Justice and Security Bill [HL]

Debate between Lord Hodgson of Astley Abbotts and Baroness Williams of Crosby

Monday 19th November 2012 Lords Chamber

[Lord Hodgson of Astley Abbotts]

My Lords, I rise to move Amendment 7. This is the first time I have intervened on Report so I draw the House’s attention to the various relevant entries on the register of interests. I am grateful to my noble friend Lady Williams of Crosby for having put her name to this amendment.

I did not take part in the debates on Part 1 in Committee. My interests were much more with Parts 2 and 3, and I have tabled some amendments that we shall debate on Wednesday. However, developments since have led me to table this amendment, which inserts a new paragraph at the beginning of the section headed “Procedure” in Schedule 1 that provides for the direct election of the chairman of the ISC by Members of the House of Commons. To borrow the phrase of my noble friend Lord King, it is an evolutionary development in the power and prestige of the committee.

My purpose in moving this amendment can be simply stated. First, it is to buttress the independence of the chair of the ISC. Secondly, it is to increase the democratic accountability of that role. Thirdly and most importantly, it is to increase public confidence in the operations of the ISC. I make it absolutely clear that I am in no way attacking or criticising the existing or past holders of the office of chairman of the ISC, but my amendment reflects the fact that with the provisions of this Bill as a whole, the Government are moving into new, uncharted and potentially dangerous territory, which requires us to consider whether extra precautions are needed to buttress our civil liberties. I note in passing how the reputation and reach of the existing Select Committees appear to have increased since their chairs were directly elected.

The amendment would establish a further check and balance appropriate to the consideration of matters as complex and as delicate as national security. First, it would open up the chairmanship of the ISC to any Member of Parliament who wished to stand for it. In doing so, it would reduce the concern—I make no assessment as to whether it is justified—that leaving the appointment of the ISC entirely in the hands of the Prime Minister runs the risk of being rather too cosy for modern conditions. I note, and my noble friend Lord Taylor has referred to this already, that the Bill as drafted permits—empowers—the members of the ISC to choose one of their number to be their chair. While I welcome that development, I do not believe that it goes far enough. Since the Prime Minister controls the membership of the ISC, he controls the population from which the chair is chosen.

Secondly, the amendment would balance this by requiring each candidate to obtain the formal approval and consent of the Prime Minister before standing. This would eliminate candidates who might have shown no prior interest in or experience of the intelligence or security field, or shown—dare I say it?—an overdeveloped interest in opportunities for self-promotion. Thirdly, the amendment does not seek to wrench apart the existing arrangements immediately. The other provisions of the Bill will take some time to bite and so should this provision.

Let me also make it clear what the amendment does not do. It does not seek to make the ISC a Select Committee of Parliament—we have had an extensive debate on the amendments proposed by the noble Lord, Lord Campbell-Savours—so the reporting arrangements would remain unchanged, with the Prime Minister able to require redaction or exclusion as under Clause 3(4) of the Bill. I accept the force of the argument that there must be limits to transparency in this area.

My principal reason for tabling the amendment is that, as we move slowly but apparently inexorably into the shadowy world of closed material procedures, special advocates and restricted reporting, we need to ensure that there is at least one person at the heart of the process who has a direct democratic mandate given to him or her. As an example of how this power might be used, a number of amendments have been tabled to Part 3 of the Bill about review procedures, sunset clauses and so forth. A directly elected chair of the ISC could and should play a vital role in reassuring Parliament and the public that the new powers to be given under the Bill are being exercised properly but above all proportionately. I beg to move.

[Baroness Williams of Crosby]

My Lords, my name is also attached to the amendment and I congratulate my noble friend Lord Hodgson of Astley Abbotts on an extraordinarily brief and clear description of the reasons for it. I begin by paying a moment’s tribute to the person—no longer alive, I am sad to say—who started the whole process of Select Committees. I still remember when I was a Minister in the Labour Government which fell in 1979 the amazement that I felt when Lord St John of Fawsley got up and proposed the idea of Select Committees, which were to be independent of the Whips and free to be accountable to Parliament and to express their concerns about matters of public policy. I think that the Select Committees have done this Parliament very proud indeed, not least at the far end of this building, in the House of Commons, where, time and again, they have come up with remarkable insight and courage in a way that has added hugely to the prestige of Parliament, a prestige that was becoming slowly lost because of the inevitable predictability of so many of our open debates.

The amendment which my noble friend has moved, which I support, fully comprehends the point made so effectively by the noble Lord, Lord Butler of Brockwell, which is that no Act of Parliament should be able to take away from the Prime Minister his fundamental responsibility for the security of the citizens of this kingdom. However, there is no need to go as far as the present ISC does in accountability passing to the Prime Minister rather than to Parliament as a whole.

The ISC is of course a special case. It is unlike any other committee of Parliament. It is certainly unlike Select Committees, but also unlike other committees that have served Parliament over the years. It is different, of course, because of the sensitivity of the material that it deals with. It is therefore the responsibility of this House, in its consideration, to try to get the correct balance between accountability to Parliament and the sensitivity of much of the material that the ISC deals with. The noble Lord, Lord King of Bridgwater, said that effectively, but rightly indicated that there was room for some evolution of this committee. Perhaps I might say a word or two about that evolution.

The proposers of this amendment have chosen it very carefully to ensure that a totally unsuitable person cannot be appointed to be chairman of this committee. As my noble friend Lord Hodgson said, we are leaving a veto with the Prime Minister against a candidate for chairmanship who might be wholly unsuitable. That is absolutely right because the Prime Minister, by the nature of his office, has a greater access to detailed intelligence than most of the rest of us. However, I have one word of warning because the issue of accountability to Parliament is of the first importance. In responding to an earlier amendment, the noble Lord, Lord Taylor of Holbeach, properly stressed time and again the importance of treating sensitive information with due respect and care. What he did not mention enough was that the House faces a genuine concern about intelligence. It is simply not the case that there is no public concern about the work of the Intelligence and Security Committee. I hope that I do not offend people by mentioning two cases that spring to mind.

One is that the general issue of intelligence goes back a very long way. Those of us who recall the period immediately after the Second World War will remember the so-called Cambridge group, who turned out to be extremely able people in the intelligence that they sent to the Soviet Union, and that every one of them was totally accepted as a respected member of the establishment. It took a long time for people to realise that people such as Sir Anthony Blunt and others could actually be spies.

Justice and Security Bill [HL]

Debate between Lord Hodgson of Astley Abbotts and Baroness Williams of Crosby

Tuesday 17th July 2012 Lords Chamber

[Lord Hodgson of Astley Abbotts]

My Lords, in moving Amendment 55 I shall speak also to Amendments 56, 63, 64, 65, 66 and 67. This group of seven amendments spans Clauses 7 and 8. Their underlying purpose is to improve the relationship between the special advocate and his client—if that is the right word—and the special advocate’s ability to carry out his duties effectively. The group breaks down into three subgroups.

First, Amendment 55 concerns Clause 7(1)(b), under which the rules of court require,

“that such an application is always considered in the absence of every other party to the proceedings (and every other party’s legal representative)”.

This is the point that I made in the debate on a previous group of amendments. My amendment seeks to replace “is always” with “may be”. I accept that some, perhaps most, matters will be considered with national security in mind and so will have to be heard in a closed court. However, I wonder whether there will never be any matter that could be argued with a special advocate and other legal representation present. Obviously, one question is: what constitutes national security? We have had a debate about the looseness of that term. At the moment we have no definition of it. Then there are other sorts of information, such as that provided by the police and generated within the UK, which might come up and would not be within the closed material proceedings. I suppose the principle behind this is to increase judicial discretion and therefore fairness—an issue on which the Government have placed great stress. My last point on this amendment is that requiring a judge to hear CMP applications in the presence of only one side under all circumstances does not seem to fulfil the principles of natural justice.

The second group consists of Amendments 56, 64 and 65. This group is about the nature of the appointment of a special advocate and ensuring it is made in a timely fashion. Amendment 56 inserts a new paragraph after Clause 7(1)(b):

“that where a party is excluded from such an application his interests are represented by a special advocate appointed in advance of the court hearing such application and, if the application is granted, for the duration of the section 6 procedure and trial”.

The important words here are “in advance” and “for the duration of”. In other words, the special advocate needs to be given time for preparation and for consultation. My noble and learned friend may say that this will happen anyway but I am told—I stand to be corrected—that there is no statutory requirement at present and it seems to me that in these special circumstances it might be worth while to consider that.

Amendment 64 covers the same points in Clause 8. Clause 8(1) states:

“The appropriate law officer may appoint a person to represent the interests of a party”.

For me, the critical word is “may”. My amendment seeks to replace “may” with “must”. Again, the reasons for that are self-evident and run parallel with the supporting arguments I have given for my natural justice amendment.

Amendment 65 amends the same clause by removing the words,

“in any section 6”

and replacing them with,

“as soon as practicable following”

an application. Applications should not go unchallenged. Therefore it needs to be certain that the claimant is represented at the time of his application and during the proceedings.

The last group, Amendments 63, 66 and 67, is intended to try to strengthen the relationship between the special advocate and the claimant. Amendment 63 takes us back to Clause 7 and inserts two new paragraphs regarding what the rules of court must provide where the proceedings are in connection with a Section 6 declaration. They make it clear,

“that the special advocate is afforded the opportunity to take instructions from the party whose interests he is appointed to represent, and … that the special advocate is at liberty to apply to the court at any time if he considers that any relevant material should be disclosed”,

if he feels that is opportune.

Amendment 66 goes back again to Clause 8. Clause 8(4) states:

“A person appointed as a special advocate is not responsible to the party”.

That seems to me to be strangely indifferent and distant. I understand the nature of the relationship implied by “represent” and that is why my amendment does not propose that but it replaces “not responsible to” with the slightly warmer and more positive phrase,

“responsible for representing the interests of”.

That understands the positive nature of it but does not imply the normal professional duty and relationship.

Finally, Amendment 67 adds four new subsections. The proposed Clause 8(6) requires the special advocate to provide gists of material. We shall come to that in the next set of amendments. The proposed Clause 8(7) permits the special advocate to withdraw if,

“he considers that he is prevented or otherwise unable to properly represent the interests of the excluded party”.

I hate the split infinitive “to properly represent” but it provides a quite important albeit rather nuclear approach regarding the special advocate in the sense that he could draw attention to how the case was being run by withdrawing if he felt that his position had become untenable.

On proposed new subsection (8) in Amendment 67, the requirement for the special advocate to make a report to the ISC about each case for which he is responsible is intended to be an additional element of control. Proposed new subsection (9) would impose a duty and responsibility on him to preserve the confidentiality of closed material, except for the gist to which I referred under proposed new subsection (6), and except where material may lead to a crime that should be referred to the CPS. I have said before about that that I am the treasurer of the All-Party Parliamentary Group on Extraordinary Rendition. Some of the things that I believe have gone on in a rather shadowy way around that rather nasty practice could usefully be given some light. This would be a way in which that light could be shed.

To conclude, this group of seven amendments is intended to try to improve the quality of justice and the equality of arms by giving the special advocate a more defined role in Section 6 proceedings; ensuring that the special advocate attends proceedings where the issue is outside national security; ensuring that the special advocate is appointed in a timely fashion, before a Section 6 application is made; strengthening the ability of the special advocate to represent the claimant by ensuring proper access; and enabling the special advocate to resign if he feels that he cannot do his job properly.

The special advocates have circulated a paper to which I have already referred. I was particularly impressed by paragraph 17, where they list eight reasons why CMPs lack fairness and effectiveness. Three of their reasons seem to have relevance to this group of amendments. The special advocates think they are unfair because of the,

“prohibition on any direct communication with open representatives, other than through the Court and relevant Government body, after the SA has received the closed material”.

That is the first reason. The fifth reason refers to:

“A systemic problem with prejudicially late disclosure by the Government”.

The seventh reason refers to:

“The increasing practice of serving redacted closed documents on the Special Advocates, and resisting requests by the SAs for production of documents to them (i.e. as closed documents) on the basis of the Government’s unilateral view of relevance”.

These amendments are designed to tackle some of those problems. Some of the others in the list have importance, but those are the three most relevant. I beg to move.

[Baroness Williams of Crosby]

I mention again that I am not a lawyer, but I have the greatest respect for the noble Lord, Lord Hodgson of Astley Abbotts, who has done a very great service to this country in the excellent work that he and others have done in the All-Party Parliamentary Group on Extraordinary Rendition.

I want to underline what the noble Lord said about Amendment 66 and to ask my noble and learned friend on the Front Bench whether the wording could not be less sweeping than that in the Bill. Clause 8(4) states that,

“a special advocate is not responsible to the party to the proceedings whose interests the person is appointed to represent”.

I understand some of the problems and appreciate that there are difficulties here, but I ask my noble and learned friend to look again at the wording of the Bill. In particular, my understanding is that a special advocate is responsible for everything short of something that might put at risk national security; it does not mean that the special advocate has a way out of in any serious sense representing the interests of the person whom he has been appointed to represent. I think that that is the meaning of the wording of the Bill. Will my noble and learned friend consider wording that is less likely to raise any questions about the obligations of a special advocate for the people before them who have no other way to get across their case? I suggest that some wording that more precisely defines a special advocate’s duty and where it begins and ends would be much better than the wording currently in the Bill.