Justice and Security Bill [Lords]

Julian Brazier Excerpts

Monday 4th March 2013 Commons Chamber

[Mr Clarke]

I do not think that I would conceivably use the language that my hon. Friend tries to attribute to me. Human rights Members are fervently opposed to the whole idea of CMP. They are extremely able lawyers and draftsmen. I am left in wonder and admiration at their ingenuity in producing an endless procession of amendments, so that every time their principles are adopted by the Government in amendments at various stages, a fresh set of amendments is tabled introducing new concepts that are designed to elaborate on the process. That is enough praise for my opponents, but it is ingenious.

We are not putting in the Wiley test, because we have three perfectly effective tests and complete discretion for the judge anyway. The Wiley test is used for PII, which is a quite different process that tries to exclude the evidence entirely from the judge, the claimant, the lawyers and everybody. PII is an application for total silence. We do not need to put the test in for that.

Amendment 31 is more difficult, as it requires that a CMP may be used only as a last resort. The circumstances I have described are getting pretty near to the last resort. We expect only a handful of cases, because we do not think our intelligence agencies will be sued very often. They are strictly enjoined to follow the principles of human rights, and not to connive at torture and everything else, but we do not know, and the conditions we have applied make it clear that we will only ever have CMPs in national security cases, unless a future Government try to relax them.

The trouble is that the last resort argument will undoubtedly be used for going through the whole PII process before starting on CMPs, and there are some people who want to do that. They say that they do not like the fact that the Secretary of State has to consider an application for PII. They want the Secretary of State to go through the whole process. They do not like the fact that the court has other tests for going to a CMP. They want the court to go through the whole PII process before it gets there. Why? Because it could take months or years. The Guantanamo Bay cases had hundreds of thousands of documents—it is a very elaborate process.

[Mr Julian Brazier (Canterbury) (Con)]

Will my right hon. and learned Friend give way?

[Mr Clarke]

I will in just a second.

There is a serious risk, in our opinion and in the opinion of those who have considered the drafting, that it will introduce a huge, expensive and discouraging process. David Anderson, the independent reviewer of terrorism legislation, has described this sort of clause as requiring the court to bang its head against a brick wall. I think the Lords Constitution Committee also said that it did not want full PII. The hon. Member for Hammersmith (Mr Slaughter), who led for the Opposition, said this:

“None of us wants exhaustive PII or a Minister tied up for a year exhaustively going through paperwork, if it were obvious to all concerned that it was not needed”.––[Official Report, Justice and Security (Lords) Public Bill Committee, 5 February 2013; c. 167.]

We are resisting amendment 31 because we think ingenious lawyers will use the argument that we have to settle down to a few years of process and paperwork to satisfy the requirement exhaustively to consider every other possible way of trying the case.

--- Later in debate ---

[Mr Tyrie]

It is rare that I find myself agreeing with the lion’s share of what Opposition Members are saying and not agreeing with much that I have heard from my Front-Bench team. This is particularly unusual because of who has been speaking from the Dispatch Box. I normally agree with a great deal of what my right hon. and learned Friend the Minister without Portfolio says, but I cannot agree with him tonight.

The amendments on closed material procedures may look technical but they are really about the kind of society we want to live in: they are about whether people can get to hear the case that is being made against them; they are about whether we can keep legal safeguards that we have had for generations; they are about whether we are committed to finding out how much Britain has facilitated the United States’ programme of rendition—kidnap and, in some cases, torture; and, above all, they are about what values this country is seeking to espouse and export.

Amendments 30, 31 and 34 would take us some way in the right direction, and I will be voting for them. Amendments 31 and 34 would ensure that CMP is used at the discretion of a judge only as a last resort and only if obtaining justice is impossible by other means. For the sake of clarity, let me say that that is certainly not what the Government originally intended. Clause 6(5) of their original Bill required only that

“the Secretary of State must consider whether to make…a claim for public interest immunity”

before making an application for a CMP. A moment’s thought can tell us that that was almost worthless, as I believe the Government knew right from the start; all the Secretary of State would have to do would be to think about this matter, and he could do that in the bath if he so chose.

The House of Lords rescued matters, adding another provision requiring the judge to consider whether a PII “could have been made”. That meant that the court would be required to see whether a fair trial would be possible using PII, and so it would be up to the judge, not the Secretary of State, to decide whether PII should apply. We need to be mindful—this point has not been raised today—that the Executive, in general, and Secretaries of State, in particular, advised by officials, have interests of their own to serve. Foolishly, the Government scrapped that sensible House of Lords provision in Committee and they even scrapped the then clause 6(5), which would have required a Secretary of State at least to consider a PII.

The Government now intend to replace all that with their amendment 47, about which there has just been an exchange. It will provide that before making an order for a CMP the judge must be “satisfied” that the Secretary of State has “considered” making a CMP application. How, in a secret area, consideration by the Secretary of State would really be demonstrated is still unclear. Earlier the Minister said that we do not know exactly what effect this new process will have. No doubt officials will be able to provide suitable documentation to the Secretary of State in order for him to make that judgment, but I am not yet convinced that he will not be able to consider that in the bath as well. In other words, the discretion and control will lie fully not with the judge, as Lord Woolf wrongly supposes it will in his letter in The Times, but to a significant extent with the Secretary of State.

We have been told several times, and I have also been told in correspondence with the Minister, that this is a crucial area of the Bill on which further concessions would damage the interests of both justice and security. It is worth pointing out that on this crucial issue the Government have already held three incompatible positions: first, that the Secretary of State must think about PII; then, after Committee, that the Secretary of State should not even think about PII; and now, if amendment 47 is accepted, that the Secretary of State must tell the judge that he has thought very carefully about PII. Frankly, if this were not so serious an issue, all this chopping and changing would look slightly comical.

Amendment 30 is equally important. It would enable the judge to exercise the discretion he or she has now to balance the interests of justice against those of national security in determining what evidence should be disclosed. That is what is known as the Wiley balancing test, which has been discussed and is supported by the JCHR and a large proportion of the legal profession. It is important to be clear that that should not mean that judges will permit disclosure of information that would prejudice our security. I have asked for, but have not yet been told of, any case in which a judge has made that mistake under PII so far. Judges might not be perfect, but so far they have done a very good job of protecting our security and balancing security with justice.

[Mr Brazier]

Will my hon. Friend give way?

[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.

--- Later in debate ---

[Paul Goggins]

I accept that the Minister felt under enormous pressure to make that concession. Anybody who doubts the minds of coroners and senior judges in relation to the test that will be applied need only look at the coroner in the Litvinenko inquest, Sir Robert Owen, and the comments he made last week. He said clearly:

“I intend to conduct this inquest with the greatest degree of openness and transparency”—

and that he would give the Foreign Secretary’s request for a PII certificate—

“the most stringent and critical examination”.

We ought to trust the coroner and the judges.

In the end, the search for justice is a search for the truth. A secret court is one where information and intelligence is either not considered at all, or where the Government and their agencies cave in and make a settlement where no case has been heard—that is secret justice. Closed material proceedings are not perfection, but we are not dealing with perfection; we are dealing with a difficult issue in a small number of cases. However, we are more likely to get closer to the truth if the judge has seen the relevant information than if nobody has seen it at all.

[Mr Brazier]

This has been a high quality debate, starting with a typically rigorous speech by the Minister without Portfolio. It has been particularly noticeable that, while there have been strong speeches on both sides, all three Members who have had responsibility for this matter—the right hon. Member for Salford and Eccles (Hazel Blears), the right hon. Member for Blackburn (Mr Straw) and my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind), who made an outstanding contribution—took the view that we have to have this kind of legislation, and that the amendments would not be helpful. I want to put forward a couple of underlying reasons why I believe firmly that we need the Bill and that the amendments—some of them, anyway—would wreck it, and then delve a little into the historical background. I am concerned that the civil liberties lobby is just a little bit too free in its claims about British judicial traditions.

The one voice that does not seem to have been heard anywhere in the debate is that of the intelligence service. Baroness Manningham-Buller said:

“At the moment there is no justice at all in civil cases where individuals sue the Government for compensation, claiming, say, mistreatment or complicity in torture. Because the secret material held by the authorities cannot be used in court, the Government is forced to settle without a judge examining the merits of the claim. This is immensely damaging”—

immensely damaging—

“to the reputation of the Government and the intelligence and security agencies which cannot defend themselves; to the taxpayer who has increasingly to stump up millions in compensation; and perhaps most importantly of all to the claimants who, while they may receive large cash settlements, do not get their cases heard and judgment reached.”

I have a further concern. A friend of mine, former SAS officer Colonel Richard Williams, who has allowed me to quote his name in the press, has recently been attacked in one of our newspapers with allegations of brutality. The allegations are lies from beginning to end. Bizarrely, they start with the claim that he is being investigated for wrongdoing in Iraq. As he has never been investigated in any shape or form, that is a lie before we even get into the specific allegations. But let us suppose just for a moment that somebody was to turn those allegations into a court case. The circumstances of the operation concerned in the allegations involve some extremely secret material—where the tip-offs came from, modus operandi and so on. Now, it is quite possible that this man, who has been decorated for gallantry and leadership twice and badly wounded—indeed, he had another operation for his wounds only last year—could find himself facing a court case while being extremely reluctant to use certain material in his own defence, because no procedure is available under which he could do so without the risk of breaching secrecy.

[Mr Kevan Jones]

Does the hon. Gentleman also agree that this concerns not just the sources of intelligence, but the operating systems of troops on the ground? If anything got into the public domain—for example, about operations in Iraq by special forces—it would limit future operations, if those tactics became known to our opponents.

[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.