Justice and Security Bill [HL]

Baroness Kennedy of Shaws Excerpts

Wednesday 21st November 2012 Lords Chamber

As to the JCHR amendments, they address the regime around CMPs, tighten it up and will reduce the frequency with which the Government can use CMPs—and I voted for all those amendments. But with all those JCHR amendments, we still end up with CMPs inserted into our civil justice system, where they have no place. They are still unfair, still secret and still incompatible with our adversarial common-law system. Only one set of amendments tonight deals with the unfairness and secrecy of CMPs—only one that ejects them from this Bill. That is the one led by Amendment 45, and I commend it to the House.

[Baroness Kennedy of The Shaws]

My Lords, I should say immediately that I am a member of the Joint Committee on Human Rights, and I supported the amendments that have just gone through this House. But in fact my position is quite a clear one; I do not approve of the closed material procedure at all. I was prepared to make concessions and vote for the amendments that have just gone through, but really I do not think that it is needed at all.

This country is just emerging from a very dark period in our history in which there is compelling evidence that in the aftermath of 9/11 our intelligence services departed from the standards that we would expect of them and became too closely connected with those who torture. There has been evidence of involvement in rendition, and allegations of being too closely proximate to places where torture has been taking place, providing questions and information to interrogators who have used horrifying procedures to extract answers from people who are detained. Unfortunately, our desire to be a supportive ally to the United States of America often led us into activities that are unacceptable but should not have been covered up by secrecy—and nor should they be in future. It is important for the good standing of our country in the world, but also for the standards that we normally set ourselves, that that history is placed before the public, and that we know that it happened so that it cannot happen again.

I accept that there are matters of national security that should not be in the public domain, but national security cannot be used to cover up conduct that is criminal and which debases our standing in the world. Over many years of practice in the courts I have done many cases involving national security, and I am sensitive to the issues involved. The prohibition of torture is one of the few absolutes in the law of human rights. The United States of America forgot that in the Bush era, despite being a signatory to the conventions, as indeed we are. It insisted on calling its methods, “enhanced interrogation procedures”—anything more than waterboarding being outsourced to other countries that were not quite as squeamish.

I support the amendment because the flag of national security is too often a flag of convenience to prevent shameful or embarrassing conduct being exposed. We have well established procedures in our courts and our system to deal with issues that need the cover of secrecy. I have been involved in many cases where PII has been used, where witnesses appear behind screens, or where there is non-disclosure of names or anything that could be identifying material. There are methods and ways in which material that is sensitive to national security can be received without putting our security in jeopardy or, indeed, not received at all.

Let us be clear. This piece of legislation arises at the behest of the United States of America, and we should not behave like a lapdog. One of the reasons is because the USA is also unhappy about being revealed as having participated in many of these shameful activities. However, this legislation has arisen in particular because of the exposure of the terrible facts in the case of Binyam Mohamed. I keep hearing people saying, “But of course these were people suspected of terrorism”. I heard the young American colonel who came to this country who did not choose to represent Binyam Mohamed, but eventually, when it was said that there had to be representation of people in Guantanamo Bay, she acted for him. I heard her presenting to a gathering of lawyers evidence of the extent to which he had been tortured and rendered from Pakistan to north Africa, and eventually to Guantanamo, where his genitals were subjected to insult and attack, and where he was tortured. There is no doubt that he experienced terrible events. It does not matter whether you are talking about someone who is a suspect of terrorism or not; such conduct is unacceptable.

Torture is one of the most egregious of crimes and we are trying to stamp it out in the world. That will be done only if we set ourselves the highest standards, take the lead in doing that and do not succumb to the entreaties of even our closest ally to enter into court processes that might make it more difficult for people who want redress for any role that we might have played in their torture. When they seek redress and come to our courts, they should be able to expect not to be spurned by the courts, which is, in the end, what this piece of legislation will allow to happen.

I remind this House that not long ago in Libya, papers were found after the events in that country and its liberation from Gaddafi, which disclosed that we, Britain, had played a part in the rendition of a man who now sits in government in Libya—a man who was an opponent of Gaddafi. However, at the request of Gaddafi, we had participated in his rendition back to that country.

I want also to raise another issue that is of profound moral and ethical importance to us if we are to care about such issues—the use of drones. There is evidence that our intelligence services are providing locational intelligence to the Americans in order that a CIA operative, sitting in Oregon, can direct a drone even into Pakistan, and sometimes find that large numbers of civilians, including children, are at the receiving end of the bombing. It may have the success of taking out people considered to be enemies, but it has the horrifying additional outcome of killing innocent people.

The closed material procedure will make it impossible for us to reach into these dark parts of conduct that may be taking place in our name. It would be shameful to allow this to go through our House without calling it to account. It is not a piece of legislation to which we should put our names. I regret that the Labour Benches are empty. Perhaps it is because a lot of this might have happened on a Labour Government’s watch.

[Lord Lester of Herne Hill]

The noble Baroness gave the example of drones. Could she explain how anything in the Bill would impact on a claimant in the context of drones?

[Baroness Kennedy of The Shaws]

There is a case going through the courts. A British resident called Noor Khan is seeking a judicial review. He wants a declaration of unlawfulness made because his father—a civilian, not a terrorist—was killed in northern Waziristan in an American drone attack. This was not in the conflict area of Afghanistan but in Pakistan, and the victim was a civilian casualty. I am told that a number of cases that concern people are linked to the use of drones in Afghanistan, Pakistan and elsewhere. People in Britain will call into question certain legalities because our domestic law covers the behaviour of people who are not in a war zone, and who therefore are subject to domestic law. The noble Lord, Lord Lester, will know that that does not mean that international humanitarian law gives them any protection.

[Lord Lester of Herne Hill]

I am sorry to press the noble Baroness, but I still do not understand what she is saying. It must be my fault. I would like to know how, in a judicial review of that kind about drone policy, what is in the Bill will change the matter in a way that will not allow the applicant for judicial review to secure justice. How will the process be different from what we have now? That is what I am trying to understand.

[Baroness Kennedy of The Shaws]

I am interested to hear the noble Lord, Lord Lester, the great human rights lawyer, defending secret processes of this kind. There is no doubt that applications will be made for closed material proceedings in those sorts of cases because the state will not want to divulge the circumstances in which locational intelligence was given. What we as members of the public would want to know would be whether we are playing the role of providing that kind of intelligence, which may in turn lead to the deaths of many civilians, particularly in places that are not covered by war.

I call upon the moral impulses of the House. Do noble Lords think that this is a proper way of dealing with activities that may be covered by national security, when national security is being used as an excuse to cover unacceptable behaviour? It may mean that we will never be able to find out the truth about rendition and the use of torture, and about any role that British operatives played. That would be a very unhappy state of affairs, and a departure from a very proud part of our common-law history and principles. It is a source of regret that so many people are prepared to go down this road.

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[Lord Reid of Cardowan]

Let me finish with the questions that I have been asked and then I will happily come back to the noble Lord.

The third question is whether I am off the point. I do not see how this issue can be discussed without a deeper understanding of the security—I truly do not—and yet in this Chamber I hear speech after speech about law but no one sets out the circumstances in which we have to face these threats. We might as well try to exist in a vacuum. Of course we can turn our eyes and act blind to the world outside but we have at least to try and understand the circumstances that give rise to what the Government are doing, or alternatively we will be forced to say that they are either mad, bad, corrupt with power, lapdogs, murky, conspirators or acting at the behest of evil civil servants.

[Baroness Kennedy of The Shaws]

The noble Lord is presenting a parody of the argument that I have made, and I refute it. I understand—as does everyone in this House because we have debated it so often—the incredible context of having to deal with terrorism. Sensibly, however, most of us accept that you do not sacrifice the high standards of legal procedure that we have developed in this country to the terrorists. When the British state does that, it descends to the level of the people who bomb, kill and do all the things that the noble Lord has described so powerfully. If there is any question that our security services have in any way fallen from grace—and no one is suggesting that they have tortured—in the standards that we expect and which they normally set store by themselves, it is important that that should be explored so that we can put right any of the wrongs that have taken place. That is the issue.

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[Baroness Manningham-Buller]

My Lords, I feel I have to rise to speak because of the presumption of guilt suggested by some people on the part of my organisation in the past. I should say first that torture is a crime in our law and in international law. It is morally wrong, ethically wrong and it is never justified—even when, as the Americans would claim, you get the truth from it. That is irrelevant. It is not what a civilised country does and it is illegal. For my colleagues to be accused of it is to accuse us of a crime.

I can now talk about the Binyam Mohamed case. We interviewed him in Pakistan in 2002, where he was in American custody. Later that year we sent questions to the Americans to put to him. There were two things that we did not know in 2002. We did not know that our closest intelligence ally was resorting to waterboarding; that is, torturing people. We did not know that in 2002. Additionally, we did not know that Binyam Mohamed had been rendited by the Americans to Morocco. Had we known that, we would have been more careful about the questions we had put, as I said to the parliamentary committee in 2006 and as it was recorded in its report. Certainly we regretted that.

Because torture is a crime, the person who interviewed Binyam Mohamed in Pakistan was extensively investigated by the police. A report went to the Crown Prosecution Service and it was decided that there was no case to answer. If any of my colleagues had been involved in criminality, the criminal courts—we are not talking about civil proceedings here—the police and the Crown Prosecution Service would have been involved. We are absolutely subject to the criminal law, and so we should be. But I find it pretty difficult to accept a presumption of guilt without it being proved in a court.

I shall put a caveat on that, picking up the comment of the noble Baroness, Lady Kennedy. I cannot talk about matters to do with Libya because those are the subject of current civil proceedings, as I understand it, and criminal investigations. It would be inappropriate for me to comment at this stage.

[Baroness Kennedy of The Shaws]

I must ask the noble Baroness if she was listening when I made my speech. I made it very clear that there was no suggestion of British officers being directly involved in torture. I spelt out clearly and precisely what the noble Baroness has just described—being in places where people were being detained, providing questions and information that was ultimately used in interrogations where horrifying procedures were used. We know that happened in Binyam Mohamed’s case, and I made the suggestion that there was compelling evidence that it had happened in other cases. I would ask this question of the noble Baroness: does she accept that Britain played any role at all in rendition?

[Baroness Manningham-Buller]

Because it relates to the Libyan thing, I cannot answer the question. It is the subject of criminal investigations.

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[Baroness Kennedy of The Shaws]

Does the noble Baroness agree that—

[Viscount Younger of Leckie]

My Lords, perhaps I may remind the House that the Companion sets out that, at Report stage, a speaker other than the mover of an amendment, a Minister or the noble Lord in charge of the Bill can speak twice only if granted the leave of the House, and then to explain a material point of his own speech that may have been misunderstood or misquoted.

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[Lord Dubs]

I will be very brief. We now come to the Norwich Pharmacal issues: applications for public interest immunity. In this group there are two points to which I would like to draw the attention of the House. First, there is subsection (4) in Amendment 65, where we would exempt from open disclosure any matters that are the basis of,

“any agreement with foreign intelligence services that intelligence is shared confidentially and cannot be disclosed without the consent of the intelligence service which provided the intelligence”.

That is accepted in this amendment.

However, the amendment really seeks to say that there are certain domestic and international wrongs that should not be kept quiet or confidential. They are listed. They are matters of the utmost seriousness: genocide; murder; torture; slavery; cruel, inhuman or degrading treatment; child abuse; or,

“serious breaches of the Geneva Conventions”.

It is my contention that these matters are so serious that they ought not to be protected with confidentiality under the Norwich Pharmacal procedures, but that they should be made open and publicly known. If they are to be made open and publicly known, of course that fact in itself will possibly deter people from being involved in such criminal activities. I think that this is a worthwhile amendment. I beg to move.

[Baroness Kennedy of The Shaws]

I, too, feel strongly that this is an issue of some importance and I thank my noble friend Lord Dubs for raising it. I know that it is too late an hour for us to consider voting but, when these matters are taken up in the other place, I would really like this to be considered. In any consideration, one wants a judge to recognise that there are some things that basically cannot be covered even by national security or by any control principle that operates between intelligence services.

If we were to discover that there had been crimes of such an egregious nature, such as genocide, murder, torture, slavery, and all the most horrifying of crimes that we can document, and that those crimes would be covered by some kind of secrecy, that would be a source of great shame to us. That must be something that is taken into consideration when looking at ways of introducing new procedures into our courts. In the end, any consideration of such serious human rights abuses has to trump even issues of national security.

[Baroness Williams of Crosby]

I also support this important amendment. We know that some countries that are considered to be relatively close allies of the United Kingdom have human rights records that are indescribably bad. It would be a tragedy to have a situation where we cannot take seriously these human rights violations because of the limits that are placed in the language of this Bill.

We are increasingly seeing human rights becoming a new, very important structure of international law, which perhaps encouraged such movements as the Arab spring, and which undoubtedly helped to release many people from the acts of coercion by their own governments. We have close relations, as does the United States and our other allies, with some countries with poor human rights records. When those poor human rights records enter into the area of international criminal action, of the kind described by the noble Lord, Lord Dubs, I hope that we recognise that we have an obligation as a country with a very strong record of supporting human rights to maintain that standard and record. Indeed we are basically the founder of the original European Convention on Human Rights legislation, which binds us all today. We therefore will expect the Government to look very closely at the wording of this part of the Bill before we get to Third Reading to ensure that it will not mean that such major acts of criminality will be disregarded because of our legislation.