Justice and Security Bill [Lords]

George Howarth Excerpts

Monday 4th March 2013 Commons Chamber

[Sadiq Khan]

I mean the latter, and we will discuss that after the votes at 8 pm, when my colleague will be dealing with those things. However, the right hon. Gentleman is right to remind the House of the difference between the two measures.

Our conditions are set out in the amendments standing in my name and those of my hon. Friend the Member for Hammersmith (Mr Slaughter), the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) and the hon. Member for Moray (Angus Robertson). Labour’s position has been consistent on this matter since the publication of the draft Bill. We said that the legislation was drafted in such a way that there were too few safeguards in place on the use of CMPs. Safeguards are crucial because CMPs are alien to our tradition of open and fair justice, where justice is not only done, but is seen to be done. Any proceedings held in secret are a major departure from that. Given the exceptional and aberrant nature of CMPs, their use should be clearly constrained. That has been our position and remains so now: consistent and clear, balanced and proportionate. The Lords delivered a strong and clear verdict on the Bill last November.

[Mr George Howarth (Knowsley) (Lab)]

My right hon. Friend sets up a choice between open proceedings and CMPs, but is not the real choice between public interest immunity, where nothing ever gets heard by anybody, and CMPs?

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[Sadiq Khan]

I agree with my right hon. Friend. She basically paraphrases the words of David Anderson, who said that there are a small number of cases where it is preferable for there to be closed material proceedings, imperfect as that is. She is right to remind the House of what David Anderson said, albeit in her own words, and I agree.

The Wiley balance is a tried and tested legal mechanism by which courts can balance these competing interests, and there is considerable case law history to back that up. It was supported by the House of Lords, as I said, including by Lord Phillips, the former president of the Supreme Court. The Government’s changes remove from the Bill all reference to open justice. The fear is that by not taking open justice into account, the likelihood of a CMP taking place will increase to more than the exceptional that the Government have talked about. As I have said, the Government also tabled amendment 55 in Committee, which replaced “open” with “effective”. It is our view, shared by the JCHR and the special advocates, that this is a retrograde step. As I said, the Supreme Court in al-Rawi confirmed that both natural justice and open justice are important but separate fundamental principles, hence our amendment seeks to reintroduce to the Bill the Wiley test of fair and open justice.

[Mr George Howarth]

Will my right hon. Friend give way?

[Sadiq Khan]

I want to make some progress then I will give way.

Paving amendment 26 brings us to amendment 31, which would ensure that the use of CMPs became an option of last resort. Amendment 34 would mean that the court must consider—I emphasise the word “consider” —using public interest immunity before opting for closed proceedings. We believe that those amendments are important for two key reasons. First, deviation from open and fair justice should be considered in only the most extreme of circumstances, and I think there is general agreement there. As the Government have said, CMPs should be used only in exceptional cases. Let me remind the House that on Second Reading the Minister said:

“I agree that we should be talking about a small number of cases where any other process is impossible and it is necessary for it to be handled in this way.”—[Official Report, 18 December 2012; Vol. 55, c. 721.]

By placing in the Bill a provision that states as such, this should help ensure that the use of a CMP does indeed remain exceptional, as we all intend. Secondly, because it also allows the consideration of other measures, such as public interest immunity, redaction, in camera hearings, confidentiality rings and anonymity, all of these would protect the precious open and fair nature of our justice system, which must be one of our priorities.

[Mr Howarth]

My right hon. Friend has moved on from the point I was going to make, but I will return him to it. He has explained how the Wiley test works effectively with public interest immunity cases, but he seems to assume that that test will work equally well in closed material proceedings. I fail to understand how he can justify that statement on the basis of what he has already said.

[Sadiq Khan]

The Wiley balancing exercise has been applied for many years, and there is a rich history of precedent. The Minister plucks from the air “fair and effective”, but that was plucked from the air at the eleventh hour, at the last minute that an amendment could be tabled in Committee. What we, the Joint Committee, the special advocates and the House of Lords are saying is that if there is to be a gateway test before the decision about whether a hearing should be open or under a CMP, or about which material within a CMP should be open or closed, the judge should carry out a balancing exercise. He should weigh the public interest in having an open and fair hearing against the harm done by the revealing of information that would breach national security. That is the test that judges use now and what the Supreme Court judges in al-Rawi would like to have used had they had the option of a CMP, which this Bill would give them.

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[Mr Clarke]

There is no definition, because all attempts to define it have got one into worse difficulties.

It is possible to exclude evidence from a case altogether under the existing public interest immunity procedure; the Bill does not touch that. The present PII law will be completely unaffected by the Bill, so people could still go for a PII. One is obviously being actively sought at the moment in the Litvinenko inquest, although I know that only from what I read in the press. That kind of exclusion could be claimed on the ground of damage to international relations, if the Government of some third-party state would be upset if certain evidence were to be published. That goes beyond questions of national security and into total secrecy, allowing the Minister to withdraw the whole blasted thing from the proceedings and not letting even the judge use it. That measure goes much wider. Such exclusions on wider grounds happened under the previous Government.

We are sticking to national security, however, and judges, using the completely unfettered discretion that we are now giving them, will no doubt have regard to what I say. What we have in mind are things that would cause damage to national security, by which we mean the safety of our citizens, our attempts to counter terrorism, and threats to international order among the wider public. I can assure the House that I am not in favour of excluding ministerial pigs’ ears. I am sure that the previous Government made more of them than we did, but I do not believe that that sort of thing should be put away in closed proceedings under any Government.

[Mr George Howarth]

Is not national security rather like reasonable doubt—two well understood English words, as a judge advised the jury in a trial the other week?

[Mr Clarke]

Amendments have been tabled to Bills of this kind to try to define the concept, but that leads to more trouble than it is worth. I entirely agree with the right hon. Gentleman that reasonable doubt is a very good comparison.

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[Paul Goggins]

rose—

[Mr George Howarth]

rose—

[Mr Davis]

Forgive me, but I am just coming to an end.

The right hon. Member for Salford and Eccles was persuasive in arguing that if there is to be some sort of opt-out on gisting if things are really serious, only the judge should decide that. I take that point, and it is a good argument. There should be proper, explicit judicial balance in the decision to go to a CMP that takes into account all the interests of justice, and not just national security. There should be the argument of strict necessity; that is what I mean by the hierarchy. On that basis, the House could come to a conclusion in which we effectively have the best of all worlds.

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[Dr Huppert]

I thank the Minister for saying that he will look more carefully at the matter. However late in the day it is, we would be grateful for any changes he could make that might take us in the direction of what has been suggested by the JCHR and others.

While the Minister is in the mood for looking at other issues, can he be absolutely clear about confidentiality rings? This matter was raised earlier, so I will not go into it. As was discussed in Committee, there is a change in the wording that has led to the impression that the test is about the material rather than the disclosure. I hope that it will be made very clear that there is no sense in which that would apply to confidentiality rings. I believe that Opposition amendment 28 is intended to explore that issue.

I look forward to supporting any of the amendments that would take us towards the proposals of the JCHR. I look forward to amendment 1 being debated and for any opportunity to test the will of the House on that issue.

I was surprised to see amendment 70 and I look forward to the explanation from the right hon. Members for Wythenshawe and Sale East (Paul Goggins) and for Salford and Eccles (Hazel Blears). I am pleased that, owing to the influence of the Liberal Democrats, inquests were taken out of scope after being included in the original proposals. It is important, particularly at an inquest, that the family knows the grounds for the conclusion. It would be very unsatisfactory for people who had lost a loved one to be told, “We cannot tell you why it happened.” I am pleased that inquests are not included. I am surprised that there is a move to put them back in. I had hoped to ask the shadow Secretary of State whether he supported that move, but I suspect that I can guess the answer.

Amendments 39 and 40 relate to gisting. My hon. Friend the Member for Edinburgh West (Mike Crockart) and I tabled similar proposals in Committee. I find it hard to see why there would be many cases in which a judge would not want a gist to be made available. We want that to happen. I understand that there may be cases in extremis where no gist would be possible. It would be helpful if the Minister made it clear that it is the intention that judges should always gist to the maximum extent possible. As long as that is said in this place, I think that we will be able to make progress.

[Mr George Howarth]

The hon. Gentleman makes a good point about gisting. In an exchange with him in Committee, the Under-Secretary of State for the Home Department, the hon. Member for Old Bexley and Sidcup (James Brokenshire), gave a verbal assurance that gisting would be an acceptable way of proceeding. If that assurance was repeated today, and then taken with what the hon. Gentleman has just said, it would give a good indication of Parliament’s intention and would probably satisfy the point.

[Dr Huppert]

I dare say that it would. We will have to see what happens.

To return to the principle, I talked earlier to the right hon. Member for Blackburn about the range of civil proceedings into which the previous Government introduced close material proceedings. I find many of those far more objectionable than civil cases. I do not like the introduction of closed material proceedings into civil cases and find the principle very difficult. However, I find it worse when people’s liberty is at risk. That is the case with control orders, terrorism prevention and investigation measures, and SIAC.

I know something of the case referred to by the hon. Member for Bedford (Richard Fuller) because we have discussed it in the past. The gentleman referred to has had his liberty seriously infringed. It is not a simple question of whether he is allowed to stay in the country or not. He has been detained for a considerable time now, given that it is two years since we last spoke about the case in great detail, based on evidence that he does not have the chance to see. That strikes me as deeply alarming. I am sure that the whole House would hold the position that criminal sanctions should not be allowed. We are edging very close to that if we are detaining somebody for years.

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[Caroline Lucas]

I am pleased to speak in favour of my amendments 1 to 7, and I hope to press amendment 1 to the vote. As colleagues will know, they are designed to get rid of part 2 in its entirety. That part would allow Ministers to use secret courts in a wide range of cases, for example any in which they could claim that national security was involved.

Let us look at some examples of when secret courts could be used, such as the cases of the bereaved families of soldiers bringing negligence claims against the Ministry of Defence. Debi Allbutt, whose husband was killed in a so-called friendly fire hit on his Challenger tank in Iraq, has said:

“I really don’t think people in the country realise how dangerous this new law will be for justice. I think anyone in my position deserves to know the truth about how their husband, a brave soldier fighting for his country, lost his life.”

Let us think of cases involving victims of torture or rendition in which the Government have been involved, who are seeking redress. They would also be affected, including such people as Khadija al-Saadi, who was 12 years old when she was rendered by MI6 to Gaddafi’s Libya along with her mother, three younger siblings and Gaddafi-opposing father. In a letter published by the prisoners’ human rights group Reprieve, she has said:

“I wrote to Ken Clarke when I heard about the secret courts plan, but he would not say that he would not seek to try my case in secret. I still feel this would have been unnecessary, unfair, and unworthy of the UK. I hope the inquiry will be as open and as fair as the phone hacking inquiry.

Secret courts could also be used in actions against the Government over corruption in arms deals. On Second Reading, Ministers refused to rule out the possibility of that in some cases:

“if there was embarrassment over arms sales to a particular country, where those sold arms had been used to deny the human rights of many others, against the policies and wishes of this country, and there was a desire not to make that too public”.—[Official Report, 18 December 2012; Vol. 555, c. 722.]

A case of corruption in arms deals is therefore another that would not be held in open court.

Habeas corpus claims are at risk, too. Claims under the centuries-old safeguard against illegal detention, which forces the authorities either to charge or release a prisoner, are generally considered civil actions, so secret courts could mean people being imprisoned without knowing why. That was exactly what the Under-Secretary of State for the Home Department, the hon. Member for Old Bexley and Sidcup (James Brokenshire), said in the Public Bill Committee—that the Bill would cover habeas corpus claims. My new clause 2 would address that.

The question this evening is whether we really want to allow the Government to ensure that everything from state involvement in torture to the neglect of British soldiers could be hidden from public view. After a decade that has seen our intelligence agencies become involved in unprecedented complicity in wrongdoing, we should ask how we can prevent that from ever happening again, not how to remove the safeguards that allow us to hold the state and its agencies to account. That is especially true when, as the high-profile case of Binyam Mohamed has amply illustrated, the security agencies have shown that they are prepared to mislead the judiciary, and given that judges tend to defer to Ministers when faced with arguments about national security.

[Mr George Howarth]

I take it that the hon. Lady’s case is that better than a closed material procedure is public interest immunity, in which case nobody ever gets to hear anything about what happened and what evidence exists.

[Caroline Lucas]

Like the special advocates and many others in the legal profession, I believe that PII is a safer way forward than having hearings in closed courts, and I stand by that.

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[Caroline Lucas]

I disagree with the hon. Gentleman. No one is suggesting that PII will not still be available so that we can have measures such as redactions.

[Mr George Howarth]

It is generous of the hon. Lady to give way to me a second time.

As a member of the Intelligence and Security Committee, I have spoken to members of the Obama Administration and the American agencies, and they are quite emphatic that they are now giving us less information than before the Binyam Mohamed case.

[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.

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[Mr Brazier]

Of course, the hon. Gentleman is absolutely right. I used the phrase “modus operandi”. This brave officer led our special forces operation for so long in Iraq and did so well at a time when, frankly, other parts of our military operation were failing—the verdict of history is that sadly they did largely fail. The hon. Gentleman is right that this is not only about sources, but about modus operandi, but there is now a further wrinkle. Because the Government have committed to much more of what is generally called “upstream intervention”—putting small numbers of people into areas where they are not in charge or running the show, but simply mentoring, the dodgiest end of which will inevitably go to special forces—this is not only about our modus operandi, but about whether our relationships with host countries, which in almost every case will, I believe, do better in a range of different ways with advice from our special forces, will be possible at all.

I shall move on to the second part of my comments. In Committee, I listened again and again to hon. Gentlemen talking about ancient British traditions of justice. I have listened again and have been reading some of the contributions from the human rights lobby. Although they are perfectly entitled to their points of view and I am willing to listen to them with respect, they cannot claim that the current position of the civil rights lobby, which is reflected in some of these amendments, is in any way rooted in the traditions of British justice.

Let me quote what Lord Denning said in a deportation case some 40 years ago. He was speaking on the Hosenball case, which involved the deportation of, ironically, an American journalist. The case was decided unanimously in favour of the Home Secretary, but nevertheless Lord Denning felt that he ought to put some extra remarks on the record, just to remind people where the balance of British justice lay:

“But this is no ordinary case. It is a case in which national security is involved, and our history shows that, when the state itself is endangered, our cherished freedoms may have to take second place. Even natural justice itself may suffer a set-back. Time after time Parliament has so enacted and the courts have loyally followed.”

Time is brief and others are waiting to speak, so I will not go back to the earlier Liversidge v. Anderson case during the second world war, where by a 4:1 majority the locking up of everybody who happened to be German, with no procedure at all, was upheld. Suffice it to say, however, that this was the continuous view of the courts all the way through until the Belmarsh case. I will give one further quote. Ironically, I would like to quote Lord Hoffmann, one of the judges who found against the Government in the Belmarsh case, on the rather narrow grounds rooted in the then brand-new human rights provisions. In 2001, he commented in a lengthy judgment in the Rehman case:

“I shall deal first with the separation of powers… What is meant by ‘national security’ is a question of construction and therefore a question of law within the jurisdiction of the Commission, subject to appeal. But there is no difficulty about what ‘national security’ means. It is the security of the United Kingdom and its people. On the other hand, the question of whether something is ‘in the interests’ of national security is not a question of law. It is a matter of judgment and policy. Under the constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision. They are entrusted to the executive.”

The concessions that the Government have already made, even without going down the route of amendment 30, go much further than any court would have required 10 or more years ago. Whatever the claims of the human rights lobby, the British judicial system always used to understand the vital demands of our national security, and I urge the Government not to give any further ground.

[Mr George Howarth]

It is a pleasure to follow the hon. Member for Canterbury (Mr Brazier). I shall try in a moment to give some examples of how important the point is that he finished on.

My right hon. Friend the Member for Blackburn (Mr Straw) referred to the well-known liberal credentials on these matters of the Minister without Portfolio. I would go further—perhaps my own Front Benchers will take this into account—and say that if someone is as liberal as he is, they are probably in the wrong place and, on this occasion, if someone is even more liberal than he is, they are almost certainly in the wrong place.

I would like to make one further point by way of introduction. I came here genuinely hoping to be persuaded by my right hon. Friend the Member for Tooting (Sadiq Khan) to follow the course of action he has outlined in the amendments. I wanted to hear what he had to say—that was why I made at least one, perhaps two, interventions—and to see whether he had an answer to some of the dilemmas I felt still existed in our approach to the Bill and, more particularly, our amendments. Before arriving here, I decided to read what he said on Second Reading about the tests he set for the Bill at that time and what it would look like when it left Committee.

My right hon. Friend relied heavily, though not exclusively, on the words at the time of David Anderson QC, who concluded that there was a

“case for restricting the novel application of Norwich Pharmacal jurisdiction to national security information”—

the relevant clause at the time was clause 14—but that the Bill at the time was

“too broad in its application.”

Beyond that, however, no specific tests were set other than those set by the Joint Committee, which its Chairman listed at the time.