Detainee Inquiry

Debate between Lord Clarke of Nottingham and Lord Tyrie

Thursday 19th December 2013 Commons Chamber

[Mr Clarke]

I have the greatest respect for the right hon. Gentleman and I have considerable sympathy with him for the frustrating personal position in which he finds himself. There has been briefing around this matter and allegations have been made, and he has had no opportunity of appearing before Sir Peter and giving evidence, which he was anxious to do, and helping Sir Peter and the panel establish what actually happened during the period in question. He will now have the opportunity to do so when the ISC looks into these matters. Obviously, I cannot give any opinion on the issues the right hon. Gentleman raises because they relate precisely to what we are trying to get someone to investigate and reach a conclusion on, but it is certainly the case, as Sir Peter’s report makes clear, that one of the issues that will have to be looked at is whether Ministers were properly informed in full about what was going on and what necessary ministerial authorisation there was.

I also share the right hon. Gentleman’s final sentiment. I hope that all Members agree that we want the toughest and most effective intelligence services we can get and that we want our intelligence services to be at least as effective as those of any other nation. But we are a democracy and we also want to know that what they do is proportionate, complies with essential ethical standards and is authorised by a Minister, and that all the activities are carried out by people who are accountable to the Ministers responsible and to Parliament as well, when possible. That is the conclusion I hope we will eventually reach.

[Mr Andrew Tyrie (Chichester) (Con)]

The security services do a great job and they deserve our support, but I do not think this statement will help them. It is truly shocking that Britain has facilitated kidnap and torture, and the decision to abandon this judge-led inquiry will, I think, come to be seen as a mistake. Does the Minister agree that it is as essential for the standing of the intelligence services, on whom we depend, as it is for the wider public that we get to the truth about the extent of Britain’s involvement, as only that way can we restore trust? The Minister has said that the ISC will complete this work, but what confidence can the public have in its conclusions when that same body wrongly concluded that Britain was not involved in 2007, only to be flatly contradicted by a High Court ruling the following year? Is it not the case that the ISC’s new powers about which we have just heard are in any case heavily qualified—papers may be withheld on grounds of sensitivity and the ISC’s remit on operational matters is only permitted in certain circumstances?

[Mr Clarke]

First, I share my hon. Friend’s determination that we get to the truth of these matters and that they are investigated. Indeed, I share his concern that anybody from the United Kingdom should be involved in unlawful rendition, and I used to support his campaigns when we were both in opposition. I disagree with him about the way we are progressing now. The judge-led inquiry cannot proceed with taking evidence from people and publishing evidence alongside continuing police investigations which may or may not lead to some further criminal proceedings if anyone is eventually prosecuted. The question is do we, frustratingly, just continue to wait—I think it is more than three years since the Prime Minister made his statement—or do we seek to demonstrate that we really have now got a parliamentary Committee with the powers and authority required to do the job and report back to this House and the Prime Minister on its findings and recommendations?

I am sorry that my hon. Friend is dismissive of the Committee’s powers. He took part in the debates last year. We have considered them and the Committee has far more powers than it previously had. One of the things it will be looking at is how, when the previous Committee investigated treatment of detainees and rendition, it did not appear to have been supplied with information that was in fact being shared with others inside the Government and which had been assembled by the agencies for their own use. I think it is highly unlikely that that will be repeated and I think the present Committee can be relied upon to use the powers to demand papers and to go to the offices and look through the records of the agencies in order to revisit its conclusions on those matters.

Justice and Security Bill [Lords]

Debate between Lord Clarke of Nottingham and Lord Tyrie

Monday 4th March 2013 Commons Chamber

[Mr Andrew Tyrie (Chichester) (Con)]

I am very grateful indeed, in the circumstances, to the Minister for giving way. Did I hear him correctly? Perhaps I will give him the opportunity to correct the suggestion, which I think he pretty much made a moment ago, that the remaining opposition to the Bill has been got up by a few human rights lawyers. Will he explain, which he has still failed to do, why the only people who really understand the system—the people who have experience both of PII and CMPs; that is, the special advocates—have concluded absolutely clearly and unequivocally:

“The introduction of such a sweeping power could only be justified by the most compelling reasons and, in our view, none exists.”?

[Mr Clarke]

I do not think that I would conceivably use the language that my hon. Friend tries to attribute to me. Human rights Members are fervently opposed to the whole idea of CMP. They are extremely able lawyers and draftsmen. I am left in wonder and admiration at their ingenuity in producing an endless procession of amendments, so that every time their principles are adopted by the Government in amendments at various stages, a fresh set of amendments is tabled introducing new concepts that are designed to elaborate on the process. That is enough praise for my opponents, but it is ingenious.

We are not putting in the Wiley test, because we have three perfectly effective tests and complete discretion for the judge anyway. The Wiley test is used for PII, which is a quite different process that tries to exclude the evidence entirely from the judge, the claimant, the lawyers and everybody. PII is an application for total silence. We do not need to put the test in for that.

Amendment 31 is more difficult, as it requires that a CMP may be used only as a last resort. The circumstances I have described are getting pretty near to the last resort. We expect only a handful of cases, because we do not think our intelligence agencies will be sued very often. They are strictly enjoined to follow the principles of human rights, and not to connive at torture and everything else, but we do not know, and the conditions we have applied make it clear that we will only ever have CMPs in national security cases, unless a future Government try to relax them.

The trouble is that the last resort argument will undoubtedly be used for going through the whole PII process before starting on CMPs, and there are some people who want to do that. They say that they do not like the fact that the Secretary of State has to consider an application for PII. They want the Secretary of State to go through the whole process. They do not like the fact that the court has other tests for going to a CMP. They want the court to go through the whole PII process before it gets there. Why? Because it could take months or years. The Guantanamo Bay cases had hundreds of thousands of documents—it is a very elaborate process.

Justice and Security Bill [Lords]

Debate between Lord Clarke of Nottingham and Lord Tyrie

Tuesday 18th December 2012 Commons Chamber

[Mr Clarke]

Let me just explain. All of this is relevant.

Some of our critics appear to be arguing decisively that the status quo is somehow defensible and should continue, but I believe that that position is untenable now. It is simply not possible for a judge to hear these matters, and, as was pointed out by the right hon. Member for Salford and Eccles (Hazel Blears), all kinds of insinuations are made about cases in which it ought to be obvious to everyone that the intelligence agencies were in no position to call any evidence that would seriously address the issues.

The serious evidence that might be called and might be relevant—I am not commenting on the merits of any individual cases—might relate to the precise nature of the British intelligence agencies’ involvement in the issues concerned. What did our agents know about either an individual or an organisation at the time when the events being described were taking place? What collaboration was taking place between the British Government and partners in overseas agencies, and what information was being shared? Those are all very sensible questions, given the nature of some of the claims that have been made about the behaviour of British agents.

As I have told the House before, I do not think that any country in the world would tolerate a legal system in which our spies and our agents and their collaborators cheerily appeared in open court, in front of the parties, their lawyers and the press, and gave evidence on these matters. It would be exceedingly damaging. Public interest immunity, on which people now rely, has one obvious defect. If a Minister obtains it, that means that the material is entirely excluded from the court, and neither party can rely on it.

What continually happens, certainly in relation to defence evidence, is that—although there has been no proper hearing of all the evidence—the parties settle, the taxpayer pays up, claims are made which are damaging to the reputation of the service and no one knows whether or not they are justified, and we have to move on from there. I want us to reach a point at which cases are not being settled simply because our court procedures are not capable of allowing sensitive national security material to be heard in the few cases in which it is plainly relevant. It has always been obvious to me that what is needed in civil actions of this kind is the very limited use, in exceptional cases, of the closed procedures that were created by the last Government, which would enable a High Court judge to consider all the evidence from both sides, but to do so in necessarily closed conditions if national security was at risk.

[Mr Andrew Tyrie (Chichester) (Con)]

What inference does my right hon. and learned Friend think the public will draw if the Government win a case involving the closed material procedure in which the other party has had no chance to see or challenge the evidence—secret evidence—that the Government have introduced in support of that case?

[Mr Clarke]

The inference I would draw is that at least a judge, doing the best that he or she can, has had a chance to consider the evidence, and has delivered a judgment. If the judge is not allowed to consider the evidence, obviously no useful judgment can be pronounced at the end of the case. Of course it would be very much better if the evidence were given in an open procedure—in normal cases, the openness of justice is one of the proudest boasts of our system—but in cases in which national security will be jeopardised if evidence is given openly, it must be ensured that the evidence can be given in the best possible circumstances in the light of the obvious limitations of the case.

British judges are quite capable of deciding whether or not national security is involved. British judges do not need us to lecture them on the rule of law and the duty to be impartial between the parties. British judges will want to hear evidence openly if they think that that can possibly be practicable. British judges will be able to judge—they do it all the time—the weight to be given to evidence. Once the judges discover who was the source of the information, people can be challenged about the reliability of that source. Of course the system is not ideal—if we could only persuade all the country’s enemies to close their ears, there could be a perfectly ordinary single-action trial and we could hear everything—but I believe that the Bill will move us from what is currently a hopeless position to a better position that will allow us to hear the judgment of a judge in appropriate cases.

--- Later in debate ---

[Mr Clarke]

The time has come for reform. The present system is not defensible, in my opinion, and my hon. Friend confirms that all kinds of features of PII are hopelessly unsatisfactory. We have to deal with them.

Let me move on—

[Mr Tyrie]

Will my right hon. and learned Friend give way one last time?

[Mr Clarke]

I keep giving way one last time, so, with apologies to my hon. Friend, let me turn to what I think is the subject matter of the serious debate that has been taking place since we consulted on the Green Paper.

It was our intention from the start to consult on the Green Paper. As what we are doing goes to the fundamentals of our legal system and our rule of law, we actively sought the widest possible support for what we are doing. Even before the Bill was introduced and before it went through the Lords, we narrowed its scope to make quite sure that CMPs could be made available only when disclosure of the material would be damaging to the interests of national security. Green Paper language that slightly implied that the police, Customs and Excise and all sorts of other people might start invoking them has gone completely away. We removed the Secretary of State’s power to extend the scope of the Bill by order, and excluded inquests after a campaign led by the Daily Mail got widespread support in this House. As I have already said, we never even contemplated that our proposals should cover criminal cases.

We also conceded—this is the key point, which I think we are still debating with most of the critics—very early on, after publishing the Green Paper, that the decision whether to allow a closed material procedure or not should be a matter for the judge and never for the Minister. That is an important principle and it is what most of the arguments, even about the JCHR’s amendments, are all about. We have all, I hope, now agreed that it is a judge’s decision whether or not to hold closed procedures. The question is how far we need to keep amending the Bill to clarify this and how we avoid unnecessary consequences if we overdo it. I shall return to that.

That is what most of the debate was about in the House of Lords and it is the point of the JCHR’s report. When it came to a Division in the House of Lords on the principle of closed material procedures, the Government had an enormous majority. The Labour party did not oppose the principles of CMP, even though it was a Back-Bench Labour amendment which the other place voted down. I trust that the Front-Bench Labour team and the right hon. Member for Tooting continue to be of that opinion. Unless his undoubted radical left-wing instincts have got the better of him, I do not think that is the position of any party in this House.

The concern of the House of Lords and of the JCHR was that the judge should have a real and substantive discretion about whether a CMP is necessary in any case. Many Members of the upper House made their support for CMPs contingent on changes being made to increase judicial discretion and ensure that it was clear on the face of the Bill that CMPs would be used only for a very small category of exceptional cases.

I begin by making it clear on behalf of the Government that I agree that the judge should have discretion. I agree that we should be talking about a small number of cases where any other process is impossible and it is necessary for it to be handled in this way. A strong and compelling case was made by those who argued that we ought to trust our judges to decide the right way to try the issues in any particular case. I agree. The debate—I suspect it will be the same debate today as it was in the House of Lords—starts from the fact that the Government’s case is that the Bill as it stood already accepted that principle. As we were defeated, we will consider what more we can do by way of reassurance. People are deeply suspicious of anything in this area and they are convinced that, despite what we put in the Bill, the judge will somehow be inhibited by what the Government propose to do.

Our judges are among the finest in the world. They are staunch defenders of the rule of law, and they have shown time and again that they can be trusted not to endanger the national security of this country. I know that they can be—

--- Later in debate ---

[Mr Clarke]

I close my case, as they say; there is no need for me to carry on addressing the House about Norwich Pharmacal. We wait to hear what points might be raised about it.

I move on to part 1 of the Bill, to which I think the House should have much more regard. It deals with the important issue of parliamentary oversight of our security and intelligence agencies. I suggest to both sides of the House that if we wish to be reassured about the accountability of our security services and really try to guarantee to ourselves that they are not misbehaving, we should look to stronger parliamentary oversight as well as to more accountability to the courts.

It is time to put the Intelligence and Security Committee, chaired by my right hon. and learned Friend, on a much stronger footing and to enhance its independence to strengthen the valuable work it has done so far. We have to give Parliament more effective oversight of the intelligence and security agencies.

The ISC operates within arrangements established by Parliament in 1994, but the nature of the Committee’s work has changed dramatically. In the past 18 years, particularly since 9/11, the public profile, budgets and operational demands on the agencies have all significantly increased, but there has been no change in the statutory arrangements for oversight. In the past, the ISC has overseen operational matters but has done so relatively infrequently and generally at the direct invitation of the Prime Minister. The ISC has no statutory powers to oversee such matters. Its statutory remit is also limited to oversight of the security and intelligence agencies, although it has long heard evidence from the wider intelligence community.

At the moment, the Prime Minister receives its report and appoints its members. Currently, the heads of the security and intelligence agencies are permitted, in certain circumstances, to withhold information from it. We can certainly improve on that. We need to give the ISC greater teeth to ensure that we can continue to have confidence in those who oversee the agencies on our behalf.

The Bill provides that the ISC will in future be able to oversee the agencies’ operations, within appropriate constraints. The Committee will also in future report to Parliament, as well as the Prime Minister. Its members will be appointed by Parliament, after nomination by the Prime Minister. The power to withhold information from the ISC will move from the agency heads to the Secretary of State responsible for that agency—a Minister accountable to the House. It will be a parliamentary Committee. We are greatly strengthening our powers to hold accountable those who do such vital work for our country.

[Mr Tyrie]

My right hon. and learned Friend said that the Intelligence and Security Committee will henceforth be accountable to Parliament. Will he be prepared to consider the proposals of the Wright Committee on parliamentary renewal—that the Chairman of the ISC should henceforth be elected by a secret ballot of the whole House, subject to a veto by the Prime Minister at the nomination stage? That was accepted unanimously by the Wright Committee and it has won widespread support. It would greatly enhance the credibility and sense of independence of the ISC Chairman.

[Mr Clarke]

I have the greatest respect for the Wright Committee and we will consider the matter further, although I am not instantly attracted by that proposal. We are moving to a situation in which the Chairman of the ISC will be elected by the Committee and the Committee itself will be elected by the whole House from a list approved first by the Prime Minister. On reflection, I think that the problem with a system whereby the House could elect whoever it liked, subject to a prime ministerial veto, is that it would be an Exocet that was hugely embarrassing to use. It is not impossible—I hope that it is not too fanciful—to envisage a case where the security services have satisfied the Prime Minister that there is some problem with a particular Member of this House of which the wider world is completely unaware. [Interruption.] That is not unknown; I am sure that it has happened in the experience of the right hon. Member for Blackburn (Mr Straw). The idea that the Prime Minister must suddenly issue a veto on the result of an election carried out in this House is probably a step too far, and I think that my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind), the Chairman of the ISC, agreed with me when we discussed this very matter not too long ago.

Detainee Inquiry

Debate between Lord Clarke of Nottingham and Lord Tyrie

Wednesday 18th January 2012 Commons Chamber

[Mr Clarke]

I am grateful for that view and for the right hon. Gentleman’s support because I keep trying to assure people that there is no conspiracy here. The Government actually want these things to be properly investigated and want the full facts to be shared with the general public so far as they sensibly can be, consistent with the interests of national security.

[Mr Andrew Tyrie (Chichester) (Con)]

It was widely held that the Gibson inquiry’s approach to the investigation set out in the protocol and in the interpretation of the terms of reference was defective in a number of important respects. I have brought those to the attention of the Government already and have discussed them in correspondence with the Prime Minister, as my right hon. and learned Friend will know. In particular, there was no intention to cover detainee transfer in theatre and no intention to appoint an investigator or even to try to investigate all the cases of credible allegations brought forward. Will my right hon. and learned Friend undertake to review fully all these aspects of the Gibson inquiry’s proposed work so that we can rectify these defects when an inquiry reconvenes?

[Mr Clarke]

I will continue the conversations I have been having with my hon. Friend and others about the basis on which the Gibson inquiry is proceeding. I have been trying to persuade people to be more co-operative with the Gibson inquiry, but I am also quite happy to listen to points that people make to me about why they have reservations. The Government wanted to proceed with the Gibson inquiry on the present terms of reference and would have done so if we had not had this final delay. We have more time to consider the matter, although we did not want more time, and I am happy to discuss these matters with my hon. Friend and others again.