Justice and Security Bill [HL]

Lord Elystan-Morgan Excerpts

Tuesday 17th July 2012 Lords Chamber

[Lord Elystan-Morgan]

My Lords, I thank the noble and learned Lord and I apologise for the fact that I missed the opening skirmishes of this debate. May I put a point to him which is utterly fundamental? The noble Marquess, Lord Lothian, said that we would know national security when we came across it. To put a judge in that position would mean that we would give them a legislative function as opposed to an interpretative function? That should be avoided, should it not? I do not expect an immediate answer from the Minister, but could I leave him to mull over this thought? It may be that a different approach could settle the matter in this way. If there was a definition of national security—something of the order of dealing with a situation that jeopardises, or has the potential to jeopardise, a fundamental function of the state—might that be not unacceptable?

[Lord Wallace of Tankerness]

My Lords, I will certainly mull over that point. However, in coming up with any definition, we would want to be very careful that it did not exclude things that should be included or include things that perhaps should be excluded. We will look very carefully at what he has said. The intention is that the concept should be a narrow one that will come into play in a very small number of cases. However, the definition set out in the amendment would not cover everything that is damaging to national security. Factors that are damaging to national security can change in accordance with assessments about the threat to the country. That was reflected in the contributions we have had, not least from the noble Baroness, Lady Manningham-Buller. If the definition is too narrow, we take the risk of legislation becoming unfit for the purpose for which it is intended. Sensitive intelligence and security material which security intelligence agencies hold and which is so vital to the discharge of their important statutory functions will have been acquired by them in a variety of ways and from a variety of different sources. Not all national security-sensitive material held by the security and intelligence agencies will by any means relate to, or be the result of, operations.

In view of this, we believe that the amendment is unduly limiting. For example, if information has been shared with United Kingdom agencies in confidence by foreign intelligence agencies, or has been disclosed to them in confidence by human sources, the amendment would not enable such information to be used within a CMP, however sensitive the provenance of the information and however confidential the relationship. There could also be a situation where the agencies have undertaken preliminary research and analysis before deciding whether there is a sufficient national security case to justify embarking on an intelligence operation. Information generated during the course of that preliminary work, whether or not an actual operation ensued, could well be highly sensitive in security terms and of significant relevance in a particular case. However, if the amendment was accepted, it would not be possible to use the information.

I think that it was the noble Lord, Lord Beecham, who said that there was a danger that the amendment was both too broad and too narrow at the same time. It could also go wider, in that not all matters—including operations by the military—would relate to national security. In fairness, my noble friend Lord Hodgson of Astley Abbotts accepted that the terms of the amendment might not be ideal. It is perhaps illustrative of the fact that any attempt to make a definition can often be either too limiting or too broad. The Bill recognises that national security is very much an issue for the Secretary of State.

--- Later in debate ---

[Lord Carlile of Berriew]

My Lords, I fully understand the concerns that have been expressed by the noble Lord, Lord Dubs, however, for the reasons principally given by my noble friend Lord Faulks, I disagree with this proposal. It does scant justice to the judges who have shown great independence in the control order and TPIM cases that the noble Lord, Lord Pannick, mentioned. I do not understand the substance of this proposed amendment to be a complaint made by the special advocates at all. My view is that the way in which judges are trained and apply themselves to their cases does not require an elaborate amendment of this kind.

[Lord Elystan-Morgan]

My Lords, the motivations behind this amendment are, I have no doubt, noble, honourable and sensitive. I greatly respect, therefore, the arguments put forward by the noble Lord, Lord Dubs. I respectfully tend to agree with the noble and learned Lord, Lord Lloyd, that it may well be that there is a case for having what is almost a jury situation. In such a situation—again, bearing in mind that juries very seldom operate in civil cases—we would not normally have a jury in any event, but the real problem is, I think, a much deeper one.

Imagine a judge having to determine the fundamental issue of whether this matter is to be dealt with by way of a secret hearing. Does he look at the prose of the application by the Secretary of State or the affidavits? Does he look into the eyes of learned counsel to see whether there is a burning sincerity in the face of the counsel for the claimant or whether there are doubts genuinely registered in the face of the counsel for the defendant? Is the judge not placed in a situation that is virtually impossible?

To a large extent the question of a special advocate under Clause 5 and, I would say, to a limited extent the appointment of a special counsel under Clause 8, will deal with part of that. There will be a totally independent advocate, but an advocate, however brilliant, forensically skilled and eloquent, can be only as effective as the ammunition that he has at his disposal, which is the correctitude of certain facts that are relied on by a party. If that estimate, however genuine, is wrong, then the decision of the learned judge must be utterly fallacious. How do you deal with that situation? I harken back to debates that we had some years ago in relation to a criminal situation and PII. It seems to me that there is a very strong and unanswerable case for a special investigator operating under the special advocate. It does not seem from my reading of Clause 8 that there is any power for the special advocate to appoint such a person. However, the fairness of the situation will depend entirely on the assiduity with which some other person or body would be able to examine these sensitive facts. That person must be someone in whom the community has total confidence in terms of confidentiality and secrecy but also their competence to bring to the attention of the court that vital element of the correctitude or otherwise of those facts.

[Lord Lester of Herne Hill]

My Lords, in later amendments, we will be considering ways of making what at the moment is an unfair procedure fair, or less unfair. I agree with the noble Lord, Lord Pannick, that the procedure as it stands is not fair and also that it does not become any more fair by adding assessors or advisors to help the judge who has to decide whether to grant a declaration under Clause 6(1).

My experience of assessors or others—whether in an employment tribunal or in a county court for example—in dealing with discrimination cases, which are difficult and often involve weighing proportionality issues, has been an unhappy one. Along with others who have spoken, I have huge admiration for, and confidence in, the ability of our senior judiciary and agree with the noble Lords, Lord Pannick and Lord Carlile of Berriew, that our judges have displayed a very good ability to weigh competing interests in difficult cases.

It will be important to look later at ways of making the procedure fairer, but with all respect to county court judges, whether serving or retired, and to retired judges of the senior courts, I simply do not think that having more of them is going to make it easier. This is not a question of deciding facts, like a jury; it is a question of striking a balance between competing interests. That seems something that our senior judiciary are well able to do without being bolstered by any outside support.

[Lord Beecham]

My Lords, I pay tribute to my noble friend Lord Dubs, who has served with great distinction on the Joint Committee on Human Rights and of course has a long record of interest in matters of justice generally. However, I indicated to him during a conversation beforehand that I was not persuaded by his argument. I was persuaded, albeit temporarily, by the arguments of the noble and learned Lord, Lord Lloyd, but in the end I share the views of other noble Lords who have indicated that this is perhaps an overelaborate and unnecessary addition to the framework that would otherwise exist. One point that struck me is that it is a little invidious for a serving High Court judge to sit with current or retired county court judges. I do not mean any disrespect to county court judges, but am not sure—

[Lord Elystan-Morgan]

There are no county court judges. There have not been any since the Courts Act 1971. They are now circuit judges.

[Lord Beecham]

It is a while since I appeared before any judge whether county court or circuit. I meant the equivalent position. The noble Lord is clearly aiming at that tier in the judicial system and it strikes me as a little excessive. Equally, the provision for majority verdicts and so on would be somewhat invidious. Regretfully, I cannot support my noble friend’s amendment and I dare say that the noble and learned Lord will join the majority of those who have spoken in saying that the amendment would not be acceptable.