Justice and Security Bill [HL]

Lord Hodgson of Astley Abbotts Excerpts

Wednesday 21st November 2012 Lords Chamber

Moved by

[Lord Hodgson of Astley Abbotts]

31: Before Clause 6, insert the following new Clause—
“Application for public interest immunity
(1) In any relevant civil proceedings in which the Secretary of State considers that—
(a) a party to the proceedings, whether or not the Secretary of State, would be required to disclose material in the course of the proceedings;(b) such disclosure would be damaging to the interests of national security; and(c) the interests of national security outweigh the public interest in the fair and open administration of justice,the Secretary of State must make an application for public interest immunity under this section.(2) An application for public interest immunity under this section must be made by the Secretary of State issuing a certificate relating to the individual documents in question and giving reasons why, in the Secretary of State’s view, disclosure of each relevant document would be damaging to the interests of national security.
(3) The court must, when deciding whether the material attracts public interest immunity on application under subsection (1), weigh the degree of harm to the interests of national security if the relevant material is disclosed against the public interests in the fair and open administration of justice.
(4) The court shall, in conducting the balancing exercise required under subsection (3), consider whether any of the following procedures may mitigate any harm claimed to the interests of national security so as to enable disclosure or partial disclosure of material subject to an application under this section—
(a) redaction;(b) orders for anonymity;(c) disclosure subject to confidentiality undertakings;(d) hearings in camera;(e) restrictions on reporting;(f) restrictions on access;(g) restrictions on the use of the material.(5) If, after conducting the process set out in subsections (3) and (4), the court concludes that the balance of the public interest lies in excluding any material, the court must uphold the application for public interest immunity made by the Secretary of State in relation to that material.
(6) Where any claim by the Secretary of State for public interest immunity is upheld the court must appoint a special advocate pursuant to section 8.”

[Lord Hodgson of Astley Abbotts]

My Lords, I shall speak also to Amendments 32 and 44. I am grateful to the noble Lord, Lord Dubs, for putting his name to these amendments.

We come now to Part 2 of the Bill, which is concerned with closed material procedures. They are a new development in UK civil courts and the proposal has not proved to be uncontroversial. We discussed the challenges of CMPs extensively in Committee in July. I am aware that noble Lords have tabled a number of amendments in this group, which will enable a wider discussion of this important issue, so I will cut to the chase. If in cutting to the chase as a non-lawyer I trespass on some legal niceties, I apologise in advance.

My concerns about closed material procedures can be grouped under two main, broad headings. The first is the issue of fairness. Can a trial in which the accused does not have an untrammelled ability to test fully the evidence against him, interacting as appropriate with the best legal advice, ever be fair? The issue of fairness is one that I shall return to and consider in more detail when we examine the role and duties of the special advocate and consider the rules of court.

My second general concern is what might be described as the danger of mission creep. It is on this that Amendments 31, 32 and 44 focus. Having heard from my noble and learned friend on the Front Bench, and having listened carefully to the powerful and informed speeches of the noble Baroness, Lady Manningham-Buller, I accept that there may be cases where a closed material procedure is required. However, on all the evidence that I have read, it would be a rare event indeed. I have no doubt that my noble and learned friend on the Front Bench and the Government believe that the procedure would be used only very occasionally. However, times change, Ministers change, Governments change and, above all, circumstances change, and with those changes may come—not necessarily will come—new approaches. My concern is the risk that what begins as a rare event will over time morph into the default option.

I would like to see enshrined in the Bill a set of steps—hurdles, if you like—that the Government of the day will have to clear before they can resort to a CMP. The first is a requirement to go through the public interest immunity procedure, from which the judge can reach a balanced conclusion on whether the interests of national security require a closed court. Amendment 31 would insert a new clause at the beginning of Part 2 requiring a PII application to be made in any case where a CMP is envisaged. It would set up a series of requirements for making such an application. Amendment 32 lays down a further series of tests to be met in associated court proceedings. Amendment 44 would prohibit the use of CMPs where a claimant’s loss of liberty may result.

I will briefly outline one or two of the key provisions in the amendments. Subsection (1) in Amendment 31 would require the Secretary of State to make a PII application in any case where he considered that evidence would be disclosed that would damage national security, and where that concern outweighed the key public interest in open and natural justice being done. Subsection (2) would ensure that the Minister had to certify why disclosure of each document was withheld; it states that each certification will have to be considered individually by the court. This would enable the judge to balance the competing interests of national security and open justice—what I am told is called the Wiley balance.

Subsection (3) would give the judge a crucial judgmental role and is in contrast to what some have called the judicial straitjacket in Clause 6. As highlighted in our debate in July, the PII system does not enable a judge to rely on material that is seen by one party and not another. As a general rule, it does not take place in secret. In this way, national security can be protected while ensuring fairness, transparency and equality of arms. It is worth remembering also that, unlike CMPs, PII is not an all-or-nothing process. A wide range of tools is available to judges, including the use of redactions and in camera hearings, to ensure that justice can be done while national security-sensitive information, such as the names of agents or their operating techniques, is excluded. My noble and learned friend on the Front Bench said that a first-stage PII process would be costly and illogical. However, we have been reassured by the special advocates that this is not right and that it is CMPs that are likely to prove costly and time-consuming—in addition to their other, controversial qualities.

--- Later in debate ---

[Lord Pannick]

Before the noble Lord, Lord Hodgson, replies, it may be of assistance to the House if I seek to respond to a specific question put to me by the noble Lord, Lord Owen. I am very grateful for the general support around the House for the concept of judicial discretion in this area and that CMPs should be a last resort, if they are to exist at all.

The noble Lord, Lord Owen, asked me to address Amendments 48 and 49, to which the Minister referred. I am grateful to the Minister for the very careful way in which he went through the amendments. The noble Lord, Lord Owen, was concerned that Amendments 48 and 49 would introduce a duty to provide a summary or a gist of the material if the closed material proceeding is to be ordered. The answer is that disclosure of the summary or the gist would be required only if the Government wish to proceed with a CMP. If they do not wish to disclose the gist or the summary, which is a matter entirely for them, they do not have to do so under the amendment. There simply would be no closed material proceeding. I suggest that that is entirely appropriate if we are to have a fair balance of the interests in open justice and other competing interests. I am grateful to the House.

[Lord Hodgson of Astley Abbotts]

I am extremely grateful to my noble and learned friend for the courteous and extensive way in which he has replied to Amendment 31, on which this debate has hung. Perhaps I may make clear to my noble friend Lady Neville-Jones that this was not to end CMPs: it was merely to narrow the gateway to CMPs by requiring a PII process first. The noble Lord, Lord Pannick, has discussed a number of amendments that give effect to the recommendations of the Joint Select Committee. If I was going to be irreverent, I might say that I regard those as offering 80% of the loaf, as opposed to 100% of the loaf that I was seeking.

However, I have to recognise that the Joint Select Committee has spent a great deal of time on this, a great deal more time than I have. Speaking as it does for both Houses of Parliament, it speaks with great authority. I also practically recognise that 80% of a loaf is better than no loaf at all. I shall seek, with the leave of the House, to withdraw my amendment and then give my support to the noble Lord if he chooses to move his amendments to give effect to the Joint Select Committee’s proposals. I beg leave to withdraw the amendment.

Amendment 31 withdrawn.