Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2013
Debate between Lord Beecham and Lord Lester of Herne Hill(10 years, 6 months ago)
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Lord Lester of Herne Hill (LD)
My Lords, this course is important and sensitive. I would like to give a little background to how SIAC came to be set up and involved in this way in this procedure. It happened because of a case called Chahal. Mr Chahal was a Sikh and suspected terrorist being sent back to India. Under the old three wise men procedure there was no proper judicial process to decide whether he should be sent back, so he brought a case in Strasbourg. The problem was how you reconcile justice and the needs of national security. In the Chahal case, the various NGOs that intervened mentioned that there was a Canadian process that allowed national security and justice to be reconciled by a procedure rather similar to what the House is now considering.
I then did two cases from the bad old days, one in which the then Secretary of State prevented women in the Royal Ulster Constabulary part-time reserve having their sex discrimination cases determined in Belfast on the basis that it involved national security and that in no circumstances could his certificate be set aside. The second one involved alleged Catholic discrimination in Northern Ireland, where another Secretary of State again sought to prevent the applicants having the merits of their cases reviewed.
The SIAC procedure of 1997 was Parliament’s decision at the time to apply something like the Canadian procedure to enable national security and justice to be properly weighed. I have one experience of SIAC from the distant past, when I represented a group of suspected terrorists, who later won their case—not through me—in Luxembourg. My experience then was very unhappy. I and they did not consider that the way it was dealt with by SIAC felt fair. But that was a long time ago and I am sure that lessons were learnt a long time ago. For my part, we are now concerned with not the controversial matters that plagued the House for so long when considering the Justice and Security Bill, but a perfectly sensible grafting on to the existing SIAC procedure of matters that clearly belong within SIAC under those procedures and nowhere else.
I recognise the compromises that are struck in these rules, one of which is where the Home Secretary—the Minister—decides to object to the disclosure of information to the claimant. My understanding is that there can then be a special advocate procedure to deal with that. That is a compromise that I reluctantly accept has to apply in this context. I hope, having said all that, that it provides a little more context to what we are talking about. For my part, I support the Motion before the Committee.
Lord Beecham (Lab)
Once again, there are three of us in this marriage, to quote a much more distinguished person.
I am grateful to the noble Lord, Lord Lester, for his long contribution to the evolution of the law in this area and the conduct of the debate. Of course, we spent a considerable time debating closed material procedures when we were engaged in a more recent piece of legislation. It is perhaps worth remembering that the procedures under SIAC are rather more stringent in terms of the criteria that a tribunal can apply, since the Justice and Security Act requirement is to protect matters of national security, but SIAC’s remit is wider. It has the potential of ruling out material that is contrary not only to the interests of national security but the international relations of the United Kingdom, the detection and prevention of crime or in any other circumstance where disclosure is likely to harm the public interest. That is a much wider range, but this is a rather separate case. We are not at the moment disputing that.
However, the Minister referred to consultation about the proposals. I make it clear that we are not opposing the proposals. He cited the special advocates, the Law Society, the Bar Council and the chairman of SIAC as having been consulted. He did not mention that the Home Office, the Treasury Solicitor, the security and intelligence agencies and the Foreign and Commonwealth Office were also consulted, which is perfectly proper. But can he say if anyone else was consulted? Were organisations concerned with representing people in this situation consulted? Were voluntary organisations such as Liberty or Justice for All consulted? Were any bodies or organisations working with those involved in immigration matters consulted, such as the association of immigration lawyers? It would be interesting to know whether the consultation was confined to those who might be expected to have few, if any, reservations about it as opposed to those who might want to raise other issues.
For my part, having had some communication from the association of immigration lawyers, there is one matter that I would be grateful for some elucidation about. There is a concern that the transitional provisions in the rules could allow a case currently progressing in the High Court as a judicial review to be hijacked and taken to the commission. I have no idea whether there is any substance in that fear. Will the Minister—perhaps not at this moment—clarify whether that is a possibility and, if it is a possibility, how likely it is and how many current cases might be caught? It would be a matter of concern if it is a possibility, although, of course, it may not be and I am perfectly content to await the Minister’s response on that.
Another possibility that has been raised is that perhaps some matters have been held back from being listed for hearing on a judicial review, if indeed it is possible that the problem might have arisen. Again, an assurance that that has not happened would be welcome. Having made all the points that I want to make, I support the order.
Judicial Appointments (Amendment) Order 2013
Debate between Lord Beecham and Lord Lester of Herne Hill(10 years, 6 months ago)
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Lord Lester of Herne Hill (LD)
My Lords, I have always been in favour of widening the pool, as far as one can, for judicial appointments, provided that there are adequate safeguards. I am satisfied that there are adequate safeguards and I think that it is in the public interest if the pool of people can be widened in the way which my noble friend described.
Lord Beecham (Lab)
My Lords, I served my articles to a solicitor who was a coroner, and subsequently went into partnership with him. I may regale the Minister with a couple of stories from the coroners’ courts after the sitting. There are certainly some interesting side-lights that he might enjoy. I join the noble Lord, Lord Lester, in congratulating the Government on widening the range of possible appointees. There is no earthly reason why a competent and experienced legal executive should not exercise the coronal functions. In passing, I am also glad that we still have a chief coroner, notwithstanding the Government’s early aspirations in that regard. That should also lend confidence to the legal profession generally that the standards will be maintained.
It has to be said that, from time to time, one hears criticisms of coroners, as one does of other members holding judicial appointments in our legal system. Some of the new appointees may likewise incur some questioning and criticism, but that does not vitiate the thrust of the Government’s policy, which is to widen the range of potential applicants and encourage those who take that particular form of legal career to progress their careers and make their contribution to society.
We are glad to see the order and congratulate the Government on introducing it.
Justice and Security Bill [HL]
Debate between Lord Beecham and Lord Lester of Herne Hill(11 years, 6 months ago)
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Lord Beecham
My Lords, I thought it might help the House to take the unusual step of speaking early in the debate on behalf of the Opposition in order to make our position clear in relation to the amendments in this group, in particular those that emanate from the report of the Joint Committee on Human Rights. I note, incidentally, that yesterday the Deputy Prime Minister endorsed many of its recommendations. In answer to a question from my right honourable friend Sadiq Khan, he said:
“I am very sympathetic to a lot of what the Committee says, and the Government are considering its amendments with an open and, in many respects, sympathetic mind. I hope that we will be able to amend the Bill to allay those concerns in line with many of the recommendations made by the Joint Committee on Human Rights”.—[Official Report, Commons, 20/11/12; col. 428.]
I do not know whether the noble and learned Lord would be able, later in the debate, to indicate whether and when those expectations that the Deputy Prime Minister encouragingly aroused yesterday will be fulfilled. We already have some amendments that would not quite meet the Deputy Prime Minister’s intentions as expressed yesterday.
During Second Reading, I referred to the difficulty that we and Parliament as a whole face in calibrating the balance between the two principles embodied in the Bill’s title of “Justice” and “Security”. It has become increasingly clear that completely reconciling those competing desiderata is effectively impossible. We of course accept that the Government have genuine concerns about national security, even though, perhaps understandably, the Bill does not define the term, as was pointed out by a number of Members of your Lordships’ House, including the noble Lords, Lord Hodgson and Lord Deben, and the noble Earl, Lord Errol, during Second Reading. The noble Marquess, Lord Lothian, took the view then about national security that, “You know it when you see it”. That might be thought to be uncomfortably close to implying that security is in the eye of the beholder; in this case, a government beholder. It is impossible to provide a comprehensive statutory definition of what constitutes national security, but some guidance during parliamentary debates, of which later judicial notice might be taken, would be helpful in at least indicating areas that would fall outside the definition.
The Government’s other main concern, of course, is the difficulties that they face in presenting their case without the protection of closed proceedings, coupled with the cost—both reputational and financial—of having to settle cases in order to avoid disclosure. However, as we have heard repeatedly during the passage of this Bill through the House, the proposals constitute a radical departure from the cornerstone of our legal system: the right of a party to know, and to challenge, his opponent’s case. This right has been emphasised in the clearest terms in a number of judgments to which reference was made earlier in these proceedings, such as those of Lord Kerr and Lord Neuberger. Moreover, although the Government do not accept the point, they also appear to clash with the provisions of Article 6 of the European Convention on Human Rights, as powerfully argued by John Howell QC in his opinion for the Equality and Human Rights Commission. I understand that the Government are not prepared to disclose the legal advice that they have obtained on this point, effectively invoking their own closed material procedure on the issue.
The Government’s proposals in themselves constitute a significant reputational risk to our system of justice. In passing, it is interesting that, just as we are debating this Bill, the Government are announcing serious changes to the system of judicial review that are designed to make it much more difficult for their decisions in a whole variety of areas to be challenged. Your Lordships might think that a disturbing pattern seems to be emerging.
We are told, in relation to CMPs, that a number of claims are now pending. However, interestingly, the special advocates were denied access by the Home Secretary to any of the files, despite the independent reviewer of terrorism legislation, Mr David Anderson QC, upon whom the Government seem selectively to rely, supporting that request. We have recently seen in the Daily Mail an attempt to imply that the Government were facing the prospect of paying out millions to settle cases involving suspected terrorists, although even the Daily Mail, editorially, seems to be opposed to the Government’s proposals. But of course the procedures need not involve claimants of that description. They could apply to all civil claims where a national security justification might be advanced. So claims by a member of the Armed Forces or security services, or an innocent victim of what is euphemistically called “collateral damage” arising from military action, would also be caught by this procedure.
There is also the paradox that the procedures would not apply to inquests, so that justice will be seen to be done only where there has, sadly, been a fatality. Yet as my right honourable friend Sadiq Khan pointed out in his letter to Mr Clarke, the 7/7 inquests were conducted along lines very similar to those advocated by the Joint Committee and reflected in the amendments that we are now debating, without any damage ensuing.
The interests of national security can be protected by means other than simply relying upon closed material procedures. The Opposition support most of the suite of amendments effectively emanating from the Joint Committee report, seven of which we have subscribed to. The thrust of these amendments is to vest greater discretion in the judges, who are not quick to reject the Government’s case, and to facilitate a balancing of the public interest in justice and the interests of national security in a way that, despite the Government’s rather airy protestations, the Bill as drafted does not.
Amendment 33 extends the possibility of an application for CMP to either party and on the court’s own motion. Amendment 40 refers to the possibility of utilising the public interest immunity procedure under which, as we have heard from the noble Lords, Lord Hodgson and Lord Pannick, a variety of workable steps can be taken—gisting, redaction, confidentiality rings, closed hearings—to protect material that should not be made public, before recourse is had to closed material procedures as a last resort. Incidentally, Mr Clarke’s statement on Monday’s “Today” programme that the judge should not have the discretion to have, in public, evidence that puts at risk the lives of agents or intelligence services, was grossly misleading in implying that this would be a consequence of accepting amendments of this kind. The measures I have just mentioned would prevent that happening.
Amendments 35 to 38, 40 and 47 enshrine both the judicial discretion which many have criticised in the course of debates and the balancing principle which is at the heart of the Joint Committee’s proposals. Taken together, these amendments place the judge firmly in control of the process, with the means to balance the interests of justice and security, protecting from disclosure what is essential not to be made public. Despite the protestations of Ministers, the Bill in its current form does not meet these critical objectives.
We have some difficulties, as the noble Lord, Lord Pannick, has referred to, with Amendments 48 to 50, particularly the insertion of the phrase, in Amendment 50,
“so far as it is possible to do so”,
in the proposed requirement to ensure that a summary of material, disclosure of which the court does not authorise, does not itself contain material damaging to national security. I for one am not sure what the words import or how far they would extend. We would wish to explore this issue further, perhaps at Third Reading, as the noble Lord indicated, or even later when the Bill is considered in the House of Commons.
In his letter of 13 November, the noble and learned Lord, Lord Wallace, who has a deservedly high reputation for legal expertise and fair-mindedness, made some minor concessions and one major one. The latter restricts the order-making powers to extend closed material procedures, and another requires notice to be given to the other party of an intention to apply for a CMP. Those concessions are welcome and I am grateful to the noble and learned Lord, and indeed the Government, for them. Interestingly, the noble and learned Lord’s letter also touches on the court’s inherent right to strike out a claim if highly relevant sensitive information could not be considered—itself a powerful tool with which to protect national security without the need for this Bill.
Outside the Government, there appears precious little support for the sweeping changes the Government propose. Civil liberties organisations—as one might expect, perhaps—the Law Society, the Bar Council, even Monday’s editorial in the Times, which has been quoted, and some leading Conservative Members of Parliament such as David Davis and Andrew Tyrie, unite in expressing profound concern at the changes that this Bill would bring about in our system of justice.
Like many other Members of this House, I travel to and from it by the Underground, where passengers are regularly enjoined to “mind the closing doors”. I hope we bear that injunction in mind today. We must ensure that the doors of justice are not closed in the way this Bill seeks to do, however genuine may be the reasons that prompt it.
We learnt a few days ago the identity of the next Archbishop of Canterbury, the right reverend Prelate the Bishop of Durham, whom all Members of your Lordships’ House, of all faiths and none, will join in congratulating and wishing well. The announcement put me in mind of another archbishop, Thomas à Becket, whose life and death were the subject of TS Eliot’s Murder in the Cathedral, in which the following lines occur:
“The last temptation is the greatest treason:
To do the right deed for the wrong reason”.
I urge the House to support the amendments backed by the Opposition, moved by the noble Lord, Lord Pannick, and in so doing not to succumb to the alternative temptation of doing the wrong deed for the right reason.
Lord Lester of Herne Hill
My Lords, I speak as a member of the Joint Committee on Human Rights. I intend to make only one speech, if I can get away with that, and to make it as brief as I can.
The issues raised in this debate are of profound importance to the rule of law in a parliamentary democracy. Part 2 of the Bill has aroused huge and justifiable controversy. It was condemned root and branch by my party at its annual conference. Many Liberal Democrats would ditch Part 2 in its entirety as illiberal, with or without procedural safeguards. In her letter to the Times last week, the noble Baroness, Lady Manningham-Buller, explained that she remains of the view that inviting the court to look at all the relevant secret material and letting it decide what, if any, weight to put on it is an advance over where we are today. I agree with her.
The purpose of these amendments, recommended unanimously by the Joint Committee on Human Rights, is to achieve that result and to make Part 2 comply with the fundamental principles of justice and fairness protected by the common law. We hope that the Minister and the House will agree that our report was thorough, fair and balanced, and that our recommendations are put forward to improve, not to wreck, Part 2.
I shall not delay and weary the House by reading the relevant parts of the JCHR report into the record. The noble Lord, Lord Pannick, has already referred to the relevant parts. The report speaks for itself, and I would suppose that anyone who takes part in this debate will have read the report in its entirety.
Justice and Security Bill [HL]
Debate between Lord Beecham and Lord Lester of Herne Hill(11 years, 10 months ago)
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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]
Debate between Lord Beecham and Lord Lester of Herne Hill(11 years, 10 months ago)
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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.
Justice and Security Bill [HL]
Debate between Lord Beecham and Lord Lester of Herne Hill(11 years, 10 months ago)
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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 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.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Beecham and Lord Lester of Herne Hill(12 years ago)
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Lord Beecham
My Lords, my noble friend Lord Hart inadvertently stole my opening line about the time we have spent debating this amendment. I could also point out that we will take little less time to vote on this amendment than the other place took to discuss, and allegedly debate, all four of the amendments about which we have heard.
The noble Lord, Lord Thomas, has entertained the House by conjuring up a vision of an army of devious lawyers mining the rich seams of the potential availability of legal aid for the purpose of pursuing claims for judicial review. Others of your Lordships have rather demolished the thrust of that argument, which in any case might be thought to be somewhat fanciful, especially in the light of the quite appropriate reference made by the noble Lord, Lord Faulks, to the fact that the amendment incorporates specific reference to the discretion of the Lord Chancellor. With respect to the noble Lord, Lord Thomas, there really is no substance in his objection to the amendment as it has been moved.
In relying once again on financial privilege—when it could have been waived and substantive arguments put in the form of a Motion asking this House to reconsider the amendment—the Government seem to be succumbing once again to the temptation of relying on this way out of a difficulty. They are becoming addicted to the use of financial privilege as a reason to reject amendments from your Lordships’ House, and that cannot be a satisfactory basis for dealing with significant matters of this kind. Therein lies the strength of an argument about financial privilege when, in dealing after a fashion with the amendment in the House of Commons, the Minister, Mr Djanogly, made one of his principle objections: that the Government,
“are concerned that the amendment replicates what is already in place”.—[Official Report, Commons, 17/4/12; col. 201.]
If it replicates what is already in place, how can it conceivably add to the Government’s expenditure? It is a ludicrous proposition in an attempt to have it both ways.
For that matter, those who argue that judicial review is something to be avoided seem to have forgotten that when we were discussing the position of the director of legal aid casework—the DOLAC amendment; we will come later to a welcome acceptance of an amendment in that respect—it was argued that judicial review would be available to those who sought to make a case for legal aid in exceptional circumstances. At that point, it was to come to the rescue of people who were being denied legal aid and was something to be embraced. Today, however, for the purposes of this amendment it is an issue that could be deployed against the amendment of the noble Lord, Lord Pannick.
There is no question that the purpose of this amendment is clear. It is declaratory, but it is important to be declaratory about important principles, and for that reason the Opposition wholly support the amendment.
Lord Lester of Herne Hill
My Lords, I will explain briefly why I do not agree with the amendment. I quite agree with those who have said that it is inconceivable that it will give rise to effective judicial review because it imposes no legally enforceable duty and it is therefore inconceivable that anyone could threaten the Government by way of judicial review. However, my problem with it is that it imposes no legal duty and then does nothing else.
The amendment begins:
“The Lord Chancellor shall exercise his powers under this Part with a view to securing that individuals have access to legal services—”.
Pausing there, it is of course already the Lord Chancellor’s duty to do so under the Human Rights Act, as I pointed out in a brief question to my noble friend and colleague Lord Pannick. Under that Act, the Lord Chancellor has to act in a way that is compatible with Article 6 of the convention, which secures a right of access to justice. Existing law and Section 3 of the Human Rights Act require that all legislation, including this Bill, must be read and given effect in so far as it is possible to do so compatibly with the Human Rights Act. That first part of the amendment is already fully taken care of by that Act. In so far as the rule of law is in play, it is also taken care of by the Constitutional Reform Act.
The amendment goes on:
“that effectively meet their needs, subject to the resources which the Lord Chancellor decides, in his discretion, to make available, and subject to the provisions of this Part”.
That completely swallows up any suggestion that this is some new, important principle. I am afraid it is written in water and I do not approve of putting anything in the statute that is simply an unenforceable duty written in water.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Beecham and Lord Lester of Herne Hill(12 years, 3 months ago)
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Lord Beecham
My Lords, at the risk of being accused of unqualified one-way sycophancy, I must again congratulate the noble Lord, Lord Thomas, on the clarity of his presentation of this complex issue. Although I somewhat dissociate myself from the preamble to the substantive part of his speech, I entirely concur with his amendments. At this stage, I should also express my thanks to the learned counsel whose advice has instructed me in a matter about which, hitherto, I knew nothing. Aarhus meant absolutely nothing to me up till now. It seems that I may have shared that failing with Her Majesty's Government. We shall see from the Minister’s reply whether that is a correct inference or not.
The noble Lord referred to the ClientEarth case in which the Aarhus Convention Compliance Committee observed that the cost rules pertaining in the United Kingdom placed it in systemic breach of Article 9.4 of that treaty. The committee concluded that we had not as a country adequately implemented our obligation to ensure that procedures are not prohibitively expensive. Counsel's opinion, to which the noble Lord referred, identified two particular issues. The first is that of uncertainty. The second is the sheer amount of the defendant’s costs that might fall on unsuccessful claimants. The noble Lord referred to the case of Barr and Biffa waste company, which arose from a complaint about odours emanating from a landfill site, where the costs were indeed nearly £3,250,000.
Lord Justice Jackson has much to say about those issues. His remedy is, as the noble Lord pointed out, a move to qualified one-way cost shifting. He gave six reasons for his conclusions, which are germane to the thrust of the amendments. He said:
“This is the simplest and most obvious way to comply with the UK’s obligation under the Aarhus Convention in respect of environmental judicial review cases”.
He continued:
“For the reasons stated by the Court of Appeal on several occasions, it is undesirable to have different costs rules for ... environmental judicial review and... other judicial review cases”.
His third reason was that the requirement for permission,
“is an effective filter to weed out unmeritorious cases. Therefore two way costs shifting is not generally necessary to deter frivolous claims”.
They simply do not arise. His fourth point was that,
“it is not in the public interest that potential claimants should be deterred from bringing properly arguable judicial review proceedings by the very considerable financial risks involved”.
He pointed out that:
“One was costs shifting in judicial review cases has proved satisfactory in Canada”.
His final point, which goes to the issue raised by the noble Lord, Lord Lester is that the protective costs order regime,
“is not effective to protect claimants against excessive costs liability. It is expensive to operate and uncertain in its outcome. In many instances the PCO decision comes too late in the proceedings to be of value”.
So with respect to the noble Lord, the protective costs order regime is not, in the view of Lord Justice Jackson, an answer to the difficulty.
Lord Lester of Herne Hill
I hesitate to disagree with the Lord Justice, but I do not understand that point, as one can apply at the very beginning, a very early stage, for a protective costs order—certainly in judicial review proceedings. I do not know why he thinks that it is too expensive or comes too late, because that has not been my experience.
Lord Beecham
I cannot answer for Lord Justice Jackson, but that is a subsidiary point. His point is that it is expensive to operate and uncertain in its outcome. Therefore, he regards it as an inadequate protection to the one-way costs shifting which the noble Lord, Lord Thomas, has rightly advanced as the best way to deal with these matters. Lord Justice Jackson’s approach was, as counsel’s opinion, to which the noble Lord and I have both referred, makes clear, endorsed by Lord Justice Sullivan’s working party, which was very clear in stating:
“An unsuccessful Claimant in a claim for judicial review shall not be ordered to pay the costs of any other party other than where the Claimant has acted unreasonably—
to go back to the noble Lord’s earlier point—
“in bringing or conducting the proceedings”.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Beecham and Lord Lester of Herne Hill(12 years, 3 months ago)
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Lord Beecham
My Lords, I reassure the noble Lord, Lord Newton, that this is a group of probing amendments to see which, if any, the Government might feel on reflection ought to be accepted and the scope of the current scheme in effect retained. Clearly, the answer has not been one to encourage optimism on this side of the House, but there are cases, particularly the last one to which the noble and learned Lord referred, where the Government are trying, as so often, to have it both ways.
In previous debates we have heard trade unions invoked as a source of advice and support for their members once legal aid goes. This is an area in which trade unions have for a long time been active in promoting the interests of their members. They will now lose that benefit. In my view, there is a strong case for the Government to look again at the position. I accept that they want organisations such as trade unions to support their members in the field of legal advice, but if so, they ought to endeavour to facilitate that, not at the Government's expense but by retaining success fees and the self-insurance element that the noble and learned Lord proposes to remove.
Asbestosis is probably the most acute of the diseases involved, and when we will come to a debate on it I will strongly support the noble Lord, Lord Alton. It is sometimes forgotten that it is not just direct exposure to asbestos that causes problems and has resulted in litigation but indirect exposure. There have been cases in which wives dealing with laundry and clothes that have been contaminated with asbestos fibres have themselves suffered injury. They have eventually succeeded in obtaining compensation, but that is an illustration of the kind of difficulty and complexity that can arise. There may well be other cases. Every few years, a new condition reaches the courts. Asbestosis was one; miners’ lung disease, pneumoconiosis, was another; and there are others. Although it is certainly true that, as the noble and learned Baroness, Lady Butler-Sloss, pointed out, some lawyers rather exploited the position in some of those cases involving minters, on the other hand many lawyers took these cases on over a very long period at considerable risk to themselves before obtaining settlements. That eventually led to the sensible outcome of a national scheme that determined a scale of damages and, for that matter, the scale of costs. There will be other cases. One imagines that cases may arise over time in the nuclear industry. There have already been some in which radiation has caused damage. I hope that at the very least the Government will look at those cases sympathetically.
The noble and learned Lord referred again to the number of cases that are being pursued. However, I remind him of the figures that I quoted in the first debate: the very detailed analysis of 69,000 cases showed that a third would simply not have been brought under the proposals presently in the Bill. A significant proportion of cases would therefore be pursued, many of them no doubt successfully although others not.
If we are still in the business of trying to promote access to justice by spreading the risk so that it is not always against lawyers’ interests to run cases with a lesser probability of success, that is something that the system should encourage. The fear is certainly that cases with less than a 75 per cent chance of success will just not reach the courts. A very respected firm, Thompsons, which acts for a number of trade unions, indicates that at the moment it takes cases with a risk level as low as 50 per cent, and it cannot see how it could conceivably do that in the future. Yet some of the very cases that we have been talking about involving asbestosis, pneumoconiosis and so on started off with a probable success rate of 50 per cent at best and arguably even worse. If we are not to close the door on emerging cases of that kind or on cases with perhaps a two-thirds chance of success, we have to have a balance to which success fees can contribute. The Opposition’s case is that that ought not to be simply a matter for successful defendants; it ought to be a collective insurance risk. That is the position that we seek to get to.
Lord Lester of Herne Hill
I am very grateful to the noble Lord; I had not intended to intervene. Does he agree that in the public interest we ought to be concerned not only with securing a fair balance between claimants and defendants but with being quite clear that there must be adequate safeguards against abuse by members of the legal profession in relation to conditional fee agreements and success fees? I have encountered abuses, for example in the equal pay area, where claimants’ lawyers have insisted that in cases against public authorities the women concerned should enter into binding agreements to ensure that a cut from the damages for equal pay for these poorly paid women goes to the lawyers and that no individual settlements are made without the consent of the lawyers. Should we not be very concerned about those kinds of things and about driving up the level of unnecessary litigation?
Lord Beecham
I entirely agree with that and I think that there ought to be a regime for the determination of the size of the success fee in any event. If a case is brought, that matter should be capable of being decided by the court. The noble Lord’s point is one which unfortunately will see damages being taken willy-nilly precisely from claimants in that category. They will not have the opportunity of getting the success fee paid by the other side. In a sense the noble Lord is supporting the case I am making. I entirely agree that members at both ends of the legal profession need to be monitored and that the courts ought to be taking a more positive role both in case management, as I indicated in the first debate, and in the assessment of what is an appropriate success fee. I beg leave to withdraw the amendment.