Justice and Security Bill [HL]

Lord Judd Excerpts

Tuesday 17th July 2012 Lords Chamber

[Lord Judd]

My Lords, I support these amendments for all the reasons we have discussed with previous amendments but will just make this observation. I do not want to be too manic depressive about the implications of this Bill but it seems that all this can become very routine—we have a report and an annual consideration, but we do things this different way. I am sure that noble Lords in all parts of the House know exactly what I am talking about and can imagine, late in the evening with very few noble Lords present, a ritual whereby the report comes before us and is considered. There will be a tremendous responsibility in the future. We all have a duty to keep this sense of responsibility alive and, as I put it earlier, to say this is an exceptional and—I certainly agree with the noble Lord, Lord Pannick—regrettable digression. It is exceptional and it must be justified. It must not become just an alternative on which we report, take note and so on. It is something that ideally should not be there. Of course, I take second place to nobody in my anxieties about the nature and gravity of the threats which confront us. Of course I take that very seriously. That is why it is all the more important that we do not cave in to the extremists and that we do not in the end give them a victory in the sense that we have diminished justice. There will be an ongoing task for us all to be vigilant on this matter.

--- Later in debate ---

[Baroness Berridge]

My Lords, I, too, support the amendment and am aware that part of this issue is covered by a later amendment in a separate group. I want to raise the very practical point that leads on from the point made by the noble Lord, Lord Pannick. From hearing evidence in the Joint Committee on Human Rights, a very basic question arose: where, physically, are these judgments?

Normally, you can go into a law library and they are all there. Special advocates and other people just seem to be unaware of where, physically, this body of case law is stored. We know from the answer to Mr Sadiq Khan that it seems not to be collated centrally. It is a very important question. It sounds incredibly basic, but we need to know where, physically, these judgments are stored.

[Lord Judd]

My Lords, as somebody who would anyway have supported the amendment, I just want to say that the last two interventions by the noble Lord, Lord Pannick, and the noble Baroness, Lady Berridge, have convinced me that this is an essential amendment.

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

My Lords, it is obvious that the amendment moved by the noble Lord, Lord Beecham, is important and goes to a number of aspects of the use of closed judgments. I think it is agreed that we are constantly trying to balance fairness and national security. It is self-evident that closed judgments contain material that should not be disclosed in the interests of national security. Of course, this is the only basis on which a judgment can be classified as closed. As is the practice in existing statutory regimes for CMPs, such as TPIMs and SIAC cases, judges will hand down an open judgment, in tandem with a closed judgment, that contains the parts of the judgment that can be disclosed without causing damage to national security.

In February 2010, special advocates raised concerns about accessing a searchable database of closed judgments. I hope this goes some way in answering the point raised by my noble friend Lady Berridge. The Government agree that it is important to ensure that those who are entitled to access closed judgments are able to do so efficiently and effectively. We have been consulting the Special Advocates Support Office on the creation, storage and dissemination of the head notes and are in the process of finalising arrangements. We anticipate that the database will be populated with all historic closed judgments by the end of the summer. I know that does not go the whole way, as some noble Lords have indicated, but I hope that I have indicated that we have addressed the concern that was raised and are making significant progress towards meeting it.

The next part of my remarks will probably reflect what was said by my noble friend Lord McNally in his response to my noble friend Lord Lester. It is the case that judges will put as much of their reasoning into the open as possible, including the statements of legal principle that are most likely to have cross-case relevance. It is the role of special advocates to make submissions about what material can properly go into the open judgment. If the court is persuaded that it would not harm national security, material will be included in an open judgment rather than a closed judgment.

However, it is not always possible to provide an open statement containing the information as it is described in this amendment. For example, the amendment suggests that it should reveal the length of the closed hearing, the number of witnesses and the nature of those witnesses, which could be damaging to national security. If in the judgment the summary said that the closed session lasted five days while members of the Security Service gave evidence, this would provide to the claimant the knowledge that the intelligence services held a lot of information on them when they may not have been aware of that fact. As already outlined, it will be up to special advocates and counsel for the Government to make submissions about whether material can be included in an open judgment or should remain closed, with the final decision being for the court, which will decide that material should be classified as closed only if its disclosure would be contrary to the interests of national security.

The amendment also requires the judge to declare whether national security was an issue in the proceedings. I believe that this is unnecessary. As we have made clear on a number of occasions in Committee, the Bill makes it clear that the only reason a court can go in to a closed session is that the disclosure of some material relevant to the case would damage national security.

The Lord Chancellor’s code of practice on the management of records, issued under Section 46 of the Freedom of Information Act 2000, provides guidance on the management of records held by bodies subject to the Public Records Act 1958. Authorities are required to identify records worthy of permanent preservation and transfer them to the National Archives, a place of deposit for public records or the Public Record Office of Northern Ireland, as appropriate. Authorities all need to consider whether parts of records might be released if the sensitive information were redacted— in other words, rendered invisible or blanked out. Information that has been redacted should be stored securely and should be returned to the parent record when the exemption has ceased to apply.

I heard what was said by my noble friends and by the noble Lords, Lord Beecham and Lord Pannick, about when the national security considerations have in some respects flown off. I want to revisit this matter and discuss it with officials because I recognise the point that has been made. I am not going to pretend that there may be an easy answer to it, but if there is no longer a national security consideration, I see the force of what has been said. However, I have tried to describe the current arrangements for the storage and permanent preservation of records.

However, as things stand, it is up to the courts to decide the detail to include in their judgments. The Bill allows the judges to make these judgments with as much information available to them as possible, while ensuring that the interests of national security are not damaged. I do not believe that Parliament needs to go further and dictate to judges specific information that they are require to release, and I therefore do not believe that the many detailed parts of the amendment are necessary. I hope that in the light of that explanation, the noble Lord will be willing to withdraw the amendment.