Justice and Security Bill [HL]

Lord Faulks Excerpts

Tuesday 17th July 2012 Lords Chamber

[Lord Faulks]

The noble Lord said that the party opposite is not yet convinced of the need for CMPs, and he made various suggestions about possible guidance or a definition that would assist on the question of national security. Does it follow that if there were further guidance or a better definition of national security along the lines he suggested, that would go some way to satisfying whatever needs to be satisfied in terms of the party opposite’s potential opposition to CMPs?

[Lord Beecham]

My Lords, we are capable of simple arithmetic, and it may be that, in reality, the Government will get their way on the principle. We will keep an open mind through Report stage and listen carefully to what the Government say. At the end of that process, we may or may not accept the case. If it is the wish of this House—in the first instance—and of Parliament as a whole to proceed with closed material procedures, we might come to what one could call the last-resort position of looking at how best to limit any application of the new procedure and how to make the best of the situation, in the interests of justice and the traditions that this country has espoused for centuries. It would be making the best of what we currently consider is a very bad job. However, we are open to evidence. There is not a great deal of evidence at the moment, although there has been some to which Mr Anderson referred—the three cases which seem to have persuaded him that there is a need for such a procedure. However, as I reminded the House the other night, he also said that the Government’s proposals were disproportionate and suggested measures that would have some mitigating effect on the process, if it were to be implemented.

That is the position of the Opposition. We are not taking a premature stance on this. It would be interesting to know, for example, whether the special advocates have, as suggested, actually been shown the files of the independent adviser who is to be consulted, or whether the process is going to take place at all, and what the view of the special advocates is. Your Lordships will recall that they were very critical. Almost all of them signed up to criticism of the proposals as they stood. In evidence to the Select Committee, Mr McCullough said that he would welcome the opportunity, if it were given, to look at the cases that seemed to have persuaded Mr Anderson to accept the principle, given that, as he made clear, he continued to think there would be only a limited number of cases. At the very least, the amendment has allowed us to look at ways in which such cases might be restricted to a small number, against criteria that, although not statutory, might be developed while the Bill is making its way through Parliament.

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[Lord Faulks]

My Lords, very briefly, while the idea of having those who are not the primary judges assisting that judge with making decisions is not unfamiliar—as the noble and learned Lord, Lord Lloyd, has said, it has precedent in a number of different contexts—this represents a rather elaborate and perhaps even cumbersome method of deciding these cases. It also must be borne in mind that the special advocates are particularly anxious to preserve the role of a single judge in whom they have great faith, judged on the limited experience of closed material proceedings. In fact, they very much favour the role of the judge using the existing PII process instead of CMPs, rather than advocating the rather broader process contained in the amendment.

Proposed new subsection (3) is perhaps unusual—which of itself is not an objection—but I respectfully suggest that the final provision requiring a reversal of the burden of proof to a high degree of conviction is really going it a little bit. It means that it will be very difficult indeed for the Government to rely on evidence and the whole purpose of the CMPs will be frustrated. That may indeed be the intention of the amendment but it is not a very satisfactory position.

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[Lord Thomas of Gresford]

My Lords, it also raises a very interesting question about which all lawyers will be concerned: who pays? When the special advocate is appointed in civil proceedings, does the losing party pay? Does the person who made the application—namely, the state—pay, win or lose? Where do costs lie in an event like that? When you have a provision in the Bill such as Clause 8(4) here, which states that the,

“special advocate is not responsible”,

to the claimant, how can the claimant possibly be responsible for his costs?

[Lord Faulks]

My Lords, the whole role of the special advocate is inherently unsatisfactory and is an exception to what we understand to be a normal way of proceeding in accordance with general notions of fairness. However, it is a practice that has become well established; it has evolved. There are a number of special advocates who have performed their roles with distinction and effectiveness, as the noble and learned Lord, Lord Woolf, said in a much-quoted judgment. Many of their concerns, referred to earlier in the debate, were directed towards the way in which material was disclosed and the lateness and inadequacy of such disclosure. There may be much in those criticisms. They are fairly familiar incantations from advocates, whether the proceedings are closed or open. They do not reflect well on anyone who is responsible for late disclosure in a case.

We should bear in mind that judges have shown themselves particularly astute at protecting parties whose cases are heard in a closed session. If there is unsatisfactory practice on the part of the Government in terms of late disclosure or not giving special advocates fair access to material that will enable them to do their task, that is not going to improve the Government’s prospects and will be reflected, I suggest, in the way in which the judge approaches the case altogether.

While I have considerable sympathy for what lies behind these amendments, I would respectfully suggest that the position of the special advocates is quite correctly set out in Clause 8(4). It is not an ideal situation but it is a situation that has developed, and I trust the judges to respond appropriately to the demands that this particular procedure presents.

[Lord Gold]

My Lords, I am concerned that, if the special advocate is made responsible, there is a greater risk that he will rely on this amendment and withdraw from the proceedings. Although this is not a perfect situation, it is better that the advocate is there and does not withdraw; otherwise there is no representation or no points made independently at all.

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[Baroness Williams of Crosby]

I am grateful to my noble friend. Nobody knows more directly and more at first hand than he exactly of what he is speaking, given his long and distinguished service in Northern Ireland in several capacities.

A second example that I know about, because I was living there at the time, was that the dreadful atrocity of 9/11 produced a great wave of attempts to introduce more security legislation in the United States. After a while this included a certain disregard for some of the crucial rights of human beings there. American citizens found time and again, understandably given the terrible effects of 9/11, that their fundamental rights began to be disregarded in the interests of security. It was an extraordinarily difficult balance that to this day United States jurists feel strongly has gone against the basic liberties of the human being.

The third example is ourselves. The noble Lord, Lord Deben, spoke movingly about his son and the dog across the street from No. 10 Downing Street. I might add that the Olympics are getting almost completely out of hand in the interests of what one might describe as an obsessive view about security. We go back to rather a trivial example. Yesterday I was in Trafalgar Square with my grandson. We went to see the famous Olympic clock that shows how many hours, minutes and seconds are left before the opening of the Olympic proceedings. However, in order to see the clock, which was approximately 40 yards into the square on a gloomy, wet evening, we had to pass no fewer than six security guards, and no fewer than three detailed and closely networked railings, which were impossible to pass, so we had to go round them in several directions to get anywhere. It took us about 20 minutes to cross Trafalgar Square, being asked all the way whether we had passports, what we were doing there and why, and other things like that. I am a great believer in creating job opportunities for young people, but I cannot help thinking that maybe a job working on, let us say, the refurbishment of older housing might be more constructive than sitting in Trafalgar Square stopping ordinary citizens like me from crossing it.

I am sorry to put it so strongly, but we are becoming obsessive on this issue. We are getting the balance badly wrong. This Bill is critical for the future of our liberties in this country and for the attitudes to justice of ordinary people whose support for that justice is critical in a democracy; there is no substitute for civic support for the rule of law. I plead with my noble friends on the Front Bench that they look closely at Amendments 58 and 59, which at least enable the judges in this country to restore a reasonable balance to the clear needs of national security, which I do not deny and which the noble Baroness, Lady Manningham-Buller, has put extremely well in this debate, recognising that there are two things to be balanced and not one thing to sweep away. I plead with my noble friend to consider accepting these amendments, because they are a crucial safeguard for the liberties of this country and which this Bill ought to include.

[Lord Faulks]

My Lords, it is a great privilege to follow the noble Baroness and I am sorry to bring an end to this welcome interval from lawyers and to return briefly to the dry legalities of the Bill. The question in this Bill of who decides national security has troubled me. Clause 6 seems to suggest that the judge has some role in deciding it. Amendment 59 suggests that an exercise should be performed by the judge in which he or she can assess, by balancing the various processes—presumably roughly in accordance with the ex parte Wiley approach—which should come first, the interests of justice or national security.