Justice and Security Bill [HL]

Lord Beecham Excerpts

Monday 23rd July 2012 Lords Chamber

Moved by

[Lord Beecham]

74A: Clause 13, page 10, line 9, leave out paragraph (a)

[Lord Beecham]

My Lords, these amendments seek to confine the definition of “sensitive information” for the purposes of Norwich Pharmacal cases to intelligence effectively held by foreign intelligence services, rather than any intelligence service, including our own. So Amendment 74A would delete in Clause 13(3)(a) the reference to,

“held by an intelligence service”,

which would, of course, embrace our own intelligence services. Under Amendment 76A, Clause 13(3)(b) would cover, within the definition of “sensitive information”, information held on behalf of a foreign intelligence service. Amendment 76C would, at line 13, delete the paragraph so that the whole issue becomes that of a foreign intelligence service.

Amendment 80A, on the other hand, looks at the rather more significant issue of whether,

“disclosure is contrary to the public interest if it would cause damage (a) to the interests of national security”—

which is, of course, accepted—

“or (b) to the interests of the international relations of the United Kingdom”.

The wording of the amendment looks to have been truncated somewhat. The intention is the same as that of Amendment 80, in the name of the noble Baroness, Lady Williams, who is not in her place, but it would leave out reference to,

“the interests of the international relations of the United Kingdom”.

Of course, security matters would remain covered. The question is: what is the import of the Government’s intention to allow removal from disclosure in the interests of international relations?

One can envisage, of course, that international relations might include questions of national security, but there might also be other matters, such as trade relations with other countries. Are we to be obliged to protect documentation which might relate to, or have an impact on, our economic relations with a foreign country? It might not be an ally; it might simply be a trading partner, a country to which we are exporting or seeking to export goods; a country, perhaps, with an undemocratic regime. Why should these matters not be withheld to protect interests of that kind, as opposed to matters of national security? It will be interesting to hear the noble and learned Lord’s justification for that rather broader definition.

I repeat that we accept that the interests of national security are perfectly legitimate and should be protected. I beg to move.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, the noble Lord, Lord Beecham, has sought to explore whether it is possible to define the Norwich Pharmacal jurisdiction in a narrower way than is available under the Bill as it stands. As was well aired in the earlier debate—and, indeed, on the second day of Committee and at Second Reading—because the aim of a Norwich Pharmacal case is to achieve release of information, it is not possible to agree a monetary settlement in order to prevent that information being released.

It is a different situation in damages claims. In this case, the court can still order the Government to release information if public interest immunity is not upheld. It is therefore important that Clause 13 provides the necessary protection for material whose could cause damage to national security or, in the part that these amendments relate to, to the effective functioning of international relations with key foreign partners.

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he is reassured that we are seeking to give the appropriate protection in these cases. I therefore ask the noble Lord to withdraw his amendment.

[Lord Beecham]

I am grateful to the Minister for his explanation. Both those matters go rather wider than is necessary to protect the particularly relevant considerations of national security. They could be used to justify almost anything in relation to the activities of other countries, and to protect them, as it were, from claims brought under the Norwich Pharmacal procedures. The very fact of the result of the Omar case—if it is upheld—would, in any case, indicate that the courts will not rush to supply or to authorise disclosure. To that extent, it may be that the Bill as drafted is unnecessary. I remain somewhat concerned at the breadth of reach of these proposals. However, in the circumstances I beg leave to withdraw the amendment.

Amendment 74A withdrawn.

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[Lord Lester of Herne Hill]

I am not sure that David Anderson QC can be made a Peer with sufficient speed to meet the wish of the noble Lord, Lord Pannick, but I can tell the Committee that the Joint Committee on Human Rights has asked him to give further evidence and we are anticipating preparing a report in time for Report stage that will include his views. That part of the amendment may be met through the committee system in an ordinary way.

[Lord Beecham]

My Lords, the sun has already set here, although not in Newcastle or even further north, so I shall not detain the Committee long. I support the amendment moved by the noble Baroness. She is absolutely right in what she said. I make an additional suggestion to that of the noble Lord, Lord Pannick, which is that the Intelligence and Security Committee could look at the position at the end of the year. Its deliberations could no doubt inform the discussion that will take place here and in the House of Commons in relation to an annual renewal. A number of assertions have been made about the likelihood of there being only a small number of cases and the impact of the proposed changes. Following the precedent referred to by the noble Baroness, it would be well to monitor those at least for a period until we can see clearly how the legislation works out in practice. I commend the amendment to the Committee.

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.

Justice and Security Bill [HL]

Lord Beecham Excerpts

Tuesday 17th July 2012 Lords Chamber

Moved by

[Lord Beecham]

67A: After Clause 8, insert the following new Clause—
“Independent review of closed material procedure
The Secretary of State shall ensure that an independent review is conducted into the impact of the provisions under Part 2, to conclude three years after the coming into force of this Act, and shall publish a report on the review to both Houses of Parliament.”

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[Lord Beecham]

My Lords, this amendment and the others in this group stem from the report of the Constitution Committee and representations from organisations such as Justice. The Constitution Committee records that my right honourable friend Sadiq Khan, the shadow Justice Minister, asked a question in the House of Commons about the number of cases in which a CMP had been adopted under the existing provisions, which relate to control orders and the like. The reply of the Minister, Mr Djanogly, was that there was no information, it had not been collated and it would be too expensive to provide such information. The Constitution Committee rightly points out that these are matters of considerable interest to the public and, indeed, to Parliament and such a record should be made available. It invites the House,

“to consider whether the Government should be required to maintain consolidated records”.

Amendment 67B looks to provide such information, as does Amendment 67A, again following the recommendation of the Constitution Committee and representations, in this case from Justice, that the Government should report on the impact of the provisions of the Bill. The noble Baroness, Lady Berridge, has a similar amendment, Amendment 88.

Amendment 67A talks of a three-year period because it seems sensible, given the suggestion that there are likely to be very few cases, to allow sufficient time to elapse to gauge whether that is right or not. It would perhaps be wrong to rely on a single year’s experience as the basis for a review. Three years is long enough, in my judgment. Justice suggests a five-year period, which seems to me to be too long, given the scale of the changes. I hope that the Government will accept that these amendments, which are of course tabled on the basis that we end up with a CMP provision, will facilitate a greater understanding of how the system works and allow consideration of modifications should any of the difficulties which some of us have canvassed today in Committee and on previous occasions be warranted. I hope that the Government will look benignly on these amendments: they are not in any way destructive and should allow a proper consideration of how matters progress should the legislation pass in something like its present form. I beg to move.

[Baroness Berridge]

My Lords, I shall speak to Amendment 88, which, as the noble Lord, Lord Beecham, has said, is in my name. I concur with much of his reasoning and concerns about the recording and reporting of these matters. The amendments would enable Parliament to monitor the use of these unusual court proceedings. I would be grateful if my noble friend would say whether the response given in the other place to the question from Mr Sadiq Khan still stands, as the Government have very helpfully agreed to compile a central database of closed material procedures for the use of special advocates. If the Government are able to compile that database for special advocates, could they not also do so for Parliament?

If the closed material procedures are granted by Parliament, it would be on the basis of there being a very small number of cases. This amendment would enable Parliament to monitor whether that is indeed the case. Unfortunately, things that are intended to be rare have a tendency to creep, as apparently Lord Williams of Mostyn assured your Lordships’ House in 1997 in relation to the introduction of SIAC. The closed material procedures are now used in a large number of statutory situations—I think about 14 different jurisdictions. I expect there will need to be some agreement as to how frequently a report is laid but it is important with such a closed system that as much information as possible comes into the public domain, particularly information that can be assessed by Parliament. Although not the subject of this amendment, the same argument applies to the use of closed material procedures generally, so that Parliament would know how often they are applied for, granted, appealed and, in particular, successfully appealed, as well as which government departments are making use of the procedures and under which legislative regime they are being used. I also believe that there could be useful comparative statistics on how often appeals are brought in jurisdictions where appeal is allowed on a matter of law alone compared to on a matter of fact, as in the civil proceedings considered under this Bill.

Amendment 88 adds the requirement for the independent reviewer of terrorism legislation to bring a report to Parliament, which I understand would be similar to the role of the independent reviewer in relation to control orders and now TPIMs. It could also perhaps provide a means for the independent reviewer to receive the continuing views of the special advocates, which have been such a concern to many people including the Lord Chancellor. Unless someone independent reads all these closed judgments in an area, I do not know how we will know if there are inconsistent decisions and perhaps cases that have been decided without knowledge of a previous precedent due to the fact that these are secret judgments. Some of that risk will of course now be averted by the new central database that I have mentioned, which will be available to special advocates. However, it will not be completely averted, in my view, due to the nature of the system and not in a way that Parliament can be assured of the integrity of the body of these decisions. The independent reviewer of terrorism legislation might even need a method of passing cases that he or she is concerned about to be reviewed by the court for the reasons I have outlined.

I believe it is very much in the Government’s interests to have as much information in the public domain and as much scrutiny as possible of a closed system. I also hope, along with the noble Lord, Lord Beecham, that there will be good news on Report on the principle behind this amendment.

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[Baroness Stowell of Beeston]

My Lords, I am grateful to the noble Lord, Lord Beecham, my noble friend Lady Berridge and other noble Lords who have contributed to this short debate. It raises some important issues about how an Act of Parliament, especially one such as this, is scrutinised after Royal Assent. I understand the intention behind the amendments, which is to ensure that effective mechanisms are in place for reviewing the operation of CMPs and other aspects of the Bill. I also understand, support and indeed share the objective of ensuring accountability of Government to Parliament, particularly in an area where we are moving towards new measures which are different and mark a significant step away from what has been routine until this point.

Amendment 67A, moved by the noble Lord, Lord Beecham, would require an independent review of the impact of the provisions under Part 2 three years after Royal Assent. It may be helpful to remind noble Lords that any Act has always been liable to some form of post-legislative review, whether by a parliamentary committee or internally within Government. Since March 2008, an additional and more systematic process has been in place. Normally, three to five years after Royal Assent, the responsible department must submit a memorandum to the relevant Commons departmental Select Committee. The memorandum will include a preliminary assessment of how the Act has worked out in practice, relative to objectives and benchmarks identified during the passage of the Bill. The Select Committee, or another committee, will then decide whether it wishes to conduct a fuller post-legislative inquiry into the Act. The process applies to all Acts receiving Royal Assent in or after 2005. This process already covers a requirement for a review after several years. Therefore, I think that the objective outlined in the amendment of the noble Lord, Lord Beecham, is already covered.

Amendment 67B and the first part of Amendment 88 seek respectively to introduce annual and quarterly reports on the operation of this part of the Act. The noble Lord, Lord Judd, made an important point. While it is important to have a process for calling the Government to account and for reviewing the operation of the Act and the CMP process, we need to be careful of the law of diminishing returns by introducing a process that is so systematic that over time it is no longer as impactful as it might otherwise be. What is important is that the Government collect the relevant data so that if a Select Committee or any parliamentarian wants to ask a question, or if there is a debate or a parliamentarian wishes to scrutinise the operation of CMPs, we are in a position to do so. My noble friend Lady Berridge referred to that point. During the process between now and Report, as we consider the implementation phase of the Bill, we will carefully consider how best to do that. I will certainly take on board the points made in the debate.

The second part of Amendment 88 seeks to add the review of the provisions in Part 2 of the Bill to the remit of the independent reviewer of terrorism legislation. I am concerned about how practical such a proposal may be to achieve its aims, given that the remit of the independent reviewer has already been extended on several occasions. His statutory responsibilities relate to the Terrorism Act 2000, Part 1 of the Terrorism Act 2006, the TPIM Act 2011 and the Terrorist Asset-Freezing (Temporary Provisions) Act 2010. Furthermore, the Protection of Freedoms Act, which came into force this year, requires that the independent reviewer or someone on his behalf undertakes a review of any detention of a terrorist suspect beyond the current statutory limit and if the Government intend to commence functions in the Coroners and Justice Act 2009 relating to the independent reviewer inspecting places of terrorist detention.

The TPIM Act is unique in that its measures are designed to restrict the behaviour and activities of individuals suspected of involvement in terrorism who, the Government argue, cannot be prosecuted or deported. This is why Parliament legislated for close post-legislative scrutiny. David Anderson QC indicated, when giving evidence to the Joint Committee on the Draft Detention of Terrorist Suspects (Temporary Extension) Bills, that his role has already increased and that there is a limit to how much one person can do. It is important that we avoid diluting the effectiveness of the role by overburdening it. Notwithstanding this, I recognise the valuable contribution that David Anderson QC has made to the debate about the need for CMPs. His reviewer functions for asset-freezing and TPIMs already include the use of CMPs. There is nothing to prevent Mr Anderson or any future post-holder being asked to undertake ad hoc reports into issues of wider national security relevance or being invited by Parliament to give his opinions. It is important that any such ad hoc report should not seek to provide oversight or review of the judiciary’s decisions on individual cases. That would not be appropriate.

My noble friend Lady Berridge asked about the database that is being made available to the special advocates. I can inform her that the closed database is to ensure that special advocates have access to judgments for legal precedent value. However, the database will contain sensitive information and will not be appropriate for disclosure generally to Parliament.

All that said, I hope that I have gone some way to reassuring the noble Lord, Lord Beecham, and other noble Lords that the measures currently in place are sufficient to ensure that the Act, if the Bill achieves Royal Assent, is properly scrutinised and that the department takes seriously its responsibility to ensure that we are in a position to be held accountable in the way that Parliament has every right to expect. On that basis, I hope that the noble Lord feels able to withdraw his amendment.

[Lord Beecham]

My Lords, if I am right, this is the first occasion on which the noble Baroness has responded to a justice debate. I welcome her to her new responsibilities. I wonder whether she is by any chance related to Lord Stowell, an eminent 18th century judge from Newcastle. He was the brother of the Tory Lord Chancellor, Lord Eldon—the most reactionary Lord Chancellor that the country has ever had. Perhaps she would enlighten me on her genealogy or, if she is not sure, look into it.

[Baroness Stowell of Beeston]

I will not detain the House. He is no relation but I know of his existence, which is why my title is Baroness Stowell of Beeston.

[Lord Butler of Brockwell]

Perhaps I may point out that he had a connection with the college to which the noble Lord, Lord Beecham, and I also have a connection.

[Lord Beecham]

As does the noble Lord, Lord Marks. I had the misfortune to sit beneath the portraits of both those distinguished judges at my school and my college. I could not escape them but I would not wish to escape the noble Baroness.

Despite these warm words, I am somewhat disappointed by the noble Baroness’s reply on the amendments. Amendment 67A seeks, in effect, to replicate the independent review process of the independent reviewer of terrorism legislation without adopting that individual, as the noble Baroness, Lady Berridge, suggested. Having said that, it would not be beyond the wit of government to appoint a second independent reviewer of terrorism legislation and allied matters if that were thought to be required. It is the independence of the review that is essential. Furthermore, the post-legislative review process is normally designed to take place after three to five years. Five years is too long. This is a rather different piece of legislation from most of that which would be reviewed. We are dealing with some fundamental rights and a fundamental change in the justice system. It deserves special consideration. I hope the Government will think again about that. The same really applies to Amendment 67B. It is important that there should be in the public domain regular checks on precisely what use is being made of these procedures. Concerns have been expressed in Committee today that, like Topsy, the use of these things may simply grow. The legislature needs to keep an eye on developments here. The assumption is that there will not be many. That is an assumption which needs to be tested regularly. A compilation of statistics on an annual basis should help that.

[Lord Hodgson of Astley Abbotts]

Does the noble Lord agree that the phrase “mission creep” could be made for this sort of thing? We just find it spreading out. Mission creep would be a most dangerous aspect of this legislation.

[Lord Beecham]

I concur with that view, hence the need for regular reporting, not just of the statistics. The next amendment I will move will deal with other aspects. There does not appear to be available in general an indication of how much use is being made of the process under the present regime. It will be even more important when we are looking at the new developments that the Bill proposes. I am somewhat disappointed with the reply. It may well be that we will have to return to these issues on Report. In the circumstances, I beg leave to withdraw the amendment.

Amendment 67A withdrawn.

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Moved by

[Lord Beecham]

67C: After Clause 8, insert the following new Clause—
“Open statements for closed judgments
Closed judgments must be accompanied by an open statement from the court, which shall include—
(a) the reasons for the closed material procedure;(b) any factors which would be particularly relevant in determining whether all or part of the closed judgment could be made open at a later date;(c) the duration of open hearings and closed hearings;(d) the number of witnesses heard in closed proceedings, and the nature of those witnesses;(e) the length of a closed judgment;(f) whether national security was an issue in the proceedings; and(g) the date at which the closed status of the judgment should be reviewed, which must be no later than five years from the date of the judgment.”

[Lord Beecham]

My Lords, this amendment was suggested effectively by Dr McNamara of the University of Reading, who is conducting a research project around—as he puts it—how different arms of the state control and manage information about terrorism and security. It is a project that has involved a great many government departments and individuals from government to police forces and the like. He suggested that it would be sensible, again given the important nature of the proposals in the Bill, to look at how the system is working in somewhat more detail than simply the numbers of cases we referred to in previous amendments. The thrust of this amendment is to require a judgment when it is made to give the reasons for the closed material procedure, such as national security, as well as the other factors that are listed in the amendment—I will not take up the time of the House by repeating them all.

The essence is to have a clear view of what is happening in individual cases and ultimately to make possible the availability of the status of the judgment. Paragraph (g) of the proposed new clause would give a date at which the status of the judgment should be reviewed—in other words it would create the possibility of opening up the material at some point. That would not be an absolute requirement. It would still be a matter for determination as to whether the material should be disclosed, but a time period would at least set the clock running for that possibility. In some cases it would not eventuate but in others it might be appropriate for the material to be disclosed. This would reinforce the acceptability if CMPs come into play because the public would have some assurance that ultimately consideration would be given to disclosing material. That may allay some of the fears that surround the issue. I beg to move.

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[Lord Wallace of Tankerness]

My Lords, there were three points. First, I understand my noble friend’s point about the availability of judgments that are closed to people who are not special advocates. That is a difficult problem that I cannot readily see a solution to, given that the very reason why they are closed judgments is because of the sensitive nature of the information in them the disclosure of which could be damaging to national security.

The second point is very much one of detail. Who would determine whether there was, in fact, no longer a national security consideration? Where would the responsibility lie? That is the very issue that I want to consider, because how that would be addressed does not readily present itself to me. I sought to indicate that there is an issue here. I am not pretending for a moment that there is an easy answer, but the issue is important to consider.

On the third point that my noble friend makes about consistency, the difficulty—perhaps it is a reality rather than a difficulty—is that every case will be dealt with on its own individual circumstances. What goes into an open judgment or a closed judgment may well be the result of representations, debate and argument before the judge by special advocates. In those circumstances, it is difficult to ensure that there is rigid consistency because that might inhibit more openness in circumstances where a special advocate makes a compelling case that particular material ought to be included in an open, rather than a closed, judgment. It may be the counsel of perfection, or of the impossible, to think that there would be consistency when we are dealing with circumstances that can differ considerably from case to case. I think it must be left to the argument presented by counsel on both sides—special advocates and counsel for the Government—to determine what a judge puts into open judgment and what is put into closed judgment.

I hope that with those words, the noble Lord, Lord Beecham, will consider withdrawing the amendment.

[Lord Beecham]

I am grateful to the noble and learned Lord for agreeing to give consideration to that particular aspect. There are two issues here. One is public confidence in the system, for which some information about the process—I am not talking about detailed information about the closed material itself—needs to be in the public domain. The second issue is that this should be done in a systematic way, perhaps by the equivalent of the 30-year rule for Cabinet papers and the like.

I am not suggesting for a moment that we should set out to prescribe a given period at this point, but at some point the option of disclosing material ought to be built into the system. This should not necessarily be with a particular time frame in mind, but be a process that is available to the Government of the day to determine, perhaps in conjunction with the courts, what information might be released and when. That is something that we might look at further on Report, in addition to the point that the Minister has agreed to take back. However, in the circumstances I beg leave to withdraw the amendment.

Amendment 67C withdrawn.

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[Lord Faulks]

My Lords, I share with noble Lords who have proposed this amendment the desire that there should be public confidence in the system. However, like the noble Lord, Lord Pannick, I do not think that this is the solution. It is true of course that there are circumstances in which it is desirable, if not essential, that one judge should hear one part of the proceedings and another should hear another part, but the question of it being desirable, as it were, to have separate judges is a different matter. In fact, there is quite a strong argument that there should be greater continuity. The days of having one judge hearing preliminary issues and summonses and then the matter moving on to another judge have to some extent been changed in the Commercial Court, the Technology and Construction Court and in many cases in the county courts, so that if possible there is the same judge with a grip on the case right from the beginning.

On the face of it there is considerable advantage to having continuity unless, of course, the process is going to result in injustice to the litigant. We are talking in the context of CMPs with a claimant who may feel that injustice is being done to him or her by virtue of the possibility of closed material provisions. All I can say is that if I were in the position of that claimant, I would much prefer the judge who first heard and no doubt scrutinised the application under Clause 6 to conduct the case throughout in order to make sure that there is fairness, to show the flexibility we discussed in the last session of this Committee, and to deal with what might arise in accordance with the guidance given by the Bill in such a way as to provide justice. Although I wholly understand what motivates the amendment, I fear that it is not going to achieve what it is intended to.

[Lord Beecham]

My Lords, as I said, I have a good deal of sympathy for the amendment proposed by the noble Lord, Lord Thomas of Gresford, and I am particularly seized of the argument of the noble Lord, Lord Marks. Ultimately it comes down to a question of the public perception of a situation where you have what appear to be secret trials at the behest of the Government of the day. That puts the case in a different category from other kinds of case where there is perhaps a lesser degree of public interest or concern about the nature of the proceedings as a whole.

Cases of this kind are distinguishable from the kind of case that the noble and learned Lord, Lord Woolf—another, if I may say, eminent Newcastle holder of high judicial office—referred to. There is a distinction to be made with cases where a judge can put matters out of his mind, and no doubt judges would be able to do so. However, I suspect that the public will be more concerned, to the degree that they are at all concerned about these things, in a case of this kind where we are talking in effect about closed procedures and what can be described loosely but not entirely inaccurately as secret trials.

Justice and Security Bill [HL]

Lord Beecham Excerpts

Tuesday 17th July 2012 Lords Chamber

[Lord Thomas of Gresford]

I think that is too narrow a definition of the Pepper v Hart principle. I seem to recollect that when this Bill was first discussed and promulgated, the Government were intending not to use the test of the interests of national security but what was in the public interest. That was thought to be extremely wide. The leader of my party and my noble and learned friend’s party, apparently—at least he claimed—fought for its reduction to the interests to national security. Where the public interest stops and national security begins is a fine line, or perhaps it is a fuzzy one, but it is up to the Minister to give to a judge who has to consider applications of this sort positive guidelines as to what the Government have in mind now they have reconsidered the original purpose of their Bill.

[Lord Beecham]

My Lords, the noble Lord, Lord Hodgson, is too modest in proclaiming that this is a simple amendment, since it goes to the heart of the whole principle of Part 2 of the Bill, which changes—potentially fundamentally—the approach to the operation of civil justice, though not of course criminal justice, in the provision of a system permitting, in circumstances that we are debating, material to be kept from one of the parties and utilised under the closed material procedures.

It is worth reminding ourselves of some of the concerns that have been expressed. I am particularly interested in the briefing submitted by the Northern Ireland Human Rights Commission, as it comes from a part of the country that has confronted security issues to a very considerable degree and has suffered considerable harm over the past few decades from activities that all of us would deplore and which would probably come within the compass of any definition of national security.

Nevertheless, the Northern Ireland Human Rights Commission in considering the Bill proclaimed that it was,

“regrettable that despite some modifications to the proposals in the Green Paper, and the declaration under clause 11 … of the Bill”,

concerning these matters, there remain,

“the risks to the right to a fair trial under Article 6”,

of the European Convention on Human Rights, and Article 14. The commission goes on to say—and this matter was referred to in Second Reading—that the Government have,

“yet to make an evidence based case as to how the current Public Interest Immunity provisions have failed to protect national security interests and therefore why a system of CMPs is needed at all”.

The commission affirms that it would appear that the Government are,

“prepared to sacrifice fair trial protections and wait for litigation to be brought by those alleging”,

a breach of Article 6,

“rather than ensure adequate protection from the outset”.

It advises that,

“the proposals are not likely to satisfy the requirements of Article 6 … in a significant number of cases”.

That is a fairly trenchant critique of the proposals. The commission concludes that the Government have,

“failed to demonstrate the need for the Bill’s provisions … The move from evoking a CMP on public interest grounds to national security grounds has been reported as an acceptable narrowing of the original proposals. Human rights law accepts national security as grounds for qualifying rights. However, NIHRC expresses concern that ‘national security’ remains a broad term that might still be relied on too readily by Government and in a manner that is not consistent with its human rights obligations”.

The briefing refers, as the noble Baroness, Lady Manningham-Buller, referred, to the national security strategy, with its references to pandemic diseases and,

“natural hazards along with increases in organised crime are listed as threats to national security”.

It concludes that the Government are,

“yet to be sufficiently definitive about what it means by national security for the purposes of requiring a court to permit a CMP in a civil case. The risk is that what is now claimed to be a ‘fix’ for a limited number of civil cases”—

and that is the Government’s case; the extent to which it is likely to be limited to very few cases is supported by Mr Anderson—

“becomes a ‘fix’ increasingly relied on by Government to obstruct scrutiny and attempts to seek redress”.

The commission’s are not the only concerns that have been expressed about the issue of definition. In evidence from the special advocate to the Select Committee, Mr McCullough stated that,

“there is the possibility that national security could be very broadly defined, unless some reassurance as to its scope were given. On one view at least, anything, or almost anything, involving international relations might be argued, and one could envisage being argued by the Government, as to have an impact on national security”.

Of course, as has already been indicated, it is not really possible to be definitive about what constitutes national security and what does not. It would be impossible to be conclusive because, as noble Lords have indicated, circumstances change and threats change, and it would be foolish to prescribe a definitive list. The noble Marquess, Lord Lothian, said of national security that you know it when you see it. The question is, in these circumstances, who is “you”? The Government may take a view; others may take a different view. Although these matters are difficult, we have to try to evolve a system that will give some guidance to those who operate the system and, indeed, those who may ultimately have to form a judicial position on individual cases.

[The Marquess of Lothian]

My Lords, Clause 6(2) states:

“The court must, on an application … make such a declaration if the court considers that … such a disclosure would be damaging to the interests of national security”.

My point is that, in order for the court to be able to make that decision, that court procedure is the time when you can actually “know it when you see it”. There may be arguments on both sides but the court has to resolve that. We, at the moment, are arguing that in a vacuum the court will have to decide it according to the particular circumstances.

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[Lord Beecham]

It would, but the court would be assisted perhaps by an approach in which the Government in advance and in general terms—and not necessarily on a permanent basis—indicate what they consider is relevant for the purposes of these claims. They could, for example, say, “We have a national security strategy, but there are things in here on which we would not seek to rely in cases that might be brought”—say, organised crime or any of the other matters to which the commission referred and to which the noble Baroness, Lady Manningham-Buller, referred.

The noble Lord, Lord Hodgson, provides a definition that is both too broad and too narrow. It seems too broad if one looks simply at the definition of “intelligence or military operations”. There have been cases that resulted in inquests—to which these procedures would not apply—where, for example, there might be a question about whether equipment used during military operations was fit for purpose, and that might give rise to a civil claim, for example, by a wounded soldier; we know that such incidents have arisen. The noble Marquess might say that that does not really constitute national security for the purposes of bringing a claim. On the other hand, the definition could be considered too narrow, because one can envision circumstances in which there was no military operation but there was transportation of chemical or fissile substances or storage of such things, which were not necessarily for military purposes but which obviously would count as being relevant to national security because of the risk of terrorists seizing the equipment or substances. Those examples illustrate the difficulties but do not, perhaps, take us very far.

I wonder whether, in these circumstances, it might be a matter for the Government, possibly with the assistance of the Intelligence and Security Committee, to provide some guidance about what would be deemed to be relevant to the issue of national security in the event of an application being made, assuming that the basic principle is accepted and that the Government are found by Parliament to have made their case—and, I repeat, so far as the Opposition are concerned, we are not yet convinced of that. It may even be that negative definitions of the kind that I have indicated in relation, for example, to the national security strategy, might be helpful so that you can exclude certain things ab initio, and you might give an indication of things that are clearly included—military operations, I would have thought, certainly would be included.

The contributions of the noble Lord, Lord Deben, and, in particular, the noble Lord, Lord Hodgson, as well as that of the noble Earl, Lord Erroll, have indicated the breadth and depth of concern about the road we are embarking on. It is not beyond the capacity of the Government, with the advice and support of the ISC, to produce not a statutory definition, because that would be too rigid, but guidance that would assist the courts and others in considering these matters at the relevant time. Does the Minister consider that a step worth taking?

[Lord Faulks]

The noble Lord said that the party opposite is not yet convinced of the need for CMPs, and he made various suggestions about possible guidance or a definition that would assist on the question of national security. Does it follow that if there were further guidance or a better definition of national security along the lines he suggested, that would go some way to satisfying whatever needs to be satisfied in terms of the party opposite’s potential opposition to CMPs?

[Lord Beecham]

My Lords, we are capable of simple arithmetic, and it may be that, in reality, the Government will get their way on the principle. We will keep an open mind through Report stage and listen carefully to what the Government say. At the end of that process, we may or may not accept the case. If it is the wish of this House—in the first instance—and of Parliament as a whole to proceed with closed material procedures, we might come to what one could call the last-resort position of looking at how best to limit any application of the new procedure and how to make the best of the situation, in the interests of justice and the traditions that this country has espoused for centuries. It would be making the best of what we currently consider is a very bad job. However, we are open to evidence. There is not a great deal of evidence at the moment, although there has been some to which Mr Anderson referred—the three cases which seem to have persuaded him that there is a need for such a procedure. However, as I reminded the House the other night, he also said that the Government’s proposals were disproportionate and suggested measures that would have some mitigating effect on the process, if it were to be implemented.

That is the position of the Opposition. We are not taking a premature stance on this. It would be interesting to know, for example, whether the special advocates have, as suggested, actually been shown the files of the independent adviser who is to be consulted, or whether the process is going to take place at all, and what the view of the special advocates is. Your Lordships will recall that they were very critical. Almost all of them signed up to criticism of the proposals as they stood. In evidence to the Select Committee, Mr McCullough said that he would welcome the opportunity, if it were given, to look at the cases that seemed to have persuaded Mr Anderson to accept the principle, given that, as he made clear, he continued to think there would be only a limited number of cases. At the very least, the amendment has allowed us to look at ways in which such cases might be restricted to a small number, against criteria that, although not statutory, might be developed while the Bill is making its way through Parliament.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, I am grateful to my noble friend Lord Hodgson for bringing forward the amendment. It is clear from the contributions that it raises an important issue. I certainly recall that on publication of the Bill, the issue of whether there was a definition of national security was raised not just by a number of Members of your Lordships’ House but more widely. It is important to define the type of material that closed material procedures should be used for. I hope that I can set out why we think we have reached in the Bill the right definition of the type of material that would be considered within a CMP—material that if released would damage national security.

The Government carefully considered the responses to the public consultation on the Green Paper, including consideration of the scope of the material to be covered, before bringing forward this legislation. The Bill makes provision for closed material procedures to be used only in contexts where there would be damage to national security. Examples of sensitive material that might be relevant to a case that would give rise to a duty to claim public interest immunity, and which could also be heard in a CMP under this legislation, include, for example, information from a sensitive source whose life or safety could be put in danger if openly disclosed. I think that example was given by the noble Baroness, Lady Manningham-Buller. Other examples include information relating to current operations that would be compromised if it were to be made public; intelligence material shared with the United Kingdom by foreign intelligence agencies; or the content of telephone calls or e-mails intercepted by the intelligence agencies that would not be admissible in open civil proceedings. It is difficult—a number of noble Lords said this in their contributions—to be completely prescriptive about all the types of damage to national security that could justify closed material proceedings.

The amendment in the name of my noble friend introduces a definition. I would assert that the term “national security” is clear, tried and tested. My noble friend Lord Lothian said that it is clear “when you see it”. One noble Lord asked: “Who sees it?” In this case, the judges see it. The Secretary of State makes an application to the court, and the judge determines whether it satisfies the condition that there would be damage to national security.

It has been for judges to interpret this term appropriately and flexibly. The flexibility of the current approach allows the judge to consider the arguments of the Secretary of State on their merits. Of course, the procedure, even at the initial gateway stage, would also allow special advocates to make representations to the court.

The noble Lord, Lord Beecham, mentioned Article 6 of the European Convention on Human Rights. It is important to remember that in Clause 11(5)—

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[Lord Wallace of Tankerness]

My Lords, the Green Paper suggested that there might well be the category of the prevention of serious crime. That was considered by the Government. I indicated earlier in my remarks that the Bill deliberately omitted from the definition other aspects of the public interest from the CMP clauses, such as international relations and the prevention or detection of crime, although they do apply in other statutory CMPs. But the consideration of the representations received in response to the Green Paper was to make it solely matters that would be damaging to national security.

The policy of successive Governments and the practice of Parliament has not been to define the term “national security”. As a number of your Lordships accepted, it has been to retain the flexibility needed to ensure that the use of the term can adapt to changing circumstances —for example, changes to the threat environment and advances in technology. The nature of national security threats and risks is constantly evolving. That, in turn, requires the Government and the security and intelligence agencies to maintain their ability to evolve.

My noble friend Lord Lothian suggested that it would be better to leave this open and the noble Lord, Lord Beecham, accepted that it was not always possible to be definitive. The current approach is based on the recognition that this is a flexible concept which evolves in the light of changing circumstances. As my noble friend Lord Hodgson said, we want to avoid a legal straitjacket. The risk of any attempt to be precise and exhaustive would be to constrain the ability of the security and intelligence agencies to adapt their operational approach and develop capabilities to meet new and unexpected changing threats.

I will conclude with a pertinent example. Neither weapons of mass destruction proliferation nor cyber attacks feature in what is fortunately a non-exhaustive list of threats to national security which the Security Service is specifically charged with countering in Section 1 of the Security Service Act 1989. But who could deny that, some 23 years later, these activities represent serious threats to the UK’s national security? The flexibility is there for the security services to be charged with responsibilities without there being an exhaustive list.

The noble Lord, Lord Beecham, accepted that there might not necessarily be a statutory definition and he raised a question about guidelines. I will certainly consider guidelines, but I am not entirely sure where they would fit into the guidance being given to the court, even with the help of the ISC in devising them. However, I know that the suggestion was made in a constructive manner and I will certainly think about it in a constructive way. I do not readily see how it will fit in, but I will certainly consider it. He may wish to elaborate on what he had in mind.

[Lord Beecham]

I particularly had in mind ruling out areas—the noble and learned Lord has already indicated some of them—that would not be deemed to fit within the definition that the Government seek to apply. It is an exclusive rather than an inclusive list that I think might be helpful,

[Lord Wallace of Tankerness]

My Lords, I hear what the noble Lord says. I have already tried in response to the debate to indicate some of the things that are excepted from the definition as we have it. With those considerations in mind, I invite my noble friend to withdraw his amendment.

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[Lord Thomas of Gresford]

As I understand it, the court did not accept the argument.

[Lord Beecham]

My Lords, I am grateful to the noble Lord for a clear explanation of something which, I am afraid, I approached with complete bewilderment. I simply did not know the point he was aiming at. I do now and I am persuaded by his argument. I hope that the noble and learned Lord will be sympathetic to the case he has made because it is convincing and consistent with the approach to the Intelligence and Security Committee. Given that precedent, I would have thought not that it would damage the interests of the security services, but rather that it would strengthen the role of the courts and uphold the principles that Members across the House seek to maintain in terms of the operation of the justice system. I hope that the noble and learned Lord will accede to his noble friend’s plea.

[Lord Wallace of Tankerness]

My Lords, I am grateful to my noble friend for bringing forward this amendment. He rightly points to two pieces of legislation which govern the security and intelligence agencies, the Security Service Act 1989 and the Intelligence Services Act 1994. As my noble friend has indicated, they place an obligation on each of the agency heads to prevent the disclosure of information obtained by the agencies except on certain limited grounds set out in those Acts. In particular, the disclosure of information is permissible where necessary in the proper discharge of the functions of the agencies. Information held by the security and intelligence agencies will include information and intelligence from human source reporting, and therefore is essential to the agencies’ operational effectiveness and the protection of national security.

As I understand it, the concern behind this amendment seems to be that these provisions would prevent the agencies complying with their disclosure obligations in civil proceedings. However, it is our view that the amendment is unnecessary. The agencies take their disclosure obligations very seriously. In England and Wales, if the claim is a civil damages claim, for example, Part 31 of the Civil Procedure Rules will generally apply. Standard disclosure requires parties to disclose the documents on which they rely—documents which undermine their or another party’s case and documents which support another party’s case. If the claim is for judicial review, all public authorities are subject to a duty of candour which requires the public authority, when presenting its evidence, to set out fully and fairly all matters that are relevant to the proceedings. Naturally, part of considering these disclosure obligations is the question of whether PII should be claimed or, if Parliament passes Part 2 of the Bill, whether the Secretary of State should apply for closed material proceedings. In a case where the agency is being sued for civil damages or someone is applying for judicial review, it is part and parcel of the proper discharge of an agency’s function to defend actions taken in the discharge of its functions. I therefore believe that the amendment is unnecessary.

My noble friend has made reference to paragraph 3(4) of Schedule 1 concerning the ISC provisions. This paragraph reflects a provision in the Intelligence Services Act 1994 which treats disclosure by the agencies to the ISC as necessary for the proper discharge of their functions. It may be asked, as my noble friend did, why this provision is needed there and not in the context of civil litigation. It is simply because it is right to make it clear, as existing legislation does, that disclosure to the ISC is permitted.

My noble friend may well be raising a case where it is a question of third-party disclosure. He mentioned a case of Evans v Ministry of Defence and, on the intervention of the noble Lord, Lord Pannick, I understood him to indicate that that argument did not win the day. It is a case that I wish to consider in the light of what my noble friend has said. If the effect of this amendment would be to treat the disclosure into any civil proceedings, regardless of the identity of the parties or the subject matter of the proceedings, as somehow part of the proper discharge of the agencies’ functions, that would conflict with the agencies’ need and ability to operate in secret. This is vital to maintaining the trust and confidence of those with whom they work; or, as was said in the previous debate by the noble Baroness, Lady Manningham-Buller, information may come from a particular agent, and the secrecy of that is important. I am thinking in particular of proceedings that do not at all involve the agencies and where a request for disclosure is made. It is right that in these circumstances the courts consider whether disclosure would be necessary for the proper discharge of an agency’s functions before an order for disclosure is made.

I have indicated to my noble friend that I will look at the Evans case. Based on what he said, I am advised that it may be similar to and consistent with the arguments that the agencies made in the Omagh bombing case—namely, that Section 22A is a bar to third-party disclosure, and that it was for the courts to decide. I hope that he hears that the agencies take seriously the requirements of disclosure in civil proceedings under Part 31 of the Civil Procedure Rules. On that ground I urge that the amendment is unnecessary and ask my noble friend to withdraw it.

--- Later in debate ---

[Lord Lester of Herne Hill]

My Lords, in later amendments, we will be considering ways of making what at the moment is an unfair procedure fair, or less unfair. I agree with the noble Lord, Lord Pannick, that the procedure as it stands is not fair and also that it does not become any more fair by adding assessors or advisors to help the judge who has to decide whether to grant a declaration under Clause 6(1).

My experience of assessors or others—whether in an employment tribunal or in a county court for example—in dealing with discrimination cases, which are difficult and often involve weighing proportionality issues, has been an unhappy one. Along with others who have spoken, I have huge admiration for, and confidence in, the ability of our senior judiciary and agree with the noble Lords, Lord Pannick and Lord Carlile of Berriew, that our judges have displayed a very good ability to weigh competing interests in difficult cases.

It will be important to look later at ways of making the procedure fairer, but with all respect to county court judges, whether serving or retired, and to retired judges of the senior courts, I simply do not think that having more of them is going to make it easier. This is not a question of deciding facts, like a jury; it is a question of striking a balance between competing interests. That seems something that our senior judiciary are well able to do without being bolstered by any outside support.

[Lord Beecham]

My Lords, I pay tribute to my noble friend Lord Dubs, who has served with great distinction on the Joint Committee on Human Rights and of course has a long record of interest in matters of justice generally. However, I indicated to him during a conversation beforehand that I was not persuaded by his argument. I was persuaded, albeit temporarily, by the arguments of the noble and learned Lord, Lord Lloyd, but in the end I share the views of other noble Lords who have indicated that this is perhaps an overelaborate and unnecessary addition to the framework that would otherwise exist. One point that struck me is that it is a little invidious for a serving High Court judge to sit with current or retired county court judges. I do not mean any disrespect to county court judges, but am not sure—

[Lord Elystan-Morgan]

There are no county court judges. There have not been any since the Courts Act 1971. They are now circuit judges.

[Lord Beecham]

It is a while since I appeared before any judge whether county court or circuit. I meant the equivalent position. The noble Lord is clearly aiming at that tier in the judicial system and it strikes me as a little excessive. Equally, the provision for majority verdicts and so on would be somewhat invidious. Regretfully, I cannot support my noble friend’s amendment and I dare say that the noble and learned Lord will join the majority of those who have spoken in saying that the amendment would not be acceptable.

[Lord Wallace of Tankerness]

My Lords, the noble Lord, Lord Beecham, anticipated what the response would be. That said, it is only right to acknowledge the amendment moved by the noble Lord, Lord Dubs, and supported by the noble and learned Lord, Lord Lloyd, with reference to his own experience. I certainly accept that in moving his amendment the noble Lord, Lord Dubs, does not necessarily accept that we should be in the field of closed material proceedings. He made that clear, but he indicated that, in his view, it was necessary to have safeguards of the type proposed in his amendment. The Government’s position is that there are safeguards and in future groups of amendments we will be able to discuss the pros and cons of other potential safeguards.

As has been indicated, the amendment would require a judge in a closed material proceeding to sit with a panel of four additional judicial commissioners. In introducing these procedures the Government consider that we are providing the judiciary with another tool to deal with cases involving national security material. In the Justice and Security Green Paper, the Government floated the idea of a separate national security court with national security cases being diverted to it and different procedures being adopted in it. However, we concluded that national security is an aspect of disputes which may arise in any field of law and therefore it is better to keep cases in the ordinary courts where they arise while providing appropriate procedures, rather than moving different types of cases into one court where their only unifying factor is national security.

We are concerned that this amendment would be similar to creating a specialist court because it establishes an entirely different finder of fact for cases in which CMPs may be used. It envisages that the panel would preside over both the open and closed parts of the proceedings and this would fundamentally change the procedures adopted in the civil courts for cases in which national security is engaged. The oddity of what is proposed here can be illustrated by considering a case where national security material is important, but none the less is a small part of the material in the case. It might possibly even be a single document. Let us say that the court made a declaration that a CMP may be used and accepted an application that the document should be heard in closed proceedings. We would then be faced with proceedings which to all other intents and purposes were indistinguishable from other civil proceedings being presided over by a panel. We do not think that is right. My noble friends Lord Lester and Lord Carlile, and the noble Lord, Lord Pannick, made the point that single judges are well equipped to deal with this. My noble friend Lord Faulks made the point that subsection (3) very much changes the level and nature of the burden of proof and would materially change the nature of these proceedings. The noble Lord, Lord Pannick, indicated that it would also lead to cost and delay. I am always wary of talking about cost when we are dealing with such sensitive matters, but that would undoubtedly be the case.

The noble Lord, Lord Dubs, should be congratulated for coming up with an imaginative way of addressing his undoubted concerns. However, the Government believe it is better to retain the current judicial system in the civil courts and provide the judiciary with this new mechanism of the closed material proceedings rather than fundamentally alter the way in which the United Kingdom deals with civil proceedings by creating a finder of fact in cases of this sort.

I believe that it was the noble Lord, Lord Elystan-Morgan, who mentioned special advocates. They will provide the type of independent challenge that this amendment seeks to cover. I remind the Committee, as I am sure will happen on further occasions in our debates, of the case of M v Home Secretary in which the noble and learned Lord, Lord Woolf, granted an appeal on the basis of a rigorous cross-examination in the closed session. That in itself is testament to the work of special advocates in these situations. I hope that I and other noble Lords who have contributed have gone some way to encouraging the noble Lord, Lord Dubs, to withdraw his amendment, while recognising his motivation in putting it forward.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, I had not intended to intervene in this debate, but having heard the noble Lord, Lord Pannick, and my noble friend Lord Faulks describe—accurately, one has to concede—the role of the special advocate and the limited responsibility that he has to the person whose interest he is appointed to represent, one is bound to come back to the amendments proposed by my noble friend Lord Hodgson and ask whether there is not a field that my noble and learned friend the Minister ought to consider—namely the degree to which we might fairly increase permitted disclosure to the person whom the special advocate is appointed to represent. There ought to be a guiding principle, consistent with what the noble Baroness, Lady Manningham-Buller, said, that there should be as much communication as is consistent with the interests of justice, short of disclosing material to the party from whom some disclosure that is prejudicial to national security is withheld. The special advocate’s position could be effectively carried out without compromising national security if some movement in that direction were to be conceded. It may be that my noble friend’s amendments do not achieve precisely that balance, but at the moment we have a system that is so restrictive of communication that it destroys the public confidence in the special advocate system that there might be.

[Lord Beecham]

My Lords, this is an important group of amendments, as are the amendments to follow which deal with the position of special advocates. The Constitution Committee, in its report of 15 June, made reference to the earlier report of the Joint Committee on Human Rights and stated:

“The use of Special Advocates has proven to be highly controversial”.

The report then quoted the 2010 report of the Joint Committee on Human Rights which stated that, even with the use of special advocates, the closed material procedure,

“is not capable of ensuring the substantial measure of procedural justice that is required”.

The Constitution Committee report continued:

“The Special Advocates themselves have voiced grave concerns as to the limitations inherent in their role. They submitted a … response to the Green Paper”,

which stated:

“Our experience as Special Advocates … leaves us in no doubt that CMPs are inherently unfair; they do not work effectively; nor do they deliver real procedural fairness”.

The Constitution Committee report added that even the Court of Appeal—which commended the special advocate system and said that it,

“enjoys a high degree of confidence among the judiciary”—

pointed out that the system is,

“‘inherently imperfect’ and that the system ‘cannot be guaranteed to ensure procedural justice’”.

Those are significant criticisms, even allowing for the efforts made by the distinguished body of men and women who serve as special advocates. I refer again to the evidence to the Select Committee about the special advocates, particularly the evidence of Mr McCullough, who was clear about the problems they faced. He said that the best they can do is,

“very limited indeed, particularly given the nature of intelligence material, which, very often, requires inferences to be drawn from circumstances that may have a sinister explanation … We, as the Special Advocates, are in great difficulties in displacing the sinister explanation if we cannot take instructions from the person who is in a position to provide the innocent explanation. So that is a fundamental difficulty”,

that they find themselves in under the Bill. In answer to a question from my noble friend Lady Lister in the same evidence session, he said that the legislative form of words that could be devised,

“would simply be that there is an obligation to give a minimum level of disclosure, which would enable the affected person to give effective instructions to their own representatives or to their Special Advocate. It would not be difficult to draft”.

That rather follows the line of the noble Lord, Lord Marks, in commending a procedure that would safeguard the element of national security but allow instructions—potentially, at least—to be given.

--- Later in debate ---

My noble friend’s Amendment 64 would introduce an obligation on the appropriate law officer, rather than a discretion on an officer, to appoint a special advocate. I can readily see why my noble friend has tabled this amendment because he may well see that there is a possible let out here from a special advocate being appointed. The current discretionary power allows for the fact that an excluded person may not wish to appoint or provide instructions to a special advocate for whatever reason, in which case it is likely to be impossible for a special advocate to represent the excluded person. However, in practice, it is difficult to conceive of circumstances in which the appropriate law officer would not appoint a special advocate where statute makes provision for a special advocate to be appointed and the excluded party wants a special advocate to represent their interests. The word “may” is used in the corresponding provision of the TPIM Act at paragraph 10 of Schedule 4.

[Lord Beecham]

I wonder whether the noble and learned Lord could deal with this matter by accepting a slight modification to the wording so that there “must” be an appointment of a special advocate unless the party declines to accept the appointment.

[Lord Wallace of Tankerness]

That is a helpful suggestion. I am always wary of saying that, as it might cast doubt on what has been put in an earlier statute which is intended to do the same thing. An absolute requirement may lead to a special advocate being appointed in circumstances where it would be almost impossible for the person to function. I hope that the noble Lord is reassured that it is our intention that whenever an excluded person wants a special advocate, a special advocate will be appointed. I note what he says. Without wanting to cast doubt on what is in other statutes, we shall certainly have regard to what he says.

--- Later in debate ---

[Baroness Berridge]

My Lords, I will speak briefly in support of Amendment 62. My noble and learned friend the Minister has outlined that this is a balance of security and fairness. In a closed material procedure, I do not think it is wrong to say that the national security issue is a higher priority for the Government who are party to the proceedings, and fairness is higher up the priority list for a claimant who has been excluded.

Let us take the example of a claimant who has been excluded from the hearing and is sitting in the corridor whiling away the hours while the proceedings go on, and turns to the rules of court that have been drafted and looks at Clause 7, as we have it, unamended. How is the claimant not going to conclude, when looking at those rules, that almost the sole interest the court is required to take into account is national security? According to paragraphs (c), (d) and (e), the court has to consider giving a summary, but this is not required. To preserve the integrity of the court, Clause 7 is too constrained around the requirements of national security and does not bring in the need for fairness of the claimant, who will be sitting there wanting to know as much as possible about the evidence and, if possible, to know the gist of the case. Bringing in some consideration of the need for the claimant to have enough information to provide instructions is incredibly important. There must be some requirement given to the court to consider the issues of fairness under the rules.

Secondly, although I take full notice of the views of the noble Baroness, Lady Manningham-Buller, that the special advocates who are there on behalf of the excluded party cannot be the sole judge of whether national security is breached if a particular summary of the case is given, what would be the objection to including the special advocate in the process of deciding what the summary is? Perhaps they could be involved with the relevant party because, as the legislation is drafted, the duty of not revealing national security has in any event been given to the court, so why not have a process where at least the claimant would know that the special advocate is able to partake in that process to determine the summary and the court is the final gateway to ensuring that national security is not breached? Therefore, I support Amendment 62.

[Lord Beecham]

My Lords, the noble Baroness, Lady Berridge, has identified and emphasised the crucial nature of Clause 7. It is the fundamental problem with the Bill that, despite the protestations of the Lord Chancellor, it gives little discretion ultimately to the judge as to whether the closed material procedure should be invoked. Clause 7(1)(c) requires the court to give permission if,

“the disclosure of the material would be damaging to the interests of national security”.

It seems clear that any disclosure of matters affecting national security would suffice to preclude the material being made available. Therefore, we come back to the position that the noble Lord, Lord Faulks, referred to, as enunciated by the noble and learned Lord, Lord Hoffmann.

It is almost exactly 50 years since I first became acquainted with the noble and learned Lord, Lord Hoffmann, as a new student at University College, Oxford—where I was succeeded in due course, several years later, by the noble Lord, Lord Marks—and I have a great admiration for noble and learned Lord, who was a distinguished opponent of the South African regime. I find it rather surprising that he came to the conclusion that matters of this kind are a matter for the Executive and not the judiciary. It is not a view that can be recommended to your Lordships’ House. It strikes a dagger at the heart of our system, and the amendments before us provide the right approach to procuring a level of fairness that allows the judge to make a decision on the basis of a balancing exercise.

I entirely agree with the noble Baroness, Lady Berridge, and others who have laid an emphasis on the need to have that balancing exercise carried out. The amendments in the names of the noble Lords, Lord Thomas, Lord Pannick and Lord Lester, clearly are directed at securing that important balance and fulfilling the—unjustified—claims made for the Bill that ultimately it will be the judge who actually takes the decision; otherwise the decision is effectively made for him by the Secretary of State, and that is extremely undesirable. It follows that the amendments in relation to gisting, which the noble Lord, Lord Pannick, described as a minimum requirement, also have their place in a system which is fair to the parties.

The noble and learned Lord referred to the application of the European Court of Human Rights. Although I am sure that he is clear in his own mind that there is no real conflict with the human rights legislation, there is, perhaps, a question about that. Clause 7(1)(e), to which other noble Lords have referred, makes it clear, in relation to gisting, for example, that a summary does not contain material the disclosure of which would be damaging to the interests of national security. However, it is apparently the position that the European Court has previously struck down decisions made under the existing closed materials procedure on the basis that they were incompatible with the right to a fair hearing which, of course, Article 6 prescribes.

The case law suggests—I am referring now to a briefing from Justice, the organisation concerned with civil liberties and matters of this kind—that,

“a person must be given as much disclosure—whether through the provision of documents, evidence or a summary—as is needed to secure a fair trial”.

It refers in its briefing to the case of A v United Kingdom, in which,

“the Grand Chamber concluded that where insufficient material had been disclosed to an individual subject to a control order”—

of course, we are not talking about control orders here but about a civil claim—

“this rendered the hearing unfair and incompatible with the Convention”.

The briefing also refers to the case of AF, to which the noble Lord, Lord Pannick, referred. There must be a question as to whether the assurance of the noble and learned Lord, obviously given in good faith, that Clause 11(5) resolves these matters—because it emphasises the duties of the court under the Human Rights Act, such that,

“Nothing … is to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the Human Rights Convention”—

amounts to very much. On the face of it, it would appear that the provisions of the Bill, as drafted, would lead to conflict with Article 6.

[Lord Lester of Herne Hill]

Is the noble Lord aware of a case I once did, Tinnelly and McElduff v UK, where there was a conclusive certificate of national security under our law which prevented these Northern Irish Catholics from having the merits of their religious discrimination claim heard at all when they were blacklisted? The Strasbourg court said that that was clearly contrary to the convention and therefore the national security certificate that had been cleared by the Minister and by the Northern Ireland courts, which said they had no alternative, was held to be in violation of the convention.

[Lord Beecham]

I am grateful to the noble Lord, who brings another example of precisely the same point made in the briefing that I referred to and underlines the apparent discrepancy between the evident intentions of Clause 11(5) and the reality which would appear to be applicable. In looking at these amendments I think that your Lordships’ House may wish, when we come to Report—because we will not be voting today—to support the thrust of these amendments, which seek to import into what is patently an unsatisfactory procedure at the moment evidence of balance and fairness which would leave the decision where it ought to be, in the hands of the judge who is dealing with these matters, assisted, we hope, by the special advocate presenting a case on behalf of the other party to the case.

As matters stand, it does not look as though the Bill adequately reflects these requirements or, indeed, the requirements of Article 6. I hope that the Government will look again at the implications of the situation as it is now presented, bearing in mind the widespread concerns expressed around all these issues by eminent Members of your Lordships’ House, particularly the noble Lord, Lord Carlile, who was very clear that the Bill, as currently drafted, does not adequately deal with the need for fairness through a proper existing procedure. I thought that he made that case very effectively—as indeed did other noble Lords, legally qualified and not legally qualified—raising deep concerns about how the Bill will operate in practice, bearing in mind, again, that many of us still have to be persuaded that there is a substantial issue here, given that we have yet to be shown cases in which damage has been done by the system which has prevailed hitherto.

Of course, when it comes to disclosure the Government still have the last resort of not proceeding with the case. That has a financial cost and it may have other costs, but it preserves the rationale for the Bill’s provisions in that it preserves the interests of national security. If the Government feel that national security has to be protected, they can effectively stop the case by settling it or, perhaps, striking it out.

[Lord Butler of Brockwell]

Does the noble Lord think that it is a demonstration of damage being done that the Government have been unable to defend themselves in such cases and have had to settle?

[Lord Beecham]

There cannot be two winners in these situations. It is certainly less than satisfactory that a case does not proceed to a final adjudication, and it may be that the Government are therefore, to some degree, a loser. However, the question is whether that consideration should take precedence over the rights of the individual, the other party to the case, to have a proper hearing and to put his side of the case. We have to make a choice, and the choice should be, “By all means let us preserve national security, if that is the ultimate requirement, but not at the expense of the other party, whose right to access to justice will have been obstructed”. That is the decision that we have to make. We have to do a balancing process ourselves, as legislators, and I hope that that is the line that we take.

Justice and Security Bill [HL]

Lord Beecham Excerpts

Wednesday 11th July 2012 Lords Chamber

[Lord Thomas of Gresford]

My Lords, the closed material procedure applies when a court is, under Clause 6(1),

“seised of relevant civil proceedings”.

Clause 6(7) defines “relevant civil proceedings” as,

“any proceedings (other than proceedings in a criminal cause or matter) before … the High Court … the Court of Appeal, or … the Court of Session”.

CMP applications can be brought only where a disclosure of material would be damaging to the interests of national security. However, can such applications be appropriate in habeas corpus proceedings or judicial review involving the liberty of the subject or claims for wrongful arrest against the police or prison officers? Not even the United States goes that far. As my noble and learned friend will be well aware, the habeas applications in the Guantanamo cases have a special procedure whereby sensitive material is released to security-cleared advocates acting on behalf of the applicant. Then the court, in such special procedures, can give permission to those security-cleared advocates to discuss specific matters or questions laid out by the court with the client.

In habeas corpus proceedings, the onus is on the respondent to the writ to justify the restraint of the applicant. Blackstone cites the first recorded use of habeas corpus in 1305, during the reign of King Edward I. He explains the basis of the writ in these terms:

“The King is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted”.

I am always conscious of the Magna Carta Lords who look down on our proceedings in this Chamber. At Runnymede nearly 800 years ago, they insisted that:

“No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed”.

Are actions against the police for wrongful arrest to be defeated by secret evidence? Let us take the example of someone arrested on a bus for smoking a fake cigarette. He brings proceedings against the police for wrongful arrest. Those acting for the police go to see the judge in secret and say, “We had a tip-off from the security services. We cannot tell the claimant in this particular case. You must strike his claim out or find in our favour”—or whatever. Is his claim then to be defeated? I suggest that that would be quite contrary to the basis of habeas corpus and the protection of freedom of the individual as we have known it for centuries.

In my submission, the Government should define much more closely the relevant civil proceedings in which CMPs may be applied for. We have been talking all day but only in the context of civil claims for damages brought in the High Court in the ordinary way. We have not discussed habeas corpus and matters of that sort. I suggest that they should be specifically excluded. I beg to move.

[Lord Beecham]

My Lords, I have some sympathy with the suggestion of the noble Lord, Lord Thomas, that habeas corpus proceedings should fall within the civil proceedings provisions of the Bill. I am less persuaded by the argument to include any action against the police. It would probably seem wrong to exclude these specific actions from the procedures, not least in the light of the Crime and Courts Bill, with the creation of the National Crime Agency, the extension of powers to the border agency and the like, and the possible involvement of ordinary police forces under the auspices of the NCA in matters which could go to issues of terrorism or other aspects of national security.

The noble Lord may have a point about habeas corpus and it would be interesting to hear the Minister’s response to that, but I do not think that the Opposition could necessarily support the amendment as it stands. There is the problem that we will refer to later about definitions of national security and the like, which possibly offer a more fruitful way of narrowing the scope of the provisions of the Bill. Having said that, I entirely concur with my noble and learned friend’s view. Anything that I say on subsequent amendments or indeed in relation to this amendment is without prejudice to the stance that we take, but we are yet to be persuaded of the case for closed material procedures in the first instance. All the discussions that have taken place so far, and that we will continue to have in relation to this part of the Bill are subject to that distinct reservation. We are not, therefore, conceding the point when we look to see what ultimate fallback provisions might be desirable and necessary if it is the wish of your Lordships’ House on Report to go forward with the Bill in much the condition that we now find it. We will be looking to discuss amendments and we hope that the Government will respond positively to some of them but in relation to this amendment we will be commending the latter part to the Minister’s attention.

[Lord Wallace of Tankerness]

My noble friend’s amendment seeks to narrow further the contexts in which a CMP can be used. I hope I can demonstrate to your Lordships that the Bill is already very narrowly drafted and that the amendment could remove justice from those who are entitled to it. The Bill as drafted allows CMPs to be used only in relation to information damaging to the interests of national security, only in the High Court, Court of Appeal or Court of Session, and not in a criminal cause or matter.

The amendment would mean that CMPs could not be used in any action against the police or law enforcement agencies, or any action seeking a person’s release from detention. Where such cases involve information that cannot be disclosed for reasons of national security, this amendment would not allow judges to reach a judgment based on all the facts. Claims relating to national security should, surely, be capable of being heard, rather than material being excluded by way of public interest immunity, regardless of whether the defendant is the police or a government department. As was reflected in the comments of the noble Lord, Lord Beecham, the police play a vital role in national security in, for example, counterterrorism investigations. There may be many civil cases which would involve the police—it would not necessarily be directed against a Secretary of State—and it would be unfortunate if they were to be excluded from the possible use of CMPs. Judges should be able to come to a judgment on the full facts in any case relating to national security.

The Bill is designed to increase justice for claimants and defendants in all civil cases where national security means that, otherwise, information could not be put into open court. This amendment would take that justice away from claimants who bring a national security case against the police or law enforcement agencies, or where, as my noble friend explained, the case is about a person’s release from detention. Cases about a person’s release from detention in the UK will generally be in the context of a criminal cause or matter where CMPs are not available, but should this not be the case, it is important that all of the material is before the court, if possible, rather than being excluded by PII.

My noble friend gave a quotation about habeas corpus going back to the reign of King Edward I. I hope that I do not strike too nationalistic a tone, but north of the border, Edward I is not seen as a fount of justice and liberty. That apart, my noble friend raises a serious point. It is our considered view that in the context of habeas corpus cases it is vital that the court is in possession of relevant material before making a decision to issue a writ. Without all of the relevant information, it may not be possible for the court to come to the right decision.

I know that noble Lords are concerned that the nature of the types of cases covered by this amendment creates a greater need for transparency, and that, indeed, in some circumstances, such as proceedings into potential violations of Article 5 of the European Convention on Human Rights, there is a requirement for transparency. The argument that public confidence requires fully open proceedings in such cases is an understandable one, but I believe that these concerns can be addressed through our current proposals. Nothing in this Bill is incompatible with the ECHR. My noble friend has raised a serious point about detention. I will reflect further on it, but our approach is that it is important, even in these cases, that all the material, if possible, is made available to the court before a decision is made, rather than some of being excluded through PII. I will reflect on what he has said, but our view is that we have struck the right balance. I hope that on that basis he will be able to withdraw his amendment.

Justice and Security Bill [HL]

Lord Beecham Excerpts

Tuesday 19th June 2012 Lords Chamber

[Lord Beecham]

My Lords, the House will join me in congratulating the noble and learned Lord on a typically lucid exposition of a very complex Bill. In his closing speech at the end of the Second Reading debate on the Crime and Courts Bill, the noble Lord, Lord McNally, made a gracious but utterly misguided reference to me as a “distinguished lawyer”. I have no pretensions whatever to such a description. Fortunately, particularly having regard to the Bill we are debating today, this House is not lacking in expertise of the highest order, including as it does eminent legal practitioners, former senior members of the judiciary and others with ministerial, political or professional experience of the intelligence and security world. The latter category embraces, among others, six Members who have served on the Joint Committee on Human Rights, whose report on the Government’s Green Paper is required reading, especially for those who, like myself, are seeking to get to grips with this hitherto unfamiliar world.

The very Title of the Bill, juxtaposing as it does two desiderata, justice and security, reflects the dualism with which the legislature has to contend, calibrating as we must the balance between two principles which are potentially in conflict. By its nature, this is a topic in which, as the Government proclaimed at the outset, consensus is highly desirable, if not essential. The Joint Committee managed to achieve just such a consensus on the Government’s original proposals, as did the Constitution Committee. It is perhaps unfortunate that the Government chose to proceed from the Green Paper straight to a Bill without first seeking to achieve that broad consensus they had adumbrated, but we are where we are.

I pay tribute to the Government for responding to some of the concerns raised by the Joint Committee and others, notably in relation to restricting closed material procedures to matters of national security and to abandoning proposals for secret inquests, although that may not be universally approved. However, the question for the House to consider is whether the Government have gone far enough—in particular, in relation to making the case for the proposed extension of closed material procedures to further categories.

The process appears to bear the hallmark of the Lord Chancellor, a larger-than-life figure whom his party, many of us think, twice mistakenly rejected as its leader. He is what one might describe as a practitioner of the John Lewis-style of politics—never knowingly understated—and is perhaps inclined to be a little cavalier. Let us consider paragraphs 26 and 27 of the Joint Committee report, in which the committee commented on the Government’s initial refusal to publish the responses they received to the Green Paper—perhaps an ironic echo of the closed material procedure, which is one of the most controversial parts of the Bill. On the claim that “improved executive accountability” would be advanced by the Government’s proposals, the committee comments in paragraph 212:

“With the exception of the ministers, not a single witness in our inquiry suggested that the proposals in the Green Paper will improve the accountability of the executive”.

Let us consider further the initial refusal to disclose to the independent reviewer of terrorism legislation papers relating to the 20 cases on which the Government purported to rely in support of their proposals.

My noble friend Lady Smith will deal with Part 1 of the Bill when she winds up for the Opposition. In relation to that part, therefore, I confine myself to asking whether the changes proposed in relation to the Intelligence and Security Committee, some of which are welcome, do enough to strengthen parliamentary oversight of intelligence and security activities and, in particular, whether the membership criteria should not perhaps reduce the role of former Ministers and provide for limited terms of office so as to underline the committee’s independence of both the Executive and the relevant services, and to allow some refreshment of that membership from time to time. In raising those questions, I of course pay tribute to present and past members of the committee who have sought—and seek—conscientiously to fulfil their role.

I now turn to the most difficult parts of the Bill; first, those dealing with closed material procedures—or applications, in the first instance—under which the Secretary of State may apply to the court for an order in any civil case excluding the disclosure of evidence to a party except to a special advocate, if such disclosure would be damaging to national security. There is a broad view that this effectively will tie the hands of the trial judge.

The second area relates to the so-called Norwich Pharmacal cases, about which the noble and learned Lord closed his opening address. As he indicated, these prevent the disclosure of “sensitive information” which the Secretary of State certifies it would be contrary to the interests of national security or international relations to disclose. In those cases, a party seeks an order for disclosure of evidence in order to pursue or defend a case against a third party, possibly outside the jurisdiction, as in the cases that have attracted attention thus far, where the defendant—that is, the Government—is to some degree mixed up in events; perhaps quite innocently they have come into possession of information. We certainly agree that there is an issue here that needs to be addressed and a case for regularising the situation created by the Norwich Pharmacal cases. The question, of course, is whether the Government’s approach is proportionate.

In that connection, Clause 13(3)(a) and (d) appear to go much further than would, on the face of it, be desirable, barring as they do disclosure of any information held by or relating to the intelligence service. That is a very broad definition. Again, it is surely necessary for the role of the judge in deciding on an application not to be more apparent than real so as to ensure a strong judicial check on the information to be exempt.

Of course, it is natural and reasonable for the intelligence and security services to operate in these matters on the precautionary principle. However, it is surely a step too far to accept that their view must be unchallengeable in all circumstances. After all, elements within the service, although not the service itself, have occasionally demonstrated a capacity to follow their own inclinations, sometimes of a political nature, whether of the left or right. One has only to think of the generation of Soviet agents recruited from Cambridge—I am relieved to say—in the 1930s, or the Zinoviev letter of the 1920s and the campaign waged against Harold Wilson by elements within the Security Service.

Even more important are the questions about the definition of national security and of sensitive information —obvious enough in military cases, but what else might the terms encompass? Should concern for international relations prevent the disclosure of information tending to show unlawful conduct—for example, the use of torture by a foreign power? How are the interests of justice to be preserved and, moreover, to be seen to be preserved? This is an area to which the Joint Committee report drew attention in its closing section. It referred to:

“The impact on media freedom and democratic accountability”,

and drew particular and highly critical attention to the Government’s position, to which the Government’s response was, frankly, extremely weak and unconvincing.

The Joint Committee rightly called for legislation to facilitate the admissibility of intercept evidence to be brought forward urgently. However, its main thrust was to criticise the approach to closed material procedures and the Norwich Pharmacal cases. It makes a strong case that the need to extend closed material procedures beyond the very limited categories to which it applies at present—for example, as the noble and learned Lord reminded us, the Special Immigration Appeals Commission, and there some other areas too—is not based on robust evidence. Further, it argues that the Government are wrong to discount the public interest immunity procedure, under which, as the noble and learned Lord indicated, the Government can always decide not to disclose their arguments, albeit potentially at the cost of having to settle or lose their case.

It is surely not good enough for the Government to plead in their response to the committee that the public would prefer the Government to be able to defend themselves and allow cases to continue to judgment, rather than be settled at greater expense to the public purse. That is to place too heavy a weight on financial considerations, your Lordships might think. In any event, the committee found a,

“troubling lack of evidence of any actual cases demonstrating the problem”,

which the Government seek to solve. It was also concerned by the vagueness of the evidence on which they rely.

In relation to the closed material procedure, the whole process conflicts with the words of the noble and learned Lord, Lord Kerr. He said:

“The central fallacy of the argument, however, lies in the unspoken assumption that, because the judge sees everything, he is bound to be in a better position to reach a fair result. That assumption is misplaced. To be truly valuable, evidence must be capable of withstanding challenge”.

He continued:

“I go further. Evidence which has been insulated from challenge may positively mislead. It is precisely because of this that the right to know the case that one’s opponent makes and to have the opportunity to challenge it occupies such a central place in the concept of a fair trial”.

The committee clearly leans towards a modified public interest immunity procedure as an alternative, perhaps including redactions, confidentiality, restricted publicity and “in private” hearings. I commend further consideration of that approach.

In relation to the Norwich Pharmacal cases, the committee rejects the proposed effective ouster, as some would see it, of the court’s jurisdiction to authorise disclosure. Its preferred option is for the public interest immunity procedure to be applied where issues of national security arise in cases where a party seeks disclosure of evidence material to his case in another jurisdiction. In paragraph 192 of its report, the committee sets out how this might be achieved. It suggests, as an alternative to other proposals, a rebuttable presumption against disclosure of national security-sensitive information, a test for when the presumption can be rebutted and an agreed list of factors which the court should take into account in determining whether the presumption is to be rebutted.

As I have indicated, there is certainly here an issue which needs to be addressed and a case for regularising the Norwich Pharmacal situation. Again, the question is whether the Government’s approach is proportionate and whether the evidence on which they base it is robust. There is a case for qualified exemptions to the residual disclosure jurisdiction, but the House will wish carefully to scrutinise the detail of the Government’s proposals and, again, so far as it can, the evidence on which they are based.

In respect of closed material procedures, the question is whether under the Bill as it stands we would end up with a major incursion into the right to a fair trial of issues before the courts, impacting on civil justice rather than preventing damage to national security, which can be and has been achieved in other ways. The Bill’s provisions, after all, represent a fundamental change to our system of civil justice and to the rights of parties. Even the parliamentary website headlines today’s debate as being about “secret hearings”—a somewhat Kafkaesque description which may nevertheless strike a chord with Members of your Lordships’ House.

We must also take note of the independent reviewer’s statement that he,

“deprecated the tendency of Ministers to characterise their CMP proposals as justified by national security … as a scare tactic in order to achieve its unrelated proposals on secret civil trials”.

Crucially, he added:

“Existing PII procedures do not risk compromising foreign intelligence. The secret trial proposals must stand or fall by their ability to produce just outcomes”.

Although Mr Anderson was eventually allowed limited access to some case material and concluded that there is a case for extending CMP, again crucially, he remains convinced that the decision is one for the judge and not the Executive—a point made forcefully by Mr Andrew Tyrie, to whom my noble friend Lord Clinton-Davis made reference, in his analysis of what he described as,

“the inadequacy of the Government’s concessions”.

In conclusion, in the week in which we welcome Aung San Suu Kyi to address both Houses, I very much look forward to listening to the diverse arguments and opinions of Members of this House as we debate these complex and difficult issues of jurisprudence and public policy. I know that in the noble and learned Lord, Lord Wallace, we have a thoughtful and sensitive interlocutor, and I hope that, collectively, we might reach a satisfactory conclusion. So far, about the only substantial consensus appears to be a consensus of the concerned, ranging across the political divide—as exemplified by articles in this week’s House Magazine from the noble Lord, Lord Lester, and the noble Baroness, Lady Berridge, and a powerful critique from Mr Tyrie—to civil liberties organisations, the Law Society and nearly all the special advocates. It is now for the legislature to seek to build a consensus around such change as can be justified as being essential to protect the public, for which the evidential bar is necessarily high and in which the rights of the citizen or claimant are adequately protected. In that process, your Lordships’ House is perhaps uniquely well placed to lead the debate.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Beecham Excerpts

Wednesday 7th March 2012 Lords Chamber

Moved by

[Lord Beecham]

19: Schedule 1, page 125, line 5, at end insert—
“Consumer(1) Civil legal services provided in respect of consumer law disputes.
(2) For the purposes of sub-paragraph (1), civil legal services includes advice and assistance at all stages.”

[Lord Beecham]

My Lords, the amendment would bring consumer law back into scope. Consumer law does not simply cover small issues that perhaps citizens advice bureaux or other organisations could speedily resolve. It can relate to much more significant claims: for example, professional negligence claims against members of my profession, against the professions of other noble Lords in the Chamber at the moment—heaven forfend—or against those who have custody of their clients’ money in investment funds. I refer to people like Michael Brown, the well known donor to the Liberal Democrats, who managed to make off with £2.5 million of other people’s money. There is a range of cases for which legal advice and assistance is clearly very important.

In consulting on these matters, the Government made the obvious point that these cases are not of the same gravity as—to use a term that the noble Lord, Lord McNally, used earlier—issues of safety and liberty. That of course is true but does not take us very far. They can certainly affect people’s lives as well as their fortunes very substantially. A range of claims might be brought that would be entirely out of scope and where, even if conditional fee agreements were obtainable —as they might be—questions would then arise about success fees, premiums and the like.

It is incumbent on the Government to look again at the issue and acknowledge that, while generally these are not matters that threaten life and liberty, they can make a significant difference to a great many people in our society, and that there will often—though not always—be a requirement for legal advice and representation. In Committee, much was made of the funding that the Government had already announced, which was again foreshadowed tonight with reference to possible similar sums over the next two or three years. However, as my noble and learned friend Lord Goldsmith mentioned, many organisations are already facing significant cuts in their funding—particularly Citizens Advice, law centres and the like—at a time when demand for their services, even before the changes in the legal aid system come in, is already rising.

I therefore hope that the Minister will feel able to indicate a reconsideration of the position as of tonight or, failing that, will agree to take this away and bring it back at Third Reading in the hope that we can accommodate the very real needs of many people who face considerable financial and, potentially, other losses as a result of failure on the part of those with whom they contract to deliver what is expected of them. I beg to move.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, the noble Lord, Lord Beecham, has moved his amendment to make civil legal services available for consumer disputes. It will come as no surprise to him that in response to a similar amendment in Committee we explained, and I do not apologise for repeating it because it is at the core of the architecture of the Bill, that in developing our reforms we have focused legal aid on those who need it most and for the most serious cases in which it is justified.

I recognise that there will be some difficult cases—for example, consumer matters that are concerned with financial matters—but we nevertheless consider that their relative importance is lower compared with, for example, issues of safety and liberty. Issues of safety and liberty are of the highest importance. That is why, in having to make these kinds of decisions, we have removed legal aid from consumer disputes. Moreover, we also note that, particularly in this sphere, there are other sources of advice; for example, trading standards and Consumer Direct. There may be alternative non-court-based solutions in some cases through regulators and ombudsmen. I do not think they can be as lightly dismissed as sometimes they are. Any consumer matter that concerns alleged contravention of the Equality Act 2010 will be within scope.

As was indicated in an earlier debate, the Government will provide additional funding to the not-for-profit sector in the Budget, and it is often a sector that has a role to play in areas such as this. It will be made available within the current spending review period. I understand that the Cabinet Office review is expected to conclude shortly and will provide recommendations on proposals to secure the long-term sustainability of the sector. I hope that the House will allow this important work to reach its conclusion.

There is consistency in our responses. When lines have to be drawn and decisions taken about what should or should not be within scope, we believe that higher priority should be given to some of the areas I have indicated. In these circumstances, consumer matters do not fall within the area we believe should be within scope. On that basis, I ask the noble Lord to withdraw the amendment.

[Lord Beecham]

My Lords, I remain disappointed in that response. There is potentially a huge range of claims that might be made. Some of them are minimal and perfectly capable of being disposed of in the way the noble and learned Lord referred to. Other are clearly of a different order altogether. Negligence advice from a solicitor, accountant, architect or other professional person can be very costly to individuals who may not be able to afford litigation. Even if they recover using CFAs, they will potentially lose a significant slice of the amount they have already lost. I do not think that is just, and it again reinforces the impression that the Government are giving that they are content with, effectively, a two-tier system of justice from which many people will be excluded. It is most unfortunate, but clearly in the circumstances and in the light of the time, there is not much point in seeking to test the opinion of the House. Accordingly, I beg to leave to withdraw the amendment.

[Lord Thomas of Gresford]

Before the noble Lord sits down, I may say that he is developing a very fine line in insulting jibes. I did not hear any mention of Brown in anything that he said in presenting his submission or in his reply.

[Lord Beecham]

I do not quite understand the relevance of that observation. I mentioned Brown. I am sorry if it offended the noble Lord. Mr Brown has offended a great many people.

Amendment 19 withdrawn.

--- Later in debate ---

Moved by

[Lord Beecham]

20: Schedule 1, page 125, line 5, at end insert—
“Education(1) Civil legal services provided in respect of education law disputes.
(2) For the purposes of sub-paragraph (1), civil legal services includes advice and assistance at all stages.”

[Lord Beecham]

My Lords, this amendment deals with education. It is right to say that, having consulted—although perhaps not initially—the Department for Education, the Government have amended their original proposals to bring special educational needs within scope. I very much welcome that.

However, there are significant problems in the education world that require assistance. These include school exclusions, admissions issues and bullying. In fact, at the moment there is a significant workload that potentially falls within scope. If the Government do not move their position, some 2,800 fewer clients will be given advice on educational law matters, and a small number—only 70 but for them it is important—would fail to obtain representation on such matters.

Clearly there are potentially significant issues around admissions which affect different categories of children disproportionately; for example, refugee and asylum-seeker children, for whom there is often a difficulty in obtaining places. Sometimes by definition these children arrive mid-year; they do not always arrive at convenient times for the academic year. Sometimes schools may have difficulty in admitting pupils with perhaps little educational experience or poor language skills. Equally, some of these children are more susceptible to bullying and racism than perhaps would normally be the case.

In any event, bullying is not confined to that group. It is common, unfortunately, in many schools. Some years ago, Bullying UK discovered that 87 per cent of parents sampled reported that children had been bullied. Of course, these will not all be serious matters but there will be cases where sometimes it is necessary for people to seek assistance and redress for incidents of that kind.

The Government consulted on all these matters publicly. They restricted their changes to the proposals to special educational needs. However, given that there is not a vast number of cases, where there are difficulties of this kind it seems proper that legal advice—and, if necessary, in a very small number of cases, representation —should be available. Again, we are talking about children. They have cropped up regularly this evening and in earlier debates as a group that we have to have special regard for.

Again, I hope that the Government will consider building on their welcome amendment on special educational needs to afford the possibility of advice and representation to these other categories. That would be welcome to those who suffer from bullying and would assist the education system in dealing with what can be very difficult problems. I beg to move.

[Lord Faulks]

My Lords, perhaps I might intervene briefly on this matter. I have experienced quite a number of cases involving educational law and I notice that this amendment is very widely drawn, potentially embracing all sorts of disputes.

It has to be said that the support of legal aid for educational law disputes has not been the finest hour of the LSC. In particular, I can speak from experience of three cases in the Supreme Court and a whole rash of cases alleging educational negligence, almost none of which were successful, which cost the taxpayer an enormous amount of money. Although well intentioned on the part of the claimants, these cases turned out to be expensive, unsuccessful and, quite frankly, misconceived.

I am very concerned about the width of this amendment, notwithstanding the fact that there are some areas, which I think are covered by the government amendment, where it is plainly appropriate that there should be support.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, Amendment 20 would bring back into scope all education matters not already covered by Schedule 1. We have retained legal aid for any educational case that involves a contravention of the Equality Act 2010, such as cases concerning disability discrimination. We have also retained current legal aid funding for appeals on special educational needs matters and for educational judicial reviews. In practice, this amendment would retain legal aid for all education matters. The judgment we have made in prioritising funding is that SEN, discrimination and judicial review are of the highest priority and that advice on such matters as exclusions and damages claims are not.

Where parents are not satisfied with an admissions refusal, they can appeal to an independent panel. This requires them to set out in writing why they disagree with the admissions decision and why they think that the admissions arrangements have not been followed correctly. These are not usually legal arguments. Parents who wish to challenge a temporary or permanent exclusion may do so by writing a letter to the school governors setting out their reasons for challenging the exclusion. If parents are unhappy with the decision to permanently exclude their child, they will be able to appeal.

From September 2012, such an appeal will be to the independent review panel. The Department for Education will fund the children’s legal centre to provide advice to parents on appeals to the independent review panel both online and through a telephone advice line. Parents can also appeal to the First-tier Tribunal if the appeal concerns disability discrimination and legal aid is being retained for advice and assistance in such cases.

Advice is also available on admission and exclusion matters from the Advisory Centre for Education and the Children’s Legal Centre. Education negligence claims have been excluded from scope, along with most other damages claims, because we do not consider that claims for money will generally be of the highest priority. We have therefore focused legal aid on only those money claims which concern a significant breach of human rights, an abuse of a position of power by a public authority, an abuse of a child or vulnerable adult, or sexual assault. The vast majority of education negligence claims will not fall under one of these three headings. For many meritorious cases, a conditional fee agreement will provide a suitable alternative funding arrangement. I hope that noble Lords will recognise that we have focused resources on education cases of the highest priority and that the noble Lord will withdraw his amendment.

The two technical government amendments in this group fulfil the promise we made in Committee concerning SEN provisions. These amendments ensure that SEN matters are fully within the scope of the Bill and, specifically, that learning difficulty assessments are captured by our provisions on scope. As we stated in Committee, the Government accept that the existing wording in paragraph 2 of Schedule 1 does not cover the provision of advice and assistance in relation to the making of learning difficulty assessments under the Learning and Skills Act 2000 for 16 to 25 year-olds. These amendments ensure that these services are brought within the Bill’s scope.

[Lord Beecham]

My Lords, the noble Lord, Lord Faulks, has made a valid point about education negligence cases. I think the consultation revealed that some respondents were quite supportive of excluding that, which I quite accept would be a sensible measure. The Government’s report on the key issues raised referred to suggestions by others that often difficult admission cases arose where clients were, for example, Travellers. The exclusion of education admission matters could prevent discrimination claims from being brought because it would take legal advice to identify that the clients had grounds for discrimination claims. Equally, lack of early advice could ultimately lead to the more expensive procedures of judicial review.

It is unfortunate that the Government do not at this stage wish to move. I clearly will not press the matter and hope that it can be kept under review perhaps, more particularly, in conjunction with the department rather than simply by the Ministry of Justice. As I understand it, there has been a little disconnection between the two on these issues thus far. For the future, I hope that that is something that could be repaired. In the circumstances, I beg leave to withdraw the amendment.

Amendment 20 withdrawn.

--- Later in debate ---

[Lord McNally]

My Lords, stakeholders have drawn it to our attention that the definition of community care service in the Bill is incomplete. We are expanding it to ensure that currently funded legal services in relation to community care remain eligible for funding under the new regime. These amendments will bring within the scope of civil legal aid services provided in relation to Section 2 of the Carers and Disabled Children Act 2000, which covers community care services to carers, and Part 1 of the Housing Grants, Constructions and Regeneration Act 1996, which covers facilities grants to enable disabled people to live independently in their homes. I beg to move.

[Lord Beecham]

My Lords, we welcome the Minister’s amendments and are glad that an error has been repaired.

Amendment 32 agreed.

--- Later in debate ---

[Baroness Butler-Sloss]

My Lords, there are three amendments here that relate to internal child abduction. Noble Lords may well know that international child abduction is governed by the Hague convention, to which the United Kingdom is a signatory. There is a well established procedure for dealing with a child wrongfully removed from any part of the UK to a foreign country. There are emergency hearings before a High Court judge and the attempt at recovery process then takes over. That process is well known and well established.

There is no such procedure for internal child abduction within the UK, although we operate three separate legal processes in the three jurisdictions of England and Wales, Scotland and Northern Ireland. A child may be taken wrongfully from Exeter to Belfast, Glasgow or even Carlisle, which may be just as upsetting or traumatic as abduction to France or Sweden. Removal from home, school, friends and security, and fleeing with a parent who is often acting irresponsibly and removing the child wrongfully, is certainly not in the best interests of the child. It is also traumatic for the left-behind parent, who has no idea what happened to the child or even whether he or she will ever see that child again. The decision for a child’s future should be made sensibly and responsibly.

Where there are two parents, each with parental responsibility, one parent cannot up and go with the child to live elsewhere without the consent of the other parent—I do not think that all parents know that—and even more so when the parents are separated and one parent has a residence or custody order. Under the Bill’s proposals, though, there is no provision for legal aid for the left-behind parent to find out where the child has gone, whether the child is safe and how to put into effect a process similar to that employed if the child has gone abroad. Quite simply, I am asking that there should be exactly the same process internally within the United Kingdom as there is externally for abduction to a foreign country.

I am extremely grateful to the Lord Chancellor, who asked to see me on this issue, and to the Minister for seeing the noble Baroness, Lady Shackleton, and the chairman of the Family Law Bar Association. As I understand it, the Government recognise the problem and that it requires a solution. I suspect that the only issue between us is how far they will go, because there are two aspects to the issue of internal child abduction: one is the recovery of the child but the other is the prevention of the removal of the child. Consequently, one needs both the prohibited steps order or a specific issue order and the location order, sometimes called “seek and find”, or a recovery order involving the tipstaff and the police—the police will not act unless there is an order—asking various agencies for addresses and going through the well known process that happens internationally but not nationally.

There is no reason why the international system should not apply internally, and I understand that the Government accept that. It is important that the whole process should be applied. I make it clear that it is intended only to stop the child being removed, to get the child back or at least to know that they are safe and properly cared for. It is not intended to be a backdoor entry into private-law family cases. Everyone understands that in a situation in which it is known where the child is—perhaps a social worker in the area finds the child with grandparents and says that the child is perfectly safe—the legal aid will drop at that moment. It would be the responsibility of the left-behind parent or the parent who has wrongfully removed the child to go to court. They would then be on their own, like any other couple in dispute over their children.

The process for which I seek legal aid is purely and simply connected to potential or actual abduction. I repeat without apology that I am asking for the process for abduction throughout the United Kingdom to be exactly as the same as the international process under the Hague convention. I beg to move.

[Lord Beecham]

My Lords, this amendment gives me a sense of déjà vu. More than 30 years ago, I acted for a father whose three children were in effect abducted by his wife and removed to Scandinavia in flagrant breach of undertakings and a court order. The case was tried by a Mr Justice Faulks. I do not know whether he was any relation of the noble Lord, Lord Faulks, who is not now in his place. It was a tragic case; the father lost virtually all contact with his two daughters, although his son eventually returned of his own volition. It exemplifies the kind of family tragedy that can occur when one party flouts all legal responsibilities.

I congratulate the noble and learned Baroness on bringing these amendments forward. Since there is a sympathetic reaction from the Government, I hope that the Minister will undertake to bring this back at Third Reading to resolve the matter satisfactorily. It seems axiomatic that the same procedure should, as the noble and learned Baroness suggests, apply whether the abduction is outside the jurisdiction of the UK courts or within one of the three jurisdictions that obtain. It looks as though the Government are minded to accede to that. I very much hope that an indication can be given that this will be resolved at Third Reading.

[Lord Wallace of Tankerness]

My Lords, as she has indicated, the amendments moved and spoken to by the noble and learned Baroness, Lady Butler-Sloss, concern legal aid for measures to prevent the unlawful removal of a child within the United Kingdom and for taking steps to remedy such a removal. They would add to similar existing legal provisions for legal aid to prevent and remedy the unlawful removal of children from the United Kingdom. It is important to stress that unauthorised removal from the United Kingdom is a crime, whereas, as has been acknowledged in this debate, one parent taking a child to another part of the United Kingdom without consent is not. Trying to navigate a foreign jurisdiction in a foreign language without a lawyer would also be considerably more difficult than trying to do something similar in the United Kingdom.

That said, the noble and learned Baroness has, as ever, made a powerful and persuasive case. We have indicated that in future people should, subject to various important exceptions, be able to deal with their family matters themselves, without the benefit of taxpayer-funded legal aid. However, I certainly recognise that if you cannot even find your child because they are in the hands of an ex-husband, ex-wife or estranged partner, it may seem impossible even to begin that process. The emotional stress on people in such situations can be immense. Therefore, we are sympathetic to the concerns of the noble and learned Baroness, particularly the proposals to make legal aid available for Section 33 and Section 34 orders under the Family Law Act 1986 —that is, the seek and find orders and the recovery orders.

Seek and find orders allow a court to compel someone who might reasonably know where a child is to tell the court. The court will then judge whether this information should be passed on to the left-behind parent. Obviously, if there are safety issues it might not be advisable to do so. Refusal to impart that information is treated as contempt. Thankfully, Section 34 orders are somewhat rarer, but they give the police powers to recover a child forcibly in emergency situations. As the noble and learned Baroness identified, we are not yet convinced that the associated prohibited steps and specific issue orders require funding. The same applies to registering an order made in one part of the United Kingdom in another part.

I fully accept that the noble and learned Baroness is not trying to find a backdoor entry into private law matters. However, our concern, and the reason we are not yet convinced about this, is that these orders get us much more into funding a family case as a whole, including by preventing relocation. The issue here is that many cases involving children are in fact arguments about where a parent with residence might reasonably live and the effect that will have on contact for the other parent. Therefore, when we talk about prevention in this context, that is the kind of situation we are talking about. I know that the noble and learned Baroness, from her vast experience, would see it as that. However, sometimes when members of the public talk about prevention orders, they have an image of stopping a child being bundled into the back of a car. That is sometimes the description conjured up by “domestic child abduction”.

If the noble and learned Baroness is willing to withdraw this amendment, the Government will table at Third Reading a similar amendment that covers Section 33 and Section 34 orders, for international abduction as well as domestic. I am happy for officials in the Ministry of Justice to continue discussions with the noble and learned Baroness, which I know have been ongoing, as she acknowledged, on the exact drafting of that amendment.

--- Later in debate ---

[Lord Thomas of Gresford]

My Lords, I moved this amendment in Committee. It is concerned with people who tragically are in a vegetative state and require an application to the court for the withholding of nutrition and/or treatment. I said everything that I needed to say in Committee and I wait to hear what further thoughts the Minister may have had. I beg to move.

[Lord Beecham]

My Lords, I congratulated the noble Lord on moving this important amendment in Committee, where he raised a particularly moving case. I congratulate him on raising the matter again on Report. I hope that the Minister will produce a satisfactory answer.

In Committee I raised a different point—perhaps not as clearly as I might have done—based on advice that MIND provides for patients. The point was not in relation to treatment for a mental health disorder, which of course would be covered by the Mental Health Acts and which the noble Lord, Lord McNally, pointed out would remain within scope. However, there may be a question regarding someone who suffers from a mental health disorder but whose treatment is for a physical problem, not for that disorder. The MIND briefing to patients states:

“Specifically, the laws in Part IV of the MHA on treating people without consent, only apply to treatment for mental disorder. They do not apply to the treatment of physical disorders unless it can reasonably be said that the physical disorder is a symptom or underlying cause of a mental disorder”.

A situation may be arising there in which the provision of legal advice would not be within scope because it is not for treating the mental health disorder.

I appreciate that an off-the-cuff answer might not be immediately available on that point, and I may have got it entirely wrong. However, such a situation strikes me as a possibility emerging from this briefing. So while I would certainly encourage the Minister to endorse the amendment of his noble friend, I would also ask him to undertake to look at the point that I have raised and, if necessary, to bring something back at Third Reading.

[Baroness Butler-Sloss]

My Lords, I supported the noble Lord, Lord Thomas of Gresford, in Committee, and I do so again now. As I said then, I had experience, at one time, of trying the majority of permanent vegetative state cases. I fear that there will be a small number of cases that are extraordinarily difficult to decide, where the families are placed in an agonising position. They really ought to have the opportunity to be heard in the court and to deal with this matter. Such cases are rare but very important. I very much support the proposal that something should be done about this.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Beecham Excerpts

Tuesday 24th January 2012 Lords Chamber

Moved by

[Lord Beecham]

82ZB: Schedule 1, page 136, line 34, at end insert—
“( ) all areas of consumer law not otherwise covered in this Schedule”

[Lord Beecham]

My Lords, this amendment speaks to the question of consumer law and seeks to restore it to the scope from which it is removed by the Bill. Consumer law covers a multitude of cases but in particular contract law, consumer credit and professional negligence proceedings.

In 17th century terms, I view the noble and learned Lord as a Roundhead—or in view of his provenance, perhaps as a Covenanter—rather than as a Cavalier. However, I am afraid that “cavalier” is the only word that I can apply to the Government’s attitude to access to justice in this and other contexts. That attitude is well illustrated by the airy dismissal of the views of those whom they consulted on whether consumer law should be kept within scope. The Government carried out a consultation exercise and reported:

“Of those respondents who commented on this aspect of the proposals, almost all were opposed to removing these cases from scope”.

Two of the grounds that were raised are relevant for today’s purposes. The response stated that,

“some respondents argued that consumer cases should be retained, in particular professional negligence cases where negligence may have resulted in serious consequences for the client … in some professional negligence cases clients would need expert reports to prove negligence and without legal aid individuals would not be able to afford these”.

The Government concluded:

“Having considered the responses … we confirm our intention to remove consumer and general contract cases from the scope of legal aid. Whilst there are some difficult cases, in particular professional negligence cases, these are still essentially claims concerned primarily with recovering damages, and that means that we consider that their relative importance is generally low, compared, for example, with issues of safety and liberty”.

That is a classic case of an argument reductio ad absurdum. To say that life and liberty are more important than contract law or divorce is axiomatic: it does not advance the argument one whit. The Government also said, as we are so used to hearing in debates on this Bill:

“There are other sources of advice available in relation to consumer matters, for example, from Trading Standards and Consumer Direct”.

Here I ought to declare a non-pecuniary interest as an honorary vice-president of the Trading Standards Institute.

The Government continue:

“There may be alternative non court based solutions in some cases, for example, through regulators and ombudsmen”.

I am rather surprised that they did not add Which? and the helpful columns in the Guardian and weekend newspapers while they were at it. However, that is a considerable oversimplification and an underestimate of the problems which people face. Professional negligence is not merely confined to the recognised professions of solicitors or accountants, for example. Even members of the Bar can be sued for professional negligence, and that has been the case for some time. The conduct of financial advisers, like that of some other professions, might result in considerable loss to people. There is also the builder who botches the job or the architect whose design is defective. All these matters can affect many people and involve them in considerable financial loss.

It is certainly possible to obtain some alternative advice. On Monday, my noble friend Lord Stevenson spoke to an amendment about debt. He is the chairman of an organisation called Consumer Credit Counselling Service, which offers advice in the realm of consumer credit. However, that is not face-to-face advice and anything more complex has to be referred on. My noble friend advised me that that organisation tends to refer matters to the citizens advice bureaux. There is an assumption on the part of the Government that the capacity of organisations such as the citizens advice bureaux, law centres and other bodies is capable of infinite expansion. Apparently, they will be able to undertake the very large volume of cases which will henceforth be denied legal aid or legal advice. However, not only will it be impossible to obtain legal advice from solicitors, but when the very funding of those organisations through government grant for legal advice and assistance will also be cut, they will have a massively increased demand and a diminished resource with which to meet that demand, unless they obtain a soupçon from the £20 million which the noble Lord, Lord McNally, has waved about as being available for some indefinite time to assist in dealing with these problems. That is an extremely unsatisfactory solution to the problem because it is no solution. It is interesting that the Government do not specify in any detail their assessment of the availability of these possible alternatives, simply relying on the fact that there may be alternative non-court based solutions.

The really worrying feature, which again underlines the unsatisfactory nature of the Government’s attitude to this and other cases which we will be considering and have already considered, is summed up in their response to the consultation when they say:

“Although there may be exceptions, in our view the individuals bringing these cases are not likely to be particularly vulnerable compared with, for example, those in the mental health category”,

for which, in fairness, provision will be made. But, again, that is a comparison which has no significance at all, and it is not the comparison that the person who is denied access to justice will make. He or she will rightly make the comparison with somebody who has the means to afford that advice and representation. We are creating a two-tier system of justice, one in which you can buy your way in if you have the means and another in which you will effectively be denied it if you do not have the means. In areas such as this where significant harm can be inflicted on individuals—admittedly, that is not physical harm but pecuniary harm, stress and distress—it does not seem appropriate to deny them the access which the very modest funding that is involved currently allows.

The Government should look at this matter again. Over recent years, Governments of both political persuasions—perhaps one should now say of all three—have championed the cause of consumers. We are talking now about predatory capitalism or responsible capitalism and the rest of it. We ought to be looking at the bottom of the scale of providers, if you will, and at how people can be best enabled to pursue remedies against those who inflict harm on them, because this Bill does not assist in that respect. I beg to move.

[Lord Howarth of Newport]

This is another important amendment and I would like to support my noble friend Lord Beecham, who has moved it. If the Government suggest that caveat emptor is a sufficient answer to the case made by my noble friend, they would be wrong. If the Government say that it is simply up to the consumer not to buy shoddy goods or not to avail themselves of shoddy professional services, it will not do—particularly in the provision of services.

Professional self-regulation is not always all that it ought to be. Although we should always guard against the assumption that things are not what they used to be—a view that we are a little bit liable to become attached to in your Lordships' House—none the less, I think it is fair to say that the professional ethic has become somewhat attenuated over recent decades. We see, for example, the advertising of professional services in ways that we did not in the past. We see the marketisation of professional services, arising in part out of contracting out, and the general widespread extension of market values and market practices, which in many cases have led to greater efficiency and greater availability of services. However, they also carry the risk that those who offer these services may become a degree less scrupulous when the ethos is that of the market.

People find themselves beset by parasitic professionals. The purveyors of subprime mortgages may have been the most offensive instance in recent years that one can imagine, but there are many other cases. It will not do to leave the ordinary citizen vulnerable to predatory, grubby and dishonest so-called professionals. The issue of equality of arms that arose in the previous debate on employment law arises here, too, because the ordinary citizen may come up against professionals, or those who represent them, who are highly articulate, able to speak the jargon of a specialised field and can afford expensive advice. It must be an elementary principle that there is access to justice on sufficient equal terms to enable citizens who have been poorly, dishonestly or improperly served by professional advisers to have some remedy.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I am grateful to the noble Lord for setting out that position. As he said, we will come to issues of criminal legal aid later today—I hope; I am sure.

This is going over old ground, but it is important. The scale of the deficit reduction that has been required exceeded what many of us thought before we came into government in May 2010. As I said, that has resulted in some difficult decisions. On two occasions, the noble Lord, Lord Beecham, said that it was unfair to make that point with regard to professional negligence cases. He cited the response to the consultation, when we said that those were claims concerned primarily with recovering damages and that we considered that their relative importance was generally low compared, for example, with issues of safety and liberty. He seemed to say that that is so blatantly true that it does not add anything.

If one has limited resources, those are the kind of priority judgments that must be made. In Schedule 1, we have tried to apply those priorities in different circumstances. Again citing the response, he said that people who would be bringing damages claims were not likely in general to be vulnerable compared with detained mental health patients and elderly care home residents, who are unable to present their own case. He agreed that that is clearly the case. If we have to establish priorities, I think he would agree that priority would go to a detained mental health patient or an elderly care home resident.

If there was an unlimited fund of resources, the noble Lord’s point would have far more force, but given that there is not, given that decisions have had to be made as to what comes within scope and what does not, I think the balance that we have sought to strike of giving precedence to issues of life, liberty and homelessness is proper.

It is for that reason that we did not include consumer claims within the scope. The noble Lord raised the question of professional negligence cases. It is fair to say that, when we come to Part 2, conditional fee agreements may be available for cases involving damages. That makes the provision of legal aid in such cases less likely to be justified. As has already been well rehearsed, other sources of advice are available on consumer matters. There are trading standards officers, Consumer Direct and alternative non-court based solutions through regulators or ombudsmen—such as the Financial Ombudsman Service for people with complaints about financial services or Otelo for complaints relating to telecommunications.

The noble Baroness, Lady Howe, talked about the cut in CABs’ funding. Of course, there will be an impact on CABs’ funding from legal aid, although it is estimated that that is only 15 per cent of CABs’ funding. At the risk of saying this yet again, the Chamber will be well aware that the Government announced a further £20 million funding in June last year for not-for-profit advice agencies and are considering funding for future years. Last February, £27 million was announced for continued funding administered by the Department for Business, Innovation and Skills for this financial year to maintain the face-to-face debt advice programme in citizen's advice bureaux and other independent advice agencies across England and Wales.

To pick up the important point made by the noble and learned Lord, Lord Goldsmith, additional funding has been announced for not-for-profit advice agencies, and the Government are considering funding for those organisations for future years. As parallels the previous debate, we will retain legal aid for consumer matters where they concern an alleged contravention of the Equality Act 2010. Many cases involving the Equality Act will be within scope.

At the end of the day, it boils down to the fact that, with finite resources, priorities have to be made. We have had one of, if not the most, generously funded legal aid schemes in the world. Even after the changes are implemented, should the House pass the Bill, it will still be a very generously funded legal aid system. Regrettably, some choices are very difficult, but I hope that the priorities we have identified stand up to scrutiny. It is more than axiomatic that when you have limited funds, life, liberty and dealing with homelessness and discrimination are important and that people who are less able to articulate their case or defend themselves should have priority. On that basis, I urge the noble Lord to withdraw his amendment.

[Lord Beecham]

My Lords, I am grateful to my noble friends Lord Howarth and Lord Clinton-Davis, my noble and learned friend Lord Goldsmith, and the noble Baroness, Lady Howe, for their contributions. I am also grateful to my noble friend Lord Bach for his intervention, although if the Government were proposing only to decimate legal aid—to take 10 per cent off—I would almost be prepared to accept that. I think he was using the phrase in the vernacular sense rather than the literal sense, because we face a much bigger reduction in legal aid and advice on funding than the 10 per cent actually means.

To refer back to my noble friend Lord Howarth's contribution in an earlier debate, he was asking about the knock-on costs of some of the changes. It may interest him to know that I have tabled a Question for Written Answer inviting the Government to say what estimates they have made of the cost to other government departments and whether those departments have accepted them or made any representations about them.

The noble and learned Lord again advances the mantra about life and liberty, and of course they are most important. I am tempted to say that the Government believe in life and liberty but not in the pursuit of remedies, to paraphrase. More importantly, we are seeing the virtual death of equality before the law. There are areas where inequality will be deepened for a modest saving, at the very best. That is a socially divisive measure. It runs contrary to the big society concept and some of the words that we are hearing. The practical effect will be the denial of justice to far too many people. At this stage, I beg leave to withdraw the amendment, but it is a matter to which we may well return.

Amendment 82ZB withdrawn.

--- Later in debate ---

Moved by

[Lord Beecham]

90: Schedule 1, page 137, line 38, leave out paragraph 16

[Lord Beecham]

My Lords, like the Minister, I learnt tort. In my case, it was at the feet of no less a person than the noble and learned Lord, Lord Hoffmann, and I remember those days with great affection, but in the course of my career I have also been involved in criminal injuries compensation cases, and I shall refer later to some of the problems that they throw up.

Once again, the Government have consulted about these matters, and once again the response from those consulted has been almost wholly negative. Nevertheless the Government, on the grounds that we are now very familiar with, are clearly going ahead with their determination to withdraw any form of legal support in the way of advice—representation was not covered—from the scheme.

This scheme is so simple that it takes only 55 pages to set it out in the statutory instrument and a mere 113 pages in the guide to the scheme that is available to potential claimants. It is fair to say that the guide also includes the tariff that for some time now has been substituted for what was a wider area of discretion for tribunals to award.

Before I come on to the issues that can confront claimants, one of the points that the Government have made is that support is available from other sources, including the compensation authority itself and Victim Support. However, Victim Support does not provide legal advice, and it is very questionable whether a telephone, or even online, conversation with the authority can help all claimants, or indeed perhaps the majority of them, because there are issues. It is not simply a case of having to establish that a criminal injury has been sustained; there are issues that can be taken into account by the tribunal in determining whether to grant an award or to reduce an award that would otherwise be available.

A number of factors come into play, such as the conduct on the occasion of the claimant, a procedural delay in reporting the matter, or a failure to co-operate with those inquiring into the matter. These might be for inadequate reasons—sloth, neglect or reluctance—but they might arise from concerns about whether bringing a claim might provoke an assailant, for example, or because the situation has created such stress that the person may not feel able to pursue matters. There are other matters too; a criminal record might disqualify or allow an abatement of an award that would otherwise have been made. Those matters—the matter of conduct, for example—are matters on which applicants might very well need advice and assistance. It will not be legal aid advice or assistance if this clause stands.

I clearly recall representing a client where conduct was an issue. He had to be advised about that, and as I was representing him I had to put the case about those matters. Equally, I had to deal with someone with a criminal record. It was not particularly relevant. He had not been convicted of a violent crime, so it was not particularly germane to whether he should have a deduction or, at any rate, a significant deduction. One of my most vivid recollections is of a very sad case of a lorry driver who was driving his lorry and was the victim of a road accident in which the driver of a sports car rammed into him head on and went underneath the cab of this client’s vehicle. He sustained some physical injury but, much worse, he sustained severe post-traumatic stress.

This was a complex case in medical terms and in terms of the quantum that the client might be seeking—at that point, there was no tariff. The case took a considerable time, and we were able to secure an interim payment for him. Tragically, this man took his own life as a result of the post-traumatic stress. In those circumstances, his widow had a sustainable claim, and the case went on. I am not saying that that was a typical case, but it is an example, perhaps a most acute example, of a case where legal advice and assistance was indispensable to the client. There will be others of that kind for which such advice will not be available in future. That cannot be right. I simply add this to the list of cases for which the amount that it would cost to restore or retain legal aid and advice to scope would be relatively modest, and accordingly I beg to move.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I have listened carefully to the representations and arguments put forward. Amendment 90 would delete paragraph 16 of Part 2 of Schedule 1:

“Civil legal services provided in relation to compensation under the Criminal Injuries Compensation Scheme”.

I think I am right in saying that the architecture does not apply right across the board for criminal injuries, but only in cases that are brought within scope under Part 1.

I note what the noble Lord, Lord Beecham, said about the potential complexity of applying and the advice given to possible applicants, although I think it is fair to say that applications can be made online and by telephone, and the Criminal Injuries Compensation Authority itself provides help and guidance.

I rather suspect that the numbers involved are small, although I could not indicate just how many, but I have listened, I believe that some important points have been made, and I want to reflect on this—without any commitment. On that basis, I ask the noble Lord to withdraw his amendment.

[Lord Beecham]

I am extremely grateful for—not to say surprised and delighted by—the noble and learned Lord’s generous offer, and I hope that we can take matters forward in the spirit that the noble Lord, Lord Phillips, referred to. I withdraw the amendment.

Amendment 90 withdrawn.

--- Later in debate ---

Moved by

[Lord Beecham]

93: Clause 10, page 7, line 23, leave out subsection (4)

[Lord Beecham]

My Lords, in the interests of life, liberty and the pursuit of nourishment, I will be uncharacteristically brief in moving these amendments which relate to Clause 10 and the qualifications for civil legal aid.

Amendment 93 seeks to delete subsection (4):

“In setting the criteria, the Lord Chancellor must seek to secure that, in cases in which there is more than one description of service that could be provided for an individual, the individual qualifies under this Part for the service which in all the circumstances is the most appropriate having regard to the criteria”.

What that means and how significant it is escapes me. Perhaps in replying the noble Lord, Lord McNally, could amplify the meaning of it. In addition, another curious subsection states:

“The criteria must reflect the principle that, in many disputes, mediation and other forms of dispute resolution are more appropriate than legal proceedings”.

It may be a fact but it can hardly be a principle—but that may be me being pedantic again. I have already been rebuked by my noble friend Lord Bach for correcting his use of the word “decimate”. The noble Lord, Lord McNally, may wish to rebuke me in this context.

Amendment 95 is simply designed to ensure that, if regulations are made, draft regulations should be laid before and approved by an affirmative resolution in each House of Parliament. We have had this amendment moved in respect of other regulations. It seems appropriate in this case that we should follow that course. I beg to move.

[Lord McNally]

My Lords, I would not dare to try to correct the noble Lord, Lord Beecham, on his English. I am still recovering from being corrected by the noble Lord, Lord Prescott, earlier in the Bill. I move in these circles with due caution.

I will address Amendment 95 first, which echoes the recommendation by the Delegated Powers and Regulatory Reform Committee to subject changes to the merits criteria to the affirmative resolution procedure. We have given careful consideration to what the committee said in its report about the procedure for the regulations under Clause 10(1)(b) and it is our intention to bring forward an amendment at a later stage to provide for regulations under Clause 10(1)(b) to generally be subject to the affirmative procedure. However, the amendment will also need to provide for a procedure along the lines of but not necessarily identical to that in Section 9(7) and (8) of the Access to Justice Act 1999 to allow for changes to be made quickly if necessary. With that explanation and assurance, I hope the noble Lord will not press his amendment.

Amendment 93 seeks to remove Clause 10(4) from the Bill. Clause 10(4) is based firmly on Section 8(4) of the Access to Justice Act 1999, which also contains an equivalent provision about the merits criteria. The funding code criteria made pursuant to Section 8 of the Access to Justice Act enshrine this principle. The purpose of Clause 10(4) is clear. It ensures that, where more than one level of service might be available, the merits criteria in the regulations under Clause 10 should be sure that the individual qualifies for the services which in all circumstances are the most appropriate having regard to the criteria. Often, one level of service will be most appropriate at the beginning of a case but the need of the applicant will change over time as the case progresses. Section 8(4) of the Access to Justice Act accounts for this.

The benefits of the provisions in Clause 10(4) are twofold. First, we can avoid unnecessary spending by ensuring that the appropriate level of service is funded. Secondly, applicants will benefit by receiving the level of service most appropriate to their needs. This is not a one-way street. There are likely to be instances where it would clearly be more appropriate for representation rather than help to be provided. The assessment will be an objective one, based on the criteria and all the circumstances of the individual case. In those circumstances, I hope the noble Lord will withdraw his amendments.

[Lord Beecham]

I am grateful to the noble Lord for confirming that changes will be made with respect to the regulation. I am happy to accept his explanation of what seemed beyond my limited intellectual grasp in that subsection. I beg leave to withdraw the amendment.

Amendment 93 withdrawn.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Beecham Excerpts

Wednesday 18th January 2012 Lords Chamber

[Lord Best]

I shall speak to Amendment 72 and make the case for legal aid in housing cases beyond those where someone faces imminent loss of their home.

The private rented sector has no regulator, in stark contrast to the social housing sector, nor is there an ombudsman to consider complaints against private landlords as there is for complaints against housing associations and council landlords. There is a voluntary ombudsman scheme for complaints about managing and letting agents, and I declare my interest as chair of the independent council of the Property Ombudsman. However, that redress scheme—

[Lord Beecham]

Is the noble Lord speaking to Amendment 72 or Amendment 72A? Amendment 72 is about debt.

[Lord Best]

I shall return to this later.

--- Later in debate ---

[The Earl of Listowel]

My Lords, I confess to feeling very troubled by what I have heard in the Chamber during this debate. I will say a few words about my concerns in particular about vulnerable families in private accommodation. A few years ago I accompanied a health visitor in the borough of Redbridge in north-east London just north of West Ham. We visited a number of families living in very poor conditions in private property. In one such home the basement was flooded and the landlord had taken no action to remedy this. Another was overcrowded. A mother and her two young children shared one room with water almost running down the walls. The third, and most shocking, was a home in which the shower and the lavatory were somehow combined in one system. It may be a small proportion of landlords, but there seemed to be a lot of them in Redbridge, back then, at least. I declare my interest as a landlord. I hope that the Minister can offer some real reassurance in his reply that the most vulnerable individuals and families in society are not going to suffer significantly because of what the Government propose.

[Lord Beecham]

My Lords, I come to this debate informed not only, as ever, by the noble Lord, Lord Best, whose expertise in matters of housing is second to none in your Lordships' House, but by my experience over many years representing an inner-city ward in Newcastle that has a mix of housing. It has owner-occupiers, a substantial number of council houses, houses owned by registered social landlords and a significant number of private rented properties, many of which are, I have to say, poorly managed and which present many problems to the tenants. It is certainly true that, as the noble Lord, Lord Phillips, has said, some landlords are exploitative. Others are simply incapable for one reason or another of managing their properties adequately. They do not have the resources or the skill, or they may not live locally. Whatever the reason, it is the tenants who suffer. In these circumstances, there has to be some redress.

I will be speaking to Amendment 81, which seeks to cut to the chase in terms of the overall issue. The amendment so ably moved by the noble Lord, Lord Shipley, deals with a series of issues, but Amendment 81 simply seeks to restore legal aid across the piece in housing matters, which strikes my noble friends and me as probably the most efficacious way of dealing with the problem. That is not in any way to minimise the strength of the arguments put by the noble Lord, Lord Shipley. He and I have been opening and closing debates across the council chamber for about 35 years, and it is a pleasure to continue that long-standing tradition.

Housing is now becoming one of the critical areas of public policy. For those engaged in not only the policy but the daily life that is influenced by housing, it is obvious that matters are getting increasingly difficult. We have spiralling rents and a shortage of available accommodation exacerbated, as other noble Lords have said, by pending changes to housing benefits that are likely to lead to still greater pressure on the private rented sector. At the same time, councils are having increasing difficulty in maintaining their stock as capital programmes are reduced and repairs and investment in existing council properties become more difficult to achieve. It must be said that not all councils are wonderful managers of property. Council tenants also have their problems and need redress as, occasionally, do the tenants of registered social landlords. What will occur as a result of the changes that the Bill proposes is that 40 per cent of housing cases—52,000 cases—will lose legal help, often from organisations such as Shelter rather than from solicitors but sometimes from solicitors, and that will save the Exchequer some £10 million. There will be 1,200 cases where legal representation will no longer be available. That will save the Exchequer £3 million. These are not inordinately large sums one might think, and other noble Lords have pointed out that the potential on-cost to other services could be considerably greater. Under the provisions of the Bill, there will be exceptional case funding, up to 25 per cent for some proceedings. I do not know whether the Minister is able to indicate the likely take-up. Up to 25 per cent can, of course, mean from virtually nothing up to 25 per cent, and it is not entirely clear what proceedings are envisaged in the term “some proceedings”. A little enlightenment on that would be helpful.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Beecham Excerpts

Wednesday 18th January 2012 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I support this amendment. I declare an earlier interest in that I was the judge who tried nearly all the permanent vegetative state cases for the withdrawal of hydration and nutrition. I never had the case of M, although I very nearly did. In fact, the patient, who was on the verge of being in a permanent vegetative state, died. It is an extremely rare case where it is uncertain whether somebody is in a permanent vegetative state or has minimal consciousness. At the moment, the only decision has been against withdrawing nutrition and hydration. This situation will arise from time to time. It will be very rare. It is intensely distressing for the family and intensely difficult for the doctors and nurses who care for these people who may, or may not, have minimal consciousness. It raises an incredibly important problem as to the point at which the doctors are ordered by the court to withdraw the artificial nutrition and hydration. It is perhaps the most difficult of all decisions that might come before a court. In cases of permanent vegetative state it is nearly always the hospital that brings proceedings, but if a family brings proceedings, or wishes to be part of the proceedings brought by a hospital, it would be very difficult for the family to put forward a case of this extreme difficulty if it had no access to legal aid, particularly with the medical evidence that would be required.

Again, as I said on the previous amendment, this is not going to cost very much money because it is not going to happen very often, but it is a particularly important fallback position. These are terrible cases to try, as I know to my cost.

[Lord Beecham]

My Lords, I congratulate the noble Lord, Lord Thomas, on raising this matter and moving an amendment that could greatly assist a family, or others, in the context of the tragic and ethically challenging circumstances that he has so clearly outlined and which the noble and learned Baroness, Lady Butler-Sloss, has also addressed.

There is another set of circumstances in which the noble Lord’s amendment might well be applicable. While entirely endorsing his amendment on the grounds that he has advanced, I would like to refer to the suggestion of Mind in relation to the occasional need for people in detention under the Mental Health Act to also receive legal advice concerning treatment that may be prescribed for them. The system allows for legal aid to challenge the detention of someone who is being treated in a mental health facility but not in relation to treatment that might be proffered, or indeed insisted upon, by those in whose charge a patient might find himself.

Mind has provided helpful advice to people in detention who are unable to give consent for treatment. I will quote briefly from the document it has produced which is available to those in that position. The document outlines a whole series of things, including the definitions of various matters and persons, and then it asks:

“Can I be treated without giving consent to the treatment?”.

It goes on to say that,

“if … you have the mental capacity … you are generally entitled to refuse it and no undue pressure should be placed on you. However, the law does allow treatment to be given to an adult without consent where the adult lacks the mental capacity needed to give consent and where certain sections of the Mental Health Act apply. If you are experiencing mental distress and are offered treatment, you need to be aware of any legal powers that could be used if you refuse. However, the powers must not be used as threats to coerce you into consenting, and if you feel this is happening”—

this is the crucial point—

“seek independent legal advice and consider making a complaint”.

It suggests discussing concerns with a general practitioner and so on, and goes on to say:

“If you are under 18, the law is complex and it is best to seek specialist legal advice. It may be that you can consent on your own behalf, but this does not necessarily mean you have the same right to refuse. Others, such as your parents, guardian … may be able to consent on your behalf”.

Although the circumstances are very different and, I hope, of a less tragic character than those that have motivated the tabling of this amendment, there is a similarity in the situation of the clear need for legal advice to be available to people being detained under the Mental Health Act with regard to the treatment envisaged for them by those in whose care they find themselves. I would hope that the Minister will accede to the argument advanced hitherto by the noble Lord, Lord Thomas. In that event, the amendment would also cover the circumstances that I have outlined and which Mind has helpfully suggested.

[Lord Newton of Braintree]

Perhaps I may briefly intervene, having been frightened off by the fact that no one else, other than lawyers, has dared to speak this afternoon—it is just the Minister and I who share this disadvantage, disability or whatever it is. On a number of occasions I have declared an interest as chair of a mental health trust, which is no longer the case because it merged with another one on New Year’s Day. I am now fancy-free as far as the NHS is concerned for the first time in about 15 years.

However, it means that I know a certain amount about this issue. It occurred to me, too, that mental capacity issues appear to be covered by this amendment. It would be very helpful if the noble Lord, Lord Thomas, could tell us whether he intended that. It would also be helpful if the Minister could tell us whether his interpretation is the same as that of noble Lords on the opposition Front Bench; namely, whether this proposal would provide additional protection or access to legal aid for the relatives of someone who has been ordered to have treatment which they think is wrong, and which the subject of the treatment cannot challenge for mental capacity reasons, but where there should be some right to raise a challenge to the professionals.

[Lord Beecham]

I am very grateful to the noble Lord for his intervention. On behalf of all those who have benefited from his wisdom and experience as chair of a mental health trust, perhaps I may express the gratitude that they would wish no doubt to convey to him on this aspect of his very long and very distinguished public service.

[Lord McNally]

I echo that tribute to my noble friend Lord Newton. I passed him in the corridor the other day and said that he was in grave danger of becoming a national treasure but not necessarily one on whom the Government can rely.

[Lord Beecham]

That is what makes him a national treasure.

[Lord McNally]

My Lords, on the treatment issues raised by the noble Lord, Lord Beecham, and others, I am advised that the Bill covers them. The matters covered by the Mental Health Act 1983 and the Mental Capacity Act 2005 are covered in paragraph 5 of Part 1 of Schedule 1, which includes treatment issues. Amendment 53 seeks to insert a paragraph to provide legal aid for cases concerning whether medical treatment is in the best interests of those incapable of giving or withholding consent. The amendment is unnecessary.

As I have explained, paragraph 5 of Part 1 of Schedule 1 already provides for legal aid to be available for cases arising under the Mental Health Act 1983 and the Mental Capacity Act 2005, including cases concerning medical treatment of patients or those who lack capacity. Furthermore, paragraphs 9 and 15 of Part 3 of Schedule 1 provide for legal aid for advocacy for mental health cases before the Mental Health Tribunal. Paragraph 4 provides for advocacy before the Court of Protection where there is to be an oral hearing and the case will determine the vital interests of the individual—for example, medical treatment, including psychological treatment, life, liberty, physical safety, capacity to marry or enter into civil partnerships, capacity to enter into sexual relations, or the right to family life.

Paragraphs 1 and 2 of Part 3 of Schedule 1 provide legal aid for advocacy for any onward appeals to the Court of Appeal or Supreme Court on mental health or capacity issues concerning medical treatment. Furthermore, public law challenges to the lawfulness of public authority actions could be brought by way of judicial review, which is in scope under paragraph 17 of Part 1 of Schedule 1. We believe therefore that this amendment is unnecessary and I hope that my noble friend will agree to withdraw it.

I am advised that in the particular case to which he referred the issue was the eligibility of the family for legal aid, because of their means. We have continued to emphasise that legal aid is means-tested in these circumstances and that our intention is to focus it on those who are most needy. I hope that, with those references and that explanation, my noble friend will agree to withdraw his amendment.

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[The Earl of Sandwich]

My Lords, I am not sure whether this is the appropriate amendment, but having had some experience of immigration and immigration detention I just wanted to make one point. I know that we are coming on to issues related to that. I declare an interest as a patron of visitors to Haslar detention centre in Portsmouth.

Like others, I understand that the protection of liberty is one of the primary factors in the allocation of legal aid. Yet the advice I have received is that this Bill will fall heavily on the most vulnerable people in our society—asylum seekers and those in detention who are awaiting removal to their home country. In many cases, it will mean that a vulnerable person, perhaps a victim of torture and perhaps as young as 16, will be unable to present their case without access to any formal representation and whose legitimate cries for help under international asylum law will simply be unheard. Applications for bail will be refused even more often than they are today simply because of the lack of legal aid and proper representation, if I have understood the situation right.

I well understand that the Minister has to defend the Government’s position in difficult times but I would like some reassurance that the test of vulnerability under this legislation will be reasonable. Perhaps he could explain how it will conform with international human rights law.

[Lord Beecham]

My Lords, I rise to deal with the amendments in this group, one of which, Amendment 90ZZA, is in my name and that of my noble friend Lord Bach. It might be thought odd that that amendment is included in the group we are discussing, but I will deal with that later.

I wish to deal first with the amendment spoken to by my noble friend Lord Berkeley. I suppose that it can only appropriately be described as an original amendment as it relates to the Duchy. However, it raises an interesting constitutional point which needs to be explored, although, it may be thought, probably not in the context of this Bill. The noble Lord raises a legitimate concern and he is not responsible for the grouping. The matter does not fall entirely within the purview of the group that we are discussing and perhaps not of the Bill, but no doubt those matters will be addressed in some other way at an appropriate time.

I wish to touch briefly on the government amendments which are wholly uncontroversial and entirely acceptable to the Opposition. The Minister may not offer a detailed description of those amendments as they speak for themselves.

We certainly support Amendments 60 and 61, which were spoken to so ably by the noble Lord, Lord Ramsbotham. We entirely agree with him that we need clarity as to what constitutes harm for the purpose of the Bill, and in this context the loss of liberty must certainly be included. I trust that that is acceptable to the Minister. Frankly, it would be absurd if that were not the case. There is a question in my mind, and perhaps those of other noble Lords, about the precise meaning of “deliberate” in this context. Does that refer to the act of omission or commission—the substantive act—or to the fact that the consequences which are complained of were intended all along or ignored in a negligent way? It seems to me and to other noble Lords who have spoken that this amendment deals very adequately with those matters, and should be accepted.

The noble Lord who moved the amendment properly referred to immigration. In a briefing provided by Bail for Immigration Detainees, the point is made that the Bill does not define what “deliberate” or “harm” mean. It expresses concern that the ministry will seek to interpret “deliberate” as more than unlawful, and “harm” as injury, and that that would result in the exclusion of many claims for damages for unlawful intention or false imprisonment brought by individuals who lost their liberty as a result of unlawful acts by the immigration authorities or the police. In that event, it is quite unrealistic to suppose that without legal assistance such claimants could properly make their case. No doubt, the Minister will clarify the intention of the Bill in that respect.

However, these matters are not necessarily confined to immigration cases. There might well be other cases in which liberty might be lost, arrests made and people detained—for example, under the auspices of defective warrants. It may be that arrests are unlawful on the grounds that the requirements of the Police and Criminal Evidence Act were not observed, where the actions of officers were unlawful but were not thought to be deliberate. Other cases might arise out of breaches of the Data Protection Act, where a disclosure might wrongfully be made about someone who, for example, alleged that he had a criminal record when that was not the case and damage might be occasioned. Another example might be where someone in custody, either in a police station or prison, might be assaulted by someone else simply because of the negligence of those operating the facility in question. I should not imagine that the Government would seek to exclude the provision of legal aid in those cases.

Amendment 90ZZA refers to a rather different set of circumstances—in fact, an entirely different set of circumstances—that bring into play the position that might arise in the Court of Protection. On an earlier amendment, we heard the noble Lord, Lord McNally, restraining his glee at pointing out the defects in amendments moved by the noble Lord, Lord Thomas, and supported by me, on the applicability of Court of Protection proceedings. However, this amendment relates to a different case. It seeks to insert “mental or psychological” harm, in addition to physical harm, into paragraph 4 of Part 3 of Schedule 1, relating to,

“Advocacy in the proceedings in the Court of Protection”.

At the moment, legal aid would be limited to,

“a person’s right to life … a person’s liberty or physical safety”,

and some other matters. However, physical safety is not by any means the be-all and end-all, and there are clearly cases where people might be subjected to psychological or emotional harm and may require legal assistance. One can think of people with learning disabilities being abused or taunted, generally suffering as a result of the actions of others, and needing the protection of the Court of Protection—and therefore needing legal aid to pursue their remedy and obtain protection. It is fair to say that it is unlikely that there would be many cases of this kind, and therefore, as has been suggested in respect of other amendments that we have discussed, the cost would be likely to be limited. However, the Court of Protection can deal with such matters by granted orders and injunctions to protect people from harm that may amount to physical or emotional harm, in addition to the ordinary rights that would be available regarding legal aid.

[Lord Clinton-Davis]

I am concerned about the position of the Official Solicitor. Would he not be inhibited from acting at all in certain instances? Therefore, the vulnerable person concerned would be exposed to increase vulnerability.

[Lord Beecham]

That certainly must be a risk, and the need for the assistance of the Court of Protection is therefore enhanced. I am grateful to my noble friend for allowing that point to be emphasised. It is therefore essential that legal aid is available so that the court can be approached and the Official Solicitor can represent the person in question. Otherwise, he would be unable to do so because there would be no provision for costs.

I hope that despite the odd location of our amendment the Minister might look at it with some sympathy, and that if he cannot come to a conclusion on it, given that it was tabled very late, he will at least agree that he will take this matter back to look at before we reach Report.

[Lord Wallace of Tankerness]

My Lords, I thank the noble Lord, Lord Ramsbotham, for introducing this group of amendments. Arguably, there is nothing more fundamental for a parliament to discuss than the relationship between the state and the citizen. His amendments have given rise to an important debate, with contributions from my noble friend Lord Phillips, the noble Earl, Lord Sandwich, and the noble Lords, Lord Judd and Lord Howarth. I hope that I can reassure Members of the Committee in my response.

Amendment 60 seeks to make civil legal aid available for claims in relation to any alleged unlawful act by a public authority that causes reasonably foreseeable harm. In general terms, Schedule 1 makes legal aid available for the most serious cases and for proceedings that seek to hold public bodies to account for their decisions. This includes civil legal services for judicial review of an act, decision or omission, and provides a means for people to challenge the lawfulness of a public authority’s actions on public grounds.

In terms of private law claims primarily for damages, while we consider that such claims do not generally justify funding, an important exception to the rule provided for in the Bill is for the most serious claims against public authorities. The Bill ensures that funding may be made available for tort and other damages claims against public authorities for an abuse of position or powers, a significant breach of human rights, allegations of the abuse of a child or vulnerable adult, or allegations of a sexual offence. The definition—about which I shall say more—of:

“Abuse of position or power by public authority”,

is intended to cover the most serious misuses of state power. That is why it is defined in the Bill as an alleged act that is deliberate or dishonest, and that causes reasonably foreseeable harm to a person or property. Our definition would exclude from scope a range of less serious cases against public authorities—a point made by my noble friend Lord Phillips—including simple negligence claims such as “slipping” or “tripping”. He asked if “deliberate” abuse of position or power is the same as “intentional”. The answer is yes. As to the point raised by the noble Lord, Lord Beecham, who asked whether “deliberate” referred to a deliberate act or deliberate consequences, the word refers to the act or omission that is complained of and for which legal aid is sought. Legal aid would therefore be available for deliberate or dishonest acts or omissions by a public authority that cause reasonably foreseeable harm.

Amendment 60 would widen the scope of paragraph 19 of Part 1 of Schedule 1 to make legal aid available for claims in tort or other damages claims for any alleged unlawful act by a public authority that causes harm. Noble Lords will be interested to know that unlawful acts are already covered by paragraph 19, which covers situations where an act is deliberate and dishonest, and results in foreseeable harm. However, the concern is that the amendment as tabled would widen the coverage beyond what we believe should be within scope.

Alternatively, public law challenges to the lawfulness of a public authority’s action can be brought by judicial review, which is in scope under the Bill. We have focused limited resources on those who need them most and the most serious cases, in which legal advice or representation is justified. I accept that that approach means that public funding will not be available for each and every claim involving a public authority, but it is intended to be available for the most serious cases and to address serious abuses.

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[Lord Wallace of Tankerness]

I am not sure that I fully understand the point that the noble Lord is making. Obviously, if at a later stage a case clearly qualifies for legal aid under the definition here, one would expect legal aid to be available. Furthermore, in many of the cases that we are talking about where legal aid might not be available, conditional fee agreements might provide a viable alternative where there is clearly merit in the case but it would not qualify under the definition here.

[Lord Beecham]

I am sorry to intervene and I am grateful to the Minister for giving way. Are the Government approaching this matter as though it is to deal only with claims for damages? Of course, other forms of relief might be sought—injunctive relief, declarations and so on—that might bring a spotlight to bear on the alleged abuse that has occurred. That might be the most powerful way of dealing with the error in the first place. Is that not something for which legal aid should be available?

[Lord Wallace of Tankerness]

My Lords, I have tried to identify the other parts of Schedule 1 where other remedies are indicated to be within scope. If I can find the place in my notes, I shall be able to make them very clear. I think I made it clear that judicial review, referred to in paragraph 17 of Part 1 of Schedule 1, is within scope of legal aid. I entirely agree with the noble Lord, Lord Beecham, that there may be many cases where that is the most appropriate route to go down and it would be within scope. However, I have indicated that, where damages are concerned, the criteria that I have tried to set out are the ones that would apply at the serious end of abuse. I gave specific examples of things that are within scope within the schedule, judicial review being possibly the most obvious.