Devolution: English Cities

Lord Butler of Brockwell Excerpts

Wednesday 17th July 2019 Grand Committee

[Lord Butler of Brockwell (CB)]

My Lords, I congratulate the noble Lord, Lord Heseltine, not only on the content of his report but its presentation, which makes it a pleasure to read. I should not have been surprised about that latter aspect because he has access to a good firm of printers.

I take part in this debate with diffidence. Unlike my noble friend Lord Turnbull, I never served in a local government department, and I lack the local knowledge that so many of today’s speakers have shown, but there are some aspects of my experience in government which bear on the report by the noble Lord, Lord Heseltine. First, from my experience, I confirm that you cannot make things happen in local areas from a desk in Whitehall. The second thing I am sure the noble Lord is right about is that the best way to get something done is to make an identified person on the ground accountable for making it happen and give that person the necessary powers and resources to do so.

When I became Head of the Civil Service, I inherited a programme of reform called “Next Steps”. Its essence was that the delivery of services—for example, issuing passports or driving licences—was set up in the form of an agency under a chief executive. The agency was responsible to a Minister—it was not a quango—but the chief executive was given a budget, which he or she was empowered to use with wide discretion to achieve objectives set by the Minister. Despite initial opposition by the Treasury, I believe that this structure not only raised the morale and the sense of responsibility of civil servants delivering services but produced a real improvement in the quality of the services they gave to the public. The same principle should be applied to decisions about local infrastructure. Local people will be the best judges of where infrastructure is needed.

The million-dollar question—as shown in the chapter by Tony Travers—is how one gets the balance right between local services controlled locally and local services controlled centrally. There have to be some locally delivered services that are controlled centrally. Social security is an obvious example. People think it unfair if the benefit received in one area differs from that received in another. A difficult current example is community care, where there are now complaints about a postcode lottery following central government’s devolution of responsibility to local authorities.

We should not disguise from ourselves the fact that centralising pressures are very strong, not least because when voters are dissatisfied with the quality of their life, it is on central government that they wreak their revenge, and then excessive centralisation demotivates local people. That is the essence of the problem. Moreover, when responsibility for services is centralised, it leads to silos. Those responsible for education policy become distant from those responsible for health policy, who are in turn distant from policing policy and so on. Yet on the ground, local problems—for example, drug dealing—often can be dealt with only by a combined effort from all these services.

What does this amount to in relation to the proposals in the report by the noble Lord, Lord Heseltine? I support the proposal for more combined authority mayors with greater powers and resources delegated to them. I like the idea of delegating to them responsibility for affordable housing, schools’ performance, the skills budget and unemployment programmes. I also like the idea of the requirement for each of them to produce five-year strategic programmes for their regions. However, like my noble friend Lord Turnbull, I am sceptical about the proposal in the noble Lord’s report for a super -department of the regions on the lines of the Department of Trade and Industry and the Department of the Environment in the 1970s. Such a department, combining responsibility for planning, local government, housing, transport and employment, would be too cumbersome for a single Secretary of State, as the experience of the 1970s showed.

However, like my noble friend Lord Turnbull, I strongly support the reinstatement of collocated regional offices led by a single official. In 1994, when my noble friends Lord Wilson and Lord Turnbull were successively Permanent Secretaries at the DoE and the noble Lord, Lord Heseltine, was President of the Board of Trade, a structure of regional offices was established, containing representatives of a wide range of Whitehall departments. The aim was that they should work together with local government in co-ordinating the central government responsibilities for which they were responsible to make the most effective impact on local problems. In my view, which my noble friend Lord Turnbull shared, it was a great mistake when in 2011, as part of the austerity programme, those local offices of central government were abolished.

I believe that the outgoing Prime Minister cares about the matters covered in this report. Sadly, preoccupation with Brexit and, I suspect, an innate caution have prevented anything effective being done in the past three years. The resolution of Brexit, which we all profoundly hope for—by which I mean resolution of the question of whether we go or stay—together with the arrival of a new Prime Minister, offer a fresh opportunity. The leading candidate for the post of Prime Minister, whatever his other characteristics, has the ability to enthuse and inspire. The noble Lord’s report provides the fertile field on which enthusiasm and inspiration can flower, together with a number of very useful practical proposals. It is important to the future of our country that the new Prime Minister takes advantage of it.

Northern Ireland (Miscellaneous Provisions) Bill

Lord Butler of Brockwell Excerpts

Tuesday 25th February 2014 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, in Committee the Minister sought to reassure me about why the opportunity was not being taken in this Bill to introduce the defences of Civil Service impartiality in Northern Ireland that exist for the rest of the United Kingdom under the 2010 Act. She said:

“It is the Government’s intention that we would be moving to devolution with safeguards that would have the kind of statutory enforcement that exists for England”.—[Official Report, 3/2/2014; col. 36.]

I take that to mean that that statutory enforcement would be introduced before devolution takes place. Can the Minister explain how that is to be done? Since the only further legislative move that is necessary before devolution takes place is a statutory instrument introducing it, is that the means by which she says the statutory defence of Civil Service impartiality will be introduced? That is my first question.

My second point is the reason why I support this amendment now. If and when that statutory instrument comes before the House, we will have a chance to vote only for or against the whole statutory instrument. That is a less satisfactory means for the House to deal with it than if we were able to debate this sort of amendment to the Bill before it comes into force.

[Lord Lester of Herne Hill (LD)]

My Lords, I was not intending to take part in the discussion of this part of the Bill, but I would be grateful if my noble friend the Minister could clarify whether the existing legal regime in Northern Ireland forbids any form of discrimination within or by the Civil Service. It was my understanding that that was the position under the Northern Ireland Act as it stands. I know that in Northern Ireland there is some backwardness in amending equality law. It still has not, as we have done, produced a single Equality Act. That is most regrettable. It is true that it was Labour that first sought to initiate that reform. But in terms of the Civil Service and public administration, I understood that not only in common law but under the Northern Ireland Act any form of arbitrary discrimination, direct or indirect, would be unlawful. I would be very grateful if that can be clarified.

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[Lord Butler of Brockwell]

I am grateful to the noble Baroness but I am afraid that she is not assuaging my concerns. In Committee, she gave me a precise undertaking. Today she has said that the Government were open to the idea of introducing the same kind of statutory safeguards for the Northern Ireland Civil Service as exist in the rest of the United Kingdom. In Committee she went much further than that and said that we would be moving to devolution with safeguards that would have the kind of statutory enforcement that exist for England. Is that going to happen before devolution or not?

[Baroness Randerson]

I hope to come to that in the latter part of my response. I was attempting to respond to the noble Lord, Lord Butler, on the specific issue of the process. Prior to the intervention I was saying that the House would have the final say on whether devolution should take place when an order to that effect was proposed. However, in responding to the comment of the noble Lord, Lord Butler, I should make it clear again that the Government are committed to protecting the independence of the Civil Service Commissioners and that we fully understand the concerns expressed about the future independence of the Northern Ireland Civil Service.

We recognise the significant and important role played by the Civil Service in Northern Ireland and, in the light of the concerns expressed, the Government propose to bring forward an amendment at Third Reading which would require the Secretary of State to lay a report before both Houses on the independence of the Northern Ireland Civil Service prior to bringing a devolution order. In her report the Secretary of State will be required to set out her view of the effect of devolution on the principle that persons should be selected for appointment to the Northern Ireland Civil Service on merit and on the basis of fair and open competition. That approach flags up the importance your Lordships attach to the question. We would wish the House to be reminded of that at a later date when and if a devolution order is brought forward.

The noble Lord, Lord Lester, asked whether discrimination is possible at this point in time in the Civil Service. There are extensive safeguards in Northern Ireland law and in the 1998 Act against discrimination in employment and, more generally, against discrimination by public authorities. I am sure that on this issue it would be more significant if I responded to the noble Lord in detail, possibly by letter, which I could place in the Library.

Northern Ireland (Miscellaneous Provisions) Bill

Lord Butler of Brockwell Excerpts

Monday 3rd February 2014 Lords Chamber

[Lord Alderdice]

My Lords, I was happy to put my name to the amendment which the noble Lord, Lord Empey, pioneered. I support many of the things that he said.

I will give two examples; a modest one, and one perhaps more substantial and persuasive. This question of maintaining the non-partisan stance and community appreciation of the Northern Ireland Civil Service is of enormous importance. Quite a lot has been written about the peace process in Northern Ireland, and most of it concentrates on negotiations between politicians, the people who are brought in from outside to assist, the role played by the Prime Minister and the Taoiseach and, in some cases, the impact of the United States, the European Union, the NGOs and so on. Very few of those papers point up the importance of civil servants in the Northern Ireland Civil Service, yet they were absolutely critical. A few of those civil servants—nominated by the Secretary of State and his successors—basically spent all their time engaging with politicians right across, and in some cases beyond, the spectrum to keep the process alive. Whether Governments changed, whether leaders of the political parties changed, with all the ups and down of elections those civil servants continued to meet. They would make minutes. They would ensure that meetings were held. They would keep people in touch with each other.

Very little is written about it. It was absolutely essential. As I have involved myself in peace processes in various other parts of the world, I have come to realise how important it was. In many places, almost right across the Middle East, for example, this is not a tradition in the civil service. It is difficult to make peace processes work in some of these places precisely because there is no civil service there of that kind—no non-political, non-partisan civil service.

I give another example. One of the problems I had when I became the first Speaker of the Assembly was how to staff it. Nobody had been there for decades, running, as clerks or other officials, an Assembly. There was only one body of people who could be called upon in sufficient numbers: the Northern Ireland Civil Service. People, particularly on the nationalist and republican side, were very anxious about this. They had come to a view, for particular reasons, some of them based on experience and some of them on suspicion, that the Northern Ireland civil servants would be biased towards unionists. We had a lot of negotiation about it, but we all came to the conclusion that there was no alternative, so the agreement was that we would take these people in—however, on only a three-year contract. During that period, there would be open advertisement, and people would come in from other places in society and outside Northern Ireland. There would have to be this transitional process.

The fascinating thing was this: as that period of three years went on, it became increasingly apparent to nationalists and republicans that the concerns they had had about the non-partisan nature of the Northern Ireland Civil Service were actually pretty groundless. As we came near the end of the time, people from those communities wanted to keep on many of the staff who had proved themselves perfectly capable of being loyal to a power-sharing cross-community Executive and Assembly. That was the quality of people and, to some extent, the culture, which was a more non-partisan one than was realised.

I have a real anxiety—in this situation, I do not think that examples on this side of the water are necessarily perfect—that Members of the Government on both sides in Northern Ireland might well be tempted to influence the appointment of some senior civil servants in a way that would not ultimately be in the interests of any of us in Northern Ireland. I ask the Minister to take very seriously the amendment put forward in the name of the noble Lord, Lord Empey, and myself, and to take it away and look at whether it is possible to accommodate the very legitimate concerns—not concerns about devolution of the function but about protection of the devolution of this function from adverse and partisan impact.

[Lord Butler of Brockwell (CB)]

My Lords, I was one of those contacted by the chairperson of the Northern Ireland Civil Service Commissioners about this matter and I support the amendment. As the noble Lord, Lord Empey said, this is a simple matter. It really should be straightforward and I cannot see that there can be a serious objection to the amendment that the noble Lords, Lord Empey and Lord Alderdice, have tabled.

In the Constitutional Reform and Governance Act 2010, the provision was made to enshrine in statute the obligation of the Civil Service Commissioners that appointment to the Civil Service should be on merit following fair and open competition. We have always taken that as a constitutional principle of our Government. That Act did not apply to Northern Ireland—not that it was deliberately excluded for any particular reason, but it simply did not apply. However, exactly the same principles should apply, and I think everybody would want them to apply, to the Northern Ireland Civil Service. Indeed, because of the divided history of the Northern Ireland community there is a particularly strong reason why they should apply.

I was very pleased to hear what the noble Lords, Lord Empey and Lord Alderdice, said, because over many years I worked with members of the Northern Ireland Civil Service, as it were from the inside rather than working with them from a political perspective. My experience was exactly the same as theirs, as I would have expected: that members of the Northern Ireland Civil Service were politically impartial and appointed on merit. It took 150 years before these principles of fair and open competition were embodied in statute in Britain, following the Northcote-Trevelyan report. Once they have been embodied in statute, it seems to me that the same thing should be done for Northern Ireland, and before a question of devolving this function should take place. I strongly support the amendment. I hope the Government will say that they see no objection to it.

[Baroness Smith of Basildon (Lab)]

My Lords, I am grateful to the noble Lords who have spoken on this. I too support the principle of the amendment before us. It is a very important principle. I was also contacted by the Northern Ireland Civil Service Commissioners and they make a powerful case. They were established, as noble Lords will know, by the Civil Service Commissioners (Northern Ireland) Order 1999. The principle is that a person shall not be appointed a situation in the Civil Service unless a selection is made,

“on merit on the basis of fair and open competition”—

the merit principle. The commissioners have the power to consider, make decisions, and have appeals made to them under the Northern Ireland Civil Service code of ethics, and their notepaper says:

“Ensuring appointment on merit and safeguarding ethics”,

which is, indeed, their role.

Noble Lords from different backgrounds have made important points, and I will also make a point, having served as a Minister in Northern Ireland and in Whitehall. The Northern Ireland Civil Service is a much smaller unit. Everybody knows everybody else in Northern Ireland, and sometimes it seems—I am sure that other noble Lords will confirm this—that everybody knows everything about everybody else in Northern Ireland. Many senior Northern Ireland civil servants had a profile that was not known here in Whitehall, but they were known across Northern Ireland in their respective roles as Permanent Secretaries. Therefore this is not just about things being done in the right and proper way and about there being impartiality; the perception of impartiality must also be there for all those who are appointed, and for others.

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[Baroness Randerson]

Absolutely. The noble Baroness is entirely correct. I had hoped I had made it clear in my opening remarks on this issue that the Government fully support the principle and intend to ensure that safeguards are put in place. However, they believe that there should be public consultation to ensure that those safeguards are as full and detailed as is necessary. The Government also believe that although the intention of the noble Lord’s amendment is entirely satisfactory in many respects, it is deficient in technical terms because the safeguards it specifies are nowhere near detailed enough compared with those for the Civil Service in England.

[Lord Butler of Brockwell]

The Bill contains the powers to devolve this function of the Civil Service Commissioners. If we are going to put that in the Bill, surely the sensible time to legislate for the safeguards is at the same time as making that provision. If not, why have this provision in the Bill? If the provision is to go ahead, the Government ought to undertake such consultation as they think necessary but introduce a suitable amendment on Report.

[Baroness Randerson]

The Government are listening very carefully to what is said this afternoon, which will inform the content of our consultation paper when it is produced, and we will take close account of what is said more generally by parties and public figures in Northern Ireland. The body that it is proposed to devolve—the Civil Service Commissioners—has, as the noble Lord pointed out, raised our awareness of this issue and is very much involved with the whole process. I should point out that there will be a vote here and in Stormont before the Civil Service Commissioners are devolved. Therefore, noble Lords will be able to discuss once again the details of the safeguards to be put in place as regards the impartiality of the Civil Service. I hope that noble Lords who have spoken this afternoon will contribute fully to the consultation that will take place in due course. However, for the present, I hope that the noble Lord will not press the amendment. I cannot agree to it for the reasons I have outlined—namely, it is technically deficient and does not provide the detail that is required properly to protect the impartiality of the Civil Service in Northern Ireland.

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[Baroness Randerson]

In public consultation in Northern Ireland, the Government look particularly at a consensus across parties and communities. Therefore, it seems to me highly unlikely that there would be a consensus of opinion—a broad agreement across parties and communities—that there should not be an impartial Civil Service. That would be highly unlikely. In that consultation, we would be looking for the details that we would require for proper safeguarding of the position of civil servants in Northern Ireland.

[Lord Butler of Brockwell]

I am very sorry to ask the Minister one more question. She said that there would be a further vote before devolution took place. Can she say that, if there is agreement that these principles should be applied, the effect of that vote would be to give them statutory force?

[Baroness Randerson]

It is the Government’s intention that we would be moving to devolution with safeguards that would have the kind of statutory enforcement that exists for England. I hope that satisfies the noble Lord.

Justice and Security Bill [HL]

Lord Butler of Brockwell Excerpts

Monday 23rd July 2012 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, I have a couple of extra concerns to add to what has already been said. The first is political. As I understand it, this Bill has been introduced on the express understanding of both parts of the coalition that coroners’ inquests would be excluded. I see my noble and learned friend nodding in agreement to that. However, the power that is included here would enable a future Secretary of State to take that away, either during the coalition Government or when the coalition ends. That would be a breach of faith, and we should not now be legislating in a way that makes that possible. It seems to me to be a condition of this Bill that under no circumstances is it to apply to coroners’ inquests, for all the reasons that the Joint Committee and everyone else put forward.

My second problem is that these are civil proceedings, as we are constantly being reminded, so they affect the civil rights and obligations of the parties to those proceedings. When we were enacting the Equality Bills, the question frequently arose as to whether it would be fair and reasonable for a Government to take a power to amend the exceptions to that legislation, which is civil, in order to affect the rights and freedoms of the individual. In introducing both the Equality Act 2006 and 2010, the previous Government took powers to amend, but only by means of removing exceptions, not by anything that would affect the fundamental balance of civil proceedings.

What troubles me is that if this Bill goes through without adequate safeguards of the kind we are pressing for, the use of the powers conferred to amend—to add tribunals by delegated legislation—will not be able to add further safeguards; the question will only be whether a new, further tribunal may be added. That will fundamentally affect, anyhow, the rights and liabilities of the parties to that tribunal.

To take the example in the employment field referred to by the noble Baroness, Lady Turner, one can add a whole new set of restrictions that would apply, for example, to civil litigation in the employment field. That is not something that any previous Government would have contemplated. These powers are not simply Henry VIII in analogy, but maybe a later generation of kings under the Stuarts.

[Lord Butler of Brockwell]

My Lords, it is clear from this debate that two types of issue arise with this group of amendments. One is the issue of whether this is an appropriate use of delegated powers. The other could be described as an issue of policy: whether it is right for the Government to keep open the possibility of adding other types of proceedings, particularly inquests, to those to which the procedures in this Bill are available.

On the first matter of whether this is an appropriate use of delegated powers, as the noble Lords, Lord Soley and Lord Marks, said, we had a long and agonised debate on this in the Delegated Powers Committee. I do not need to add to what the noble Lords said; they summarised the case very well. The reluctance of the Delegated Powers Committee is evident from the words of the conclusion that it reached, where it said that,

“we are reluctant—albeit with considerable misgivings—to recommend in terms that the delegation of powers in clause 11 is inappropriate”.

In other words, the committee was not prepared to go as far as to say that this use of delegated powers was inappropriate, but it thought that this should be a matter for the opinion of the House, and it thought also that the House should consider whether some constraints and limitations should be put on that. I hope that is a matter that the Government will consider.

On the question of policy, as to whether it is right to retain a power to extend the range of proceedings to which the powers in the Bill would be appropriate, I deal directly with the sensitive issue of inquests and coroners’ courts, because that is where the shoe would be most inclined to rub. The noble Lord, Lord Lester, suggested that the Government have declared a policy of excluding inquests because this was the agreement on both sides of the coalition. My impression, I must say, is that this conclusion was reached with greater enthusiasm by one party to the coalition than the other. Indeed, I have heard on one or two occasions the Secretary of State for Justice being asked why this conclusion was reached and he has not been able to give a very convincing answer, other than that this was the way it came out in discussion.

It is difficult to see why the logic that the Government have applied for closed proceedings in other cases should not be available in inquests. The logic is rather similar. It is not often that I disagree with the noble Baroness, Lady Williams of Crosby, and I entirely see her point that it would be very distressing for the public if the proceedings in an inquest could not be entirely in the open. However, again the question arises: is it more disturbing to the public that some proceedings should not be open, or that there is some material relevant to the conclusion of the inquest that is not brought to bear at all? This is the issue that arises with the rest of the Bill. It is quite difficult to see why the Government have reached this conclusion in one case and an opposite conclusion in the other.

[Lord Lester of Herne Hill]

My Lords, the noble Lord, Lord Butler of Brockwell, has great experience of ordinary majority Governments but none at all of coalition Governments. Will he accept that we are now in a different world from that which he ever experienced, and that when you have coalition Government, and the two parties to the coalition reach an agreement, if the coalition is to survive and prosper, that agreement must be followed, however difficult for one party or the other?

[Lord Butler of Brockwell]

My Lords, I am not denying for a moment that this is a conclusion of the coalition. It clearly is. I am just asking whether it is a very logical conclusion.

This is a serious point. There are, I believe, 30 inquests waiting to happen in Northern Ireland, which still have to be undertaken. It is difficult to foresee all the circumstances that might arise. We have got to allow for the possibility that there might be proceedings—inquests, but also perhaps other proceedings—where we would wish, the Government would wish, and perhaps the public would wish, that it would be better that secret information was taken into account than it was not taken into account at all.

For that reason, and with the same reluctance that the Delegated Powers Committee had, I come down, on balance, on keeping these provisions in the Bill. The Government have said they not going to use them, but I think it would be wise to keep the provisions in the Bill, in case circumstances arise in which we would regret their absence.

[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.

[Baroness Berridge]

My Lords, I, too, am grateful for the clarification from the Minister in relation to the exclusion of inquests for this particular reason: I understand that, outside of Northern Ireland, there are currently only two inquests outstanding in England and Wales—the case of Azelle Rodney and that of Mark Duggan from last summer. I am certain that, in the first case, the proposal is to use the Tribunals and Inquiries Act to conduct that inquest, and I believe that that is also to be the suggestion in the Mark Duggan case. The reasoning behind that is, I believe, that intercept evidence is to be considered.

One can see that it is a small step in the argument to say, “We are using the Tribunals and Inquiries Act and intercept evidence so why not, because we can under this Bill as it stands, use intercept evidence in a closed material procedure?”. It is a small step of reasoning to move into closed material procedures in inquests.

In relation to the issue of procedure and having legislation that goes quickly through the House, one can understand the concerns that exist at the moment in relation to the Mark Duggan situation. In those instances, Parliament should reconsider the matter. We would need to consider all the impacts on public confidence and the outworkings of using a secret procedure in such a high-profile case and an inquest of that significance.

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[Lord Falconer of Thoroton]

My Lords, the noble Baroness, Lady Manningham-Buller, has made a very powerful intervention—if that is what it was—on my speech. I just want to summarise where I had got to and finish my speech. I think that the issues for the Committee are as follows. First, is the Committee satisfied that there would be a significant loss of intelligence? I found the speech of the noble Baroness, Lady Manningham-Buller, very powerful in that respect. Secondly, if there were a significant loss of intelligence, what would the right course be? In my respectful submission, the right course would be to do the minimum required to protect the intelligence. It may well be that the minimum is the certification process. However, a question arises from that. The noble Baroness said that there are real secrets and I accept that. The real secrets may not only come from somebody else; they may be ones that we find ourselves. Finally, do not ask the courts to make these decisions. By all means subject them to judicial review but ultimately let the responsibility rest where it rests, which is with the Secretary of State, who should certify on the advice of the intelligence services.

[Lord Butler of Brockwell]

My Lords, I sense that it would be convenient for the Committee if we finished this debate before the dinner hour, so I shall confine myself to just two or three sentences. I think that the noble and learned Lord, Lord Falconer, has made all the points that I want to make, as has my noble friend Lady Manningham-Buller.

I am one of your Lordships’ representatives on the Intelligence and Security Committee. We visited the United States and our experience would endorse what Mr David Anderson said—that the flow of intelligence from the United States is being limited. I do not want to exaggerate this but the point is that the trust of the US has been weakened and we need to restore that trust. It matters not that the grounds for the breaking of that trust may not be justified. It has been diminished and, unless we can respect the control principle completely and unless other countries believe that information that they give to us will be protected in all circumstances, that trust cannot be restored. So I absolutely agree with the noble and learned Lord. We do not want to give the courts let-outs and we do not want to have a balance; if we have any exceptions, we will not be completely trusted. The responsibility must rest on the Secretary of State and only if that happens can other countries be assured that their confidences are safe with us.

[Lord Wallace of Tankerness]

My Lords, I thank all noble Lords who have contributed to this debate. Initially, my noble friend Lord Lester set up the framework of what a Norwich Pharmacal order is like and how it is sought. I am particularly grateful to the noble and learned Lord, Lord Falconer of Thoroton, for very clearly indicating some of the consequences of a Norwich Pharmacal order being granted, unlike what we were debating earlier in terms of civil proceedings in an action for damages where it is always open to the Government to settle or to abandon a case or a defence, rather than put information into the public domain. In this case, we are dealing with a court order requiring disclosure.

This is a difficult issue and one to which we have given considerable thought. The aim of a Norwich Pharmacal application is to force a third party who is mixed up in the suspected wrongdoing of another to disclose information that the claimant needs. In the case of sensitive information, this has usually been for another set of legal proceedings elsewhere, often overseas. It is an equitable remedy developed, as has been said, in the intellectual property sphere. However, since 2008 there have been no fewer than nine attempts to use this jurisdiction in relation to disclosure of sensitive material, such as secret intelligence, which either belongs to the United Kingdom Government or which our allies have shared with us.

As has been said, the Government do not have an option to withdraw from or seek to settle these proceedings. If a judge orders disclosure and a PII claim is unsuccessful in relation to the material, there is no option other than to release the sensitive material. We have had experience of the damage done to our interests of national security—it has been referred to in more than one contribution to this debate—in the dramatic effect of the Binyam Mohamed case on our intelligence-sharing relationship with the United States.

My noble friend Lord Lester and the noble Lord, Lord Pannick, said—it has been said in a number of discussions around this issue—that no national security information was disclosed in the Binyam Mohamed case; it had already been put into the public domain in the United States. The real concern arises out of the Court of Appeal ordering that seven paragraphs which had been redacted from the Divisional Court’s judgment and which contained a summary of US intelligence reporting should be restored to the judgment despite the existence of a PII certificate from the Foreign Secretary. A critical factor in the Court of Appeal’s reasoning was that a court in the United States had made findings of fact directly relevant to the content of that reporting.

The judge in the United States case did not put the contents, or a summary thereof, of the United States intelligence into the public domain; he made findings of fact based on allegations about Binyam Mohamed’s treatment made in another case that were not challenged by the US Government. Crucially, knowledge of the content of the United States intelligence reporting was not in the public domain until the publication of the redacted paragraphs following the order of the UK Court of Appeal. It is the means by which the UK had had the information that was the sensitive part and we believe that what has happened since, as reflected by a number of contributions to this debate, not least the contribution of the noble Lord, Lord Butler of Brockwell, has had a real effect on the flow of information.

The noble Baroness, Lady Manningham-Buller, made the point that, although very obviously any immediate life-threatening information in the hands of the United States intelligence services would be handed to us, very rarely does that happen. Obviously, if there was direct information about a possible terrorist attack tomorrow there is no doubt that they would share it with us, but as I understand the nature of the intelligence process, it may be one part of a jigsaw puzzle that does not necessarily mean anything to the United States intelligence people who would normally share it with us, but it might be a crucial part of the jigsaw puzzle for the United Kingdom intelligence services, because it might allow a picture to be made that was not possible before. It is the loss of that kind of material that would spark concern.

The Government have received clear signals that, if we are unable to safeguard material shared by foreign partners, we can expect the depth and breadth of sensitive material shared with us to reduce significantly. Each time a claim is made, our partners must confront the possibility of their secrets being disclosed, even if the case never reaches the point where a court orders disclosure. It is that concern that we seek to address.

Obviously, I recognise that efforts that have been made in framing these amendments to deal with the very difficult issues that we are grappling with. My noble friends Lord Lester and Lord Hodgson have tabled amendments that would restrict the clauses relating to Norwich Pharmacal relief to control principle material. By that we mean the important concept that in intelligence exchanges it is essential that the originator of the material remains in control of its handling and dissemination. My noble friends have rightly observed that, in explaining the Bill, the Government have highlighted the particular difficulty where individuals seek disclosure of material covered by the control principle, but the case for reform goes wider than that. This was acknowledged in the closing comments of the noble and learned Lord, Lord Falconer, and I think that I made reference to it on Second Reading. We must also protect intelligence gathered and generated by our own intelligence services as well. The lives and safety of intelligence service staff, as well as the safety of their sources and the effectiveness of the techniques that they use to gather information, could be jeopardised if information is disclosed. Preventing the disclosure of sensitive material produced through the capabilities of our own intelligence services is as important, I submit, to our national interest as protecting material that has been shared by our allies.

The intelligence services have a legal obligation to protect the safety of sources, including, where applicable, the duty under Article 2 of the European Convention on Human Rights. The secrecy of operations and investigations and the limit or the extent of the intelligence services’ coverage and capability are all of crucial importance and, if they were compromised, it would be harder to prevent terrorist attacks and protect public safety. Limiting the protection afforded by Clause 13 to control principle material would diminish the Government’s ability to protect domestically generated intelligence. We believe that this could have severe impacts on the direct activities of our intelligence services as well as on intelligence-sharing relationships.

On a practical level, limiting the definition to control principle material would be challenging. It is often difficult or unfeasible to separate control principle material from domestic material. For example, there may be correspondence between the intelligence services commenting on control principle material, or assessments based on a mix of domestic and foreign material, which it would be difficult to distinguish between. There are therefore inherent difficulties in identifying what qualifies as control principle material. As has been mentioned in the debate, Mr David Anderson QC discussed these practical difficulties in his recent evidence to the Joint Committee on Human Rights and the control principle itself is part of the broader principle that intelligence relationships should remain confidential.

The amendment in the name of my noble friend Lord Thomas of Gresford would remove the absolute exemption for intelligence service material and rely instead on a certificate-based process for sensitive material whose disclosure would be damaging to the interests of national security or international relations. In a commendably concise intervention, he asked what the justification for the absolute bar is. Unlike in other parts of government, the work of the intelligence services is inevitably covert and secret. We have heard arguments that there may well be cases that would fall under the exemption but where the material sought is not sensitive. The simple fact is that material from the intelligence services sought in Norwich Pharmacal applications is, by its nature, security-sensitive and its disclosure would damage the public interest in safeguarding national security. Applicants do not seek open-source information or other unclassified material from the intelligence services.

I note the point made by the noble and learned Lord, Lord Falconer, about the hypothetical case where he slips. The obvious thing to do there would be to sue the agency, which is the occupier. If it wished to bring in a third party, the contractors, it could do so and all the normal processes would flow from that. All the cases that have arisen under this have been dealing with applications in respect of very sensitive materials.

Justice and Security Bill [HL]

Lord Butler of Brockwell Excerpts

Monday 23rd July 2012 Lords Chamber

[Lord Pannick]

My Lords, I added my name to this amendment because, in light of the importance, the difficulty, the novelty, and the sensitivity of the issues that we have been debating, it is highly desirable that the Bill states on its face the objectives which the Secretary of State and the courts must seek to advance. The overriding objective of the courts is, indeed, to protect the interests of justice and fairness. That is what the Civil Procedure Rules state. Any interference with open justice must surely be confined to what is necessary, as the amendment says,

“to protect the interests of national security”.

Who could possibly object to that?

[Lord Butler of Brockwell]

My Lords, I rise to make a brief point. I do not doubt the seriousness of the noble Lord, Lord Lester, even after dinner—nor his good intentions. However, it seems to me that the word “overriding” introduces a dangerous note of ambiguity. What does it override?

[Lord Lester of Herne Hill]

I am sorry to interrupt but those words come from our governing Civil Procedure Rules. I did not invent them. It is described as the overriding objective because that is the fundamental principle of the rule of law.

[Lord Butler of Brockwell]

I think we agree that there are certain circumstances where the interests of justice and fairness should not override national security. We are seeking a balance. I would have no objection to this amendment if it said,

“must have regard … to the objective of protecting the interests of justice and fairness”,

followed by subsection (b).

[Lord Falconer of Thoroton]

If the Bill becomes law, rules of court will be made. Those rules of court will be governed at the outset by what is set out in the amendment of the noble Lords, Lord Lester and Lord Pannick. I have understood what they mean by the,

“overriding objective of protecting the interests of justice and fairness”,

as referring to the first category of case with which we are dealing—civil proceedings not Norwich Pharmacal. In order to be fair, there must be some limited disclosure because the alternative is no disclosure at all and that is unfair to one of the parties. As I understand it, the noble Lords, Lord Lester and Lord Pannick, are saying: “Do what you have to do in order to get the fairest possible result”. In relation to that first category of case, they are seeking to achieve fairness to both parties—the claimant and the defendant—where the defendant has a defence that it wishes to advance but it cannot do so without damaging national security. Therefore, pursuant to the rules, the courts would allow an arrangement whereby only one side sees that material. While that may not be fair in a perfect sense, it is the fairest way of dealing with the problem. National security is dealt with by the ability of the intelligence services to withdraw from the case if national security is offended by an order for public disclosure.

Subsection (a) deals, in effect, with the first category of case, while the second category of case, covered in subsection (b), deals with Norwich Pharmacal. What is said there is: retreat from the right to see something under Norwich Pharmacal only to the extent,

“necessary to protect the interests of national security”.

The rest of the Bill sets out how that is to be achieved. If there are any doubts about it, the courts can go to these basic principles in order to resolve them.

Despite the fact that this trespasses on the advice of the noble Lord, Lord Campbell of Alloway, this is quite a sensible and new way of legislating. Its first appearance, I am happy to say, was in the Constitutional Reform Act 2005 when the principle of upholding the rule of law was referred to in Section 1 as a freestanding obligation, not by reference to a particular provision. As time has gone by, it has been thought to be a beneficial provision. The approach taken by the noble Lord here is beneficial, particularly when we are dealing with issues as difficult as this. I do not think that putting in “overriding objective” is intended to be an excuse or a way of avoiding the need to address the detail of the issues elsewhere.

Finally, perhaps I may say this to the noble Lord, Lord Pannick. What a good idea. If we want to hear evidence from someone, we should make them a Member of the House of Lords. We will be hearing from Bob Diamond and others fairly soon.

Justice and Security Bill [HL]

Lord Butler of Brockwell Excerpts

Tuesday 17th July 2012 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I will certainly mull over that point. However, in coming up with any definition, we would want to be very careful that it did not exclude things that should be included or include things that perhaps should be excluded. We will look very carefully at what he has said. The intention is that the concept should be a narrow one that will come into play in a very small number of cases. However, the definition set out in the amendment would not cover everything that is damaging to national security. Factors that are damaging to national security can change in accordance with assessments about the threat to the country. That was reflected in the contributions we have had, not least from the noble Baroness, Lady Manningham-Buller. If the definition is too narrow, we take the risk of legislation becoming unfit for the purpose for which it is intended. Sensitive intelligence and security material which security intelligence agencies hold and which is so vital to the discharge of their important statutory functions will have been acquired by them in a variety of ways and from a variety of different sources. Not all national security-sensitive material held by the security and intelligence agencies will by any means relate to, or be the result of, operations.

In view of this, we believe that the amendment is unduly limiting. For example, if information has been shared with United Kingdom agencies in confidence by foreign intelligence agencies, or has been disclosed to them in confidence by human sources, the amendment would not enable such information to be used within a CMP, however sensitive the provenance of the information and however confidential the relationship. There could also be a situation where the agencies have undertaken preliminary research and analysis before deciding whether there is a sufficient national security case to justify embarking on an intelligence operation. Information generated during the course of that preliminary work, whether or not an actual operation ensued, could well be highly sensitive in security terms and of significant relevance in a particular case. However, if the amendment was accepted, it would not be possible to use the information.

I think that it was the noble Lord, Lord Beecham, who said that there was a danger that the amendment was both too broad and too narrow at the same time. It could also go wider, in that not all matters—including operations by the military—would relate to national security. In fairness, my noble friend Lord Hodgson of Astley Abbotts accepted that the terms of the amendment might not be ideal. It is perhaps illustrative of the fact that any attempt to make a definition can often be either too limiting or too broad. The Bill recognises that national security is very much an issue for the Secretary of State.

[Lord Butler of Brockwell]

My Lords, in supporting the noble and learned Lord’s argument that the definition should not be too narrow, perhaps I may take him back to the point made by the noble Lord, Lord Pannick. He sought to establish that national security was a narrow definition by invoking the categories in new Section 59A(5), as inserted by Clause 5, which are,

“national security … the prevention or detection of serious crime”,

and,

“the economic well-being of the United Kingdom”.

It must be the case that national security would include some of those other categories. The most obvious one is,

“the prevention or detection of serious crime”,

which might be terrorist crime.

[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.

--- Later in debate ---

[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 Butler of Brockwell Excerpts

Tuesday 17th July 2012 Lords Chamber

[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.

Justice and Security Bill [HL]

Lord Butler of Brockwell Excerpts

Wednesday 11th July 2012 Lords Chamber

Moved by

[Lord Butler of Brockwell]

35: Clause 3, page 2, line 32, leave out subsection (3)

--- Later in debate ---

[Lord Butler of Brockwell]

My Lords, I beg to move Amendment 35 and will speak to Amendment 38, standing in the names of my colleague the noble Marquess, Lord Lothian, and myself, and to which the noble Baroness, Lady Smith, and the noble Lord, Lord Beecham, have added their names. These two amendments invite the Government to look again at the drafting of Clause 3(3) and (7).

Subsection (3) says that the committee must send a draft of its report to the Government. This may reflect the old, rather patriarchal attitude, if I may describe it as such, that the Government took towards the committee. The committee submits its report; it is independent. It does not submit a draft report to the Prime Minister; the report is the report is the report. It submits its report and then the Prime Minister may insist on redactions: that is how the procedure works, so the reference to a draft report is technically incorrect, and impugns the independence of the committee.

Subsection (7) refers to matters that would be excluded from the ISC’s report to Parliament when it reports to the Prime Minister. Again, the words “the ISC considers” that they would be excluded under subsection (4) are necessary because, at the time the committee makes its report to the Prime Minister, he has not seen the report; he cannot decide what would be redacted in a report submitted to Parliament. So, again, the committee would submit a full report to the Prime Minister and when it comes to excluding things it would have to be the ISC which considers it, rather than anybody else.

These are two drafting amendments which would make the position clear.

[The Marquess of Lothian]

I shall add to what the noble Lord, Lord Butler of Brockwell, has said on these two amendments, to which my name is also attached. On the second one he makes the short point that it is for the committee to decide whether the report should be published to Parliament or to the Prime Minister. He makes it clear that it is only the committee that can make that decision. There is an additional factor, in that until the report is completed, only the committee knows that that report is being drafted, so no decision could be made before the committee had finished drafting its report. That is one reason why it is a necessary amendment.

With respect to the noble Lord, Lord Butler of Brockwell, I think that Amendment 35 is more than a drafting amendment. It is asking to remove subsection (3), the only drafting element of which is the word “draft”. It is an incorrect statement as it stands, because it suggests that the committee submit a report to the Prime Minister which is capable of alteration or amendment—that is the definition of a draft. In fact, it is the opposite that occurs. The report that is made to the Prime Minister can only be changed in respect of inserting asterisks—by redactions where there are matters which should not be seen in the public report submitted to Parliament, but of necessity are in the report that is sent to the Prime Minister. I suggest that, rather than being a drafting amendment, the removal of the subsection is the answer. The reason I say that is because, if the Government accept that this is not a draft, the whole subsection becomes otiose because the following subsection makes it clear that the report goes to the Prime Minister before redactions are made. I hope that, on this occasion, the Minister will feel able to consider very seriously the points we are making in this amendment.

--- Later in debate ---

[Lord Henley]

It does appear in it. Well, I got that wrong. Under the existing Intelligence Services Act, the ISC makes an annual report on the discharge of its functions to the Prime Minister. The Prime Minister lays before each House of Parliament a copy of that report, together with a statement as to whether anything has been excluded from it by the Prime Minister on the grounds of its sensitivity. Under the Bill, the ISC will for the most part report to Parliament but will still be able to report to the Prime Minister on matters that would be excluded from any report. It would remain for the Prime Minister to decide whether grounds exist for excluding matters from the report after, of course, consulting. That is the important thing: the consultation with the ISC. That will continue to happen.

If, as I said, the word “draft” is not appropriate, I am sure that we can make arrangements. I am obviously not a draftsman. One way of doing that would be just to delete subsection (3) from Clause 3. We will have a look at it. We have, as we know, any amount of time because we have a long summer ahead of us with other matters to deal with.

The second amendment in this group of three, Amendment 36, spoken to by the noble Lord, Lord Rosser, changes the criteria—or definition, as the noble Lord, Lord Rosser, put it—whereby the Prime Minister might exclude any matter, if that report without that matter excluded would contain sensitive information as defined in Schedule 1, or information which should not be disclosed in the interests of national security.

The ISC must be able to report candidly to the Prime Minister on sensitive matters. Inevitably, the full contents of its reports cannot always be published because of the nature of the material contained within them. We are all agreed on that; it is quite clear. It follows, therefore, that there must be an ability to redact information before the ISC reports can be published or laid before Parliament. I must make it clear that the test in the Bill is modelled on the one in the 1994 Act. That has worked well and it is well understood by both the committee and by the Government. It has allowed material to be excluded where it should be excluded but it has also allowed the Government and the ISC to ensure that as much of the ISC’s reports that can be published are published. I do not believe that it is overly restrictive but it does cover certain categories of information which would not be covered were the Bill to be amended as is suggested in the noble Lord’s amendment.

The noble Lord, Lord Campbell-Savours, from a sedentary position, and the noble Lord, Lord Rosser, have put this point. They want to know why the criteria are different. If the noble Lord will allow me, I will explain that in due course. There is no need for him to make an intervention as he has already asked that point. The ISC needs to know what can be published and there are two different tests—one for publication and one for disclosure to the ISC. The tests therefore should be different. Tests for withholding from the ISC should be at a much higher threshold.

As both noble Lords will be aware, the functions of the agency are not solely exercisable in the interests of national security. It also has functions exercisable in the interests of economic well-being, United Kingdom fraud protection or prevention of serious crime. For those instances where including a matter in an ISC report to Parliament could cause prejudice to those functions of the agency but not to its functions in relation to national security, the existing Clause 3(4) would give the Prime Minister the power to require that that matter should be excluded from the ISC’s report whereas, unless the information in question fell within the definition of sensitive information under paragraph 4 of Schedule 1, the formulation of the clause proposed by this amendment would not.

With that, the noble Lord’s amendment is not necessary and in fact would not take us much further. I hope therefore that he will consider not moving it when it is called. I trust that my assurance that we will consider Amendments 35 and 38 in the names of the noble Lord, Lord Butler, and my noble friend Lord Lothian will enable the noble Lord to withdraw his amendment.

[Lord Butler of Brockwell]

I am grateful for the Minister’s assurance that the drafting points raised in Clauses 35 and 38—or a little more than drafting points, as my noble friend Lord Lothian said—will be looked at. With that assurance, I am happy to withdraw the amendment.

Amendment 35 withdrawn.

Justice and Security Bill [HL]

Lord Butler of Brockwell Excerpts

Tuesday 19th June 2012 Lords Chamber

[Lord Butler of Brockwell]

My Lords, I shall do my best to comply with the noble Baroness’s exhortation.

The Bill before the House is important, although its purposes are limited. It is also urgent because the Intelligence and Security Committee—I have the honour to be one of its members from your Lordships’ House—has seen direct evidence that uncertainty over the matters covered in Part 2 of the Bill is already affecting co-operation with our intelligence allies on matters of national security. I do not want to exaggerate the effect of that but the House should be aware that our proceedings are being watched with more than usual attention by our allies, particularly our United States allies.

The Bill has been the subject of consultation through a government Green Paper, and that consultation has been valuable. It has not only enabled the provisions of the Bill to be widely understood but caused the Government to modify their original proposals in significant ways. As previous speakers have explained, the Bill essentially has two purposes. One is to modernise parliamentary oversight of the United Kingdom intelligence community. The other is to address the problem which has arisen in relation to the disclosure of intelligence in certain civil proceedings. As one of the two Members of your Lordships’ House in the Intelligence and Security Committee, which otherwise consists of members of another place, it may appear a little self-centred if I deal first with the Bill’s provisions relating to the committee. However, in doing so, I follow the order of the provisions in the Bill.

Like the noble and learned Lord, Lord Mackay, I can claim a certain parental interest in the Intelligence and Security Committee, because as Cabinet Secretary and a counting officer for the secret vote, I was involved in the discussions inside government which led to the establishment of the committee through the Intelligence Services Act 1994.

In the early 1990s, when the main British intelligence agencies—the Security Service, the Secret Intelligence Service and GCHQ—had been publicly avowed, it was recognised that Parliament should have more oversight of the services than the very limited and secret supervision of the agencies which the Public Accounts Committee had previously had. There was a good deal of nervousness within the Government, and particularly within the agencies, about giving parliamentarians access to their work. This was not because the agencies were defensive or embarrassed about their activities. On the contrary, they felt that the scrupulousness with which they carried out their duties could stand up to scrutiny perfectly well. Their anxieties understandably related to the necessary secrecy of their work and about the admission to their secret world of parliamentarians who necessarily conducted their lives in public. So the method of appointment and the range of activities of the committee were very tightly controlled in the 1994 Act. The committee, though comprising Members of Parliament, was appointed by the Prime Minister. The range of supervision of the committee omitted intelligence operations and was confined to expenditure, policy, and administration; and it was restricted to the three agencies rather than to the intelligence community as a whole.

It is greatly to the credit of successive committees and their chairmen, many of whom are Members of your Lordships' House, that the fears of the intelligence agencies have proved unfounded. The members of the committee, admitted within the ring of secrecy, have recognised and observed the obligations of discretion which that access has required. Over the years the intelligence community has developed confidence in the committee as independent friends, sometimes critical but invariably trustworthy and conscious of the importance of the agencies' work.

Consequently, the work of the committee has progressed beyond the confines of the original legislation. It continues to scrutinise expenditure, administration and policy, but it has been useful to the Government as well as to Parliament that it should sometimes look retrospectively at operations, especially when those operations are controversial or there are lessons to be learnt from them. It is sensible that the opportunity should be taken through this Bill to bring the legislation in line with how the committee now operates in practice. However, the tight restrictions on the way the committee was established have one major disadvantage. The fact that the committee is appointed by the Prime Minister and reports to the Prime Minister can, and does, suggest that the committee is the creature of the Prime Minister and the Government. This has on occasion reduced the confidence of the public and Parliament in the committee's independence.

Some restrictions on the committee continue to be necessary. It is right that the committee should be able to report unrestrictedly to the Prime Minister, but the coverage of its published reports needs to be restricted so that secrets are not disclosed. The record of the committee in the 18 years of its existence demonstrates that it can be freed of some of the shackles originally imposed upon it.

It is now time for the committee to come of age and for legislation to catch up with the extensions of coverage and freedom of action which have, in practice, been extended to the committee as confidence in it has grown. In consequence, the committee will become more useful to Parliament and the public as its independence is more manifestly demonstrated.

I turn now to the more controversial provisions of the Bill, which have been the subject of earlier speeches: those relating to closed procedures. It is important to emphasise—it has been clear from the speeches that this is well recognised—that the provisions in the Bill relate only to civil proceedings. In criminal cases, it has always been the case that when material is so sensitive that it cannot be disclosed to the defendant and yet the prosecution cannot proceed without it, the case cannot proceed. Defendants cannot be convicted in criminal cases on the basis of material of which they cannot be made aware and do not have the opportunity to contest. Criminal cases are brought only by the Crown. The Crown is the prosecutor and members of the public are the defendants. The difference in civil cases is that the Crown may be the defendant. The new development in this area is that the events following 9/11 and detention in Guantanamo Bay and elsewhere have given rise to a spate of civil cases against our Government and others. In the case of our own Government, some of those cases can be defended only by the deployment of intelligence belonging either to our country or to other countries. In the case of action against other Governments, application can be made under a procedure known as the Norwich Pharmacal procedure for disclosure of information held by our Government even though there may be no suggestion that our Government were involved in any wrongdoing.

In such cases, there are only three possible courses. One is the disclosure of the intelligence. The second is conceding the action because material necessary to defend it cannot be used. The third is to institute a procedure such as the closed hearings provided for in the Bill. The seriousness of disclosing intelligence, particularly but not only intelligence supplied by allies, cannot be stressed too strongly. The potential breach of the principle that intelligence provided by allied countries must be restricted to our Government and used only for the purposes for which it was given—a principle known as the control principle—would have very serious consequences. It has already had serious consequences in the one case in which it has occurred.

The second alternative of having to assert public interest immunity and perhaps to concede the action because it cannot be effectively defended means, in my submission, that justice cannot be done. The Government may have to concede large sums in settlement in cases in which the use of intelligence might have enabled the Government to defend themselves and, as has been recognised, that has already happened in some cases. I submit that taxpayers are also entitled to justice.

The third alternative is a closed procedure in which special advocates are given access to the information on behalf of their clients and that is proposed in the Bill. The noble Lord, Lord Thomas of Gresford, in his extremely well informed speech, proposed an alternative procedure which may well be worthy of consideration. However, I think we are all agreed that some way must be found of enabling justice to be done, while information essential to national security is protected. We all agree on the importance of protecting such information.

These closed procedures are an exception to the principle that all relevant information should be freely available to all parties in litigation. It should be clearly limited to cases where it is absolutely necessary. It is therefore welcome that the Government have already reduced the scope of their original proposals from sensitive material to material prejudicial to national security. It is also welcome that the judge should be given the final decision on the application of such procedures.

But I have no doubt that, for example, intelligence provided by foreign partners who do not consent to its disclosure, must be protected. If a judge ruled that its disclosure was essential to the resolution of a case, the Government would have to withdraw their defence. But that is better than the Government having to withdraw their defence in all such cases.

No one pretends that closed proceedings are ideal, but they seem to me to be the least worst option in these cases. It may be that we can make improvements in the special advocate procedure along the lines, for example, of the recommendations in the excellent report of your Lordships’ Constitution Committee or those of other countries which, in similar circumstances, have introduced closed proceedings legislation. But a procedure on these lines is preferable to the public interest immunity procedure in the United States where Binyam Mohamed was unable to bring any action at all because the Government asserted state secrets privilege.

There are aspects of the Bill with which the Intelligence and Security Committee is not yet fully satisfied and which will need clarification and perhaps amendment as the Bill proceeds. But I think that I speak on behalf of my colleagues on the committee when I say that we welcome the general thrust of the Bill and agree with the importance and urgency that the Government attach to it.

--- Later in debate ---

[Lord Lester of Herne Hill]

My Lords, the Joint Committee on Human Rights is obtaining evidence about this Bill. We intend to report to Parliament before Report stage and to table amendments in the mean time. It is a highly controversial Bill and we welcome the Minister’s assurance that there will be sufficient time to scrutinise and improve it during its passage in this House. Like the noble Lord, Lord Beecham, whose speech I found particularly impressive, I think we should strive across the House to achieve consensus where we can.

There are welcome ways, identified by the Minister and others, in which the Bill improves on the overly-broad proposals in the Green Paper, in accordance with the recommendations of the JCHR and others. However, the Government have not accepted our criticisms or recommendations, or those of the independent reviewer of terrorism legislation, the special advocates and civil society, about the lack of sufficient judicial control of the closed material procedure, the judicial balancing role of public interest immunity, as described by the noble and learned Lord, Lord Mackay of Clashfern, and the use of the Norwich Pharmacal disclosure jurisdiction post the Binyam Mohamed decision of the Court of Appeal. I regret to say that the Bill betrays an unjustified lack of confidence in our fine system of civil justice and the capacity of our courts to protect state secrets.

The Select Committee on the Constitution has published its very significant report on the Bill, rightly noting that exceptions to the constitutional principles of open justice and natural justice should be accepted only where demonstrated on the basis of clear evidence to be necessary. The JCHR considers that the Government have not demonstrated by reference to evidence that the fairness concern on which they rely is in fact a real and practical problem.

That said, I must now plead guilty. It is to some extent because of my role at the Bar that the closed material procedure was first introduced. It happened as a result of litigation in both European courts. In the first example, Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary, a Minister had certified that national security prevented part-time reservists in the RUC having the merits of their sex discrimination cases heard at all in Northern Ireland. I had to go through Luxembourg for them to get that conclusive ministerial certificate set aside so that we were able to hold a merits hearing before a tribunal in Northern Ireland, partly in camera, and I am glad to say that the women won.

The second example is the Tinnelly and McElduff cases, where Northern Irish complainants said they had been black-balled from getting government contracts because of their religion, and the Government said otherwise. Again, the puzzle was how to do justice to them when the Government said there were national security considerations affecting their cases. I plead guilty to having suggested, as had many NGOs, that the answer was a closed material procedure. That is what was developed in SIAC. I do not, therefore, start off with a root-and-branch opposition to the closed material procedure. Where properly controlled, it is in my view a proper compromise.

The Constitution Committee rightly decided that the scheme contains three basic flaws. I agree with that but I am not going to talk about it, because the committee did not look at Norwich Pharmacal. I am simply going to concentrate the remainder of my remarks on the ouster in Clause 13. This refers to the court’s ability to order the disclosure of any information held by or originating from the intelligence services in civil proceedings where the claimant alleges that wrongdoing by someone else has, or may have, occurred; that our intelligence services were involved in the carrying out of wrongdoing, innocently or not; and that the disclosure is reasonably necessary to enable redress to be obtained or a defence to be relied on in connection with the wrongdoing.

As it stands, Clause 13 would deprive the courts of the ability to make such an order in any circumstance. It is a complete and absolute ouster clause. What would this mean in practice? I will illustrate this in the real world. Shaker Aamer is a Saudi Arabian citizen and the last remaining former British resident detained in Guantanamo. Following his capture in Afghanistan in December 2001, he was detained by US military authorities in Afghanistan, and since February 2002, in Guantanamo. Despite repeated requests by the United Kingdom Government, he has still not been released from Guantanamo.

Shaker Aamer maintains that, during his detention by the US military authorities, he has been subjected to torture and cruel, inhuman and degrading treatment. In English proceedings, he sought disclosure of material alleged to be in the Foreign Secretary’s possession supporting his case before the Guantanamo review task force that any confessions that he may have made during his detention were induced by torture or ill-treatment. The basis of his application is the Norwich Pharmacal jurisdiction, as developed in the Binyam Mohamed case.

The Divisional Court gave judgment on 15 December 2009 granting his application subject to hearing further argument on statutory prohibitions and public interest immunity. The judgment records his allegations of ill-treatment during his detention at Bagram air force base, where his interrogators included a member of the UK Security Service, and his interrogation at Kandahar air force base by two members of the UK Security Service. The Divisional Court held that, to the extent that the information held by the Secretary of State supported that claim, it was essential to the presentation of the claimant’s case before the task force. Without the information sought, and without the ability to make submissions on the basis of that information, the claimant’s case could not be fairly considered by the task force of the review panel.

The current Norwich Pharmacal cases are also those of Omar and Njoroge, both of which are death-penalty cases pending in Uganda. Their substantive claims have been heard in the Divisional Court and judgment is still awaited. Both men claim that the Foreign Secretary holds information, in the possession of the intelligence service, that will prove that they were rendered and tortured and that this was part of a plan. I shall not say any more about those cases because they are pending, but those men are on trial for their lives in Uganda.

If the powers of our courts to order disclosure in those cases in the interests of justice are abrogated by Clause 13, these men and other alleged victims of torture and serious ill-treatment who are on trial for their lives, and their security-cleared lawyers if they have them, will be denied access to crucial information. It is not appropriate to describe cases of this kind as “legal tourism”. They have real and close connections with this country and British intelligence actions here and overseas, and they are properly brought in British courts, just as they could be in other common law countries, including the United States, and civil law countries. Given that it has been suggested that this is some novel English jurisdiction, I have summarised the comparative position on a website, www.odysseus trust.org, where one can find the comparative position across the common law world, the civil law world and the United States.

The motivation driving the Bill is the political need to reassure the United States Government and the CIA, and our own intelligence services, that sensitive information imparted in confidence will remain secret. The working relationships between the intelligence services of the UK and the US are subject to an understanding of confidentiality described as the control principle, which is very important.

In the landmark judgment in Binyam Mohamed, the Lord Chief Justice, the noble and learned Lord, Lord Judge, referred to,

“the painstaking care with which the Divisional Court addressed the public interest arguments advanced by the Foreign Secretary. The approach of the Divisional Court ... represented an exemplary model of judicial patience … If for any reason the court is required to address the question whether the control principle, as understood by the intelligence services, should be disapplied, the decision depends on well understood PII principles. As the executive, not the judiciary, is responsible for national security and public protection and safety from terrorist activity, the judiciary defers to it on these issues, unless it is acting unlawfully, or in the context of litigation the court concludes that the claim by the executive for public interest immunity is not justified. Self evidently that is not a decision to be taken lightly”.

I know of no case in which a British court has failed to respect the intelligence relationship between the UK and United States or the need to protect state secrets and national security, including the case of Binyam Mohamed, where the only information ever revealed by a court was information revealed by Judge Kessler in the district court for the District of Columbia in a federal habeas corpus case. When my friend, the noble Lord, Lord Butler, refers to the damage done by that case, he may not appreciate that the only information ever revealed was public and had been revealed in the United States by the federal district court. That, in truncated form, was all that was ever revealed.

[Lord Butler of Brockwell]

My Lords, I am well aware of that, but the fact is that that was a breach of the control principle. I assure the noble Lord that the United States authorities regarded that as a breach of a sacrosanct understanding between them and the United Kingdom.

[Lord Lester of Herne Hill]

Yes, surely, just as the previous Government thought that even though in Spycatcher, information had been available throughout the United States, it should be stopped in this country. I do not question the sincerity of the belief, simply its rationality.

I hope that the Minister will be able to confirm in winding up this debate that he agrees with the assessment that the British courts have invariably protected state secrets from harmful public disclosure. It is important that that be on public record for the benefit of our American cousins. The Lord Chief Justice also noted in Binyam Mohamed that it had been accepted by and on behalf of the Foreign Secretary, the right honourable David Miliband, in the litigation that,

“in our country, which is governed by the rule of law, upheld by an independent judiciary, the confidentiality principle is indeed subject to the clear limitation that the Government and the intelligence services can never provide the country which provides intelligence with an unconditional guarantee that the confidentiality principle will never be set aside if the courts conclude that the interests of justice make it necessary and appropriate to do so. The acknowledgement”—

that is, by the right honourable David Miliband—

“that the control principle is qualified in this way is plainly correct, and it appears to be accepted that the same limitation on the control principle would apply in the USA. Presumably therefore our intelligence services accept that although the control principle applies to any information which they disclose to their colleagues in the USA, the ultimate decision on disclosure would depend on the courts in the USA, and not the intelligence services, or for that matter the executive”.

Indeed, in his first PII certificate, the right honourable David Miliband MP fairly recognised that he,

“may well have been inclined to reach a different conclusion on the balance of the public interest were the US authorities not to have made the commitments to make the documents available”

to Mr Mohamed’s US counsel. In other words, the previous Government rightly recognised that the control principle was not absolute. Clause 13 would reverse that.

The Government’s briefing describes the Binyam Mohamed case as controversial. It certainly is, and that remains the view of our ally. Even though the previous British Government sought to provide information about his torture and ill-treatment to security-cleared lawyers so that he could have a fair trial for offences carrying the death penalty, the US Government refused to do so. Even after the federal court had published the information in detail, the British Government persisted in seeking to persuade the English Court of Appeal not to publish for fear of offending our American allies who, according to the Government, have lost confidence in our ability to protect their intelligence, and as a result have put measures in place to regulate or restrict our intelligence exchanges. President Obama deserves better informed advice about our courts. The American Supreme Court has itself said:

“Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers”.

Finally, in his evidence in the Binyam Mohamed case, Morton Halperin, a senior expert on security issues, gave extensive evidence explaining how both Governments understand that in both countries the right to order the disclosure of information has to be in accordance with law and subject to the judiciary. Surely the US Government understand our parliamentary system of government under the rule of law by the independent judiciary and would accept a decision by our Parliament that the absolute ouster of the courts’ jurisdiction in Clause 13 is disproportionate and unfair. My noble and learned friend the Minister said that Clause 13 will not affect convention rights, but the Government’s handout on the human rights memorandum says that there are no convention rights that would obtain so that is not an appropriate safeguard. I very much hope that limitations can be written in to ensure that Clause 13 will no longer continue as an absolute ouster clause.

Assisted Dying

Lord Butler of Brockwell Excerpts

Monday 13th February 2012 Lords Chamber

[Lord Butler of Brockwell]

My Lords, the number of speakers in this debate shows that the appetite for debating this issue in your Lordships' Chamber has quite rightly not diminished. We should be grateful to the noble Baroness, Lady Jay, for this—albeit inadequate—opportunity. But the first question for the Government should surely be whether they can provide a proper opportunity for debate.

The existence and the content of the DPP's guidelines are welcome. But unlike other speakers, I feel that the present situation is not satisfactory. People important to someone wishing to end their lives are left in uncertainty about whether they may be prosecuted: principally their inheriting children and their medical carers. All helpers, whether prosecuted or not, face the trauma of a police inquiry. We need a proper framework of law on this very sensitive matter. It is the duty of government and Parliament to make progress sooner rather than later.