Justice and Security Bill [HL]

Lord Dubs Excerpts

Wednesday 21st November 2012 Lords Chamber

Moved by

[Lord Dubs]

45: Clause 6, leave out Clause 6

[Lord Dubs]

My Lords, in the earlier debates this evening, we discussed the CMPs at great length. As I said in passing, many of the arguments against or seeking to modify the CMPs could easily have ended with a move to abolish them altogether. So in one sense, the case has already been made, except that I have to go back over it briefly. We are talking about probably the most fundamental aspect of the Bill: whether or not we should have anything like CMPs on our statute book at all.

CMPs represent, as was said earlier, an absolutely fundamental change in our judicial system—more fundamental than, perhaps, was fully appreciated. For the things that will fall under CMPs, it is the end of our adversarial system, when judges will no longer have to hear both sides of an argument in order to come to conclusions. It has been said by people who are more expert than I that if you take away one side, then injustice is virtually guaranteed. Our adversarial system depends upon two sides: two parties. Without that, our system can hardly be assured of providing justice. Indeed, it may well not do that at all.

We are, after all, talking about 350 years of applying a principle and doing this in practice. If we depart from such a fundamental principle, we are damaging our basic freedoms. It means that citizens can no longer challenge the powers that be in court and be heard openly in doing so. It takes away one of the most fundamental rights of the British citizen: that they can go to court, that they can challenge authority and the powers that be. That will no longer be possible.

Indeed, this will tarnish the reputation of British justice. I understand that at least one newspaper in Russia has already commented—approvingly or not, I do not know—that these proposals will provide secret courts. Maybe the Russian paper thought that that would be a good idea, or was seeking to justify something in that country. Certainly, however, if other countries are already commenting before we have even passed the legislation, we ought to be pretty careful about it.

Of course, as has been said before, the system will work on whispers. The Minister or the Government will whisper to judges and the decisions will be made accordingly. Indeed, David Anderson QC, the independent reviewer of terrorism, who has often been quoted this evening, has said that these measures cannot be justified on security grounds. He had other reasons for justifying them in terms of cost or not paying people money, but, on security grounds, he did not think that they could be justified.

One of the concerns, which has been expressed quite frequently, is that if you give a Government powers, even on a limited basis, they will inevitably start using them more widely. This is no disrespect to any Minister—it is simply the way the system works. We can all visualise a civil servant saying to a Minister, “Well, Minister, you know you do have the powers to do this, and they’re on the statute book”, and the Minister will say “Hmm, I forgot that”, and then “Can I get away with it?”, or “Will Parliament notice?”, or words to that effect. This is how Governments of all colours work. We therefore have to be careful that when we give powers that are intended to be limited, they will inevitably be used more widely. The special advocates themselves—all those consulted in a survey, which was almost all of them—said, I believe, that this whole idea was “incurably unfair”.

I want to give one example. I have lots of them, but I do not want to trespass on the time of the House too much. I have a document here which was in fact produced by the Ministry of Defence in court, so I am not giving away any secrets, though it was headed “Confidential” before it went into court. It is produced by an organisation called the United Kingdom Detention Oversight Team, or UKDOT. Its job is to visit detainees in Afghanistan who are held by the Afghan authorities. I will quote from this document, because it came out in court because we did not have CMPs. If we had had CMPs, it is almost certain that none of this would have been known. The document is headed “Electric Flex-Redux”.

“The team arrived. On arrival we interrupted an interview (we conduct our interviews in one of the two interview rooms) which caused the interrogator and prisoner to vacate the room in haste to accommodate the UKDOT. In the interview room we found on the floor behind the interviewer’s desk the same UK socket electric flex the UKDOT had seen on a previous visit”—

It refers to the visit in September and then continues:

“We took a photograph of the flex (see photograph) and after a few minutes a guard appeared and, in an uncomfortable silence, removed the flex: no explanation was offered and, for fear of causing a scene, none was asked for”.

I have here a photograph of the flex lying on a carpet. There may be an innocent reason for this, and this is not an investigation of how this operated. The point is, this would never have come out if we had had the legislation that the Government wanted. Therefore, I argue that the CMPs would help cover up things that we ought to know about. It would not have come to light if the CMP had been in use at the time.

I will conclude with the following. I was a member of the JCHR some time ago, when we produced the first report on these proposals, although I was not a member when it produced a second report. However, both reports have a number of things in common, one of which is that they said that the Government had produced no evidence to substantiate the use of CMPs. In the end, that is the most crucial argument. We are stumbling along, setting a very dangerous precedent, as far as our judicial system is concerned, and we are doing it without the evidence that would justify such a dramatic and drastic change. All we have is the say-so that there are a number of cases in the pipeline—and I do not doubt the Minister’s good will—which might or might not come under this system, and which might or might not contain something important that would be revealed if we did not have CMPs. No evidence produced by Government could justify this major piece of legislation. I beg to move.

[Lord Strasburger]

My Lords, when I spoke to your Lordships’ House on Second Reading, I highlighted how the injection of closed material procedures into our civil justice system would infect it with unfairness and corrupt it with secrecy. Currently, the British people hold their courts in high regard, and respect their decisions. This is partly because our judges are seen as incorruptible, independent and wise, but the main reason is that court decisions are the result of a fair and transparent process. In an adversarial system such as the English one, the right to know and challenge the opposing case is not merely a feature of the system—it is the system.

Judges do not have the resources or power to investigate the merits of the case themselves. They depend upon the process in which both sides assemble and present their evidence, and then challenge each other’s cases. They then judge which case is the stronger in the light of those mutual challenges.

The Government have stated that,

“protecting the public should not come at the expense of our freedoms”.—[Official Report, 19/6/12; col. 1660.]

This seems to be precisely the cost that the Government wish to exact in the name of greater security. In fact, the Bill does very little to provide the public with greater security, while giving an unacceptably high level of protection to the security services from exposure of their alleged wrongdoings by the civil courts.

The Government would need to advance the most persuasive reasons to justify such serious damage to our civil justice system. They have completely failed to do so. That is the conclusion that the Joint Committee on Human Rights came to. It stated:

“We remain unpersuaded that the Government has demonstrated by reference to evidence that there exists a significant and growing number of civil cases in which a closed material procedure is ‘essential’”.

Listen to the clear opinion of the special advocates, the government-appointed lawyers who spend much of their time working at the coalface in this dark and murky part of our legal system. A memorandum about the Bill, which was signed by 59 out of 67 of them, states that,

“the Government would have to show the most compelling reasons to justify their introduction”,

referring to the CMPs. It went on to say,

“that no such reasons have been advanced; and that, in our view, none exists”.

The Government have completely ignored this highly authoritative condemnation of the need for the Bill. The only comments that I can recall are an admission by the former Lord Chancellor that,

“the evidence of the special advocates most unsettled me”.

But he has done nothing to correct his unsettled condition and I presume that he is still unsettled, as I am.

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[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, this has clearly been an important debate with passions expressed on both sides of the argument. Following the votes that we have already had —on amendments which my right honourable friend the Deputy Prime Minister was talking about; the House has had an opportunity to consider the amendments emanating from the JCHR report—the Bill looks very different from that which arrived on Report. The CMP process has now altered with the wishes already expressed by this House. I therefore urge noble Lords not to remove these clauses altogether after such time has been taken to scrutinise and amend them. My noble friend Lord Lester summed it up very well: there is no point in spending a long time before the Dinner Break putting these safeguards, as he described them, into the Bill, only to simply take them all out after the Dinner Break.

[Lord Dubs]

Is the Minister saying that the amendments we passed this afternoon will not be reversed in the Commons?

[Lord Wallace of Tankerness]

This is the Bill as the House has now passed it. The House has accepted that CMPs are needed. The Government will and should properly reflect on the steer that this House has provided as the Bill moves to the other place. Crucially, we believe that closed material proceedings are absolutely necessary and are, indeed, a significant improvement on the current system.

I am not going to rehearse all the arguments that we have been through on a number of occasions. I will just pick up one or two points that were made in debate. The noble Lord, Lord Dubs, talked about a system of “whispers”. The closed part of the proceedings will not be a cosy chat between the judge and the government lawyers. The non-Government parties will be excluded from the proceedings, as will members of the public, but the interests of the excluded parties will be represented by special advocates, about which I will say a word in a moment. In other words, the closed proceedings will look much like open proceedings in that they will have counsel for the Government and counsel who are special advocates representing the interests of the excluded party and making submissions to the judge.

I understand the concerns that are expressed about the special advocate, but it is also fair to say that the special advocates themselves sometimes underplay their own abilities. The noble and learned Lord, Lord Woolf, said that he has read the transcripts in the case of M v Secretary of State for the Home Department, and had been impressed with the openness and fairness with which the issues in closed session were dealt with by those who were responsible for the evidence in that case before the SAIC. He went on to say that while the procedures that the SAIC adopts are not ideal—no one is pretending that this is a perfection of justice or making that argument—

“it is possible by using special advocates to ensure that those detained can achieve justice and it is wrong therefore to undervalue the SIAC appeal process”.

The noble Lord, Lord Dubs, also referred to what he said were “cover ups”. This was echoed by a number of contributors to the debate. This completely misunderstands the whole purpose of closed-material proceedings. I share the view of those who have expressed in these debates that they abhor torture. The Government abhor torture. The Government do not condone it, and nor do they seek others to conduct torture on their part.

My noble friend Lord Thomas said that we should assume a case where there has been malfeasance on the part of someone acting on behalf of the British Government. The point is that if there were such as case, it is important that these issues are properly considered and investigated. The point under the present situation, with public interest immunity certificates, is that if public interest immunity is successfully asserted, none of that evidence will actually be before a judge. It is important that that evidence should be before a judge. It is important that there is fairness for the claimant, and there is not necessarily fairness for the claimant if the claimant has to settle because important information cannot be considered in open court and we have not allowed them the opportunity of closed material proceedings. While there may be some satisfaction in getting a financial settlement, it might not be a satisfaction if you have indeed been wronged and do not have a court judgment to confirm that. It is not only the security services, on which we have perhaps focused our debates, for which the present system can act unfairly. It is unfair, too, on someone with a just claim who cannot get it properly vindicated in the courts because evidence cannot be brought before them. That makes the point that that is also, as has been said, unfair to those who believe that they have a proper defence and cannot deploy it. In our first group of amendments today the noble Baroness, Lady Manningham-Buller, indicated that that has the effect of lowering morale in cases where people believe that they have done no wrong and they have a proper defence but cannot deploy it.

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No one has pretended that closed material proceedings are in fact as good as the open proceedings that have been the hallmark of our justice system. It has been said many times in these debates that imperfect justice is better than no justice at all. I therefore urge the House to reject the amendment in the name of the noble Lord, Lord Dubs.

[Lord Dubs]

My Lords, we have been over these issues a number of times this evening, so I shall confine myself to making some very brief points. Of course, everyone is against torture. It is abhorrent and criminal. We are all opposed to terrorism and will do nothing to weaken the security of our country. Had I not left my London residence late and had left at the usual time, I would have been going through Edgware Road on the day of the bombings. I therefore felt fairly close to that, although I was a quarter of a mile away at the time. I certainly would do nothing that would weaken our safety and security.

I do not think that there are widespread cover-ups in our society but there have been a number. We have had a number of inquiries which were intended to reveal to people what actually happened when there had been a suspicion of a cover-up and what happened when there had been a cover-up. Hillsborough is only one example and there are several. The argument is not so much that we are hiding cover-ups but that we should be open and transparent. People should see that there are no cover-ups. I fear that the CMP will make people feel suspicious about the integrity of our justice system.

I would like to use many arguments to rebut what the Minister said but the hour is late. I wish to test the opinion of the House.

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[Lord Taylor of Holbeach]

My Lords, I have a speaking note for this amendment and I will not take the risk of moving it formally because it adds a new clause to the Bill. I hope noble Lords will forgive me if I explain this quite lengthy and complex clause, although it is simple enough in its intention. It would allow intercept material to be adduced in closed material procedures in national security cases in employment tribunals.

Intercept material is excluded from legal proceedings under Section 17 of the Regulation of Investigatory Powers Act 2000, but an exception already applies in limited circumstances by virtue of Section 18 of that Act. The section lists those specialised proceedings, including the Special Immigration Appeals Commission and cases relating to terrorism prevention and investigation measures proceedings, where intercept material can be used in the closed part of the proceedings. It is the Government’s objective to find a practical way to allow the use of intercept evidence in court. Section 18 does not currently include employment tribunals, and the amendment seeks to change this. The change would enhance the effectiveness and fairness of employment tribunals, it would be consistent with the objectives of this Bill and wider government policy, and it will help protect national security. Perhaps I may take these issues in turn.

The first is consistency with the Bill and its effectiveness. By allowing intercept material to be adduced in a limited number of cases where such material may be available, the amendment would enable employers to defend claims, for example, for unfair dismissal with a broader set of evidence than is currently available. The ability to adduce intercept material in CMPs is consistent with the wider provisions of this Bill, in particular paragraph 9 of Schedule 2, which includes a provision for an amendment to Section 18 of the Regulation of Investigatory Powers Act to allow for intercept material to be admitted in any Clause 6 proceedings. This further amendment would bring employment tribunals in line with the small number of specialised civil proceedings in which the disclosure of intercept product is already permissible.

Perhaps I can now address the question of operational necessity. This amendment does not represent an academic exercise. There will be cases before employment tribunals where an employer is not properly equipped to defend its actions as it is unable to adduce the full breadth of material available. For example, there will be cases where the Government are defending a claim for unfair dismissal following the removal of a former employee’s vetting clearance. Currently, if the vetting is based on intercept material, it would not be possible to adduce that material in support of the vetting decision. The national security vetting system is designed to provide an assurance that those with access to sensitive information do not pose a security risk. It is very important that an assessment of the risk is made on the basis of all the relevant material, regardless of the source.

Where a decision is made to withdraw vetting clearance it is important to the integrity of the system that the decision can be maintained and is capable of being defended from legal challenge. Where intercept product or intelligence based on intercept is integral to the decision, its unavailability in employment tribunal findings could result in employers wrongly losing their case and an adverse impact on the national vetting system. Furthermore, departments may become reluctant to rely on information provided by the security and intelligence agencies for fear of not being able to defend decisions taken. It is also important that those bringing proceedings in employment tribunals can be confident that the tribunal has access to all the information on which a decision was made so that decisions can be properly examined.

I believe that the widening of the number of settings for a very small number of important cases in which intercept material can be considered should be welcome. I hope that noble Lords will see fit to support this important amendment. I beg to move.

[Lord Dubs]

My Lords, I do not dissent from the Minister’s reasoning, and indeed am grateful to him for explaining the issue. However, he has opened the door to a much wider issue that I want to touch on but not debate, because the hour is too late and this is not the Bill on which to do it.

The Minister will be aware that many noble Lords, including those of us on the Joint Committee on Human Rights, have for a long time been arguing that intercept evidence should be permissible in criminal cases as a way of bringing people to justice who otherwise cannot be brought to justice and have to be dealt with in other, less sensible ways, such as control orders, TPIMs and things like that. If the Government are so anxious to justify the use of intercept evidence in these instances, I wonder why we cannot take a step further and consider very seriously the use of intercept evidence in criminal cases where we would have a proper system of justice and where people who are guilty of offences, or thought to be guilty, could actually be brought to trial as opposed to being dealt with in the way that they are. This is a bit of a thin end of the wedge, but it is important and I would like to feel that the Government will think hard about it.

On the Joint Committee on Human Rights, we were on two occasions able to meet civil servants dealing with this, who always said to us that they were looking at it but that it was difficult. I can see it is difficult, because it is hard enough in this case and even harder in criminal cases. Will the Government consider looking seriously into the use of intercept evidence in criminal cases now that they have this as a very useful precedent?

[Baroness Hamwee]

My Lords, I will follow that by asking whether the Government are satisfied that the objections that they have told us there are to the use of intercept evidence in other cases do not apply in the case of employment tribunals. I have been listening to the introduction of this amendment, wondering whether I am in favour of it because I am in favour of the use of intercept evidence or against it because, presumably, the intercept evidence could be treated as closed material. I am rather torn on this, but the question that the noble Lord, Lord Dubs, raises is a very important one.

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Moved by

[Lord Dubs]

64: Clause 13, page 9, line 40, at end insert—
“( ) Section (Application for public interest immunity) applies in disclosure proceedings to which this section applies.”

[Lord Dubs]

I will be very brief. We now come to the Norwich Pharmacal issues: applications for public interest immunity. In this group there are two points to which I would like to draw the attention of the House. First, there is subsection (4) in Amendment 65, where we would exempt from open disclosure any matters that are the basis of,

“any agreement with foreign intelligence services that intelligence is shared confidentially and cannot be disclosed without the consent of the intelligence service which provided the intelligence”.

That is accepted in this amendment.

However, the amendment really seeks to say that there are certain domestic and international wrongs that should not be kept quiet or confidential. They are listed. They are matters of the utmost seriousness: genocide; murder; torture; slavery; cruel, inhuman or degrading treatment; child abuse; or,

“serious breaches of the Geneva Conventions”.

It is my contention that these matters are so serious that they ought not to be protected with confidentiality under the Norwich Pharmacal procedures, but that they should be made open and publicly known. If they are to be made open and publicly known, of course that fact in itself will possibly deter people from being involved in such criminal activities. I think that this is a worthwhile amendment. I beg to move.

[Baroness Kennedy of The Shaws]

I, too, feel strongly that this is an issue of some importance and I thank my noble friend Lord Dubs for raising it. I know that it is too late an hour for us to consider voting but, when these matters are taken up in the other place, I would really like this to be considered. In any consideration, one wants a judge to recognise that there are some things that basically cannot be covered even by national security or by any control principle that operates between intelligence services.

If we were to discover that there had been crimes of such an egregious nature, such as genocide, murder, torture, slavery, and all the most horrifying of crimes that we can document, and that those crimes would be covered by some kind of secrecy, that would be a source of great shame to us. That must be something that is taken into consideration when looking at ways of introducing new procedures into our courts. In the end, any consideration of such serious human rights abuses has to trump even issues of national security.

[Lord Wallace of Tankerness]

My Lords, I thank the noble Lord, Lord Dubs, for moving this amendment. We now move on to the Norwich Pharmacal part of this Bill. I thank the noble Baroness, Lady Kennedy, and my noble friend Lady Williams for their important contribution on an issue that, going by the earlier debate, is of considerable importance with regard to human rights and serious breaches of human rights.

The noble Lord, Lord Dubs, highlighted two points: one relating to serious breaches involving, for example, torture; and the other part of his amendment that relates to the control principle. To put this in context, the approach taken by this Bill is consistent with other legislation that has been passed by Parliament. For example, in the Freedom of information Act 2000, Parliament explicitly ruled out a right to access intelligence material; and the Evidence (Proceedings in Other Jurisdictions) Act 1975 and the Crime (International Co-operation) Act 2003 provide for exemptions from disclosure of evidence into overseas proceedings where such disclosure would prejudice the United Kingdom’s national security.

First, I will indicate why limiting the protection offered by legislation to the control principle, which I think is what the noble Lord was seeking to do, does not go far enough. We appreciate that it is important that this is recognised and, of course, as has been said numerous times in our debates, it is essential that the originator of the material remains in control of its handling and dissemination. However, it is often the fact as well as the content of the sharing arrangements that needs to be protected. Certifying information as subject to a control principle agreement could reveal the fact that such a highly sensitive relationship exists. Countries may not thank us for revealing that fact, and might come under pressure to end co-operation with us.

Moreover, there are also some considerable difficulties in identifying what qualifies as control principle material, and these difficulties could lead to further uncertainty and litigation. Perhaps I might be allowed, even at this time of night, to indicate again evidence given by Mr David Anderson QC in June to the Joint Committee on Human Rights, when he discussed these practical difficulties. There may be correspondence between the intelligence services commenting on control principle material, or assessments based on a mix of domestic and foreign material, and it would often be very difficult to distinguish between them.

It is important that we respect human rights and that we take seriously human rights violations, and that we take measures to ensure that there are effective remedies available. I spoke at some length in Committee about what the Government do, both in the United Kingdom and overseas, to promote and uphold human rights. It bears repeating that the United Kingdom Government stand firmly against torture and cruel, inhuman or degrading treatment or punishment. As I indicated in a previous debate, we do not condone it, nor do we ask others to do it on our behalf.

We work on human rights around the world through bilateral contacts, membership of international organisations and development aid and assistance, and in partnership with civil society. Our efforts worldwide on combating torture are guided by the Foreign and Commonwealth Office Prevention of Torture Strategy 2011-2015. The United Kingdom is working to strengthen legal frameworks to prevent and prohibit torture, develop the will and capacity of states to prevent and prohibit torture, and help organisations on the ground to get the expertise and training they need to prevent and prohibit torture.

In recent months the United Kingdom has made its position on torture clear in public statements on countries of concern, lobbied to strengthen adherence to the convention against torture and the ICCPR, and delivered in-country training to officials of other countries on handling complaints of torture in places of detention. In addition, the Government devote significant resources overseas to combating torture. This work is often done behind the scenes, but there is also much work in providing consular assistance as well as in lobbying and capacity-building projects.

In the Norwich Pharmacal context, however, the Government believe that such disclosure is not the most effective solution to the problem. Disclosure in a single case can have far-reaching long-term effects on the United Kingdom’s national security and international relations, making it harder for the United Kingdom to act as a positive influence on human rights world wide. It is not in any way the case that we do not take these matters seriously. I hope I have indicated that there is a very extensive programme of work and commitment on the part of the United Kingdom Government to tackle torture, but we do not believe that using the Norwich Pharmacal procedure is the way in which to do that. In these circumstances, I invite the noble Lord to withdraw his amendment.

[Lord Dubs]

My Lords, the hour is late. We could debate this for a long time, but I beg leave to withdraw the amendment.

Amendment 64 withdrawn.