CPS Guidance: Intentional Police Shootings

Lord Thomas of Gresford Excerpts

Tuesday 29th October 2024 Lords Chamber

[Lord Hermer (Lab)]

I thank the noble Lord for his question, and I recognise the great experience that he brings to bear. The intended reviews will not look at individual cases but no doubt will look across the board to see what lessons can be learned. In respect of firearms officers, I echo the words of the Home Secretary and indeed of my noble friend Lord Hanson in this House last week: we in this House all recognise and pay tribute to the extraordinary risk that firearms officers take upon themselves in public service to defend and protect all of us.

[Lord Thomas of Gresford (LD)]

Where a policeman has shot an unarmed man, allegedly in defence of another policeman, does the Minister agree that whether his action was objectively reasonable and proportionate in all the circumstances should be determined not by other policemen, nor by the Director of Public Prosecutions, but by 12 ordinary people of diverse backgrounds, commonly called over 800 years “a jury”?

[Lord Hermer (Lab)]

I do. However, it is worth pointing out to this House the enormous care and expertise that are brought to bear whenever a charging decision is made in a case about the discharge of firearms by a police officer. First, it is brought and dealt with by a specialist team within the CPS, trained in the area: the CPS special crime division. Secondly, decisions in cases concerning the discharge of firearms by police officers where a death arises are always taken by the Director of Public Prosecutions because that reflects the seriousness, care and attention given to such cases, and quite rightly so.

Scotland: Devolution

Lord Thomas of Gresford Excerpts

Wednesday 29th October 2014 Lords Chamber

[Baroness Stowell of Beeston]

Certainly—and I speak for the leadership of my party—we are clear that the best way in which to deal with this is through English votes for English laws within the House of Commons. That is something that we can tackle and deal with quickly.

[Lord Thomas of Gresford (LD)]

So much of the legislation affects England and Wales. When the noble Baroness says England, does that include Wales?

[Baroness Stowell of Beeston]

Certainly in the context of legislation that affects England and Wales only, of course that includes Wales.

I assure the House that my right honourable friend the Leader of the House of Commons and chairman of the Devolution Committee, to which I have already referred, will do everything that he can to resolve the West Lothian question before the election, and I applaud his efforts and commend them to this House. It cannot be clearer that now is the time for a better and fairer settlement for the whole United Kingdom. We are absolutely committed to the timetable set out for further devolution to Scotland. We are committed to providing further powers to Wales and to meeting the special needs of Northern Ireland. We on the Conservative Benches are committed to bringing forward a solution to the West Lothian question before the end of this Parliament. There will be a time and a place for a constitutional convention but that should not be a device to prevent the other issues before us being addressed now. We are all responsible for ensuring that decisions are made fairly and in the interests of all people in the United Kingdom. Now, more than ever, we must uphold that responsibility. I beg to move.

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[Lord Thomas of Gresford]

My Lords, it was a great pleasure to hear the noble Baroness, Lady Quin, deal with the most outstanding achievement of the Welsh Labour Government, and that is to put a charge of 5p on plastic bags.

Home rule is a Liberal invention. Mr Gladstone said in Aberdeen in September 1871:

“This United Kingdom which we have endeavoured to make a united kingdom in heart as well as in law, will, we trust, remain a united kingdom. If the doctrines of Home Rule are to be established in Ireland, I protest on your behalf that you will be just as well entitled to it in Scotland. Moreover I protest on behalf of Wales, in which I have lived a good deal and where there are 800,000 people who to this day, such is their sentiment of nationality, speak hardly anything but their own Celtic tongue—I protest on behalf of Wales that they are entitled to Home Rule there”.

Mr Lloyd George echoed those sentiments in 1891, calling for “Home Rule all round”. Jo Grimond believed that power was not to come top-down, as the noble Baroness said, but to spring up from the people. He wrote:

“I find it difficult to see how, if the case for Scottish and Welsh self-government is accepted at all, any powers can be reserved to the UK government except foreign affairs, defence, and the wider issues of economic policy linked to a common currency and common trade policies”.

This was the model in the Hooson Bill for a Welsh Parliament in 1967, which I drafted myself.

Home Rule is not independence. We in Wales agree with Mr Gladstone that this is a United Kingdom of the heart, as much as of political economy. The first impact of the Scottish referendum on Wales was to reduce the support for independence for Wales from 7% to 3%. This was according to a BBC random poll of over a 1,000 adult respondents between September 19 and 22. This is not in the least surprising. Welsh nationalism has always been focused more on cultural identity, tinged perhaps with a little bit of arson, rather than political power. The Scottish referendum campaigns revealed only too starkly the impact that independence was likely to have upon the economy in the relocation of banks and of industry, upon the pound in the pocket, upon relationships world-wide, upon defence obligations and upon jobs.

It was argued by the yes campaign that Scotland paid more in taxes than it received; it would easily be more than self-sufficient, and they could afford to go their own way without detriment to the people. This calculation, dubious in itself, was in any event dependent upon the total success of all their claims in negotiations with the rest of the United Kingdom. That assumed a hearty goodwill and a desire on the part of the taxpayers of England, Wales and Northern Ireland to underwrite the economy and banking system of an independent country north of a newly defined border. It was a fantasy.

Wales is not Scotland. We raise in taxes only 70% of the money we spend. It is not because we are weak or poor in ability or ingenuity; it is because our basic industries of coal, slate and steel are exhausted. Wales shares its wealth, as the noble Lord, Lord Birt, said. We did not call it Welsh coal when it was mined.

However, today, according to key economic indicators published by the Office for National Statistics last July, we are the poorest part of the United Kingdom. We had hoped that a devolved Government would lift us economically, but it has not happened. Public services in education and health are falling behind England. It is clear that a devolved Government in Wales requires some form of equalisation funding.

The Barnett formula, while generous to Scotland, as the noble Lord, Lord Lang, pointed out, underfunds Wales, according to the Holtham commission, to the tune of some £300 million a year. We need fair funding: a needs-based formula which would restore parity to our communities and our public services. As an immediate stop-gap, the Holtham commission recommended a “Barnett flaw”. If anybody wants to know what that is, perhaps they would like to buy me a drink afterwards and I will explain.

In the medium term, a formula must be devised which takes into account an ageing population in Wales, the additional health burdens which mark a post-industrial society, but above all the need to revive and develop the Welsh economy and create jobs. I remain wholly committed to devolution. There are signs of progress. The coalition agreement in paragraph 24 recognised the concerns of the Holtham commission and undertook to establish a process similar to the Calman commission in Scotland. This resulted in the Silk commission and we are currently putting through this House part 1 of its proposals, which will chiefly introduce borrowing and taxation powers. It is a sad commentary that the Government in Wales refuse to hold the referendum which would bring those taxation powers into operation.

We also have it in our Liberal Democrat manifesto to implement part 2 of the Silk commission, which will move Wales to the reserved powers model called for—

[Lord Elis-Thomas]

Did I hear the noble Lord right? Did he accuse the Government of Wales of refusing to hold a referendum on taxation powers? How can a Government possibly hold a referendum on something which has not yet been passed by this House?

[Lord Thomas of Gresford]

I am sorry, I did not quite catch what the noble Lord said.

[Lord Elis-Thomas]

I am grateful to the noble Lord for allowing me to intervene again. I heard him imply that the Welsh Government had refused to hold a referendum on tax-varying powers in Wales. How is it that a Welsh Government, or any other Government, for that matter, can hold a referendum on a matter which has not yet been legislated?

[Lord Thomas of Gresford]

That is the stated policy of the First Minister of Wales, as the noble Lord knows perfectly well.

We have in our own manifesto the intention to implement part 2 of the Silk commission, which will move Wales to the reserved powers model that was called for by Jo Grimond and which operates at the moment both in Scotland and Northern Ireland. We hope that normal political processes will operate to install in the Assembly a Government which will use the levers that they are being given to deliver the infrastructure upon which an expanding economy depends: outstanding education in accordance with Welsh traditions and a healthy NHS. Let us see if Scotland can match us then.

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[Lord McAvoy (Lab)]

My Lords, this has been a powerful debate, with some very powerful speeches made by some very powerful speakers. It would take me too long to go through every single one of them but particular mention must be made of the former Secretaries of State for Scotland, my noble friend Lady Liddell of Coatdyke and the noble Lord, Lord Forsyth of Drumlean, as well as of the noble Lord, Lord Lang of Monkton.

I share the view of a number of noble Lords that the most dangerous time was not before the referendum. I believe that the most dangerous time is now. If we do not handle this collectively, if we do not handle it properly in a collegiate way, it will lead to an inevitable separation and a separate Scotland. The word “Westminster” has become an epithet—an insult. This has been contributed to by Mr Farage and by Mr Salmond. There is a disengagement between the so-called establishment parties and the public. The noble Lord, Lord McConnell of Glenscorrodale, mentioned this disengagement in the context of Westminster and the Scottish Parliament. The paradox is that, in Scotland, more people turn out for Westminster elections than they do for Scottish Parliament elections, so there is a quandary there.

More powers are guaranteed for Scotland within the agreement. Although a lot of people do not like this or that power promised in the vow, as it has come to be known, if we do not deliver on it, we are guaranteed trouble. More powers for Scotland are guaranteed, regardless of what the SNP says. We guaranteed these collectively during the referendum campaign and we must deliver on that. My party has always led on devolution and we will engage with the Smith commission in a spirit of openness and partnership with the other political parties. As has been mentioned, it is a good thing for the Scottish National Party to be involved in that.

There are a couple of things that I have been confused about all night. There have been constant attacks on the Barnett formula, and it has been stated by some very knowledgeable people that it is not based on need. Since I came into politics, although I have not studied the Barnett formula—I would not want to be up all night—I have always been told that it is based on need, and in Scotland's case that it is based partly on the geographical nature and the large physical area of Scotland. There is a new gospel out, but I certainly believed that that was part of the calculation, along with the lower incomes in Scotland and social factors. The Barnett formula has been a great boon to Scotland, because it shares the resources of the United Kingdom with a poorer part of the country. However, I accept that there is concern about the democratic deficit, and I think that there is merit in that. I am not a mathematician but, surely, if the Scottish Parliament collects more of its own spending, there is a hope that the Barnett formula—but before I can finish, the gloom and doom merchant from Drumlean is shaking his head at me. He is starting to intimidate me. In the fullness of time, I hope that the Barnett formula can be a less important consideration in the overall look, especially in financial matters.

[Lord Thomas of Gresford]

The Barnett formula quite simply, as far as Wales is concerned, is a multiplication of departmental spending from the departments devolved to Wales by the population, which is 5.3% of the United Kingdom. That is where the money comes from; it has nothing at all to do with need.

[Lord McAvoy]

As I said, if you started to debate the ins and outs of the Barnett formula, we would be here a long time. I am being honest in telling your Lordships' House that my understanding of the formula since I came into politics was always that it was based on need.

I want to address the serious question of EVEL. If we get to the stage that there are two classes of Members of Parliament, it will come across as trying to take party advantage of a situation. The noble Lord, Lord Bew, mentioned the Northern Ireland situation. I do not recall the Labour Party in my time in the House of Commons making too much of the fact that there were Ulster Unionist MPs who more or less voted with the Conservatives, because my party and I took the view that that anomaly was worth carrying for the sake of the United Kingdom. I do not recall the noble Lords, Lord Forsyth of Drumlean or Lord Blencathra, or other Conservative Peers, mentioning the injustice of that situation all those years ago. So they seem to be a bit picky about it. There is a danger that that sort of seemingly political calculation by the Conservative Party could ruin its approach to the Smith commission.

My party supports a royal commission and a constitutional convention, because it is clear that we have to establish a mode of operation through the entire United Kingdom that will be settled, will last and endure and will be of value to all the people of the United Kingdom.

Justice and Security Bill [HL]

Lord Thomas of Gresford Excerpts

Tuesday 26th March 2013 Lords Chamber

[Lord Mackay of Clashfern]

Absolutely, that is the procedure with excluded material. Of course, excluding the material can sometimes be extremely damaging to the interests of the other party to the litigation. The noble Baroness referred to Matrix Churchill. That was exactly the sort of case that Matrix Churchill would have been if the judge had excluded it because the material that was sought to be excluded as sensitive material was, on further examination, of great use to the claimant, as we all know. The idea that a public interest immunity certificate is so superior to this procedure strikes me as being without great foundation.

I assume that the only material in question is material that has been subject to all the processes that the noble and learned Lord, Lord Brown, has suggested for removing its sensitivity, because if you can do that the party is not required to produce sensitive material because it has been neutralised and the difficulty has been removed. Therefore, when you have that in mind, it is very hard to see how you can find out whether there is any other way in which the case can be dealt with. One of the problems about that is that at the beginning of a case things may look different from how they look as the case proceeds.

One of the great benefits of the amendments that the other place has put in here is that this matter can be reviewed at any stage of the procedure. Therefore, it seems to me that this system, in a very small minority of cases, will be the best way of securing the fair and effective administration of justice in that case. It is not a question of excluding material, which is an appropriate test for the amendment proposed by the noble Lord, Lord Macdonald; it is nothing to do with that. It is to see that the material that is being used is used in a way that does not damage the security of this nation. The Government have as one of their primary responsibilities securing the national security, as evidenced by what the noble and learned Lord, Lord Woolf, said about control orders, which control people’s liberties, in which this sort of procedure was introduced. I believe that this procedure is the best way in which to secure national security.

I endorse what the noble and learned Lord, Lord Woolf, said in his letter. Our judges are as familiar with the desirability of open justice as any Peer who has spoken. They know the value of open justice; they were brought up to it. There is no question of a judge going for a closed material procedure if he thought it could be done in open court. I believe that giving this discretion to the judiciary in very limited circumstances with two very important conditions is the right way to deal with it. It is not the Executive who are deciding, but the judge. Judges have taken an oath to,

“do right to all manner of people … without fear or favour, affection or ill will”.

That oath will apply in the decision that the judge has to make, and it seems to me that the best possible test has been evolved by the House of Commons in its consideration of our Bill, and the test is the fair and effective administration of justice in that case.

[Lord Thomas of Gresford]

My Lords, much of what I intended to say has already been said, but I shall give an illustration from the classic case of Duncan v Cammell Laird, which involved the sinking of a submarine in Liverpool Bay while undergoing trials on its maiden voyage in 1939. Ninety-nine men were lost. Their widows, mostly from Merseyside, sued the shipbuilders. The Admiralty, in the middle of the Second World War, declined to allow the production of the designs of the submarine on grounds of national security. Contemporary evidence, which has been seen since, suggests that its true motive was to restrict the power of citizens to sue government departments, particularly when they were financed by trade unions. In fact, the claimants lost.

Today, other means, which have been referred to in the course of this debate, might have been used to assist those claimants in the projection of their cases, but suppose this legalisation had been in force and that the Government had applied for a secret hearing. Can your Lordships imagine the uproar in Liverpool if the Admiralty had been able to produce not merely the designs but its expert evidence and argument, and to explain those designs to the judge in secret, without challenge and without anything being heard on the other side? Patently, it would have been a miscarriage of justice.

Open justice, very simply, means first that a claimant should know the case made against him. That principle derives from what was said more than two and a half millennia ago by Aeschylus in the “Oresteia”.

[Lord Mackay of Clashfern]

How does my noble friend know what the judge would have decided, assuming that he had had a chance to look at the designs?

[Lord Thomas of Gresford]

I am not saying what decision he would have made—how could I possibly know? I am saying that the public would have been outraged at the idea that the Admiralty could go to see the judge up the back stairs, in a secret court, and produce the designs and the arguments to support their case.

[Baroness Butler-Sloss]

Perhaps I may say, as a court judge, that nobody would ever visit a judge up the back stairs when a judge was trying a case.

[Lord Thomas of Gresford]

I have certainly been up the front stairs to see many a judge in chambers. The noble and learned Baroness must know that we see the judge in private on many occasions, particularly when public interest immunity claims are being used.

The second principle of open justice is that the acts of public servants must be open to scrutiny and accountability by the public and by Parliament. It is for the judge to determine whether, as a last resort, open justice must give way to national security in the circumstances of the particular case. Everybody who has spoken here this evening has said that judges are perfectly capable of making that judgment, of carrying out that balancing exercise. However, that does not mean that secrets will be disclosed. We are talking about civil cases, about means whereby secret information will be withheld, and many mechanisms for achieving that have been referred to.

I draw your Lordships’ attention to a civil case last December which challenged the Defence Secretary’s practice of handing over detainees who had been captured in Afghanistan to the Afghan security forces. There was evidence to suggest that torture would be inflicted upon those people by those forces. The case came to court and the Defence Secretary claimed public interest immunity for a number of documents. Lord Justice Moses held that there was no objection in principle to the disclosure of material that was the subject of that claim into a lawyer-only confidentiality ring. That procedure is well known in the commercial courts of this country, and I believe that it is used in the United States of America. Is it not interesting that, while we are changing our law, we have not heard any suggestion from the United States, which is faced by the problems with which we are grappling, that it proposes to change its law or constitution in any way at all?

As I have said, these principles are core principles of liberalism and democracy, and I hope that your Lordships will support these amendments in the light of these principles.

[Lord Woolf]

My Lords, I propose to say only very little because to some extent I anticipated what I might say, both in the previous debates on this matter and in the letter that has been referred to. However, when you hear Members of this House, with the experience that they undoubtedly possess, expressing concerns on this subject in relation to this Bill, I say that we have to give those concerns the utmost care and consideration, because their importance is very great indeed. We must be very careful that we do not fall into the trap of changing our traditions when that change will cause more harm than good.

Despite the arguments that have been advanced to the contrary, I remain firmly convinced that the Bill that we are now considering is radically better than the one that we were considering before, and the Government must be entitled to credit for that. As I understand it, what we really are considering, despite the oratory that we have heard, is very much a matter of degree. The only question to consider now is whether two further precautions should be inserted into the Bill in respect of what the Government have already done, which is to be welcomed on all sides.

Of course I accept the importance of open justice. You do not need to have that set out in a Bill for judges or ex-judges to say it. We have heard clear evidence of that in a recent decision of our Supreme Court, where the president of the Supreme Court was dealing with a procedure that is akin to the procedure now being proposed. The president of the Supreme Court, the noble and learned Lord, Lord Neuberger, made the clarion call—and I am delighted that he made the statement—that all should recognise that we are dealing with a situation that involves an intrusion into the principle of open justice. If there was any doubt about the ability of judges to protect that principle, I suggest that the noble and learned Lord, Lord Neuberger, made it clear that judges will protect it. After all, a judge makes a judgment, but his judgment is then subject to appeal. I urge the House to conclude that what we want is a situation where the judiciary, which has the fundamental responsibility of doing justice, has a discretion that is wide enough to do justice in the particular case that comes before it. I suggest that this Bill, without the proposed amendments, has to be judged on whether it enables the judge to do that.

The noble Baroness, Lady Berridge, suggested that this Bill might enable judges to do things that would reflect adversely on them. I accept that that is the inevitable consequence of judges exercising their responsibility to protect national security. If giving a judgment that is right and in the interests of effective and fair justice will reflect adversely on a judge, he or she must do their duty, give that judgment and not be concerned by the reputational consequence for them of giving that judgment. It is my belief that that is just what our judges do. They would put that out of their minds. Those are political considerations, which they should not be concerned with.

What is being done here is something that the Government say will contribute to justice, not the other way round. It is being done because, as must be recognised, it is the only real alternative that the judges do not already have. With great respect to the noble and learned Lord, Lord Goldsmith, I found his submissions difficult to follow, because redaction does not need this Bill; it is something that judges use regularly. The judge’s ability to take sensible precautions to protect national security is used with a degree of frequency, but this Bill does not affect those cases. It affects only those cases when the judge is satisfied that better justice will be done because of the Bill than would be done without the Bill. The amendments are to be criticised for the reasons identified by the Minister in opening the debate. It is right that you cannot have the judge using what is proposed here as a last resort, because that would undermine the Bill’s purpose.

Does the Bill give the judge the discretion that he or she needs? I remind noble Lords of the terms of Clause 6(2), which says:

“The court must keep the declaration under review, and may at any time revoke it if it considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings”.

Those are very wide terms, which give the judge what he needs. Clause 6(3) provides:

“The court must undertake a formal review of the declaration once the pre-trial disclosure exercise in the proceedings has been completed, and must revoke it if it considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings”.

Those provisions put the judge in the driving seat, which is exactly where the judge should be as a result of this Bill.

Although we have to examine the arguments to the contrary with great care and appreciate just how important are the principles at stake, we should come to the conclusion that this is a Bill of which we can now approve.

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[Baroness Manningham-Buller]

My Lords, I hesitate to stand after the really important contributions by so many Members of this House, including a number of very noble and learned Lords. I do not want to make a long speech, but there are some points that have possibly not been touched upon. The central problem here is about litigants, not defendants. It is about people making claims that currently cannot be heard. This is an attempt by the Government to find a way, imperfect as it is—“a second-best solution”, in the words of David Anderson QC—to get these cases heard and to put into court, albeit in a restricted way, material that is not currently put into court, so that there is a better chance of the full picture being seen by the court. David Anderson said—if I may, I quote him slightly to correct him:

“We are in the world of second-best solutions”.

He added:

“But it does not seem to me that the level of injustice inherent in the use of a CMP in a case of this nature necessarily exceeds either the injustice to the claimant of a case being struck out, or the moral hazard and reputational damage to the intelligence agencies that is caused by settling a case which, had it been possible to adduce all the evidence, would have been fought”.

This does not seem to me to be primarily about the reputation of the security and intelligence agencies. The service of which I was once a member welcomes scrutiny. If we disobey or break the law, we should be prosecuted. The first part of this Bill is about greater scrutiny. I expect that scrutiny to evolve and over the years to become more detailed. However, the reputational damage is significant in a way that has nothing to do with personal feelings; it is to do with whether these organisations, which are funded by the taxpayer and scrutinised by Parliament and other bodies, are going to be less effective as a result of this reputational damage. This needs resolution, but it is not primarily about that. It is primarily about making sure that some of these extraordinarily serious allegations are actually heard. At the moment, we do not have an inquiry. I believe that some criminal investigations are happening, but there are still a whole lot of allegations out there that are not resolved, and this would be a way of resolving them.

There is one other point I want to make, which I think speaks to the amendment made by the noble Lord, Lord Macdonald. On the face of it, the amendment looks unexceptional, but I think it is a question of the confidence of our human sources, which is very important. I do not need protection; they do. A point made by the noble Lord, Lord Owen, was that human sources are either approached by the intelligence and security agencies inviting them to provide information in confidence or they approach us or they are the sources of an ally. Not all of them but many of them do so with the highest motives, and in many cases their lives are at risk—although, again, not always. I look to my noble and learned friend Lord Brown. Obviously I entirely agree with him that national security is undefined and that there is a spectrum. There are some things, which he mentioned, at one end of the spectrum that might be labelled “national security” but are not damaging to reveal. However, at the other end of the spectrum—this has not really been discussed today—there is some highly sensitive and secret material in relation to which the risk to human sources’ lives is high.

I know that I am a bit repetitive on this issue in the House and I apologise, but I still think that it is not given enough attention. Technology is vulnerable. If we expose it in a careless way or in a way that is not protected by this legislation via the test that open justice means that we can ditch the national security side of things—I know that the amendment of the noble Lord, Lord Macdonald, is not as crude as that but there is a suggestion that the two things can be held in balance, and I look again to the point made by my noble and learned friend Lord Lloyd—that will potentially have a very chilling effect on the willingness of people to offer us information. I hope that that is wrong but, if it does have that chilling effect, we will cease to get the information.

[Lord Thomas of Gresford]

Does the noble Baroness know of a single case in which sensitive security material such as she talks about has been released to the public or to anybody as a result of even the present procedures that apply to this?

[Baroness Manningham-Buller]

No, but I am saying that if the amendment balances national security versus open justice, however much my former colleagues might seek to reassure human sources that they will be protected and the courts rely on that protection, I fear that they will be apprehensive and will not be willing to talk to us. That is already an issue. That is what I am talking about—not whether the courts and judges have mishandled things. I am not suggesting that for one minute.

Thirdly and finally, I wish to pick up the point made by my noble and learned friend Lord Brown about national security not being defined. If this material were such that it could be redacted or gisted, or if people could give evidence anonymously, we would not need this Bill. To use the words of David Anderson, who is new to this subject and as the independent reviewer of terrorism has looked at all this, these cases are saturated with it and, if it is redacted to that degree, there is nothing to put into the court.

I shall not say any more this evening but I remind the House of the potential damage that we have to continue to guard against.

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[Lord Wallace of Tankerness]

My Lords, the House will agree that this has been a very good and well informed debate and rightly so because the issues we are dealing with are of fundamental importance to our justice system. I do not think anyone who has taken part or who will vote feels at all comfortable about the idea that there should be closed material proceedings. Nevertheless, as has been explained by a number of contributors to the debate such as the noble Baroness, Lady Ramsay of Cartvale, the noble and learned Lords, Lord Lloyd of Berwick and Lord Woolf, and, although he is supporting the amendments, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, there is a need in current circumstances for closed material proceedings.

The present situation, standing the judgment of the Supreme Court in the Al Rawi case, is that closed material proceedings are not available under common law and the Supreme Court invited Parliament to consider the position. We have sought not only to make provision for closed material proceedings but, as we have gone from Second Reading, through Committee and Report, to the other place for debate and back to us, in doing so we have put in place proper safeguards which reflect the values of our justice system.

The noble and learned Lord, Lord Woolf, said it was important that we show the greatest and utmost care and consideration in addressing these issues, and we have done that tonight. I can assure your Lordships’ House that, in reflecting on the amendments passed on Report in this House, Ministers gave careful consideration to how we might respond to them.

The noble Lord, Lord Beecham, asked about the number of cases that had been settled and how much compensation was paid. As I have explained previously, I am not able to comment on the number or details of many of the cases settled as they are often the subject of confidentiality agreements. However, the House will be aware—indeed, my noble friend Lady Berridge referred to it—that a settlement was recently reached with Mr al-Saadi, on a no-liability basis, to the tune of £2.2 million. I am unable to comment on whether actions have been taken against recipients of other settlements. If such actions have been taken, it would be impossible to comment without breaching the terms of the settlement because it could, for example, indirectly reveal the identity of the individuals concerned.

My noble friend Lady Berridge suggested that perhaps the Government had rushed a settlement to get it in before this legislation went onto the statute book. I am sure that noble Lords will agree that it is not desirable for courts to delay the processing of cases in pre-emptive speculation about what may or may not become available in future legislation. It is unhelpful to suggest that that should be the case. It was and is right that the case of Mr al-Saadi and others should be dealt with quickly and fairly on the basis of existing legislation. The alternative of delaying, pending possible future legislative changes, would be unfair to all parties concerned. I certainly would not like to defend such a situation from the Dispatch Box if that allegation ever had any truth.

The noble and learned Lord, Lord Goldsmith, said that, unlike cases in which he was involved when he was in government and introduced closed material proceedings with regard to control orders under which there were restrictions on freedom, what we are dealing with here is just about money. It is about more than just money; it is also about the reputation of, and the trust and confidence in, our security intelligence agencies. It may also be about executive actions—for example, the judicial review of decisions taken by a Secretary of State on national security grounds which would not be the subject of pre-existing statutory CMPs.

As I have said, it is not just a question about money because, at the end of the day, we are trying to ensure that there will be some kind of proceedings available whereby taxpayers’ money is not spent in settling cases where the case has not been proved. My noble friend Lord Phillips of Sudbury referred to secret justice. I have said in these debates that it is second-best justice, but at least it is justice. There is no justice when cases are settled without any proof of the claim being made.

The importance of the safeguards and how we keep these cases to a minimum—they should be the exception—has been reflected in the debate tonight. My noble friend Lord Macdonald has tabled an amendment that would require the courts to have a balancing test akin to the Wiley balancing test that was developed in the context of public interest immunity. The noble and learned Lord, Lord Lloyd of Berwick, explained why he thought that was inappropriate; he said that it was too wide and imprecise. The noble Lord, Lord Owen, and the noble Baroness, Lady Manningham-Buller, indicated that we are also dealing with situations where there might be foreign sources of intelligence and, crucially, human sources who work on our behalf for our security services. They expressed concern that the imprecision of the test would not be helpful.

My noble friend said that he thought the effect of the Bill as it currently stands, without his amendment, would be that the security services and the Government would opt for CMP rather than PII, public interest immunity, and that somehow that would be convenient for them. The noble Baroness, Lady Manningham-Buller, made the important point that Part 1 of the Bill is about scrutiny of the security services, but Part 2 allows for greater scrutiny. If you wish to push something under the carpet, PII, or settling a case without any evidence being led, is one way of ensuring that information does not come out. Albeit closed material proceedings are closed—for all the reasons that people have articulated in this debate they are not as good as open proceedings—they nevertheless allow the court to examine the material that is there and to apply scrutiny to allegations made against our security services, which otherwise would not be the case.

Regarding openness, my noble friend Lady Berridge referred to the president of the Supreme Court, the noble and learned Lord, Lord Neuberger, and what he said this weekend. The point that was picked up by the noble and learned Lord, Lord Woolf, and the noble and learned Baroness, Lady Butler-Sloss, helps make the point that we have been trying to make. Of course, as more than one contributor to this debate has said, the idea of openness is absolutely intrinsic to our system of justice. The noble and learned Lord, Lord Neuberger, reflected that in his comments this week. It was intrinsic and it was instinctive.

It is absolutely fanciful to imagine that, in applying the tests set out by the Government in the amendments before your Lordships’ House tonight, the judges will somehow forget about openness. It is very clear that the justices of the Supreme Court did not need words in a statute to get them to apply their minds to the importance of openness when it came to making the decision, which they did.

[Lord Thomas of Gresford]

Is my noble and learned friend saying that the judges will apply a balancing test when they exercise their discretion between open justice and the interests of national security—that that is implicit in everything he is saying?

[Lord Wallace of Tankerness]

My Lords, it is very clear that open justice is part of our justice system. It is implied by the words “fair and effective”, and it did not need any words in statute to encourage the justices of the Supreme Court to have regard to the importance of openness in these situations. The noble and learned Lord, Lord Neuberger, said the following words, to which I think my noble friend Lady Berridge referred:

“No judge can face with equanimity the prospect of a hearing, or any part of a hearing, which is not only in private, but involves one of the parties not being present or represented”.

He went on to say:

“Nonetheless, as Parliament has decided that, in certain circumstances, such a procedure is necessary and permissible in a trial before a judge, we have concluded that, on an appeal from a decision in a case where a judge has considered closed material and given a closed judgment, it may be necessary for this court to go into closed session in order to dispose of the appeal justly”.

In other words, the just decision on that particular point was that the court would go into closed session.

On the other issue, I also do not find there to be any real difference in what Members of your Lordships’ House wish to see, and it is an issue of judgment as to how we achieve it. These cases should be the rare exceptions; there are a very small number of cases. When I gave evidence by letter to the Joint Committee on Human Rights on 31 October, there were 27 cases which, across government, we considered would lend themselves to closed material proceedings. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, expressed his view as to why closed material proceedings were necessary, but in his judgment these amendments should be in the Bill. I have explained this, and indeed others who have contributed to the debate have also explained why it is not necessary.

We all aim at the same thing: at the end of the day, this should take place in a small number of cases. It is a matter of judgment. As I indicated earlier, at this initial gateway of closed material proceedings the court is considering an application having not yet seen all the material for the case. Against this background, we are keen that legislation should avoid the court being required to meet a condition which would then require it to establish definitively at that point whether a fair determination would be possible by any other means.

As I said, that could mean the exhaustion of a range of measures, including a full PII exercise. Of course, as the noble Baroness, Lady Kennedy of The Shaws, said, it is something to which the Secretary of State should apply his or her mind. If one reads the judgment of Lord Brown in Al Rawi, he indicates at one point that it would take 60 lawyers the best part of two or three years to go through all the material. That is the scale. If that is the road down which judges felt that they ought to go because of the wording of the Bill, that would underline much of its purpose.

I also pick up the point made by the noble and learned Lord, Lord Goldsmith, who seemed to think that the means of achieving it being a backstop and a rare exception was the provision in proposed new subsection (1F) about the court having to be satisfied that the Secretary of State had considered PII. We do not even get to that stage, because the court must not even consider the application unless it is satisfied that the Secretary of State has considered PII. The question asked by the noble Lord, Lord Butler of Brockwell, was very much to the point: the safeguards of last resort, as it were, are not that requirement on the Secretary of State but, rather, the courts being satisfied that the disclosure of material would be damaging to national security, and that it would be in the interests of the fair and effective administration of justice for the application to be granted.

Justice and Security Bill [HL]

Lord Thomas of Gresford Excerpts

Wednesday 21st November 2012 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, in Committee, my noble friend Lord Thomas of Gresford tabled an amendment seeking to amend the effect of the disclosure gateway provisions in the Security Service Act 1989 and the Intelligence Services Act 1994. The amendment was based on a suggestion that emanated from the Bingham Centre for the Rule of Law. At that time the Government resisted the amendment on the grounds that it was not necessary to secure the agencies’ compliance with their disclosure obligations and that it was wider than appropriate because it would mean the courts could order disclosure into civil proceedings regardless of the connection between those proceedings and the agencies’ functions.

However, following the Committee stage, Professor Sir Jeffrey Jowell from the Bingham Centre wrote to me urging the Government to reconsider the issues raised by the amendment. After careful consideration and consultation with experts on this complex area of law, the Government have concluded that a similar amendment would be necessary. This is a technical area of law and it may help if I briefly explain why the change is needed.

Under Clause 6, the court must, on an application from the Secretary of State, make a declaration that the proceedings are ones in which a closed material application may be made if the court considers that a party would be required to disclose material in the course of proceedings and disclosure would be damaging to the interests of national security. The problem with the Bill as drafted is that it does not make it clear that statutory bars to disclosure into open court should not prevent there being disclosure into closed material procedures.

I assure the House that the Liberty analysis of this amendment is wrong. In an e-mail to parliamentarians its policy director described the amendment as being able to expand the categories of secret information on which the application for a CMP declaration can be based. That is not the case. The amendment makes it clear that the court should ignore any statutory provision that would prevent the disclosure of relevant material into open court but not into closed material procedures when the court is deciding the question of whether a party to proceedings would be required to disclose material. In other words, we do not want to be in the unfortunate position where we are unable to use a CMP as a result of these Acts covering the Security and Intelligence Agencies. These Acts are in part designed to ensure that highly sensitive information is not made public in the interests of our national security. The closed material procedures, however, have been assessed to be secure enough to allow highly sensitive information into a courtroom to be considered by a judge. The Government and agencies want the chance for a judge to come to an independent judgment. We do not want silence on these important matters.

Once again, I am grateful to my noble friend Lord Thomas for having raised this issue in Committee. While we may not have agreed on every point today, I am always grateful for his tireless work in holding the Government to account and for his detailed contribution. I am particularly grateful to the Bingham centre for taking time to scrutinise the Bill and for writing to me and asking the Government to rethink. The centre is an important legal research institute and the Government welcome its contribution to make sure that the Bill is suitably drafted. I beg to move.

[Lord Thomas of Gresford]

My Lords, have I not always said that this is a listening Government? I am grateful to my noble and learned friend for taking on board what I said on the last occasion, which I confess I have now totally forgotten. However, clearly it was very persuasive and I thank the noble and learned Lord for the amendment.

Amendment 39 agreed.

Justice and Security Bill [HL]

Lord Thomas of Gresford Excerpts

Wednesday 21st November 2012 Lords Chamber

[Lord Reid of Cardowan]

My Lords, it is always a pleasure to follow the noble Baroness. I am sorry to start by correcting her, but the Labour Benches are not empty, nor bereft of any representative of the previous Government. As a former Home Secretary, I am one such representative. Unfortunately, the other Home Secretaries—Mr Clarke, Mr Straw, Mr Blunkett and Ms Smith—cannot be here because they are not Members of this House, which may account for their absence.

I may be a lone voice among the speakers, who all seem to have come from the Joint Committee on Human Rights, but I will say two things. First, on the moral question, I deprecate torture as much as anyone in this House. I deprecate it in the case of that have been mentioned. I also deprecate it in the case of the 62 British citizens who were tortured by being burnt to death in the Twin Towers and the 50-odd British citizens who were tortured to death by being blown up in the subway and on the buses in London. They had human rights as well, and the primary human right is the right to life. There is a moral obligation on government to take that into consideration.

I find that one of the astonishing things about these debates is that there is never any context about the nature of national security. It is paraded camouflaged in words such as murky, corrupt, and lapdog—the disparaging avalanche of comments against our security services. Politicians can take it. We are used to it from the Opposition, from people outside and from some of our errant Back-Benchers, but the intelligence services do not deserve that. Were it not for them, I can tell you, thousands of British citizens would have had their basic human right of life removed from them. In one incident in August 2006, 2,500 people would have been blown out of the skies over the Atlantic were it not for our intelligence services and, yes, their colleagues in the American intelligence services.

So let me just say a word to balance the quite proper legal points that have been made about national security. We have come through a dark time. I regret to say that we still live in a dark time, not just here but throughout the world—anyone who thinks that areas of Pakistan are not a conflict zone does not begin to understand that. There are two elements to the threat to the British people, as there always are in any threat. The first is intention and the second is capability. The real question that we should be asking is not whether this proposal arrives from the Government because they are corrupt, because they have been seduced by civil servants or because they are lapdogs of the Americans. We should be asking what particular set of circumstances regarding the threat to national security brings a measure like this on to the agenda. We should then analyse the two elements of threat: intention and capability. Let me to say a word on both. The intention of those who wish to inflict terrorism on the citizens of this country is now unconstrained. It is not limited, as it was with the IRA in terms of tactical questions. It is not limited by their concern for what the public might think. It is not limited in terms of the numbers that they wish to kill. Anyone who tried to kill 10,000 people in the Twin Towers would be happy to kill 10 million people. Indeed, not only are they not constrained in their intent by politics or ideology, they are driven in their ideological premise towards a massive massacre of people.

That on its own would be bad enough to weigh in the minds of today's Home Secretaries if it were not for the fact that the other element of threat, which is the ability to carry out the intent, is now unfortunately unconstrained as well. Those in the past who had a genocidal intent, such as the Nazis, were constrained by the technical ability to achieve their intention—in the Nazis case either by carbon monoxide or Zyklon B canisters. Biological, chemical and radiological weapons now mean that we live in a world where unconstrained intent to do damage is allied with the potential for unconstrained capability. That is the burden that sits on the shoulders of government Ministers nowadays, not whether they will fall out with the Americans or anyone else. It is in that context that we have to consider the unique circumstances that we have never had to face before because the means of mass destruction have not been available to small groups of non-state actors and, by and large, non-state actors have not had an unconstrained intent to murder in a wholesale fashion. It is those circumstances that make the protection of intelligence all the more important. Had it not been for that exchange of intelligence—in one case, across 29 countries—we would not have achieved the protection of our British citizens and their fundamental right to life.

[Lord Thomas of Gresford]

I am sure the noble Lord is not suggesting that those of us who oppose these clauses are in favour of terrorism. He must appreciate that we are not concerned with proposals that will make security information available to the public. All we are concerned about is, what is the response to an action that is brought by a claimant against the security services or any other government department? I appreciate the noble Lord’s sincerity but is he not a little off the point?

[Lord Reid of Cardowan]

There are three points there. First, of course I was not suggesting that there was any intent on the part of the noble Lord. However, I was explaining that there is a law of unintended consequences. You do not need an intention to make it easier for terrorists in order to embark on a course of action that ends up assisting in that. The second point relates to the Government’s response. As I understand it, the Government are saying that we currently have a system that does not give us justice because the requirement to protect national security information is such that they cannot take it to court, and therefore, whether or not it is just, someone is in receipt of benefits.

--- Later in debate ---

[Lord Faulks]

My Lords, the Justice and Security Bill demands justice and security. We have been quite rightly reminded by, among others, the noble Lord, Lord Reid, how important it is to consider security. In human rights terms, Article 2 of the convention places a responsibility on the Government to protect life and to take all steps appropriate to ensure that the human rights of citizens generally are protected, so that human rights are not just for the litigants involved in these proceedings but for all of us. However, justice is to be done by this Bill and there is undoubtedly a justice gap. I thought that, during Committee stage, we had moved towards a consensus that CMPs, although not a desirable option, were nevertheless a necessary evil in order that justice should be done.

Contrary to what my noble friend Lord Strasburger has said, the JCHR, of which I have the good fortune to be a member, acknowledged, relying in part on the evidence of David Anderson, that there were a limited number of cases in which justice could not be done in the current situation. That is why the Bill has been brought before your Lordships’ House. As to the possibility of justice being done under these provisions, the noble and learned Lord, Lord Woolf, who has experience of these things, said in Committee that the special advocates were underestimating their capacity to represent those clients. Nobody suggests that it is an optimal position, but my own experience of judges tells me that they customarily do everything they can to remedy any disadvantage that a litigant might have—and of course they will have a disadvantage in CMPs. The suggestion that the Government’s case will simply be accepted by a judge without challenge or question is wholly unwarranted. Within the Bill as it is at the moment, judges have considerable powers; now that these amendments have become part of it, they will have considerably more powers.

I therefore suggest that the Bill presents an opportunity for security and justice, as the name suggests. The amendment proposed will wreck that opportunity and justice will be denied.

[Lord Thomas of Gresford]

My Lords, I have had experience of a torture case, the Baha Mousa case, which involved the death of a hotel owner in British custody in Basra. Your Lordships will recall that there was a long trial in which what had happened in the stinking hellhole of a derelict guardhouse was investigated. Men had been held in stressed positions with their hands tied behind their backs and hoods over their heads, and Baha Mousa, after a night during which passing soldiers from other regiments were called in to have a pop at the prisoners in that position, died with some 90 injuries to his body. What happened as a result of that? There was the trial and then a long inquiry, chaired by Lord Justice Gage, which lasted more than two years. His report has brought significant publicity and changes to what goes on. The noble Lord, Lord Judd, was talking about transparency. There is something that was brought out into the open. I do not think that any commanding officer in the British Army will not have regard to the treatment of prisoners by troops under his command hereafter. That is what transparency and publicity do. I was very interested to hear the noble Lord, Lord Dubs, cite an interrogation that had taken place in Afghanistan more recently when, no doubt, proper safeguards for the prisoners were in place.

Reputational damage? Of course there was reputational damage to the soldiers, the officers, the regiment and the British Army, but that is the price that has to be paid to put things right. I am not particularly moved by the argument that settling cases causes reputational damage to the security services. Of the civil cases brought in this country, 95% are settled, often without any admission of liability. I have never heard it suggested that there is reputational damage from a settlement from such circumstances. Nor have I heard it suggested anywhere that because the security services have settled cases brought against them, they have suffered reputational damage in any meaningful sense. When one reads what happened in the Binyam Mohamed case, one feels that there should be more transparency about what happens within the security services. Perhaps then, the suspicions with which the noble Baroness is so concerned would go away.

Everything that can be said on the issue of principle has been said, even if not by me, so I do not propose to go back to that. I just want to raise one or two practical points. The first is this. A lot has been said about fairness to the security services—that it is not fair that they should settle. What about fairness to the claimant? Suppose, for example, that a claimant wishes to sue the security services for exposing him to torture or to unlawful rendition. Let us assume that his claim is entirely genuine. Let us not start with the assumption that one hears in certain quarters that of course he is lying. Let us assume that it is a genuine case. There is no legal aid. He cannot find a lawyer to act for him on a no-win, no-fee basis because it will be impossible for a lawyer to assess his chances of success. How can any lawyer take on a case when it is possible for the defendant to go behind the scenes, talk to the judge and disclose evidence which the claimant never sees? How can you take on a case on that basis?

Of course, the special advocate is allowed to see the secret evidence, but can he go back to find out whether there is any possibility of challenging that evidence? How can he go back to his client to talk to him? He is not permitted to under the system. He cannot take proper instructions and, as my noble friend said, use the ordinary method of ascertaining the truth in the British courts of justice for centuries: by cross-examination, by challenging and testing the evidence and the credibility of the person who is giving that evidence. It is just not possible, so nobody is going to take the case on. That is the first problem to get through. We talk as if practical considerations such as that do not count. The claimant never gets his case going, or if he does he loses and never knows why.