Justice and Security Bill [HL]

Lord Beecham Excerpts

Tuesday 17th July 2012 Lords Chamber

Moved by

[Lord Beecham]

67A: After Clause 8, insert the following new Clause—
“Independent review of closed material procedure
The Secretary of State shall ensure that an independent review is conducted into the impact of the provisions under Part 2, to conclude three years after the coming into force of this Act, and shall publish a report on the review to both Houses of Parliament.”

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[Lord Beecham]

My Lords, this amendment and the others in this group stem from the report of the Constitution Committee and representations from organisations such as Justice. The Constitution Committee records that my right honourable friend Sadiq Khan, the shadow Justice Minister, asked a question in the House of Commons about the number of cases in which a CMP had been adopted under the existing provisions, which relate to control orders and the like. The reply of the Minister, Mr Djanogly, was that there was no information, it had not been collated and it would be too expensive to provide such information. The Constitution Committee rightly points out that these are matters of considerable interest to the public and, indeed, to Parliament and such a record should be made available. It invites the House,

“to consider whether the Government should be required to maintain consolidated records”.

Amendment 67B looks to provide such information, as does Amendment 67A, again following the recommendation of the Constitution Committee and representations, in this case from Justice, that the Government should report on the impact of the provisions of the Bill. The noble Baroness, Lady Berridge, has a similar amendment, Amendment 88.

Amendment 67A talks of a three-year period because it seems sensible, given the suggestion that there are likely to be very few cases, to allow sufficient time to elapse to gauge whether that is right or not. It would perhaps be wrong to rely on a single year’s experience as the basis for a review. Three years is long enough, in my judgment. Justice suggests a five-year period, which seems to me to be too long, given the scale of the changes. I hope that the Government will accept that these amendments, which are of course tabled on the basis that we end up with a CMP provision, will facilitate a greater understanding of how the system works and allow consideration of modifications should any of the difficulties which some of us have canvassed today in Committee and on previous occasions be warranted. I hope that the Government will look benignly on these amendments: they are not in any way destructive and should allow a proper consideration of how matters progress should the legislation pass in something like its present form. I beg to move.

[Baroness Berridge]

My Lords, I shall speak to Amendment 88, which, as the noble Lord, Lord Beecham, has said, is in my name. I concur with much of his reasoning and concerns about the recording and reporting of these matters. The amendments would enable Parliament to monitor the use of these unusual court proceedings. I would be grateful if my noble friend would say whether the response given in the other place to the question from Mr Sadiq Khan still stands, as the Government have very helpfully agreed to compile a central database of closed material procedures for the use of special advocates. If the Government are able to compile that database for special advocates, could they not also do so for Parliament?

If the closed material procedures are granted by Parliament, it would be on the basis of there being a very small number of cases. This amendment would enable Parliament to monitor whether that is indeed the case. Unfortunately, things that are intended to be rare have a tendency to creep, as apparently Lord Williams of Mostyn assured your Lordships’ House in 1997 in relation to the introduction of SIAC. The closed material procedures are now used in a large number of statutory situations—I think about 14 different jurisdictions. I expect there will need to be some agreement as to how frequently a report is laid but it is important with such a closed system that as much information as possible comes into the public domain, particularly information that can be assessed by Parliament. Although not the subject of this amendment, the same argument applies to the use of closed material procedures generally, so that Parliament would know how often they are applied for, granted, appealed and, in particular, successfully appealed, as well as which government departments are making use of the procedures and under which legislative regime they are being used. I also believe that there could be useful comparative statistics on how often appeals are brought in jurisdictions where appeal is allowed on a matter of law alone compared to on a matter of fact, as in the civil proceedings considered under this Bill.

Amendment 88 adds the requirement for the independent reviewer of terrorism legislation to bring a report to Parliament, which I understand would be similar to the role of the independent reviewer in relation to control orders and now TPIMs. It could also perhaps provide a means for the independent reviewer to receive the continuing views of the special advocates, which have been such a concern to many people including the Lord Chancellor. Unless someone independent reads all these closed judgments in an area, I do not know how we will know if there are inconsistent decisions and perhaps cases that have been decided without knowledge of a previous precedent due to the fact that these are secret judgments. Some of that risk will of course now be averted by the new central database that I have mentioned, which will be available to special advocates. However, it will not be completely averted, in my view, due to the nature of the system and not in a way that Parliament can be assured of the integrity of the body of these decisions. The independent reviewer of terrorism legislation might even need a method of passing cases that he or she is concerned about to be reviewed by the court for the reasons I have outlined.

I believe it is very much in the Government’s interests to have as much information in the public domain and as much scrutiny as possible of a closed system. I also hope, along with the noble Lord, Lord Beecham, that there will be good news on Report on the principle behind this amendment.

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[Baroness Stowell of Beeston]

My Lords, I am grateful to the noble Lord, Lord Beecham, my noble friend Lady Berridge and other noble Lords who have contributed to this short debate. It raises some important issues about how an Act of Parliament, especially one such as this, is scrutinised after Royal Assent. I understand the intention behind the amendments, which is to ensure that effective mechanisms are in place for reviewing the operation of CMPs and other aspects of the Bill. I also understand, support and indeed share the objective of ensuring accountability of Government to Parliament, particularly in an area where we are moving towards new measures which are different and mark a significant step away from what has been routine until this point.

Amendment 67A, moved by the noble Lord, Lord Beecham, would require an independent review of the impact of the provisions under Part 2 three years after Royal Assent. It may be helpful to remind noble Lords that any Act has always been liable to some form of post-legislative review, whether by a parliamentary committee or internally within Government. Since March 2008, an additional and more systematic process has been in place. Normally, three to five years after Royal Assent, the responsible department must submit a memorandum to the relevant Commons departmental Select Committee. The memorandum will include a preliminary assessment of how the Act has worked out in practice, relative to objectives and benchmarks identified during the passage of the Bill. The Select Committee, or another committee, will then decide whether it wishes to conduct a fuller post-legislative inquiry into the Act. The process applies to all Acts receiving Royal Assent in or after 2005. This process already covers a requirement for a review after several years. Therefore, I think that the objective outlined in the amendment of the noble Lord, Lord Beecham, is already covered.

Amendment 67B and the first part of Amendment 88 seek respectively to introduce annual and quarterly reports on the operation of this part of the Act. The noble Lord, Lord Judd, made an important point. While it is important to have a process for calling the Government to account and for reviewing the operation of the Act and the CMP process, we need to be careful of the law of diminishing returns by introducing a process that is so systematic that over time it is no longer as impactful as it might otherwise be. What is important is that the Government collect the relevant data so that if a Select Committee or any parliamentarian wants to ask a question, or if there is a debate or a parliamentarian wishes to scrutinise the operation of CMPs, we are in a position to do so. My noble friend Lady Berridge referred to that point. During the process between now and Report, as we consider the implementation phase of the Bill, we will carefully consider how best to do that. I will certainly take on board the points made in the debate.

The second part of Amendment 88 seeks to add the review of the provisions in Part 2 of the Bill to the remit of the independent reviewer of terrorism legislation. I am concerned about how practical such a proposal may be to achieve its aims, given that the remit of the independent reviewer has already been extended on several occasions. His statutory responsibilities relate to the Terrorism Act 2000, Part 1 of the Terrorism Act 2006, the TPIM Act 2011 and the Terrorist Asset-Freezing (Temporary Provisions) Act 2010. Furthermore, the Protection of Freedoms Act, which came into force this year, requires that the independent reviewer or someone on his behalf undertakes a review of any detention of a terrorist suspect beyond the current statutory limit and if the Government intend to commence functions in the Coroners and Justice Act 2009 relating to the independent reviewer inspecting places of terrorist detention.

The TPIM Act is unique in that its measures are designed to restrict the behaviour and activities of individuals suspected of involvement in terrorism who, the Government argue, cannot be prosecuted or deported. This is why Parliament legislated for close post-legislative scrutiny. David Anderson QC indicated, when giving evidence to the Joint Committee on the Draft Detention of Terrorist Suspects (Temporary Extension) Bills, that his role has already increased and that there is a limit to how much one person can do. It is important that we avoid diluting the effectiveness of the role by overburdening it. Notwithstanding this, I recognise the valuable contribution that David Anderson QC has made to the debate about the need for CMPs. His reviewer functions for asset-freezing and TPIMs already include the use of CMPs. There is nothing to prevent Mr Anderson or any future post-holder being asked to undertake ad hoc reports into issues of wider national security relevance or being invited by Parliament to give his opinions. It is important that any such ad hoc report should not seek to provide oversight or review of the judiciary’s decisions on individual cases. That would not be appropriate.

My noble friend Lady Berridge asked about the database that is being made available to the special advocates. I can inform her that the closed database is to ensure that special advocates have access to judgments for legal precedent value. However, the database will contain sensitive information and will not be appropriate for disclosure generally to Parliament.

All that said, I hope that I have gone some way to reassuring the noble Lord, Lord Beecham, and other noble Lords that the measures currently in place are sufficient to ensure that the Act, if the Bill achieves Royal Assent, is properly scrutinised and that the department takes seriously its responsibility to ensure that we are in a position to be held accountable in the way that Parliament has every right to expect. On that basis, I hope that the noble Lord feels able to withdraw his amendment.

[Lord Beecham]

My Lords, if I am right, this is the first occasion on which the noble Baroness has responded to a justice debate. I welcome her to her new responsibilities. I wonder whether she is by any chance related to Lord Stowell, an eminent 18th century judge from Newcastle. He was the brother of the Tory Lord Chancellor, Lord Eldon—the most reactionary Lord Chancellor that the country has ever had. Perhaps she would enlighten me on her genealogy or, if she is not sure, look into it.

[Baroness Stowell of Beeston]

I will not detain the House. He is no relation but I know of his existence, which is why my title is Baroness Stowell of Beeston.

[Lord Butler of Brockwell]

Perhaps I may point out that he had a connection with the college to which the noble Lord, Lord Beecham, and I also have a connection.

[Lord Beecham]

As does the noble Lord, Lord Marks. I had the misfortune to sit beneath the portraits of both those distinguished judges at my school and my college. I could not escape them but I would not wish to escape the noble Baroness.

Despite these warm words, I am somewhat disappointed by the noble Baroness’s reply on the amendments. Amendment 67A seeks, in effect, to replicate the independent review process of the independent reviewer of terrorism legislation without adopting that individual, as the noble Baroness, Lady Berridge, suggested. Having said that, it would not be beyond the wit of government to appoint a second independent reviewer of terrorism legislation and allied matters if that were thought to be required. It is the independence of the review that is essential. Furthermore, the post-legislative review process is normally designed to take place after three to five years. Five years is too long. This is a rather different piece of legislation from most of that which would be reviewed. We are dealing with some fundamental rights and a fundamental change in the justice system. It deserves special consideration. I hope the Government will think again about that. The same really applies to Amendment 67B. It is important that there should be in the public domain regular checks on precisely what use is being made of these procedures. Concerns have been expressed in Committee today that, like Topsy, the use of these things may simply grow. The legislature needs to keep an eye on developments here. The assumption is that there will not be many. That is an assumption which needs to be tested regularly. A compilation of statistics on an annual basis should help that.

[Lord Hodgson of Astley Abbotts]

Does the noble Lord agree that the phrase “mission creep” could be made for this sort of thing? We just find it spreading out. Mission creep would be a most dangerous aspect of this legislation.

[Lord Beecham]

I concur with that view, hence the need for regular reporting, not just of the statistics. The next amendment I will move will deal with other aspects. There does not appear to be available in general an indication of how much use is being made of the process under the present regime. It will be even more important when we are looking at the new developments that the Bill proposes. I am somewhat disappointed with the reply. It may well be that we will have to return to these issues on Report. In the circumstances, I beg leave to withdraw the amendment.

Amendment 67A withdrawn.

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Moved by

[Lord Beecham]

67C: After Clause 8, insert the following new Clause—
“Open statements for closed judgments
Closed judgments must be accompanied by an open statement from the court, which shall include—
(a) the reasons for the closed material procedure;(b) any factors which would be particularly relevant in determining whether all or part of the closed judgment could be made open at a later date;(c) the duration of open hearings and closed hearings;(d) the number of witnesses heard in closed proceedings, and the nature of those witnesses;(e) the length of a closed judgment;(f) whether national security was an issue in the proceedings; and(g) the date at which the closed status of the judgment should be reviewed, which must be no later than five years from the date of the judgment.”

[Lord Beecham]

My Lords, this amendment was suggested effectively by Dr McNamara of the University of Reading, who is conducting a research project around—as he puts it—how different arms of the state control and manage information about terrorism and security. It is a project that has involved a great many government departments and individuals from government to police forces and the like. He suggested that it would be sensible, again given the important nature of the proposals in the Bill, to look at how the system is working in somewhat more detail than simply the numbers of cases we referred to in previous amendments. The thrust of this amendment is to require a judgment when it is made to give the reasons for the closed material procedure, such as national security, as well as the other factors that are listed in the amendment—I will not take up the time of the House by repeating them all.

The essence is to have a clear view of what is happening in individual cases and ultimately to make possible the availability of the status of the judgment. Paragraph (g) of the proposed new clause would give a date at which the status of the judgment should be reviewed—in other words it would create the possibility of opening up the material at some point. That would not be an absolute requirement. It would still be a matter for determination as to whether the material should be disclosed, but a time period would at least set the clock running for that possibility. In some cases it would not eventuate but in others it might be appropriate for the material to be disclosed. This would reinforce the acceptability if CMPs come into play because the public would have some assurance that ultimately consideration would be given to disclosing material. That may allay some of the fears that surround the issue. I beg to move.

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[Lord Wallace of Tankerness]

My Lords, there were three points. First, I understand my noble friend’s point about the availability of judgments that are closed to people who are not special advocates. That is a difficult problem that I cannot readily see a solution to, given that the very reason why they are closed judgments is because of the sensitive nature of the information in them the disclosure of which could be damaging to national security.

The second point is very much one of detail. Who would determine whether there was, in fact, no longer a national security consideration? Where would the responsibility lie? That is the very issue that I want to consider, because how that would be addressed does not readily present itself to me. I sought to indicate that there is an issue here. I am not pretending for a moment that there is an easy answer, but the issue is important to consider.

On the third point that my noble friend makes about consistency, the difficulty—perhaps it is a reality rather than a difficulty—is that every case will be dealt with on its own individual circumstances. What goes into an open judgment or a closed judgment may well be the result of representations, debate and argument before the judge by special advocates. In those circumstances, it is difficult to ensure that there is rigid consistency because that might inhibit more openness in circumstances where a special advocate makes a compelling case that particular material ought to be included in an open, rather than a closed, judgment. It may be the counsel of perfection, or of the impossible, to think that there would be consistency when we are dealing with circumstances that can differ considerably from case to case. I think it must be left to the argument presented by counsel on both sides—special advocates and counsel for the Government—to determine what a judge puts into open judgment and what is put into closed judgment.

I hope that with those words, the noble Lord, Lord Beecham, will consider withdrawing the amendment.

[Lord Beecham]

I am grateful to the noble and learned Lord for agreeing to give consideration to that particular aspect. There are two issues here. One is public confidence in the system, for which some information about the process—I am not talking about detailed information about the closed material itself—needs to be in the public domain. The second issue is that this should be done in a systematic way, perhaps by the equivalent of the 30-year rule for Cabinet papers and the like.

I am not suggesting for a moment that we should set out to prescribe a given period at this point, but at some point the option of disclosing material ought to be built into the system. This should not necessarily be with a particular time frame in mind, but be a process that is available to the Government of the day to determine, perhaps in conjunction with the courts, what information might be released and when. That is something that we might look at further on Report, in addition to the point that the Minister has agreed to take back. However, in the circumstances I beg leave to withdraw the amendment.

Amendment 67C withdrawn.

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[Lord Faulks]

My Lords, I share with noble Lords who have proposed this amendment the desire that there should be public confidence in the system. However, like the noble Lord, Lord Pannick, I do not think that this is the solution. It is true of course that there are circumstances in which it is desirable, if not essential, that one judge should hear one part of the proceedings and another should hear another part, but the question of it being desirable, as it were, to have separate judges is a different matter. In fact, there is quite a strong argument that there should be greater continuity. The days of having one judge hearing preliminary issues and summonses and then the matter moving on to another judge have to some extent been changed in the Commercial Court, the Technology and Construction Court and in many cases in the county courts, so that if possible there is the same judge with a grip on the case right from the beginning.

On the face of it there is considerable advantage to having continuity unless, of course, the process is going to result in injustice to the litigant. We are talking in the context of CMPs with a claimant who may feel that injustice is being done to him or her by virtue of the possibility of closed material provisions. All I can say is that if I were in the position of that claimant, I would much prefer the judge who first heard and no doubt scrutinised the application under Clause 6 to conduct the case throughout in order to make sure that there is fairness, to show the flexibility we discussed in the last session of this Committee, and to deal with what might arise in accordance with the guidance given by the Bill in such a way as to provide justice. Although I wholly understand what motivates the amendment, I fear that it is not going to achieve what it is intended to.

[Lord Beecham]

My Lords, as I said, I have a good deal of sympathy for the amendment proposed by the noble Lord, Lord Thomas of Gresford, and I am particularly seized of the argument of the noble Lord, Lord Marks. Ultimately it comes down to a question of the public perception of a situation where you have what appear to be secret trials at the behest of the Government of the day. That puts the case in a different category from other kinds of case where there is perhaps a lesser degree of public interest or concern about the nature of the proceedings as a whole.

Cases of this kind are distinguishable from the kind of case that the noble and learned Lord, Lord Woolf—another, if I may say, eminent Newcastle holder of high judicial office—referred to. There is a distinction to be made with cases where a judge can put matters out of his mind, and no doubt judges would be able to do so. However, I suspect that the public will be more concerned, to the degree that they are at all concerned about these things, in a case of this kind where we are talking in effect about closed procedures and what can be described loosely but not entirely inaccurately as secret trials.