Justice and Security Bill [HL]

Lord Thomas of Gresford Excerpts

Wednesday 11th July 2012 Lords Chamber

[Lord Faulks]

The PII proceedings, which we attempt to define in this amendment, would not normally be secret. The process contains a number of different options for a judge in dealing with an application. It is conceivable that in the course of responding to the particular facts of a case a judge might decide that a certain part of the hearing, even under PII, might have to be under a CMP. However, the purpose of the amendment is not to impose a straightjacket on the procedure but to ensure that the PII procedure is gone through—with all its inherent safeguards—before moving on to CMPs, which are by definition closed material proceedings and therefore do not involve access to the litigants or to the open advocate.

[Lord Thomas of Gresford]

Is not an answer to the question posed by the noble Lord, Lord Carlile, that the PII applications are heard in just as much secrecy as the closed material procedures? The difference is that in PII applications the judge’s decision over what is to be disclosed and what is not to be disclosed is discarded from consideration, whereas with closed material procedures he is supposed to consider it and take it into account. In terms of secrecy, there is no difference.

[Lord Faulks]

I am grateful for the clarification—that is indeed helpful. In dealing with whether or not it is appropriate to go through the PII process first, the Minister in his response to this suggestion at Second Reading said, at col. 1756, that do so would be “costly and illogical”. I do not expect any judge to spend much time and expense undertaking a process that has an inevitable outcome; nor would I expect advocates to insist on it. However, as I said earlier, the obligation to go through the PII process is an important portal. In this context, I would also expect judges to be very conscious of wasted costs. I cannot for the moment see why it would be illogical to go through the process.

The amendments in this group, which include a statutory definition of PII—for which I give credit to the legal adviser to the JCHR—represent an attempt to preserve the option of CMPs while ensuring that the resort to closed proceedings should be undertaken with extreme care and in a way that minimises the risk of injustice. I beg to move.

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[Lord Thomas of Gresford]

I will speak to Amendments 42 and 47, which are grouped with the other amendments that have been spoken to. I acknowledge the assistance of the Bingham Centre for the Rule of Law in drafting my amendments.

The approach in the amendments introduced by the noble Lord, Lord Faulks, is to create a special, statutory public interest immunity procedure, limited to material sensitive to national security, which must be followed by the Secretary of State as a precursor to a closed material application. I consider that to be preferable to the clause as drafted but it is a bit of a straitjacket, as the noble and learned Lord, Lord Falconer, pointed out. It means that the judge would have to go through a series of hoops set out in Amendments 39 and 40 before he could proceed. I hope to suggest a different model that runs more with the grain of the Government’s proposals and is more flexible but achieves the safeguards that I am sure all noble Lords—except possibly my noble and learned friend the Minister—consider necessary.

The present position, as outlined already by other noble Lords, is that public interest immunity springs from a common-law basis, with its principles derived from a number of cases. I need not go into that. The Government’s approach in the Bill is to leave public interest immunity to the common law and not introduce a statutory procedure, but as an alternative to introduce statutory closed material procedures at the Secretary of State’s discretion for the protection of material sensitive to national security. All the Secretary of State need do is consider whether to make a PII application under Clause 6(5)—but he does not have to make such an application.

It is necessary to restate and hold in the forefront of our minds whenever we discuss this topic the essential distinction between the two applications. In a PII application, the judge weighs the material on Wiley principles and orders disclosure or partial disclosure where he determines that the public interest in the administration of justice outweighs the public interest in non-disclosure. But material that is not disclosed under PII—being, in the judge’s judgment, too sensitive —is not admissible and therefore plays no part in his determination of the case. Under CMPs, closed material is admissible even if it is not disclosed. Indeed, the Secretary of State may wish the secret information to be central to the judge’s determination. I am sorry to restate what has been said over and again but it is important to bear that in mind because it impacts on the amendments I am putting forward.

Therefore, if sensitive material in the hands of Secretary of State undermines his case or supports the the claimant’s case, it is in the Secretary of State’s interest to make a PII application and to persuade the judge not to disclose it or have it form any part of his determination. If, on the other hand, the Secretary of State is in possession of sensitive material which he wishes to rely on and which he wishes to be admissible—which he wishes the judge to take into account—it is in his interest to make application for closed material procedures. Remember, under the Bill it is entirely for the Secretary of State to determine which sort of application he makes.

The choice given to the Secretary of State by Clause 6(5) as to which procedure to follow gives him a significant litigation advantage over the claimant in two respects. First, it may deny to the claimant access to material in his favour when a PII application is made. Secondly, by the use of closed material procedures, if that choice is taken, it puts unchallengeable but admissible evidence in the Secretary of State’s favour before the judge for his determination of the issues. This consequence of Clause 6 is in direct conflict with the motivation of the Bill, as stated publicly by the Lord Chancellor—repeated in speeches and in the documentation that has been supplied to us—that this proposal in the Bill is not to protect secrets, because PII and closed material procedures equally protect secrets, but to make litigation fairer. Yet the proposal to make litigation fairer gives, as I say, a litigation advantage to the Secretary of State.

This brings me to Amendment 42. An astute litigator on behalf of the claimant should suspect that if the Secretary of State makes an application for public interest immunity, the chances are that the sensitive material which is withheld is in the claimant’s favour. The purpose of the amendment, like Amendment 41, is to permit any party to the proceedings to make a closed material application if he has reason to believe it would be in his interest to do so. That would go some way towards equality of arms.

The noble Lord, Lord Carlile, pointed out that in criminal proceedings, with which he and I are particularly familiar, very often a defendant will not know that an application has been made at all. Nothing may be said. I think, but I may be subject to correction, that in civil proceedings a claimant would know that a Secretary of State’s certificate had been issued to claim public interest immunity.

[Lord Carlile of Berriew]

We heard from the noble Lord, Lord Pannick, that in civil proceedings, as in criminal proceedings, there are certain circumstances in which one might know—there are categories set out in judicial decisions—but there are certainly cases in which one might not know, whether in civil or criminal proceedings. I am sure that that is right.

[Lord Thomas of Gresford]

That is a matter for clarification by people who know about it and we will look into that later.

[Lord Falconer of Thoroton]

I am impressed by what has been said about the opportunistic opportunities that this gives. At the moment I am bewildered by what it is suggested the claimant would want to use closed material proceedings for. I can see the point about the appearance of equality of arms, but it strikes one initially as being a slightly odd conclusion to reach. I am sympathetic to the idea that the courts should make sure, as the noble Lord, Lord Pannick, is saying, that every other option has been tried, but I would be grateful if the noble Lord, Lord Thomas, would explain what are the circumstances in which the claimant—a man such as Binyam Mohamed in an ordinary civil litigation—would want to keep things secret. The noble Lord, Lord Lester, is going to answer.

[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.

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[Lord Falconer of Thoroton]

That was my fault. More generally, I have two further points. First, I now understand the point made by the noble Lords, Lord Hodgson and Lord Thomas. I did not understand it previously. I thought that they were talking about the claimant keeping material back, but I now understand that they were saying that it should be possible for the claimant to say that he has not seen the material, but that the judge should see it, even if the claimant does not. I can see force in relation to that. Even though it appears to give equality of arms to the claimant, it is in fact a very unequal equality because the claimant has not seen the material and the defendant has seen it. The tactical decision that the claimant will make in litigation is quite tricky.

[Lord Thomas of Gresford]

I think I made precisely that point—that it was not equality of arms but a step towards equality of arms, and it was better than the present situation.

[Lord Falconer of Thoroton]

Yes, and indeed my noble and learned friend—although I should not refer to him as learned, but he is learned in every other respect—Lord Beecham is saying that that is exactly the point that the noble Lord, Lord Thomas, made. There is agreement all round on that.

Where we come out in relation to this is: prove your case. If you do that, then having no balancing or requirement to go through steps beforehand is an inadequate response. We favour more the amendments tabled. We particularly like the idea of flexibility that the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Thomas, have advanced. We hope that the Government will, having heard the debate, produce a reformed approach that will reflect a pretty unanimous view around the House on how best to deal with this issue.

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[Lord Wallace of Tankerness]

It was helpful of my noble friend to raise that. Clause 6(2) states that there are two ways in which a judge must be satisfied before he must grant an application for closed material proceedings. The first is that the party to the proceedings would be required to disclose material to another person in the course of the proceedings. That would normally come under Rule 31 of the Civil Procedure Rules. Again, I say to the noble Lord, Lord Pannick, that Clause 6(3)(a)(i) is there because there could be circumstances in which a judge could take the view that you would not be required to disclose something because you could assert public interest immunity, and that argument would succeed. Apart from the fact that there might be public interest immunity, if disclosure would be required under normal rules in civil proceedings, that would be the first test that the judge has to apply.

The second test is that it would be damaging to the interests of national security. It was said by a number of noble Lords, including my noble friend Lord Lester of Herne Hill, that the courts over many years have been very respectful of the government position on that. The Bill makes it very clear that the application would be one in which special advocates would be involved. They could assert to the judge that the case had nothing to do with national security and that the Government were trying to cover up some embarrassment. That is why the second test is there. The two conditions must be fulfilled: first, there must be a requirement to disclose; and, secondly, disclosure would be damaging to the interests of national security.

In practical terms, the Secretary of State would be in the best position to judge the scope and nature of national security-sensitive material. Despite the fact that the absence of a CMP might be detrimental to their interests, other parties will not even be aware that relevant national security information exists, and would not be able fully to judge what damage there might be if the information were released. It is therefore clear that the argument for the Secretary of State making the application is a strong one. Nevertheless, it can remain open to a third party to approach the Secretary of State and request an application for a CMP should they require one. One example of this might be if the police were party to proceedings involving national security-sensitive material, for example in relation to counterterrorism. The Secretary of State would assess the risk of damage and make an application for a CMP on their behalf.

If the public interest were more widely drawn than national security, there would be a stronger case for other parties to the proceedings to be able to apply for a CMP. However, as my noble friends Lord Thomas of Gresford and Lady Berridge made clear—I was asked about this by the noble and learned Lord, Lord Falconer—one concern is that the Government might want to have their cake and eat it, and might choose between claiming PII and applying for a closed material procedure opportunistically—opting for PII to exclude material and cover up wrongdoing and CMP where closed material would help their case. We do not believe that this is a realistic concern.

I assure noble Lords that the intention behind the CMP proposals is precisely that allegations against the Government are fully investigated and scrutinised by the courts. The intention is that all relevant material, helpful or unhelpful, will be put before the courts. Although it is in the first instance for the Secretary of State to instigate the CMP application, or to make a claim for PII, the power to order CMP or accept a PII certificate will rest with the judge, who will be alert to any unfairness to the non-government party, and with the CMP would have the case-management powers under Clause 7 to ensure that individual pieces of evidence are treated fairly through requiring disclosure or exclusion. It is inconceivable that a judge assessing the PII claim would conclude that the public interest in excluding material outweighed the public interest in its disclosure if the Government were cynically seeking to use PII to exclude material that undermined their case or assisted another party to the proceedings, especially where the court would know that the possibility existed of making an application for the use of a closed material procedure.

This is where the point made by the noble and learned Lord, Lord Woolf, is relevant. He said that these matters could be looked at in the round and should not be put in silos. That is what we anticipate happening. The concern is perfectly legitimate and I fully understand it. However, we do not believe in reality that that would happen, and that the judge who was asked to grant a closed material proceeding or a public interest immunity certificate would allow such cynical ploys to succeed.

[Lord Thomas of Gresford]

That sounds like one of the great lies. “I am from the Government and I am here to help you”. The noble and learned Lord is saying that a Minister faced with a claim against him is inevitably going to be like a judge and not weigh one thing against another. If he can win his case by going for PII instead of closed material procedures, which I suggest he can, why would he not choose to go for PII? That is why I say my suspicions would be aroused if the Minister who had that choice went for PII, knowing that excluded material could not form part of the judgment. That is the problem. For the past five minutes the noble and learned Lord has been emphasising that the judge has this decision; he has this discretion; he looks at this material; he makes up his mind. The Bill is a straitjacket whereby the Minister controls which procedures are to be followed as well as what material is to be disclosed. So I hope the noble and learned Lord will reflect on what he has been saying.

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[Lord Falconer of Thoroton]

My Lords, I am grateful for that constructive indication. I would co-operate fully in trying to draft an answer that reflects what the noble and learned Lord is saying. I understand him to be saying that if a PII application were made, the judge would be able to say, “You cannot keep all this secret. You should deal with it in a CMP”. That is what I understand the noble and learned Lord to be saying. I think he is nodding, although it may be an involuntary twitch. Assuming that he is nodding, there seems to me to be a problem in the drafting because it gives the court the power to make a CMP order only where there is an application by the Secretary of State. I would be more than happy if the solution reached was to apply to the judge who has the power to decide, balancing all the factors, whether this should be PII, complete disclosure or a CMP. That is not what the Bill says now but that is broadly what I understand the noble Lord, Lord Thomas, to be arguing for—the noble Lord, Lord Lester, is nodding—and the noble and learned Lord, Lord Wallace, to be saying. I am more than happy to sit down with everybody and draft that but that is not the current position.

[Lord Thomas of Gresford]

Perhaps I may add that my Amendment 45, which we have not come to, is designed to replace the word “must” in Clause 6(2) with “may”—in other words, a discretion for the judge to decide whether to make a declaration based on the criteria that he must apply.

[Lord Wallace of Tankerness]

My Lords, again we are falling into the trap of jumping to stage 2 and thinking that the application immediately rules everything as closed material, which is not the case. If there is a body of evidence which can be presented to the judge showing that interests of national security are absolutely pertinent to the determination of this case, it is “must”; there must be closed material proceedings. But, as I have indicated, that does not mean that every piece of evidence is to be excluded and is not to be disclosed. If the Secretary of State cynically applies for PII when a CMP is available, the judge may not be disposed to grant PII. What I understood from the noble and learned Lord, Lord Woolf, is that the reality, particularly if you have special advocates arguing the case, is that unless the Secretary of State seeks a CMP for this kind of material he will have less of a chance of getting his PII accepted. Even if a CMP application was not made by the Secretary of State and a request was made to him for a CMP which he refused, that in itself would be judicially reviewable. If that refusal was seen to be unfounded and irrational, or the only rationality was to hide malfeasance, then clearly that would weigh heavily with the Secretary of State. I have indicated what we intend to achieve by this. I repeat: the intention is that all relevant material, helpful or unhelpful, will be before the courts. I think we can have a worthwhile discussion as to how that could be brought about.