Immigration Bill
Lord Pannick Excerpts(10 years, 1 month ago)
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The Earl of Listowel (CB)
My Lords, before speaking to my amendment I would like to say just a few words on what the noble Baroness, Lady Lister of Burtersett, has just said. She reminded me very much of the work of the child psychotherapist Anna Freud, who wrote several books on law and children with two eminent jurists from Yale University in the United States. She wrote about the difference between child time and adult time. A year in the life of a child is obviously disproportionately large compared with a year to an adult. We are all very concerned about children who languish in the care system who are just sitting waiting to be adopted. Even six months for a very young child is a huge chunk of their lives. I have a lot of sympathy for what the noble Baroness said.
I shall speak to Amendment 58 standing in my name and that of the Minister, the noble Lord, Lord Taylor of Holbeach. There has been concern that this Bill may weaken the welfare rights of children. The purpose of my amendment is to provide clarification that the rights of children will be undiminished.
I am most grateful to the Minister for adding his name to this amendment. I could have wished that the amendment went further to include reference to the best interests of the child, as was mentioned earlier in a debate this afternoon. However, having discussed this with officials, I understand that there are procedural difficulties that prevent the Government agreeing such a reference in the legislation at this stage of the Bill. I regret that, but I am grateful at least for this. I hope that the Minister will reiterate and make clear in his reply that the best interests of the child remain a priority throughout this legislation.
I also take this opportunity to reiterate my thanks to the coalition Government for having done so much to improve the welfare of children detained with their families. I have followed this issue for many years and the change has been remarkable and wholly in the right direction. I am most grateful that the Government are now enshrining those changes in this Bill. I also appreciate the opportunity that the noble Lord, Lord Storey, and I had to meet the Minister, the noble Earl, Lord Attlee, and officials to discuss our concerns about the welfare of young care leavers who arrive here as unaccompanied asylum seekers. I think that the Minister shares our concern for these young people—18, 19 and 20 year-olds—who are resident here without their parents, having experienced the loss of their homeland and their families, often having made a perilous journey to this country as children.
I hope that the report on these young people, to be published by the Children's Commissioner for England very shortly, will be favourably received by the Minister. I trust that any noble Lords who have been a parent or worked with young people will think about what it would be like for their own children, bereft of their parents, unguided and uncertain in a foreign land. I hope that they will keep that at the forefront of their minds when considering the immigration status of these young people and wish to treat these young people with consequent humanity.
I would be most grateful to the Minister if he would consider writing to local authorities to remind them of their particular duties to these young people. Many local authorities extend themselves very far to help them, but there remains evidence that not all authorities are clear about their duties in this area. I look forward to the Minister's reply.
Lord Pannick (CB)
My Lords, I added my name to Amendment 21, which is in the name of the noble Baroness, Lady Lister of Burtersett. As she explained, some of the provisions in Clause 18 depend on a relationship with a qualifying child. I am doubtful of the wisdom of imposing rigid categories in a context that inevitably depends on the circumstances of individual cases. It seems that the inevitable consequence will be to create anomalies, as here, with the impact on a child who has lived in this country for a continuous period of four, five or six years. If we are to legislate by reference to the number of years that a child has been in this country, a cut-off period of four years seems much more appropriate than seven years. If the child is aged between six and 10, four years will form the major part of his or her conscious experience.
Lord Pannick
Lord Pannick
My Lords, Amendments 17, 18 and 19 are in my name and that of my noble and learned friend Lord Hope of Craighead. I thank the noble Lord, Lord Taylor, the noble Earl, Lord Attlee, the Immigration Minister, Mr James Brokenshire, and members of the Bill team for the helpful—to me, at least—meeting that we had last week.
Your Lordships had a wide-ranging debate on Clause 18 in Committee. These amendments have a narrow focus. Amendments 17 and 18 address the parts of Clause 18 that tell courts and tribunals to give little weight to private life in defined circumstances—for example, where a relationship with a British citizen was established in this country at a time when the claimant was here unlawfully. Amendment 19 addresses the provision that says that the public interest requires deportation in defined circumstances.
These amendments would modify the absolute nature of the relevant parts of Clause 18. My understanding from the debates that we had in Committee is that there is no dispute from the Government about two propositions; I would welcome assurances on this. The first proposition, which I understand to be uncontroversial, is that there may be compassionate cases—it may be unusual, but there may be cases—where, on the particular facts, Article 8 requires more than little weight to be given to the relevant factors; or where Article 8 requires no deportation despite the terms of new Section 117C. Such cases may be unusual or out of the ordinary, but they are at least conceivable.
The second proposition, which I understand to be uncontroversial—again, I would welcome assurance on that—is that the Government, I think, accept that if the court or the tribunal concludes that Article 8 requires more than little weight to be attached to the factors in a particular unusual case, or Article 8 requires no deportation, the domestic court or tribunal must apply Article 8. That clause is not intended in any way to amend the obligations of the courts or the tribunal under the Human Rights Act. My understanding—I urge the Minister to correct me if I am wrong—is that Clause 18 is not intended in any way to override the principle stated by Lord Bingham of Cornhill for the Appellate Committee in 2008 in the case of EB (Kosovo) at paragraph 12, that,
“the appellate immigration authority must make its own judgment and that judgment will be strongly influenced by the particular facts and circumstances of the particular case … there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires”.
These amendments seek to ensure that there is consistency between the wording of Clause 18 and the obligations of courts and tribunals. The helpful letter dated 28 March from the noble Lord, Lord Taylor, pointed out, accurately, that it is far from unique for legislation to identify matters for courts to take into account, and the noble Lord gave a number of examples. However, in each of those examples Parliament told courts and tribunals to have regard to particular principles or factors. In none of those examples did Parliament tell courts and tribunals what conclusion to reach. My concern remains the absence of any recognition in the clause as drafted that they may be cases where the Government’s preferred result is not consistent with Article 8. My concern is the suggestion in the legislation that the court or tribunal should arrive at a particular result even though the Government, as I understand it, recognise that the court or tribunal will be required to enforce Article 8.
A long time ago, AP Herbert wrote the very entertaining Misleading Cases. My concern is that Clause 18 is misleading legislation, and we ought to do something about it. I beg to move.
Lord Hope of Craighead
My Lords, I added my name to the noble Lord’s amendment because I, too, find it difficult to know quite how the court will deal with a particular case where it feels that more than little weight should be attached to the various matters referred to in the various paragraphs that are under consideration. It is quite striking when you look back—as I invited the noble and learned Lord to do a moment ago—to the earlier part of new Section 117A, that there is no attempt to modify, appeal or amend Section 6 of the Human Rights Act itself. If you go to Section 6, of course it takes you back to Section 2, which tells the court that, in considering whether there is a breach of the duty under Section 6, it must take into account decisions of the Strasbourg court.
It is not inconceivable, although it may be unusual, there could be a real problem for a court which is following the Human Rights Act directions and is trying to take account of what one finds in new Section 117A, bearing in mind the point that the noble and learned Lord made to me not very long ago about the purpose of setting this out in the Bill. I think that I entirely understood him to say that the purpose of this was to lay down clear guidance to the court, which the court is expected to follow. I absolutely understand the reasons why the Minister says that, but that makes it all the more important, I respectfully suggest, for the Government to avoid the temptation to be too prescriptive about the conclusions that must be reached.
The problem that comes up so often when one thinks about this sort of thing is that legislation is a fairly blunt instrument. Last week, we debated the IPP legislation; the previous Administration set out tests that the judges were required to apply in sentencing prisoners to indefinite terms of imprisonment, but it turned out that in practice the judges had to sentence people to draconian sentences more often than they would have done if left to themselves, which created a very real administrative problem for the Government. That is an example of how a blunt instrument can be too blunt and can avoid dealing with a case in the way that Lord Bingham of Cornhill explained in the case of EB (Kosovo), to which I was also a party.
It really is important to avoid being too prescriptive. Use of the word “normally” gives us that little bit of leeway. If it is not there, the court is driven to finding another way round the problem and, if it finds the prescriptive language in the various subsections that we are looking at, it will have another look at the way in which the whole chapter was introduced by the phrase to which I drew attention earlier: “must have regard to”. Then it will say, “All right, it’s a rule, but it’s not something that we must follow because we have only to have regard to it”. That takes us back to the debate about the Strasbourg court that I was talking about; those who do not particularly like to be told what to do by Strasbourg would rather not have regard to it, because they do not feel that they are obliged to.
If the Minister would like, as I think he would, to have courts regard these as principles or rules to which they should always have regard in the interests of the public at large, I suggest that we should avoid the trap that has been created, otherwise the courts in these unusual cases will feel that they have to find another solution. That may, in the longer run, be more damaging to the overall package that has been put forward in the interests of trying to solve this problem. Once you undermine the basic philosophy that the Minister is putting across, which I understand, by creating this trap for the courts in these particular cases by telling them what the conclusion must be, you begin to devalue the whole package. I think the Minister would rather not do that. That is why I felt that I should support the noble Lord, Lord Pannick, and his amendment.
Lord Wallace of Tankerness
My Lords, I thank the noble Lord, Lord Pannick, the noble and learned Lord, Lord Hope of Craighead, and the noble Baroness, Lady Lister of Burtersett, for giving us an opportunity to revisit Clause 18.
I do not propose to repeat what I said on the previous group of amendments—which I think has been acknowledged by the noble and learned Lord, Lord Hope—as to why the Government came to the position that they did and thought that it was better in the circumstances to include these rules in the Bill. I say to the noble Baroness, Lady Lister, that I do not believe that this is a trespass into the judicial function. As I indicated earlier, I think that one of the things that have to be taken into account, given that Article 8 rights are not absolute rights, is the public interest. It is appropriate and proper that Parliament determines what the public interest is. That is what we seek to do in Clause 18. Thereafter, it is quite properly the function of the courts to apply the law, having considered all the circumstances.
In moving his amendment, the noble Lord, Lord Pannick, said that this debate had a narrow focus, unlike the earlier debate that we had in Committee. Amendments 17 and 18 propose to qualify, by inserting the word “normally”, the provisions in Clause 18 that little weight—in terms of the public interest—should be given to private life, or to family life with a British or settled partner, which was formed when the person was in the United Kingdom unlawfully, or to private life formed with precarious immigration status.
In a similar vein, Amendment 19 proposes to qualify the provision made by Clause 18 for the public interest in the deportation of a foreign criminal who has not been sentenced to imprisonment of four years or more, and who seeks to prevent their deportation by relying on their private life, on their family life with a British or settled partner, or on their parental relationship with a British child or a foreign child who has been resident in the UK for seven years or more.
These amendments are not required to ensure that Clause 18 is compatible with our obligations under the European convention, or to ensure that it properly reflects judicial discretion in determining proportionality under Article 8 in individual cases. It will remain a matter for the courts to consider—not just “normally” but in every case—whether the interference in the individual’s right to respect for private and family life is justified by the relevant public interest considerations. However, the Strasbourg court has made it clear that the European Convention on Human Rights does not guarantee families a right to reside in a particular country, and has consistently recognised that the Executive enjoy a significant margin of appreciation in determining how most appropriately to control immigration.
Clause 18 seeks to reflect Strasbourg case law, which has consistently said that little weight should be placed on private or family life formed during a time when a person’s immigration status is precarious—for example, in the case of Rodrigues da Silva and Hoogkamer v the Netherlands. I fully appreciate the point made by the noble and learned Lord, Lord Hope, that flexibility might be lost when measures are put into primary legislation, although I am not saying that it is a straitjacket. Indeed, one of the considerations that the Government had to weigh up when the decision was taken that it was better to put these matters into primary legislation was that it does not have the same flexibility as rules, given what had been said in the Upper Tribunal regarding matters which were otherwise found in the Immigration Rules. No doubt successors in office will have to keep an eye on Strasbourg jurisprudence. I recognise that it is more difficult to amend primary legislation due to the nature of the parliamentary timetable. Nevertheless, we thought that it was better to do what we did. As I indicated, what we believe we are doing with regard to the reference to “little weight” is to reflect current Strasbourg case law.
Those who enter the United Kingdom for a temporary purpose, such as work or study, can have no automatic expectation of being allowed to settle here. Any private life they develop must be seen in the context of the expectation of their returning to their country of origin. Those who form private or family life while in the United Kingdom unlawfully can have less expectation of being allowed to stay here, and still less those who commit such serious criminal offences that they fall to be deported from the United Kingdom.
As was mentioned in the speeches, the amendments reflect a concern that, if little weight is given to family or private life in these circumstances, a claim under Article 8 can never succeed. That is not the case. The fact that a private or family life has been established should be given little weight, consistent with the case law, but that does not mean no weight is given to that private or family life.
Where there are other factors to be put in the balance—such as the presence of children, disability of the partner, contribution to the community or the fact a young adult has spent over half their life in the UK and has no ties with their country of birth—these factors will all need to be weighed in the balance to decide whether it would be disproportionate to remove the person from the United Kingdom. The need to have regard to these other factors is reflected in the current family and private life Immigration Rules. The case law and Home Office guidance also make it clear that there may be other exceptional factors that need to be taken into account to ensure the decision is compatible with the European Convention on Human Rights.
The addition of the word “normally” is therefore unnecessary, if the aim is to ensure that other relevant factors can be taken into account. It is unhelpful in that it gives no indication of the circumstances when little weight should not be given: in other words, what would be the abnormal case? It is potentially more restrictive, and arguably even incompatible with the European convention, if the implication is that normally these additional factors will not be taken into account. In fact, they should always be taken into account.
I agree with the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Hope, that where little weight should be given to family or private life, that does not mean no weight. In response to the specific points made by the noble Lord, Lord Pannick, I confirm that there may well be compassionate or exceptional cases where Article 8 requires weight to be given to these or other factors or Article 8 requires no deportation. I confirm that the courts must continue to apply Article 8 under the Human Rights Act and that Clause 18 does not override the dicta of the late Lord Bingham, in EB Kosovo, as to the appellate function of the courts in deciding cases under Article 8. Clause 18 enables other circumstances to be taken into account. The insertion of “normally” is neither necessary nor desirable to achieve that outcome.
The noble Lord, Lord Pannick, referred to AP Herbert’s “Misleading Cases”. I well remember the series which starred Roy Dotrice, with Alastair Sim on the Bench. Looking back, it is quite possible that that is where I started in the career I eventually pursued. It was a fantastic series, well worthy of a repeat. This is not a misleading clause. It sets out what the public interest requires but it does not detract from the need for the courts to decide what Article 8 requires in a particular case. I hope that, with these reassurances, the noble Lord will agree to withdraw the amendment.
Lord Pannick
I am grateful to the noble and learned Lord, Lord Hope of Craighead, and the noble Baroness, Lady Lister, for their support and to the noble and learned Lord the Minister, in particular, for giving the assurances I sought. I am still concerned that there remains a conflict between what I see as the absolutist language of the clause and the flexibility which the noble and learned Lord recognises that Article 8 requires by reference to the circumstances of individual cases. I fear that this clause will cause confusion and it will foster litigation. However I beg leave to withdraw the amendment.
Immigration Bill
Lord Pannick Excerpts(10 years, 2 months ago)
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Lord Pannick (CB)
My Lords, perhaps I may add my support to the points that have been made by the noble Baroness, Lady Hamwee. I shall speak to Amendment 31A, which is in my name and that of the noble Baroness, Lady Lister of Burtersett.
Amendment 31A arises out of the concerns that have been expressed at paragraphs 48 to 53 by the Joint Committee on Human Rights in its eighth report of this Session. The concern is that, in cases where a person is resisting deportation on human rights grounds, Clause 12 will allow the Home Secretary to certify that the person concerned may be removed from the United Kingdom because there is not a real risk of serious irreversible harm and the individual would then be able to pursue the appeal against deportation only from abroad. The Government say that judicial review will be available to such a person to challenge the removal decision while the appeal is pending.
The JCHR has expressed its concern about whether judicial review will provide a practical and effective means of challenging the certification by the Secretary of State that the appeal can be heard from abroad. The JCHR has drawn attention to the Government’s proposed changes to judicial review to restrict its availability and has emphasised the reductions in legal aid. The Joint Committee returned to this subject in its 12th report, published on 26 February.
I share the concerns that have been expressed by the JCHR, and I would add that it is more than a little ironic that the Government’s policy has hitherto been to reduce the number of judicial reviews in the immigration context on the basis that appeals are much quicker and cheaper, and yet now the Government are saying that the individual’s protection will lie in a judicial review. In the light of the reductions in legal aid and the changes that the Government are proposing to judicial review, there are real concerns about whether or not an effective practical remedy will remain available to the individual.
I want to add one specific point to those that have been made by the JCHR. In cases of this kind, a claimant for judicial review will vitally depend on information and representations from interveners; that is, expert bodies that regularly assist the court—sometimes in writing, sometimes through oral submissions—for example, by explaining to the court the practical conditions in the foreign state to which the person concerned is going to be deported.
Your Lordships will know that Clause 51 of the Criminal Justice and Courts Bill, which is currently before the other place, will oblige the court, other than in exceptional circumstances, to order an intervener to pay the costs incurred by the other parties as a result of the intervention—surprisingly, whether or not the intervention assists the court and, indeed, whether or not the party seeking costs from the intervener has succeeded in the judicial review. Does the Minister share my concern that, unless amended, Clause 51 of that Bill will inevitably deter interventions, which are vital in this type of case, and make it much more difficult for a person covered by Clause 12 of this Bill to bring an effective claim for judicial review? What assurances can the Minister give the Committee in response to my concerns and those set out more fully in the JCHR’s reports?
Baroness Lister of Burtersett (Lab)
My Lords, I support Amendment 31A. I am very grateful to the noble Lord, Lord Pannick, for speaking to it on behalf of the JCHR. As he has shown, he is much better placed to do so than I would have been as a non-lawyer. There is not much more to say about it. I will just underline what the JCHR said, which was:
“In the absence of legal aid, we do not consider that an out of country appeal against deportation on the grounds that it is in breach of the right to respect for private and family life is a practical and effective remedy for the purposes of Article 8 ECHR and Article 13 in conjunction with Article 8”.
Support also comes from the briefing we have received from ILPA, which underlines that for those who are unable to pay for legal representation and are therefore left to pursue their appeals by themselves, seeking to do so from outside the UK would be especially and in many cases prohibitively difficult. The absence of a legal representative at the appeal hearing and to assist in the collection, preparation and presentation of evidence is likely to spell the end of what little prospect there may have been in the small minority of cases where removal pending appeal had not itself spelt, in Lord Justice Sedley’s words,
“the end of the appeal”.
My preference would be for our amendment to prevail but, as a fallback, I would certainly support the amendment moved by the noble Baroness, Lady Hamwee, in respect of children. I will be speaking about children’s best interests in a moment, but a very good case has been made for this amendment by the Refugee Children’s Consortium and others. I will quote a case study that the consortium has provided, which states:
“The Home Office detained and planned to deport Christine, a single mother who had served a criminal sentence. Her two children were left in the care of their elderly and seriously ill grandfather. Her 15 year old daughter ‘Beth’ left school and missed her GCSEs while caring for her brother and grandfather. She struggled to look after her seven year old brother, who has very limited motor control and severe behavioural problems. A children’s services assessment found that the younger child was at risk of emotional and physical harm; he was later hit by a car while playing alone in the street. The children’s welfare was not taken into account by the Home Office, but after the mother’s release on bail she was reunited with her children and successfully appealed her deportation through the courts”.
The point made is:
“If Clause 12 becomes law, parents in Christine’s situation may be deported before they can appeal and her children would be separated from their mother”.
That is a horrendous example. If she had been deported, what would have happened to that family?
Lord Avebury
My Lords, Clause 14 circumscribes the freedom of the courts to interpret Article 8 of the ECHR dealing with the right to respect for private and family life. We know from the Minister’s reply to an earlier amendment and from paragraph 18 of the letter that he wrote to noble Lords after Second Reading that there are to be further restrictions in the rules and guidance about what the courts can do regarding Article 8. This clause in effect instructs the court or tribunal which is required to determine whether a decision to remove or deport someone breaches Article 8 to have regard to considerations which are set out at some length. In particular, it invites the court to consider factors that could make the best interests of the child less than paramount in deciding whether the child’s family should be removed.
The noble Baroness, Lady Lister, mentioned the case of ZH (Tanzania), in which a child’s best interests lay in remaining in the UK, and the question was whether the carer should be removed. In that case, the noble and learned Lord, Lord Kerr, said:
“What is determined to be in a child’s best interests should customarily dictate the outcome of cases such as the present … and it will require considerations of substantial moment to permit a different result”.
It seems to me that the Government are saying to the courts that in future they should decide against the appellant where the circumstances are similar to those in ZH, although, of course, it would be possible that, having considered the factors listed in Clause 14, the courts could find that the “substantial moment” test had not been satisfied. Possibly, too, if our own courts throw out carers wholesale, even where the best interests of the child dictate that they should be allowed to remain, a different view will be taken in Strasbourg. I would like to know whether the Government thought about that in drafting Clause 14.
The doctrine of “margin of appreciation” allows states a degree of discretion when taking legislative action in the area of a convention right, but the limits of discretion are defined by case law. Only a narrow margin of appreciation is permitted where a particularly important facet of an individual’s identity or existence is at stake—see Evans v UK—and, perhaps even more closely relevant, where an “intimate aspect of private life” is at stake under Article 8—see Dudgeon v UK, where it was ruled that there must be particularly serious reasons before interference on the part of public authorities can be legitimate in those cases.
The Children’s Commissioner wrote a letter to the then Minister for Immigration in August last year about the operation of the Immigration Rules, and some of the matters that she raised then are directly relevant to this clause. Article 9(1) of the CRC provides for a child’s right not to be separated from his or her parents other than in strictly defined circumstances and where it proves necessary in the child’s best interests. There is a positive obligation on the state to ensure that a child is not separated from its parents unless the child’s best interests require it. The commissioner is now considering the effect on children of this clause, and it would be useful to know whether she was consulted about the drafting.
I am concerned that this clause undermines our obligation under the CRC and that it may lead to unnecessary litigation, damaging to our reputation at the European Court of Human Rights. I hope that it will be reconsidered before Report.
Lord Pannick
My Lords, I add my support to the general concerns expressed so eloquently by the noble Baroness, Lady Lister. I have two questions for the Minister. First, can he confirm, as I assume he will, that nothing in Clause 14 is intended to detract from the important principle of law that the best interests of the child are a primary consideration for decision-makers in this context? It is important for Pepper v Hart purposes that the noble and learned Lord makes the position unambiguously clear.
Secondly, before Report, will the Minister please undertake to give further consideration to the advantages of referring in Clause 14 to the best interests of the child? I ask that question as I have some difficulty in understanding how the test in new Section 117C(5)—that is, exception 2: the test of whether the effect of deportation on the child would be unduly harsh—is compatible with looking to the best interests of the child as a primary consideration.
Baroness Smith of Basildon
My Lords, this is one of three groups of amendments around Article 8 that we have tabled to Clause 14. I wish to make a couple of brief comments. I want to put on record, and make very clear, that we fully support Article 8. We understand that it is not an absolute right. It is a qualified right and those qualifications also have to be understood. Any interference with that right has to be within those qualifications. However, we share concerns about how Article 8, and those qualifications, have been interpreted in some cases involving foreign criminals convicted in the UK and then put up for deportation. There are problems with criminals who we cannot deport who have committed serious crimes, and where Article 8 has been considered to be used inappropriately, and where the question has to be asked whether the qualifications have been fully considered. The balance is one to be reached by the courts in individual cases, but we consider it right that Parliament should set out how qualified rights should be balanced in different areas.
There is wider concern about the Government’s failure to deport foreign criminals and the gap between the inflammatory rhetoric used on some occasions with regard to immigration issues and the reality of those issues. Since the Home Secretary took office, the number of foreign criminals being released into the community has gone up and the number of people removed from our country for breaking the rules has gone down by 13% in the past three years. I say to the Minister that it is important for the Government to get the basics right before looking at new areas—for example, ensuring that we have the right staff and the right number of staff in place to deal with these issues.
I listened very carefully to the noble Baroness, Lady Lister, and I was relieved when the noble Lord, Lord Pannick, said that he was slightly confused about a contradiction that appears to have arisen in this context. I am a non-lawyer and I was confused as well. I was relieved to hear that lawyers can also be confused about the Government’s intentions in this regard. The noble Baroness, Lady Lister, made a very powerful speech and I will be interested to hear the Minister’s comments on it.
I welcomed the comments of the then Minister, Mark Harper, to the JCHR about the Government’s responsibilities under the UN Convention on the Rights of the Child. There was absolute confirmation that the best interests of the child will be considered. However, other comments have been made that appear to qualify that. That would seem to undermine the concept that the best interests of the child will be considered. I do not mean to be facetious when I say that it sounds as if the best interests of some children will be considered. I do not understand the contradiction between what is in the Bill and the very welcome comments made by the former Minister that the Government will always consider the best interests of the child. How does that conflict, confirm, or work with what is in Clause 14? Confirmation from the noble and learned Lord that the best interests of the child will be considered would be very welcome.
Lord Pannick
Lord Pannick
My Lords, Amendments 38, 41, 44 and 46 are in my name and that of the noble and learned Lord, Lord Hope of Craighead, who regrets that he is unable to be in his place this evening.
The Minister mentioned some of the history behind Clause 14 in his general comments in response to Amendment 33. This is not a criticism, but he omitted to refer to the fact that this subject has concerned the Home Secretary for some time; at least since her speech in autumn 2011 at the Conservative Party conference, when she referred to a Bolivian man who she alleged had avoided deportation because of his relationship with his cat. The Home Secretary returned to the subject in February 2012 in an article she wrote for the Mail on Sunday under the provocative headline, “It’s MY job to deport foreigners who commit serious crime —and I’ll fight any judge who stands in the way”.
The contents of this article were as combative as the headline. According to the Home Secretary, some judges did not understand Article 8 of the European convention on the right to private life, in particular in relation to deportation. They were ignoring the Immigration Rules and subverting our democracy. This is not ancient history because at the Second Reading of this Bill in the other place on 22 October 2013, the Home Secretary stated that these remained the concerns which formed the basis for Clause 14 of the Bill. She complained that,
“some judges have still chosen to ignore the will of Parliament and go on putting the law on the side of foreign criminals instead of the public.—[Official Report, Commons, 22/10/14; col. 162.]
Lord Pannick
I am very grateful to the Minister and indeed to all noble Lords who have spoken on this important topic. The noble and learned Lord the Minister, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and the noble Baroness, Lady Smith of Basildon, all emphasised that it must be for government to ask Parliament to set out in legislation the policy on what factors should be taken into account, or may be taken into account, in the public interest in deportation cases. I have no quarrel with that but that is not the concern. What is objectionable in my view about Clause 14 is that legislation will tell the judges what weight to give to relevant factors in deciding a case which depends, inevitably, upon the particular circumstances of that case. That is a matter not for Ministers or for Parliament. It is a matter for the judge, looking at all the circumstances of the case and taking into account the factors which have been identified by Parliament as relevant.
Lord Wallace of Tankerness
I sought to try to explain that that expression of little weight was really a way of putting into statutory form what we believe is in fact the practice of courts in the cases which are here. I think it was in the case against the Netherlands; I do not know the first name involved but the other was Hoogkamer. I am sorry not to get that right. We were seeking to say that we endorse what the position of the European Court of Human Rights has been on that. Whereas under the Human Rights Act the court is asked to consider and have regard to the Strasbourg jurisprudence, what we are seeking in this is to say that we agree that the court should follow the Strasbourg jurisprudence. This has not suddenly been conjured up; it is based on what we believe the courts would do.
Lord Pannick
I am grateful to the noble and learned Lord. The difficulty with that is that the Strasbourg jurisprudence recognises that although of course little weight should be given to these factors in many cases, there will be other cases where considerable weight should be given to these factors in the individual circumstances. They may be unusual or rare cases but the Strasbourg court is not saying that it is a rule that in every case involving family or private life, little weight shall be given to these factors. The difficulty about Clause 14 is that it purports to suggest that little weight must always be given to these factors, whatever the circumstances of the case. It does not say “other than in exceptional circumstances” or “normally”; it says that little weight shall be given to these factors. If the Minister wishes to come back on Report with an amendment that recognises a degree of judicial discretion, I shall be delighted to welcome it but that is what Clause 14 says at the moment.
The difficulty that the Minister faces is that he must recognise that there will inevitably be cases where a tribunal or a court, looking up at the facts of the case, decides that greater weight should be given to these factors. If I understood him correctly, the Minister accepted that if the court or tribunal decides in applying Article 8 that more than little weight is required to be given to these factors, then Article 8 must prevail. So Clause 14 is simply illogical and self-contradictory. It does not even achieve what the Minister says it is designed to achieve.
In introducing this group of amendments, I said that the Joint Committee on Human Rights had been unable to identify any precedent for legislation telling the courts what weight to give to relevant factors. I do not think that the Minister or indeed the noble and learned, Lord Brown of Eaton-under-Heywood, with their combined expertise and experience, have pointed to any precedent upon which Clause 14 should be based. I think that this is a constitutional novelty, and we will be creating a very unfortunate precedent by telling the courts what weight to give to relevant factors, when that must depend on all the circumstances of the case.
I am sure that we will be returning to this topic on Report. I ask the Minister to reflect on this matter and to see whether it is possible to meet the concern that has been expressed today, without doing any violence to the object of Clause 14, by putting in some wording that recognises in the Bill the retention of judicial discretion in this matter. For the moment, though, I beg leave to withdraw the amendment.
Civil Procedure (Amendment No. 5) Rules 2013
Lord Pannick Excerpts(10 years, 9 months ago)
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Lord Pannick
My Lords, during the passage of the Justice and Security Bill, I argued for stronger protections for open justice, as the noble and learned Lord may possibly recollect. This is not an appropriate occasion to revisit that battle, but there has, as the noble Lord, Lord Beecham, explained in his compelling speech, been one important recent development which is relevant to this debate on the contents of the rules now before the House. I refer to the recent judgment of the Supreme Court in the Bank Mellat case.
Your Lordships will know that, under the Counter-Terrorism Act 2008, the Treasury took measures to shut down the operations in this country of Bank Mellat, an Iranian commercial bank. The Supreme Court overturned that decision on procedural and substantive grounds. During the appeal to the Supreme Court, the Treasury asked the Supreme Court justices to hear part of the evidence in a closed session. By five votes to four, the Supreme Court agreed to do so. The noble and learned Lord, Lord Neuberger, the President of the Supreme Court, speaking for the majority, explained that,
“on instructions from his clients, counsel for the Treasury told us that a closed session could make a difference to the outcome of this appeal”.
Despite the court having what the noble and learned Lord, Lord Neuberger, described as “real misgivings”, the majority concluded that in the light of the submissions made on behalf of the Treasury, the court had to look at that material in a closed session. After looking at the material in a closed hearing, all the judges agreed that it made no difference to the issues in the case. The Supreme Court justices then made plain that they felt that they had been misled by the Treasury into allowing a wholly unnecessary closed hearing, about which all of them were uneasy, and which some of them thought was wrong in principle. The noble and learned Lord, Lord Hope of Craighead, said that the Treasury’s plea to the court to go into a closed hearing was,
“a misuse of the procedure”.
This is a very troubling episode.
It is particularly troubling because the noble and learned Lord and others assured noble Lords during the passage of the Bill that closed hearings would be sought only where strictly necessary. The Bank Mellat case demonstrates that, on that particular occasion, that principle was not respected in the highest court of the land. In the light of the criticism made by all nine judges of the Supreme Court of the request made by counsel for the Treasury for a closed hearing when, in the opinion of all the judges, there was no justification whatever for making such an application, will the noble and learned Lord tell the House what general guidance has been issued within the Treasury, within other government departments and to lawyers acting on behalf of the Government that in future they should be more careful to ensure that applications for closed hearings should be made only when there is a proper basis to do so?
The only benefit of this unhappy episode is that it led to some useful statements of principle by the Supreme Court which were designed to restrict the use of closed hearings in future cases. Can the noble and learned Lord assure the House that the statements of principle by the noble and learned Lord, Lord Neuberger, to which I am coming, are not overruled or undermined by anything in the rules now before the House for consideration? I should explain that I believe that that is the case; that is, that these rules must be interpreted and applied by reference to the principles set out by the noble and learned Lord, Lord Neuberger. That is one reason why I shall not oppose the rules today. However, I would very much like to hear the noble and learned Lord’s views on these points.
I shall identify the five central principles that the noble and learned Lord, Lord Neuberger, emphasised as important from a common law perspective. First, the noble and learned Lord said that any public High Court judgment must identify every conclusion which has been reached by reference to closed evidence. Will that remain the case under these rules? Secondly, he said that the open judgment must say as much as possible—consistent, of course, with national security—about the relevant closed material. As he noted,
“the more the judge can say about the closed material in the open judgment, the less likely it is that a closed hearing will be asked for”.
Are these rules consistent with that principle? Thirdly, he said that the court must consider whether it is possible to hear argument about the confidential material in open court without referring to any secret detail. Again, are these rules consistent with that basic principle? Fourthly, he said that advocates have a duty to the court to consider whether it really is necessary to ask the court to go into a closed hearing on an appeal. The same principle must apply, I think, to hearings in lower courts. Again, does the noble and learned Lord agree that this principle will apply under these rules? Fifthly, and finally, the noble and learned Lord, Lord Neuberger, for the Supreme Court expressly agreed with the comment of the noble and learned Lord, Lord Hope of Craighead, that judges,
“must be astute not to allow the system [of closed hearings] to be over-used by those in charge of that material”.
Does the noble and learned Lord agree that this principle is also applicable under the rules that we are now debating?
Each of these five principles identified by the noble and learned Lord, Lord Neuberger, is designed to ensure that, because of the vital interest of open justice, closed hearings should occur only when, and to the extent that, they are strictly necessary. My view is that these principles remain valid in relation to decisions under these rules. If the noble and learned Lord thinks otherwise, will he please so indicate to the House and explain why?
Marriage (Same Sex Couples) Bill
Lord Pannick Excerpts(10 years, 10 months ago)
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Lord Waddington
I read on Saturday a speech made by the most reverend Primate the Archbishop of Canterbury. I will not trouble the House with much of the speech, but it contained this particular passage:
“The opposition to the Bill, which included me and many other bishops, was utterly overwhelmed … There was noticeable hostility to the view of the Churches”.
I was not surprised by what I read. There are many of us not of the church who have experienced the same hostility to our views. I hope that supporters of the Bill do not forget that a substantial proportion of the population were, and are still, greatly disturbed that the Government should have introduced a measure that rejects the traditional view of marriage. Many of us are surprised that, far from trying to meet the concerns of such people, the Government have turned down every opportunity to soothe the susceptibilities of those who find the concept of same-sex marriage difficult to stomach.
Surely the Bill should not reach the statute book without the Government doing something to acknowledge that, until recently, it was almost universally accepted—it was certainly so accepted by the previous Government—that marriage could be only between a man and a woman. The views of those who still hold that belief are therefore worthy of respect and should be acknowledged in the Bill. The best way of doing that is not just by a declaration in the form set out in Amendment 4, but by a clear statement that the marriage of a same-sex couple and the marriage of an opposite-sex couple are equally valid but clearly different. The differences have been gone over time and time again since Second Reading and I will not go into them now, but they are different.
I do not think that so far this burying of traditional marriage, and putting something entirely new in its place, has yet been fully recognised by the populace. I wonder how many realise that this legislation authorises in law a man who is married to another man to be called a husband, and a woman married to another woman to be called a wife. Wife in its old meaning has been abolished by a little-read schedule to the Bill and, no doubt, the proper use of the term will soon disappear. These are dramatic changes—changes that pay no regard to the normal use of the English language, tradition, common sense or common courtesies. It is up to those initiating such change to try and make it reasonably palatable for those who were brought up to accept that marriage is the union of a man and a woman. I hope that, even at this late hour, the Government will recognise that they have some obligation in this matter.
Lord Pannick
My Lords, I do not support the amendments because each of them would wrongly suggest to the happy couple entering into a state of matrimony—to their families, their friends and to the world at large—that theirs is not a marriage like any other. The amendments would suggest that it is a distinct form of marriage to be placed in a category of its own. Since the very purpose of the Bill is to recognise same-sex marriages as the voluntary union of one man with another or one woman with another, in the same way as the voluntary union of a man and a woman, it would surely be bizarre in the extreme for us churlishly to take away by a subsection part of the recognition and status that the Bill will accord.
No one would seriously suggest, I assume, that there should be a legislative provision that states that marriage between divorced persons shall be referred to as marriage (divorced couples). The whole point of the Bill is that all lawful marriages, which will include marriages between same-sex couples, are marriages— although, as we all know from our personal experience, each and every marriage is unique.
The noble and learned Lord, Lord Mackay of Clashfern, emphasised that there are some respects in which the Bill treats a same-sex marriage as different from a marriage of an opposite-sex couple. But the whole point of the Bill, surely, is that, notwithstanding those differences, the Bill will implement the basic and vital principle that a same-sex marriage is a marriage with the same status and consequences as any other.
I entirely understand why those who are fundamentally and sincerely opposed to the Bill should wish to introduce these amendments. But they should recognise why those of us who support the Bill regard them as simply incompatible with the fundamental purpose of the legislation.
Lord Mackay of Clashfern
The noble Lord said that the two types of marriage are to have exactly the same consequences. I think I heard him correctly.
Lord Pannick
I said that I understood the noble and learned Lord’s point that the Bill in various respects, which he referred to, treats same-sex marriage and opposite-sex marriage as distinct in various respects. But I made the point that the purpose of the Bill is nevertheless to recognise that each category should be accepted as a lawful marriage for the purposes of the law of England.
Lord Mackay of Clashfern
The noble Lord will be able to say which of my amendments in any way detracts from that. I understood him to say in his earlier submission that there was no difference in consequence. There is a very vital difference in consequence in this respect: a child born to a woman in a same-sex marriage is not a child of the marriage.
Lord Pannick
I respectfully object to the suggestion that a Bill with these purposes and valuable effects should distinguish between same-sex marriage and opposite-sex marriage and necessarily imply a division between them. That is what I object to.
Lord Cormack
My Lords, I added my name to the amendment because I felt that it was not churlish, derogatory or demeaning. In fact, it indicates that those of us who have profound misgivings about the Bill have done all that we can to acknowledge the validity of the arguments of those who are its champions. All the amendment does is repeat certain words that are in the Bill. The noble Lord, Lord Pannick, or any other noble Lord can talk until he is blue in the face without altering the fact that there is a difference between a same-sex marriage and a marriage between a man and a woman. All this amendment does is acknowledge that. It concedes the word “marriage”.
Lord Anderson of Swansea
Is the distinction not this: that there is no mainstream church, be it a Christian church or a Muslim group, in this country which believes in the principles of racist intolerance, whereas there are many mainstream people, Muslim and Christian, who do believe in traditional marriage? It is quite a simple distinction, which perhaps the noble Lord will consider.
Baroness Butler-Sloss
I had just about finished, but I had not actually sat down. I just want to say that I think this is a rather special, entirely transitional and narrow matter which I ask the House to treat with some degree of sympathy. It is rather different from the last vote that we had, which was on an important and fundamental point. There is nothing fundamental about this; it is a matter of helping a small minority.
Lord Mackay of Clashfern
My Lords, I put my name to this amendment too. I do not think that the fact that it is a public office is a distinction that is important. The important thing is that the law is changed after somebody has taken a job, and that law affects the conscientious view that that person has of the job. The nearest thing that came to my mind, in my own experience and connection with this, was when Sunday trading was introduced, again on a free vote. Those who were employed were given terms in relation to that. It seems to me that some such allowance is only fair, and fairness should apply in public offices as well as in private offices.
Lord Pannick
I apologise to the noble and learned Baroness. For my part, I cannot accept that a public official is entitled to protection against the requirement to perform his or her basic obligations in relation to the official duties which they are contracted to perform. As was pointed out in Committee, a judge or a magistrate who administers the law of the land cannot refuse to administer laws to which he or she objects. The law may well be clarified after that judge or magistrate has been appointed. No doubt some registrars have a conscientious objection to marrying divorced couples; I cannot see that a conscientious objection to same-sex marriage is any different.
Of course, as has been pointed out, the law does allow, in various contexts, for conscientious objections, including doctors and abortion and teachers and religious education. Sunday trading was mentioned by the noble and learned Lord, Lord Mackay of Clashfern. The difference, as I see it, is that the registrar is performing the function of the state, and the function of the state in this respect is to marry people. The law, not the registrar, determines who is eligible to marry. It is unfortunate if registrars take the view that they cannot continue to perform this role, but no one is asking them to approve of or bless same-sex marriage; all that they will be required to do is to perform the official function that they have contracted to undertake.
Lord Elton
Before the noble Lord sits down, I wonder if he could enlighten me; I am only an ignorant layman. Am I right or wrong in believing that judges can in fact pass a case to another judge if they have difficulties with it, such as we have been talking about?
Lord Pannick
I am not aware that judges have an ability to refuse to hear and determine cases on the basis that they disapprove of the particular law of the land that they are charged with the duty to enforce. They accept as part of the job that their job is to apply the law; the law is made by Parliament.
Lord Deben
I believe that on this occasion we should remember what we have just done. We have just asked those who disagree with the view that I and others have taken, to understand why it is that marriage has to be the same for both single-sex and opposite-sex couples. Those of us who have done that have now got to think carefully about opposing this amendment. I support this amendment because I think generosity ought to be at the heart of everything that we do. I do not understand why it is unreasonable to say that those people, who took on a job with particular rules and very clear circumstances, should now be unable to carry through that job in the context of wider views and beliefs. It seems to me a very small thing indeed, but it is crucial to say this about the society we live in.
I remember the disgraceful behaviour in a previous Bill because of which many children have not had the opportunity of being adopted because we did not allow those for whom this was a matter of belief to continue to run adoption agencies unless they were prepared to offer for adoption children from same-sex marriages. As all those agencies always passed people on to those adoption agencies that did do that, there was no reason to do it, except that sometimes we mistake toleration for agreement. In other words, what we mean by toleration is that we should tolerate those things with which we agree. I think toleration is about being prepared to tolerate those things with which we do not agree.
I cannot see the comparison between the judge and the registrar. The job of the judge is consistently and continuously to interpret the law. He or she knows from the moment when they accept being a judge that that is what their job will be. They know that in future there may well be laws with which they do not agree, so it is perfectly proper to insist that they should use their technical ability to impose sentences for things which perhaps they feel ought not to be crimes or, the other way, to be less strict on things which they think ought to have been much better assessed by Parliament. But that is not true of registrars who are now registrars. There must be many who never thought that this change would take place. It has been a remarkable change in human society. It is one I wholly approve of, but I cannot pretend that it has not been very rapid.
Therefore, I ask this House to accept this in the same spirit that we who have sought to get this Bill through have asked others to accept something that is so different from the way in which they have previously thought. I hope that we will be magnanimous and generous enough to say that this is, after all, something that could properly be done, because it will not be for ever; it is merely referring to those people who are now in place. I would have much more difficulty were it not doing that. It seems to me that we ought to be a society capable of including this because, if we are not, we give to those who do not want the changes here every reason to believe that we have put intolerance in the place of a liberal approach.
I hold it to be one of the great achievements that we have reached this way of looking at our fellow citizens. We ought also to think of those who through no fault or choice of their own were unable to imagine that they would now be asked to do this. After all, it is a terribly simple matter. We are just making sure that, when such a thing arises in a registrar’s office, Mrs Jones or Mr Smith is not asked to perform that particular ceremony. If this House cannot see that that is the same spirit as the spirit that puts this Bill through, we must be much mistaken.
Lord Cormack
My Lords, I will not detain the House long. I do not disagree with what the noble Lord, Lord Dear, said, but I seek to sharpen up his amendment for two reasons. First, I have been approached by many people during the passage of the Bill through your Lordships’ House who believe very firmly that marriage is between a man and a woman and wish to see that recognised at all appropriate points, but have themselves not been able necessarily to sustain marriage for life.
It is a fact of life—the noble Lord, Lord Dear, briefly alluded to it—that many marriages do not stay the course. There are many in your Lordships’ House who have been married more than once. That does not in any sense weaken or invalidate the marriage, or make those noble Lords who have had more than one marriage believe less in marriage as an institution. But we live in a very different world from that of 1866 cited by the noble Lord, Lord Dear. Even within the clergy, I have many good friends, some highly placed within the Church of England, who have had a marriage that has come to grief. Some have remarried and some have not. In that spirit of tolerance, understanding and generosity, to quote my noble friend Lord Deben in a previous debate, it would be more inclusive just to omit those words. That does not in any sense weaken the thrust of the amendment of the noble Lord, Lord Dear; it merely brings it up to date and recognises the world in which we live.
My second amendment is slightly more playful in that I would take away the words “in a democratic society” because this belief is worthy of respect in all societies, democratic or not. We recognise that. It is certainly not an amendment to an amendment that I would press. However, I must say to your Lordships’ House that those of us who believe in traditional marriage but are not in any way opposed to equality—one must repeat that, as one has many times during these debates—feel that including something along these lines in the Bill could not do any harm and could be of some reassurance to many people outside this House. They are the sort of people referred to by the noble Lord, Lord Dear, and by the noble Lord, Lord Phillips of Sudbury, in what I thought was a very moving speech in an earlier debate this afternoon. I beg to move the amendment to the amendment.
Lord Pannick
My Lords, nothing in the Bill prevents the noble Lords, Lord Dear and Lord Cormack, believing and expressing a belief in so-called traditional marriage. Contrary to the speech of the noble Lord, Lord Dear, there is nothing in the Bill that “coerces” people to “jettison”—the noble Lord’s words—their beliefs in any of these respects. This has repeatedly been explained by noble Lords and to noble Lords during our debates on the Bill. If, as the noble Lord, Lord Dear, suggests, millions of decent people have concerns, they are completely unfounded and it does no service to them whatever to give credence to such basic misunderstandings.
Marriage (Same Sex Couples) Bill
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The Lord Bishop of Leicester
My Lords, I am aware that the hour is getting late and I hope not to detain the Committee for too long. The amendment would insert a new section into the Equality Act 2010 to make it clear that expressing a traditional view about marriage,
“does not of itself amount to discrimination or harassment”,
under the Act.
In our briefing to Peers at Second Reading, the Lords spiritual said that the reasonable expression of opinions or beliefs on the nature of marriage ought not, in our view, to be the subject of claims against individuals under existing discrimination or harassment provisions in the Equality Act 2010. Some recent high profile cases, which I shall not quote as they have been widely circulated, have highlighted where there is potential for risk in a workplace context. If an amendment to the Equality Act were introduced to put beyond doubt that the expression by a person of an opinion or belief about traditional marriage did not of itself amount to discriminating or harassing another, that would provide reassurance and a degree of legal protection for employers and employees and others who express their views in a reasonable way. “Reasonable” is a crucial point to stress; this is not and should not be a charter vocally to agitate in the workplace.
We very much welcome the Government bringing forward earlier in Committee their own amendment to the Public Order Act to put beyond doubt that “discussion or criticism” of same-sex or opposite-sex marriage shall not be taken of itself to be threatening or intended to stir up hatred. I recognise once again the readiness of the Secretary of State and her colleagues to respond positively to the Church of England’s concerns in this area. But this on its own, while welcome as a clarification of the criminal law, is not quite enough. This amendment is the natural and logical counterpart to it in relation to civil equality law. It also follows the precedent set out by the Government that it is acceptable to write such provisions into legislation, as they put it, for the avoidance of doubt.
Some may have concerns that this amendment would give permission, as it were, to those who wish to use language or justify practices that are anti-gay or homophobic. On these Benches we are clear that we have absolutely no truck with that. As the most reverend Primate said in the Second Reading debate, such behaviour is utterly unacceptable. Indeed, I think he used the word “sickening”. This amendment is deliberately drafted in a positive way to give reassurance and legal protection for the avoidance of doubt to many who share an understanding of the churches and other faiths, and those of no faith, about what they believe marriage to be. Ministers have said on frequent occasions that this Bill is as much about freedom of religion as it is about equality and marriage. Accepting this amendment to give recognition and legal certainty to those of many of the world faiths and none who continue to hold a belief about marriage in its traditional form would be well within the grain of that understanding of the Bill.
At root, this amendment is largely about establishing cultural norms and expectations about what will continue to be acceptable in terms of public discourse about marriage. Its insertion into the Equality Act 2010 would signal that Parliament, as Ministers have often sought to reassure us, considered it to be acceptable to maintain and express the traditional understanding of marriage. As I go about the market towns and villages of the heart of England in Leicestershire, that is the view of marriage that people have grown up with and are used to understanding. We cannot expect those cultural assumptions and norms to change overnight or at the speed at which legislation may emerge.
I had an exchange with the Minister, the noble Baroness, Lady Stowell, in this House on 11 December last year in response to the announcement of the consultation results. During that exchange the noble Baroness said to me:
“We are not changing society. We are bringing forward changes to reflect society as it is. We are seeking to do so in a way that is respectful and understanding of different views”.—[Official Report, 11/12/12; col. 992.]
I acknowledge that, but I would beg to differ on the point about this Bill not changing society. It establishes through law new and different cultural norms and expectations, introduced at some speed. If we are to do this in a way that the noble Baroness rightly identified as being,
“respectful and understanding of different views”,
the law needs to give expression to that principle. This amendment achieves that and helps insulate against what I might call an isolating or even chilling effect for some of those who are already finding themselves somewhat left out in the cold. I beg to move.
Lord Pannick
My Lords, I am puzzled by this amendment because I cannot see any realistic circumstances whatever in which the expression by a person of the opinion or belief that marriage is the union of one man with one woman does of itself amount to discrimination or harassment. It is simply inconceivable that any court could so find. This amendment would have a real disadvantage because it would wrongly imply that the mere expression of other views might amount to discrimination or harassment, contrary to all the principles of the equality legislation.
Baroness Thornton
My Lords, I thank the right reverend Prelate for his measured and thoughtful introduction of the amendment. We discussed much of this last week and the views of these Benches have not changed since then. We think that the equality legislation covers this point. The noble Lord, Lord Pannick, is right in what he said. Indeed, my noble friend Lady Royall confirmed the view of these Benches that we think that the safeguards are in place, that they are respectful and that they do the trick. I look forward to listening to what the Minister has to say, but we have not changed our view that things are already safe.
Justice and Security Bill [HL]
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Lord Pannick
My Lords, Amendments 36 to 38, 40 and 47 to 49 are in my name and the names of the noble Lords, Lord Lester of Herne Hill and Lord Beecham, and the noble Baroness, Lady Berridge. Amendment 50 has the same signatories save that the noble Baroness, Lady Kennedy of The Shaws, is a substitute for the noble Lord, Lord Beecham, for reasons that I should explain. The amendments, like all the amendments to Part 2 in my name, seek to implement the report published last week by the Joint Committee on Human Rights, a committee on which the noble Lord, Lord Lester, and the noble Baroness, Lady Berridge, serve as members. The amendments also seek to implement similar conclusions of your Lordships’ Constitution Committee, of which I am a member.
Noble Lords will know very well that strong views are held on all sides of the House about whether closed material procedures should be introduced. This is a difficult and sensitive issue. The amendments in my name do not—I repeat, do not—seek to resolve the dispute as to whether noble Lords should approve the introduction of closed material procedures. We will address that issue when we come to Amendment 45, in the name of the noble Lord, Lord Dubs, and other noble Lords. The amendments in my name—particularly the amendments in this group—seek to ensure that if CMPs are to become part of our law, careful controls are needed to limit their application to ensure balance and fairness. In particular, they seek to ensure that a judge in an individual case should have a discretion, not a duty, to order a CMP. The judge should ask himself or herself whether or not a CMP is needed in a particular case as a last resort if there is no other effective means of ensuring both justice and security.
There are three reasons why your Lordships’ House should adopt the approach that this should be a last resort with judicial control and discretion. First, CMPs are a radical departure from common law principles, which we all respect and approve, that a party to a case has a right to see the evidence against him and has a chance to answer it. This is a departure—it may be a necessary departure—from the principle of transparent justice. The Joint Committee addressed this issue at paragraph 16 of its report. It said:
“All of the evidence that we have received, apart from that of the Government, regards the proposals in the Bill which extend closed material procedures into civil proceedings generally as a radical departure from the United Kingdom’s constitutional tradition of open justice and fairness. We agree”.
The second reason why we should be very careful and impose controls on CMPs is that a CMP is inherently damaging to the integrity of the judicial process. Judicial decisions are respected precisely because all the evidence is heard in open court and can be reported, subject to exceptions, and judges give a reasoned judgment that explains their decision.
The third reason why a fair balance involving judicial discretion is so important is that the Government’s own rationale for introducing CMPs is not the protection of national security. It is very important to be clear about this. The law already has effective means of ensuring that any information the disclosure of which would damage national security does not have to be revealed in open court. Those are the rules of public interest immunity. The Government say that CMPs are needed not to protect national security but to ensure fairness to them as defendants and to ensure that as much evidence as possible can be heard by the judge. There may or may not be strength in that argument—these amendments do not address that issue—but if the Government’s own case for CMPs is promoting the fairness and efficiency of civil proceedings, then this House should ensure that the CMP provisions are fair and balanced.
To turn to the specific amendments, Amendment 37 provides that the judge should order a CMP only if satisfied that fairness cannot be achieved by any other means. If there is another solution, such as supplying the gist of the evidence to the claimant, using anonymity orders, or security witnesses giving evidence from behind screens, all of which happens now, and if those methods enable the evidence, or as much of it as possible, to be disclosed to the claimant, it is surely wrong in principle for the law to require the judge to move into a secret hearing. This was the view expressed to the Joint Committee by Mr David Anderson QC, who is the independent reviewer of terrorism legislation. The Joint Committee quoted his views in paragraphs 66 and 67 of its report. Perhaps I may remind the House of what Mr Anderson said:
“I said that I thought that a CMP could be tolerable in these sorts of cases—but only if certain conditions were satisfied. One was that a CMP should be a last resort to avoid cases being untriable”.
At paragraph 67 the Joint Committee adds:
“The Independent Reviewer in his more recent evidence indicated that he would be supportive of building into clause 6 of the Bill a requirement that a CMP only be permitted as a last resort: as he put it, a CMP should be available only if ‘there is no other fair way of determining the case’”.
That was the recommendation of the Joint Committee.
Amendments 38 and 40 have a similar objective. They would allow the judge, when he or she considers whether to impose a CMP, to have regard to the possibility that another solution is available through public interest immunity. Public interest immunity is the doctrine of law that keeps out of open court material the disclosure of which would be damaging to national security. But public interest immunity is not an all-or-nothing matter. As I have said, it may enable some of the material to be disclosed—the gist or essence of the case—and documents can be redacted to preserve what is genuinely confidential. I suggest that the existence of PII needs to be taken into account by the judge in deciding whether to move into secret session. I know that the noble Lord, Lord Marks, is concerned about Amendment 38, but it is important to remove Clause 6(3)(a) so that the judge can consider other means of addressing the problem. Amendments 38 and 40 were recommended by the Joint Committee at paragraph 62 of the report. I will not spend time on it, but again this was a recommendation from the independent reviewer, Mr Anderson. All these amendments are necessary if CMPs are not to be imposed unnecessarily and disproportionately.
Amendments 48, 49 and 50 would ensure that the litigant excluded from the open hearing by the CMP was always given at the very least a summary and the gist of the closed material sufficient to enable him to give instructions to his legal representatives and the special advocates. Again, that was recommended by the Joint Committee, which referred to the supporting evidence on that issue from the former reviewer of terrorism legislation, the noble Lord, Lord Carlile of Berriew, and to the views of the current reviewer, Mr Anderson.
Amendments 36 and 47 seek to ensure that, before ordering a CMP, the judge should ask whether the degree of harm to the interests of national security if the material is disclosed outweighs the public interest in the fair and open administration of justice. The Joint Committee stated in its report, at paragraphs 69 to 72, that the Bill as currently drafted wrongly precludes any balancing at all, however limited the national security interest may be, however substantial the damage to fairness if a CMP is ordered and, indeed, however peripheral the national security evidence may be to the issues in the case. That cannot be right; we need some degree of balancing here. I emphasise that the effect of these amendments, if approved, would not be that any evidence touching on national security would have to be disclosed—PII would prevent that—but simply that the judge could not order a closed hearing unless this balance is satisfied and the Government would therefore be unable to rely on the evidence.
I know that the noble Lord, Lord Beecham, is not persuaded yet by Amendment 50 and that the noble Lord, Lord Marks, is also concerned about it. It might be better if, in due course, I do not move Amendment 50 today but consider with others, in the light of the amendments, if any, that are approved by the House today, whether it is appropriate on Third Reading next week to look again at what is now Amendment 50 for the purposes of tidying up the legislation. I hope that that approach—on Amendment 50—commends itself to the House.
Each of the amendments in this group in my name will help to ensure that, if we are to have CMPs, there are proper limits, proper controls, a proper balance and judicial discretion, and that CMPs are a last resort in what I suspect will be the very small category of cases where there is no other fair solution that maintains national security. At the appropriate time, and unless the Government are prepared, as I hope they will be, to make concessions even at this late stage on these matters, I intend to test the opinion of the House on the amendments in my name.
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 Pannick
Before the noble Lord, Lord Hodgson, replies, it may be of assistance to the House if I seek to respond to a specific question put to me by the noble Lord, Lord Owen. I am very grateful for the general support around the House for the concept of judicial discretion in this area and that CMPs should be a last resort, if they are to exist at all.
The noble Lord, Lord Owen, asked me to address Amendments 48 and 49, to which the Minister referred. I am grateful to the Minister for the very careful way in which he went through the amendments. The noble Lord, Lord Owen, was concerned that Amendments 48 and 49 would introduce a duty to provide a summary or a gist of the material if the closed material proceeding is to be ordered. The answer is that disclosure of the summary or the gist would be required only if the Government wish to proceed with a CMP. If they do not wish to disclose the gist or the summary, which is a matter entirely for them, they do not have to do so under the amendment. There simply would be no closed material proceeding. I suggest that that is entirely appropriate if we are to have a fair balance of the interests in open justice and other competing interests. I am grateful to the House.
Lord Hodgson of Astley Abbotts
I am extremely grateful to my noble and learned friend for the courteous and extensive way in which he has replied to Amendment 31, on which this debate has hung. Perhaps I may make clear to my noble friend Lady Neville-Jones that this was not to end CMPs: it was merely to narrow the gateway to CMPs by requiring a PII process first. The noble Lord, Lord Pannick, has discussed a number of amendments that give effect to the recommendations of the Joint Select Committee. If I was going to be irreverent, I might say that I regard those as offering 80% of the loaf, as opposed to 100% of the loaf that I was seeking.
However, I have to recognise that the Joint Select Committee has spent a great deal of time on this, a great deal more time than I have. Speaking as it does for both Houses of Parliament, it speaks with great authority. I also practically recognise that 80% of a loaf is better than no loaf at all. I shall seek, with the leave of the House, to withdraw my amendment and then give my support to the noble Lord if he chooses to move his amendments to give effect to the Joint Select Committee’s proposals. I beg leave to withdraw the amendment.
Lord Pannick
Lord Pannick
My Lords, I can be very brief because I can see that your Lordships are keen to move to vote on this matter. Amendment 33 addresses a specific aspect of fair balance. Under the Bill, a CMP may be ordered only on the application of the state. Amendment 33 would provide that the judge is able to order a CMP also on the application of another party to the proceedings or on the court’s own motion. That may be a practical matter for the reason given by the noble Lord, Lord Marks. The claimant, on the advice of the special advocate, may prefer the case to be heard by means of a CMP or at least part of it, rather than to have the evidence excluded altogether, given that the evidence may assist the claimant. I beg to move.
Lord Wallace of Tankerness
My Lords, consistent with the spirit of the way in which the noble Lord moved his amendment, I shall try to be brief, but I think that it is only fair that I explain why the Government are not accepting this amendment.
It is part of the principle behind our system of government that the Executive are the guardian of the United Kingdom’s national security interest. Courts have frequently stated that the Government’s function to protect national security by claiming PII is a duty rather than an option. Correspondingly, we believe that it should be the responsibility of the Secretary of State to apply for a declaration that a closed material procedure may be used. The courts play an essential role in scrutinising the Government’s exercise of these functions, but the question of whether to claim PII, and accordingly whether to make an application for a declaration that a closed material procedure may be used, should be a question for the Government.
In practice, it is the Secretary of State who holds national security-sensitive material and is in the best position to judge the scope and nature of that material, with advice from the security and intelligence agencies. Other parties may not even be aware that the national security information exists. It will remain open to a third party to approach the Secretary of State and request an application for a CMP if they do have reason to want one. If the Secretary of State refuses, that decision could be judicially reviewed.
I accept there is an underlying concern that the Government could inappropriately use this power because there is a feeling the courts are powerless to prevent the Government claiming PII to hide something, and conversely claiming a CMP when it is to the Government’s advantage to have material before the court. I do not think this is a concern that is ever likely to be raised in practice. In the first instance, it is for the Secretary of State to instigate the CMP application or PII claim, and the power to order a CMP or to accept a PII application rests solely with the judge. The judge would be alert to any unfairness to the non-government party, and within the CMP would have the case management powers to be able to ensure that the claim is fairly heard.
That is, in summary, why we would resist the amendment, and I invite the noble Lord to withdraw.
Lord Pannick
I am very grateful to the noble and learned Lord. If we are to have CMPs there must be equality of arms and there must be fairness, and it must be open to the applicant to apply to the judge for a CMP to be ordered. I wish to test the opinion of the House.
Lord Pannick
Lord Pannick
My Lords, the amendment would provide for judicial discretion in this context. We have had a full debate on whether or not there should be judicial discretion. I beg to move.
Lord Wallace of Tankerness
My Lords, I am not quite sure that I can say that we do not support the amendment and just leave it at that, as that would not be courteous to the House.
Very briefly, the Bill states that the judge must order a CMP if he considers that a party to the proceedings would be required to disclose material and that such a disclosure would be damaging to the interests of national security. The amendment would change the “must” to “may”, introducing greater judicial discretion. However, the Government do not consider that this is a necessary amendment given the narrow criteria that are set out for triggering a CMP and the other safeguards in the process.
When the Secretary of State makes an application whereby a CMP might be used, the judge needs to be satisfied of two things: first, that there is material that a party would normally be required to disclose; and, secondly and significantly, that disclosure of that material would damage national security. That is not a fig leaf, as some have described it. The judge will have the final say about whether or not those conditions are satisfied. The Secretary of State has to demonstrate that genuine damage to national security, not embarrassment, would be caused by the material being disclosed publicly; and if the judge disagrees with that assessment, he could refuse to order a CMP. Equally, if he considered that the material was not relevant to the facts of the case and the Secretary of State was therefore seeking a CMP where one was not necessary to protect material that was relevant to the case, he could refuse to order one on that basis, too. This is a significant role for the judge.
It is also important to remember that the process does not end with the court’s declaration that a CMP may be used. It is, as has been described in our previous debates, a gateway. Stage 2, set out in Clause 7, is a process whereby the special advocate can then challenge individual documents as to whether they should go into open or closed proceedings, and this is done successfully.
In those circumstances, I encourage the noble Lord to withdraw his amendment, although I suspect that he is not going to do so.
Lord Pannick
The noble and learned Lord is very wise. If we are going to have CMPs, it should be at the discretion of the judge rather than as a matter of duty. I wish to test the opinion of the House.
Lord Pannick
“( ) the degree of harm to the interests of national security if the material is disclosed would be likely to outweigh the public interest in the fair and open administration of justice”
Lord Pannick
“( ) a fair determination of the proceedings is not possible by any other means”
Lord Wallace of Tankerness
My Lords, it may be for the convenience of the House if I indicate that, while the Government do not accept Amendments 37, 38 and 40, we do not propose to resist them at this time. There will obviously be an opportunity to reflect on them.
Lord Pannick
Lord Pannick
“( ) Before making a declaration under subsection (2), the court must consider whether a claim for public interest immunity could have been made in relation to the material.”
Baroness Stowell of Beeston
My Lords, I shall speak to Amendment 41 now but I hope it will assist the House if I do not speak to the other amendments in this group until after they have been debated. I shall therefore respond at the end of the debate to both this amendment and the other amendments in the group which have been tabled by other noble Lords.
When I was responding to a debate on a topic which falls within this group, I boldly announced that I am not a lawyer. In the course of my remarks I said something which provoked a strong response from some of the lawyers who were involved in the debate that day and it is therefore a pleasure to move a government amendment that addresses the concerns raised in debate at that time. The point at issue then was the provision of notice by the Secretary of State to the other parties in a case in which a CMP is to be applied for. The Government committed to considering the issue. We gave it more detailed consideration over the Summer Recess and wrote to the noble and learned Lord, Lord Falconer, together with a number of other noble Lords who raised questions at the time of the debate.
In that letter, the Government explained that on further consideration it was clear to us that there were difficulties of both principle and practice with having CMPs without notice. We made it clear that closed judgments would exist without anyone other than the judge and the Secretary of State being aware of their existence if we were not to give notice, and that special advocates would also be unable to take instructions from the individuals whose interests they represent or to communicate with them at all. It was our view that this problem could be sorted out in the detailed rules of court for CMPs. However, the Government have considered this further and believe that it should be safeguarded in the Bill. The amendment provides for two procedures: the Secretary of State must give notice of his or her intention to apply for a CMP to the other parties in the case, and he or she must also inform the other parties of the outcome of the application.
I hope noble Lords will agree that this enhances the safeguards available under the Bill to ensure that the maximum amount of information that can be provided to the open representatives in the case is provided. I hope noble Lords will also agree that this amendment materially advances the continued efforts of the Government to ensure as much openness and transparency as possible, and to ensure that nothing is kept secret that does not need to be for genuine national security reasons. I beg to move.
Lord Pannick
My Lords, I shall speak to Amendment 56 in this group, which has been proposed by the Joint Committee. It would ensure that rules of court make provision for the media to be notified of any application for a closed material procedure so that they can make representations on the issue to the judge. The amendment would also ensure that a party to a closed judgment may apply for it to be made open at a later stage. It is not sufficient for the Secretary of State to give notice of an application for a CMP to the parties to the case. The reason for that is that a CMP will severely impede the ability of the press to report legal proceedings. It may be that it is only the media who are concerned about a proposal to introduce a CMP in a particular case; the other parties may not be focusing on the matter or may not object.
It is also essential for rules of court to provide a mechanism by which judgments that are closed can be reopened and published after the passage of time if there is no longer any reason for secrecy. These provisions were recommended by the Joint Committee, and perhaps I may quote what was said yesterday in a lecture by the president of the Supreme Court, the noble and learned Lord, Lord Neuberger:
“Without judgement there would be no justice. And without Judgments there would be no justice, because judicial decisions, at least in civil and family law, without reasons are certainly not justice: indeed, they are scarcely decisions at all. It is therefore an absolute necessity that Judgments are readily accessible”.
I accept entirely that if there is a CMP, of course that part of the judgment will be closed, but it is essential that rules of court allow for the possibility of a later application to open up that which no longer needs to be secret.
Baroness Kennedy of The Shaws
My Lords, I support the comments of the noble Lord, Lord Pannick. I serve on the Joint Committee on Human Rights and we were concerned that confidence in the judiciary is absolutely vital in our society. The press coverage of matters and their entitlement to come to a court and to make applications is an important element of democracy and open justice. We would encourage the Government to accept this amendment.
Baroness Stowell of Beeston
It is probably easier if I turn to the other points that have been made in this debate. In the course of doing so, maybe I will receive some assistance that will allow me to answer the noble Lord’s question in greater detail. As if by magic, I have been handed a note. Clause 10(2) gives powers to make rules but these are in consequence of CMPs.
I move on to the question of media reporting and the points raised by the noble Lord, Lord Pannick, and the noble Baroness, Lady Kennedy. The amendment that I have moved, which hopefully the House will accept, means that the parties to CMPs will be notified when an application has been made. In essence, the point was that this is not sufficient in terms of notifying the media. It is obviously a matter for the parties to the claim to decide whether to inform the media. This amendment will ensure that the judge notifies the parties, such that this will be disclosed in the normal proceedings of disclosure that courts make. The noble Lord is looking at me quizzically. He will know more about this than I do, but when the judge notifies the parties that there has been an application, unless it is necessary for him not to do so in the interests of national security, that will be in the public record that exists in the court, which presumably the media are monitoring at all times. This is not about withholding information from the media.
Furthermore, if the media had the right to intervene in this process, it would be necessary for them to have access to all the material so that they could judge or come to a view as to whether it should be a matter for a closed hearing or not. That would be contrary to the whole point of a closed material procedure.
Lord Pannick
I am not of course suggesting that the media should have access to the closed material, any more than the claimant does. The claimant is notified but does not see the secret material. The point is that the media should also simply be notified, so that they can object to a closed procedure.
Baroness Stowell of Beeston
They will be notified, if not directly, by the process of the court notifying both parties to the claim. If the parties wish to notify the media, they can. The media will also be aware through the court disclosing its business in the normal way. The media will also be aware if the claimant wishes to tell them—as I am sure many will—about accusations that they wish to bring against the Government and the reason for them bringing the case in the first place. It is quite unlikely that the media will not be made aware of the application that has been made for a closed material procedure.
I would also add the point I made in Committee, that the media are not an institution with formal responsibilities to represent the public interest. Once they are notified formally in this way, it seems sensible or logical to me that they would then feel that they need to know more about the case—one limb of the amendment covers this—in order for them to have some kind of useful contribution to make about whether this should be a closed hearing or not.
Lord Wallace of Tankerness
My Lords, I will also speak to Amendment 43, the effect of which would be to add the Supreme Court to the High Court, the Court of Appeal and the Court of Session as the courts that would be covered by closed material proceedings in the context of this Bill.
I think that it is important that there is consistency within the hierarchy of courts covered by these provisions. As I have indicated, this amendment would add civil proceedings before the Supreme Court of the United Kingdom to the list of courts in the Bill in which closed material procedures under Clauses 6 to 11 may be used. At present, the only courts for which this is available are the High Court, the Court of Appeal and the Court of Session.
I understand that there might be some concerns about adding to the list. The reason for adding the reference to the Supreme Court is to seek to put beyond doubt that the Supreme Court is empowered to apply closed material procedures. It was felt that the Supreme Court was likely to be considering points of law only and the Supreme Court already has some of its own bespoke procedures where it can exceptionally exclude parties from proceedings if in the public interest. However, after the Bill was introduced, the Government became concerned that omitting the Supreme Court might be a gap in the legislation. The lower courts would be able to rely on the procedures set out in the Bill but the Supreme Court—the supervisory court for those courts—would have either no exceptional procedure or a different one.
I do not think that the Government are naive. I think that we are realistic enough to realise that once we enact this Bill, the early uses of the procedure in the High Court almost certainly will be appealed in some form or another, and it seems quite likely that at least some of these appeals will make their way to the Supreme Court. This amendment will put beyond doubt the Government’s intention that the Supreme Court should continue to have the ability to consider sensitive material and ensure that we are not left in the very unusual situation of the highest court in the land not being able to adopt the same procedures used in the lower courts.
For completeness, I should add that noble Lords may have noted that the first set of rules of court under the Bill for the High Court and the Court of Appeal in England and Wales and Northern Ireland are to be made by the Lord Chancellor. This is simply a matter of ensuring that the implementation of the CMP provisions of the Bill can occur swiftly. We do not think that the same rationale applies for the Supreme Court. The first set of rules are to be made by the president of the Supreme Court, as now.
I very much hope that the reasons for adding the Supreme Court will satisfy your Lordships’ House. We are not talking about the horizontal scope of the Bill but the vertical reach, namely the courts in the hierarchy that may hear such claims.
Concern was also expressed in Committee that in the future the reference to “relevant civil proceedings” to which there could be an extension by order could include inquests and fatal accident inquiries. That was not the Government’s policy, as we made clear in our response to the Green Paper consultation. We had brought forward a Bill we believed would not allow any Government to add inquests to the definition of relevant civil proceedings now or in the future, but we were grateful to the Delegated Powers Committee’s consideration and we took on board its comments.
Likewise, the report by the Joint Committee on Human Rights also made comments regarding this order. I understand that the remaining concerns are to ensure that closed material proceedings should be used only when absolutely necessary and in a narrow and targeted context. It is for this reason that the Government have tabled an amendment to remove the order-making power completely; in other words, removing Clause 11(2) to 11(4).
I can assure your Lordships that this decision has not been taken lightly. Parliament has legislated for CMPs no fewer than 14 times over the past 10 years. It is conceivable that national security material may become relevant in contexts other than the narrow ones listed in the Bill. The impact of cases not being heard is felt by not only the Government but claimants, whose cases can be severely delayed. Nevertheless, the Government understand the importance of the issue. This amendment will set to rest any fears raised by the Joint Committee that the order-making power could have been misused or that this clause would open the door to commonplace use of CMPs. It will also put beyond any doubt that inquests are beyond the scope of the Bill.
My noble friend the Duke of Montrose has tabled an amendment to require the consent of the Scottish Government and the Northern Ireland Executive for the Secretary of State to make an order to amend the definition of civil proceedings. The Government are committed to properly respecting the devolution settlements, but if the amendments to delete the order-making power altogether are carried, my noble friend’s amendment would not be necessary. I hope that this also satisfies the amendment tabled by the noble Lord, Lord Pannick, and others that takes forward the recommendation of the Joint Committee on Human Rights. I beg to move.
Lord Pannick
I am very grateful to the Minister for confirming that the Government are proposing the deletion of Clause 11(2) and the order-making power.
I have a concern about Amendment 43, which includes the Supreme Court in the list of courts that will have power to make a CMP. Given the role of the Supreme Court as the final court of appeal in this jurisdiction, it is highly undesirable that it should decide points of law of public importance in judgments that the public and lawyers generally cannot see.
I do not intend to divide the House on Amendment 43. Given the amendments supported by the House earlier this evening, I would understand that the Supreme Court would have ample discretion to decide whether or not it is appropriate for it as the final court of appeal to order a CMP, and no doubt it would wish to take into account the undesirability, if so perceived, of the Supreme Court issuing judgments that, at least in part, the public and lawyers generally would not be able to see. However, I raise that concern.
The Duke of Montrose
My Lords, I thank my noble and learned friend for the way in which he presented his amendments. As he notified the House earlier, if his Amendment 59 is approved, my Amendment 60 will become superfluous. I raise the point that without Amendment 59, there would be a very real danger that anything that the Secretary of State had decided to amend by order in the Scottish courts would be seen as meddling in the affairs of the Scottish legal system. At present, there is nothing more likely to inflame the amour propre of the Scots than actions such as this.
The possibility of this problem was drawn to my attention by the Law Society of Scotland. If Amendment 59 is adopted, we will have a much clearer and more workable piece of legislation than one that is likely to cause controversy. If by any chance it is not carried, I will still wish to bring my amendment forward.
The Bill appears to be walking a fine line on what might be termed issues that might require a legislative consent Motion in the Scottish Parliament and those that would not. Even now, Clause 6(7)(c) of the Bill gives powers to the Court of Session. I understand that early in Committee it was briefly drawn to the attention of the Justice Committee in Edinburgh. Can my noble and learned friend tell the House whether this question of a legislative consent Motion has finally and satisfactorily been resolved?
Justice and Security Bill [HL]
Lord Pannick Excerpts(11 years, 5 months ago)
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Lord Pannick
Lord Pannick
My Lords, we debated the amendment much earlier this evening. It relates to Clause 7 and is the equivalent to Amendment 36 in Clause 6, which was an amendment that your Lordships voted on and approved. I therefore beg to move.
Lord Pannick
Lord Pannick
My Lords, one of the main concerns with Norwich Pharmacal provisions is the breadth of the definition of “sensitive information” contained in Clause 13(3). Amendment 73 would confine the scope of the relevant information to that which needs to be protected. I entirely accept that it may be appropriate to expand the drafting of Amendment 73, but I am quite sure that what we have at the moment in Clause 13(3) is far too broad. I hope that the Government will be able before the Bill is enacted to consider this matter again; I hope that the other place will give specific consideration to this issue. I beg to move.
Baroness Smith of Basildon
My Lords, I shall speak to our amendments on this clause, Amendments 69, 70, 71, 72 and 76. I do not wish to detain the House and I shall not press our amendments to a vote at this late stage, but there are some important issues of principle that I want to put on the record and to which I seek a response from the Minister. I hope that he can take some of the points away and consider the issues.
The purpose behind the amendments is to suggest an alternative definition for the “sensitive information” ouster of the court’s jurisdiction. The reality is that less information is being shared with the UK as a result of fears that the Norwich Pharmacal jurisdiction might mean that the UK Government were forced to disclose intelligence shared with us, thereby breaching the control principle. We have heard that from the reviewer of terrorism legislation, David Anderson, to whom the Minister referred, as well as from members of the ISC and the Government. I know that we have assurances from the US that we will never be denied life-saving intelligence, but I refer the House to the comments made on this issue in Committee by the noble Baroness, Lady Manningham-Buller, who said that that was no consolation to her, given the position that she has held. She went on:
“The nature of intelligence work is putting together information from perhaps five or six different countries and 20 different organisations—little bits and pieces of a jigsaw that, together, might save lives”.—[Official Report, 23/7/12; col. 553.]
The question of whether a UK court would ever in practice authorise the disclosure of such information has been widely debated. I do not intend to go into that tonight, because I do not believe that that is the question now facing this House.
Rightly or wrongly, the flow of intelligence to the UK has been restricted—we understand and accept that. The two questions for the House are: should the UK respond in order to deal with the concerns of our intelligence partners and, if so, what is a proportionate response? The Opposition’s response to the first question is emphatically yes; it is on the second question that I think we would have a difference with the Government; namely, whether it is a proportionate response. We take the view that any restriction of intelligence to the UK is a serious problem and we would agree with David Anderson QC who said of Clause 13 that there was “an element of overkill”. The ouster proposed by the Government reaches far wider than simply the control principle. While we recognise—there is no question about this at all—that there is a need to ensure the absolute protection of information related to our national security, this clause goes wider.
We therefore propose to restrict the definition of “sensitive information” to cover material whose publication would represent a clear breach of the control principle. We would amend Clause 13(3)(b) and (c) to refer only to “foreign” intelligence and to where that intelligence is such that it would jeopardise our national security or strategic national interests.
When we proposed similar amendments in Committee, the Minister described the practicalities, as he did just a moment ago, as being “challenging” and referred to the difficulties of being able to define and separate the two. We took note of what the Minister had to say and, as a consequence, the limitations that we propose in these amendments would retain the ouster for all the examples to which he referred.
Correspondence commenting on control principle material would presumably be covered by amended paragraph (c), which would remain an ouster for information derived in whole or in part from information obtained from or held on behalf of foreign intelligence services. That would allow for either the part of the correspondence that referred to foreign intelligence to be prevented from disclosure, or the entire correspondence, if it solely referred to that intelligence and would represent a disclosure of that information. As I understand it, that is much the same way as the original PII for certain redacted paragraphs in the court’s judgment on the Mohamed case argued.
Lord Wallace of Tankerness
I am very grateful to the noble Lord, Lord Pannick, for moving his amendment and the noble Baroness, Lady Smith, for speaking to her amendments. There is recognition on both their parts and across the Chamber of the importance to us of information which we receive from other intelligence agencies. It is often crucial, and it is important that we can reassure them of its confidentiality. We have been trying—I acknowledge that this is the spirit in which the amendments have been moved—to ensure that there is a proportionate response to ensure that the information is protected.
There is the fundamental problem that the novel application of the Norwich Pharmacal jurisdiction, which has its origins in the intellectual property sphere of law, into the national security context has potentially been damaging to the United Kingdom's national security and international relations. As I have said, its very existence can erode the confidence of our agents and our intelligence-sharing partners that we can protect the secrets they share with us. Moreover, in the case of human agents—because it is not just information that we receive from other intelligence agencies; it is important to remember our own agents—there are real concerns of threat to life if there is a requirement to disclose. Each case that goes through the court has potential to cause damage, not just through the disclosure of sensitive information but by highlighting the risk that it could be disclosed.
In addressing the amendments moved and spoken to by the noble Lord, Lord Pannick, I will indicate that in this sphere we believe there is a need to provide certainty and to reduce the scope for litigation. The noble Lord’s suggestion of moving to a certification model, with a narrowed definition of what qualifies as sensitive information, would allow the uncertainty and damage to remain. If we do not legislate in a way which provides sufficient clarity, we could again have the difficulty that our intelligence-sharing relationships stand at risk of deteriorating.
A certificate-only approach would only partially address the concerns of our intelligence partners and of our own agents that sensitive information is at risk of disclosure under the Norwich Pharmacal jurisdiction. It might leave them with the fear that a certificate might not be upheld and that their material might ultimately have to be disclosed. That in itself could have a chilling effect on the activities of our intelligence services and our intelligence-sharing relationships. An absolute exemption therefore provides a clearer and neater protection for this material and more certainty for our partners and our own intelligence services.
I turn to the restriction of the statutory protection to identity, which seeks to define what might be the intelligence with national security concerns. The noble Lord, Lord Pannick, illustrated this by the identity of intelligence officers, their sources and capability and to control principle material alone. We believe that is insufficient, as there is sensitive information falling outside of these two categories that also requires statutory protection. That picks up the point made by the noble Baroness, Lady Manningham-Buller, that this is far too narrowly defined.
Given that the work of the intelligence services is covert, a considerable amount of material would not fall into the category of identities and capabilities but the disclosure of which could nevertheless still be very damaging. Such information includes information about operations and investigations, as well as threat assessments in relation to sabotage, espionage and terrorism, assessments of vulnerabilities of critical national infrastructure or systems, military plans, weapons systems and information on the development or proliferation of nuclear weapons overseas. It may also include operational planning and intelligence reporting, as well as material relating to national security policy and intelligence policy issues and funding, and so on. I hope that giving these examples shows that it is a much broader sphere of activity than is proposed in the amendment.
Likewise, that narrow definition can also create scope for litigation about what does and does not fall within the definition—what, for example, would be meant by the “capability” of intelligence officers? These issues alone could result in lengthy litigation, all of which would divert intelligence officers from front-line duty. The model proposed by the noble Lord, Lord Pannick, also allows no statutory protection for sensitive information whose disclosure could cause damage to the interests of the international relations of the United Kingdom. This point was also picked up on one of the latter amendments in the group by the noble Baroness, Lady Smith. The Government need to offer protection to this category of material to ensure that our international partners remain willing to talk to us in a frank way, so that we can protect and further the United Kingdom’s interests. The mere embarrassment that would be caused from disclosure of diplomatic material would be no basis to certify. Only if material would cause damage to international relations would we be able to certify.
Diplomacy does not work if diplomats cannot talk in confidence and no Government would, or should, sacrifice the benefits which effective diplomacy can offer. As an example, vital work that is done in promoting human rights is not always done in public. Talking to international partners in confidence about their human rights record is an important part of how we seek to influence that agenda. The possibility that such discussions could be made public could have serious consequences for our ability to influence. Clearly, if international partners do not trust the United Kingdom to keep advice and assessments confidential, this could have a serious impact on the United Kingdom’s interests in the fields of human rights co-operation—as well as on consular assistance, trade and investment, and jobs, to name just a few other implications.
The noble Baroness, Lady Smith, proposes adding after,
“held by an intelligence service”,
the qualifier,
“where that information relates to national security or the interests of the United Kingdom”.
We do not believe that that is the right approach. The Freedom of Information Act, which I referred to earlier, does not try to exclude those agencies from the operation of the Act only in so far as they hold information relating to national security. Rather, it excludes them from the Act as a whole in recognition of the fact that, as far as the agencies are concerned, their entire function and raison d’être is to do with national security and necessarily the information they hold is connected with that. The Security Service Act 1989 and the Intelligence Services Act 1994 both make express provision that the heads of those organisations are to make arrangements to ensure that no information is obtained by their agency,
“except so far as is necessary for the proper discharge of its functions”.
I am concerned that adding the wording suggested might only confuse the matter and give further opportunity for unnecessary litigation. We have heard about the canteen menu, and I think the noble and learned Lord, Lord Falconer, referred to someone who had slipped on the floor and wanted to sue the cleaners. I do not think those examples have so far been used in Norwich Pharmacal to get information out of the security services. If that were the issue, there are many other ways that that information could be sought. We are talking about far more serious information, and I do not think that is being challenged.
The noble Baroness said that she could not find anywhere where the Government had said what they might mean by,
“relating to an intelligence service”.
The Opposition propose removing the clauses that protect information relating to an intelligence service and information obtained from or held on behalf of one of our own intelligence services, as opposed to a foreign intelligence service, or information derived from such material. Sensitive information that would not be afforded statutory protection under these amendments includes sensitive intelligence material held by, say, the Home Office, that has been passed to it by the Security Service in support of executive action, for example, deportation on national security grounds or a TPIM notice. It would also include intelligence the Security Service shared with the police in counterterrorism operations, the disclosure of which would readily compromise those operations in either preventing a terrorist attack or bringing terrorists to justice. Work done in other government departments on national security policy and intelligence policy, which relates to the intelligence services, would not be protected if the “relating to an intelligence service” clause were removed.
The Government have reflected on the constructive analysis and considered comment in the legislative period to date. Picking up the point made by the noble Lord, Lord Pannick, I have no doubt that it will be considered further when this Bill goes to another place, but we have concluded, so far, that in the Norwich Pharmacal context, we need to provide absolute exemption for intelligence services information and certification for other sensitive information, the disclosure of which would be damaging to national security or international relations. Only by this can we provide the clarity required to enable the UK to protect its sensitive information in cases of third-party wrongdoing and to restore the confidence of our intelligence-sharing partners and our own security and intelligence services.
I have tried to outline some of the responses to what I appreciate are constructive approaches to what we all agree is a difficult issue. I hope I have explained why the Government resist these amendments, and I hope the noble Lord will withdraw his amendment.
Lord Pannick
I am very grateful to the noble and learned Lord. I recognise the difficulty of defining with precision what information should be covered. I maintain the position that Clause 13(3) does not do a very good job of it. I suggest that the Minister and the Bill team would benefit considerably by having a word with the noble Baroness, Lady Manningham-Buller—although not tonight. At some stage, perhaps they could discuss a way of improving what is a very unsatisfactory Clause 13(3), but for the moment, I beg leave to withdraw the amendment.