Justice and Security Bill [HL]

Lord Hodgson of Astley Abbotts Excerpts

Tuesday 17th July 2012 Lords Chamber

Moved by

[Lord Hodgson of Astley Abbotts]

53: Clause 6, page 5, line 18, at end insert—
““national security” means an operation of the intelligence or military services”

[Lord Hodgson of Astley Abbotts]

Amendment 53 is a simple amendment, which merely inserts at the end of Clause 6(7) a definition for “national security” as meaning an operation of the intelligence or military services. If I say “simple”, it is probably deceptively simple, because I fully appreciate that its consequences are far from simple. Indeed, the noble Baroness, Lady Manningham-Buller, has very kindly told me that she does not agree with this approach, and as she has forgotten more about national security than I will ever know, I await with interest what she has to tell me on the other side of this coin.

I make two background points. One is that I am not wedded to the wording of the amendment. This is just the best that the organisation Reprieve and I could come up with. However, I am wedded—this is the second point—to the idea of a debate, so that we can explore the advantages and disadvantages of having a definition. Why, on balance, do I think that there should be a statutory definition? I suspect that, over the years, the absence of a definition has given the Secretary of State quite a lot of freedom. It may or may not, in the past, have been useful and helpful to have a flexible definition, but we are now looking at different things in the Bill and I think that the arguments about flexibility come under more stress and strain.

I will share with the Committee some examples of the flexible use of the phrase “national security” in the past. Some 40 years ago I applied to join the Foreign Office and it turned me down, greatly to its good fortune. I was told in my interview that if I had certain sexual preferences, this would give rise to questions of national security. More recently, I recall an elderly heckler of the then Prime Minister Tony Blair being detained under prevention of terrorism laws, which presumably also could give rise to questions of national security. The rather graphically described “spy HQ” overspend on both the MI5 and MI6 buildings, whose costs overran by £226 million, was able to be discussed only in part on grounds of national security.

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[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, I am grateful to my noble friend Lord Hodgson for bringing forward the amendment. It is clear from the contributions that it raises an important issue. I certainly recall that on publication of the Bill, the issue of whether there was a definition of national security was raised not just by a number of Members of your Lordships’ House but more widely. It is important to define the type of material that closed material procedures should be used for. I hope that I can set out why we think we have reached in the Bill the right definition of the type of material that would be considered within a CMP—material that if released would damage national security.

The Government carefully considered the responses to the public consultation on the Green Paper, including consideration of the scope of the material to be covered, before bringing forward this legislation. The Bill makes provision for closed material procedures to be used only in contexts where there would be damage to national security. Examples of sensitive material that might be relevant to a case that would give rise to a duty to claim public interest immunity, and which could also be heard in a CMP under this legislation, include, for example, information from a sensitive source whose life or safety could be put in danger if openly disclosed. I think that example was given by the noble Baroness, Lady Manningham-Buller. Other examples include information relating to current operations that would be compromised if it were to be made public; intelligence material shared with the United Kingdom by foreign intelligence agencies; or the content of telephone calls or e-mails intercepted by the intelligence agencies that would not be admissible in open civil proceedings. It is difficult—a number of noble Lords said this in their contributions—to be completely prescriptive about all the types of damage to national security that could justify closed material proceedings.

The amendment in the name of my noble friend introduces a definition. I would assert that the term “national security” is clear, tried and tested. My noble friend Lord Lothian said that it is clear “when you see it”. One noble Lord asked: “Who sees it?” In this case, the judges see it. The Secretary of State makes an application to the court, and the judge determines whether it satisfies the condition that there would be damage to national security.

It has been for judges to interpret this term appropriately and flexibly. The flexibility of the current approach allows the judge to consider the arguments of the Secretary of State on their merits. Of course, the procedure, even at the initial gateway stage, would also allow special advocates to make representations to the court.

The noble Lord, Lord Beecham, mentioned Article 6 of the European Convention on Human Rights. It is important to remember that in Clause 11(5)—

[Lord Hodgson of Astley Abbotts]

The noble and learned Lord just said that the special advocates could make representations to the court. I am not a lawyer, as I have said frequently, but Clause 7(1)(b) states that,

“such an application is always considered in the absence of every other party to the proceedings (and every other party’s legal representative)”.

Does that not mean that only one side presents?

[Lord Wallace of Tankerness]

I think that my noble friend has an amendment later where we can explore this more fully. It is the case that special advocates could be engaged both at the second stage, when individual pieces of evidence are being considered, and, by virtue of Clause 10(4), at the application stage.

I will finish my point on Clause 11(5). Nothing in Clauses 6 to 11 should be read as requiring a court to act in a manner inconsistent with Article 6 of the European Convention on Human Rights. In that respect it could be said that Article 6 trumps the provisions expressly set out in Clauses 6 to11.

My noble friend expressed a recognisable concern that national security today might involve serious crime or international relations tomorrow. It is very clear that not only will it not, but that international relations and criminal activity have been considered and rejected for the purposes of closed material proceedings in civil cases. The Bill deliberately omits other aspects of the public interest from CMP clauses, such as international relations and the prevention of detection of crime, even though these categories are included in existing statutory CMPs. I hope that that gives the assurance that it is certainly the intention of the Government that there should not be definition creep, as it were.

My noble friend asked about Pepper v Hart, as did the noble Earl, Lord Erroll. It is not only when European Union issues are involved but when there is doubt in a court case about the interpretation of any primary legislation that the parties can resort to statements made in Parliament that should throw light on the interpretation. So this is not limited to an EU context. We cannot dictate to the courts how to apply Pepper v Hart, but doubtless, in future, parties to litigation will be able to read what I am saying today at the Dispatch Box and, if pertinent, advance cases to the court on that basis.

I have an embarras de richesses.

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[Lord Wallace of Tankerness]

My Lords, I hear what the noble Lord says. I have already tried in response to the debate to indicate some of the things that are excepted from the definition as we have it. With those considerations in mind, I invite my noble friend to withdraw his amendment.

[Lord Hodgson of Astley Abbotts]

My Lords, I began by saying that I did not believe that this was an open-and-shut case, and so it has proved. My noble and learned friend has referred to the “statutory straitjacket” and problems thereof. Interestingly enough, while the debate was going on, I was passed a note by one of my noble friends showing a case in which he was involved, where national security was invoked in quite an extraordinary way. I do not therefore think that I have yet reached entirely firm ground.

I am grateful to my noble friend Lord Deben for his powerful and very apposite remarks and speech. My noble friend Lord Lothian is of course an eminent Scottish advocate. I am not an advocate, Scottish or otherwise, but in reference to his remarks on Clause 6(2) about the court deciding, I am told that where a judge is faced with a statement by the Secretary of State leading to a CMP—not a weighing of evidence like we have in PII—to the effect that this would be damaging to national security, the judge is unlikely to push back on it. Therefore, the idea which the clause might technically give rise to is not, according to legal opinion that I have heard, likely in practice to happen. Those who have experience in your Lordships’ House will be able to discern this better than I can. That is something which we can no doubt explore another day.

I said that the noble Baroness, Lady Mannigham-Buller, had forgotten more about national security than I would ever know. It was meant to be a compliment, for the avoidance of doubt.

[Baroness Manningham-Buller]

I take it as a compliment. It just sounded as though I had been boasting, and I would not want to do that.

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[Lord Hodgson of Astley Abbotts]

It certainly was not boasting. It was my remark, not any remark the noble Baroness made to me. I found her history lesson, as she described it, very useful. We started from a narrow definition which has now moved out to a much wider range of threats. Of course, one must accept her stricture about protecting sources of intelligence where men and women put their lives on the line to help provide intelligence that protects this country. I thought her suggestions about narrower definitions were very interesting. As we are going to be using CMPs in rare cases and we accept that this is a dangerous precedent in many ways, perhaps some relationship between the definition and the operation of this Bill might be helpful.

In conclusion, I just say that the shift in gears with this Bill—the widening use of CMPs—requires us to consider and reflect on how we use the term “national security” as the trigger without any definition. My noble and learned friend has given plenty of food for thought and I would like to have a chance to consider and reflect. In the mean time, I beg leave to withdraw the amendment.

Amendment 53 withdrawn.

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Moved by

[Lord Hodgson of Astley Abbotts]

55: Clause 7, page 5, line 28, leave out “is always” and insert “may be”

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[Lord Hodgson of Astley Abbotts]

My Lords, in moving Amendment 55 I shall speak also to Amendments 56, 63, 64, 65, 66 and 67. This group of seven amendments spans Clauses 7 and 8. Their underlying purpose is to improve the relationship between the special advocate and his client—if that is the right word—and the special advocate’s ability to carry out his duties effectively. The group breaks down into three subgroups.

First, Amendment 55 concerns Clause 7(1)(b), under which the rules of court require,

“that such an application is always considered in the absence of every other party to the proceedings (and every other party’s legal representative)”.

This is the point that I made in the debate on a previous group of amendments. My amendment seeks to replace “is always” with “may be”. I accept that some, perhaps most, matters will be considered with national security in mind and so will have to be heard in a closed court. However, I wonder whether there will never be any matter that could be argued with a special advocate and other legal representation present. Obviously, one question is: what constitutes national security? We have had a debate about the looseness of that term. At the moment we have no definition of it. Then there are other sorts of information, such as that provided by the police and generated within the UK, which might come up and would not be within the closed material proceedings. I suppose the principle behind this is to increase judicial discretion and therefore fairness—an issue on which the Government have placed great stress. My last point on this amendment is that requiring a judge to hear CMP applications in the presence of only one side under all circumstances does not seem to fulfil the principles of natural justice.

The second group consists of Amendments 56, 64 and 65. This group is about the nature of the appointment of a special advocate and ensuring it is made in a timely fashion. Amendment 56 inserts a new paragraph after Clause 7(1)(b):

“that where a party is excluded from such an application his interests are represented by a special advocate appointed in advance of the court hearing such application and, if the application is granted, for the duration of the section 6 procedure and trial”.

The important words here are “in advance” and “for the duration of”. In other words, the special advocate needs to be given time for preparation and for consultation. My noble and learned friend may say that this will happen anyway but I am told—I stand to be corrected—that there is no statutory requirement at present and it seems to me that in these special circumstances it might be worth while to consider that.

Amendment 64 covers the same points in Clause 8. Clause 8(1) states:

“The appropriate law officer may appoint a person to represent the interests of a party”.

For me, the critical word is “may”. My amendment seeks to replace “may” with “must”. Again, the reasons for that are self-evident and run parallel with the supporting arguments I have given for my natural justice amendment.

Amendment 65 amends the same clause by removing the words,

“in any section 6”

and replacing them with,

“as soon as practicable following”

an application. Applications should not go unchallenged. Therefore it needs to be certain that the claimant is represented at the time of his application and during the proceedings.

The last group, Amendments 63, 66 and 67, is intended to try to strengthen the relationship between the special advocate and the claimant. Amendment 63 takes us back to Clause 7 and inserts two new paragraphs regarding what the rules of court must provide where the proceedings are in connection with a Section 6 declaration. They make it clear,

“that the special advocate is afforded the opportunity to take instructions from the party whose interests he is appointed to represent, and … that the special advocate is at liberty to apply to the court at any time if he considers that any relevant material should be disclosed”,

if he feels that is opportune.

Amendment 66 goes back again to Clause 8. Clause 8(4) states:

“A person appointed as a special advocate is not responsible to the party”.

That seems to me to be strangely indifferent and distant. I understand the nature of the relationship implied by “represent” and that is why my amendment does not propose that but it replaces “not responsible to” with the slightly warmer and more positive phrase,

“responsible for representing the interests of”.

That understands the positive nature of it but does not imply the normal professional duty and relationship.

Finally, Amendment 67 adds four new subsections. The proposed Clause 8(6) requires the special advocate to provide gists of material. We shall come to that in the next set of amendments. The proposed Clause 8(7) permits the special advocate to withdraw if,

“he considers that he is prevented or otherwise unable to properly represent the interests of the excluded party”.

I hate the split infinitive “to properly represent” but it provides a quite important albeit rather nuclear approach regarding the special advocate in the sense that he could draw attention to how the case was being run by withdrawing if he felt that his position had become untenable.

On proposed new subsection (8) in Amendment 67, the requirement for the special advocate to make a report to the ISC about each case for which he is responsible is intended to be an additional element of control. Proposed new subsection (9) would impose a duty and responsibility on him to preserve the confidentiality of closed material, except for the gist to which I referred under proposed new subsection (6), and except where material may lead to a crime that should be referred to the CPS. I have said before about that that I am the treasurer of the All-Party Parliamentary Group on Extraordinary Rendition. Some of the things that I believe have gone on in a rather shadowy way around that rather nasty practice could usefully be given some light. This would be a way in which that light could be shed.

To conclude, this group of seven amendments is intended to try to improve the quality of justice and the equality of arms by giving the special advocate a more defined role in Section 6 proceedings; ensuring that the special advocate attends proceedings where the issue is outside national security; ensuring that the special advocate is appointed in a timely fashion, before a Section 6 application is made; strengthening the ability of the special advocate to represent the claimant by ensuring proper access; and enabling the special advocate to resign if he feels that he cannot do his job properly.

The special advocates have circulated a paper to which I have already referred. I was particularly impressed by paragraph 17, where they list eight reasons why CMPs lack fairness and effectiveness. Three of their reasons seem to have relevance to this group of amendments. The special advocates think they are unfair because of the,

“prohibition on any direct communication with open representatives, other than through the Court and relevant Government body, after the SA has received the closed material”.

That is the first reason. The fifth reason refers to:

“A systemic problem with prejudicially late disclosure by the Government”.

The seventh reason refers to:

“The increasing practice of serving redacted closed documents on the Special Advocates, and resisting requests by the SAs for production of documents to them (i.e. as closed documents) on the basis of the Government’s unilateral view of relevance”.

These amendments are designed to tackle some of those problems. Some of the others in the list have importance, but those are the three most relevant. I beg to move.

[Baroness Williams of Crosby]

I mention again that I am not a lawyer, but I have the greatest respect for the noble Lord, Lord Hodgson of Astley Abbotts, who has done a very great service to this country in the excellent work that he and others have done in the All-Party Parliamentary Group on Extraordinary Rendition.

I want to underline what the noble Lord said about Amendment 66 and to ask my noble and learned friend on the Front Bench whether the wording could not be less sweeping than that in the Bill. Clause 8(4) states that,

“a special advocate is not responsible to the party to the proceedings whose interests the person is appointed to represent”.

I understand some of the problems and appreciate that there are difficulties here, but I ask my noble and learned friend to look again at the wording of the Bill. In particular, my understanding is that a special advocate is responsible for everything short of something that might put at risk national security; it does not mean that the special advocate has a way out of in any serious sense representing the interests of the person whom he has been appointed to represent. I think that that is the meaning of the wording of the Bill. Will my noble and learned friend consider wording that is less likely to raise any questions about the obligations of a special advocate for the people before them who have no other way to get across their case? I suggest that some wording that more precisely defines a special advocate’s duty and where it begins and ends would be much better than the wording currently in the Bill.

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It is important that we have discussed these different issues. I hope I have shown that the provisions in the Bill and the rules of court which will be made under these provisions will enable special advocates, in dealing with closed material proceedings, fully to deploy the skills in which they have already been shown to be more than competent. I ask my noble friend to withdraw his amendment.

[Lord Hodgson of Astley Abbotts]

My Lords, this was a menu of issues that I felt we ought to discuss today. I am exceptionally grateful to my noble friends Lady Williams and Lady Berridge for their support on Amendments 66 and 67. The noble Lord, Lord Pannick, did us non-lawyers a favour by revealing the full neutrality—or less than neutrality—of the special advocate. Describing my amendment as a “fig leaf” may have been a bit brutal, but it was at least clear. We now know where we stand, even if we are not reassured by it. I say to my noble friend Lord Gold that, whatever the rights and wrongs of the explanation given by my noble and learned friend on the Front Bench, to say that a special advocate has to stay because it is better that he stays, even if he does not like doing the job, than for the case not to be able to carry on, seems to be a strange way of following justice. My noble friend Lord Faulks seemed to be dangerously close to saying, “This is as good as it is going to get. Let’s trust the judges”. If we are not careful, we will put too much weight on the judges and on their judgment. We need to provide some buttress and support to them in their difficult choice and the difficult task that they carry out.

I am grateful to my noble and learned friend on the Front Bench for his extensive summing up. I am convinced by the arguments on Amendments 55 and 63. On Amendment 64, my noble and learned friend said that a claimant may not want to have a special advocate. Given what the noble Lord, Lord Pannick, said about the nature of the relationship, it seems that the claimant has virtually no interest in this at all. On “must” be appointed, it would be a good idea if he were appointed, because at least it would be better than nothing happening at all. That is an important issue and it is made more important by the way that the noble Lord, Lord Pannick, has illuminated the nature of the relationship or non-relationship.

With regard to Amendment 67, I am not suggesting that the ISC should have judicial scrutiny. I am trying to find a mechanism that will enable some body in which the Government, Parliament and society can have confidence to cast an eye over the way this procedure is working and ensure that the very important delicate balance, which we all know exists between national security and individual liberty, is maintained.

The speaking notes that officials prepared for my noble and learned friend did not get to the heart of what I was driving at. However, a lot of useful information was given by my noble and learned friend. I am extremely grateful to him and to all other noble Lords. I am sure that there are bits that we will want to come back to, but for the time being, I beg leave to withdraw the amendment.

Amendment 55 withdrawn.

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Moved by

[Lord Hodgson of Astley Abbotts]

57: Clause 7, page 5, line 31, leave out paragraph (c)

[Lord Hodgson of Astley Abbotts]

My Lords, I am afraid that I have another group of amendments. In moving Amendment 57, I will also speak to Amendments 60, 61 and 68. Other amendments in this group, Amendments 58 and 59, will be spoken to by noble Lords more experienced in the law than I am. Again I await with some relief the arrival of the heavy artillery.

The purpose of this group of amendments is to encourage the use of gisting as a means of ensuring equality of justice. I accept that the amendments are quite challenging in the form that they have been put down, but I ask my noble and learned friend to see that they are balanced by the duty of confidentiality that was imposed on special advocates in my Amendment 67, which was in the group that we were just discussing.

Simply put, Amendment 57 omits Clause 7(1)(c), which imposes a duty on the court not to allow gisting. That strikes at the root of what this group of amendments is trying to achieve.

Amendment 60 takes Clause 7(1)(d) and replaces the words “consider requiring” with the word “require”, so that,

“if permission is given by the court not to disclose material, it must consider requiring the relevant person to provide a summary”,

would read,

“it must require the relevant person to provide a summary”.

As I said, the aim is to widen the use of gisting. Amendment 61 would omit Clause 7(1)(e) because it is again dependent on the national security definition and has in part been covered, as I said in my introductory remarks, by the duty of non-disclosure imposed by Amendment 67.

Finally, Amendment 68 would omit Clause 10(1) because I am not quite clear what it means. It seems to repeat Clause 7(1)(c) and I would be grateful if my noble and learned friend could explain why we need it.

In Committee, all our debates have had a pre-eminent underlying theme: how to balance the liberty of the subject with the need for national security and the judicial process. Gisting is one way to help that balance. I beg to move.

[The Deputy Chairman of Committees (Viscount Ullswater)]

My Lords, I must advise your Lordships that if this amendment is agreed to, I will not be able to call Amendments 58 and 59 because of pre-emption.

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[Lord Wallace of Tankerness]

I fully accept—and it was said from this Dispatch Box in earlier debates—that it is very much seen as an exceptional procedure. It is not intended to be run-of-the-mill, and nor would we wish it to be seen as “creep”. It is meant to apply in only a very limited number of cases where the Government believe that they have a proper defence to cases made against them, but where at the present time it is not possible to deploy that defence because it would mean disclosing material which would be damaging to the national interest.

As for the earlier point, it has been said on a number of occasions that the role of the special advocates is crucial. It will be crucial in arguing over and determining which pieces of material should be disclosed and which should not and in making representations as to what should or should not be in any gist. However, as I indicated in an earlier debate, it is important to remember, too, that we are dealing with civil proceedings in which the defendant will almost certainly be the state and the claimant will be the person who has been excluded. Therefore, they will know full well what their case is as it is their own case that they will be advancing. Before the closed material is made available to the special advocate, there will be an opportunity for the person who knows what his or her case is to discuss it with the special advocate.

Finally, many judges have gone on record as praising the very valuable work that special advocates do in these cases. It would be wrong to suggest otherwise. Perhaps the noble Lord is not suggesting that, but it would be wrong to give the impression that special advocates are totally hamstrung. They have a very good track record, as has been recognised by a number of senior judges.

[Lord Hodgson of Astley Abbotts]

My Lords, the length of the debate and the breadth and depth of contributions have indicated how important gisting is. My noble friend Lord Carlile spoke about fairness, the noble Lord, Lord Beecham, about balance, and my noble friend Lord Faulks about the dangers of not giving sufficient weight to the demands of national security. One of the problems with not practising law is that you do not have real-life examples, such as those produced by several noble Lords this evening, to back up the impact and give bite to their particular recommendations.

I shall briefly repeat what I said at Second Reading: my experience of working with, speaking to and meeting young Muslim men and women as part of the Speaker’s outreach programme in Birmingham and the West Midlands shows that they have a keen interest in how our justice system works and whether it delivers fairness and balance to all sections of our community. While these are probing amendments, I am sure that this is an issue to which we will come back. Now that my noble and learned friend has given us a lot of helpful information and a careful explanation of the procedure to be gone through, we will have time over the summer to reflect on this. We shall see where we come out, but I am sure we will want to have a further crack at this to make sure that our society and the communities within it do not feel that the justice system does not deliver fair, open and transparent justice to them. In the mean time, I beg leave to withdraw the amendment.

Amendment 57 withdrawn.