Justice and Security Bill [HL]
Lord Wallace of Tankerness Excerpts(11 years, 10 months ago)
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The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I am grateful to my noble friend for bringing forward this amendment and to other noble friends and noble Lords who have spoken to amendments in this group, which concern how Clause 6(1) proceedings and closed material procedures will operate in practice. The noble and learned Lord, Lord Goldsmith, was right to expect that the Government will take these issues seriously. In embarking upon these kinds of procedures, I assure not just the noble and learned Lord but the whole Committee—as I have sought to do during our deliberations—that these are matters on which the Government have given considerable care to putting the proper balances and provisions in place. Indeed, that goes without saying to the amendments that have been proposed in this group, although I reiterate the point, which I think I made earlier in Committee, that it is the intention that this should apply to a very small number of cases; nevertheless, it is important that the provisions are well considered and thought through.
I say to the noble Lord, Lord Dubs, and indeed to others who in earlier debates have almost apologised for not being a lawyer, that my fellow lawyers who are present will know that the questions that come from people who are not lawyers are sometimes the ones that are the most penetrating and that you have to be on your toes for. Those who are non-lawyers should not shy away from a very full and active participation in these deliberations. Very often, they raise the issues that put us on our mettle.
Taking Amendment 69 first, the provision that the amendment would remove allows rules of court to enable or require the court to determine proceedings without the need for a hearing. I hope that I can provide reassurance that there is no sinister intent behind this provision. The intention of the Bill is that civil proceedings in which closed material proceedings are required will continue as regular civil proceedings as best they can, save only for the sensitive material elements that will be considered in closed session. It is emphatically not the intention that the whole proceedings should pass through the gateway to being closed proceedings in their entirety.
However, it is important that the Bill does not interfere in any way with the court’s ability to exercise its normal case management powers; for example, where decisions can be made on the papers without a hearing, particularly if the parties have agreed such a course. This is well precedented in other closed material proceeding contexts, most recently paragraph 2(2)(b) of Schedule 4 to the Terrorism Prevention and Investigation Measures Act 2011. The rules made under that paragraph provide for certain matters to require a hearing, with exceptions where a hearing is not required, such as with the agreement of the parties or where the matter has already been determined. It is that kind of situation that is anticipated by the provision in the Bill.
Amendment 69ZB would insert, rather than remove, some specific requirements for rules of court to contain certain provisions concerning the burden and standard of proof and the reliability and admissibility of evidence under a closed material proceeding. The Committee will have heard the noble and learned Lord, Lord Woolf, indicate that these are issues where, particularly when dealing with situations such as this where the judiciary takes a very close interest in trying to ensure fairness, there can sometimes be dangers in being too specific. Again, I emphasise the point that the intention is for the proceedings to continue as regular civil proceedings as far as possible. The very purpose of closed material proceedings is to ensure that all relevant material can be fully considered by the court in coming to a judgment without damaging national security interests. It follows that the disclosure of sensitive material to the court and special advocate will be full and open, precisely because it is not being made more widely.
I will look at each of the various elements of this amendment in turn. The amendment seeks to introduce a new subsection (6) to Clause 10, paragraph (a) of which relates to the burden and standard of proof. I assure the noble Lord, Lord Dubs, that evidence adduced here will be subject to challenge by special advocates. On more than one occasion in Committee, reference has been made to comments from judges, particularly Court of Appeal judges, who have looked at the body of evidence and transcripts and have commented on the rigour with which special advocates undertake this responsibility. As drafted, the change in the burden of the standard of proof would apply to any proceedings in which a declaration under Clause 6(1) had been made. It would impose a burden of proving any fact on a party that holds the sensitive material, and requires facts to be proven to a high degree of conviction.
Therefore, in damages claims against the Government, if the Government hold material that cannot be disclosed in open court for reasons of national security, this amendment would require them to disprove the claims made against them to a high degree of conviction. I accept that the phrase “high degree of conviction” is a novel term, but it is presumably intended to import something more like the criminal standard of proof into these civil proceedings. This would place too high a burden on the Government. There would be no requirement on the claimant to prove their claims, only on the Government to disprove them, so not only would the standard of proof be raised but the burden would be reversed. Similarly, where another party in proceedings held the sensitive material, they would be placed at a significant disadvantage. This change in the burden and standard of proof is especially hard to justify when it is remembered that there may well be cases where the closed aspects of the proceedings may be only a very small part of the overall proceedings.
Proposed new paragraph (b) would require the Secretary of State to make full disclosure of sensitive material to the court and special advocate, along with the information on the reliability of that evidence and the existence of witnesses. There is already sufficient provision for this in the Bill. Clause 9 requires rules to be made to ensure that normal disclosure rules still apply to closed material proceedings, subject to Clauses 7, 8 and 10. Nothing in these clauses affects the normal rules of disclosure where, in relation to judicial review, for example, a duty of candour is required of the parties.
Therefore, the Secretary of State will in any case be required to put all information before the court, including, in closed proceedings, all information even if that may be viewed as damaging to national security. We believe, therefore, that this amendment is unnecessary. With regard to proposed new paragraph (b)(ii)—the part of the amendment that would require disclosure of the reliability of evidence—it is the case that, in practice, assessments of the accuracy and reliability of the evidence on which the Government are relying are provided to the court and can be used to test the evidence. We believe, therefore, that this part of the amendment is also unnecessary.
Proposed new paragraph (c) deals with the exclusion of evidence obtained by torture. Courts at both domestic and international level have established that the use of evidence obtained by torture is not permitted in legal proceedings. This principle of international law, contained in Article 15 of the United Nations Convention Against Torture, is one that the Government resolutely support, and it would apply in closed material proceedings as it would in open proceedings. The special advocate would be able to challenge any evidence adduced by the Secretary of State in closed proceedings on the grounds that it was obtained by torture or inhuman or degrading treatment. It would be for the judge to decide, on the balance of probabilities and based on the arguments of both parties, whether this challenge was substantiated and, if so, whether the evidence can lawfully be admitted, and, if so, what weight can be placed upon it.
Following the Judicial Committee of your Lordships’ House in A and others v Secretary of State for the Home Department (No 2) in 2005, a court cannot admit evidence if it concludes, on a balance of probabilities, that it was obtained by torture. There is, therefore, existing protection against the use of torture evidence. To increase the evidential threshold in the way that this amendment purports to do would be to allow a special advocate to introduce a new standard of proof to proceedings, simply by raising the question of torture. The House of Lords has previously held that the current standard is the proper one and is in accordance with our international obligations, not least the UN Convention Against Torture. We believe, therefore, that there is no need to change it.
Proposed new paragraph (d) would render inexpert opinion evidence inadmissible. Inexpert opinion evidence is allowed in regular civil proceedings in certain circumstances, such as where the opinion or belief of a witness is relevant to an issue or is a way of conveying facts personally perceived by him or her. Such evidence can be valuable and to exclude it completely in closed material proceedings could have a detrimental effect on the ability of courts to reach decisions in those cases. However, it is important to emphasise that in closed material proceedings it remains open to the judge to decide what evidence to accept, and what weight to place on that evidence. The special advocate will be able to cross-examine witnesses, expert or inexpert, in order to establish the veracity and reliability of their evidence. We believe that with this safeguard in place, and due to the potential importance of non-expert opinion evidence, the amendment should be rejected.
Proposed new paragraph (e) would restrict the use of hearsay evidence. We heard the comments of the noble Baroness, Lady Manningham-Buller, who feared that this particular part of the amendment could have a very chilling effect on people coming forward and engaging in work on behalf of the security services. It is important to reiterate that the Bill does not seek to change the general approach in relation to evidence, save to ensure that material that would damage national security if disclosed is only provided to the court and the special advocate. Again, the role of the special advocate here is to challenge the evidence, as a normal legal representative in regular civil proceedings would do. Hearsay evidence would be admissible under the Bill, as it is in other closed material procedures and in civil proceedings generally. The special advocate could challenge the evidence as to its credibility and the weight to be attached to it as robustly as any other advocate.
Proposed new paragraph (f) seeks to add a provision permitting the court to strike out a case where there is any failure to comply with the directions of the court. As a general proposition, that is part of the court’s general case management powers. More specifically, in the context of the closed material procedure, the Bill contains in Clause 7 a requirement that rules are made to give the court certain powers where a party refuses to disclose material but has not received the authorisation of the court not to disclose. These powers would include directing that a party make such concessions as the court specifies, which could include having to concede the case altogether.
I hope that this explanation gives some reassurance as to the nature of what the Bill sets out to achieve in procedural terms, and explains why the Government consider that the two amendments proposed—which I recognise have been moved and talked to with the objective of trying to ensure fairness—are not in fact necessary to address the concerns from which they derive.
Lord Thomas of Gresford
The amendment is not related to intercept evidence. Intercept evidence is part of it, but I am saying that the open civil proceedings should continue and that the judge should come to his conclusion on admissible evidence. Intercept is an illustration. Indeed, my amendment arises, as the noble and learned Lord will remember, from his unusually equivocal answer last Tuesday when I asked him the direct question.
Lord Wallace of Tankerness
I apologise if I was equivocal, but I thought that I had indicated that the issue revolves around the use of intercept evidence, as the noble Lord, Lord Pannick, mentioned when he quoted what I said. I rather thought that the quote he used was quite unequivocal, which caused the surprise.
My noble friend asked whether the purpose of the Bill was to make inadmissible material admissible to support the Government. It is worth indicating that the purpose behind the closed material provisions is to ensure that the court can consider as much relevant material as possible, be it helpful or unhelpful to the Government. The most obvious example is material that might otherwise be excluded by PII, but material that might otherwise be inadmissible because of RIPA provisions we seek to make admissible in these provisions.
The noble Lord, Lord Pannick, indicated that the Government had not considered intercept before in closed material proceedings. Section 18 of RIPA, as amended, has a long list of contexts, including any proceedings before SIAC. The most recent time when Parliament considered this matter was in paragraph 4(2) of Schedule 7 to the Terrorism Prevention and Investigation Measures Act 2011. Were the amendment to be incorporated into the Bill, a judge in a closed material proceeding could not consider relevant intercept material because the law prevents its disclosure in open hearings.
Paragraph 9 of Schedule 2 includes provision for an amendment to Section 18 of the Regulation of Investigatory Powers Act 2000 to allow for intercept material to be admitted in any Section 6 proceedings. It is our view that the amendment is necessary if intercept material is to be adduced or disclosed in the closed part of any proceedings where the court has declared that a closed material application may be made. If Section 18 is not amended, the current prohibition on disclosure in Section 17 of RIPA will prevent intercept material being adduced within such proceedings. Consequently, it would narrow the scope of material available in the case and could undermine the wider purpose of CMPs, which is to make available as much material, helpful or unhelpful to the Government, as possible.
I have highlighted that a judge can consider intercept material in reviewing an application for a CMP or in proceedings where a declaration has been made. It is right and proper that this is the case, but I accept, and it is evident from the debate, that it is a matter that attracts views on different sides. The noble and learned Lord, Lord Goldsmith, referred to some of the history of the use of intercept evidence.
Some surprise was expressed in the report of the Joint Committee on Human Rights in response to the Government’s Green Paper on justice and security. Paragraph 49 states:
“Since one of the driving forces behind the Green Paper is said to be the Government’s desire to ensure that, wherever possible, evidence is put before a court rather than excluded from its consideration, it does seem surprising that the admissibility of intercept as evidence is not included within the scope of the Green Paper”.
It goes on:
“We accept that the Green Paper is mainly concerned with civil proceedings, and the question of the admissibility of intercept as evidence has tended to focus on its use in criminal prosecutions. However, intercept is also relied on by the Government in a number of other contexts and we find it surprising that the Government is going to such trouble to make sure that evidence can go before a judge when material which sometimes forms a substantial part of the material relied on by the Government will still not be admissible under the proposals in the Green Paper. There is now a very long history of Reports, from this Committee and others, urging legislative reform to enable the admissibility of intercept. In our Report on the TPIMs Bill, we expressed concern about what appeared to be the significant decline in the number of successful prosecutions for terrorism offences over the last few years ... We reiterate our and our predecessor Committee’s recommendations that legislation to provide for the admissibility of intercept as evidence be brought forward as a matter of urgency”.
I accept that that goes wider than is specific to this Bill, but it indicated some surprise that, in the Green Paper at least, the Government had not flagged up the possible use of intercept, if indeed the intention is indeed to get as much relevant material before the court as possible. Therefore, the Government have made provision in the Bill for that to happen.
Lord Lester of Herne Hill
My Lords, I am very grateful to my noble and learned friend. I agreed to those paragraphs as part of the Joint Committee on Human Rights, and it is perfectly right to draw attention to them. That is why I support the use of intercept evidence in the context of this Bill. However, the noble and learned Lord, Lord Woolf, placed justifiable reliance on the fairness of judges and the overriding interest in the interests of justice in interpreting the Bill. Would my noble and learned friend accept that when we come at least to Report, we need to consider the safeguards?
This Bill restricts judicial discretion in certain ways. It does not leave it at large. It does not leave the overriding interest in natural justice, or the pursuit of justice, as a free-standing consideration that trumps everything. Therefore, will my noble and learned friend consider with an open mind—I am sure he will—questions such as AF disclosure to special advocates as one of the safeguards to try to do the best we can to secure equality of arms in this context?
Lord Wallace of Tankerness
My Lords, that perhaps goes wider than the specific issue of intercept evidence. However, I have of course indicated on a number of occasions a willingness to engage.
For completeness, my noble friend asked about the United States procedures. While they are similar in many respects, it is important to remind ourselves that the legal frameworks between the United States and the United Kingdom also differ. There are significant operational differences, so comparisons are of limited value, but it is certainly an issue on which I am willing to engage with my noble friend.
It is clear that there are different views on this and, in his memorandum to the Joint Committee on Human Rights, Mr David Anderson QC, the independent reviewer of terrorism legislation, said:
“The major benefit of existing CMPs are that they allow the court or tribunal to decide the issues before them on the basis of all the evidence—including the intercept evidence that is otherwise not admissible in legal proceedings. If a CMP is to be introduced into civil proceedings, it should be on condition that section 18(1) of RIPA be amended so as to add civil litigation CMPs to the list of proceedings in which intercept evidence can be admitted”.
On the point made by my noble friend Lord Marks, I think there is a perception that this will always be in the interests of the Government. I accept the decision of Mr Justice Ouseley in the case of AHK, which I think related to naturalisation and so would come out separately under Clause 12 but under a judicial review. The Secretary of State might well, in a judicial review, come to a particular decision because she had access to material from intercept. If that evidence is not to be made available, and is to be withheld from the court that is considering a Secretary of State decision that is being judicially reviewed, justice might well not be done to the claimant.
The point is that other statutory CMPs can hear RIPA material—intercept evidence. Therefore, the exception to the rule would be if we did not allow this RIPA material to be held in civil proceedings, which could be to the detriment of claimants bringing cases against the Government. It is very clear that this is an issue that we will wish to consider.
On the point made by my noble and learned friend Lord Mackay of Clashfern, I accept that there are important differences between criminal procedure and civil procedure. I am advised, too, by my noble friend Lord Henley that your Lordships will have another opportunity to explore this issue when he answers an Oral Question from the noble and learned Lord, Lord Lloyd, tomorrow on the wider issues relating to intercept evidence.
There are evidential differences between criminal and civil proceedings, so the fact that intercept evidence may be used in closed material proceedings of a civil nature does not read across to criminal cases where the disclosure obligations on the prosecution to the defence are much stronger than the corresponding disclosure obligations in civil proceedings.
I have sought to address the specific points of procedure that were mentioned by my noble friend Lord Hodgson and the noble Lord, Lord Dubs, as well as to deal with the issue of intercept evidence. I hope that, having heard these arguments, the noble Lord will withdraw his amendment.
Lord Thomas of Gresford
Perhaps I may repeat that I do not, in my amendment, refer only to intercept evidence. It deals with what is admissible evidence in civil proceedings. At the end of that, I am still left in some doubt. I started with the position that the noble and learned Lord, Lord Woolf, enunciated that a judge would be able to do what was justice in a particular case and would not require direction. But it struck me when we discussed the matter last Tuesday that this was a means of putting before the judge—the decider of the facts—material that he would never otherwise see if the proceedings were open. It is fundamentally unfair that that should be so.
Is that the position of the Government? Do they really want the judge to decide not whether closed proceedings should be held, which is what Section 6 is about, but in the trial of the issue—the determination of who wins the case—whether to use material, of which intercept evidence is one example, that if there were no such proceedings would never play a part in the trial? Is that the position?
Lord Wallace of Tankerness
My Lords, there is a danger of going over some of the ground that we went over at an earlier stage. There are two stages to what we are proposing. There is what we have commonly come to describe as the gateway stage and there is the subsequent stage where individual pieces of evidence are argued over and special advocates make representations on those individual pieces of evidence. If the impression has been given that somehow intercept evidence is in a category of its own and will not be allowed to be challenged by the special advocates, then that is a wrong impression. Like other pieces of evidence, it will be subject to robust argument and debate overseen by a judge who, as the noble and learned Lord, Lord Woolf, said, is there to ensure that there is fairness. It is not a question that somehow such evidence is in a special category and in a box not to be challenged and not to be talked about.
Lord Hodgson of Astley Abbotts
My Lords, I am extremely grateful to my noble and learned friend for the very full response he has given to the debate. Obviously, there is a lot of information for us to absorb and think about during the Recess before we get to the next stage of the Bill.
When a couple of non-lawyers such as the noble Lord, Lord Dubs, and I propose an amendment and we are followed by a past Lord Chancellor, a past Attorney-General, a past Lord Chief Justice and a past head of the security services, we need to be pretty careful about what we are doing and sit up and listen. The purpose of the amendments was to improve the balance and the fairness. They were probing amendments at this stage and intended to shine a light of transparency wherever and as far as we could.
The noble and learned Lord, Lord Woolf, argued about proportionality. He said that this would apply in only a limited number of cases in civil proceedings and that the issue of judicial discretion could carry the day. However, in previous debates I have said how in a very few cases that could involve the minority community and in particular the Muslim community, which could have a disproportionate impact on the way that our society operates and the way that justice is seen to be operating. I have referred to my own visits to schools and so on as part of the Lord Speaker’s outreach programme, where one sees how extremely sensitive these communities are about the way our judicial system works. Therefore, I am concerned about that. I am also concerned about what the noble Lord, Lord Beecham, said about mission creep. His Amendment 69A concerns another area of danger in Clause 11—where the mission could be expanded quite a lot on the basis of regulation—which we all need to explore.
The noble Baroness, Lady Manningham-Buller, feels that I have got it in for the security services. I have not got it in for the security services at all—
Lord Reid of Cardowan
I thank the noble Lord for that remark. Again, I am not on the Front Bench so I am not making their arguments for them. I am making my argument. As far as the security situation is concerned, whatever is said by the Front Bench, for more than half of the past 10 years we have been either at “severe”—the second highest level—or “critical”, which is not only a likely but an imminent threat of terrorist attack. This demonstrates the fact that we are discussing not a normal security situation but a very difficult one—not least as we approach the Olympics.
Lord Wallace of Tankerness
My Lords, I thank all noble Lords who have tabled these amendments and who have taken part in this debate. The noble Lord, Lord Reid of Cardowan, has given a context to these deliberations. I think that he would agree with us—and I mention here the intervention of my noble friend Lord Lester—that justice or security is not a binary choice. This is a justice and security Bill, not a justice or security Bill. As we deliberate and go through these provisions, it is important that we seek to uphold the national security, which is a responsibility above all on the Executive, and also ensure that the values of justice—which is a cornerstone of what we believe in and what makes us as a nation—are upheld.
The comments of the noble Lord, Lord Reid, may also have some pertinence as we move to the next stage of the Bill, which deals with the Norwich Pharmacal jurisdiction. He pointed to the importance of trust and the consequences of breach of trust.
As an introductory comment, perhaps I may say to the noble Lord, Lord Pannick, that my noble friend and I will write to him about the point he raised about the last set of amendments. I do not think it would be appropriate, when dealing with these amendments, to rerun the arguments put forward for the previous group. However, before Report stage, we will write to noble Lords who took part in that debate.
Understandable concerns have been raised. In many Bills I have taken part in, quite proper discussion takes place about the use of secondary legislation, its appropriateness, the circumstances under which it should be used, and its actual nature. If Amendments 69A or 70 were to be accepted, as my noble friend Lord Hodgson has said, it would remove the order-making power entirely. The question posed by the amendments is this: why do we need the order-making power at all?
Perhaps I may set out why the Government arrived at the approach we have taken in the Bill with regard to the definition of “relevant civil proceedings”. In the Green Paper, the Government consulted on making closed material proceedings an option for any civil proceedings in which sensitive material was relevant. However, the firm steer from the consultation exercise was that the scope of the Bill should be narrowly focused. That was a point made by my noble friend Lord Marks and in the comments of my right honourable friend the Lord Chancellor. After careful consideration of the consultation responses, the Bill provides that closed material proceedings can be used only for hearings in the High Court, the Court of Appeal and the Court of Session. It is in these courts that the difficult cases have arisen, so the Government have defined relevant civil proceedings narrowly in the Bill.
If that is the case, why do we need an order-making power to extend the definition? As was indicated by the noble Lord, Lord Soley, when he quoted from the memorandum that was submitted to the Delegated Powers and Regulatory Reform Committee, the point is that the case for extending CMPs to another civil context may emerge in the future. Where there is a case for change, it is important that there is a mechanism that will allow CMPs to be used swiftly in relevant proceedings. Naturally, we may be asked if we have any particular case in mind. I reassure your Lordships that if there was an obvious example of a difficult area, we would be making the case for its inclusion in the definition of relevant civil proceedings today. But it is possible that difficulties may arise in areas wholly unexpected or unanticipated, and it would then be important that CMPs were available as a matter of some urgency. Noble Lords may be aware that Parliament has already legislated 14 times to provide CMPs in different contexts, and therefore it is not inconceivable that some new context that we cannot foresee today will arise in the future in which they will be necessary.
Perhaps I may say in response to the noble Baroness, Lady Turner of Camden, who asked about employment tribunals, that legislation is already in place with regard to closed material proceedings in such tribunals. Indeed, it was the subject matter of the deliberations of the Supreme Court in the case of Tariq, the judgment of which was reported either last year or earlier this year. The current review of employment tribunals by the Department for Business, Innovation and Skills does not have anything to do with closed material proceedings.
The crucial thing about the power is that it is subject to the affirmative procedure, which means that the exercise of the power would have to be debated and approved in both Houses before being made. Before gaining that approval, the case for change would have to be made to each House on the basis of evidence that is sufficient to convince both Houses. I cannot for a moment imagine that it would be given a clear ride. That is a safeguard and it means that rather than standing here and trying to persuade your Lordships that a broader definition of relevant civil proceedings is needed for the sake of flexibility, the Government will have to put their case at the time of seeking approval of an order.
As has been said, the order-making power has been the subject of scrutiny by both the Delegated Powers and Regulatory Reform Committee, of which the noble Lord, Lord Soley, and my noble friend Lord Marks are members, and the Constitution Committee. The Government appreciate the careful consideration that both committees have given the power. I note that neither committee recommended the removal of the power, but it is fair to note, and as was pointed out by the noble Lord, Lord Soley, and quoted by the noble Lord, Lord Butler, that the Delegated Powers and Regulatory Reform Committee had reservations about the scope of the power. However, it concluded tentatively but nevertheless clearly that it would not recommend that the delegation of powers is inappropriate.
No doubt members of the committee will know better, and I will come on to address the issue of coroners’ courts shortly, but paragraph 6 of its report indicated that one of the concerns was extending the use of this power to those courts.
Lord Soley
The key point is that instead of doing it with a delegated power, we do it with a fast-tracked Bill. I hope that the Minister will deal with that because I would point out to him that the information given by both the Ministry of Justice’s own department and the Cabinet Office suggest that it is necessary that it be done quickly. However, that is not in the notes to this Bill. It is almost as though they have not thought about it.
Lord Wallace of Tankerness
I certainly will come on to that. Both the Constitution Committee and the Delegated Powers and Regulatory Reform Committee raised means of proceeding as alternatives to the power. The Constitution Committee asked whether the super-affirmative procedure was more appropriate, similar to that set out in Part 1 of the Legislative and Regulatory Reform Act 2006. In particular, that procedure would enable parliamentary representations to be made about a draft instrument and for the Minister to make changes to the instrument in the light of those representations. The Government indicated in their response to the committee that they do not agree with that approach. The powers in Part 1 of the 2006 Act are wide-ranging. Under the order-making power in the Bill, there will be at the heart a simple question: should the CMP procedure under the Bill, then the Act, be available for a particular court or tribunal? The affirmative procedure allows for a straightforward yes or no answer.
As the noble Lord, Lord Soley, has indicated, the Delegated Powers and Regulatory Reform Committee asked what would be the advantage of the affirmative procedure over a short emergency Bill. Another Bill to address a narrow problem may well be unnecessary given that the detail of how CMPs should work will have been discussed during the passage of this Bill. Although such legislation might be passed quickly if the circumstances required it—it is always possible to bring forward emergency legislation—the affirmative procedure may also be exercised in urgent circumstances. While it is not for me to say what the agenda of the Constitution Committee would be, it would not seem to be beyond the wit of appropriate parliamentary committees to consider an affirmative order if one were brought forward.
On the whole, the Government consider that the affirmative procedure has the right mix of speed and accountability. However, in situations like this where people have put forward important points following deliberation in the various committees as to what the balance should be, we should reflect on them. The Government believe that they have struck the right balance, but there has been an important elaboration in the course of your Lordships’ debate of the understanding of what lay behind the committee’s considerations.
Lord Goldsmith
Before the noble and learned Lord moves on, can he say something about why the Government do not see advantages in the super-affirmative procedure which, as he has indicated, would allow at least some adjustments to be made in the event that an additional set of civil proceedings were added to the list which might not be covered by the existing legislation?
Lord Wallace of Tankerness
I sought to indicate why we do not agree with the approach of the Constitution Committee. We think that the powers set out in Part 1 of the Legislative and Regulatory Reform Act 2006, which lead to the super-affirmative procedure suggested by the noble and learned Lord, are not appropriate. If the procedures are in place, it should be a straightforward yes or no decision as to whether a particular tribunal or civil proceeding is added.
I want to come on to a point made by my noble friend Lord Lester. He suggested that there would be no opportunity to do anything different in a Bill. The provisions in the other subsections allow for some powers,
“to make supplementary, incidental, consequential, transitional, transitory or saving provision”,
in an order. If there was a particular feature—I will suggest in a moment what some of those features might be—it could be taken into account within the terms of the order.
One of the other concerns that has been expressed in the debate relates to the possible extension of CMPs to inquests. Following consideration, and particularly taking into account the responses to the consultation on the Green Paper, the Government decided not to cover inquests in the Bill. Both the Constitution Committee and the Delegated Powers Committee discussed whether the order-making power could be used to include inquests at the coroner’s courts, the Delegated Powers Committee considering that the power could be used in this way.
The Government’s view is that the order-making power could not be used in this way. This is because we believe inquests are sui generis inquisitorial proceedings. While they are clearly not criminal, I believe they are inquisitorial rather than civil proceedings. Unlike civil proceedings with parties who may seek to settle or withdraw at any stage, an inquest must be concluded in order to establish the reason for the death. An inquest is a limited form of public inquiry to determine who the deceased was and when, where and how the deceased came by his or her death. There are no parties, only properly interested persons who are entitled to examine witnesses.
We believe there would be necessity for primary legislation if this was to be extended to inquests and by extension to fatal accident inquiries in Scotland.
Lord Marks of Henley-on-Thames
I am sorry to interrupt my noble and learned friend but I am just confused as to how the Government can argue that a power which may be exercised to add or remove a court or tribunal in non-criminal proceedings—which by his own admission these are—cannot be said to extend to a coroner’s court. It was that problem that exercised the Delegated Powers Committee and we saw no reason for the conclusion for which my noble and learned friend is arguing.
Lord Wallace of Tankerness
We shall have to agree to differ. Considerable thought has been given to this and we believe that it would not be possible to extend the power here. I am always wary of putting “for avoidance of doubt” clauses into Bills, and I know parliamentary counsel also have anxiety about these things. If that helped, I would certainly be prepared to look at it to put that beyond doubt, although I do so with the caveat that by putting in such things, you have to watch you do not stir up more problems than the ones you are trying to resolve.
We do not believe that the order-making power here can be extended by this coalition Government or any future Government to inquests without primary legislation.
I would like to pick up on the points made by my noble friend Lady Berridge and the differences between civil proceedings, between parties and the inquisitorial nature of a coroner’s inquiry. The Government recognise that inquests have a unique role in our justice system. In inquests where intelligence evidence cannot be disclosed without risking national security and public safety, we will continue to use existing arrangements. In such circumstances, the Government can make a public interest immunity application to exclude the material. The coroner will exclude the material if he or she decides that the public interest in withholding the information outweighs the public interest in disclosing it. An inquest can also be converted into an inquiry under the Inquiries Act 2005. My noble friend made that point in regard to the inquest into the death of Azelle Rodney which could not proceed because neither the coroner nor the jury could see highly sensitive material. To allow all the material to be seen, the inquest was converted into an inquiry with terms of reference mirroring the purpose of the inquest.
With regard to the Mark Duggan case, it would be inappropriate for me to comment at this Dispatch Box on how the Inner North London and North London coroners propose to handle any sensitive material in their conduct of the inquest into the death of Mark Duggan. It is for the coroners concerned in these cases to decide the best course of action.
Finally, Amendments 70A and 70B would limit instead of remove the order-making power. Amendment 70A would omit the aspect of the power which would enable the adding or removal of a court or tribunal. We believe it is the key aspect of the power and so we could not accept it being limited in this way.
Amendment 70B would omit the aspect of the order-making power which enables orders to be made which amend or repeal any enactment, and I fully understand why Parliament is always wary of any such power. The provisions are for the situation where the definition of “relevant civil proceedings” is changed and certain supplementary or consequential changes are needed. An example of this is in subsection (4), and I hope that it meets the specific concerns raised by my noble friend Lord Hodgson. So, if a tribunal is added, Clauses 6 to 11 of the Bill may need to be adapted for use in relation to that tribunal. The power could be used to explain what “rules of court” mean for the tribunal because tribunals have “procedural rules” rather than “rules of court”. These sorts of differences would be reflected in the use of that power.
I hope I have been able to explain why the Government reached this position.
Baroness Williams of Crosby
Perhaps I may press my noble and learned friend one stage further. The material says that a court can be added or excluded as the case may be, and to a lay person saying that it does not apply to a coroner’s court sounds like a Red Queen in Alice in Wonderland announcing that what seems obvious is the opposite of what is obvious. Will my noble and learned friend consider either dropping paragraph (a) or making a particular reference to the exclusion of coroner’s courts so that those of us who are not deeply into legal language would be able to understand the Government’s intention?
Lord Wallace of Tankerness
I take the point made by my noble friend Lady Williams. I said I would be willing to look at words like:
“for the avoidance of doubt this does not include coroner’s courts”.
I caveated it because I am always wary of parliamentary draftsmen finding 10 reasons why that will mean 20 different things. In that spirit, I hope she will be reassured that not only do we not intend to include inquests, but we do not believe that the wording here does include inquests. However, I am prepared to look at that to see whether there is a wording which will put that beyond doubt and reassure those who think that there is no belt-and-braces position as things stand.
I have sought to give reassurance on these important issues, and particularly it is important that Parliament scrutinises the powers available to Government by secondary legislation, perhaps a fortiori in circumstances such as this. I will reflect on what has been said in the course of this Committee’s discussion.
Lord Beecham
My Lords, I refer first to the speech of my noble friend Lord Reid of Cardowan who had a long, distinguished political career crowned by his time as Home Secretary. He is perfectly right to remind us of the serious threats that might affect this country’s security and the change in the world in which we live. But as the noble Lord, Lord Thomas of Gresford, implied, what we are looking at in this part of the Bill is not an area which would open up this country to any particular threat of that kind. We are talking about closed material procedures in civil proceedings in which if there were to be a threat to security from the disclosure of documents, the Government can effectively pull the case. They do not have to disclose the documents. The cost of that will take another form but it is no cost to national security, so I hope the noble Lord will be comforted by that. He may have a more relevant point when we come to the next amendment.
My noble friend, on taking office as Home Secretary, famously described the Home Office as he then found it as “not fit for purpose”. The amendments that we are discussing this afternoon are intended to make, so far as possible, this part of the Bill fit for purpose because—as many of your Lordships have indicated—currently that is not the case.
That is clearly the view of the Delegated Powers Committee, although it does not go so far as to propose a particular amendment. I remind the Minister that the Committee refers to,
“the unconstrained nature and extent of the provision that might be made under them by this or any future government”,
under the proposals in the Bill as they now stand. That is a pretty wide description of the scope that the Delegated Powers Committee was considering and, as I said in moving the amendment, it then invited the House to consider whether there should be amendments to restrict that scope or include any safeguards. The noble and learned Lord was saying the answer to that should be no so far as your Lordships’ House is concerned.
Having listened to the closing remarks of this speech, I hope he will think further about that matter, because it does not seem to leave us in a very satisfactory position. The general view of those who have spoken would be to prefer primary legislation, however expedited, rather than secondary legislation—which effectively cannot be amended—to add to the scope of the civil proceedings referred to in the Bill. I beg leave to withdraw the amendment.
Lord Butler of Brockwell
My Lords, I sense that it would be convenient for the Committee if we finished this debate before the dinner hour, so I shall confine myself to just two or three sentences. I think that the noble and learned Lord, Lord Falconer, has made all the points that I want to make, as has my noble friend Lady Manningham-Buller.
I am one of your Lordships’ representatives on the Intelligence and Security Committee. We visited the United States and our experience would endorse what Mr David Anderson said—that the flow of intelligence from the United States is being limited. I do not want to exaggerate this but the point is that the trust of the US has been weakened and we need to restore that trust. It matters not that the grounds for the breaking of that trust may not be justified. It has been diminished and, unless we can respect the control principle completely and unless other countries believe that information that they give to us will be protected in all circumstances, that trust cannot be restored. So I absolutely agree with the noble and learned Lord. We do not want to give the courts let-outs and we do not want to have a balance; if we have any exceptions, we will not be completely trusted. The responsibility must rest on the Secretary of State and only if that happens can other countries be assured that their confidences are safe with us.
Lord Wallace of Tankerness
My Lords, I thank all noble Lords who have contributed to this debate. Initially, my noble friend Lord Lester set up the framework of what a Norwich Pharmacal order is like and how it is sought. I am particularly grateful to the noble and learned Lord, Lord Falconer of Thoroton, for very clearly indicating some of the consequences of a Norwich Pharmacal order being granted, unlike what we were debating earlier in terms of civil proceedings in an action for damages where it is always open to the Government to settle or to abandon a case or a defence, rather than put information into the public domain. In this case, we are dealing with a court order requiring disclosure.
This is a difficult issue and one to which we have given considerable thought. The aim of a Norwich Pharmacal application is to force a third party who is mixed up in the suspected wrongdoing of another to disclose information that the claimant needs. In the case of sensitive information, this has usually been for another set of legal proceedings elsewhere, often overseas. It is an equitable remedy developed, as has been said, in the intellectual property sphere. However, since 2008 there have been no fewer than nine attempts to use this jurisdiction in relation to disclosure of sensitive material, such as secret intelligence, which either belongs to the United Kingdom Government or which our allies have shared with us.
As has been said, the Government do not have an option to withdraw from or seek to settle these proceedings. If a judge orders disclosure and a PII claim is unsuccessful in relation to the material, there is no option other than to release the sensitive material. We have had experience of the damage done to our interests of national security—it has been referred to in more than one contribution to this debate—in the dramatic effect of the Binyam Mohamed case on our intelligence-sharing relationship with the United States.
My noble friend Lord Lester and the noble Lord, Lord Pannick, said—it has been said in a number of discussions around this issue—that no national security information was disclosed in the Binyam Mohamed case; it had already been put into the public domain in the United States. The real concern arises out of the Court of Appeal ordering that seven paragraphs which had been redacted from the Divisional Court’s judgment and which contained a summary of US intelligence reporting should be restored to the judgment despite the existence of a PII certificate from the Foreign Secretary. A critical factor in the Court of Appeal’s reasoning was that a court in the United States had made findings of fact directly relevant to the content of that reporting.
The judge in the United States case did not put the contents, or a summary thereof, of the United States intelligence into the public domain; he made findings of fact based on allegations about Binyam Mohamed’s treatment made in another case that were not challenged by the US Government. Crucially, knowledge of the content of the United States intelligence reporting was not in the public domain until the publication of the redacted paragraphs following the order of the UK Court of Appeal. It is the means by which the UK had had the information that was the sensitive part and we believe that what has happened since, as reflected by a number of contributions to this debate, not least the contribution of the noble Lord, Lord Butler of Brockwell, has had a real effect on the flow of information.
The noble Baroness, Lady Manningham-Buller, made the point that, although very obviously any immediate life-threatening information in the hands of the United States intelligence services would be handed to us, very rarely does that happen. Obviously, if there was direct information about a possible terrorist attack tomorrow there is no doubt that they would share it with us, but as I understand the nature of the intelligence process, it may be one part of a jigsaw puzzle that does not necessarily mean anything to the United States intelligence people who would normally share it with us, but it might be a crucial part of the jigsaw puzzle for the United Kingdom intelligence services, because it might allow a picture to be made that was not possible before. It is the loss of that kind of material that would spark concern.
The Government have received clear signals that, if we are unable to safeguard material shared by foreign partners, we can expect the depth and breadth of sensitive material shared with us to reduce significantly. Each time a claim is made, our partners must confront the possibility of their secrets being disclosed, even if the case never reaches the point where a court orders disclosure. It is that concern that we seek to address.
Obviously, I recognise that efforts that have been made in framing these amendments to deal with the very difficult issues that we are grappling with. My noble friends Lord Lester and Lord Hodgson have tabled amendments that would restrict the clauses relating to Norwich Pharmacal relief to control principle material. By that we mean the important concept that in intelligence exchanges it is essential that the originator of the material remains in control of its handling and dissemination. My noble friends have rightly observed that, in explaining the Bill, the Government have highlighted the particular difficulty where individuals seek disclosure of material covered by the control principle, but the case for reform goes wider than that. This was acknowledged in the closing comments of the noble and learned Lord, Lord Falconer, and I think that I made reference to it on Second Reading. We must also protect intelligence gathered and generated by our own intelligence services as well. The lives and safety of intelligence service staff, as well as the safety of their sources and the effectiveness of the techniques that they use to gather information, could be jeopardised if information is disclosed. Preventing the disclosure of sensitive material produced through the capabilities of our own intelligence services is as important, I submit, to our national interest as protecting material that has been shared by our allies.
The intelligence services have a legal obligation to protect the safety of sources, including, where applicable, the duty under Article 2 of the European Convention on Human Rights. The secrecy of operations and investigations and the limit or the extent of the intelligence services’ coverage and capability are all of crucial importance and, if they were compromised, it would be harder to prevent terrorist attacks and protect public safety. Limiting the protection afforded by Clause 13 to control principle material would diminish the Government’s ability to protect domestically generated intelligence. We believe that this could have severe impacts on the direct activities of our intelligence services as well as on intelligence-sharing relationships.
On a practical level, limiting the definition to control principle material would be challenging. It is often difficult or unfeasible to separate control principle material from domestic material. For example, there may be correspondence between the intelligence services commenting on control principle material, or assessments based on a mix of domestic and foreign material, which it would be difficult to distinguish between. There are therefore inherent difficulties in identifying what qualifies as control principle material. As has been mentioned in the debate, Mr David Anderson QC discussed these practical difficulties in his recent evidence to the Joint Committee on Human Rights and the control principle itself is part of the broader principle that intelligence relationships should remain confidential.
The amendment in the name of my noble friend Lord Thomas of Gresford would remove the absolute exemption for intelligence service material and rely instead on a certificate-based process for sensitive material whose disclosure would be damaging to the interests of national security or international relations. In a commendably concise intervention, he asked what the justification for the absolute bar is. Unlike in other parts of government, the work of the intelligence services is inevitably covert and secret. We have heard arguments that there may well be cases that would fall under the exemption but where the material sought is not sensitive. The simple fact is that material from the intelligence services sought in Norwich Pharmacal applications is, by its nature, security-sensitive and its disclosure would damage the public interest in safeguarding national security. Applicants do not seek open-source information or other unclassified material from the intelligence services.
I note the point made by the noble and learned Lord, Lord Falconer, about the hypothetical case where he slips. The obvious thing to do there would be to sue the agency, which is the occupier. If it wished to bring in a third party, the contractors, it could do so and all the normal processes would flow from that. All the cases that have arisen under this have been dealing with applications in respect of very sensitive materials.
Lord Thomas of Gresford
My Lords, may I ask a succinct question? The Minister has justified the absolute ban in relation to the security services and has encouraged claimants to sue the British Government, as opposed to suing a foreign Government and making a Norwich Pharmacal application. If the claimant were to sue the British Government, would material in the hands of the security services which had been obtained through a friendly ally be disclosable in Section 6 proceedings?
Lord Wallace of Tankerness
My Lords, I think this is the point. If the claimant were to sue the British Government, if the allegation was that the British Government had been directly involved in wrongdoing—although there has been no such suggestion; I think that would get pretty short shrift—we would come back to what we have said with regard to this whole debate on Section 6 proceedings. We would wish as much information to be before the court as possible. The crucial difference between these proceedings and the proceedings in Norwich Pharmacal, as the noble and learned Lord, Lord Falconer, explained well, is that under civil damages claims, if the information should come out or the court does not allow the material to remain closed, it is still open to the Government to withdraw from the case or to settle the case. The crucial difference between that and Norwich Pharmacal is that if PII is not successful, then there is no alternative but to disclose.
Lord Thomas of Gresford
Is it right that the court would see that material? Would it see the material from a friendly foreign power that was absolutely barred from disclosure in the Norwich Pharmacal proceedings?
Lord Wallace of Tankerness
Yes, the court would see it. If I have got that wrong, I will certainly say so; but I think that that is the whole point of having closed material proceedings. The material can be made available to the court so that the whole picture can be obtained. The Secretary of State retains the option not to put the material into the public domain, although consequences may flow from that.
Lord Lester of Herne Hill
My Lords, I hope that I will not be criticised for seeking easy popularity in this House by saying that I am going to make a very short reply. I regard the dinner hour as something that should happen at the customary time for dinner, and not breakfast. I am conscious that my noble friend Lord Howell of Guildford and his colleagues have another very important debate to come.
I shall simply say this. First, I am extremely grateful for what has been a most important debate. I am particularly grateful to the Minister for his very full reply, so full and so interesting that I think studying it carefully will be very beneficial. I am a bit more pessimistic than he is, and perhaps more so than the noble and learned Lord, Lord Falconer of Thoroton, about the ability to keep the courts away when there are cases of indirect, and not direct, responsibility. There are knotty and difficult questions about the Human Rights Act, the European Convention, extra-territoriality, jurisdiction and so on. I am not yet persuaded that the certification procedure, perhaps extended beyond these amendments, is not the better approach, with limited judicial review. That is something we will need to consider. However, I am grateful to everybody. I agree in particular with the noble and learned Lord, Lord Falconer, that we should seek the minimum necessary to give reasonable and complete assurance.
Finally, I want to say to my noble friend Lady Williams of Crosby that most of what I have learnt about the law was in the United States in the early sixties. It is not really true that the United States has not been a friend of international human rights. On the contrary, whether we start with Nuremburg, the UN International Covenant, the International Criminal Court, or in other ways, the United States has been championing international human rights. The only snag is that it will not apply them in the United States itself in the way that we do. Nevertheless, I learnt most of my international human rights law there and not here. I hope that what I have said may one day be read by the legal adviser to the Department of State, my good friend Harold Hongju Koh, who will understand that I respect its system very much indeed. I also agree with all of those who say that we must find a way of winning its unqualified support in sharing national security information. I beg leave to withdraw the amendment.
Justice and Security Bill [HL]
Lord Wallace of Tankerness Excerpts(11 years, 10 months ago)
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Lord Beecham
My Lords, these amendments seek to confine the definition of “sensitive information” for the purposes of Norwich Pharmacal cases to intelligence effectively held by foreign intelligence services, rather than any intelligence service, including our own. So Amendment 74A would delete in Clause 13(3)(a) the reference to,
“held by an intelligence service”,
which would, of course, embrace our own intelligence services. Under Amendment 76A, Clause 13(3)(b) would cover, within the definition of “sensitive information”, information held on behalf of a foreign intelligence service. Amendment 76C would, at line 13, delete the paragraph so that the whole issue becomes that of a foreign intelligence service.
Amendment 80A, on the other hand, looks at the rather more significant issue of whether,
“disclosure is contrary to the public interest if it would cause damage (a) to the interests of national security”—
which is, of course, accepted—
“or (b) to the interests of the international relations of the United Kingdom”.
The wording of the amendment looks to have been truncated somewhat. The intention is the same as that of Amendment 80, in the name of the noble Baroness, Lady Williams, who is not in her place, but it would leave out reference to,
“the interests of the international relations of the United Kingdom”.
Of course, security matters would remain covered. The question is: what is the import of the Government’s intention to allow removal from disclosure in the interests of international relations?
One can envisage, of course, that international relations might include questions of national security, but there might also be other matters, such as trade relations with other countries. Are we to be obliged to protect documentation which might relate to, or have an impact on, our economic relations with a foreign country? It might not be an ally; it might simply be a trading partner, a country to which we are exporting or seeking to export goods; a country, perhaps, with an undemocratic regime. Why should these matters not be withheld to protect interests of that kind, as opposed to matters of national security? It will be interesting to hear the noble and learned Lord’s justification for that rather broader definition.
I repeat that we accept that the interests of national security are perfectly legitimate and should be protected. I beg to move.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, the noble Lord, Lord Beecham, has sought to explore whether it is possible to define the Norwich Pharmacal jurisdiction in a narrower way than is available under the Bill as it stands. As was well aired in the earlier debate—and, indeed, on the second day of Committee and at Second Reading—because the aim of a Norwich Pharmacal case is to achieve release of information, it is not possible to agree a monetary settlement in order to prevent that information being released.
It is a different situation in damages claims. In this case, the court can still order the Government to release information if public interest immunity is not upheld. It is therefore important that Clause 13 provides the necessary protection for material whose could cause damage to national security or, in the part that these amendments relate to, to the effective functioning of international relations with key foreign partners.
Lord Wallace of Tankerness
My Lords, it is fitting, albeit after the dinner hour, that we come to consider this amendment at the end of our detailed consideration of the Bill in Committee. My noble friend Lord Lester and the noble Lord, Lord Pannick, have proposed an amendment that highlights important issues of principle that we have come back to continually in our debates, particularly when considering Part 2. It covers the values of justice and fairness, and how we ensure a proportionate response when the interests of the safety and security of the United Kingdom appear to conflict with the principle of open justice.
I agree with both noble Lords about the importance of these values. The fundamental rights to justice and fairness have guided the development of the provisions of this Bill from the beginning. I hope it has become clear during our debates, and as I said following the contribution earlier by the noble Lord, Lord Reid of Cardowen, that I do not believe there should be a binary choice between justice on the one hand and security on the other. That seems to be a false choice. The question is what we can do in the best way to maximise our achievement of both aims. The Lord Chancellor made clear in his foreword to the Green Paper that preceded this Bill that:
“These are matters of profound importance which go to the heart of our democratic values and our belief in human rights, justice and fairness. Inevitably they are immensely complex and difficult—but we must not shy away from this debate”.
I do not intend to go over all the points that have been made on this amendment and in earlier debates. Many of them are very much the issues that the Government have wrestled with when trying to formulate the provisions of this Bill. For example, the Government believe that there is scope for securing greater justice and fairness in our approach to civil proceedings. In particular, we have highlighted the difficulties where sensitive national security information is so relevant to the case that the current arrangements require the Government to make a choice between the justice of a fair judgment based on all the relevant evidence, even if that risks damage to national security, and the need to protect the safety and security of this country, even if that is at the expense of costly settlement in relation to serious allegations that the Government believe are unmeritorious. I therefore agree with all noble Lords who have spoken both to this amendment and in our preceding debates that these values are important.
I cannot fully support the amendment because I am not satisfied that the Committee has been given a satisfactory explanation of its effect in practice. It is all very well to agree the principles, but how would the Secretary of State behave differently under the present provisions in the Bill, and how would the courts behave differently? The Bill sets out in clear language the duty and functions of the Government and the courts, and if the Committee disagrees with that formulation, that is the whole purpose of our deliberations both at this stage and the next.
The second point is that the Government view the amendment as unnecessary as the Bill encapsulates the Government’s respect for the interests of justice, fairness and proportionality. I know that it is a matter that we have debated and which I confidently predict we will continue to debate.
Fundamentally, the Government consider that in the very narrow circumstances in which, under this Bill, material may be heard in closed session, such material should be considered by the court rather than excluded from it by a public interest immunity certificate. We must also protect information that is shared with us in confidence or that would inhibit the ability of our security intelligence agencies to keep us all safe if there is a risk that it could be disclosed.
Fairness, justice and proportionality are also reflected in the narrowness of the application of Part 2 of the Bill and the safeguards that are set out there. The Secretary of State must first consider public interest immunity before applying for a declaration that closed material proceedings may be used. Closed material proceedings are available only where disclosure of the material would damage national security and not on some wider public interest ground. Even where the court grants a CMP declaration, those civil proceedings remain entirely open, pending painstaking scrutiny by the court of each piece of material which the Government wish to have heard in closed session. If the court refuses to hear material in closed session, the court has real powers in the event that the Government nevertheless wish not to disclose the material. The court can require concessions or can exclude the material.
Above all, we believe that the CMP proceedings will be fair. I say that with confidence because the Bill makes it absolutely clear that it does not affect Article 6 of the European Convention on Human Rights, which guarantees a right to a fair trial. The Norwich Pharmacal provisions are strictly confined to intelligence service information or to where the Secretary of State has certified that certain types of disclosure would damage the interests of national security or international relations. The Bill makes provision for judicial scrutiny of the certificate.
It is these carefully calibrated provisions that respect justice and fairness and ensure that a proportionate approach is taken to any interference in the principle of open justice. I accept and understand that a number of noble Lords may yet remain to be persuaded by this calibration. It is on these detailed points that I am sure we will continue to look further and use our energies. I will endeavour to persuade noble Lords of the merits of the Government’s position.
I think we have had very useful debates in Committee. I accept that there are a number of issues on which noble Lords in Committee still have to be persuaded, but in relation both to civil proceedings and to the risk arising from the possibility of court order disclosure of sensitive material through the Norwich Pharmacal jurisdiction, I think there has been a general acceptance in most contributions that some provisions were required, albeit in a very small number of cases. I accept and acknowledge that the opposition Front Bench reserved its position on closed material proceeding.
I am conscious that nevertheless there are still points of detail that we will return to on Report. I have sought during Committee to give a detailed explanation of the rationale for the choices that the Government have made in bringing forward these provisions. I hope that that has helped to shed light on where the Government are coming from, and to inform the debate on these crucial, sensitive and important issues.
It is important that we continue these conversations as scrutiny of the Bill continues. As noble Lords are aware, I am keen to continue to engage on these issues outside the Chamber. I am sure that we will not use all our coming weeks in recess to focus on these, but there is a considerable amount of time during which I hope we can engage and consider them. I recognise their importance, and we will, I hope, have an opportunity to reflect and debate these details further on Report after the Recess. In that spirit, I would be grateful if my noble friend would agree to withdraw the amendment.
Lord Lester of Herne Hill
My Lords, this amendment has given the Minister the opportunity to look back on the proceedings in Committee, and it enables me to say that we very much appreciate the way in which he has done so and his open-mindedness. I should also like to say, coming back to Amendment 90, that the role of the Opposition in this area is of great importance. If the Opposition had simply accepted the Government’s position, there would have been very weak scrutiny. That is what happened in the United States Congress when the Patriot Act was introduced, where I am afraid Congress did not do its job properly. That cannot be said to be true of this House.
My noble friend asked: what is the point of Amendment 90—what is it intended to achieve? The noble and learned Lord, Lord Falconer, answered that by referring to the Constitutional Reform Act 2005. The value of having general principles is especially important in this area. We do not have a written constitution. We do not have a constitutional Bill of Rights. We rely on the European Convention on Human Rights under the Human Rights Act as a kind of substitute for a domestic charter of rights.
The Government’s attempt to incorporate principles in the Bill is in Clause 11(5). It is curiously drafted, but it relies, among other things, on Article 6 of the European Convention on Human Rights. I do not think that that is a sensible way to articulate the general principles, which are part of our legal heritage and political system. I would prefer the principles by which we stand under common and statute law to be in the Bill. Amendment 90 is intended only—apparently, this is common ground, because it is what the Government seek to achieve—to ensure that the two principles, which have to be fairly balanced, are taken into account in the way in which Ministers exercise their discretion and the courts exercise and apply the law. I take the point of the noble Lord, Lord Butler, that one does not necessarily need the word “overriding”, but it is in the civil rules of procedure. I am not persuaded at all that the case has been made for an absence of good British principles that are not wholly dependent on Article 6 of the European convention which, for various reasons, does not do the job perfectly.
Having said all that, of course I beg leave to withdraw the amendment.
David Livingstone Bicentenary
Lord Wallace of Tankerness Excerpts(11 years, 10 months ago)
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Lord McConnell of Glenscorrodale
To ask Her Majesty’s Government what plans they have to celebrate in 2013 the bicentenary of the birth of David Livingstone.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, Scotland Office Ministers and officials have met representatives of the Scotland Malawi Partnership to discuss the best way for the United Kingdom Government to mark this bicentenary. The Scotland Office will host a commemorative event at Dover House. The department’s officials are working with other interested parties, including the Scotland Malawi Partnership and colleagues in Whitehall, to ensure that this anniversary is celebrated across the United Kingdom.
Lord McConnell of Glenscorrodale
I thank the Minister for his Answer. On my first ever visit to Malawi I was reminded by the Malawians that Dr Livingstone did not discover Malawi, the Malawians discovered him. They still to this day celebrate his role in the abolition of the slave trade in east Africa. I am aware of the plans for celebrations in Scotland next year, but given that Dr Livingstone was buried at Westminster Abbey and his coffin was covered with a wreath provided by Queen Victoria, I believe that this should be a UK-wide celebration. I would ask the Government to think again about this being simply a Scottish celebration and to ensure that it is celebrated here in London as well.
Lord Wallace of Tankerness
My Lords, I sought in my original Answer to indicate that the Scotland Office has already taken one particular initiative. Scotland Office officials and Ministers, including my right honourable friend the Parliamentary Under-Secretary of State, have been in contact with the Department for International Development. We are also engaged with other Whitehall departments, very much taking on board the point that the noble Lord made. He mentioned his visit to Malawi. It may well be appropriate to place on the record that the Scotland Malawi Partnership is very much the product of a concordat between the Government of Malawi and the Scottish Government of whom he was the First Minister. It is a reflection of his personal commitment to Malawi.
Lord Steel of Aikwood
Will my noble and learned friend consider whether Her Majesty’s Government, or indeed the Scottish Government, might make some contribution to the refurbishment of David Livingstone’s house in Zanzibar? I am in touch with friends in the devolved Government in Zanzibar and I am sure that a small contribution might enable them to provide some matching funds. At the moment the house is full of rather wilted press cuttings. Given the importance of that island in the slave trade which David Livingstone helped to abolish, it would be good if something could be done now.
Lord Wallace of Tankerness
My Lords, I understand that the house to which my noble friend refers was where David Livingstone stayed in Tanzania, in Zanzibar, prior to the start of his final expedition in 1866. There are no current plans for the United Kingdom Government to provide a contribution for the renovation of the building but I am aware of my noble friend’s interests in this matter and I will certainly ensure that his comments are drawn to the attention of the relevant department.
Lord Morgan
My Lords, we are prone to celebrate the more exploitative and squalid aspects of empire in the history of this country and many of its practitioners are celebrated in key points of our squares and roads in the centre of London. David Livingstone surely embodies the humanitarian and idealist strain that we ought to honour, so could we perhaps have a statue of him as well?
Lord Wallace of Tankerness
My Lords, I am not sure about a statue, but the noble Lord makes an important point. It is perhaps worthy of note that in post-colonial times, place names such as Blantyre in Malawi and Livingstone in Zambia have remained while other pre-independence names have been changed. That is a reflection of the esteem in which David Livingstone is held. Some of the themes that he focused on in his life—themes such as faith, education, medicine, the abolition of the slave trade and standing up for those who are exploited—are ones that we would do well to ponder. Maybe the best memorial that we can give him on the bicentenary of his birth is to take seriously the kind of issues that he took seriously in his lifetime.
Lord Flight
My Lords, I am proud of this country’s history, warts and all. However, does the Minister agree that Dr Livingstone is a great model for the sort of person that this country needs today—a hero who is also a righteous person? That is why celebrating his birth is so important.
Lord Wallace of Tankerness
My Lords, I am glad that there seems to be such consensus across the Chamber on this. I reiterate the point that there are many positive aspects to the life, career and work of David Livingstone. I think that his bicentenary will give us all an opportunity across the United Kingdom—and, indeed, in Africa too—to reflect on these issues and to take from them what is really good, and to build on them.
Lord Cormack
My Lords, as it is important that our young people should be aware of the achievements of this very great man, should we not ask Mr Wiggins to cycle round the United Kingdom next year proclaiming David Livingstone’s virtues? Does this not give us an opportunity to congratulate Mr Wiggins on his recent triumph?
Lord Wallace of Tankerness
My Lords, I congratulate my noble friend on his ingenuity in mentioning Mr Wiggins. He said it, but I am sure that I speak for the whole House in extending our warmest congratulations on an astounding sporting achievement.
Lord Wallace of Tankerness
Whether in his preparation to retain the Tour de France championship he has time to cycle round the whole of the United Kingdom, I do not know, but certainly the point about young people is well made. Those who are planning and involved in the work to commemorate this bicentenary will reflect on the importance to young people.
Lord Mawhinney
My Lords, getting back to the original Question, I am sure that my noble and learned friend has summed up the mood of the House in saying that there is widespread support for Dr Livingstone. I am also clear that the Scottish Government will do something about the bicentenary. However, as I leave here today, I will be equally clear that the British Government have no plans to do anything about it. If the Minister does not want me to leave with that understanding, will he explain why?
Lord Wallace of Tankerness
My Lords, I have already explained that the Scotland Office plans a commemorative event to be held here, in the Scotland Office. I have also indicated that my right honourable friend the Parliamentary Under-Secretary of State has already met representatives of the Scotland Malawi Partnership. We will also be working out how the United Kingdom Government might best be involved in these celebrations, not only with the partnership but also, as I indicated in my answer to the noble Lord, Lord McConnell of Glenscorrodale, by involving our officials and Ministers in the Foreign and Commonwealth Office and the Department for International Development. We certainly take this intervention seriously, and we will be looking at ways in which we can, as a United Kingdom Government, make an appropriate contribution.
Lord Hunt of Kings Heath
My Lords, I wonder if the noble and learned Lord could confirm whether the Scotland Office is part of the UK Government?
Lord Wallace of Tankerness
My Lords, for those who had not got the point, I am more than happy to confirm it. Indeed, the commemoration in the Scotland Office will be one by the United Kingdom Government.
Lord West of Spithead
My Lords, the Minister will be aware that a lot of Livingstone’s travels were on Lake Malawi, on the waterways of Malawi. Perhaps the British Government could support the training school for fishermen on Lake Malawi, where many die every year at the moment. That would be a good way of recognising him.
Lord Wallace of Tankerness
My Lords, I welcome that positive suggestion and will make sure that it is passed on.
Wales: Devolution
Lord Wallace of Tankerness Excerpts(11 years, 10 months ago)
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The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I start by joining others who have contributed to the debate in congratulating my noble friend Lady Randerson on securing it. It has been a welcome debate with welcome contributions from all sides of the House. I certainly know from recent debates in the Moses Room that there has been an appetite among a number of noble Lords who have contributed today for a debate on a Welsh issue in your Lordships’ Chamber. I therefore welcome this particular debate, which is very timely. I also welcome the constructive tone of my noble friend Lady Randerson, who herself had distinguished service in the Welsh Assembly, and in the contributions from noble Lords in all parties and the Cross Benches.
The Commission on Devolution in Wales, commonly known as the Silk commission, was set up by my right honourable friend the Secretary of State for Wales in October 2011 to review the present financial and constitutional arrangements in Wales. The commission has met nine times to date, most recently last week in Cardiff.
The noble Lord, Lord Howarth, queried the commission’s terms of reference. It is fair to point out that the Government sought to work collaboratively—indeed, succeeded in doing so—with the party leaders in the Assembly to establish the commission. It is supported by all four parties in the commission. The terms of reference were agreed by all four party leaders in the Assembly. They are similar in many respects to many of those of the Calman commission on devolution, on which I was privileged to serve during the previous Parliament. However, the Silk commission has a considerable benefit over the Calman commission as it has buy-in from all parties in the Assembly. Rather regrettably, the Calman commission did not have buy-in from the SNP Government in Scotland when it deliberated.
As has been indicated, the first part of the commission’s remit concerns improving the financial accountability of the National Assembly. The commission is looking at the case for devolving tax-raising powers to the Assembly and the Welsh Ministers. While Members of the Assembly are accountable to the electorate via the ballot box every four years, the Welsh Government and the Assembly as a whole are not accountable to Welsh electors for the money that they spend. They simply spend what they are given. This point was very graphically made by a number of contributors to the debate, not least my noble friend Lord Thomas of Gresford and the noble Lord, Lord Rowlands, who talked about representation without taxation.
The public, it is fair to say, have placed their trust in the devolved institutions in Wales in the 13 years since they were established. During that time, the Assembly has been seen to mature, culminating in the overwhelming yes vote in the referendum on further law-making powers in March 2011. However, as my noble friend Lord Roberts of Llandudno graphically reminded us, the original vote in 1997 was on a knife edge. I remember watching it on television in the small hours of the morning. The point made by the noble Lord, Lord Rowlands, is important: over time a consensus has emerged. That is probably reflected in the fact that all four parties were able to agree on the terms of reference and the setting up of the Silk commission.
However, the financial accountability of the devolved institutions in Wales has not changed. That cannot be right. My noble friend Lord Roberts of Conwy drew attention to the fact that existing bodies such as the National Audit Office and the committees of Parliament already exist. Obviously there is a role for them, and perhaps it is a role that has not been developed as much as it could be in achieving greater accountability for the way in which money is spent. With power comes responsibility. With the powers that the Assembly has acquired, Welsh Ministers should be responsible not just for spending the money but for raising some of the money needed to pay for the decisions which they make.
A number of comments have been made about the survey carried out by ICM on behalf of the commission and published earlier this week. It appears that the Welsh public agree with the need for greater accountability. I share my noble friend Lord Roberts of Conwy’s view that it is not always clear precisely what was said, given that a number of the findings do not seem to quite add up. Nevertheless, there was quite a clear finding that 66% of those surveyed were positive about the Welsh Government having the right to change the level of taxation in Wales, and 56% believed that doing so would make the Welsh Government more accountable.
The commission itself has a wealth of experience, being chaired by Paul Silk, a former clerk in both the Assembly and this Parliament, and comprises nominees from each of the four political parties in the Assembly: Sue Essex, the Welsh Labour nominee; Nick Bourne, the Welsh Conservative nominee; Rob Humphreys, the Liberal Democrat nominee; and Dr Eurfyl ap Gwilym, the Plaid Cymru nominee. In addition, there are two independent members, who are equally experienced: Dyfrig John CBE, chairman of the Principality Building Society; and Professor Noel Lloyd CBE, former vice-chancellor and principal of Aberystwyth University.
As we have debated, the commission has been looking at the possible tax and borrowing powers that could be devolved to the Assembly and the Welsh Government. These include powers in relation to landfill tax, air passenger duty and stamp duty, but they are in no way limited to those taxes. The commission’s terms of reference require it to make recommendations that are likely to have a wide degree of public support. In announcing the commission, my right honourable friend the Secretary of State for Wales acknowledged that it would have to consult widely to secure that support, not just in Wales but throughout the United Kingdom.
The commission’s call for written evidence closed in February this year and there has been a series of public meetings throughout Wales, starting in March in Swansea, ending in Flint in May and including every local authority in Wales in between. The commission has received written and oral evidence from a number of cross-border bodies—some referred to by the noble Lord, Lord Rowe-Beddoe—such as the Confederation of British Industry, the Institute of Directors and the Federation of Small Businesses. It has also held drop-in sessions to allow representations from Members of your Lordships’ House and of the House of Commons.
Further afield, the commissioners have met legislators and interest groups in Scotland and Northern Ireland to discuss the implications of ongoing developments in these countries on the commission’s work. These included, in Scotland, Sir Kenneth Calman, Scottish Government officials, members of the Scottish Parliament’s Finance Committee; and in Northern Ireland, the First Minister and Deputy First Minister and the Committee for Finance and Personnel.
I have no doubt that, in addressing its work, the commission will take into account some of the very important considerations that have been raised during our debate: issues such as tax competition and—as mentioned by my noble friend Lady Randerson and graphically illustrated with figures by the noble Lord, Lord Rowlands—the practical problem of the percentage of the population living very close to the Welsh-English border. This is much greater than the equivalent on the Scottish-English border, which itself brings its own implications and considerations when looking at tax. Indeed, the noble Lord, Lord Rowlands, mentioned the impact of using a tax-varying power of 3p in the pound on the purchasing power of poorer communities. That is the sort of consideration that one would expect that the commission might take into account.
As I said, the commission is expected to report on part 1 in late autumn this year, and the Government will consider its recommendations very carefully. The noble Baroness, Lady Gale, asked for a further debate. As she knows, that is not in the gift of Ministers, but no doubt the usual channels will look at this. My own view, and clearly that of the opposition Front Bench, and I am sure others in the Chamber too, is that it would be useful. Once we have some concrete proposals, having a debate would be a useful part of considering them.
My noble friend Lord Roberts of Conwy asked about a referendum. We think that this is probably jumping the gun at the moment, given that we do not actually know what the proposals might be. However, it is obviously an issue that would have to be considered in view of any decisions which the Government came to on the commission’s findings. Certainly at the moment, we believe it is premature.
After publication of part 1, the commission will begin work on part 2, which will look at the powers of the Assembly and modifications that may be needed to the boundary between what is devolved and what is non-devolved. The aim here is to simplify the settlement where possible and to make it work better. Again, the commission will need to consult widely and make recommendations only where they are likely to have a wide degree of public support. As we know, the Assembly has powers in 20 devolved areas, and it is for the commission to decide where there is a requirement to tidy up the boundary of the settlement. Any further changes to the settlement must be right for Wales and for the United Kingdom as a whole. In the course of this debate, we have heard references to water, prisons, police, local government finance and broadcasting. I do not think that there will be a shortage of matters for the commission to consider, but it would certainly be inappropriate to comment on these at this stage.
My noble friend Lady Randerson also talked about the structures of the different devolution Acts. There was a difference between the Scotland Act and the original Wales Act, subsequently the Government of Wales Act; and a different settlement again in the Northern Ireland Act. I did not wholly agree with the noble Lord, Lord Elystan-Morgan, when he said that the reservations in the Scotland Act were all relatively simple. Part of my job is to look at these regularly, and sometimes it can be quite difficult to interpret them. Indeed, a case has recently been referred to the Supreme Court on the extent of some of the reserved functions, so it is not straightforward.
Lord Wigley
The Minister will have noticed that several noble Lords raised the issue of borrowing powers. He is coming to that in a moment, I gather. When he does, will he address the question of the Welsh Assembly’s existing powers to borrow via the Welsh Development Agency Act? The problem is that the full sum is placed against the DEL allocation by the Treasury. If that could be lifted, it would enable that power to be used as it is now available in Scotland.
Lord Wallace of Tankerness
Almost on cue, I was about to turn to a number of the specific points that noble Lords raised in the course of this debate. What was described by at least one noble Lord as the elephant in the room is the Barnett formula. This, of course, is not part of the remit of the Silk commission, nor of the Calman commission.
I know it will disappoint noble Lords, but the Government made it very clear in the coalition agreement that the priority is to stabilise the public finances and that no replacement to the Barnett formula will be considered until the nation’s finances are back on track. However, I could not fail to hear the comments of everyone who contributed to the debate, I think without exception. Someone pointed out, although admittedly not in the context of what appears in the coalition agreement, that the Secretary of State for Wales had said that the Barnett formula was coming to the end of its life. However, I reiterate that the Government’s position is that the priority must be the stabilisation of the public finances.
Lord Anderson of Swansea
The Minister has said that the Barnett formula will be reconsidered only when the economy is back on track. Recently, the Prime Minister said that austerity will last until 2020. Does that mean there will be no substantial revision of the manifest injustices resulting from the formula until that time?
Lord Wallace of Tankerness
My Lords, I have described what was said in the coalition agreement for this Parliament. I do not think that anyone would be wise enough to predict the policy of any Administration, of whatever hue, in a subsequent Parliament. My noble friends Lord Forsyth and Lord Roberts of Llandudno were right to point out that the previous Administration did not address this either. Indeed, in their response to your Lordships’ Select Committee report, they stated that the Barnett formula:
“has a number of strengths”.
Lord Forsyth of Drumlean
There is unanimity throughout this House that Barnett has to be changed. Will the Minister explain the logic of the coalition agreement? What on earth has dealing with Barnett got to do with dealing with the deficit? Surely the Government are capable of doing more than one thing at the same time. I cannot see the linkage between addressing the Barnett formula and dealing with the deficit. The Barnett formula, if it is changed, is simply about the distribution of existing resources. It does not affect the deficit in any way. When the coalition agreement was drafted, what on earth was in the minds of the four people who did it?
Lord Wallace of Tankerness
My Lords, I am not a mind reader. It does not necessarily follow that it is a zero-sum game, as my noble friend would consider. I have heard people make this case before and no one has suggested that it should be a “beggar my neighbour” approach, which could actually lead to an increase in expenditure.
In a debate on a commission that does not have the Barnett formula in its remit, the Government’s position is not going to change. I have indicated the Government’s position, but there are intergovernmental talks, which have been referred to, and the Government indicated that they would engage in them. I was asked a number of other questions, initially raised by my noble friend Lady Randerson. The talks between the United Kingdom Government and the Welsh Government are looking at all aspects of the Holtham reports, including the extent of convergence between the trends of devolved funding and equivalent funding for England, and how need might be best measured. The commission is not considering, as I made clear, the fundamental overhaul of the Barnett formula. However, as I indicated, it is looking at these issues, such as convergence—although at the present time it is divergence rather than convergence—and how the need might best be measured.
My noble friends Lord Maclennan and Lady Randerson asked about borrowing and the state of discussions, as did the noble Baroness, Lady Gale. The Silk commission is looking at the case for borrowing powers for Welsh Ministers as part of its consideration in part 1. The bilateral talks between the United Kingdom and Welsh Governments are looking at how the latter might best use their existing powers—I hope that this refers to the point raised by the noble Lord, Lord Wigley—which were inherited by Welsh Ministers on the abolition of the Welsh Development Agency. They are, admittedly, relatively limited, but this is part of the ongoing discussion between the two Governments. Indeed, my right honourable friends the Chief Secretary to the Treasury and the Secretary of State for Wales have each met Jane Hutt, the Welsh Finance Minister, in the past fortnight, so these talks are very much alive and active.
The noble Lord, Lord Anderson, asked how the recent initiative to encourage the banks to lend more, announced by the Government this week, would impact on Wales. The funding for lending scheme is designed to boost lending in the real economy, making mortgages and loans cheaper and more easily available to families and businesses right across the United Kingdom. Wales will be as entitled to apply and take advantage of that as any other part of the country. The scheme opens on 1 August for 18 months.
Another important point, which was raised by noble friend Lord Maclennan and then spoken to by the noble Lord, Lord Rowe-Beddoe, is that there have been a number of different commissions. They asked whether there was a possibility of taking a more strategic look. Very recently, the Prime Minister indicated that there will be a need for an open, involved and comprehensive conversation about what kind of union we want to see, and—almost 15 years after the process of devolution started in the United Kingdom—that we should consider the best way of having such a conversation. However, the Prime Minister made it clear that that should await the outcome of the Scottish referendum, which is likely to be in 2013-14. That view was reflected in at least one speech in your Lordships’ House today. We will certainly be arguing for the integrity of the United Kingdom and for Scotland to remain part of it. That is the first and foremost objective and focus of not just the Government but the Labour Party in Scotland and across the United Kingdom. The point is one that I suspect will feature in more of our debates in the weeks and months to come.
In conclusion, I indicate that in introducing the debate my noble friend asked how we might take forward the comments made in it. I certainly undertake to write to Paul Silk, drawing the commission’s attention to the fact that the debate has taken place and to the comments that have been made. It is also pertinent to say that not only to the commission but within government. Points have been made in this debate on which I am sure some of my colleagues in government will wish to reflect.
Justice and Security Bill [HL]
Lord Wallace of Tankerness Excerpts(11 years, 10 months ago)
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The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, it is obvious that the amendment moved by the noble Lord, Lord Beecham, is important and goes to a number of aspects of the use of closed judgments. I think it is agreed that we are constantly trying to balance fairness and national security. It is self-evident that closed judgments contain material that should not be disclosed in the interests of national security. Of course, this is the only basis on which a judgment can be classified as closed. As is the practice in existing statutory regimes for CMPs, such as TPIMs and SIAC cases, judges will hand down an open judgment, in tandem with a closed judgment, that contains the parts of the judgment that can be disclosed without causing damage to national security.
In February 2010, special advocates raised concerns about accessing a searchable database of closed judgments. I hope this goes some way in answering the point raised by my noble friend Lady Berridge. The Government agree that it is important to ensure that those who are entitled to access closed judgments are able to do so efficiently and effectively. We have been consulting the Special Advocates Support Office on the creation, storage and dissemination of the head notes and are in the process of finalising arrangements. We anticipate that the database will be populated with all historic closed judgments by the end of the summer. I know that does not go the whole way, as some noble Lords have indicated, but I hope that I have indicated that we have addressed the concern that was raised and are making significant progress towards meeting it.
The next part of my remarks will probably reflect what was said by my noble friend Lord McNally in his response to my noble friend Lord Lester. It is the case that judges will put as much of their reasoning into the open as possible, including the statements of legal principle that are most likely to have cross-case relevance. It is the role of special advocates to make submissions about what material can properly go into the open judgment. If the court is persuaded that it would not harm national security, material will be included in an open judgment rather than a closed judgment.
However, it is not always possible to provide an open statement containing the information as it is described in this amendment. For example, the amendment suggests that it should reveal the length of the closed hearing, the number of witnesses and the nature of those witnesses, which could be damaging to national security. If in the judgment the summary said that the closed session lasted five days while members of the Security Service gave evidence, this would provide to the claimant the knowledge that the intelligence services held a lot of information on them when they may not have been aware of that fact. As already outlined, it will be up to special advocates and counsel for the Government to make submissions about whether material can be included in an open judgment or should remain closed, with the final decision being for the court, which will decide that material should be classified as closed only if its disclosure would be contrary to the interests of national security.
The amendment also requires the judge to declare whether national security was an issue in the proceedings. I believe that this is unnecessary. As we have made clear on a number of occasions in Committee, the Bill makes it clear that the only reason a court can go in to a closed session is that the disclosure of some material relevant to the case would damage national security.
The Lord Chancellor’s code of practice on the management of records, issued under Section 46 of the Freedom of Information Act 2000, provides guidance on the management of records held by bodies subject to the Public Records Act 1958. Authorities are required to identify records worthy of permanent preservation and transfer them to the National Archives, a place of deposit for public records or the Public Record Office of Northern Ireland, as appropriate. Authorities all need to consider whether parts of records might be released if the sensitive information were redacted— in other words, rendered invisible or blanked out. Information that has been redacted should be stored securely and should be returned to the parent record when the exemption has ceased to apply.
I heard what was said by my noble friends and by the noble Lords, Lord Beecham and Lord Pannick, about when the national security considerations have in some respects flown off. I want to revisit this matter and discuss it with officials because I recognise the point that has been made. I am not going to pretend that there may be an easy answer to it, but if there is no longer a national security consideration, I see the force of what has been said. However, I have tried to describe the current arrangements for the storage and permanent preservation of records.
However, as things stand, it is up to the courts to decide the detail to include in their judgments. The Bill allows the judges to make these judgments with as much information available to them as possible, while ensuring that the interests of national security are not damaged. I do not believe that Parliament needs to go further and dictate to judges specific information that they are require to release, and I therefore do not believe that the many detailed parts of the amendment are necessary. I hope that in the light of that explanation, the noble Lord will be willing to withdraw the amendment.
Lord Lester of Herne Hill
I am very grateful to my noble and learned friend for his open-minded response, but there are two problems. One is the problem of legal certainty, which is how the public, lawyers and people who are not special advocates can know exactly what the law is. That problem is obviously a human rights convention problem as well as a common law problem. The second problem is about whose responsibility it would be to make sure, when secrecy has been lost and national security considerations are no longer there, that something is done to put a matter into the public domain. I am still puzzled about who would be responsible. The final point is: how can one get guidance to the courts to ensure a common approach? Is it contemplated that rules will be made through amendments to Clause 7 or that guidance will be given? Will the judges be consulted and so on? These are practical problems that are important to address. As I understand from the response of my noble and learned friend, he is open to thought and discussion about those kinds of practical matters.
Lord Wallace of Tankerness
My Lords, there were three points. First, I understand my noble friend’s point about the availability of judgments that are closed to people who are not special advocates. That is a difficult problem that I cannot readily see a solution to, given that the very reason why they are closed judgments is because of the sensitive nature of the information in them the disclosure of which could be damaging to national security.
The second point is very much one of detail. Who would determine whether there was, in fact, no longer a national security consideration? Where would the responsibility lie? That is the very issue that I want to consider, because how that would be addressed does not readily present itself to me. I sought to indicate that there is an issue here. I am not pretending for a moment that there is an easy answer, but the issue is important to consider.
On the third point that my noble friend makes about consistency, the difficulty—perhaps it is a reality rather than a difficulty—is that every case will be dealt with on its own individual circumstances. What goes into an open judgment or a closed judgment may well be the result of representations, debate and argument before the judge by special advocates. In those circumstances, it is difficult to ensure that there is rigid consistency because that might inhibit more openness in circumstances where a special advocate makes a compelling case that particular material ought to be included in an open, rather than a closed, judgment. It may be the counsel of perfection, or of the impossible, to think that there would be consistency when we are dealing with circumstances that can differ considerably from case to case. I think it must be left to the argument presented by counsel on both sides—special advocates and counsel for the Government—to determine what a judge puts into open judgment and what is put into closed judgment.
I hope that with those words, the noble Lord, Lord Beecham, will consider withdrawing the amendment.
Lord Beecham
I am grateful to the noble and learned Lord for agreeing to give consideration to that particular aspect. There are two issues here. One is public confidence in the system, for which some information about the process—I am not talking about detailed information about the closed material itself—needs to be in the public domain. The second issue is that this should be done in a systematic way, perhaps by the equivalent of the 30-year rule for Cabinet papers and the like.
I am not suggesting for a moment that we should set out to prescribe a given period at this point, but at some point the option of disclosing material ought to be built into the system. This should not necessarily be with a particular time frame in mind, but be a process that is available to the Government of the day to determine, perhaps in conjunction with the courts, what information might be released and when. That is something that we might look at further on Report, in addition to the point that the Minister has agreed to take back. However, in the circumstances I beg leave to withdraw the amendment.
Lord Wallace of Tankerness
My Lords, I am grateful to my noble friends for tabling these amendments. The issue of the role of the judge in providing fairness during a close material procedure is important. As my noble friend Lord Marks said, we have been looking in our debates at the careful balancing exercise by a judge in these matters. As he has said and other noble Lords have indicated, the issue of public perception and public confidence is important too. I understand why my noble friend might consider it fairer to have a separate judge to deal with the applications for a declaration that a CMP should apply and on individual pieces of evidence. This is a matter about which my noble friend Lord Thomas has been particularly anxious. He raised it at Second Reading and he has raised it with me and with the Lord Chancellor. We have given careful consideration to it. He has had the advantage of being able to anticipate what I am about to say to him, but I would still like to say it and perhaps give some explanation as to why we are not being persuaded by the merits of the proposal.
It is better from the point of view of the administration of justice and judicial case management that the judge trying the case should be the judge who determines whether a CMP should be allowed and what materials should be heard in closed proceedings. That judge has a direct interest in ensuring that he or she oversees a fair trial process. In earlier debates it has been put to the Government that we have supplied insufficient room for judicial discretion and it seems to us that a single judge in charge of the entire process is more likely to guarantee judicial discretion than if the roles of disclosure and trial are compartmentalised.
My noble friend is right to say that there will be cases too when masters decide pre-trial issues. My anticipation of what is likely to happen is much as described by the noble Lord, Lord Pannick, and echoed by my noble friend Lord Faulks. It is more likely that these issues come up in the course of the proceedings. In TPIM cases, for example, there are disclosure issues at the beginning. There is an ongoing issue of disclosure. These will be addressed as the case goes on. Indeed, fresh issues may well arise mid-case. It was also pointed out that in cases where public interest immunity is asserted, this is normally dealt with by the judge hearing the case. I am not saying that it could not be dealt with as a preliminary issue but it very rarely is.
In addition, the whole point of the CMP provisions is to ensure that relevant but very sensitive evidence, which would otherwise be excluded from the proceedings under PII, is considered by the judge. It is not a question of the purpose of this being to exclude material altogether from consideration in the case. It is in fact the opposite: it is to allow it to be considered in some very exceptional circumstances. It is about allowing the judge to know the full facts, even if they cannot be shared with the claimant for reasons of potential damage to national security. There will usually be no question of the judge’s mind being swayed by evidence that ought not to be taken into account at all. It is about allowing the judge to take evidence into account.
My noble friend asked about intercept evidence. The provision in Clause 6 is to put to one side whether or not there would be an exclusion for intercept material in determining whether a party would be required to disclose material, but it is the intention of the Bill that intercept evidence should be permitted. The provision for this is in paragraph 9 of Schedule 2. It is of course a matter for the courts and an individual judge in a particular case as to what weight would be given to that evidence. I hope that answers the very specific question that my noble friend raised.
Lord Thomas of Gresford
As I understood it, paragraph 9 of Schedule 2 refers to what the judge hears in the Section 6 proceedings. What I do not see, when he draws my attention to it, is that the judge can take into account intercept evidence in determining the issues between the parties in the trial. It seems to be quite wrong that you could take into account intercept evidence that you have heard in closed proceedings for the purposes of the trial when it would be inadmissible if the proceedings were not closed.
Lord Wallace of Tankerness
My Lords, I refer my noble friend to paragraph 9 and indicate that it is the intention that intercept evidence should be permitted before the court. We may wish to have a debate as to whether that is right or wrong—
Lord Thomas of Gresford
Perhaps I may point out the problem that then arises. The press have been full of “secret trials” and so on, and now, if the noble and learned Lord is right, the Government are proposing a secret trial, because inadmissible evidence, which you could not adduce in any form in an open proceeding, whether it is sensitive or not—intercept evidence may not be sensitive; the methods of obtaining it may be but the evidence may not be—could not be introduced in an open trial. Yet the noble and learned Lord is saying that the judge can decide the case—not the Section 6 application but the case—on inadmissible evidence that he has heard in secret. What are the press going to make of that?
Lord Wallace of Tankerness
My Lords, I will no doubt be corrected if I have got this wrong but I think it is the case that it is currently permissible in some other areas where there are closed material proceedings. We may well wish to have a fuller debate on intercept evidence rather than dealing with it as part of a debate on whether there should be a separate disclosure judge. I confirm that in fact it is available in all other closed material proceedings, so this is keeping it in line with what happens elsewhere. No doubt we may return to this if my noble friend wants a more fundamental debate on the role of intercept evidence. I just point out what the position is with regard to the Bill, since he asked a specific question.
In any event, judges are accustomed to consider material for the purpose of making evidential and disclosure decisions. It is normal for judges at all levels to decide whether evidence is admissible and, if it is not, to put it out of their minds. I know that there has been some discussion about the extent to which that is possible. Obviously, it is the case in dealing with PII claims where PII is successfully asserted. My noble friend asked about the number of PII claims in criminal cases in magistrates’ courts. That is not really the point that we were seeking to make in the speaking note which he saw; rather we sought to make the point that in magistrates’ courts there must, day in, day out, be cases, not of PII, in which magistrates have to decide on the admissibility of evidence. The argument is heard before the magistrates as to whether particular evidence is admissible or not and, if it is not, they have to put it out of their minds. The point I was making is that there is no problem in principle, even in criminal cases in magistrates’ courts, for judges to decide issues of fact and law. There are cases, too, when they will have to put out of their minds evidence which they have deemed to be inadmissible.
A separate judge would make review of disclosure decisions as the case progresses cumbersome, as was pointed out by the noble Lord, Lord Pannick. The disclosure judge would need to follow the progress of the case in order to understand potential implications for the fairness of proceedings before he or she was able to rule on disclosure issues, and that could cause delay. I accept that this is not the same as the amendment moved by the noble Lord, Lord Dubs, earlier this evening, but some of the same considerations arise.
I take this opportunity to clarify what I said in an earlier exchange with the noble Lord, Lord Dubs, when he said that the Bill will abolish juries. I think that I responded by saying that these are civil proceedings presided over by a single judge and do not relate to criminal proceedings where there would be a jury. For clarification and for the avoidance of doubt, the position is that the Bill amends the Senior Courts Act 1981, and its Northern Ireland equivalent, which contain a residual right to jury trial in some civil cases. I do not think that that was what the noble Lord, Lord Dubs, had in mind, but it is important to say that for completeness and clarification.
Lord Thomas of Gresford
For the avoidance of doubt, I was involved in a case of false imprisonment tried as a civil case in the Royal Courts of Justice in front of a jury, and I am not aware that that possibility has been abolished.
Lord Wallace of Tankerness
For completeness, the Bill allows the court, however, to refuse an application for a jury where it is of the view that the trial will involve a CMP. Highly sensitive information clearly could not be shared with a jury without presenting serious national security concerns and risks, but the original point is that the Bill does not affect trial by jury in criminal cases, since the Bill does not relate to criminal cases. Of course, criminal cases have been adduced with regard to Northern Ireland, where the practice is to have a separate disclosure judge but in a very specific context—the trial of serious terrorist offences in a climate where there a real risk of paramilitary and community-based pressures on jurors and a history of terrorist threats against judges. There, it is a very valuable safeguard, but I do not believe that such considerations apply to CMPs in civil cases.
I reassure my noble friend who raised this matter earlier that although we have given them considerable consideration, we remain unpersuaded by the arguments for a separate disclosure judge. We believe that the approach we are proposing here will lead to fairness with the same judge involved in all aspects of the case. Therefore, I ask my noble friend to withdraw his amendment.
Lord Thomas of Gresford
My Lords, I am not surprised, but I am very disappointed by that answer. I hope that things can settle down over the Recess so that the matter can be reconsidered. It seems obvious to me that it would be in the interests of justice for there to be a separate disclosure judge as I have described.
On the point raised by the noble Lord, Lord Pannick, of course issues can arise in the course of the case where what did not appear to be relevant becomes relevant. That can be covered—and one way of doing it would be to give the special advocate a watching brief throughout the case. Particularly if the Attorney-General is paying his expenses, there is no reason why he should not continue in that role, to watch how the case develops and to see if applications need to be made.
It must be in the public interest that disclosure should come at the proper time, early on in the proceedings before a case is ready for trial. At that point, as I indicated to the noble Lord, Lord Pannick, serious decisions are made: is this case one where you make or accept an offer, settle or negotiate? In what way can you shorten the cost and expense of a trial? Certainly in my experience, one always attempts to do that because a settlement may produce a better result than a judgment in your favour if you negotiate hard and well.
I wish I could expand a little further on this, but I am afraid I cannot. I ask leave to withdraw the amendment but hope that we will have further discussions on the matter and come back to it on Report.
Justice and Security Bill [HL]
Lord Wallace of Tankerness Excerpts(11 years, 10 months ago)
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Lord Beecham
My Lords, we are capable of simple arithmetic, and it may be that, in reality, the Government will get their way on the principle. We will keep an open mind through Report stage and listen carefully to what the Government say. At the end of that process, we may or may not accept the case. If it is the wish of this House—in the first instance—and of Parliament as a whole to proceed with closed material procedures, we might come to what one could call the last-resort position of looking at how best to limit any application of the new procedure and how to make the best of the situation, in the interests of justice and the traditions that this country has espoused for centuries. It would be making the best of what we currently consider is a very bad job. However, we are open to evidence. There is not a great deal of evidence at the moment, although there has been some to which Mr Anderson referred—the three cases which seem to have persuaded him that there is a need for such a procedure. However, as I reminded the House the other night, he also said that the Government’s proposals were disproportionate and suggested measures that would have some mitigating effect on the process, if it were to be implemented.
That is the position of the Opposition. We are not taking a premature stance on this. It would be interesting to know, for example, whether the special advocates have, as suggested, actually been shown the files of the independent adviser who is to be consulted, or whether the process is going to take place at all, and what the view of the special advocates is. Your Lordships will recall that they were very critical. Almost all of them signed up to criticism of the proposals as they stood. In evidence to the Select Committee, Mr McCullough said that he would welcome the opportunity, if it were given, to look at the cases that seemed to have persuaded Mr Anderson to accept the principle, given that, as he made clear, he continued to think there would be only a limited number of cases. At the very least, the amendment has allowed us to look at ways in which such cases might be restricted to a small number, against criteria that, although not statutory, might be developed while the Bill is making its way through Parliament.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I am grateful to my noble friend Lord Hodgson for bringing forward the amendment. It is clear from the contributions that it raises an important issue. I certainly recall that on publication of the Bill, the issue of whether there was a definition of national security was raised not just by a number of Members of your Lordships’ House but more widely. It is important to define the type of material that closed material procedures should be used for. I hope that I can set out why we think we have reached in the Bill the right definition of the type of material that would be considered within a CMP—material that if released would damage national security.
The Government carefully considered the responses to the public consultation on the Green Paper, including consideration of the scope of the material to be covered, before bringing forward this legislation. The Bill makes provision for closed material procedures to be used only in contexts where there would be damage to national security. Examples of sensitive material that might be relevant to a case that would give rise to a duty to claim public interest immunity, and which could also be heard in a CMP under this legislation, include, for example, information from a sensitive source whose life or safety could be put in danger if openly disclosed. I think that example was given by the noble Baroness, Lady Manningham-Buller. Other examples include information relating to current operations that would be compromised if it were to be made public; intelligence material shared with the United Kingdom by foreign intelligence agencies; or the content of telephone calls or e-mails intercepted by the intelligence agencies that would not be admissible in open civil proceedings. It is difficult—a number of noble Lords said this in their contributions—to be completely prescriptive about all the types of damage to national security that could justify closed material proceedings.
The amendment in the name of my noble friend introduces a definition. I would assert that the term “national security” is clear, tried and tested. My noble friend Lord Lothian said that it is clear “when you see it”. One noble Lord asked: “Who sees it?” In this case, the judges see it. The Secretary of State makes an application to the court, and the judge determines whether it satisfies the condition that there would be damage to national security.
It has been for judges to interpret this term appropriately and flexibly. The flexibility of the current approach allows the judge to consider the arguments of the Secretary of State on their merits. Of course, the procedure, even at the initial gateway stage, would also allow special advocates to make representations to the court.
The noble Lord, Lord Beecham, mentioned Article 6 of the European Convention on Human Rights. It is important to remember that in Clause 11(5)—
Lord Hodgson of Astley Abbotts
The noble and learned Lord just said that the special advocates could make representations to the court. I am not a lawyer, as I have said frequently, but Clause 7(1)(b) states that,
“such an application is always considered in the absence of every other party to the proceedings (and every other party’s legal representative)”.
Does that not mean that only one side presents?
Lord Wallace of Tankerness
I think that my noble friend has an amendment later where we can explore this more fully. It is the case that special advocates could be engaged both at the second stage, when individual pieces of evidence are being considered, and, by virtue of Clause 10(4), at the application stage.
I will finish my point on Clause 11(5). Nothing in Clauses 6 to 11 should be read as requiring a court to act in a manner inconsistent with Article 6 of the European Convention on Human Rights. In that respect it could be said that Article 6 trumps the provisions expressly set out in Clauses 6 to11.
My noble friend expressed a recognisable concern that national security today might involve serious crime or international relations tomorrow. It is very clear that not only will it not, but that international relations and criminal activity have been considered and rejected for the purposes of closed material proceedings in civil cases. The Bill deliberately omits other aspects of the public interest from CMP clauses, such as international relations and the prevention of detection of crime, even though these categories are included in existing statutory CMPs. I hope that that gives the assurance that it is certainly the intention of the Government that there should not be definition creep, as it were.
My noble friend asked about Pepper v Hart, as did the noble Earl, Lord Erroll. It is not only when European Union issues are involved but when there is doubt in a court case about the interpretation of any primary legislation that the parties can resort to statements made in Parliament that should throw light on the interpretation. So this is not limited to an EU context. We cannot dictate to the courts how to apply Pepper v Hart, but doubtless, in future, parties to litigation will be able to read what I am saying today at the Dispatch Box and, if pertinent, advance cases to the court on that basis.
I have an embarras de richesses.
Lord Pannick
Can the Minister confirm that the concept of national security under the Bill is deliberately intended to be narrower than the other concepts included in the Bill? I have in mind Clause 5(5), which appears to contrast the concept of national security with the broader concepts of public interest, the prevention or detection of serious crime and the economic well-being of the United Kingdom. It appears from Clause 5(5) that those are distinct matters. National security is a much narrower concept, and similarly Clause 13(5) appears to contrast the concept of national security with the concept of the interests of the international relations of the United Kingdom. I understood the noble and learned Lord to confirm that those other concepts were not within the concept of national security.
Lord Wallace of Tankerness
My Lords, for the purpose of closed material proceedings and what we are dealing with here, national security is the specific concept, although it is not defined in the Bill. As I indicated, the Green Paper suggested that it might go wider to include some of the matters that the noble Lord, Lord Pannick, raised, but we have quite clearly indicated that that will not be the case in matters of national security. I give way to my noble friend who I understand was a counsel in Pepper v Hart.
Lord Lester of Herne Hill
I have two points. I do not understand why it is necessary to refer to Article 6 of the convention in the way that the Bill unusually does, given that the Human Rights Act requires the Bill to be read and given effect to—in so far as is possible—compatibly with convention rights, including Article 6, and given that the court is required under Section 6 of the Human Rights Act to act in a way compatible with convention rights, including Article 6. I have not before seen in any other legislation post the Human Rights Act the singling out of an article of the convention in that way. It seems to me to be troublesome as it might lead to some inferences that are incompatible with the scheme of the Human Rights Act.
On the same subject, the convention distinguishes between national security in the narrow sense and factors like the economic well-being of the country, to which the noble Lord, Lord Pannick, referred. Am I right in understanding that those are the kind of distinctions that the Government have in mind when they deal with national security in a narrow sense?
Lord Wallace of Tankerness
My Lords, I hope that Clause 11(5)(c) is not troublesome because it is intended to be the opposite. As we have already heard in our deliberations in Committee, concern has been expressed, even a short while ago by the noble Lord, Lord Beecham, about Article 6. The clause seeks to give reassurance and I hope that my noble friend will be satisfied with that. No doubt there may be something on which I can give further reassurance. I think I am right in saying that what is there follows what is in the TPIM Act and the Counter-Terrorism Act. Questions might be raised but it is there to make matters absolutely clear.
My noble friend Lord Hodgson said that he hoped that we would not allow a situation where citizens would be swept up by a wide definition of national security. My noble friend Lord Deben gave a graphic illustration of his son walking the dog. It will not be a constable or a high-ranking officer in Whitehall but a judge who will make the decision. Nor indeed—I shall make this very clear—is the intention to avoid embarrassment. In fact, an important purpose of the Bill is to allow material to be considered by the courts in cases where to exclude it may mean that a case has to be settled. The purpose is actually to allow a court to be able to consider it; this is far from wanting to sweep things under the carpet. If it were the case that, at some date in the future, a Secretary of State tried to use the provisions for the purposes of concealing embarrassment rather than to prevent damage to national security, that is something the court would be entitled to take into account when deciding whether the gateway test in Clause 6 was passed.
There is another point I would make to my noble friend Lord Hodgson, who said that the possibility of someone going to prison was important here. I would like to reassure both my noble friend and the Committee that the provisions in this part of the Bill relate to civil, not criminal proceedings. There would not be a situation, therefore, where a person would go to prison as a result of the provisions in this part of the Bill.
Lord Elystan-Morgan
My Lords, I thank the noble and learned Lord and I apologise for the fact that I missed the opening skirmishes of this debate. May I put a point to him which is utterly fundamental? The noble Marquess, Lord Lothian, said that we would know national security when we came across it. To put a judge in that position would mean that we would give them a legislative function as opposed to an interpretative function? That should be avoided, should it not? I do not expect an immediate answer from the Minister, but could I leave him to mull over this thought? It may be that a different approach could settle the matter in this way. If there was a definition of national security—something of the order of dealing with a situation that jeopardises, or has the potential to jeopardise, a fundamental function of the state—might that be not unacceptable?
Lord Wallace of Tankerness
My Lords, I will certainly mull over that point. However, in coming up with any definition, we would want to be very careful that it did not exclude things that should be included or include things that perhaps should be excluded. We will look very carefully at what he has said. The intention is that the concept should be a narrow one that will come into play in a very small number of cases. However, the definition set out in the amendment would not cover everything that is damaging to national security. Factors that are damaging to national security can change in accordance with assessments about the threat to the country. That was reflected in the contributions we have had, not least from the noble Baroness, Lady Manningham-Buller. If the definition is too narrow, we take the risk of legislation becoming unfit for the purpose for which it is intended. Sensitive intelligence and security material which security intelligence agencies hold and which is so vital to the discharge of their important statutory functions will have been acquired by them in a variety of ways and from a variety of different sources. Not all national security-sensitive material held by the security and intelligence agencies will by any means relate to, or be the result of, operations.
In view of this, we believe that the amendment is unduly limiting. For example, if information has been shared with United Kingdom agencies in confidence by foreign intelligence agencies, or has been disclosed to them in confidence by human sources, the amendment would not enable such information to be used within a CMP, however sensitive the provenance of the information and however confidential the relationship. There could also be a situation where the agencies have undertaken preliminary research and analysis before deciding whether there is a sufficient national security case to justify embarking on an intelligence operation. Information generated during the course of that preliminary work, whether or not an actual operation ensued, could well be highly sensitive in security terms and of significant relevance in a particular case. However, if the amendment was accepted, it would not be possible to use the information.
I think that it was the noble Lord, Lord Beecham, who said that there was a danger that the amendment was both too broad and too narrow at the same time. It could also go wider, in that not all matters—including operations by the military—would relate to national security. In fairness, my noble friend Lord Hodgson of Astley Abbotts accepted that the terms of the amendment might not be ideal. It is perhaps illustrative of the fact that any attempt to make a definition can often be either too limiting or too broad. The Bill recognises that national security is very much an issue for the Secretary of State.
Lord Butler of Brockwell
My Lords, in supporting the noble and learned Lord’s argument that the definition should not be too narrow, perhaps I may take him back to the point made by the noble Lord, Lord Pannick. He sought to establish that national security was a narrow definition by invoking the categories in new Section 59A(5), as inserted by Clause 5, which are,
“national security … the prevention or detection of serious crime”,
and,
“the economic well-being of the United Kingdom”.
It must be the case that national security would include some of those other categories. The most obvious one is,
“the prevention or detection of serious crime”,
which might be terrorist crime.
Lord Wallace of Tankerness
My Lords, the Green Paper suggested that there might well be the category of the prevention of serious crime. That was considered by the Government. I indicated earlier in my remarks that the Bill deliberately omitted from the definition other aspects of the public interest from the CMP clauses, such as international relations and the prevention or detection of crime, although they do apply in other statutory CMPs. But the consideration of the representations received in response to the Green Paper was to make it solely matters that would be damaging to national security.
The policy of successive Governments and the practice of Parliament has not been to define the term “national security”. As a number of your Lordships accepted, it has been to retain the flexibility needed to ensure that the use of the term can adapt to changing circumstances —for example, changes to the threat environment and advances in technology. The nature of national security threats and risks is constantly evolving. That, in turn, requires the Government and the security and intelligence agencies to maintain their ability to evolve.
My noble friend Lord Lothian suggested that it would be better to leave this open and the noble Lord, Lord Beecham, accepted that it was not always possible to be definitive. The current approach is based on the recognition that this is a flexible concept which evolves in the light of changing circumstances. As my noble friend Lord Hodgson said, we want to avoid a legal straitjacket. The risk of any attempt to be precise and exhaustive would be to constrain the ability of the security and intelligence agencies to adapt their operational approach and develop capabilities to meet new and unexpected changing threats.
I will conclude with a pertinent example. Neither weapons of mass destruction proliferation nor cyber attacks feature in what is fortunately a non-exhaustive list of threats to national security which the Security Service is specifically charged with countering in Section 1 of the Security Service Act 1989. But who could deny that, some 23 years later, these activities represent serious threats to the UK’s national security? The flexibility is there for the security services to be charged with responsibilities without there being an exhaustive list.
The noble Lord, Lord Beecham, accepted that there might not necessarily be a statutory definition and he raised a question about guidelines. I will certainly consider guidelines, but I am not entirely sure where they would fit into the guidance being given to the court, even with the help of the ISC in devising them. However, I know that the suggestion was made in a constructive manner and I will certainly think about it in a constructive way. I do not readily see how it will fit in, but I will certainly consider it. He may wish to elaborate on what he had in mind.
Lord Beecham
I particularly had in mind ruling out areas—the noble and learned Lord has already indicated some of them—that would not be deemed to fit within the definition that the Government seek to apply. It is an exclusive rather than an inclusive list that I think might be helpful,
Lord Wallace of Tankerness
My Lords, I hear what the noble Lord says. I have already tried in response to the debate to indicate some of the things that are excepted from the definition as we have it. With those considerations in mind, I invite my noble friend to withdraw his amendment.
Lord Hodgson of Astley Abbotts
My Lords, I began by saying that I did not believe that this was an open-and-shut case, and so it has proved. My noble and learned friend has referred to the “statutory straitjacket” and problems thereof. Interestingly enough, while the debate was going on, I was passed a note by one of my noble friends showing a case in which he was involved, where national security was invoked in quite an extraordinary way. I do not therefore think that I have yet reached entirely firm ground.
I am grateful to my noble friend Lord Deben for his powerful and very apposite remarks and speech. My noble friend Lord Lothian is of course an eminent Scottish advocate. I am not an advocate, Scottish or otherwise, but in reference to his remarks on Clause 6(2) about the court deciding, I am told that where a judge is faced with a statement by the Secretary of State leading to a CMP—not a weighing of evidence like we have in PII—to the effect that this would be damaging to national security, the judge is unlikely to push back on it. Therefore, the idea which the clause might technically give rise to is not, according to legal opinion that I have heard, likely in practice to happen. Those who have experience in your Lordships’ House will be able to discern this better than I can. That is something which we can no doubt explore another day.
I said that the noble Baroness, Lady Mannigham-Buller, had forgotten more about national security than I would ever know. It was meant to be a compliment, for the avoidance of doubt.
Lord Beecham
My Lords, I am grateful to the noble Lord for a clear explanation of something which, I am afraid, I approached with complete bewilderment. I simply did not know the point he was aiming at. I do now and I am persuaded by his argument. I hope that the noble and learned Lord will be sympathetic to the case he has made because it is convincing and consistent with the approach to the Intelligence and Security Committee. Given that precedent, I would have thought not that it would damage the interests of the security services, but rather that it would strengthen the role of the courts and uphold the principles that Members across the House seek to maintain in terms of the operation of the justice system. I hope that the noble and learned Lord will accede to his noble friend’s plea.
Lord Wallace of Tankerness
My Lords, I am grateful to my noble friend for bringing forward this amendment. He rightly points to two pieces of legislation which govern the security and intelligence agencies, the Security Service Act 1989 and the Intelligence Services Act 1994. As my noble friend has indicated, they place an obligation on each of the agency heads to prevent the disclosure of information obtained by the agencies except on certain limited grounds set out in those Acts. In particular, the disclosure of information is permissible where necessary in the proper discharge of the functions of the agencies. Information held by the security and intelligence agencies will include information and intelligence from human source reporting, and therefore is essential to the agencies’ operational effectiveness and the protection of national security.
As I understand it, the concern behind this amendment seems to be that these provisions would prevent the agencies complying with their disclosure obligations in civil proceedings. However, it is our view that the amendment is unnecessary. The agencies take their disclosure obligations very seriously. In England and Wales, if the claim is a civil damages claim, for example, Part 31 of the Civil Procedure Rules will generally apply. Standard disclosure requires parties to disclose the documents on which they rely—documents which undermine their or another party’s case and documents which support another party’s case. If the claim is for judicial review, all public authorities are subject to a duty of candour which requires the public authority, when presenting its evidence, to set out fully and fairly all matters that are relevant to the proceedings. Naturally, part of considering these disclosure obligations is the question of whether PII should be claimed or, if Parliament passes Part 2 of the Bill, whether the Secretary of State should apply for closed material proceedings. In a case where the agency is being sued for civil damages or someone is applying for judicial review, it is part and parcel of the proper discharge of an agency’s function to defend actions taken in the discharge of its functions. I therefore believe that the amendment is unnecessary.
My noble friend has made reference to paragraph 3(4) of Schedule 1 concerning the ISC provisions. This paragraph reflects a provision in the Intelligence Services Act 1994 which treats disclosure by the agencies to the ISC as necessary for the proper discharge of their functions. It may be asked, as my noble friend did, why this provision is needed there and not in the context of civil litigation. It is simply because it is right to make it clear, as existing legislation does, that disclosure to the ISC is permitted.
My noble friend may well be raising a case where it is a question of third-party disclosure. He mentioned a case of Evans v Ministry of Defence and, on the intervention of the noble Lord, Lord Pannick, I understood him to indicate that that argument did not win the day. It is a case that I wish to consider in the light of what my noble friend has said. If the effect of this amendment would be to treat the disclosure into any civil proceedings, regardless of the identity of the parties or the subject matter of the proceedings, as somehow part of the proper discharge of the agencies’ functions, that would conflict with the agencies’ need and ability to operate in secret. This is vital to maintaining the trust and confidence of those with whom they work; or, as was said in the previous debate by the noble Baroness, Lady Manningham-Buller, information may come from a particular agent, and the secrecy of that is important. I am thinking in particular of proceedings that do not at all involve the agencies and where a request for disclosure is made. It is right that in these circumstances the courts consider whether disclosure would be necessary for the proper discharge of an agency’s functions before an order for disclosure is made.
I have indicated to my noble friend that I will look at the Evans case. Based on what he said, I am advised that it may be similar to and consistent with the arguments that the agencies made in the Omagh bombing case—namely, that Section 22A is a bar to third-party disclosure, and that it was for the courts to decide. I hope that he hears that the agencies take seriously the requirements of disclosure in civil proceedings under Part 31 of the Civil Procedure Rules. On that ground I urge that the amendment is unnecessary and ask my noble friend to withdraw it.
Lord Thomas of Gresford
I am most grateful to my noble friend for indicating that he will look at these cases. In the light of that I beg leave to withdraw my amendment.
Lord Beecham
It is a while since I appeared before any judge whether county court or circuit. I meant the equivalent position. The noble Lord is clearly aiming at that tier in the judicial system and it strikes me as a little excessive. Equally, the provision for majority verdicts and so on would be somewhat invidious. Regretfully, I cannot support my noble friend’s amendment and I dare say that the noble and learned Lord will join the majority of those who have spoken in saying that the amendment would not be acceptable.
Lord Wallace of Tankerness
My Lords, the noble Lord, Lord Beecham, anticipated what the response would be. That said, it is only right to acknowledge the amendment moved by the noble Lord, Lord Dubs, and supported by the noble and learned Lord, Lord Lloyd, with reference to his own experience. I certainly accept that in moving his amendment the noble Lord, Lord Dubs, does not necessarily accept that we should be in the field of closed material proceedings. He made that clear, but he indicated that, in his view, it was necessary to have safeguards of the type proposed in his amendment. The Government’s position is that there are safeguards and in future groups of amendments we will be able to discuss the pros and cons of other potential safeguards.
As has been indicated, the amendment would require a judge in a closed material proceeding to sit with a panel of four additional judicial commissioners. In introducing these procedures the Government consider that we are providing the judiciary with another tool to deal with cases involving national security material. In the Justice and Security Green Paper, the Government floated the idea of a separate national security court with national security cases being diverted to it and different procedures being adopted in it. However, we concluded that national security is an aspect of disputes which may arise in any field of law and therefore it is better to keep cases in the ordinary courts where they arise while providing appropriate procedures, rather than moving different types of cases into one court where their only unifying factor is national security.
We are concerned that this amendment would be similar to creating a specialist court because it establishes an entirely different finder of fact for cases in which CMPs may be used. It envisages that the panel would preside over both the open and closed parts of the proceedings and this would fundamentally change the procedures adopted in the civil courts for cases in which national security is engaged. The oddity of what is proposed here can be illustrated by considering a case where national security material is important, but none the less is a small part of the material in the case. It might possibly even be a single document. Let us say that the court made a declaration that a CMP may be used and accepted an application that the document should be heard in closed proceedings. We would then be faced with proceedings which to all other intents and purposes were indistinguishable from other civil proceedings being presided over by a panel. We do not think that is right. My noble friends Lord Lester and Lord Carlile, and the noble Lord, Lord Pannick, made the point that single judges are well equipped to deal with this. My noble friend Lord Faulks made the point that subsection (3) very much changes the level and nature of the burden of proof and would materially change the nature of these proceedings. The noble Lord, Lord Pannick, indicated that it would also lead to cost and delay. I am always wary of talking about cost when we are dealing with such sensitive matters, but that would undoubtedly be the case.
The noble Lord, Lord Dubs, should be congratulated for coming up with an imaginative way of addressing his undoubted concerns. However, the Government believe it is better to retain the current judicial system in the civil courts and provide the judiciary with this new mechanism of the closed material proceedings rather than fundamentally alter the way in which the United Kingdom deals with civil proceedings by creating a finder of fact in cases of this sort.
I believe that it was the noble Lord, Lord Elystan-Morgan, who mentioned special advocates. They will provide the type of independent challenge that this amendment seeks to cover. I remind the Committee, as I am sure will happen on further occasions in our debates, of the case of M v Home Secretary in which the noble and learned Lord, Lord Woolf, granted an appeal on the basis of a rigorous cross-examination in the closed session. That in itself is testament to the work of special advocates in these situations. I hope that I and other noble Lords who have contributed have gone some way to encouraging the noble Lord, Lord Dubs, to withdraw his amendment, while recognising his motivation in putting it forward.
Lord Lester of Herne Hill
Will my noble and learned friend reassure the Committee that it is not part of the Government’s aim to change the overriding objective of the Civil Procedure Rules, which enable and require the courts to deal justly with cases?
Lord Wallace of Tankerness
I hope I indicated that we do not want to create something that is entirely different—some sort of national security court. Consistent with the other aspects of civil procedure, this is an additional tool to have closed material proceedings for material that would be damaging to national security if disclosed but should nevertheless be available to the courts.
Lord Dubs
I am grateful to the noble and learned Lord for his response, as I am to the noble and learned Lord, Lord Lloyd of Berwick, for obvious reasons. I thank him for his support. I cannot say that I have been overwhelmed by a tidal wave of approval from the rest of the Committee but that, as they say, is politics.
I have a very brief comment. The Bill will, after all, abolish juries. Given that we are abolishing juries, the proposal—
Lord Wallace of Tankerness
My Lords, these would be civil proceedings, which would be presided over by a single judge in any event. This does not relate to criminal cases, in which there would be a jury, but solely to civil proceedings.
Lord Dubs
My Lords, that is fair enough but the point of the judicial commissioners would be to help in establishing the facts. I have listened hard to the comments that have been made and will ponder them to see what sort of amendment might take into account the criticisms and would be appropriate when we get to Report stage. In the mean time, I beg leave to withdraw the amendment.
Lord Wallace of Tankerness
My Lords, this has been a very important debate on the role of the special advocates in the proceedings which are proposed in this part of the Bill. I am particularly grateful to my noble friend Lord Hodgson of Astley Abbotts for the way in which he introduced his amendments, in which he gave a very clear and concise indication of the purpose of each amendment and what the effect would be. That helped to set the tone for a very useful debate, and I appreciate the contributions from colleagues across the Committee.
Amendment 55 raises an important procedural point on how the application process for closed procedures would work in practice. My noble friend and I agree that it is essential that we balance fairness and national security. I hope I can set out why the balance has been struck in the way that it has and that the proposals put forward in the Bill are indeed fair.
Clause 7 means that an application for closed proceedings is always considered without any other party to the proceedings or their legal representatives being present. The amendment tabled by my noble friend would allow the court the discretion to allow another party into the application stage of the proceedings. Perhaps I can reassure my noble friend that special advocates are not excluded from the process of determining whether material should go into open or closed proceedings. Clause 7(1)(b) does not have that effect. Rather, it is to be read in the light of Clause 7(1)(a), which involves the application for material to be shown to the courts, special advocates and the Government only. Where Clause 7(1)(b) says,
“in the absence of any other party”,
it is not meant to exclude those referred to in Clause 7(1)(a). I hope that gives reassurance.
I indicated in an earlier debate that, by virtue of a later clause in the Bill, the role of the special advocates is there at the application—the original gateway stage, as we have come to call it—as well. At stage 2 of the CMP process there is a detailed document-by-document consideration during which special advocates can challenge each piece of sensitive material and make representations to the judge about why it should go into the open or be summarised, as well as make representations on the weight given to that material. This is what special advocates have done and do under current CMP cases very effectively indeed.
The noble Lord, Lord Beecham, asked how many times more information was made available. I am not sure whether that information is available. If it is, I will certainly share it, not only with the noble Lord but also with the Committee. However, in every case under the current statutory closed material proceedings, and indeed, I rather suspect, under those before the Al Rawi judgment where sometimes closed material proceedings were held with the concurrence of both parties, there have been incidents where specific pieces of evidence or specific documents have been admitted, allowed to be disclosed or ordered to be disclosed, so it may not be possible to give the full details in every case.
It is worth pointing out that there have been cases where, as a result of the work of the special advocates, the case for the excluded party has been successful. The noble and learned Lord, Lord Woolf, in M v Secretary of State for the Home Department has been quoted on a number of occasions in your Lordships’ House during these debates and clearly makes the point about the effectiveness with which the special advocates go about their work.
It is important to emphasise again that the judge will have a similar level of flexibility available to him or her under PII. For example, the judge will have the power to refuse non-disclosure, to permit non-disclosure of only parts of a document—in other words, redaction —to require summaries or gists, or to require a party to take action for refusal to disclose or summarise, for example, not to take certain points, or indeed to make concessions.
Where Article 6 so requires, the judge will always approach decisions about whether individual pieces of material are to be heard in closed proceedings from the perspective of the need to ensure that the proceedings are fair. Judges will refuse applications for material to be heard in closed proceedings where this is required by Article 6 fairness, and can order the Secretary of State not to rely on a particular argument if the Secretary of State is not willing to disclose material relevant to that point.
It is important to note that the application for a closed procedure could have open and closed parts. Only sensitive information which would damage national security would result in a proceeding taking place without the other parties, and I hope this explanation sets out the balance we have sought to strike.
Amendments 56, 63, 64, 65, 66 and 67 tabled by my noble friend concern the special advocates, and from the debate there is clearly concern in your Lordships’ House about the role of special advocates. These amendments highlight the important issues of how they are appointed and how they carry out their functions. I will endeavour to set out why I believe we have the necessary provisions in the Bill to allow the special advocates to operate as effectively as possible while at the same time safeguarding national security.
Lord Beecham
I wonder whether the noble and learned Lord could deal with this matter by accepting a slight modification to the wording so that there “must” be an appointment of a special advocate unless the party declines to accept the appointment.
Lord Wallace of Tankerness
That is a helpful suggestion. I am always wary of saying that, as it might cast doubt on what has been put in an earlier statute which is intended to do the same thing. An absolute requirement may lead to a special advocate being appointed in circumstances where it would be almost impossible for the person to function. I hope that the noble Lord is reassured that it is our intention that whenever an excluded person wants a special advocate, a special advocate will be appointed. I note what he says. Without wanting to cast doubt on what is in other statutes, we shall certainly have regard to what he says.
Lord Lester of Herne Hill
I appreciate that there is always the danger of what Lord Wilberforce once described as the “austerity of tabulated legalism”. I ask my noble and learned friend whether it is absolutely clear that, in exercising the rule-making power under Clause 7, nothing will be done to disturb the overriding objective, which is to enable the court to decide the case justly? That is a fundamental principle which must not be overridden, whatever the technical detail may be.
Lord Wallace of Tankerness
I would want to reflect on what the “austerity of tabulated legalism” actually means. We have had exchanges in earlier debates and we have set out why an express reference to Article 6 of the European Convention on Human Rights is incorporated into the Bill. I hope that my noble friend is assured by that. I am about to get to the point made by my noble friend Lady Williams. I will get there eventually.
Baroness Berridge
Following on from the point made by my noble friend Lord Lester about the overriding objective to act justly, if there is not a special advocate in the closed material proceedings, our courts will be hearing only one side in a completely unchallenged format. Therefore, is it not better to have the mandatory requirement? Even having a special advocate there who we know does not have an ordinary relationship with the client enables a more judicial decision to be made. Confidence in our courts will be more likely to be upheld if there is somebody probing potentially at the truth and not just acting on behalf of the claimant. One-sided proceedings could damage confidence in our judicial decisions.
Lord Wallace of Tankerness
The point I was making to my noble friend is that we are dealing with a rare and exceptional circumstance where an excluded person has indicated that they do not wish to appoint or provide instructions to a special advocate. Before acceding to my noble friend’s point, one would have to consider the almost impossible position that would put a special advocate in. It would be very difficult, if not impossible. That is why this is phrased as it is. It is very unlikely that that would happen. I am not aware that it has happened, but no doubt others who have practised will be aware. The noble Lord, Lord Pannick, is shaking his head. He is not aware of circumstances where that has happened. The great likelihood is that the excluded person will want a special advocate appointed to do the very kind of job that my noble friend rightly articulates.
My noble friend Lady Williams referred to the particular provisions in Clause 8 and to Amendment 66, which would remove the fact that a special advocate is not responsible to the party whose interests they are representing. The noble Lord, Lord Pannick, expressed very clearly why that provision is there in the form in which it is. The Bill makes clear that while the excluded party is not the client of the special advocate, the special advocate is specifically appointed to represent the interests of the excluded person. We believe that it is not possible to go further and to permit the special advocate and the excluded party to have a lawyer-client relationship. I fully understand my noble friend’s point but I think that the subsection is a product of the way in which the role of special advocate has developed. The concept of a party’s legal representatives being privy to information which is not disclosed to the client raises serious ethical and professional problems. That is why the provision is there. I think I am right in saying that it is reflected in some of the other statutory provisions where there are closed material proceedings.
Amendment 67 introduces a responsibility on the special advocate to provide a summary of closed material to the excluded party. There are two important aspects to that. First, the question of whether a summary should be provided is and should continue to be in the hands of the judge. It is the judge who will determine whether a summary of the evidence should be made available to the other party, whether this can be done without harming national security or whether it is deemed necessary for the proceedings to be fair, even where damaging to national security. Secondly, the special advocate, as I have indicated, is not in a position to determine harm to national security by deciding what information can be passed on to the excluded party. Rather, it is for the security and intelligence agencies to undertake this assessment. Special advocates have accepted that communication to the individual regarding the substance of closed material presents difficulties and may well not be possible without the involvement of the court and, in particular, the Government, to avoid the risk that inadvertently damaging disclosures are made. Mr Nick Blake, who is now a High Court Judge, gave evidence to the Joint Committee on Human Rights in 2007 while still a special advocate. In that evidence session he acknowledged that changing the rules to allow communication after service of closed material would put enormous responsibilities on special advocates not to disclose information inadvertently. We know that special advocates take that responsibility very seriously indeed. That is why we do not believe that it would be appropriate for the special advocates to determine the summary of the evidence to be made available.
Lord Wallace of Tankerness
My Lords, I am grateful both to my noble friends and other noble Lords who brought these amendments forward and to all noble Lords who contributed to this debate. The amendments raise important issues concerning the Bill and it is therefore important that the House has had a thorough and well informed debate. I am acutely aware that noble Lords are concerned about the way in which the Bill draws the balance between the interests of national security and the role of the judge in providing fairness for parties in proceedings.
My noble friend Lady Williams is right to remind us—I do not know whether she used the words, but the sense of what she was saying was—that the price of liberty is eternal vigilance and that it is important, whenever there are issues such as this, that we give considerable scrutiny to the way our laws are framed.
Amendments 57, 58, 59 and 68 would, if accepted, remove the obligation on the court not to allow information to be disclosed if it would damage the interests of national security. Instead, the court would have to balance the damage done to national security with the public interest in fair and open justice.
On a slightly technical point, my noble friend Lord Hodgson asked why we need Clause 10(1), which he thought was perhaps repetitious. The answer is that Clause 10(1) refers to the Section 6 proceedings as a whole, whereas Clause 7(1)(c) deals only with the document-by-document process at stage 2, which determines whether individual pieces of material will be heard in open court or in a CMP.
The Wiley balancing exercise has been referred to in this debate and I believe it underlies Amendments 57, 58, 59 and 68. It may help in presenting the case to set out some of the background to this, although I am acutely aware that a number of your Lordships who have taken part in the debate are well aware of it. However, the pertinent and pressing questions are often asked in the contributions from the non-lawyers and it is therefore important to set the response in context. The traditional method of protecting sensitive material in civil proceedings is for the Secretary of State to claim public interest immunity. Under PII, which is a common law regime, the Secretary of State certifies that disclosure of the evidence in question would be contrary to the public interest and that the interests of justice in favour of disclosure are outweighed by that of the public interest. The public interest could include the interests of national security, good international relations, the detection and prevention of crime, or any other aspect of the public interest.
In deciding whether to permit non-disclosure, a court will consider whether the Secretary of State has struck the right balance. The court will consider those aspects of the public interest that favour non-disclosure against those that favour disclosure: for example, the public interest in trials being fair, in justice being open and in cases being able to be fully reported. This is sometimes called the Wiley balancing test after an important case on PII.
Normally, a claim for PII will be supported by a ministerial certificate and will be considered by the trial judge. Unless the fact of a PII claim being made is itself too sensitive to be disclosed to the other party, for example because it might risk revealing the existence or identity of an agent, the other party will be able to attend the hearing. This will be with a view to persuading the court that, in carrying out the public interest balancing exercise, it should order disclosure of the documents in question, for example because of their likely high degree of relevance to the case. If the court refuses a PII claim, the Government will need to consider whether to settle the proceedings rather than disclose the damaging material.
The question that these amendments pose to the Government is why the court should not be able to consider whether there are overriding public interests that point to disclosure. In short, the Government consider that the approach in the Bill is the right one because it is in the national security context. The only ground on which a court may permit material to be heard in closed session is on the narrow one that disclosure of material would damage the interests of national security. Aside from the important countervailing fair trial issues, which, as we have heard and as I will return to, are explicitly dealt with in the Bill, the Government consider that it would be truly exceptional for a different aspect of the public interest to outweigh the public interest in preventing damage to the interests of national security.
The Government have considered this issue carefully and have introduced safeguards that we believe ensure that there is justice for claimants and that the judge will have a crucial role in the process. The Government are committed to putting as much information as they can into the public domain and to complying with our obligations under Article 6 of the ECHR. I think it is important to set out in detail how the Government have balanced the judicial role to ensure that as much information as possible is given to the claimant and made public.
It is important to emphasise that, in reality, the Bill contemplates a two-stage test to any application for a CMP. The result is that CMPs are available in tightly defined circumstances in which the judge is given the final say over the use of a CMP and a similar level of flexibility to that available to a judge under PII. The first test, which I think we went over during the previous day in Committee, is on application by the Secretary of State to the judge for a closed material procedure on the basis that a party would be required to disclose material in the course of the proceedings, the disclosure of which would damage the interests of national security. The judge will grant the application if he or she agrees with the Secretary of State’s assessment and make a declaration that a CMP can be used. I think my noble friend Lord Faulks said it would certainly not allow a flippant use or a flippant claim of national security. Indeed, I believe it would not allow one where the real motivation was not about national security interests being damaged at all but covering up or concealing embarrassment.
There is then the second stage, at which the judge considers the treatment of each individual piece of material, in particular whether it should be heard in open or closed proceedings. The judge has a number of important tools with which to ensure that the proceedings are held fairly. The sole ground on which material may be heard in a closed hearing is where the court accepts that disclosure would damage the interests of our national security. Where the court permits the material to be heard in closed procedure, the court must consider ordering summaries to be given to the claimant or permitting only parts of documents to be heard in closed proceedings—in other words, redaction. If the court refuses the application for material to be heard in closed proceedings, the relevant person, usually the Secretary of State or a government agency, is required either to disclose the material, or the judge can direct the relevant person to not rely on that material—in which case it will be excluded from the proceedings—to make concessions or to take such other steps as the court may specify. This is a similar level of flexibility to that which is available to the judge under PII and ensures that, in practice, the amount of material heard in open session where a CMP is available will not be less than had a PII exercise occurred instead. At all stages, the court will make the necessary orders to ensure that the proceedings are conducted in a manner which complies with Article 6 of the European Convention on Human Rights.
The Government consider that the approach in the Bill is the right one in the national security context. It is used in other current CMPs such as TPIMs and SIAC. In any case, in practice, under current arrangements, if on the basis of its balancing test the court rejects a PII claim, in whole or in part, the Government use every tool available to them to ensure that that material remains protected—including, if necessary, withdrawing from the proceedings or settling.
Amendments 60 and 61 would require the court to order a summary of the closed material to be provided to the excluded parties and, in doing so, would remove the obligation to ensure that a summary of the closed material did not contain material the disclosure of which would be damaging to national security. There is already a provision for a judge to require disclosure where necessary for Article 6 to be enforced.
My noble friend Lady Berridge asked for special advocates to be involved in determining what that summary should contain in terms of Clause 7(1)(d). I can assure my noble friend that the special advocates are very much involved in that process. No doubt we will be arguing—and, as we have in past cases, arguing effectively—for as much information to be included as possible. We agree that information should be summarised if it can be. However, if these amendments were to be accepted, and the Government were unable to provide a summary due to the sensitivity of the information, the risk is that the Government would be forced to withdraw or settle. That would effectively mean that the problem we are trying to solve would still exist. Again, there would be silence on very important matters, there would be no final judgment for a judge and none of the questions posed by the claimant would be answered.
No one has sought to pretend that closed material procedures are better or as good as open proceedings, but we have said that second-best justice is better than no justice at all. The intervention of the noble Lord, Lord Butler, indicated that we are dealing with circumstances where there is arguably a defence but one that under present arrangements cannot be advanced because to do so would damage the interests of national security. We are seeking to allow that defence to be put forward, albeit by means of a closed material procedure.
I appreciate the concerns about the claimant getting as much information as possible and the process being fair. My noble and learned friend Lord Mackay indicated at Second Reading that we have to look not just at Clause 7(1) but Clause 7(2) as it interacts with Clause 7(3)—if a party is unable to provide a summary, then the court can order that party to make concessions or to not rely on that material. These are very real safeguards.
Amendment 62, which my noble friend Lord Lester and the noble Lord, Lord Pannick, have spoken to, and which was supported by my noble friend Lord Carlile of Berriew and by other noble Lords, suggests that the best way of ensuring compatibility with our European convention obligations is by adding to the Bill words that give effect to the judgment of your Lordships’ Judicial Committee in June 2009, in what I think is commonly known as case AF (No. 3). In that case, their Lordships ruled that for the stringent control orders before them, in order for the control order proceedings to be compatible with Article 6, the controlled person must be given sufficient information about the allegations against him or her to enable them to give effective instructions to the special advocate in relation to these allegations. I hope I have summarised fairly what the Judicial Committee of the House determined.
Lord Lester of Herne Hill
My difficulty with my noble and learned friend’s reply is that he keeps saying: “I hope that Members of the House will be reassured”, but we need reassurance in the legislation itself. The problem is that there are no controlling principles. We do not have a written constitutional charter of rights, the nearest we have is the European convention, which is pretty vague and not tailored to these particular needs. When we come to Amendment 90 at night-time on Monday, where the noble Lord, Lord Pannick, and I have tried to put in some constitutional standards, it will be interesting to see whether at least that is accepted. Does my noble and learned friend follow that what we seek to do is put some controlling criteria, other than ministerial assurances, in the Bill to make it constitutionally appropriate?
Lord Wallace of Tankerness
I understand the point being made by my noble friend, but what is in the Bill goes beyond a ministerial assurance. What is in the Bill is that nothing in Clauses 6 to 11 or in any provision made by virtue of them is to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the European Convention on Human Rights. I will come to this more specifically in a moment, but these will be matters that will be determined by the court; it is not a matter of ministerial assurance. As we saw in the case of AF (No 3), the courts asserted what was required to make the proceedings consistent with the requirements of Article 6. What is required to achieve fairness in accordance with Article 6 is a matter to be determined by the courts in the context of each individual case. The AF (No 3) disclosure requirement will, of course, be applied by the court when it considers that the requirements of Article 6 so demand to ensure that fair trial requirements are met. However, this does not mean that the AF (No 3) formulation would or should apply in all cases that use these closed procedures. We submit that we must allow the judges to assess the level of disclosure required in each case to meet Article 6.
My noble friend Lord Faulks said that he anticipated that I might refer to what the noble and learned Lord, Lord Hope, said in the case of Tariq. I fully intended to do so. The deputy president of the Supreme Court said in that case:
“There cannot, after all, be an absolute rule that gisting must always be resorted to whatever the circumstances. There are no hard edged rules in this area of the law”.
Reference has already been made in this debate to Mr David Anderson QC, who is in favour of gisting. In January this year, in evidence to the Joint Committee on Human Rights, reflecting on what the noble and learned Lord, Lord Hope, said, he said:
“The courts have … said that it is not a hard-edged area of law. In other words, it is one for them to decide on rather than for Parliament”.
Later he said,
“it is not an area where certainty can sensibly be provided by legislation ... I do not think I would like the legislation very much if it came out”.
Let me also remind your Lordships that the Justice and Security Green Paper suggested that we might consider legislating to clarify the context in which the AF (No 3) gisting requirement does not apply. The Government listened to the consultation responses, which held a majority view that situations in which the AF (No 3) disclosure requirement applied needed to be considered on a case-by-case basis in the courts. The Bingham Centre said:
“Establishing a statutory presumption as to the circumstances in which the AF (No 3) disclosure requirement applies would not avoid the need for the precise parameters of the principle being worked out in the courts. This issue cannot be resolved by domestic legislation alone but requires careful and detailed reference to ECHR and EU law. The content of UK legislation could not have any appreciable influence on the CJEU or ECtHR. Therefore we see no value in this suggestion. If anything, a legislative presumption would only complicate the law and lead to more rather than less litigation”.
I do not think there is any distance between us in trying to ensure fairness. I recognise the importance and significance of all the amendments, not least Amendment 62, but our position is that this would put hard edges into law where it is not desirable and where the courts themselves have indicated that they should be determined on a case-by-case basis. As I have also indicated, if in a particular set of circumstances the court’s view was that the gisting level required in AF (No 3) was the one required in that case, the regard the courts must have to Article 6 of the European Convention on Human Rights allows them to require that. The common law is as much part of our legal system as statute law, and I believe that the courts will continue to be the guardians of individual rights to a fair trial and that further legislation on this provision is not only unnecessary but may even be counterproductive.
Lord Judd
The noble and learned Lord in his full reply referred to the special advocates being on board and being involved in the process. Does he agree they are involved in the process with one and a half hands tied behind their back, because they will have had no opportunity to discuss the really crucial issues with their client, who might well have something relevant to contribute to the deliberations going on? When we talk about it being better to have an imperfect system of justice than no system at all, what concerns some of us is that this is an exceptional process and the Government should look seriously at a belt and braces approach to make sure that it is exceptional. Otherwise there is a tendency over time for it to become just an alternative.
Lord Wallace of Tankerness
I fully accept—and it was said from this Dispatch Box in earlier debates—that it is very much seen as an exceptional procedure. It is not intended to be run-of-the-mill, and nor would we wish it to be seen as “creep”. It is meant to apply in only a very limited number of cases where the Government believe that they have a proper defence to cases made against them, but where at the present time it is not possible to deploy that defence because it would mean disclosing material which would be damaging to the national interest.
As for the earlier point, it has been said on a number of occasions that the role of the special advocates is crucial. It will be crucial in arguing over and determining which pieces of material should be disclosed and which should not and in making representations as to what should or should not be in any gist. However, as I indicated in an earlier debate, it is important to remember, too, that we are dealing with civil proceedings in which the defendant will almost certainly be the state and the claimant will be the person who has been excluded. Therefore, they will know full well what their case is as it is their own case that they will be advancing. Before the closed material is made available to the special advocate, there will be an opportunity for the person who knows what his or her case is to discuss it with the special advocate.
Finally, many judges have gone on record as praising the very valuable work that special advocates do in these cases. It would be wrong to suggest otherwise. Perhaps the noble Lord is not suggesting that, but it would be wrong to give the impression that special advocates are totally hamstrung. They have a very good track record, as has been recognised by a number of senior judges.
Lord Hodgson of Astley Abbotts
My Lords, the length of the debate and the breadth and depth of contributions have indicated how important gisting is. My noble friend Lord Carlile spoke about fairness, the noble Lord, Lord Beecham, about balance, and my noble friend Lord Faulks about the dangers of not giving sufficient weight to the demands of national security. One of the problems with not practising law is that you do not have real-life examples, such as those produced by several noble Lords this evening, to back up the impact and give bite to their particular recommendations.
I shall briefly repeat what I said at Second Reading: my experience of working with, speaking to and meeting young Muslim men and women as part of the Speaker’s outreach programme in Birmingham and the West Midlands shows that they have a keen interest in how our justice system works and whether it delivers fairness and balance to all sections of our community. While these are probing amendments, I am sure that this is an issue to which we will come back. Now that my noble and learned friend has given us a lot of helpful information and a careful explanation of the procedure to be gone through, we will have time over the summer to reflect on this. We shall see where we come out, but I am sure we will want to have a further crack at this to make sure that our society and the communities within it do not feel that the justice system does not deliver fair, open and transparent justice to them. In the mean time, I beg leave to withdraw the amendment.
Justice and Security Bill [HL]
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Lord Falconer of Thoroton
The noble Lords, Lord Hodgson and Lord Lester, and the noble Baroness, Lady Berridge, have made important points, but we must surely address the issue on the basis of what within our court system produces the most just result available, recognising that imperfect justice may be involved. Everybody accepts that two conflicting principles are valid, namely a properly functioning justice system and the need to protect national security. My view is that if a case is made that unjust results might be being reached, with claimants making claims that they know the Security Service cannot defend, then we should do enough to enable our justice system to properly defend those cases. Open justice is a means to producing justice. The courts have always recognised that if you cannot do justice that is open—for example, if you destroy the confidentiality that the justice system is designed to protect—then exceptional measures are needed for exceptional cases. I do not think our security services are being well served if they are forced to admit claims that they should not, and neither is respect being paid to our judges if they are simply a rubber stamp.
The right answer in relation to this issue is, first of all: is the case proved? That is an open question at the moment, as far as I am concerned. If the case is proved that some measures are needed then these should be kept to a minimum and the judges should decide what is required in order to create the fairest possible system. The problem with the amendments from the noble Lord, Lord Hodgson of Astley Abbotts, which I think he would be the first to acknowledge, is that they involve the judge considering whether there would be any serious risk of injustice to either party if the application for a closed material procedure were to be granted. However, everybody involved in closed proceedings knows perfectly well that if you have procedure that reveals evidence about person A and A never knows what is said about him or her, the prospect of an injustice is significant. However, that may be the best that can be done under the circumstances.
I respect the noble Lord, Lord Hodgson of Astley Abbotts, for raising these points. I just do not think the House of Lords can avoid asking: what is the right answer? The only guide we have is to try to reach the right answer. That is the only way we shall retain respect for what we do. The task we are engaged in is trying to balance those two factors. As I said before supper, what we are aiming for in this bit of the debate is fairness because ultimately national security can be protected by the security services pulling a case, so it is all about deciding whether there are a sufficient number of unfair cases that some special procedure needs to be crafted.
As it happens—and I think the noble Lord, Lord Lester of Herne Hill, is right here—the points raised by the noble Lord, Lord Hodgson of Astley Abbotts, are pretty well the same points we had before supper, and he acknowledged this in his opening remarks. The noble Lord’s basic approach in Amendment 44 is to say that one should go the PII route first; then only if the PII decision is non-disclosure do you go on to CMP. I do not like that approach for the reasons I advanced in response to the amendment from the noble Lord, Lord Faulks, in concert with the noble and learned Lord, Lord Woolf. It is too inflexible. I do not see why we cannot give the court all the options at the time it makes the decision, as the noble Lord, Lord Thomas of Gresford, suggested. This would avoid opportunistic applications and allow the court to come to the fairest possible results. I would be repeating myself if I went on about that. The noble Lord’s amendment has promoted debate, but the effect of that debate is that we do not want the lack of flexibility that his amendment proposes.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I thank my noble friend Lord Hodgson of Astley Abbotts for putting forward these amendments and for indicating his concerns: that we should be seeking fairness and reflecting on the possible impacts upon society.
I repeat again the passage from paragraph 2.5 of the Green Paper, which is pertinent here, where the Government assert that the,
“appropriate mechanism for triggering the CMPs will help to ensure that they are only used where it is absolutely necessary to enable the case to proceed in the interests of justice. The principle of open justice is an extremely important one, and any departure from it should be no more than is strictly necessary to achieve a proper administration of justice”.
Inasmuch as we are testing this legislation, that is where this House serves an important part of our democratic procedures. Before the dinner break we tested it very well with all the points that were made. I hope that when my noble friend does the outreach he can say that, in trying to ensure no more than is strictly necessary to achieve the proper administration of justice, these tests have been applied and that there has been a very active engagement of Members of your Lordships’ House in trying to ensure that that outcome is reached.
If we are trying to ensure fairness and that there should be no in-built bias, there will be cases where the use of closed material proceedings means that people who might otherwise have been excluded get an opportunity for material to be heard which might well exculpate them. That may be more relevant to one of the later clauses.
The noble Baroness, Lady Manningham-Buller, made a point about fairness. Indeed, it might be important fairness in terms of how the public approach these matters. If the intelligence service, the Security Service, has a full answer to many of the allegations made against it, it is inherently wrong that it should be denied being able to put forward an answer. I perhaps can do no better than again to quote Mr David Anderson QC, much quoted in today’s deliberations:
“We are in a world of second-best solutions: but it does not seem to me that the level of injustice inherent in the use of CMPs in a case of this nature necessarily exceeds either the injustice to the claimant of a case being struck out, or the moral hazard and reputational damage to the intelligence agencies that is caused by settling a case which, had it been possible to adduce all the evidence, would have been fought”.
Bearing in mind these considerations too, I think that all parts of the House are trying to ensure that we find a way forward to achieve the objective.
My noble friend indicated the type of safeguards that he wished to put in. I will not go over them in any detail again but, in response to the previous debate, I think that I explained why the Government do not believe that an exhaustive use of PII before applying for a CMP is appropriate. There clearly will be cases when it could be futile to do so because it is very obvious that to exclude all that evidence by way of PII could render the case that a proper defence could not be put forward.
If my noble friend’s intention is to ensure that CMPs are used only in extremely rare circumstances, I am not persuaded that these amendments are the way in which to achieve that. The noble and learned Lord, Lord Falconer, indicated some of the difficulties inherent in the requirement that there should be no serious risk of injustice. The point to remember is that important safeguards are built into this Bill to ensure that national security is not claimed erroneously and that the fair trial rights of all parties are respected. The court will grant a declaration that a CMP may be used only where disclosure of relevant material would otherwise damage national security. As I indicated earlier, there is a second stage in which the court—with the full engagement of special advocates appointed to represent the interests of an excluded party—will adopt a painstaking process to ensure that only material heard in closed session will be material, the disclosure of which would damage national security.
In addition, I mentioned that the operation of the procedure is explicitly made subject to the right to a fair trial protected by Article 6 of the European Convention on Human Rights under Clause 11(5)(c). In a CMP, the court will make the necessary orders to ensure that the proceedings are conducted in a manner that complies with the article. The judge, with the assistance of the special advocates, will ensure that as much information as possible can be disclosed into open court. If the full document cannot be disclosed, the court will also consider whether it could be disclosed in part through redactions or whether a summary could be provided to the other parties without damaging the interests of national security.
If there is a serious risk of injustice of the kind which my noble friend describes, the court can take the steps which I have described. Equally, if the judge is not satisfied that a CMP has properly enabled the fair testing of closed material he will simply put no weight on it. That approach is the right one in the national security context. A court will grant a declaration under Clause 6 or permit material to be heard in closed session only on the extremely narrow ground that disclosure of material would damage the interests of national security and there are strong safeguards already available to the court.
It is important that we air not only some of the details of my noble friend’s amendment but look at the context in which he proposed it. However, I believe that these balancing considerations have been considered in the proposals before your Lordships’ House. While I do not in any way quibble that these amendments raise an important issue, I hope that I have explained why they are unnecessary, given the other safeguards in the Bill. I ask my noble friend to withdraw the amendment.
Lord Lester of Herne Hill
My Lords, perhaps I may ask a question related to the same provision. Subsection (5)(c) states that nothing in those sections,
“is to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the Human Rights Convention”.
I take it that what that means is, “in breach of the duty imposed by Section 6 of the Human Rights Act”, which requires courts to act in a way that is compatible with convention rights, including Article 6. One might think about amending that paragraph to make it clear that one is talking about not just the international treaty but domestic law, which imposes that duty under Section 6 of the Human Rights Act. Can thought be given to that?
Lord Wallace of Tankerness
Certainly, it could be thought about. We just wanted to make it clear in the Bill that Article 6 was pertinent. I am answering this to the best of my ability. The noble and learned Lord asked whether Clause 11(5)(b) ousted PII when a court was thinking about closed material proceedings. I am not sure if that was his question.
Lord Falconer of Thoroton
The noble and learned that Lord said before supper, “Oh, well. You could always bear in mind if a PII application was made that the court could say that it was not very keen on it. The much better course would be to apply for a closed material proceedings”. I read Clause 11(5)(b) as saying that you have to ignore the possibility of a CMP application when you are considering PII, because the clause states:
“Nothing in sections 6 to 10 … affects the common law rules as to the withholding, on grounds of public interest immunity, of any material in any proceedings”.
I am not therefore sure that it would be open to a judge to say, “I am not going to look at PII because I want you to do a CMP”.
Lord Wallace of Tankerness
My Lords, obviously we will reach Clause 11. My understanding is that concerns were expressed in some quarters that what we were proposing in some way ousted PII and that it was, as some of the more extreme comments suggested, dead in the water. The purpose of the provision was to make it clear that PII is not lost in time or space, and that the common-law rules relating to PII are not affected. If that is not a full answer, we can deal with this in more detail when we consider Clause 11.
Lord Hodgson of Astley Abbotts
My Lords, I am grateful to my noble and learned friend for that lengthy reply. It was rather lengthier than I expected it to be, bearing in mind that we covered quite a lot of this ground before the dinner break. I thank my noble friend Lady Berridge for her support, and of course I accept the strictures of the noble Baroness, Lady Manningham-Buller. I promise her that I will not do it again. In the mean time, I beg leave to withdraw the amendment.
Lord Wallace of Tankerness
My Lords, once again I thank my noble friend for moving his amendment. It highlights an important issue in the Bill relating to judicial discretion. Under the proposed proceedings, the Secretary of State would apply for a declaration that a closed material procedure might be used in the case. The judge will need to be satisfied of two things before he grants the application. The two conditions set out in Clause 6(2) are that the material is so relevant that normally a party would be required to disclose it, and that disclosure of the material would damage national security.
The construct is that if both conditions are met, there is no discretion; the judge says that this is a case where a closed material procedure will happen. As I started to explain prior to the dinner break, that is a gateway. It does not mean that every piece of material is necessarily going to be the subject of evidence led in closed proceedings. Things would then move on to the second stage where, similar to what happens in PII, evidence documents are then tested. It may be that, subject to proper redaction, certain documents then could be admitted, or permission might be refused for them to be in closed material proceedings and they could be admitted to open proceedings if the redaction was made. In other words, the redaction would be the non-disclosure. Equally, as indicated in Clause 7(1)(d), if permission is given by the court not to disclose material, the rules of court must provide that the court should consider requiring the relevant person to provide a summary—the gisting—of the material. As subsections (2) and (3) of Clause 7 indicate, there are consequences. If the court does not give the relevant person, most likely the Secretary of State, permission to withhold material and the Secretary of State elects not to disclose it, there are consequences that can flow from that and these are set out in Clause 7(3).
That is the process we envisage. Obviously, the court will be assisted and will receive representations from special advocates. It is the intention that the court should have the power to refuse non-disclosure or permit non-disclosure only to parts of a document or require summaries or require a party to take action for refusal to disclose or to summarise—for example, not to take certain points or to make concessions. That is certainly the intention. I am more than willing to look at the wording to see that it gives effect to the intention.
Lord Lester of Herne Hill
Is the answer to the noble and learned Lord, Lord Falconer, that the principle of proportionality is intended to apply here—in other words, that the court must exercise a sense of proportion once a case is through the gateway? If that is so, it is very important. Can the Government think about writing in the need for proportionality as the previous Government did in their Equality Bill?
Lord Wallace of Tankerness
My Lords, I am not conceding at this point that it is proportionality. The dynamic of representation is from special advocates and the court considering the material may be able to disclose a particular document if there are certain redactions. I understand that that is the nature of many of these cases and that representations can be made.
The important point I wish to make is that that is at the second stage. The amendment which my noble friend has moved relates to the first stage. That is a gateway which we believe the case ought to be allowed to go through if the two tests are met—namely, that it is a case where disclosure of material is required. We envisage that the Secretary of State would present the material to the court. If there were a vast number of documents, he could present a sample, giving the flavour of why he believes that issues of national security are involved, and ask for the principle of closed material proceedings to be accepted. But the detail takes place at the second stage. Therefore, our view is that the discretion would not be appropriate at the first stage because it is at the second stage that individual documents are being looked at. If the two tests are met, it is important that closed material procedures are allowed to take place, although what actually becomes closed material will be subject to no doubt considerable discussion, debate and representation. It is for that reason that we do not believe it would be appropriate to allow judicial discretion in these circumstances.
However, I certainly take the point about Clause 7(1)(c) that was made by the noble and learned Lord, Lord Falconer, and referred to by my noble friends Lord Hodgson and Lord Thomas. If they feel that that is a total barrier and does not allow the kind of discussion, debate and representation to be made at the second stage that we clearly intend should be part of this process, we are happy to look at it.
Lord Hodgson of Astley Abbotts
Perhaps I might ask for clarification for a non-lawyer. Clause 6(2) has the two tests: a requirement to disclose and whether the disclosure is damaging. No matter how trivial or tiny the case is, you go through that sequence. Then we have the second stage of a gateway that could result in further actions to open up material by redaction and enable it to be disclosed and so on. Where does that second stage come in? Am I right in thinking that Clause 6(2) applies no matter how trivial the matter is?
Lord Wallace of Tankerness
My Lords, if the test is made as to whether it,
“would be damaging to the interests of national security”,
with all due respect, I do not think that is a trivial matter, and I do not think the Secretary of State would actually seek to do it if it was a very minor matter. We are talking about matters that would have to satisfy the court that it,
“would be damaging to the interests of national security”.
That is quite a serious level of consideration. We are not talking about something that is trivial. What I am trying to say is that if the Secretary of State sought to do something that perhaps was not so much in the interests of national security but might be thought in some way to be hiding an embarrassment, as is clear also from the Bill—I think it is in Clause 10(4)—special advocates are engaged at the gateway stage and obviously we would make representations to that effect. If the court was not satisfied that this was a matter of damaging the interests of national security, the test would not be met and it would not be appropriate for the closed material procedure application to succeed.
Lord Lester of Herne Hill
I was trying to be helpful—and obviously failing—in asking why the Government do not accept that the principle of proportionality must apply at the second stage. It is an ancient principle of our common law that you do not take a sledgehammer to crack a nut. Provided that the judge has that discretion, it seems a very important safeguard. Could whether or not to write it into the Bill be considered before Report?
Lord Thomas of Gresford
If I may add to that, my Amendment 58 seeks to add words to Clause 7(1)(c) that would introduce a test of proportionality. Clause 7(1)(c) says,
“that the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security”,
to which my amendment would add,
“and that damage outweighs the interests of justice in disclosure”.
That would introduce a balancing test for the judge. As I understand what my noble and learned friend is saying, Clause 6(2) is concerned with the gateway and that could be satisfied by the production of a sample of material. But when you get to the second stage, the judge would be considering things in absolute detail, endeavouring to perhaps make things available by redaction or other means. Even when doing that, my Amendment 58 would be a very appropriate addition to Clause 7(1)(c).
Lord Wallace of Tankerness
My Lords, I know my noble friends are trying to be helpful and I am sure that equally they will understand why I am not prepared to make a concession on the hoof, as it were. This is clearly something one would wish to consider and clearly we will also have the opportunity in good time to consider my noble friend’s Amendment 58. I am glad that he made the distinction between getting through the gateway—which is what Amendment 45 applies to—and the second stage. We are of the view that if the two tests in Clause 6(2) are satisfied to the discretion of the judge, the application for the closed material procedure must succeed and thereupon the detailed consideration of the documentation takes place under the rules of court, which are to be set out under Clause 7.
Lord Falconer of Thoroton
I understand that the noble and learned Lord is seeking to say that there is no discretion to determine whether the threshold is passed. However, something akin to a discretion is reached in Clause 7. Looking at the wording of it, the Clause 7 requirement is rules. Under Clause 7(1)(a), you are not allowed to have the claimant present when you are looking at the individual material. If the court is satisfied that there is damage to national security, it has give permission for it not to be disclosed. It is not a discretionary matter. It is simply determining, as the noble Lord, Lord Thomas, said, whether the threshold is met. If the threshold is met, there is no discretion. One additional power is given; namely, can a summary be given that does not give away the national security material? It is not a question of proportionality. It is exactly the same test in practice as that which is referred to in the gateway in Clause 6(1). If the Secretary of State says, “If you disclose that document I am advised by the security services that it will damage national security”, unless the judge thinks that the Secretary of State is irrational, which would be very rare, he will be obliged to give effect to that. It is not a question of discretion at all. There are no balancing factors. It is simply, “Right, the consequences are that I cannot disclose that. Can a summary be given?”. That is the only thing that a judge is allowed to consider under this Bill. Although I understand what the noble and learned Lord is trying to say, it is not really right to say that there is a gateway under Clause 6 and then some sort of discretion under Clause 7. There is not a discretion under Clause 7.
Lord Wallace of Tankerness
My Lords, I make the following point in response to what the noble and learned Lord says. He is right to say that Clause 7(1)(d) would give rise to gisting. However, under Clause 7(1)(c), it may well be that after representations, argument and debate a document is redacted, and of course the redaction may well be the material that should not be disclosed because it is the material which could be damaging to national security. However, once redacted, the remainder of the document might then be admitted to open proceedings. That is an important part of the process. It is not a blanket application to the document as a whole. It may be that the non-disclosure extends to only part of that document. Only part of that document would be a matter of damaging national security. For example, it could be that a document gives the name of an agent. If that was redacted, the rest of the document could well be admitted to open proceedings, but the name of the agent is something which quite properly should not be disclosed.
Lord Wallace of Tankerness
The noble and learned Lord says that it would not get through the gateway, but it is not a gateway for every document. It is a gateway to trigger the closed material proceedings. It may be a sample document saying, “Here is the kind of defence we want to mount. There is material here on which we will wish to rely but it cannot be put into the public domain because it would be damaging to the interests of national security”. If the judge agrees that there is documentation there that would satisfy that, the application is granted and thereafter the documentation or evidence is gone through page by page. It may be that you can take something out of a document and the rest of it would be quite safe from the point of view of national security to allow into open proceedings.
That is the process that we envisage being gone through at stage 2. It is an important part of the process, which means that only a small amount of material would be subject to closed material proceedings. However, to get to that process of going through material document by document, you must first get through the gateway. It is on getting through the gateway, if the two tests are satisfied, that the application should be granted. Going back to my noble friend’s amendment, he argues that there should be some discretion at that point. The Government’s position is that the two tests should be met but can be challenged. Special advocates can be involved at that stage to challenge whether the tests have been met. However, if they are met, we should get through the gateway and, thereafter, we can look at issues such as redaction and gisting. That is an important part of the stage 2 proceedings.
Lord Lester of Herne Hill
I am sorry to pursue the matter once more. When a judge is deciding on the scope of an injunction, or on whether a restraint of trade is no more than is necessary, that judge is then applying the principle of proportionality. I do not understand why the same does not apply here. When the judge is deciding on such things as redaction and looking at documents, surely he or she will decide that there should not be overkill, that the interests of justice are to be weighed and that the principle of proportionality should therefore apply. However it is expressed, that is the same as the European test under both EU and convention law. It is also the same under our own scheme. I do not understand why that does not apply here.
Lord Wallace of Tankerness
My Lords, I think I have already replied to my noble friend. I indicated that he had raised the issue of proportionality and that I would not make a concession on that point on the hoof. However, I also undertook to consider it.
Lord Hodgson of Astley Abbotts
My Lords, I am grateful to my noble and learned friend for those comments. I have listened carefully to him on the interplay between Clauses 6 and 7. Obviously, we shall look further at Clause 7 in relation to what can and cannot be revealed and the implications for the gateway, as he put it, under Clause 6(2). I have a slight instinctive dislike of the word “must”, which remains in my mind because of the issue of judicial discretion. However, we will no doubt get further illumination on that as we get to Clause 7 and the later amendments. That may make me wish to consider this again but, in the mean time, I beg leave to withdraw the amendment.
Lord Beecham
My Lords, I have some sympathy with the suggestion of the noble Lord, Lord Thomas, that habeas corpus proceedings should fall within the civil proceedings provisions of the Bill. I am less persuaded by the argument to include any action against the police. It would probably seem wrong to exclude these specific actions from the procedures, not least in the light of the Crime and Courts Bill, with the creation of the National Crime Agency, the extension of powers to the border agency and the like, and the possible involvement of ordinary police forces under the auspices of the NCA in matters which could go to issues of terrorism or other aspects of national security.
The noble Lord may have a point about habeas corpus and it would be interesting to hear the Minister’s response to that, but I do not think that the Opposition could necessarily support the amendment as it stands. There is the problem that we will refer to later about definitions of national security and the like, which possibly offer a more fruitful way of narrowing the scope of the provisions of the Bill. Having said that, I entirely concur with my noble and learned friend’s view. Anything that I say on subsequent amendments or indeed in relation to this amendment is without prejudice to the stance that we take, but we are yet to be persuaded of the case for closed material procedures in the first instance. All the discussions that have taken place so far, and that we will continue to have in relation to this part of the Bill are subject to that distinct reservation. We are not, therefore, conceding the point when we look to see what ultimate fallback provisions might be desirable and necessary if it is the wish of your Lordships’ House on Report to go forward with the Bill in much the condition that we now find it. We will be looking to discuss amendments and we hope that the Government will respond positively to some of them but in relation to this amendment we will be commending the latter part to the Minister’s attention.
Lord Wallace of Tankerness
My noble friend’s amendment seeks to narrow further the contexts in which a CMP can be used. I hope I can demonstrate to your Lordships that the Bill is already very narrowly drafted and that the amendment could remove justice from those who are entitled to it. The Bill as drafted allows CMPs to be used only in relation to information damaging to the interests of national security, only in the High Court, Court of Appeal or Court of Session, and not in a criminal cause or matter.
The amendment would mean that CMPs could not be used in any action against the police or law enforcement agencies, or any action seeking a person’s release from detention. Where such cases involve information that cannot be disclosed for reasons of national security, this amendment would not allow judges to reach a judgment based on all the facts. Claims relating to national security should, surely, be capable of being heard, rather than material being excluded by way of public interest immunity, regardless of whether the defendant is the police or a government department. As was reflected in the comments of the noble Lord, Lord Beecham, the police play a vital role in national security in, for example, counterterrorism investigations. There may be many civil cases which would involve the police—it would not necessarily be directed against a Secretary of State—and it would be unfortunate if they were to be excluded from the possible use of CMPs. Judges should be able to come to a judgment on the full facts in any case relating to national security.
The Bill is designed to increase justice for claimants and defendants in all civil cases where national security means that, otherwise, information could not be put into open court. This amendment would take that justice away from claimants who bring a national security case against the police or law enforcement agencies, or where, as my noble friend explained, the case is about a person’s release from detention. Cases about a person’s release from detention in the UK will generally be in the context of a criminal cause or matter where CMPs are not available, but should this not be the case, it is important that all of the material is before the court, if possible, rather than being excluded by PII.
My noble friend gave a quotation about habeas corpus going back to the reign of King Edward I. I hope that I do not strike too nationalistic a tone, but north of the border, Edward I is not seen as a fount of justice and liberty. That apart, my noble friend raises a serious point. It is our considered view that in the context of habeas corpus cases it is vital that the court is in possession of relevant material before making a decision to issue a writ. Without all of the relevant information, it may not be possible for the court to come to the right decision.
I know that noble Lords are concerned that the nature of the types of cases covered by this amendment creates a greater need for transparency, and that, indeed, in some circumstances, such as proceedings into potential violations of Article 5 of the European Convention on Human Rights, there is a requirement for transparency. The argument that public confidence requires fully open proceedings in such cases is an understandable one, but I believe that these concerns can be addressed through our current proposals. Nothing in this Bill is incompatible with the ECHR. My noble friend has raised a serious point about detention. I will reflect further on it, but our approach is that it is important, even in these cases, that all the material, if possible, is made available to the court before a decision is made, rather than some of being excluded through PII. I will reflect on what he has said, but our view is that we have struck the right balance. I hope that on that basis he will be able to withdraw his amendment.
Lord Thomas of Gresford
I know that my noble and learned friend is heading for the sleeper so perhaps we can send homewards to think again about this issue. Habeas applications in the United States have a special procedure and the importance of it is that the applicant for habeas is given some idea of what he is facing. I am not saying that habeas corpus applications should be completely open, but it is inappropriate to apply the strictures and limitations contained in the Bill to applications of that sort. It is a matter that we can discuss. On that basis, I beg leave to withdraw the amendment.
Justice and Security Bill [HL]
Lord Wallace of Tankerness Excerpts(11 years, 10 months ago)
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Lord Pannick
The noble Lord is absolutely right. The purpose of the new clause before Clause 6, and the detail that is set out in Amendment 39, is that it is an attempt—with the very considerable assistance, as the noble Lord, Lord Faulks, said, of the legal advisers to the Joint Committee—to set out in statutory form the common law position. That is its purpose; but I emphasise that PII is not a procedure that requires disclosure. It is distinct, as the noble and learned Lord, Lord Lester, says, from the issues that we will be discussing on Norwich Pharmacal where the concern is that if the judge makes an order, there must be disclosure.
My fundamental objection to Clause 6, and the reason I support these amendments, is that under subsection (5) the Secretary of State, before he decides whether to make an application for a closed material procedure, must first consider whether to make a claim for PII. So the obligation is on the Minister to consider whether to apply for PII or not. That is all to the good. However, if a closed material procedure application is made by the Secretary of State—or indeed by anybody else—Clause 6(3) provides that,
“the court must ignore … the fact that that there would be no requirement to disclose if … the material were withheld on grounds of public interest immunity”.
As I understand Clause 6, the judge is obliged to ignore the possibility of PII. I take the view that, just as the Minister ought to consider whether PII provides a satisfactory means of resolving the conflict between security and fairness before he applies for a closed material procedure, equally, the judge should have to consider that.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
The noble Lord made the same point at Second Reading. Perhaps I might explain how subsections (2) and (3) interact. I understand the point that he is making but it is not as fundamental as he represents it. If I have got that wrong, I apologise. He will realise that under subsection (3) the court has to decide,
“whether a party to the proceedings would be required to disclose material”.
That relates back to the first leg of the two conditions that must be satisfied in subsection (2)—namely, that in paragraph (a). The point is that the judge cannot say, “You wouldn’t have been required to disclose this because it could have been dealt with by PII”. This provision tries to ensure that, if you did not have PII, there would nevertheless be an obligation to disclose evidence under, I think, Part 31 of the Civil Procedure Rules. I hope that explains why this is not a matter of principle but one that indicates what might otherwise be required to be disclosed.
Lord Pannick
I am very grateful to the noble and learned Lord, who is characteristically very helpful on these matters. However, I hope he will accept that it is absolutely vital, in a matter of such importance and sensitivity, that we make it very clear in the legislation that the judge, when asked to decide whether to go into a closed material procedure—in which he will decide the case by reference to evidence that has not been seen by one side—will do so only if he is satisfied that there is no other lawful, proper means of resolving the question. If the Minister is telling me that the Government’s intention is that the judge should first ask himself whether the problem can be resolved by, for example, gisting or redacting the material or by some other means, or that the judge has a power to say to himself, “This material is really not very important in determining the case. Therefore, I do not need to go into a closed material procedure”, I would be very relieved and satisfied.
I ask the noble and learned Lord to reflect on this point. The issue is not really about the proper interpretation of the very difficult words in Clause 2. The question is one of principle, about what we seek to achieve. For the reasons that I have sought to identify, I hope that the Committee and the noble and learned Lord will agree that we should end up in a position whereby the clause states unambiguously that—given the disadvantages that it inevitably involves and the unsatisfactory nature of such a procedure—a closed material procedure, although it may be needed in exceptional cases, should be adopted only if there is no other fair and proper procedure that can be adopted, and if that is the view of the judge who is hearing the case.
Lord Falconer of Thoroton
Yes, and indeed my noble and learned friend—although I should not refer to him as learned, but he is learned in every other respect—Lord Beecham is saying that that is exactly the point that the noble Lord, Lord Thomas, made. There is agreement all round on that.
Where we come out in relation to this is: prove your case. If you do that, then having no balancing or requirement to go through steps beforehand is an inadequate response. We favour more the amendments tabled. We particularly like the idea of flexibility that the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Thomas, have advanced. We hope that the Government will, having heard the debate, produce a reformed approach that will reflect a pretty unanimous view around the House on how best to deal with this issue.
Lord Wallace of Tankerness
My Lords, I join the noble and learned Lord, Lord Falconer of Thoroton, in congratulating all who have taken part in the debate. It has been very helpful. I certainly welcome the spirit in which various proposals were put forward.
Perhaps I may deal first with the noble and learned Lord, Lord Falconer, who said that he remains to be convinced. I noted that most other contributors to the debate thought that there were cases, albeit a small number, where closed material proceedings would be required. He quoted David Anderson QC, who has had access to some of the material and has been satisfied. There is only a small number of cases. No one is claiming that there is a huge number, and I will come on to that in a moment. There is the experience of people such as the noble Baroness, Lady Manningham -Buller, who have seen the kind of cases where this issue could arise. I generally agree with the analysis where the noble and learned Lord, Lord Falconer, indicated at the outset of his speech that there were two different issues here—fairness in civil proceedings that by their nature are not of the Government’s instance, and other cases that we will consider later in Committee with regard to Norwich Pharmacal.
We are trying to secure fairness. The Bingham Centre for the Rule of Law, which has been quoted and referred to in this debate, said, in its response to the public consultation that,
“we consider that the prospect of claims alleging very serious wrongdoing on the part of state agencies (such as complicity in kidnapping, forced disappearances and torture—as have been made in several recent cases) being dismissed because key evidence inculpating state agencies is held to be immune from disclosure, to be a very concerning one from the perspective of the rule of law”.
We are seeking to ensure that there is material there and, if so, that it can be placed before a judge, obviously subject to safeguards, and that if national security issues are involved they would not be prejudiced by the material coming into the public domain.
I detected in the debate a sharing of that objective. It is perhaps worth reminding the Committee that in the Green Paper that the Government published last year, we made it clear in paragraph 2.4 that:
“CMPs should only be available in exceptional circumstances, and where used, every effort is and should continue to be made to have as much material considered in open court as possible. But in the small number of cases where sensitive material is crucial to the outcome, it is better that the court should be able to decide the case, despite the additional complexities a CMP might create, than—in a worst case—that the case should not be tried at all”.
We also said in paragraph 2.5:
“An appropriate mechanism for triggering the CMPs will help to ensure that they are only used where it is absolutely necessary to enable the case to proceed in the interests of justice. The principle of open justice is an extremely important one, and any departure from it should be no more than is strictly necessary to achieve a proper administration of justice”.
I hope that that provides reassurance to a number of my noble friends; the noble and learned Lord, Lord Woolf, emphasised the importance of it—as did the noble and learned Lord, Lord Falconer.
Perhaps I may first address the amendment of my noble friend Lord Faulks. It would introduce a system of statutory public interest immunity for national security material only. I fully recognise that the purpose of the amendment is, as it were, as a precursor to Amendment 40. As the noble and learned Lord, Lord Woolf, indicated, nevertheless it would represent a change from a situation where public interest immunity has proceeded on a common-law basis. Putting it on a statutory footing would be a significant change. We obviously need to put closed material proceedings in civil cases on to a statutory footing, because in Al Rawi the Supreme Court indicated that there was no common-law basis for them. We are dealing with two different things in that respect.
PII is a principle that the courts have developed over a number of years to deal with the handling of sensitive material, and a wide and flexible range of public interests falls within its ambit. However, I have concerns that to change all these things may lead to more difficulties than the problem the change was intended to resolve. The Government ruled out a statutory PII in the Green Paper because it would offer little advance on the current system in providing clarity on the applicable principles, stability and certainty. If you start to create a statutory presumption in relation to national security when PII is asserted, it would start to raise questions when PII is claimed and sought in respect of some other grounds.
However, I accept that the primary purpose of the amendment was to prepare the way for Amendments 40 and 47, on which my noble friends Lord Faulks and Lord Thomas raised important issues about the relative benefits and interaction of closed material proceedings and public interest immunity.
My noble friend Lord Faulks asked whether Clause 6(5) was a tick-box exercise. It is important to emphasise that it is a statutory duty. The Secretary of State would consider whether a claim for PII should be made before applying for a CMP on the basis that it is a statutory duty and a legally binding obligation. Were someone to apply for judicial review of that exercise, the Secretary of State would in practice need to show the court that he or she had in fact properly considered PII as an alternative to a CMP application. That entails giving the matter serious consideration, taking into account all relevant considerations, ignoring irrelevant ones, and coming to a rational conclusion on the facts of a particular case.
The statutory duty would mean that, were PII successfully claimed, for example, the Secretary of State would consider factors such as what this would mean in terms of exclusion of materials which CMPs would otherwise allow the court to take into account. It may relate to the volume of national security material, or only one piece of evidence in the case might be relevant. Why go through the requirement for PII if indeed there is only one piece of evidence or—at the other extreme, and this is the term that has been used—if it is saturated? It may also relate to how relevant or sensitive the national security material is to a particular case. However, it is not a tick-box exercise.
Lord Lester of Herne Hill
I do not understand why it is sensible to do this by way of satellite litigation—judicial review of a Minister—rather than leaving the judge at the centre to make the judicial decision himself.
Lord Wallace of Tankerness
My Lords, I come on to why I do not agree that the PII ought to be exhausted first, and that that should be the test of what should apply with regard to an application. I have indicated why it would not be advisable, and I totally accept what my noble friend said: he is agnostic as to the terms of this. We are just trying to find a way of reaching proceedings that are acceptable.
Lord Lester of Herne Hill
Just to clarify, I am not talking about which comes first. I do not understand why it is sensible to say that a Minister makes the decision, and then it can be judicially reviewed. Why is that a more practical and sensible approach than leaving the flexibility to the judge from the very beginning?
Lord Wallace of Tankerness
Of course, it has been Ministers who have asserted PII, and I think that is what we expect the Minister to do: to give consideration to whether that would be appropriate in this particular case before considering an application for closed material procedures.
We do not find an exhaustive proceeding of PII satisfactory because, where it is obvious from the outset that the Government would be claiming PII, and national security counts for the overwhelming majority of relevant material, why go through the PII exercise before applying to the court for a declaration that closed material procedure can be used? That may be the kind of case that the noble Baroness, Lady Manningham-Buller, was talking about. As I have indicated, the Government’s proceedings specifically include a duty to consider it. However, Mr David Anderson QC in his evidence to the Joint Committee on Human Rights said that the termination could be made without conducting a whole PII. He said that,
“if the exercise is plainly going to be futile, I do not think legislation should require it to be performed”.
Lord Pannick
I ask the noble and learned Lord whether he agrees with the evidence that Mr Anderson gave in answer to a question from the noble Baroness, Lady Berridge, when he said:
“The closed material procedure is a weapon that could usefully be added to a judge’s armoury, but it should be for the judge to decide on the fairest way to dispose of a case”.
Lord Wallace of Tankerness
The noble and learned Lord, Lord Woolf, talked about trying to square the circle. By the time I come to the end of my remarks, I will perhaps suggest that the circle is not as far from being squared as may appear from some of the comments that have been made. The noble Lord, Lord Pannick, is a member of the Constitution Committee of your Lordships’ House, and its report did not go so far as to recommend that the Bill require PII to be exhausted before a CMP declaration is sought from the court. The report stated:
“We can see force in the argument that it will sometimes be otiose to push the PII process to its completion before turning to CMP”.
Therefore, the idea that we should exhaust PII beforehand has some practical difficulties. Amendment 47 of my noble friend Lord Thomas of Gresford may try and avoid that, but I am not sure that it would because it still appears to require an exhaustive process. My noble friend referred to the Guantanamo civil damages claims, where there were 250,000 potentially relevant documents for which PII might have to be considered. We are talking about having to go through all that.
I come on to the two stages of the closed material procedures, an important part of what I wish to say to your Lordships. There is what might be described as the gateway application—basically covered by Clause 7—and then there is detailed consideration of the documents once a CMP has been granted. Of course, on the detailed consideration of the documents, not quite the same test would apply, and we would have to go through all these documents again to see if a CMP should apply to each one individually. That could take considerable time and cause delay to the claimant, which is of quite considerable importance as well.
My noble friend Lady Berridge asked if the court should have gone through PII in the Al Rawi case because it could have resulted in a balancing act and things might have gone into open court. The point is that if the court had overturned the PII certificates on Wiley grounds, the result would not necessarily have been disclosure of the material in open court, if disclosure would have damaged national security. The Government would have to seek to have the material removed from the litigation by making concessions or by seeking to settle. Indeed, that is one of the issues that we are trying to address with these proposals.
Some have suggested that under public interest immunity more material would be heard in open court than in a CMP. We do not believe this to be the case. Nothing heard in open court now should be heard in secret in consequence of these provisions. In practice—and for the very reason I have just given to my noble friend Lady Berridge—claimants will have access to the same level of information, because, where the court declares that the case is one where closed material procedure may be used, this does not mean that all material in those proceedings is automatically heard in closed proceedings. As with PII, there will be a painstaking exercise to ensure that as much of the evidence as possible is heard in open court.
This painstaking exercise has sometimes been overlooked. The noble and learned Lord, Lord Falconer, said that the Clause 6(3) test is passed and the door closes. That is not the case. The Clause 6(3) test is only that the CMP may be used in principle, and there is then a detailed assessment at stage 2 with regard to the provisions that are available, with the rules of court to be promulgated under Clause 7. I hope this addresses some concerns. The noble Lord, Lord Pannick, and my noble friend Lady Berridge made a point about the second stage of the process. The decision to go into closed material procedures is an in-principle decision, and there is no equivalent with regards to PII. That is stage 1.
In stage 2, in Clause 7, the court considers what might then be done with the material. It may be on a document-by-document basis. It could lead to redaction, and it could lead to gisting. It would be quite possible for every piece of material relevant to proceedings to be partially disclosed, redacted or gisted, If this could be done without damaging national security. I hope that that gives reassurance that there is a stage which, although not exactly the same, is a very similar test and process to PII. As we said in the Green Paper, we wish to be in open court as much as possible, and we believe that that can be facilitated by going through a stage 2 process.
My noble friend Lord Faulks asked about the points made by our noble and learned friend Lord Mackay of Clashfern on Second Reading with regard to Clause 7(3). The importance of Clause 7(3) is that it follows Clause 7(2)—obviously—and covers circumstances where if the court refuses permission for particular evidence to be heard in closed proceedings, and the Government elect not to disclose that material, the court has the power to direct that that material should not be relied on and should be excluded from the proceedings, or to give directions that concessions must be made. These are very important safeguards.
Lord Falconer of Thoroton
My understanding of the point made by the noble Lord, Lord Thomas, is that the Government can choose to go for PII and get the material out completely or, if it helps them, to say, “Let’s have it in secret without the other side seeing it”. The Government can make that choice and nothing in the Bill would make it wrongful for them to make their choice by reference to what would give them the best prospect in litigation.
Lord Wallace of Tankerness
Certainly I am aware of that concern. It was perfectly legitimate for the noble and learned Lord to raise it, because it motivated the amendments tabled by my noble friends Lord Thomas and Lord Hodgson.
For the sake of completeness, I will indicate that it is important to remember that the court will need to be satisfied that disclosure of that material would damage the interests of national security, and that any obligations under Article 6 of the European Convention on Human Rights are met. Of course the court will have the assistance of special advocates representing the interests of excluded parties in testing whether these conditions are met. I endorse what was said by the noble and learned Lord, Lord Woolf, and my noble friend Lord Carlile, that perhaps special advocates have sometimes undersold themselves. I think it was in the case of M v Home Office that the noble and learned Lord, Lord Woolf, indicated that he had been very impressed by what the special advocates had done in challenging evidence.
I move on to the point about the Secretary of State and the important amendment spoken to by my noble friend Lord Hodgson. It raises an important issue that the Constitution Committee flagged up with very seductive arguments that we should consider. I am aware that there is concern about the potential unfairness of the Secretary of State being the only party to proceedings who can make an application. However, I will explain to the Committee that we heard that the motivation behind the amendment was concern that there would be too much control in the hands of the Government, and that were they to apply for PII to exclude material from the case, the other party would not be able to request a CMP so that the information would be put before a court. As I indicated, this matter was picked up by the Constitution Committee.
There is an important constitutional point here. Under our system of government, the Executive are the guardian of the United Kingdom’s national security interests. The 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 when the sole criterion is that of national security. There would have been stronger arguments if some of the other grounds that were floated in the Green Paper had been included—but we confined this purely to national security. We believe that the courts can play an essential role.
Lord Faulks
I entirely accept what the noble and learned Lord said about the relative roles of the judge and the Secretary of State. Perhaps this might give him an opportunity to deal with the response in the Second Reading debate. It was suggested in the algorithm that the judge could decide what was in the interests of national security.
Lord Wallace of Tankerness
It was helpful of my noble friend to raise that. Clause 6(2) states that there are two ways in which a judge must be satisfied before he must grant an application for closed material proceedings. The first is that the party to the proceedings would be required to disclose material to another person in the course of the proceedings. That would normally come under Rule 31 of the Civil Procedure Rules. Again, I say to the noble Lord, Lord Pannick, that Clause 6(3)(a)(i) is there because there could be circumstances in which a judge could take the view that you would not be required to disclose something because you could assert public interest immunity, and that argument would succeed. Apart from the fact that there might be public interest immunity, if disclosure would be required under normal rules in civil proceedings, that would be the first test that the judge has to apply.
The second test is that it would be damaging to the interests of national security. It was said by a number of noble Lords, including my noble friend Lord Lester of Herne Hill, that the courts over many years have been very respectful of the government position on that. The Bill makes it very clear that the application would be one in which special advocates would be involved. They could assert to the judge that the case had nothing to do with national security and that the Government were trying to cover up some embarrassment. That is why the second test is there. The two conditions must be fulfilled: first, there must be a requirement to disclose; and, secondly, disclosure would be damaging to the interests of national security.
In practical terms, the Secretary of State would be in the best position to judge the scope and nature of national security-sensitive material. Despite the fact that the absence of a CMP might be detrimental to their interests, other parties will not even be aware that relevant national security information exists, and would not be able fully to judge what damage there might be if the information were released. It is therefore clear that the argument for the Secretary of State making the application is a strong one. Nevertheless, it can remain open to a third party to approach the Secretary of State and request an application for a CMP should they require one. One example of this might be if the police were party to proceedings involving national security-sensitive material, for example in relation to counterterrorism. The Secretary of State would assess the risk of damage and make an application for a CMP on their behalf.
If the public interest were more widely drawn than national security, there would be a stronger case for other parties to the proceedings to be able to apply for a CMP. However, as my noble friends Lord Thomas of Gresford and Lady Berridge made clear—I was asked about this by the noble and learned Lord, Lord Falconer—one concern is that the Government might want to have their cake and eat it, and might choose between claiming PII and applying for a closed material procedure opportunistically—opting for PII to exclude material and cover up wrongdoing and CMP where closed material would help their case. We do not believe that this is a realistic concern.
I assure noble Lords that the intention behind the CMP proposals is precisely that allegations against the Government are fully investigated and scrutinised by the courts. The intention is that all relevant material, helpful or unhelpful, will be put before the courts. Although it is in the first instance for the Secretary of State to instigate the CMP application, or to make a claim for PII, the power to order CMP or accept a PII certificate will rest with the judge, who will be alert to any unfairness to the non-government party, and with the CMP would have the case-management powers under Clause 7 to ensure that individual pieces of evidence are treated fairly through requiring disclosure or exclusion. It is inconceivable that a judge assessing the PII claim would conclude that the public interest in excluding material outweighed the public interest in its disclosure if the Government were cynically seeking to use PII to exclude material that undermined their case or assisted another party to the proceedings, especially where the court would know that the possibility existed of making an application for the use of a closed material procedure.
This is where the point made by the noble and learned Lord, Lord Woolf, is relevant. He said that these matters could be looked at in the round and should not be put in silos. That is what we anticipate happening. The concern is perfectly legitimate and I fully understand it. However, we do not believe in reality that that would happen, and that the judge who was asked to grant a closed material proceeding or a public interest immunity certificate would allow such cynical ploys to succeed.
Lord Thomas of Gresford
That sounds like one of the great lies. “I am from the Government and I am here to help you”. The noble and learned Lord is saying that a Minister faced with a claim against him is inevitably going to be like a judge and not weigh one thing against another. If he can win his case by going for PII instead of closed material procedures, which I suggest he can, why would he not choose to go for PII? That is why I say my suspicions would be aroused if the Minister who had that choice went for PII, knowing that excluded material could not form part of the judgment. That is the problem. For the past five minutes the noble and learned Lord has been emphasising that the judge has this decision; he has this discretion; he looks at this material; he makes up his mind. The Bill is a straitjacket whereby the Minister controls which procedures are to be followed as well as what material is to be disclosed. So I hope the noble and learned Lord will reflect on what he has been saying.
Lord Wallace of Tankerness
My Lords, I do not accept that it is a straitjacket. I have sought to indicate that at the second stage proceedings each individual piece of material will be looked at. If disclosure subject to redaction is needed, that is what will be ordered. If gisting is needed, the power will be there for the court to do that. I do not believe there is terribly much between anyone as to what we seek to achieve. I have made it clear that it is not the intention of the Government that uncomfortable, unhelpful evidence should be held back. Indeed, I have just said that it is our intention that all relevant material should be before the court. If your Lordships do not think that the wording achieves that, it would be only proper, given the quality of the debate we have had, for me to reflect on the points that have been made. We are all grappling with how we get the procedure that achieves an objective which is widely shared.
I hope noble Lords will also consider the points that I have made. Some of the comments made suggested that it had not been fully understood what the nature and extent of the second stage procedure would be with regard to individual documentation and evidence once the gateway had been opened and the principle of closed material proceedings had been accepted. I hope noble Lords will reflect that that procedure is available. I am more than willing to engage with the Opposition, with my noble friends and with Cross-Benchers to see if we can address the objective in a way which does not defeat the object of this but ensures that in cases where justice and fairness demand that material should be made available, material which would be damaging to national security were it to go into the public domain, that that can be achieved. I have no doubt that when I invite my noble friend to withdraw his amendment he will indicate that we will come back to it at the Report stage. I sincerely hope that over the summer months we can have some consideration of it and perhaps the agnostics might become believers.
Lord Lester of Herne Hill
Just to be clear, is the Minister saying that he accepts that the judge at the first stage should have complete discretion in deciding on case management and whether it should be dealt with first by PII or not? If not, why is that such a bad idea?
Lord Wallace of Tankerness
My Lords, that is not what I said. I did say, however, that the judge at the first stage has to be satisfied that two tests are met before he even opens the gateway to closed material proceedings. There has perhaps been some misunderstanding that when you pass through the gateway, everything suddenly becomes subject to closed material proceedings. That is not the case. It is at that stage that individual pieces of evidence are looked at. That is a materially different position from the one which has sometimes been suggested that the gateway is the be-all and end-all and once you go through the gateway the doors and the shutters came down. That is not what is proposed but obviously if noble Lords do not believe that is properly reflected in the drafting, I am more than happy to try to find a way in which we can proceed.
Lord Falconer of Thoroton
My Lords, I am grateful for that constructive indication. I would co-operate fully in trying to draft an answer that reflects what the noble and learned Lord is saying. I understand him to be saying that if a PII application were made, the judge would be able to say, “You cannot keep all this secret. You should deal with it in a CMP”. That is what I understand the noble and learned Lord to be saying. I think he is nodding, although it may be an involuntary twitch. Assuming that he is nodding, there seems to me to be a problem in the drafting because it gives the court the power to make a CMP order only where there is an application by the Secretary of State. I would be more than happy if the solution reached was to apply to the judge who has the power to decide, balancing all the factors, whether this should be PII, complete disclosure or a CMP. That is not what the Bill says now but that is broadly what I understand the noble Lord, Lord Thomas, to be arguing for—the noble Lord, Lord Lester, is nodding—and the noble and learned Lord, Lord Wallace, to be saying. I am more than happy to sit down with everybody and draft that but that is not the current position.
Lord Thomas of Gresford
Perhaps I may add that my Amendment 45, which we have not come to, is designed to replace the word “must” in Clause 6(2) with “may”—in other words, a discretion for the judge to decide whether to make a declaration based on the criteria that he must apply.
Lord Wallace of Tankerness
My Lords, again we are falling into the trap of jumping to stage 2 and thinking that the application immediately rules everything as closed material, which is not the case. If there is a body of evidence which can be presented to the judge showing that interests of national security are absolutely pertinent to the determination of this case, it is “must”; there must be closed material proceedings. But, as I have indicated, that does not mean that every piece of evidence is to be excluded and is not to be disclosed. If the Secretary of State cynically applies for PII when a CMP is available, the judge may not be disposed to grant PII. What I understood from the noble and learned Lord, Lord Woolf, is that the reality, particularly if you have special advocates arguing the case, is that unless the Secretary of State seeks a CMP for this kind of material he will have less of a chance of getting his PII accepted. Even if a CMP application was not made by the Secretary of State and a request was made to him for a CMP which he refused, that in itself would be judicially reviewable. If that refusal was seen to be unfounded and irrational, or the only rationality was to hide malfeasance, then clearly that would weigh heavily with the Secretary of State. I have indicated what we intend to achieve by this. I repeat: the intention is that all relevant material, helpful or unhelpful, will be before the courts. I think we can have a worthwhile discussion as to how that could be brought about.
Lord Faulks
My Lords, this has been a lengthy but helpful debate. I am grateful to all noble Lords for taking part and for the very constructive comments that the noble and learned Lord, Lord Wallace, has made. It seems to me that we are moving, if not dancing as the noble and learned Lord would have it, towards some sort of consensus here. The question is whether we have found the right route to CMPs—an option which should be exercised only in the last resort. As the noble and learned Lord, Lord Woolf, said, it is certainly better than nothing. It is hoped that there will not be many cases that need CMPs. Like the noble Lord, Lord Lester, I do not wish to be competitive about which amendment is preferable. The amendments are intended to probe the somewhat complex provisions. There has been a great deal of clarification from the noble and learned Lord, Lord Wallace, for which I am grateful. It is still not entirely clear to me how some of the various parts of the procedure are going to work with each other. I think it is accepted that there is room for some improvement in that regard.
The noble and learned Lord, Lord Falconer, asked for the evidence that PII is actually working. Apart from the anecdotal evidence and the absence of appeals, there is some substantial evidence from the special advocates themselves, who say that not only is it working but it is enough, and they do not support the possibility of CMPs at all.
I accept that there is always a danger in putting in statutory form something that is in common law; it could perhaps remove the possibility of growth. None the less, PII is a mature form of the common law and the definition of PII contains a great many checks and balances, as this statutory interpretation has set out. Taking Amendments 39 and 40 together, it looks a rather complex procedure, formulaic or even a straitjacket. In practice, all it is doing is summarising what is well established, and there will indeed be a great deal of flexibility even if one were to follow the terms of the amendment.
Flexibility is clearly desirable, but I would reiterate that it is most important—as the Government acknowledge in Clause 6(5)—that the question of PII should be properly considered, and potentially judicially reviewable. This amendment puts in the Bill an obligation to go through the process before going to CMPs. I suggest that, with modifications, that represents a positive safeguard on what I hope will be a rarely resorted to but undoubtedly necessary procedure. In the light of what has helpfully been said, I am happy to withdraw the amendment.
Justice and Security Bill [HL]
Lord Wallace of Tankerness Excerpts(11 years, 10 months ago)
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Lord Wallace of Tankerness
That it be an instruction to the Committee of the Whole House to which the Justice and Security Bill [HL] has been committed that they consider the Bill in the following order:
Clause 1, Schedule 1, Clauses 2 to 15, Schedules 2 and 3, Clause 16.
Justice and Security Bill [HL]
Lord Wallace of Tankerness Excerpts(11 years, 11 months ago)
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The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, the United Kingdom’s security and intelligence services do superb work in keeping us safe. But if we are to be true to the democratic values that they fight to defend, it is right that their actions should be subject to proper judicial and parliamentary scrutiny.
Every Government must find a way to resolve the competing demands of liberty and security. It is one of the most important challenges to government, and one of its key responsibilities. We need to consider with great care how we strike that balance. I can assure your Lordships that in bringing forward the Bill, Ministers have sought to exercise the care required to strike that balance.
It is because the Government are not satisfied that our system is delivering this scrutiny as well as it should be that we are bringing forward the Justice and Security Bill. The Bill seeks to address three widely recognised problems. First, a number of civil cases cannot be heard by a judge because they hinge on national security-sensitive evidence that cannot be disclosed openly. At present the Government’s only options are to ask the courts to strike out such cases as untriable or to try to settle them, often for large sums of money, even where they believe that a case has no merit. Secondly, a remedy in intellectual property law has recently been extended to allow someone bringing a claim outside the United Kingdom to apply to a court in London to force disclosure of intelligence information held by the British, including information provided by our allies. This is already seriously undermining confidence among our most important partners, including the United States. Thirdly, oversight of the intelligence community lacks independence from the Executive and has too limited a remit to ensure full and effective accountability.
The response to these problems that I am outlining today has its origin in the Justice and Security Green Paper published last year and noble Lords will be aware that the proposals it contained were the subject of extensive debate by the public, stakeholders and the media. The Government listened carefully to the views received during that consultation. While many respondents acknowledged the underlying problems that our proposals were trying to sort out, there was also considerable concern that our plans for closed material procedures—so-called CMPs—were excessively broad in scope and risked undermining this country’s proud tradition of civil liberties.
The Government’s position has always been that protecting the public should not come at the expense of our freedoms. We have therefore extensively revised our proposals by narrowing their scope and strengthening safeguards. The case I want to make today is that the plans in the Bill are sensible, proportionate and targeted at a genuine and serious problem.
Lord Clinton-Davis
I take it that the noble and learned Lord is aware of the severe criticisms launched by Mr Andrew Tyrie, the Member of Parliament for Chichester. He has come to the conclusion that the proposals in the Bill,
“offend the principle of open justice”.
When the noble and learned Lord says that these issues have been ventilated, has he taken into account the views that have been expressed?
Lord Wallace of Tankerness
My Lords, I can assure the House that we are aware of the concerns expressed not just by Mr Tyrie but by a range of people during the consultation and subsequently. We have sought to wrestle with those concerns. I indicated that it is the age-old challenge between trying to balance the interests of security and liberty. I can assure the House that in presenting the Bill we have sought to wrestle with these issues and to come forward with a set of proposals that are sensible, proportionate and targeted at a genuine and serious problem.
I begin with the important matter of improved parliamentary and independent oversight of the security and intelligence agencies. The Intelligence and Security Committee does an excellent job of overseeing the administration, expenditure and policies of the agencies. I know that members of the committee are present here today and have put down their names to speak in the debate. However, the ISC operates within arrangements that were established by Parliament in 1994. In the past 18 years, and particularly since 9/11, the public profile and budgets of, and indeed operational demands on, the agencies have significantly increased, but there has been no change to the statutory arrangements in place for oversight.
Although in the past the ISC has overseen operational matters, it has done so relatively infrequently. The ISC has no explicit statutory locus to oversee such matters. Its statutory remit is also limited to oversight of the security and intelligence agencies, although it has long heard evidence from the wider intelligence community. The ISC currently reports only to the Prime Minister, who appoints its membership, and there are some limitations to the way it works. The heads of the security and intelligence agencies can, in certain circumstances, withhold information from it. The ISC is wrongly perceived by some to be a creature of the Executive, not least as it is funded and staffed by the Cabinet Office. We believe it is time to put the ISC on a much stronger footing and enhance its independence to strengthen the very valuable work it has done so far and give Parliament more effective oversight of the intelligence and security agencies.
Part 1 of the Bill extends the ISC’s statutory remit, clarifying that it will in future be able to oversee the agencies’ operations. It will also in future report to Parliament as well as to the Prime Minister. Its members will be appointed by Parliament, after nomination by the Prime Minister. In parallel, the Government intend to press ahead with the Green Paper proposals that the ISC is funded by Parliament, accommodated on the Parliamentary Estate and that its staff will have the status of parliamentary staff. Finally, the power to withhold information from the ISC moves to the Secretary of State responsible for that agency; in other words, to a democratically accountable representative. These may sound like technical changes but together they will help to ensure that we have effective, credible and genuinely independent oversight of the activities of the security and intelligence agencies, renewing public confidence that someone is watching the watchers on their behalf.
The provisions of the Bill that have to date probably prompted the most comment are in Part 2, including the use of closed material procedures. The Government are strongly committed to open and transparent justice. However, the courts have long accepted that sensitive intelligence material—for example, the names of security agents or information about techniques used by intelligence agencies—cannot be disclosed in open court. In the famous case in the last century of Scott v Scott, Viscount Haldane in the House of Lords acknowledged that exceptions to that principle of open and transparent justice,
“are themselves the outcome of a yet more fundamental principle that the chief object of courts of justice must be to secure that justice is done ... As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield”.
Under current rules, the only available way of protecting sensitive intelligence material which would otherwise be disclosed, and which would damage the public interest if disclosed in open court, is to apply for public interest immunity. If such an application is successful, the result is the exclusion of that material from the court room. An example of the difficulties which may arise is where a case is so saturated in this type of sensitive material that the PII procedure removes the evidence that one side, either defendant or claimant, requires in order to make its case. The options, then, are not attractive. In judicial reviews, the Government may find themselves unable to defend an executive action taken to protect the public—for example, the exclusion from the United Kingdom of a suspected terrorist or gang lord—simply because they cannot explain their decision when defending it. Equally, claimants may find themselves unable to contest a decision taken against them. This is what Mr Justice Ouseley observed in the recent case of AHK and others where claimants were challenging decisions to refuse naturalisation. His Lordship noted that if the alternative to a CMP is,
“that the claimant is bound to lose, no matter how weak the grounds against him, there is obvious scope for unfairness towards the claimant”.
In claims for civil damages, typically against the Government, the defendant is either forced to seek to settle the case by paying out compensation, assuming the other side is willing to agree to settle, or it has to ask the court to strike out the case as untriable. The result is that these cases are not heard before a court at all. There is no independent judgment on very serious allegations about government actions. The recent settlement of the civil damages claims brought by the former Guantanamo Bay detainees underlines this point. The evidence on which the Government needed to rely in order to defend themselves was highly secret intelligence material, which could not be released in open court.
Lord Morris of Aberavon
I am grateful to the noble and learned Lord. The use of public interest applications is familiar to many of us, even in quite ordinary run-of-the-mill cases brought before a recorder. What is the best estimate the noble and learned Lord can give of the volume of applications where something more is required such as the closed material procedures now proposed?
Lord Wallace of Tankerness
My Lords, I am cautious about hazarding the estimate that the noble and learned Lord asks of me. In the Green Paper, we indicated that the kind of cases that we were looking at were 27 current claims. The most recent figures that I have, as of yesterday, show that the numbers have fluctuated somewhat since October 2011 at the publication of the Green Paper. Currently, there are estimated to be 29 live cases, which were of the type cited in the Green Paper. To give an estimate of the number of cases where sensitive information was central to the case, based on current cases handled by the Treasury Solicitor, there are 29 live cases but they exclude a number of appeals against executive actions that are currently stayed. There are 15 civil damages claims; three asset-freeze judicial reviews; seven exclusion judicial reviews; four lead naturalisation judicial reviews; and around 60 further naturalisation judicial reviews stayed behind these cases. I hope that gives the noble and learned Lord and the House an idea of the kind of figures that we are dealing with where we believe that sensitive information is central to the case, based on the estimate of the Treasury Solicitor at this time.
The recent settlement of the civil damages claims brought by the Guantanamo Bay detainees underlines the point that I was making. The evidence which the Government needed to rely on in order to defend themselves was highly secret intelligence material, which could not be released in open court. One option open to the Government would have been to claim PII over that material. If the PII claim had been successful, the Government would have succeeded in excluding a very large quantity of material, but material that they would have wanted to rely on to defend their position. The only practical option was to settle the claims for significant sums without admitting liability.
Although the numbers of these cases are small, they often contain extremely significant allegations about the actions of the Government and the security and intelligence agencies. There is a real public interest in being able to get to the truth of such allegations. Indeed, I think it is arguable to say that the rule of law is supported by courts being able to reach determinations on such matters. Although such settlements are often made without any admission of liability being made, as we all know, mud sticks. Allegations have been made in public that have never been examined or rebutted, and many people choose to believe that they are true. The damage to the reputation of this country can be immense and those unrebutted allegations can be used by individuals seeking to garner support for terrorism in retaliation for perceived wrongdoing by this country.
This is the backdrop against which our plans to allow material to be heard in court via CMPs should be seen.
Lord Thomas of Gresford
Perhaps my noble and learned friend would explain how the public would be more informed and the allegations of wrongdoing on the part of the Government would be exploded by the use of CMP procedures when, by definition, it would all remain secret.
Lord Wallace of Tankerness
My Lords, the point I was seeking to make is that if one goes down the route of PII, the issues will never be tested at all. It may be that so much material has to be withheld that it is not possible for a determination to be made and the Government may be forced to settle. I do not believe that that enhances the confidence of the public in the security services.
It is an irony somewhat overshadowed by the controversy over CMPs that, before recent developments in case law, courts were themselves successfully using this approach in civil cases where sensitive evidence was involved to ensure it could be heard but also considered and tested. For example, a peace campaigner called Maya Evans sought to challenge United Kingdom policy in relation to the transfer to the Afghan authorities of suspected insurgents detained by UK Armed Forces in the course of operations in Afghanistan.
The Marquess of Lothian
I take the noble and learned Lord’s argument and I accept the need for having the closed material procedures in relation to information of sufficient sensitivity, but why would equivalent information of the same sensitivity not require the same protection in an inquest?
Lord Wallace of Tankerness
My Lords, as my noble friend knows, these issues were canvassed in the course of the consultation. A considerable number of representations were received indicating that this would not be appropriate in the context of inquests and, of course, PII would apply and would be available. The Government listened to those representations and responded to them by not having inquests covered within the ambit and scope of the Bill.
I was explaining the question on that particular case. An allegation was made that people transferred into Afghan custody were and continue to be at real risk of torture or serious mistreatment and that the practice of transfer was therefore unlawful. There was a CMP for part of the proceedings, with the consent of all parties. After examining all the relevant evidence, the judge concluded that transfers into Afghan custody at two sites could continue only provided that a number of additional safeguards were observed, and that a moratorium on transfers to another site should continue until there were clear improvements that would reduce the risks of mistreatment. In his judgment, Lord Justice Richards paid tribute to the way that the case had ultimately been conducted by all concerned and the Secretary of State’s conscientious approach to disclosure.
Lord Campbell-Savours
Before the Minister moves on and following the question asked by the noble Marquess, Lord Lothian, why were inquests singled out? There must be some explanation.
Lord Wallace of Tankerness
I have indicated that there was a consultation. There was strong representation that it would not be appropriate to have this kind of procedure in inquests. My main line of defence is that we listened to the consultation and responded to it. I believe that the right judgment was made.
The Minister of State, Ministry of Justice (Lord McNally)
I draw the attention of noble Lords to the Companion which says that,
“frequent interventions should not be made, even with the consent of the member speaking”.
This has the taste of a House of Commons debate about it. The convention of this House is not for frequent interventions.
Lord Wallace of Tankerness
Maybe it is an old habit from the House of Commons that is making me reply.
Lord Lester of Herne Hill
Is not the answer to those noble Lords who have asked these questions quite simply that the right to life under the European convention requires particular requirements of openness and transparency, and therefore there is a strong case for separating inquests anyway?
Lord Wallace of Tankerness
There is a strong case, and having heeded the representations, we took that particular route.
I was trying to explain that CMPs have been part of our legal system sometimes by agreement in civil cases and that is compatible with the interests of justice, so why bring forward the Bill? The reason is that the Supreme Court last year, in a case called Al Rawi, held that a court is not entitled to adopt a closed material procedure in ordinary civil claims for damages. The court held that it was for Parliament, not the courts, to decide where closed material procedures should be available. The consequence has been that we are no longer able to rely on the ability of the courts to find their own way through this difficult issue of disclosure.
Hence the provisions in Part 2 of the Bill, which seek to respond to this challenge in a proportionate and targeted manner. It makes CMPs available in narrow circumstances—namely, in civil proceedings in the High Court, Court of Appeal and Court of Session, where material is relevant to those proceedings, disclosure of which would damage the interests of national security. Importantly, it will be only after the Secretary of State has considered whether a claim for public interest immunity should be made. In line with a recommendation of the Joint Committee on Human Rights, Part 2 also allows for the transfer of judicial reviews of exclusion, naturalisation and citizenship decisions to the Special Immigration Appeals Commission, which has well established closed procedures.
Under the plans, where the Secretary of State applies for a CMP in civil cases, it will be for a judge to declare whether a CMP may be used. The judge will make this declaration on the basis only of national security considerations, not crime or international relations. Inquests, as we have indicated, have been excluded, and we were never intending to make CMPs available in the criminal courts.
Let me stress the safeguards that will apply. The Secretary of State will first have to consider whether the material can be dealt with by making a claim for public interest immunity. This will be a legally binding obligation and failure to comply can be judicially reviewed in the courts. The Secretary of State will then apply to a judge, and that judge will declare whether in principle a CMP may be used. That judge is the decision-maker. He or she must be satisfied that there was material relevant to the case, the disclosure of which would damage national security.
Once the judge has taken a decision in principle that a CMP may be used, a second exercise will take place in relation to the individual pieces of evidence which he decides are national security sensitive, following representations by a special advocate whose job is to act in the interests of the claimant. The judge will determine the treatment of each piece, whether redacting individual names or sentences would allow the evidence to be heard in open, or whether a summary of the evidence withheld must be made available to the other party and so on. The Bill does not upset the established position that it is for Ministers to decide whether to claim PII. Consequently, it should be the responsibility of the Secretary of State to apply for a declaration to the court that a closed material procedure may be used.
Some suggest that the Government may choose between claiming PII and applying for a closed material procedure opportunistically. Some say that the Government would apply for a closed material procedure where the material was helpful to the Government on the basis that the material could be considered by the court and that the Government would claim PII where the material was unhelpful so that, if successful, the PII claim would exclude that material from consideration.
It is not a realistic concern. The intention behind the closed material procedure proposals is precisely so that allegations made against the Government are investigated and scrutinised by the courts. The intention is that all relevant material—helpful or unhelpful—will be before the courts. It is hard to see that a judge assessing a PII claim would conclude that material should be excluded if the Government were seeking cynically to use PII to exclude material that undermined its case when a closed material procedure was available as an alternative.
The Bill makes absolutely clear that the court must act in accordance with the obligations under Article 6 of the European Convention on Human Rights—the right to a fair trial. The overall effect will be that in practice all evidence currently heard in open court will in consequence of the CMP provisions continue to be heard in open court, including allegations against the state. In reality, claimants will receive as much information where there is a CMP as they would following a PII exercise.
A number of respondents to the consultation made the points that CMPs are a departure from the tried and tested fundamentals of open justice. I agree. No Government propose measures in this area lightly. However, as we have seen, CMPs are already used in our justice system, and have been endorsed by both domestic and international courts for the good reason that they provide a fairer outcome when the alternative is simply silence—no judgment at all and no questions answered.
Briefly, I move on to the final set of provisions in the Bill—namely, ensuring the protection of our intelligence-sharing relationships and our domestically generated intelligence through reform of an area of law that is known as the Norwich Pharmacal jurisdiction. The Norwich Pharmacal jurisdiction grew up in the sphere of intellectual property law, where it is used to force a third party who—however innocently—is mixed up in suspected wrongdoing, to disclose information that a claimant feels may be relevant to a case that they are bringing elsewhere.
However, in 2008 a particularly innovative group of lawyers sought, in the case of Binyam Mohamed, to extend this jurisdiction to argue disclosure of sensitive intelligence information held by the British, including that provided in confidence by our allies. A specific right to the disclosure of intelligence services information has been ruled out by Parliament in the Freedom of Information Act and the Official Secrets Act. Yet, since Binyam Mohamed, there have been no fewer than nine attempts to use this jurisdiction in relation to sensitive information, including secret intelligence.
What is particularly troubling about this area of law is that, as the purpose of the proceedings is solely to gain disclosure of material, the Government do not have the option to withdraw from or settle the proceedings. If a judge orders disclosure, there is no option but for the Government to release the secret intelligence. Those who cannot keep secrets soon stop being told secrets. We expect our allies to protect intelligence material that we share with them from disclosure, and they expect the same from us. It is a regrettable fact that uncertainty about our ability to properly protect classified information provided by foreign Governments has undermined confidence among key allies, including the United States. In some cases, measures have already been put in place to regulate or restrict intelligence exchanges.
This is not just about material from overseas partners. We also need to protect from disclosure United Kingdom-generated sensitive material, which, if disclosed, could reveal the identity of United Kingdom officers or their sources and capabilities. To give but one example, not only could disclosure of sensitive intelligence derived from a UK human source jeopardise an ongoing intelligence dividend from that source, it could also blow the source’s cover, putting his or her life at risk. Our intelligence agencies cannot operate effectively if they cannot offer their sources protection. Norwich Pharmacal is the wrong tool for national security cases. The Government must regain the discretion to decide what the best way of assisting someone should be. Unless we address this situation robustly, the UK will continue to be seen as a soft touch by those wanting to get access to sensitive information. Our allies will—
Lord Martin of Springburn
I am sorry that the noble and learned Lord is upset about this interruption—
Lord Martin of Springburn
Yes, me of all people, but I am entitled to seek information. The noble and learned Lord mentioned the Freedom of Information Act and people seeking access through that Act. Is it the case that someone living abroad can make an application under the Freedom of Information Act to information officers over here, including those in Parliament? I hope that I have been brief enough for the noble and learned Lord.
Lord Wallace of Tankerness
I cannot give an immediate answer to that question, but I suspect that it may be the case. The important point in this context, as I have just indicated, is that Parliament has decided that, under the Freedom of Information Act, a specific right to the disclosure of intelligence services information has been ruled out, irrespective of where the applicant comes from.
That is why the Government intend to legislate to exempt from disclosures under a Norwich Pharmacal application material held by, originating from or relating to an intelligence service defined as including the intelligence agencies and those parts of Her Majesty’s Armed Forces or the Ministry of Defence that engage in intelligence activities, or if the Minister has certified that it would cause damage to national security or international relations if it were disclosed. I seek to reassure the House that these measures will have no impact on claims that the Government or the security and intelligence agencies have been directly involved in wrongdoing; nor do they prevent someone enforcing their convention rights, and nor do they exempt the agencies from their disclosure obligations in other civil cases. We are not seeking to abolish an ancient right. The Norwich Pharmacal jurisdiction has existed only since the 1970s and it has been found to apply in national security cases only since 2008. Our reforms will affect the jurisdiction only in so far as it applies to national security and international relations.
In conclusion, the Bill seeks to reshape the way we scrutinise the actions of our security and intelligence agencies both inside and outside the courts. The Bill raises significant issues about how we can best achieve that scrutiny, and what should be the respective roles of Government, Parliament and the courts. As I have said, the Green Paper that preceded this Bill prompted much public debate. The Government listened carefully to that debate and have responded by amending their proposals, including taking up a number of suggestions made in a useful report published by the Joint Committee on Human Rights, a number of whose members I am sure will contribute to this debate. There has also been an important report from the Constitution Committee, to which we intend to respond soon.
I think that the provisions in this Bill are a measured and proportionate response to the challenges I described earlier. We need to ensure that the courts can secure that justice is done. We must maintain the rule of law and ensure that proceedings are fair for all parties to the case. We must protect information that is shared with us in confidence, particularly if it would inhibit the ability of our security and intelligence agencies to keep us all safe if there is a risk that it could be disclosed, and we must make sure that those we trust to oversee the work of the agencies on our behalf have the powers to do an effective job and are able to command public confidence.
I look forward to what I am sure will be a thorough and instructive debate both today and as we proceed into Committee on how we meet those challenges and seek to balance the age-old tension between liberty and security. I commend the Bill to the House and I beg to move.