Justice and Security Bill [HL]

Lord Faulks Excerpts

Wednesday 21st November 2012 Lords Chamber

Of course justice should always be open whenever that is possible, but Article 6 of the European convention deals with the doing of justice in a wholly different way from that which it deals with the question of forbidding torture. The provision there is absolute. The provision relating to a fair trial does not lay down that certain things can never be done, but gives the standards that should be generally applied. Strasbourg, as the noble and learned Lord, Lord Phillips, has pointed out, would expect that this legislation will take a course that will enable justice to be done in the conventional way in a case, so far as is possible. However, it will recognise that, if there is a matter of national security that cannot be dealt with otherwise, it is appropriate and proper for there to be a new and additional ability for the court, where national security issues arise, that allows the judge to deal with the matter in a special way, with a closed procedure, so far as that is necessary to do justice in that case and where it could not be done otherwise.

[Lord Faulks]

My Lords, I will be very brief as all the arguments have been well rehearsed. I share the concern of all other noble Lords about these provisions and the agonising balance that has to be struck. I particularly agree of course that either party should have the right to go to these proceedings, very much as a last resort. However, I have one particular anxiety and I hope that the noble Lord, Lord Pannick, will be able to satisfy me and other Members of the House when he comes to sum up at the end. The various amendments that the noble Lord, Lord Hodgson, proposes include a number of hurdles—a Grand National of hurdles in fact—while the JCHR amendments provide a slightly fewer number of hurdles. If those amendments become part of the Bill, there will be circumstances in which we are left in precisely the same situation that we are in now; namely, that a judge does not accept the Government’s view about national security in operating the balancing act and the Government will then be left with the choice of doing exactly as they are now, and either settling the case or giving up.

Although I entirely applaud all the sentiments behind these amendments, I worry about how they are going to work in practice and whether they have a danger of defeating the Bill as a whole.

[Lord Carswell]

My Lords, the issues in this Bill can be fairly described as a clash of rights. They could also be described as a clash of wrongs. It is wrong—terribly wrong—that people’s safety and lives should be put at risk by the disclosure in the public domain of evidence that could, in some way, be withheld without irretrievably compromising the interests of justice. It is wrong, as the Government have said, that they should have to expend enormous sums of taxpayers’ money to settle claims because that evidence might put at risk the lives of people or the intelligence interests and co-operation of our allies. It is also terribly wrong that litigants be left in a Kafkaesque limbo, where they cannot know the case that is being made against them or the evidence that is being produced, or cannot be allowed full consultation with their advocates to ensure that they are able to put forward their own case, if they have one, as effectively as possible.

The balancing of interests and considerations has been traditionally not just a principle but a very strong instinct running through our law. It is far, far better if we can incorporate compliance with that instinct into the present issue rather than impose certain rigid requirements that are incapable of being observed without the risk of considerable and great injustice. I pay tribute to the Joint Committee on Human Rights for the quality of the argument and expression of its report.

There is a range of means in practically every case for reaching a proper solution that acknowledges and gives effect to the different considerations. I give an analogy that is not from the present issues, not from civil law but from criminal law: the protection of witnesses who would fear for their own safety if they were to give evidence in public. This is something of which I have had fairly considerable experience over the years, sitting as a trial judge when many witnesses, quite understandably, were extremely fearful for their lives and safety if they gave evidence.

There was a graduated list of possible ways of dealing with this and one had to consider that in any given case. It started at the lowest end, allowing the witness to give his or her name and address on paper to the judge only, but otherwise giving evidence in the normal way in open court and subject to ordinary cross-examination. At the other end of the scale, the witness was hidden behind a curtain or a screen and his or her voice was distorted so that the persons in the court could have no idea, unless they were clairvoyant, who was giving this evidence. It could have its humorous side. I remember a group of Army witnesses sitting in court—they all had dark glasses on and the most curious wigs, and they looked an amazing sight. But we applied that list as best we could and I suggest that this approach exemplifies the way in which Parliament should deal with this problem. For that reason I support the amendments.

This will not be an easy task for the judges who have to shoulder it. One has to acknowledge that it may not always be discharged perfectly, and certainly it will not always be discharged in a way that pleases the Government of the day. But undertaking that sort of burden is part of the function of a judge and we must trust them to take it on and to discharge it to the best of their ability. We must bear it in mind that in any given case the judge will have expert argument—and the noble Lord, Lord Pannick, has said how effective and persuasive that can be—setting out the issues, giving the judge the opportunity and the time to weigh them up and attempt to come to the best possible solution. I submit that it is far better to run the risk of justice being imperfectly administered than to put the judges into a straitjacket at the Government’s behest. I support the amendments.

Justice and Security Bill [HL]

Lord Faulks Excerpts

Wednesday 21st November 2012 Lords Chamber

[Lord Judd]

My Lords, the noble Lord has spoken very powerfully about the importance of public trust and how the amendments before us are emphasising the means by which that trust can be secured. But when we divert from the practices of justice as we have come to understand and appreciate them, we must do so only in the most extreme and exceptional circumstances, and there must be no opportunity for a drift towards this process becoming a matter of convenience. I may be overegging it slightly but that is a fear one must have in mind.

The noble Lord also spoke about the importance of public confidence in the law and the administration of the law. I want to take that argument a little further. My noble friend Lord Reid, in a very powerful intervention that I am sure we all took extremely seriously, underlined the danger of small numbers of people with modern technology and devices at their disposal.

That is why the whole case for maximum, transparent justice in the process of law is so important. Many of the issues behind the cases involved will be extremely controversial and elicit a lot of passion in particular sections of the community. If it can ever be argued or demonstrated that we are not applying a commitment to justice in the way it can be achieved, but are finding that because of the terrorist element we are deserting that position, that will play straight into the hands of the extremists who want to exploit frustration, alienation and the rest. We are giving ammunition to the enemy—if you like me to put it as bluntly as that—and I find that unforgivable. Why give ammunition to an extremist who is determined to undermine our society by failing to stand by the principles of what we know justice is about, unless it is a most exceptional, extreme case where special circumstances have to apply?

[Lord Faulks]

My Lords, the Justice and Security Bill demands justice and security. We have been quite rightly reminded by, among others, the noble Lord, Lord Reid, how important it is to consider security. In human rights terms, Article 2 of the convention places a responsibility on the Government to protect life and to take all steps appropriate to ensure that the human rights of citizens generally are protected, so that human rights are not just for the litigants involved in these proceedings but for all of us. However, justice is to be done by this Bill and there is undoubtedly a justice gap. I thought that, during Committee stage, we had moved towards a consensus that CMPs, although not a desirable option, were nevertheless a necessary evil in order that justice should be done.

Contrary to what my noble friend Lord Strasburger has said, the JCHR, of which I have the good fortune to be a member, acknowledged, relying in part on the evidence of David Anderson, that there were a limited number of cases in which justice could not be done in the current situation. That is why the Bill has been brought before your Lordships’ House. As to the possibility of justice being done under these provisions, the noble and learned Lord, Lord Woolf, who has experience of these things, said in Committee that the special advocates were underestimating their capacity to represent those clients. Nobody suggests that it is an optimal position, but my own experience of judges tells me that they customarily do everything they can to remedy any disadvantage that a litigant might have—and of course they will have a disadvantage in CMPs. The suggestion that the Government’s case will simply be accepted by a judge without challenge or question is wholly unwarranted. Within the Bill as it is at the moment, judges have considerable powers; now that these amendments have become part of it, they will have considerably more powers.

I therefore suggest that the Bill presents an opportunity for security and justice, as the name suggests. The amendment proposed will wreck that opportunity and justice will be denied.

[Lord Thomas of Gresford]

My Lords, I have had experience of a torture case, the Baha Mousa case, which involved the death of a hotel owner in British custody in Basra. Your Lordships will recall that there was a long trial in which what had happened in the stinking hellhole of a derelict guardhouse was investigated. Men had been held in stressed positions with their hands tied behind their backs and hoods over their heads, and Baha Mousa, after a night during which passing soldiers from other regiments were called in to have a pop at the prisoners in that position, died with some 90 injuries to his body. What happened as a result of that? There was the trial and then a long inquiry, chaired by Lord Justice Gage, which lasted more than two years. His report has brought significant publicity and changes to what goes on. The noble Lord, Lord Judd, was talking about transparency. There is something that was brought out into the open. I do not think that any commanding officer in the British Army will not have regard to the treatment of prisoners by troops under his command hereafter. That is what transparency and publicity do. I was very interested to hear the noble Lord, Lord Dubs, cite an interrogation that had taken place in Afghanistan more recently when, no doubt, proper safeguards for the prisoners were in place.

Reputational damage? Of course there was reputational damage to the soldiers, the officers, the regiment and the British Army, but that is the price that has to be paid to put things right. I am not particularly moved by the argument that settling cases causes reputational damage to the security services. Of the civil cases brought in this country, 95% are settled, often without any admission of liability. I have never heard it suggested that there is reputational damage from a settlement from such circumstances. Nor have I heard it suggested anywhere that because the security services have settled cases brought against them, they have suffered reputational damage in any meaningful sense. When one reads what happened in the Binyam Mohamed case, one feels that there should be more transparency about what happens within the security services. Perhaps then, the suspicions with which the noble Baroness is so concerned would go away.

Everything that can be said on the issue of principle has been said, even if not by me, so I do not propose to go back to that. I just want to raise one or two practical points. The first is this. A lot has been said about fairness to the security services—that it is not fair that they should settle. What about fairness to the claimant? Suppose, for example, that a claimant wishes to sue the security services for exposing him to torture or to unlawful rendition. Let us assume that his claim is entirely genuine. Let us not start with the assumption that one hears in certain quarters that of course he is lying. Let us assume that it is a genuine case. There is no legal aid. He cannot find a lawyer to act for him on a no-win, no-fee basis because it will be impossible for a lawyer to assess his chances of success. How can any lawyer take on a case when it is possible for the defendant to go behind the scenes, talk to the judge and disclose evidence which the claimant never sees? How can you take on a case on that basis?

Of course, the special advocate is allowed to see the secret evidence, but can he go back to find out whether there is any possibility of challenging that evidence? How can he go back to his client to talk to him? He is not permitted to under the system. He cannot take proper instructions and, as my noble friend said, use the ordinary method of ascertaining the truth in the British courts of justice for centuries: by cross-examination, by challenging and testing the evidence and the credibility of the person who is giving that evidence. It is just not possible, so nobody is going to take the case on. That is the first problem to get through. We talk as if practical considerations such as that do not count. The claimant never gets his case going, or if he does he loses and never knows why.