Justice and Security Bill [Lords]

Hazel Blears Excerpts

Monday 4th March 2013 Commons Chamber

[Hazel Blears (Salford and Eccles) (Lab)]

Will my right hon. Friend give way?

[Sadiq Khan]

I keep saying that I will give way for the last time. This really is the last time.

[Hazel Blears]

For the sake of clarity, will my right hon. Friend confirm that there will be circumstances in which it would be appropriate, in the interests of the fair administration of justice, for there to be a closed material proceeding hearing? If there are allegations that the security services have acted improperly, that information ought to be before the court rather than having the option of settling the case and the information never being subjected to judicial scrutiny?

[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.

--- Later in debate ---

[Mr Tyrie]

I am concluding, if my hon. Friend will forgive me.

For those reasons, I shall support amendments 30, 31 and 34. In my view, they give the minimum necessary judicial discretion to the court.

[Hazel Blears]

I, too, intend to speak briefly as I know that a range of Members want to contribute.

My speech follows that of the hon. Member for Chichester (Mr Tyrie) and I have the greatest respect for his point of view on this issue, for the depth of his knowledge and for how he has studied these matters. The sense in the House is that people hold varying views which, in many cases, cross party lines. People feel strongly about trying to strike the right balance between liberty and security, which has been the subject of many of our previous debates.

It is right that these matters should be controversial, because they go to the heart of our legal system, protecting the rights of applicants and respondents, ensuring that the role of the state is in the proper place to hold the balance between parties, and trying to ensure that our justice system retains its respect and integrity across the world. That balance is difficult to draw and is never easy to achieve, and I say that as the Minister with responsibility for counter-terrorism who took the controversial legislation on control orders through the House. We debated them until 5 am in one of our very rare all-night sittings, which was for me evidence of how strongly people felt about these issues and how much they wanted to protect the integrity of our legal system. I share that desire.

The Bill has been debated at length and the issues have been debated in great depth. It is perhaps almost otiose to be debating them again, but a few points need to be made.

We must not forget why we are debating the Bill. If we did not need to debate it, none of us would want to introduce it. Everybody in this House and in the country believes in the British system of open justice, an adversarial system in which evidence is brought into open court and tested by the parties, allowing the judge to deliberate on the evidence and make a judgment.

We are in this position for two reasons. First, legitimate concerns have been expressed by our intelligence liaison partners, particularly in the United States of America, about the breach of the control principle for intelligence, which has put sources, techniques and capabilities at risk. That is the issue of national security, which is very much about the assets that are at risk. I am delighted that the Norwich Pharmacal provisions have gone through with agreement on both sides, which has been extremely positive, but concerns nevertheless remain about the possibility of information being disclosed in open court proceedings that could damage our intelligence relationships. That is the first reason why we are debating this issue.

The second reason is that we have seen an increasing number of claims of unlawful detention and allegations of mistreatment or torture by the security services against people who have been held in a range of different circumstances. Those allegations amount to more than 20 outstanding cases and the number is likely to increase if there is a jurisdiction within which such claims can be ventilated freely. The position has been that many of those claims have had to be settled because the evidence necessary to prove the case either way impinges on national security. That is why we have seen payments made to some claimants without having the opportunity to decide whether their claims were well founded as the evidence has not been put into a judicial setting.

I feel particularly strongly about this matter. If the security agencies have been conducting operations in a way that falls outside our framework of human rights, I want those issues to be put before a court and to be litigated. The fact that they cannot be goes to the heart of the reputation of our intelligence services. People will always say, “Well, you are settling that case because something in it was well founded. That is why you are prepared to pay £2 million, £3 million or £4 million to avoid litigation in our courts.” I want that information; I want to know what happened. Equally, if these claims are unfounded and unfair allegations are being brought against our security services, I want them to be able to defend themselves and the good name and integrity of our intelligence agencies.

[Yasmin Qureshi]

Will my right hon. Friend take it from me that using the concept of national security as something to hide behind is not right either? This has been used by states all too often. We know from our history that things can be hidden behind national security issues and the truth does not come out.

[Hazel Blears]

My hon. Friend makes my case for me. If she wanted the information about these matters to be put before a court for a judge to decide, she would support the idea that, in a small number of cases, closed material procedures are necessary. I am afraid that I must tell her that in some circumstances if the secrets we hold, the capabilities, the agents and the capacities we have were to be put in open court, the security of our nation would be threatened. If she does not accept that—I genuinely say this with respect—she has no appreciation of the importance of those secrets to our national security.

[Yasmin Qureshi]

That is completely wrong. As one who has spent many years prosecuting, dealing with issues such as PII, making applications in front of judges relating to informers, issuing evidence for public interest immunity applications and being sensitive to issues on behalf of victims, I can assure my right hon. Friend that the suggestion that we do not appreciate these things is not right. I am saying that it is possible to have these discussions and to find out what is happening. Special advocates, for example, who are experts and independent people belonging neither to the defence nor to the prosecution, have said that these particular procedures in civil cases are completely inappropriate. A criminal trial is a different matter, but these procedures are not right in civil cases.

[Hazel Blears]

It may well be that some people take a principled position that paying out millions of pounds is a price worth paying if they do not want to have closed proceedings. That is a perfectly legitimate place to be, but it does not happen to be a situation with which I agree. My hon. Friend talks, as many Members do, about PII, which is about excluding information; I want to be in a position where we maximise the inclusion of information and bring it before the judge.

[Mr Tyrie]

The right hon. Lady and a number of others have fallen into the same trap as did the Advocate-General in the House of Lords, and the point was decisively knocked down by Lord Pannick when he said that the Advocate-General

“wrongly presents PII as a mechanism which, when it applies, necessarily means that the material is excluded from the trial. It is on that premise—a wrong premise…that he suggests a CMP is preferable…The reality…is that the court has an ability applying PII to devise means by which security and fairness can be reconciled”—[Official Report, House of Lords, 19 June 2012; Vol. 737, c. 1694.]—

by the use of other mechanisms. He then listed what they were. Because I am making an intervention, I will not list them, but they are obviously to do with redaction, the anonymising of witnesses and the use of confidentiality rings. There has been a serious misrepresentation of the effects of PII.

[Hazel Blears]

I am sure the hon. Gentleman would make an amazingly creative lawyer, if he is not already one. By any interpretation that was a list of the items that could be included. I am probably in good company if I am in agreement with the Advocate-General. There is fairly overwhelming evidence that the list that the hon. Gentleman tried not to give would not be suitable for some cases where a huge amount of the information impinges on national security.

[Dr Julian Lewis]

Does the right hon. Lady accept that if sensitive material is redacted under PII, that may be the very sensitive material—the secret source, the secret technique or whatever—which is the thing that proves the Government’s case? Therefore it is not good enough to say that PII could be used with redactions, because the redactions themselves may be the key component of the evidence that the Government need to present.

[Hazel Blears]

As ever, my colleague on the Intelligence and Security Committee makes the point in straightforward, direct and proper terms. My understanding is that the Opposition accept that in a small number of cases it will be necessary to have closed material proceedings and that PII does not meet the case in every set of circumstances.

[Sir Richard Shepherd]

On the point that the right hon. Lady was making in respect of balance, there is another element that is not often discussed but which is surely central to our system of justice—the openness of it and the confidence, therefore, that the general public can have in due process. That is what this debate obscures. I grew up with Matrix Churchill, and I think the right hon. Lady’s time in Parliament coincided with that. Those are the worries that inform part of the anxiety about the Bill.

[Hazel Blears]

The hon. Gentleman, as ever, speaks with passion on these issues and I respect his point of view. I was a lawyer a long time ago and I understand how important it is to have open justice, but it is also important to get the balance right.

Amendment 30 is about the Wiley balance. I have some difficulty with the amendment because I feel that the Wiley balance is perfectly appropriate for PII, because it is used to decide whether to include or exclude material and whether or not there should be an open hearing. It strikes me that in relation to closed material proceedings there is a more complex and nuanced decision to make which contains different factors. I am keen that we get a balance and that we get the balance right, but I am convinced that the Wiley balance is one that we can simply transpose into the new legislation and that it will be effective.

Amendments 34 and 37 are about whether every other method has to be exhausted before we can get to a closed material proceeding. I am disappointed that there is not more agreement across the House on this. We all want to see whether cases can be dealt with in another way, because closed material proceedings should be the absolute minimum—an irreducible core, as I put it, of cases. I wonder whether the determination could be made by the Secretary of State, having considered whether PII would be suitable, and whether there could be some mechanism for the court to exercise a scrutiny function on whether the Secretary of State’s consideration had been more than cursory.

There will be concerns if the Secretary of State just ticks a box and says, “I’ve considered PII, in my bath”—as the hon. Member for Chichester said—rather than going through a proper process. I would like to see, whether or not we end up in ping-pong with the Lords, something in the Bill that says that the court has to take a proper look at the Secretary of State’s consideration of PII. That would not be exhaustive, but would have some substance to it. I ask the Minister to consider taking that into account.

[Mr Kenneth Clarke]

The judge will have to be satisfied that the Secretary of State has considered the matter. He will not take that as just having thought about it in the bath; that is not how the judge will test whether the Secretary of State has seriously considered it. The judge has such a wide discretion that he could decide that in the fair and effective administration of justice, for some peculiar reason the case should be PII; he should not be listening to a CMP application. That would be one reason for using his discretion. Having listened to the two principal advocates of these further tests, I think they are advocating that the court and the Secretary of State should go through the whole process of PII first. That is not what the Opposition intend, but that is what their amendments would do. The Government have met the right hon. Lady’s case perfectly satisfactorily in the Bill.

[Hazel Blears]

I hear what the right hon. and learned Gentleman says. He has been very inventive and creative in trying to table amendments, and it would not be beyond him to put something in the Bill that reassured people that there was a proper check on whether the Secretary of State had properly considered whether other methods could be used. I leave him to reflect on that.

Amendment 70 seeks to add inquests to the Bill. It originates from my right hon. Friend the Member for Wythenshawe and Sale East (Paul Goggins) and he will speak to it with his depth of knowledge, experience and appreciation of the issue, and I simply say that I will support him on it 100%.

It is important in a justice system for people to have sufficient notification of the circumstance to be able to give instructions, but at the moment the bar is set a little high, because there may well be circumstances in which the gisting goes right to the heart of national security. Therefore, by giving a gist that is wide enough to enable instructions to be given, the national security case is given away. Again I wonder whether something could be included about there being a presumption in favour of gisting that could be subject to rebuttal in circumstances that merited it. I would feel more reassured if there were something along those lines. The process adopted so far has been an attempt to try to get some agreement and consensus on these issues. It is difficult to do so, but the issues at stake are so important, both for our national security and for the integrity of our justice system, that we need to keep trying to see whether, on a couple of those issues, even at this stage, there is room for a little more movement to get us to a better place.

[Mr David Davis]

It is a particular pleasure to follow the right hon. Member for Salford and Eccles (Hazel Blears). Her speech was well thought through and persuasive. We do not always agree on these issues, but on one aspect she persuaded me, and I shall say in a minute what that was. In this area of argument, which goes right to the heart of what makes British justice special and right to the heart of our national security, we are all inclined sometimes to put things rather too heavily in black and white. I have every sympathy with the agencies that are trying to preserve their own security. They have plenty of threats: past agencies, the David Shaylers, the Richard Tomlinsons, leaking their information, even Ministers—I remember that Ted Rowlands once in the House gave away some Crown jewels—and most ironically of all, Washington. Given the genesis of the Bill, some of the biggest leaks relate to our biggest ally, whether it is Pentagon papers four years ago or, only two months ago, what sounds from the British papers to be the putting at risk of the life of an Anglo-Saudi agent whom it used in one of its operations and then talked about afterwards. Nobody, certainly not I, would challenge the right of the agencies to preserve their own proper security—I stress “proper security”.

--- Later in debate ---

[John McDonnell (Hayes and Harlington) (Lab)]

I will follow in the tradition of the progressives, and say that I opposed the Special Immigration Appeals Commission when it was introduced. My right hon. Friend the Member for Blackburn (Mr Straw) referred to Kafkaesque language and said that we should not exaggerate, but I opposed SIAC then because I thought that it was Kafkaesque. I think that the idea of being tried for something and not being entirely sure what it is, and of not hearing the evidence and not being able to respond to it, is typical of Kafka. I warned then that if we were not careful, there would be an incremental creeping extension of that into other areas of law. That is what we saw with control orders, and we are seeing it again tonight.

I fear that within five years we will be back here debating certain areas of the criminal law, unless we draw a line in the sand tonight and say that enough is enough. I think that we are undermining the basis of British law—as the hon. Member for Gainsborough (Mr Leigh) said, the fundamental civil liberties that were fought for over generations. When the Supreme Court considered the matter, it made it clear that there should be compelling grounds if we are to take this step, but the only compelling ground we have been told about today is that the Government might have to shell out a few millions pounds in compensation every now and again. That is not compelling grounds for undermining our civil liberties in this way.

There seems to be a bizarre reversal of the history of why we are here. We are not here today to debate how we protect our security services; we are here because the security services were exposed as being associated with other regimes involved in rendition, torture and other human rights abuses. Rather than discussing how we protect our security forces, which of course is fundamental, we should also be debating how we hold them to account. That does not mean closing the doors of the courts; it means opening them to greater scrutiny and accountability. I am concerned that we seem to be heading for a complete reversal of the debate taking place outside across the country.

People have been shocked by the stories they have heard. A constituent of mine, a young man I have known since he was a child, went to Pakistan to work in a hospital voluntarily because he is a doctor. He was picked up by the Pakistani authorities and tortured for six weeks. He was then interrogated by British intelligence officers, after torture. That is unacceptable. He is now in such a state that he does not even want to pursue a claim. He is fearful—

[Hazel Blears]

Will my hon. Friend give way?

[John McDonnell]

I understand why my right hon. Friend wants to intervene, and she has made good points, but I am really short of time and must conclude as best as I can, because the Minister still needs to respond.

On that basis, I thought that in reforming our legislation we would be considering measures that would make accountability more open and acceptable. That is why I support the amendments tabled by the hon. Member for Brighton, Pavilion (Caroline Lucas). In fact, a simpler amendment would just delete the whole part, not just each clause. That is supported not just by two minor parties, as the Minister suggested, but by a minor party, an individual and another party, and it might also have other support. If those amendments are not made, I support the fall-back protections that Opposition Front Benchers are trying to introduce, which is a commitment of last resort and a reference to open courts. Why can the judges not consider that as a factor as well, because it is one of the key factors they should look at?

I will refer briefly to new clauses 7 and 8, which stand in my name. They are based on the evidence that Dr Lawrence McNamara provided to the Committee when it considered this Bill. We discovered in this whole process that the media have played a fundamental role in exposing what has been happening in relation to the security services. We should recognise that role in statute. New clause 7 is therefore based on an amendment proposed in the Lords and recommended by Lawrence McNamara. It basically states that the media, as the eyes and ears of the general public, should be informed of these cases so that they can intervene if necessary and become involved in proceedings. They would be notified, but they would then also be able to seek a stay or sist of the civil proceedings and be party to at least some element of the debate on whether a closed procedure is necessary. When Ministers responded to that proposal elsewhere, they argued that it would not be suitable in civil damages cases. That was the only argument put up for not involving the media as a party in proceedings. In fact, these are not just normal civil proceedings; they are based on national interests and national security. That is why there needs to be some process to allow full engagement of the media and enable them to become involved and intervene in the proceedings.

New clause 8 also relates to Lawrence McNamara’s recommendations and a proposal considered in the Lords. Currently the Bill does not provide for the possibility of closed judgments being made open later. The reason they should be made open at a later stage, some would argue, is so that the courts and the process can be held to account publicly. The proceedings could be reported and then a view could be taken on whether it was correct that they went into secret court procedures. The argument is a recognition that there should be some procedure for opening closed judgments long after the secrecy is no longer necessary. The Government acknowledged on Report in the Lords that review of closed judgments is important, but they never came forward with the amendments necessary to enable that. That is why I tabled new clause 8.

The new clauses would make two minor amendments to the legislation to enable us to prise open the door of the secret proceedings a little bit more and involve the media, who have played such a fundamental role in exposing the operations of the security services that have led us to this debate.