Justice and Security Bill [HL]

Debate between Lord Falconer of Thoroton and Lord Butler of Brockwell

Monday 23rd July 2012 Lords Chamber

[Lord Falconer of Thoroton]

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

[Lord Butler of Brockwell]

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

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

Justice and Security Bill [HL]

Debate between Lord Falconer of Thoroton and Lord Butler of Brockwell

Monday 23rd July 2012 Lords Chamber

[Lord Butler of Brockwell]

I think we agree that there are certain circumstances where the interests of justice and fairness should not override national security. We are seeking a balance. I would have no objection to this amendment if it said,

“must have regard … to the objective of protecting the interests of justice and fairness”,

followed by subsection (b).

[Lord Falconer of Thoroton]

If the Bill becomes law, rules of court will be made. Those rules of court will be governed at the outset by what is set out in the amendment of the noble Lords, Lord Lester and Lord Pannick. I have understood what they mean by the,

“overriding objective of protecting the interests of justice and fairness”,

as referring to the first category of case with which we are dealing—civil proceedings not Norwich Pharmacal. In order to be fair, there must be some limited disclosure because the alternative is no disclosure at all and that is unfair to one of the parties. As I understand it, the noble Lords, Lord Lester and Lord Pannick, are saying: “Do what you have to do in order to get the fairest possible result”. In relation to that first category of case, they are seeking to achieve fairness to both parties—the claimant and the defendant—where the defendant has a defence that it wishes to advance but it cannot do so without damaging national security. Therefore, pursuant to the rules, the courts would allow an arrangement whereby only one side sees that material. While that may not be fair in a perfect sense, it is the fairest way of dealing with the problem. National security is dealt with by the ability of the intelligence services to withdraw from the case if national security is offended by an order for public disclosure.

Subsection (a) deals, in effect, with the first category of case, while the second category of case, covered in subsection (b), deals with Norwich Pharmacal. What is said there is: retreat from the right to see something under Norwich Pharmacal only to the extent,

“necessary to protect the interests of national security”.

The rest of the Bill sets out how that is to be achieved. If there are any doubts about it, the courts can go to these basic principles in order to resolve them.

Despite the fact that this trespasses on the advice of the noble Lord, Lord Campbell of Alloway, this is quite a sensible and new way of legislating. Its first appearance, I am happy to say, was in the Constitutional Reform Act 2005 when the principle of upholding the rule of law was referred to in Section 1 as a freestanding obligation, not by reference to a particular provision. As time has gone by, it has been thought to be a beneficial provision. The approach taken by the noble Lord here is beneficial, particularly when we are dealing with issues as difficult as this. I do not think that putting in “overriding objective” is intended to be an excuse or a way of avoiding the need to address the detail of the issues elsewhere.

Finally, perhaps I may say this to the noble Lord, Lord Pannick. What a good idea. If we want to hear evidence from someone, we should make them a Member of the House of Lords. We will be hearing from Bob Diamond and others fairly soon.

Fixed-term Parliaments Bill

Debate between Lord Falconer of Thoroton and Lord Butler of Brockwell

Monday 21st March 2011 Lords Chamber

[Lord Butler of Brockwell]

I should like to comment on that because the experts were, for the most part, either politicians or distinguished academics; they were not people who had seen government from the inside. That is why I am anxious to express this alternative point of view.

[Lord Falconer of Thoroton]

First, a number of the politicians had been Ministers. Does the noble Lord regard that as government from the inside—or were they kept from the inside by Sir Humphrey on a regular basis? Secondly, on the basis of the argument he has made, if the noble Lord was given a choice between five and six years, I assume he would choose six years because there would be even less wearisome elections then.

[Lord Butler of Brockwell]

The noble and learned Lord tempts me.

[Lord Falconer of Thoroton]

Please be tempted.

[Lord Butler of Brockwell]

A balance has to be struck and I would strike it at five years.

On the previous day in Committee, the noble Lord, Lord Grocott, urged a referendum on the question of the day of the week that polling should take place. In his speech today, he did not urge a referendum on going to a four-year term, which is a greater constitutional change than a change in the day of the week for voting.

--- Later in debate ---

[Lord Falconer of Thoroton]

He might have been, but I would not rely on anybody whose point of principle—this one was adopted for years by the Liberal Democrats—evaporates in the course of one sentence in a negotiation. Say that it is a compromise or a deal done to benefit the country, but do not say that it is a point of principle which switched in the course of negotiations. That is the weakness of the argument, in my respectful submission, that the noble Lord, Lord Marks of Henley-on-Thames, was making.

The noble Lord, Lord Dobbs, made an impressive speech. I have never heard statistics more blatantly abused than by him. Perhaps I might draw attention to two particular points. First, he chose his starting point as October 1974 to ignore the February to October 1974 point, as he explained. Secondly, the difficulty with the fact that there was one election where the date was forced upon the Prime Minister by a Motion of no confidence was simply obliterated from his mind completely, so that he focused only on 1978. What he said was accurate in that, obviously, in choosing the date that they have for elections Prime Ministers are motivated by the chances of winning. That is the basic reason why one has a fixed-term Parliament but it does not really assist in determining between four and five years.

The speech made by the noble Lord, Lord Butler of Brockwell, was the most admirable. I say that genuinely, having worked with him. He was the Cabinet Secretary in 1997 when we took power and, having seen the talent of the noble Lord, I can genuinely understand how he would find the elected politicians quite wearisome to start with, particularly when they come into power with no experience of any sort of government. If I were him, I would have the least often elections as possible but, as people have made the point, this debate is just as much about accountability as about stable government. The reason that the Bill is being brought forward—this is the Government’s defence—is because the public are fed up with the politicians and want more accountability and more mechanisms to have control over them. The idea that you do that by extending the length of a Parliament, which is the effect of this, seems, with the greatest respect, to be nonsense. Nothing could be better designed to reduce confidence in government than the disingenuous explanations that have been put forward for the Fixed-term Parliaments Bill in the course of this debate. I will withdraw my amendment, but it will be back. I beg leave to withdraw the amendment.

[Lord Butler of Brockwell]

Before the noble and learned Lord sits down, since he had a go at me, can he quote one piece of evidence that the public generally want four-year elections?

[Lord Falconer of Thoroton]

Can the noble Lord quote one bit of evidence in favour of five years? I suspect that the public have no view on whether it should be four years or five; it is for us to judge.