Partnerships (Prosecution) (Scotland) Bill [HL]
Lord Wallace of Tankerness Excerpts(11 years, 7 months ago)
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The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, the Partnerships (Prosecution) (Scotland) Bill takes forward the proposals of the Scottish Law Commission to address the loophole that makes it impossible at present to prosecute partnerships that have dissolved. In 2004, a fire at the Rosepark Nursing Home in Uddingston led to the death of 14 elderly residents. The Lord Advocate brought serious criminal charges under health and safety legislation, but because of a legal technicality—the dissolution of the partnership that ran the home—nobody could be prosecuted. Rosepark was run by three individuals who had come together to form a business partnership. Following the fire, the partnership was dissolved. The Crown Office attempted three times to prosecute offences under the Health and Safety at Work etc. Act—offences that could be committed only by an employer.
The first attempt at prosecution, against the former partners of the nursing home, failed because they were charged as having been the employer at the time of the fire. The partners successfully argued that it was the partnership, by then no longer in existence, that had been the employer. A second charge was then brought against the dissolved partnership. The partners successfully argued that the partnership no longer had any legal existence and so could not be prosecuted. A third charge was then brought against the three individuals as whole surviving partners of the dissolved partnership. In turn, this was not successful because it had already been established, at the first attempt, that it had been the partnership that was the employer, and therefore responsible for the answering the charges, not any of the individual partners. In summary, prosecutors were unable to find the legal basis to pursue what were in anyone’s mind very serious charges.
The Rosepark fire created the impetus for a Scottish Law Commission project to investigate why the prosecutions had failed and how the anomaly in the law could be addressed. In May 2011, the commission published its discussion paper on the issue and, following consultation with the legal profession, reported with a draft Bill last December. The Scotland Office subsequently consulted on that draft and I am pleased to be here before this Committee a year later with a Bill that provides a very sound, yet simple, solution to ensure that partnerships and culpable partners cannot evade prosecution by dissolving.
I put on record thanks to the Scottish Law Commission for working with my office and the Scotland Office over the course of this year to ready the Bill for introduction. I particularly am grateful to Patrick Layden, the commissioner who led the project, for his untiring commitment to this work.
The Bill has the support of the Lord Advocate. In a letter to me following publication of the Bill, he said:
“I am pleased that the Bill provides a framework to ensure that it will be possible in future to prosecute a partnership that has been dissolved in Scotland and that the loophole in the law exposed by the Rosepark case will be closed”.
The Bill also has the support of Scottish Ministers and has been welcomed by the Law Society of Scotland. My hope is that we can fulfil expectations that the Bill will receive a positive response in this House and a smooth and quick passage eventually to Royal Assent. It is also worth noting that this will be the first Scottish Law Commission Bill to use the special Law Commission procedure in your Lordships’ House.
Turning to the content of the Bill, it responds to a feature of the general law of partnerships. In Scotland, a partnership is a legal person in its own right, distinct from its partners. The essential reason why the Rosepark prosecutions could not proceed was that the offence being prosecuted was one that could be committed only by an employer. As the employer in that case was a Scottish partnership, when it ceased to exist in law, there ceased to be a legal person to prosecute.
The aim of the Bill is to ensure that the dissolution of a partnership or a change in its membership will not prevent the prosecution, in Scotland, of a partnership or, where the conditions for individual criminal liability exist, the responsible partners. The Bill is deliberately limited to achieving this objective. It will create a limited exception to the current position that, in Scots law, dissolved partnerships cannot be prosecuted. It does not attempt to reform the law of partnerships more generally. In particular, it does not criminalise acts which are not presently criminalised. In other words, there is no expansion of criminal liability either on partnerships or individual partners. The Bill merely closes down a technical bar to prosecution. Nor does it attempt to clarify points of partnership law which do not relate directly to the competency of prosecution. The principle underpinning the Bill is to reflect, so far as is feasible, what would happen if a live partnership were prosecuted. In short, the principal effect of the Bill is that, if it would have been possible to prosecute a partnership had it been live, it will be possible to prosecute it if it dissolves, or has changed its legal personality by the assumption or resignation of partners.
In Clause 1, the Bill allows the prosecution of a dissolved partnership. I mention two aspects of this provision. First, there is a time limit. A prosecution will have to have commenced within five years of the partnership having dissolved for the new law to have effect. This limit is considered necessary to balance the public interest in permitting the prosecution of crime with the interest of certainty in winding up the affairs of a dissolved partnership and the estates of former partners. The five-year period was that most commonly suggested by the Scottish Law Commission’s consultees and reflects the period of negative prescription applying to most of the civil obligations to which the estate of a former partner might be subject following the dissolution of the partnership. Noble Lords may be reassured that the time limit applies only in the case of dissolved partnerships, and runs not from the date of the alleged offence but from the date of the dissolution of the partnership. I am satisfied that the time limit, as recommended by the Scottish Law Commission, strikes an appropriate balance.
Secondly, the Bill applies only to offences which are capable of being committed by the partnership in its own right. As these are the only offences where the mischief arises, where the dissolution or change of membership would prevent prosecution, the Bill is drafted so as to catch only them.
In Clause 1(6) the Bill provides that a fine for an offence committed by a dissolved partnership can be enforced in the same way as a fine for an offence committed by a live partnership. Under existing law, where a criminal fine is imposed on a live partnership, it is enforceable in the same way as a civil debt of the partnership. The liability to pay it arises at the time that it is imposed. If partnership assets are insufficient to meet such debts, individual partners are liable to pay the fine from their personal assets. In Scotland, partners are jointly and severally liable for such fines, therefore the net effect of the Bill is that persons who were partners immediately prior to dissolution are jointly and severally liable to pay the fine.
Clauses 2 and 5 deal with the issue that it is relatively common for statutory offences to provide that an individual partner is also liable for an offence committed by the partnership, where the offence is committed with that partner’s consent or connivance. Where the conditions for such individual liability exist, the Bill makes it clear that the prosecution of the individual will not be prevented by the dissolution of the partnership or a change in its membership.
Where a statute creates an offence which may be committed by a partnership, it sometimes goes on to provide that any fine must be paid from the partnership assets. In such a case, no fine could be enforced against a partnership which had dissolved, since by definition there would no longer be any partnership left to own assets. So, in order to allow such offences to be effectively prosecuted, Clause 3 provides that any such restriction will not apply where a partnership has been dissolved.
Taking together Clauses 1(6), 3 and 4, when a fine imposed upon a partnership is enforced against the assets of a partner, that partner will have, under the terms of the Partnership Act 1890, a right of relief against his or her fellow partners and may, depending on the terms of the contracts agreed between incoming and outgoing partners, have further claims against those former partners who were members of the firm at the time when the offence was committed.
The Bill also ensures that the prosecution of a partnership can proceed in the event of a change in membership. As the Law Commission and the Scottish Law Commission noted in their report on partnership law, in Scots law there is,
“uncertainty as to whether a change in membership terminates the personality of the ‘old’ partnership and brings into being a ‘new’ partnership entity”.
One cannot say with certainty whether a partnership is the same legal entity before and after a change in membership. Given that the present law may be that a change in membership establishes a new legal entity, distinct from the one that existed before the change in membership, the Bill has been drafted to ensure that the continuing partnership can still be prosecuted. There is otherwise a risk that the assumption of a new partner or the resignation of an existing one might make it legally impossible for the partnership to be prosecuted for offences that it had already committed. I am sure that your Lordships will agree that this would be an unacceptable outcome.
On this point, I note that the Law Society of Scotland has suggested that by including the assumption of new partners in the clause, a potential consequence is that a new partner could find him or herself criminally liable for an offence committed before he or she joined the partnership. However, that is not the effect of the Bill and is certainly not our intention. Clause 4 is purely about liability of the partnership entity to prosecution. It clearly would be wrong to confer criminal liability on any person who had not been involved in the commission of the offence.
The Bill extends to Scotland only, and it is worth remarking that it is one of only a handful of Westminster Bills to have done so since the establishment of the Scottish Parliament in 1999. It is sometimes forgotten that Scotland has two Governments and two Parliaments, both with their own contribution to make in improving the lives of people in Scotland. I have worked closely with not only the Lord Advocate but his predecessor on preparatory work for the Bill and taking it forward, as I do on many other issues. He and his ministerial colleagues in the Scottish Government accept that this is a matter that only Westminster can remedy. The Bill demonstrates the continuing interest and responsibility of the UK Government in taking forward Scottish legislation in the UK Parliament, and our commitment to doing so.
The families of those who lost their lives at Rosepark were rightly angry and frustrated by the failure of the prosecutors to find the legal basis to pursue those responsible. It is worth putting on the record with appreciation that some family members have taken an active part in responding to the consultations. Vulnerable people lost their lives and serious charges were brought, but a legal technicality meant that they could not be tried. For the sake of the victims and their families, it is right that we get the law changed to ensure that this can never happen again.
I am sure noble Lords will actively and constructively contribute to the debates on the Bill, and I look forward to listening to their comments. I commend the Bill to the Committee.
Lord Wallace of Tankerness
My Lords, I thank all noble Lords who have contributed to this very helpful debate. I say immediately to those who said they were subscribing to the “daft questions” brigade that in my experience such questions are usually just as penetrating, and sometimes more difficult to answer, than those produced by the lawyers. It is important that the perspective of non-lawyers is brought to bear on this issue, because what lies behind the Bill is something that commands widespread public interest, and that transcends any narrow legal argument. I therefore welcome the contributions that have come from non-lawyers and lawyers alike, and I am particularly glad that the Committee has had the benefit of the experience of two former Lord Advocates, the noble and learned Lord, Lord Cameron of Lochbroom, and my noble and learned friend Lord Fraser of Carmyllie. My noble and learned friend Lord Fraser indicated that he could not recall such a situation arising and that, in his discussion with him, neither could the noble and learned Lord, Lord Mackay of Clashfern. Nevertheless, I think that he thought that it was a worthwhile weapon in the armoury. I think that that reflects the tenor of the debate, in which a welcome generally was given to these proceedings.
I will try as best I can to respond to the points that were made. Hopefully, I will pick up on most of the questions, but we will go through the transcript afterwards and if any questions have not been answered I will do so in writing and circulate the response. When we move into Committee there will also be an opportunity to take evidence, as well as having normal Committee debates on specific amendments.
A number of noble Lords—not least the noble Baroness, Lady Liddell, my noble friend Lord Stephen and the noble Lord, Lord McAvoy—mentioned in some detail the tragedy of the Rosepark care home fire. The noble Baroness talked about the fatal accident inquiry where, after considerable investigation, Sheriff Principal Brian Lockhart concluded that all or some of the deaths could have been prevented if the home had had a sufficiently suitable fire safety plan, and said that the management of fire safety at Rosepark was systematically and seriously defective. That gives us the context in which we are debating this legislation.
My noble friend the Duke of Montrose talked about partnerships and limited partnerships. I think it is fair to say that limited partnerships are quite rare these days, having been substantially superseded by limited liability companies. Limited partnerships are governed by separate legislation, the Limited Partnerships Act 1907. They are a type of partnership that includes limited partners—essentially, investors who play no part in the activities of the partnership. The limited partners have no liability beyond that directly connected to their investment. The Bill catches limited partnerships but, as I have indicated, they are very rare and no penalty would be enforced against limited partners.
Limited liability partnerships are not covered by the Bill as we believe that the same problems do not arise with limited liability partnerships as they do with partnerships. The essential difference is that partnerships may be dissolved instantly with no formality or any mechanism for restoring a dissolved partnership to existence. On the other hand, limited liability partnerships are registered at Companies House. Like companies, they are subject to a statutory process for being struck off the register and for dissolution, and may later be restored to the register by court order.
My noble friend the Duke of Montrose, the noble Lord, Lord McAvoy, and the noble and learned Lord, Lord Cameron, talked about the asymmetry that had been picked up by the Law Society of Scotland in its helpful briefing to colleagues. They pointed out that Clause 2(2) provides that an individual may not be prosecuted for an offence where a partnership has been prosecuted and acquitted, and asked whether the reverse should not also be the case—that a partnership should not be prosecuted where a partner has been acquitted. I do not accept that the situations are symmetrical. Typically, an offence will provide that an individual partner who in some way—I think that these are the words I used in my opening—consented or connived in the commission of an offence by the partnership will also have committed an offence. To establish the guilt of the individual, it is necessary, first, to establish that the partnership committed an offence. That condition cannot be fulfilled, obviously, if the partnership has been acquitted. However, there are numerous reasons why a prosecution against a particular partner might fail; for example, a lack of connivance or consent on the part of the individual. That does not mean that it should determine whether the partnership as an entity has committed an offence. That has to be determined by reference to the terms of the offence itself.
My noble friend the Duke of Montrose asked about the time limit of five years, which was also raised by the noble and learned Lord, Lord Cameron of Lochbroom. I think that I am right in saying that the Law Society of Scotland recommended 20 years. The faculty of Advocates recommended two years. There is no right answer to this. It is a judgment and, as I indicated in my opening remarks, the judgment was that five years relates to the period of prescription applying to most of the civil obligations to which the estate of a former partner might be subject following the dissolution of the partnership. The majority of consultees supported five years. Clearly, if this is a matter to which noble Lords wish to return in Committee, we can readily do so.
That picks up on another point made by my noble friend the Duke of Montrose about what happens when a partner dies after dissolution. The answer is that the estate of a partner will be liable on the same basis as other partners at the time of the dissolution. As I indicated, the situation is the same as for civil obligations under Section 9 of the Partnership Act. Indeed, the fact that someone may have died is one of the reasons why five years was chosen as a period that gives some finality but, at the same time, ensures that there is an opportunity for the Crown Office to mount a prosecution. Of course, there may be cases where a statutory time limit would—if I may use the non-legal expression—trump the five years if there is a statutory time limit from the time of the commission of the offence. My noble friend the Duke of Montrose also asked about the position with regard to individuals. He pointed out that Clause 2 does not have a similar five-year time limit. It is intended that no time limit should apply. It reflects the Scottish Law Commission’s view of existing law, which Clause 2 is intended to put beyond doubt—subject, as I said, to cases where there would be a statutory time limit.
The noble Baroness, Lady Liddell, asked whether the Balmers could be prosecuted if there was a 10-year limit. The answer is no. Under Clause 8(3), the Bill is drafted in such a way that it comes into effect only with regard to partnerships that dissolve after the date of the Bill coming into effect. The reason for this is that it should apply only to dissolutions post-commencement. To do otherwise and to make retrospective provision could readily fall foul of Article 7 of the European Convention on Human Rights.
The Duke of Montrose
Earlier, when talking about individuals, my noble and learned friend said that it was intended that no time limit should apply. Does that mean, if the individual is charged after the partnership, that there is no five-year limit at all?
Lord Wallace of Tankerness
That is indeed what I said. It is subject to the fact that there may well be an offence for which there is already in law a statutory time limit. Indeed, a number of these offences will have provisions in law which set a statutory time limit.
If this Bill proceeds to Royal Assent it will come into force the day after and there will not be the usual lapse of two months or until some future date set by order. It will take almost immediate effect.
My noble friend Lord Stephen asked what other enforcement options might be available to the court, as we had talked very much in terms of fines. That will obviously depend on the particular offence, but most typically it will be a fine. The offence may include imprisonment but one cannot imprison legal persons such as a company or partnership. I asked officials if it could mean that individual partners might be subject to a community service order but the answer is the same; a partnership as a legal entity could not be the subject of a community service sentence and therefore that provision could not, by joint or several responsibility liability, apply to individual partners. It could be that an individual partner may be prosecuted if the Lord Advocate considered it important. Enforcement of a fine could lead to confiscation of assets under proceeds of crime legislation. There may be relevant regulatory bodies that would then take cognisance of the fact that a crime had been committed and an offence established. That could have possible licensing consequences, but not necessarily ones imposed by the court.
My noble friend also asked why we provide in Clause 4 that the partnership must continue trading. This is to distinguish a change of membership from dissolution because change of membership may be a technical dissolution. There is no intention that an interruption to trading should cause Clause 4 to be inoperable. He suggested that if there had been a change through the assumption or resignation of a partner, it was very unlikely that there would be an immediate cessation of trading as well. The Bill envisages trading going on beyond the change in the partnership.
I am very grateful to the noble and learned Lord, Lord Cameron of Lochbroom, for his very detailed analysis. He asked whether it would not have been possible to say that a change in the membership of a partnership constituted a dissolved partnership. I thought, “Why didn’t we think of that?”. It is something that I will consider, although I suspect there are reasons and possible implications which have led to the proposal we have here. However, I will reflect on that point and would hope to write before Committee not only to the noble and learned Lord but to others who have taken part in this debate.
The noble and learned Lord also asked what assessment the court would make in terms of a dissolved partnership in determining a fine. I certainly defer to his judicial mind and experience when it comes to sentencing but, as we all recognise, when it comes to considering the appropriate level of a fine the judge balances the interests of society with the effect of the fine on those who will have to pay. When the Bill is enacted the court will know what fine would be enforced against individuals, and I have no doubt that counsel or a solicitor acting on behalf of the dissolved partnership and its partners would make appropriate representations to the court to take account of the assets of the individuals on whom the fine will fall.
A number of contributors to the debate raised the issue of a crime being committed prior to a change of membership in a partnership and the subsequent enforcement of the fine falling on somebody who has been assumed as a partner after the crime. The reason that after consideration the provision was included in the Bill is that it reflects the current position. For example, if there were an action for damages for delict that occurred before a change in membership and the court case took place after the change, the court order would then be enforced against the existing members of the partnership. Likewise, assuming no change in membership, if a criminal offence had been committed, a partnership convicted and a fine imposed, the fine would then be enforced using a procedure that is akin to that used for civil recovery following a court order.
The answer to some of the concerns about this may well lie in the fact that if you join a partnership and you are aware that a crime has been committed, any person doing proper diligence might well say, “I want to be indemnified against this and against the other partners”. If a partner is leaving, his fellow partners might say, “You know we have a criminal case hanging over us”. Contractual arrangements can be made in a partnership agreement for resignation or assumption. That is why it is very important that this does not apply to partnerships that are dissolved, or in which there is a change, prior to the Bill becoming law. It will also be important that proper notice is given so that people are aware of what the new law will be. At the briefing meeting we had the benefit of the chair of the Scottish Law Commission, the noble and learned Baroness, Lady Clark of Calton. The issue arose and I anticipate that we will come back to it and give it proper consideration.
The noble and learned Lord, Lord Cameron, asked what examination had been made of the legislative background to statutes that were limited to imposing fines on partnership assets. I am advised that the Scottish Law Commission carried out an extensive search of the statute books. Its finding appears to be that statutes in which there were such limitations tended to be GB or UK statutes, where it was certainly thought that what was being dealt with were cases of English partnerships established under the law of England and Wales.
The noble Lord, Lord Kerr, also referred to changes in partnerships, and to situations where there has been such a change that the people who are currently the partners are by and large, with perhaps a very few exceptions, not the partners who were there when the crime was committed. At that point one has to remember the entirety of the Scottish criminal justice system. Prosecution would be competent but it would be a matter for prosecutorial discretion. We have the benefit of two former Lord Advocates here. If there was a situation where a partnership that had been prosecuted bore no relationship other than a tenuous link to the one that existed at the time of the crime, the Lord Advocate of the day would take into account whether in these circumstances it would be in the public interest to prosecute. Certainly the Bill makes provision for the possibility of that happening, but there may well be other factors that the Lord Advocate of the day would feel that he or she had to take into account in the public interest.
Finally, the noble and learned Lord, Lord Cameron, asked what had happened to the 2003 joint report on partnership law from the Law Commission and the Scottish Law Commission. The Government of the day received the report in 2003. In 2006 they indicated that they would not undertake the wholesale reform of partnership law. I do not think that anyone could view the present law of partnership as a model of clarity, but on a day-to-day basis it generally works. While we have indicated that our ears are not closed to representations about a more general review of changes to partnership law in Scotland, I have to be frank with the Committee and indicate that we do not foresee any immediate chance of legislation or legislative time. Also, it would be only fair to say that with the passage of almost 10 years since the original joint law commissions’ report, there would inevitably be a need for further consultation and discussion to take account of any developments that had taken place during that time.
Nevertheless, it is the case that, as the Scottish Law Commission report indicated, while there was a preference on its part for the implementation of the broader reform of the law on partnerships, if that reform was not going to happen immediately or in the very near future, there was still a pressing need to address this issue of dissolved partnerships. That has been reflected in our debate. It may be that at some future date there will be a change in partnership law generally, and this would undoubtedly be picked up in that context. For now, though, as has been reflected, people feel that the loophole that has existed ought to be closed, and the Bill is a simple but comprehensive way of doing that. I look forward to further engagement with noble Lords as we proceed with the Bill, and I commend it to the Committee.
Justice and Security Bill [HL]
Lord Wallace of Tankerness Excerpts(11 years, 7 months ago)
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The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Justice and Security Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Lord Beecham
My Lords, I apologise for my rush to the Dispatch Box. Have the Government reached any conclusions about the amendments passed by your Lordships’ House last week in respect of which the Deputy Prime Minister and the noble and learned Lord expressed a good deal of sympathy? Is that sympathy now to be translated into an acceptance of the amendments passed—or, indeed, in the form of fresh amendments to be moved by the Government in the House of Commons; and, if so, on what lines will they be?
Lord Wallace of Tankerness
My Lords, I think that I indicated last week that the Government want to give very careful consideration to amendments that were passed by considerable majorities in your Lordships’ House on Report. The Government will address them, give them serious consideration and no doubt make their position plain in the other place, bearing in mind that the amendments were based on the recommendations of the report of the Joint Committee on Human Rights. It is certainly the Government’s intention to respond to that report in a timely way.
Justice and Security Bill [HL]
Lord Wallace of Tankerness Excerpts(11 years, 8 months ago)
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Lord Beecham
My Lords, I begin by paying tribute to my noble friend Lord Dubs, who has spent a lifetime in the indefatigable support of human and civil rights. I certainly listened very carefully to what he said today.
I confess to some disappointment that during this debate we have heard little evidence of the Deputy Prime Minister’s references to sympathy for the report of the Joint Committee on Human Rights and still less of the amendments that he said the Government would sympathetically consider. I do not know at what stage, if at all, this House will have an opportunity of considering such amendments. We have Third Reading next week, and there is no indication from the Minister that that would be an occasion when such amendments might come forward.
However, I would welcome the recognition of reality on the part of the Government Benches on three of the amendments that were moved earlier this evening. If those amendments had not been carried, we on the Opposition Benches would have voted for the amendment moved by my noble friend and supported by a number of your Lordships tonight, but we conclude that it would be better to send to the House of Commons the considered views and the amendments passed by very large majorities in this House than to send the Bill without those amendments, and simply leaving it that the provisions that caused most of us considerable anxiety were deleted from the Bill. In my judgment, and that of many of us in this House, that would leave us in possibly the worst of all possible worlds.
In terms of the practical politics of the situation, we might conceivably end up with a worse Bill returning to us than the one that, if this amendment is rejected, would be leaving us. For that reason, I am inviting my colleagues on these Benches not to support the amendment, but equally not to vote with the Government against it. My recommendation to my colleagues is that we should not vote on this amendment but should abstain. We look forward to the amendments that the Deputy Prime Minister spoke of yesterday which, presumably, would go further than those which this House approved with such substantial majorities this afternoon and this evening.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, this has clearly been an important debate with passions expressed on both sides of the argument. Following the votes that we have already had —on amendments which my right honourable friend the Deputy Prime Minister was talking about; the House has had an opportunity to consider the amendments emanating from the JCHR report—the Bill looks very different from that which arrived on Report. The CMP process has now altered with the wishes already expressed by this House. I therefore urge noble Lords not to remove these clauses altogether after such time has been taken to scrutinise and amend them. My noble friend Lord Lester summed it up very well: there is no point in spending a long time before the Dinner Break putting these safeguards, as he described them, into the Bill, only to simply take them all out after the Dinner Break.
Lord Wallace of Tankerness
This is the Bill as the House has now passed it. The House has accepted that CMPs are needed. The Government will and should properly reflect on the steer that this House has provided as the Bill moves to the other place. Crucially, we believe that closed material proceedings are absolutely necessary and are, indeed, a significant improvement on the current system.
I am not going to rehearse all the arguments that we have been through on a number of occasions. I will just pick up one or two points that were made in debate. The noble Lord, Lord Dubs, talked about a system of “whispers”. The closed part of the proceedings will not be a cosy chat between the judge and the government lawyers. The non-Government parties will be excluded from the proceedings, as will members of the public, but the interests of the excluded parties will be represented by special advocates, about which I will say a word in a moment. In other words, the closed proceedings will look much like open proceedings in that they will have counsel for the Government and counsel who are special advocates representing the interests of the excluded party and making submissions to the judge.
I understand the concerns that are expressed about the special advocate, but it is also fair to say that the special advocates themselves sometimes underplay their own abilities. The noble and learned Lord, Lord Woolf, said that he has read the transcripts in the case of M v Secretary of State for the Home Department, and had been impressed with the openness and fairness with which the issues in closed session were dealt with by those who were responsible for the evidence in that case before the SAIC. He went on to say that while the procedures that the SAIC adopts are not ideal—no one is pretending that this is a perfection of justice or making that argument—
“it is possible by using special advocates to ensure that those detained can achieve justice and it is wrong therefore to undervalue the SIAC appeal process”.
The noble Lord, Lord Dubs, also referred to what he said were “cover ups”. This was echoed by a number of contributors to the debate. This completely misunderstands the whole purpose of closed-material proceedings. I share the view of those who have expressed in these debates that they abhor torture. The Government abhor torture. The Government do not condone it, and nor do they seek others to conduct torture on their part.
My noble friend Lord Thomas said that we should assume a case where there has been malfeasance on the part of someone acting on behalf of the British Government. The point is that if there were such as case, it is important that these issues are properly considered and investigated. The point under the present situation, with public interest immunity certificates, is that if public interest immunity is successfully asserted, none of that evidence will actually be before a judge. It is important that that evidence should be before a judge. It is important that there is fairness for the claimant, and there is not necessarily fairness for the claimant if the claimant has to settle because important information cannot be considered in open court and we have not allowed them the opportunity of closed material proceedings. While there may be some satisfaction in getting a financial settlement, it might not be a satisfaction if you have indeed been wronged and do not have a court judgment to confirm that. It is not only the security services, on which we have perhaps focused our debates, for which the present system can act unfairly. It is unfair, too, on someone with a just claim who cannot get it properly vindicated in the courts because evidence cannot be brought before them. That makes the point that that is also, as has been said, unfair to those who believe that they have a proper defence and cannot deploy it. In our first group of amendments today the noble Baroness, Lady Manningham-Buller, indicated that that has the effect of lowering morale in cases where people believe that they have done no wrong and they have a proper defence but cannot deploy it.
Lord Wallace of Tankerness
I thank the noble Lord, Lord Beecham, for moving the amendment, which I say at the outset we are not in a position to accept. However, let me give an indication as to why sunset clauses are not necessarily appropriate here. Apart from anything else, I am trying to get my head around the idea of a sunset clause for litigation which could go over a period of time and it is difficult to think that you might have to sunset something. A case might start under a particular form of procedure and, if the sunset clause was effective, that procedure could be reverted in midstream.
There are also other considerations because this goes beyond what is proposed for the closed material proceedings we have been discussing. In relation to the case of Norwich Pharmacal, one of the primary concerns we are seeking to address is how we provide reassurance to those who give us important intelligence information so that we can protect information shared with us in confidence. A time-limited protection would undermine any reassurance we were able to give.
Lord Beecham
My Lords, the Minister should recognise that the amendment relates only to Clauses 6 to 11.
Lord Wallace of Tankerness
I apologise. Other amendments are grouped with it which I suspect have not been spoken to. None the less, the point I was making earlier applies to Clauses 6 to 11. If there was a procedure in train and the provisions were to sunset, I am not sure how that would rest.
However, I may be able to give some reassurance. The Constitution Committee did not recommend a sunset clause but said that the House may wish to consider the Bill being independently reviewed five years after it comes into force. Of course, Bills are subject to review normally some three to five years after Royal Assent, and it might be appropriate to do that should the Select Committee with responsibility decide that it wished to conduct a fuller post-legislative inquiry into the Act.
I recognise what the noble Lord, Lord Beecham, has said and it is self-evident from the debates that we have had that this is a material change. However, it is right and proper that we should leave it to the Select Committee to decide the form that the independent post-legislative scrutiny should take. That is a proper way in which this matter might be addressed.
Lord Beecham
I beg leave to withdraw the amendment. I welcome the noble and learned Lord’s indication that some kind of Select Committee procedure might be adopted for this purpose.
Baroness Williams of Crosby
I also support this important amendment. We know that some countries that are considered to be relatively close allies of the United Kingdom have human rights records that are indescribably bad. It would be a tragedy to have a situation where we cannot take seriously these human rights violations because of the limits that are placed in the language of this Bill.
We are increasingly seeing human rights becoming a new, very important structure of international law, which perhaps encouraged such movements as the Arab spring, and which undoubtedly helped to release many people from the acts of coercion by their own governments. We have close relations, as does the United States and our other allies, with some countries with poor human rights records. When those poor human rights records enter into the area of international criminal action, of the kind described by the noble Lord, Lord Dubs, I hope that we recognise that we have an obligation as a country with a very strong record of supporting human rights to maintain that standard and record. Indeed we are basically the founder of the original European Convention on Human Rights legislation, which binds us all today. We therefore will expect the Government to look very closely at the wording of this part of the Bill before we get to Third Reading to ensure that it will not mean that such major acts of criminality will be disregarded because of our legislation.
Lord Wallace of Tankerness
My Lords, I thank the noble Lord, Lord Dubs, for moving this amendment. We now move on to the Norwich Pharmacal part of this Bill. I thank the noble Baroness, Lady Kennedy, and my noble friend Lady Williams for their important contribution on an issue that, going by the earlier debate, is of considerable importance with regard to human rights and serious breaches of human rights.
The noble Lord, Lord Dubs, highlighted two points: one relating to serious breaches involving, for example, torture; and the other part of his amendment that relates to the control principle. To put this in context, the approach taken by this Bill is consistent with other legislation that has been passed by Parliament. For example, in the Freedom of information Act 2000, Parliament explicitly ruled out a right to access intelligence material; and the Evidence (Proceedings in Other Jurisdictions) Act 1975 and the Crime (International Co-operation) Act 2003 provide for exemptions from disclosure of evidence into overseas proceedings where such disclosure would prejudice the United Kingdom’s national security.
First, I will indicate why limiting the protection offered by legislation to the control principle, which I think is what the noble Lord was seeking to do, does not go far enough. We appreciate that it is important that this is recognised and, of course, as has been said numerous times in our debates, it is essential that the originator of the material remains in control of its handling and dissemination. However, it is often the fact as well as the content of the sharing arrangements that needs to be protected. Certifying information as subject to a control principle agreement could reveal the fact that such a highly sensitive relationship exists. Countries may not thank us for revealing that fact, and might come under pressure to end co-operation with us.
Moreover, there are also some considerable difficulties in identifying what qualifies as control principle material, and these difficulties could lead to further uncertainty and litigation. Perhaps I might be allowed, even at this time of night, to indicate again evidence given by Mr David Anderson QC in June to the Joint Committee on Human Rights, when he discussed these practical difficulties. There may be correspondence between the intelligence services commenting on control principle material, or assessments based on a mix of domestic and foreign material, and it would often be very difficult to distinguish between them.
It is important that we respect human rights and that we take seriously human rights violations, and that we take measures to ensure that there are effective remedies available. I spoke at some length in Committee about what the Government do, both in the United Kingdom and overseas, to promote and uphold human rights. It bears repeating that the United Kingdom Government stand firmly against torture and cruel, inhuman or degrading treatment or punishment. As I indicated in a previous debate, we do not condone it, nor do we ask others to do it on our behalf.
We work on human rights around the world through bilateral contacts, membership of international organisations and development aid and assistance, and in partnership with civil society. Our efforts worldwide on combating torture are guided by the Foreign and Commonwealth Office Prevention of Torture Strategy 2011-2015. The United Kingdom is working to strengthen legal frameworks to prevent and prohibit torture, develop the will and capacity of states to prevent and prohibit torture, and help organisations on the ground to get the expertise and training they need to prevent and prohibit torture.
In recent months the United Kingdom has made its position on torture clear in public statements on countries of concern, lobbied to strengthen adherence to the convention against torture and the ICCPR, and delivered in-country training to officials of other countries on handling complaints of torture in places of detention. In addition, the Government devote significant resources overseas to combating torture. This work is often done behind the scenes, but there is also much work in providing consular assistance as well as in lobbying and capacity-building projects.
In the Norwich Pharmacal context, however, the Government believe that such disclosure is not the most effective solution to the problem. Disclosure in a single case can have far-reaching long-term effects on the United Kingdom’s national security and international relations, making it harder for the United Kingdom to act as a positive influence on human rights world wide. It is not in any way the case that we do not take these matters seriously. I hope I have indicated that there is a very extensive programme of work and commitment on the part of the United Kingdom Government to tackle torture, but we do not believe that using the Norwich Pharmacal procedure is the way in which to do that. In these circumstances, I invite the noble Lord to withdraw his amendment.
Baroness Manningham-Buller
I just say that I understand the concerns about the scale of the paragraph on sensitive intelligence. Equally, I think that Amendment 73 is a bit too narrow. Perhaps the Government can table something between the two by the next stage.
Lord Wallace of Tankerness
I am very grateful to the noble Lord, Lord Pannick, for moving his amendment and the noble Baroness, Lady Smith, for speaking to her amendments. There is recognition on both their parts and across the Chamber of the importance to us of information which we receive from other intelligence agencies. It is often crucial, and it is important that we can reassure them of its confidentiality. We have been trying—I acknowledge that this is the spirit in which the amendments have been moved—to ensure that there is a proportionate response to ensure that the information is protected.
There is the fundamental problem that the novel application of the Norwich Pharmacal jurisdiction, which has its origins in the intellectual property sphere of law, into the national security context has potentially been damaging to the United Kingdom's national security and international relations. As I have said, its very existence can erode the confidence of our agents and our intelligence-sharing partners that we can protect the secrets they share with us. Moreover, in the case of human agents—because it is not just information that we receive from other intelligence agencies; it is important to remember our own agents—there are real concerns of threat to life if there is a requirement to disclose. Each case that goes through the court has potential to cause damage, not just through the disclosure of sensitive information but by highlighting the risk that it could be disclosed.
In addressing the amendments moved and spoken to by the noble Lord, Lord Pannick, I will indicate that in this sphere we believe there is a need to provide certainty and to reduce the scope for litigation. The noble Lord’s suggestion of moving to a certification model, with a narrowed definition of what qualifies as sensitive information, would allow the uncertainty and damage to remain. If we do not legislate in a way which provides sufficient clarity, we could again have the difficulty that our intelligence-sharing relationships stand at risk of deteriorating.
A certificate-only approach would only partially address the concerns of our intelligence partners and of our own agents that sensitive information is at risk of disclosure under the Norwich Pharmacal jurisdiction. It might leave them with the fear that a certificate might not be upheld and that their material might ultimately have to be disclosed. That in itself could have a chilling effect on the activities of our intelligence services and our intelligence-sharing relationships. An absolute exemption therefore provides a clearer and neater protection for this material and more certainty for our partners and our own intelligence services.
I turn to the restriction of the statutory protection to identity, which seeks to define what might be the intelligence with national security concerns. The noble Lord, Lord Pannick, illustrated this by the identity of intelligence officers, their sources and capability and to control principle material alone. We believe that is insufficient, as there is sensitive information falling outside of these two categories that also requires statutory protection. That picks up the point made by the noble Baroness, Lady Manningham-Buller, that this is far too narrowly defined.
Given that the work of the intelligence services is covert, a considerable amount of material would not fall into the category of identities and capabilities but the disclosure of which could nevertheless still be very damaging. Such information includes information about operations and investigations, as well as threat assessments in relation to sabotage, espionage and terrorism, assessments of vulnerabilities of critical national infrastructure or systems, military plans, weapons systems and information on the development or proliferation of nuclear weapons overseas. It may also include operational planning and intelligence reporting, as well as material relating to national security policy and intelligence policy issues and funding, and so on. I hope that giving these examples shows that it is a much broader sphere of activity than is proposed in the amendment.
Likewise, that narrow definition can also create scope for litigation about what does and does not fall within the definition—what, for example, would be meant by the “capability” of intelligence officers? These issues alone could result in lengthy litigation, all of which would divert intelligence officers from front-line duty. The model proposed by the noble Lord, Lord Pannick, also allows no statutory protection for sensitive information whose disclosure could cause damage to the interests of the international relations of the United Kingdom. This point was also picked up on one of the latter amendments in the group by the noble Baroness, Lady Smith. The Government need to offer protection to this category of material to ensure that our international partners remain willing to talk to us in a frank way, so that we can protect and further the United Kingdom’s interests. The mere embarrassment that would be caused from disclosure of diplomatic material would be no basis to certify. Only if material would cause damage to international relations would we be able to certify.
Diplomacy does not work if diplomats cannot talk in confidence and no Government would, or should, sacrifice the benefits which effective diplomacy can offer. As an example, vital work that is done in promoting human rights is not always done in public. Talking to international partners in confidence about their human rights record is an important part of how we seek to influence that agenda. The possibility that such discussions could be made public could have serious consequences for our ability to influence. Clearly, if international partners do not trust the United Kingdom to keep advice and assessments confidential, this could have a serious impact on the United Kingdom’s interests in the fields of human rights co-operation—as well as on consular assistance, trade and investment, and jobs, to name just a few other implications.
The noble Baroness, Lady Smith, proposes adding after,
“held by an intelligence service”,
the qualifier,
“where that information relates to national security or the interests of the United Kingdom”.
We do not believe that that is the right approach. The Freedom of Information Act, which I referred to earlier, does not try to exclude those agencies from the operation of the Act only in so far as they hold information relating to national security. Rather, it excludes them from the Act as a whole in recognition of the fact that, as far as the agencies are concerned, their entire function and raison d’être is to do with national security and necessarily the information they hold is connected with that. The Security Service Act 1989 and the Intelligence Services Act 1994 both make express provision that the heads of those organisations are to make arrangements to ensure that no information is obtained by their agency,
“except so far as is necessary for the proper discharge of its functions”.
I am concerned that adding the wording suggested might only confuse the matter and give further opportunity for unnecessary litigation. We have heard about the canteen menu, and I think the noble and learned Lord, Lord Falconer, referred to someone who had slipped on the floor and wanted to sue the cleaners. I do not think those examples have so far been used in Norwich Pharmacal to get information out of the security services. If that were the issue, there are many other ways that that information could be sought. We are talking about far more serious information, and I do not think that is being challenged.
The noble Baroness said that she could not find anywhere where the Government had said what they might mean by,
“relating to an intelligence service”.
The Opposition propose removing the clauses that protect information relating to an intelligence service and information obtained from or held on behalf of one of our own intelligence services, as opposed to a foreign intelligence service, or information derived from such material. Sensitive information that would not be afforded statutory protection under these amendments includes sensitive intelligence material held by, say, the Home Office, that has been passed to it by the Security Service in support of executive action, for example, deportation on national security grounds or a TPIM notice. It would also include intelligence the Security Service shared with the police in counterterrorism operations, the disclosure of which would readily compromise those operations in either preventing a terrorist attack or bringing terrorists to justice. Work done in other government departments on national security policy and intelligence policy, which relates to the intelligence services, would not be protected if the “relating to an intelligence service” clause were removed.
The Government have reflected on the constructive analysis and considered comment in the legislative period to date. Picking up the point made by the noble Lord, Lord Pannick, I have no doubt that it will be considered further when this Bill goes to another place, but we have concluded, so far, that in the Norwich Pharmacal context, we need to provide absolute exemption for intelligence services information and certification for other sensitive information, the disclosure of which would be damaging to national security or international relations. Only by this can we provide the clarity required to enable the UK to protect its sensitive information in cases of third-party wrongdoing and to restore the confidence of our intelligence-sharing partners and our own security and intelligence services.
I have tried to outline some of the responses to what I appreciate are constructive approaches to what we all agree is a difficult issue. I hope I have explained why the Government resist these amendments, and I hope the noble Lord will withdraw his amendment.
Lord Pannick
I am very grateful to the noble and learned Lord. I recognise the difficulty of defining with precision what information should be covered. I maintain the position that Clause 13(3) does not do a very good job of it. I suggest that the Minister and the Bill team would benefit considerably by having a word with the noble Baroness, Lady Manningham-Buller—although not tonight. At some stage, perhaps they could discuss a way of improving what is a very unsatisfactory Clause 13(3), but for the moment, I beg leave to withdraw the amendment.
“( ) Sub-paragraph (1) does not apply to rules of court in relation to proceedings before the Supreme Court.”
(a) section 1 and Schedule 1, (b) sections 2 to 14,(c) section 15(1) (except so far as relating to paragraph 3A of Schedule 3),(d) Schedule 2, and(e) Schedule 3 (other than paragraph 3A of that Schedule),”
(a) section 15(1) so far as relating to paragraph 3A of Schedule 3,(b) paragraph 3A of Schedule 3,(c) ”
Partnerships (Prosecution) (Scotland) Bill [HL]
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Baroness Manningham-Buller
My Lords, I well understand the concern coming from all angles of this House on this legislation, and it is entirely right that these issues are fully scrutinised and judged by us. I think that everybody accepts that what is proposed is not ideal, but the question is: what is the best answer? There is the central dilemma of how to deploy into court a wealth of secret information that can be judged and weighed by the court without compromising it.
I am sorry to repeat this, but I think that I have to: the dangers of compromising secret information are several. The first is the obvious risk to the officers who are concerned with it and, as the noble and learned Lord, Lord Carswell, made clear, to the sources of it. The second is the technologies that are available but are fragile and can no longer be used. We are trying to deal with those two things.
If the House will indulge me, I want to say something pretty personal. It is deeply distressing to me and to my former colleagues to be accused of really wicked iniquities in the case of torture and maltreatment. We have not been able to defend ourselves. The closed material procedure gives the opportunity for this material, which may or may not reflect badly on the security and intelligence services—I naturally think that it would not, but others may judge differently—to be looked at. We have been judged by many to have been engaged in criminal activity. But there has been no prosecution; there has been, concerning my service, one police investigation and the CPS found no case to answer. There are other police inquiries going on at the moment and, because I believe in and respect the rule of law, I cannot comment on them; we will see what the outcome is. However, I believe that closed material procedures are a way in which the judiciary can make a judgment on the validity of those claims. We need CMPs for a range of reasons, and I am glad that it seems that, with some exceptions, the need for them is accepted by this House.
When we get on to the next part of the Bill, we will talk about intelligence sharing and Norwich Pharmacal. I may wish to comment at that stage; I do not now.
PII, apart from keeping out of court material that we wish the judge to look at, will be impractical in some cases. I believe—this is information from my former colleagues because I had retired by then—that around a quarter of a million documents were involved in some of the claims that have already been settled. Going through those line by line would be a mammoth and very long task.
Finally, perhaps I may pick up the point made by the noble Lord, Lord Faulks. We should hope to avoid reaching a stage where, because of the need for the open practice of justice and because the balancing act rules out the use of secret intelligence, the Government will have to withdraw and settle and we might get back to where we started, with these cases not being heard. That is a risk that we will probably have to cope with, but I hope that the House will support the central value of having some proceedings to hear these cases in the absence of any at the moment.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I thank all noble Lords who have taken part in this debate. By any account, it has been a very well informed debate, with people speaking from some rich experience. The contributions from those who claim to have no legal background are equally important in bringing the perspective of those who do not deal day-in and day-out with legal issues. As my noble friend Lord Elton said, we are dealing with the difficult issues of trying to achieve a proper balance between liberty, justice and security.
I was encouraged by my noble friend Lord Elton to look at the amendments in turn, but perhaps I may make some introductory remarks. It has been some time since we last considered Part 2, although much has been said about it in the mean time. It is important to remind the House why the Government have brought forward the clauses introducing closed material procedures into civil proceedings where sensitive national security material is relevant. As my noble friend Lord Marks indicated, in a letter which is available in the Printed Paper Office, which I sent to the chair of the Joint Committee on Human Rights, we believe, having done a cross-departmental trawl, that there are about 20 current civil damages cases where material relating to national security would be central. There have been seven new cases during the 12 months leading up to 31 October this year. As my noble friend said, if for some reason we were thought to be a soft touch and did not have any means of properly determining those cases with evidence being allowed to come before a judge, a trend could be established.
Intelligence operations depend, inevitably, on surveillance, investigation and, most critically, information -sharing between agencies, their sources and their liaison partners, as was said by my noble friends Lord King and Lady Neville-Jones. Underlying those arrangements are two principles. The United Kingdom does not confirm its involvement or the involvement of its liaison partners and sources, as to do so would result in a loss of trust and information-sharing would dry up. We rely on others to keep our information safe; and our partners rely on us to do the same. Although much reference has been made to the United States, I recall from our deliberations in Committee that it was made clear that there is a number of other countries whose information we also depend and rely on.
In cases where people are bringing proceedings alleging that the Government were involved in detention, rendition or torture, the Government’s defence would be likely to include: the nature of any involvement, which would require the Government to breach their long-standing policy not to comment publicly on whether or not they had been involved in any particular operation; what the Government knew at the time, potentially risking the lives and safety of sources; what the Government had shared with their partners, potentially revealing the fact of, and nature of, relationships with partners; and any assurances sought and/or received about an operation, again, potentially revealing the fact of, and nature of, those relationships. All those things could be central to any defence and none of them could be put in the public domain without the risk of jeopardising the safety of sources or the willingness of partners to work with the United Kingdom.
It is interesting that the shadow Justice Secretary is on the record as saying:
“In two and a half years’ time, it could be me in that seat making that tough decision. So it is very important for ministers to have the opportunity to protect sources, to protect delicate operations and all the rest of it. They shouldn’t be jeopardised by a civil action”.
At present, as has been said in our debate, the only way to prevent the disclosure of such highly sensitive national security material when civil litigation arises is through public interest immunity. Although the system of PII works well in most cases, it is not working in a small number of cases that hinge on sensitive national security material. That point was clearly and eloquently made by the noble and learned Lord, Lord Woolf. He said during our deliberations in Committee:
“PII has the very unfortunate effect that you cannot rely on the material that is in issue, whereas both the claimant and the Government may want to rely on that material”.—(Official Report, 11/7/12; col. 1189.)
PII requires the court to balance, on the one hand, the damage that would be caused to the public interest with, on the other hand, the public interest in the administration of justice. That includes the impact excluding the material will have on the claimant’s and defendant’s cases, as well as the general public interest in open and transparent proceedings—the so-called Wiley balance.
Lord Lester of Herne Hill
I am sorry to interrupt my noble and learned friend. Does he accept the Joint Committee’s point that, instead of relying on Article 6, to weaken the common law, one should approach the convention through our legal system, including common law guarantees of fairness? Does he also accept that we should not use Article 6, which is a compromise, for mainly civil countries’ standards, but that we should be looking at our own common law, as explained by the Supreme Court in the Al Rawi case?
Lord Wallace of Tankerness
My Lords, Article 6 has been a very good safeguard for many claimants, or people appearing before the courts, of securing a fair trial. The fact that the courts are expressly enjoined to have regard to it does mean that in particular cases, if the requirements of a fair trial lead to requirements of disclosure, when one comes to that second stage of the CMP process the court would be obliged to order disclosure. However, as I have already indicated, it may well be that in these circumstances the Government take the view that even then, disclosure could be damaging to national security, but they must bear the consequences, as set out in Clause 7(3), if they feel unable to disclose.
I finally come to Amendments 47 to 50. They relate to the second stage of the process—and I indicated before that Amendment 47 has the same considerations that I expressed with regard to Amendment 36. The aim of the provisions is to put more material before the court—not the same amount—so that cases that currently cannot be tried because they hinge on highly sensitive national security material can be heard, leading to real findings on important allegations about government action.
Where the consequences are the inclusion of the material in the case, there is no precedent for including Wiley balancing. Other CMPs that already exist and do not use it have been upheld by the courts as being fair and compliant with Article 6. The position of the Government is therefore that there is no case to include balancing of the sort that is implicit in these particular amendments.
The noble Lord, Lord Owen, expressed concern about the requirement, as opposed to an obligation to consider to require, in terms of disclosure. As a Government we share that concern about this set of amendments. Amendment 49 also goes even further and provides for disclosure under the AF no. 3 principle, meaning that material can be disclosed, even if it is damaging to national security, if that is necessary for the individual to be able to instruct their special advocate. This amendment does not take full account of the judgment of the Supreme Court in Tariq—and I will stand corrected by the noble and learned Lord, Lord Phillips, if I get this wrong—which held that Article 6 does not provide a uniform gisting requirement in all circumstances.
The noble and learned Lord, Lord Mance, said at paragraph 27 that,
“the balancing exercise called for in paragraph 217 of the European Court’s judgment in A v United Kingdom depends on the nature and weight of the circumstances on each side, and cases where the state is seeking to impose on the individual actual or virtual imprisonment are in a different category to the present”—
the present being an employment tribunal—
“where an individual is seeking to pursue a civil claim for discrimination against the state which is seeking to defend itself”.
The noble and learned Lord, Lord Hope, went on to say at paragraph 72:
“The context will always be crucial to a resolution of questions as to where and how this balance is to be struck”.
I could not help but think of the point that the noble Lord, Lord Owen, made, that when so much has been said about judicial discretion, this is perhaps an area where there ought to be proper judicial discretion, and where an absolute requirement on the judges should not be made. Wherever it is possible to provide gists and summaries of national security-sensitive material without causing damage, they will be supplied. In those cases where Article 6 requires gisting of this type, as I have already indicated, Clause 11(5)(c) means that the court will order it.
Finally, Amendment 50, which the noble Lord, Lord Pannick, indicated that he may not move, would instruct the court to ensure that any summaries only do no damage to the interests of national security,
“so far as it is possible to do so”.
I am afraid that that is a risk that the Government cannot take. We cannot say to our international partners that we will protect their information,
“so far as it is possible to do so”.
Perhaps above all, we cannot say to sources who are risking their lives for us, “We will protect your identity and, accordingly, your life and safety as far as it is possible to do so”. We do not believe that that is a risk that the Government should take and we believe that we should be categorical about it.
This set of amendments puts at risk our national security in order to hear compensation claims that can be fairly dealt with by the model set out in this regard in the Bill. The Government’s duty is to protect national security and it is not an optional duty. It is fundamental and some may say that it is our very first duty. Against that background, I very much hope that the noble Lord will withdraw his amendment.
Lord Pannick
Before the noble Lord, Lord Hodgson, replies, it may be of assistance to the House if I seek to respond to a specific question put to me by the noble Lord, Lord Owen. I am very grateful for the general support around the House for the concept of judicial discretion in this area and that CMPs should be a last resort, if they are to exist at all.
The noble Lord, Lord Owen, asked me to address Amendments 48 and 49, to which the Minister referred. I am grateful to the Minister for the very careful way in which he went through the amendments. The noble Lord, Lord Owen, was concerned that Amendments 48 and 49 would introduce a duty to provide a summary or a gist of the material if the closed material proceeding is to be ordered. The answer is that disclosure of the summary or the gist would be required only if the Government wish to proceed with a CMP. If they do not wish to disclose the gist or the summary, which is a matter entirely for them, they do not have to do so under the amendment. There simply would be no closed material proceeding. I suggest that that is entirely appropriate if we are to have a fair balance of the interests in open justice and other competing interests. I am grateful to the House.
Lord Wallace of Tankerness
My Lords, consistent with the spirit of the way in which the noble Lord moved his amendment, I shall try to be brief, but I think that it is only fair that I explain why the Government are not accepting this amendment.
It is part of the principle behind our system of government that the Executive are the guardian of the United Kingdom’s national security interest. Courts have frequently stated that the Government’s function to protect national security by claiming PII is a duty rather than an option. Correspondingly, we believe that it should be the responsibility of the Secretary of State to apply for a declaration that a closed material procedure may be used. The courts play an essential role in scrutinising the Government’s exercise of these functions, but the question of whether to claim PII, and accordingly whether to make an application for a declaration that a closed material procedure may be used, should be a question for the Government.
In practice, it is the Secretary of State who holds national security-sensitive material and is in the best position to judge the scope and nature of that material, with advice from the security and intelligence agencies. Other parties may not even be aware that the national security information exists. It will remain open to a third party to approach the Secretary of State and request an application for a CMP if they do have reason to want one. If the Secretary of State refuses, that decision could be judicially reviewed.
I accept there is an underlying concern that the Government could inappropriately use this power because there is a feeling the courts are powerless to prevent the Government claiming PII to hide something, and conversely claiming a CMP when it is to the Government’s advantage to have material before the court. I do not think this is a concern that is ever likely to be raised in practice. In the first instance, it is for the Secretary of State to instigate the CMP application or PII claim, and the power to order a CMP or to accept a PII application rests solely with the judge. The judge would be alert to any unfairness to the non-government party, and within the CMP would have the case management powers to be able to ensure that the claim is fairly heard.
That is, in summary, why we would resist the amendment, and I invite the noble Lord to withdraw.
Lord Pannick
I am very grateful to the noble and learned Lord. If we are to have CMPs there must be equality of arms and there must be fairness, and it must be open to the applicant to apply to the judge for a CMP to be ordered. I wish to test the opinion of the House.
Lord Wallace of Tankerness
My Lords, I am not quite sure that I can say that we do not support the amendment and just leave it at that, as that would not be courteous to the House.
Very briefly, the Bill states that the judge must order a CMP if he considers that a party to the proceedings would be required to disclose material and that such a disclosure would be damaging to the interests of national security. The amendment would change the “must” to “may”, introducing greater judicial discretion. However, the Government do not consider that this is a necessary amendment given the narrow criteria that are set out for triggering a CMP and the other safeguards in the process.
When the Secretary of State makes an application whereby a CMP might be used, the judge needs to be satisfied of two things: first, that there is material that a party would normally be required to disclose; and, secondly and significantly, that disclosure of that material would damage national security. That is not a fig leaf, as some have described it. The judge will have the final say about whether or not those conditions are satisfied. The Secretary of State has to demonstrate that genuine damage to national security, not embarrassment, would be caused by the material being disclosed publicly; and if the judge disagrees with that assessment, he could refuse to order a CMP. Equally, if he considered that the material was not relevant to the facts of the case and the Secretary of State was therefore seeking a CMP where one was not necessary to protect material that was relevant to the case, he could refuse to order one on that basis, too. This is a significant role for the judge.
It is also important to remember that the process does not end with the court’s declaration that a CMP may be used. It is, as has been described in our previous debates, a gateway. Stage 2, set out in Clause 7, is a process whereby the special advocate can then challenge individual documents as to whether they should go into open or closed proceedings, and this is done successfully.
In those circumstances, I encourage the noble Lord to withdraw his amendment, although I suspect that he is not going to do so.
Lord Pannick
The noble and learned Lord is very wise. If we are going to have CMPs, it should be at the discretion of the judge rather than as a matter of duty. I wish to test the opinion of the House.
Lord Wallace of Tankerness
My Lords, it may be for the convenience of the House if I indicate that, while the Government do not accept Amendments 37, 38 and 40, we do not propose to resist them at this time. There will obviously be an opportunity to reflect on them.
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.
Lord Wallace of Tankerness
My Lords, I will also speak to Amendment 43, the effect of which would be to add the Supreme Court to the High Court, the Court of Appeal and the Court of Session as the courts that would be covered by closed material proceedings in the context of this Bill.
I think that it is important that there is consistency within the hierarchy of courts covered by these provisions. As I have indicated, this amendment would add civil proceedings before the Supreme Court of the United Kingdom to the list of courts in the Bill in which closed material procedures under Clauses 6 to 11 may be used. At present, the only courts for which this is available are the High Court, the Court of Appeal and the Court of Session.
I understand that there might be some concerns about adding to the list. The reason for adding the reference to the Supreme Court is to seek to put beyond doubt that the Supreme Court is empowered to apply closed material procedures. It was felt that the Supreme Court was likely to be considering points of law only and the Supreme Court already has some of its own bespoke procedures where it can exceptionally exclude parties from proceedings if in the public interest. However, after the Bill was introduced, the Government became concerned that omitting the Supreme Court might be a gap in the legislation. The lower courts would be able to rely on the procedures set out in the Bill but the Supreme Court—the supervisory court for those courts—would have either no exceptional procedure or a different one.
I do not think that the Government are naive. I think that we are realistic enough to realise that once we enact this Bill, the early uses of the procedure in the High Court almost certainly will be appealed in some form or another, and it seems quite likely that at least some of these appeals will make their way to the Supreme Court. This amendment will put beyond doubt the Government’s intention that the Supreme Court should continue to have the ability to consider sensitive material and ensure that we are not left in the very unusual situation of the highest court in the land not being able to adopt the same procedures used in the lower courts.
For completeness, I should add that noble Lords may have noted that the first set of rules of court under the Bill for the High Court and the Court of Appeal in England and Wales and Northern Ireland are to be made by the Lord Chancellor. This is simply a matter of ensuring that the implementation of the CMP provisions of the Bill can occur swiftly. We do not think that the same rationale applies for the Supreme Court. The first set of rules are to be made by the president of the Supreme Court, as now.
I very much hope that the reasons for adding the Supreme Court will satisfy your Lordships’ House. We are not talking about the horizontal scope of the Bill but the vertical reach, namely the courts in the hierarchy that may hear such claims.
Concern was also expressed in Committee that in the future the reference to “relevant civil proceedings” to which there could be an extension by order could include inquests and fatal accident inquiries. That was not the Government’s policy, as we made clear in our response to the Green Paper consultation. We had brought forward a Bill we believed would not allow any Government to add inquests to the definition of relevant civil proceedings now or in the future, but we were grateful to the Delegated Powers Committee’s consideration and we took on board its comments.
Likewise, the report by the Joint Committee on Human Rights also made comments regarding this order. I understand that the remaining concerns are to ensure that closed material proceedings should be used only when absolutely necessary and in a narrow and targeted context. It is for this reason that the Government have tabled an amendment to remove the order-making power completely; in other words, removing Clause 11(2) to 11(4).
I can assure your Lordships that this decision has not been taken lightly. Parliament has legislated for CMPs no fewer than 14 times over the past 10 years. It is conceivable that national security material may become relevant in contexts other than the narrow ones listed in the Bill. The impact of cases not being heard is felt by not only the Government but claimants, whose cases can be severely delayed. Nevertheless, the Government understand the importance of the issue. This amendment will set to rest any fears raised by the Joint Committee that the order-making power could have been misused or that this clause would open the door to commonplace use of CMPs. It will also put beyond any doubt that inquests are beyond the scope of the Bill.
My noble friend the Duke of Montrose has tabled an amendment to require the consent of the Scottish Government and the Northern Ireland Executive for the Secretary of State to make an order to amend the definition of civil proceedings. The Government are committed to properly respecting the devolution settlements, but if the amendments to delete the order-making power altogether are carried, my noble friend’s amendment would not be necessary. I hope that this also satisfies the amendment tabled by the noble Lord, Lord Pannick, and others that takes forward the recommendation of the Joint Committee on Human Rights. I beg to move.
Lord Pannick
I am very grateful to the Minister for confirming that the Government are proposing the deletion of Clause 11(2) and the order-making power.
I have a concern about Amendment 43, which includes the Supreme Court in the list of courts that will have power to make a CMP. Given the role of the Supreme Court as the final court of appeal in this jurisdiction, it is highly undesirable that it should decide points of law of public importance in judgments that the public and lawyers generally cannot see.
I do not intend to divide the House on Amendment 43. Given the amendments supported by the House earlier this evening, I would understand that the Supreme Court would have ample discretion to decide whether or not it is appropriate for it as the final court of appeal to order a CMP, and no doubt it would wish to take into account the undesirability, if so perceived, of the Supreme Court issuing judgments that, at least in part, the public and lawyers generally would not be able to see. However, I raise that concern.
The Duke of Montrose
My Lords, I thank my noble and learned friend for the way in which he presented his amendments. As he notified the House earlier, if his Amendment 59 is approved, my Amendment 60 will become superfluous. I raise the point that without Amendment 59, there would be a very real danger that anything that the Secretary of State had decided to amend by order in the Scottish courts would be seen as meddling in the affairs of the Scottish legal system. At present, there is nothing more likely to inflame the amour propre of the Scots than actions such as this.
The possibility of this problem was drawn to my attention by the Law Society of Scotland. If Amendment 59 is adopted, we will have a much clearer and more workable piece of legislation than one that is likely to cause controversy. If by any chance it is not carried, I will still wish to bring my amendment forward.
The Bill appears to be walking a fine line on what might be termed issues that might require a legislative consent Motion in the Scottish Parliament and those that would not. Even now, Clause 6(7)(c) of the Bill gives powers to the Court of Session. I understand that early in Committee it was briefly drawn to the attention of the Justice Committee in Edinburgh. Can my noble and learned friend tell the House whether this question of a legislative consent Motion has finally and satisfactorily been resolved?
Lord Wallace of Tankerness
My Lords, as I indicated, the intention is that the Supreme Court should not have available to it powers that are available in the lower courts, but the noble Lord, Lord Pannick, makes an important point with regard to judgments.
With regard to my noble friend’s concerns, it probably would have been the case that had we had a power that involved Scottish Ministers, a legislative consent Motion would have been required. Although the Bill refers to the Court of Session, it has become abundantly clear in our deliberations that the substance of these matters relates to national security, and national security is very clearly reserved to the United Kingdom Parliament and therefore a legislative consent Motion would not arise.
( ) the Supreme Court”
Justice and Security Bill [HL]
Lord Wallace of Tankerness Excerpts(11 years, 8 months ago)
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Lord Campbell-Savours
I should have thought that that operation in Libya was a typical example of something that was finite and coded but which, as we know, was referred to the committee prior to the operation being completed. One wonders whether that operation would have fallen foul of what is in the Bill as it stands. I have no doubt that the Minister has in his brief, in very large red letters, “resist at all costs”—perhaps more than many of the other amendments that we have considered today. I would imagine that the services are particularly worried about this area. However, I would say to them that they must go away and reconsider this issue.
This is classic House of Commons debating material. I should have thought that the House of Commons will latch on to this wording and really drive it in Committee very hard. The Government should get a better line in dealing with these matters than we have heard hitherto.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I am grateful to the noble Lords, Lord Butler and Lord Campbell-Savours, and the noble Baroness, Lady Smith, for introducing these amendments, three of which concern the ISC’s ability to oversee operational matters and the fourth concerns the relationship between the ISC and Select Committees. It is worth reminding ourselves that one of the purposes of the Bill is to extend the ISC’s statutory remit. It makes clear its ability to oversee the operational work of the security and intelligence agencies and of other parts of the Government’s intelligence machinery.
With this formalisation, we certainly expect that the ISC will provide such an oversight on a more regular basis. The provisions of the Bill allow the ISC to consider,
“any particular operational matter but”—
as the noble Lord, Lord Butler, quite properly indicated by quoting from the Bill—
“only so far as the ISC and the Prime Minister are satisfied that … the matter … is not part of any ongoing intelligence or security operation, and … is of significant national interest”.
The starting point is that the ISC’s oversight in this area ought to be retrospective and, so as not to cut across the role of Ministers, should not involve, for instance, prior knowledge of approval of agency activity. It is important that when there is an ongoing operation, or indeed a future operation, the responsibility for national security lies with Ministers. The noble Lord, Lord Butler, made it clear that the ISC is not seeking to intervene in that and accepts that the primary and principal responsibility lies with Ministers.
The ISC’s consideration of an operational matter must also,
“be consistent with any principles set out in, or other provision made by, a memorandum of understanding”.
The first amendment would have the effect of leaving it solely to the judgment of the ISC to decide when the criteria for considering a particular operational matter are met. It is our intention that the memorandum of understanding will set out the factors that should be taken into account in assessing whether a particular operation is still ongoing or is of significant national interest. None the less, while fully accepting that the committee does not have ambition or aspiration to extend beyond what is said, I am sure that even reasonable people could come to a different view about whether those particular criteria are met or not in a particular instance.
I hope that noble Lords will agree that the judgment as to whether an operational matter meets the criteria is one that should properly be for both the ISC and the Government and not just for one or the other. It is important that the judgment is got right; I do not think that anyone is suggesting in any way whatever that there will be any deliberate attempt to intrude in circumstances where it has not previously been anticipated that the ISC should, but the last thing that anyone wants is for a different judgment to be struck that could lead to impeding the operational effectiveness of the intelligence agencies.
The noble Lord, Lord Butler, indicated what was perhaps at the crux of his concern. He mentioned the case of Libya. I understand that there may be a concern that the requirement that both the ISC and the Prime Minister should be satisfied that the criteria are met will slow down responses to more routine requests from the ISC for information about operational matters. The noble Lord used the word “cumbersome”. I assure your Lordships’ House that that is not the Government’s intention, nor do we believe that it will be the effect of the clause. However, I further assure your Lordships that we are looking very closely at this and it may well be that a memorandum of understanding to be agreed by the Government and the ISC is the right vehicle for agreeing a process that will allow the information that the noble Lord indicated to be provided to the committee, and in an appropriately prompt manner. Alternatively, it may be that there are other approaches that might make the position clearer, and I suspect that as this Bill progresses through Parliament we may return to it. But I indicate that it is a matter to which we will give further consideration. It may be that the memorandum of understanding is a better way to address it—and I hope that, on that basis, the noble Baroness will not press that amendment.
The noble Lord, Lord Campbell-Savours, said that he would wish to remove one of the key restrictions on the ISC’s new power to oversee agency operations—namely, the requirement that its oversight of operations should be retrospective. There is nothing in red in my briefing, but there is an indication that the amendment should be resisted. We have worked with the current committee to develop the new arrangements, and it is the committee’s view, as the noble Lord, Lord Butler, made clear in his speech to his amendment, that the committee agrees with the Government that it should not oversee ongoing operations.
There are clear lines of ministerial responsibility for authorising agency operations, and we believe that they could be undermined by the ISC having prior, even contemporaneous, knowledge of particular operations. Secondly, once a particular operation has commenced, it may well be that things move very quickly, and it is essential that the agencies can focus fully on the task on hand. It is better to bring the committee in and have retrospective oversight of a particular operation. Indeed, some operations will be so sensitive, with perhaps highly sensitive sources in play, that the details are kept within a very small, need-to-know circle, even within the agencies. The committee fully understands this; it is part and parcel of the work that it does, and which it recognises that the agencies do on our behalf. Once an operation has concluded, the ISC will then be well placed to carry out its work, which will no doubt include making strategic and policy recommendations, and giving views on any lessons learnt. The noble Lord’s concern expressed in Committee, which he has reflected this evening, on how operations might be defined, particularly if there is a long-running set of activities, was whether that could be defined by the Government as a single operation. I certainly understand where the noble Lord is coming from, but that is not an appropriate or proper interpretation of the clause. The nature of operations varies, and this is one of the reasons why we have provided in the Bill detailed consideration as to how the ISC’s operational oversight remit should operate and should be set out in a memorandum of understanding, which the Government will agree with the ISC.
Lord Campbell-Savours
Would it not be better simply to remove the whole section on ongoing operations and deal with the whole thing in the memorandum of understanding?
Lord Wallace of Tankerness
No, my Lords. One of our purposes is to ensure that this is put on a statutory basis. That has not been the case hitherto and this is a step forward. I can reassure the noble Lord that it is not the Government’s intention that a long-running operation be outside the scope of the ISC’s oversight for its entire duration. As the noble Baroness, Lady Manningham-Buller, explained in Committee, a long-running operation could, for instance, be broken down into discrete phases of operational activity, parts of which could be judged to be no longer ongoing and, on that basis, could be subject to the oversight of the Intelligence and Security Committee. I very much hope that on that basis the noble Lord will see fit not to press his amendment.
The third amendment in the group, Amendment 23, would allow the ISC to oversee an operational matter that does not meet the criteria in Clause 2(3) if the relevant Minister of the Crown agrees to the consideration of the matter. It is difficult to see the circumstances in which the provisions of that amendment would need to be used, although I listened carefully to what the noble Lord, Lord Butler, said. His concern was that there may be a circumstance whereby both the Government and the committee agreed that it was proper that there should be an investigation, but that it would be statutorily barred from that. The concern is that that amendment is aimed at allowing both to agree on what the ISC could consider. I am sympathetic to the kind of situation that the noble Lord described. The Government are not convinced that there is a need for this amendment, but we appreciate the intention behind it, which is to introduce a degree of flexibility that might prove useful in the future. It is certainly a matter that we would want to keep under review as work continues on drafting the memorandum. We would be willing to look at that again because, as the noble Lord indicated, it would relate to an issue on which there was agreement between the Government and the committee. It is just a question of how we can get that right without opening up to some unintended consequences.
Finally, I turn to the amendment of the noble Baroness, Lady Smith, and the noble Lord, Lord Rosser, which raises some important points relating to the relationship between the ISC and Select Committees. The first part of that amendment would mean that Select Committees could ask the ISC to consider any request to review any particular issue related to national security. The second part would mean that a Select Committee could request that the ISC transfer information to it that the Select Committee,
“has stated it needs to carry out its function”.
The third part states:
“The terms of any consideration … are to be set out in a memorandum of understanding between the ISC and the Select Committee in question”.
Again, I recognise and appreciate the intentions underlying that amendment—an intention expressed by the noble Baroness to create a stronger link between the ISC and other committees. It certainly would be our intention that the new ISC should be closer to Parliament than its predecessor and that it should be a strong and effective committee. Equally, an important feature is that the ISC operates within a framework that enables its members safely to be party to highly sensitive material and that it can scrutinise matters that are secret and of which the rest of Parliament and the public, for good reason, do not have sight. Of course, at the moment it is open to Select Committees to write to the ISC requesting it to review a particular matter. There is nothing in the new arrangements that will stop that. I am sure that any such requests will be treated seriously by the committee.
However, I have a number of concerns about the idea of creating a formal statutory mechanism for making and considering the requests. First, I am concerned that the ISC could become overwhelmed with requests to report on particular matters. If it acceded to all requests, the programme of work could be overtaken with matters that are of interest to other committees, which would take the focus away from the core work of the ISC. Secondly, there is the question of what the ISC would be able to say in response, given the highly sensitive nature of the agency’s work. Members of the ISC are of course bound by the obligations of the Official Secrets Act. Thirdly, if the ISC regularly refuses to action requests from Select Committees, an inevitable tension could arise between the ISC and those committees. I fear that that might undermine the perceived effectiveness of the new ISC and its closeness to Parliament.
On the requesting of information to help Select Committees with their work, it will be clear that there will be real limitations on what the ISC could provide, given that much of the material that is provided to the ISC is, by necessity, extremely sensitive.
Lord Campbell-Savours
Have civil servants and the Minister considered the comments of the noble Lord, Lord Lester of Herne Hill, when he intervened in Committee on these matters? If they have not, why do they not meet him prior to Third Reading so that he can discuss with them his concerns arising from his experience as a member of the Joint Committee on Human Rights?
Lord Wallace of Tankerness
I recall having read, in the past 24 hours, a particular phrase from the contribution of the noble Lord, Lord Lester, to which the noble Lord, Lord Campbell-Savours, refers. I could take the Joint Committee on Human Rights in isolation but numerous other Select Committees could start making requests and the point I am trying to make is that if the ISC started to receive requests—indeed, it is possible at the moment and no doubt the committee considers them—but on a statutory basis, the concern would be that if the committee decided to respond positively to those requests, that would detract from its core function and purpose. Equally, the point I was making was that if it regularly refused action, that could lead to tension and detract from what we are trying to achieve by way of a greater closeness between the new committee and Parliament.
There is also the point that I was making about the information. By its very nature, some of that information will be extremely sensitive and will be classified as secret or top secret, according to the government system of protective markings, but the ISC, in its accommodation, staffing and procedures is set up to handle sensitive information. The ISC secretariat is vetted and its accommodation is secure. However, other committees are not set up to deal with such information, nor are they, we believe, in a proper position to assess the damage that disclosure could cause. If the ISC refuses to provide information, again, that could lead to tensions between committees.
The new ISC will need to consider how it works with Select Committees and with Parliament more broadly, but I am concerned that the provision suggested in this amendment might serve to skew or disrupt the ISC’s work programme and its reputation could be damaged by refusals to take forward work or pass on information. It is important that the ISC can direct its own work programme as far as possible and focus its efforts on issues that it, with its unique perspective, thinks are most important. I appreciate the intention behind the amendment in the name of the noble Baroness and the noble Lord, but I hope that they will reflect on the concerns that have been expressed and feel able to withdraw it.
Lord Butler of Brockwell
My Lords, I am grateful for the Minister’s sympathetic reaction to Amendments 18 and 23. I will make two glosses on it. If I heard him right, he said that Amendment 18 would leave solely to the judgment of the ISC the test for considering an operational matter. I think he is thinking of the amendment that was moved in Committee because this amendment removes both the ISC and the Prime Minister. The Bill says:
“The ISC may … consider any particular operational matter but only so far”,
and it goes on to say that the matter,
“is not part of any ongoing intelligence”.
In other words, it means that it is a matter of fact and not something that the ISC could decide by itself.
The second point is that the Minister spoke about it as if these were matters where the committee asked for information from the agencies. However, as I think the noble Baroness, Lady Manningham-Buller, will confirm, that is not usually the case. The circumstances are that the agencies themselves take the initiative in reporting to the committee. They give the information—I should think that that is the case nine times out of 10. It would be a great pity if that closeness that exists between the ISC and the agencies were to be inhibited by a requirement that the agencies clear their lines with the Prime Minister before they can report such a matter.
Lord Wallace of Tankerness
I hope that I gave reassurance that we recognise some of the issues that the noble Lord raised and that there is certainly a willingness to work through this. There is certainly no intention to retreat from the things which have normally been part and parcel of the ISC’s operations and deliberations up until now.
Lord Butler of Brockwell
I am very grateful to the Minister. On the basis on those assurances, I am very happy to withdraw Amendment 18.
Justice and Security Bill [HL]
Lord Wallace of Tankerness Excerpts(11 years, 8 months ago)
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Lord Clinton-Davis
To ask Her Majesty’s Government how they will respond to the view expressed by the Equality and Human Rights Commission that the proposals in the Justice and Security Bill [HL] regarding closed material procedures are incompatible with the Human Rights Act 1998.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, Her Majesty’s Government disagree with the EHRC’s analysis. Case law shows that closed material proceedings can occur compatibly with the right to a fair trial in Article 6 and the other rights contained in the convention. CMPs are explicitly made subject to Article 6 in the Bill. The UK Supreme Court affirmed as recently as last year in the case of Tariq that a procedure involving CMPs was compatible with Article 6 of the European Convention on Human Rights.
Lord Clinton-Davis
The proposals regarding CMPs are controversial and difficult, are they not? How do the Government now propose, as they must, to deal with the powerful criticism of the Equality and Human Rights Commission and others that CMPs are incompatible with a fair trial, in breach of Article 6 of the European Convention on Human Rights and fail to define clearly the national security concerns which are claimed to lie at the heart of the Government’s proposals? Are we too late to intervene and discuss the position with this body?
Lord Wallace of Tankerness
My Lords, I certainly agree with the noble Lord that these proposals are controversial, difficult and complex. Indeed, they have already been the subject of much debate in your Lordships’ House. As I indicated, the Government believe that they are compatible with Article 6. Upon introduction of the Bill, I signed a statement that its provisions are compatible, and the Government have published their own summary of the human rights issues in the Bill, which we gave to the Joint Committee on Human Rights and which has been published. The definition of national security was debated in your Lordships’ House in Committee, and there are many reasons as to why national security is not defined in many statutes. The noble Lord asked if there will be a further opportunity for discussion. Indeed, there will be such an opportunity because the future business set down for the House indicates that the Report stage will be held on the 19th and 21st of this month. I anticipate some informed and robust discussions during those debates.
Lord Marks of Henley-on-Thames
My Lords, my noble and learned friend the Advocate-General will no doubt agree that the opinion of John Howell QC obtained by the commission needs to be taken seriously. Have the Government yet had time to consider how far amendment of the Bill might address the thrust of the criticisms he advances—in particular, by ensuring that its impact is strictly limited to material that would otherwise be subject to public interest immunity and to cases where otherwise no trial at all would be possible, and by giving claimants as well as the Government the right to have such material considered by a court, with the assistance of a special advocate?
Lord Wallace of Tankerness
My Lords, I can certainly assure my noble friend that the Government give serious attention to representations from the Equality and Human Rights Commission and to this particular opinion, as I have indicated. There is a good response to the two key concerns that have been raised. It is the Secretary of State who applies for the CMP, but it is nevertheless the courts which decide whether to grant a declaration and, thereafter, which material will be heard in closed proceedings. With regard to criticism of the standard of gisting, we believe, as we said in Committee, that following the judgment in the Tariq case the Supreme Court found that the requirement of fairness can vary from case to case. The Bill states that closed material proceedings must comply with Article 6, when it applies, and we leave it to the courts to decide what Article 6 requires in any case. I am grateful for the constructive proposal of my noble friend. He will be aware that as well as considering seriously the opinion of the ECHRC, we will also consider the comments made in Committee, and I think we will receive before Report stage the report from the Joint Committee on Human Rights. I certainly look forward to giving that the consideration it deserves.
Lord Beecham
My Lords, given the dictum of the late Lord Scarman that public interest immunity is a matter of substantive public law, not private right, and that of the late Lord Bingham, that:
“It is an exclusionary rule, imposed on parties in certain circumstances, even where it is to their disadvantage”,
does the Minister agree with the opinion of leading counsel furnished to the Equalities and Human Rights Commission that,
“it is the duty of courts and tribunals to give effect to such immunity if applicable”—
on their own motion—
“even if the parties do not wish it”?
If so, what are the implications for the proposals in the Bill?
Lord Wallace of Tankerness
My Lords, again the issues regarding public interest immunity have been well aired and were referred to by my noble friend Lord Marks. I am sure that we will return to this on Report. The concern expressed during our earlier debates was that if PII is successfully asserted by the Secretary of State, that material in respect of which PII is successfully claimed has no part to play—it is not admitted to the proceedings. The Government’s concern is that there may well be situations where the Government have an answer to serious allegations made against them but, under the PII system alone, they are not able to bring that material before a judge. We believe that it is better if it is before a judge, subject of course to the proper safeguards in this Bill.
Lord Campbell of Alloway
My Lords, I support what my noble friend has said, having appeared before that court on more than one occasion and set up my own chambers in Brussels, and having had an interest there. However that interest was always in our country, which predominated over that of the interest of Europe.
Lord Wallace of Tankerness
In these debates, my Lords, I very much welcome my noble friend’s support.
Forestry Commissioners (Climate Change Functions) (Scotland) Order 2012 (Consequential Modifications) Order 2012
Lord Wallace of Tankerness Excerpts(11 years, 8 months ago)
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Lord Wallace of Tankerness
That the draft Forestry Commissioners (Climate Change Functions) (Scotland) Order 2012 (Consequential Modifications) Order 2012 laid before the House on 10 July be approved.
Relevant documents: 7th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 23 October.
Forestry Commissioners (Climate Change Functions) (Scotland) (Consequential Modifications) Order 2012
Lord Wallace of Tankerness Excerpts(11 years, 9 months ago)
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Lord Wallace of Tankerness
That the Grand Committee do report to the House that it has considered the Forestry Commissioners (Climate Change Functions) (Scotland) (Consequential Modifications) Order 2012.
Relevant document: 7th Report from the Joint Committee on Statutory Instruments.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I will provide the Committee with a brief summary of what this order seeks to achieve. It is made under Section 104 of the Scotland Act 1998, which allows for “necessary or expedient” changes to UK legislation in consequence of an Act of the Scottish Parliament and subordinate legislation. This order is made in consequence of the Forestry Commissioners (Climate Change Functions) (Scotland) Order 2012, made by Scottish Ministers under Section 59 of the Climate Change (Scotland) Act 2009. For convenience, I shall refer to this as the Section 59 order.
Scottish Ministers are keen to make full use of the national forest estate in Scotland for generating renewable energy. The national forest estate is land owned by the Scottish Government and put at the disposal of the Forestry Commission. While the commissioners have powers to enter into joint ventures in Scotland for the purpose of exercising their functions under the Forestry Act 1967, these functions do not expressly include the development of the renewable potential of the land put at their disposal by Scottish Ministers.
Section 59 of the Climate Change (Scotland) Act 2009 enables Scottish Ministers to modify the functions of the forestry commissioners in or as regards Scotland where this is necessary or expedient in order to comply with their duties as regards emissions reductions or otherwise in relation to climate change. The Section 59 order amends the 1967 Act to place upon the forestry commissioners a new general duty to use land placed at their disposal by Scottish Ministers in the way best calculated to contribute to the delivery of the targets set under Part 1 of the Climate Change (Scotland) Act 2009.
However, the Section 59 order does not itself enable the forestry commissioners to use the National Forest Estate to generate electricity. The Scottish Government have indicated that because the forestry commissioners will have a duty to use land to contribute to the delivery of climate change targets, it would be expedient in consequence of this new duty for the commissioners to be able to use the national forest estate for renewable energy purposes.
This Section 104 order will modify the forestry commissioners’ functions under the 1967 Act in order to confer express powers on the commissioners to use the national forest estate for the purposes of generating and supplying electricity from renewable energy projects, thus developing the renewable energy potential of the land put at their disposal by Scottish Ministers. Of course, the generating and supplying of electricity from renewable energy projects is a reserved matter, hence the need for this order.
I can assure your Lordships that this Section 104 order will not affect the requirements under the Electricity Act 1989 with regard to consents. It will not exempt the forestry commissioners from the requirements of Part 1 of that Act.
This order is necessary or expedient in consequence of the Forestry Commissioners (Climate Change Functions) (Scotland) Order 2012 and demonstrates the Government’s continued commitment to working with the Scottish Government to make the devolution settlement work. I hope the Committee will agree that this order is a sensible use of the powers in the Scotland Act, and that the practical outcome is something to be welcomed.
I commend the order to the Committee. I beg to move.
Lord McAvoy
My Lords, I thank the noble and learned Lord the Minister, who, as usual, has made his staff available for any advice and/or assistance. I have a slight regret about the noble and learned Lord’s ever so polite attitude because, being used to another place, I sometimes like a wee bit of aggression but I am still waiting for the Minister to show that quality.
Turning to the legislative context, where in Scotland did the push for this come from? Although I do not stay near a lot of forest, nevertheless it is quite a big issue in some parts of Scotland. Why was this initiative taken, and what was the background to it? The policy background mentions wind farms. That is not an uncontroversial issue. I was wondering how that came about.
I have always tended to suspect the reporting of consultations because it is usually in the eye of the beholder, who wants a particular result. What is the current position on the consultation? Is it completely finished or are there still ramifications because people are making complaints or expressing their support? Is it still an issue? In addition, it is stated that a number of the concerns that were expressed have been addressed. Does the Minister know the specific issues that were identified and then responded to? Can he give an indication of how the consultation was handled? Was it just an exercise from on high or was there a definite consultation?
Paragraph 10 of the Explanatory Memorandum is headed “Impact” and states:
“This instrument has no impact of a regulatory nature”,
and goes on to say that the,
“impact on the public sector is insignificant”.
The one thing missing from that is public opinion. If it was insignificant, that is fine, but if there was a reaction, it would be a crucial factor. I would like to know if there were any expressions of public opinion. Is that the reason why a full impact assessment was not produced?
Although paragraph 12 states that the:
“Forestry Commission Scotland publishes an Annual Report and Accounts which is laid before the Scottish Parliament”,
is that the scope of the accountability? I know about devolution, but is there any further scope for the Westminster Government to be consulted? In short, is the whole issue of accountability now devolved to the Scottish Parliament? Obviously this is a comparatively minor arrangement, but never the less it is right to ask questions here in your Lordships’ Chamber and thus subject the order to a bit of gentle scrutiny.
The Earl of Mar and Kellie
My Lords, speaking as a backwoodsman, I approve of giving explicit powers to one of the largest landowners in Scotland and thereby removing all the Forestry Commission land from the renewables area. I certainly approve of the widening of the geographic scope for renewables, especially as it takes the pressure off other areas that may be more beautiful and which are worth retaining in that context. The order considerably widens the already broad remit of the Forestry Commission, which is now far wider than its remit in 1919, which was to produce timber. The commission will now get involved with leisure, recreation, health, landscape management, footpaths, cycle paths, biodiversity, wood fuel and still, indeed, the production of timber. I support all forms of renewable energy, and especially hydro. I am pleased to see that two hydro schemes have already been identified. I would encourage the commissioners to have another look at small-scale hydro projects on the hill burns. I also suspect that they are bound to put up some wind turbines, or allow a partner to put them up.
My final point is particularly related to that. Once a site has been established, it is grid-connected pretty much for all time. It is hoped that the generating technology may well improve and something other than wind farms will come to take their place. The important point is that the sites themselves are grid-connected.
The Deputy Chairman of Committees (Lord Geddes)
My Lords, there is a problem with the sound system. The Grand Committee will adjourn.
The Deputy Chairman of Committees
My Lords, it is now 7.05 pm—oh! Let us try that again; it seems like an eon. It is 4.05 pm. Perhaps now peace and quiet has been resumed, the Minister would also resume.
Lord Wallace of Tankerness
My Lords, I thank my noble friend Lord Mar and Kellie and the noble Lord, Lord McAvoy, for their contributions to this debate and for their general welcome for the proposals. The noble Lord, Lord McAvoy, asked from where the impetus for this had come. The origins go back to the Climate Change (Scotland) Act 2009, which in its generality was setting targets for carbon emissions and the amount of electricity that can be generated from non-fossil fuel renewable sources. The Scottish Government were very keen to make full use of the renewable potential of the estate, which is operated by the forestry commissioners. Indeed my noble friend Lord Mar and Kellie remarked that widening the geographical scope of renewable energy production perhaps takes the pressure off other parts of the country, bearing in mind that the Forestry Commission’s estate is almost 10 per cent of the Scottish land area.
My noble friend asked if there were any further potential hydro locations. I am advised that the commission is taking a proactive approach with developers and communities to identify further locations. I think it is important to emphasise the fact that this embraces electricity generation by means of hydropower. It is not solely wind power. The forestry commissioners, however, made it clear that they do not intend to go down the route of biomass, because that could lead to a conflict of interest with their role as timber suppliers. My noble friend expressed the view that it was vital that sites should be connected to the national grid. I can confirm that proposals would only go ahead if there were grid connections.
The noble Lord, Lord McAvoy, asked about the position with regard to consultation. The consultation took place in relation to the 2009 legislation. It took place ahead of that, although part of the consultation specifically related to the role of the forestry commissioners. The consultation document explained that the provision would facilitate the development of renewable energy potential of the land in Scotland put at the disposal of the forestry commissioners by Scottish Ministers. There were 368 responses to the specific question:
“What are your views on allowing the Forestry Commissioners to enter into joint ventures, with the intention of participating in renewable energy programmes on national forest estate?”.
Seventy per cent of respondents expressed positive views on the option, although a number added caveats; 15% expressed negative views; and the remainder appeared to be neutral or undecided. The noble Lord, Lord McAvoy, asked about some of these concerns and whether indeed they had been taken into account. I can confirm that, yes, there were concerns that related to a possible conflict between the regulatory activities of the Forestry Commission Scotland in respect of renewable developments. As a consequence, a forest renewables unit has been set up; it separates the operation of the development role of the commission from its regulatory role.
The noble Lord, Lord McAvoy, also asked why no impact assessment had been prepared for the order. The position is that orders made under the Scotland Act are required to be laid in draft if, among other things, they vary the legislative competence of the Scottish Parliament, executive competence of Scottish Ministers or make changes to reserve UK primary legislation in consequences of Acts of the Scottish Parliament. Usually such orders do not in themselves have a direct or indirect impact, whether in benefit or cost on businesses, charities or the voluntary sector. They would therefore not normally have any regulatory impact. On this occasion, a full impact assessment was not produced as this instrument simply allows the forestry commissioners to enter into voluntary joint ventures with commercial partners should they wish. It does not impose on private sector or civil society organisations.
I conclude on the point made by the noble Lord, Lord McAvoy, that wind developments tend to be controversial. I reiterate what I said in my opening remarks, that any specific proposal that is brought forward will be subject, if it is 50 megawatts or over, to the regime under Section 36 of the Electricity Act 1989. If it is lower than 50 megawatts, it will be subject to the planning regime. Therefore this order does not in any way detract from the planning arrangements that are already in place.
Forestry Commissioners (Climate Change Functions) (Scotland) Order 2012 (Consequential Modifications) Order 2012
Lord Wallace of Tankerness Excerpts(11 years, 9 months ago)
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Lord Wallace of Tankerness
That the draft Forestry Commissioners (Climate Change Functions) (Scotland) Order 2012 (Consequential Modifications) Order 2012 be referred to a Grand Committee