Justice and Security Bill [HL]

Lord Butler of Brockwell Excerpts

Monday 23rd July 2012 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, I have a couple of extra concerns to add to what has already been said. The first is political. As I understand it, this Bill has been introduced on the express understanding of both parts of the coalition that coroners’ inquests would be excluded. I see my noble and learned friend nodding in agreement to that. However, the power that is included here would enable a future Secretary of State to take that away, either during the coalition Government or when the coalition ends. That would be a breach of faith, and we should not now be legislating in a way that makes that possible. It seems to me to be a condition of this Bill that under no circumstances is it to apply to coroners’ inquests, for all the reasons that the Joint Committee and everyone else put forward.

My second problem is that these are civil proceedings, as we are constantly being reminded, so they affect the civil rights and obligations of the parties to those proceedings. When we were enacting the Equality Bills, the question frequently arose as to whether it would be fair and reasonable for a Government to take a power to amend the exceptions to that legislation, which is civil, in order to affect the rights and freedoms of the individual. In introducing both the Equality Act 2006 and 2010, the previous Government took powers to amend, but only by means of removing exceptions, not by anything that would affect the fundamental balance of civil proceedings.

What troubles me is that if this Bill goes through without adequate safeguards of the kind we are pressing for, the use of the powers conferred to amend—to add tribunals by delegated legislation—will not be able to add further safeguards; the question will only be whether a new, further tribunal may be added. That will fundamentally affect, anyhow, the rights and liabilities of the parties to that tribunal.

To take the example in the employment field referred to by the noble Baroness, Lady Turner, one can add a whole new set of restrictions that would apply, for example, to civil litigation in the employment field. That is not something that any previous Government would have contemplated. These powers are not simply Henry VIII in analogy, but maybe a later generation of kings under the Stuarts.

[Lord Butler of Brockwell]

My Lords, it is clear from this debate that two types of issue arise with this group of amendments. One is the issue of whether this is an appropriate use of delegated powers. The other could be described as an issue of policy: whether it is right for the Government to keep open the possibility of adding other types of proceedings, particularly inquests, to those to which the procedures in this Bill are available.

On the first matter of whether this is an appropriate use of delegated powers, as the noble Lords, Lord Soley and Lord Marks, said, we had a long and agonised debate on this in the Delegated Powers Committee. I do not need to add to what the noble Lords said; they summarised the case very well. The reluctance of the Delegated Powers Committee is evident from the words of the conclusion that it reached, where it said that,

“we are reluctant—albeit with considerable misgivings—to recommend in terms that the delegation of powers in clause 11 is inappropriate”.

In other words, the committee was not prepared to go as far as to say that this use of delegated powers was inappropriate, but it thought that this should be a matter for the opinion of the House, and it thought also that the House should consider whether some constraints and limitations should be put on that. I hope that is a matter that the Government will consider.

On the question of policy, as to whether it is right to retain a power to extend the range of proceedings to which the powers in the Bill would be appropriate, I deal directly with the sensitive issue of inquests and coroners’ courts, because that is where the shoe would be most inclined to rub. The noble Lord, Lord Lester, suggested that the Government have declared a policy of excluding inquests because this was the agreement on both sides of the coalition. My impression, I must say, is that this conclusion was reached with greater enthusiasm by one party to the coalition than the other. Indeed, I have heard on one or two occasions the Secretary of State for Justice being asked why this conclusion was reached and he has not been able to give a very convincing answer, other than that this was the way it came out in discussion.

It is difficult to see why the logic that the Government have applied for closed proceedings in other cases should not be available in inquests. The logic is rather similar. It is not often that I disagree with the noble Baroness, Lady Williams of Crosby, and I entirely see her point that it would be very distressing for the public if the proceedings in an inquest could not be entirely in the open. However, again the question arises: is it more disturbing to the public that some proceedings should not be open, or that there is some material relevant to the conclusion of the inquest that is not brought to bear at all? This is the issue that arises with the rest of the Bill. It is quite difficult to see why the Government have reached this conclusion in one case and an opposite conclusion in the other.

[Lord Lester of Herne Hill]

My Lords, the noble Lord, Lord Butler of Brockwell, has great experience of ordinary majority Governments but none at all of coalition Governments. Will he accept that we are now in a different world from that which he ever experienced, and that when you have coalition Government, and the two parties to the coalition reach an agreement, if the coalition is to survive and prosper, that agreement must be followed, however difficult for one party or the other?

[Lord Butler of Brockwell]

My Lords, I am not denying for a moment that this is a conclusion of the coalition. It clearly is. I am just asking whether it is a very logical conclusion.

This is a serious point. There are, I believe, 30 inquests waiting to happen in Northern Ireland, which still have to be undertaken. It is difficult to foresee all the circumstances that might arise. We have got to allow for the possibility that there might be proceedings—inquests, but also perhaps other proceedings—where we would wish, the Government would wish, and perhaps the public would wish, that it would be better that secret information was taken into account than it was not taken into account at all.

For that reason, and with the same reluctance that the Delegated Powers Committee had, I come down, on balance, on keeping these provisions in the Bill. The Government have said they not going to use them, but I think it would be wise to keep the provisions in the Bill, in case circumstances arise in which we would regret their absence.

[Lord Beecham]

Would the noble Lord then turn his mind to the question of the procedure to be adopted in those cases, because that is what the amendments seek to do? Does he accept that it would be better to have a Bill taken quickly through the House than to have the affirmative procedure that would otherwise be the case, with all its limitations, to which noble Lords have referred?

[Lord Butler of Brockwell]

My Lords, that is a very reasonable point and I address it with diffidence. It is obviously a bigger and more difficult undertaking to launch rapidly an emergency Bill than to have an order. If the case were good enough, it would be better to have a procedure that could be undertaken rapidly than to have the need for urgent legislation. But I do not take a very strong stance on that matter.

[Baroness Berridge]

My Lords, I, too, am grateful for the clarification from the Minister in relation to the exclusion of inquests for this particular reason: I understand that, outside of Northern Ireland, there are currently only two inquests outstanding in England and Wales—the case of Azelle Rodney and that of Mark Duggan from last summer. I am certain that, in the first case, the proposal is to use the Tribunals and Inquiries Act to conduct that inquest, and I believe that that is also to be the suggestion in the Mark Duggan case. The reasoning behind that is, I believe, that intercept evidence is to be considered.

One can see that it is a small step in the argument to say, “We are using the Tribunals and Inquiries Act and intercept evidence so why not, because we can under this Bill as it stands, use intercept evidence in a closed material procedure?”. It is a small step of reasoning to move into closed material procedures in inquests.

In relation to the issue of procedure and having legislation that goes quickly through the House, one can understand the concerns that exist at the moment in relation to the Mark Duggan situation. In those instances, Parliament should reconsider the matter. We would need to consider all the impacts on public confidence and the outworkings of using a secret procedure in such a high-profile case and an inquest of that significance.

--- Later in debate ---

[Lord Falconer of Thoroton]

My Lords, the noble Baroness, Lady Manningham-Buller, has made a very powerful intervention—if that is what it was—on my speech. I just want to summarise where I had got to and finish my speech. I think that the issues for the Committee are as follows. First, is the Committee satisfied that there would be a significant loss of intelligence? I found the speech of the noble Baroness, Lady Manningham-Buller, very powerful in that respect. Secondly, if there were a significant loss of intelligence, what would the right course be? In my respectful submission, the right course would be to do the minimum required to protect the intelligence. It may well be that the minimum is the certification process. However, a question arises from that. The noble Baroness said that there are real secrets and I accept that. The real secrets may not only come from somebody else; they may be ones that we find ourselves. Finally, do not ask the courts to make these decisions. By all means subject them to judicial review but ultimately let the responsibility rest where it rests, which is with the Secretary of State, who should certify on the advice of the intelligence services.

[Lord Butler of Brockwell]

My Lords, I sense that it would be convenient for the Committee if we finished this debate before the dinner hour, so I shall confine myself to just two or three sentences. I think that the noble and learned Lord, Lord Falconer, has made all the points that I want to make, as has my noble friend Lady Manningham-Buller.

I am one of your Lordships’ representatives on the Intelligence and Security Committee. We visited the United States and our experience would endorse what Mr David Anderson said—that the flow of intelligence from the United States is being limited. I do not want to exaggerate this but the point is that the trust of the US has been weakened and we need to restore that trust. It matters not that the grounds for the breaking of that trust may not be justified. It has been diminished and, unless we can respect the control principle completely and unless other countries believe that information that they give to us will be protected in all circumstances, that trust cannot be restored. So I absolutely agree with the noble and learned Lord. We do not want to give the courts let-outs and we do not want to have a balance; if we have any exceptions, we will not be completely trusted. The responsibility must rest on the Secretary of State and only if that happens can other countries be assured that their confidences are safe with us.

[Lord Wallace of Tankerness]

My Lords, I thank all noble Lords who have contributed to this debate. Initially, my noble friend Lord Lester set up the framework of what a Norwich Pharmacal order is like and how it is sought. I am particularly grateful to the noble and learned Lord, Lord Falconer of Thoroton, for very clearly indicating some of the consequences of a Norwich Pharmacal order being granted, unlike what we were debating earlier in terms of civil proceedings in an action for damages where it is always open to the Government to settle or to abandon a case or a defence, rather than put information into the public domain. In this case, we are dealing with a court order requiring disclosure.

This is a difficult issue and one to which we have given considerable thought. The aim of a Norwich Pharmacal application is to force a third party who is mixed up in the suspected wrongdoing of another to disclose information that the claimant needs. In the case of sensitive information, this has usually been for another set of legal proceedings elsewhere, often overseas. It is an equitable remedy developed, as has been said, in the intellectual property sphere. However, since 2008 there have been no fewer than nine attempts to use this jurisdiction in relation to disclosure of sensitive material, such as secret intelligence, which either belongs to the United Kingdom Government or which our allies have shared with us.

As has been said, the Government do not have an option to withdraw from or seek to settle these proceedings. If a judge orders disclosure and a PII claim is unsuccessful in relation to the material, there is no option other than to release the sensitive material. We have had experience of the damage done to our interests of national security—it has been referred to in more than one contribution to this debate—in the dramatic effect of the Binyam Mohamed case on our intelligence-sharing relationship with the United States.

My noble friend Lord Lester and the noble Lord, Lord Pannick, said—it has been said in a number of discussions around this issue—that no national security information was disclosed in the Binyam Mohamed case; it had already been put into the public domain in the United States. The real concern arises out of the Court of Appeal ordering that seven paragraphs which had been redacted from the Divisional Court’s judgment and which contained a summary of US intelligence reporting should be restored to the judgment despite the existence of a PII certificate from the Foreign Secretary. A critical factor in the Court of Appeal’s reasoning was that a court in the United States had made findings of fact directly relevant to the content of that reporting.

The judge in the United States case did not put the contents, or a summary thereof, of the United States intelligence into the public domain; he made findings of fact based on allegations about Binyam Mohamed’s treatment made in another case that were not challenged by the US Government. Crucially, knowledge of the content of the United States intelligence reporting was not in the public domain until the publication of the redacted paragraphs following the order of the UK Court of Appeal. It is the means by which the UK had had the information that was the sensitive part and we believe that what has happened since, as reflected by a number of contributions to this debate, not least the contribution of the noble Lord, Lord Butler of Brockwell, has had a real effect on the flow of information.

The noble Baroness, Lady Manningham-Buller, made the point that, although very obviously any immediate life-threatening information in the hands of the United States intelligence services would be handed to us, very rarely does that happen. Obviously, if there was direct information about a possible terrorist attack tomorrow there is no doubt that they would share it with us, but as I understand the nature of the intelligence process, it may be one part of a jigsaw puzzle that does not necessarily mean anything to the United States intelligence people who would normally share it with us, but it might be a crucial part of the jigsaw puzzle for the United Kingdom intelligence services, because it might allow a picture to be made that was not possible before. It is the loss of that kind of material that would spark concern.

The Government have received clear signals that, if we are unable to safeguard material shared by foreign partners, we can expect the depth and breadth of sensitive material shared with us to reduce significantly. Each time a claim is made, our partners must confront the possibility of their secrets being disclosed, even if the case never reaches the point where a court orders disclosure. It is that concern that we seek to address.

Obviously, I recognise that efforts that have been made in framing these amendments to deal with the very difficult issues that we are grappling with. My noble friends Lord Lester and Lord Hodgson have tabled amendments that would restrict the clauses relating to Norwich Pharmacal relief to control principle material. By that we mean the important concept that in intelligence exchanges it is essential that the originator of the material remains in control of its handling and dissemination. My noble friends have rightly observed that, in explaining the Bill, the Government have highlighted the particular difficulty where individuals seek disclosure of material covered by the control principle, but the case for reform goes wider than that. This was acknowledged in the closing comments of the noble and learned Lord, Lord Falconer, and I think that I made reference to it on Second Reading. We must also protect intelligence gathered and generated by our own intelligence services as well. The lives and safety of intelligence service staff, as well as the safety of their sources and the effectiveness of the techniques that they use to gather information, could be jeopardised if information is disclosed. Preventing the disclosure of sensitive material produced through the capabilities of our own intelligence services is as important, I submit, to our national interest as protecting material that has been shared by our allies.

The intelligence services have a legal obligation to protect the safety of sources, including, where applicable, the duty under Article 2 of the European Convention on Human Rights. The secrecy of operations and investigations and the limit or the extent of the intelligence services’ coverage and capability are all of crucial importance and, if they were compromised, it would be harder to prevent terrorist attacks and protect public safety. Limiting the protection afforded by Clause 13 to control principle material would diminish the Government’s ability to protect domestically generated intelligence. We believe that this could have severe impacts on the direct activities of our intelligence services as well as on intelligence-sharing relationships.

On a practical level, limiting the definition to control principle material would be challenging. It is often difficult or unfeasible to separate control principle material from domestic material. For example, there may be correspondence between the intelligence services commenting on control principle material, or assessments based on a mix of domestic and foreign material, which it would be difficult to distinguish between. There are therefore inherent difficulties in identifying what qualifies as control principle material. As has been mentioned in the debate, Mr David Anderson QC discussed these practical difficulties in his recent evidence to the Joint Committee on Human Rights and the control principle itself is part of the broader principle that intelligence relationships should remain confidential.

The amendment in the name of my noble friend Lord Thomas of Gresford would remove the absolute exemption for intelligence service material and rely instead on a certificate-based process for sensitive material whose disclosure would be damaging to the interests of national security or international relations. In a commendably concise intervention, he asked what the justification for the absolute bar is. Unlike in other parts of government, the work of the intelligence services is inevitably covert and secret. We have heard arguments that there may well be cases that would fall under the exemption but where the material sought is not sensitive. The simple fact is that material from the intelligence services sought in Norwich Pharmacal applications is, by its nature, security-sensitive and its disclosure would damage the public interest in safeguarding national security. Applicants do not seek open-source information or other unclassified material from the intelligence services.

I note the point made by the noble and learned Lord, Lord Falconer, about the hypothetical case where he slips. The obvious thing to do there would be to sue the agency, which is the occupier. If it wished to bring in a third party, the contractors, it could do so and all the normal processes would flow from that. All the cases that have arisen under this have been dealing with applications in respect of very sensitive materials.