Justice and Security Bill [Lords]

Debate between Lord Tyrie and Julian Lewis

Tuesday 18th December 2012 Commons Chamber

[Mr Andrew Tyrie (Chichester) (Con)]

It has been an interesting debate, full of thoughtful interventions, and I have learned quite a bit.

I should like to make three initial points. First, I strongly support the work of the security services, which is essential for our safety. My concerns about the Bill need to be seen in that context. Secondly, I shall refer to the origins of the Bill, and thirdly, I shall deal with what might be at stake, even though we shall discuss it only to some extent this afternoon.

The Bill came about partly as a consequence of the recent exposure of Britain’s involvement in a programme of extraordinary rendition. Bringing all that into the public domain is a matter of deep concern to the Americans, particularly their security agencies. They are worried that our court proceedings could lead to the exposure of intelligence information handed to them by us. The Bill is a consequence, as we have just heard, of the cost and embarrassment of settling a number of civil actions brought by people who have alleged maltreatment. To deal with the first problem, the proposal is to close down the so-called Norwich Pharmacal jurisdiction and, to deal with the second problem, the Government have decided to replace public interest immunity certificates with closed material procedures in most national security cases. I shall come on to the case for those proposals in a moment.

I should like to discuss briefly what is at stake in a broader perspective. All these issues may appear to be abstruse and technical, but they are about the kind of society that we want to live in. It is worth saying a little more about the trigger for the Bill—the issue of extraordinary rendition. We now know that Britain facilitated extraordinary rendition—we do not know its extent—and the Bill may make it more difficult to find out the degree of Britain’s complicity. Senior British public officials have facilitated the kidnapping of people and their transfer to places where our Government knew they might be maltreated or tortured. Last week, Britain paid £2.2 million in compensation to someone who was apparently rendered—and tortured—along with his family, to the Gaddafi regime by British intelligence in 2004. Britain also facilitated the rendition of Binyam Mohamed to Morocco, and apparently he, too, was horrifically tortured. There are other cases, possibly many more: we do not know.

If we do not get to the bottom of our complicity in such disgusting practices, we surrender the moral high ground. We must be wary about extending secret court proceedings for the same reason. Secret courts are usually held to be the tools of dictators, not of democracies, and their prevalence is often a test of whether a society can be called “free”. I am deeply saddened that my country has become involved in kidnap and torture, and I do not want it to be accused—rightly or wrongly—of covering up such things. That, however, is exactly what Britain’s detractors abroad might claim—fairly or unfairly—about this Bill.

[Dr Julian Lewis]

I appreciate the serious point about getting to the bottom of a given rendition. Does my hon. Friend agree that if we are left with only PII, pay-offs will tend to be given and we will not get to the bottom of cases? However, if a pay-off is made when closed material procedure could have been used, one can deduce that something was amiss because although the Government could have used a more specific route, they chose not to do so.

[Mr Tyrie]

My hon. Friend makes an interesting point. The judge now has discretion on CMPs—at least, I hope that is where we will end up as a result of efforts in the other place—so we could arrive at a position where we have more justice and not less, which is the underlying principle we are discussing. With respect to Norwich Pharmacal, the case is unarguable. We would know less about rendition had the Norwich Pharmacal jurisdiction been closed down, because it was used to elicit information about the extent of Britain’s involvement.

The Government have argued that CMPs could deliver more justice because they will be able to introduce evidence that they cannot introduce at the moment for fear it will damage national security. How true is that? I do not know—very few Members present in the Chamber do. The special advocates, security-vetted lawyers who are responsible for making CMPs work, are the small group of people with access to the information required to know the answer. They have been unequivocal—the right hon. Member for Knowsley (Mr Howarth) quoted them a moment ago. They say that CMPs are not

“capable of delivering procedural fairness”

and that their introduction

“could only be justified by the most compelling reasons and, in our view, none exists.”

It is worth reading the report by the special advocates in full as it is pretty blistering.

I am grateful to the Minister, my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), for returning to the Chamber, as he also said that PII was deeply flawed. It is certainly not perfect but, again, the special advocates have expressed a view and said that

“there is as yet no example of a civil claim involving national security that has proved untriable using PII and the flexible use of ancillary procedures (such as confidentiality rings and “in private” hearings from which the public, but not the parties, are excluded).”