Justice and Security Bill [HL]

Baroness Stowell of Beeston Excerpts

Wednesday 21st November 2012 Lords Chamber

Moved by

[Baroness Stowell of Beeston]

41: Clause 6, page 5, line 10, at end insert—
“( ) Rules of court must make provision—
(a) requiring the Secretary of State, before making an application under subsection (1), to give notice of the Secretary of State’s intention to make an application to all of the parties to the relevant civil proceedings,(b) requiring the Secretary of State to inform all of the parties to the relevant civil proceedings of the outcome of the application.”

[Baroness Stowell of Beeston]

My Lords, I shall speak to Amendment 41 now but I hope it will assist the House if I do not speak to the other amendments in this group until after they have been debated. I shall therefore respond at the end of the debate to both this amendment and the other amendments in the group which have been tabled by other noble Lords.

When I was responding to a debate on a topic which falls within this group, I boldly announced that I am not a lawyer. In the course of my remarks I said something which provoked a strong response from some of the lawyers who were involved in the debate that day and it is therefore a pleasure to move a government amendment that addresses the concerns raised in debate at that time. The point at issue then was the provision of notice by the Secretary of State to the other parties in a case in which a CMP is to be applied for. The Government committed to considering the issue. We gave it more detailed consideration over the Summer Recess and wrote to the noble and learned Lord, Lord Falconer, together with a number of other noble Lords who raised questions at the time of the debate.

In that letter, the Government explained that on further consideration it was clear to us that there were difficulties of both principle and practice with having CMPs without notice. We made it clear that closed judgments would exist without anyone other than the judge and the Secretary of State being aware of their existence if we were not to give notice, and that special advocates would also be unable to take instructions from the individuals whose interests they represent or to communicate with them at all. It was our view that this problem could be sorted out in the detailed rules of court for CMPs. However, the Government have considered this further and believe that it should be safeguarded in the Bill. The amendment provides for two procedures: the Secretary of State must give notice of his or her intention to apply for a CMP to the other parties in the case, and he or she must also inform the other parties of the outcome of the application.

I hope noble Lords will agree that this enhances the safeguards available under the Bill to ensure that the maximum amount of information that can be provided to the open representatives in the case is provided. I hope noble Lords will also agree that this amendment materially advances the continued efforts of the Government to ensure as much openness and transparency as possible, and to ensure that nothing is kept secret that does not need to be for genuine national security reasons. I beg to move.

[Lord Pannick]

My Lords, I shall speak to Amendment 56 in this group, which has been proposed by the Joint Committee. It would ensure that rules of court make provision for the media to be notified of any application for a closed material procedure so that they can make representations on the issue to the judge. The amendment would also ensure that a party to a closed judgment may apply for it to be made open at a later stage. It is not sufficient for the Secretary of State to give notice of an application for a CMP to the parties to the case. The reason for that is that a CMP will severely impede the ability of the press to report legal proceedings. It may be that it is only the media who are concerned about a proposal to introduce a CMP in a particular case; the other parties may not be focusing on the matter or may not object.

It is also essential for rules of court to provide a mechanism by which judgments that are closed can be reopened and published after the passage of time if there is no longer any reason for secrecy. These provisions were recommended by the Joint Committee, and perhaps I may quote what was said yesterday in a lecture by the president of the Supreme Court, the noble and learned Lord, Lord Neuberger:

“Without judgement there would be no justice. And without Judgments there would be no justice, because judicial decisions, at least in civil and family law, without reasons are certainly not justice: indeed, they are scarcely decisions at all. It is therefore an absolute necessity that Judgments are readily accessible”.

I accept entirely that if there is a CMP, of course that part of the judgment will be closed, but it is essential that rules of court allow for the possibility of a later application to open up that which no longer needs to be secret.

--- Later in debate ---

[Lord Beecham]

My Lords, for the avoidance of doubt, I should say that the Opposition support Amendment 56. My noble friend Lady Kennedy beat me to the Public Bill Office in putting her name to it. As she and the noble Lord, Lord Pannick, have said, it is important that the press and the media generally should have notification of applications of this kind. It complements a later amendment that will require the regular reporting of the number of applications that have been made, so to some degree the two things flow together.

The manuscript amendment tabled by the noble Lord, Lord Phillips, has arrived very late in the day and, given the other excitements we have been enjoying, I confess that I personally have not given it sufficient attention. I will be interested to hear the views of the Minister if she is replying to that particular amendment in due course. I would also be interested to learn the views of the noble Lord, Lord Pannick, on it, if he is able to give them. On the face of it, the amendment seems fairly persuasive, but it has been brought forward so late that I am finding it difficult to come to a decision, although other noble Lords may find it easier to do so. But certainly so far as Amendment 56 is concerned, and indeed the original amendment in this group, the Opposition are fully supportive.

[Baroness Stowell of Beeston]

My Lords, I am grateful to all noble Lords for their remarks. I will speak generally and respond to the noble Lord, Lord Phillips. The noble Lord, Lord Hodgson, has not said anything about his amendments in this group but what I will say applies to those as well.

The Bill does not seek to change the rules in relation to civil proceedings, save where this is necessary to have a closed material procedure; we are not otherwise changing the ordinary rules in civil procedures relating to disclosure of evidence. The noble Lord, Lord Phillips, in speaking to his manuscript amendment, talked about adding a lasso. We believe that the Bill already provides a lasso. We agree with the thrust of the points he makes but do not think it is necessary to accept his amendment, because the Bill provides for the essence of this point in Clause 9, where it says that, subject to securing closed material procedures, the ordinary rules of disclosure must otherwise apply. The way that his amendment is worded may also be a potential source of confusion in that it is unclear what is meant by the word “necessary” in the amendment in a particular case. More specifically, we are already providing for the concerns that he has raised.

[Lord Phillips of Sudbury]

I apologise again to my noble friend and to the House for the lateness of this amendment. I think her argument was that Clause 9 makes my amendment redundant, but am I right in thinking that Clause 9 relates to rules of disclosure whereas Clause 10(2) relates to rules across a much wider plain, governing standards of proof, evidence, whether or not there is a hearing, legal representation and so on?

[Baroness Stowell of Beeston]

I will address that point by saying that we are not seeking to change any of the ordinary rules for civil proceedings in this Bill. The normal rules for civil proceedings apply in the same way here except for where it is necessary to change them in order for us to meet the requirements of a closed material proceeding.

[Lord Phillips of Sudbury]

The noble Baroness says that the normal rules of civil procedure apply but Clause 10(2) gives extraordinarily wide powers to make new and different rules. That is my point and that is my concern.

[Baroness Stowell of Beeston]

It is probably easier if I turn to the other points that have been made in this debate. In the course of doing so, maybe I will receive some assistance that will allow me to answer the noble Lord’s question in greater detail. As if by magic, I have been handed a note. Clause 10(2) gives powers to make rules but these are in consequence of CMPs.

I move on to the question of media reporting and the points raised by the noble Lord, Lord Pannick, and the noble Baroness, Lady Kennedy. The amendment that I have moved, which hopefully the House will accept, means that the parties to CMPs will be notified when an application has been made. In essence, the point was that this is not sufficient in terms of notifying the media. It is obviously a matter for the parties to the claim to decide whether to inform the media. This amendment will ensure that the judge notifies the parties, such that this will be disclosed in the normal proceedings of disclosure that courts make. The noble Lord is looking at me quizzically. He will know more about this than I do, but when the judge notifies the parties that there has been an application, unless it is necessary for him not to do so in the interests of national security, that will be in the public record that exists in the court, which presumably the media are monitoring at all times. This is not about withholding information from the media.

Furthermore, if the media had the right to intervene in this process, it would be necessary for them to have access to all the material so that they could judge or come to a view as to whether it should be a matter for a closed hearing or not. That would be contrary to the whole point of a closed material procedure.

[Lord Pannick]

I am not of course suggesting that the media should have access to the closed material, any more than the claimant does. The claimant is notified but does not see the secret material. The point is that the media should also simply be notified, so that they can object to a closed procedure.

[Baroness Stowell of Beeston]

They will be notified, if not directly, by the process of the court notifying both parties to the claim. If the parties wish to notify the media, they can. The media will also be aware through the court disclosing its business in the normal way. The media will also be aware if the claimant wishes to tell them—as I am sure many will—about accusations that they wish to bring against the Government and the reason for them bringing the case in the first place. It is quite unlikely that the media will not be made aware of the application that has been made for a closed material procedure.

I would also add the point I made in Committee, that the media are not an institution with formal responsibilities to represent the public interest. Once they are notified formally in this way, it seems sensible or logical to me that they would then feel that they need to know more about the case—one limb of the amendment covers this—in order for them to have some kind of useful contribution to make about whether this should be a closed hearing or not.

[Baroness Kennedy of The Shaws]

In what way is this really significantly different from the many circumstances in which the press are excluded, or are advised not to print matters that are taking place in a court, such as the names of individuals, and a notice is posted to ensure that that is not done? We are really asking for a process of posting. The Minister is, of course, absolutely right that the rumour mill is likely to lead to people knowing and to the press finding out, but this is about making sure that there are formal processes rather than relying on the press being informed by lawyers, the parties or persons who would want the press to become interested. I would have thought that this is much better done through a formal process. I wonder why it is so different from other cases.

[Baroness Stowell of Beeston]

The amendment means that the judge will notify the claimant that the Secretary of State has made an application. Following normal practice, the judge’s decision will be part of the public record and so the media will be informed of that in the normal way.

Obviously, the press will have access to all the open elements of the case in the same way as they have access now. The sort of scenario that the noble Baroness describes would be a normal open court hearing within which there are aspects that the judge has decided to put some rules around. This is a specific issue about an application for a CMP and is therefore slightly different but, in terms of the direct analogy with the open part of the hearing, it would be exactly the same.

[Lord Lester of Herne Hill]

My Lords, I apologise for the fact that I missed the very beginning of this and it may be that in doing so I am about to say something stupid. However, am I right in taking from what the Minister is saying that the Government oppose Amendment 56 even though the Joint Committee attached enormous importance to this as a way of securing open justice without in any way damaging national security? In other words, in accepting Amendment 41, are the Government saying that Amendment 41 is instead of Amendment 56?

[Baroness Stowell of Beeston]

The point that I am trying to make, and I have made it several times, is that in the amendment that the Government are moving we are ensuring that it is now going to be part of the formal process of the courts to alert those who may be interested of the judge’s decision. As far as the media are concerned, we do not feel that it is necessary for there to be a specific notification to the media of the fact that the CMP has been applied for and consequently has been agreed or not agreed. There is nothing in that that is about withholding information.

The media report on other cases that use CMPs, in particular they are able to report on a finding on the issues. Indeed on other CMPs there does not seem to be a problem at all with the way that this works. In terms of the media being able to intervene in individual cases, which is another aspect to this amendment, civil damages cases that would be heard under this legislation are private law claims and it could be inappropriate for third party interventions to be made in such claims. The claimant may not want the media to intervene in the proceedings. I think that the most important point is that the outcome of all CMP cases will be reportable, increasing the opportunities for the media to report on these kinds of cases, as at present the Government are obviously having to settle rather than a claim being seen through to its conclusion.

I will turn to the other point that the noble Lord, Lord Pannick, raised about closed judgments, which is also covered in the JCHR amendments. It may be helpful for noble Lords if I briefly give some background on how closed judgments already work. There is a judicial safeguard on the use of closed judgments. In a case involving sensitive material, the judge must be satisfied that any material in the closed, rather than open, judgment would be damaging to national security and so could not be released. Special advocates can also make submissions to the judge about moving material from the closed judgment to the open judgment. If the court is persuaded that there would be no harm to national security, the material can then be moved to the open judgment.

The Government believe that it is important that those that are entitled to access closed judgments are able to do so. For this reason, the Government have created a searchable database containing summaries of closed judgments that will allow special advocates and HMG counsel to identify potentially relevant closed judgments. It is worth making the point that this new initiative has been put in place following the various stages of the passage of this Bill, both in terms of hearings and of discussion at JCHR. I am grateful to all noble Lords who have led to that new database being available.

The amendments also propose a review mechanism. Although I welcome this suggestion, the Government do not think that this particular proposal would work in practice. As drafted, it could mean that a person could attempt to subvert the disclosure process built into closed material proceedings by applying for the information immediately after the court had decided what information should be contained within the open and closed judgment, and then at regular intervals thereafter. A person could also abuse the process and put in an application each day. This would place a serious resource burden on the courts and agencies.

Having listened to the debate today and the findings from the JCHR report, the Government recognise that the review of closed judgments is an important issue and needs further thinking. The Government therefore request that Ministers have more time to look into the issues and report our findings to Parliament during the passage of this Bill. Obviously this may be something that would be looked at in the other place. To conclude, I ask noble Lords to accept the government amendment not to have CMPs without notice. I hope from the course of this debate that the noble Lords who have amendments in this group feel able to withdraw them at this time.

[Lord Beecham]

Before the noble Baroness sits down, in relation to the amendment of the noble Lord, Lord Phillips, would it be a way forward for her to take that back so that it might be raised, if necessary, at Third Reading? It is very late and the Minister is in difficulty—I think that we are all in difficulty—in terms of understanding the implications of the amendment, so this may be a way through the dilemma.

[Lord Phillips of Sudbury]

I am grateful for that suggestion. I do not want to keep apologising, but I do think, if the Minister agrees, that that is the way to deal with this.

[Baroness Stowell of Beeston]

I cannot commit to anything at this stage, but what I can do is to consider the amendment outside the Chamber and certainly to have a further discussion with the noble Lord.

Amendment 41 agreed.

--- Later in debate ---

[Baroness Stowell of Beeston]

My Lords, I beg to move that further consideration on Report be now adjourned. In doing so, it is worth noting that the dinner break business this evening is not time-limited. Without prejudging the debate, it is possible that we may be able to return to the Bill in less than an hour. Following discussions in the usual channels, I suggest that Report will not resume for 45 minutes, so not before 8.31 pm.

Consideration on Report adjourned.