Justice and Security Bill [Lords]

Julian Lewis Excerpts

Tuesday 18th December 2012 Commons Chamber

[Mr Straw]

That has been the charge against the ISC in the past, and I am glad that things are going to change. However, I can tell my hon. Friend that I have given evidence to the ISC on a number of occasions, and it is no patsy Committee. It is composed of senior parliamentarians from both Houses, and they do a proper and effective job. The challenge for my hon. Friend is to explain how, given the nature of its subject matter, that job could conceivably be done by means of open hearings. It is not possible. The choice is between an ISC that operates in the way that the Bill proposes, and the absence of any kind of parliamentary scrutiny. I know which I choose.

Let me now deal with the arguments that have been advanced against closed material proceedings. The most frequently used argument is that we should resort to public interest immunity certificates. I accept that, if possible, gisting should be used or the court should sit in camera, but in most cases those options are not possible. Public interest immunity certificates are used fairly often, but they work effectively only when the evidence that they seek to exclude is relatively peripheral to the proceedings. If they are used in relation to evidence that is central to the case, they make it impossible for a trial of the action to take place at all. They do not protect evidence and make it safely usable in court; they exclude it altogether.

[Dr Julian Lewis (New Forest East) (Con)]

Does the right hon. Gentleman agree that the observation by my right hon. Friend the Member for Haltemprice and Howden (Mr Davis)—I am sorry that he is no longer in the Chamber—that PII certificates have not imperilled national security was obviously correct but utterly banal? As long as we are willing to drop all these cases and pay millions of pounds, national security will not be affected, but the Exchequer will be.

[Mr Straw]

Yes, and using PII certificates in respect of evidence that is central to a case is profoundly unjust to both sets of parties.

Dinah Rose is a leading critic of the proposals in the Bill. I have looked carefully at her response to the consultation document, which was published earlier this year.

She stated,

“PII is not perfect—it does result in some cases being tried without all evidence being available.”

She also stated that in rare cases:

“PII may also result…in a situation in which a party is ordered to disclose a document which it is not prepared to disclose, leaving it no alternative but to settle the claim.”

She is being disingenuous, because in these national security cases we are talking about not a document—her word—but bundles of documents that are central to the adjudication of the action.

I, like the Minister, dealt with lots of PII cases and had to work through them very carefully. If there were thousands of documents, as there would be in these cases, a Minister would have to take a month or so off to operate that and, at the end, if the court accepted the PII application, there would be evidence that could not be used in the case.

Ms Rose concludes her summary by referring to the need for “potential misconduct” by the agencies to

“see the light of day”.

I absolutely agree with her sentiment. The problem is that in the absence of CMPs, there is no way of determining misconduct by members of the agencies in a civil action. The most that can happen is a settlement out of court with a payment into court but no admission of liability. That is profoundly unjust to both sides. It is unjust to the complainant, who might well have right on their side but who is denied the means to have the court find in their favour, and equally unjust to the agencies and their staff, who might also have right on their side but no means of making their defence.

In the other place, various amendments were made that were designed to strengthen the role of the courts in determining whether and, if so, how CMPs should be used. They will be examined upstairs and I look forward to the result of the Committee. I am in no doubt about the necessity of the Bill and if the sceptics want to make the agencies more accountable, they should have this Bill—

--- Later in debate ---

[Mr Howarth]

My right hon. Friend’s assertion is right. I do not think it is anybody’s intention that that should happen, but we have concerns that the current wording might lead to that inadvertently.

The second issue, which has been referred to by several hon. Members and initially by the Chairman of the ISC, the right hon. and learned Member for Kensington (Sir Malcolm Rifkind), relates to the resources that it will take for the Committee to do the job that is envisaged in the Bill. I do not want to labour the point, but we are being asked to do a great deal more. I think that it is right to extend what we, as the representatives of this House in such matters, can do, but it will take more resources. As others have said, the secretariat of the Committee is working exceptionally long hours, often without any additional remuneration. People cannot be expected to do that indefinitely, especially when the amount of work that they have to do is increasing. I hope that the staffing issue can be put to bed before the Bill gets much further.

[Dr Julian Lewis]

In support of what the right hon. Gentleman, who is also my friend, has just said, the House should bear it in mind that it is not just a quantitative increase in resources that is required. If that increase is forthcoming, there will be a qualitative change because, as the Chairman of the ISC pointed out, the new people will act like investigators, going into the agencies and thus giving a realistic prospect of seriously close scrutiny.

--- Later in debate ---

[Mr Andrew Tyrie (Chichester) (Con)]

It has been an interesting debate, full of thoughtful interventions, and I have learned quite a bit.

I should like to make three initial points. First, I strongly support the work of the security services, which is essential for our safety. My concerns about the Bill need to be seen in that context. Secondly, I shall refer to the origins of the Bill, and thirdly, I shall deal with what might be at stake, even though we shall discuss it only to some extent this afternoon.

The Bill came about partly as a consequence of the recent exposure of Britain’s involvement in a programme of extraordinary rendition. Bringing all that into the public domain is a matter of deep concern to the Americans, particularly their security agencies. They are worried that our court proceedings could lead to the exposure of intelligence information handed to them by us. The Bill is a consequence, as we have just heard, of the cost and embarrassment of settling a number of civil actions brought by people who have alleged maltreatment. To deal with the first problem, the proposal is to close down the so-called Norwich Pharmacal jurisdiction and, to deal with the second problem, the Government have decided to replace public interest immunity certificates with closed material procedures in most national security cases. I shall come on to the case for those proposals in a moment.

I should like to discuss briefly what is at stake in a broader perspective. All these issues may appear to be abstruse and technical, but they are about the kind of society that we want to live in. It is worth saying a little more about the trigger for the Bill—the issue of extraordinary rendition. We now know that Britain facilitated extraordinary rendition—we do not know its extent—and the Bill may make it more difficult to find out the degree of Britain’s complicity. Senior British public officials have facilitated the kidnapping of people and their transfer to places where our Government knew they might be maltreated or tortured. Last week, Britain paid £2.2 million in compensation to someone who was apparently rendered—and tortured—along with his family, to the Gaddafi regime by British intelligence in 2004. Britain also facilitated the rendition of Binyam Mohamed to Morocco, and apparently he, too, was horrifically tortured. There are other cases, possibly many more: we do not know.

If we do not get to the bottom of our complicity in such disgusting practices, we surrender the moral high ground. We must be wary about extending secret court proceedings for the same reason. Secret courts are usually held to be the tools of dictators, not of democracies, and their prevalence is often a test of whether a society can be called “free”. I am deeply saddened that my country has become involved in kidnap and torture, and I do not want it to be accused—rightly or wrongly—of covering up such things. That, however, is exactly what Britain’s detractors abroad might claim—fairly or unfairly—about this Bill.

[Dr Julian Lewis]

I appreciate the serious point about getting to the bottom of a given rendition. Does my hon. Friend agree that if we are left with only PII, pay-offs will tend to be given and we will not get to the bottom of cases? However, if a pay-off is made when closed material procedure could have been used, one can deduce that something was amiss because although the Government could have used a more specific route, they chose not to do so.

[Mr Tyrie]

My hon. Friend makes an interesting point. The judge now has discretion on CMPs—at least, I hope that is where we will end up as a result of efforts in the other place—so we could arrive at a position where we have more justice and not less, which is the underlying principle we are discussing. With respect to Norwich Pharmacal, the case is unarguable. We would know less about rendition had the Norwich Pharmacal jurisdiction been closed down, because it was used to elicit information about the extent of Britain’s involvement.

The Government have argued that CMPs could deliver more justice because they will be able to introduce evidence that they cannot introduce at the moment for fear it will damage national security. How true is that? I do not know—very few Members present in the Chamber do. The special advocates, security-vetted lawyers who are responsible for making CMPs work, are the small group of people with access to the information required to know the answer. They have been unequivocal—the right hon. Member for Knowsley (Mr Howarth) quoted them a moment ago. They say that CMPs are not

“capable of delivering procedural fairness”

and that their introduction

“could only be justified by the most compelling reasons and, in our view, none exists.”

It is worth reading the report by the special advocates in full as it is pretty blistering.

I am grateful to the Minister, my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), for returning to the Chamber, as he also said that PII was deeply flawed. It is certainly not perfect but, again, the special advocates have expressed a view and said that

“there is as yet no example of a civil claim involving national security that has proved untriable using PII and the flexible use of ancillary procedures (such as confidentiality rings and “in private” hearings from which the public, but not the parties, are excluded).”