Justice and Security Bill [HL]

Lord Lester of Herne Hill Excerpts

Tuesday 19th June 2012 Lords Chamber

[Lord Strasburger]

My Lords, I am in a small but growing minority in this debate in that I am neither a distinguished lawyer nor a member, not even a former member, of the ISC.

When compared with many other countries, it is remarkable how much the British people hold the courts in high regard and respect their decisions. This is partly because our judges are seen as incorruptible, independent and wise, but the main reason is that court decisions are the result of a process that is fair and transparent. By “fair” I mean that the court will give no privileges to either side, even when one side is the state. This principle is known in European jurisprudence as “equality of arms” and is a very British concept. An important aspect of equality of arms is that each side has an opportunity to see the other side’s evidence, to challenge it and test it, and to call evidence of their own to rebut it. The decision that is made after that process has been respected as one that we have good reason to respect.

What does transparency mean in this context? The principle of transparency entails that proceedings should be open to the public unless there is a very good reason why not. The court should make plain the reason for its decision. No matter how high our regard for the judge, it is very hard to trust his or her decision if you do not know how and why it has been reached.

Closed material proceedings are a big departure from the principles of transparency and fairness. The Government are proposing that, in civil cases where they are the defendant and are being accused of wrongdoing, they should be able to stack the proceedings in their favour on what is probably the deciding issue in the case. CMP is not just a secret hearing with the press excluded; the litigants and their lawyer are also locked out. The Government’s lawyer would have a private meeting with the judge who will decide the case and give him or her so-called evidence that their opponent cannot see. I say “so-called evidence” because it will simply be assertions that have not been tested or challenged. It may be mistaken or could even be complete fiction. Even so, the Bill requires the judge to take this highly dubious information into account when reaching a verdict—a very one-sided arrangement that cannot in any way be described as fair.

What led to the creation of CMPs in the first place? They were introduced for Special Immigration Appeals Commission hearings involving foreigners for whom a national security deportation was being considered. Previously such appeals were held in total secrecy and, by comparison, CMPs were a bit less bad. We are now being invited to extend CMPs from this highly specialised application to civil cases, where the Government are the defendant and are being accused of wrongdoing.

However, that is not the end of this mission creep. Buried in the Bill, in Clause 11(2), is the power for the Secretary of State to amend the definition of “relevant civil proceedings” by statutory order, into who knows what areas of our justice system.

Of course, we have a good idea of how far the Government would really like to go in extending the scope of CMPs. The Green Paper sought to apply CMPs to all civil proceedings involving the Executive. Secret and unfair hearings, therefore, could have been invoked by a hospital trust fighting a medical negligence claim, or a local authority defending itself against a claim for maladministration. For now, the Lord Chancellor has rowed back on that ambition in the face of a mountain of protest, but he has shown us the ominous and dangerous road that he wants to take us down.

What of the safeguards that the Government have trumpeted? We are told that the case judge will decide whether CMPs will be invoked, not the Minister. However, there is a disconnect between what the Government are saying on this and what is actually on the Bill. According to the Bill at present, judges will have their hands tied, with no discretion to consider the competing interests of disclosure in the interests of justice and national security. This, therefore, will effectively be a ministerial decision, with no effective judicial oversight.

What, then, is the problem that this Bill seeks to solve? The current system of PII certificates works well. It allows a balance to be struck between the requirements of justice and national security. If a Minister believes that disclosure could harm the public interest, he or she signs a certificate to that effect. The court then considers the issue, and the judge has a number of ways to handle the information in question. He can withhold it, release it, redact it before he releases it, protect the identity of the witness, and he has a number of other nuanced solutions. The PII system works well, and the Government have failed to bring forward a single example of where the PII system has led to a disclosure that has been damaging to our national security.

In fact, the Bill requires a Minister to “consider” the PII route before applying for a CMP, but the wording of this provision is so weak and easy to evade that, in effect, Ministers can and will demand CMPs without giving any serious consideration to the much fairer PII route. If this Bill is to proceed, before the Minister can ask for a CMP he should have to demonstrate to the court that for some reason a PII certificate will not do the job.

What do others think of this Bill? The House could do worse than listen to the views of the special advocates, specially vetted lawyers who are appointed to serve the court in CMPs. If anyone knows about the grimy details of this part of the justice system, they do. In a memorandum signed by 50 special advisers—which is basically all of them—they say that,

“CMPs are inherently unfair and contrary to the common law tradition … the Government would have to show the most compelling reasons to justify their introduction … no such reasons have been advanced … in our view, none exist”.

There you have it from the horse’s mouth. No reason has been advanced and none exists for making part of our civil justice system inherently unfair. That is the opinion of the specialist lawyers with deep knowledge of this type of proceedings and with no axe to grind at all.

What, then, is behind this solution without a problem? Over the past few months we have been offered a series of spurious justifications for this draconian Bill, all of them without any evidence to support them that stands up to scrutiny. I put it to the House that this Bill has nothing to do with protecting national security or preventing the CIA from withholding intelligence from our agencies because they do not trust our courts, or with saving the Government from having to settle civil cases for large sums because they cannot use sensitive data to defend themselves. All these reasons and others have been advanced at various times with little or no evidence to support them.

I put it to noble Lords that the real problem that this Bill is designed to solve is the justified embarrassment that the security agencies suffered when a recent civil case exposed their involvement in rendition and torture. In that case, the previous Government sought to conceal from the courts seven paragraphs that admitted what the Americans did to the litigant while he was in their custody.

The judge’s view was that:

“Of itself, the treatment to which”,

the litigant,

“was subjected could never properly be described in a democracy as ‘a secret’ or an ‘intelligence secret’ or a ‘summary of classified intelligence’”.

This Bill might have prevented the exposure of this wrongdoing and it may do so in the future if we pass it without major amendments.

[Lord Lester of Herne Hill]

I am sorry to interrupt my noble friend but that is not quite right. The previous Government attempted to provide that information to the United States Military Commissions, but were thwarted from doing so by the American intelligence authorities. What the British Government sought to do was entirely honourable and they did not seek to conceal it from our own court. I thought I should just place that on the record.

[Lord Strasburger]

I thank my noble friend for that. The Lord Chancellor has indulged in plenty of comforting rhetoric in an attempt to assuage the serious concerns that many people wiser than I have about this Bill. The problem is that there is a yawning chasm between his words and those in the Bill. For example, he assures us that the judge will decide whether CMP will be used but the Bill as currently worded makes clear that the judge’s hands will be tied and will have little option but to grant the Minister’s request for CMP, even if he or she believes that the case could best be tried using PII rules. The judge will not be able to adjudicate between the competing arguments of justice and national security.

As it currently stands, this Bill is a toolkit for cover-ups. As such it is a threat to our democracy and we have a lot of work to do to fix its serious shortcomings. I hope that my noble and learned friend the Minister will listen to the strong misgivings about this Bill around the House, among civil liberties campaigners and, particularly, the special advocates who have a much more balanced and independent view of these matters than the politicians and the security agencies.

I will listen carefully to the Minister’s response today and in Committee. I hope that he is able to give me comfort to support a much-improved version of the Bill in the future but there is a long way to go.

[Lord Faulks]

My Lords, this Bill was always likely to be controversial and contributions so far have shown that that is the case. Part 2 has been a particular focus of attention. It is concerned with restricting the disclosure of sensitive material in court proceedings. A number of noble Lords have spoken who are not lawyers, and I entirely agree that the issues that this Bill throws up are not solely the possession of lawyers. I am, however, an advocate and as such am instinctively opposed to any erosion of the principle of natural or open justice. Evidence should be heard and read by litigants and their representatives, and their comments and reactions to it are a fundamental part of what we recognise to be a fair trial, whether that trial is in criminal or civil proceedings.

The Bill involves the extension of CMPs to include civil proceedings. It should be emphasised that CMPs are not of themselves a novelty and exist in a number of different contexts, as the Minister has described. The extension was presaged by the Green Paper, and the Government’s proposals have been much commented on in the media and by various interested parties. The Government have acknowledged the contribution of those who commented on the proposals, not least the JCHR, of which I am now a member, although I claim no credit for that contribution as I was not a member at the material time. I am conscious of some of my distinguished predecessors on that committee. Contributors to the debate even included the Daily Mail, a newspaper that normally causes the party opposite to reach for their collective smelling salts.

In response to representations, the Government have made some important modifications to their original proposals. The most important seems to be that the CMPs will be appropriate only in the disclosure of evidence that would be,

“damaging to the interests of national security”,

rather than in criminal proceedings or disclosure that might damage international relations. I share with the noble Marquess, Lord Lothian, some little confusion as to why inquests fall into a separate category. As the noble Lord, Lord Lester, has said, this may be to do with the jurisprudence in Strasbourg about Article 2 and its expanded approach. The questioning in inquests may be rather different than in civil proceedings or judicial review proceedings, or the Government, as a reasonable matter of political expediency, may have responded to public disquiet.

Be that as it may, there appear to me to be certain relevant questions about what remains of CMPs. Have the Government made their case for an extension of CMPs, and if so are there sufficient safeguards in the Bill to minimise any risk to justice? The problem with the current system is that the Government are between a rock and a hard place. They may take the view that in disclosing material that will damage the interests of national security, but using PII if the application is successful, they may not be able to defend proceedings without what may be crucial evidence in their favour. The result may be that there is an inappropriate compromise of a civil claim.

The noble Lord, Lord Thomas, says that the Government are apparently in favour of the settlement of proceedings. This is not what I detect from the anxiety behind this Bill; they are in fact against inappropriate settlements where evidence has not been adduced. On the other hand, if the PII application is unsuccessful and the judge in performing the relevant balancing exercise decides to order the disclosure of material, the Government, consistent with their assessment of the potential damage in disclosure, will be placed in a position where they may have to settle a claim, to which there is if not an actual then at least a potential answer. This cannot be satisfactory and is of itself damaging to the interests of justice. The Government are entitled to justice, too.

The noble Lord, Lord Pannick, says quite rightly that in the course of looking at the doctrine of PII, judges have developed a range of responses to mitigate the stark choice that is sometimes presented to the Government. The ingenuity of judges includes the redaction of material and anonymisation and other procedures, but sometimes—this has been the case in the past and will be so again—the Government are left with that stark choice, which I understand is the philosophy behind this part of the Bill.

I am naturally concerned by the comments about CMPs that have been made by the special advocates, some of whom I know well. Many of their points seem valid; in particular, I am unsure how a satisfactory assessment of prospects of success can be made in the absence of critical evidence. How, too, can cases settle on the basis of a proper assessment of likely outcome—and here I acknowledge the point made appropriately by the noble Lord, Lord Thomas? How is Part 36 of the Civil Procedure Rules to operate? I am also very sympathetic to their very understandable regard for their clients’ interests, which they feel may be compromised by the lack of a free flow of communication between the special advocates and open advocates and by the risk that some relevant piece of information may remain unchallenged because of this lack of communication.

I am much less convinced, however, by the suggestion that PII is working well. I am entirely sure, as the noble Lord, Lord Macdonald, pointed out, that judges are performing the balancing exercises wisely, but for the reasons I have given the operation of PII may on occasion simply fail to deliver a just decision.

The use of CMPs will inevitably be what has been described by the independent reviewer as a second-best solution. However, it is significant that David Anderson QC, in the course of his providing memoranda to the JCHR, was convinced that there was a need to have a CMP available as an option in civil cases, albeit that it might not need to be exercised anything other than very occasionally, and I agree.

Special advocates, whatever their reservations about these procedures, are known to be tenacious in the defence of their clients and in challenging evidence adduced in CMPs. It must be recorded that a number of distinguished judges, not least the noble and learned Lord, Lord Woolf, who is not in his place, have said that CMPs are capable of producing justice and are consistent with it. Other judges, such as the much quoted noble and learned Lord, Lord Kerr, have observed that the lack of informed challenge, based on instructions, may leave the judge with a significant disadvantage in assessing the cogency of relevant evidence.

While in theory that is undoubtedly right, experience of our judiciary tells me that if evidence is adduced under CMPs, judges are likely to be particular rigorous in assessing its value. For example, if what is adduced amounts to double hearsay from a dubious source, that evidence, which could be unchallenged, is unlikely to be of much persuasive value. I simply do not recognise the scenario described by the noble Lord, Lord Strasburger, whereby little bits and fragments of assertion are put forward and expected to be relied upon by judges. It seems to me that if the Secretary of State elects to invoke CMPs, he or she is likely to do so only when the evidence is of real cogency. Let us not forget that the Government have lost cases after CMPs.

It is also worth observing that the extension of CMPs relates to civil proceedings involving claims for damages or judicial review, rather than to criminal proceedings, as we were reminded by the noble Lord, Lord Butler of Brockwell. While all cases should be subject to a full and preferably open hearing, the extension provided by this legislation is not concerned with criminal charges with a potential for loss of liberty.

The relative roles of the judge and the Secretary of State were much discussed in the responses to the Green Paper. It is for the Secretary of State to make the application, and the court must then make an appropriate declaration. However, I agree with the noble and learned Lord, Lord Mackay of Clashfern, that under Clause 6(2) one would expect the judge to try and devise strategies and to be interventionist in order to have a mode of trial that can, if possible, avoid CMPs, which are perhaps a last resort—but a necessary last resort.

It is said that Clause 6(5), which provides that the Secretary of State must first consider making a claim for PII, is of very little force. However, I would expect the Secretary of State to need to satisfy a judge that there had been at least consideration of such an option, and an explanation provided as to why PII was not used. The rules of court that are to be made pursuant to Clause 7 require a judge to consider providing a summary or gist of the material that is not damaging, within the definition of the Bill. Presumably, it would enable the claimant to provide some comments on the relevant evidence. This would need to be carefully done, but it would provide a potentially important safeguard.

The role of the Human Rights Act is also of importance. Article 6—the right to a fair trial—is specifically referred to in the Bill and provides another safeguard. In fact, we had well established principles of fair and open justice long before the Human Rights Act came into force. However, if one is to view these provisions in Human Rights Act terms, it should be remembered that Article 2 of the convention places an obligation on the Government, as a public authority, to protect the life of their citizens. In focusing on litigants, we should not forget the rest of the population, whose well-being may well be jeopardised by the disclosure of sensitive material.

Such concerns also colour my approach to the removal of the Norwich Pharmacal remedy in relation to sensitive material. It is vital that we protect the sources of our intelligence and that we maintain the confidence of our allies who provide us with that intelligence. If there was any doubt about that, it was confirmed by the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian. This remedy is concerned with cases in which foreign litigants want to see material that we hold innocently and does not affect cases where the Government are alleged to have been involved in wrongdoing, although I do not particularly like the expression “legal tourism” in this context. While I understand why the Government have chosen a wide definition of sensitive material, I invite the Minister to explain why the definition needs to be quite as wide as it is in the Bill. I do not suppose that it is intended to deny access to what most people might regard as non-sensitive material, but the Bill at least has the potential to allow such an approach.

We have heard a lucid analysis of the Binyam Mohamed case by the noble Lord, Lord Lester; and other noble Lords, including the noble Lord, Lord Pannick, referred to it. It can be seen from an examination of that case law that the courts in fact showed a considerable degree of deference to the security services, and some of the concerns expressed by other countries may be rather lacking in justification. However, it has to be remembered that the Norwich Pharmacal power is unqualified. The Government do not have the choice that they have in relation to the CMPs, and if ordered to produce this material they have to comply with the order.

Whether or not the fears of the United States and other countries are unfounded, it is critical for the safety of our country in these dangerous times that we do not jeopardise that relationship. I appreciate that the Government are placed in a very delicate dilemma, and it seems that we should have profound sympathy with their response, albeit that modifications may be made in the rigour of that test, which will more satisfactorily balance the respective interests.

This Bill will be thoroughly scrutinised by your Lordships’ House—

[Lord Lester of Herne Hill]

My noble friend may not be aware of the fact that in the Binyam Mohamed case, after the Norwich Pharmacal order was made, the court reserved the question of public interest immunity, but it never had to be decided because he was then released. It would not have been all or nothing. It is quite clear from the judgments that there would have been something. The courts, having decided Norwich Pharmacal, could then have decided on PII. I am not sure whether that is appreciated.

[Lord Faulks]

I entirely appreciate that. It is one reason why I suggest that there may be some modification to the test that we may ultimately arrive at, after having considered this matter in Committee. This Bill will be thoroughly scrutinised in Committee by your Lordships’ House, and it is clearly right that it should be. I hope and trust that we can avoid hackneyed references to Kafka and the Star Chamber. I am sorry that in an otherwise lucid speech by the noble Lord, Lord Beecham, he did not resist that temptation. The Government have a duty to protect us. This Bill is situated at the junction between that duty and the need to protect civil liberties and the integrity of the trial process. Please let us not forget the people of this country and those in the security services who labour silently on our behalf to protect them, in the course of our zeal to trumpet our commitment to the rights of litigants.