Marriage (Same Sex Couples) Bill

Debate between Baroness Stowell of Beeston and Baroness Berridge

Monday 17th June 2013 Lords Chamber

[Baroness Stowell of Beeston]

Again, amendments on adultery are coming up. I do not know whether we will get to them today. I am really looking forward to that debate. It is going to be great. I urge noble Lords to come back on it. We should be selling tickets for it. I will be able to cover that issue in detail at that time.

[Baroness Berridge]

Will my noble friend the Minister clarify the position on annulment? This matter appeared in a letter written to Peers. My understanding of annulment is that it is not connected to procreation. You can have an annulment of a marriage even if you get married at 65. It is not directly related to procreation.

Justice and Security Bill [HL]

Debate between Baroness Stowell of Beeston and Baroness Berridge

Monday 23rd July 2012 Lords Chamber

[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.

Justice and Security Bill [HL]

Debate between Baroness Stowell of Beeston and Baroness Berridge

Monday 23rd July 2012 Lords Chamber

[Baroness Stowell of Beeston]

My Lords, I am merely a Whip, and do not have any powers that would extend to conferring a peerage on anybody, but I will certainly ensure that those that have more authority are aware of the view of the noble Lord, Lord Pannick, about Mr Anderson QC.

The amendment moved by my noble friend Lady Berridge is part of a wider set of amendments that she has tabled—some of which we debated last week—which are part of a package of measures that noble Lords would like to see introduced in order to ensure that the Bill, if it becomes an Act, is reviewed post its Royal Assent.

I can understand the reasons behind that because, as we have acknowledged on many occasions, this is a Bill which would introduce very different measures to the justice system than have been in place hitherto. However, we believe that the amendment is not necessary. I hope I can explain why to the satisfaction of your Lordships this evening.

In the case of Norwich Pharmacal, the primary problem we are seeking to address is how we provide reassurance to our allies that we can protect information shared with us in confidence. We had an extensive debate about this before dinner. One question we could ask ourselves is: would we share a secret with someone knowing full well that it was only guaranteed to be safe for up to 12 months, and that after that time the person might be required to release that information? We expect our allies to protect intelligence material we share with them from disclosure, and they expect the same from us. The inadequacies in our current ability to properly protect classified information provided by foreign Governments have already seriously undermined confidence among our key allies, as we have heard this evening.

A time-limited protection will simply not provide enough reassurance. It would cause our allies to continue to doubt our ability to keep material safe from disclosure. For these reasons the measures in Clauses 13 and 14 of the Bill remain the only comprehensive safeguard against the serious damage that Norwich Pharmacal relief poses to our national security and international relations.

In relation to proceedings in which the CMPs introduced by Clause 6 would be available, we expect that current CMP live cases would be dealt with in the first year, with stayed cases spread over the two years thereafter, alongside other emerging cases. As noble Lords know who are more familiar with the law than I am, civil claim caseloads can be unpredictable in the long term. I believe it is important that claimants have the continued ability to bring all claims against the Government, and that matters are scrutinised by the courts, rather than returning to the current system, where in some circumstances justice is not possible.

I should remind the House that the Bill provides the power to remove a court or tribunal from the definition of “relevant civil proceeding”, as we heard in previous debates tonight, where there is no longer a case for it to be included. This is already provided for in the order-making power in Clause 11.

As we have discussed several times during previous debates, the final decision to hold a CMP in the High Court, Court of Appeal or a Court of Session will be made by a judge. The judge will determine whether a CMP goes ahead on the grounds that there is some material relevant to the case, the disclosure of which would damage national security. The judge would then decide how each individual piece of evidence should be dealt with, and whether that should be in closed session or in open session. We can be confident that the judge will ensure that the provisions for CMPs will be used only in the very specific and narrow circumstances where that test is met.

In the case of challenges of the Home Secretary’s decision to refuse someone British citizenship or to exclude them from the UK, we are dealing with a category of cases where the court has found that it is potentially fairer to the claimant for there to be a CMP available. The expiry of those clauses would reduce fairness by removing the ability to challenge those decisions effectively.

By way of contrast, there are similar provisions in the TPIM Act. My noble friend referred to the control orders and the introduction of a sunset clause when control orders, the predecessors of TPIMs, were introduced. Under Section 21 of that Act, the powers expire five years after Royal Assent. This can then be extended for further periods of five years. However, TPIMs are unique. They involve measures that have an impact on the daily lives of those subject to the orders, including restrictions on liberty. As a consequence Parliament decided that strict post-legislative measures were needed. There are no sunset provisions in place in any other context where CMPs are available.

I should also point out that in its report the Constitution Committee considered how the Bill should be reviewed after Royal Assent, and it did not recommend a sunset clause. Its report said that the House might wish to consider the Bill being independently reviewed five years after it came into force. As I explained in my response to Amendment 67A last week on day 3 of Committee, Bills are normally subject to review three to five years after Royal Assent. The Select Committee responsible will then decide whether it wishes to conduct a further post-legislative inquiry into the Act and it is right to leave it to the Select Committee to decide the form of independent post-legislative scrutiny.

As I said, I recognise that the amendment and others like it that we have discussed previously are inspired by a strong feeling among some noble Lords that we should have in place a thorough process for post-legislative scrutiny on a Bill that is introducing something different. But, as I hope I have been able to outline tonight, the measures that already exist will meet the objective that has been set out by those who spoke in favour of the amendments, and sufficient safeguards are in place without introducing a sunset clause. On the basis of that, I hope that my noble friend will feel able to withdraw her amendment.

[Baroness Berridge]

My Lords, I am grateful to the noble Lord, Lord Pannick, for illustrating how one can tangent with one amendment to introduce a slightly different topic. I am also grateful to the noble Lord, Lord Beecham; I think that we now have a score draw on whether there is support from the Benches opposite for my amendments.

I am of course disappointed to hear that my noble friend does not believe that this is necessary. There are distinctions between control orders that affect the liberty of the citizen as opposed to this jurisdiction. This is a very distinct jurisdiction to be introducing closed material procedures into. It will affect our civil justice process, which is very different from the other legislative regimes. In civil proceedings, it often calls the Government to account for their actions. Vast amounts of resources, as I saw going down to the High Court, are invested in putting someone under a control order. It was said that there is nothing worse for them than being in existence for only a year, even though so much is invested in them and it could have all fallen flat in that year.

Finally, it was said that people would not share secrets thinking that they would be secret only for a year, but there has been agreement around the House that this is a very narrow jurisdiction, particularly after the Omar case that we are dealing with, so there would be no massive knock-back effect on intelligence if there were some kind of sunset clause. I hope that we will be able to return to this matter later on in the proceedings on the Bill. I beg leave to withdraw the amendment.

Protection of Freedoms Bill

Debate between Baroness Stowell of Beeston and Baroness Berridge

Tuesday 29th November 2011 Lords Chamber

[Baroness Stowell of Beeston]

My Lords, I thank my noble friend Lady Hamwee for moving her amendment. It relates to the briefing from the Information Commissioner that was circulated prior to the Committee stage. He expressed some concern that the reference in Clause 2 to the conclusion of the investigation was too open-ended.

I am sure that we would all wish the police to be able to conclude every investigation swiftly with either a conviction or conclusion that no crime has been committed. But, we would all acknowledge that in reality that is not the case, as the noble Lord, Lord Dear, has explained. There will often be cases when it is impossible to identify a suspect immediately and when evidence must be retained for a significant period in the hope of identifying a suspect in the future. My noble friend Lady Hamwee and the noble Baroness, Lady Royall, referred to cold cases. The case that comes to my mind is the one that has recently been reopened on the murder of Stephen Lawrence.

Evidence, including biometric material, must be retained in these circumstances to enable comparison with the suspect and, for example, to ensure that the suspect’s legal team can examine and probe all the previous police lines of inquiry. If all evidence is not retained in such circumstances, the suspect identified later will be able to argue to the court that the destruction of such material would render it impossible for him to receive a fair trial. In such circumstances, even if Amendment 5 were to be made to the Bill, a chief officer would be unable to certify an investigation as complete, which is I think what the noble Lord, Lord Dear, was referring to. In addition, where it is possible for the police to conclude an investigation the introduction of such a certification requirement for all investigations would impose a new bureaucratic process on the police that would be both unnecessary and, when aggregated across the number of investigations conducted, costly. The illustration given by the noble Lord, Lord Dear, makes that quite clear.

For the reasons I have given, we are unable to accept Amendment 5, and I therefore ask my noble friend to consider withdrawing it.

[Baroness Berridge]

My Lords, I presume that the amendment relates to the previous paragraph in relation,

“to section 63D material taken … in connection with the investigation of an offence in which it is suspected that the person to whom the material relates has been involved”.

On my reading, there is an enormous safeguard in that once the police become convinced that the person has not been involved, the negative applies. The person’s DNA material is taken but if it is then established that that person was not connected to the offence at all, surely the ability to retain the material in those circumstances fails. Therefore you do not have an enormous amount of material being retained until the conclusion of the proceedings. Will the Minister clarify whether I am correct in my understanding that the police can retain that material until the conclusion of the proceedings but only if they remain convinced that that person is still suspected of being involved in the commission of the offence?

[Lord Newton of Braintree]

My Lords, perhaps I might intervene briefly. The noble Lord, Lord Dear, made some effective practical points against the amendment. However, I am afraid that I am one of those simple souls who find it easier to look at these matters in relation to an example rather than in a general academic sense. There is a clear-cut case in which some of these issues might have arisen: namely, that of the gentleman in Bristol who was arrested—I forget whether he was charged—for the murder of Miss Yeates. It is now universally agreed that this was a mistake. Somebody else has been convicted and sentenced.

I do not expect my noble friend to be able to answer this because it is a bit of a bouncer, and it applies to all the amendments that we have so far discussed. How would the Government's proposals for retention apply to that case, and what difference would the amendments that have so far been discussed make to the case? I do not know the answer and would have to speculate. I suggest that it might be sensible if the Minister wrote to me about this rather than attempting an answer off the cuff.