Justice and Security Bill [Lords]

John McDonnell Excerpts

Monday 4th March 2013 Commons Chamber

[Mr Edward Leigh (Gainsborough) (Con)]

I know that you are anxious to allow others to contribute, Mr Deputy Speaker, and I hope to encompass my remarks in two or three minutes. I also hope that the right hon. Member for Knowsley (Mr Howarth) will forgive me, a reactionary, for being progressive, but occasionally that is what one has to do.

I think I could have made this point very simply to my right hon. and learned Friend the Minister in an intervention, but I was unable to catch his eye. The general tenor of his remarks was that this was an argument got up by lawyers, that he had tried to make more and more concessions, and that we were dancing on the head of a pin. I think that there is a fundamental point of principle that can be expressed very clearly by a Conservative. There has been a great deal of reportage this week about what the Conservative party stands for. In my view, it stands for a deep and abiding distrust of the state and its agencies, and a desire always to stand up for civil liberties. That is why our party was founded.

When the Minister leaves the House tonight, as he goes through the Members’ Entrance he will see on his right a small plaque which marks the site of the Court of Star Chamber. Why did Toryism develop in the 17th and 18th centuries? It was in retaliation against the powers of states encompassed in that secret court, whereby people could be tried without knowing the evidence against them. I know perfectly well that we are not talking about criminal cases now, but civil cases too are very important. Justice, in my view, is indivisible.

The principle of justice in this country as I understand it, and as maintained by the Conservative party for centuries, is that any citizen can go to a court of law as a litigant, and his case will be heard in public. He will give his evidence in public, the defendant will give his evidence in public, the plaintiff can cross-examine the defendant on that evidence, and the defendant will know the evidence that is adduced against him. That is a fundamental principle of our courts of law.

It is not good enough to say that the judges will be very careful, or that it will be just a matter of a few cases out of several thousand. Perceptions are important, and what does our country stand for, above all else? It stands for the principle that a defendant knows the evidence against him. It is not good enough that some judge, however careful, can cross-examine on the basis of that evidence, and it is not good enough that some special advocate can do the same, because the defendant alone knows his case, and he alone must be allowed to put it.

It is not good enough to say that the present system is unsatisfactory, and to talk about PIIs and all the rest of it. Of course a defendant can always choose not to adduce a particular piece of evidence, and of course the state can always decide that it would be dangerous, and inimical to its own interests, to reveal how it operates. We all know that, and the state may indeed lose the case, but that is its decision. This is something quite different. We are taking a fundamental step, and it is a dangerous step. That is why I will not support the Government tonight.

[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.

--- Later in debate ---

[Mr Tyrie]

Well, I have one Front Bench aboard; that leaves another one. I do not see any movement just yet, but if I keep going for a couple more minutes, who knows? I might receive a response.

I think that it is in the interests of the Government to adopt this route, because it would bolster public confidence that the review and the reviewer were truly independent of the Government. My personal view is that five-yearly renewals, informed by a five-yearly review clause, should be satisfactory or at least adequate, but that is certainly the minimum that is required. What the Government have offered so far, which is just some reporting plus a five-yearly review, is clearly not enough. If they do not indicate that they are prepared to move this evening, I will vote against them. However, I hope very much that their lordships are also listening to the debate. They will have an opportunity to improve the new clause in a number of ways, and I hope that those will include the ways that I have suggested.

[John McDonnell]

I tabled new clause 9, which, as has been said, was debated in Committee. I congratulate Lawrence McNamara on his work—on the advice that he gave the House overall, and the evidence that he gave to the Joint Committee on Human Rights. He made a simple point. As we have seen tonight, this is an extremely contentious Bill concerning a contentious procedure, and it therefore warrants close monitoring. The best way of enabling that to happen is to establish a database at the earliest opportunity in order to ensure that the necessary information is recorded.

Lawrence McNamara made a fairly straightforward recommendation to the Committee. He suggested a template-form statement specifying the duration of open hearings and closed hearings, the number of witnesses heard in closed proceedings and the nature of those witnesses, the length of a closed judgment, and whether national security was an issue in the proceedings. The information whose collection is requested is not exactly highly controversial. The reason for requiring it is that it would inform the proposed review, and inform the wider media and the general public about the activities that were being undertaken as a result of the Bill. I am perplexed about why the Government did not simply accept that recommendation. Surely they would want to collect the information as well, in order to monitor their own legislation.

I welcome new clause 5. At least the Government are doing something about reporting. However, the report that they propose would be undertaken after 12 months of operation. I think that people need an ongoing database to which they can refer regularly, and which can be used when necessary to inform debates in the House and among the general public. The database would also feed into the review itself. It would enable a proper discussion to be held about whether the legislation was being implemented effectively, and about the scale of its implementation.

One of the arguments that we have heard tonight is that the CMPs will be used in only a small number of cases—15, according to the impact assessment, but that figure appeared to have been plucked out of the air when the Minister without Portfolio was interrogated further. Given the uncertainty about the import and breadth of the use of the legislation, there is obviously a need for an ongoing database to monitor the position, and that is all that the amendment does. For the life of me, I cannot understand why the Government are unwilling to accept it. I would expect a good Government to want to manage that information anyway.

With regard to the review, I wholeheartedly support the proposal for Joint Committee approval of the appointment. We had a similar discussion about the Bank of England, although without success, but the Treasury Committee was certainly successful with regard to the Office for Budget Responsibility. I suggest that this post is equally important and that, because the legislation is contentious, it is important that the person who reviews it has the full support of the House, and that could be secured by the Committee.

With regard to expiry and renewal, I remind Members that when the Prevention of Terrorism Act 2005 was introduced, we secured an annual debate on renewal. I cannot remember it being argued at the time that that was because the legislation did not have sufficient scrutiny in its early days. I know that it was introduced as emergency legislation, but subsequently there was fairly intense debate about whether it needed to be amended at different stages. The annual renewal was intended to give us an opportunity to see whether it was working effectively and to estimate the consequences for human rights, a critical debate that a number of us have engaged in year in, year out. It did not mean that there were any major amendments as such; it meant that Members of this House, and through them the general public, could satisfy themselves as to whether the legislation was operating in accordance with the original intentions. That is what an expiry and renewal clause would enable us to do. Again, I cannot for the life of me see that as contentious; it is simply another democratic fall-back or long-stop mechanism to ensure that we are fully consulted and that we are satisfied that the legislation has been implemented effectively.

On that basis, I will support the amendments tabled by Opposition Front Benchers and will not press new clause 9 to a Division, but I must express my disappointment that the Government have not gone very far in accommodating what I think would simply be an exercise in openness and transparency for a particularly contentious piece of legislation.

[Dr Huppert]

I wish first to put on the record my thanks to the Minister. In Committee he resisted many of my amendments, which was frustrating, but he did agree to take away my new clauses 1 and 2, which related to reporting and reviewing, and reflect on them. He has been true to his word, and new clauses 5 and 6 are the result. There are a couple of slight differences in the time scales, but, as I indicated in Committee, my aim was to try to achieve regular reporting and review, rather than being fixated on the exact number of months, and clearly reports that happen so quickly that there is not enough time to get information are not necessarily better. I am happy to settle for the annual report and pleased to see it.

I am also happy to see the five-yearly review, but I have a slight issue with it and would be grateful for clarification from the Minister. During a brief exchange earlier in the debate, he talked about the five-yearly approach being appropriate, and I think he said “once a Parliament”. As I read it, the wording of the clause indicates that the review would be done after five years and never again, so there is a difference between the two proposals. I hope that he will reflect on which it is intended to be.

The review might find that everything is working fine, and even those of us who are deeply uncomfortable with the whole concept might find that it does not work in the way we had anticipated, in which case we might not need regular reviews, but there might be things we need to consider, in which case we would like to see five-yearly reviews. I think it is important that each Parliament can reflect and conclude, for example, that this has gradually grown, that there are more and more cases, or fewer and fewer cases, or that something else has changed. I hope that the Minister will look at that. I am pleased that there will be the five-yearly review.

I would certainly support the idea of the independent reviewer being appointed more independently, as I think would my Liberal Democrat colleagues. I do not know whether the Government will be able to find a way to deliver that, but I hope that they will, because I do not think that that would cause any significant harm. I have some slight reservations about the five-yearly period.

New clause 4 is similar to the annual renewal proposal that I and my hon. Friend the Member for Edinburgh West (Mike Crockart) made in Committee and to the one proposed by the hon. Member for Hammersmith (Mr Slaughter), who was apparently performing vaudeville at some stage in Committee—I am afraid I must have missed it. I am still keen to see some form of regular renewal. The Government are resistant to annual renewal. I will certainly be supporting such a renewal, but if it continues to be a stumbling block, will they consider five-yearly renewal? I had a similar discussion about that on the same terms with the Minister in respect of the Terrorism Prevention and Investigation Measures Bill. In that case, he and the Home Secretary decided on a five-yearly renewal and perhaps he will make the same incredibly wise decision in this case, as it was clearly a good one.