Justice and Security Bill [HL]

Lord Black of Brentwood Excerpts

Tuesday 19th June 2012 Lords Chamber

[Lord Black of Brentwood]

My Lords, I do not intend to detain your Lordships long as I have just one central point to make, but as it relates in part to the media I must first declare my interest as director of the Telegraph Media Group and draw attention to my other media interests in the register. I slightly wonder whether I should follow the example of the noble Lord, Lord Judd, and declare that I, too, am a flat-footed layman, somewhat intimidated by the assembly of the great legal minds that have graced this debate.

As we have heard in many eloquent speeches, the Bill goes to the heart of some fundamental constitutional principles and, indeed, human rights: the duty of government to safeguard the state and its citizens and, consequently, their right to life; the right of defendants to a fair trial, based on information on which they have had a chance to comment; and the demands in a free society for open justice, fully and fairly reported on, and indeed scrutinised, by an independent and robust media.

In the debate on the gracious Speech, I raised some concerns that, based on the Green Paper which foreshadowed the Bill, this legislation would end up undermining some of those vital principles and expressed a great anxiety, which was echoed in the report of the Joint Committee on Human Rights, at,

“its failure to consider the impact of such a radical departure from long established principles of open justice on the media’s ability to report matters of public interest”.—[Official Report, 15/5/12; col. 361.]

It is to their great credit that the Government listened to the widespread concerns expressed by the media and many others about the Green Paper’s proposals and likely impact in this area and have acted so decisively to deal with them in the Bill before us. That is warmly to be welcomed and it shows quite how important consultation is in such legislation. I think that the noble Lord, Lord Butler of Brockwell, made that point earlier.

I am particularly grateful to my noble friend the Minister of State for his courtesy in writing to me after the debate on the gracious Speech to reaffirm the Government’s strong commitment to open and transparent justice and to outline, as we have heard a number of times today, how their proposals relating to CMP with significantly strengthened judicial control would provide much needed safeguards. I understand that his most helpful letter, dated 11 June, about the media aspects of this legislation is in the Library of the House. Those safeguards will go a long way to protecting the integrity of media reporting, with claims and allegations—and indeed the outcomes of cases—continuing to be made and reported on in open court, with material remaining closed only where it is compatible with Article 6 rights under the European convention. It is also extremely welcome news that the Government have decided that inquests should not be held in secret. A number of noble Lords have referred to that.

I still have some areas of concern, such as the power under Clause 11 allowing the Secretary of State to make an order that would extend CMPs to any court or tribunal, with, as I understand it, important procedural provisions contained in rules of court not subject to the same detailed scrutiny as primary legislation debated in this House. It is crucial that such a move, entailing a substantial departure from our tradition of open justice, will be permissible only in the rarest of cases. I am sure that is what the Government intend and it would be helpful to have confirmation of that.

That said, this is, in the scheme of things, an issue more of subsidiary concern on which I hope we will be able to get reassurances. I ask my noble friend the Minister to continue the Government’s constructive dialogue, particularly with the media, that has to date been so effective and to discuss any further suggestions that may come forward for additional improvements intended to safeguard public oversight in this area.

This important Bill is a complex balancing act, as we have heard in so many contributions, between open and fair justice and the security of the citizen. Achieving such a balance between security and liberty, like trying to mesh together Hobbes and JS Mill—not a task I would wish to undertake—is fiendishly complicated. We have heard many concerns today and I have certainly listened to thought-provoking comments. I was struck by the speech of my noble friend Lady Berridge. However, from my vantage point, the Government are to be congratulated on listening to legitimate concerns and striking the balance with care. As a leading article in the Daily Telegraph on 30 May put it:

“We are facing a continuing threat from terrorists whose methods are ever more sophisticated, and the manner in which we counter those threats must be protected. This measure reinforces the rule of law without giving ground to those who would do us harm”.

Those are sentiments with which I concur. At the start of this debate, the noble and learned Lord said that we should test this legislation by whether it is a sensible and proportionate response to the threats that our society faces. In my view, it passes that test.