Lord Beecham
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Justice and Security Bill [HL]
Lord Beecham Excerpts(12 years, 5 months ago)
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Lord Thomas of Gresford
I think that is too narrow a definition of the Pepper v Hart principle. I seem to recollect that when this Bill was first discussed and promulgated, the Government were intending not to use the test of the interests of national security but what was in the public interest. That was thought to be extremely wide. The leader of my party and my noble and learned friend’s party, apparently—at least he claimed—fought for its reduction to the interests to national security. Where the public interest stops and national security begins is a fine line, or perhaps it is a fuzzy one, but it is up to the Minister to give to a judge who has to consider applications of this sort positive guidelines as to what the Government have in mind now they have reconsidered the original purpose of their Bill.
Lord Beecham
My Lords, the noble Lord, Lord Hodgson, is too modest in proclaiming that this is a simple amendment, since it goes to the heart of the whole principle of Part 2 of the Bill, which changes—potentially fundamentally—the approach to the operation of civil justice, though not of course criminal justice, in the provision of a system permitting, in circumstances that we are debating, material to be kept from one of the parties and utilised under the closed material procedures.
It is worth reminding ourselves of some of the concerns that have been expressed. I am particularly interested in the briefing submitted by the Northern Ireland Human Rights Commission, as it comes from a part of the country that has confronted security issues to a very considerable degree and has suffered considerable harm over the past few decades from activities that all of us would deplore and which would probably come within the compass of any definition of national security.
Nevertheless, the Northern Ireland Human Rights Commission in considering the Bill proclaimed that it was,
“regrettable that despite some modifications to the proposals in the Green Paper, and the declaration under clause 11 … of the Bill”,
concerning these matters, there remain,
“the risks to the right to a fair trial under Article 6”,
of the European Convention on Human Rights, and Article 14. The commission goes on to say—and this matter was referred to in Second Reading—that the Government have,
“yet to make an evidence based case as to how the current Public Interest Immunity provisions have failed to protect national security interests and therefore why a system of CMPs is needed at all”.
The commission affirms that it would appear that the Government are,
“prepared to sacrifice fair trial protections and wait for litigation to be brought by those alleging”,
a breach of Article 6,
“rather than ensure adequate protection from the outset”.
It advises that,
“the proposals are not likely to satisfy the requirements of Article 6 … in a significant number of cases”.
That is a fairly trenchant critique of the proposals. The commission concludes that the Government have,
“failed to demonstrate the need for the Bill’s provisions … The move from evoking a CMP on public interest grounds to national security grounds has been reported as an acceptable narrowing of the original proposals. Human rights law accepts national security as grounds for qualifying rights. However, NIHRC expresses concern that ‘national security’ remains a broad term that might still be relied on too readily by Government and in a manner that is not consistent with its human rights obligations”.
The briefing refers, as the noble Baroness, Lady Manningham-Buller, referred, to the national security strategy, with its references to pandemic diseases and,
“natural hazards along with increases in organised crime are listed as threats to national security”.
It concludes that the Government are,
“yet to be sufficiently definitive about what it means by national security for the purposes of requiring a court to permit a CMP in a civil case. The risk is that what is now claimed to be a ‘fix’ for a limited number of civil cases”—
and that is the Government’s case; the extent to which it is likely to be limited to very few cases is supported by Mr Anderson—
“becomes a ‘fix’ increasingly relied on by Government to obstruct scrutiny and attempts to seek redress”.
The commission’s are not the only concerns that have been expressed about the issue of definition. In evidence from the special advocate to the Select Committee, Mr McCullough stated that,
“there is the possibility that national security could be very broadly defined, unless some reassurance as to its scope were given. On one view at least, anything, or almost anything, involving international relations might be argued, and one could envisage being argued by the Government, as to have an impact on national security”.
Of course, as has already been indicated, it is not really possible to be definitive about what constitutes national security and what does not. It would be impossible to be conclusive because, as noble Lords have indicated, circumstances change and threats change, and it would be foolish to prescribe a definitive list. The noble Marquess, Lord Lothian, said of national security that you know it when you see it. The question is, in these circumstances, who is “you”? The Government may take a view; others may take a different view. Although these matters are difficult, we have to try to evolve a system that will give some guidance to those who operate the system and, indeed, those who may ultimately have to form a judicial position on individual cases.
The Marquess of Lothian
My Lords, Clause 6(2) states:
“The court must, on an application … make such a declaration if the court considers that … such a disclosure would be damaging to the interests of national security”.
My point is that, in order for the court to be able to make that decision, that court procedure is the time when you can actually “know it when you see it”. There may be arguments on both sides but the court has to resolve that. We, at the moment, are arguing that in a vacuum the court will have to decide it according to the particular circumstances.
Lord Beecham
It would, but the court would be assisted perhaps by an approach in which the Government in advance and in general terms—and not necessarily on a permanent basis—indicate what they consider is relevant for the purposes of these claims. They could, for example, say, “We have a national security strategy, but there are things in here on which we would not seek to rely in cases that might be brought”—say, organised crime or any of the other matters to which the commission referred and to which the noble Baroness, Lady Manningham-Buller, referred.
The noble Lord, Lord Hodgson, provides a definition that is both too broad and too narrow. It seems too broad if one looks simply at the definition of “intelligence or military operations”. There have been cases that resulted in inquests—to which these procedures would not apply—where, for example, there might be a question about whether equipment used during military operations was fit for purpose, and that might give rise to a civil claim, for example, by a wounded soldier; we know that such incidents have arisen. The noble Marquess might say that that does not really constitute national security for the purposes of bringing a claim. On the other hand, the definition could be considered too narrow, because one can envision circumstances in which there was no military operation but there was transportation of chemical or fissile substances or storage of such things, which were not necessarily for military purposes but which obviously would count as being relevant to national security because of the risk of terrorists seizing the equipment or substances. Those examples illustrate the difficulties but do not, perhaps, take us very far.
I wonder whether, in these circumstances, it might be a matter for the Government, possibly with the assistance of the Intelligence and Security Committee, to provide some guidance about what would be deemed to be relevant to the issue of national security in the event of an application being made, assuming that the basic principle is accepted and that the Government are found by Parliament to have made their case—and, I repeat, so far as the Opposition are concerned, we are not yet convinced of that. It may even be that negative definitions of the kind that I have indicated in relation, for example, to the national security strategy, might be helpful so that you can exclude certain things ab initio, and you might give an indication of things that are clearly included—military operations, I would have thought, certainly would be included.
The contributions of the noble Lord, Lord Deben, and, in particular, the noble Lord, Lord Hodgson, as well as that of the noble Earl, Lord Erroll, have indicated the breadth and depth of concern about the road we are embarking on. It is not beyond the capacity of the Government, with the advice and support of the ISC, to produce not a statutory definition, because that would be too rigid, but guidance that would assist the courts and others in considering these matters at the relevant time. Does the Minister consider that a step worth taking?
Lord Faulks
The noble Lord said that the party opposite is not yet convinced of the need for CMPs, and he made various suggestions about possible guidance or a definition that would assist on the question of national security. Does it follow that if there were further guidance or a better definition of national security along the lines he suggested, that would go some way to satisfying whatever needs to be satisfied in terms of the party opposite’s potential opposition to CMPs?
Lord Beecham
My Lords, we are capable of simple arithmetic, and it may be that, in reality, the Government will get their way on the principle. We will keep an open mind through Report stage and listen carefully to what the Government say. At the end of that process, we may or may not accept the case. If it is the wish of this House—in the first instance—and of Parliament as a whole to proceed with closed material procedures, we might come to what one could call the last-resort position of looking at how best to limit any application of the new procedure and how to make the best of the situation, in the interests of justice and the traditions that this country has espoused for centuries. It would be making the best of what we currently consider is a very bad job. However, we are open to evidence. There is not a great deal of evidence at the moment, although there has been some to which Mr Anderson referred—the three cases which seem to have persuaded him that there is a need for such a procedure. However, as I reminded the House the other night, he also said that the Government’s proposals were disproportionate and suggested measures that would have some mitigating effect on the process, if it were to be implemented.
That is the position of the Opposition. We are not taking a premature stance on this. It would be interesting to know, for example, whether the special advocates have, as suggested, actually been shown the files of the independent adviser who is to be consulted, or whether the process is going to take place at all, and what the view of the special advocates is. Your Lordships will recall that they were very critical. Almost all of them signed up to criticism of the proposals as they stood. In evidence to the Select Committee, Mr McCullough said that he would welcome the opportunity, if it were given, to look at the cases that seemed to have persuaded Mr Anderson to accept the principle, given that, as he made clear, he continued to think there would be only a limited number of cases. At the very least, the amendment has allowed us to look at ways in which such cases might be restricted to a small number, against criteria that, although not statutory, might be developed while the Bill is making its way through Parliament.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I am grateful to my noble friend Lord Hodgson for bringing forward the amendment. It is clear from the contributions that it raises an important issue. I certainly recall that on publication of the Bill, the issue of whether there was a definition of national security was raised not just by a number of Members of your Lordships’ House but more widely. It is important to define the type of material that closed material procedures should be used for. I hope that I can set out why we think we have reached in the Bill the right definition of the type of material that would be considered within a CMP—material that if released would damage national security.
The Government carefully considered the responses to the public consultation on the Green Paper, including consideration of the scope of the material to be covered, before bringing forward this legislation. The Bill makes provision for closed material procedures to be used only in contexts where there would be damage to national security. Examples of sensitive material that might be relevant to a case that would give rise to a duty to claim public interest immunity, and which could also be heard in a CMP under this legislation, include, for example, information from a sensitive source whose life or safety could be put in danger if openly disclosed. I think that example was given by the noble Baroness, Lady Manningham-Buller. Other examples include information relating to current operations that would be compromised if it were to be made public; intelligence material shared with the United Kingdom by foreign intelligence agencies; or the content of telephone calls or e-mails intercepted by the intelligence agencies that would not be admissible in open civil proceedings. It is difficult—a number of noble Lords said this in their contributions—to be completely prescriptive about all the types of damage to national security that could justify closed material proceedings.
The amendment in the name of my noble friend introduces a definition. I would assert that the term “national security” is clear, tried and tested. My noble friend Lord Lothian said that it is clear “when you see it”. One noble Lord asked: “Who sees it?” In this case, the judges see it. The Secretary of State makes an application to the court, and the judge determines whether it satisfies the condition that there would be damage to national security.
It has been for judges to interpret this term appropriately and flexibly. The flexibility of the current approach allows the judge to consider the arguments of the Secretary of State on their merits. Of course, the procedure, even at the initial gateway stage, would also allow special advocates to make representations to the court.
The noble Lord, Lord Beecham, mentioned Article 6 of the European Convention on Human Rights. It is important to remember that in Clause 11(5)—
Lord Wallace of Tankerness
My Lords, the Green Paper suggested that there might well be the category of the prevention of serious crime. That was considered by the Government. I indicated earlier in my remarks that the Bill deliberately omitted from the definition other aspects of the public interest from the CMP clauses, such as international relations and the prevention or detection of crime, although they do apply in other statutory CMPs. But the consideration of the representations received in response to the Green Paper was to make it solely matters that would be damaging to national security.
The policy of successive Governments and the practice of Parliament has not been to define the term “national security”. As a number of your Lordships accepted, it has been to retain the flexibility needed to ensure that the use of the term can adapt to changing circumstances —for example, changes to the threat environment and advances in technology. The nature of national security threats and risks is constantly evolving. That, in turn, requires the Government and the security and intelligence agencies to maintain their ability to evolve.
My noble friend Lord Lothian suggested that it would be better to leave this open and the noble Lord, Lord Beecham, accepted that it was not always possible to be definitive. The current approach is based on the recognition that this is a flexible concept which evolves in the light of changing circumstances. As my noble friend Lord Hodgson said, we want to avoid a legal straitjacket. The risk of any attempt to be precise and exhaustive would be to constrain the ability of the security and intelligence agencies to adapt their operational approach and develop capabilities to meet new and unexpected changing threats.
I will conclude with a pertinent example. Neither weapons of mass destruction proliferation nor cyber attacks feature in what is fortunately a non-exhaustive list of threats to national security which the Security Service is specifically charged with countering in Section 1 of the Security Service Act 1989. But who could deny that, some 23 years later, these activities represent serious threats to the UK’s national security? The flexibility is there for the security services to be charged with responsibilities without there being an exhaustive list.
The noble Lord, Lord Beecham, accepted that there might not necessarily be a statutory definition and he raised a question about guidelines. I will certainly consider guidelines, but I am not entirely sure where they would fit into the guidance being given to the court, even with the help of the ISC in devising them. However, I know that the suggestion was made in a constructive manner and I will certainly think about it in a constructive way. I do not readily see how it will fit in, but I will certainly consider it. He may wish to elaborate on what he had in mind.
Lord Beecham
I particularly had in mind ruling out areas—the noble and learned Lord has already indicated some of them—that would not be deemed to fit within the definition that the Government seek to apply. It is an exclusive rather than an inclusive list that I think might be helpful,
Lord Wallace of Tankerness
My Lords, I hear what the noble Lord says. I have already tried in response to the debate to indicate some of the things that are excepted from the definition as we have it. With those considerations in mind, I invite my noble friend to withdraw his amendment.
Lord Thomas of Gresford
As I understand it, the court did not accept the argument.
Lord Beecham
My Lords, I am grateful to the noble Lord for a clear explanation of something which, I am afraid, I approached with complete bewilderment. I simply did not know the point he was aiming at. I do now and I am persuaded by his argument. I hope that the noble and learned Lord will be sympathetic to the case he has made because it is convincing and consistent with the approach to the Intelligence and Security Committee. Given that precedent, I would have thought not that it would damage the interests of the security services, but rather that it would strengthen the role of the courts and uphold the principles that Members across the House seek to maintain in terms of the operation of the justice system. I hope that the noble and learned Lord will accede to his noble friend’s plea.
Lord Wallace of Tankerness
My Lords, I am grateful to my noble friend for bringing forward this amendment. He rightly points to two pieces of legislation which govern the security and intelligence agencies, the Security Service Act 1989 and the Intelligence Services Act 1994. As my noble friend has indicated, they place an obligation on each of the agency heads to prevent the disclosure of information obtained by the agencies except on certain limited grounds set out in those Acts. In particular, the disclosure of information is permissible where necessary in the proper discharge of the functions of the agencies. Information held by the security and intelligence agencies will include information and intelligence from human source reporting, and therefore is essential to the agencies’ operational effectiveness and the protection of national security.
As I understand it, the concern behind this amendment seems to be that these provisions would prevent the agencies complying with their disclosure obligations in civil proceedings. However, it is our view that the amendment is unnecessary. The agencies take their disclosure obligations very seriously. In England and Wales, if the claim is a civil damages claim, for example, Part 31 of the Civil Procedure Rules will generally apply. Standard disclosure requires parties to disclose the documents on which they rely—documents which undermine their or another party’s case and documents which support another party’s case. If the claim is for judicial review, all public authorities are subject to a duty of candour which requires the public authority, when presenting its evidence, to set out fully and fairly all matters that are relevant to the proceedings. Naturally, part of considering these disclosure obligations is the question of whether PII should be claimed or, if Parliament passes Part 2 of the Bill, whether the Secretary of State should apply for closed material proceedings. In a case where the agency is being sued for civil damages or someone is applying for judicial review, it is part and parcel of the proper discharge of an agency’s function to defend actions taken in the discharge of its functions. I therefore believe that the amendment is unnecessary.
My noble friend has made reference to paragraph 3(4) of Schedule 1 concerning the ISC provisions. This paragraph reflects a provision in the Intelligence Services Act 1994 which treats disclosure by the agencies to the ISC as necessary for the proper discharge of their functions. It may be asked, as my noble friend did, why this provision is needed there and not in the context of civil litigation. It is simply because it is right to make it clear, as existing legislation does, that disclosure to the ISC is permitted.
My noble friend may well be raising a case where it is a question of third-party disclosure. He mentioned a case of Evans v Ministry of Defence and, on the intervention of the noble Lord, Lord Pannick, I understood him to indicate that that argument did not win the day. It is a case that I wish to consider in the light of what my noble friend has said. If the effect of this amendment would be to treat the disclosure into any civil proceedings, regardless of the identity of the parties or the subject matter of the proceedings, as somehow part of the proper discharge of the agencies’ functions, that would conflict with the agencies’ need and ability to operate in secret. This is vital to maintaining the trust and confidence of those with whom they work; or, as was said in the previous debate by the noble Baroness, Lady Manningham-Buller, information may come from a particular agent, and the secrecy of that is important. I am thinking in particular of proceedings that do not at all involve the agencies and where a request for disclosure is made. It is right that in these circumstances the courts consider whether disclosure would be necessary for the proper discharge of an agency’s functions before an order for disclosure is made.
I have indicated to my noble friend that I will look at the Evans case. Based on what he said, I am advised that it may be similar to and consistent with the arguments that the agencies made in the Omagh bombing case—namely, that Section 22A is a bar to third-party disclosure, and that it was for the courts to decide. I hope that he hears that the agencies take seriously the requirements of disclosure in civil proceedings under Part 31 of the Civil Procedure Rules. On that ground I urge that the amendment is unnecessary and ask my noble friend to withdraw it.
Lord Lester of Herne Hill
My Lords, in later amendments, we will be considering ways of making what at the moment is an unfair procedure fair, or less unfair. I agree with the noble Lord, Lord Pannick, that the procedure as it stands is not fair and also that it does not become any more fair by adding assessors or advisors to help the judge who has to decide whether to grant a declaration under Clause 6(1).
My experience of assessors or others—whether in an employment tribunal or in a county court for example—in dealing with discrimination cases, which are difficult and often involve weighing proportionality issues, has been an unhappy one. Along with others who have spoken, I have huge admiration for, and confidence in, the ability of our senior judiciary and agree with the noble Lords, Lord Pannick and Lord Carlile of Berriew, that our judges have displayed a very good ability to weigh competing interests in difficult cases.
It will be important to look later at ways of making the procedure fairer, but with all respect to county court judges, whether serving or retired, and to retired judges of the senior courts, I simply do not think that having more of them is going to make it easier. This is not a question of deciding facts, like a jury; it is a question of striking a balance between competing interests. That seems something that our senior judiciary are well able to do without being bolstered by any outside support.
Lord Beecham
My Lords, I pay tribute to my noble friend Lord Dubs, who has served with great distinction on the Joint Committee on Human Rights and of course has a long record of interest in matters of justice generally. However, I indicated to him during a conversation beforehand that I was not persuaded by his argument. I was persuaded, albeit temporarily, by the arguments of the noble and learned Lord, Lord Lloyd, but in the end I share the views of other noble Lords who have indicated that this is perhaps an overelaborate and unnecessary addition to the framework that would otherwise exist. One point that struck me is that it is a little invidious for a serving High Court judge to sit with current or retired county court judges. I do not mean any disrespect to county court judges, but am not sure—
Lord Elystan-Morgan
There are no county court judges. There have not been any since the Courts Act 1971. They are now circuit judges.
Lord Beecham
It is a while since I appeared before any judge whether county court or circuit. I meant the equivalent position. The noble Lord is clearly aiming at that tier in the judicial system and it strikes me as a little excessive. Equally, the provision for majority verdicts and so on would be somewhat invidious. Regretfully, I cannot support my noble friend’s amendment and I dare say that the noble and learned Lord will join the majority of those who have spoken in saying that the amendment would not be acceptable.
Lord Wallace of Tankerness
My Lords, the noble Lord, Lord Beecham, anticipated what the response would be. That said, it is only right to acknowledge the amendment moved by the noble Lord, Lord Dubs, and supported by the noble and learned Lord, Lord Lloyd, with reference to his own experience. I certainly accept that in moving his amendment the noble Lord, Lord Dubs, does not necessarily accept that we should be in the field of closed material proceedings. He made that clear, but he indicated that, in his view, it was necessary to have safeguards of the type proposed in his amendment. The Government’s position is that there are safeguards and in future groups of amendments we will be able to discuss the pros and cons of other potential safeguards.
As has been indicated, the amendment would require a judge in a closed material proceeding to sit with a panel of four additional judicial commissioners. In introducing these procedures the Government consider that we are providing the judiciary with another tool to deal with cases involving national security material. In the Justice and Security Green Paper, the Government floated the idea of a separate national security court with national security cases being diverted to it and different procedures being adopted in it. However, we concluded that national security is an aspect of disputes which may arise in any field of law and therefore it is better to keep cases in the ordinary courts where they arise while providing appropriate procedures, rather than moving different types of cases into one court where their only unifying factor is national security.
We are concerned that this amendment would be similar to creating a specialist court because it establishes an entirely different finder of fact for cases in which CMPs may be used. It envisages that the panel would preside over both the open and closed parts of the proceedings and this would fundamentally change the procedures adopted in the civil courts for cases in which national security is engaged. The oddity of what is proposed here can be illustrated by considering a case where national security material is important, but none the less is a small part of the material in the case. It might possibly even be a single document. Let us say that the court made a declaration that a CMP may be used and accepted an application that the document should be heard in closed proceedings. We would then be faced with proceedings which to all other intents and purposes were indistinguishable from other civil proceedings being presided over by a panel. We do not think that is right. My noble friends Lord Lester and Lord Carlile, and the noble Lord, Lord Pannick, made the point that single judges are well equipped to deal with this. My noble friend Lord Faulks made the point that subsection (3) very much changes the level and nature of the burden of proof and would materially change the nature of these proceedings. The noble Lord, Lord Pannick, indicated that it would also lead to cost and delay. I am always wary of talking about cost when we are dealing with such sensitive matters, but that would undoubtedly be the case.
The noble Lord, Lord Dubs, should be congratulated for coming up with an imaginative way of addressing his undoubted concerns. However, the Government believe it is better to retain the current judicial system in the civil courts and provide the judiciary with this new mechanism of the closed material proceedings rather than fundamentally alter the way in which the United Kingdom deals with civil proceedings by creating a finder of fact in cases of this sort.
I believe that it was the noble Lord, Lord Elystan-Morgan, who mentioned special advocates. They will provide the type of independent challenge that this amendment seeks to cover. I remind the Committee, as I am sure will happen on further occasions in our debates, of the case of M v Home Secretary in which the noble and learned Lord, Lord Woolf, granted an appeal on the basis of a rigorous cross-examination in the closed session. That in itself is testament to the work of special advocates in these situations. I hope that I and other noble Lords who have contributed have gone some way to encouraging the noble Lord, Lord Dubs, to withdraw his amendment, while recognising his motivation in putting it forward.
Lord Marks of Henley-on-Thames
My Lords, I had not intended to intervene in this debate, but having heard the noble Lord, Lord Pannick, and my noble friend Lord Faulks describe—accurately, one has to concede—the role of the special advocate and the limited responsibility that he has to the person whose interest he is appointed to represent, one is bound to come back to the amendments proposed by my noble friend Lord Hodgson and ask whether there is not a field that my noble and learned friend the Minister ought to consider—namely the degree to which we might fairly increase permitted disclosure to the person whom the special advocate is appointed to represent. There ought to be a guiding principle, consistent with what the noble Baroness, Lady Manningham-Buller, said, that there should be as much communication as is consistent with the interests of justice, short of disclosing material to the party from whom some disclosure that is prejudicial to national security is withheld. The special advocate’s position could be effectively carried out without compromising national security if some movement in that direction were to be conceded. It may be that my noble friend’s amendments do not achieve precisely that balance, but at the moment we have a system that is so restrictive of communication that it destroys the public confidence in the special advocate system that there might be.
Lord Beecham
My Lords, this is an important group of amendments, as are the amendments to follow which deal with the position of special advocates. The Constitution Committee, in its report of 15 June, made reference to the earlier report of the Joint Committee on Human Rights and stated:
“The use of Special Advocates has proven to be highly controversial”.
The report then quoted the 2010 report of the Joint Committee on Human Rights which stated that, even with the use of special advocates, the closed material procedure,
“is not capable of ensuring the substantial measure of procedural justice that is required”.
The Constitution Committee report continued:
“The Special Advocates themselves have voiced grave concerns as to the limitations inherent in their role. They submitted a … response to the Green Paper”,
which stated:
“Our experience as Special Advocates … leaves us in no doubt that CMPs are inherently unfair; they do not work effectively; nor do they deliver real procedural fairness”.
The Constitution Committee report added that even the Court of Appeal—which commended the special advocate system and said that it,
“enjoys a high degree of confidence among the judiciary”—
pointed out that the system is,
“‘inherently imperfect’ and that the system ‘cannot be guaranteed to ensure procedural justice’”.
Those are significant criticisms, even allowing for the efforts made by the distinguished body of men and women who serve as special advocates. I refer again to the evidence to the Select Committee about the special advocates, particularly the evidence of Mr McCullough, who was clear about the problems they faced. He said that the best they can do is,
“very limited indeed, particularly given the nature of intelligence material, which, very often, requires inferences to be drawn from circumstances that may have a sinister explanation … We, as the Special Advocates, are in great difficulties in displacing the sinister explanation if we cannot take instructions from the person who is in a position to provide the innocent explanation. So that is a fundamental difficulty”,
that they find themselves in under the Bill. In answer to a question from my noble friend Lady Lister in the same evidence session, he said that the legislative form of words that could be devised,
“would simply be that there is an obligation to give a minimum level of disclosure, which would enable the affected person to give effective instructions to their own representatives or to their Special Advocate. It would not be difficult to draft”.
That rather follows the line of the noble Lord, Lord Marks, in commending a procedure that would safeguard the element of national security but allow instructions—potentially, at least—to be given.
Lord Beecham
I wonder whether the noble and learned Lord could deal with this matter by accepting a slight modification to the wording so that there “must” be an appointment of a special advocate unless the party declines to accept the appointment.
Lord Wallace of Tankerness
That is a helpful suggestion. I am always wary of saying that, as it might cast doubt on what has been put in an earlier statute which is intended to do the same thing. An absolute requirement may lead to a special advocate being appointed in circumstances where it would be almost impossible for the person to function. I hope that the noble Lord is reassured that it is our intention that whenever an excluded person wants a special advocate, a special advocate will be appointed. I note what he says. Without wanting to cast doubt on what is in other statutes, we shall certainly have regard to what he says.
Baroness Berridge
My Lords, I will speak briefly in support of Amendment 62. My noble and learned friend the Minister has outlined that this is a balance of security and fairness. In a closed material procedure, I do not think it is wrong to say that the national security issue is a higher priority for the Government who are party to the proceedings, and fairness is higher up the priority list for a claimant who has been excluded.
Let us take the example of a claimant who has been excluded from the hearing and is sitting in the corridor whiling away the hours while the proceedings go on, and turns to the rules of court that have been drafted and looks at Clause 7, as we have it, unamended. How is the claimant not going to conclude, when looking at those rules, that almost the sole interest the court is required to take into account is national security? According to paragraphs (c), (d) and (e), the court has to consider giving a summary, but this is not required. To preserve the integrity of the court, Clause 7 is too constrained around the requirements of national security and does not bring in the need for fairness of the claimant, who will be sitting there wanting to know as much as possible about the evidence and, if possible, to know the gist of the case. Bringing in some consideration of the need for the claimant to have enough information to provide instructions is incredibly important. There must be some requirement given to the court to consider the issues of fairness under the rules.
Secondly, although I take full notice of the views of the noble Baroness, Lady Manningham-Buller, that the special advocates who are there on behalf of the excluded party cannot be the sole judge of whether national security is breached if a particular summary of the case is given, what would be the objection to including the special advocate in the process of deciding what the summary is? Perhaps they could be involved with the relevant party because, as the legislation is drafted, the duty of not revealing national security has in any event been given to the court, so why not have a process where at least the claimant would know that the special advocate is able to partake in that process to determine the summary and the court is the final gateway to ensuring that national security is not breached? Therefore, I support Amendment 62.
Lord Beecham
My Lords, the noble Baroness, Lady Berridge, has identified and emphasised the crucial nature of Clause 7. It is the fundamental problem with the Bill that, despite the protestations of the Lord Chancellor, it gives little discretion ultimately to the judge as to whether the closed material procedure should be invoked. Clause 7(1)(c) requires the court to give permission if,
“the disclosure of the material would be damaging to the interests of national security”.
It seems clear that any disclosure of matters affecting national security would suffice to preclude the material being made available. Therefore, we come back to the position that the noble Lord, Lord Faulks, referred to, as enunciated by the noble and learned Lord, Lord Hoffmann.
It is almost exactly 50 years since I first became acquainted with the noble and learned Lord, Lord Hoffmann, as a new student at University College, Oxford—where I was succeeded in due course, several years later, by the noble Lord, Lord Marks—and I have a great admiration for noble and learned Lord, who was a distinguished opponent of the South African regime. I find it rather surprising that he came to the conclusion that matters of this kind are a matter for the Executive and not the judiciary. It is not a view that can be recommended to your Lordships’ House. It strikes a dagger at the heart of our system, and the amendments before us provide the right approach to procuring a level of fairness that allows the judge to make a decision on the basis of a balancing exercise.
I entirely agree with the noble Baroness, Lady Berridge, and others who have laid an emphasis on the need to have that balancing exercise carried out. The amendments in the names of the noble Lords, Lord Thomas, Lord Pannick and Lord Lester, clearly are directed at securing that important balance and fulfilling the—unjustified—claims made for the Bill that ultimately it will be the judge who actually takes the decision; otherwise the decision is effectively made for him by the Secretary of State, and that is extremely undesirable. It follows that the amendments in relation to gisting, which the noble Lord, Lord Pannick, described as a minimum requirement, also have their place in a system which is fair to the parties.
The noble and learned Lord referred to the application of the European Court of Human Rights. Although I am sure that he is clear in his own mind that there is no real conflict with the human rights legislation, there is, perhaps, a question about that. Clause 7(1)(e), to which other noble Lords have referred, makes it clear, in relation to gisting, for example, that a summary does not contain material the disclosure of which would be damaging to the interests of national security. However, it is apparently the position that the European Court has previously struck down decisions made under the existing closed materials procedure on the basis that they were incompatible with the right to a fair hearing which, of course, Article 6 prescribes.
The case law suggests—I am referring now to a briefing from Justice, the organisation concerned with civil liberties and matters of this kind—that,
“a person must be given as much disclosure—whether through the provision of documents, evidence or a summary—as is needed to secure a fair trial”.
It refers in its briefing to the case of A v United Kingdom, in which,
“the Grand Chamber concluded that where insufficient material had been disclosed to an individual subject to a control order”—
of course, we are not talking about control orders here but about a civil claim—
“this rendered the hearing unfair and incompatible with the Convention”.
The briefing also refers to the case of AF, to which the noble Lord, Lord Pannick, referred. There must be a question as to whether the assurance of the noble and learned Lord, obviously given in good faith, that Clause 11(5) resolves these matters—because it emphasises the duties of the court under the Human Rights Act, such that,
“Nothing … is to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the Human Rights Convention”—
amounts to very much. On the face of it, it would appear that the provisions of the Bill, as drafted, would lead to conflict with Article 6.
Lord Lester of Herne Hill
Is the noble Lord aware of a case I once did, Tinnelly and McElduff v UK, where there was a conclusive certificate of national security under our law which prevented these Northern Irish Catholics from having the merits of their religious discrimination claim heard at all when they were blacklisted? The Strasbourg court said that that was clearly contrary to the convention and therefore the national security certificate that had been cleared by the Minister and by the Northern Ireland courts, which said they had no alternative, was held to be in violation of the convention.
Lord Beecham
I am grateful to the noble Lord, who brings another example of precisely the same point made in the briefing that I referred to and underlines the apparent discrepancy between the evident intentions of Clause 11(5) and the reality which would appear to be applicable. In looking at these amendments I think that your Lordships’ House may wish, when we come to Report—because we will not be voting today—to support the thrust of these amendments, which seek to import into what is patently an unsatisfactory procedure at the moment evidence of balance and fairness which would leave the decision where it ought to be, in the hands of the judge who is dealing with these matters, assisted, we hope, by the special advocate presenting a case on behalf of the other party to the case.
As matters stand, it does not look as though the Bill adequately reflects these requirements or, indeed, the requirements of Article 6. I hope that the Government will look again at the implications of the situation as it is now presented, bearing in mind the widespread concerns expressed around all these issues by eminent Members of your Lordships’ House, particularly the noble Lord, Lord Carlile, who was very clear that the Bill, as currently drafted, does not adequately deal with the need for fairness through a proper existing procedure. I thought that he made that case very effectively—as indeed did other noble Lords, legally qualified and not legally qualified—raising deep concerns about how the Bill will operate in practice, bearing in mind, again, that many of us still have to be persuaded that there is a substantial issue here, given that we have yet to be shown cases in which damage has been done by the system which has prevailed hitherto.
Of course, when it comes to disclosure the Government still have the last resort of not proceeding with the case. That has a financial cost and it may have other costs, but it preserves the rationale for the Bill’s provisions in that it preserves the interests of national security. If the Government feel that national security has to be protected, they can effectively stop the case by settling it or, perhaps, striking it out.
Lord Butler of Brockwell
Does the noble Lord think that it is a demonstration of damage being done that the Government have been unable to defend themselves in such cases and have had to settle?
Lord Beecham
There cannot be two winners in these situations. It is certainly less than satisfactory that a case does not proceed to a final adjudication, and it may be that the Government are therefore, to some degree, a loser. However, the question is whether that consideration should take precedence over the rights of the individual, the other party to the case, to have a proper hearing and to put his side of the case. We have to make a choice, and the choice should be, “By all means let us preserve national security, if that is the ultimate requirement, but not at the expense of the other party, whose right to access to justice will have been obstructed”. That is the decision that we have to make. We have to do a balancing process ourselves, as legislators, and I hope that that is the line that we take.