Justice and Security Bill [HL]

Lord Dubs Excerpts

Wednesday 21st November 2012 Lords Chamber

We are faced with a choice of evils. The JCHR approach is an attempt to achieve a fair balance. I hope that there will be support for our amendments across the House.

[Lord Dubs]

My Lords, briefly, I support the amendments. I make one specific comment. Having listened to the speeches of my noble friend Lord Beecham and the noble Lord, Lord Pannick, I say simply that there is a very thin line between their arguments in support of the amendments and Amendment 45 and the other group, which seek the removal of CMPs. The line is so thin that I believe that I could use the case of the noble Lord, Lord Pannick, in particular, which he put so eloquently, to come to a different conclusion: to support our amendments. That is an argument for later. In the mean time, I hope that the House will support the key amendments when we come to votes.

[Baroness Berridge]

My Lords, I speak as a member of the Joint Committee on Human Rights and as the fourth name on this group of amendments. Normally, I take very seriously the advice given by our Government —so much so that I took the advice of the Government’s Chief Medical Officer early last week not to seek antibiotics for a cough and cold, so I apologise. I am living to regret following that advice and I apologise for any resultant disturbance to your Lordships’ proceedings this afternoon.

It is the judge’s court, not the Government’s, so it should be the judge’s decision or discretion as to the fairest way to proceed with the case before him or her—whether that is by using public interest immunity with all its flexibility, as outlined by the noble Lord, Lord Pannick, or by using a closed material procedure.

It is so important that this House stands firm on that principle, not only to protect the credibility of the judicial process but to safeguard the interests of the other party to that litigation. The Government, who are one party to the litigation that we are considering, usually have control over the other place, so it is only this Chamber that can protect the other party to the litigation and keep the important procedural powers in the hands of the judge by your Lordships accepting this group of amendments.

These amendments, particularly Amendment 37, reflect the view of David Anderson, the independent reviewer of terrorism legislation when he stated to the joint committee that this ensures that cases are not tried in closed material procedure that could otherwise be done under public interest immunity, nor will cases be struck out that can be tried in a closed material procedure. The judge must retain a wide procedural discretion, which, if these amendments are accepted, I accept may mean that our judiciary will begin a new balancing act: balancing the unfairness of the exclusionary nature of PII against the unfairness of the closed material procedure, which leads to the claimant and his or her lawyer being absent. I believe it is very important to retain this judicial discretion and to leave these matters in the hands of our judiciary, who have shown that they can be entrusted with such fine balancing acts. My name is therefore on these amendments.