Justice and Security Bill [HL]

Baroness Williams of Crosby Excerpts

Tuesday 17th July 2012 Lords Chamber

[Lord Hodgson of Astley Abbotts]

My Lords, in moving Amendment 55 I shall speak also to Amendments 56, 63, 64, 65, 66 and 67. This group of seven amendments spans Clauses 7 and 8. Their underlying purpose is to improve the relationship between the special advocate and his client—if that is the right word—and the special advocate’s ability to carry out his duties effectively. The group breaks down into three subgroups.

First, Amendment 55 concerns Clause 7(1)(b), under which the rules of court require,

“that such an application is always considered in the absence of every other party to the proceedings (and every other party’s legal representative)”.

This is the point that I made in the debate on a previous group of amendments. My amendment seeks to replace “is always” with “may be”. I accept that some, perhaps most, matters will be considered with national security in mind and so will have to be heard in a closed court. However, I wonder whether there will never be any matter that could be argued with a special advocate and other legal representation present. Obviously, one question is: what constitutes national security? We have had a debate about the looseness of that term. At the moment we have no definition of it. Then there are other sorts of information, such as that provided by the police and generated within the UK, which might come up and would not be within the closed material proceedings. I suppose the principle behind this is to increase judicial discretion and therefore fairness—an issue on which the Government have placed great stress. My last point on this amendment is that requiring a judge to hear CMP applications in the presence of only one side under all circumstances does not seem to fulfil the principles of natural justice.

The second group consists of Amendments 56, 64 and 65. This group is about the nature of the appointment of a special advocate and ensuring it is made in a timely fashion. Amendment 56 inserts a new paragraph after Clause 7(1)(b):

“that where a party is excluded from such an application his interests are represented by a special advocate appointed in advance of the court hearing such application and, if the application is granted, for the duration of the section 6 procedure and trial”.

The important words here are “in advance” and “for the duration of”. In other words, the special advocate needs to be given time for preparation and for consultation. My noble and learned friend may say that this will happen anyway but I am told—I stand to be corrected—that there is no statutory requirement at present and it seems to me that in these special circumstances it might be worth while to consider that.

Amendment 64 covers the same points in Clause 8. Clause 8(1) states:

“The appropriate law officer may appoint a person to represent the interests of a party”.

For me, the critical word is “may”. My amendment seeks to replace “may” with “must”. Again, the reasons for that are self-evident and run parallel with the supporting arguments I have given for my natural justice amendment.

Amendment 65 amends the same clause by removing the words,

“in any section 6”

and replacing them with,

“as soon as practicable following”

an application. Applications should not go unchallenged. Therefore it needs to be certain that the claimant is represented at the time of his application and during the proceedings.

The last group, Amendments 63, 66 and 67, is intended to try to strengthen the relationship between the special advocate and the claimant. Amendment 63 takes us back to Clause 7 and inserts two new paragraphs regarding what the rules of court must provide where the proceedings are in connection with a Section 6 declaration. They make it clear,

“that the special advocate is afforded the opportunity to take instructions from the party whose interests he is appointed to represent, and … that the special advocate is at liberty to apply to the court at any time if he considers that any relevant material should be disclosed”,

if he feels that is opportune.

Amendment 66 goes back again to Clause 8. Clause 8(4) states:

“A person appointed as a special advocate is not responsible to the party”.

That seems to me to be strangely indifferent and distant. I understand the nature of the relationship implied by “represent” and that is why my amendment does not propose that but it replaces “not responsible to” with the slightly warmer and more positive phrase,

“responsible for representing the interests of”.

That understands the positive nature of it but does not imply the normal professional duty and relationship.

Finally, Amendment 67 adds four new subsections. The proposed Clause 8(6) requires the special advocate to provide gists of material. We shall come to that in the next set of amendments. The proposed Clause 8(7) permits the special advocate to withdraw if,

“he considers that he is prevented or otherwise unable to properly represent the interests of the excluded party”.

I hate the split infinitive “to properly represent” but it provides a quite important albeit rather nuclear approach regarding the special advocate in the sense that he could draw attention to how the case was being run by withdrawing if he felt that his position had become untenable.

On proposed new subsection (8) in Amendment 67, the requirement for the special advocate to make a report to the ISC about each case for which he is responsible is intended to be an additional element of control. Proposed new subsection (9) would impose a duty and responsibility on him to preserve the confidentiality of closed material, except for the gist to which I referred under proposed new subsection (6), and except where material may lead to a crime that should be referred to the CPS. I have said before about that that I am the treasurer of the All-Party Parliamentary Group on Extraordinary Rendition. Some of the things that I believe have gone on in a rather shadowy way around that rather nasty practice could usefully be given some light. This would be a way in which that light could be shed.

To conclude, this group of seven amendments is intended to try to improve the quality of justice and the equality of arms by giving the special advocate a more defined role in Section 6 proceedings; ensuring that the special advocate attends proceedings where the issue is outside national security; ensuring that the special advocate is appointed in a timely fashion, before a Section 6 application is made; strengthening the ability of the special advocate to represent the claimant by ensuring proper access; and enabling the special advocate to resign if he feels that he cannot do his job properly.

The special advocates have circulated a paper to which I have already referred. I was particularly impressed by paragraph 17, where they list eight reasons why CMPs lack fairness and effectiveness. Three of their reasons seem to have relevance to this group of amendments. The special advocates think they are unfair because of the,

“prohibition on any direct communication with open representatives, other than through the Court and relevant Government body, after the SA has received the closed material”.

That is the first reason. The fifth reason refers to:

“A systemic problem with prejudicially late disclosure by the Government”.

The seventh reason refers to:

“The increasing practice of serving redacted closed documents on the Special Advocates, and resisting requests by the SAs for production of documents to them (i.e. as closed documents) on the basis of the Government’s unilateral view of relevance”.

These amendments are designed to tackle some of those problems. Some of the others in the list have importance, but those are the three most relevant. I beg to move.

[Baroness Williams of Crosby]

I mention again that I am not a lawyer, but I have the greatest respect for the noble Lord, Lord Hodgson of Astley Abbotts, who has done a very great service to this country in the excellent work that he and others have done in the All-Party Parliamentary Group on Extraordinary Rendition.

I want to underline what the noble Lord said about Amendment 66 and to ask my noble and learned friend on the Front Bench whether the wording could not be less sweeping than that in the Bill. Clause 8(4) states that,

“a special advocate is not responsible to the party to the proceedings whose interests the person is appointed to represent”.

I understand some of the problems and appreciate that there are difficulties here, but I ask my noble and learned friend to look again at the wording of the Bill. In particular, my understanding is that a special advocate is responsible for everything short of something that might put at risk national security; it does not mean that the special advocate has a way out of in any serious sense representing the interests of the person whom he has been appointed to represent. I think that that is the meaning of the wording of the Bill. Will my noble and learned friend consider wording that is less likely to raise any questions about the obligations of a special advocate for the people before them who have no other way to get across their case? I suggest that some wording that more precisely defines a special advocate’s duty and where it begins and ends would be much better than the wording currently in the Bill.

--- Later in debate ---

[Lord Judd]

My Lords, perhaps it is an appropriate moment for someone who is not a lawyer to add a layman’s word. We debated these issues very fully at Second Reading and I believe that the helpful amendments before us are a good attempt to try to meet some of the anxieties that were expressed then. Speaking as a layman, what has always been important to me is the principle which has emerged from the history of our judicial system: someone who is accused of an offence should know the case against them so that they can defend themselves. The noble Lord, Lord Pannick, talked about how there is an element of unfairness in what is happening. That is true, but I think it is more fundamental than that. It is not just about unfairness; it is that we are breaching the principles of justice as they have emerged. That is what has happened because of the dreadful and appalling security issues which have arisen. As these procedures are applied, every possible effort should be made to keep the priority of justice at the forefront. Anything that can be done to achieve this should be pursued.

I am fearful that a certain sort of tendency could develop, but it should not be assumed that this is a change of gear which can easily be made in the process of a case. There must be a real and specific reason for doing it, and it should be limited to the fewest possible occasions. Even then, it is terribly important that we are certain that the principle of justice has been very much in the forefront of the minds of the judge and of everybody else before we pursue the technique.

We know that in the cause of combating terrorism and the extremism that leads to terrorism is crucial not to give ammunition to the cynical extremists who seek to exploit the impressionable with plausible argument. I cannot think of anything that has the potential to give more ammunition to an extremist wanting to recruit an impressionable person than for him to be able to say, “Look, there has not been proper justice in this case”. From that standpoint, the arguments we are putting forward are central to the issue of anti-terrorist and security policy itself. I am absolutely convinced of that. The people who have put forward these amendments are doing us a good service in terms of upholding the principles of justice and avoiding the terrible pitfalls of counterproductivity in the fight against extremism and terrorism.

[Baroness Williams of Crosby]

My Lords, I should like to follow the noble Lord, Lord Judd, in what one might call a very short interval for non-lawyers to speak. He has pointed to some crucial considerations that need to be borne in mind. I will turn for a moment to Amendments 58 and 59, which are crucial to a fair outcome of this complicated debate. In doing so let me say that I strongly agree with those who have argued for gisting as a way of moving a bit closer towards a just outcome for those who cannot be openly represented and, indeed, cannot instruct their representatives how to behave. It helps the people concerned feel that some sort of justice has been done.

We heard in the words of the noble Lord, Lord Hodgson of Astley Abbotts, the attempt to define national security in a way that would narrow down the implications to what was really of crucial importance to the nation. The response from my noble and learned friend on the Front Bench showed how difficult it is to make a definition of that kind. However hard we try there are always ways in which it is, as he said, either too narrow or too broad.

In Amendment 58, tabled by my noble friends Lord Thomas and Lady Hamwee, and Amendment 59, tabled by the noble Lord, Lord Pannick, and my noble friend Lord Lester, we have a way of getting back to a balance between what is represented by the need for security and what is represented by, in the words of the noble Lord, Lord Judd, the principle of justice upon which the whole of the British legal tradition has been based. That is exactly right. We have heard a paean of praise to our judges, saying that they are very capable of making difficult balanced judgments of this kind. The attempt to give back to them the decision about what that balance is is one that we can reasonably feel is in competent hands, where justice is likely to be the outcome.

What happens if one does not have Amendments 58 and 59 in this Bill? We have neglected this, or perhaps we had an earlier brief discussion about this at the beginning of the day’s proceedings but we have moved a long way since. What happens if one regards national security as having such a primary place that one forgets the interests of justice almost altogether? An example of it is the attitude of the general public, where they believe themselves to be put in a position of extreme difficulty and inconvenience because of a ludicrous pursuit of security. The noble Lord, Lord Deben, gave us an example of that.

Let me give another one, the way in which the concepts of health and safety are now held in almost universal ridicule by the population of this country. They were an attempt to go too far, to intervene too much, to interfere all the way through, in the ordinary rights and liberties of citizens. When you are told that you have to cut down a chestnut tree for fear of a conker falling on somebody’s head, or when you are told that you cannot allow young boys to try climbing a tree, you get to the point where the general public feel that this is a ludicrous overstatement of so-called security and safety, and they become disinclined to take any notice. That is a trivial example.

There are more serious examples. My political memory goes back quite a long way. In our history we have cases all too often forgotten, where security has trumped fairness and justice and left behind a real weakness in our democracy. Perhaps the supreme example of that was the decision to introduce the principle of internment into Northern Ireland’s politics. Just before this I was the Minister of State for Northern Ireland. It meant two things quite quickly. The first was a strong sense of a breach with what has been a long tradition of this country, at least as far as its internal justice is concerned. Secondly—and I will never forget the words used—this became a recruiting sergeant for terrorism. Even Lord Whitelaw, at that time Secretary of State, noticed how counterproductive internment was and how it led to more and more young Irish men and women letting themselves be recruited—signing up—for the production of terrorism. Internment was brought in in 1971 and was eventually dropped. Only after it was dropped was the path open to the Good Friday settlement and to what today is, if not a perfect, at least a much better outcome of the situation in Northern Ireland.

[Lord Ashdown of Norton-sub-Hamdon]

I have not been here today as much as I might have been and I am grateful to my noble friend for agreeing that I might intervene, but I want to reinforce her point. I was a young soldier on the streets of Belfast in 1970. When we marched into Belfast and into the Ardoyne we were welcomed by the Catholics with butties, as they called them, and mugs of tea. A mere year later, as a result of internment and other matters which followed swiftly around the time of Bloody Sunday, we were the enemy. It took us the best part of two decades to recover that trust among the Irish population, directly as a result of events that she has described.

[Baroness Williams of Crosby]

I am grateful to my noble friend. Nobody knows more directly and more at first hand than he exactly of what he is speaking, given his long and distinguished service in Northern Ireland in several capacities.

A second example that I know about, because I was living there at the time, was that the dreadful atrocity of 9/11 produced a great wave of attempts to introduce more security legislation in the United States. After a while this included a certain disregard for some of the crucial rights of human beings there. American citizens found time and again, understandably given the terrible effects of 9/11, that their fundamental rights began to be disregarded in the interests of security. It was an extraordinarily difficult balance that to this day United States jurists feel strongly has gone against the basic liberties of the human being.

The third example is ourselves. The noble Lord, Lord Deben, spoke movingly about his son and the dog across the street from No. 10 Downing Street. I might add that the Olympics are getting almost completely out of hand in the interests of what one might describe as an obsessive view about security. We go back to rather a trivial example. Yesterday I was in Trafalgar Square with my grandson. We went to see the famous Olympic clock that shows how many hours, minutes and seconds are left before the opening of the Olympic proceedings. However, in order to see the clock, which was approximately 40 yards into the square on a gloomy, wet evening, we had to pass no fewer than six security guards, and no fewer than three detailed and closely networked railings, which were impossible to pass, so we had to go round them in several directions to get anywhere. It took us about 20 minutes to cross Trafalgar Square, being asked all the way whether we had passports, what we were doing there and why, and other things like that. I am a great believer in creating job opportunities for young people, but I cannot help thinking that maybe a job working on, let us say, the refurbishment of older housing might be more constructive than sitting in Trafalgar Square stopping ordinary citizens like me from crossing it.

I am sorry to put it so strongly, but we are becoming obsessive on this issue. We are getting the balance badly wrong. This Bill is critical for the future of our liberties in this country and for the attitudes to justice of ordinary people whose support for that justice is critical in a democracy; there is no substitute for civic support for the rule of law. I plead with my noble friends on the Front Bench that they look closely at Amendments 58 and 59, which at least enable the judges in this country to restore a reasonable balance to the clear needs of national security, which I do not deny and which the noble Baroness, Lady Manningham-Buller, has put extremely well in this debate, recognising that there are two things to be balanced and not one thing to sweep away. I plead with my noble friend to consider accepting these amendments, because they are a crucial safeguard for the liberties of this country and which this Bill ought to include.

[Lord Faulks]

My Lords, it is a great privilege to follow the noble Baroness and I am sorry to bring an end to this welcome interval from lawyers and to return briefly to the dry legalities of the Bill. The question in this Bill of who decides national security has troubled me. Clause 6 seems to suggest that the judge has some role in deciding it. Amendment 59 suggests that an exercise should be performed by the judge in which he or she can assess, by balancing the various processes—presumably roughly in accordance with the ex parte Wiley approach—which should come first, the interests of justice or national security.