Justice and Security Bill [HL]

Lord Beecham Excerpts

Monday 23rd July 2012 Lords Chamber

[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.

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[Lord Lester of Herne Hill]

My name is also on this amendment. When I heard my noble and learned kinsman Lord Woolf indicate in his speech why we should trust the judges, I was reminded of what Archbishop William Temple once said:

“Whenever I travel on the Underground I always intend to buy a ticket, but the fact that there is a ticket collector at the other end just clinches it”.

However good our judiciary might be, it is important that the legislation should just clinch it.

The principle of open justice is a constitutional one anchored in our written and unwritten law and in the Human Rights Act both as regards the right to a fair and public hearing of civil and criminal proceedings protected by Article 6 of the convention, and the right to freedom of expression protected by Article 10. As my noble friend Lady Berridge has indicated, the principles were laid down most famously in Scott v Scott in 1913 when Lord Haldane, Lord Chancellor, referred to:

“the general principles as regards publicity which regulated the other courts of justice in this country”,

as being of “much public importance”.

“They lay down that the administration of justice must, so far as the trial of the case is concerned, with certain narrowly defined exceptions . . . be conducted in open court”.

Later Lord Haldane noted in the same case that the power of an ordinary court to hear in private cannot rest merely on the discretion of the judge. He said:

“If there is any exception to the broad principle that requires the administration of justice to take place in open court, that exception must be based on the application of some other and overriding principle which defines the field of exception and does not leave its limits to the individual discretion of the judge”.

The principle of open justice was reaffirmed by the English Court of Appeal, including the noble and learned Lord, Lord Neuberger, the Master of the Rolls, whose appointment as president of the Supreme Court I am sure we all greatly welcome. That Court of Appeal, as recently as 7 February 2012, was dealing with the successful appeal against the refusal by the district court to grant access to documents supplied to the court for the purpose of extradition to the United States of two individuals alleged to have been involved in bribing Nigerian officials by a subsidiary of the US company Halliburton. Lord Justice Toulson gave the leading judgment, in which he observed that the principle of open justice,

“has been recognised by the common law since the fall of the Stuart dynasty”.

After he quoted from Scott v Scott, he cited a New Zealand case, Broadcasting Corporation of New Zealand v the Attorney-General, in which the president, Sir Owen Woodhouse, another great and famous jurist, observed that,

“the principle of public access to the Courts is an essential element in our system. Nor are the reasons in the slightest degree difficult to find. The Judges speak and act on behalf of the community. They necessarily exercise great power in order to discharge heavy responsibilities. The fact that they do it under the eyes of their fellow citizens means that they must provide daily and public assurance that so far as they can manage it what they do is done efficiently if possible, with human understanding it may be hoped, but certainly by a fair and balanced application of the law to the facts as they really appear to be. Nor is it simply a matter of providing just answers for individual cases, important though that always will be. It is a matter as well of maintaining a system of justice which requires that the judiciary will be seen day by day attempting to grapple in the same even fashion with the whole generality of cases. To the extent that public confidence is then given in return so may the process be regarded as fulfilling its purposes”.

Lord Justice Toulson of course recognised that there are exceptions to the principle of open justice, but they must be justified by some even more important principle. In the Binyam Mohamed case, the Lord Chief Justice, the noble and learned Lord, Lord Judge, declared:

“Without the commitment of an independent media, the operation of the principle of open justice would be irremediably diminished”.

He recognised the special significance of the open justice principle in cases involving allegations of wrongdoing against the Executive.

As my noble friend Lady Berridge observed, the Joint Committee on Human Rights, in its report on the Green Paper, pointed out that the significant implications of the Government’s proposals for freedom of the media to report matters of public interest and concern did not feature at all. The committee regarded that as a “serious omission” and, at paragraph 217, called for the,

“human rights memorandum accompanying the Bill to include a thorough assessment of its impact on media freedom and on continuing public confidence in the administration of justice”.

When it came, the human rights memorandum contained just four brief paragraphs, paragraphs 32 to 35, asserting that the Bill is compatible with the freedom of the press because,

“in all cases where the test for closed proceedings is met it will be possible to justify the interferences with Article 10 rights as necessary and proportionate in the interests of national security”.

The Government’s response to our report provides even less comfort on that score. It states at page 15 that, in the Government’s view,

“the proposals will enhance transparency and public trust, not undermine it”,

and that,

“the media can be expected to have increased opportunities to report on substantive findings in cases that raise matters of significant public interest”,

because more relevant material will be put before the court to enable it to reach a decision in cases which currently cannot proceed. It is disappointing that there is nothing in the Bill so far to address the JCHR’s significant concerns about the impact upon media freedom and democratic accountability. As it stands, the Bill would undermine principles that have guided this country for centuries, threatening to violate open justice and free speech where they are most needed, especially in the context of cases involving allegations of wrongdoing by citizens against the executive.

I will not trouble the House with the convention case law that supports all of this, but I will say that to avoid arbitrary laws there are two fundamental requirements anchored in our legal system and in the convention. First, the law must be reasonably certain and foreseeable so as to be accessible to the citizen. Secondly, the law must provide adequate safeguards against abuse. The memorandum from the Government on the convention issues does not mention these vital safeguards of the rule of law and constitutional rights. The Bill as it stands would authorise the courts in future cases, without any prescribed and foreseeable criteria and safeguards, to operate a closed system of justice, shielded from public scrutiny. The virtue of Amendment 69ZA is that it requires rules of court to be made that would strike a fair balance between open justice, freedom of expression and national security, while satisfying the principles of common law and the convention.

Finally, as the noble Lord, Lord Pannick, and the noble Baroness, Lady Berridge, have indicated, on the question about the publication of judgments in this area, the principle of legal certainty makes it absolutely essential that everybody should know the nature and scope of the relevant law. I remember in arguing the thalidomide case at Strasbourg many years ago that, because of the uncertainty of the law, we relied on the abuse by a Roman emperor who wrote the law on the top of very tall pillars, which prevented Roman citizens from being able to see it properly. That is an example in Roman law of the vice of legal uncertainty. A similar problem will arise if judgments given by the courts in cases of this kind remain altogether secret with no safeguards for them to be published when their secrecy is no longer necessary. I very much hope that those points will be addressed, whether in these amendments or others.

[Lord Beecham]

My Lords, we have previously debated amendments that would help to secure oversight of this system, if indeed this Bill survives the legislative process. Most, though not all, noble Lords who have spoken in the debates in Committee have expressed considerable reservations about the principle. Most have then spoken to amendments that would mitigate the effect of the principle if indeed it emerges in the final transition of the Bill to the statute book.

For my part, I concur very strongly with the views of the noble Lord, Lord Pannick, and the noble Baroness, Lady Berridge, regarding the establishment of a system for identifying the case law and the judgments and making them available, at some point at any rate, to inform the judicial process. That seems very important to me and certainly I lean towards amendments that ultimately would require the publication of reasons for a decision.

I am less attracted, however, by the first parts of the amendment moved by the noble Baroness, which would allow the media to intervene in proceedings. I am not quite certain of the form in which such intervention would take place, but in any event I am not at all persuaded thus far that this is something that would materially assist the process as opposed to simply promoting the interests of the media. It is difficult to see how that would work in practice, so we cannot support those elements of the amendment.

However, we look to the Government to respond constructively to the points made about the recording and availability of case law and the justification for particular decisions being made at a point when security interests are no longer as strong as when the closed material procedures, if indeed they exist, are implemented in a particular case. There ought at some point to be a disclosure. To that extent we sympathise with that part of the amendment, but in relation to its first parts we cannot really support what the noble Baroness is trying to do.

[Baroness Stowell of Beeston]

My Lords, I am grateful to my noble friend Lady Berridge for tabling this amendment because it is important that, in a Bill such as this, we have an opportunity to discuss freedom of expression and the media’s important role in holding the Government to account and scrutinising what happens in this country. I think my noble friend suggested that one of the purposes of her amendment was to ensure that there is public trust in the judicial system. She certainly made several remarks about the importance of open justice, and was joined in that by other noble Lords. We obviously share that objective and, from the report of the Joint Committee on Human Rights, we are aware of its concerns about the impact on public trust and confidence in the courts.

However, it is important that we remind ourselves that this Bill is also about allowing justice to be done where that has not been possible before—and doing so in a way that is as fair as we can make it. Throughout the debates on the closed material procedure aspect of the Bill the Government, through my noble and learned friend, have been at pains to stress that as much material and judicial reasoning as is possible without damaging national security will go into open court. The special advocates will assist with pushing as much material as possible out of the closed case into open court, and at all stages of the process: at the application stage, during the substance of the case and at the point of judgment, when they will challenge the material in the closed judgment and make representations about why it should be in the open. The media will have access to all open elements of proceedings, as normal. Indeed, as I will come on to explain, we believe that in this process they will have access to more material than they might otherwise have had.

My noble friend and the noble Lord, Lord Pannick, referred to safeguards. I think the noble Lord said that it was important to build in safeguards in order not to undermine the need for secrecy. There was some consensus built around the later legs of the amendment, which refer to what I might describe as the declassification of the judgments. I will come back to that later.

My immediate response to the first part of the amendment is that it raises some practical difficulties as far as giving the media access to intervening in the proceedings. Indeed, I was interested to hear the noble Lord, Lord Beecham, express his doubts about whether that would actually add to the proceedings. While I know that my noble friend mentioned the suggestion of the media being appointed a special advocate in order to be able to intervene in proceedings, it is important to recognise that the media is not in and of itself an institution with a formal responsibility to represent the public interest. The media have several functions, whether to report or to investigate. Certainly in open proceedings, they are there representing the public alongside the public who are already there. To give them access to something that is closed because the nature of the discussion and the evidence at issue could, if brought into the open, damage national security, would seem an anomaly. It would also be difficult to make possible in practice.

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Moved by

[Lord Beecham]

69A: Clause 11, page 8, line 1, leave out subsection (2)

[Lord Beecham]

My Lords, this amendment and the other amendments in the group relate to what are extraordinarily wide powers that Clause 11(2) and subsequent subsections would confer on the Secretary of State to amend, for the purposes of the legislation, the definition of “relevant civil proceedings”. The Delegated Powers Committee looked in some detail at these matters and I rely heavily on its observations. It raised significant concerns and made it clear that, while, of course, the procedures are confined to civil proceedings, the effect of the Bill is to permit any such civil proceedings to be ones in which the procedures can be invoked.

Subsections (2) to (4) of Clause 11 confer a very wide power on the Secretary of State to amend the definition and to amend the definition by affirmative order. In so doing, courts or tribunals can be added or removed and rules can be prescribed. The committee stated that:

“The powers are undoubtedly wide”.

They might, indeed, in the view of the committee, be exercised so as to specify a coroner’s court. Of course your Lordships will recall that the question of inquests has been mentioned more than once. The Lord Chancellor has indicated that procedures would not apply to inquests but, on the face of it, that decision could be changed under the provisions of Clause 11(2), by order, to be approved, as I have indicated, by affirmative resolution. In addition to that, there is the possibility of some urgency being required in the mind of the Government and that is also a question which the committee addressed. There is the possibility of a made affirmative procedure being invoked under which a change could be instituted by, effectively, tabling an amendment. Although, ultimately, that would have to be approved, it would take effect immediately.

The committee, while acknowledging the Government’s concerns about urgency, pointed out that if a situation arose in which it was felt that an application needed to be made in proceedings before a court or tribunal which was not initially specified and for which, therefore, an order would have to be brought forward, the Government,

“does not explain why it is thought that an order which attracts the draft affirmative procedure should offer any speedier means of meeting that perceived need for amending legislation than, for instance, a short Bill fast-tracked through both Houses”.

It said, and I think that there is considerable force in the argument, that that approach,

“would at least ensure that control over further extensions of the ‘closed material procedure’ would remain with Parliament, rather than with the Government”.

Nevertheless, it took the view that the House should consider,

“the scope of the powers conferred so that it may appreciate the unconstrained nature and extent of the provision that might be made under them by this or any future government. The House may wish to consider whether the Bill should be amended to restrict that scope or to include any such safeguards as the House might regard as necessary for ensuring Convention rights are observed and for protecting the interests of open justice”.

The Constitution Committee thought that the made affirmative procedure might be more appropriate, but the Delegated Powers Committee felt that that would perhaps be the least likely way to meet the need for urgency.

The provisions here are extensive. The procedure that the Government propose to adopt does not really allow sufficient parliamentary scrutiny and leaves the decision, as the Delegated Powers Committee made clear, in the hands of the Government when there is an alternative if a situation of urgency arises. Your Lordships might think that this is much too broad a power to be left in the way that this clause and its subsections provide and I sense that the other amendments in this group reflect that view. I hope that the Government will reconsider and go back, before Report, to the recommendations of the Delegated Powers Committee and seek to amend this provision as it currently stands to one that is more acceptable and more consonant with the procedures of parliamentary scrutiny of what might be significant changes to the scope of the Bill. I beg to move.

[Lord Hodgson of Astley Abbotts]

My Lords, I have tabled Amendment 70 in this group. The noble Lord, Lord Beecham, has covered the points and I do not wish to weary the Committee with repetition. Amendment 70 would remove subsections (3) and (4), as well as subsection (2), and is therefore more brutal in its application. One of the briefings I received on this part of the Bill said that this was a potentially,

“unwarranted extension of an unsatisfactory procedure”.

I therefore support what the noble Lord was saying about the dangers of mission creep, which we have discussed before. As we keep hearing it stressed that this is going to be a very rare procedure, it seems strange that we should allow courts to be added in what is essentially a pretty cavalier manner. I am all for statutory instruments and their positive nature, but they are unamendable and inherently too weak to tackle something that is as dangerous and difficult as this area that we have been discussing these past few days.

Subsection (4)(a) refers to “explaining the meaning” of “rules of court”. Do they really need to be explained? Are we not, as the noble and learned Lord, Lord Woolf, has explained to us, able to rely on judicial discretion and ability to interpret? I am concerned that explaining the meaning of the rules of court carries with it, in some more sinister way, an instruction as to what they mean and what judges should do. Similar wording in subsection (4)(b),

“enabling provision of a particular description to be made by such rules of court”,

seems to me, as a non-lawyer, to carry with it a degree of direction and fixed purpose that does not fit well with the sensitivity of the nexus that we have been discussing between civil liberties and the need to protect national security.

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[Lord Beecham]

Would the noble Lord then turn his mind to the question of the procedure to be adopted in those cases, because that is what the amendments seek to do? Does he accept that it would be better to have a Bill taken quickly through the House than to have the affirmative procedure that would otherwise be the case, with all its limitations, to which noble Lords have referred?

[Lord Butler of Brockwell]

My Lords, that is a very reasonable point and I address it with diffidence. It is obviously a bigger and more difficult undertaking to launch rapidly an emergency Bill than to have an order. If the case were good enough, it would be better to have a procedure that could be undertaken rapidly than to have the need for urgent legislation. But I do not take a very strong stance on that matter.

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[Lord Wallace of Tankerness]

I take the point made by my noble friend Lady Williams. I said I would be willing to look at words like:

“for the avoidance of doubt this does not include coroner’s courts”.

I caveated it because I am always wary of parliamentary draftsmen finding 10 reasons why that will mean 20 different things. In that spirit, I hope she will be reassured that not only do we not intend to include inquests, but we do not believe that the wording here does include inquests. However, I am prepared to look at that to see whether there is a wording which will put that beyond doubt and reassure those who think that there is no belt-and-braces position as things stand.

I have sought to give reassurance on these important issues, and particularly it is important that Parliament scrutinises the powers available to Government by secondary legislation, perhaps a fortiori in circumstances such as this. I will reflect on what has been said in the course of this Committee’s discussion.

[Lord Beecham]

My Lords, I refer first to the speech of my noble friend Lord Reid of Cardowan who had a long, distinguished political career crowned by his time as Home Secretary. He is perfectly right to remind us of the serious threats that might affect this country’s security and the change in the world in which we live. But as the noble Lord, Lord Thomas of Gresford, implied, what we are looking at in this part of the Bill is not an area which would open up this country to any particular threat of that kind. We are talking about closed material procedures in civil proceedings in which if there were to be a threat to security from the disclosure of documents, the Government can effectively pull the case. They do not have to disclose the documents. The cost of that will take another form but it is no cost to national security, so I hope the noble Lord will be comforted by that. He may have a more relevant point when we come to the next amendment.

My noble friend, on taking office as Home Secretary, famously described the Home Office as he then found it as “not fit for purpose”. The amendments that we are discussing this afternoon are intended to make, so far as possible, this part of the Bill fit for purpose because—as many of your Lordships have indicated—currently that is not the case.

That is clearly the view of the Delegated Powers Committee, although it does not go so far as to propose a particular amendment. I remind the Minister that the Committee refers to,

“the unconstrained nature and extent of the provision that might be made under them by this or any future government”,

under the proposals in the Bill as they now stand. That is a pretty wide description of the scope that the Delegated Powers Committee was considering and, as I said in moving the amendment, it then invited the House to consider whether there should be amendments to restrict that scope or include any safeguards. The noble and learned Lord was saying the answer to that should be no so far as your Lordships’ House is concerned.

Having listened to the closing remarks of this speech, I hope he will think further about that matter, because it does not seem to leave us in a very satisfactory position. The general view of those who have spoken would be to prefer primary legislation, however expedited, rather than secondary legislation—which effectively cannot be amended—to add to the scope of the civil proceedings referred to in the Bill. I beg leave to withdraw the amendment.

Amendment 69A withdrawn.