Justice and Security Bill [Lords]

Baroness Blackwood of North Oxford Excerpts

Tuesday 18th December 2012 Commons Chamber

[Nicola Blackwood (Oxford West and Abingdon) (Con)]

It is a pleasure to follow the right hon. Member for Salford and Eccles (Hazel Blears). I am not a lawyer, a former Home Office Minister or a member of the Intelligence and Security Committee, so I will speak with humility. I would like to start by paying tribute to the members of the Joint Committee on Human Rights and the Members of the other place who have already done much to illuminate and improve the workings of the Bill.

The Bill clearly sits at the juxtaposition of justice and national security. As a result, it involves less than perfect solutions, in both directions. No one pursuing absolute principles of open justice or fairness would reach for the closed material procedure, public interest immunity certificates, confidentiality rings or in-camera hearings to try to achieve a measure of justice in the national security context. It is unarguable that extreme caution and extreme conservatism—with a small c—should be our starting point in approaching limits to those fundamentals of the rule of law of which we are so rightly proud here in the UK.

I have previously made it clear that I had significant reservations about the Bill. I accepted the principle that the closed material procedure might be appropriate in exceptional cases and as a last resort—that was also the position of David Anderson QC, who, unlike the majority of us here today, has been able to review some of the evidence that forms the Government’s case for the Bill—but I was not so happy with the details of the Bill in its original form.

I will restrict my remarks to part 2, which deals with the secret courts provisions. In particular, I found it difficult to accept the lack of discretion available to judges; the inequality of arms; the failure to ensure that CMP would be triggered as a last resort and only when strictly necessary; and the order-making power in clause 11. A Bill containing such provisions did not give the impression of limiting our traditions of open justice and fairness reluctantly, or of doing only the minimum to achieve the Government’s stated aims of preserving our vital intelligence links while enabling the Government to defend themselves against civil claims. I must be honest and say that I would have struggled to vote for such a Bill.

The Lords amendments have put a different Bill before us today, however; they have addressed every one of the points that I have just raised. They have strengthened the Government’s attempts to achieve their stated aims. I am pleased that the Government have accepted the amendment that will enable judges to exercise a measure of discretion. Replacing the word “must” with the word “may” might not seem like much to the casual observer, but to the non-state party in court, that will mark the difference between an obligation on the judiciary to grant CMP, on the one hand, and confidence in an independent decision made in the courts and not the Home Office, on the other. Our judiciary has so far shown itself to be trustworthy when it comes to protecting our national security interests, and decisions of the courts must clearly be theirs and not the Government’s, if the judiciary is to command respect here and abroad.

I was sorry to hear that the Minister without Portfolio was not convinced by arguments to allow judges to take into account whether alternative, existing procedural measures might be more appropriate in the first instance. Many of those measures provide more minimally invasive ways of excising national security material from the mass of evidence in a case and therefore keep more of the proceedings in the public eye. Put more clearly, rather than reaching for the total blackout of the CMP in the first instance, combining existing mechanisms such as PII certificates, confidentiality rings and in- camera hearings could well be more effective. That could achieve a more open justice, not compromise too greatly on fairness and still preserve the safety of intelligence for the majority of cases. It is important for us to know that that will be the default position, and that the CMP will not become the lazy or inappropriately risk-averse option rather than a necessity due to the nature of the evidence in specific cases or the desire of the applicant to rely on the sensitive information in their argument.

There will always be hard cases, such as that of al-Rawi, that prove that PII certificates might not be appropriate, perhaps due to the sheer volume of sensitive material involved, but such hard cases do not make good law and they prove nothing more than that there will be exceptional cases in which PII will not work and that this new alternative might be necessary. I think that we can trust the judiciary to work that one out. I also think that that course of action is sensible and the very least that can be done to reassure all parties to the litigation and the public that a decision to invoke CMP was strictly necessary and that all alternative solutions had been ruled out first.

I am pleased that the Government have also accepted the argument on equality of arms. It is worth remembering David Anderson QC’s evidence to the Joint Committee on Human Rights on this matter. He said:

“I am a little baffled by this. It is very much part of the Government’s justification for the Green Paper and the Bill that a closed material procedure can achieve fairness for individuals whose claims would otherwise have been struck out.”

It is illogical to exclude an application for CMP if the Government are arguing that the procedure would achieve fairness in such circumstances. I hope that the Government will continue to put forward that justification.

So far, I have made the case for the Government retaining amendments that have already been made, and I am grateful to them when they have done so. I would also like to discuss an issue that has affected many special advocates, who have made it clear that CMPs are “inherently unfair”. That is inevitable, given the circumstances, but the situation should be mitigated as much as possible. A major problem that special advocates have identified relates to their inability fully to represent clients when they are unable to disclose sufficient information to elicit effective instructions from the client. This obviously turns on how effectively and consistently the “AF No. 3 gisting obligation” is applied. Lord Carlile, in his evidence to the JCHR, explicitly acknowledged that that obligation should apply to all proceedings as a default. I am not yet convinced that the language in clause 7(l)(d), which states that the court need only “consider” providing a summary, matches that interpretation.

I hope that the Government will address that matter in Committee. Unless they demonstrate good faith in relation to open justice and state that disclosure will be the default position except in truly exceptional circumstances, it will be difficult to persuade a sceptical public that the measures proposed today are necessary and proportionate. I am afraid that I disagree with the right hon. Member for Wythenshawe and Sale East (Paul Goggins) about the removal of clause 11. His points on individual courts might be true, but an order-making power that does not define the courts involved should not be included in the Bill. It is appropriate that such extreme measures should be fully debated in the House.

Any measure that threatens the rule of law in the UK, or that sends a message that we do not uphold the highest standards of openness and fairness in our judicial system, is to be abhorred. However, when the choice is between no justice—due to national security material in evidence causing cases to collapse—and a measure of justice achieved by CMP, we have an uneasy choice to make. If we can hedge CMP around with sufficient protections for both parties—by keeping the amendments that will ensure sufficient judicial discretion and equality of arms and allow courts to ensure that CMP in civil courts is limited to truly exceptional cases as a last resort, and by ensuring that the gisting obligation is honoured—then and only then will the gains in fairness just about make up for the losses in openness. If those protections are not put in place, however, we will lose fairness and openness, and it will be extremely difficult to justify these changes.