Queen’s Speech

Baroness Berridge Excerpts

Tuesday 15th May 2012 Lords Chamber

[Baroness Berridge]

My Lords, I wish to speak briefly this evening about relationships, but, no, I am not about to delve into the excellent proposals to speed up adoption or improve contact with absent parents. I want to talk about public confidence in two essential institutional relationships, between the security services and Parliament and between Parliament and the judiciary.

The justice and security Bill aims to improve parliamentary oversight of the security services. I think it has found its time. There is concern and confusion about the accountability of the security services in our democratic society. I was intrigued to read the following comments only last weekend:

“By their very nature the world’s top intelligence agencies are a law unto themselves”.

MI6 is among those named.

“Yet it would be wrong to assume that within the intelligence world there are no laws”.

I was relieved to read that.

“It is governed by its own strict set of rules”.

This view of the security services having only their own internal regulation is not from the blogosphere or Twitter but Richard Beeston, foreign correspondent of the Times. The position was correctly outlined in the Reith lectures by the noble Baroness, Lady Manningham-Buller, who said that,

“ultimately the Service is answerable to the law and the courts”,

and that it was the security services who pushed the Government for their existence to be put on a statutory basis.

Also recently, in response to questions from journalists concerning the basis for the police investigation into MI6, the commissioner felt that he needed to respond, “It is the law”. I find the need to re-assert this basic fact quite troubling. Her Majesty’s Government are clearly alert to the reputational issue, as it forms part of the argument underpinning the proposals in the justice and security Green Paper that secret courts are needed, where one party to the proceedings is excluded for part of the time. The argument is that without secret courts the Government cannot defend claims such as those from people who alleged that the British Government were involved in their rendition to Guantanamo Bay as the Government cannot produce such evidence in open court.

It is important to remember that the reputational issue arises in a context of declining trust in our institutions generally and matters which cannot be blamed on court process. I am referring of course to the tragic case of MI6 employee Gareth Williams—so utterly terrible for his family. It was also concerning for the public to hear of MI6’s failure to hand over evidence to the police investigation and to report his absence from work for over a week. It is a necessary part of oversight for the public to know such issues and I hope that the inquest into this death, as well as the recommendation from the Joint Committee on Human Rights report, have lead Her Majesty’s Government to drop the proposal for inquests to be held partly in secret. Most of all, I hope that the discussion of oversight of the security services will be a platform for informed debate and awareness of the accountability of our security services.

Secondly, the Leveson inquiry is dealing with the issue of how you fit the power of the modern media into a traditional separation of powers model. What are the appropriate boundaries between media and politicians? A not wholly dissimilar issue concerning the relationship of the judiciary and the legislature arose when the Joint Committee on Human Rights considered the Green Paper. I am extremely privileged to serve on that Joint Committee. Our 24th report outlines the response to the justice and security Green Paper, and page 16 says that the Green Paper,

“redefines the meaning of a ‘court’ for certain purposes, and in our view it would be beneficial to parliamentary scrutiny of such a measure if it could be informed by judicial views on a matter which goes to the very nature of the judicial function”.

Although this might sound rather novel, it is not completely without transferable precedent. The judiciary as a group responded to the Green Paper on legal aid. Also, as I was looking at previous humble Addresses to see if there was any kind of standard to be adopted—there is not—I found the speech from the noble and learned Lord, Lord Woolf, outlining what happened before proposed changes to custody periods for life sentences were introduced under the Criminal Justice Act 2003:

“Before the law was introduced, and under the guidance of the noble and learned Lord, Lord Falconer, a meeting was held at the Middle Temple, where nearly all those who were playing a leading role were present to discuss the proposals”.—[Official Report, 27/5/10; col. 147.]

In that case, the Lord Chancellor knew the judiciary’s view but I do not know whether the meeting was in private or whether there was an appropriate channel for the legislature as a whole to know these views.

The present Lord Chancellor gave evidence to the Joint Committee that he has spoken to the Lord Chief Justice and two High Court judges, thereby performing the role of conduit of some judicial views to the Government. What about Parliament? I agree with my noble friend about the utter integrity of our judiciary. As the Green Paper’s proposals are for a change in the courts, not so much a change in the law, I felt that without representative views from the judiciary, I lacked a piece of the jigsaw properly to perform the role of parliamentary scrutiny.

Finally, like my noble friend Lord Thomas of Gresford, I found some of the words in the Ministry of Justice’s outline for the Queen’s Speech on this Bill interesting: allowing courts to consider all material relating to the case, even when national security prevents that information being made public. How can you as a claimant put all your material before the court if you are not a part of the proceedings? To be a little technical, how can you bring your rebuttal evidence if you have not heard the evidence you are to challenge?

I fear that a more accurate statement is: allowing courts to consider all one party’s material relating to the case. It is worrying that the one party to which I refer will normally be the Government. There is a healthy tension and balance between a defence and security service perspective and the legal and civil liberties perspective. The issues in the Green Paper involve human rights, national security requirements and common law principles of what is and, importantly, what is not a fair trial.

That is a difficult balance with no perfect solution, but the issues are immensely important. In the months ahead, I look forward to seeing your Lordships’ House at its very best as guardian of the constitution and the civil liberties of our citizens.