Justice and Security Bill [HL]

Debate between Lord King of Bridgwater and Lord Lester of Herne Hill

Wednesday 21st November 2012 Lords Chamber

[Lord King of Bridgwater]

My Lords, I hesitate to intervene in such a distinguished judicial gathering. In my time, I have had some involvement with intelligence matters. I recognise, as has been very well recognised by a number of noble Lords, how extraordinarily difficult these issues are and the challenges that they will pose for a judge when exercising his responsibilities.

The noble and learned Lord, Lord Woolf, made the point very well that what we should be concerned about is national security. We should also be concerned with public respect for the system of justice. If there were to be, as we are told, an increasing number of cases that cannot be defended by the Government, in which perhaps substantial payments have to be made to what may appear to be thoroughly undeserving claimants, the public outrage and the damage that will do to respect for justice in this country will be extremely grave. I have been very impressed by what I think is a general consensus emerging that this is not a measure that should be abandoned by voting against Clause 6 but that this is a measure of last resort, provided that there are proper protections in place.

It cannot be emphasised too strongly that we depend for our defence in this country not just on the very able capabilities of our own intelligence and security services but on the vital liaison that we have with a number of key allies. Those allies are now spread much more widely than people may realise. A number of them are extremely sensitive about whether the security of the intelligence that they provide under the tightest restrictions, which is held most closely in their own countries, is going to be maintained in whatever arrangements we introduce into the justice system in this country.

The noble Lord, Lord Marks, was querying whether there had been any such case. Of course, we are familiar with the issues that arose in the Binyam Mohamed case, when the Divisional Court ultimately rejected the Foreign Secretary’s third PII certificate. David Anderson QC, who has been referred to on a number of occasions, said that on the basis of what he was shown,

“there are signs that we are currently on probation and that there has already, in some respects, been a diminution in intelligence sharing”.

That is a very serious concern and certainly not a judgment that I would challenge. In my own experience, I was very conscious of the sensitivity in these matters and the importance of maintaining the most open channels.

[Lord Lester of Herne Hill]

I am sorry to interrupt my noble friend, but does he accept that in the Binyam Mohamed case, neither the Divisional Court nor the Court of Appeal presided over by the noble and learned Lord, Lord Neuberger, revealed any information that in any way prejudiced national security, even though it is true that some of the affidavit evidence of the Foreign Secretary and of Hillary Clinton was questioned at the Divisional Court level?

[Lord King of Bridgwater]

I do not think I have ever quoted Donald Rumsfeld, but when my noble friend very firmly asserts that there was no risk to national security, my worry always is the,

“things we don’t know we don’t know”

in these issues as to what sensitivities there may be. That is the worry that emerges out of this.

Let us be quite frank, there is not always a huge enthusiasm to share intelligence. There are plenty of people in the intelligence agencies of other countries who are very secretive indeed about the intelligence that they have and deeply distrustful of any other country that they do not believe will properly protect it, so any excuse that they can have—which they will argue internally in their own organisations—not to share intelligence in this way is something that we have to be extremely careful about.

It is against that background that I look with great interest to the reply of my noble friend the Minister. I have listened with great respect to the points that have been made. Some very good points have been made about the importance of ensuring judicial discretion in these matters. I got the impression that the Government have already moved quite significantly in that direction, which I wait to hear. However, in respect of my noble friend’s Amendment 31, I think that CMPs definitely have an advantage over PIIs. I do not support Amendment 31. I support the noble Lord, Lord Owen, in what he said about Amendment 48. I believe that Amendment 50 is also one that people have reservations about and I hope that that will not be pressed either.