Anti-Semitism

Lord Pannick Excerpts

Thursday 13th September 2018 Lords Chamber

[Lord Pannick (CB)]

My Lords, there is an old Jewish joke. Manny and Issy are facing a firing squad. Manny says, “Please can I have a final cigarette?”. Issy whispers to him, “Ssh. Don’t make trouble”. I am very pleased that the Jewish community and all our many friends, including the noble Lord, Lord Popat, are making trouble about the scourge of anti-Semitism. There have always been anti-Semites and I am afraid there always will be. But what is so alarming is that, in this great country—a country that gave refuge to my great-grandparents when they were fleeing pogroms at the end of the 19th century—the leadership of one of our major political parties is incubating anti-Semitism.

When the leader of the Labour Party calls representatives of Hamas his friends, despite the fact that their policy is to kill as many Jews—I emphasise Jews—as possible, when he applauds graffiti that show the working man oppressed by Jewish bankers, when he expresses support for a vicar who suggests that Mossad was responsible for the 9/11 outrage, and when he contends that British citizens who are Zionists do not really understand this country, it is not surprising that his shameful conduct encourages the release into the political atmosphere of a poison that is polluting our civil society. No politician who tolerates, far less encourages, such a virus is fit for public office.

European Union (Withdrawal) Bill

Lord Pannick Excerpts

Committee: 11th sitting (Hansard): House of Lords
Wednesday 28th March 2018 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, there seems to be a great deal of sense in the amendment, partly because of the provisions of Clause 6, and partly because it is important that the businesses that will be trading into the European Union have ready access to all relevant documents. They will be regulated by directives which set out the principles with which they must comply. The noble Baroness is quite right to move the amendment. Unless there is some compelling reason—which cannot be cost, because that must be very small—I hope it will get a favourable reception from my noble friend.

[Lord Pannick (CB)]

My Lords, it is indeed striking that directives are not included in Schedule 5, part 1, paragraph 1(2). The reason may be that directives are given a very odd status under Clause 4(2)(b), which we debated on a previous day. Under Clause 4(2)(b), retained EU law does not include rights which arise under an EU directive when they are,

“not of a kind recognised by the European Court or any court or tribunal”,

in this country,

“in a case decided before exit day”.

We debated the complexities, the uncertainties and, as I see it, the unsatisfactory nature, of the clause. Is that the reason why directives are not included in Schedule 5, part 1? If not, what is the reason?

[Baroness Ludford (LD)]

My Lords, I support my noble friend’s valuable amendment. I wonder whether the Government are being as transparent as they ought to be. After all, there have sometimes been well-founded suspicions of gold-plating of directives and, in contrast, of not entirely full or accurate transposition of directives. I am sorry to repeat myself, but I gave the recent example of the European investigation order, which was not transposed in regulations last December with exactly the wording in the directive. The European Convention on Human Rights has been substituted for the charter, which is in my opinion a breach of the accurate transposition of the directive.

Not only during the transition but well into the future, businesses and all citizens will be obeying a lot of the acquis of EU law, if the Prime Minister’s emerging strategy of staying plugged into many EU policies and agencies one way or another comes to fruition. Therefore it is right for businesses and individuals to be able to see how EU law in directives, which unlike regulations, does not have direct effect, has been translated, transposed into UK law, so that they can track its accuracy. This is a long-running theme in the European Parliament, as my noble friend will know. Indeed, the Minister will know that there was an attempt to campaign in the European Parliament to have what was known in the jargon as “correlation tables”. It was possible to see exactly how EU law had been translated into national law in all EU states.

Funnily enough, the member states never wanted that to happen. They got away with a bit of smoke and mirrors of people not understanding where law had come from at the European level, or where it had not. Where something had been added at national level that was sitting in some dusty drawer in Whitehall and this convenient vehicle of an EU directive came along, they said, “Right, we’ll just slap into that things we’ve long thought about and no one will realise that it didn’t come from Brussels”. Well, people need to know whether it came from Brussels or not. The kind of transparency that my noble friend is seeking would be extremely useful.

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[Lord Lisvane (CB)]

My Lords, this amendment is in my name and those of my noble friend Lord Pannick, my noble and learned friend Lord Judge and the noble Lord, Lord Tyler. It is grouped with Amendment 355ZZA in the name of the noble Baroness, Lady Bowles of Berkhamsted, which I venture to suggest has a great deal of merit.

Amendment 355 may appear to address a minor matter but it is an important matter of principle. The exception from the duty to publish provided by paragraph 2(1) of Schedule 5 depends on a Minister being satisfied that a relevant instrument, as defined in paragraph 1(2) of the schedule, has not become or will not become on exit day retained direct EU legislation. I entirely appreciate the argument that, in that case, there may be little point in publishing some or all of it. However, where the argument goes off course is that, while paragraph 2(2) allows a Minister to give a direction to the Queen’s printer not to publish a specified instrument or a category of instruments, paragraph 2(3) allows this to be done by mere ministerial direction.

The Delegated Powers Committee, of which the noble Lord, Lord Tyler, and I are both members, was critical of this. At paragraph 49 of its 12th report, the committee said:

“Amending the law by direction … is highly unusual. The delegated powers memorandum”—


that is, the Government’s delegated powers memorandum to the committee—

“justifies this on the ground that it is a ‘limited administrative power’. Even so, to allow Ministers to amend the law by a mere direction, with no associated parliamentary procedure, sets an ominous precedent. Such a direction is what Henry VIII might have called a proclamation”.

It does not matter that this power is proposed to be used in relatively uncontroversial circumstances and that the identification of any instrument or category of instruments may be relatively straightforward. The important point is what the Delegated Powers Committee calls an “ominous precedent”. This may seem a little Cassandra-like, although I think that the Delegated Powers Committee is believed rather more often than was Cassandra with her repeated nul points, but, right on schedule, along comes the Taxation (Cross-border Trade) Bill, which makes much use of the unwelcome concept of making law by public notice—in effect, by proclamation, with no role at all for Parliament.

In the referendum campaign, much was made of parliamentary sovereignty, and it has been a recurrent theme of our debates in Committee. I suggest that we should be sharply aware of procedures or processes that tend to diminish or extinguish the role of Parliament in favour of that of the Executive. I beg to move.

[Lord Pannick]

My Lords, I have added my name to this amendment and I agree entirely with what my noble friend Lord Lisvane has said. I simply add that sub-paragraph (3) is also objectionable. It states:

“A Minister of the Crown must publish any direction under this paragraph”.


However, it does not even say how or where the Minister is to publish. It gives complete discretion to the Minister.

I also have a wider concern about paragraph 2: that is, the power for the Minister to create an exception to the duty of the Queen’s printer to publish retained direct EU legislation. The Minister recognised in the previous debate, and appropriately so, the importance of the law being publicly identifiable so that everyone knows what the corpus of retained EU law is. However, paragraph 2 contradicts that. To give a discretion to the Minister to exclude something from the material that is to be published by the Queen’s printer if the Minister takes the view that a relevant instrument will not become direct EU legislation leaves matters completely uncertain. I suggest that a much more sensible approach is that, if the Minister takes the view that a particular instrument is not becoming retained direct EU legislation, the Minister should have a duty to ensure that it is not included in the material that is to be published by the Queen’s printer.

What we want, and what the public are entitled to have, is a body of material that in the view of the Government constitutes the retained direct EU legislation that is to become part of our law. These matters should not be left to the discretion of Ministers.

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[Baroness Goldie]

Well, I have listened with interest to these contributions. We will certainly reflect on what has been said. I understand the desire of the Chamber to get some whiff or wind of what the Minister might be contemplating and I can certainly undertake to look at what the noble Baroness, Lady Kramer, and my noble friend Lord Hailsham have said. I was going to go on, if I may be permitted to do so, to try to cover the point about secondary legislation, if I can pause for breath to do that.

[Lord Pannick]

The Minister is being very patient. I would like to add to what the noble Viscount has said. A real disadvantage of what the Government are proposing—that is, there is publication with no opportunity for the matter to be debated before it is decided—is that there is a means of challenge, and that is in court. It would be most unsatisfactory if the procedure that the Government adopt is that Ministers make a decision and publish a direction, there is no opportunity for debate in either House and then anyone who is aggrieved takes the matter to court. Surely it would be far better for this to be done by statutory instrument, and then any concerns could be properly debated.

[Baroness Goldie]

I hear the noble Lord, and I shall certainly reflect on that observation, but if I may be permitted to advance what the Government consider to be the case in relation to the proposition that this be dealt with by secondary legislation it might enable the Committee to understand why the Government have adopted the view that we have. The alternative option to require that any such direction is to be made of secondary legislation would arguably be counter- productive. The task of identifying instruments that will not become retained EU law will be a continuous one, and our awareness of such instruments will grow over time. I understand and respect the motives behind the amendment. I have to suggest that it would seem rather paradoxical to require the Government to legislate repeatedly in order to avoid the publication of irrelevant EU legislation, but maybe I am being perverse in looking at it that way. The legislation required to ensure that our law operates effectively after exit day will be significant, and I respectfully suggest that we should try not to add to that task in this case. As I have said, though, many useful points have been raised on this complex question, and I shall reflect on all the contributions made. However, on the basis of what I have been able to say, I hope the noble Lord will feel able to withdraw his amendment.

Neighbourhood Planning Bill

Lord Pannick Excerpts

Report: 2nd sitting (Hansard): House of Lords
Tuesday 28th February 2017 Lords Chamber

I do not want to be ungracious. I thank my noble friend Lord Bourne for doing what is unquestionably right and for his enormous diligence, patience, courtesy, integrity and graciousness—a term used earlier in the debate—throughout this and earlier stages of the Bill. I am delighted that he debated this with the noble and learned Lord, Lord Judge, and saw fit to add his name to this amendment, which deletes Clause 40.

[Lord Pannick (CB)]

My Lords, I am pleased that the Minister has wisely responded to the concerns expressed by the noble Baroness, Lady Cumberlege, the noble and learned Lord, Lord Judge, and others. I congratulate her on her efforts and successful attempts to draw attention to the mischief of Clause 40. In its original form, it was a manifestly unacceptable provision —indeed, a quite extraordinary clause. I remind your Lordships that it said that by regulations the Minister may “make such provision” as the Minister,

“considers appropriate in consequence of any provision of this Act”,

and that the provision that the Minister may make included amending, repealing or revoking any enactment —any primary or secondary legislation.

Your Lordships’ Constitution Committee, of which I am a member, has regularly drawn attention to the constitutional impropriety of such broad Henry VIII clauses. Clause 40 should never have been tabled in that form. I added my name to Amendment 68 in the name of the noble Baroness, Lady Cumberlege, which would leave out that clause, because of my concern at the constitutional impropriety. The noble and learned Lord, Lord Judge, added his name for the same reason, as he explained in Grand Committee.

The wording in the amendment is much more acceptable. As the Minister indicated, it is confined to consequential regulations, not regulations that are, in the view of the Minister, appropriate in consequence of the Act. I have no doubt that a court would hold Ministers to that objective test. The new wording is also confined, as he said, to provisions consequential on this part of the Bill.

I am therefore grateful to the Minister for tempering the wish of the Executive to take broad powers to amend primary legislation. I hope he will communicate to his ministerial colleagues that noble Lords are focused on this subject and that if Ministers again bring forward broad Henry VIII clauses such as Clause 40, we will put down amendments and, if necessary, divide the House.

[Lord Shipley]

My Lords, I add my thanks to the Minister for the proposed changes. The noble Lord, Lord Pannick, has said what I was going to say and I will not repeat it. The change of wording in the amendment is significant because, as he indicated, it is no longer the case that the Secretary of State has the power to consider something “appropriate”. Rather, he can make provision in consequence of any provision in this part of the Bill. This is much better. Henry VIII powers should never have been applied to the planning chapters of the Bill.

I said earlier that compulsory purchase is indeed complicated and I accept that consequential provision may be needed, which can be taken quickly if there is found to be a further flaw in the legislation that Parliament passes. That said, I seek the Minister’s confirmation that the wording now being used in relation to compulsory purchase is the standard wording used in other Bills. It has been said that there is a power in recent planning Acts for Ministers to make consequential provision. We need to be clear about that and that we are not doing something in the amendment that has not been in any other Bill or Act. I understand that to be the position but would be keen to hear the Minister confirm that there is nothing unusual in the wording of the amendment.

Northern Ireland (Miscellaneous Provisions) Bill

Lord Pannick Excerpts

Tuesday 25th February 2014 Lords Chamber

I do not want to dig up unhappy memories of those 50 years and their consequences in the Province, but I suggest that we have to learn from that experience. If the Minister is unable to accept the amendment or to use the power conferred by Section 26(2) of the Northern Ireland Act, I would ask her to indicate what possible measure she proposes instead to guarantee the right to free speech as well as the right to a good reputation across the Irish Sea.

[Lord Pannick (CB)]

My Lords, I have added my name to this amendment. I agree entirely with everything that has been said by the noble Lords, Lord Lexden and Lord Lester of Herne Hill. There may, of course, be some justification for the reluctance of Northern Ireland politicians to bring the law of libel into the 21st century; there may possibly be something unique about free speech and reputation in Northern Ireland that demands the retention of laws that purport to address communications but were developed before the internet, blogs and tweets and, in many cases, before the invention of radio and television—but I doubt it. No credible explanation has been provided as to why Northern Ireland law should remain in the dark ages. I very much doubt whether the Minister will be able to offer any substantive reason why changes in the law thought necessary across the House in relation to England and Wales are not equally necessary in Northern Ireland. In those circumstances, I am unimpressed by the argument that Parliament should do nothing because this is a devolved area. The Northern Ireland Executive and Assembly have had ample time to act and have done nothing.

In libel trials, counsel habitually refer to the biblical statement that a good name smells sweeter than the finest ointment. I have to say that I detect an unpleasant odour in the law of Northern Ireland, and I very much hope that the Minister will be able to tell the House that she is going to do something about it.

Justice and Security Bill [HL]

Lord Pannick Excerpts

Monday 23rd July 2012 Lords Chamber

[Baroness Berridge]

My Lords, along with the reporting and recording requirements in previous amendments, the new clause proposed by this amendment would keep Parliament abreast of the use of closed material procedures. It is modelled on the provision that was introduced when the control orders were introduced into our system. For the first five years they were subject to annual renewal because they were a novel jurisdiction. The same point applies here with the closed material procedures in civil proceedings.

In Committee, many of your Lordships have mentioned the impact that closed material procedures could have on public confidence in the judicial process. This amendment means that without a resolution of each House the powers fail, which is the appropriate mechanism for Parliament to act swiftly, should there be significant concerns about the understanding of and confidence in our judicial system. One of the agreed facts in Committee has been that this is a controversial mechanism to introduce into the civil justice system. It has been noted that Parliament would have introduced this despite the almost universal view of the special advocates that it is not to be recommended.

It is important to have a swift get-out clause to halt closed material procedures, which this amendment gives. Any mechanism that required primary legislation to amend the Act would take too long to deal with such a situation. I beg to move.

[Lord Pannick]

My Lords, I have added my name to this amendment. Nobody who has listened to or read our debates on Part 2 of this Bill over the past few weeks could doubt the importance or difficulties of the issues that we have been considering. Parliament may well decide that it is necessary to include these provisions in Part 2 but they undoubtedly are a departure from the fundamental principles of the common law. There is no doubt that they have a considerable novelty. It is essential that Parliament keeps these procedures under close review. Indeed, how these provisions are operating in practice will be vital to the balance between justice and security, which the noble and learned Lord the Advocate-General for Scotland has repeatedly and correctly in my view emphasised is the primary concern. An obligation on the Secretary of State to bring these matters back to Parliament for an extension of these provisions after a year will focus the mind of the Secretary of State and officials. It will give this House and the other place an opportunity to look at what has happened in practice. I hope that we will also then have the advantage—and it will be a real advantage—of seeing a report from the much respected independent reviewer of terrorism legislation, Mr David Anderson, on how these provisions have been applied.

I hope that I am not out of order in saying that I would very much hope that noble Lords might have the opportunity to hear directly from Mr Anderson, as we always benefited and still benefit from hearing his equally respected predecessor, the noble Lord, Lord Carlile of Berriew. The noble and learned Lord the Advocate-General for Scotland might want to suggest to his right honourable friend the Prime Minister that it would be most helpful to noble Lords if Mr Anderson were able to express views in this House as a noble Lord and participate in our debates. Whether we hear from Mr Anderson directly or indirectly I strongly support the amendment.

[Lord Lester of Herne Hill]

I am not sure that David Anderson QC can be made a Peer with sufficient speed to meet the wish of the noble Lord, Lord Pannick, but I can tell the Committee that the Joint Committee on Human Rights has asked him to give further evidence and we are anticipating preparing a report in time for Report stage that will include his views. That part of the amendment may be met through the committee system in an ordinary way.

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[Lord Lester of Herne Hill]

My Lords, the noble Lord, Lord Campbell of Alloway, once gave me some very wise advice. It was a kind of rebuke. He said, “Never make a serious point after the dinner hour”. I am sure that that was indeed wise advice, but I am going to make a serious point nevertheless.

The noble Lord, Lord Pannick, and I listened very carefully to the debate that took place on 11 July when the noble and learned Lord, Lord Wallace, indicated that he could not make a concession at that time about the principle of proportionality, but he would listen very carefully to what had been said by the noble and learned Lord, Lord Falconer of Thoroton, my noble friend Lord Thomas of Gresford and myself.

The principle of proportionality sounds foreign except to those who have had a proper classical education who will remember that the Greeks themselves and their philosophers developed the idea of the golden mean and a sense of proportion. That idea is rooted in our legal and political system and is as English as roast beef, Yorkshire pudding, and roast potatoes. It simply requires that the decision-taker should not use a sledgehammer to crack a nut.

Amendment 90 seeks to embody in the Bill principles which have to be taken into account by the Secretary of State and by the court in the way in which they interpret and apply the provisions of the Bill as a whole. It therefore requires that, in performing their functions under Part 2, the Minister and the court,

“must have regard, in particular … to the overriding objective of protecting the interests of justice and fairness, and … to the need to ensure that any interference with the principle of open justice is no more than is necessary to protect the interests of national security”.

Even though the Government may be unable to accept some of the other more prescriptive amendments, I very much hope that this amendment will find favour. I beg to move.

[Lord Pannick]

My Lords, I added my name to this amendment because, in light of the importance, the difficulty, the novelty, and the sensitivity of the issues that we have been debating, it is highly desirable that the Bill states on its face the objectives which the Secretary of State and the courts must seek to advance. The overriding objective of the courts is, indeed, to protect the interests of justice and fairness. That is what the Civil Procedure Rules state. Any interference with open justice must surely be confined to what is necessary, as the amendment says,

“to protect the interests of national security”.

Who could possibly object to that?

[Lord Butler of Brockwell]

My Lords, I rise to make a brief point. I do not doubt the seriousness of the noble Lord, Lord Lester, even after dinner—nor his good intentions. However, it seems to me that the word “overriding” introduces a dangerous note of ambiguity. What does it override?

Justice and Security Bill [HL]

Lord Pannick Excerpts

Monday 23rd July 2012 Lords Chamber

[Lord Thomas of Gresford]

My Lords, I shall speak to Amendment 69ZC in my name and those of my noble friend Lord Marks of Henley-on-Thames and the noble Lord, Lord Pannick. This Bill says nothing about the trial judge’s approach to the material that has been disclosed to him once the Section 6 proceedings have been completed. The word “material” is used throughout Sections 6 and 7, and Section 6(3) implies that the judge should consider intercept material: that is, material that would not be admissible in open proceedings under Section 17(1) of the Regulation of Investigatory Powers Act 2000. I remind your Lordships very briefly of what it says:

“(1) Subject to section 18, no evidence shall be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of or in connection with any legal proceedings [or Inquiries Act proceedings] which (in any manner)—

(a) discloses, in circumstances from which its origin in anything falling within subsection (2) may be inferred, any of the contents of an intercepted communication or any related communications data”.

Perhaps your Lordships will be only too aware of the campaign that the noble and learned Lord, Lord Lloyd of Berwick, has carried out, with my support, for intercepted material to be allowed as evidence in court, but that has never been a position that the Government would take.

The word “material”, which appears in Sections 6 and 7, is not evidence upon which the court may act. The amendments that have just been outlined by the noble Lords, Lord Hodgson of Astley Abbotts and Lord Dubs, spell out examples of such excluded evidence: evidence obtained by torture, inexpert opinion, or hearsay that cannot be admitted in the usual way by a notice to the other party. However, the amendment from the noble Lord, Lord Hodgson of Astley Abbotts, does not include the product of intercept.

It would be quite unacceptable for the trial judge to take into consideration, in determining the issues between the parties, anything that not only is never disclosed to the claimant but that would not be admissible in evidence if it were disclosed. The claimant would be doubly prejudiced: there would be evidence given against him in secret that was not admissible, if the judge were to take it into account.

The whole purpose of the civil rules of procedure is to ensure that the cards are on the table. Pleadings are followed by disclosure, and it is at that stage in particular that the parties take important decisions about preparations for trial, the nature and extent of the evidence they wish to call, including witnesses or documents and acceptance of offers, settlement of the case, payments into court and so on. That is why we have the system that we do: so that the cards are on the table before we ever get anywhere near a trial. In this Bill, the Government seem to want to deal from the bottom of the pack and, just for the purpose of saving the cost of settlement in a particular case, disregard the violation of centuries of open and accountable justice. Is it the unstated purpose of this Bill to reveal intercept and similar other inadmissible material to the trial judge in the hope that it will produce a judgment that is favourable to the Government? I hope that that is not the purpose of the Bill, but the way it is progressing leads me to believe that it might be.

My amendment has the merit of setting out in the Bill the parameters which the judge at trial will follow after he has concluded these Section 6 proceedings. He will exclude from his consideration anything that would be inadmissible if disclosed to him as material in closed proceedings. He will dismiss that when he comes to consider the issues in open proceedings.

[Lord Pannick]

My Lords, I support what has been said by the noble Lord, Lord Thomas of Gresford. I added my name to Amendment 69ZC because I was concerned to hear the noble and learned Lord the Advocate-General for Scotland say last Tuesday night, at col. 220, that the Bill would allow the judge to look at intercept evidence in closed proceedings. I had not previously understood that this was the purpose and effect of paragraph 9 of Schedule 2, and that is my fault. However, as a matter of principle it is surely one thing for the Bill to allow the judge in a secret procedure to look at material that is admissible in court but which the state is unwilling to have looked at in open court because of its sensitivity. One understands the purpose of those provisions. It is quite another thing for the state to be allowed to rely in the closed hearing on material that is, in any event, inadmissible in open court.

I had understood the Government’s defence of the closed material procedure to be that the state should not be in a worse position because the evidence on which it wishes to rely cannot be adduced in open court. To allow the state to rely on intercept evidence in the closed procedure—evidence that is inadmissible in open court—would put the state in a better position in a closed material procedure than in an open proceeding, and that cannot be right. Nor can it be a defence of such an arrangement for the Minister to argue, as he did briefly last Tuesday night when we touched on this important issue, that this is what happens in other closed material proceedings. I do not recall the House giving any consideration to this important issue on those occasions. We are now being asked to expand the scope of closed material proceedings very substantially, and I hope that we can now address the issue of principle.

[Lord Marks of Henley-on-Thames]

My Lords, I have been one of those persuaded by the Government of the need for Part 2 of this Bill: that there may indeed be cases in which the injustice of being unable to achieve a determination of the issues in the case outweighs the injustice inherent in having the case tried in part by closed material procedure.

In being so persuaded, however, I have been one of those who have been extremely reluctant to see such a departure from the principles that normally guide us in civil proceedings. That persuasion has been on the basis that closed material proceedings would be a last resort only and that the decision to hold such proceedings would be taken only on the basis that national security required certain material to be withheld from the public at large and from the excluded party or parties, despite the serious unfairness inherent in that procedure.

However, it would be fundamental that, except for the departures from ordinary procedural law inherent in the withholding of security-sensitive information, the proceedings before the judge would otherwise be ordinary civil proceedings. Moreover, the material before the judge, which he could consider in coming to his conclusion, would be evidence that he or she would ordinarily be able to hear and take into account in ordinary civil proceedings.

If that were not to be the case, and material that would be inadmissible in an ordinary case were to become admissible because the proceedings were held as a CMP, that would set them apart from the ordinary procedural law of the land and create an entirely new security court of a type that many in this House would find both alien and sinister. Furthermore, it would undermine the whole concept of the use of a CMP being a last resort, because the very fact of the CMP would give a party seeking to introduce evidence that would otherwise be inadmissible a litigation advantage. That would make the CMP procedure desirable in itself, irrespective of any considerations of national security. The CMP would then become a parallel and less fair procedure than ordinary civil proceedings in a way quite unintended by those of us who see the need for the Bill.

For those reasons, I support this simple amendment, which makes absolutely clear the position of the admissibility of material considered by the judge. I hope that the Minister will accept the amendment and reassure us on this important point in closing.

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[Baroness Berridge]

My Lords, this amendment to Clause 10 relates to two matters: open justice in paragraphs (a) to (c) and the nature of secret judgments in paragraphs (d) to (e). The amendment also bears the names of the noble Lord, Lord Pannick, and my noble friend Lord Lester. I will deal with each of these matters in turn.

Paragraphs (a) to (c) simply provide that the press would be notified of a Clause 6 application for a declaration that the proceedings may require closed material proceedings. Paragraph (b) enables the press to intervene and, if they wish to do so, they might need the services of a special advocate. A subscription-based e-mail alert system would be a simple, cheap and effective method of notification.

In the seminal case of Scott v Scott, Lord Shaw said that open justice is a sacred part of our constitution and our administration of justice. One of the main criticisms by the Joint Committee on Human Rights on the Green Paper was that it lacked any consideration that the interests of the public are served by the press having access to proceedings. In fact, the Joint Committee referred to open justice as the “missing issue” in the Green Paper.

This amendment is somewhat analogous to existing situations in our judicial process, such as where there is a media injunction. Of course, the media can make representations for it to be lifted. It is also analogous to the situation where certain newspapers intervened in the Al Rawi litigation. They were represented by my noble friend Lord Lester to argue the impact that closed proceedings would have on their access to information.

I am very grateful that various media representatives and lawyers gave evidence to the Joint Committee. Mr Cobain from the Guardian maintained that certain material substantiated allegations that the British Government had been closely involved in rendition that the disclosure process in court proceedings brought into the public domain for the first time. He said that he had previously been told by the Government that such allegations were conspiracy theories and that, without the disclosure process, documents, such as a telegram from the Foreign Secretary to various UK missions around the world explaining that no objection would be made to the transfer of British nationals to Guantanamo Bay, would not have been seen. He maintained that, under this closed material regime, the press would not have access to that evidence. Accordingly, the press, and therefore the public, would be arguably less able to scrutinise government actions or to know whether the press allegations by the press are indeed mere conspiracy theories.

During the consideration of these issues over many months now, it has been brought home to me that the public need to know the judge’s reasons—and, obviously, giving an open judgment is one of the main ways in which our judges are held accountable as it enables them to be scrutinised or even appealed. The disclosure and discovery procedures of a court case can also be a vital tool to convert a mere allegation or theory into established fact. Often those processes are the only way in which that information is made public. This amendment would enable the media to make representations—I emphasise on behalf of the public interest, not their own—to see this material and have an open trial.

Paragraphs (d) and (e) of the amendment are, I confess, probing in nature. They seek further details of the Government’s view on the recommendation made by the Joint Committee on Human Rights to deal with important questions raised in relation to closed judgments in a legal system that relies so heavily on precedent. One of my abiding memories from university is that of going into the law library for the first time and seeing all those bound volumes stacked from floor to ceiling. That shine wears off when one is trying to understand the complexity of some of the judgments. I am grateful to know that by the end of the summer the Government will have compiled a systematic database of the headnotes of the existing judgments in closed material procedures. It was troubling to the Joint Committee to hear from special advocates that they did not have access to secret judgments and that it could be merely by chance that they would find out about a case that might be relevant to the one they were involved in. Can my noble and learned friend Lord Wallace say why the database is not to cover the whole case being compiled, or was I the only lawyer who was occasionally led astray by an inaccurate headnote? That would also answer what I believe is an outstanding question: where physically are these judgments held?

Paragraphs (d) and (e) would introduce a mechanism for a party to apply for a secret judgment to become an open judgment and goes beyond the mere review of a judgment that was dealt with in subsection (g) of the new clause proposed in Amendment 67C in Committee on 17 July. I am grateful to my noble and learned friend Lord Wallace for saying that he understood the issue and would revisit the point about secret judgments when,

“the national security considerations have in some respects flown off”.—[Official Report, 17/7/12; col. 209.]

However, it is not only when secrecy has disappeared that there can be a need to open up these judgments either for review or possibly for appeal. There have been a number of instances where the evidence of a witness in a case, often an expert but sometimes a police officer, has been so discredited in its methodology or by the witness’s veracity, that other cases where that witness’s evidence has been relied on need to be looked at. Although it is a rare situation, unfortunately one has only to think of the conduct last week of Chief Inspector Anthony Tagg, who was found by the judge to have lied under oath in the trial relating to the deaths of three men during the riots last summer in Birmingham. It is an example of where other cases in which he has given evidence may have to be looked at. It can only support confidence in our justice system if, as the amendment outlines, a party is allowed in these circumstances to request the court to look at the secret part of a judgment. I hope that the Government will support both aspects of the amendment as I believe that it puts the missing element of open justice firmly back into the Bill. I beg to move.

[Lord Pannick]

My Lords, I have added my name to this amendment and I support what the noble Baroness, Lady Berridge, has said. It is often the case, when courts consider whether to go into closed proceedings in other contexts, such as in family law cases or in those that concern confidential personal information, that the persons who object are representatives of the media. The litigant who is adversely affected may be playing only a very limited role in the proceedings or they may have reasons of their own for not objecting to the closed hearing. It will often assist the court in deciding whether to go into a closed procedure if it hears from representatives of the media as to the disadvantages of doing so and the relevant law in respect of the matter. But the media can make those representations only if they are notified of the possibility of the court moving into a closed session.

As the noble Baroness, Lady Berridge, has said, the amendment addresses a second topic, one that this Committee addressed briefly last Tuesday night, and that is the vital need to ensure that there is the possibility of a periodic review of whether a judgment needs to remain confidential. The concern is that there will be, as there already is in relation to control order decisions and TPIM cases, a body of case law, the contents of which is known only to a very few people. The case law is known to officials, to counsel who have represented the Home Office, to counsel who have acted as special advocates and to some judges. However those counsel and those judges may be aware only of the decisions in the cases in which they have played a part, yet this case law may contain information which is very important to the determination of later cases.

This is a very real problem for a common law system in that some of the case law is secret. I understand that it has been suggested—only partly in jest—that a set of secret law reports should be published, a subscription to which could only be bought by those with security clearance. It may be necessary—this is what we are debating in relation to Part 2—for Parliament to depart from basic principles of fairness and openness, but it is then vital for us to build express procedural safeguards into this Bill, safeguards that do not undermine the maintenance of secrecy.

The noble and learned Lord, Lord Woolf, just expressed the view that it is unnecessary for Parliament to tell the judges how to protect fairness. He is right. All the judges in this area have been and continue to be concerned about maintaining fairness in the procedures in control order cases and in TPIM cases. Nevertheless, I consider it is very important that Parliament should do all that it can to set out clearly, for the avoidance of doubt, the existence of vital safeguards in this area, both to give confidence to the individuals concerned and to ensure that we avoid so far as possible the inevitable expensive and protracted litigation. Two of these vital protections are set out in this amendment—that the press should have notification of a proposal to go into closed procedure and that there must be an opportunity periodically to review whether to maintain the secrecy of a closed judgment after a period of time.

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[Baroness Williams of Crosby]

My Lords, I want to add only a short comment to the remarks made by my noble friend. I can think of nothing that would do more to undermine public confidence in the judicial system than an attempt to try to include coroners’ courts. I will be assured that there has been a promise from the Lord Chancellor that this will not happen, but I cannot understand why the Bill still clearly indicates that there could be a power to include such a court. The Bill says that in exact terms. The idea of excluding the CMP in an inquest would so outrage large sections of the public, especially on publicly very sensitive cases, that I can think of little that would do more to undermine confidence.

I also strongly agree with the general thrust of the remarks made by the noble Lord, Lord Soley. He rightly understands that there is a tendency to have what one might call “executive mission creep”. The temptation to extend powers if there is nothing to limit them more strictly in the Bill is a very powerful temptation indeed. The noble Lord is quite right to say that the procedure laid down here is relatively slow. It is also, to be frank, if I may, relatively inefficient because it depends to a great extent on the interest that is shown in the House of Commons in the procedures that are put before it. Sadly, the story of affirmative procedures is often rather of neglect of the issues and substance put before the House.

The noble Lord is absolutely right to argue that primary legislation would be a more appropriate way to safeguard citizens’ freedoms than to rely on this cumbersome procedure. I strongly hope that the Government will reconsider this very wide-ranging legislation, with very few limits on it. I wonder whether it would be possible perhaps to redraft the legislation in narrower terms and to have more effective accountability. Many of us in the Committee would feel rather more confident about the ability of the legislation to win public support and public confidence.

[Lord Pannick]

My Lords, I share the concerns that have led to these amendments. The views of the Committee and the other place on whether the Bill contains an adequate balance between justice and security will depend on the scope of the Bill and on the scope of the concept of relevant civil proceedings. The wider the scope of the Bill, the less willing Parliament will inevitably be to approve Part 2; and the wider the scope the more willing Parliament must be to include amendments that provide safeguards in respect of the closed procedures.

Given that we are debating this Bill on the basis of the current scope that it contains, it seems fundamentally wrong in principle to give the Secretary of State a power thereafter to expand the Bill’s scope in a manner that when that proposal comes before Parliament will prevent us proposing any amendments that would introduce necessary safeguards that Parliament might think are required in the light of the expanded scope of the Bill.

With the Committee’s permission, I shall return—I have checked the facts—to a matter raised by the noble Baroness, Lady Stowell, in her response to the previous group of amendments. She told the Committee, as I understood her, and as the noble and learned Lord, Lord Falconer of Thoroton, understood her, that the Government may envisage that an application for a closed material procedure may be made in secret, without notification to anyone. My understanding, which I have confirmed, is that under the old control order procedure and the existing TPIM procedure, the application for a closed hearing is always made in public. Indeed, it has to be made publicly because the whole point of the special advocate procedure is that the special advocate before the closed procedure starts can talk to the litigants concerned and obtain information from them.

Furthermore, once a judgment is given, there is always an open judgment, which always refers to the closed judgment—if there is a closed judgment—without of course disclosing the confidential material that is in the closed judgment.

Like the noble and learned Lord, Lord Falconer of Thoroton, I would be very grateful if there could be clarification as soon as possible as to whether it is really the Government’s intention, in relation to the closed material procedure, that applications could be made in secret, entirely differently from how the control order and TPIM regime works.

[Lord Lester of Herne Hill]

My Lords, I have a couple of extra concerns to add to what has already been said. The first is political. As I understand it, this Bill has been introduced on the express understanding of both parts of the coalition that coroners’ inquests would be excluded. I see my noble and learned friend nodding in agreement to that. However, the power that is included here would enable a future Secretary of State to take that away, either during the coalition Government or when the coalition ends. That would be a breach of faith, and we should not now be legislating in a way that makes that possible. It seems to me to be a condition of this Bill that under no circumstances is it to apply to coroners’ inquests, for all the reasons that the Joint Committee and everyone else put forward.

My second problem is that these are civil proceedings, as we are constantly being reminded, so they affect the civil rights and obligations of the parties to those proceedings. When we were enacting the Equality Bills, the question frequently arose as to whether it would be fair and reasonable for a Government to take a power to amend the exceptions to that legislation, which is civil, in order to affect the rights and freedoms of the individual. In introducing both the Equality Act 2006 and 2010, the previous Government took powers to amend, but only by means of removing exceptions, not by anything that would affect the fundamental balance of civil proceedings.

What troubles me is that if this Bill goes through without adequate safeguards of the kind we are pressing for, the use of the powers conferred to amend—to add tribunals by delegated legislation—will not be able to add further safeguards; the question will only be whether a new, further tribunal may be added. That will fundamentally affect, anyhow, the rights and liabilities of the parties to that tribunal.

To take the example in the employment field referred to by the noble Baroness, Lady Turner, one can add a whole new set of restrictions that would apply, for example, to civil litigation in the employment field. That is not something that any previous Government would have contemplated. These powers are not simply Henry VIII in analogy, but maybe a later generation of kings under the Stuarts.

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[Lord Reid of Cardowan]

The noble Lord knows that I always listened and, for the most part, conceded when he made representations on these matters. I have no problem with what he suggested earlier. I was careful not to attack or to try to criticise any particular amendment. The great omission is not the quality or substance of the amendments put forward, but the fact that we have been debating this in a vacuum.

The noble Lord, Lord Pannick, said that there has to be a balance between justice and security. I completely accept that. It is never an easy balance. There have been times in our history where the security situation has been such that we have had to take abnormal measures to constrain or expedite the justice element of that. I accept that it is much more difficult to perceive that today because we do not have a war. However, there is undoubtedly a conflict of sorts, which is a threat to the people of this country. What if—and I hope to God it is an “if”—something happens which could have been prevented by the exchange of intelligence of which we were not in receipt because we had not maintained trust? I do not just mean the trust of the United States but of all our allies. The great tragedy that was avoided in August 2006 involved intelligence sharing not just between the United States and ourselves but on a much wider basis. Two and a half thousand British citizens were at risk in that single event.

All I ask is that noble Lords and colleagues bear that in mind, so that we do not approach this purely from the position of legalism or legal principles. These principles are extremely important; certainly, do not abandon oversight. However, recognise that lying behind the proposals brought by the Government is a motivation which I at least—having been there and seen it with one or two other noble Lords who are here today—judge more benevolently than some of the critics of the Government.

[Lord Pannick]

Does the noble Lord accept that most of the amendments debated so far have been resisted by the Government not on the basis that they would undermine national security but rather, as I understand it, because they are unnecessary safeguards?

[Lord Reid of Cardowan]

The Government must speak for themselves. I am not a member of the coalition—though, with every passing day, it looks as though they may want others to join in place of those who leave. The Government must phrase their own reaction to the noble Lord’s position. I would much rather that we were transparent, out at the front and talked about it. I have just noticed other people here who are much better versed in matters of intelligence than I am. However, in listening to the speeches in here and reading those that I did not hear, I noticed a dearth, if not a complete absence, of one element of the balance we are trying to find—that is, a description of the security circumstances and an explanation of why these proposals might be brought forward at this time. I hope that the Government will perhaps do a little more of that, because we could all learn with a little education.

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I am sorry to have taken so long, but at least I can say in my favour that I have summarised 14 amendments in 10 minutes. I beg to move.

[Lord Pannick]

My Lords, I have added my name to amendments in this group. We are dealing here with the power of the courts to order disclosure of evidence to individuals who have a properly arguable case that the representatives of this country have been involved in wrongdoing. The powerful memorandum from the 50 special advocates pointed out that these cases may involve the gravest of allegations, concerning torture or death abroad in which the authorities of this country are said to be involved. In that context, I am sure that this Committee will want to consider very carefully indeed whether the restrictions on disclosure of information are necessary and whether there are proper safeguards.

There are three linked defects in Clause 13, which these amendments seek to address. The first defect is that the concept of “sensitive information” is very broadly defined indeed. The second defect is that only in relation to some of this sensitive information does the judge have any power at all to decide whether disclosure would in fact damage the public interest. The Minister will clarify the matter in due course, but as I understand the Bill the judge’s power under Clause 14 to review whether there is damage to the public interest applies only in Clause 13(3)(e) cases and not to the other categories in Clause 13(3)—that is all of the intelligence services information. The third defect is that the judge has no power at all in any case to balance the harm to the public interest by disclosure against the detriment to the individual, and indeed the detriment to the public interest, by concealment of this information, which may show the involvement of the authorities of this country in very serious wrongdoing.

Justice and Security Bill [HL]

Lord Pannick Excerpts

Tuesday 17th July 2012 Lords Chamber

[Lord Wallace of Tankerness]

I think that my noble friend has an amendment later where we can explore this more fully. It is the case that special advocates could be engaged both at the second stage, when individual pieces of evidence are being considered, and, by virtue of Clause 10(4), at the application stage.

I will finish my point on Clause 11(5). Nothing in Clauses 6 to 11 should be read as requiring a court to act in a manner inconsistent with Article 6 of the European Convention on Human Rights. In that respect it could be said that Article 6 trumps the provisions expressly set out in Clauses 6 to11.

My noble friend expressed a recognisable concern that national security today might involve serious crime or international relations tomorrow. It is very clear that not only will it not, but that international relations and criminal activity have been considered and rejected for the purposes of closed material proceedings in civil cases. The Bill deliberately omits other aspects of the public interest from CMP clauses, such as international relations and the prevention of detection of crime, even though these categories are included in existing statutory CMPs. I hope that that gives the assurance that it is certainly the intention of the Government that there should not be definition creep, as it were.

My noble friend asked about Pepper v Hart, as did the noble Earl, Lord Erroll. It is not only when European Union issues are involved but when there is doubt in a court case about the interpretation of any primary legislation that the parties can resort to statements made in Parliament that should throw light on the interpretation. So this is not limited to an EU context. We cannot dictate to the courts how to apply Pepper v Hart, but doubtless, in future, parties to litigation will be able to read what I am saying today at the Dispatch Box and, if pertinent, advance cases to the court on that basis.

I have an embarras de richesses.

[Lord Pannick]

Can the Minister confirm that the concept of national security under the Bill is deliberately intended to be narrower than the other concepts included in the Bill? I have in mind Clause 5(5), which appears to contrast the concept of national security with the broader concepts of public interest, the prevention or detection of serious crime and the economic well-being of the United Kingdom. It appears from Clause 5(5) that those are distinct matters. National security is a much narrower concept, and similarly Clause 13(5) appears to contrast the concept of national security with the concept of the interests of the international relations of the United Kingdom. I understood the noble and learned Lord to confirm that those other concepts were not within the concept of national security.

[Lord Wallace of Tankerness]

My Lords, for the purpose of closed material proceedings and what we are dealing with here, national security is the specific concept, although it is not defined in the Bill. As I indicated, the Green Paper suggested that it might go wider to include some of the matters that the noble Lord, Lord Pannick, raised, but we have quite clearly indicated that that will not be the case in matters of national security. I give way to my noble friend who I understand was a counsel in Pepper v Hart.

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[Lord Pannick]

My Lords, would the noble Lord clarify whether the court accepted the argument that it was outside the duties of the intelligence services because they were not themselves being sued?

[Lord Thomas of Gresford]

As I understand it, the court did not accept the argument.

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[Lord Pannick]

My Lords, I share the concerns of the noble Lord, Lord Dubs, about the fundamental unfairness of the procedure by which the judge decides the case without one party having access to vital material and about the public perception of a decision made on that basis. However, it seems to me that the fundamental unfairness, and the perception of unfairness, is not caused by the identity of the judge or the fact that there is only one judge sitting. It does not seem to me that the fundamental unfairness, or the perception of it, will be diminished at all if the judge sits not alone but with two county court judges, four county court judges, or with two or four retired judges of the High Court, Court of Appeal or Supreme Court. That is not the cause of the fundamental unfairness.

Nor, with great respect, do I share the concern of the noble and learned Lord, Lord Lloyd of Berwick, that there is some onerous obligation on the judge who hears these cases alone. Judges are used to hearing difficult questions and deciding them. Judges decide, and have decided, similar issues in the context of control orders and they are now deciding them in the context of TPIMs. Of course, there are very considerable cost implications of having five judges instead of one whenever one has secret hearings and it will cause very considerable delay in these hearings. So although I understand the concerns, I do not think that this is a solution.

[Lord Carlile of Berriew]

My Lords, I fully understand the concerns that have been expressed by the noble Lord, Lord Dubs, however, for the reasons principally given by my noble friend Lord Faulks, I disagree with this proposal. It does scant justice to the judges who have shown great independence in the control order and TPIM cases that the noble Lord, Lord Pannick, mentioned. I do not understand the substance of this proposed amendment to be a complaint made by the special advocates at all. My view is that the way in which judges are trained and apply themselves to their cases does not require an elaborate amendment of this kind.

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[Baroness Berridge]

My Lords, I support two particular aspects of this group of amendments. Following the comments of my noble friend Lady Williams, I, too, agree with the wording in the Bill in relation to the duties and responsibilities of the special advocates. In fact, while the Joint Committee on Human Rights was taking evidence, with the special advocates and lawyers in front of us, questions kept coming up about what their professional duties were to their client, with whom they could not communicate. It seemed to me, as a former lawyer, that it was perhaps one of the safest areas in many respects to have a client because there was no way that you could be sued for negligence when you could not communicate with the person whom you were supposed to be representing. It is a very unusual situation to put a professional in. We asked whether the Bar Council had given any guidance to advocates in this situation. I, too, found it very harsh for the Bill to say that the advocate is not responsible for the interests of the person whom they represent and I think that some more positive duty in the Bill would assist.

I also support proposed subsection (7) in Amendment 67, although it is not clear because it is an extension of the professional duties. Normally it is very clear to lawyers that they can withdraw from a case in certain situations, which are outlined in professional guidance. It is not clear whether a special advocate would have the same ability to withdraw from proceedings. I was always amazed that you could often be faced with two lever-arch files of A4 paper that contained the case papers, and when you got to trial, the trial boiled down to one or two key issues. In a particular case the issues may boil down to information as to where the claimant was on a particular day, and that becomes central to the case. So there may be one or two determining facts in a case. An advocate might be faced with information from the police and security services putting a connotation on certain facts, and be unable to turn to their client and say, “Where were you in August?”. In those circumstances the advocate might feel professionally that they could not represent the client’s interests properly. It is a corollary, I believe, of the situation that I raised in relation to previous amendments. In certain cases the judge may be in that situation as well, where one or two facts are so key to a case that, without hearing the claimant’s explanation of those facts, the case cannot be determined fairly. So this subsection gives the special advocate clarity that they can, in those circumstances, withdraw from the case. Therefore I support my noble friend’s amendments.

[Lord Pannick]

My Lords, my answer to the point made by the noble Baroness, Lady Williams of Crosby, is that regrettably Clause 8(4) is wholly accurate because the nature of the special advocates and the task that they are required to perform is that they are not responsible to the individual in whose case they are appearing. They are not responsible because they cannot tell the person concerned the information that is known to them, as the lawyer in the case. They cannot ask the individual to comment on that information or to give instructions to them on that information. If they speak to the individual concerned, what the individual tells them—the special advocate—may be wholly irrelevant to the case, unknown to the client.

Although the special advocate system is made available as being better than no representation at all, it is inherently and fundamentally unfair in that the individual concerned does not know the nature of the case against them; and nothing that the special advocate does, however competent and industrious they are, can affect that. I therefore think that there is no advantage in seeking to supply in the Bill what would be a fig leaf to conceal the reality of the situation; and the reality of the situation is precisely as it is put in Clause 8(4).

[Lord Thomas of Gresford]

My Lords, it also raises a very interesting question about which all lawyers will be concerned: who pays? When the special advocate is appointed in civil proceedings, does the losing party pay? Does the person who made the application—namely, the state—pay, win or lose? Where do costs lie in an event like that? When you have a provision in the Bill such as Clause 8(4) here, which states that the,

“special advocate is not responsible”,

to the claimant, how can the claimant possibly be responsible for his costs?

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[Lord Thomas of Gresford]

I speak to Amendment 58 in my name and that of my noble friend Lady Hamwee. Clause 7(1) contains five paragraphs of which (a), (b), (d) and (e) are largely procedural. But paragraph (c), which states that,

“the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security”,

goes to the heart of the issue. Does the judge have any function when he is considering an application? Can he carry out a balancing exercise in which he can weigh the interests of not disclosing material against the interests of justice?

My amendment is simple. I note that my noble friend Lord Lester and the noble Lord, Lord Pannick, have a similar one to follow. I will not weary your Lordships with the argument for any length of time. It introduces the instruction to the judge that he must balance his decision and not simply follow a rubric that is laid out for him by the statute as currently drafted.

[Lord Pannick]

My Lords, I am certainly not the heavy artillery to which the noble Lord, Lord Hodgson, referred, but I will offer him some small arms fire in support. Amendment 59 is in my name and that of the noble Lord, Lord Lester of Herne Hill. As with all the amendments in this group, and as indicated by the noble Lord, Lord Hodgson, it is a further attempt to address the core problem with which the Committee has been concerned in relation to Part 2 of the Bill: that is, the need to ensure that the court is given power to order a CMP in the exceptional cases in which such a need arises, but only where there is no other fair and proper means of balancing justice and security.

Amendment 59, as the noble Lord, Lord Thomas of Gresford, said, is in similar terms to his Amendment 58. It would ensure that the rules of court would require the judge to ask whether the damage that the disclosure would do to national security would outweigh the public interest in the fair and open administration of justice. The Bill as drafted, as I understand it, would enable a CMP to be imposed even if the judge concludes that the damage done by not moving to a CMP was minimal, and even if the damage to fairness by denying open justice was substantial on the facts of the individual case. That cannot be right, especially when, as we have previously debated, a decision by a judge not to adopt a CMP would impose no obligation on the Secretary of State to disclose the material, because they would have the option of not continuing to defend the proceedings.

Amendment 59 is designed to implement the objective that was stated by the independent reviewer of terrorism, Mr David Anderson QC, in his oral evidence of 19 June to the Joint Committee on Human Rights. He said:

“The closed material procedure is a weapon that could usefully be added to a judge’s armoury, but it should be for the judge to decide on the fairest way to dispose of a case”.

At present, Clause 7 prevents that desirable objective from being achieved.

I will speak also to Amendments 60 and 62 in the group, to which I have added my name. Amendment 60 would require the judge, if ordering a CMP, not just to “consider requiring” a summary of the closed material to be provided to the other parties—it would require that such a summary of the closed material be provided.

Amendment 62 would require the court to ensure that the summary of the closed material contained sufficient information to enable the excluded party to give effective instructions to his legal representatives and to the special advocate. It would require the summary to satisfy that test even if it would impinge on national security. The reasoning behind Amendment 62 is that it sets out the bare minimum necessary to ensure a fair hearing. It is based on the criteria that were stated by the Appellate Committee of this House in the AF case in 2009 in relation to control order cases. Sufficient information was required by the Appellate Committee in a control order case to enable the subject to give effective instructions, even if such disclosure would have damaged national security. I declare an interest: I was counsel to AF in that case.

Justice and Security Bill [HL]

Lord Pannick Excerpts

Tuesday 17th July 2012 Lords Chamber

[Baroness Berridge]

My Lords, I shall speak to Amendment 88, which, as the noble Lord, Lord Beecham, has said, is in my name. I concur with much of his reasoning and concerns about the recording and reporting of these matters. The amendments would enable Parliament to monitor the use of these unusual court proceedings. I would be grateful if my noble friend would say whether the response given in the other place to the question from Mr Sadiq Khan still stands, as the Government have very helpfully agreed to compile a central database of closed material procedures for the use of special advocates. If the Government are able to compile that database for special advocates, could they not also do so for Parliament?

If the closed material procedures are granted by Parliament, it would be on the basis of there being a very small number of cases. This amendment would enable Parliament to monitor whether that is indeed the case. Unfortunately, things that are intended to be rare have a tendency to creep, as apparently Lord Williams of Mostyn assured your Lordships’ House in 1997 in relation to the introduction of SIAC. The closed material procedures are now used in a large number of statutory situations—I think about 14 different jurisdictions. I expect there will need to be some agreement as to how frequently a report is laid but it is important with such a closed system that as much information as possible comes into the public domain, particularly information that can be assessed by Parliament. Although not the subject of this amendment, the same argument applies to the use of closed material procedures generally, so that Parliament would know how often they are applied for, granted, appealed and, in particular, successfully appealed, as well as which government departments are making use of the procedures and under which legislative regime they are being used. I also believe that there could be useful comparative statistics on how often appeals are brought in jurisdictions where appeal is allowed on a matter of law alone compared to on a matter of fact, as in the civil proceedings considered under this Bill.

Amendment 88 adds the requirement for the independent reviewer of terrorism legislation to bring a report to Parliament, which I understand would be similar to the role of the independent reviewer in relation to control orders and now TPIMs. It could also perhaps provide a means for the independent reviewer to receive the continuing views of the special advocates, which have been such a concern to many people including the Lord Chancellor. Unless someone independent reads all these closed judgments in an area, I do not know how we will know if there are inconsistent decisions and perhaps cases that have been decided without knowledge of a previous precedent due to the fact that these are secret judgments. Some of that risk will of course now be averted by the new central database that I have mentioned, which will be available to special advocates. However, it will not be completely averted, in my view, due to the nature of the system and not in a way that Parliament can be assured of the integrity of the body of these decisions. The independent reviewer of terrorism legislation might even need a method of passing cases that he or she is concerned about to be reviewed by the court for the reasons I have outlined.

I believe it is very much in the Government’s interests to have as much information in the public domain and as much scrutiny as possible of a closed system. I also hope, along with the noble Lord, Lord Beecham, that there will be good news on Report on the principle behind this amendment.

[Lord Pannick]

My Lords, I added my name to Amendment 88 and entirely agree with what has been said by the noble Lord, Lord Beecham, and the noble Baroness, Lady Berridge. The noble and learned Lord the Advocate-General for Scotland said earlier this evening that CMPs are “second-best justice”. If we are to have CMPs as a necessary but regrettable diminution in the quality of justice, and if the quality of justice is to be strained in this way, with all the damage that is done to fair and open justice, it is essential that the legislation contains adequate provisions for reporting and review so that this new procedure can be carefully monitored.

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[Lord Lester of Herne Hill]

My Lords, this amendment is perfectly understandable and very prescriptive. It might be to the benefit of the House if I explained that I asked the Government in a Question for Written Answer whether they would introduce measures to ensure that judgments made by courts and tribunals under the closed material procedures were made public when the reasons for maintaining their secrecy no longer obtained. This, of course, relates to a later amendment.

My noble friend Lord McNally gave a Written Answer on 10 July, which may make any comment unnecessary. He said:

“Closed judgments contain highly sensitive material. For this reason they are not suitable for publication by law reporting organisations which are not security cleared. Closed judgments are usually handed down in tandem with an open judgment, and most judges”—

I emphasise “most”—

“state in their open judgment that a closed judgment has also been handed down ... Judges will put as much of their reasoning into open as possible, including statements of legal principle that are most likely to have cross-case relevance. It is open to special advocates and counsel for the Government to make submissions about moving material from the closed judgment to the open judgment. If the court is persuaded that it would not harm the public interest to do so, then material will be moved to the open judgment”.—[Official Report, 10/7/12; col. WA243.]

It then refers to the code of practice under the Freedom of Information Act. I mention that Answer because it shows that an unsatisfactory situation will obtain with regard to these judgments. Whether this or a later amendment or some other approach is needed, I have no doubt that standards are needed so that we get common—in fact universal—practice as to what we can do to make sure that judgments whose secrecy has been lost over time or because of particular circumstances may be made public in accordance with the principle of open justice.

[Lord Pannick]

My Lords, I, too, support the amendment, and not just because in principle it is right that judgments should be closed for as limited a time as necessary. There is also a very real practical consideration that, despite what the noble Lord, Lord McNally, said in his Answer that the noble Lord, Lord Lester of Herne Hill, quoted, there have been examples of closed judgments that contained statements of principle that were not in open judgments or that contained statements relevant to other cases or potential cases. The difficulty is that those practising in this area who represent individual litigants do not have access to this body of jurisprudence. If we are to create this closed material procedure, we have to recognise that we are creating a body of case law that is not generally available. That is a very real problem for the rule of law. One way in which to address the problem is to minimise as far as we reasonably can the length of time for which a closed judgment is not generally available. For that reason, in addition to the reasons already given, I support the amendment.

[Baroness Berridge]

My Lords, I, too, support the amendment and am aware that part of this issue is covered by a later amendment in a separate group. I want to raise the very practical point that leads on from the point made by the noble Lord, Lord Pannick. From hearing evidence in the Joint Committee on Human Rights, a very basic question arose: where, physically, are these judgments?

Normally, you can go into a law library and they are all there. Special advocates and other people just seem to be unaware of where, physically, this body of case law is stored. We know from the answer to Mr Sadiq Khan that it seems not to be collated centrally. It is a very important question. It sounds incredibly basic, but we need to know where, physically, these judgments are stored.

--- Later in debate ---

As has been pointed out a great many times in these debates, the proposals in the Bill import into ordinary civil cases a new jurisdiction that involves a substantial and, for many of us, deeply disturbing departure from the principles of fairness and open justice that lie at the heart of our system. I suggest that it is incumbent on us to make it as clear as we can that the system will be administered as fairly and as transparently as possible. The introduction of an independent disclosure judge is a minimum step that we should take in that direction.

[Lord Pannick]

My Lords, I sympathise with the objectives of the amendment and I agree with much that was said by the noble Lords, Lord Thomas of Gresford and Lord Marks of Henley-on-Thames. However, I have this concern about the amendment: in practice it will be very difficult indeed for judges to determine whether to move into a closed material procedure as an abstract preliminary question. We are far more likely to get a sensible result from a judge on whether it is necessary to move into a closed procedure, and a far more sensible result on the balance of competing interests, if the judge is fully aware of all the detail of the case and has heard the opening from the parties concerned on both sides with the open material. The judge will then be able to take a far more informed and sensible view on whether this exceptional procedure is really required.

I am very concerned that if these matters are addressed as a preliminary question, we may well find that judges—very properly, to protect national security—are going to authorise far more closed material procedures than would actually be necessary if the judge were fully aware of all the details of the case and had heard at least the opening statements on an open basis.

[Lord Thomas of Gresford]

Would not the problem then arise that disclosure is a preliminary part of the procedure in ordinary civil proceedings? It is upon disclosure and the pleadings that very important decisions are made: for example, for payments in and settlement of a case, and so on. As I understand the noble Lord, he is saying, “Well, leave it until the trial has begun and both sides, or at least the plaintiff, have opened their case. Only then should issues of disclosure take place”. Now, suppose the trial has started, the expense has been incurred, and something very significant appears as a result of a disclosure application which makes months of work completely unnecessary. Is that not the danger of his course?

[Lord Pannick]

The noble Lord is of course correct; that is a danger. However, very often, highly sensitive questions of disclosure that raise issues of PII are not dealt with as abstract, preliminary questions, but on the basis that in civil litigation, one needs to see precisely how the case is going to be argued, how material is going to be deployed, and what the issues are. I suggest to the noble Lord that it is going to be very difficult indeed, particularly in this exceptionally sensitive area, for a judge hearing matters on a preliminary basis to form an accurate and informed assessment of what we all agree are going to be exceptional categories of cases where closed procedures are appropriate, on this preliminary basis. That is my concern. It is a difficult issue.

[Lord Thomas of Gresford]

This is a very useful dialogue. I hope other noble Lords are listening. Is it not the case that strike-out applications, for example, and all sorts of issues are tried on the pleadings? Donoghue and Stevenson was tried on the pleadings. Major cases are tried on the pleadings because, unlike criminal procedures where the defence statements are laughable, in civil proceedings the case must be set out very fully and considered by both sides, and all the evidence must be produced up front, well before the trial starts.

[Lord Pannick]

The noble Lord is correct and I accept, at least to an extent, that there may be Clause 6 cases where a discrete, fundamental issue can be identified at an early stage. However, I suggest that there will also be cases—the majority, I suspect—where the issues will not be formulated and clarified in this specific way on a preliminary strike-out basis. I am concerned that it is inevitable that there will also be cases where fresh evidence comes to light or where, as a result of the way the case is put in the trial, new Clause 6 issues arise. It seems impractical to require the trial judge, who has already started to hear the case, then to say, “I am going to stop”, whereupon the issue would go off to a disclosure judge. There are real issues here and I am far from convinced that the amendment, the purposes of which I entirely sympathise with, will result in fewer CMPs than the procedure that is in the Bill.

[Lord Faulks]

My Lords, I share with noble Lords who have proposed this amendment the desire that there should be public confidence in the system. However, like the noble Lord, Lord Pannick, I do not think that this is the solution. It is true of course that there are circumstances in which it is desirable, if not essential, that one judge should hear one part of the proceedings and another should hear another part, but the question of it being desirable, as it were, to have separate judges is a different matter. In fact, there is quite a strong argument that there should be greater continuity. The days of having one judge hearing preliminary issues and summonses and then the matter moving on to another judge have to some extent been changed in the Commercial Court, the Technology and Construction Court and in many cases in the county courts, so that if possible there is the same judge with a grip on the case right from the beginning.

On the face of it there is considerable advantage to having continuity unless, of course, the process is going to result in injustice to the litigant. We are talking in the context of CMPs with a claimant who may feel that injustice is being done to him or her by virtue of the possibility of closed material provisions. All I can say is that if I were in the position of that claimant, I would much prefer the judge who first heard and no doubt scrutinised the application under Clause 6 to conduct the case throughout in order to make sure that there is fairness, to show the flexibility we discussed in the last session of this Committee, and to deal with what might arise in accordance with the guidance given by the Bill in such a way as to provide justice. Although I wholly understand what motivates the amendment, I fear that it is not going to achieve what it is intended to.

Justice and Security Bill [HL]

Lord Pannick Excerpts

Wednesday 11th July 2012 Lords Chamber

[Lord Lester of Herne Hill]

I did not understand it to impose that degree of rigidity. If it does, then I respectfully agree that some modification of the wording is necessary. I want to deal briefly with one or two other points.

The noble Lord, Lord Pannick, may want to say something himself about the Government’s response to the Constitution Committee’s report, which analysed the three flaws, as the committee saw it, in the existing scheme. I read and reread this government document and it gave me a headache because I simply did not understand what it was saying. It seems to be saying that there is very little difference between PII and a CMP, that there would be the same flexibility in a CMP as in PII, and that, having gone through a CMP, the judge can in any case go back to PII. It must be my fault but I simply do not understand what the Government’s settled position in that document really is. The Government say that the judge would have a number of important tools in a CMP to ensure that it was conducted fairly. They say that there is a similar level of flexibility to that available to the judge under PII. They say that it should be exceptional to use a CMP. All these points are certainly interesting but my basic point is on Wiley balancing. The noble and learned Lord, Lord Woolf, was responsible in his judgment in Wiley for articulating that Wiley balancing should be open to the judge first and that a CMP should be an exceptional procedure following it and that at all stages national security and other vital public interests should be preserved.

I have just one question for the Minister. Does he agree that there is no case in which an English or Scottish judge has breached national security or not shown the appropriate degree of deference to the executive branch of the security and intelligence services in his or her final adjudication? I ask that because I am very concerned that across the Atlantic there seems to have arisen a complete misunderstanding that our judges cannot be trusted with state secrets and national security. I do not know how that came about. My guess is that it arose in dialogue during the Binyam Mohamed case, especially at the Divisional Court level. However, it seems to me vital, as a matter of public record, that the Government make it absolutely clear that our judges can be trusted and have a fine record of trust of that kind.

[Lord Pannick]

My Lords, I have added my name to Amendments 39 and 40. I am very grateful to the noble Lord, Lord Faulks, for introducing the amendment. I recognise that there may well be a need in some exceptional cases for a CMP or closed material procedure, but it seems to me that this should be a last rather than a first resort. My answer to the question put by the noble Lord, Lord Carlile, is that PII certainly maintains secrecy just as effectively as a closed material procedure. If it did not, then it would not be a satisfactory alternative. The advantage of PII is that it does not enable the judge in determining the substance of the case—a point made by the noble Lord, Lord Thomas of Gresford—to rely on material that is seen by only one party and not by the other party. The evidence that is admitted is seen by both sides in the case. My answer to the question posed by the noble and learned Lord, Lord Falconer of Thoroton, is this. If, as a result of the PII—

[Lord Carlile of Berriew]

I apologise for intervening again but this seems to be a very important point. I am not sure that the noble Lord, despite all his great distinction, is right in the answer he has just given.

In criminal cases, when a PII application is made, generally the defence knows absolutely nothing about that application and has seen absolutely no documentation underlying it. I have relevant professional experience in criminal cases; I do not have any relevant experience in civil cases so this in a spirit of genuine inquiry. Is the noble Lord saying that in civil cases where a PII application is made, the claimant will have seen the document for which the PII application has been made? If not, we have a problem, do we not?

[Lord Pannick]

The noble Lord is absolutely correct. In my experience of both civil and criminal cases, the relevant material is presented to the judge by the public authority that has possession of it. The claimant does not see the material. The judge will determine the PII application either by reference to a general description of what it contains or, in appropriate cases, the judge will privately see the material and determine the PII application. Therefore, the noble Lord is absolutely right. Other than in wholly exceptional cases, the claimant will not see it. The point, however, is that it is only if the judge decides that the information may be seen by the claimant—or the defendant in a criminal case—that the material is taken into account by the judge in determining the substantive issues in the case.

That is the advantage of PII: it avoids the case being determined on its substance by reference to material that only one side has seen. If the judge says that PII excludes this material, it is not made public, but equally it is not taken into account by the judge when he determines the case. The whole point of this amendment—as far as I am concerned; I cannot speak for my co-signatories—is that surely the law should seek to ensure that the PII process is gone through in order to identify whether it can provide a satisfactory solution, as it very often will, before we go to the wholly unsatisfactory in principle procedure of the judge deciding the case on its substance by reference to material that only one side has seen.

PII can ensure that even the most sensitive material can be seen by both sides in the case through this means. PII is often used in practice to ensure the redaction of sensitive material so that what is— properly—disclosed to the claimant is not the whole of the document but a redacted version; for example, the names of security agents are removed, or only the gist of the material is disclosed and the judge decides the substance of the case by reference to that document rather than the sensitive material. The amendment seeks to ensure that that process is gone through before there is any question of a closed material procedure.

The noble and learned Lord, Lord Falconer of Thoroton, says that in PII there is supposed to be a balancing process and the judge might decide that this is very sensitive material but the public interest outweighs the sensitivity, which would leave us in the same difficulty. There are two answers to this. The first answer is that as given by the noble Lord, Lord Lester of Herne Hill. Nobody can point to any case where the judge deciding a PII application has decided to reveal something that the security services or the public authorities in general regard as sensitive. Judges do this job with enormous sensitivity and with very considerable knowledge of what is required by the public interest.

[Lord Falconer of Thoroton]

How do we know that?

[Lord Pannick]

We know that because there is absolutely no evidence of which I am aware of public authorities appealing against PII decisions and saying that it is unacceptable, because sensitive material or any other public information is going to be revealed by the judge.

However, there is a second answer to the noble Lord, which is that under a PII application, even if the public authorities take the view that the judge has balanced matters and decided to reveal that which is sensitive, the public authority has no obligation to reveal it. It can decide that it would rather lose the case than disclose this information. That is why we need a procedure for CMPs, because there may be cases where PII does not produce a satisfactory result for public authorities. I am prepared to accept this, not least because David Anderson QC, the independent reviewer, has concluded that there ought to be such a procedure. My point is that it ought to be a last resort, rather than a first resort. My fundamental objection—

[Lord Lester of Herne Hill]

The noble Lord, Lord Pannick, has much more experience than I have in the uses of PII. Subsection (5) of the proposed new clause lists the different matters which the judge should regard when making his decision. Am I right in thinking that these are matters to which the judge has regard to in a PII case? Are those the kind of considerations that the judge will look at carefully in order to tailor the needs of national security and justice?

[Lord Pannick]

The noble Lord is absolutely right. The purpose of the new clause before Clause 6, and the detail that is set out in Amendment 39, is that it is an attempt—with the very considerable assistance, as the noble Lord, Lord Faulks, said, of the legal advisers to the Joint Committee—to set out in statutory form the common law position. That is its purpose; but I emphasise that PII is not a procedure that requires disclosure. It is distinct, as the noble and learned Lord, Lord Lester, says, from the issues that we will be discussing on Norwich Pharmacal where the concern is that if the judge makes an order, there must be disclosure.

My fundamental objection to Clause 6, and the reason I support these amendments, is that under subsection (5) the Secretary of State, before he decides whether to make an application for a closed material procedure, must first consider whether to make a claim for PII. So the obligation is on the Minister to consider whether to apply for PII or not. That is all to the good. However, if a closed material procedure application is made by the Secretary of State—or indeed by anybody else—Clause 6(3) provides that,

“the court must ignore … the fact that that there would be no requirement to disclose if … the material were withheld on grounds of public interest immunity”.

As I understand Clause 6, the judge is obliged to ignore the possibility of PII. I take the view that, just as the Minister ought to consider whether PII provides a satisfactory means of resolving the conflict between security and fairness before he applies for a closed material procedure, equally, the judge should have to consider that.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

The noble Lord made the same point at Second Reading. Perhaps I might explain how subsections (2) and (3) interact. I understand the point that he is making but it is not as fundamental as he represents it. If I have got that wrong, I apologise. He will realise that under subsection (3) the court has to decide,

“whether a party to the proceedings would be required to disclose material”.

That relates back to the first leg of the two conditions that must be satisfied in subsection (2)—namely, that in paragraph (a). The point is that the judge cannot say, “You wouldn’t have been required to disclose this because it could have been dealt with by PII”. This provision tries to ensure that, if you did not have PII, there would nevertheless be an obligation to disclose evidence under, I think, Part 31 of the Civil Procedure Rules. I hope that explains why this is not a matter of principle but one that indicates what might otherwise be required to be disclosed.

[Lord Pannick]

I am very grateful to the noble and learned Lord, who is characteristically very helpful on these matters. However, I hope he will accept that it is absolutely vital, in a matter of such importance and sensitivity, that we make it very clear in the legislation that the judge, when asked to decide whether to go into a closed material procedure—in which he will decide the case by reference to evidence that has not been seen by one side—will do so only if he is satisfied that there is no other lawful, proper means of resolving the question. If the Minister is telling me that the Government’s intention is that the judge should first ask himself whether the problem can be resolved by, for example, gisting or redacting the material or by some other means, or that the judge has a power to say to himself, “This material is really not very important in determining the case. Therefore, I do not need to go into a closed material procedure”, I would be very relieved and satisfied.

I ask the noble and learned Lord to reflect on this point. The issue is not really about the proper interpretation of the very difficult words in Clause 2. The question is one of principle, about what we seek to achieve. For the reasons that I have sought to identify, I hope that the Committee and the noble and learned Lord will agree that we should end up in a position whereby the clause states unambiguously that—given the disadvantages that it inevitably involves and the unsatisfactory nature of such a procedure—a closed material procedure, although it may be needed in exceptional cases, should be adopted only if there is no other fair and proper procedure that can be adopted, and if that is the view of the judge who is hearing the case.

--- Later in debate ---

[Lord Lester of Herne Hill]

I wonder whether this is helpful. In the case of Binyam Mohamed there was a parallel case in the district court of Columbia by another Guantanamo detainee facing a capital charge. This was a habeas corpus case and the question was whether Binyam Mohamed’s evidence, which had pointed to this man as an evil rogue, could be relied upon. The applicant in the habeas corpus case wished to show that Binyam Mohamed had been tortured, so the federal court had to decide that question. It was very much in the interests of the applicant for habeas corpus that that “closed”, secret material be placed before the court to exonerate him. In the end, Judge Kessler came to the conclusion, since it was not contested by the American Government, that he had been subjected to gross ill treatment and that this other man should be granted habeas corpus because Binyam Mohamed’s evidence was unreliable by being induced by torture. That is a real-life example in the context of habeas corpus in which it was in the interests of the applicant to rely upon that material.

[Lord Pannick]

As a matter of principle, the claimant may believe that the secret material would exonerate him. PII would prevent the secret material from being disclosed to him because it concerns security information, but he is confident that he has done nothing wrong—there is no reason why he should not be given naturalisation or some other benefit. He just wants the judge to be able to look at it. The claimant might prefer the judge looking at it without the claimant seeing it to the judge not seeing it at all.

[Lord Thomas of Gresford]

It is more than the judge merely looking at it, though; the claimant might want the judge to take it into account through closed material procedures. That is the point. If I were acting for a claimant, knowing that the Secretary of State had a discretion over whether to go for a PII application that would exclude material or a closed material procedure that would include material, make it admissible and allow the judge to take into account, and the Secretary of State chose PII, I would think—and I am not a very suspicious person—that the Government were seeking to conceal something that the judge should have in mind in my favour. I might very well advise my client to take the risk.

In, I think, the case of Gillan the court suggested to the litigant, having looked at the material, that perhaps closed material procedures would assist him, but his counsel did not take the risk and he was stuck with that. So even though the material apparently assisted him, because he would not ask the closed material procedures —unfamiliar territory to most of us—that material, which might have been in his favour, could not be taken into account by the judge. The judge might know about it but he has to cast it to one side under PII.

That is why I say there is such litigation advantage in the way that the Bill is framed. PII applications can exclude stuff that might be favourable to the applicant. I hope that that answers the question that the noble and learned Lord, Lord Falconer, raised.

I suggest that Amendment 47 is a neater way than Amendments 39 and 40 of incorporating further safeguards. It would provide that the judge must not make the declaration that a closed material application be made to the court unless he considered that the material was inadmissible on the existing common-law public interest immunity principles and that it was strictly necessary in the interests of justice. These simple amendments of course infer, first, that the judge has considered the question of public interest immunity. It may not be necessary for him to go through the whole process; one recalls that in the Guantanamo case there were some 9,000 documents, so it was likely to take months for a judge to carry out the public interest immunity exercise if he had to do it first. He could look at the nature of the documents and realise that at least some of them would be inadmissible. However, it is the judge and not the Secretary of State who decides whether closed material procedures should be introduced, after the judge has considered whether PII would be a better approach. Secondly, it requires the judge to consider whether it is strictly necessary in the interest of justice. That amendment puts the judge firmly in control of case management. As the Bill is drafted, the Secretary of State not only has the litigation advantage to which I have already referred but actually controls the procedure to be followed.

--- Later in debate ---

[Lord Carlile of Berriew]

I am sympathetic to any amendment which will improve the justice of decisions made. I am broadly sympathetic to Amendment 62. When I was independent reviewer of terrorism legislation, I frequently expressed the view that there should be stronger discussion between special advocates and those whose interests they represent. I remain of the view that the security services are over-sensitive, if not hyper-sensitive, about such communications. The short answer to my noble friend is yes.

I therefore invite the Minister to assist this Committee, particularly the non-lawyers here, by answering the fundamental question as to whether the Government have chosen a fairer procedure. Surely that is all we are trying to achieve. I say “that is all” but, if we achieve it, it will be a noble achievement indeed.

[Lord Pannick]

Will the noble Lord assist the Committee with why he thinks that so many special advocates, with all their experience, regard closed procedures as so fundamentally unfair?

[Lord Carlile of Berriew]

They have spoken for themselves and I have read what they have said. The answer is that I do not know. I simply do not agree with them. Each special advocate represents his or her own experience. No special advocate does more than one case at a time. If I have an advantage in this, it is one of observation over a period of years of the work of the body of special advocates.

I say to the noble Lord, Lord Pannick, that there are considerable improvements that can be made in the way in which special advocates receive and carry out their instructions. However, there is no doubt that they have been more effective than they diffidently appear to accept.

--- Later in debate ---

[Lord Wallace of Tankerness]

Of course, it has been Ministers who have asserted PII, and I think that is what we expect the Minister to do: to give consideration to whether that would be appropriate in this particular case before considering an application for closed material procedures.

We do not find an exhaustive proceeding of PII satisfactory because, where it is obvious from the outset that the Government would be claiming PII, and national security counts for the overwhelming majority of relevant material, why go through the PII exercise before applying to the court for a declaration that closed material procedure can be used? That may be the kind of case that the noble Baroness, Lady Manningham-Buller, was talking about. As I have indicated, the Government’s proceedings specifically include a duty to consider it. However, Mr David Anderson QC in his evidence to the Joint Committee on Human Rights said that the termination could be made without conducting a whole PII. He said that,

“if the exercise is plainly going to be futile, I do not think legislation should require it to be performed”.

[Lord Pannick]

I ask the noble and learned Lord whether he agrees with the evidence that Mr Anderson gave in answer to a question from the noble Baroness, Lady Berridge, when he said:

“The closed material procedure is a weapon that could usefully be added to a judge’s armoury, but it should be for the judge to decide on the fairest way to dispose of a case”.

Justice and Security Bill [HL]

Lord Pannick Excerpts

Tuesday 19th June 2012 Lords Chamber

[Lord Pannick]

My Lords, your Lordships’ Constitution Committee, of which I am a member, has published a report which emphasises the constitutional significance of Part 2 of the Bill. The closed material procedure would create broad exceptions to two vital principles of our law: the principle of open justice, that evidence must be given in public; and the principle of natural justice, that each of the disputing parties must have the opportunity to respond to the evidence on which the other relies.

These departures from fundamental constitutional principles arise in the context of the point made in the Supreme Court last year by the noble and learned Lord, Lord Kerr of Tonaghmore, which the noble Lord, Lord Beecham, has already quoted:

“Evidence which has been insulated from challenge may positively mislead”.

These constitutional principles are not sacrosanct—I entirely accept the point made by the noble Marquess, Lord Lothian—but there are two central questions which the House will wish to consider in Committee and on Report. The first is whether the Government can show that the CMP provisions are truly necessary, so as to justify the breach of fundamental principles. The second question is whether the detailed provisions in the Bill allow for a fair balance between competing interests. I was very pleased that, in opening this debate, the noble and learned Lord the Lord Advocate said that he recognised that the Government were aiming for a fair balance between competing interests: security on the one hand and liberty on the other.

As your Lordships have already heard this afternoon, the courts have very long experience in seeking to ensure the confidentiality of information the publication of which would damage the public interest, whether it is national security or any other interest. The law on public interest immunity—PII—has been developed for that purpose. I declare an interest as a practising barrister who has appeared in cases concerned with PII. As the report of your Lordships’ Constitution Committee explains, the Minister produces a certificate and explains that items of relevant evidence cannot be disclosed to the other parties because of national security or some other public interest consideration. The judge then makes an assessment of whether disclosure would harm the public interest and, if so, the judge weighs such harm against the interests of administration of justice and the need to disclose the documents. Because the task of the judge is to balance competing interests, the judge vitally considers whether there are means of preserving confidentiality other than excluding the material from disclosure and other than saying that the evidence cannot be adduced at trial. For example, the court may sit in private. The court may say that there is to be no publication of the names of witnesses such as serving security agents. Disclosure may be restricted to named legal representatives. Most important of all, the judge may decide that the material can be disclosed but only in a redacted form, and that the court will have regard to the redacted form of the material which is seen by all the parties in the case.

The courts have been applying these principles and developing them in PII cases since the decision of the Appellate Committee in Conway v Rimmer in 1968, and indeed before then in Scotland, as the noble and learned Lord the Lord Advocate mentioned—or perhaps it was the noble and learned Lord, Lord Mackay of Clashfern, although both of them have knowledge. I accept, of course, that in some respects the law in Scotland leads the law in England, and this is one of them.

The point is this, and I say it with genuine respect for the noble and learned Lord the Lord Advocate. He wrongly presents PII as a mechanism which, when it applies, necessarily means that the material is excluded from the trial. It is on that premise—a wrong premise, with respect—that he suggests that a CMP is preferable because it will not reduce the amount of information which the other party will receive and it enables the judge to have more information available. The reality, as I have sought to indicate, is that the court has an ability applying PII to devise means by which security and fairness can be reconciled by the use of the mechanisms that I have mentioned. The provisions of this Bill are a long, long way from striking a fair balance between security and liberty or between security and the fair administration of justice, which is the goal stated by the noble and learned Lord the Lord Advocate.

Clause 6(2) obliges the judge to order closed proceedings in relation to material if the judge is persuaded that disclosure of that material would be damaging to the interests of national security. The judge is obliged to order a closed material procedure even if the judge thinks that the case could and should be fairly tried under PII rules and so there is no need for a closed material procedure. The judge may come to that view, if he were allowed to do so, because there are other means of protecting the confidentiality of the material, such as redacting the truly confidential part of it; or perhaps because the material that we are concerned about is of very limited significance in the proceedings, as the judge can see; or because the damage to the public interest by the disclosure of this material might be found by the judge to be absolutely minimal and the damage to the fairness of the proceedings by denying the other party access to it might be substantial.

I suggest that it is quite extraordinary that none of this fair balance is included and that Clause 6(3) requires the judge, when deciding whether to order a closed material procedure, to ignore the possibility of resolving the issues through a public interest immunity certificate. How can that be said to be sensible and proportionate—again, the criteria stated by the noble and learned Lord the Lord Advocate in opening the debate today? If, as I doubt, CMPs are required at all, given the availability of a flexible public interest immunity procedure, the judge surely must have a discretion over whether to impose a CMP, which discretion the judge should exercise only if that is the best available means of securing fairness in the light of confidentiality concerns and having regard to the availability of public interest immunity.

I am also concerned about Clauses 13 and 14—that is, the Norwich Pharmacal provisions. I agree with everything that has been said on that subject by the noble Lord, Lord Lester of Herne Hill. Let us be clear what this involves: those clauses would remove the jurisdiction of our courts to order the disclosure of information to an individual who has a properly arguable case that the representatives of this country are involved in wrongdoing. As pointed out in the powerful memorandum from 50 of the special advocates, these cases may involve the gravest of allegations of wrongdoing —allegations of torture or death abroad in which the authorities in this country are said to be implicated. Surely, in such a context, the House will want to be very careful indeed to ensure that any restrictions on the disclosure of information are strictly necessary.

The Bill would prevent the disclosure of any “sensitive information”—an unjustifiably broad concept, as pointed out today by the noble and learned Lord, Lord Mackay of Clashfern. Disclosure of most of the specified categories of sensitive information under the Bill would be prevented, whether or not it would harm the public interest. The judge makes no such assessment, nor an assessment of whether there is a balance between any harm to the public interest and the detriment to the individual, or indeed the detriment to the public interest by the concealment of this information. Again, I ask the Minister how that can satisfy the attractive criterion that he stated when he opened this debate:

“protecting the public should not come at the expense of our freedoms”.

Why are these provisions being brought forward? It is primarily because of the experience in the Binyam Mohamed case in 2010. The Government’s concern, which I understand, is that the courts should not require the disclosure of information supplied in confidence to the security services of this country by the security services of our allies. There are two points here. The first is that the provisions that we will be debating in Committee, Clauses 13 and 14, are not confined to information supplied in confidence by a foreign intelligence service when disclosure would damage our relations with that service. The second and perhaps more fundamental point is that there is absolutely no material—the noble Lord, Lord Lester, made this point—to suggest that courts allow or order the disclosure of confidential information that has been supplied to the security services of this country by our allies. The courts have a record of recognising, rightly, the vital importance of protecting national security and the sources of information that go towards it.

It is vital to recollect that in the Binyam Mohamed case the Court of Appeal, the final court that heard the matter, made it clear that the only reason why it was ordering publication of the relevant information was that that very information had already been publicly disclosed by reason of an order made by a court in the United States. The three judges in the Court of Appeal—Lord Judge, the Lord Chief Justice; Lord Neuberger, the Master of the Rolls; and Sir Anthony May, the president of the Queen’s Bench Division—stated expressly that they would not have ordered publication in defiance of the statement made by the United States authorities that disclosure of the information would damage national security there and a statement by Ministers here that disclosure would damage our national security because of the need to maintain a relationship of trust with the United States, even though the court was highly sceptical of those claims, but for the fact that that very material had been published by reason of a court order in the United States. If this is the basis of the concern of the security services, which presumably are responsible for asking the Government to bring forward these measures, they simply have not learnt the basic lessons from the Spycatcher case.

The Minister sought to assure and reassure the House that Clauses 13 and 14 would not prevent claims by litigants who allege that they have been the victims of serious wrongdoing. What he ignores for that purpose, though, is that without the disclosure of the information such claims cannot in practice be pursued. That is precisely why in 1973 the Appellate Committee created the Norwich Pharmacal jurisdiction that is the subject of Clauses 13 and 14.

On the case made so far by the Government, the provisions of Part 2 of the Bill regarding both CMPs and Norwich Pharmacal orders are, I suggest, unnecessary and unfair, and will undoubtedly damage the ability of the courts to give judgments that are fair and are seen to be fair.

[Lord Mackay of Clashfern]

Before the noble Lord sits down, he has referred several times to my noble and learned friend as the Lord Advocate. The Lord Advocate is now an officer in Scotland; my noble and learned friend is the Advocate-General. I understand perfectly what the noble Lord said, but I just wanted to get it right for the record.

[Lord Pannick]

I am very grateful; I was carried away with enthusiasm for the merits of the debate. I apologise to the Minister, and I hope that that was the only error that the noble and learned Lord, Lord Mackay, could find in the points that I was making.