Scotland: Independence Referendum

Baroness Neville-Jones Excerpts

Thursday 30th January 2014 Lords Chamber

[Baroness Neville-Jones (Con)]

My Lords, I add my thanks to those of other noble Lords to my noble friend Lord Lang for securing and leading this debate and for the wisdom of what he said. The noble Baroness, Lady Goldie, is no longer in her place, but it is a great pleasure to have her in this House. I agree that we have a great new weapon here—her call to arms was certainly very forceful and also quite right.

Much of the comment on the implications of the referendum in Scotland has focused on the economic aspects, but in the course of the debate so far we have also begun to see a wider picture. In a moment I will focus on the security side, which has already been mentioned by some other noble Lords. First, however, following what the noble Lord, Lord Kerr, said, I should just like to say that it is a very unattractive prospect to be caught like a pig in the middle between the Scottish Government and the Council when trying to do something. I see the point that he made—that it would be extraordinarily difficult. It is not clear to me whether the other members of the Council would play ball. That is only one of the many great difficulties that this potential scenario throws up.

Before I go on to talk a bit about the issues that conventionally come under the heading of security—and the list starts with terrorism—I should like to comment on the question of an independent Scotland’s potential membership of NATO. This throws up equally great difficulties when we come to the propositions that might confront us as regards the economic European Union. Why? Frankly, it is pretty extraordinary that a Government who dispute the central tenets of the defence policies of the alliance and seek to remove from their soil the facilities which are so important to nuclear deterrence should simultaneously imagine that they would be wanted or valued inside the alliance which their actions were weakening. It is very difficult to see how the alliance would countenance that. It does not work that way. That is another area where the Scottish people are being sold a false bill, and it is very important that they hear other voices.

I turn to issues that the noble Lord, Lord Browne of Ladyton, mentioned—and I agree entirely with what he said. I want to focus on the threats that this country has been tackling in a major way, from before 2010 but, most particularly, since the national security strategy of 2010. We identified terrorism, cyberattack and organised crime as major threats to the stability of the security and stability of this country. Terrorism and cyberattack were classed as tier 1 risks and organised crime as a tier 2 risk. Despite our great efforts and the investment that has been made since then in combating organised crime, it has enormously grown, and I would not be at all surprised to see in a further security strategy that it came out as a tier 1 risk. My point is, in relation certainly to the other two risks, that those risks are not going away; they are remaining. Daily extensive, intensive and expensive efforts manage to keep them under control.

So what are these efforts? The annual bill in this country for maintaining capabilities and for the operations of the agencies, and for the cyber intelligence alone, runs at over £2 billion per annum. That does not take into account the contributions also made by the police or other government agencies and the military to our overall strategy. As a result of that overall strategy, we have a well honed machine, which goes under the label of Contest, on which our counterterrorist effort is based and which is being used as a model to combat organised crime. It is because of Contest that we have seen so few outrages since the London bombing, but we should not imagine that it is because they are not being attempted—they are, and there are plenty of them, and the operations of the police and agencies frustrate them.

The whole of the UK benefits from this security umbrella that runs from the centre, but this would change, and it would change radically, in the event of Scottish independence. The authority of the agencies, the legal framework under which they operate and their ability to provide security would stop at the border. The noble Baroness, Lady Liddell, was quite right to say this. The Scottish Government have recognised this, and they know that they would have to set up what has been described as a security and intelligence agency, which would engage in what they have described as intelligence sharing. That is all very well, but the putative budget for defence as well as for security in an independent Scotland is only £2 billion per annum; that includes defence as well as other agencies. For a share of this sum it seems highly improbable that, with set-up costs and operations, an intelligence service could be created that was adequate to act as an effective and trusted partner to UK and other allied intelligence services. To share intelligence, agencies have to be capable of generating their own. I have no doubt that the UK, in its own security interests, would want to do what it could to increase the security of its geographical neighbour and long-time partner, but we have to recognise that the control principle governing intelligence derived from third parties would undoubtedly quite severely limit what it could share. Scotland would lose the benefit of what the UK has at the moment in its membership of the “Five Eyes” community.

That would have important implications for UK security. The UK could not allow a less secure Scotland, if that turned out to be the case, to be used as a back door to penetrate the UK, and we may be sure that that would be tried. Unavoidably, we would have to fall back on securing the English-Scottish border to become a control point, with all the cost and inconvenience that would be involved. That would be true irrespective of whether Scotland were a member of Schengen or managed to persuade all parties involved to be allowed to continue to be in the common travel area of the British Isles.

I have one last point. The border between Northern Ireland and the Republic of Ireland is often pointed to as an example of the way in which it is possible to keep an open border in the face of a terrorist threat, but this is not an apt analogy. The control border is across the Irish Sea, and it most certainly is monitored and can be closed in emergencies. I would hate to think, but it cannot be excluded, that this could happen within Great Britain. The more we diverge in policy and practice, the greater the danger. We would surely be better off by maintaining the open and peaceful border that we have had for 300 years.

Justice and Security Bill [HL]

Baroness Neville-Jones Excerpts

Wednesday 21st November 2012 Lords Chamber

[Lord Lloyd of Berwick]

I fear that I may disappoint the noble Lord, Lord Morgan—but I hope not. I have no difficulty at all with Amendments 37 and 40, which were tabled by the noble Lord, Lord Pannick, but I have some difficulties with Amendments 34 and 35, which we are going to come to in a later group. Those are the amendments that would substitute the word “may” for “must”. They are the basic amendments that would give the judge a discretion rather than imposing on him a duty in certain circumstances.

Amendment 36, which has been spoken to by the noble Lord, Lord Pannick, spells out how that discretion is to be exercised. It states that the judge must balance,

“the degree of harm to the interests of national security”,

on the one hand, against,

“the public interest in the fair and open administration of justice”.

It is now many years since I heard a PII application. It was never an easy balancing operation, but at least with a PII application one was balancing a particular piece of evidence and how much harm it would do to the national interest, on the one side, and how much good it would do to the case of one party or the other, on the other side. It was difficult but it was a fairly specific balancing operation. I find much greater difficulty with the judge being required to take account of,

“the public interest in the fair and open administration of justice”.

I cannot see how he can possibly evaluate that in the abstract. In one sense, it might be said to overwhelm everything else, of course; but on the other hand, how much weight can be given to that? Amendment 36 is very different from the operation that one used to, and still does, carry out in an ordinary PII application. I am not happy with Amendment 36 and that sort of discretion being given to a judge.

[Baroness Neville-Jones]

My Lords, the focus of the Bill is to enable this country to find a means of dispensing justice while protecting national security. National security has not had much of a hearing so far this afternoon. I shall explain why I do not think that public interest immunity is any longer an adequate safeguard in respect of national security. Indeed, I would go so far as to say that, at the moment, the PII regime prevents justice being dispensed consistent with security. Pace the noble Lord, Lord Beecham, I do not think that this is an impossible goal.

When national security-sensitive evidence which may be important to the claimant’s case—we all agree about that—is excluded from the courtroom by a PII certificate and the judge may not take it into account in coming to a judgment, there are two consequences: the claimant is unable to prove his case and the Government cannot defend themselves properly. To protect national security evidence from disclosure in open court the Government are being forced to agree substantial settlements, with unjustified reputational damage ensuing. The inability of our legal system to provide adequate recourse to parties in civil dispute brings no credit to it and we need to do something to mend it.

Amendment 40 would insert PII as a first stage in the legal process. This would undoubtedly greatly increase the length of proceedings and costs without necessarily guaranteeing that evidence would be heard. I cannot help feeling that this is pointless. Moreover—and this is a real problem—PII impinges adversely on the claimant’s rights and, contrary to the assertion of the noble Lord, Lord Pannick, since the case concerning Binyam Mohamed, PII has also proved to be a less than total protection for national security sensitive information. We do not now have a safeguard in PII to protect national security. It has really changed the ground. In that case, the court ordering disclosure of American material despite the Government’s PII certificate has damaged our intelligence relationship with the allies, especially, although not only, with the United States. We have this judgment from the independent reviewer of terrorism, David Anderson QC, who I know has been quoted by other noble Lords. However, I know that, on this point, he is right. It is a very serious matter if our allies can no longer trust our ability to keep secret intelligence passed to us secret.

The fact that we have not had a major terrorist incident in this country since 7/7 is not the result of the conversion of the enemy but of the successful diligence of our intelligence and security services in protecting us. They depend on vital—and I mean vital—sharing of intelligence with allies. The effect of recent cases in civil courts, and the numbers of these are growing, has now spread into the core security interests of the UK. Some noble Lords talked about the core security interests of this country in justice, and I entirely agree. However, we also have another interest to protect which is important to us. We are now damaging the core security interests of the UK. If we do not find a way, as part of a responsible national security policy, of restoring credibility to our promise to protect information given to us, we will find our intelligence relationships further eroded over time and our national security eroded with them.

It is not just the control principle that is at issue, it is UK national security. This cannot be subjected to balancing tests of the kind set out in Amendment 47 —and Amendment 46, for that matter—as if it were somehow exchangeable with other goods. Lives are not at stake in civil proceedings but they are—they can be—in national security.

Closed material proceedings are of course second-best to completely open court proceedings. There is nothing that divides anybody in this House on that point; we all agree. The problem, however, is that we are not in an ideal world. Only the court can decide to allow closed material proceedings under the Bill, and presumably the judge would not permit that if they did not think that there was a substantial national security interest to be protected and they had not been convinced by the submission of the Secretary of State. In that case, this issue would not arise. However, if it does arise and the court agrees that there should be CMP, it will permit a full testing of the claimant’s case. The Government will be able to defend themselves in a manner that protects sensitive national security information.

The Bill also provides for gisting to the claimant. This is much better than the absence of justice and the potential prejudice to national security at the same time. Amendments 48, 49 and 50 would destroy the balance that the Bill would bring about.

Much has been made already of the Government’s proposals being “a radical departure” from our traditional norms. However, the closed material procedure is drawn from the procedure created by the previous Labour Government for the special immigration appeals courts which, I might say, Liberty was very influential in setting up, and which have been tested and accepted as compatible with the European Convention on Human Rights. The reality of justice there is demonstrated by the fact that the Government lose cases. Amendment 44 would bring some SIAC procedures into question, as well as rendering this Bill null and void.

I hope that this House will accept that this Bill is a balanced response to a difficult issue. I take seriously, along with other Lords, the need for safeguards, but I believe that many of the proposals on the Marshalled List go too far. I hope that this House will reject amendments which, far from improving the Bill, either remove or render ineffectual the purpose of closed material proceedings. To use the words of the noble Lord, Lord Hodgson, I believe that this Bill passes the smell test.

[Lord Wigley]

I want to speak very briefly to Amendment 48, which has been grouped with these amendments. I do not accept that this tips the balance, as the noble Baroness suggested just a moment ago.

One of the most unsettling provisions of this Bill is contained in Clause 7, which provides that if a Closed Material Procedure is triggered, a court is not required to give the excluded party a summary of the closed material. Rather, the legislation, as drafted, requires only that the court should consider requiring such a summary to be given. In any case, Clause 7(1)(e) provides that the court must ensure that, where a summary is given, it does not contain material, the disclosure of which would be against the interests of national security.

If this clause goes through unamended, there will be no requirement to give excluded parties sufficient information about the case against them so that they can give instructions to their special advocate. Surely this is wrong, otherwise people could lose cases without being told any of the reasons why, which is an unacceptable situation in circumstances where the national security is not at stake.