Justice and Security Bill [HL]

Marquess of Lothian Excerpts

Tuesday 17th July 2012 Lords Chamber

[The Marquess of Lothian]

My Lords, I have very mixed feelings about this amendment. I said in my speech at Second Reading that national security should not be so widely interpreted as to give cover for embarrassment or incompetence. I am sure that is absolutely correct. Indeed, my noble friend Lord Hodgson made that point. However, I am very worried when we begin to interpret something such as national security in terms of specific operations or departments. In passing, I make the point that the Diplomatic Service may do many things overseas that affect national security. Many embassies that I have been to have protected rooms where such matters can be discussed. It would be naive to say that because they were done by the Diplomatic Service and not the intelligence service, those matters were not, in the terms of the Bill, ones of national security.

I do not have an answer. All I can say is that you know national security when you see it. The difficulty of looking at this in terms of legislation is that you cannot see it. To give one example, we debated earlier the activities of the Intelligence and Security Committee and the process of redactions. When a suggestion to redact is made by the Prime Minister, it has to be on the basis of national security. There have been cases in which the committee has argued that national security was not affected. In the course of a practical argument you can come to an answer about what is national security and what is not. This does not help the Minister on the Front Bench. However, I feel it is somehow better to leave the definition more open and allow it to be interpreted in the context of the individual circumstances of each event than to curtail it within the definition of the activities of various departments. In the end, we might find that we are throwing the baby out with the bathwater if we proceed in that way.

[The Earl of Erroll]

My Lords, I shall make a couple of topical points in support of the noble Lord, Lord Deben. This is very complex. In the old days, in a less complex world, we knew how to finesse these things in a common-law society. Now we are moving towards statute law. The French know how to disobey the law sensibly in view of local circumstances. They know that you cannot slavishly obey every rule. We have not learnt that yet, so we should be very careful about how we set the rules in case they are slavishly obeyed. Somehow blurring the boundaries is much more sensible. I am not sure that having this whole thing of national security quite works. We have seen photographers being stopped for photographing perfectly innocent targets in the name of national security. I am very worried about the way that certain people will use these rules to stop normal activities. We regard ourselves as a free country but, if we are not careful, we might cease to be free. We have to worry about how other people, less sensible than us, may interpret rules in a very strict way in the future.

--- Later in debate ---

[Lord Beecham]

My Lords, the noble Lord, Lord Hodgson, is too modest in proclaiming that this is a simple amendment, since it goes to the heart of the whole principle of Part 2 of the Bill, which changes—potentially fundamentally—the approach to the operation of civil justice, though not of course criminal justice, in the provision of a system permitting, in circumstances that we are debating, material to be kept from one of the parties and utilised under the closed material procedures.

It is worth reminding ourselves of some of the concerns that have been expressed. I am particularly interested in the briefing submitted by the Northern Ireland Human Rights Commission, as it comes from a part of the country that has confronted security issues to a very considerable degree and has suffered considerable harm over the past few decades from activities that all of us would deplore and which would probably come within the compass of any definition of national security.

Nevertheless, the Northern Ireland Human Rights Commission in considering the Bill proclaimed that it was,

“regrettable that despite some modifications to the proposals in the Green Paper, and the declaration under clause 11 … of the Bill”,

concerning these matters, there remain,

“the risks to the right to a fair trial under Article 6”,

of the European Convention on Human Rights, and Article 14. The commission goes on to say—and this matter was referred to in Second Reading—that the Government have,

“yet to make an evidence based case as to how the current Public Interest Immunity provisions have failed to protect national security interests and therefore why a system of CMPs is needed at all”.

The commission affirms that it would appear that the Government are,

“prepared to sacrifice fair trial protections and wait for litigation to be brought by those alleging”,

a breach of Article 6,

“rather than ensure adequate protection from the outset”.

It advises that,

“the proposals are not likely to satisfy the requirements of Article 6 … in a significant number of cases”.

That is a fairly trenchant critique of the proposals. The commission concludes that the Government have,

“failed to demonstrate the need for the Bill’s provisions … The move from evoking a CMP on public interest grounds to national security grounds has been reported as an acceptable narrowing of the original proposals. Human rights law accepts national security as grounds for qualifying rights. However, NIHRC expresses concern that ‘national security’ remains a broad term that might still be relied on too readily by Government and in a manner that is not consistent with its human rights obligations”.

The briefing refers, as the noble Baroness, Lady Manningham-Buller, referred, to the national security strategy, with its references to pandemic diseases and,

“natural hazards along with increases in organised crime are listed as threats to national security”.

It concludes that the Government are,

“yet to be sufficiently definitive about what it means by national security for the purposes of requiring a court to permit a CMP in a civil case. The risk is that what is now claimed to be a ‘fix’ for a limited number of civil cases”—

and that is the Government’s case; the extent to which it is likely to be limited to very few cases is supported by Mr Anderson—

“becomes a ‘fix’ increasingly relied on by Government to obstruct scrutiny and attempts to seek redress”.

The commission’s are not the only concerns that have been expressed about the issue of definition. In evidence from the special advocate to the Select Committee, Mr McCullough stated that,

“there is the possibility that national security could be very broadly defined, unless some reassurance as to its scope were given. On one view at least, anything, or almost anything, involving international relations might be argued, and one could envisage being argued by the Government, as to have an impact on national security”.

Of course, as has already been indicated, it is not really possible to be definitive about what constitutes national security and what does not. It would be impossible to be conclusive because, as noble Lords have indicated, circumstances change and threats change, and it would be foolish to prescribe a definitive list. The noble Marquess, Lord Lothian, said of national security that you know it when you see it. The question is, in these circumstances, who is “you”? The Government may take a view; others may take a different view. Although these matters are difficult, we have to try to evolve a system that will give some guidance to those who operate the system and, indeed, those who may ultimately have to form a judicial position on individual cases.

[The Marquess of Lothian]

My Lords, Clause 6(2) states:

“The court must, on an application … make such a declaration if the court considers that … such a disclosure would be damaging to the interests of national security”.

My point is that, in order for the court to be able to make that decision, that court procedure is the time when you can actually “know it when you see it”. There may be arguments on both sides but the court has to resolve that. We, at the moment, are arguing that in a vacuum the court will have to decide it according to the particular circumstances.

Justice and Security Bill [HL]

Marquess of Lothian Excerpts

Wednesday 11th July 2012 Lords Chamber

[Lord Butler of Brockwell]

My Lords, I beg to move Amendment 35 and will speak to Amendment 38, standing in the names of my colleague the noble Marquess, Lord Lothian, and myself, and to which the noble Baroness, Lady Smith, and the noble Lord, Lord Beecham, have added their names. These two amendments invite the Government to look again at the drafting of Clause 3(3) and (7).

Subsection (3) says that the committee must send a draft of its report to the Government. This may reflect the old, rather patriarchal attitude, if I may describe it as such, that the Government took towards the committee. The committee submits its report; it is independent. It does not submit a draft report to the Prime Minister; the report is the report is the report. It submits its report and then the Prime Minister may insist on redactions: that is how the procedure works, so the reference to a draft report is technically incorrect, and impugns the independence of the committee.

Subsection (7) refers to matters that would be excluded from the ISC’s report to Parliament when it reports to the Prime Minister. Again, the words “the ISC considers” that they would be excluded under subsection (4) are necessary because, at the time the committee makes its report to the Prime Minister, he has not seen the report; he cannot decide what would be redacted in a report submitted to Parliament. So, again, the committee would submit a full report to the Prime Minister and when it comes to excluding things it would have to be the ISC which considers it, rather than anybody else.

These are two drafting amendments which would make the position clear.

[The Marquess of Lothian]

I shall add to what the noble Lord, Lord Butler of Brockwell, has said on these two amendments, to which my name is also attached. On the second one he makes the short point that it is for the committee to decide whether the report should be published to Parliament or to the Prime Minister. He makes it clear that it is only the committee that can make that decision. There is an additional factor, in that until the report is completed, only the committee knows that that report is being drafted, so no decision could be made before the committee had finished drafting its report. That is one reason why it is a necessary amendment.

With respect to the noble Lord, Lord Butler of Brockwell, I think that Amendment 35 is more than a drafting amendment. It is asking to remove subsection (3), the only drafting element of which is the word “draft”. It is an incorrect statement as it stands, because it suggests that the committee submit a report to the Prime Minister which is capable of alteration or amendment—that is the definition of a draft. In fact, it is the opposite that occurs. The report that is made to the Prime Minister can only be changed in respect of inserting asterisks—by redactions where there are matters which should not be seen in the public report submitted to Parliament, but of necessity are in the report that is sent to the Prime Minister. I suggest that, rather than being a drafting amendment, the removal of the subsection is the answer. The reason I say that is because, if the Government accept that this is not a draft, the whole subsection becomes otiose because the following subsection makes it clear that the report goes to the Prime Minister before redactions are made. I hope that, on this occasion, the Minister will feel able to consider very seriously the points we are making in this amendment.

[Lord King of Bridgwater]

I agree with my noble friend Lord Lothian. I do not have it in front of me, but I do not recall that “draft” ever appeared in the original 1994 Act that set up the Intelligence and Security Committee. For some reason it has crept into the drafting; he is absolutely right. It seems to me that subsection (7) then becomes redundant.

[Lord Campbell-Savours]

My Lords, this amendment should be of great interest to present and former members of the committee because there is a problem in the legislation which they should be well aware of. As I read it, Clause 3(4) is a catch-all, whereby if one cannot block the provision of information to the committee under paragraph 3(4) of Schedule 1, one can block the information under the catch-all provision of it being,

“prejudicial to the continued discharge of the functions”,

of the services. This is a catch-all provision whereby the Prime Minister might want to block certain information which does not necessarily meet the criterion set down under sensitive information in paragraph 4 of Schedule 1. To my mind, the only defence for the committee under such arbitrary arrangements is the extent to which the committee is consulted. Clause 3(4) states:

“The ISC must exclude any matter from any report to Parliament if the Prime Minister, after consultation with the ISC”.

What form would that consultation take in the event that he wished to exercise a veto on the provision of that information under what I call this catch-all provision? I suppose that, in theory, it could be looked at the other way. The Prime Minister might, in certain circumstances, not wish to be tied down to the detailed criterion in the sensitive information provisions of Schedule 1. He might want to release information that was sensitive but would not be prejudicial to the services carrying out their functions. It will be interesting to see what the Minister says in response.

[The Marquess of Lothian]

Before the noble Lord sits down, I would like to raise a question with him. He has been a member of this committee and I have been on it since 2006. My understanding is that once the report is complete there are matters, such as the amounts of money spent on various parts of the services, which have to be in the report, but which should not be in the published version and therefore are redacted. That is the difference between those two types of information and it is quite right that they are redacted.

I am sure the noble Lord remembers that the process of redaction is that the full report goes to the Prime Minister and comes back with suggestions for redactions. The committee then goes through them with a great deal of care and independence. Certainly, in my recollection, we have never had a redaction without the committee having consented to it.

[Lord Campbell-Savours]

Yes, but the thrust of the amendment moved by my noble friend Lord Rosser is that for some reason, which I cannot understand and he clearly does not understand either, the Government have picked another set of criteria for refusing to provide information to the committee, instead of simply using the provisions set out under Schedule 1. Again, I shall be interested in the Minister’s response.

Justice and Security Bill [HL]

Marquess of Lothian Excerpts

Tuesday 19th June 2012 Lords Chamber

[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.

--- Later in debate ---

[The Marquess of Lothian]

My Lords, it is with pleasure that I follow the noble Lord, Lord Butler of Brockwell—with whom I have the honour to serve on the Intelligence and Security Committee—not least because, after his comprehensive speech, I can keep my own comments relatively brief. I will try not to cover the same ground as he has, although that may not be possible in all instances.

I was first appointed to the ISC when I was a Member of the other place in January 2006. I am therefore reasonably well aware of the current weaknesses of the committee as well as its undoubted strengths—many of which, by the nature of the committee, by necessity go unsung.

The committee has long been criticised for lacking independence, mainly because it is appointed by and reports primarily to the Prime Minister. In fact, all my colleagues on the committee take our independence very seriously. Looking round the House I see others who have served on the committee. I am sure that they, too, would emphasise that they saw their independence as an important part of their function. However, that is not the public perception—and as they used to say to me in Northern Ireland, “It’s the perception that matters”. This Bill therefore provides that the committee will in future be appointed by Parliament on the nomination of the Prime Minister, after due consultation with the Leader of the Opposition, and will in future publish its main reports direct to Parliament.

Whereas in the past the committee could only request information from the intelligence agencies, in future it will be able to require it and will have enhanced resources with which to obtain it. The committee will also be able to exercise retrospective oversight of the operational activities of the agencies on matters of significant national interest. It has in practice done so for many years past but will now do so on a much wider scale, more regularly and within a legislative framework.

At a time when oversight of the agencies becomes increasingly important, this Bill will enable the ISC to perform its task more effectively on Parliament’s and the public's behalf. From being a committee of parliamentarians appointed by the Prime Minister, it will now become effectively—in practice if not in name—a committee of Parliament. There are some details to which I will return at later stages of the legislative process, but by and large the first part of the Bill is a substantial move in the right direction.

The second part of the Bill, on closed material procedures in civil actions, is indeed more contentious. Anything that seeks on the face of it—and once again, perceptions matter—to offend against the principles of open justice is bound to give rise to concern, not least in the media. However, I believe that the Bill, if it is studied carefully, meets nearly all those concerns. The Minister dealt with much of this, and indeed my noble and learned friend Lord Mackay of Clashfern—at whose feet I sat many years ago as a very junior member of the Scottish Bar—gave us a full explanation and justification of the procedure and the ways in which it will be used.

I therefore just want to make a number of general points. My first is that the use of the procedure refers only to where disclosure of the material in question would be damaging to national security—and I emphasise the words “national security”. Those two words are vital because they are rightly far more restrictive than the original proposal in the Green Paper of damage to the “public interest”. The test of the level of sensitivity that could damage national security must be a narrow one. I too have some doubts as to whether the Bill has created a sufficiently narrow definition. We cannot have a situation where intelligence information is excluded because it was marked “secret” and could embarrass the Government or the intelligence agencies. It has to be shown that it risks the security of this country and its citizens. Secondly, it is important in this respect that it is a judge and not a Minister who will ultimately determine whether the procedure should be used.

There are two such categories of intelligence information which it covers. First, there is the United Kingdom intelligence material, disclosure of which could endanger and undermine our intelligence officers and the vital work that they carry out on our behalf. I hope that we would all agree that that particular definition meets the test of sensitivity. Secondly, there is foreign intelligence material shared with us on the strict understanding of confidentiality—the so-called control principle to which the noble Lord, Lord Butler, referred. Such intelligence, which is essential to us in meeting the threat of international terrorism, does not belong to us; it belongs to those who share it with us. We have no right to disclose it without their consent. This principle is sacrosanct, and it works both ways.

There are those who still question whether breach of the principle would really have serious repercussions in terms of intelligence sharing in the future. I say as categorically as I can that I am in no doubt of this. The noble Lord, Lord Butler, and I have talked to people in the intelligence agencies in the United States and elsewhere and what they have said to me leaves me in no doubt that that would be the case. The truth is that we need their intelligence, and anything that puts that at risk puts at risk our national security and that of our citizens too. Therefore I welcome the changes to the Norwich Pharmacal principle envisaged in the Bill.

My other point is that the CMP is the procedure most likely in the circumstances to achieve justice while protecting—necessarily protecting—the information in question. At present, where such genuinely sensitive material is at issue, there are effectively two options for protecting it. The first is to withdraw the defence, however sound that defence may be, and face massive compensation claims—which, as the noble Lord, Lord Butler, made clear, are met in the end by the taxpayer. The second is to apply for public interest immunity certificates which prevent, as the noble and learned Lord, Lord Mackay of Clashfern, said, the material being seen or heard at all in that it will be totally excluded from the legal proceedings. In my view—as someone, I have to say, who has not practised the law for a very long time—neither of those options is conducive to justice. At least the closed material procedure means that the judge and the special advocates can see and question the material, and in the judge’s mind it can then form part of his or her judgment.

I want to make one other point. National security is not just about the general safety of our nation—which of course is paramount—it is also about protecting the lives of innocent citizens threatened by terrorism. Frequently that protection is achieved through secret intelligence from both home and abroad, intelligence which must be protected; and therefore sometimes the price of that protection is a curtailment of long-standing rights. I have long believed that the freedom of the individual, enshrined within these rights, is paramount. However, the greatest of these rights is the right to life itself. Protecting life from existential threat must be the priority, even at the cost of some restriction on other rights. I have seen for myself the carnage of terrorist outrages. No rights can take precedence over the means that can prevent them. In the end it is a question of a delicate balance, and in my view, this Bill gets it just about right.

Scotland Bill

Marquess of Lothian Excerpts

Tuesday 28th February 2012 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, at the moment you could be in a position in which you gain penalty points, which could cumulatively lead to you losing your licence, because you have breached a 20 miles per hour speed limit set by a local authority. Just because a local authority in Hampshire would not necessarily have designated a 20 miles per hour limit for a similar area, that in no way means that the penalty points that you have accumulated for speeding—perhaps outside a school in Lanarkshire—should somehow be discounted. The point is that if the decision made by the Scottish Parliament was that the law should reflect the problem of alcohol abuse in Scotland, it follows that people are aware of the penalties.

[The Marquess of Lothian]

I have listened carefully to what the Minister has said. He quite rightly said that there are signs to tell you whether the speed limit is 30, 40 or 50 miles per hour. I live in the borders as well and sometimes, to get from one part of the Scottish borders to another, I go through England. Is he suggesting that there should be signs to tell us what the drink driving limit is on both sides of the border?

[Lord Wallace of Tankerness]

I am suggesting that the noble Marquess, being a responsible citizen and knowing the circumstances, will know that the law is different in Scotland and England. After all, let us recall that the Scottish Parliament introduced a ban on smoking in public places well ahead of other parts of the United Kingdom, yet there appeared to be no problem with visitors to Scotland not knowing that the ban existed in Scotland, albeit that at the same time it did not exist in England. These matters will not be dealt with clandestinely. You can bet your life that if the change is made it will be well broadcast. Indeed, as my noble friend Lord Younger indicated, a change was made in the Republic of Ireland that was well known. I am sure it was well known throughout the island of Ireland. Living in Scotland and working in London, I was certainly conscious that that particular change had been made.

On the question of penalties, there is of course no maximum limit to a disqualification. These matters are best taken into account by the court. I hear what the noble and learned Lord says about the minimum disqualification period, especially if it were to apply in the event of there ever being zero tolerance of alcohol. He makes a point that I certainly wish to reflect on because it is a different point. If there is a maximum limit, no special arrangements need to be made as it is properly a matter for the court to take into account when determining the circumstances of any given offence.