Justice and Security Bill [HL]

Baroness Berridge Excerpts

Tuesday 17th July 2012 Lords Chamber

[Lord Beecham]

My Lords, this amendment and the others in this group stem from the report of the Constitution Committee and representations from organisations such as Justice. The Constitution Committee records that my right honourable friend Sadiq Khan, the shadow Justice Minister, asked a question in the House of Commons about the number of cases in which a CMP had been adopted under the existing provisions, which relate to control orders and the like. The reply of the Minister, Mr Djanogly, was that there was no information, it had not been collated and it would be too expensive to provide such information. The Constitution Committee rightly points out that these are matters of considerable interest to the public and, indeed, to Parliament and such a record should be made available. It invites the House,

“to consider whether the Government should be required to maintain consolidated records”.

Amendment 67B looks to provide such information, as does Amendment 67A, again following the recommendation of the Constitution Committee and representations, in this case from Justice, that the Government should report on the impact of the provisions of the Bill. The noble Baroness, Lady Berridge, has a similar amendment, Amendment 88.

Amendment 67A talks of a three-year period because it seems sensible, given the suggestion that there are likely to be very few cases, to allow sufficient time to elapse to gauge whether that is right or not. It would perhaps be wrong to rely on a single year’s experience as the basis for a review. Three years is long enough, in my judgment. Justice suggests a five-year period, which seems to me to be too long, given the scale of the changes. I hope that the Government will accept that these amendments, which are of course tabled on the basis that we end up with a CMP provision, will facilitate a greater understanding of how the system works and allow consideration of modifications should any of the difficulties which some of us have canvassed today in Committee and on previous occasions be warranted. I hope that the Government will look benignly on these amendments: they are not in any way destructive and should allow a proper consideration of how matters progress should the legislation pass in something like its present form. I beg to move.

[Baroness Berridge]

My Lords, I shall speak to Amendment 88, which, as the noble Lord, Lord Beecham, has said, is in my name. I concur with much of his reasoning and concerns about the recording and reporting of these matters. The amendments would enable Parliament to monitor the use of these unusual court proceedings. I would be grateful if my noble friend would say whether the response given in the other place to the question from Mr Sadiq Khan still stands, as the Government have very helpfully agreed to compile a central database of closed material procedures for the use of special advocates. If the Government are able to compile that database for special advocates, could they not also do so for Parliament?

If the closed material procedures are granted by Parliament, it would be on the basis of there being a very small number of cases. This amendment would enable Parliament to monitor whether that is indeed the case. Unfortunately, things that are intended to be rare have a tendency to creep, as apparently Lord Williams of Mostyn assured your Lordships’ House in 1997 in relation to the introduction of SIAC. The closed material procedures are now used in a large number of statutory situations—I think about 14 different jurisdictions. I expect there will need to be some agreement as to how frequently a report is laid but it is important with such a closed system that as much information as possible comes into the public domain, particularly information that can be assessed by Parliament. Although not the subject of this amendment, the same argument applies to the use of closed material procedures generally, so that Parliament would know how often they are applied for, granted, appealed and, in particular, successfully appealed, as well as which government departments are making use of the procedures and under which legislative regime they are being used. I also believe that there could be useful comparative statistics on how often appeals are brought in jurisdictions where appeal is allowed on a matter of law alone compared to on a matter of fact, as in the civil proceedings considered under this Bill.

Amendment 88 adds the requirement for the independent reviewer of terrorism legislation to bring a report to Parliament, which I understand would be similar to the role of the independent reviewer in relation to control orders and now TPIMs. It could also perhaps provide a means for the independent reviewer to receive the continuing views of the special advocates, which have been such a concern to many people including the Lord Chancellor. Unless someone independent reads all these closed judgments in an area, I do not know how we will know if there are inconsistent decisions and perhaps cases that have been decided without knowledge of a previous precedent due to the fact that these are secret judgments. Some of that risk will of course now be averted by the new central database that I have mentioned, which will be available to special advocates. However, it will not be completely averted, in my view, due to the nature of the system and not in a way that Parliament can be assured of the integrity of the body of these decisions. The independent reviewer of terrorism legislation might even need a method of passing cases that he or she is concerned about to be reviewed by the court for the reasons I have outlined.

I believe it is very much in the Government’s interests to have as much information in the public domain and as much scrutiny as possible of a closed system. I also hope, along with the noble Lord, Lord Beecham, that there will be good news on Report on the principle behind this amendment.

[Lord Pannick]

My Lords, I added my name to Amendment 88 and entirely agree with what has been said by the noble Lord, Lord Beecham, and the noble Baroness, Lady Berridge. The noble and learned Lord the Advocate-General for Scotland said earlier this evening that CMPs are “second-best justice”. If we are to have CMPs as a necessary but regrettable diminution in the quality of justice, and if the quality of justice is to be strained in this way, with all the damage that is done to fair and open justice, it is essential that the legislation contains adequate provisions for reporting and review so that this new procedure can be carefully monitored.

--- Later in debate ---

[Lord Pannick]

My Lords, I, too, support the amendment, and not just because in principle it is right that judgments should be closed for as limited a time as necessary. There is also a very real practical consideration that, despite what the noble Lord, Lord McNally, said in his Answer that the noble Lord, Lord Lester of Herne Hill, quoted, there have been examples of closed judgments that contained statements of principle that were not in open judgments or that contained statements relevant to other cases or potential cases. The difficulty is that those practising in this area who represent individual litigants do not have access to this body of jurisprudence. If we are to create this closed material procedure, we have to recognise that we are creating a body of case law that is not generally available. That is a very real problem for the rule of law. One way in which to address the problem is to minimise as far as we reasonably can the length of time for which a closed judgment is not generally available. For that reason, in addition to the reasons already given, I support the amendment.

[Baroness Berridge]

My Lords, I, too, support the amendment and am aware that part of this issue is covered by a later amendment in a separate group. I want to raise the very practical point that leads on from the point made by the noble Lord, Lord Pannick. From hearing evidence in the Joint Committee on Human Rights, a very basic question arose: where, physically, are these judgments?

Normally, you can go into a law library and they are all there. Special advocates and other people just seem to be unaware of where, physically, this body of case law is stored. We know from the answer to Mr Sadiq Khan that it seems not to be collated centrally. It is a very important question. It sounds incredibly basic, but we need to know where, physically, these judgments are stored.

[Lord Judd]

My Lords, as somebody who would anyway have supported the amendment, I just want to say that the last two interventions by the noble Lord, Lord Pannick, and the noble Baroness, Lady Berridge, have convinced me that this is an essential amendment.