Hywel Francis
Main Page: Hywel Francis (Labour - Aberavon)Department Debates - View all Hywel Francis's debates with the Cabinet Office
Justice and Security Bill [Lords]
Hywel Francis Excerpts(11 years, 9 months ago)
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Mr Clarke
I must conclude. I apologise to those distinguished Members to whom I have not given way.
I remind Members of the extraordinarily important objectives that we have for the Bill and which the Government’s amendments support. I do not think that the Opposition wish to destroy the policy of the Bill, but they have tabled amendments that would have that effect. The Bill will ensure that the increasing number of civil claims brought against the Government alleging British involvement in kidnap and torture are for the first time fully examined by the courts and that the agencies are better held to account for their actions both by Parliament, through the Intelligence and Security Committee, and in the courts.
The Bill will enable us to reassure the Heads of State of our closest intelligence-sharing partners that we will keep their secrets. The fact that we cannot do this at the moment has already led to the US putting measures in place restricting intelligence exchange and has seriously undermined confidence among our key allies. As I have already mentioned, the Bill will also stop us having to make unnecessary payouts to people who have not proved their case and reduce the risk of British taxpayers’ money being used to finance terrorism.
We have revised the Bill as far as we can. We all agree on the rule of law and with the principles of justice in this country, but I invite the House to apply a modicum of common sense and a sense of national security to its considerations. We have debated this endlessly. Never can a Government have been quite so responsive to the points put to them, and I fear that I must resist the further pressure.
Dr Hywel Francis (Aberavon) (Lab)
It is a pleasure, and it is certainly a challenge, to follow the Minister without Portfolio.
On Second Reading, I welcomed the improvements that had been made by the House of Lords, but expressed the view that more significant improvements were required. I hoped that the Bill would be amended in Committee to make it compatible with the basic requirements of the rule of law, fairness and open justice, which, of course, the whole House would wish to endorse. Regrettably, however, the amendments made by the Government in Committee have removed or watered down many of the improvements made in the other place.
In an earlier report on the Bill, the Joint Committee on Human Rights, which I have the honour of chairing, considered carefully whether the Government’s amendments gave effect to its recommendations. In its second report, published last week, it reached the clear conclusion that they did not, and recommended further amendments. The day after we agreed our report, the Government tabled further amendments. I think—I choose my words carefully—that that was regrettable. We would have liked to scrutinise those amendments properly. The Minister, however, told the Daily Mail that the Government had now met every sensible legal objection that there could be to the Bill. I welcome some of the latest Government amendments, as does my Committee, but I must add that they meet only one of the seven main concerns expressed by the Committee in the report published last week.
Let me deal first with equality of arms in the ability to apply for a CMP. We welcome and support the Government’s amendment, which is the only one that gives effect to a recommendation in last week’s report. If we are to have CMPs in civil proceedings, it is vital for individuals such as torture victims who are bringing cases against the Government to have the same opportunity as the Government to apply for them, but how does the Minister propose to ensure that such claimants are aware that a CMP might help their case? Can he reassure us that special advocates will be appointed whenever the Government apply for sensitive national security material to be excluded from a case on grounds of public interest immunity, and also that those advocates will be able to communicate to excluded parties the fact that a CMP might help their case? I think that those are both very important questions.
Let me now deal with judicial balancing at the “gateway”—the so-called Wiley balance, which has already been discussed a great deal today. I support the amendment proposed by the shadow Justice Secretary, my right hon. Friend the Member for Tooting (Sadiq Khan). In fact, I shall be supporting quite a few of his amendments, not because of any party loyalty but because he is supporting my Committee’s recommendations.
The Government’s amendments removed from the Bill the Wiley balance between the degree of harm to national security on the one hand and the public interest in the fair and open administration of justice on the other. That important safeguard had been inserted by the House of Lords, following a recommendation from my Committee. As the Committee explained in its report, the purpose of our recommended amendment inserting the Wiley balance was to ensure that the court considered the public interest in the fair and open administration of justice.
Michael Ellis (Northampton North) (Con)
May I ask whether the Joint Committee also considered the human rights of society more widely, including the right not to see millions of pounds of taxpayers’ money given to undesirable elements and individuals because cases must be settled immediately rather than explored properly, evidentially, through the courts?
Dr Francis
I welcome the hon. Gentleman’s point. These are very important issues, and the Committee was cognisant of them.
To return to the point I was making, that purpose is not served if the Bill does not contain any express requirement that the court conduct such a balancing exercise before deciding whether to allow a CMP to be used. By deleting the Government’s new condition that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration and reinstating the Wiley balance as a precondition for a CMP, the amendment would restore a crucial safeguard for open justice.
On last resort, I support the amendment tabled by the shadow Secretary of State for Justice, which would give effect to my Committee’s recommendation. The Committee, in its report last week, explained why it does not accept the Government’s reasons for removing the “last resort” amendments made by the House of Lords, which are based on a misunderstanding of the effect of the provisions. The Government’s commitment to ensuring that CMPs are available only in those cases where they are necessary is most welcome. However, in order to give effect to that intention the Bill must be amended so as to reinstate the condition that the court is satisfied that a fair determination of the issues in the proceedings is not possible by any other means.
The requirement that the court consider whether a claim for PII could have been made must also be reinstated. The Government’s latest amendment, which requires the court to consider whether the party applying for a CMP considered applying for PII, does not go far enough, because it does not require the court itself to consider whether PII is a suitable alternative to a CMP.
Mr Kenneth Clarke
As I have already argued, that sounds as though it is demanding that both the Secretary of State and the court go through the full process of PII before even getting on to applying for a CMP. From what the hon. Gentleman is saying, it sounds as though that is exactly what the Committee is contemplating, but how can that be justifiable when all the people concerned in some of these cases will rapidly come to the conclusion that they are wasting time, money and effort on a totally unnecessary exercise and it would obviously be more sensible to go into a CMP and consider the nature of the evidence?
Sadiq Khan
I think that the Minister without Portfolio is in danger of not understanding his own Bill or the amendments. The amendment would simply require the court to “consider” whether a claim for PII could have been made in relation to the material. That is the same word used in Government amendment 47, which proposed that the Secretary of State must consider whether PII should be used.
Dr Francis
My right hon. Friend has explained that better than I could.
I have a question for the Minister, if he will listen to it, about the effect of the Bill on arrangements known as confidentiality rings. Will he repeat to the House the unequivocal reassurance he gave my Committee that the Bill, as it stands, makes no difference to confidentiality rings, that they will remain available under the Bill as they are now, and that the Government have no intention of taking away the possibility of such arrangements being used as an alternative to CMPs? I am not sure whether he was listening to that, but no doubt his supporters and officials can assist him later.
On the question of judicial balancing in the CMP, I again support the amendment tabled by the shadow Secretary of State. It would give effect to my Committee’s recommendation that the Bill be amended to ensure that a full judicial balancing of interests always takes place within the CMP, weighing the public interest in the fair and open administration of justice against the likely degree of harm to the interests of national security when deciding which material should be heard in closed session and which in open session. My Committee’s report explains why express provision for judicial balancing of interests needs to take place within a CMP. It is essential to ensure that the judges have the discretion they require to ensure that the Bill does not create unfairness.
Finally, on the question of gisting, I support the shadow Justice Secretary’s amendment, which, once again, would give effect to my Committee’s recommendation that this crucial safeguard be included in the legislation. On Second Reading, I said that the House needs to listen to the expert views of the special advocates and act on their recommendation that the Bill must include what has become known as a gisting requirement: a requirement that the party excluded from the courtroom must be given a summary of the closed material that is sufficient to enable him to give effective instructions to his lawyers and the special advocate who represents him in his absence. The special advocates have forcefully repeated that view in their most recent submission to my Committee. The courts have held that such a requirement is necessary in order for the legislation to be compatible with the right to a fair hearing, and the House should make it absolutely clear that that is what it intends, by writing this safeguard into the Bill.
Mr Slaughter
I am indeed, Mr Deputy Speaker.
The point I was trying to encapsulate is that there is so much in the Bill that is new and highly controversial that it seems utterly right that we should not have to wait five years or have only a single process of review, and that we should have instead a process of renewal. That is to say that this House and the other place should have the opportunity to reject the Bill once they have seen it in operation.
Dr Francis
May I place on record the support of the Joint Committee on Human Rights for my hon. Friend’s amendment? It is extremely important and one that is part of my Committee’s most recent report.
Mr Slaughter
I am most grateful, and I think the whole House is grateful for the Joint Committee’s work: it has taken a forensic interest, produced three substantive reports and taken a huge amount of evidence. We would all be a lot poorer in discussing this matter were it not for its role.
The Joint Committee felt able to summarise the need for the annual renewal provision in one paragraph because it had highlighted the difficulties that arose from the rejection of the Wiley balance, the rejection of last resort, the rejection of “PII first”, and the rejection of the Wiley balance in the CMP, a matter that I believe we will have an opportunity to vote on when we press amendment 38 to a Division at the end of the debate. That has not been discussed at any length and all I will say is, as a paragraph of the Joint Committee’s report makes clear,
“The Special Advocates…consider that once a CMP is ordered, and the court has to decide which documents will be “open”…and which “closed”, the court should be required to perform the Wiley balance between national security on the one hand and the fair and open administration of justice on the other.”
That is a point that the right hon. and learned Member for Rushcliffe (Mr Clarke) constantly rejects in what appears to be a wilful misunderstanding of the way the PII process works, or indeed the way that the Wiley balance works. All of the proposals, which have had great support from the Joint Committee, the other place, many parties in this House and a substantial number of senior Members on the Government Benches, are dismissed out of hand by the Government in the belief that the new formulation, the revised new formulation or the revised, revised new formulation is good enough. For all those reasons, it will be necessary to have the annual review process.
Finally, not only are there issues with which we are now familiar, some of which we have just voted on, but the Government have slipped in new proposals. The hon. Member for Cambridge mentioned amendment 28. We believe, notwithstanding the Government’s reassurances, that the aim is to destroy the use of confidentiality rings. Government amendment 47, which we believe allows—[Interruption.] The Government know what their own amendment says. There are serious, additional clauses, which I am sure will be raised in the other place. There has not been the opportunity to raise them on the Floor of the House this afternoon. They have been introduced on Report and not properly debated.
Mr Tyrie
I wish to echo the words used a moment ago in support of the work of the Joint Committee on Human Rights, which has done some excellent reporting on this matter—its investigations and inquiries have been very good—for which I am very grateful to its members.
There are three issues before us—reporting, renewal and review—but I will touch only on renewal and review. I have been arguing for some kind of renewal or sunset clause from the moment I first grasped the implications of the Bill. In the opinion of very many people, including, most notably, the special advocates, who are the only people with extensive experience both of CMPs and PII, CMPs will not make Britain more just, and neither, in my view, will they make Britain more secure. I will be supporting new clause 4, as proposed by the JCHR and tabled by the Opposition Front-Bench team, to introduce a renewal clause, and I will be doing so, above all, because of something the Minister without Portfolio said early on in his speech. He said that the Government did not know what effect the new process would have. That is the clearest indication of something that needs very careful and periodic renewal and review.
I recognise the force of some of the arguments against annual renewal put by the Minister this evening—his thought had occurred to me before he uttered it —particularly in respect of this type of legislation, where there would be so much litigation. Without having thought through all the arguments as carefully as some others, I have a preference for renewal once a Parliament, but the Government have not offered a renewal clause at all. That is a mistake and I hope that they will reconsider.
The Government are offering a review, but even that is defective. For a review to be credible, it must be independent, and be seen to be independent, of the Executive, but clearly that will not be the case with this review. Under new clause 6(1), the Secretary of State acting alone will appoint the reviewer. In another context, this is exactly the problem that the Treasury Select Committee faced when the Chancellor created the Office for Budget Responsibility to make forecasts for him. The Chancellor wanted those forecasts to be seen to be independently prepared, but the Treasury Committee pointed out to him that if he, acting alone, appointed the chairman of the OBR, nobody would believe in its independence.
After discussions with the Committee, the Chancellor decided that the chairman of the OBR should be appointed jointly by him and the Committee. I urge the Government, when they reconsider this matter in the Lords, and their lordships, when examining new clause 6, to make similar provision for the appointment of the reviewer of CMPs. In my view, the reviewer should be appointed only by agreement between the Secretary of State and the JCHR.
Dr Francis
I thank the hon. Gentleman for his kind words about the work of my Joint Committee. I am very attracted to the idea he has proposed. It is not the first time I have heard it, because we had this discussion recently, but I am pleased that he has proposed it on the Floor of the House.
Dr Francis
I see at least one member of my Committee nodding. I will be putting it to my Committee next week that we ought to discuss the idea, and I hope that it will be endorsed and then officially become part of our work. After that, I hope that it will see the light of day and be endorsed by the Government—if not here, then in the other place.