Justice and Security Bill [HL]

Lord Carlile of Berriew Excerpts

Wednesday 11th July 2012 Lords Chamber

I do not anticipate a frequent recourse to CMPs. I expect advocates and judges to be vigilant in ensuring fairness, whether pursuant to Article 6 of the European convention, or otherwise. However, I accept that there may be rare occasions on which recourse to CMPs is necessary. Before such an exceptional process is undertaken, I suggest to the House that the PII procedure, which is well understood, should proceed as a CMP. Courts have shown flexibility in trying to devise methods to protect—

[Lord Carlile of Berriew]

I am very grateful to my noble friend for giving way, and for the great clarity with which he has opened this debate. However, will he deal with this question: why are PII proceedings less secretive than CMP proceedings?

[Lord Faulks]

The PII proceedings, which we attempt to define in this amendment, would not normally be secret. The process contains a number of different options for a judge in dealing with an application. It is conceivable that in the course of responding to the particular facts of a case a judge might decide that a certain part of the hearing, even under PII, might have to be under a CMP. However, the purpose of the amendment is not to impose a straightjacket on the procedure but to ensure that the PII procedure is gone through—with all its inherent safeguards—before moving on to CMPs, which are by definition closed material proceedings and therefore do not involve access to the litigants or to the open advocate.

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[Lord Pannick]

My Lords, I have added my name to Amendments 39 and 40. I am very grateful to the noble Lord, Lord Faulks, for introducing the amendment. I recognise that there may well be a need in some exceptional cases for a CMP or closed material procedure, but it seems to me that this should be a last rather than a first resort. My answer to the question put by the noble Lord, Lord Carlile, is that PII certainly maintains secrecy just as effectively as a closed material procedure. If it did not, then it would not be a satisfactory alternative. The advantage of PII is that it does not enable the judge in determining the substance of the case—a point made by the noble Lord, Lord Thomas of Gresford—to rely on material that is seen by only one party and not by the other party. The evidence that is admitted is seen by both sides in the case. My answer to the question posed by the noble and learned Lord, Lord Falconer of Thoroton, is this. If, as a result of the PII—

[Lord Carlile of Berriew]

I apologise for intervening again but this seems to be a very important point. I am not sure that the noble Lord, despite all his great distinction, is right in the answer he has just given.

In criminal cases, when a PII application is made, generally the defence knows absolutely nothing about that application and has seen absolutely no documentation underlying it. I have relevant professional experience in criminal cases; I do not have any relevant experience in civil cases so this in a spirit of genuine inquiry. Is the noble Lord saying that in civil cases where a PII application is made, the claimant will have seen the document for which the PII application has been made? If not, we have a problem, do we not?

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[Lord Thomas of Gresford]

I will speak to Amendments 42 and 47, which are grouped with the other amendments that have been spoken to. I acknowledge the assistance of the Bingham Centre for the Rule of Law in drafting my amendments.

The approach in the amendments introduced by the noble Lord, Lord Faulks, is to create a special, statutory public interest immunity procedure, limited to material sensitive to national security, which must be followed by the Secretary of State as a precursor to a closed material application. I consider that to be preferable to the clause as drafted but it is a bit of a straitjacket, as the noble and learned Lord, Lord Falconer, pointed out. It means that the judge would have to go through a series of hoops set out in Amendments 39 and 40 before he could proceed. I hope to suggest a different model that runs more with the grain of the Government’s proposals and is more flexible but achieves the safeguards that I am sure all noble Lords—except possibly my noble and learned friend the Minister—consider necessary.

The present position, as outlined already by other noble Lords, is that public interest immunity springs from a common-law basis, with its principles derived from a number of cases. I need not go into that. The Government’s approach in the Bill is to leave public interest immunity to the common law and not introduce a statutory procedure, but as an alternative to introduce statutory closed material procedures at the Secretary of State’s discretion for the protection of material sensitive to national security. All the Secretary of State need do is consider whether to make a PII application under Clause 6(5)—but he does not have to make such an application.

It is necessary to restate and hold in the forefront of our minds whenever we discuss this topic the essential distinction between the two applications. In a PII application, the judge weighs the material on Wiley principles and orders disclosure or partial disclosure where he determines that the public interest in the administration of justice outweighs the public interest in non-disclosure. But material that is not disclosed under PII—being, in the judge’s judgment, too sensitive —is not admissible and therefore plays no part in his determination of the case. Under CMPs, closed material is admissible even if it is not disclosed. Indeed, the Secretary of State may wish the secret information to be central to the judge’s determination. I am sorry to restate what has been said over and again but it is important to bear that in mind because it impacts on the amendments I am putting forward.

Therefore, if sensitive material in the hands of Secretary of State undermines his case or supports the the claimant’s case, it is in the Secretary of State’s interest to make a PII application and to persuade the judge not to disclose it or have it form any part of his determination. If, on the other hand, the Secretary of State is in possession of sensitive material which he wishes to rely on and which he wishes to be admissible—which he wishes the judge to take into account—it is in his interest to make application for closed material procedures. Remember, under the Bill it is entirely for the Secretary of State to determine which sort of application he makes.

The choice given to the Secretary of State by Clause 6(5) as to which procedure to follow gives him a significant litigation advantage over the claimant in two respects. First, it may deny to the claimant access to material in his favour when a PII application is made. Secondly, by the use of closed material procedures, if that choice is taken, it puts unchallengeable but admissible evidence in the Secretary of State’s favour before the judge for his determination of the issues. This consequence of Clause 6 is in direct conflict with the motivation of the Bill, as stated publicly by the Lord Chancellor—repeated in speeches and in the documentation that has been supplied to us—that this proposal in the Bill is not to protect secrets, because PII and closed material procedures equally protect secrets, but to make litigation fairer. Yet the proposal to make litigation fairer gives, as I say, a litigation advantage to the Secretary of State.

This brings me to Amendment 42. An astute litigator on behalf of the claimant should suspect that if the Secretary of State makes an application for public interest immunity, the chances are that the sensitive material which is withheld is in the claimant’s favour. The purpose of the amendment, like Amendment 41, is to permit any party to the proceedings to make a closed material application if he has reason to believe it would be in his interest to do so. That would go some way towards equality of arms.

The noble Lord, Lord Carlile, pointed out that in criminal proceedings, with which he and I are particularly familiar, very often a defendant will not know that an application has been made at all. Nothing may be said. I think, but I may be subject to correction, that in civil proceedings a claimant would know that a Secretary of State’s certificate had been issued to claim public interest immunity.

[Lord Carlile of Berriew]

We heard from the noble Lord, Lord Pannick, that in civil proceedings, as in criminal proceedings, there are certain circumstances in which one might know—there are categories set out in judicial decisions—but there are certainly cases in which one might not know, whether in civil or criminal proceedings. I am sure that that is right.

[Lord Thomas of Gresford]

That is a matter for clarification by people who know about it and we will look into that later.

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Constitutionally that is not the role of a Minister. Furthermore, my amendments narrow the material which may be subject to closed material procedures to the irreducible minimum. I hope that the noble and learned Lord, Lord Lloyd of Berwick, will regard it as a desirable policy end to have only the irreducible minimum of material subject to closed material procedures; and that the Government are not skewed by influences that may be around, so that the adversarial nature of British law becomes so much in favour of the Government as to make any semblance of a fair trial impossible. I believe that the amendments I am proposing with the assistance of the Bingham Centre for the Rule of Law are simpler, more flexible and yet contain the same safeguards as Amendments 39 and 40.

[Lord Carlile of Berriew]

My Lords, there are a few brave souls who are not lawyers still left in your Lordships’ House after 55 minutes of this debate. There are three to my right and I suspect that they are the ones who can recognise that there is quite a small pin with some lawyers dancing the rumba of closed material procedures on it and others doing the cha-cha-cha of PII. We owe it to them to give a comprehensible explanation of the difference and of how a proper outcome of this debate is reached. Given that, I suppose I can be forgiven for confusing the matter further by using two Latin phrases, as old lawyers like me tend to do. The first arises from hearing during this debate from the formidable duo of my noble friend Lord Lester and the noble Lord, Lord Pannick. I am not sure which way round they appear on the spine of the book on my bookshelf—whether it is Pannick and Lester or Lester and Pannick on human rights—but I suspect that age probably comes before beauty. I see the noble Lord, Lord Pannick, nodding in agreement. There is a danger of argumentum ad maiorem on any issue of this kind. Oh, dear. I give way to the older of the two.

[Lord Lester of Herne Hill]

I remind my noble friend that we are in the presence of the noble and learned Lord, Lord Woolf, who has banned Latin from use in courts. On this occasion it would be desirable if my noble friend spoke English and not some archaic antique language.

[Lord Carlile of Berriew]

The writ of the noble and learned Lord, Lord Woolf, certainly ran through the courts in those days, but I am not sure that the use of Latin has yet been banned in your Lordships’ House. I want to use what I regard as a very meaningful Latin phrase, which I read in the first administrative law textbook that I studied, de Smith’s Administrative Law, before Lester and Pannick reached the shelves. It was a seminal work and I remember the phrase “audi alteram partem” being an important part of what I learnt from that book. I am pleased to see the noble and learned Lord, Lord Woolf, nodding at least in recollection if nothing else.

Audi alteram partem is extremely important because it depicts that both sides should be heard wherever possible and it is presumed that both sides should be heard in a legal dispute. For those reasons, in shorthand, I support the succinctly moved amendment of my noble friend Lord Hodgson. For the reasons that he and my noble friend Lord Thomas of Gresford gave, it seems that there may be cases in which it is a perfectly legitimate tactic and it may be proved to be right in substance for a party other than the Government to apply for a closed material procedure—if CMPs are to survive this legislation.

I hope I am right in saying—and it was certainly evident from the way in which the amendment was moved by my noble friend Lord Faulks—that we are all trying to achieve the same thing with this group of amendments. I firmly believe that the draft legislation shows that the Government and my noble and learned friend on the Front Bench, the Advocate-General, are trying to achieve the same aim. The overriding objective, as we call it, is that civil proceedings should be decided justly and fairly for both sides. I therefore agree with the principle that for the overriding objective to be achieved the proceedings should be as transparent as possible and that hearings in secret in which both sides are not heard should be as rare as possible. I certainly agree with that part of what my wise and successful successor as independent reviewer of terrorism legislation, David Anderson QC, has said. I am a little puzzled as to why so many people seem to believe that PII is fairer than closed material procedures. My experience of PII is limited to criminal proceedings, but it is instructive.

In one case in which I was instructed—a lengthy police corruption case—it turned out that, unknown to me as leading counsel for a defendant, there had been a number of PII applications. Some two to three months into the case, the High Court judge trying it came into court and said: “I wish to hold a further PII hearing in relation to some documentation that I have seen to determine whether it should be disclosed to the defence”. He then retired into chambers with leading counsel for the prosecution, his two juniors and a solicitor from the Crown Prosecution Service. After a lengthy hiatus in which we drank a large number of cups of Nottingham Crown Court’s best coffee, the judge emerged in court and two redacted pieces of paper were revealed. They were rather important and my junior and I wondered why we had not been given these documents at the beginning of the trial. We felt that we should have been but, already many weeks into the trial, the prospects of the jury being discharged and the trial starting again were realistically zero. The same would apply in civil proceedings, where, as the noble Lord, Lord Pannick, has confirmed from his experience, which is different from mine, the same processes are followed. The public authority in question makes its application for PII, usually in secret, the other side—the claimant in civil proceedings—knows absolutely nothing about it, and a few weeks into the trial the judge may decide that he or she should review PII.

What the Government are offering through closed material procedures is not for both sides to be heard but, given the provision in this Bill for the appointment of special advocates, in reality it would become the norm for a special advocate to be appointed. Although not instructed by or on behalf of the claimant, the special advocate would represent the interests of the claimant. Having read a very large number of control order case transcripts, including a lot of closed transcripts, I happen to believe that special advocates have sold themselves rather short and that they were extremely successful, as results have shown, in a large number of control order cases. I was interested and encouraged to hear the noble and learned Lord, Lord Woolf, saying “Hear, hear!” as I made that statement.

Although one would not have a wholly transparent process, one would have a process in which highly skilled advocates, often leading counsel, would represent the interests of the litigants concerned. That looks to me much more like a transparent legal procedure. I do not think for one moment that these procedures, whichever we adopt, should become the norm. They should remain rare. I firmly believe that, although it is inevitable that in almost all cases a public authority will make the application, the decision that determines how the case progresses, if at all, should be made by a judge, having weighed up all the arguments placed before him or her. It is of course inevitable that the issue will be raised in 99 cases out of 100 by the public authority because the public authority is the custodian of national security and of secret material.

Although I can see grounds for amending the legislation, I remain unpersuaded that the cha-cha-cha is a more attractive dance than the rumba here. My noble friend wants to do a waltz, I think.

[Lord Lester of Herne Hill]

I would like to do a quick-step. Is my noble friend going to be sympathetic to Amendment 62 in order to improve his dance?

[Lord Carlile of Berriew]

I am sympathetic to any amendment which will improve the justice of decisions made. I am broadly sympathetic to Amendment 62. When I was independent reviewer of terrorism legislation, I frequently expressed the view that there should be stronger discussion between special advocates and those whose interests they represent. I remain of the view that the security services are over-sensitive, if not hyper-sensitive, about such communications. The short answer to my noble friend is yes.

I therefore invite the Minister to assist this Committee, particularly the non-lawyers here, by answering the fundamental question as to whether the Government have chosen a fairer procedure. Surely that is all we are trying to achieve. I say “that is all” but, if we achieve it, it will be a noble achievement indeed.

[Lord Pannick]

Will the noble Lord assist the Committee with why he thinks that so many special advocates, with all their experience, regard closed procedures as so fundamentally unfair?

[Lord Carlile of Berriew]

They have spoken for themselves and I have read what they have said. The answer is that I do not know. I simply do not agree with them. Each special advocate represents his or her own experience. No special advocate does more than one case at a time. If I have an advantage in this, it is one of observation over a period of years of the work of the body of special advocates.

I say to the noble Lord, Lord Pannick, that there are considerable improvements that can be made in the way in which special advocates receive and carry out their instructions. However, there is no doubt that they have been more effective than they diffidently appear to accept.