Justice and Security Bill [Lords]
Debate between Lord Clarke of Nottingham and Guy Opperman(11 years, 11 months ago)
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Mr Clarke
Constitutionally, I will respect the Scottish Government’s position. If they think that Scots are not ready for decisions in these cases and wish everything to remain shrouded in secrecy and mystery, so be it. That is a matter for the Scottish Government. It seems to me that would be the result if they will not move with what I think is the obvious response to the needs of recent cases.
To return to the detailed amendments, let me explain where my reservations come from. The House of Lords decided to get carried away with the discretion. I have already accepted the widest discretion, but they then wanted to start setting out in the legislation factors that the judge ought to take into account. We are considering that, and I can assure Members that there will be a response in Committee. The Lords obviously do not trust judges as much as I do, because they wish to start setting out factors. However, if we set out factors in the legislation, they must be the right ones. If they are not, they can give rise to other problems.
For example, some of the amendments made in the House of Lords—I am leaving aside whether some of them are necessary—would require the judge to consider and exhaust alternatives to closed material proceedings in every case in order to prove that the case could not be tried in any other way. It sounds attractive, but in some cases it would be obvious to the judge from the start that a closed material procedure was necessary. As the independent reviewer of terrorism litigation, David Anderson, explained to the Joint Committee on Human Rights,
“there is no point in banging your head against a brick wall… if the exercise is plainly going to be futile.”
In the Guantanamo Bay cases, which provoked the need to address the law and bring forward this reform, the court would have had to consider about a quarter of a million documents before determining the PII application and moving to a CMP. It would have had to consider a quarter of a million documents before moving beyond a preliminary issue. When I was Home Secretary I certainly issued PII certificates for intelligence material. In the arms to Iraq inquiry, I am glad to say that the judge confirmed that I had done what I was supposed to do: I had read every document—they were brought to me in boxes and put on the floor and required a whole day to consider. The Guantanamo cases would have required a full-time Minister to do nothing but wade through the PII certificates for months and months before the application could be made and further progress could take place. In some cases, the delay of going through that process could have detrimental impacts on other people affected by the issues in the case awaiting judgment.
Equally, all parties might consent to a closed material procedure. If they consent, should the judge still be required to go through the time-consuming PII process? In the Maya Evans case, all parties consented to a closed material procedure as the only way to try the issues. The ruling in that judicial review case, which was with special advocates, changed Government policy on detentions in Afghanistan, directly affecting ongoing Government actions. Delays in that case to consider alternatives to closed material procedures could have meant that more individuals were exposed abroad to a policy that the court ultimately concluded was unlawful.
I will give an indication of why I will not give a blanket assurance that we will accept all the House of Lords amendments. I do not think that the problems were properly considered, and we will bring forward the products of our thinking in Committee. As I have said, we continue to debate the powers the judge should have once a closed material procedure has been granted. Under the Bill, the court will have strong powers to require gisting, redaction and summaries. In particular, the Bill sets out—it is probably unnecessary—that to ensure a fair trial under article 6 of the European convention on human rights, the court can order disclosure of material notwithstanding the damage that would be caused to national security. In that situation, in order to disclose, the Government would have the opportunity, as they currently do under PII, to seek to bring an end to proceedings, or an aspect of proceedings, in order to avoid damage to national security. If the Government do not disclose material or elect not to provide a summary of material, the court can order the Government not to rely on it or to make concession or such other steps as the court might require.
In brief, the Bill leaves it to the judge to decide what is necessary in any particular case, rather than seeking to impose disclosure requirements or to fetter the judge’s discretion in deciding whether to have a closed material procedure. I think that we should reflect on that in Committee. Let us not go into Committee with everyone saying, “What the Joint Committee on Human Rights has said is necessarily right and we will support the Bill so long as we sign up to that.” I think that some of the JCHR amendments raise serious issues that should be debated properly in this House and which the Government must be allowed to exercise their judgment on before reaching a final decision.
Guy Opperman (Hexham) (Con)
I conducted in excess of a dozen PII trials as a criminal barrister. Does the Minister accept that there is a fundamental difference between what he is proposing and the procedures under PII?
Oral Answers to Questions
Debate between Lord Clarke of Nottingham and Guy Opperman(13 years ago)
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Mr Clarke
I am extremely grateful to Louise Casey for the work she did and the discussions I had with her while she was in office. I find the hon. Gentleman’s question amazing. The post of victims commissioner was created by Act of Parliament in 2004, but the previous Government failed to appoint anyone for five years and a fresh statute was introduced to revise the post in 2009. Louise Casey was appointed in early 2010. We are reconsidering—again—the basis on which we make the appointment, but to be accused of tardiness by someone who was in the last Parliament is positively farcical.
Guy Opperman (Hexham) (Con)
6. What assessment he has made of the causes of reoffending. [R]
Oral Answers to Questions
Debate between Lord Clarke of Nottingham and Guy Opperman(14 years ago)
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Mr Clarke
No, it has always been the case that some people are held indeterminately, and certainly those on life sentences. The purpose of IPP sentences was to have a sentence below a life sentence for dangerous people for whom life was not quite justified. The right hon. Gentleman will accept that such sentences never worked as intended, which is why, when he was Secretary of State, he introduced an Act of Parliament to try to correct some of the mistakes that had been made. We are now considering how the sentence works in practice, and we will introduce considered proposals in due course.
Guy Opperman (Hexham) (Con)
2. What proposals he is considering to increase the level of efficiency in the administration of justice.
Legal Aid and Civil Cost Reform
Debate between Lord Clarke of Nottingham and Guy Opperman(14 years ago)
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Guy Opperman (Hexham) (Con)
Given the restrictions that will apply in relation to education funding, can we be clear that there will be no legal aid funding, in whatever way, for special educational needs provision or other forms of education work?
Mr Clarke
Not normally, unless in an exceptional case we are under a legal obligation to provide legal aid. Education cases include all kinds of things, such as litigation regarding exclusion of particular pupils, and whether someone has been granted a place at the school of their children’s preference and so on. All such disputes can be litigated. The special educational needs cases are the most difficult. I repeat what I said before: these are educational problems, and there should be a process of resolving them that does not involve going all the way through the courts. I heard that the Supreme Court was hearing a special educational needs case. Although I am sure it came to the right decision, I am not sure whether it was the best way to resolve the problems of how to educate a particular child with particular problems.