Crime: Domestic Violence
Lord Lester of Herne Hill Excerpts(10 years, 7 months ago)
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Lord Wallace of Tankerness
My Lords, I echo what the noble Lord said about it being a wholly reprehensible crime. Among the many concerns, I am not aware of the particular question of sentencing. There may well be individual cases where individual sentences are not acceptable. The important challenge for us, particularly in the light of the HMIC report, is to improve policing. It is unfortunate that the report has discovered a cultural issue where:
“Domestic abuse is a priority on paper but, in the majority of forces, not in practice”.
We have to address that issue and tackle it in following up the recommendations of the HMIC report.
Lord Lester of Herne Hill (LD)
My Lords, as my noble and learned friend probably knows, the Joint Committee on Human Rights, on which I serve, is conducting a major inquiry into this general subject. Without being in any way complacent, would he agree, as I think he has already said, that it is a matter of some satisfaction that the former Director of Public Prosecutions, in his 2013 report, found that, for the first time, three out of four violence against women and girls prosecutions have resulted in a conviction; that domestic violence, rape and sexual offence prosecutions have reached their highest conviction rate to date; and that guilty pleas have led to most successful outcomes, avoiding the victims having to face the ordeal of a trial?
Lord Wallace of Tankerness
My Lords, my noble friend rightly points out that the number of guilty pleas has also increased, which is helpful in relieving victims from having to give evidence. Although prosecutions are at their highest level, it is also fair to say, in tribute to the previous Director of Public Prosecutions, that when he saw the reduction in the number of referrals in the reports and information which he was given and published, he immediately convened a round-table conference among the key stakeholders. Six action points were taken forward from that, which my honourable friend the Solicitor-General announced in the other place. I know that it is also the case that the present Director of Public Prosecutions takes this crime very seriously.
Female Genital Mutilation
Lord Lester of Herne Hill Excerpts(10 years, 9 months ago)
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Lord Wallace of Tankerness
My Lords, the noble Baroness mentions France. My understanding is that there is no specific crime of female genital mutilation in France. Nevertheless, I think that other issues are involved there which are somewhat different. However, I reassure the noble Baroness that the Crown Prosecution Service is looking at experience in different jurisdictions to try to get information on best practice. With regard to hospitals, which she mentioned, as from next month there is intended to be a reporting requirement from hospitals of cases which they discover, and a database will be built up. It is important to remind those involved that there is a legal obligation on NHS staff to safeguard children and young people and that, if they identify someone they consider to be at risk, or who has already undergone FGM, they must respond appropriately by involving the social services, which, in turn, can involve the police.
Lord Lester of Herne Hill (LD)
My Lords, this morning the BBC revealed that, since 2009, some 4,000 patients have been treated in London hospitals for the after-effects of FGM. Clearly, this is a very widespread and serious health problem. Will my noble and learned friend look at our own jurisdiction with regard to civil protection for forced marriages and consider whether, instead of relying only on the criminal process, with the difficulty of the burden of proof and all the rest of it, it might not be sensible instead to amend the law to ensure that civil protection orders can be imposed in the family courts, as in the case of forced marriage?
Lord Wallace of Tankerness
My noble friend makes an important point. Last month, there was a round-table discussion involving Ministers, the Crown Prosecution Service, the Director of Public Prosecutions and a whole range of government departments which have an interest in this issue. The fact that this matter goes across a number of departments has been reflected in the questions asked today. One of the action points to be taken forward by the Ministry of Justice is to seek views on how a civil prevention order might work alongside criminal legislation to protect potential victims because protection—preventing it happening in the first place—is vital, as well as prosecuting those who have perpetrated this offence.
Marriage (Same Sex Couples) Bill
Lord Lester of Herne Hill Excerpts(11 years, 5 months ago)
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Lord Anderson of Swansea
My Lords, it is good to follow the noble and learned Lord, who describes himself as an ordinary person but who happens to be a former Lord Chancellor, one of the most distinguished lawyers in this country. I congratulate the noble and learned Lord on his diligence and ingenuity. I wish that I had thought of the amendment, in which he reproduces the title of the Bill. He clearly sees both sides and has made a serious effort to build a bridge between what might otherwise have become a very polarised debate. Yet, he has given both sides the substance of what they seek.
There are those who believe in traditional marriage, the definition that has existed since time immemorial, and others who wish to extend the definition to include same-sex couples. The Government wish to change that definition with all deliberate speed. I shall not linger on this matter but the deliberate speed is something that puzzles many of us, given that it looks as if the Government were converted to this idea only some time after the election manifestos of three years ago. Now there is nothing stopping them in their haste to get the Bill onto the statute book. Tradition has to be got rid of speedily.
For some, marriage is not just a ceremony with an approved form of words and mutual vows but a sacrament that has existed for many years. I, for example, look forward to my wife and I renewing our vows in a church with the local vicar on the occasion of our golden wedding anniversary in September. For us, our marriage 50 years ago was not some simple ceremony but a form of sacrament before God. Some hold that dear for that reason. For others who have come to their view only over the past year or two—and I include the Government and the official Opposition—the extension of the definition is necessary for equality. Perhaps that is as part of a Damascene conversion as they did not think so a year or two ago.
The amendment of the noble and learned Lord allows two things. Same-sex couples will be able to say in all honesty that they are married and truthfully assert that status when they discuss their marriages with other people. At the same time, the proposal recognises that same-sex marriages cannot be the same as traditional marriages. The noble and learned Lord mentioned characteristics such as non-consummation, adultery, being physically different, and the effect on children, a subject in which he has had a close interest. It is therefore absurd to try to make the same that which is essentially different. The amendment therefore allows for same-sex couples to be distinct but at the same time to be married and to be able to say so when they discuss their relationship with other people. It is an ingenious effort to bridge the gap, which I wholeheartedly support and commend to your Lordships’ House.
Lord Lester of Herne Hill
My Lords, we all agree that marriage is a vital institution. The exclusive commitment of two individuals to each other nurtures mutual love, support and stability. For those who choose to marry and their children, marriage provides legal, financial and social benefits and, in return, legal, financial and social obligations.
Two competing views of marriage were helpfully identified by Justice Alito in his opinion in the United States case of Windsor on 26 June, in which he dissented from the majority—the majority having decided that the denial by the Defense of Marriage Act of federal benefits to same-sex couples lawfully married under New York law was unconstitutional.
In his dissent, Justice Alito referred to the traditional conjugal view that sees marriage as,
“an intrinsically opposite-sex institution—the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so … Throughout human history and across many cultures, marriage has been viewed as an exclusively opposite–sex institution and as one intrinsically linked to procreation and biological kinship”.
That is the view of my noble and learned friend Lord Mackay and others who have spoken so far.
Justice Alito then referred to what he called the newer view that is the consent-based vision of marriage,
“a vision that primarily defines marriage as the solemnization of mutual commitment—marked by a strong emotional attachment and sexual attraction—between two persons. At least as it applies to heterosexual couples, this view of marriage now plays a very prominent part in the popular understanding of the institution … Proponents of same-sex marriage argue that because gender differentiation is not relevant to this vision, the exclusion of same-sex couples from the institution of marriage is,
what he describes as,
“rank discrimination”.
The Bill removes that rank discrimination by securing equality for same-sex couples according to the newer view of consent-based marriage while protecting the traditional conjugal view of opposite-sex marriages for religious organisations such as the Church of England, the Catholic Church and others which do not wish to celebrate or solemnize same-sex marriages. It protects freedom of religion in that important way.
The supporters of this group of amendments—I shall make only one short speech on all of the amendments, which are grouped together on an industrial scale—do not like the Bill and seek to substitute for the phrase “the marriage of same sex couples” the phrase “marriage (same sex couples)”. They believe strongly in the traditional conjugal view of marriage as being much better, as we have heard, for the upbringing of children and they do not believe that the marriage of same-sex couples is to be regarded equally. They reflect their deeply held religious beliefs that I understand and fully respect.
However, these amendments would obscure the main purpose of the Bill, which is to enable same-sex couples to marry in accordance with the newer view of consent-based marriage because they are excluded under the traditional conjugal view of marriage. There should be no hierarchy that puts traditional marriage above consent-based marriage, whether in the definition of the marriage of same-sex couples or whether they are to be treated equally in all respects with the marriage of opposite-sex couples.
The attempt to define same-sex marriage differently from opposite-sex marriage while claiming that they are somehow equal would inevitably be seen by ordinary men and women in the street—and by me, as a not very ordinary man in the street, I suppose—as attempting to give the traditional view of marriage a superior status. It is essential to be sure that the marriage of same-sex couples is not regarded as less worthy than the marriage of opposite-sex couples. That is why I cannot support these amendments.
Lord Mackay of Clashfern
My Lords, I am obliged to all those who have taken part in this debate, whether supporting or opposing my amendment. It is interesting to hear what people have to say. I quite understand that the noble Lord, Lord Alli, does not like the brackets, but they have been put in by Government in the Bill’s Title. I thought, what else can I do but accept the Government’s guidance on the matter? However, I think perhaps that that is not the noble Lord’s most important point.
My noble friend Lord Deben, in a characteristic speech, said that the distinction between the two types of marriage was universally recognised, so why should it be recognised in the Bill? If it is universally recognised, surely it would be right to recognise it in the Bill because it is founded on the absolute fact of what occurs. The two are distinct. I do not try to separate them; I just distinguish because they are distinct in fact, and nobody can alter that. The idea that I am trying to wreck the Bill is not correct, I am sorry to say—well, perhaps I am not sorry; I should be glad to say that it is certainly not correct. I want to recognise in the Bill a distinction which, according to my noble friend Lord Deben—and who higher an authority?—is universally recognised. It damages the Bill in the eyes of ordinary people when it is not seen that that is recognised.
My noble friend said that I went on at length about children. I am sorry if I went on too long, but it is a very important factor. Children are very much at the centre of the institution of marriage as it was—and is until the Bill is passed. They are very much at the centre, and indeed, as your Lordships know, in relation to divorce and all that, elaborate provisions were made for children. Children are very important to marriage. There is a statement about children in the Bill which I regard as very important. Paragraph 2(1) of Part 2 of Schedule 4 states:
“Section 11 does not extend the common law presumption that a child born to a woman during her marriage is also the child of her husband … Accordingly, where a child is born to a woman during her marriage to another woman, that presumption is of no relevance to the question of who the child’s parents are”.
Therefore, the situation is that when two women are married under the Bill, and one of them has a child, that child has the same status as if the woman were single. If that is not a distinction—it should be recognised at some point, whether in brackets or otherwise—I do not know what an important distinction can be. If the Government want to improve on the brackets, I shall be happy that they should do so, but I believe that there is a universally recognised distinction between the marriage of two men or two women on the one hand and the marriage of a man and a woman on the other. These are facts that depend on something outside, and impossible to move, or remove by this legislation. The Bill would be improved by people realising what it does and recognising this universally understood distinction.
My noble friend Lord Lester quoted from the dissenting judgment of one of the Justices of the Supreme Court of the United States. He distinguished between the two types of marriage: the one slightly older and the more recent one. I want to include in the Bill recognition of that distinction. The quotation of the noble Lord, Lord Lester, seemed to imply the necessity for some form of sexual relationship in both types of marriage. I pointed out, and I think it has been accepted so far, that same-sex marriage is not gay marriage—it is quite wrong to describe it thus. It includes gay marriage, of course, but it is wider because it involves same-sex couples, whether gay or not. Platonic relationships are perfectly possible under the Bill.
Lord Lester of Herne Hill
I am grateful to the noble and learned Lord. The reason I was quoting Justice Alito was simply to say, as he did, that the choice is for the legislature, and that we have in the Bill protected both kinds of marriage. That is why I did so.
Lord Mackay of Clashfern
Exactly, the choice exists. We have chosen—I want to make it clear that we have chosen—to embrace both in our definition of marriage because that is what I am doing. The idea that my noble friend Lord Lester suggested, that I preferred one to the other or said that one was superior to the other, is quite unfounded so far as these amendments are concerned. There are later amendments that may go further, but this amendment strikes me as the absolute minimum to recognise the distinction that exists in fact. I moved the amendment and I would like to seek the opinion of the House.
Baroness Butler-Sloss
My Lords, I too have put my name to this amendment. It is a narrow and transitional amendment and does not in any way affect the fundamental underlying purpose of this Bill. Marriage registrars carry out a particularly attractive job. On the number of occasions where I have been to a civil ceremony, I have watched, with mounting enthusiasm, the way in which the registrar has made the marriage ceremony a really important occasion. I assume—and, indeed, I hope, since this Bill will become law—that the majority of registrars will give the same enthusiasm and pleasure to the single-sex couple as I have seen them do in those services. I am about to go to yet another great-nephew’s wedding, which will be a civil ceremony.
However, when a number of registrars took the job, the idea that marriage would be between single-sex couples was not even a blink on the horizon. I can understand perfectly well that those who come in in future will take a job in which they recognise that they will marry everybody, whether that is two males, two females or a male and a female. For those already in the post, for the reasons that the noble Baronesses, Lady Cumberlege and Lady Williams of Crosby, have both put forward, this is a small and special group. It would be particularly sad if, having given to the minority in this country the right to marry in the same way as the majority, we cannot recognise that there remains a minority who cannot take it. Are we to say that that minority, those who came into post before one ever thought there would be same-sex marriages, is not to be recognised at all?
As has already been said by the noble Baroness, Lady Cumberlege, what will these people do if they cannot marry but are ordered to do so? If this Bill will not permit them by the amendment to say no, will they have to resign? Will they get a job in this time of stringency and austerity in which we now live, when the job market is difficult? I ask the House to think about a small minority who would have had no idea that this would happen, and whose Christian beliefs would not permit them to marry the couples who will be able to marry by this Bill.
Lord Lester of Herne Hill
Will the noble Baroness explain why, when we brought in the race and gender discrimination and other controversial legislation, we never made transitional provision for those public officers to be able to discriminate, as they had been before, that we should now do so with this form of discrimination?
Baroness Butler-Sloss
It happened with abortion but, if I may say so, it was not a marriage. We all know how special marriage is; for goodness’ sake we would not all be here, voting in different ways, if we did not think that marriage mattered in a special way. It is for that reason, despite what the noble Lord, Lord Lester, says.
Lord Alli
I understand the point the noble Baroness, Lady Williams of Crosby, is making, but it undermines her argument when she and the noble Baroness, Lady Cumberlege, seek to rubbish the national panel for registration and the opinions it gave and question the core of what registrars are saying. They are saying that they do not want this.
In Committee, I said that we have to divide church and state, and this is the other side of the coin. If the noble Baroness, Lady Williams of Crosby, wants me to accept what she just said, would she accept that the church has made it very clear that it wants an absolute opt-out? It has insisted, quite rightly, and I am happy that it has done so, that any individual priest or cleric, no matter how strong their belief in same-sex marriage, should not be allowed to opt in until the religious organisation has agreed. There is a blanket exemption, so if I were a priest—the Bishop of Salisbury—and I deeply believed that I should be allowed to marry gay couples, why could I not opt in? There is a blanket ban from the churches. Individual opt-in and opt-out are not on the table. The churches themselves ruled it out at the beginning of this process. No priest can opt in; no registrar can opt out. If we accept the case for religious organisations barring individuals from opting in, we, too, must accept the case for civil registrars not being able to opt out. We have discussed this issue at length; we need to resolve it today.
Lord Lester of Herne Hill
My Lords, I cannot remember whether the Race Relations Act 1976 had already come into force when I got married 41 years ago in the Brixton register office. However, suppose that that Act had not come into force at that time. In Brixton, there are a lot of black people. If I had wanted to marry a black person and we turned up at the Brixton register office, where the registrar looked at us and said, “I’m very sorry, but I have a conscientious objection to mixed marriages. I don’t wish in any way to undermine you, but I just can’t do this”, that would be impermissible. A public servant who is performing statutory duties must not discriminate on any forbidden grounds.
Lord Cormack
Will my noble friend concede that there is a difference between racism, which is bigotry, and a deeply held belief?
Lord Lester of Herne Hill
My Lords, I understand the difference. Bigots normally have deeply held beliefs. My point is not about the sincerity of the belief but the discriminatory conduct of a public officer. We have never before, in the various phases of introducing and enacting—
Baroness Northover
My Lords, before the noble Lord answers, I remind the House that noble Lords can be interrupted with a brief question for clarification. Noble Lords have an opportunity to make a speech—one speech.
Lord Lester of Herne Hill
My Lords, of course Parliament may decide to create an exception through this amendment. I am explaining why I could not support it. The first reason is that it would legitimise discrimination by public officers who are performing their statutory duties. My noble friend Lord Deben says, “Let’s show a bit of generosity”. I reply, yes, let us show a bit of generosity to those who would be the victims of this practice, who would find that they could not have a civil marriage registered by a public official—that is all it is—because of his or her conscientious objection.
Lord Deben
I am sorry, but surely that cannot be true, because the case would never get to that. You would know that if a same-sex marriage had been offered, there would be a registrar who would be willing to do that. It would be privately arranged; there would be no victim in this. That is clearly different from what my noble friend says.
Baroness Northover
My Lords, I apologise, but we are moving away from brief questions of clarification and on to debate, which is permitted in Committee, but we are now on Report. Noble Lords will have a chance to speak if they have not already done so.
Lord Lester of Herne Hill
My Lords, my last point is simply that this is a very old story. In the case of Ladele, which was one of the cases that went to the Strasbourg court, our courts decided that a registrar could not exercise conscientious objection in relation to civil partnerships. The Strasbourg court upheld our domestic courts’ judgment to that effect. My noble and learned friend Lord Mackay of Clashfern took objection to it and we debated it at the time. The current position is that, under Strasbourg law as well as domestic law, there is no right to conscientious objection in this context, and nor should there be.
Lord Wallace of Tankerness
My Lords, in response to my noble friend Lord Higgins, the national panel has made it clear that it is not seeking this. He said that if no one wants this, it does not matter. However, I believe that it does matter.
The points made by my noble friend Lady Williams are very challenging to someone who has natural liberal instincts about the individual but, at the end of the day, after a great deal of careful thought and examination, the principle that persuades me that we are right in this is that when someone performs a function on behalf of the state we should not put into legislation something which allows them to act in a discriminating manner. I ask my noble friend to withdraw the amendment.
Lord Lester of Herne Hill
Would I be right in saying that if this amendment goes through, there will be detriment to people seeking to marry?
Lord Lester of Herne Hill
Would I be right in saying that if this amendment goes through the result will be detriment suffered by some who are seeking civil marriage?
Lord Wallace of Tankerness
My Lords, that might be a possibility, particularly in areas where there are very few registrars, as the noble Baroness, Lady Richardson, pointed out.
Lord Deben
As has been mentioned on several occasions, I want to expand on why I think this is a really dreadful amendment. It is dreadful for the reasons that my noble friend Lord Cormack has explained. He has amended the comments of the noble Lord, Lord Dear, because nobody really knows what people mean by traditional marriage. That is one of the difficulties. The amendment is a blunderbuss.
My problem is that if we put this into the Bill, that would suggest that somebody actually thinks it might need to be in the Bill. However, there is no reason for that. The noble Lord, Lord Pannick, is absolutely right about that. If we have to put this in, what other definitions of marriage will we have to put in? Do we say, “Nothing in this Act shall counteract the opinion that some people believe X, Y and Z”? All Acts would be interminable and intolerable if we added all the things that they did not have a reference to, but that is exactly what the noble Lord, Lord Dear, has put forward.
However, the problem is much more basic than that. There is a fundamental difference, although it is not something that is shared across every side, in arguing that in all circumstances we should be wary of not having a conscience clause. I am always in favour of conscience clauses because I never know when they will come for me. That is my honest view about conscience clauses. Therefore, I always want to lean over backwards towards people who are in a position—not one that they have chosen—where they may feel that their conscience prevents something. That is why I take that view. However, I do not believe that you can reasonably undermine the value of a Bill by putting into it a phrase that is designed to say, “Look, we’ve had to pass this Bill but a lot of us don’t really think like that. We’re not really on that side and we just want to—nudge, nudge—put this in to make sure that you realise that we weren’t really on that side”. That is a game to deny the reality of the Bill.
The Bill is a generous one and if it is too generous, it makes up for the exact opposite way in which we have acted until now. Please, do not allow the Bill to be undermined by an addition of this kind, which is already a matter of disagreements between the two people who are proposing it and which, after all, could be expanded to any lengths you like to include anybody who might feel that they had not had their particular views heard. It is not a sensible amendment and we should refuse it.
Lord Lester of Herne Hill
My Lords, the law on traditional marriage is contained in the Marriage Act 1949. Nothing in the Bill affects the rights and duties under the Marriage Act 1949 of what is called traditional marriage. If it did so, the amendment might have some kind of purpose, but it does not. If it does not undermine the ability to marry under the Marriage Act, does it create any sort of belief that that form of marriage is in some way undesirable? No, it does not. Nothing in the Bill suggests anything wrong with the traditional view of marriage. What it does do is to create another form of marriage and treat it as part of the concept of marriage. That does not undermine traditional marriage unless you take the view, as some do, that we should not have the Bill at all.
Baroness Royall of Blaisdon
My Lords, the noble Lord, Lord Dear, spoke of traditional marriage being worthy of respect. Indeed, traditional marriage, in his words, is worthy of respect. But, the great thing is that after the passing of this Bill, same-sex marriage will be equally worthy of respect. That will be a matter for celebration. This is because at the moment marriage is a voluntary union of one man and one woman, but with the passing of this Bill I am delighted that marriage will be extended to the voluntary union of one man and one man, and one woman and one woman. I think that we are really motoring along.
No one is asking people to abandon their beliefs. The Bill does not suggest in any way that they should or that they must, as has been said so many times in the debates thus far. The reality is that it is absolutely clear that alongside the protections in the Human Rights Act, the common law protection of freedom of speech and the existing protections in the Equality Act 2010, religion or belief will continue to ensure that it is unlawful for an employer, service provider, public body or anybody else to discriminate. There is absolute freedom of speech. The Minister could not have been clearer when she said in Committee that:
“The Bill absolutely makes it lawful, and continues to make it lawful, for people to believe that marriage should be only between a man and a woman”.—[Official Report, 17/6/13; col. 72.]
That is clear.
Marriage (Same Sex Couples) Bill
Lord Lester of Herne Hill Excerpts(11 years, 6 months ago)
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Lord Dear
My Lords, I am partly confused and certainly not in agreement with what I think I heard the Minister saying. I feel that we have already heard that the Equality Act has been shot through a number of times as being inadequate. A number of cases have been cited. Clearly, the freedoms it set out to offer have not always been available and for the first time—
Lord Lester of Herne Hill
I am sorry to interrupt the noble Lord but I strongly object to what he has just said. There is no evidence that the Equality Act has been shot through with anything or has failed to work properly. I have already said in a previous short speech that the Human Rights Act solves the problem but he does not seem to have followed what I said, so I will say it again. The Human Rights Act says that all legislation, old and new, must, if it is possible to do so, be construed compatibly with the convention rights. Those rights include freedom of conscience, religion and belief and freedom of expression. If we wanted to get into a real muddle, we would start writing stuff into this Bill which then has to be read down by the courts. The best thing to do is to go for legal certainty and my view is that the law is quite certain on that.
Lord Dear
Of course, I defer to the noble Lord’s view on this but nevertheless we have heard of a number of cases in your Lordships’ House tonight where people have expressed a view and been sued for it. I do not in that sense move away altogether from the point I am trying to make. There are people out there who are now very concerned about opening their mouths and saying anything at all, for fear of being dubbed homophobic. There will certainly be more if this Bill comes into law in its present form. Although I am more than happy to withdraw my amendment at this stage, I will seek return to it on Report and may very well seek to divide the House.
Justice and Security Bill [HL]
Lord Lester of Herne Hill Excerpts(12 years, 1 month ago)
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Lord Beecham
My Lords, I thought it might help the House to take the unusual step of speaking early in the debate on behalf of the Opposition in order to make our position clear in relation to the amendments in this group, in particular those that emanate from the report of the Joint Committee on Human Rights. I note, incidentally, that yesterday the Deputy Prime Minister endorsed many of its recommendations. In answer to a question from my right honourable friend Sadiq Khan, he said:
“I am very sympathetic to a lot of what the Committee says, and the Government are considering its amendments with an open and, in many respects, sympathetic mind. I hope that we will be able to amend the Bill to allay those concerns in line with many of the recommendations made by the Joint Committee on Human Rights”.—[Official Report, Commons, 20/11/12; col. 428.]
I do not know whether the noble and learned Lord would be able, later in the debate, to indicate whether and when those expectations that the Deputy Prime Minister encouragingly aroused yesterday will be fulfilled. We already have some amendments that would not quite meet the Deputy Prime Minister’s intentions as expressed yesterday.
During Second Reading, I referred to the difficulty that we and Parliament as a whole face in calibrating the balance between the two principles embodied in the Bill’s title of “Justice” and “Security”. It has become increasingly clear that completely reconciling those competing desiderata is effectively impossible. We of course accept that the Government have genuine concerns about national security, even though, perhaps understandably, the Bill does not define the term, as was pointed out by a number of Members of your Lordships’ House, including the noble Lords, Lord Hodgson and Lord Deben, and the noble Earl, Lord Errol, during Second Reading. The noble Marquess, Lord Lothian, took the view then about national security that, “You know it when you see it”. That might be thought to be uncomfortably close to implying that security is in the eye of the beholder; in this case, a government beholder. It is impossible to provide a comprehensive statutory definition of what constitutes national security, but some guidance during parliamentary debates, of which later judicial notice might be taken, would be helpful in at least indicating areas that would fall outside the definition.
The Government’s other main concern, of course, is the difficulties that they face in presenting their case without the protection of closed proceedings, coupled with the cost—both reputational and financial—of having to settle cases in order to avoid disclosure. However, as we have heard repeatedly during the passage of this Bill through the House, the proposals constitute a radical departure from the cornerstone of our legal system: the right of a party to know, and to challenge, his opponent’s case. This right has been emphasised in the clearest terms in a number of judgments to which reference was made earlier in these proceedings, such as those of Lord Kerr and Lord Neuberger. Moreover, although the Government do not accept the point, they also appear to clash with the provisions of Article 6 of the European Convention on Human Rights, as powerfully argued by John Howell QC in his opinion for the Equality and Human Rights Commission. I understand that the Government are not prepared to disclose the legal advice that they have obtained on this point, effectively invoking their own closed material procedure on the issue.
The Government’s proposals in themselves constitute a significant reputational risk to our system of justice. In passing, it is interesting that, just as we are debating this Bill, the Government are announcing serious changes to the system of judicial review that are designed to make it much more difficult for their decisions in a whole variety of areas to be challenged. Your Lordships might think that a disturbing pattern seems to be emerging.
We are told, in relation to CMPs, that a number of claims are now pending. However, interestingly, the special advocates were denied access by the Home Secretary to any of the files, despite the independent reviewer of terrorism legislation, Mr David Anderson QC, upon whom the Government seem selectively to rely, supporting that request. We have recently seen in the Daily Mail an attempt to imply that the Government were facing the prospect of paying out millions to settle cases involving suspected terrorists, although even the Daily Mail, editorially, seems to be opposed to the Government’s proposals. But of course the procedures need not involve claimants of that description. They could apply to all civil claims where a national security justification might be advanced. So claims by a member of the Armed Forces or security services, or an innocent victim of what is euphemistically called “collateral damage” arising from military action, would also be caught by this procedure.
There is also the paradox that the procedures would not apply to inquests, so that justice will be seen to be done only where there has, sadly, been a fatality. Yet as my right honourable friend Sadiq Khan pointed out in his letter to Mr Clarke, the 7/7 inquests were conducted along lines very similar to those advocated by the Joint Committee and reflected in the amendments that we are now debating, without any damage ensuing.
The interests of national security can be protected by means other than simply relying upon closed material procedures. The Opposition support most of the suite of amendments effectively emanating from the Joint Committee report, seven of which we have subscribed to. The thrust of these amendments is to vest greater discretion in the judges, who are not quick to reject the Government’s case, and to facilitate a balancing of the public interest in justice and the interests of national security in a way that, despite the Government’s rather airy protestations, the Bill as drafted does not.
Amendment 33 extends the possibility of an application for CMP to either party and on the court’s own motion. Amendment 40 refers to the possibility of utilising the public interest immunity procedure under which, as we have heard from the noble Lords, Lord Hodgson and Lord Pannick, a variety of workable steps can be taken—gisting, redaction, confidentiality rings, closed hearings—to protect material that should not be made public, before recourse is had to closed material procedures as a last resort. Incidentally, Mr Clarke’s statement on Monday’s “Today” programme that the judge should not have the discretion to have, in public, evidence that puts at risk the lives of agents or intelligence services, was grossly misleading in implying that this would be a consequence of accepting amendments of this kind. The measures I have just mentioned would prevent that happening.
Amendments 35 to 38, 40 and 47 enshrine both the judicial discretion which many have criticised in the course of debates and the balancing principle which is at the heart of the Joint Committee’s proposals. Taken together, these amendments place the judge firmly in control of the process, with the means to balance the interests of justice and security, protecting from disclosure what is essential not to be made public. Despite the protestations of Ministers, the Bill in its current form does not meet these critical objectives.
We have some difficulties, as the noble Lord, Lord Pannick, has referred to, with Amendments 48 to 50, particularly the insertion of the phrase, in Amendment 50,
“so far as it is possible to do so”,
in the proposed requirement to ensure that a summary of material, disclosure of which the court does not authorise, does not itself contain material damaging to national security. I for one am not sure what the words import or how far they would extend. We would wish to explore this issue further, perhaps at Third Reading, as the noble Lord indicated, or even later when the Bill is considered in the House of Commons.
In his letter of 13 November, the noble and learned Lord, Lord Wallace, who has a deservedly high reputation for legal expertise and fair-mindedness, made some minor concessions and one major one. The latter restricts the order-making powers to extend closed material procedures, and another requires notice to be given to the other party of an intention to apply for a CMP. Those concessions are welcome and I am grateful to the noble and learned Lord, and indeed the Government, for them. Interestingly, the noble and learned Lord’s letter also touches on the court’s inherent right to strike out a claim if highly relevant sensitive information could not be considered—itself a powerful tool with which to protect national security without the need for this Bill.
Outside the Government, there appears precious little support for the sweeping changes the Government propose. Civil liberties organisations—as one might expect, perhaps—the Law Society, the Bar Council, even Monday’s editorial in the Times, which has been quoted, and some leading Conservative Members of Parliament such as David Davis and Andrew Tyrie, unite in expressing profound concern at the changes that this Bill would bring about in our system of justice.
Like many other Members of this House, I travel to and from it by the Underground, where passengers are regularly enjoined to “mind the closing doors”. I hope we bear that injunction in mind today. We must ensure that the doors of justice are not closed in the way this Bill seeks to do, however genuine may be the reasons that prompt it.
We learnt a few days ago the identity of the next Archbishop of Canterbury, the right reverend Prelate the Bishop of Durham, whom all Members of your Lordships’ House, of all faiths and none, will join in congratulating and wishing well. The announcement put me in mind of another archbishop, Thomas à Becket, whose life and death were the subject of TS Eliot’s Murder in the Cathedral, in which the following lines occur:
“The last temptation is the greatest treason:
To do the right deed for the wrong reason”.
I urge the House to support the amendments backed by the Opposition, moved by the noble Lord, Lord Pannick, and in so doing not to succumb to the alternative temptation of doing the wrong deed for the right reason.
Lord Lester of Herne Hill
My Lords, I speak as a member of the Joint Committee on Human Rights. I intend to make only one speech, if I can get away with that, and to make it as brief as I can.
The issues raised in this debate are of profound importance to the rule of law in a parliamentary democracy. Part 2 of the Bill has aroused huge and justifiable controversy. It was condemned root and branch by my party at its annual conference. Many Liberal Democrats would ditch Part 2 in its entirety as illiberal, with or without procedural safeguards. In her letter to the Times last week, the noble Baroness, Lady Manningham-Buller, explained that she remains of the view that inviting the court to look at all the relevant secret material and letting it decide what, if any, weight to put on it is an advance over where we are today. I agree with her.
The purpose of these amendments, recommended unanimously by the Joint Committee on Human Rights, is to achieve that result and to make Part 2 comply with the fundamental principles of justice and fairness protected by the common law. We hope that the Minister and the House will agree that our report was thorough, fair and balanced, and that our recommendations are put forward to improve, not to wreck, Part 2.
I shall not delay and weary the House by reading the relevant parts of the JCHR report into the record. The noble Lord, Lord Pannick, has already referred to the relevant parts. The report speaks for itself, and I would suppose that anyone who takes part in this debate will have read the report in its entirety.
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.
Lord Lester of Herne Hill
I am sorry to interrupt my noble and learned friend. Does he accept the Joint Committee’s point that, instead of relying on Article 6, to weaken the common law, one should approach the convention through our legal system, including common law guarantees of fairness? Does he also accept that we should not use Article 6, which is a compromise, for mainly civil countries’ standards, but that we should be looking at our own common law, as explained by the Supreme Court in the Al Rawi case?
Lord Wallace of Tankerness
My Lords, Article 6 has been a very good safeguard for many claimants, or people appearing before the courts, of securing a fair trial. The fact that the courts are expressly enjoined to have regard to it does mean that in particular cases, if the requirements of a fair trial lead to requirements of disclosure, when one comes to that second stage of the CMP process the court would be obliged to order disclosure. However, as I have already indicated, it may well be that in these circumstances the Government take the view that even then, disclosure could be damaging to national security, but they must bear the consequences, as set out in Clause 7(3), if they feel unable to disclose.
I finally come to Amendments 47 to 50. They relate to the second stage of the process—and I indicated before that Amendment 47 has the same considerations that I expressed with regard to Amendment 36. The aim of the provisions is to put more material before the court—not the same amount—so that cases that currently cannot be tried because they hinge on highly sensitive national security material can be heard, leading to real findings on important allegations about government action.
Where the consequences are the inclusion of the material in the case, there is no precedent for including Wiley balancing. Other CMPs that already exist and do not use it have been upheld by the courts as being fair and compliant with Article 6. The position of the Government is therefore that there is no case to include balancing of the sort that is implicit in these particular amendments.
The noble Lord, Lord Owen, expressed concern about the requirement, as opposed to an obligation to consider to require, in terms of disclosure. As a Government we share that concern about this set of amendments. Amendment 49 also goes even further and provides for disclosure under the AF no. 3 principle, meaning that material can be disclosed, even if it is damaging to national security, if that is necessary for the individual to be able to instruct their special advocate. This amendment does not take full account of the judgment of the Supreme Court in Tariq—and I will stand corrected by the noble and learned Lord, Lord Phillips, if I get this wrong—which held that Article 6 does not provide a uniform gisting requirement in all circumstances.
The noble and learned Lord, Lord Mance, said at paragraph 27 that,
“the balancing exercise called for in paragraph 217 of the European Court’s judgment in A v United Kingdom depends on the nature and weight of the circumstances on each side, and cases where the state is seeking to impose on the individual actual or virtual imprisonment are in a different category to the present”—
the present being an employment tribunal—
“where an individual is seeking to pursue a civil claim for discrimination against the state which is seeking to defend itself”.
The noble and learned Lord, Lord Hope, went on to say at paragraph 72:
“The context will always be crucial to a resolution of questions as to where and how this balance is to be struck”.
I could not help but think of the point that the noble Lord, Lord Owen, made, that when so much has been said about judicial discretion, this is perhaps an area where there ought to be proper judicial discretion, and where an absolute requirement on the judges should not be made. Wherever it is possible to provide gists and summaries of national security-sensitive material without causing damage, they will be supplied. In those cases where Article 6 requires gisting of this type, as I have already indicated, Clause 11(5)(c) means that the court will order it.
Finally, Amendment 50, which the noble Lord, Lord Pannick, indicated that he may not move, would instruct the court to ensure that any summaries only do no damage to the interests of national security,
“so far as it is possible to do so”.
I am afraid that that is a risk that the Government cannot take. We cannot say to our international partners that we will protect their information,
“so far as it is possible to do so”.
Perhaps above all, we cannot say to sources who are risking their lives for us, “We will protect your identity and, accordingly, your life and safety as far as it is possible to do so”. We do not believe that that is a risk that the Government should take and we believe that we should be categorical about it.
This set of amendments puts at risk our national security in order to hear compensation claims that can be fairly dealt with by the model set out in this regard in the Bill. The Government’s duty is to protect national security and it is not an optional duty. It is fundamental and some may say that it is our very first duty. Against that background, I very much hope that the noble Lord will withdraw his amendment.
Lord Lester of Herne Hill
My Lords, I apologise for the fact that I missed the very beginning of this and it may be that in doing so I am about to say something stupid. However, am I right in taking from what the Minister is saying that the Government oppose Amendment 56 even though the Joint Committee attached enormous importance to this as a way of securing open justice without in any way damaging national security? In other words, in accepting Amendment 41, are the Government saying that Amendment 41 is instead of Amendment 56?
Baroness Stowell of Beeston
The point that I am trying to make, and I have made it several times, is that in the amendment that the Government are moving we are ensuring that it is now going to be part of the formal process of the courts to alert those who may be interested of the judge’s decision. As far as the media are concerned, we do not feel that it is necessary for there to be a specific notification to the media of the fact that the CMP has been applied for and consequently has been agreed or not agreed. There is nothing in that that is about withholding information.
The media report on other cases that use CMPs, in particular they are able to report on a finding on the issues. Indeed on other CMPs there does not seem to be a problem at all with the way that this works. In terms of the media being able to intervene in individual cases, which is another aspect to this amendment, civil damages cases that would be heard under this legislation are private law claims and it could be inappropriate for third party interventions to be made in such claims. The claimant may not want the media to intervene in the proceedings. I think that the most important point is that the outcome of all CMP cases will be reportable, increasing the opportunities for the media to report on these kinds of cases, as at present the Government are obviously having to settle rather than a claim being seen through to its conclusion.
I will turn to the other point that the noble Lord, Lord Pannick, raised about closed judgments, which is also covered in the JCHR amendments. It may be helpful for noble Lords if I briefly give some background on how closed judgments already work. There is a judicial safeguard on the use of closed judgments. In a case involving sensitive material, the judge must be satisfied that any material in the closed, rather than open, judgment would be damaging to national security and so could not be released. Special advocates can also make submissions to the judge about moving material from the closed judgment to the open judgment. If the court is persuaded that there would be no harm to national security, the material can then be moved to the open judgment.
The Government believe that it is important that those that are entitled to access closed judgments are able to do so. For this reason, the Government have created a searchable database containing summaries of closed judgments that will allow special advocates and HMG counsel to identify potentially relevant closed judgments. It is worth making the point that this new initiative has been put in place following the various stages of the passage of this Bill, both in terms of hearings and of discussion at JCHR. I am grateful to all noble Lords who have led to that new database being available.
The amendments also propose a review mechanism. Although I welcome this suggestion, the Government do not think that this particular proposal would work in practice. As drafted, it could mean that a person could attempt to subvert the disclosure process built into closed material proceedings by applying for the information immediately after the court had decided what information should be contained within the open and closed judgment, and then at regular intervals thereafter. A person could also abuse the process and put in an application each day. This would place a serious resource burden on the courts and agencies.
Having listened to the debate today and the findings from the JCHR report, the Government recognise that the review of closed judgments is an important issue and needs further thinking. The Government therefore request that Ministers have more time to look into the issues and report our findings to Parliament during the passage of this Bill. Obviously this may be something that would be looked at in the other place. To conclude, I ask noble Lords to accept the government amendment not to have CMPs without notice. I hope from the course of this debate that the noble Lords who have amendments in this group feel able to withdraw them at this time.
Justice and Security Bill [HL]
Lord Lester of Herne Hill Excerpts(12 years, 1 month ago)
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Lord Lester of Herne Hill
The noble Baroness gave the example of drones. Could she explain how anything in the Bill would impact on a claimant in the context of drones?
Baroness Kennedy of The Shaws
There is a case going through the courts. A British resident called Noor Khan is seeking a judicial review. He wants a declaration of unlawfulness made because his father—a civilian, not a terrorist—was killed in northern Waziristan in an American drone attack. This was not in the conflict area of Afghanistan but in Pakistan, and the victim was a civilian casualty. I am told that a number of cases that concern people are linked to the use of drones in Afghanistan, Pakistan and elsewhere. People in Britain will call into question certain legalities because our domestic law covers the behaviour of people who are not in a war zone, and who therefore are subject to domestic law. The noble Lord, Lord Lester, will know that that does not mean that international humanitarian law gives them any protection.
Lord Lester of Herne Hill
I am sorry to press the noble Baroness, but I still do not understand what she is saying. It must be my fault. I would like to know how, in a judicial review of that kind about drone policy, what is in the Bill will change the matter in a way that will not allow the applicant for judicial review to secure justice. How will the process be different from what we have now? That is what I am trying to understand.
Baroness Kennedy of The Shaws
I am interested to hear the noble Lord, Lord Lester, the great human rights lawyer, defending secret processes of this kind. There is no doubt that applications will be made for closed material proceedings in those sorts of cases because the state will not want to divulge the circumstances in which locational intelligence was given. What we as members of the public would want to know would be whether we are playing the role of providing that kind of intelligence, which may in turn lead to the deaths of many civilians, particularly in places that are not covered by war.
I call upon the moral impulses of the House. Do noble Lords think that this is a proper way of dealing with activities that may be covered by national security, when national security is being used as an excuse to cover unacceptable behaviour? It may mean that we will never be able to find out the truth about rendition and the use of torture, and about any role that British operatives played. That would be a very unhappy state of affairs, and a departure from a very proud part of our common-law history and principles. It is a source of regret that so many people are prepared to go down this road.
Lord Reid of Cardowan
I will give way but I was not quite finished. I have heard of being overtaken by events but I think that I was overtaken by Baronesses in the middle of my speech. I did give way to the noble Baroness, Lady Manningham-Buller.
I have said what I wanted to say, which was mainly to try to give to the debate a balance which I think is, perhaps wrongly, missing. We are discussing a justice and security Bill generally, and the actual analysis of the security elements of that seemed to be somewhat missing from our deliberations, both in this group of amendments and previously.
Lord Lester of Herne Hill
I hope the fact that, with Roy Jenkins, I helped produce the first anti-terrorism Bill, which became the Prevention of Terrorism (Temporary Provisions) Act 1974, illustrates that I take national security at least as seriously as the noble Lord, Lord Reid—if not perhaps quite as seriously, because no one could take it as seriously as he does.
Neither the noble Baroness, Lady Kennedy, nor my noble friend Lord Thomas of Gresford were present when I explained earlier today that the origin of the closed material procedure, which they both deplore, comes from suggestions made by civil society—that is to say organisations such as Justice, Liberty, the AIRE Centre and Amnesty International—both in the Chahal case and later, through me, in the Tinnelly case. They both deplore the procedure as criminal lawyers, and I quite understand that as a criminal lawyer you regard everything in terms of the context of criminal trials and that the CMP is seen to be totally incompatible with their concept of justice. I understand and respect that. However, they have to face the fact that the procedure came in because the Strasbourg court could not find any other way of weighing the needs of national security with the interests of justice. It had regard to the Canadian procedure, because that is what Liberty, Justice and the AIRE Centre—and perhaps also Amnesty, although it denies it—suggested to the Strasbourg court.
When Lord Williams of Mostyn was responsible for the SIAC Bill in 1997 I was one of those who spoke in favour, because although it is imperfect justice, I could not think of a better way of weighing the needs of national security against the interests of justice. I believe that it has worked pretty well in the context of SIAC, and we, as the Joint Committee on Human Rights, have recommended that SIAC’s jurisdiction be extended. I do not think that the noble Baroness, Lady Kennedy, as a party to the report, will disagree with that. I do not think that she has so far.
The short answer to the supporters of this amendment is that we have today incorporated into Clauses 6 and 7 almost all the safeguards that the Joint Committee on Human Rights advocated. We did so in order to strike a better balance between fairness and national security. If the supporters of this amendment succeed, they would remove Clauses 6 and Clause 7 altogether. That would mean that the Bill would go to the House of Commons with no safeguards. The Prime Minister, the Foreign Secretary, the Home Secretary and others would have little difficulty in ridiculing what we had done. They would find that, having spent the period before the dinner hour putting in the safeguards, we had spent the period after it removing them. I can be accused of being over-logical, but it seems to me that to walk upon your head is a very strange thing to do. It makes me realise the wisdom of the noble Lord, Lord Campbell of Alloway, when he once rebuked me for making a serious point after the dinner hour. I now realise that all the serious points were made before the dinner hour and what we now have is a kind of tragic comedy. I very much hope that we do not as a House approve amendments that will have the effect of undoing all that we have been doing since 3.30 pm.
Lord Macdonald of River Glaven
I am going to be fairly brief. I hope that the noble Lord, Lord Reid, will accept that I have an abiding interest in national security. I was Director of Public Prosecutions and chief prosecutor for some of the period that he was Home Secretary, and during the worst of those years that he has been referring to, between 2003 and 2008. We had the London bombings on 7 July, the attempted bombings on 21 July, the airline plot, the dirty bomb plot, the fertiliser plot, and a conspiracy to plant bombs in the Bluewater shopping centre—deliberately at half term, so that there would be women and children present.
I understand all those issues. I should like to say to the noble Baroness that my presumption is that members of the security services do not go to work to commit crimes and that they work tirelessly in the national interest and to protect public safety. That is my view about national security and about the security services. I think that the debate that we are having here is slightly different from that and I do not believe that anything that is proposed in this amendment would damage national security in any way or needs to be in effect an insult to members of the security services. It is a question about the sort of legal system that we want, and therefore questions of law are bound to intrude. But I accept the national security context.