Justice and Security Bill [Lords]

Debate between Caroline Lucas and Lord Campbell of Pittenweem

Thursday 7th March 2013 Commons Chamber

[Caroline Lucas]

In the interests of time, I will leave the matter there and pursue it via other avenues. I am grateful for the opportunity to have aired this really important case.

[Sir Menzies Campbell]

I am entirely sympathetic to what the hon. Member for Brighton, Pavilion (Caroline Lucas) has said about that case. However, a statutory avenue is already available under the Regulation and Investigatory Powers Act 2000, which set up the Investigatory Powers Tribunal. Further to the intervention by the right hon. Member for Knowsley (Mr Howarth), a fellow member of the Committee, one might not be able to describe the proposed power that she wishes to provide as quasi-judicial, but it might possess a hybrid relationship in being both investigative and judicial, or in a position of seeking to create redress.

Apart from that, there is a fundamental statutory point. The hon. Lady’s proposed subsection (4A) refers to a situation in which

“a plausible claim has been made by or on behalf of an individual to the ISC that the Security Service…has disseminated any information to any recipient concerning any person that appears to be…materially false; and…harmful to the person defamed.”

The breadth of that goes far beyond even the jurisdiction of any court in the United Kingdom of which I am aware. Proposed subsection (4B) says that

“the ISC shall fully and expeditiously investigate the claim”—

so it does involve an investigative function—

“and, where the claim appears to be well founded, shall ensure that the misinformation is expeditiously corrected.”

But by what means? The ISC is not in a position to implement any such action. The amendment is not legally well-founded. In any event, as has been pointed out, its scope goes far beyond anything that the Committee’s staff and resources would permit. Moreover, there is no indication of how the powers would be exercised or how they could ever be implemented.

Justice and Security Bill [Lords]

Debate between Caroline Lucas and Lord Campbell of Pittenweem

Monday 4th March 2013 Commons Chamber

[Caroline Lucas]

Well, all right. I stand corrected by the right hon. Gentleman, but if he is suggesting that we go down the route that the US has been going down over the past few years with the invasion of Iraq and everything that has gone with it, that is up to him. It is not the road that I want to go down.

I have received a huge number of e-mails and letters from constituents who argue that although our legal system is not flawless, the new measures are an attack on its founding principles. Any Liberal Democrat Ministers and MPs who back part 2 of the Bill do not have the support of their party members who voted at the party conference last September to oppose secret courts. I therefore remind Liberal Democrat colleagues that party members have reaffirmed their opposition to secret courts as well as their commitment to the rule of law, open justice and holding the Government to account, the right to a fair trial and the protection of civil liberties. They have called on Liberal Democrat MPs to vote against part 2 of the Bill, and I hope that colleagues will bear that in mind when we come to vote.

[Sir Menzies Campbell (North East Fife) (LD)]

Will the hon. Lady give way?

[Caroline Lucas]

I will make a little more progress.

The TUC has taken a similar line and passed a motion that condemns secret courts as posing a significant threat to public security and accountability. Such widespread opposition stems not just from principles, because there is a complete lack of evidence to back up the proposals in part 2 of the Bill. The Bill is about security yet the Government do not claim that closed material procedures would do anything to promote national security. Indeed, they accept that the existing process of public interest immunity already provides effective safeguards for that process.

The Government have been unable to demonstrate that the courts cannot resolve issues fairly because they lack recourse to secret courts. They refer to 20 or 30 cases that they say require closed material procedures, yet they have refused so far to allow any proper access to the details of those cases so that their claims can be evaluated for accuracy, for example by the special advocates. As the Joint Committee on Human Rights stated, the Government have not demonstrated with evidence that there is a real and practical problem. Until they can prove that public interest immunity is not sufficient, there can be no justification for the introduction of closed material procedures. Even then we would need guarantees that the basic rights and principles of justice are not being undermined.

There have been attempts to amend part 2 of the Bill; indeed, I have tabled a new clause to limit the circumstances in which closed material procedures can be used. Let me be clear, however, that that is a last resort and the best option by far remains to scrap part 2 of the Bill. The amendments that have been tabled by the House of Lords only slightly modify the process by which a secret court is imposed on a case. Even if closed material procedures are considered a last resort after public interest immunity is exhausted, simply having such a measure on the statute book is likely to lead to its increased use.

Hon. Members will be aware that the Government are seeking to undo many of the changes made by the House of Lords, claiming to have listened to widespread and grave concerns about the Bill. They effectively want to reinsert the original test for triggering closed material procedures, thereby scrapping the requirement that such procedures are a last resort once a judge has decided that a fair determination of proceedings is not possible any other way. That removes the only real bar on secret courts becoming routine in civil cases, and negates the move to introduce judicial discretion. In common with the Government’s recent amendments that require the Secretary of State to report annually to Parliament on closed material procedures and keep their use under independent review, such measures are frankly just tweaks that leave intact the core of the Bill. Secret courts will still be available across the civil justice system, and will still be fundamentally unfair. The only way to safeguard Britain’s system of fair justice is by removing from the Bill clauses 6 to 11 that provide for secret courts.

Closed material procedures would allow Ministers to exclude their opponents from the courtroom, along with the press and the public, and provide a one-sided case to the judge, free of effective challenge.

[Sir Menzies Campbell]

I do not challenge the hon. Lady’s sincerity for a moment, but I hope she will accept that when it comes to voting on matters of such important principle, every Liberal Democrat MP is obliged to use his or her judgment. She speaks as if Ministers were in a position to resolve these matters. Ministers are entitled, through barristers or advocates, to make application to a court on which the judge has to decide. Ministers may wish to bring about such an objective, but unless a judge is satisfied that that is in the interests of national security, they will not be successful.

[Caroline Lucas]

I thank the right hon. and learned Gentleman for that intervention but I am afraid that that response does not give me the comfort it obviously gives him.

In conclusion let me say a few words about new clause 2. Although I judge that the House is not with me on amendments 1 to 7, new clause 2—which will be taken as part of the same group—looks at how we can try to restrict the number of cases where CMPs are used. Proposed subsection (1) concerns circumstances in which the liberty of the individual is at stake. Ministers have confirmed recently to the Bill Committee that CMPs could be used in habeas corpus cases where an individual seeks to challenge their detention by the state. Although such cases may not be common, the current Bill would leave us in a position whereby an individual losing their habeas corpus claim could, as a result of a CMP, remain imprisoned without knowing why. Subsection (1) of new clause 2 seeks to rule out such a possibility by ensuring that a CMP will not be available

“where the outcome could result in, contribute to, or impede efforts to challenge the imprisonment; or continued detention of a party, whether in the UK or overseas.”

Subsection (2)(a) of new clause 2 aims to ensure that a CMP cannot be used by the Government to cover up some of the most serious international crimes—for example where genocide or torture are at issue. That is fairly straightforward, as there is clear public interest in those proceedings taking place in as open and even-handed way as possible, and the use of a CMP would be entirely at odds with that aim.

Finally, subsection (2)(b) aims to ensure that material will not be withheld in a CMP where doing so may result in the wrongful imprisonment or death of an individual, whether in the UK or overseas. For example, that could apply where an individual potentially faces capital charges on the basis of “evidence” extracted under torture, as with Binyam Mohamed.

I will now conclude my speech, but let me say that an awful lot of people are watching the House tonight. Although I accept that my words are the minority view in this Chamber, huge numbers of people are deeply concerned about the direction in which closed material proceedings would take us. I hope that hon. Members will be mindful of that when the matter is put to a vote.