Justice and Security Bill [HL]
Baroness Kennedy of Shaws Excerpts(11 years, 8 months ago)
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Lord Owen
My Lords, as a former Minister with responsibility for MI6 I realise that although it has a need to have and an interest in having its views expressed—and that was done very well by the noble Baroness, Lady Ramsay—there is also a prior consideration, and that is to write on to the face of the Bill that we have almost unanimously agreed that this closed procedure can be done only in a tiny minority of cases, or, as other spokesmen have said, only as a wholly exceptional device. I can see no objection whatever to the wording of the amendment of the noble Lord, Lord Beecham, and I profoundly hope that it is agreed to.
The other amendment, proposed by the noble Lord, Lord Macdonald, raises very serious questions about whether we would see this new procedure, which I now think is necessary, in operation. I agree with everything that the noble and learned Lord, Lord Lloyd, said about that and I do not need to repeat his arguments. I think that some would regard the amendment as a blocking mechanism, although I am sure that it was not proposed in that way; I am sure that it was proposed as a double safeguard. However, it would not deal with the issue that, above all, has concerned me: how you protect source material, particularly if it comes through the intelligence of another country. We cannot imagine that a totally rational debate will always take place in a law court. This is an issue of whether you are supplied with that information. If there are profound doubts about the procedures—right or wrong—and if they are held by countries which have been our intelligence partners over many decades and whose information has sometimes saved a considerable number of lives in this country, we have to take account of how they see that procedure. Were the amendment of the noble Lord, Lord Macdonald, to be passed, we might find that other countries would not see the procedure as safe. I would therefore stick to the Government’s amendment and their wording and not go along with the amendment of the noble Lord, Lord Macdonald.
Baroness Kennedy of The Shaws
My Lords, I support Amendments 6A and 6B. I think that there is agreement in the House that CMP should be used only in the most exceptional circumstances and that it so radically departs from one of the most fundamental of our common law principles that it is essential that its use is kept to a minimum.
I endorse what the noble and learned Lord, Lord Brown, said about the process that happens in a court. All this sometimes seems arcane or obscure to those who are not lawyers and it is easier to pin it down by having examples. Those of us who practise in the courts and often deal with security matters know that the process described by the noble and learned Lord, Lord Brown—where a judge will consider whether you can redact documents and take out references or anything else that might in any way disclose the identity of an informant—takes place in these cases and has done over the years. There is the business of someone giving evidence with their identity never being disclosed, or giving it from behind a screen, and there are other ways of doing it using new technology. There are many mechanisms, quite different from the PII process, which can protect the things that the security services are sensitive to, and it can be done with agreement while retaining the sense of as much openness as possible.
My sense of what the House wants here is for the closed material procedure of barring the defendant and their lawyers from the court and from hearing the evidence—which is fundamentally unfair and flies in the face of the idea of a fair trial—to happen in the most exceptional circumstances. It therefore seems extraordinary that there should be resistance to the notion that the Bill should state that such a process should be used only as a last resort. The argument made for not doing so is that it would be time-consuming for the Secretary of State—because the Secretary of State, even in this minute number of cases, would have to look through the papers and acquaint him or herself with the detail—as well as for the court. As your Lordships have heard from others who, like me, have participated in proceedings of this kind, one would expect a Secretary of State or a judge in a case of this kind to consider with care the nature of the evidence and whether it was possible to keep it as open as possible. That is what we would expect, and it is certainly what I would expect of a Minister who was exercising authority. Otherwise we would ask, “If the Minister does not want to examine the evidence that is being kept secret, who is exercising the authority? Is it the Minister or is it the security services?”. We really have to be very careful here. I remind the House of what happened in Matrix Churchill, where we understood that there was just a signing-off of requests by the security services, which was of great discredit to government at the time. I would warn against what this procedure will do to confidence in government, confidence in the security services and confidence in our judicial processes.
Baroness Kennedy of The Shaws
My Lords, I point out to the Minister that I, too, am a member of the Joint Committee on Human Rights. We looked at whether it would take many months for the Secretary of State to review the material. We were firmly of the view that that is not what is required of the Secretary of State at all. It is only about looking at material that would move it into in the special category which would mean that it would require closed material proceedings. This business that it would take insurmountable periods of time to examine the material is not what we are talking about. The Joint Committee was absolutely satisfied on that.
Lord Wallace of Tankerness
My Lords, I fully accept that the Joint Committee on Human Rights and your Lordships’ Constitution Committee have said that it would be undesirable to go down the path of an exhaustive PII. The point that I am trying to make to your Lordships’ House is that when we make law, the Joint Committee on Human Rights will not be deciding how it is interpreted, it will be the courts. The courts will no doubt be at the receiving end of very eloquent and persuasive arguments from special advocates as to why they should exhaust different routes. That is our concern: if we include such words in the Bill which allow such arguments to be made, the courts may well feel that they must take those exhaustive steps before entertaining an application for closed material proceedings. We believe that that would take away much of the purpose of the provisions.
In conclusion, it is not as if we are just leaving it there. As I said in my opening remarks, we believe that the tests that we have in place, giving considerable discretion to the judges, the revocation possibilities during the review and the disclosure phase, and the requirement on the court to consider at the end of all the disclosure whether closed material proceedings should still continue constitute a very powerful weapon in the hands of the court and at judges’ discretion that will ensure that those procedures will be used only in truly exceptional cases.
My noble friend Lady Hamwee asked about the change from “must” to “may”. She is absolutely right: it is only if all those conditions are fulfilled that the court may grant an application for and make a declaration of closed material proceedings. Even at that stage, the court has discretion whether or not to do so. The noble and learned Lord, Lord Woolf, asked whether it gives the judges discretion to do the right thing in the circumstances of the particular case. I very much believe that what we have put in place in the other place does that. I fear that to accept the amendments could in some ways undermine that, although I fully understand why they have been moved. I believe that we have the right discretion for our judges in place. As the noble and learned Lord, Lord Goldsmith, said, trust the judges. On that basis, I beg to move.
Justice and Security Bill [HL]
Baroness Kennedy of Shaws Excerpts(12 years ago)
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Lord Pannick
My Lords, I shall speak to Amendment 56 in this group, which has been proposed by the Joint Committee. It would ensure that rules of court make provision for the media to be notified of any application for a closed material procedure so that they can make representations on the issue to the judge. The amendment would also ensure that a party to a closed judgment may apply for it to be made open at a later stage. It is not sufficient for the Secretary of State to give notice of an application for a CMP to the parties to the case. The reason for that is that a CMP will severely impede the ability of the press to report legal proceedings. It may be that it is only the media who are concerned about a proposal to introduce a CMP in a particular case; the other parties may not be focusing on the matter or may not object.
It is also essential for rules of court to provide a mechanism by which judgments that are closed can be reopened and published after the passage of time if there is no longer any reason for secrecy. These provisions were recommended by the Joint Committee, and perhaps I may quote what was said yesterday in a lecture by the president of the Supreme Court, the noble and learned Lord, Lord Neuberger:
“Without judgement there would be no justice. And without Judgments there would be no justice, because judicial decisions, at least in civil and family law, without reasons are certainly not justice: indeed, they are scarcely decisions at all. It is therefore an absolute necessity that Judgments are readily accessible”.
I accept entirely that if there is a CMP, of course that part of the judgment will be closed, but it is essential that rules of court allow for the possibility of a later application to open up that which no longer needs to be secret.
Baroness Kennedy of The Shaws
My Lords, I support the comments of the noble Lord, Lord Pannick. I serve on the Joint Committee on Human Rights and we were concerned that confidence in the judiciary is absolutely vital in our society. The press coverage of matters and their entitlement to come to a court and to make applications is an important element of democracy and open justice. We would encourage the Government to accept this amendment.
Baroness Stowell of Beeston
They will be notified, if not directly, by the process of the court notifying both parties to the claim. If the parties wish to notify the media, they can. The media will also be aware through the court disclosing its business in the normal way. The media will also be aware if the claimant wishes to tell them—as I am sure many will—about accusations that they wish to bring against the Government and the reason for them bringing the case in the first place. It is quite unlikely that the media will not be made aware of the application that has been made for a closed material procedure.
I would also add the point I made in Committee, that the media are not an institution with formal responsibilities to represent the public interest. Once they are notified formally in this way, it seems sensible or logical to me that they would then feel that they need to know more about the case—one limb of the amendment covers this—in order for them to have some kind of useful contribution to make about whether this should be a closed hearing or not.
Baroness Kennedy of The Shaws
In what way is this really significantly different from the many circumstances in which the press are excluded, or are advised not to print matters that are taking place in a court, such as the names of individuals, and a notice is posted to ensure that that is not done? We are really asking for a process of posting. The Minister is, of course, absolutely right that the rumour mill is likely to lead to people knowing and to the press finding out, but this is about making sure that there are formal processes rather than relying on the press being informed by lawyers, the parties or persons who would want the press to become interested. I would have thought that this is much better done through a formal process. I wonder why it is so different from other cases.
Baroness Stowell of Beeston
The amendment means that the judge will notify the claimant that the Secretary of State has made an application. Following normal practice, the judge’s decision will be part of the public record and so the media will be informed of that in the normal way.
Obviously, the press will have access to all the open elements of the case in the same way as they have access now. The sort of scenario that the noble Baroness describes would be a normal open court hearing within which there are aspects that the judge has decided to put some rules around. This is a specific issue about an application for a CMP and is therefore slightly different but, in terms of the direct analogy with the open part of the hearing, it would be exactly the same.
Justice and Security Bill [HL]
Baroness Kennedy of Shaws Excerpts(12 years ago)
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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.
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.
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.
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.
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.