Justice and Security Bill [HL]

Debate between Baroness Kennedy of Shaws and Lord Wallace of Tankerness

Tuesday 26th March 2013 Lords Chamber

[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.

Privacy Injunctions

Debate between Baroness Kennedy of Shaws and Lord Wallace of Tankerness

Monday 23rd May 2011 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, as I have already made clear, it is almost self-evident that the Bill of Rights 1689 and the Parliamentary Papers Act 1840 were promulgated in times very different from today. Notwithstanding that, there are clearly some important principles enshrined in them. Indeed, on numerous occasions, even in recent times, we in this House have sought to emphasise their importance and how much we cherish them. In terms of the Joint Committee and in the opportunity to look much more broadly at parliamentary privilege, that will be an opportunity to consider in detail some of these issues. The Master of the Rolls’ report published last week has a chapter devoted to parliamentary privilege and identifies some of the tensions that are there. All of those elected to the other House and Members of this House take parliamentary privilege very seriously, and if we wish to say anything on matters that are sub judice it should be done only with the greatest of forethought.

[Baroness Kennedy of The Shaws]

My Lords, I, too, welcome the establishment of the Joint Committee. What I really want to ask is whether the new media will be part of the remit, and whether there are ways in which one can restrain publication there. I have a great reluctance in saying that I do not think it is possible; I think we have crossed a Rubicon, and that new technology now means that it is now very hard to restrain publication of matters that invade privacy. Although our courts seek to influence courts in California to have disclosure of names by twitter, the culture in the United States is very different and it is very unlikely that there will be disclosure by courts there. In my experience, even getting them to disclose matters relating to national security issues is difficult enough. The American courts are very protective of freedom of the press. Will the remit of the Joint Committee look at the new media—twitter and the like?

[Lord Wallace of Tankerness]

My Lords, the noble Baroness raises an obvious but very important issue on the new media, whose relevance has been very obvious to these events. I have to confess that I do not tweet. I may have been one of the last people in the kingdom to find out the subject matter of some of the tweets over the weekend. It would be an issue that the Joint Committee would want to look at, because it is very pertinent to the kind of issues that we are talking about. But just because it makes it far more difficult to police and enforce, that does not make it right to breech an express order of the court. Obviously, if there are means to identify those who did it, the appropriate procedures should be followed.