Justice and Security Bill [HL]

Debate between Lord Owen and Lord Macdonald of River Glaven

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.