Civil Procedure (Amendment No. 5) Rules 2013

Lord Goldsmith Excerpts

Monday 29th July 2013 Lords Chamber

[Lord Goldsmith]

My Lords, my noble friend Lord Beecham has done the House a service by ensuring that we debate openly some of the issues around this procedure and these rules, and he has done so in a very effective and trenchant way. The noble Lord, Lord Pannick, has raised some important questions. I will not repeat them, but I look forward to hearing what the noble and learned Lord has to say in response. In the light of the way that he has presented those arguments and referred to the Bank Mellat case, I can be relatively short in my remarks, but I have two questions that I want to put.

I thank the Minister for the clarity with which he explained the safeguards that are in place and the emphasis he put on the requirements for the interests of justice still to be served notwithstanding these procedures. That is important because, given the rather stark way in which Rule 82.2 reads:

“The court must ensure that information is not disclosed in a way which would be damaging to the interests of national security”,

some could mistakenly reach the view that that has become the overriding objective in this category of case. The noble and learned Lord, in remarks that will be carefully looked at—indeed mined by advocates, special advocates and, I hope, judges—has underlined that notwithstanding that statement, there are clear indications that the interests of justice remain paramount. He referred to the duty or requirements under Section 6 of the Human Rights Act, under Section 6(5) of the 2013 Act itself, and the fact that the first paragraph of the overriding objectives will continue to apply. Overall, what that indicates, if I understood correctly what the noble and learned Lord said—I hope that he can confirm this—is that, in the Government’s view, judges will still need to be guided by the requirement to ensure that cases are dealt with justly in the interests of the litigants.

Having said that, I was one of those who was unhappy about this procedure. I had had experience of closed material procedures when I was in office and I had spent time talking to special advocates. In the end, the House and Parliament were persuaded that the requirements were such that it was necessary to have such a procedure for a limited number of cases. I agree with the noble Lord, Lord Pannick, that this is not the occasion to go back over that question.

I have two questions, apart from those that have been raised by other noble Lords. First, going back to one of the safeguards which was required by the Act, the requirement for a report which now is to be found in Section 12 of the 2013 Act, will the noble and learned Lord please consider with his colleagues what it is that the report is going to contain? We know that by statute it has to contain numerical details of applications and judgments, but what else is it going to contain? One of the difficulties with these procedures is that because aspects of them will not take place in open court, we will not know what the issues are that have been given rise to by such proceedings. The Secretary of State has the power under Section 12(3) of the Act,

“to include in the report such other matters as he may consider appropriate”.

I hope, therefore, that the noble and learned Lord and his colleagues will consider whether matters that are considered “appropriate” would be the sort of thing that show how well the Act is working and whether it is giving rise to the problems that my noble friend Lord Beecham referred to, such as applications under Part 36 and so forth. I hope he can tell us that there will be a real attempt not to limit the reports made under the Act to mere numbers of matters dealt with and declarations made.

The second issue I want to raise derives from the Bank Mellat case. It is very troubling that the Supreme Court felt it necessary to say what it said. I do not know to what extent the Attorney-General was involved in the decision to make the application for a closed material procedure, but it would be a very useful safeguard to ensure that, at least at a certain level, whenever applications are to be made for a closed material procedure, the Attorney-General is involved. That will avoid the situation where counsel who is instructed by his client, which is the way the relationship otherwise works, simply has to accept the view of the officials who are instructing him that the particular matter gives rise to national security issues. It is very easy to say and it is very easy to say it quite convincingly, but it is important that there should be really independent scrutiny of whether it is justified. There will not necessarily be cases where a Supreme Court is in a position to look at it and say as trenchantly as the Supreme Court did in the Bank Mellat case that the application was not justified. I look forward to hearing what the Minister can say about the question of the involvement of the Attorney-General.

Justice and Security Bill [HL]

Lord Goldsmith Excerpts

Tuesday 26th March 2013 Lords Chamber

[Lord Goldsmith]

My Lords, it is too late in this process to take the view that closed material procedures can never take place. I have grave doubts about this. It was something that we considered when I was in government, when we had to deal with special procedures in relation to control orders and where people’s liberty was at stake. This is a different order, which is to do ultimately with money. Be that as it may, we are past that point. The question we must ask is: under what circumstances should they exist? Both these amendments, which I support, although not quite in the terms in which Amendment 6B was put forward by the noble Lord, Lord Macdonald of River Glaven, are important, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, has just explained. I want to focus particularly on Amendment 6A.

Amendment 6A requires that the court should be satisfied that a fair determination of the proceedings is not possible by any other means. I thought that was something which this House had now accepted as an absolutely fundamental condition. It may be that CMP had to happen sometimes—many of us do not like the idea that it happens at all—but if it does, it is because that is the only fair way of determining it. Why is that resisted? As I understood it from the Minister, it is thought that somehow that condition is met by new subsection (1F) in Amendment 6. That says:

“The court must not consider an application by the Secretary of State under subsection (1A)(a) unless it is satisfied that the Secretary of State has, before making the application, considered whether to make, or advise another person to make, a claim for public interest immunity ”.

My noble friend Lord Beecham said that that is a very low bar. It is an extremely low bar and it is very important to recognise that.

This does not begin to approach the question of a determination by the court—the judge—as to whether this is the only fair way of determining the issue. All he has to do is to decide that the Secretary of State has considered whether a PII application should be made. That determination will take 30 seconds. Counsel appearing for the Secretary of State will say, “The Secretary of State has considered it”. There is no going behind that and, indeed, it will be true. The Secretary of State will have considered it. He may have rejected it on the grounds that he has very carefully considered it and decided that it was all too difficult, or simply because he thinks it would be expensive, which was part of the point made by the Minister, or just that he does not like the idea of doing it because he really wants a CMP to be made. That is no safeguard at all. If any noble Lord thinks it amounts to some equivalent of a determination by the court and that the court’s view is that no other way can be found of fairly determining the case, he would be quite wrong.

Why, then, would this amendment tabled by my noble friend Lord Beecham be rejected? It states:

“If the court considers that a fair determination … is not possible by any other means”.

There are only two possible reasons for rejecting the amendment. One is that we would actually like to see CMPs even if there is another way of determining the proceedings and so the fair determination of proceedings would not only be by CMP. It would be a very retrograde step to accept that. It would absolutely be the message that the noble and learned Lord, Lord Brown, has indicated that we must not send. The other reason would be that we do not trust judges to make that determination. I very much hope that this House will not for one moment countenance the proposition that when it comes to deciding whether a case can be fairly determined we would not trust the decision of our courts. I will warmly support my noble friend if he divides the House. I will support Amendment 6B but it is Amendment 6A that I have particularly spoken to.

[Lord Butler of Brockwell]

Before the noble and learned Lord sits down, perhaps I may ask a layman’s question. It may be an oversimplified one. The essential condition the court has to be satisfied with is not, principally, whether the Secretary of State has considered PII—that is certainly one of the conditions—but that it is in the interests of the fair and effective administration of justice in the proceedings to make such a declaration. Is that not the principal test and what all this is about?

[Lord Goldsmith]

The principal test should be whether the only fair way of determining the matter is through a CMP. That is a very simple statement. It is a very simple test but for some reason the Government do not want to accept that as the test that should be applied.

[Baroness Berridge]

My Lords, I rise to speak briefly to Amendments 6A and 6B in this group and I am privileged to serve as a member of the Joint Committee on Human Rights. As the committee has been considering this matter since the Green Paper, I am probably as familiar with it as my noble and learned friend Lord Wallace.

The language of last resort that has now been adopted in Amendment 6A is quite suitable. The words,

“is not possible by any other means”,

reflect the recent statement of the noble and learned Lord, Lord Neuberger, in Bank of Mellat v HM Treasury in the Supreme Court when the Supreme Court allowed consideration of a closed judgment in a closed material procedure. He stated that,

“this is a course which is to be taken only where the court is satisfied that it is absolutely necessary to dispose of the appeal justly”.

I reiterate the point that, although I share the concerns of the noble Baroness, Lady Ramsay, about the reputation of those who serve in our security services, this Bill will affect the reputation of the judiciary and, as my noble and learned friend Lord Wallace has outlined, these cases are ones saturated in this type of sensitive material. It is a matter of logic that a judgment in a case that is so saturated runs the risk of being almost completely blank and we face the situation where claimants will appear on the sofas of our breakfast television programmes with judgments from our courts that literally are blank.

This concerns not just the cases of the Guantanamo Bay claimants—I am proud to live in a country where citizens can go to our courts and sue members of our security services. The claimants may also include other people. I have mentioned previously the family of Gareth Williams. We know that his unfortunate death is currently under investigation but often if a prosecution is not brought the family will bring civil proceedings. We are talking about a situation where the parents of someone like Gareth Williams will be excluded from our courtrooms.

It is also most worrying that Her Majesty’s Government have not won the support of the special advocates as to the merit of these closed material proceedings. I speak as a former lawyer. They will gain work if there are more closed material procedures but we have not won their support. In fact, it is their complaint, long-standing according to the recent evidence of Mr David Anderson QC to the Joint Committee, that in SIAC and other jurisdictions there is “occasional overuse of CMP”. In addition, SIAC exceptionalism has not been maintained and CMPs have crept into other jurisdictions. I believe that this amendment guards against that kind of creep in civil forums. The amendment is also worded in a fashion that does not require a full PII process to be gone through before our extremely experienced High Court judges can determine “any other means”.

Why it should be,

“not possible by any other means”,

is also because, arguably, any other means is better than a CMP. I note here what my noble and learned friend Lord Wallace outlined about obtaining the whole truth. It is common that there are serious doubts here as to whether the whole truth will always be obtained when one party to the proceedings is not in the courtroom. I say “arguably” as we have never received figures, although we have requested them, for PII on the grounds of national security that leads to the total exclusion of the evidence produced by the Government. I have never been convinced of the Government’s position that expelling one party to the proceedings and running the risk of evidence not being challenged is better justice than excluding some evidence, not a party, from the hearing, however relevant the evidence is. It is better for the Government but not for justice.

I do not wish to appear glib as I accept that there are serious matters to be considered such as the security of our intelligence sources, their reputation, the reputation of the judiciary, the reputation of justice and the fact that these cases arise where there are serious human rights abuses. However, I find it odd that since your Lordships’ House last considered this Bill Her Majesty’s Government settled a claim by Mr al-Saadi for £2.2 million after he said that the UK was involved in his unlawful rendition to Libya. Why did the Government not wait for the legislation so that they could have a CMP? It leads me to wonder that it is not every case that the Government cannot defend because they do not have access to a CMP and so pay out taxpayers’ money with the security services taking a reputational hit. I happen to think that, in the minds of the great British public, if there is such a reputational hit, it is far outweighed by the kudos of the James Bond brand.

Amendment 6B appeals to the need to take into account the public interest in the fair and open administration of justice. Right from the beginning of this process with the Green Paper, there has been scant, if any, recognition by the Government of the principle of open justice. Perhaps it is because, unlike in the time of Charles Dickens where open justice meant that trials were public entertainment, open justice today is ordinarily journalists being the eyes and ears of the public. The attitude of many to journalists due to phone hacking should not taint the public view of journalists such as Joshua Rozenberg and Gordon Corera who report inquests and matters in this area of law. That is a vital public function.

The test as the Bill currently stands is,

“in the interests of the fair and effective administration of justice in the proceedings to make a declaration”,

and it is not sufficient as quite simply this is not a balancing test, Wiley or otherwise. It is not a balancing of interests. It says you merely put this on one side of the pan of the scales and regardless of what is weighing on the other side it goes into a secret procedure. Not all that would ordinarily be in the Wiley balancing test will, in my view, be included in the test in the Bill. As this is such an irregular trial procedure to adopt, it should be a competition of interests, a battle even for the Government to show that national security outweighs fair and open justice and that the nature of these proceedings is so unusual and so contrary to our principles of a fair trial that it should be only when nothing else is possible.

To conclude, I can do no better than to refer to the statement of the noble and learned Lord, Lord Neuberger:

“It must be emphasised that this is a decision—

to go into a closed material procedure—

“which is reached with great reluctance by all members of the court; indeed it is a majority decision. No judge can face with equanimity the prospect of a hearing, or any part of a hearing, which is not only in private, but involves one of the parties not being present or represented at the hearing”.

This is an unhappy procedure—again, to borrow the language of the noble and learned Lord, Lord Neuberger—and, as such, judgments are secret for 30 years. That was clarified to the Joint Committee. I sincerely hope that I am wrong that the Lord Hennessy of the future will have an annual TV slot at the turn of the new year at the National Archives in Kew uncovering judgments that, had they been open, would have been appealed and the government of that day, again, pay out millions of pounds in compensation, and not even “Skyfall”, which I believe is currently keeping Peers occupied in Committee Room 2, would save the reputation of MI5, MI6 and our judiciary.

--- Later in debate ---

[Lord Goldsmith]

My Lords, the noble and learned Lord, Lord Mackay of Clashfern, has made that point twice. Does he recognise that although, as he said at the outset, there have been procedures in which material has been seen, but not by one party, those are not procedures in which that material is then relied upon by the judge to determine the rights and wrongs applicable to that party? This is in order to exclude that material and not to allow it in. Is that not the novelty of this procedure?

[Lord Mackay of Clashfern]

Absolutely, that is the procedure with excluded material. Of course, excluding the material can sometimes be extremely damaging to the interests of the other party to the litigation. The noble Baroness referred to Matrix Churchill. That was exactly the sort of case that Matrix Churchill would have been if the judge had excluded it because the material that was sought to be excluded as sensitive material was, on further examination, of great use to the claimant, as we all know. The idea that a public interest immunity certificate is so superior to this procedure strikes me as being without great foundation.

I assume that the only material in question is material that has been subject to all the processes that the noble and learned Lord, Lord Brown, has suggested for removing its sensitivity, because if you can do that the party is not required to produce sensitive material because it has been neutralised and the difficulty has been removed. Therefore, when you have that in mind, it is very hard to see how you can find out whether there is any other way in which the case can be dealt with. One of the problems about that is that at the beginning of a case things may look different from how they look as the case proceeds.

One of the great benefits of the amendments that the other place has put in here is that this matter can be reviewed at any stage of the procedure. Therefore, it seems to me that this system, in a very small minority of cases, will be the best way of securing the fair and effective administration of justice in that case. It is not a question of excluding material, which is an appropriate test for the amendment proposed by the noble Lord, Lord Macdonald; it is nothing to do with that. It is to see that the material that is being used is used in a way that does not damage the security of this nation. The Government have as one of their primary responsibilities securing the national security, as evidenced by what the noble and learned Lord, Lord Woolf, said about control orders, which control people’s liberties, in which this sort of procedure was introduced. I believe that this procedure is the best way in which to secure national security.

I endorse what the noble and learned Lord, Lord Woolf, said in his letter. Our judges are as familiar with the desirability of open justice as any Peer who has spoken. They know the value of open justice; they were brought up to it. There is no question of a judge going for a closed material procedure if he thought it could be done in open court. I believe that giving this discretion to the judiciary in very limited circumstances with two very important conditions is the right way to deal with it. It is not the Executive who are deciding, but the judge. Judges have taken an oath to,

“do right to all manner of people … without fear or favour, affection or ill will”.

That oath will apply in the decision that the judge has to make, and it seems to me that the best possible test has been evolved by the House of Commons in its consideration of our Bill, and the test is the fair and effective administration of justice in that case.