Justice and Security Bill [Lords]

Debate between George Howarth and Sadiq Khan

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.

Parliamentary Voting System and Constituencies Bill

Debate between George Howarth and Sadiq Khan

Monday 1st November 2010 Commons Chamber

[Sadiq Khan]

I was coming to that. I am not embarrassed to say that political parties have a huge role to play in a democracy. We are going around the world, not only lecturing, but helping emerging democracies. They have a lot to learn from us, so hon. Members should be careful of what they throw away in the interests of victories at future general elections.

[Mr George Howarth (Knowsley) (Lab)]

My right hon. Friend prayed in aid Merseyside, but he should not take that argument too far, because Wirral now has a lot of undersized constituencies, while Knowsley, which I represent, has a very large one. It does not always work out perfectly.

[Sadiq Khan]

My right hon. Friend makes my point for me. There will be many people who are unhappy with how boundaries are drawn up—there always have been, and there always will be—but having a fair process at least makes people believe that they are involved in how boundaries are redrawn. If he is this disgruntled with the old system, let us imagine how he will feel if the only chance to object is by a written submission in a 12-week window that he might not have heard about.

[Mr Howarth]

My right hon. Friend needs to realise the fact that, because Wirral ended up with undersized constituencies, one constituency in Knowsley disappeared altogether. It was not done as a nice statistical exercise. It was basically done on the prejudices of the people of Wirral, who did not want to be seen to cross the river and be considered as part of Liverpool.

[Sadiq Khan]

As somebody who does not get the chance to go to Anfield as much as he would like, I take my right hon. Friend’s point. I am happy for him to invite me up and show me the consequences of the changes made.

The Bill’s new inflexible rules and proposals for an arbitrary reduction in the number of constituencies will mean that the situations I have illustrated will occur in many more areas. At exactly the point when public inquiries will be at their most valuable, the Government are proposing to abolish them. Even those who hold reservations about the workings of public inquiries concede that now is not the time to end their use—quite the opposite in fact. Professor Ron Johnston told the Political and Constitutional Reform Committee:

“where public inquiries had a big impact from what the Commission initially proposed to the final solution was where either a seat was being added to a county or being taken away and then everything was up for grabs and, not surprisingly, there was much more fighting over it”.

He continued:

“that is an argument for having public inquiries this time because you are drawing a totally new map with new constituencies and nearly everything will be different…This time you are going to have much more where the local people are going to be concerned because suddenly the pattern of representation is going to be very different from what they have been used to for a long time.”

Importantly, Professor Johnston’s view was echoed by Robin Gray, the former chair of the Boundary Commission for England, who told the Select Committee:

“Particularly with this first round I can see there is a real need for public inquiries particularly to enable those who are interested, political parties and others, to actually argue this through because there are going to be big changes”.

He made another important point. He noted that the main responses under the new system will come in shortly before the end of the 12-week deadline, which means that participants will not necessarily know the counter-proposals made. The main benefit of inquiries is that all those with an objection feel that they have had an opportunity to be heard, and can understand the arguments against them and why they might be unsuccessful.

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[Mr Howarth]

I do not think that that would be impossible. After all, two tunnels and a bridge run between the two areas, and there is a proposal for a further bridge. I do not think it would be beyond the wit of man, or even my hon. Friend and me, to commute either under a tunnel or over a bridge. The point is that, as I said a little earlier—I do not know whether he was in his place at the time—the consequence of the arrangements is that we have undersized constituencies in the Wirral and oversized constituencies in some parts on the other side of the river.

[Sadiq Khan]

Is the point not that under the Bill, as drafted—I refer to clauses 11(2) and 11(5)—numbers trump everything? All the points made by my right hon. Friend and by other hon. Friends do not matter a jot, because numbers trump everything.

[Mr Howarth]

Yes, and my right hon. Friend may not have realised it, but I am actually supporting his argument. The point I am making is that a public inquiry is able to examine any problems that are thrown up as a result of that, and that is why I am supporting his amendment 15, which would create the circumstances in which public inquiries could still be held.