Justice and Security Bill [HL]

Baroness Manningham-Buller Excerpts

Wednesday 21st November 2012 Lords Chamber

[Baroness Manningham-Buller]

My Lords—

[Lord Reid of Cardowan]

Perhaps I may respond and then I will give way to the noble Baroness, Lady Manningham-Buller. I was not trying to parody or even respond to the argument of the noble Baroness, Lady Kennedy, with the exception of her incorrect statement that there is no one from Labour here and her reference to Pakistan. The rest of it actually applied to the generality of the arguments that I have heard since I came in. I have made my position known on torture, but I have also made my position known on the obligations of government to protect the rights of the British citizen, including the basic one of the right to life.

[Baroness Manningham-Buller]

The noble Lord, Lord Strasburger, should speak first.

[Lord Strasburger]

Can the noble Lord tell the House about a single occasion when a British court has released into the public domain any information that has been detrimental to the country’s national security? Can he name a single one?

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[Lord Reid of Cardowan]

The explanation for a no is always more substantial than a straight no.

[Baroness Manningham-Buller]

My Lords, I feel I have to rise to speak because of the presumption of guilt suggested by some people on the part of my organisation in the past. I should say first that torture is a crime in our law and in international law. It is morally wrong, ethically wrong and it is never justified—even when, as the Americans would claim, you get the truth from it. That is irrelevant. It is not what a civilised country does and it is illegal. For my colleagues to be accused of it is to accuse us of a crime.

I can now talk about the Binyam Mohamed case. We interviewed him in Pakistan in 2002, where he was in American custody. Later that year we sent questions to the Americans to put to him. There were two things that we did not know in 2002. We did not know that our closest intelligence ally was resorting to waterboarding; that is, torturing people. We did not know that in 2002. Additionally, we did not know that Binyam Mohamed had been rendited by the Americans to Morocco. Had we known that, we would have been more careful about the questions we had put, as I said to the parliamentary committee in 2006 and as it was recorded in its report. Certainly we regretted that.

Because torture is a crime, the person who interviewed Binyam Mohamed in Pakistan was extensively investigated by the police. A report went to the Crown Prosecution Service and it was decided that there was no case to answer. If any of my colleagues had been involved in criminality, the criminal courts—we are not talking about civil proceedings here—the police and the Crown Prosecution Service would have been involved. We are absolutely subject to the criminal law, and so we should be. But I find it pretty difficult to accept a presumption of guilt without it being proved in a court.

I shall put a caveat on that, picking up the comment of the noble Baroness, Lady Kennedy. I cannot talk about matters to do with Libya because those are the subject of current civil proceedings, as I understand it, and criminal investigations. It would be inappropriate for me to comment at this stage.

[Baroness Kennedy of The Shaws]

I must ask the noble Baroness if she was listening when I made my speech. I made it very clear that there was no suggestion of British officers being directly involved in torture. I spelt out clearly and precisely what the noble Baroness has just described—being in places where people were being detained, providing questions and information that was ultimately used in interrogations where horrifying procedures were used. We know that happened in Binyam Mohamed’s case, and I made the suggestion that there was compelling evidence that it had happened in other cases. I would ask this question of the noble Baroness: does she accept that Britain played any role at all in rendition?

[Baroness Manningham-Buller]

Because it relates to the Libyan thing, I cannot answer the question. It is the subject of criminal investigations.

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[Lord Macdonald of River Glaven]

I am going to be fairly brief. I hope that the noble Lord, Lord Reid, will accept that I have an abiding interest in national security. I was Director of Public Prosecutions and chief prosecutor for some of the period that he was Home Secretary, and during the worst of those years that he has been referring to, between 2003 and 2008. We had the London bombings on 7 July, the attempted bombings on 21 July, the airline plot, the dirty bomb plot, the fertiliser plot, and a conspiracy to plant bombs in the Bluewater shopping centre—deliberately at half term, so that there would be women and children present.

I understand all those issues. I should like to say to the noble Baroness that my presumption is that members of the security services do not go to work to commit crimes and that they work tirelessly in the national interest and to protect public safety. That is my view about national security and about the security services. I think that the debate that we are having here is slightly different from that and I do not believe that anything that is proposed in this amendment would damage national security in any way or needs to be in effect an insult to members of the security services. It is a question about the sort of legal system that we want, and therefore questions of law are bound to intrude. But I accept the national security context.

[Baroness Manningham-Buller]

I am not insulted, I just feel that when the suggestion is that we have committed serious crime, I need to retaliate to that.

[Lord Macdonald of River Glaven]

I understand that.

What I want to do is to return, I am afraid, to the legal context. I will be fairly brief. I want to address three questions in the context of closed material procedures: one is public confidence; one is fairness; and I think the most important one is the delivery of justice, as this has been a large part of the Government’s argument. To what extent can closed material procedures deliver justice where no justice is presently available?

The first issue is public confidence. How is public confidence in the justice system achieved? My own view is essentially that it is won through securing the trust of the public. This is achieved in a number of ways, particularly I think through openness and—that overused word—transparency, especially in terms of the judgments given. It is particularly important that judgments in cases are given in public and so the judgment itself is open to public scrutiny. If a judgment is not open to public scrutiny, that judgment will struggle to win the trust of the public. Why should the public believe that something is so simply because a judge says that it is so? The ability to scrutinise a judgment is absolutely critical.

Not least of the damaging effects that closed material procedures may have—I think will have—will be to damage public confidence in our judiciary. Who is to trust a judgment against him made upon the basis of material that he has never seen? What litigant would trust the judge who makes the judgment based upon material that that litigant has never seen? The question of public confidence is not simply a question of public confidence in the system, it is a question of public confidence in perhaps the most important people who populate the system, the judges.

This brings me to my second point, fairness. I think that everyone accepts, as they must, that closed material procedures are unfair. In one profound sense, and I do not need to labour this point, they are not fair because they are not balanced. As the noble Lords have been told, special advocates are very eminent lawyers instructed by the Government to secure fairness in these proceedings. It is well known that the special advocates themselves oppose the creation of closed material procedures precisely on the grounds that they believe that the process is unfair. I remind the noble Lords again of something that the noble Lord, Lord Strasburger, said. These special advocates, who have been in all these cases, have said that they have not seen a single case in which the issues could not properly be litigated safely using PII and other ancillary procedures, securing justice without revealing the slightest hint of national security secrets.

The final and perhaps most important point of all—it has been made persuasively by the noble Lord, Lord Lester, and others—is the delivery of justice. This has been a common theme in this debate, including contributions from very distinguished former judges. The argument is that closed material procedures will provide some justice where none is presently available, in the absence of material that would otherwise be excluded under PII; in other words, the courts will now be able to consider material that they could not consider before, and that is a better form of justice.

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It is very difficult to see how that could be proportionate. As I said, we do not intend to press the amendment to a vote, but I hope that the Minister can take away some of those points for further consideration and come back with a response.

[Baroness Manningham-Buller]

I just say that I understand the concerns about the scale of the paragraph on sensitive intelligence. Equally, I think that Amendment 73 is a bit too narrow. Perhaps the Government can table something between the two by the next stage.

[Lord Wallace of Tankerness]

I am very grateful to the noble Lord, Lord Pannick, for moving his amendment and the noble Baroness, Lady Smith, for speaking to her amendments. There is recognition on both their parts and across the Chamber of the importance to us of information which we receive from other intelligence agencies. It is often crucial, and it is important that we can reassure them of its confidentiality. We have been trying—I acknowledge that this is the spirit in which the amendments have been moved—to ensure that there is a proportionate response to ensure that the information is protected.

There is the fundamental problem that the novel application of the Norwich Pharmacal jurisdiction, which has its origins in the intellectual property sphere of law, into the national security context has potentially been damaging to the United Kingdom's national security and international relations. As I have said, its very existence can erode the confidence of our agents and our intelligence-sharing partners that we can protect the secrets they share with us. Moreover, in the case of human agents—because it is not just information that we receive from other intelligence agencies; it is important to remember our own agents—there are real concerns of threat to life if there is a requirement to disclose. Each case that goes through the court has potential to cause damage, not just through the disclosure of sensitive information but by highlighting the risk that it could be disclosed.

In addressing the amendments moved and spoken to by the noble Lord, Lord Pannick, I will indicate that in this sphere we believe there is a need to provide certainty and to reduce the scope for litigation. The noble Lord’s suggestion of moving to a certification model, with a narrowed definition of what qualifies as sensitive information, would allow the uncertainty and damage to remain. If we do not legislate in a way which provides sufficient clarity, we could again have the difficulty that our intelligence-sharing relationships stand at risk of deteriorating.

A certificate-only approach would only partially address the concerns of our intelligence partners and of our own agents that sensitive information is at risk of disclosure under the Norwich Pharmacal jurisdiction. It might leave them with the fear that a certificate might not be upheld and that their material might ultimately have to be disclosed. That in itself could have a chilling effect on the activities of our intelligence services and our intelligence-sharing relationships. An absolute exemption therefore provides a clearer and neater protection for this material and more certainty for our partners and our own intelligence services.

I turn to the restriction of the statutory protection to identity, which seeks to define what might be the intelligence with national security concerns. The noble Lord, Lord Pannick, illustrated this by the identity of intelligence officers, their sources and capability and to control principle material alone. We believe that is insufficient, as there is sensitive information falling outside of these two categories that also requires statutory protection. That picks up the point made by the noble Baroness, Lady Manningham-Buller, that this is far too narrowly defined.

Given that the work of the intelligence services is covert, a considerable amount of material would not fall into the category of identities and capabilities but the disclosure of which could nevertheless still be very damaging. Such information includes information about operations and investigations, as well as threat assessments in relation to sabotage, espionage and terrorism, assessments of vulnerabilities of critical national infrastructure or systems, military plans, weapons systems and information on the development or proliferation of nuclear weapons overseas. It may also include operational planning and intelligence reporting, as well as material relating to national security policy and intelligence policy issues and funding, and so on. I hope that giving these examples shows that it is a much broader sphere of activity than is proposed in the amendment.

Likewise, that narrow definition can also create scope for litigation about what does and does not fall within the definition—what, for example, would be meant by the “capability” of intelligence officers? These issues alone could result in lengthy litigation, all of which would divert intelligence officers from front-line duty. The model proposed by the noble Lord, Lord Pannick, also allows no statutory protection for sensitive information whose disclosure could cause damage to the interests of the international relations of the United Kingdom. This point was also picked up on one of the latter amendments in the group by the noble Baroness, Lady Smith. The Government need to offer protection to this category of material to ensure that our international partners remain willing to talk to us in a frank way, so that we can protect and further the United Kingdom’s interests. The mere embarrassment that would be caused from disclosure of diplomatic material would be no basis to certify. Only if material would cause damage to international relations would we be able to certify.

Diplomacy does not work if diplomats cannot talk in confidence and no Government would, or should, sacrifice the benefits which effective diplomacy can offer. As an example, vital work that is done in promoting human rights is not always done in public. Talking to international partners in confidence about their human rights record is an important part of how we seek to influence that agenda. The possibility that such discussions could be made public could have serious consequences for our ability to influence. Clearly, if international partners do not trust the United Kingdom to keep advice and assessments confidential, this could have a serious impact on the United Kingdom’s interests in the fields of human rights co-operation—as well as on consular assistance, trade and investment, and jobs, to name just a few other implications.

The noble Baroness, Lady Smith, proposes adding after,

“held by an intelligence service”,

the qualifier,

“where that information relates to national security or the interests of the United Kingdom”.

We do not believe that that is the right approach. The Freedom of Information Act, which I referred to earlier, does not try to exclude those agencies from the operation of the Act only in so far as they hold information relating to national security. Rather, it excludes them from the Act as a whole in recognition of the fact that, as far as the agencies are concerned, their entire function and raison d’être is to do with national security and necessarily the information they hold is connected with that. The Security Service Act 1989 and the Intelligence Services Act 1994 both make express provision that the heads of those organisations are to make arrangements to ensure that no information is obtained by their agency,

“except so far as is necessary for the proper discharge of its functions”.

I am concerned that adding the wording suggested might only confuse the matter and give further opportunity for unnecessary litigation. We have heard about the canteen menu, and I think the noble and learned Lord, Lord Falconer, referred to someone who had slipped on the floor and wanted to sue the cleaners. I do not think those examples have so far been used in Norwich Pharmacal to get information out of the security services. If that were the issue, there are many other ways that that information could be sought. We are talking about far more serious information, and I do not think that is being challenged.

The noble Baroness said that she could not find anywhere where the Government had said what they might mean by,

“relating to an intelligence service”.

The Opposition propose removing the clauses that protect information relating to an intelligence service and information obtained from or held on behalf of one of our own intelligence services, as opposed to a foreign intelligence service, or information derived from such material. Sensitive information that would not be afforded statutory protection under these amendments includes sensitive intelligence material held by, say, the Home Office, that has been passed to it by the Security Service in support of executive action, for example, deportation on national security grounds or a TPIM notice. It would also include intelligence the Security Service shared with the police in counterterrorism operations, the disclosure of which would readily compromise those operations in either preventing a terrorist attack or bringing terrorists to justice. Work done in other government departments on national security policy and intelligence policy, which relates to the intelligence services, would not be protected if the “relating to an intelligence service” clause were removed.

The Government have reflected on the constructive analysis and considered comment in the legislative period to date. Picking up the point made by the noble Lord, Lord Pannick, I have no doubt that it will be considered further when this Bill goes to another place, but we have concluded, so far, that in the Norwich Pharmacal context, we need to provide absolute exemption for intelligence services information and certification for other sensitive information, the disclosure of which would be damaging to national security or international relations. Only by this can we provide the clarity required to enable the UK to protect its sensitive information in cases of third-party wrongdoing and to restore the confidence of our intelligence-sharing partners and our own security and intelligence services.

I have tried to outline some of the responses to what I appreciate are constructive approaches to what we all agree is a difficult issue. I hope I have explained why the Government resist these amendments, and I hope the noble Lord will withdraw his amendment.