Justice and Security Bill [HL]

Baroness Manningham-Buller Excerpts

Monday 23rd July 2012 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, I think that this may be an opportunity for the Home Office, in particular, to reconsider the advice apparently previously to it by the holder of the office of Attorney-General. With this possibility, there may be a way of introducing more flexibility into the general role with regard to intercept evidence than seems to exist at present.

[Baroness Manningham-Buller]

My Lords, I should like to comment on paragraph (e) in Amendment 69ZB tabled by the noble Lords, Lord Hodgson of Astley Abbotts and Lord Dubs. I can assure the Committee from my past experience in the Security Service that if this paragraph were to appear in the legislation, it would have a chilling effect on sources and on their willingness to provide information. I predict that many existing sources would refuse to continue in their role and new ones would resist recruitment.

Sources provide a range of information—some of it to be discounted and some of it valid but all to be assessed, which is something that the judge will seek to do. Some of that intelligence from human sources has prevented major atrocities and loss of life. However, when individuals agree to provide that information in confidence, they seek reassurance that their lives will be protected, and anonymity is key to that. If they were identified, I am afraid that not only would they need to be resettled but very few more would be willing to work for the Government.

[Lord Beecham]

My Lords, my noble friend Lord Dubs referred to the quantity and indeed the quality of legal advice which has been proffered to the Government and to the noble and learned Lord in particular by several Members of your Lordships’ House. I would not presume to offer legal advice but, if I did, my charging rate would be considerably less than that which noble and learned Lords would, quite rightly, be able to charge. Nevertheless, I support the thrust of the amendments that we are now discussing. I take the point made by the noble Baroness in respect of paragraph (e) in Amendment 69ZB, and I think she has a significant point in that respect. However, the overriding concern is not to depart far, if at all, from the basic provisions of our system in guaranteeing a fair trial of the issues in civil, as well as criminal, matters and in the question of equality of arms.

The noble and learned Lord, Lord Woolf, referred to the perhaps superfluous character of amendments which seek to empower judges to do what they can in any case do. I do not read the amendments quite in that way, particularly Amendment 69ZB, much of which imposes a duty on the Secretary of State, in particular in relation to the disclosure of information to the special advocate for the purpose of the hearing. That seems to me a compelling argument. I do not necessarily subscribe to every one of the points made in that amendment but I think that, taken as a whole, they are matters which the Government should consider very carefully, and I entirely endorse the views of my noble and learned friend Lord Goldsmith in that regard.

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[Lord Hodgson of Astley Abbotts]

My Lords, I am extremely grateful to my noble and learned friend for the very full response he has given to the debate. Obviously, there is a lot of information for us to absorb and think about during the Recess before we get to the next stage of the Bill.

When a couple of non-lawyers such as the noble Lord, Lord Dubs, and I propose an amendment and we are followed by a past Lord Chancellor, a past Attorney-General, a past Lord Chief Justice and a past head of the security services, we need to be pretty careful about what we are doing and sit up and listen. The purpose of the amendments was to improve the balance and the fairness. They were probing amendments at this stage and intended to shine a light of transparency wherever and as far as we could.

The noble and learned Lord, Lord Woolf, argued about proportionality. He said that this would apply in only a limited number of cases in civil proceedings and that the issue of judicial discretion could carry the day. However, in previous debates I have said how in a very few cases that could involve the minority community and in particular the Muslim community, which could have a disproportionate impact on the way that our society operates and the way that justice is seen to be operating. I have referred to my own visits to schools and so on as part of the Lord Speaker’s outreach programme, where one sees how extremely sensitive these communities are about the way our judicial system works. Therefore, I am concerned about that. I am also concerned about what the noble Lord, Lord Beecham, said about mission creep. His Amendment 69A concerns another area of danger in Clause 11—where the mission could be expanded quite a lot on the basis of regulation—which we all need to explore.

The noble Baroness, Lady Manningham-Buller, feels that I have got it in for the security services. I have not got it in for the security services at all—

[Baroness Manningham-Buller]

I assure the noble Lord that I have no such thoughts.

[Lord Hodgson of Astley Abbotts]

I am merely testing the case and, as I have said before, I quite understand the anonymity of sources and the danger of publicity to them. However, perhaps I may just say that the amendments that the noble Lord, Lord Dubs, and I have tabled today refer to the role of the special advocate, who is security cleared. Therefore, we should be able to rely on that.

With regard to Amendment 69, my noble and learned friend said that this was an issue of case management where the parties have agreed and that it was business as usual. Unfortunately, this is where the ice cracks under my feet because I have no idea whether that is a good argument. I see nothing about parties having agreed in the Bill at present. However, I am sure that we will have a chance to consider this further. I will certainly need further advice before going any further on the point. Therefore, at this stage, I beg leave to withdraw the amendment.

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[Lord Falconer of Thoroton]

There are two points. First, I am seeking to say what the dilemma is for the House. It is necessary for the House first to come to a conclusion about whether there is a difficulty in relation to the flow of information. If it comes to the same conclusion as the Joint Committee on Human Rights came to, based on Mr Anderson’s evidence, the question is: what is the right solution? I think that everyone around the House agrees that it should be proportionate.

On the specific questions, I am not in favour of a complete ouster and, as I understand it, neither are the Government, because they are saying that any certificate given by the Secretary of State is subject to judicial review, so it would not be an ouster of a sort that other Ministers tried on previous occasions. This would leave in the ability to say, “Could a reasonable Minister have given such a certificate?”. There are two bits to that. The approach of the noble Baroness, Lady Williams, is to cut out of the approach that is being suggested anything that might make an allegation of human rights abuse. I can see the attraction of that, but the consequence is probably that Norwich Pharmacal is left untouched, and you have the problem of less intelligence coming. I do not want to sound too dramatic but the indications from the intelligence services, which I do not question in any way, tend to be that that might have a significant effect on the Executive’s ability to protect more individuals. I can see the former head of one of the intelligence services behind me correcting me on this, but it is quite a significant part of the ability to protect ourselves.

If one took the route of the noble Baroness, Lady Williams—if I may call it that—that would avoid giving any protection at all. The route of the noble Lord, Lord Lester, is, “Take the approach that is being suggested. Have the ability to certify. Limit it to the control principle. Cut out everything else. Make it judicially reviewable but accept that there are occasions when there will be gross breaches”. I think he is suggesting in his Amendment 85 that it is something more than a judicial review balance, something else apart from judicial review, because it says in effect that the principles of judicial review will apply to considering where the public interest lies, including considering whether there have been gross breaches of international law. That is not quite the wording but that is what it amounts to. That still seems to me like judicial review, so it is for the Minister to decide whether there is a basis for concluding that it might affect the control principle. If he comes to that conclusion, the certificate is not attackable. That appears to be what is being proposed.

[Baroness Manningham-Buller]

My Lords, this is obviously one of the trickiest bits of the Bill and I am very grateful for the analysis of the noble and learned Lord, Lord Falconer, because he has forced the Committee to focus on some of the key issues. This was not a problem when I was director-general. Norwich Pharmacal was not being used in national security cases, so it is a relatively new phenomenon.

If the Committee will allow me, I should like to make a slight deviation on the question of public interest. I accept that there have been occasions when Governments of all persuasions have used secret certification to label things secret when they have not been secret at all. I acknowledge that that has happened. However, I hope that the Committee will really accept—some speakers appear not to have done so—that there are real and serious secrets that, if exposed, will cause substantial risk to the public interest. I know that I keep saying that and I hope that noble Lords will forgive me if I repeat it.

The noble Lord, Lord Reid of Cardowan, made a speech about the threat. I shall not go into that because I retired five years ago and I think—in fact, I know—that the nature of the threat has changed. However, the practicality of intelligence work is that you have to work with a great many other services. If he were in his place, I would contradict the noble Lord, Lord Reid, saying that you trust them all, because of course you do not. In some cases, you are dealing with countries with very different standards of law and different attitudes to human rights and so on. On the other hand, as I said in my Reith lecture, you cannot just talk to the Swiss, however nice that would be. We are facing a global threat. We need to talk to the parts of the world that have an understanding of and familiarity with that threat, and the security and intelligence community does so with caution and care. It will not always get it right but it is tuned into the problems.

The reality is that we do not deal just with the United States. The noble Baroness, Lady Berridge, is right that we are the net receiver of intelligence from the United States—naturally enough, as it spends squillions on its intelligence community and it is very much bigger. However, we also deal with people around the world, including our European allies, with whom intelligence is exchanged extensively every day of the week. We deal with people in the Middle East and the Far East and all around the world. Therefore, we have a difficulty because we will not always know where the intelligence that we are given is derived from and we immediately run into the issue of how it has been obtained. Questions will not resolve that—you will not get the answers. If we have a reduction in intelligence, we will begin to lose insights, and according to David Anderson that is already happening.

It is no consolation to me at all to be told that the Americans will still give us life-saving intelligence. How will one know that it is life-saving? The nature of intelligence work is putting together information from perhaps five or six different countries and 20 different organisations—little bits and pieces of a jigsaw that, together, might save lives. If something tells us, “This is going to happen tomorrow, so you can do something about it”, that is fine, but intelligence is very rarely obviously life-saving when it is first received. Therefore, if that intelligence is reduced or rationed for reasons that, if the noble Lord, Lord Lester, is right, may be mistaken in some cases, that will be a very serious problem for the United Kingdom.

I should also like to point out an irony here. Some of these problems might not have arisen if we had had a closed material procedure, which we talked about on an earlier part of the Bill, at an earlier stage. Putting much more material into the court—albeit through the, as I absolutely accept, not entirely satisfactory arrangement of CMPs—means that there is a chance for HMG to defend themselves and for the claims of a claimant to be scrutinised and judged by an independent judge. I suggest that not being able to defend themselves has been very damaging for the Government and for the intelligence and security community. Anecdotal allegations have assumed the status of facts. Some have been, and are being, investigated as crimes, and obviously it would be inappropriate for me to mention those in any detail on this occasion. However, others are left in limbo, unresolved and under damaging clouds of accusation. Therefore, if in future we can resolve those, that will be very helpful. If we can reach a solution to the difficulties of Norwich Pharmacal that protects other people’s intelligence from this sort of exposure, we will still be in business. If we cannot protect it, it will not just be the Americans who reduce the flow of intelligence, as David Anderson described in his evidence, but many other people as well.