Lord Clarke of Nottingham
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Justice and Security Bill [Lords]
Lord Clarke of Nottingham Excerpts(11 years, 11 months ago)
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Minister without Portfolio (Mr Kenneth Clarke)
I beg to move, That the Bill be now read a Second time.
Since we first consulted on the Bill and during its passage through the House of Lords, it has aroused quite a bit of passion and debate among those interested in the subject. The first aim of my speech will be to try to satisfy the House that most of the passion and debate turns on the very important detail of the way in which the Bill’s processes will work. No doubt, the detail will be considered at great length in Committee rather than today. I believe that I can demonstrate that there is no real division on principle between the Government and most of the people who have debated this matter. The Government are just as committed as any other Member of either House of Parliament to the principles of justice being done in civil cases, the rule of law and the accountability of our intelligence agencies both to the courts and to Parliament. I believe that accountability will be improved by the Bill.
Our intelligence services comprise brave men and women, and we all realise they do essential work in helping to protect us against the great threats to this country. We also insist that they should respect and follow our values when carrying out their work, and they are properly accountable to the law and Parliament. I think the best people in the intelligence agencies are anxious to be able to demonstrate that, to protect their reputation and taxpayers’ money for claims made against them.
Sir Menzies Campbell (North East Fife) (LD)
Before my right hon. and learned Friend embarks on a more detailed consideration, I wonder whether he understands that the amendments made in the House of Lords have been regarded by many people as being entirely favourable and reasonable. Will he confirm whether Her Majesty’s Government will accept those amendments and will remain open to any further amendments, particularly those with the purpose of extending the discretion of the courts?
Mr Clarke
I shall come on to the detail a little later in my speech and I want to start, if I may, by reiterating the case in principle. I will deal with the amendments later, and we will accept some of them, but express our doubts about others. We will come back with a detailed response in Committee. I think the people who moved those amendments were pushing at an open door in terms of judicial discretion, but they were desperately anxious to dot every i and cross every t. In some cases, we are going to have to consider whether they put the right dots on the right i’s and crossed the right t’s. I shall deal with that. I quite understand that the Joint Committee on Human Rights came forward with recommendations that commanded wide support in the House of Lords—and, no doubt, in this House, too—but Ministers need to address them properly. If we wish to come back to some of them, we will explain in detail the reasons why.
Let me get under way. It was about a year ago when the House—
Dr Francis
Do I detect from the warm way in which the Minister responded and referred to the report of the Joint Committee on Human Rights that he will be minded to accept many of its recommendations?
Mr Clarke
Minded to? Certainly—we will accept some of them. I speak warmly of the Joint Committee because I do not believe it was pursuing objectives that differed from mine or those of my colleagues. I think it will probably fall to the Under-Secretary of State for the Home Department, my hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire) to explain in Committee why we are not wholly convinced that every one of the amendments is quite right, or even that some of them would have the effect that the Joint Committee proposed. I will not, however, get into that level of detail so early in a Second Reading speech, if I may be allowed not to do so.
We discussed the Green Paper about a year ago, and I recall that it was a comparatively non-controversial occasion. Such was the general satisfaction and understanding on all sides that I left the Chamber wondering whether I needed to have bothered to make an oral statement. Quite a lot has happened since then, but I trust it has not shifted the opinion of the Members who joined in the debate at that time, particularly that of the shadow Justice Secretary, the right hon. Member for Tooting (Sadiq Khan). I still strongly agree with what he said, which I shall quote:
“We need, as a matter of urgency, to bolster the safeguards and scrutiny mechanisms concerning issues of security and intelligence.”—[Official Report, 19 October 2011; Vol. 533, c. 901.]
I am glad to see the right hon. Gentleman nodding his head in response to his own quotation. I was glad to read in a recent interview in The Guardian that he still believes that, as he said:
“In two and a half years’ time, it could be me in that seat making that tough decision. So it is very important for ministers to have the opportunity to protect sources, to protect delicate operations and all the rest of it. They shouldn’t be jeopardised by a civil action.”
I will not comment on the right hon. Gentleman’s political optimism and ambition to occupy any seat at all, but he is certainly right, in my opinion, to identify a serious problem with the current arrangements. At the moment, total secrecy is all that happens to the sensitive intelligence information in far too many cases and no judicial judgment is pronounced on the merits of plaintiff versus defendant. I believe that the present system needs to be reformed urgently. That is why the principle of the Bill is certainly necessary.
In support of the need for change, let me remind the House of a letter written to The Times newspaper last month by a number of individuals for whom I personally have the greatest respect. The signatories included the former Lord Chief Justice, the noble and learned Lord Woolf; the former Home Secretary, Lord Reid; and my right hon. Friend Lord Mackay of Clashfern, a former Lord Chancellor. I am sure we all agree that all those people are totally committed to the rule of law and the principles of justice. In their letter they explained:
“In national security matters our legal system relies upon a procedure known as public interest immunity…Under PII, evidence which is deemed to be national security sensitive is excluded from the courtroom. The judge may not take it into account when coming to his or her judgment.”
This procedure, they say, is
“resulting in a damaging gap in the rule of law.”
They are right to say that.
In my opinion, it has become well nigh impossible for British judges to untangle, and adjudicate on, claims and counter-claims of alleged British involvement in the mistreatment of detainees. If we, as citizens, want to know whether the Security Service could challenge and rebut what is claimed against it, no judge can give us guidance as things stand. Some of the allegations of British involvement in the mistreatment of detainees are really serious, and I do not think that the system should continue to prevent judges from scrutinising the secret actions of the state in such cases.
Hazel Blears (Salford and Eccles) (Lab)
Not only will judges not have the full information, but when cases are settled, adverse inferences will inevitably be drawn about behaviour that may or may not have taken place, and that affects the reputation of our agencies. Is it not therefore essential that we can get to the heart of the matter, so that the agencies can at least put their case?
Mr David Davis (Haltemprice and Howden) (Con)
Will my right hon. and learned Friend give way—on that point?
Mr Clarke
Let me just explain. All of this is relevant.
Some of our critics appear to be arguing decisively that the status quo is somehow defensible and should continue, but I believe that that position is untenable now. It is simply not possible for a judge to hear these matters, and, as was pointed out by the right hon. Member for Salford and Eccles (Hazel Blears), all kinds of insinuations are made about cases in which it ought to be obvious to everyone that the intelligence agencies were in no position to call any evidence that would seriously address the issues.
The serious evidence that might be called and might be relevant—I am not commenting on the merits of any individual cases—might relate to the precise nature of the British intelligence agencies’ involvement in the issues concerned. What did our agents know about either an individual or an organisation at the time when the events being described were taking place? What collaboration was taking place between the British Government and partners in overseas agencies, and what information was being shared? Those are all very sensible questions, given the nature of some of the claims that have been made about the behaviour of British agents.
As I have told the House before, I do not think that any country in the world would tolerate a legal system in which our spies and our agents and their collaborators cheerily appeared in open court, in front of the parties, their lawyers and the press, and gave evidence on these matters. It would be exceedingly damaging. Public interest immunity, on which people now rely, has one obvious defect. If a Minister obtains it, that means that the material is entirely excluded from the court, and neither party can rely on it.
What continually happens, certainly in relation to defence evidence, is that—although there has been no proper hearing of all the evidence—the parties settle, the taxpayer pays up, claims are made which are damaging to the reputation of the service and no one knows whether or not they are justified, and we have to move on from there. I want us to reach a point at which cases are not being settled simply because our court procedures are not capable of allowing sensitive national security material to be heard in the few cases in which it is plainly relevant. It has always been obvious to me that what is needed in civil actions of this kind is the very limited use, in exceptional cases, of the closed procedures that were created by the last Government, which would enable a High Court judge to consider all the evidence from both sides, but to do so in necessarily closed conditions if national security was at risk.
Mr Andrew Tyrie (Chichester) (Con)
What inference does my right hon. and learned Friend think the public will draw if the Government win a case involving the closed material procedure in which the other party has had no chance to see or challenge the evidence—secret evidence—that the Government have introduced in support of that case?
Mr Clarke
The inference I would draw is that at least a judge, doing the best that he or she can, has had a chance to consider the evidence, and has delivered a judgment. If the judge is not allowed to consider the evidence, obviously no useful judgment can be pronounced at the end of the case. Of course it would be very much better if the evidence were given in an open procedure—in normal cases, the openness of justice is one of the proudest boasts of our system—but in cases in which national security will be jeopardised if evidence is given openly, it must be ensured that the evidence can be given in the best possible circumstances in the light of the obvious limitations of the case.
British judges are quite capable of deciding whether or not national security is involved. British judges do not need us to lecture them on the rule of law and the duty to be impartial between the parties. British judges will want to hear evidence openly if they think that that can possibly be practicable. British judges will be able to judge—they do it all the time—the weight to be given to evidence. Once the judges discover who was the source of the information, people can be challenged about the reliability of that source. Of course the system is not ideal—if we could only persuade all the country’s enemies to close their ears, there could be a perfectly ordinary single-action trial and we could hear everything—but I believe that the Bill will move us from what is currently a hopeless position to a better position that will allow us to hear the judgment of a judge in appropriate cases.
Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)
Is the right hon. and learned Gentleman aware of a criminal trial that took place some years ago in Caernarfon Crown court in north Wales, involving the damage to second homes, in which MI5 officers gave evidence behind a screen? Their anonymity was not compromised, and nor were the interests of the state.
Mr Clarke
Nothing in the Bill will affect the criminal law. No one will be prosecuted on the basis of secret evidence. However, there are plenty of cases—for instance, those involving MI5 or involving victims of certain types, such as vulnerable victims—in which it is proper to screen witnesses from public view, or otherwise protect them. The Bill, however, has nothing whatever to do with criminal cases.
The purpose of closed procedures is not just to ensure that no one can see what the agent looks like; there are some cases in which we cannot let people know what the agent was doing. The plaintiff may have been compromised as a result of terrorist or other activity, and he and his friends may be dying to know how they were caught. What were the British agents doing that put them on to it? They want to know who shopped them, and that will make things very difficult for a person who they come to suspect is the source of the material that is emerging. As I think everyone knows perfectly well, it is not possible to share that information with the parties in each and every case of this kind. However, while some people might consider it satisfactory to say “Well, in those cases the Government never defend themselves and we just pay millions of pounds”, I really do not think that we need tolerate that situation any longer.
Dr Francis
Given what he said earlier about closed material procedures, how would the right hon. and learned Gentleman respond to what Lord Kerr said recently in the Supreme Court? He said:
“The central fallacy of the argument”—
the Government’s argument, that is—
“lies in the unspoken assumption that, because the judge sees everything, he is bound to be in a better position to reach a fair result. That assumption is misplaced. To be truly valuable, evidence must be capable of withstanding challenge.”
Mr Clarke
I was intending to return to the details of closed material procedures later. We could easily trade quotations, because various judges and legal authorities have expressed different views.
Closed material procedures sometimes achieve success. We have them now—the previous Government introduced them—and as I shall say later, as I should save it until I get to the relevant part of my speech, there are cases in which the special advocates have overturned the Government’s case. The most well known case is that of Abu Qatada, who won in a closed material procedure before a British judge only about a month ago—
Mr Clarke
Of course it is being appealed, but that does not alter my point. Depending on which side one is on, it is no good saying that we cannot have closed material procedures if the wrong side is going to win. In that case, the Government lost and Abu Qatada won using a special advocate and a closed material procedure.
Mr David Davis
On exactly that point, my right hon. and learned Friend—and he is my friend—said that these proceedings were created under the Labour Government. They were, and there are now 69 special advocates, 32 of whom are experienced in closed material procedures. The vast majority of them—nearly all of them—oppose the Bill as they think PII works better than the procedure they have been operating for the past few years. Why does he think that is?
Mr Clarke
The special advocates surprised me with the ferocity of the evidence they provided. They start from the side of the argument that challenges the security services and is suspicious of what goes on, and judges have told me—some have said this publicly—that they underrate their effectiveness in such actions. They are used to practising the present law and I assume that their position is that the present law is perfectly all right and that they wish to continue with it. I am surprised by the adherence to PII, which has not hitherto been evident.
Let me give the example of another case to show that special advocates can successfully challenge the evidence put forward in closed proceedings by claimants. Ekaterina Zatuliveter, the Russian girlfriend of a Liberal Democrat Member of Parliament, won her deportation case after a closed hearing in which a special advocate challenged the argument that she was a threat to national security and should be deported. It is simply not the case that in closed procedures it is impossible to challenge these points. Such cases are comparatively new, as no one dreamed we would have such litigation until 10 or 15 years ago.
The claims are getting steadily more numerous as we have an attractive jurisdiction in which the person against whom one makes allegations will probably not be able to call any evidence and one will be paid millions of pounds. The best way forward is the one that has been successfully used in the two cases I have already cited, which is, despite our very limited experience, having closed proceedings and special advocates. It is less than ideal, but it is justice, not secrecy. Secrecy is what we have at the moment, with an uncertain and debatable outcome in all these cases.
Mr Jack Straw (Blackburn) (Lab)
The right hon. and learned Gentleman is correct to say, of course, that the previous Labour Administration introduced closed material proceedings in 1997, with support from all parties, as I recall. They have worked. Will he confirm that in at least seven of more than 30 Special Immigration Appeals Commission cases since the beginning of 2007, including the two he mentioned, the court has found against the Government and in favour of the potential deportee?
Mr Clarke
It was he, as Home Secretary, who introduced them. They arose partly at the behest of human rights lobbyists who are now vehemently opposing the Bill. It was the intervention of human rights activists in the case of Chahal in the late 1990s that saw the system of closed hearings develop, but some of the same people are now arguing that closed material proceedings put the Government above the rule of law.
As I have already said and as the right hon. Gentleman has with authority confirmed, people have been successful in fighting the Government in these civil actions under the closed material proceedings, as the number of claims goes—
Sir Alan Beith
My right hon. and learned Friend referred to the ability of the special advocate to challenge the evidence. Lord Kerr, in the remarks quoted earlier, talked about gisting and whether it was possible for the special advocate to confirm or correct with the other party whether he was in a particular place at a particular time, because that had come up in the evidence. We need to consider a little more carefully that ability to check back with the person who would normally be instructing the advocate but cannot because he is a special advocate.
Mr Leigh
My right hon. Friend is very generous in giving way and I understand the dilemma he faces, but is it not a fundamental principle of British jurisprudence, defended by this House for 500 years, that a defendant should have sight of the evidence used against him that might affect his liberty?
Mr Clarke
In a criminal case, that is so. That is why we cannot prosecute some people we really should, because there is no way to reveal the evidence against them—if it cannot be revealed to a judge and a jury, he is untouchable under the criminal law. We are talking about civil actions, sometimes involving people with tenuous connections with this country who have come to this country and sought damages from a British court for what they say is the misbehaviour of the intelligence agencies of the Government. I have tried to explain why it is impossible to follow the normal and desirable rules of civil justice and hear it all in the open. We must find some way in which these cases can be resolved by a judge in a way that is consistent with our principles of justice without at the same time jeopardising national security. That is the straightforward dilemma.
Robert Neill
Does my right hon. and learned Friend agree that although the proposed system is not perfect and never can be in litigation, it is surely preferable to have that than a system where an ex parte application for PII can be made without the defendant having any notice of any kind and without anybody, not even a special advocate, being able to test the material?
Mr Clarke
I keep giving way one last time, so, with apologies to my hon. Friend, let me turn to what I think is the subject matter of the serious debate that has been taking place since we consulted on the Green Paper.
It was our intention from the start to consult on the Green Paper. As what we are doing goes to the fundamentals of our legal system and our rule of law, we actively sought the widest possible support for what we are doing. Even before the Bill was introduced and before it went through the Lords, we narrowed its scope to make quite sure that CMPs could be made available only when disclosure of the material would be damaging to the interests of national security. Green Paper language that slightly implied that the police, Customs and Excise and all sorts of other people might start invoking them has gone completely away. We removed the Secretary of State’s power to extend the scope of the Bill by order, and excluded inquests after a campaign led by the Daily Mail got widespread support in this House. As I have already said, we never even contemplated that our proposals should cover criminal cases.
We also conceded—this is the key point, which I think we are still debating with most of the critics—very early on, after publishing the Green Paper, that the decision whether to allow a closed material procedure or not should be a matter for the judge and never for the Minister. That is an important principle and it is what most of the arguments, even about the JCHR’s amendments, are all about. We have all, I hope, now agreed that it is a judge’s decision whether or not to hold closed procedures. The question is how far we need to keep amending the Bill to clarify this and how we avoid unnecessary consequences if we overdo it. I shall return to that.
That is what most of the debate was about in the House of Lords and it is the point of the JCHR’s report. When it came to a Division in the House of Lords on the principle of closed material procedures, the Government had an enormous majority. The Labour party did not oppose the principles of CMP, even though it was a Back-Bench Labour amendment which the other place voted down. I trust that the Front-Bench Labour team and the right hon. Member for Tooting continue to be of that opinion. Unless his undoubted radical left-wing instincts have got the better of him, I do not think that is the position of any party in this House.
The concern of the House of Lords and of the JCHR was that the judge should have a real and substantive discretion about whether a CMP is necessary in any case. Many Members of the upper House made their support for CMPs contingent on changes being made to increase judicial discretion and ensure that it was clear on the face of the Bill that CMPs would be used only for a very small category of exceptional cases.
I begin by making it clear on behalf of the Government that I agree that the judge should have discretion. I agree that we should be talking about a small number of cases where any other process is impossible and it is necessary for it to be handled in this way. A strong and compelling case was made by those who argued that we ought to trust our judges to decide the right way to try the issues in any particular case. I agree. The debate—I suspect it will be the same debate today as it was in the House of Lords—starts from the fact that the Government’s case is that the Bill as it stood already accepted that principle. As we were defeated, we will consider what more we can do by way of reassurance. People are deeply suspicious of anything in this area and they are convinced that, despite what we put in the Bill, the judge will somehow be inhibited by what the Government propose to do.
Our judges are among the finest in the world. They are staunch defenders of the rule of law, and they have shown time and again that they can be trusted not to endanger the national security of this country. I know that they can be—
Mr William Cash (Stone) (Con)
Will my right hon. and learned Friend give way?
Mr Cash
It is on the Law Lords themselves in the past and now the Supreme Court. Does my right hon. and learned Friend accept that there are divisions of opinion even at the highest level about the extent to which such decisions should ultimately be made by the most senior judges or Parliament, and that there are very senior judges who take the view that Parliament, not the judges, should decide these questions?
Mr Clarke
There are other occasions on which we shall no doubt debate parliamentary override of the courts of law. I realise that that is a matter dear to my hon. Friend’s heart. In the Duma it would be carried nem. con. The Russian Government would be utterly delighted to hear the principle of parliamentary override brought into our legal system in this country. I think the House of Commons should be hesitant. There may be senior judges who think that that should apply. The process that we are applying is different. The Government’s case is based on trusting the judges to use the discretion sensibly. That is what I think we should do, but of course I address seriously the views that were put forward.
I want to make it clear, to go back to what the right hon. and learned Member for North East Fife (Sir Menzies Campbell) asked me earlier, that the Government will not seek to overturn the most important amendment—the most important, in my opinion—made by the House of Lords that the court “may” rather than “must” order a closed material procedure upon an application. I do not see how we could give a wider discretion than that.
We will also accept that any party, not just the Government, should be able to ask for a closed material procedure. I think it highly unlikely that any plaintiff will be in any situation to start arguing that he wants to protect national security, but if people want that, they can have it. More importantly, the court of its own volition should be able to order a closed material procedure.
A further series of amendments were made which we still need to look at more closely. We have time to look at them closely and the others will be addressed by the Under-Secretary of State for the Home Department, my hon. Friend the Member for Old Bexley and Sidcup in Committee. We are not against the principle, but we are not sure that the amendments add anything. I shall give the reasons in a moment.
Joan Walley (Stoke-on-Trent North) (Lab)
I am grateful for the opportunity to question the Minister. My main concern is where the discretion is being applied. Can the right hon. and learned Gentleman clarify for me the position of families of armed forces personnel who have been illegally killed, or people who have been injured and wish to take out court cases? How will the new arrangements apply to them, and how will it be possible to ensure transparency in the courts?
Mr Clarke
I answered that in the written question that the hon. Lady put to me. She is welcome to put an oral question to me at Cabinet Office questions, now that she has discovered who is handling the Bill. Most such Ministry of Defence cases do not give rise to national security considerations, and the Ministry of Defence does not expect to start invoking closed material proceedings. One cannot anticipate it, but it is possible that the circumstances of the tragic death of a soldier might involve some highly secret operation, and then the situation might arise. We have not had problems on this front so far and the expectation is that it need not arise. If it were to arise, there would still be the judgment of the judge and a decision in the case.
I am trying to think of examples that could conceivably arise. If a soldier was killed and it was alleged that that was the result of some actionable negligence, which apparently we are now going to allow people to argue in our courts, and that took place in some highly secret operation in some unlikely part of the world, I cannot rule out a CMP application being made. The Ministry of Defence is more robust than I am. I am told that it does not think that most of these cases involve national security at all.
Jeremy Corbyn (Islington North) (Lab)
In reply to my hon. Friend the Member for Stoke-on-Trent North (Joan Walley), the Minister outlined extreme circumstances of an injury to a British soldier. Would the same process apply if there was embarrassment over arms sales to a particular country, where those sold arms had been used to deny the human rights of many others, against the policies and wishes of this country, and there was a desire not to make that too public?
Mr Clarke
It sounds as though it could be criminal action in that case, which the provision would not apply to. It would be for the judge to decide whether what is being protected is embarrassment for the Government or national security and the interests of the nation. We can all start dreaming up—I did it myself a moment ago—fanciful cases where such a situation might arise. The judge would have to decide whether national security was at risk. It is a two-stage process, which I will not argue at length today, but what happens is that the judge can allow the closed material proceeding. At the end of the closed material proceeding he can revoke it, he can say that the proceedings should be gisted, he can say that the documents should all go in, but perhaps redacted in key places. There is wide discretion before he goes back to the open session. If a Government at some time want a closed hearing, they will get it only if they can satisfy the judge that national security is at risk.
Pete Wishart (Perth and North Perthshire) (SNP)
The right hon. and learned Gentleman will have seen the strongly worded letter from the Cabinet Secretary for Justice in the Scottish Government outlining his serious concerns about the Bill. The Scottish Government have made it clear that they want nothing to do with it as it applies to their jurisdiction. Will the Minister ensure that he respects their position?
Mr Clarke
Constitutionally, I will respect the Scottish Government’s position. If they think that Scots are not ready for decisions in these cases and wish everything to remain shrouded in secrecy and mystery, so be it. That is a matter for the Scottish Government. It seems to me that would be the result if they will not move with what I think is the obvious response to the needs of recent cases.
To return to the detailed amendments, let me explain where my reservations come from. The House of Lords decided to get carried away with the discretion. I have already accepted the widest discretion, but they then wanted to start setting out in the legislation factors that the judge ought to take into account. We are considering that, and I can assure Members that there will be a response in Committee. The Lords obviously do not trust judges as much as I do, because they wish to start setting out factors. However, if we set out factors in the legislation, they must be the right ones. If they are not, they can give rise to other problems.
For example, some of the amendments made in the House of Lords—I am leaving aside whether some of them are necessary—would require the judge to consider and exhaust alternatives to closed material proceedings in every case in order to prove that the case could not be tried in any other way. It sounds attractive, but in some cases it would be obvious to the judge from the start that a closed material procedure was necessary. As the independent reviewer of terrorism litigation, David Anderson, explained to the Joint Committee on Human Rights,
“there is no point in banging your head against a brick wall… if the exercise is plainly going to be futile.”
In the Guantanamo Bay cases, which provoked the need to address the law and bring forward this reform, the court would have had to consider about a quarter of a million documents before determining the PII application and moving to a CMP. It would have had to consider a quarter of a million documents before moving beyond a preliminary issue. When I was Home Secretary I certainly issued PII certificates for intelligence material. In the arms to Iraq inquiry, I am glad to say that the judge confirmed that I had done what I was supposed to do: I had read every document—they were brought to me in boxes and put on the floor and required a whole day to consider. The Guantanamo cases would have required a full-time Minister to do nothing but wade through the PII certificates for months and months before the application could be made and further progress could take place. In some cases, the delay of going through that process could have detrimental impacts on other people affected by the issues in the case awaiting judgment.
Equally, all parties might consent to a closed material procedure. If they consent, should the judge still be required to go through the time-consuming PII process? In the Maya Evans case, all parties consented to a closed material procedure as the only way to try the issues. The ruling in that judicial review case, which was with special advocates, changed Government policy on detentions in Afghanistan, directly affecting ongoing Government actions. Delays in that case to consider alternatives to closed material procedures could have meant that more individuals were exposed abroad to a policy that the court ultimately concluded was unlawful.
I will give an indication of why I will not give a blanket assurance that we will accept all the House of Lords amendments. I do not think that the problems were properly considered, and we will bring forward the products of our thinking in Committee. As I have said, we continue to debate the powers the judge should have once a closed material procedure has been granted. Under the Bill, the court will have strong powers to require gisting, redaction and summaries. In particular, the Bill sets out—it is probably unnecessary—that to ensure a fair trial under article 6 of the European convention on human rights, the court can order disclosure of material notwithstanding the damage that would be caused to national security. In that situation, in order to disclose, the Government would have the opportunity, as they currently do under PII, to seek to bring an end to proceedings, or an aspect of proceedings, in order to avoid damage to national security. If the Government do not disclose material or elect not to provide a summary of material, the court can order the Government not to rely on it or to make concession or such other steps as the court might require.
In brief, the Bill leaves it to the judge to decide what is necessary in any particular case, rather than seeking to impose disclosure requirements or to fetter the judge’s discretion in deciding whether to have a closed material procedure. I think that we should reflect on that in Committee. Let us not go into Committee with everyone saying, “What the Joint Committee on Human Rights has said is necessarily right and we will support the Bill so long as we sign up to that.” I think that some of the JCHR amendments raise serious issues that should be debated properly in this House and which the Government must be allowed to exercise their judgment on before reaching a final decision.
Guy Opperman (Hexham) (Con)
I conducted in excess of a dozen PII trials as a criminal barrister. Does the Minister accept that there is a fundamental difference between what he is proposing and the procedures under PII?
Mr Clarke
Yes, because we want a process whereby the judge can hear the evidence of the intelligence agencies in a closed—secret, if one likes—process, and that is not the purpose of PII. PII is a very old process that has developed over the years from simple beginnings, and I imagine that in the early cases—before my time—it was probably rather straightforward: if a Minister said he wanted public interest immunity, it was granted. The findings of Lord Justice Scott in the arms to Iraq inquiry —not at my expense, I am glad to say—rather upset that approach. PII is of course used flexibly in proper cases because judges and lawyers all want to hear evidence in open court whenever possible, but I think that we need to update all this. We are not abolishing public interest immunity, but I think that in many cases extending closed material procedures, which is what we are proposing, would be an altogether more sensible way of getting a proper judgment in the case.
Let me turn to the provisions of the Norwich Pharmacal jurisdiction.
Hazel Blears
I want to tease out the right hon. and learned Gentleman’s view on the balancing test, which is part of the House of Lords amendments. At the moment there is a test stating that the judge, when deciding whether closed material procedures can be applied for, has to balance the degree of harm to the interests of national security with the public interest in the fair and open administration of justice. Balancing tests are notoriously difficult. One of the main problems with the Chahal case, which led to significant issues for this country’s national security, was whether the balancing test was in the right place, and most of us felt that it was not. If we are to have a balancing test in the legislation, it is in the part about whether proceedings are suitable; it is not in the part about when an application can be made. We need some clarity on the Government’s position with regard to the balancing test, because clearly the interests of national security are not always equivalent to the interests of an open proceeding, and that is a difficult balance to strike.
Mr Clarke
The balance is indeed difficult to draw. We have debated the balancing test on various occasions and in the past I have rather resisted it because it gives rise to the possibility of the judge saying, “Oh yes, there is a risk to national security. What a pity, never mind. I wish open justice to be done, so let’s take a chance with national security.” That is probably a somewhat broad-brush piece of opposition, and we are reflecting on the issue. The proper response to the right hon. Lady’s entirely sensible and pertinent question is probably best given in Committee, when we will have had more time to decide the position.
The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire)
indicated assent.
Mr Clarke
My hon. Friend is nodding; he will be presenting our reactions.
“Norwich Pharmacal” is the phrase used by lawyers to describe a process that grew up in the sphere of intellectual property law, in which someone is enabled to apply for the disclosure of evidence—documents, usually—relevant to a claim that they are making. It is used to force a third party who is mixed up, however innocently, in suspected wrongdoing, to disclose information that a claimant feels may be relevant to a case that they are bringing in some other jurisdiction, usually abroad.
In 2008, as a result of ingenious arguments, the Norwich Pharmacal principle was extended to national security law. The purpose of proceedings under the principle now is for people involved in a legal process of some kind, usually overseas, seeking to obtain disclosure of intelligence material in the hands of the British Government.
As the purpose of the proceedings is only disclosure—no other judgment is being sought—the Government do not have the option to withdraw from or settle proceedings; if the judge orders disclosure, there is no option but for the Government to release the secret intelligence. That has given rise to understandable fears that if a person shares information with the British Government’s agencies, British judges have the power to order the release of some of it and that person cannot be certain of being able to resist that.
There is no point in my setting out obvious platitudes about the nature of intelligence work. If intelligence agencies are not able to guarantee to their sources, be they friendly overseas Governments or agents, that they can keep secrets, people will not share so much information with them. Lives will literally be at risk in some cases as will international co-operation on such vital issues as torture prevention and human rights.
Mark Field
I thank my right hon. and learned Friend for giving way. I entirely agree; he has admirably put forward the concerns about Norwich Pharmacal and the historical accident that has arisen as far as national security cases are concerned. Was he not tempted, therefore, simply to exclude Norwich Pharmacal matters from national security—in other words, make it absolutely clear through Parliament that the Norwich Pharmacal arrangements should be regarded narrowly as being available only in intellectual property cases and should not apply to national security matters? Is he not taking us down a rather more convoluted route in the Bill?
Mr Clarke
The practical effect of the Bill is exactly as my hon. Friend recommends, although it may have been drafted with a few too many provisos and provisions because of the deep suspicion with which these things are regarded. Essentially, however, we do not think that Norwich Pharmacal should apply to intelligence material provided in confidence to the British security services.
I will not take too long on this because the argument is perfectly straightforward, but I want to tell the House that these are not false fears. Over the past year, we have picked up concerns from human agents. They have always been concerned about the degree to which their relationships can be protected, of course, but they are now becoming really concerned about disclosure to the British courts. Sir Daniel Bethlehem, a former legal adviser to the Foreign Office, told the Joint Committee on Human Rights that the flow of intelligence from the United States was being limited. He said that he did not want to exaggerate, but the point was that the trust of the United States had been weakened and that trust needed to be restored.[Official Report, 8 January 2013, Vol. 556, c. 3MC.]
Arguments tend to break out as to whether agents have any reason to be fearful, but that is not totally the point. As long as, as a result of hearing about the extraordinary process called Norwich Pharmacal, other intelligence agencies and our agents think that there is always a risk of disclosure by the British courts, the damage is done. To follow the point made by my hon. Friend the Member for Cities of London and Westminster (Mark Field), what on earth are we running that risk for?
Sir Malcolm Rifkind (Kensington) (Con)
In support of what my right hon. and learned Friend has just said, I should say that the Intelligence and Security Committee has taken extensive evidence on the matter in both the United Kingdom and Washington in respect of the likelihood or actuality of damage to very important information that prevents or might prevent terrorist incidents in the United Kingdom. We are satisfied that my right hon. and learned Friend’s point is entirely valid and that the House should take it into account.
Mr Clarke
I close my case, as they say; there is no need for me to carry on addressing the House about Norwich Pharmacal. We wait to hear what points might be raised about it.
I move on to part 1 of the Bill, to which I think the House should have much more regard. It deals with the important issue of parliamentary oversight of our security and intelligence agencies. I suggest to both sides of the House that if we wish to be reassured about the accountability of our security services and really try to guarantee to ourselves that they are not misbehaving, we should look to stronger parliamentary oversight as well as to more accountability to the courts.
It is time to put the Intelligence and Security Committee, chaired by my right hon. and learned Friend, on a much stronger footing and to enhance its independence to strengthen the valuable work it has done so far. We have to give Parliament more effective oversight of the intelligence and security agencies.
The ISC operates within arrangements established by Parliament in 1994, but the nature of the Committee’s work has changed dramatically. In the past 18 years, particularly since 9/11, the public profile, budgets and operational demands on the agencies have all significantly increased, but there has been no change in the statutory arrangements for oversight. In the past, the ISC has overseen operational matters but has done so relatively infrequently and generally at the direct invitation of the Prime Minister. The ISC has no statutory powers to oversee such matters. Its statutory remit is also limited to oversight of the security and intelligence agencies, although it has long heard evidence from the wider intelligence community.
At the moment, the Prime Minister receives its report and appoints its members. Currently, the heads of the security and intelligence agencies are permitted, in certain circumstances, to withhold information from it. We can certainly improve on that. We need to give the ISC greater teeth to ensure that we can continue to have confidence in those who oversee the agencies on our behalf.
The Bill provides that the ISC will in future be able to oversee the agencies’ operations, within appropriate constraints. The Committee will also in future report to Parliament, as well as the Prime Minister. Its members will be appointed by Parliament, after nomination by the Prime Minister. The power to withhold information from the ISC will move from the agency heads to the Secretary of State responsible for that agency—a Minister accountable to the House. It will be a parliamentary Committee. We are greatly strengthening our powers to hold accountable those who do such vital work for our country.
Mr Tyrie
My right hon. and learned Friend said that the Intelligence and Security Committee will henceforth be accountable to Parliament. Will he be prepared to consider the proposals of the Wright Committee on parliamentary renewal—that the Chairman of the ISC should henceforth be elected by a secret ballot of the whole House, subject to a veto by the Prime Minister at the nomination stage? That was accepted unanimously by the Wright Committee and it has won widespread support. It would greatly enhance the credibility and sense of independence of the ISC Chairman.
Mr Clarke
I have the greatest respect for the Wright Committee and we will consider the matter further, although I am not instantly attracted by that proposal. We are moving to a situation in which the Chairman of the ISC will be elected by the Committee and the Committee itself will be elected by the whole House from a list approved first by the Prime Minister. On reflection, I think that the problem with a system whereby the House could elect whoever it liked, subject to a prime ministerial veto, is that it would be an Exocet that was hugely embarrassing to use. It is not impossible—I hope that it is not too fanciful—to envisage a case where the security services have satisfied the Prime Minister that there is some problem with a particular Member of this House of which the wider world is completely unaware. [Interruption.] That is not unknown; I am sure that it has happened in the experience of the right hon. Member for Blackburn (Mr Straw). The idea that the Prime Minister must suddenly issue a veto on the result of an election carried out in this House is probably a step too far, and I think that my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind), the Chairman of the ISC, agreed with me when we discussed this very matter not too long ago.
Mr Clarke
My right hon. and learned Friend nods his head in approval.
The arrangements that we are proposing for a stronger Committee will in some cases be underpinned by a memorandum of understanding between the Government and the Committee. The MOU will set out the arrangements at a level of detail far beyond that which need be put in this Bill. We have reached the stage of discussing the terms of that MOU with the Committee. I have had some extremely constructive discussions with my right hon. and learned Friend and other members of the Committee about the Bill. We will bring forward other amendments if necessary to make clear the ISC’s increased connection to Parliament and provide it with some statutory immunities to assist in this work.
I apologise for the length of time that I have taken in introducing the Bill, but I have given way generously. It is the kind of Bill where there should not be serious argument about the principle, but the details are extremely important in a country which has high regard to the rule of law and does not to want to risk abuse of process in any proper case. That is why I commend its Second Reading to the House. To reject it and stay with the status quo would be to continue a quite intolerable situation that is not only unacceptable to the agencies, which cannot defend their reputations, but should be unacceptable to the taxpayer, who has to pay for some of these settlements, and to any citizen who wants a judge to have the chance to make a judgment on the issues.
In my opinion, for all the reasons I have given, the Bill strengthens the accountability of our intelligence agencies and GCHQ to the courts and to this House. It supports our belief in justice, the rule of law and the liberal, democratic principles that underpin this country. I trust that the House will therefore be content to give it a Second Reading.
Sadiq Khan
I will come to some of the huge improvements made in the other place.
The Government claim that they are unable to defend themselves in court because the nature of the evidence they would need to deploy is so bound up with sensitive intelligence as to make it impossible for it to be made public. As a result, they are having to settle cases and pay out-of-court compensation. By allowing CMPs in situations involving national security, the Government are seeking to avoid situations where cases are not seen through to their conclusion and avoid the premature payment of compensation.
Let us go right back to the very beginning of this legislative process. The original proposals that were published in the Green Paper involved huge issues. The Minister said at the time that after the consultation on the Green Paper, he expected a White Paper, followed by a Bill. We had serious problems with the Green Paper, but we were encouraged by the sensible pace at which he proposed to progress.
As I have said, the original Green Paper was roundly criticised by others for being too broadly drafted in its coverage of CMPs. After the consultation, the Government decided to jettison secret inquests, making a virtue, as has happened again today, of this concession. I pay tribute to the Royal British Legion and the non-governmental organisation, Inquest, for successfully fighting that barmy idea. Many suspect, however, that the inclusion of inquests in the first place was a wheeze—an idea that would be later binned and presented as a major concession. It is the oldest trick in the book.
The process then changed: there was no White Paper. Instead, we jumped straight from the Green Paper to a Bill, which, while including inquests, did not take on board the wide range of concerns that had been raised about the proposals. In many people’s eyes, the Bill’s process for deciding when there should be a CMP was worse than the process set out in the Green Paper. Even more power was concentrated in the hands of Ministers to decide what would stay secret, while judges had fewer powers to take a balanced view on whether it was in the national interest to keep something secret or whether it was in the public interest to disclose it.
It is on this point that the right hon. and learned Gentleman disagrees with many independent experts, including judges, about how the process will work. He insisted that the CMP process was a judge-led, balancing exercise and that it was not a Minister-led process. He repeated that several times, criticising those who dared to question his assertions, and he has done so again today. I and many others have picked him up on this, because the Bill as drafted was clear: it was not a judge-led process. In the old clause 6, there was no balancing exercise. It was a grab for power by Ministers. They would have decided what stayed secret and what did not. Judges were left with no option but to grant a CMP. The word used was “must”, not “may”. It was simply unacceptable. The power that that would have handed to the Executive to keep material secret was unacceptable and I am pleased that the right hon. and learned Gentleman has accepted the change made in the other place.
Mr Kenneth Clarke
Extraordinary assertions keep being made outside this House that the Bill allows Ministers to decide whether there should be closed material proceedings, but that is complete nonsense. The “must” to “may” amendment arises in circumstances where the judge who takes the decision decides that national security would be at issue. The original Bill said that once he finds that there is a risk to national security, he “must” have a closed material procedure. Such is the concern of all these critics that we have made it clear that we will accept a wider discretion, so even when the judge—not the Minister—is satisfied that national security is at risk, he “may” have a closed material procedure. I submit that people should think about the possibility that that leaves the judge with all the discretion in the world to think about all the other issues that might mean there is some compelling reason in a particular case not to allow a CMP, even when national security is threatened. I simply do not understand why the right hon. Gentleman—he is not the first; I am not singling him out—and others keep asserting that Ministers will decide on that when the Government gave up that position months ago.
Sadiq Khan
I know that the right hon. and learned Gentleman has not practised law for a while, but he is wrong. The old Bill clearly said that if a Minister decides that there is a threat to national security, the judge must order a CMP. The improvements made by the House of Lords changed that and I am glad that he has accepted them.
The right hon. and learned Gentleman has lashed out—he did it again today—at what he called the “reactionary” elements of the civil liberties community. He is sniggering, but he will recall that he was once a part of that community. Does he really believe that David Anderson QC, the Government’s independent reviewer of terrorism legislation, fits that description? I remind him of what Mr Anderson said about the Bill’s original proposal that Ministers would trigger a closed hearing:
“That proposal seems to me profoundly wrong in principle. The decision whether to order a CMP is properly for the court in the exercise of its case management functions.”
He also said that a CMP should be used only if
“the just resolution of a case cannot be obtained by other procedural means (including not only PII but other established means such as confidentiality rings and hearings in camera).”
It seems that it was not just me who got it wrong; according to the Minister without Portfolio, his own independent reviewer of terrorism legislation also got it wrong.
Advocates also appear to have got it wrong by not understanding the Bill as previously drafted. Many esteemed legal Members of the other place, such as Lord Pannick, Lord Macdonald and Lord Phillips, also got it wrong if the Minister without Portfolio is correct.
On 19 November, the day the other place considered the Bill on Report, an editorial in The Times—hardly a member of the “reactionary” civil liberties community—said:
“The Justice and Security Bill being considered in the House of Lords today cannot be allowed to stand in its current form”.
The Daily Mail, which is not historically known to be a “reactionary” element of the civil liberties community, either, has also consistently opposed the right hon. and learned Gentleman’s original proposals.
I accept that some have argued strenuously against the whole principle of CMPs in our civil courts. Others have focused their energies on ensuring that the Bill has proper checks and balances in place.
Sadiq Khan
I will give way to the Minister without Portfolio. Clearly, one hour was not enough for him.
Mr Clarke
We are merely warming up. To refresh the right hon. Gentleman’s memory, I have a copy of the original Bill. I think he is talking about a debate that was last sensibly carried out when the Green Paper, in which we said that it would be for a Minister to decide on this matter, was considered. Clause 6(2) of the old Bill says:
“The court must, on an application under subsection (1), make such a declaration if the court considers that…(b) such a disclosure would be damaging to the interests of national security.”
We published the Bill on the basis that it was a judge’s decision. We are making the judge’s discretion wider. He does not have to have a CMP. Even if he is satisfied that national security is at risk, he “may” make a declaration, which is what has been proposed to us by the House of Lords.
Sadiq Khan
The right hon. and learned Gentleman can use the present or past tense, but the reality is that, previously, the judge would have had to order a CMP if the Minister said that there were national security issues. There was no balancing exercise. The changes made in the other place mean that the process is now judge-led and I am glad that the Minister without Portfolio welcomes them. I am glad that legal experts agree with me. We will have a chance to come back to the issue later.
The defeats inflicted on the Government in the other place were truly stunning—the Minister without Portfolio used the phrase, “Pushing at an open door”—with majorities of 100, 105 and 87. Those defeats mean that, as the Bill stands, there will be an equality of arms between the two parties in a civil action and a full judicial balancing of the competing public interest. Moreover, if CMPs are to be granted, it must be as a last resort—I know that the right hon. and learned Gentleman does not like that change made in the other place—and, importantly, there will now be judicial balancing within the CMP.
I have no doubt that there would have been more defeats had the Minister in the other place, Lord Wallace, not seen sense and conceded on other amendments. The scale of those Government defeats is testament to the enormous levels of unhappiness of distinguished legal experts and serious people with the Bill as originally published.
I pay tribute to the Joint Committee on Human Rights, particularly its Chair, my hon. Friend the Member for Aberavon (Dr Francis), for the work it has done. Its amendments—the Opposition supported the majority of them—were the basis of the victories in the House of Lords. We will seek to make other changes to the Bill in Committee, in order to ensure greater fairness. We will oppose any attempts to water down the improvements that have already been made.
I want to touch briefly on clauses 14 and 15, which address the so-called Norwich Pharmacal cases. They prevent the disclosure of “sensitive information” that the Secretary of State certifies it would be contrary to the interests of national security or international relations to disclose. In those cases, a party seeks an order for the disclosure of evidence in order to pursue or defend a case against a third party, possibly outside the jurisdiction, as in the cases that have attracted attention in which the defendant—that is, the Government—is to some degree mixed up in events, perhaps by quite innocently coming into possession of some information.
Disclosure via Norwich Pharmacal is, we are told, already seriously undermining confidence among our most important partners, including the United States of America. That is an important matter for our intelligence agencies, which I have already paid tribute to, because they probably work more closely with their colleagues in the USA than those in any other country. We understand the importance of the control principle.
Although there may be an issue that needs to be addressed and a case for regularising the situation created by the Norwich Pharmacal cases, we question whether the Government’s approach is too broad. We will test that in Committee. The independent reviewer of terrorism legislation, David Anderson QC, agrees with our position and has publicly accepted that there is
“a case for restricting the novel application of the Norwich Pharmacal jurisdiction to national security information.”
He concluded, however, that what is now clause 14 was too broad in its application.
We do not intend to oppose the Bill on Second Reading. However, I hope that I have made it clear that we wish not only to hold on to the improvements that were made to the Bill in the other place, but to use the Committee stage to seek further improvements. How we vote on Report and Third Reading will be determined by the Government’s actions in Committee between now and then.