Justice and Security Bill [HL]

Lord Lester of Herne Hill Excerpts

Monday 23rd July 2012 Lords Chamber

[Lord Pannick]

My Lords, I have added my name to this amendment. Nobody who has listened to or read our debates on Part 2 of this Bill over the past few weeks could doubt the importance or difficulties of the issues that we have been considering. Parliament may well decide that it is necessary to include these provisions in Part 2 but they undoubtedly are a departure from the fundamental principles of the common law. There is no doubt that they have a considerable novelty. It is essential that Parliament keeps these procedures under close review. Indeed, how these provisions are operating in practice will be vital to the balance between justice and security, which the noble and learned Lord the Advocate-General for Scotland has repeatedly and correctly in my view emphasised is the primary concern. An obligation on the Secretary of State to bring these matters back to Parliament for an extension of these provisions after a year will focus the mind of the Secretary of State and officials. It will give this House and the other place an opportunity to look at what has happened in practice. I hope that we will also then have the advantage—and it will be a real advantage—of seeing a report from the much respected independent reviewer of terrorism legislation, Mr David Anderson, on how these provisions have been applied.

I hope that I am not out of order in saying that I would very much hope that noble Lords might have the opportunity to hear directly from Mr Anderson, as we always benefited and still benefit from hearing his equally respected predecessor, the noble Lord, Lord Carlile of Berriew. The noble and learned Lord the Advocate-General for Scotland might want to suggest to his right honourable friend the Prime Minister that it would be most helpful to noble Lords if Mr Anderson were able to express views in this House as a noble Lord and participate in our debates. Whether we hear from Mr Anderson directly or indirectly I strongly support the amendment.

[Lord Lester of Herne Hill]

I am not sure that David Anderson QC can be made a Peer with sufficient speed to meet the wish of the noble Lord, Lord Pannick, but I can tell the Committee that the Joint Committee on Human Rights has asked him to give further evidence and we are anticipating preparing a report in time for Report stage that will include his views. That part of the amendment may be met through the committee system in an ordinary way.

[Lord Beecham]

My Lords, the sun has already set here, although not in Newcastle or even further north, so I shall not detain the Committee long. I support the amendment moved by the noble Baroness. She is absolutely right in what she said. I make an additional suggestion to that of the noble Lord, Lord Pannick, which is that the Intelligence and Security Committee could look at the position at the end of the year. Its deliberations could no doubt inform the discussion that will take place here and in the House of Commons in relation to an annual renewal. A number of assertions have been made about the likelihood of there being only a small number of cases and the impact of the proposed changes. Following the precedent referred to by the noble Baroness, it would be well to monitor those at least for a period until we can see clearly how the legislation works out in practice. I commend the amendment to the Committee.

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Moved by

[Lord Lester of Herne Hill]

90: After Clause 14, insert the following new Clause—
“Overriding objectives
In performing their functions under this Part, the Secretary of State and the court must have regard, in particular—(a) to the overriding objective of protecting the interests of justice and fairness, and(b) to the need to ensure that any interference with the principle of open justice is no more than is necessary to protect the interests of national security.”

[Lord Lester of Herne Hill]

My Lords, the noble Lord, Lord Campbell of Alloway, once gave me some very wise advice. It was a kind of rebuke. He said, “Never make a serious point after the dinner hour”. I am sure that that was indeed wise advice, but I am going to make a serious point nevertheless.

The noble Lord, Lord Pannick, and I listened very carefully to the debate that took place on 11 July when the noble and learned Lord, Lord Wallace, indicated that he could not make a concession at that time about the principle of proportionality, but he would listen very carefully to what had been said by the noble and learned Lord, Lord Falconer of Thoroton, my noble friend Lord Thomas of Gresford and myself.

The principle of proportionality sounds foreign except to those who have had a proper classical education who will remember that the Greeks themselves and their philosophers developed the idea of the golden mean and a sense of proportion. That idea is rooted in our legal and political system and is as English as roast beef, Yorkshire pudding, and roast potatoes. It simply requires that the decision-taker should not use a sledgehammer to crack a nut.

Amendment 90 seeks to embody in the Bill principles which have to be taken into account by the Secretary of State and by the court in the way in which they interpret and apply the provisions of the Bill as a whole. It therefore requires that, in performing their functions under Part 2, the Minister and the court,

“must have regard, in particular … to the overriding objective of protecting the interests of justice and fairness, and … to the need to ensure that any interference with the principle of open justice is no more than is necessary to protect the interests of national security”.

Even though the Government may be unable to accept some of the other more prescriptive amendments, I very much hope that this amendment will find favour. I beg to move.

[Lord Pannick]

My Lords, I added my name to this amendment because, in light of the importance, the difficulty, the novelty, and the sensitivity of the issues that we have been debating, it is highly desirable that the Bill states on its face the objectives which the Secretary of State and the courts must seek to advance. The overriding objective of the courts is, indeed, to protect the interests of justice and fairness. That is what the Civil Procedure Rules state. Any interference with open justice must surely be confined to what is necessary, as the amendment says,

“to protect the interests of national security”.

Who could possibly object to that?

[Lord Butler of Brockwell]

My Lords, I rise to make a brief point. I do not doubt the seriousness of the noble Lord, Lord Lester, even after dinner—nor his good intentions. However, it seems to me that the word “overriding” introduces a dangerous note of ambiguity. What does it override?

[Lord Lester of Herne Hill]

I am sorry to interrupt but those words come from our governing Civil Procedure Rules. I did not invent them. It is described as the overriding objective because that is the fundamental principle of the rule of law.

[Lord Butler of Brockwell]

I think we agree that there are certain circumstances where the interests of justice and fairness should not override national security. We are seeking a balance. I would have no objection to this amendment if it said,

“must have regard … to the objective of protecting the interests of justice and fairness”,

followed by subsection (b).

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[Lord Wallace of Tankerness]

My Lords, it is fitting, albeit after the dinner hour, that we come to consider this amendment at the end of our detailed consideration of the Bill in Committee. My noble friend Lord Lester and the noble Lord, Lord Pannick, have proposed an amendment that highlights important issues of principle that we have come back to continually in our debates, particularly when considering Part 2. It covers the values of justice and fairness, and how we ensure a proportionate response when the interests of the safety and security of the United Kingdom appear to conflict with the principle of open justice.

I agree with both noble Lords about the importance of these values. The fundamental rights to justice and fairness have guided the development of the provisions of this Bill from the beginning. I hope it has become clear during our debates, and as I said following the contribution earlier by the noble Lord, Lord Reid of Cardowen, that I do not believe there should be a binary choice between justice on the one hand and security on the other. That seems to be a false choice. The question is what we can do in the best way to maximise our achievement of both aims. The Lord Chancellor made clear in his foreword to the Green Paper that preceded this Bill that:

“These are matters of profound importance which go to the heart of our democratic values and our belief in human rights, justice and fairness. Inevitably they are immensely complex and difficult—but we must not shy away from this debate”.

I do not intend to go over all the points that have been made on this amendment and in earlier debates. Many of them are very much the issues that the Government have wrestled with when trying to formulate the provisions of this Bill. For example, the Government believe that there is scope for securing greater justice and fairness in our approach to civil proceedings. In particular, we have highlighted the difficulties where sensitive national security information is so relevant to the case that the current arrangements require the Government to make a choice between the justice of a fair judgment based on all the relevant evidence, even if that risks damage to national security, and the need to protect the safety and security of this country, even if that is at the expense of costly settlement in relation to serious allegations that the Government believe are unmeritorious. I therefore agree with all noble Lords who have spoken both to this amendment and in our preceding debates that these values are important.

I cannot fully support the amendment because I am not satisfied that the Committee has been given a satisfactory explanation of its effect in practice. It is all very well to agree the principles, but how would the Secretary of State behave differently under the present provisions in the Bill, and how would the courts behave differently? The Bill sets out in clear language the duty and functions of the Government and the courts, and if the Committee disagrees with that formulation, that is the whole purpose of our deliberations both at this stage and the next.

The second point is that the Government view the amendment as unnecessary as the Bill encapsulates the Government’s respect for the interests of justice, fairness and proportionality. I know that it is a matter that we have debated and which I confidently predict we will continue to debate.

Fundamentally, the Government consider that in the very narrow circumstances in which, under this Bill, material may be heard in closed session, such material should be considered by the court rather than excluded from it by a public interest immunity certificate. We must also protect information that is shared with us in confidence or that would inhibit the ability of our security intelligence agencies to keep us all safe if there is a risk that it could be disclosed.

Fairness, justice and proportionality are also reflected in the narrowness of the application of Part 2 of the Bill and the safeguards that are set out there. The Secretary of State must first consider public interest immunity before applying for a declaration that closed material proceedings may be used. Closed material proceedings are available only where disclosure of the material would damage national security and not on some wider public interest ground. Even where the court grants a CMP declaration, those civil proceedings remain entirely open, pending painstaking scrutiny by the court of each piece of material which the Government wish to have heard in closed session. If the court refuses to hear material in closed session, the court has real powers in the event that the Government nevertheless wish not to disclose the material. The court can require concessions or can exclude the material.

Above all, we believe that the CMP proceedings will be fair. I say that with confidence because the Bill makes it absolutely clear that it does not affect Article 6 of the European Convention on Human Rights, which guarantees a right to a fair trial. The Norwich Pharmacal provisions are strictly confined to intelligence service information or to where the Secretary of State has certified that certain types of disclosure would damage the interests of national security or international relations. The Bill makes provision for judicial scrutiny of the certificate.

It is these carefully calibrated provisions that respect justice and fairness and ensure that a proportionate approach is taken to any interference in the principle of open justice. I accept and understand that a number of noble Lords may yet remain to be persuaded by this calibration. It is on these detailed points that I am sure we will continue to look further and use our energies. I will endeavour to persuade noble Lords of the merits of the Government’s position.

I think we have had very useful debates in Committee. I accept that there are a number of issues on which noble Lords in Committee still have to be persuaded, but in relation both to civil proceedings and to the risk arising from the possibility of court order disclosure of sensitive material through the Norwich Pharmacal jurisdiction, I think there has been a general acceptance in most contributions that some provisions were required, albeit in a very small number of cases. I accept and acknowledge that the opposition Front Bench reserved its position on closed material proceeding.

I am conscious that nevertheless there are still points of detail that we will return to on Report. I have sought during Committee to give a detailed explanation of the rationale for the choices that the Government have made in bringing forward these provisions. I hope that that has helped to shed light on where the Government are coming from, and to inform the debate on these crucial, sensitive and important issues.

It is important that we continue these conversations as scrutiny of the Bill continues. As noble Lords are aware, I am keen to continue to engage on these issues outside the Chamber. I am sure that we will not use all our coming weeks in recess to focus on these, but there is a considerable amount of time during which I hope we can engage and consider them. I recognise their importance, and we will, I hope, have an opportunity to reflect and debate these details further on Report after the Recess. In that spirit, I would be grateful if my noble friend would agree to withdraw the amendment.

[Lord Lester of Herne Hill]

My Lords, this amendment has given the Minister the opportunity to look back on the proceedings in Committee, and it enables me to say that we very much appreciate the way in which he has done so and his open-mindedness. I should also like to say, coming back to Amendment 90, that the role of the Opposition in this area is of great importance. If the Opposition had simply accepted the Government’s position, there would have been very weak scrutiny. That is what happened in the United States Congress when the Patriot Act was introduced, where I am afraid Congress did not do its job properly. That cannot be said to be true of this House.

My noble friend asked: what is the point of Amendment 90—what is it intended to achieve? The noble and learned Lord, Lord Falconer, answered that by referring to the Constitutional Reform Act 2005. The value of having general principles is especially important in this area. We do not have a written constitution. We do not have a constitutional Bill of Rights. We rely on the European Convention on Human Rights under the Human Rights Act as a kind of substitute for a domestic charter of rights.

The Government’s attempt to incorporate principles in the Bill is in Clause 11(5). It is curiously drafted, but it relies, among other things, on Article 6 of the European Convention on Human Rights. I do not think that that is a sensible way to articulate the general principles, which are part of our legal heritage and political system. I would prefer the principles by which we stand under common and statute law to be in the Bill. Amendment 90 is intended only—apparently, this is common ground, because it is what the Government seek to achieve—to ensure that the two principles, which have to be fairly balanced, are taken into account in the way in which Ministers exercise their discretion and the courts exercise and apply the law. I take the point of the noble Lord, Lord Butler, that one does not necessarily need the word “overriding”, but it is in the civil rules of procedure. I am not persuaded at all that the case has been made for an absence of good British principles that are not wholly dependent on Article 6 of the European convention which, for various reasons, does not do the job perfectly.

Having said all that, of course I beg leave to withdraw the amendment.

Amendment 90 withdrawn.