Justice and Security Bill [HL]

Debate between Baroness Berridge and Lord Thomas of Gresford

Monday 23rd July 2012 Lords Chamber

[Lord Thomas of Gresford]

My Lords, Amendment 76 is in my name and that of my noble friend Lady Hamwee. Amendment 76 is very much in the same terms as Amendment 75 and I accept everything that has been said by my noble friend Lord Lester, the noble Lord, Lord Pannick, and the noble Baroness, Lady Williams of Crosby. Therefore, I will restrict my remarks to a question. What is the purpose or justification for an absolute bar in Norwich Pharmacal proceedings against disclosure of material in the possession of the security services? As I understand it, the certification procedures for the Secretary of State apply to all other material in anybody else’s hands.

The Secretary of State has to take a decision in which he considers the public interest or, as my noble friend Lord Lester suggests, whether there is a breach of the control principle, which is a rather narrower test. His decision is subject to review on judicial review grounds in Section 6 proceedings. What is it about the security services that enables them to escape the consideration of the Secretary of State, the public interest and Section 6 proceedings on judicial review grounds? I see no reason for singling out the security services from such control.

[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.