Justice and Security Bill [HL]

Baroness Ramsay of Cartvale Excerpts

Tuesday 26th March 2013 Lords Chamber

[Lord Lloyd of Berwick]

My Lords, I shall confine what I have to say to Amendment 6B, now that it has been spoken to by the noble Lord, Lord Macdonald of River Glaven. I am of course conscious that when this amendment was moved by the noble Lord, Lord Pannick, on Report, it was carried by a very large majority, but I voted against it at the time and do not support it now, for two reasons.

First, I like the wording of the Commons amendment. It seems to me to fit the bill. In particular, I support the inclusion of the word “effective”—as well as the word “fair”—in the phrase,

“fair and effective administration of justice”.

For the same reason, I will not be able to support Amendments 16A, 16B and 16C, tabled by the noble Lord, Lord Beecham, which would remove that very word, which seems so important. In my view, “effective” is the key word, le mot juste, in this context. It sums up in one word the whole need for and purpose of the closed material procedure.

A system of justice is surely ineffective if one party to the proceedings, whether claimant or defendant—I am glad that it now includes claimants—cannot put forward his case, or his whole case, without the need to disclose sensitive material. The purpose of the Bill is to cure that defect. That is why I support the second condition, as set out in proposed new Section 1D of the Commons amendment, and find that I cannot support the amendment of the noble Lord, Lord Macdonald. The word effective, particularly coupled with the word fair, provides the judge, who has to make those decisions, with all the help that he will need. For that reason I do not support the noble Lord’s amendment.

There is another reason why I cannot support the amendment, which was the reason I voted against it when it was moved on Report by the noble Lord, Lord Pannick. The wording of the amendment is said to come from a case called Wiley, which was decided so long ago that I had forgotten that I was a party to the decision. I find that I was, together with my noble and learned friend Lord Woolf. The difference between us was that my noble and learned friend gave a very long speech. He was followed by me, who agreed with everything that he had said—in a very short speech. I hardly need say that counsel was the noble Lord, Lord Pannick.

The case has long since been superseded; indeed, I cannot find it in any current textbook. However, looking at it again this afternoon, I could not find anything that supports wording quite as wide as that proposed in the amendment. In any event, the Wiley balance was useful, as I remember it, and as the noble Lord has explained, in applications for public interest immunity, where the judge had to weigh the harm done to the public interest by admitting a particular document or documents against the harm done to a particular defendant or party in the case by excluding those documents.

That was always a difficult balancing act, but it was possible because it was a specific test which he had to apply. As I said, it served a useful purpose. I cannot regard it as a useful test in this context. How is the judge to evaluate the public interest in the,

“fair and effective administration of justice”?

That is far too wide and imprecise to be of any utility, certainly in the context of deciding whether to make a declaration under Clause 6. It gives the judge no help at all in making that decision. For that reason, too, I cannot support the amendment.

[Baroness Ramsay of Cartvale]

My Lords, I will address Amendments 6A and 6B and the consequential Amendments 16A, 16B and 16C. I will not repeat all the arguments made by the Minister, but I agree with them. Like the noble and learned Lord, Lord Lloyd of Berwick, I cannot accept Amendment 6A or Amendment 6B. As a non-lawyer, when I read Amendment 6A I interpreted it exactly as the Minister feared the court would be forced to interpret it: that it would have to try every other possible method before it came to the CMP.

I hope that the noble Lord, Lord Macdonald of River Glaven, will forgive me for saying that when I read Amendment 6B I wondered if he meant it to be a wrecking amendment. When I heard him explain it he seemed to confirm that suspicion. He is arguing against the whole concept of CMP. Why are we here? We are not here because we want to go into this kind of judicial arrangement but because we have got a big problem on our hands. The previous Government had it and this Government have now got it. People are going into the civil courts and suing officers of the intelligence and security services, accusing them—rightly or wrongly—of doing terrible things such as being implicitly involved in torture and extradition. The services cannot defend themselves because they cannot put material into a court.

There has to be a solution and the solution is not PII, as some people seem to think. I would also like to quote the noble and learned Lord, Lord Woolf—if he will forgive me because he is in his place—not from the excellent letter quoted by the Minister, but from what he said in a debate on this issue in this House on 11 July last year. He said:

“I should also make it clear that I think that the noble Lord, Lord Carlile”—

who had just spoken ahead of him—

“is right in saying that in most situations that are covered by the Bill the result will be preferable to both sides”—

both sides—

“if the closed hearing procedure is adopted rather than PII, because PII has the very unfortunate effect that you cannot rely on the material that is in issue, whereas both the claimant and the Government may want to rely on that material. That is a good reason for having the closed-hearing procedure”.—[Official Report, 11/07/12; col. 1189]

I very much agree with that.

The amendments that I have mentioned do not improve the Bill in any way. In fact, they are to the detriment of the Bill. This is a problem which the previous Government had to wrestle with, the present Government are having to wrestle with and the House has to wrestle with it. Now that they have included the latest Commons amendment, the Government have made a very good attempt at trying to square what we all want, which is a fair trial. That must include, in the civil court, members of the security and intelligence services so they can bring a defence to accusations against them.

[Lord Brown of Eaton-under-Heywood]

My Lords, in rising to support this Bill I confess to a particular interest in the legislation. Many years ago—although not quite as long ago as the noble and learned Lord, Lord Woolf—as Treasury Counsel I was required to advise and act for the Government in national security, public interest immunity cases. For six years after the passage of the Regulation of Investigatory Powers Act 2000, I was the Intelligence Services Commissioner responsible for retrospective judicial oversight over the various intelligence agencies. For considerably more years than that, I have been involved, as a member of the court, in most of the national security cases that came before us, including the control order cases and the expulsion cases like that which sought to return Abu Qatada to Jordan, on which the litigation still continues. The Al Rawi case relating to Guantanamo Bay, although it was settled before it came to us, came on the issue of principle which was whether, as a matter of common law, the courts could order a closed material procedure. The majority of us held not. We held that only Parliament could sanction so fundamental a departure from the principle of open justice. Hence Clause 6 is now before us.