Justice and Security Bill [HL]

Baroness Manningham-Buller Excerpts

Monday 23rd July 2012 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, I think that this may be an opportunity for the Home Office, in particular, to reconsider the advice apparently previously to it by the holder of the office of Attorney-General. With this possibility, there may be a way of introducing more flexibility into the general role with regard to intercept evidence than seems to exist at present.

[Baroness Manningham-Buller]

My Lords, I should like to comment on paragraph (e) in Amendment 69ZB tabled by the noble Lords, Lord Hodgson of Astley Abbotts and Lord Dubs. I can assure the Committee from my past experience in the Security Service that if this paragraph were to appear in the legislation, it would have a chilling effect on sources and on their willingness to provide information. I predict that many existing sources would refuse to continue in their role and new ones would resist recruitment.

Sources provide a range of information—some of it to be discounted and some of it valid but all to be assessed, which is something that the judge will seek to do. Some of that intelligence from human sources has prevented major atrocities and loss of life. However, when individuals agree to provide that information in confidence, they seek reassurance that their lives will be protected, and anonymity is key to that. If they were identified, I am afraid that not only would they need to be resettled but very few more would be willing to work for the Government.

[Lord Beecham]

My Lords, my noble friend Lord Dubs referred to the quantity and indeed the quality of legal advice which has been proffered to the Government and to the noble and learned Lord in particular by several Members of your Lordships’ House. I would not presume to offer legal advice but, if I did, my charging rate would be considerably less than that which noble and learned Lords would, quite rightly, be able to charge. Nevertheless, I support the thrust of the amendments that we are now discussing. I take the point made by the noble Baroness in respect of paragraph (e) in Amendment 69ZB, and I think she has a significant point in that respect. However, the overriding concern is not to depart far, if at all, from the basic provisions of our system in guaranteeing a fair trial of the issues in civil, as well as criminal, matters and in the question of equality of arms.

The noble and learned Lord, Lord Woolf, referred to the perhaps superfluous character of amendments which seek to empower judges to do what they can in any case do. I do not read the amendments quite in that way, particularly Amendment 69ZB, much of which imposes a duty on the Secretary of State, in particular in relation to the disclosure of information to the special advocate for the purpose of the hearing. That seems to me a compelling argument. I do not necessarily subscribe to every one of the points made in that amendment but I think that, taken as a whole, they are matters which the Government should consider very carefully, and I entirely endorse the views of my noble and learned friend Lord Goldsmith in that regard.

--- Later in debate ---

[Lord Hodgson of Astley Abbotts]

My Lords, I am extremely grateful to my noble and learned friend for the very full response he has given to the debate. Obviously, there is a lot of information for us to absorb and think about during the Recess before we get to the next stage of the Bill.

When a couple of non-lawyers such as the noble Lord, Lord Dubs, and I propose an amendment and we are followed by a past Lord Chancellor, a past Attorney-General, a past Lord Chief Justice and a past head of the security services, we need to be pretty careful about what we are doing and sit up and listen. The purpose of the amendments was to improve the balance and the fairness. They were probing amendments at this stage and intended to shine a light of transparency wherever and as far as we could.

The noble and learned Lord, Lord Woolf, argued about proportionality. He said that this would apply in only a limited number of cases in civil proceedings and that the issue of judicial discretion could carry the day. However, in previous debates I have said how in a very few cases that could involve the minority community and in particular the Muslim community, which could have a disproportionate impact on the way that our society operates and the way that justice is seen to be operating. I have referred to my own visits to schools and so on as part of the Lord Speaker’s outreach programme, where one sees how extremely sensitive these communities are about the way our judicial system works. Therefore, I am concerned about that. I am also concerned about what the noble Lord, Lord Beecham, said about mission creep. His Amendment 69A concerns another area of danger in Clause 11—where the mission could be expanded quite a lot on the basis of regulation—which we all need to explore.

The noble Baroness, Lady Manningham-Buller, feels that I have got it in for the security services. I have not got it in for the security services at all—

[Baroness Manningham-Buller]

I assure the noble Lord that I have no such thoughts.

[Lord Hodgson of Astley Abbotts]

I am merely testing the case and, as I have said before, I quite understand the anonymity of sources and the danger of publicity to them. However, perhaps I may just say that the amendments that the noble Lord, Lord Dubs, and I have tabled today refer to the role of the special advocate, who is security cleared. Therefore, we should be able to rely on that.

With regard to Amendment 69, my noble and learned friend said that this was an issue of case management where the parties have agreed and that it was business as usual. Unfortunately, this is where the ice cracks under my feet because I have no idea whether that is a good argument. I see nothing about parties having agreed in the Bill at present. However, I am sure that we will have a chance to consider this further. I will certainly need further advice before going any further on the point. Therefore, at this stage, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Falconer of Thoroton]

There are two points. First, I am seeking to say what the dilemma is for the House. It is necessary for the House first to come to a conclusion about whether there is a difficulty in relation to the flow of information. If it comes to the same conclusion as the Joint Committee on Human Rights came to, based on Mr Anderson’s evidence, the question is: what is the right solution? I think that everyone around the House agrees that it should be proportionate.

On the specific questions, I am not in favour of a complete ouster and, as I understand it, neither are the Government, because they are saying that any certificate given by the Secretary of State is subject to judicial review, so it would not be an ouster of a sort that other Ministers tried on previous occasions. This would leave in the ability to say, “Could a reasonable Minister have given such a certificate?”. There are two bits to that. The approach of the noble Baroness, Lady Williams, is to cut out of the approach that is being suggested anything that might make an allegation of human rights abuse. I can see the attraction of that, but the consequence is probably that Norwich Pharmacal is left untouched, and you have the problem of less intelligence coming. I do not want to sound too dramatic but the indications from the intelligence services, which I do not question in any way, tend to be that that might have a significant effect on the Executive’s ability to protect more individuals. I can see the former head of one of the intelligence services behind me correcting me on this, but it is quite a significant part of the ability to protect ourselves.

If one took the route of the noble Baroness, Lady Williams—if I may call it that—that would avoid giving any protection at all. The route of the noble Lord, Lord Lester, is, “Take the approach that is being suggested. Have the ability to certify. Limit it to the control principle. Cut out everything else. Make it judicially reviewable but accept that there are occasions when there will be gross breaches”. I think he is suggesting in his Amendment 85 that it is something more than a judicial review balance, something else apart from judicial review, because it says in effect that the principles of judicial review will apply to considering where the public interest lies, including considering whether there have been gross breaches of international law. That is not quite the wording but that is what it amounts to. That still seems to me like judicial review, so it is for the Minister to decide whether there is a basis for concluding that it might affect the control principle. If he comes to that conclusion, the certificate is not attackable. That appears to be what is being proposed.

[Baroness Manningham-Buller]

My Lords, this is obviously one of the trickiest bits of the Bill and I am very grateful for the analysis of the noble and learned Lord, Lord Falconer, because he has forced the Committee to focus on some of the key issues. This was not a problem when I was director-general. Norwich Pharmacal was not being used in national security cases, so it is a relatively new phenomenon.

If the Committee will allow me, I should like to make a slight deviation on the question of public interest. I accept that there have been occasions when Governments of all persuasions have used secret certification to label things secret when they have not been secret at all. I acknowledge that that has happened. However, I hope that the Committee will really accept—some speakers appear not to have done so—that there are real and serious secrets that, if exposed, will cause substantial risk to the public interest. I know that I keep saying that and I hope that noble Lords will forgive me if I repeat it.

The noble Lord, Lord Reid of Cardowan, made a speech about the threat. I shall not go into that because I retired five years ago and I think—in fact, I know—that the nature of the threat has changed. However, the practicality of intelligence work is that you have to work with a great many other services. If he were in his place, I would contradict the noble Lord, Lord Reid, saying that you trust them all, because of course you do not. In some cases, you are dealing with countries with very different standards of law and different attitudes to human rights and so on. On the other hand, as I said in my Reith lecture, you cannot just talk to the Swiss, however nice that would be. We are facing a global threat. We need to talk to the parts of the world that have an understanding of and familiarity with that threat, and the security and intelligence community does so with caution and care. It will not always get it right but it is tuned into the problems.

The reality is that we do not deal just with the United States. The noble Baroness, Lady Berridge, is right that we are the net receiver of intelligence from the United States—naturally enough, as it spends squillions on its intelligence community and it is very much bigger. However, we also deal with people around the world, including our European allies, with whom intelligence is exchanged extensively every day of the week. We deal with people in the Middle East and the Far East and all around the world. Therefore, we have a difficulty because we will not always know where the intelligence that we are given is derived from and we immediately run into the issue of how it has been obtained. Questions will not resolve that—you will not get the answers. If we have a reduction in intelligence, we will begin to lose insights, and according to David Anderson that is already happening.

It is no consolation to me at all to be told that the Americans will still give us life-saving intelligence. How will one know that it is life-saving? The nature of intelligence work is putting together information from perhaps five or six different countries and 20 different organisations—little bits and pieces of a jigsaw that, together, might save lives. If something tells us, “This is going to happen tomorrow, so you can do something about it”, that is fine, but intelligence is very rarely obviously life-saving when it is first received. Therefore, if that intelligence is reduced or rationed for reasons that, if the noble Lord, Lord Lester, is right, may be mistaken in some cases, that will be a very serious problem for the United Kingdom.

I should also like to point out an irony here. Some of these problems might not have arisen if we had had a closed material procedure, which we talked about on an earlier part of the Bill, at an earlier stage. Putting much more material into the court—albeit through the, as I absolutely accept, not entirely satisfactory arrangement of CMPs—means that there is a chance for HMG to defend themselves and for the claims of a claimant to be scrutinised and judged by an independent judge. I suggest that not being able to defend themselves has been very damaging for the Government and for the intelligence and security community. Anecdotal allegations have assumed the status of facts. Some have been, and are being, investigated as crimes, and obviously it would be inappropriate for me to mention those in any detail on this occasion. However, others are left in limbo, unresolved and under damaging clouds of accusation. Therefore, if in future we can resolve those, that will be very helpful. If we can reach a solution to the difficulties of Norwich Pharmacal that protects other people’s intelligence from this sort of exposure, we will still be in business. If we cannot protect it, it will not just be the Americans who reduce the flow of intelligence, as David Anderson described in his evidence, but many other people as well.

Justice and Security Bill [HL]

Baroness Manningham-Buller Excerpts

Tuesday 17th July 2012 Lords Chamber

[The Earl of Erroll]

My Lords, I shall make a couple of topical points in support of the noble Lord, Lord Deben. This is very complex. In the old days, in a less complex world, we knew how to finesse these things in a common-law society. Now we are moving towards statute law. The French know how to disobey the law sensibly in view of local circumstances. They know that you cannot slavishly obey every rule. We have not learnt that yet, so we should be very careful about how we set the rules in case they are slavishly obeyed. Somehow blurring the boundaries is much more sensible. I am not sure that having this whole thing of national security quite works. We have seen photographers being stopped for photographing perfectly innocent targets in the name of national security. I am very worried about the way that certain people will use these rules to stop normal activities. We regard ourselves as a free country but, if we are not careful, we might cease to be free. We have to worry about how other people, less sensible than us, may interpret rules in a very strict way in the future.

[Baroness Manningham-Buller]

My Lords, I say to the noble Lord, Lord Hodgson, that I certainly did not say that I knew all there was to know on the subject. I understand the concern over the misuse of this phrase to which everyone has referred. No one in this Committee would support what happened to the son of the noble Lord, Lord Deben, and his dog or the use of the phrase to cover embarrassment. These things are absolutely not to do with national security, which is being used as blanket cover.

--- Later in debate ---

[Lord Hodgson of Astley Abbotts]

My Lords, I began by saying that I did not believe that this was an open-and-shut case, and so it has proved. My noble and learned friend has referred to the “statutory straitjacket” and problems thereof. Interestingly enough, while the debate was going on, I was passed a note by one of my noble friends showing a case in which he was involved, where national security was invoked in quite an extraordinary way. I do not therefore think that I have yet reached entirely firm ground.

I am grateful to my noble friend Lord Deben for his powerful and very apposite remarks and speech. My noble friend Lord Lothian is of course an eminent Scottish advocate. I am not an advocate, Scottish or otherwise, but in reference to his remarks on Clause 6(2) about the court deciding, I am told that where a judge is faced with a statement by the Secretary of State leading to a CMP—not a weighing of evidence like we have in PII—to the effect that this would be damaging to national security, the judge is unlikely to push back on it. Therefore, the idea which the clause might technically give rise to is not, according to legal opinion that I have heard, likely in practice to happen. Those who have experience in your Lordships’ House will be able to discern this better than I can. That is something which we can no doubt explore another day.

I said that the noble Baroness, Lady Mannigham-Buller, had forgotten more about national security than I would ever know. It was meant to be a compliment, for the avoidance of doubt.

[Baroness Manningham-Buller]

I take it as a compliment. It just sounded as though I had been boasting, and I would not want to do that.

--- Later in debate ---

[Lord Gold]

My Lords, I am concerned that, if the special advocate is made responsible, there is a greater risk that he will rely on this amendment and withdraw from the proceedings. Although this is not a perfect situation, it is better that the advocate is there and does not withdraw; otherwise there is no representation or no points made independently at all.

[Baroness Manningham-Buller]

My Lords, I want to comment on one of the amendments in this group. Looking at the first part of Amendment 67, I understand what this amendment is trying to do, which is to improve the relationship—or, indeed, to create the relationship. However, the special advocate is not able to judge the damage that would be caused by a summary. It is the relevant person who is defined in the Bill who prepares any summaries of material. I do not think that this is workable because the special advocate, however briefed he is, will not understand necessarily the sensitivities behind the intelligence and the damage that would be caused.

[Lord Lester of Herne Hill]

My Lords, I would just point out that Amendment 62, which has not been included with this group of amendments, will deal with a particular way of trying to alleviate the problems about the special advocate. We will come to that in the next group.

Justice and Security Bill [HL]

Baroness Manningham-Buller Excerpts

Wednesday 11th July 2012 Lords Chamber

Finally, I raise a small but important point. Amendment 40 outlines that the matter “can be determined”. This is important as it is conceivable—and we have heard a lot in Joint Committee about what is conceivable when dealing with national security— that there may be cases where the judge is satisfied that disclosure would be damaging to the interests of national security but even a CMP cannot determine them. For instance, the sensitive material may be so central to the issue in the case that the judge, who is not an omniscient being, believes he or she cannot make a judgment on it without questions being put to the claimant or, at the very least, the special advocate being able to take instructions. I believe and hope that this situation is addressed by the wording of Amendment 40. I support these amendments.

[Baroness Manningham-Buller]

My Lords, I hesitate to rise in this very interesting debate, which has been monopolised by noble and learned Lords. I am not learned, so the point I would like to make is a practical one and very short. As the independent reviewer of terrorism has noted, there are a very few cases that are so saturated with extensive roomfuls of highly sensitive material that talking about the odd document and the residue will not work. I make that point because I think there are these very few cases where the whole case is substantially based upon highly sensitive material, and we need to be aware of that.

[Lord Falconer of Thoroton]

It has been an excellent debate. I would like to single out for special mention the noble Lord, Lord Hodgson of Astley Abbotts, and the noble Baroness, Lady Manningham-Buller, the only two non-lawyers who participated. It is important that we put this debate into a non-legal context because normally the legal answer that follows comes from the facts.

In the next two days of Committee we shall deal with two completely different problems. The problem we are dealing with here is not ultimately the protection of national security; it is how there can be fairness in a trial brought by a claimant for damages when he alleges things against the Government to which they may well have an answer which if disclosed to the claimant would damage national security. I say that national security is not in play in this first group of issues is because ultimately the state can refuse to disclose that material in litigation. They can protect national security that way, and indeed they will, but at the cost, as they would see it, of unfairness to them in not being able to deploy their full case.

In this first group of amendments—those to Clauses 6 and 7—we are dealing with fairness in the context of a claim for damages or judicial review being brought against the state. Just picking up what the noble Baroness, Lady Manningham-Buller, said, which seems absolutely right, it is easy to envisage a situation where a Minister or government department has come to a conclusion based entirely on intelligence material which would in this hypothetical case reveal the reason they came to it, but they cannot disclose a word of it because it would damage national security. That is the situation that the first section of this debate is dealing with—fairness.

The second group of amendments—which we shall come to, perhaps, in five years’ time at the rate we are going at the moment, having had an hour and 38 minutes on this absolutely fascinating topic—is not ultimately to do with fairness but with national security. The amendments touch upon Norwich Pharmacal orders, where the court can order disclosure of information or documents to a claimant and the defendant is not able to say, “OK, we leave the pitch here and we do not agree to any of that”. They must, under the current arrangements, disclose things, and that has two potential affects—

Justice and Security Bill [HL]

Baroness Manningham-Buller Excerpts

Wednesday 11th July 2012 Lords Chamber

[Baroness Manningham-Buller]

My Lords, I am surprised to be compared to a regulator on the strength of the organisation to which I once belonged. I see very little parallel between the security and intelligence agencies and regulation. The conclusion that that makes them overcautious is therefore entirely spurious.

Of course, public opinion of and confidence in the judiciary is extremely important, and we do not want to do anything to damage that. Notwithstanding comments in the Daily Mail, I think that public confidence in the security and intelligence community is not helped by the fact that, in many cases, we have been unable to defend ourselves because of the problem that we are describing today. None the less, as I said at Second Reading, the support that my colleagues get from the public is extensive and perhaps greater than the noble Lord, Lord Lester, suggests.

Another point relates to secret information. We need to have the confidence of those—including many young men and women from the communities to which the noble Lord, Lord Hodgson, referred—who give information to the security and intelligence agencies at risk of their lives and in secret. That is one of the fundamental reasons for secrecy. I ask the Committee to remember that in thinking of the confidence in other regards that we want to maintain.

[Lord Thomas of Gresford]

I respect the views that the noble Baroness has just put forward, but I do not think that public confidence is improved if a closed judgment is given on closed material to the Government in a particular case. It is essential that the public know what is going on as much as is conceivably possible. The interests of national security can be invoked in only the smallest area of cases if confidence is to be maintained.