Justice and Security Bill [HL]

Debate between Lord Woolf and Lord Macdonald of River Glaven

Wednesday 21st November 2012 Lords Chamber

[Lord Macdonald of River Glaven]

My Lords, I can be very brief. Following the publication of the Green Paper, the Government indicated a concession that the Green Paper’s proposals were drawn far too widely and that the legislation that they would bring forward for consideration would be far tighter. In particular, they indicated that a judge rather than a Minister would have the final say and that closed material procedures would be available only in the most exceptional circumstances.

In fact, the Bill did not provide for either of those undertakings. It is only these amendments that are capable of securing them. The amendments finally give the judge the appropriate discretion to balance national security with the interests of justice, which is an essential tool for the judge if he is to control the fairness of the procedures in his own court, which is a critical aspect of the rule of law.

Secondly, the amendments secure a situation in which a closed material procedure would genuinely be a measure of last resort because they will require every other option to be considered first. My conclusion is that the amendments provide what the Government promised but did not secure in the Bill. For that reason, I shall support them.

[Lord Woolf]

My Lords, may I just add a few words to the very able speeches that have already been made? I preface them by saying that I am a hedger, not a ditcher. I hope that I will be forgiven for putting my words in the context of my own experience in this case because it is particularly relevant. For five years I was what was known as a Treasury devil or a Treasury junior, whose task, without having any political allegiance, was to be its representative in the courts in cases which would otherwise cause difficulty when being heard. One went to the court with the advantage that you were instructed by the Treasury solicitor. You were the general counsel of the Government in civil cases but when you were dealing with cases of the kind we are here considering you appeared in a completely neutral capacity.

As a result of that experience, I found that within the procedure then available—in which evidence which damaged national security would have to be excluded—there were all kinds of things that the courts and advocates could do to avoid the decision being made that the evidence could not be looked at in the court because of public interest immunity. As has been pointed out, that does not help the interests of justice because the court is blindfolded for some evidence which would otherwise be relevant. However, by using the tools available—which included members of the Bar on different sides accepting that they could rely absolutely on the integrity of the Treasury devil counsel—you could, in the great majority of cases, get evidence before the court in a way which achieved justice.

However, there was a very small minority of cases where that could not be done. One then had the unfortunate situation where there was relevant evidence that could influence the outcome which not even the judge could take into account, either for a claimant or a defendant. I suspect that no one in this House would like that situation to arise—certainly the judge did not like it—and that is why the kinds of efforts that I have indicated were taken regularly to avoid it happening. I emphasise also that, even where that happened, only a small portion of the case would not be investigated; other parts of the case could be investigated.

In generality, the proposals contained in the Bill have a great advantage over the existing process of public interest immunity: they allow the judge to have the material in a way which ensures that the interests of national security are protected. The European Convention on Human Rights does not intend or require a court system of any country to act in a way which is inconsistent with the interests of national security. It requires that the court, if it is going to take action which is not normally appropriate, should take all the steps which are open to it to minimise the effects of so doing. That is why, so far as proceedings in this country are concerned, the European Court of Justice in Strasbourg proposed the use of the special advocate. That was one step that could be taken to further the interests of justice which hitherto we had not taken. The noble Lord, Lord Lester, in his powerful speech, explained the history of how that form of action had its source in Canada, was praised by the European court, and when appropriate was adopted in this country. The procedure did not cure the disadvantages of evidence not being given in the ordinary way, but it did provide a way of getting closer to doing justice than was possible without it.