Justice and Security Bill [HL]

Lord Lester of Herne Hill Excerpts

Wednesday 11th July 2012 Lords Chamber

[Lord Hodgson of Astley Abbotts]

My Lords, I shall also speak to Amendments 44, 46, 48 and 49. They say that you should never begin your remarks with an apology, but I apologise because I had understood that there would be a mini-debate and the noble Lord, Lord Thomas of Gresford, and I were in the second half. He de-grouped so I am something of a tail-end Charlie.

I will cover some of the ground that we discussed earlier—in particular, the use of PII before a CMP application—but with some differences, which I shall come to later. I do not expect my noble and learned friend on the Front Bench to give a long and considered answer, because he gave one before the dinner break, but I hope that he will be able to take on board some of the points that I shall make in the next few minutes.

As this is the first group of amendments that I have proposed, I should declare interests. I am a trustee of Fair Trials International and treasurer of the All-Party Parliamentary Group on Extraordinary Rendition. However, as I said at Second Reading, I am not a lawyer and I have never been involved in the security services. I said then that I ventured out on to the ice with some trepidation and, watching the legal thunderbolts that flew across the Chamber earlier this evening, my trepidation has not reduced. However, I was encouraged by another contributor to our Second Reading debate who said that this was too important a matter to be left to the lawyers, so I am venturing a bit further on to the ice.

All these amendments are probing and I hope to tease out the Government’s thinking on a number of issues. To guard against the more obvious ways of making a fool of myself in your Lordships’ Chamber, I have enlisted the help of Tony Peto of Blackstone Chambers and of the campaigning group Reprieve, to whom I am extremely grateful. All the amendments that I have tabled, and more that we shall discuss later and no doubt at our next sitting, have a common theme and background about which I feel strongly. I hope that the Committee will forgive me if on this first set of amendments I explain the background in a little more detail—I will not have to do it again—and, if this appears slightly unlawyerly, I apologise.

I said at Second Reading that I recognised that there was an important issue here, and before the dinner break the noble and learned Lord, Lord Woolf, said that there were going to be a number of cases where national security was inherently and implicitly involved in the case. At the nexus of civil liberties and national security lies the fact that not everybody can know everything and there are legitimate reasons for having to keep some things secret. However, to keep matters secret is undesirable, so I believe that there has to be a strict test of justification. My amendments, all of which are probing at this stage, are designed to develop the Government’s thinking about this justification and, in doing so, to have a chance to benefit from the legal expertise in your Lordships’ House.

My concerns about the Bill can be grouped under two headings. Both concern fairness and are what I have described before as regulatory capture and the possible impact of these proposals on our society. I have said before that I am always concerned about the naturally inherent risk of the adverse nature of regulators, and the security services are one such example. In all fields, whether it be national security, social services or financial services, regulators are judged by failure or at least by the absence of failure. Therefore, regulators tend to want to set the bar as high as possible to give themselves the maximum amount of power or points of leverage to deliver their allotted task.

That, of course, is the entirely positive aspect of the regulatory case, but I am afraid that there can be a less attractive aspect, which is that of spreading a blanket of confidentiality over a matter so as to avoid issues of incompetence or embarrassment being revealed, or the revelation of a smoking gun. I am hoping to find out during our Committee proceedings how we can lean into the wind, so to speak, and make sure that the procedures that we set up really do enable the sorting of the wheat from the chaff in these difficult and critical areas.

My second area of concern is about the impact on our society of these measures, and this underlines the critical importance of our discussions. This is not about legal technicalities but real life. I take part in the Lord Speaker’s outreach programme. It is a fascinating experience which I thoroughly enjoy. I never go to one of these meetings without learning something about our society and the way in which your Lordships’ House and Parliament are viewed. Most of my visits are to schools, to young men and women of 17 or 18 years of age, doing A-levels. I am a West Midlander, so my visits take me to schools in Birmingham and the Black Country, where there is a large black minority ethnic, particularly Muslim, population. I emphasise, as background to our discussion on the Bill, that these young men and women are keenly interested in our judicial system and its application to them and their communities. When you see them, you get questions—I welcome the questions, because I get such a lot from them—about Guantanamo Bay, Binyam Mohamed, and all these aspects which are the background to what we are discussing during the passage of the Bill.

My second reason for tabling my amendments is therefore to ensure that we do not strain the fabric of our society too much and so, indeed, to ensure that when I begin my visits again to the schools in the autumn, I can look these young men and women in the eye, and say, “Yes, we did look at these issues; yes, we did explore the ramifications; yes, we did have legal expertise bearing down on it; yes, we did make the Government justify their policies; and no, this is emphatically not a system with any in-built bias”.

So, with that rather long-winded explanation of the amendments that I have tabled, to horse! Amendment 43 is a trigger for the operation of Clause 6(1), the application for a CMP. During the earlier debate, I was interested in the balance of advantage for PII and CMPs. Amendment 44 sets out the conditions to be fulfilled before the trigger can be pulled. Four of these are listed: that the court has gone through a PII process; that the process has resulted in excluded material; that material includes evidence damaging to national security; and that, as a consequence, the court is prepared to consider an application for a closed material proceeding.

Amendment 46 sets three tests for the court to consider before making a deliberation: that the threshold conditions have been met; that only a CMP can provide a just resolution and PII will not work; and, lastly and perhaps most importantly, that,

“there is no serious risk of injustice to either party”.

I have been advised—I say that with care—that the earlier amendments that we looked at did not cover that in quite the same way. Indeed, with this, you increase the amount of judicial discretion and therefore improve the application of justice and reduce the ability of the Government to dominate the proceedings.

Amendment 48 inserts a new set of tests for the court to consider in deciding to allow an application. There are five of them, which are self-explanatory, but I draw attention to the last one, on which I am again told that in the interests of open justice and natural justice the statement of whether it would be in the interests of justice to grant the application is again likely to increase judicial discretion.

Finally, Amendment 49 requires the Secretary of State or another party to go through the PII process before applying for a CMP, as opposed to considering whether to make such an application for a CMP outright. The purpose behind these amendments overall is to increase the amount of judicial discretion, and to do so to a greater extent than the alternatives that have been put before us tonight. I beg to move.

[Lord Lester of Herne Hill]

My Lords, in a sense, we have been through this before. This is another means of tackling the problem. I entirely agree with the noble Lord, Lord Hodgson, in raising issues of public confidence. It is a matter of great concern to me that what we call civil society—often very uncivil civil society—has reacted to the Green Paper and the Government’s proposals in extreme terms, it even having been suggested that we should deny the Bill a Second Reading. There is a great deal of cynicism and suspicion about the work done by our security and intelligence agencies. The fact that the press feel aggrieved that the principle of open justice is necessarily limited by the Bill that we are now considering again leads to the impression that something perfectly unconstitutional and disgraceful is being put forward.

I have never taken that view and have agreed with the Bingham institute and Tom Hickman in particular in the way in which they have approached the problem. However, the Government have not done themselves any service by the way in which they produced a Green Paper and put forward far too broad terms, which gave rise immediately to a justifiable negative reaction, and they are now rightly narrowing what they originally sought to do. We have to be careful to realise as we sit in this Chamber at this hour that what we are now doing will probably not enhance confidence outside but, rather, do the opposite, much as we regret it. We must do what we can to combat cynicism and lack of confidence in the work done by the security and intelligence agencies.

I sometimes worry that, unless we give our judges appropriate powers and discretion, we will in the long run also undermine public confidence in the judiciary. It will be most undesirable if the judges are seen merely to be rubber stamps. I just want to give one example. The only time I took part in closed evidence material proceedings was when I represented the People’s Mujahideen of Iran, which had been proscribed by Jack Straw and was seeking to have the proscription removed. It was prevented from collecting funds, having meetings or publishing material. I turned up as its advocate. There was a special advocate but the special advocate was unable to be of any use at all because what we needed to know was the gist of the case against the People’s Mujahideen of Iran.

After two days, my clients came to me and said that this was a completely unfair procedure, that they did not have the faintest idea of the gist of what they were supposed to have done and that they were now going to withdraw from the proceedings and withdraw my instructions. I perfectly understood their view. Later, they chose another counsel, David Vaughan QC, who went to Luxembourg. The Court of Justice in Luxembourg eventually found in their favour, as a result of which I think that the organisation is no longer proscribed.

I say all that because, having lived through that experience, I understand perfectly why the closed material procedure causes such anxiety to the press, to members of the public who take an interest, to those who go through the procedure and to the special advocates. It is no use saying that special advocates underrate their own capacity. They have to live with this procedure and do the best they can, and I perfectly understand why they have these reservations.

[Baroness Berridge]

My Lords, I rise briefly to concur with the comments of my noble friend Lord Lester, as well as my noble friend Lord Hodgson, particularly bearing in mind his quote about the possible impact on our society. Although we had an incredibly in-depth legal discussion on the previous group of amendments, I felt some frustration as what we were rightly considering was whether we can in particular cases get the least imperfect solution. That is the purpose of the Bill. However, I believe that there is a wider purpose—that of public confidence in our judicial system, which, along with the Royal Family, is one of only two institutions in our society that have remarkably high levels of public trust.

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[Lord Falconer of Thoroton]

The noble and learned Lord referred to Clause 11(5), which states:

“Nothing in sections 6 to 10 … affects the common law rules as to the withholding, on grounds of public interest immunity, of any material in any proceedings”.

He referred to paragraph (c), but I am looking at paragraph (b). Does it mean that, in considering a PII application, the court cannot have regard to the subsequent possibility of a CMP application?

[Lord Lester of Herne Hill]

My Lords, perhaps I may ask a question related to the same provision. Subsection (5)(c) states that nothing in those sections,

“is to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the Human Rights Convention”.

I take it that what that means is, “in breach of the duty imposed by Section 6 of the Human Rights Act”, which requires courts to act in a way that is compatible with convention rights, including Article 6. One might think about amending that paragraph to make it clear that one is talking about not just the international treaty but domestic law, which imposes that duty under Section 6 of the Human Rights Act. Can thought be given to that?

[Lord Wallace of Tankerness]

Certainly, it could be thought about. We just wanted to make it clear in the Bill that Article 6 was pertinent. I am answering this to the best of my ability. The noble and learned Lord asked whether Clause 11(5)(b) ousted PII when a court was thinking about closed material proceedings. I am not sure if that was his question.

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[Lord Wallace of Tankerness]

My Lords, once again I thank my noble friend for moving his amendment. It highlights an important issue in the Bill relating to judicial discretion. Under the proposed proceedings, the Secretary of State would apply for a declaration that a closed material procedure might be used in the case. The judge will need to be satisfied of two things before he grants the application. The two conditions set out in Clause 6(2) are that the material is so relevant that normally a party would be required to disclose it, and that disclosure of the material would damage national security.

The construct is that if both conditions are met, there is no discretion; the judge says that this is a case where a closed material procedure will happen. As I started to explain prior to the dinner break, that is a gateway. It does not mean that every piece of material is necessarily going to be the subject of evidence led in closed proceedings. Things would then move on to the second stage where, similar to what happens in PII, evidence documents are then tested. It may be that, subject to proper redaction, certain documents then could be admitted, or permission might be refused for them to be in closed material proceedings and they could be admitted to open proceedings if the redaction was made. In other words, the redaction would be the non-disclosure. Equally, as indicated in Clause 7(1)(d), if permission is given by the court not to disclose material, the rules of court must provide that the court should consider requiring the relevant person to provide a summary—the gisting—of the material. As subsections (2) and (3) of Clause 7 indicate, there are consequences. If the court does not give the relevant person, most likely the Secretary of State, permission to withhold material and the Secretary of State elects not to disclose it, there are consequences that can flow from that and these are set out in Clause 7(3).

That is the process we envisage. Obviously, the court will be assisted and will receive representations from special advocates. It is the intention that the court should have the power to refuse non-disclosure or permit non-disclosure only to parts of a document or require summaries or require a party to take action for refusal to disclose or to summarise—for example, not to take certain points or to make concessions. That is certainly the intention. I am more than willing to look at the wording to see that it gives effect to the intention.

[Lord Lester of Herne Hill]

Is the answer to the noble and learned Lord, Lord Falconer, that the principle of proportionality is intended to apply here—in other words, that the court must exercise a sense of proportion once a case is through the gateway? If that is so, it is very important. Can the Government think about writing in the need for proportionality as the previous Government did in their Equality Bill?

[Lord Wallace of Tankerness]

My Lords, I am not conceding at this point that it is proportionality. The dynamic of representation is from special advocates and the court considering the material may be able to disclose a particular document if there are certain redactions. I understand that that is the nature of many of these cases and that representations can be made.

The important point I wish to make is that that is at the second stage. The amendment which my noble friend has moved relates to the first stage. That is a gateway which we believe the case ought to be allowed to go through if the two tests are met—namely, that it is a case where disclosure of material is required. We envisage that the Secretary of State would present the material to the court. If there were a vast number of documents, he could present a sample, giving the flavour of why he believes that issues of national security are involved, and ask for the principle of closed material proceedings to be accepted. But the detail takes place at the second stage. Therefore, our view is that the discretion would not be appropriate at the first stage because it is at the second stage that individual documents are being looked at. If the two tests are met, it is important that closed material procedures are allowed to take place, although what actually becomes closed material will be subject to no doubt considerable discussion, debate and representation. It is for that reason that we do not believe it would be appropriate to allow judicial discretion in these circumstances.

However, I certainly take the point about Clause 7(1)(c) that was made by the noble and learned Lord, Lord Falconer, and referred to by my noble friends Lord Hodgson and Lord Thomas. If they feel that that is a total barrier and does not allow the kind of discussion, debate and representation to be made at the second stage that we clearly intend should be part of this process, we are happy to look at it.

[Lord Wallace of Tankerness]

My Lords, if the test is made as to whether it,

“would be damaging to the interests of national security”,

with all due respect, I do not think that is a trivial matter, and I do not think the Secretary of State would actually seek to do it if it was a very minor matter. We are talking about matters that would have to satisfy the court that it,

“would be damaging to the interests of national security”.

That is quite a serious level of consideration. We are not talking about something that is trivial. What I am trying to say is that if the Secretary of State sought to do something that perhaps was not so much in the interests of national security but might be thought in some way to be hiding an embarrassment, as is clear also from the Bill—I think it is in Clause 10(4)—special advocates are engaged at the gateway stage and obviously we would make representations to that effect. If the court was not satisfied that this was a matter of damaging the interests of national security, the test would not be met and it would not be appropriate for the closed material procedure application to succeed.

[Lord Lester of Herne Hill]

I was trying to be helpful—and obviously failing—in asking why the Government do not accept that the principle of proportionality must apply at the second stage. It is an ancient principle of our common law that you do not take a sledgehammer to crack a nut. Provided that the judge has that discretion, it seems a very important safeguard. Could whether or not to write it into the Bill be considered before Report?

[Lord Thomas of Gresford]

If I may add to that, my Amendment 58 seeks to add words to Clause 7(1)(c) that would introduce a test of proportionality. Clause 7(1)(c) says,

“that the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security”,

to which my amendment would add,

“and that damage outweighs the interests of justice in disclosure”.

That would introduce a balancing test for the judge. As I understand what my noble and learned friend is saying, Clause 6(2) is concerned with the gateway and that could be satisfied by the production of a sample of material. But when you get to the second stage, the judge would be considering things in absolute detail, endeavouring to perhaps make things available by redaction or other means. Even when doing that, my Amendment 58 would be a very appropriate addition to Clause 7(1)(c).

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[Lord Lester of Herne Hill]

I am sorry to pursue the matter once more. When a judge is deciding on the scope of an injunction, or on whether a restraint of trade is no more than is necessary, that judge is then applying the principle of proportionality. I do not understand why the same does not apply here. When the judge is deciding on such things as redaction and looking at documents, surely he or she will decide that there should not be overkill, that the interests of justice are to be weighed and that the principle of proportionality should therefore apply. However it is expressed, that is the same as the European test under both EU and convention law. It is also the same under our own scheme. I do not understand why that does not apply here.

[Lord Wallace of Tankerness]

My Lords, I think I have already replied to my noble friend. I indicated that he had raised the issue of proportionality and that I would not make a concession on that point on the hoof. However, I also undertook to consider it.