Justice and Security Bill [HL]

Lord Judd Excerpts

Wednesday 21st November 2012 Lords Chamber

[Lord Judd]

My Lords, I should like to add a word of tribute to the Joint Committee on Human Rights for the thoroughness and courage of its work, and I pay tribute to those who put these amendments forward.

I am not a lawyer, but what concerns me in all this is what lies behind the issues we are discussing—we are trying to protect a society that is worth having. Central to the society that is worth protecting in the United Kingdom, as I understand it, has been the evolution of the cause of justice and fairness in our legal system. That has been the central pillar of what has made Britain a country in which it is good to live. Alongside this, of course, has been the independence of the judiciary; and the judge has a key role—not a role that is perceived by just those in the know, but one that can be widely seen as the key role—in ensuring that this happens.

The first thing I will say is that I find myself troubled by the fact that if we compare ourselves now with how we were 20 years ago, the quality of justice in our society is not as good; there has been an erosion. Of course I understand the acute and sinister pressures behind this trend. We are up against sinister, ruthless techniques and people. I worry that we are giving them the victory and legislating to underpin that victory by taking steps that may diminish the quality of our justice.

Let us look for a moment at the kind of issues that are being considered in the cases about which we are worried. They include torture and human rights, which are sensitive and emotive matters. If it becomes a growing concern in society that things are not as they should be in the administration of justice in these areas, and if it should be thought that the Government and Executive want to conceal things that happened which should not have happened, that will play into the hands of the extremists who are trying to build anxiety, doubt and instability into our society.

This is the very time that we must stand steadfast. Of course I am not suggesting—it would be madness to do so—that there are no matters that simply cannot be revealed in a court case. However, we must not regard this as something that on balance is right. If we are going to diminish the normal standards that we expect and see as central to our justice system, it must be an absolute last resort because we have to do it, and it should be confined to the narrowest possible areas of control. The amendments in this group are a step towards resisting a further erosion of our system of justice.

[Lord Phillips of Sudbury]

My Lords, I accept that my noble friend the Minister has an acutely difficult task in dealing with this part of the Bill and with these amendments. I do not think that anybody in this House pretends otherwise. Balancing national security against individual liberty and due process is judgment-of-Solomon stuff. However, I concur with the virtually unanimous voice of those who have said that there is a want of balance and proportionality in the arrangements in this part of the Bill.

In particular, I support Amendment 36. I will not repeat what others said very well, but I will draw the attention of the House—and perhaps of some beyond the House—to a very plangent example of the failure of the Bill to balance as it should the two competing issues. As was explained, Clause 6 requires a judge—it is not discretionary—to grant an application for a closed material procedure if,

“disclosure would be damaging to the interests of national security”.

There is no qualification of “damaging”. There is no talk of “substantial” or “significant” damage. As it stands, a judge would have to grant such an application if the damage were marginal or even trivial. That is why it is essential to agree Amendment 36—and Amendment 37 with it—and some other amendments in the group that would ensure that no judge was put in the difficult, highly undesirable circumstance of having to grant a closed material proceedings application in circumstances that, on any common-sense basis, would not be warrantable.