rights took the view in the light of that—this is my reading of it—that the minimum should be done to give the reassurance required to get the maximum protection in relation to intelligence. If you took that approach, is what the Bill proposes the minimum that can be done to provide protection?

The noble Baroness, Lady Berridge, described a typical Norwich Pharmacal stripped of any complication about intelligence. It would involve me going to have a cup of tea in a cafeteria in Thames House or Vauxhall Cross and me slipping on the floor, breaking my leg and saying that I would sue whoever owns the building, which is the intelligence services—but they say, “Actually, an independent contractor cleans the floor and it is absolutely their fault that you slipped”.

I could bring a Norwich Pharmacal order if the intelligence services did not tell me who the contractor was in order to bring my action for a broken leg because it had inadvertently got mixed up in wrongdoing. The effect of Clause 13(3) of the current Bill is that, because the information was held by an intelligence service, it would not be able to say, “No, you cannot have the information about who cleans the floor”. It would be the same if I were run over by a van carrying papers to the FCO and I wanted the maintenance records held by someone else; it could say no.

It is plain that the Government do not intend to cover those sorts of cases. What they do intend to cover are the cases where there is a genuine threat to the control principle and you cannot deal with it because the courts are absolutely right in saying that if the courts are going to make a decision they must have a balance.

Justice and Security Bill [HL]

Debate between Baroness Berridge and Lord Falconer of Thoroton

Wednesday 11th July 2012 Lords Chamber

[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.