Justice and Security Bill [HL]

Debate between Lord Wallace of Tankerness and Lord Gilbert

Tuesday 26th March 2013 Lords Chamber

[Lord Gilbert]

My Lords, I had not intended to take part in this debate but I have been moved to do so. We have heard this evening that this debate is about the reputation of the security services. We have heard it is about 2,000 to 2,500 years of British justice and that we must of course be on our guard to make sure that we do no damage to either of those principles. However, for me the Bill is not about those things at all. I was a constituency MP for 27 years and I can tell your Lordships that what concerned my constituents was that we should not produce a set of circumstances in which several hundred of them could be blown to smithereens on the District line while going about their ordinary day’s business. That is what concerns them, not what we have been hearing this evening. I have not heard that said once throughout this debate—it astounds me.

[Lord Wallace of Tankerness]

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

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

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

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

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

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

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

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

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

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

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

Scotland Bill

Debate between Lord Wallace of Tankerness and Lord Gilbert

Monday 26th March 2012 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, once again, as we did in Committee, we have had a passionate debate. As I think the noble Lord, Lord Browne, said in his closing comments, it has been a debate where clearly there is a strong emotional sense that what happens at the moment is not right. I want to salute my noble friend Lord Forsyth for the tenacity with which he has pursued this issue. I indicated in Committee that I certainly would reflect on the strong views expressed then. As I said, my officials and I have engaged with the Department for Business, Innovation and Skills, and indeed with Universities Scotland. These are discussions to see if we could identify some way to resolve this problem rather than just accept an anomaly that we must live with, as my noble friend Lord Vallance said.

[Lord Gilbert]

My Lords, I realise that it is normal to intervene towards the end of a Minister’s remarks, but I think on this occasion it is rather more helpful to intervene at the beginning. What I would like to know is: when are we going to have the dinner break?

[Lord Wallace of Tankerness]

I probably share the noble Lord’s feelings on this. For that reason, I think it is only right that I do proper justice to the many comments that have been made; but I will try to do so as concisely as possible so that we can proceed. I accept and I have heard again the strictures that have been made about the timing.

As was expressed very clearly by the noble Lord, Lord Empey, today we are debating an issue caused by the fact that higher education is devolved across the United Kingdom.

This UK Parliament is responsible for higher education in England, in Scotland the Scottish Government are responsible, in Wales the Welsh Assembly has responsibility and in Northern Ireland the Northern Ireland Executive has responsibility. All four countries in the UK have chosen to fund higher education in different ways. Because of EU law, and my noble friends Lord Stephen and Lady Brinton have both explained the limitations of what is permitted under EU law, non-UK EU students in universities in the UK are entitled to the same financial support regarding tuition fees as local students. We recognise, and perhaps this is common ground, that our challenge is to ensure access to university education and to ensure the quality of that education.

A point that I should make at the beginning, and I will deal with this in a little more detail as I proceed, is that English students attending Scottish universities should be no worse off than English students attending English universities as a result of the present arrangements. The latest figures from UCAS at 21 February this year, compared with the same date a year earlier, show that as a proportion of the total number of applicants so far, prospective English students have not been put off from applying to Scottish universities. In both years, 5 per cent of the total population of applicants have applied to a Scottish university. That is a circumstance where the English students are aware that they would be no worse off if they choose to attend a university in Scotland than if they went to a university in another part of the UK.

I do not want to open this up into a wider debate on tuition fees but the noble Lord, Lord Browne, indicated that part of the Scottish Government’s response to the UK Government deciding that, to ensure the long-term sustainability of higher education, tuition fees were to be increased was that the Scottish Government had decided to fund undergraduate tuition fees for Scottish students and directly fund Scottish universities, which are therefore able to charge students from the rest of the UK up to £9,000 a year. This means that attending university in Scotland, as I have said, should be no more expensive per year for an English student than for an English student attending a university in England. Indeed, as university courses in Scotland are typically four years long, many Scottish universities have committed to charging students from the rest of the UK a maximum of £27,000 for a four-year course—the same as the maximum fee that students would pay for a three-year course in England.

The fee, however, is only one part of the equation of student finance. The universities of Edinburgh and St Andrews, which have not capped for a four-year course, have both committed to providing generous bursaries to students from the rest of the UK. Little has been said in today’s debates about that aspect of student finance. Edinburgh University is offering bursaries of up to £7,000 a year to the least well-off English students, which they can use either to reduce their fees or to help them with their living costs. St Andrews University will be topping up support for all English students who qualify for a maintenance grant so that they will receive no less than £7,500 a year in total government and bursary support.

That is why I do not recognise what the noble Lord, Lord O’Neill, said about only the very rich paying up-front fees. It is not a question of up-front fees; for English students in England or Scotland, the loans that cover the fees do not start to be repaid until they are earning at least £21,000 a year.