Justice and Security Bill [HL]

Lord Macdonald of River Glaven Excerpts

Tuesday 26th March 2013 Lords Chamber

[Lord Beecham]

My Lords, I wish to speak to Amendment 6A as an amendment to Amendment 6.

During the Second Reading debate on the Bill I referred to the obvious difficulty that your Lordships faced in calibrating the balance between the two desiderata of justice and security. There were some then, as there are now, who took the view that such an exercise was unnecessary, and indeed wrong in principle, and that the interests of justice must at all times and in all circumstances be paramount. On that basis, they urged that Part 2 of the Bill dealing with closed material procedures should be struck out. That was not the view of your Lordships’ House which, following the advice of the Joint Committee on Human Rights and the eloquent and forensic advocacy of the noble Lord, Lord Pannick, in particular, chose instead to amend the Bill and to circumscribe the application of a new procedure.

Those who would have wished to prevent any departure from the traditions of our system, which have long required that a party in a civil case should know the case he has to meet, must acknowledge that such a course is now no longer open to us. Our task, therefore, is to consider the Commons amendments and determine whether they have gone far enough in striking that delicate balance or whether, as I believe, further adjustments need to be made. I acknowledge and welcome the Government’s acceptance of some of the changes agreed by this House. In particular, as the Minister has pointed out, there is much more judicial involvement in the process than the Bill in its original form envisaged.

I also remind your Lordships of the serious implications for our system of justice of the Bill as it now stands and, to be frank, as it would stand even if, as I hope, we make further amendments and invite the House of Commons to think again about a small number of important issues. To a long line of pronouncements in this area by the most eminent judges we can now add the recent concerns expressed by the president of the Supreme Court, the noble and learned Lord, Lord Neuberger. Nor can we overlook the cavalier and, it might be thought, analogous approach of the Government to such different but cardinal areas as the deployment of emergency and retrospective legislation, demonstrated as recently as last Thursday and last night over the Jobseekers (Back to Work Schemes) Bill.

That is why we need to build on the progress made thus far in improving this Bill in three areas in particular. Two are embodied in amendments in this group in my name and that of the noble Lord, Lord Macdonald of River Glaven, dealing with what we may term, by way of shorthand, as the principles of last resort and judicial balancing respectively, reflecting the amendments moved so powerfully by the noble Lord, Lord Pannick, who would be moving them today had he been able to be present. The third area is that of a process for renewing the legislation after a period, to which we will come later. I propose to deal principally with the amendment in my name, but I whole heartedly endorse, and will say a word or two about, the amendment in the name of the noble Lord, Lord Macdonald. I am authorised by the noble Lord, Lord Pannick, to say that he entirely supports these amendments. His recent article in the Times makes his views clear.

The first amendment, Amendment 6A, effectively seeks to restore the position set out in the Bill which left this House, in making the use of closed material procedures a last resort. Amendments 16A, 16B and 16C import the same principle into the process for the court’s review of its decision contained in government Amendment 16. I consider these to be consequential upon this first amendment. I trust the House will forgive me if I remind noble Lords that closed material procedures allow the use of material not disclosed to the other party, who is therefore not able to give effective instructions, even to the highly security-vetted special advocate appointed to assist him. The amendment seeks to correct this by requiring the court to consider whether a fair determination of the proceedings is not possible by other means, such as some of the processes available under PII, the public interest immunity procedure. These include a range of options, such as the gisting of the case, redaction, the giving of evidence by security agents from behind a screen, and more besides.

In relation to PII, it is interesting to note that the Government appear to be taking a somewhat inconsistent approach. Inquest proceedings, after all, will not be covered by the provisions of the Bill. The Government have constantly represented PII as a lengthy process which leaves them in a position where they might feel compelled to choose to settle a case rather than disclose information. Sweeping, if unsubstantiated, claims have been made about millions of pounds having been paid, or potentially having to be paid, to unidentified numbers of unidentified terrorists, to be used for unidentified purposes. Perhaps the noble and learned Lord could enlighten us as to the number of claimants who have received compensation, and who have been charged with any offence, been made subject to a control order or similar constraint, or had their compensation frozen—as it could be—on the grounds that it might be used for terrorist purposes. After all, the Minister without Portfolio, Mr Clarke, said:

“We expect only a handful of cases”.—[Official Report, Commons, 04/03/2013; col. 705.]

The notion that there is a great tidal wave of cases waiting to sweep over us and our system, involving vast expenditures, seems to have been exaggerated, to put it mildly, in the light of the Minister’s remarks just a week or two ago.

As the noble Lord, Lord Pannick, pointed out in his article, under the PII procedure, the courts are,

“able to reconcile justice and security by taking steps”,

such as those to which I have referred. He went on:

“Only if those methods cannot protect security, and allow for an open assessment or at least a gist of the case against the claimant, should the court consider moving into a closed session”.

He went on to dismiss the Government’s contradictory responses, namely that judges would adopt that approach in any event, and that such a safeguard would be too time-consuming. He also went on to rebut the Government’s counterargument against balancing the interests of national security against the public interest in the fair and open administration of justice, pointing out that this is exactly what the PII procedure involves. He is of course, as the noble and learned Lord has pointed out, not the only Member of your Lordships’ House to have contributed to the columns of the Times on these issues. His article may be seen in part as a reply to a letter from the noble and learned Lord, Lord Woolf, expressing approval of the amended Bill’s provisions in relation to CMPs, to which he has referred at some length.

It is with more than usual trepidation that I join the noble Lord, Lord Pannick, special advocates, the Joint Committee on Human Rights and the Equality and Human Rights Commission in respectfully dissenting from the conclusions of the noble and learned Lord, Lord Woolf. These, while properly welcoming the positive responses by the Government to amendments carried by this House, for which the noble and learned Lord voted, effectively endorse their position on the issues of last resort and balancing. The noble and learned Lord referred in his letter, not unreasonably, to the fact that in a minority of cases, and I use the same quotation as the noble and learned Lord:

“The interests of justice are not served when courts are blindfolded”.

The consequences of closed material procedures are that claimants are both blindfolded and effectively gagged, even in cases of habeas corpus. The Minister without Portfolio has, after some initial confusion about the matter, conceded that the Bill would apply to this, one of the most fundamental parts of our English common law. It is not unreasonable therefore to require the court to determine that the case cannot fairly be decided by any other means, rather than it having merely to be satisfied that the Secretary has, in the words of proposed new subsection (1F),

“considered whether to make, or advise another person to make, a claim for public interest immunity”.

That sets a very low bar for the Secretary of State to surmount. He has only to have considered it. Concern about the Government’s overall position can only be enhanced, despite their bland assurances, by the form of words set out in proposed new subsection (1D) in Amendment 6, which makes two substantial changes to the amendment carried here on the recommendation of the Joint Committee on Human Rights. Members may recall that Clause 6(2) of the Bill which left us stipulated that the court may make a declaration allowing CMP if, were the material to be disclosed, the degree of harm to the interests of national security would be likely to,

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

Under Amendment 6, proposed new subsection (1D) changes this to impose the condition that,

“it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration”.

Openness is therefore replaced by effectiveness, a very different concept. Effective, one might ask, from whose perspective? Is it that of the party, presumably the Government? Openness now counts for nothing. The phrase “in the proceedings” is added, excluding the wider considerations of the public interest. The concept of balancing the two interests disappears. This applies also to Amendment 16, on which the noble and learned Lord seeks to rely.

The Minister without Portfolio likes to paint with a broad brush. He claims that the effect of these amendments would require the Secretary of State and the court to go through all the documents before an application for a CMP is made. They would not. As the special advocates point out, disclosure under present statutory CMPs is no less time-consuming than PIIs. Once having examined the documents, the court could consider whether PII could lead to a fair trial without having to undergo a full PII exercise. The Secretary of State has only to consider whether a PII claim could have been made. He is not under an obligation to go through every document.

Mr Clarke’s adherence to liberal principles over the years has earned him many admirers in a lifetime in politics, although not necessarily within his own party. I hope that, by endorsing these amendments, the House can not only help to minimise the damage threatened to the most valued elements of our jurisprudence and judicial system, but help rescue the Minister without Portfolio from self-inflicted damage on his reputation for upholding those liberal values, as he comes to the end of his most distinguished career. In the name of our cherished traditions of fair and open justice, I invite your Lordships’ House to support the amendments.

[Lord Macdonald of River Glaven]

My Lords, I speak to Amendment 6B in my name. Everyone accepts that CMPs represent a significant departure from normal rule of law principles. Many people accept that they also contain a strong strand of unfairness, and that this unfairness consists in the exclusion of one of the parties from a critical part of the proceedings, perhaps even that very part of the case in which the defining issue is decided. Therefore, the claimant can never know the evidence that has damned his cause—it is never revealed to him.

Let us be blunt about this. The party withholding the material, and gifting it to the judge in secret, will almost always be the Government. The illiberalism inherent in the Bill seems to me to lie in this. CMPs as presently constituted are not fair, because they do not and cannot deliver balanced justice between the citizen and the state. This is the finding of the JCHR; it is the finding of those eminent lawyers appointed by the Government to conduct closed proceedings, the special advocates; and it was the overwhelming conclusion of this House when last we debated these measures. It is no doubt in recognition of this central unfairness that the Government insist, and the Secretary of State has repeatedly insisted, that it is their fervent desire that CMPs should only ever be used as a last resort.

Justice and Security Bill [HL]

Lord Macdonald of River Glaven Excerpts

Wednesday 21st November 2012 Lords Chamber

[Lord Owen]

My Lords, although I did not intend to intervene, I urge the Minister, when he comes to reply, to develop any serious reservations he may have about Amendment 48. Perhaps the noble Lord, Lord Pannick, would consider doing for Amendment 48 what he is doing for Amendment 50. I do not hold the alarmist view of these amendments that is held by some members of the intelligence services; they are necessary and correct and I have no difficulty with any of them. However, I can imagine circumstances in which, under Amendment 48, it would be difficult to change “consider requiring” to “require”. That is particularly true if one considers that Amendment 49 states,

“sufficient to enable the party to whom the summary is provided to give effective instructions on the undisclosed material to their legal representatives and special advocates”.

That seems a pretty fair summary of what should be required, but it rings a certain alarm bell that there might be circumstances under which it would be necessary to try to persuade the courts, even in this difficult situation, that the pressures, particularly coming from people who have made available this intelligence, are so great that it would jeopardise the relationship of sharing information if we accepted Amendment 48. It would remove all discretion from the court.

In this debate those who have been justifying the amendments have often said that it is to avoid restricting the court and to give more power to the court’s judgments. This amendment would go in the opposite direction. I would like a little more explanation as to whether it is really necessary to change “consider requiring” to “require”.

[Lord Macdonald of River Glaven]

My Lords, I can be very brief. Following the publication of the Green Paper, the Government indicated a concession that the Green Paper’s proposals were drawn far too widely and that the legislation that they would bring forward for consideration would be far tighter. In particular, they indicated that a judge rather than a Minister would have the final say and that closed material procedures would be available only in the most exceptional circumstances.

In fact, the Bill did not provide for either of those undertakings. It is only these amendments that are capable of securing them. The amendments finally give the judge the appropriate discretion to balance national security with the interests of justice, which is an essential tool for the judge if he is to control the fairness of the procedures in his own court, which is a critical aspect of the rule of law.

Secondly, the amendments secure a situation in which a closed material procedure would genuinely be a measure of last resort because they will require every other option to be considered first. My conclusion is that the amendments provide what the Government promised but did not secure in the Bill. For that reason, I shall support them.

[Lord Woolf]

My Lords, may I just add a few words to the very able speeches that have already been made? I preface them by saying that I am a hedger, not a ditcher. I hope that I will be forgiven for putting my words in the context of my own experience in this case because it is particularly relevant. For five years I was what was known as a Treasury devil or a Treasury junior, whose task, without having any political allegiance, was to be its representative in the courts in cases which would otherwise cause difficulty when being heard. One went to the court with the advantage that you were instructed by the Treasury solicitor. You were the general counsel of the Government in civil cases but when you were dealing with cases of the kind we are here considering you appeared in a completely neutral capacity.

As a result of that experience, I found that within the procedure then available—in which evidence which damaged national security would have to be excluded—there were all kinds of things that the courts and advocates could do to avoid the decision being made that the evidence could not be looked at in the court because of public interest immunity. As has been pointed out, that does not help the interests of justice because the court is blindfolded for some evidence which would otherwise be relevant. However, by using the tools available—which included members of the Bar on different sides accepting that they could rely absolutely on the integrity of the Treasury devil counsel—you could, in the great majority of cases, get evidence before the court in a way which achieved justice.

However, there was a very small minority of cases where that could not be done. One then had the unfortunate situation where there was relevant evidence that could influence the outcome which not even the judge could take into account, either for a claimant or a defendant. I suspect that no one in this House would like that situation to arise—certainly the judge did not like it—and that is why the kinds of efforts that I have indicated were taken regularly to avoid it happening. I emphasise also that, even where that happened, only a small portion of the case would not be investigated; other parts of the case could be investigated.

In generality, the proposals contained in the Bill have a great advantage over the existing process of public interest immunity: they allow the judge to have the material in a way which ensures that the interests of national security are protected. The European Convention on Human Rights does not intend or require a court system of any country to act in a way which is inconsistent with the interests of national security. It requires that the court, if it is going to take action which is not normally appropriate, should take all the steps which are open to it to minimise the effects of so doing. That is why, so far as proceedings in this country are concerned, the European Court of Justice in Strasbourg proposed the use of the special advocate. That was one step that could be taken to further the interests of justice which hitherto we had not taken. The noble Lord, Lord Lester, in his powerful speech, explained the history of how that form of action had its source in Canada, was praised by the European court, and when appropriate was adopted in this country. The procedure did not cure the disadvantages of evidence not being given in the ordinary way, but it did provide a way of getting closer to doing justice than was possible without it.

Justice and Security Bill [HL]

Lord Macdonald of River Glaven Excerpts

Wednesday 21st November 2012 Lords Chamber

[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.

[Baroness Manningham-Buller]

I am not insulted, I just feel that when the suggestion is that we have committed serious crime, I need to retaliate to that.

[Lord Macdonald of River Glaven]

I understand that.

What I want to do is to return, I am afraid, to the legal context. I will be fairly brief. I want to address three questions in the context of closed material procedures: one is public confidence; one is fairness; and I think the most important one is the delivery of justice, as this has been a large part of the Government’s argument. To what extent can closed material procedures deliver justice where no justice is presently available?

The first issue is public confidence. How is public confidence in the justice system achieved? My own view is essentially that it is won through securing the trust of the public. This is achieved in a number of ways, particularly I think through openness and—that overused word—transparency, especially in terms of the judgments given. It is particularly important that judgments in cases are given in public and so the judgment itself is open to public scrutiny. If a judgment is not open to public scrutiny, that judgment will struggle to win the trust of the public. Why should the public believe that something is so simply because a judge says that it is so? The ability to scrutinise a judgment is absolutely critical.

Not least of the damaging effects that closed material procedures may have—I think will have—will be to damage public confidence in our judiciary. Who is to trust a judgment against him made upon the basis of material that he has never seen? What litigant would trust the judge who makes the judgment based upon material that that litigant has never seen? The question of public confidence is not simply a question of public confidence in the system, it is a question of public confidence in perhaps the most important people who populate the system, the judges.

This brings me to my second point, fairness. I think that everyone accepts, as they must, that closed material procedures are unfair. In one profound sense, and I do not need to labour this point, they are not fair because they are not balanced. As the noble Lords have been told, special advocates are very eminent lawyers instructed by the Government to secure fairness in these proceedings. It is well known that the special advocates themselves oppose the creation of closed material procedures precisely on the grounds that they believe that the process is unfair. I remind the noble Lords again of something that the noble Lord, Lord Strasburger, said. These special advocates, who have been in all these cases, have said that they have not seen a single case in which the issues could not properly be litigated safely using PII and other ancillary procedures, securing justice without revealing the slightest hint of national security secrets.

The final and perhaps most important point of all—it has been made persuasively by the noble Lord, Lord Lester, and others—is the delivery of justice. This has been a common theme in this debate, including contributions from very distinguished former judges. The argument is that closed material procedures will provide some justice where none is presently available, in the absence of material that would otherwise be excluded under PII; in other words, the courts will now be able to consider material that they could not consider before, and that is a better form of justice.