Justice and Security Bill [HL]

Lord Lloyd of Berwick Excerpts

Tuesday 26th March 2013 Lords Chamber

The courts—the judges—must be empowered fully to do justice in individual cases. It is the fundamental duty of a judge to regulate the fairness of the proceedings before him. This legislation must allow a judge to discharge that duty. In short, the judge must be empowered and permitted to pay heed to the public interest in open justice when he is faced with a government application to go into closed session. That is because closed justice is, on the face of it, so inimical and contrary to our long traditions of fair process, and openness and transparency in justice, so intrinsic to our way of life and our legal processes, that to close down a court, to expel a claimant, without first balancing the virtues of justice being seen to be done is, or should be, unthinkable. If my amendment has any purpose, it is simply to hold the line.

[Lord Lloyd of Berwick]

My Lords, I shall confine what I have to say to Amendment 6B, now that it has been spoken to by the noble Lord, Lord Macdonald of River Glaven. I am of course conscious that when this amendment was moved by the noble Lord, Lord Pannick, on Report, it was carried by a very large majority, but I voted against it at the time and do not support it now, for two reasons.

First, I like the wording of the Commons amendment. It seems to me to fit the bill. In particular, I support the inclusion of the word “effective”—as well as the word “fair”—in the phrase,

“fair and effective administration of justice”.

For the same reason, I will not be able to support Amendments 16A, 16B and 16C, tabled by the noble Lord, Lord Beecham, which would remove that very word, which seems so important. In my view, “effective” is the key word, le mot juste, in this context. It sums up in one word the whole need for and purpose of the closed material procedure.

A system of justice is surely ineffective if one party to the proceedings, whether claimant or defendant—I am glad that it now includes claimants—cannot put forward his case, or his whole case, without the need to disclose sensitive material. The purpose of the Bill is to cure that defect. That is why I support the second condition, as set out in proposed new Section 1D of the Commons amendment, and find that I cannot support the amendment of the noble Lord, Lord Macdonald. The word effective, particularly coupled with the word fair, provides the judge, who has to make those decisions, with all the help that he will need. For that reason I do not support the noble Lord’s amendment.

There is another reason why I cannot support the amendment, which was the reason I voted against it when it was moved on Report by the noble Lord, Lord Pannick. The wording of the amendment is said to come from a case called Wiley, which was decided so long ago that I had forgotten that I was a party to the decision. I find that I was, together with my noble and learned friend Lord Woolf. The difference between us was that my noble and learned friend gave a very long speech. He was followed by me, who agreed with everything that he had said—in a very short speech. I hardly need say that counsel was the noble Lord, Lord Pannick.

The case has long since been superseded; indeed, I cannot find it in any current textbook. However, looking at it again this afternoon, I could not find anything that supports wording quite as wide as that proposed in the amendment. In any event, the Wiley balance was useful, as I remember it, and as the noble Lord has explained, in applications for public interest immunity, where the judge had to weigh the harm done to the public interest by admitting a particular document or documents against the harm done to a particular defendant or party in the case by excluding those documents.

That was always a difficult balancing act, but it was possible because it was a specific test which he had to apply. As I said, it served a useful purpose. I cannot regard it as a useful test in this context. How is the judge to evaluate the public interest in the,

“fair and effective administration of justice”?

That is far too wide and imprecise to be of any utility, certainly in the context of deciding whether to make a declaration under Clause 6. It gives the judge no help at all in making that decision. For that reason, too, I cannot support the amendment.

[Baroness Ramsay of Cartvale]

My Lords, I will address Amendments 6A and 6B and the consequential Amendments 16A, 16B and 16C. I will not repeat all the arguments made by the Minister, but I agree with them. Like the noble and learned Lord, Lord Lloyd of Berwick, I cannot accept Amendment 6A or Amendment 6B. As a non-lawyer, when I read Amendment 6A I interpreted it exactly as the Minister feared the court would be forced to interpret it: that it would have to try every other possible method before it came to the CMP.

I hope that the noble Lord, Lord Macdonald of River Glaven, will forgive me for saying that when I read Amendment 6B I wondered if he meant it to be a wrecking amendment. When I heard him explain it he seemed to confirm that suspicion. He is arguing against the whole concept of CMP. Why are we here? We are not here because we want to go into this kind of judicial arrangement but because we have got a big problem on our hands. The previous Government had it and this Government have now got it. People are going into the civil courts and suing officers of the intelligence and security services, accusing them—rightly or wrongly—of doing terrible things such as being implicitly involved in torture and extradition. The services cannot defend themselves because they cannot put material into a court.

There has to be a solution and the solution is not PII, as some people seem to think. I would also like to quote the noble and learned Lord, Lord Woolf—if he will forgive me because he is in his place—not from the excellent letter quoted by the Minister, but from what he said in a debate on this issue in this House on 11 July last year. He said:

“I should also make it clear that I think that the noble Lord, Lord Carlile”—

who had just spoken ahead of him—

“is right in saying that in most situations that are covered by the Bill the result will be preferable to both sides”—

both sides—

“if the closed hearing procedure is adopted rather than PII, because PII has the very unfortunate effect that you cannot rely on the material that is in issue, whereas both the claimant and the Government may want to rely on that material. That is a good reason for having the closed-hearing procedure”.—[Official Report, 11/07/12; col. 1189]

I very much agree with that.

The amendments that I have mentioned do not improve the Bill in any way. In fact, they are to the detriment of the Bill. This is a problem which the previous Government had to wrestle with, the present Government are having to wrestle with and the House has to wrestle with it. Now that they have included the latest Commons amendment, the Government have made a very good attempt at trying to square what we all want, which is a fair trial. That must include, in the civil court, members of the security and intelligence services so they can bring a defence to accusations against them.

Succession to the Crown Bill

Lord Lloyd of Berwick Excerpts

Wednesday 13th March 2013 Lords Chamber

[Lord Lloyd of Berwick]

I support the principle underlying the amendment. It seems to me the logical extension of the principle underlying the Bill itself, but I can see that this might not be the most suitable vehicle for bringing about a reform which I continue to regard as being very desirable in itself. I will not repeat the reasons which I gave in Committee for taking that view. If the amendment is not accepted now, I hope that the council of the Duchy of Cornwall, with the help of the Government, will consider introducing legislation to amend the ancient charter to enable that principle to be effected.

Succession to the Crown Bill

Lord Lloyd of Berwick Excerpts

Thursday 28th February 2013 Lords Chamber

[Lord Northbrook]

My Lords, I rise to move Amendment 3. If His Royal Highness and the Duchess of Cambridge have a daughter, she may, thanks to the Bill, be able to become queen. However, she cannot as of right become Duchess of Cornwall or Countess of Merioneth. That seems to be an anomaly, particularly with the Prime Minister’s focus on equality. I beg to move.

[Lord Lloyd of Berwick]

My Lords, I support the amendment. I do so because many years ago when I was a struggling barrister, I was appointed Attorney-General to the Prince of Wales, which carried with it also being Attorney-General to the Duchy of Cornwall. Therefore, I do have some—albeit from rather long ago—experience of what the Duchy of Cornwall is and how it works.

In his reply to the Second Reading debate, the noble and learned Lord made three points, at column 830, about how the Duchy of Cornwall would be affected if this Bill becomes law, as I hope it will. I very much apologise that I was unable to be present, but I was abroad. First, he pointed out that Princess Elizabeth, when heir to the Throne, did not become the Duke of Cornwall. Secondly, he pointed out that if the Bill becomes law and the heir to the Throne is a daughter, the title would go into abeyance in the ordinary way. Thirdly, he pointed out that if the heir to the Throne is a daughter, she will not suffer financially from the title going into abeyance because of the Sovereign Grants Act 2011, to which the noble Lord, Lord Janvrin, had drawn attention during the debate.

As to the first point, it is of course true that the title fell into abeyance when Princess Elizabeth was heir to the Throne. As to the third point, it is clear that the heir to the Throne will not suffer financially anyway, so to some extent we can disregard that as a relevant point. However, I question the second point, and whether there is any need for the title to go into abeyance. Why, I ask the noble and learned Lord, should it?

It seems to me that to enable the heir to the Throne to become Duke of Cornwall if female is the logical extension of the provisions of this Bill. It is within—if only just—the royal title. Obviously, there is no difficulty in a female heir to the Throne being called the Duke of Cornwall because, as we all know, the Queen is also the Duke of Lancaster. In addition to what I submit is the logical extension of this Bill, there is a practical reason why I support this amendment.

I remember very well meetings of the Duchy council, which the Prince of Wales, then a very young man, would always attend. He took a close interest in the affairs of the Duchy. One must remember that we are not talking about just a paper title but a large estate and what has become a large business in recent years. It is my belief that the Prince of Wales’s experience in chairing the Duchy council and dealing with a large estate and matters of business has served him very well in subsequent years.

That experience, which has served the present Prince of Wales well, should not be denied to a future heir to the Throne if she is a woman. In fact, one might almost say it is all the more important that she should, as heir to the Throne, have the sort of experience that the present Prince of Wales has had. I hope that that experience will become available irrespective of the gender of the heir to the Throne. This may come as a bit of a surprise to the noble and learned Lord, but perhaps he will consider the matter and take advice from the Duchy of Cornwall itself if necessary—I could perhaps give him advice—that this is a sensible extension of the Bill.

[Lord Lexden]

My Lords, I, too, support this amendment and will add a small footnote to what the noble and learned Lord, Lord Lloyd, has just said. I understand that an amendment would be needed to the Duchy’s founding charter, drawn up in 1337, to enable a female heir to inherit. As the noble and learned Lord, Lord Lloyd, stressed, this is a Bill that provides for gender equality. If that principle is to be fully and completely embodied in it, action must surely be taken to revise the founding charter of the Duchy of Cornwall so that a female heir to the Crown can succeed to it.

As the noble and learned Lord, Lord Lloyd, so wisely pointed out, there is a further practical consideration. If the Duchy is not held by an individual but placed in abeyance and administered by its council, there is a real risk that its affairs will not be administered with efficiency and skill. There is a strong view held by many that the absence of a Duke of Cornwall between 1936 and 1958 led to a serious decline in the running of its estates and other properties, a decline from which the present Duke, now the Prince of Wales, successfully rescued it. For these reasons, I support this amendment.

Justice and Security Bill [HL]

Lord Lloyd of Berwick Excerpts

Wednesday 21st November 2012 Lords Chamber

[Lord Morgan]

My Lords—

[Lord Lloyd of Berwick]

My Lords—

[Lord Morgan]

Thank you. I am very anxious to hear the noble and learned Lord, Lord Lloyd, too. I will not speak for very long. I am not a lawyer and I sit on the Back Benches, as I always have, where one is required to vote but not necessarily to think. Yet occasional flickers of thought agitate our minds. This clause is deeply unfair and the amendments are profoundly right. It seems characteristic of what has happened to liberty in this country over many years with, I am sorry to say, the endorsement of all three major parties: the tilting of the balance away from the free individual—the citizen—towards the state, reinforcing raison d’état contrary to the common law. The element of secrecy adds something new that we have not had since the time of the Tudors. It was specifically condemned in the Petition of Right in 1628, which is quite a long time ago.

This clause has caused outrage among lawyers, as we have heard, and civil liberties groups. It has been strongly criticised by the Joint Committee on Human Rights. Why? Because it is totally one-sided. It is a closed court, with the litigants, lawyers and the press excluded. Only the lawyers representing the Crown can communicate in private with the judge. The litigants are not aware of the content, tone or substance of those conversations. They are protected inadequately by special advocates, because their powers are limited, and the interests of litigants in civil cases are not properly defended as, if I may say, people accused of criminal activity under the criminal legal system are protected. Public interest is cited: a term defined so broadly almost as to lose all meaning. It shows that the normal judicial process is a fair, balanced and adversarial system when both sides can present their case. These aspects are being marginalised and sidelined. As previous speakers have said, this is a process that has now been launched and is very likely to increase and multiply.

These amendments should go further—I would like to see the whole clause disappear—but will undoubtedly improve these otherwise dismal procedures. This reflects a welcome tilt towards libertarianism, including from my own party, which has not been notable in that sphere in recent years. I am very glad to welcome that under its present leadership. The Secretary of State would be compelled to present a case for a public immunity initiative; the court would be able to consider it dispassionately and calmly without being steam-rollered by the Government, as would otherwise happen; the litigants could have proper legal discussions with their advocates.

At the moment, there would be no real authority accorded to judges, whose hands would be tied by the terms of the Bill. They would have little choice other than to accept the submissions of the Government, so these amendments are deeply valuable—not simply to those involved with the law but to any citizen of this country. This would enable the courts to consider and to estimate the comparative balance between the rights of a free individual as against the damage to national security, which might have to be more carefully defined. To that extent, these amendments make an odious Bill somewhat less repulsive. The Minister is a very fair-minded man who has the respect of all Members of the House. He has listened to strong arguments against this clause from all sections of the House, and I am sure he will consider them fairly and courteously.

[Lord Lloyd of Berwick]

I fear that I may disappoint the noble Lord, Lord Morgan—but I hope not. I have no difficulty at all with Amendments 37 and 40, which were tabled by the noble Lord, Lord Pannick, but I have some difficulties with Amendments 34 and 35, which we are going to come to in a later group. Those are the amendments that would substitute the word “may” for “must”. They are the basic amendments that would give the judge a discretion rather than imposing on him a duty in certain circumstances.

Amendment 36, which has been spoken to by the noble Lord, Lord Pannick, spells out how that discretion is to be exercised. It states that the judge must balance,

“the degree of harm to the interests of national security”,

on the one hand, against,

“the public interest in the fair and open administration of justice”.

It is now many years since I heard a PII application. It was never an easy balancing operation, but at least with a PII application one was balancing a particular piece of evidence and how much harm it would do to the national interest, on the one side, and how much good it would do to the case of one party or the other, on the other side. It was difficult but it was a fairly specific balancing operation. I find much greater difficulty with the judge being required to take account of,

“the public interest in the fair and open administration of justice”.

I cannot see how he can possibly evaluate that in the abstract. In one sense, it might be said to overwhelm everything else, of course; but on the other hand, how much weight can be given to that? Amendment 36 is very different from the operation that one used to, and still does, carry out in an ordinary PII application. I am not happy with Amendment 36 and that sort of discretion being given to a judge.

[Baroness Neville-Jones]

My Lords, the focus of the Bill is to enable this country to find a means of dispensing justice while protecting national security. National security has not had much of a hearing so far this afternoon. I shall explain why I do not think that public interest immunity is any longer an adequate safeguard in respect of national security. Indeed, I would go so far as to say that, at the moment, the PII regime prevents justice being dispensed consistent with security. Pace the noble Lord, Lord Beecham, I do not think that this is an impossible goal.

When national security-sensitive evidence which may be important to the claimant’s case—we all agree about that—is excluded from the courtroom by a PII certificate and the judge may not take it into account in coming to a judgment, there are two consequences: the claimant is unable to prove his case and the Government cannot defend themselves properly. To protect national security evidence from disclosure in open court the Government are being forced to agree substantial settlements, with unjustified reputational damage ensuing. The inability of our legal system to provide adequate recourse to parties in civil dispute brings no credit to it and we need to do something to mend it.

Amendment 40 would insert PII as a first stage in the legal process. This would undoubtedly greatly increase the length of proceedings and costs without necessarily guaranteeing that evidence would be heard. I cannot help feeling that this is pointless. Moreover—and this is a real problem—PII impinges adversely on the claimant’s rights and, contrary to the assertion of the noble Lord, Lord Pannick, since the case concerning Binyam Mohamed, PII has also proved to be a less than total protection for national security sensitive information. We do not now have a safeguard in PII to protect national security. It has really changed the ground. In that case, the court ordering disclosure of American material despite the Government’s PII certificate has damaged our intelligence relationship with the allies, especially, although not only, with the United States. We have this judgment from the independent reviewer of terrorism, David Anderson QC, who I know has been quoted by other noble Lords. However, I know that, on this point, he is right. It is a very serious matter if our allies can no longer trust our ability to keep secret intelligence passed to us secret.

The fact that we have not had a major terrorist incident in this country since 7/7 is not the result of the conversion of the enemy but of the successful diligence of our intelligence and security services in protecting us. They depend on vital—and I mean vital—sharing of intelligence with allies. The effect of recent cases in civil courts, and the numbers of these are growing, has now spread into the core security interests of the UK. Some noble Lords talked about the core security interests of this country in justice, and I entirely agree. However, we also have another interest to protect which is important to us. We are now damaging the core security interests of the UK. If we do not find a way, as part of a responsible national security policy, of restoring credibility to our promise to protect information given to us, we will find our intelligence relationships further eroded over time and our national security eroded with them.

It is not just the control principle that is at issue, it is UK national security. This cannot be subjected to balancing tests of the kind set out in Amendment 47 —and Amendment 46, for that matter—as if it were somehow exchangeable with other goods. Lives are not at stake in civil proceedings but they are—they can be—in national security.

Closed material proceedings are of course second-best to completely open court proceedings. There is nothing that divides anybody in this House on that point; we all agree. The problem, however, is that we are not in an ideal world. Only the court can decide to allow closed material proceedings under the Bill, and presumably the judge would not permit that if they did not think that there was a substantial national security interest to be protected and they had not been convinced by the submission of the Secretary of State. In that case, this issue would not arise. However, if it does arise and the court agrees that there should be CMP, it will permit a full testing of the claimant’s case. The Government will be able to defend themselves in a manner that protects sensitive national security information.

The Bill also provides for gisting to the claimant. This is much better than the absence of justice and the potential prejudice to national security at the same time. Amendments 48, 49 and 50 would destroy the balance that the Bill would bring about.

Much has been made already of the Government’s proposals being “a radical departure” from our traditional norms. However, the closed material procedure is drawn from the procedure created by the previous Labour Government for the special immigration appeals courts which, I might say, Liberty was very influential in setting up, and which have been tested and accepted as compatible with the European Convention on Human Rights. The reality of justice there is demonstrated by the fact that the Government lose cases. Amendment 44 would bring some SIAC procedures into question, as well as rendering this Bill null and void.

I hope that this House will accept that this Bill is a balanced response to a difficult issue. I take seriously, along with other Lords, the need for safeguards, but I believe that many of the proposals on the Marshalled List go too far. I hope that this House will reject amendments which, far from improving the Bill, either remove or render ineffectual the purpose of closed material proceedings. To use the words of the noble Lord, Lord Hodgson, I believe that this Bill passes the smell test.