Justice and Security Bill [Lords]

Lord Beamish Excerpts

Monday 4th March 2013 Commons Chamber

[Sir Malcolm Rifkind]

I have no idea whether it is the same one or not; that will be a matter for Lord Carlile to deal with. He has served this country extremely well in these sensitive areas, and the hon. Gentleman should take account of that.

The whole problem is that the critics of these measures fail to take into account two things. First, although there can of course be qualifications under PII, including redactions and witnesses giving their evidence behind a screen, the core of the secret material cannot be revealed to the plaintiff without it being revealed to the whole world. It is not just a question of the plaintiff hearing it. Those of us who are privileged to serve on the Intelligence and Security Committee have seen examples of the intelligence material that would have had to be revealed if certain cases had not been settled at huge cost to the taxpayer.

In response to a comment by the right hon. Member for Blackburn (Mr Straw), I must point out that this is not just a question of the identity of an individual agent or officer being revealed. It goes far beyond that, because that person could be protected by a screen or by being given anonymity in court in some other way. It is also a question of evidence involving operating methods, for example. The material could reveal how the intelligence agencies quite lawfully obtain their evidence.

It is worth reminding those who are going to vote against the Government how thankful we are that there have been no further terrorist outrages in this country since the 7/7 bombings. In every year since then, major terrorist plots have been prevented by the work of the intelligence agencies, and much of that work relied on obtaining highly sensitive information, sometimes from individuals who were not intelligence officers but who came from the very organisations and communities in which the plots were being hatched. If the methods by which such information is obtained cannot be kept secret, no one should come to the House saying how much they regret some future terrorist incident if that incident has taken place because the agencies have been prevented from getting the support and co-operation that they need.

[Mr Kevan Jones (North Durham) (Lab)]

Will the right hon. and learned Gentleman give way?

[Sir Malcolm Rifkind]

I want to make one other point, if I may.

The other element that critics of the Bill do not take into account is that much of the information we are talking about can relate to misunderstandings on the part of the terrorists or criminals, who sometimes do not realise when their conversations are being listened to or when their property has been entered under lawful warrants and information obtained. They do not realise how stupid some of the precautions are that they take to protect their evil plans. That kind of information cannot be released in court. The plaintiff might be an innocent person, but if the information is released in court, it becomes available to the whole world, including the terrorist organisations and criminals themselves.

--- Later in debate ---

[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.