Justice and Security Bill [HL]

Lord Hodgson of Astley Abbotts Excerpts

Monday 23rd July 2012 Lords Chamber

Moved by

[Lord Hodgson of Astley Abbotts]

69: Clause 10, page 7, line 3, leave out paragraph (b)

[Lord Hodgson of Astley Abbotts]

My Lords, Amendment 69, which is also in the name of the noble Lord, Lord Dubs, is one of a group of three, and our names are also attached to Amendment 69ZB. I will pass the baton to him—appropriately in this Olympic week—for the second amendment in a minute.

The group of amendments is concerned with Clause 10, the general provision about Section 6 proceedings, and subsection (2), which is about rules of court relating to Section 6 proceedings. Paragraph (b) says:

“enabling or requiring the proceedings to be determined without a hearing”.

My amendment seeks to leave out those words.

When my noble and learned friend winds up this debate, he may say that this is just a case of avoiding expense where no hearing is needed. If so, I understand the purpose, but I do not entirely support it or agree with it. Carried to an extreme, this would deprive the special advocate and/or the claimant of any opportunity to engage to any extent in this part of the procedure. We are talking here about closed material proceedings—secret hearings—about which there may be public concern.

I hope that my noble and learned friend will be able to explain why the interests of transparency and open justice do not command the idea that some hearing, however formal, formulaic or brief, would be appropriate. In particular, I hope that he will explain why the word “require” should appear here; I understand why “enable” should be included, but requiring proceedings to be determined without a hearing seems a step too far. I beg to move.

[Lord Dubs]

My Lords, I shall speak to Amendment 69ZB, but before that I comment that in previous Committee sittings on the Bill, the Government have had hundreds of thousands of pounds-worth of free legal advice—some of it contradictory, but advice has been there. They are not going to get any from me because, like the noble Lord, Lord Hodgson, I am not a lawyer, so I tread tentatively along this path.

Amendment 69ZB is somewhat more complicated than the amendment by the noble Lord, Lord Hodgson, to which my name is also attached. I understand that it is a well preserved tradition that in common law there are rules against the admission of hearsay evidence, inexpert opinion evidence and other unreliable forms of. However, I also understand that in recent years there has been a move away from those rules, because it is now easier for evidence to be challenged and the trial judge can, with the benefit of that challenge, assess how much weight to give to the evidence.

The difficulty is that, in a CMP regime, the judge cannot assess the reliability of unchallenged evidence; he is disabled from doing that. The public and the excluded party need to be reassured that the state will be permitted only to allow private evidence to deprive the citizen of a verdict if that evidence is deemed reliable by objective standards. That is my first point.

Secondly, there is a duty of frankness on the Secretary of State. The provisions in proposed new subsections (6)(b) and (f) do no more than ensure that an excluded citizen will get the same protection as is usually afforded to an absent party in the High Court—one might refer to ex parte proceedings, and so on. It would be unreasonable for the Secretary of State not to make such full and frank disclosure to the court when he is obtaining the huge advantage of a CMP.

The material must be relevant to the following matters: any issue in the case; the question of whether any evidence is admissible; and, in the case of hearsay statement, whether it was obtained by torture and whether it was accurately recorded. Next, there is the reliability of the evidence: whether the source was subjected to threats or bribes to induce him or her to give information. Then, as regards witnesses, there is the existence of lines of inquiry or names of witnesses. Given the disadvantage faced by the special advocate in challenging the state’s case, the state should give any special advocate the leads it has. That echoes the traditional common-law rule—I think it is known as the old Peruvian Guano case—which obliges the party to disclose lines of inquiry in any civil litigation. Finally, there is any evidence relevant to whether the CMP is necessary at all. The need for that disclosure is self-explanatory.

Proposed new subsection (6)(b) prohibits the Secretary of State from redacting parts of documents disclosed to the special advocate. After all, special advocates are already security cleared. There can be no justification based on security risk or privacy to suppress parts of otherwise relevant documents from those within the security ring or circle. If part of the document is relevant, the entire document should surely be seen so that everything can be read in its context. Quotations out of context may not be meaningful.

Then there is the question of banning evidence obtained by torture or cruelty. Evidence should not be admitted unless the court is convinced that it was not procured by torture or other cruel treatment. There is a danger that statements from persons in detention abroad may have been obtained in this way. Given that there is already a ban laid down by the Supreme Court on using statements obtained by torture, and that only the Government would have access to information about how statements were obtained, surely it is only fair that the burden of proof should rest upon the Government to show how such statements were obtained when they seek to use them in evidence. The excluded party would have no ability to make such inquiries.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, there is a danger of going over some of the ground that we went over at an earlier stage. There are two stages to what we are proposing. There is what we have commonly come to describe as the gateway stage and there is the subsequent stage where individual pieces of evidence are argued over and special advocates make representations on those individual pieces of evidence. If the impression has been given that somehow intercept evidence is in a category of its own and will not be allowed to be challenged by the special advocates, then that is a wrong impression. Like other pieces of evidence, it will be subject to robust argument and debate overseen by a judge who, as the noble and learned Lord, Lord Woolf, said, is there to ensure that there is fairness. It is not a question that somehow such evidence is in a special category and in a box not to be challenged and not to be talked about.

[Lord Hodgson of Astley Abbotts]

My Lords, I am extremely grateful to my noble and learned friend for the very full response he has given to the debate. Obviously, there is a lot of information for us to absorb and think about during the Recess before we get to the next stage of the Bill.

When a couple of non-lawyers such as the noble Lord, Lord Dubs, and I propose an amendment and we are followed by a past Lord Chancellor, a past Attorney-General, a past Lord Chief Justice and a past head of the security services, we need to be pretty careful about what we are doing and sit up and listen. The purpose of the amendments was to improve the balance and the fairness. They were probing amendments at this stage and intended to shine a light of transparency wherever and as far as we could.

The noble and learned Lord, Lord Woolf, argued about proportionality. He said that this would apply in only a limited number of cases in civil proceedings and that the issue of judicial discretion could carry the day. However, in previous debates I have said how in a very few cases that could involve the minority community and in particular the Muslim community, which could have a disproportionate impact on the way that our society operates and the way that justice is seen to be operating. I have referred to my own visits to schools and so on as part of the Lord Speaker’s outreach programme, where one sees how extremely sensitive these communities are about the way our judicial system works. Therefore, I am concerned about that. I am also concerned about what the noble Lord, Lord Beecham, said about mission creep. His Amendment 69A concerns another area of danger in Clause 11—where the mission could be expanded quite a lot on the basis of regulation—which we all need to explore.

The noble Baroness, Lady Manningham-Buller, feels that I have got it in for the security services. I have not got it in for the security services at all—

[Baroness Manningham-Buller]

I assure the noble Lord that I have no such thoughts.

[Lord Hodgson of Astley Abbotts]

I am merely testing the case and, as I have said before, I quite understand the anonymity of sources and the danger of publicity to them. However, perhaps I may just say that the amendments that the noble Lord, Lord Dubs, and I have tabled today refer to the role of the special advocate, who is security cleared. Therefore, we should be able to rely on that.

With regard to Amendment 69, my noble and learned friend said that this was an issue of case management where the parties have agreed and that it was business as usual. Unfortunately, this is where the ice cracks under my feet because I have no idea whether that is a good argument. I see nothing about parties having agreed in the Bill at present. However, I am sure that we will have a chance to consider this further. I will certainly need further advice before going any further on the point. Therefore, at this stage, I beg leave to withdraw the amendment.

Amendment 69 withdrawn.

--- Later in debate ---

[Lord Beecham]

My Lords, this amendment and the other amendments in the group relate to what are extraordinarily wide powers that Clause 11(2) and subsequent subsections would confer on the Secretary of State to amend, for the purposes of the legislation, the definition of “relevant civil proceedings”. The Delegated Powers Committee looked in some detail at these matters and I rely heavily on its observations. It raised significant concerns and made it clear that, while, of course, the procedures are confined to civil proceedings, the effect of the Bill is to permit any such civil proceedings to be ones in which the procedures can be invoked.

Subsections (2) to (4) of Clause 11 confer a very wide power on the Secretary of State to amend the definition and to amend the definition by affirmative order. In so doing, courts or tribunals can be added or removed and rules can be prescribed. The committee stated that:

“The powers are undoubtedly wide”.

They might, indeed, in the view of the committee, be exercised so as to specify a coroner’s court. Of course your Lordships will recall that the question of inquests has been mentioned more than once. The Lord Chancellor has indicated that procedures would not apply to inquests but, on the face of it, that decision could be changed under the provisions of Clause 11(2), by order, to be approved, as I have indicated, by affirmative resolution. In addition to that, there is the possibility of some urgency being required in the mind of the Government and that is also a question which the committee addressed. There is the possibility of a made affirmative procedure being invoked under which a change could be instituted by, effectively, tabling an amendment. Although, ultimately, that would have to be approved, it would take effect immediately.

The committee, while acknowledging the Government’s concerns about urgency, pointed out that if a situation arose in which it was felt that an application needed to be made in proceedings before a court or tribunal which was not initially specified and for which, therefore, an order would have to be brought forward, the Government,

“does not explain why it is thought that an order which attracts the draft affirmative procedure should offer any speedier means of meeting that perceived need for amending legislation than, for instance, a short Bill fast-tracked through both Houses”.

It said, and I think that there is considerable force in the argument, that that approach,

“would at least ensure that control over further extensions of the ‘closed material procedure’ would remain with Parliament, rather than with the Government”.

Nevertheless, it took the view that the House should consider,

“the scope of the powers conferred so that it may appreciate the unconstrained nature and extent of the provision that might be made under them by this or any future government. The House may wish to consider whether the Bill should be amended to restrict that scope or to include any such safeguards as the House might regard as necessary for ensuring Convention rights are observed and for protecting the interests of open justice”.

The Constitution Committee thought that the made affirmative procedure might be more appropriate, but the Delegated Powers Committee felt that that would perhaps be the least likely way to meet the need for urgency.

The provisions here are extensive. The procedure that the Government propose to adopt does not really allow sufficient parliamentary scrutiny and leaves the decision, as the Delegated Powers Committee made clear, in the hands of the Government when there is an alternative if a situation of urgency arises. Your Lordships might think that this is much too broad a power to be left in the way that this clause and its subsections provide and I sense that the other amendments in this group reflect that view. I hope that the Government will reconsider and go back, before Report, to the recommendations of the Delegated Powers Committee and seek to amend this provision as it currently stands to one that is more acceptable and more consonant with the procedures of parliamentary scrutiny of what might be significant changes to the scope of the Bill. I beg to move.

[Lord Hodgson of Astley Abbotts]

My Lords, I have tabled Amendment 70 in this group. The noble Lord, Lord Beecham, has covered the points and I do not wish to weary the Committee with repetition. Amendment 70 would remove subsections (3) and (4), as well as subsection (2), and is therefore more brutal in its application. One of the briefings I received on this part of the Bill said that this was a potentially,

“unwarranted extension of an unsatisfactory procedure”.

I therefore support what the noble Lord was saying about the dangers of mission creep, which we have discussed before. As we keep hearing it stressed that this is going to be a very rare procedure, it seems strange that we should allow courts to be added in what is essentially a pretty cavalier manner. I am all for statutory instruments and their positive nature, but they are unamendable and inherently too weak to tackle something that is as dangerous and difficult as this area that we have been discussing these past few days.

Subsection (4)(a) refers to “explaining the meaning” of “rules of court”. Do they really need to be explained? Are we not, as the noble and learned Lord, Lord Woolf, has explained to us, able to rely on judicial discretion and ability to interpret? I am concerned that explaining the meaning of the rules of court carries with it, in some more sinister way, an instruction as to what they mean and what judges should do. Similar wording in subsection (4)(b),

“enabling provision of a particular description to be made by such rules of court”,

seems to me, as a non-lawyer, to carry with it a degree of direction and fixed purpose that does not fit well with the sensitivity of the nexus that we have been discussing between civil liberties and the need to protect national security.

[Baroness Turner of Camden]

My Lords, I am not a lawyer but I am a former trade union official and tend to look at the proposed legislation before us from the standpoint of people who are working in industry and are members of unions. I am most concerned about the possible impact of this law on employment legislation.

We know that the Government are currently considering employment law and have been considering employment tribunals now for a very long time. Every time I have asked about employment tribunals I have been told that they are under consideration and that the Government are looking at them, and so on and so forth. Every time that employment tribunals, or tribunals of any kind, make an appearance in legislation, I ask what the Government are up to and what it means. Can we be told whether there is an impact on employment in subsections (2) and (4)? It is these two subsections, referred to in Amendment 70, that first attracted my attention. Can we be told precisely what these subsections are intended to involve regarding reference to tribunals, with all that that could mean for employment law?