Justice and Security Bill [HL]

Debate between Lord Faulks and Lord Carswell

Wednesday 21st November 2012 Lords Chamber

[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.