Justice and Security Bill [HL]

Lord Carlile of Berriew Excerpts

Tuesday 17th July 2012 Lords Chamber

[Lord Pannick]

My Lords, I share the concerns of the noble Lord, Lord Dubs, about the fundamental unfairness of the procedure by which the judge decides the case without one party having access to vital material and about the public perception of a decision made on that basis. However, it seems to me that the fundamental unfairness, and the perception of unfairness, is not caused by the identity of the judge or the fact that there is only one judge sitting. It does not seem to me that the fundamental unfairness, or the perception of it, will be diminished at all if the judge sits not alone but with two county court judges, four county court judges, or with two or four retired judges of the High Court, Court of Appeal or Supreme Court. That is not the cause of the fundamental unfairness.

Nor, with great respect, do I share the concern of the noble and learned Lord, Lord Lloyd of Berwick, that there is some onerous obligation on the judge who hears these cases alone. Judges are used to hearing difficult questions and deciding them. Judges decide, and have decided, similar issues in the context of control orders and they are now deciding them in the context of TPIMs. Of course, there are very considerable cost implications of having five judges instead of one whenever one has secret hearings and it will cause very considerable delay in these hearings. So although I understand the concerns, I do not think that this is a solution.

[Lord Carlile of Berriew]

My Lords, I fully understand the concerns that have been expressed by the noble Lord, Lord Dubs, however, for the reasons principally given by my noble friend Lord Faulks, I disagree with this proposal. It does scant justice to the judges who have shown great independence in the control order and TPIM cases that the noble Lord, Lord Pannick, mentioned. I do not understand the substance of this proposed amendment to be a complaint made by the special advocates at all. My view is that the way in which judges are trained and apply themselves to their cases does not require an elaborate amendment of this kind.

[Lord Elystan-Morgan]

My Lords, the motivations behind this amendment are, I have no doubt, noble, honourable and sensitive. I greatly respect, therefore, the arguments put forward by the noble Lord, Lord Dubs. I respectfully tend to agree with the noble and learned Lord, Lord Lloyd, that it may well be that there is a case for having what is almost a jury situation. In such a situation—again, bearing in mind that juries very seldom operate in civil cases—we would not normally have a jury in any event, but the real problem is, I think, a much deeper one.

Imagine a judge having to determine the fundamental issue of whether this matter is to be dealt with by way of a secret hearing. Does he look at the prose of the application by the Secretary of State or the affidavits? Does he look into the eyes of learned counsel to see whether there is a burning sincerity in the face of the counsel for the claimant or whether there are doubts genuinely registered in the face of the counsel for the defendant? Is the judge not placed in a situation that is virtually impossible?

To a large extent the question of a special advocate under Clause 5 and, I would say, to a limited extent the appointment of a special counsel under Clause 8, will deal with part of that. There will be a totally independent advocate, but an advocate, however brilliant, forensically skilled and eloquent, can be only as effective as the ammunition that he has at his disposal, which is the correctitude of certain facts that are relied on by a party. If that estimate, however genuine, is wrong, then the decision of the learned judge must be utterly fallacious. How do you deal with that situation? I harken back to debates that we had some years ago in relation to a criminal situation and PII. It seems to me that there is a very strong and unanswerable case for a special investigator operating under the special advocate. It does not seem from my reading of Clause 8 that there is any power for the special advocate to appoint such a person. However, the fairness of the situation will depend entirely on the assiduity with which some other person or body would be able to examine these sensitive facts. That person must be someone in whom the community has total confidence in terms of confidentiality and secrecy but also their competence to bring to the attention of the court that vital element of the correctitude or otherwise of those facts.

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[Baroness Kennedy of The Shaws]

My Lords, I agree with my legal colleagues in this House about the need for gisting as a step towards creating greater fairness. In my view, there has to be an obligation to disclose because the detainees in these cases—I have acted in them—are deeply disadvantaged. The noble Lord, Lord Pannick, has described powerfully the bewilderment and disappointment in detainees when an order is made against them, but they have not understood the case against them. I shall give an example because sometimes that helps us to root our understanding of why something might matter.

I took a case where a young man was to be deported on the grounds of concerns about national security. The gist of the case against him suggested that he had been present at a meeting in a house he shared with many other students at which discussions were held that were of concern to the authorities. Because the gist of the case was offered to us, it was possible to show that at the time the meeting took place the young man had been using a computer that was linked to the university in order to work on his thesis. The interactivity showed that he had been involved in quite complex, difficult work on his computer, which meant that he could not have been participating in and party to the meeting taking place in the house. That was one of the features of the case that made a real difference, but we would not have known about it if the gist had not been given to us. The force of something can only be brought home to those not involved in these cases by the use of a real example. The noble Lord, Lord Pannick, described people sitting in the court and being mystified by the process. That drives home just how unacceptable it can be.

I strongly urge that we do this least thing in trying to address the concerns about the whole business of closed material proceedings.

[Lord Carlile of Berriew]

My Lords, perhaps I may take a few moments to make four short points in support of Amendment 62, tabled in the name of my noble friend and the noble Lord, Lord Pannick. Gisting presents great advantages, above all of which, in a headline, is the advantage of fairness. First, it compels the Government’s advocates to focus on the real reasons for pursuing their particular point. Using the very good example cited by the noble Baroness, it enables them to see where they are wrong because an answer can be given if the gisting occurs. Secondly, it shortens the proceedings. If the gist is given, there have been quite a number of cases where the individual has seen that it is not worth opposing the application because he knows perfectly well where he was or what activity he was engaged in at a particular time. Thirdly, it is a fair process, or at least it is as close to a fair process as we are going to be able to achieve when dealing with national security. My fourth reason for supporting Amendment 62 relates to the other words in it which do not deal with gisting of itself. It concerns the ability,

“to enable the excluded party to give effective instructions to his legal representative and special advocate”.

I know that this is going to arise a little later too. To improve the procedure for arrangements to be made under the rules of court, it is absolutely essential for the individual to be able to give instructions to special advocates just as they can give instructions to their own counsel.

I think that this three-line amendment covers a multiplicity of issues and should be supported. I hope that my noble and learned friend on the Front Bench will see the sense of it.