Justice and Security Bill [HL]

Baroness Berridge Excerpts

Monday 23rd July 2012 Lords Chamber

Moved by

[Baroness Berridge]

69ZA: Clause 10, page 7, line 14, at end insert—
“( ) Rules of court relating to section 6 proceedings must make provision—
(a) requiring the court concerned to notify relevant representatives of the media of proceedings in which an application for a declaration under section 6 has been made,(b) providing for any person notified under paragraph (a) to be permitted to intervene in the proceedings,(c) providing for a stay or sist of relevant civil proceedings to enable anyone notified under paragraph (a) to consider whether to intervene in the proceedings,(d) enabling any party to the proceedings or any intervener to apply to the court concerned for a determination of whether there continues to be justification for not giving full particulars of the reasons for decisions in the proceedings, and(e) requiring the court concerned, on an application under paragraph (d), to publish such of the reasons for decision as the court determines can no longer be justifiably withheld.”

[Baroness Berridge]

My Lords, this amendment to Clause 10 relates to two matters: open justice in paragraphs (a) to (c) and the nature of secret judgments in paragraphs (d) to (e). The amendment also bears the names of the noble Lord, Lord Pannick, and my noble friend Lord Lester. I will deal with each of these matters in turn.

Paragraphs (a) to (c) simply provide that the press would be notified of a Clause 6 application for a declaration that the proceedings may require closed material proceedings. Paragraph (b) enables the press to intervene and, if they wish to do so, they might need the services of a special advocate. A subscription-based e-mail alert system would be a simple, cheap and effective method of notification.

In the seminal case of Scott v Scott, Lord Shaw said that open justice is a sacred part of our constitution and our administration of justice. One of the main criticisms by the Joint Committee on Human Rights on the Green Paper was that it lacked any consideration that the interests of the public are served by the press having access to proceedings. In fact, the Joint Committee referred to open justice as the “missing issue” in the Green Paper.

This amendment is somewhat analogous to existing situations in our judicial process, such as where there is a media injunction. Of course, the media can make representations for it to be lifted. It is also analogous to the situation where certain newspapers intervened in the Al Rawi litigation. They were represented by my noble friend Lord Lester to argue the impact that closed proceedings would have on their access to information.

I am very grateful that various media representatives and lawyers gave evidence to the Joint Committee. Mr Cobain from the Guardian maintained that certain material substantiated allegations that the British Government had been closely involved in rendition that the disclosure process in court proceedings brought into the public domain for the first time. He said that he had previously been told by the Government that such allegations were conspiracy theories and that, without the disclosure process, documents, such as a telegram from the Foreign Secretary to various UK missions around the world explaining that no objection would be made to the transfer of British nationals to Guantanamo Bay, would not have been seen. He maintained that, under this closed material regime, the press would not have access to that evidence. Accordingly, the press, and therefore the public, would be arguably less able to scrutinise government actions or to know whether the press allegations by the press are indeed mere conspiracy theories.

During the consideration of these issues over many months now, it has been brought home to me that the public need to know the judge’s reasons—and, obviously, giving an open judgment is one of the main ways in which our judges are held accountable as it enables them to be scrutinised or even appealed. The disclosure and discovery procedures of a court case can also be a vital tool to convert a mere allegation or theory into established fact. Often those processes are the only way in which that information is made public. This amendment would enable the media to make representations—I emphasise on behalf of the public interest, not their own—to see this material and have an open trial.

Paragraphs (d) and (e) of the amendment are, I confess, probing in nature. They seek further details of the Government’s view on the recommendation made by the Joint Committee on Human Rights to deal with important questions raised in relation to closed judgments in a legal system that relies so heavily on precedent. One of my abiding memories from university is that of going into the law library for the first time and seeing all those bound volumes stacked from floor to ceiling. That shine wears off when one is trying to understand the complexity of some of the judgments. I am grateful to know that by the end of the summer the Government will have compiled a systematic database of the headnotes of the existing judgments in closed material procedures. It was troubling to the Joint Committee to hear from special advocates that they did not have access to secret judgments and that it could be merely by chance that they would find out about a case that might be relevant to the one they were involved in. Can my noble and learned friend Lord Wallace say why the database is not to cover the whole case being compiled, or was I the only lawyer who was occasionally led astray by an inaccurate headnote? That would also answer what I believe is an outstanding question: where physically are these judgments held?

Paragraphs (d) and (e) would introduce a mechanism for a party to apply for a secret judgment to become an open judgment and goes beyond the mere review of a judgment that was dealt with in subsection (g) of the new clause proposed in Amendment 67C in Committee on 17 July. I am grateful to my noble and learned friend Lord Wallace for saying that he understood the issue and would revisit the point about secret judgments when,

“the national security considerations have in some respects flown off”.—[Official Report, 17/7/12; col. 209.]

However, it is not only when secrecy has disappeared that there can be a need to open up these judgments either for review or possibly for appeal. There have been a number of instances where the evidence of a witness in a case, often an expert but sometimes a police officer, has been so discredited in its methodology or by the witness’s veracity, that other cases where that witness’s evidence has been relied on need to be looked at. Although it is a rare situation, unfortunately one has only to think of the conduct last week of Chief Inspector Anthony Tagg, who was found by the judge to have lied under oath in the trial relating to the deaths of three men during the riots last summer in Birmingham. It is an example of where other cases in which he has given evidence may have to be looked at. It can only support confidence in our justice system if, as the amendment outlines, a party is allowed in these circumstances to request the court to look at the secret part of a judgment. I hope that the Government will support both aspects of the amendment as I believe that it puts the missing element of open justice firmly back into the Bill. I beg to move.

[Lord Pannick]

My Lords, I have added my name to this amendment and I support what the noble Baroness, Lady Berridge, has said. It is often the case, when courts consider whether to go into closed proceedings in other contexts, such as in family law cases or in those that concern confidential personal information, that the persons who object are representatives of the media. The litigant who is adversely affected may be playing only a very limited role in the proceedings or they may have reasons of their own for not objecting to the closed hearing. It will often assist the court in deciding whether to go into a closed procedure if it hears from representatives of the media as to the disadvantages of doing so and the relevant law in respect of the matter. But the media can make those representations only if they are notified of the possibility of the court moving into a closed session.

As the noble Baroness, Lady Berridge, has said, the amendment addresses a second topic, one that this Committee addressed briefly last Tuesday night, and that is the vital need to ensure that there is the possibility of a periodic review of whether a judgment needs to remain confidential. The concern is that there will be, as there already is in relation to control order decisions and TPIM cases, a body of case law, the contents of which is known only to a very few people. The case law is known to officials, to counsel who have represented the Home Office, to counsel who have acted as special advocates and to some judges. However those counsel and those judges may be aware only of the decisions in the cases in which they have played a part, yet this case law may contain information which is very important to the determination of later cases.

This is a very real problem for a common law system in that some of the case law is secret. I understand that it has been suggested—only partly in jest—that a set of secret law reports should be published, a subscription to which could only be bought by those with security clearance. It may be necessary—this is what we are debating in relation to Part 2—for Parliament to depart from basic principles of fairness and openness, but it is then vital for us to build express procedural safeguards into this Bill, safeguards that do not undermine the maintenance of secrecy.

The noble and learned Lord, Lord Woolf, just expressed the view that it is unnecessary for Parliament to tell the judges how to protect fairness. He is right. All the judges in this area have been and continue to be concerned about maintaining fairness in the procedures in control order cases and in TPIM cases. Nevertheless, I consider it is very important that Parliament should do all that it can to set out clearly, for the avoidance of doubt, the existence of vital safeguards in this area, both to give confidence to the individuals concerned and to ensure that we avoid so far as possible the inevitable expensive and protracted litigation. Two of these vital protections are set out in this amendment—that the press should have notification of a proposal to go into closed procedure and that there must be an opportunity periodically to review whether to maintain the secrecy of a closed judgment after a period of time.

--- Later in debate ---

[Baroness Stowell of Beeston]

I always listen carefully to the points that my noble friend makes. This is about ensuring that justice is done, and of course justice should be seen to be done. It has been said many times before in debates on this Bill that this is not the optimum system, and it is not the one that we would want to follow. However, if the Government are to be able to defend themselves against allegations and indeed if somebody is to have the opportunity to make a claim against the Government and see that claim through, we think that this system will deliver that. We are bringing forward this Bill because ultimately that is what we want to achieve.

[Baroness Berridge]

My Lords, I am grateful to the noble Lords, Lord Pannick and Lord Lester, for their contributions on this amendment. I am also grateful, in part, for the contribution of the noble Lord, Lord Beecham. I hope that he can be persuaded of the need to inform the media, and not only for the reasons outlined by the noble Lord, Lord Pannick. In my view, in reality these cases are going to be twin-tracked. Either legal proceedings will be preceded by allegations in the media or allegations will be made at the same time as those proceedings. That is the nature of these cases. Unfortunately, they often involve allegations of rendition and so on. Therefore, it is very important to think through thoroughly the implications of not notifying the press when those allegations will be rolling at the same time in our national newspapers, on Twitter and in blogs. It is important to understand the implications of not informing the press of the application for a closed material procedure.

I am not surprised to hear from the noble Lord, Lord Beecham, of the practical difficulties of notifying the media in these circumstances. There is also some weight in the comments of my noble friend Lady Stowell in relation to the anomaly of having a special advocate representing a public interest and seeing information to which the public does not have access. However, I think it is accepted that this system is anomalous and that there are going to be practical difficulties in ensuring open justice. When you have an anomalous system, it is not surprising if you breed slightly more anomalies in trying to achieve the best result you can in the circumstances. It is important to remember that, if it is told, the press will be there representing the public administration of justice. That is a serious matter that counterweighs the anomaly or the practical difficulties. As I have outlined, there has been a tradition of the press intervening and representing the issues in certain cases.

Before closing, I wish to refer to two matters that were mentioned. My noble friend Lady Stowell talked about the public preferring evidence to be taken into account so that the Government can defend themselves, and she also mentioned the money that is paid out if they cannot do so. A lot of confidence is placed in the public’s view of this system. I do not like to rely on opinion polls because I think that the answers depend on how the questions are phrased. However, what evidence are the Government relying on? There is a high degree of public mistrust. As soon as you mention secret trials, you get a very adverse reaction, particularly when dealing with actions against the Government in these circumstances. I should be grateful for some clarification of the basis on which the Government are sure that the public are behind the introduction of this system.

Finally, my noble friend outlined something that has been an issue throughout a lot of the debate on these amendments. She mentioned only some material being closed. At the same time, a big thrust of the Government’s argument has been that these cases are saturated by intelligence material. Therefore, we need some explanation here. It may be that only some material will be closed but we are also talking about cases that are saturated by intelligence material and where most of the proceedings will be closed and therefore the secret judgment will perhaps be a blank. I hope that the Minister can provide further clarification. I beg leave to withdraw the amendment.

Amendment 69ZA withdrawn.

--- Later in debate ---

[Lord Butler of Brockwell]

My Lords, that is a very reasonable point and I address it with diffidence. It is obviously a bigger and more difficult undertaking to launch rapidly an emergency Bill than to have an order. If the case were good enough, it would be better to have a procedure that could be undertaken rapidly than to have the need for urgent legislation. But I do not take a very strong stance on that matter.

[Baroness Berridge]

My Lords, I, too, am grateful for the clarification from the Minister in relation to the exclusion of inquests for this particular reason: I understand that, outside of Northern Ireland, there are currently only two inquests outstanding in England and Wales—the case of Azelle Rodney and that of Mark Duggan from last summer. I am certain that, in the first case, the proposal is to use the Tribunals and Inquiries Act to conduct that inquest, and I believe that that is also to be the suggestion in the Mark Duggan case. The reasoning behind that is, I believe, that intercept evidence is to be considered.

One can see that it is a small step in the argument to say, “We are using the Tribunals and Inquiries Act and intercept evidence so why not, because we can under this Bill as it stands, use intercept evidence in a closed material procedure?”. It is a small step of reasoning to move into closed material procedures in inquests.

In relation to the issue of procedure and having legislation that goes quickly through the House, one can understand the concerns that exist at the moment in relation to the Mark Duggan situation. In those instances, Parliament should reconsider the matter. We would need to consider all the impacts on public confidence and the outworkings of using a secret procedure in such a high-profile case and an inquest of that significance.

[Lord Reid of Cardowan]

My Lords, I first apologise that I missed the first few speeches because I was unavoidably detained, but I have listened to quite a few of the speeches over the period and I have tried to read as much as possible of these debates when I have missed them. I have been impressed by the commentary on legal matters, matters of process and by the justice side of what the noble Lord, Lord Pannick, referred to earlier—the balance of justice and security—but I am afraid that I have searched in vain for anyone outside of the Front Bench doing anything in detail to analyse the security context. In other words, we cannot possibly judge whether these are appropriate measures in general unless we judge them in the circumstances of today. As the noble Lord just said, the situation with a coalition Government means that we are living in different times from previously, but the situation of living with the threat that we have today means that we are also living in different times from previously.

I have read with great interest the legal commentaries. I have found them outstanding in their quality and certainly outstanding in their quantity. I always defer to noble Lords with expertise in the human rights area and in the legal area on matters of law and advice on human rights, but I hope that noble Lords will forgive me if I do not defer on deciding on matters of security. I would have been horrified when I was Home Secretary had it been suggested to me that the overall strategic position on security and defence, for which the noble Lord, Lord King, and I had responsibility, was better served by having a lawyer decide rather than an accountable politician. Therefore, although this may be a minority speech, it is one worth bearing in mind for those who are speaking to these amendments today, not least on closed material procedures but not exclusively on them.

My starting point is to ask why these proposals are coming forward in the form that they are today. I am not a lawyer. I am a historian and therefore the two important questions to me are “Why is something happening?” and “Why is it happening when it is happening?”. Of course, there can be motivations ascribed. I have heard it said that this is merely mission creep. I have heard that it is the malevolence of the intelligence services: it is their guilt and wish to cover up future proceedings. But there may be a simpler answer: that circumstances have changed, and in particular that the nature of the threat has changed.

I say that on an evening when, unpopular as it may be to certain elements of the press, the chemical weapons and weapons of mass destruction debate seems to have been put back on our front pages. It is now widely recognised that they are sitting just across from Iraq. People are naturally very worried about what would happen if they fell into the hands of some of the terrorist groups at present operating in Syria. That is an example of the nature of the modern threat.

Noble Lords will know that there are two essential elements of threat: intention and capability. After 9/11, there can be no doubt that there are people in the world who have an unconstrained intent to commit unconstrained mass murder, including in this country. Whereas 60 years ago there were states with that intention, they lacked the capability. The scientific and technological basis on which they might operate their intent was limited to CO₂ from the fumes of cars or vans or to Zyklon B canisters. That is not the case today. Chemical, biological and radiological weapons are also capable of extending unconstrained massacre of human beings. That is what has been in the minds of those charged with the security of the country since 9/11—unconstrained intent and unconstrained capability.

The second feature of that, which brings me to the amendments today and the Bill before us, is that there is now a seamless threat. This is not a threat in one country. It is not a threat that appears only in two countries. I did not deal with one threat that was in fewer than two or three countries, and in one it involved people in 29 different countries. If you have a seamless threat, you have to have a seamless response.

We are no longer, if we ever were, an island fortress, not just with cyber but with some of the potential threats that face the citizens of this country, whom the Front Bench are charged with protecting. If we are to have a seamless response, above all it requires absolute trust between those agencies and those Governments who are working together. That trust and dependence are now far greater than 30 or 40 years ago. Therefore, the breach of that trust, inadvertently or otherwise, through institutions or processes, legal or other operations, becomes a huge hole in the creation of a holistic security policy.

I am not suggesting today that any of the ideas that have been put forward or the amendments are necessarily wrong, and I am certainly not suggesting that they are badly motivated. They are not malevolent; they spring from a natural inclination to oversee government, particularly when government exercise powers that are abnormal. Sometimes, they will be based on first principles and sometimes you will ask where the logic to this is, as the noble Lord, Lord Butler, asked earlier. To that particular question I will tell him that there is no logic. It is a political decision taken for political reasons. It is the result of political discussions. It has been decided to concede in order to gain what is left. I do not expect the Minister to say that, but it is obvious to all of us.

At the end of the day, political decisions have to be made. All I want to do today is put in the minds of everyone who speaks, from every background, the experience in making decisions such as this of those of us who have had the privilege—and burden, in some ways—of being charged with the security of the country. It is not because we are Cromwellian in character; it is not because we have a blind spot for mission creep; it is not because Ministers on the Front Bench will not question the agencies—it is quite proper that they do so. It is because the first premise on which they should base the balance of justice and security is an understanding of the security element, as well as the details of the justice element and the justice process.

--- Later in debate ---

[Lord Thomas of Gresford]

My Lords, Amendment 76 is in my name and that of my noble friend Lady Hamwee. Amendment 76 is very much in the same terms as Amendment 75 and I accept everything that has been said by my noble friend Lord Lester, the noble Lord, Lord Pannick, and the noble Baroness, Lady Williams of Crosby. Therefore, I will restrict my remarks to a question. What is the purpose or justification for an absolute bar in Norwich Pharmacal proceedings against disclosure of material in the possession of the security services? As I understand it, the certification procedures for the Secretary of State apply to all other material in anybody else’s hands.

The Secretary of State has to take a decision in which he considers the public interest or, as my noble friend Lord Lester suggests, whether there is a breach of the control principle, which is a rather narrower test. His decision is subject to review on judicial review grounds in Section 6 proceedings. What is it about the security services that enables them to escape the consideration of the Secretary of State, the public interest and Section 6 proceedings on judicial review grounds? I see no reason for singling out the security services from such control.

[Baroness Berridge]

My Lords, Amendments 71 to 75, 77 to 79 and 81 to 87 all have my name on them. As the detail of those amendments has already been outlined by my noble friend Lord Lester and the noble Lord, Lord Pannick, I will follow the noble Baroness, Lady Williams, and focus on the core purpose of Amendments 85, 73A and 77A, which is to introduce limited grounds for the disclosure of information received in confidence by the intelligence services and amend what would otherwise be a complete ban on disclosure under Clause 13.

These amendments are required, as David Anderson QC pointed out to the Joint Committee on Human Rights in his evidence, when he said that,

“you are not going to get away with a blanket exclusion of all evidence in the hands of the security service, or even all evidence in the hands of the Government, as they suggest at one point”—

he means in the context of the Green Paper.

Although the disclosure jurisdiction that we deal with today began in the intellectual property field, it is completely by accident that the principles behind the jurisdiction were first applied there. On considering these amendments, I reread the judgment of the noble Lord, Lord Reid, in the Norwich Pharmacal case. It is clear that the jurisdiction is based on sound principle. It is important to consider that principle as it goes to the heart of why these amendments are required.

It is best understood by a threefold division of cases—and I would term myself a Championship not a Premier League lawyer here. First, there are cases where the person, usually the UK Government, is directly responsible for the wrongdoing and a civil case is brought directly against them as the defendant. Clause 13 leaves those actions completely unaffected. Secondly, there are cases where the person in question is a bystander, spectator or mere witness to the wrongdoing. In those circumstances, no action can be brought against that person, they are not even complicit and Norwich Pharmacal will fail.

However, there is a small, narrow group of situations—which are, as the noble Lord, Lord Pannick, has outlined, even narrower after the case of Omar—where, although not directly responsible for the wrong, there is sufficient connection to the wrongdoing that a requirement attaches to you to disclose information or material in your possession that helps the victim of the wrongdoing to seek redress; that is, more often than not, court proceedings. This obligation is based on the limited culpability that attaches as one is mixed up, even innocently, in the wrongdoing. I would term it a bit like moral velcro. Being mixed up in wrongdoing sticks you with certain limited responsibilities.

The kind of mixing up by the UK Government, in cases such as that of Binyam Mohamed, is questioning a man after you should have, at the very least, been aware that he had been tortured. When I read of the injuries to Binyam Mohamed it was rather disturbing. According to the findings in that case, the UK took some of the fruits of that torture by questioning him, although it is important to emphasise clearly that the UK Government were in no way involved in that torture.

I accept, of course, the evidence of the Joint Committee on Human Rights that the intelligence services in the United States, for example, are disclosing less intelligence to the United Kingdom because of the fact, or perception, that the information could be disclosed through our courts. But the first caveat is the Government’s own Green Paper, which outlines that there is no suggestion that key threat-to-life intelligence would not be shared. The second caveat is whether this fact or perception is justified. As the UK courts have never ordered the disclosure of such material, and any Norwich Pharmacal application that could be made subsequent to the case of Omar would be followed by a PII application as well, the risk is minimal. Allowing limited Norwich Pharmacal applications as outlined in these amendments would be a proportionate response to that minimal risk.

It is also interesting to note the change of position by the United States concerning whether the control principle was breached in the case of Binyam Mohamed, as outlined by the ISC report for 2009-10, in which the United States does not seem to think that there has been a breach of the control principle. In the 2010-11 report, the United States seemed to think that there had been one. It is interesting to note that it is the same time period which saw the mass of WikiLeaks disclosures. I would be saddened if the mistaken perception of our judicial processes or an understandable oversensitivity to the control of its own intelligence material could lead to a change in our law to exclude this jurisdiction from human rights cases, especially when, unfortunately, the alleged wrongdoer may also be the United States.

I would expect that the mere receipt of intelligence information that discloses wrongdoing, even information obtained by torture, is being a witness. Can my noble friend the Minister explore whether the requirement that in national security cases a greater culpability of connection to the wrongdoing other than being innocently mixed up would satisfy the concerns of the United States? If complicity by the United Kingdom is needed, cases where Norwich Pharmacal would apply should be very rare.

In essence, the argument from the Government is that our intelligence services lack certain information and therefore our national security could be at greater risk. I expect the Government to oppose the amendments, especially as it is the first duty of the Government to protect their citizens. I agree that it is the first duty, but it is not the first principle—otherwise protecting national security could justify torture, and it is crystal clear from the Reith Lecture from the noble Baroness, Lady Manningham-Buller, that the UK does not. Protecting national security and even going to war must still be conducted within certain ethical and moral constraints, which include that if you get mixed up in the wrongdoing you may—subject to five stringent tests in the Norwich Pharmacal case, and following a PII application—have to disclose material to help the victim defend himself against a capital charge. I fully accept that the United Kingdom is the junior partner in this situation, and is probably more reliant on intelligence material from the United States than vice versa. But your ethical and moral principles are often tested—or perhaps only tested—when you are the less powerful person in the situation, not when you are in command.

I end with a very simplistic point. The remedy may not even need to be legislation. If the UK does not get mixed up in, as opposed to merely receiving information about, other countries’ wrongdoing and, a fortiori, if the United States ceased this kind of wrongdoing, it can rest assured that the veil of the control principle cannot be pierced by Norwich Pharmacal. The remedy to some extent lies in the hands of the United States, and it is regrettable that President Obama did not fulfil his election promise to close Guantanamo Bay, which might have provided a line in the sand in this group of cases. I am pleased to live in a place with the high ethical constraints of Norwich Pharmacal and that we have a mechanism to release such information in situations that could literally save a man from the electric chair. The door to such information should be hard to open, but not absolutely barred. I support this group of amendments.

[Lord Falconer of Thoroton]

My Lords, it has been a very powerful debate. I am particularly grateful to the noble Lords, Lord Lester and Lord Pannick, for maybe seeing a way through a very difficult issue. Both issues that the Bill raises are difficult, but this is the more difficult. The first one, about fairness and making sure that one sticks to fair procedures, necessarily involved a solution whereby the courts made the balance. Ultimately, if there was damage to national security, the intelligence services would be able, if they wanted, to withdraw the case and there would be no damage to national security. This is a much more difficult one because the intelligence services do not have the option of withdrawing from the case.

As the noble Baroness, Lady Berridge, and the noble Lord, Lord Lester, explained, in a Norwich Pharmacal application, when no proceedings are afoot you go to court and say that either the British Government or the intelligence services have either committed wrongs or got mixed up in wrongdoing, and you ask them to disclose documents that show their involvement, not necessarily with the intention of suing the British Government but because you may wish to sue someone else. The courts have dealt with that by saying, “Okay, we’ll consider these Norwich Pharmacals”. If it is concluded that the position is made out whereby one would, prima facie, make a Norwich Pharmacal, the courts then say to the Government, “Okay, we are going to make a Norwich Pharmacal subject to the Government making a PII application”. Then the courts have to balance whether national security outweighs the interests of the individual. I do not know how that balance is to be struck, because it is not easy to strike it as it would be in ordinary litigation. Indeed, except in two cases, it has never been struck. It is not open to the Government to say, “Okay, we’re going off the field at this point”. If the court makes the order and overrides the public interest, it is disclosed.

That process has unquestionably caused some of our allies concern. The effect of the Binyam Mohamed case was that, even though two out of the three judges said that the control principle had not been broken because the intelligence material was no longer secret—I refer to the principle that if one country gives another country intelligence, the other country cannot use that intelligence without the first country’s consent—the United States Government now give us less information than they did previously. That is what Mr David Anderson said in his supplemental memorandum for the Joint Committee, which expressly said that it did not know whether it was right or wrong and that all it had to go on was what Mr Anderson said. However, he was clear that the effect of the court making it clear that a balance had to be struck, as unquestionably is the case, was that people did not feel so secure about the intelligence that they gave and so gave less. However, as the noble Baroness, Lady Berridge, and other noble Lords have said, they will give us intelligence when there is an immediate threat to life.

The effect of the current position is that we get less intelligence material from the United States of America and maybe our other allies because they are worried that the English courts might order their disclosure. The Joint Committee on Human Rights took the view in the light of that—this is my reading of it—that the minimum should be done to give the reassurance required to get the maximum protection in relation to intelligence. If you took that approach, is what the Bill proposes the minimum that can be done to provide protection?

The noble Baroness, Lady Berridge, described a typical Norwich Pharmacal stripped of any complication about intelligence. It would involve me going to have a cup of tea in a cafeteria in Thames House or Vauxhall Cross and me slipping on the floor, breaking my leg and saying that I would sue whoever owns the building, which is the intelligence services—but they say, “Actually, an independent contractor cleans the floor and it is absolutely their fault that you slipped”.

I could bring a Norwich Pharmacal order if the intelligence services did not tell me who the contractor was in order to bring my action for a broken leg because it had inadvertently got mixed up in wrongdoing. The effect of Clause 13(3) of the current Bill is that, because the information was held by an intelligence service, it would not be able to say, “No, you cannot have the information about who cleans the floor”. It would be the same if I were run over by a van carrying papers to the FCO and I wanted the maintenance records held by someone else; it could say no.

It is plain that the Government do not intend to cover those sorts of cases. What they do intend to cover are the cases where there is a genuine threat to the control principle and you cannot deal with it because the courts are absolutely right in saying that if the courts are going to make a decision they must have a balance.