Justice and Security Bill [HL]

Lord Phillips of Worth Matravers Excerpts

Wednesday 21st November 2012 Lords Chamber

[Lord Phillips of Worth Matravers]

My Lords, I find myself in familiar territory, as I sat in a judicial capacity on a number of appeals dealing with closed material, including Al-Rawi. Closed material is anathema to any court, and the Supreme Court always managed to deal with issues relating to closed material without looking at the material itself. I am, however, reluctantly persuaded of the need, in the interests of justice, for a closed material procedure in exceptional cases where the Government would otherwise have no alternative but to submit to a civil claim for damages because to defend it would necessarily involve putting into the public domain material that would cause disproportionate harm to national security. It is for that reason that I support the batch of amendments tabled by the noble Lord, Lord Pannick, and other noble Lords in relation to Clauses 6 and 7.

I would expect the Government and those supporting Clauses 6 and 7 to welcome these amendments. Let me explain why. I draw attention to Clause 11(5)(c), which provides that,

“Nothing in sections 6 to 10 … is to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the Human Rights Convention”.

That is a very significant provision. It means that a judge will be precluded from acceding to a closed material application unless satisfied that to do so will be compatible with the Article 6 right to a fair trial.

The use of closed material in civil litigation will undoubtedly be challenged as a matter of principle. That challenge will surely reach the Supreme Court and, if it fails, will be renewed before the Strasbourg Court. If it reaches that court, its decision is likely to be critical. If it holds that the use of closed material in civil proceedings is incompatible with Article 6, the English judges are likely to follow that ruling; and Clauses 6 and 7 will become a dead letter.

The Bill as it stands makes no provision for the application of a test of proportionality. The test is simply: would disclosure be damaging to the interests of national security? If the answer is yes, the court is mandated to accede to the application that the material in question be not disclosed. Clause 7 then leaves it in the discretion of the court as to the extent to which, if at all, the closed material can be deployed in support of the Government’s case. The amendments proposed by the noble Lord, Lord Pannick, and other noble Lords introduce a test of proportionality. They also make it plain that a closed material order can be made only as a last resort when there is no other way of having a trial that is fair to both parties. The amendments also require a gist of the closed material to be given to the other party.

These amendments will, it seems to me, significantly increase the chances that the provisions in relation to closed material are held to be compatible with Article 6 by the Strasbourg Court. That court has made it plain that it considered that gisting was an essential feature of a closed material procedure in the context of control orders, and the court is likely to take the same view in relation to civil litigation. If and when this issue reaches Strasbourg, it is important to appreciate that the court is not likely to have access to the closed material that has weighed with the courts of this country, nor to the closed judgments relating to that material. It seems to me likely that the Strasbourg Court will require to be persuaded that the English courts have applied a test of proportionality before allowing closed material to influence their decisions, that a gist of the closed material which is sufficiently specific to enable the other party to meet the case made against him has been provided to him, and that closed material has been admitted because there was no other way of procuring a fair trial. That is what these amendments set out to achieve.

If these amendments are made, it does not mean that the Government are going to be forced on occasion to disclose material that they consider to be adverse to the interests of national security. It means that where the court does not consider that the use of closed material will be proportionate, the Government may have to litigate without the benefit of that material if they remain unprepared to disclose it, or even to settle the claim made against them. The same will be true if the Government are not prepared to gist the closed material. As the noble Lord, Lord Pannick, has observed, the debate on Clauses 6 and 7 is not concerned with the protection of national security; it is concerned with the requirements of a fair trial.

It is for these reasons that I support the amendments in question.