Justice and Security Bill [HL]

Lord Lester of Herne Hill Excerpts

Tuesday 17th July 2012 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, for the purpose of closed material proceedings and what we are dealing with here, national security is the specific concept, although it is not defined in the Bill. As I indicated, the Green Paper suggested that it might go wider to include some of the matters that the noble Lord, Lord Pannick, raised, but we have quite clearly indicated that that will not be the case in matters of national security. I give way to my noble friend who I understand was a counsel in Pepper v Hart.

[Lord Lester of Herne Hill]

I have two points. I do not understand why it is necessary to refer to Article 6 of the convention in the way that the Bill unusually does, given that the Human Rights Act requires the Bill to be read and given effect to—in so far as is possible—compatibly with convention rights, including Article 6, and given that the court is required under Section 6 of the Human Rights Act to act in a way compatible with convention rights, including Article 6. I have not before seen in any other legislation post the Human Rights Act the singling out of an article of the convention in that way. It seems to me to be troublesome as it might lead to some inferences that are incompatible with the scheme of the Human Rights Act.

On the same subject, the convention distinguishes between national security in the narrow sense and factors like the economic well-being of the country, to which the noble Lord, Lord Pannick, referred. Am I right in understanding that those are the kind of distinctions that the Government have in mind when they deal with national security in a narrow sense?

[Lord Wallace of Tankerness]

My Lords, I hope that Clause 11(5)(c) is not troublesome because it is intended to be the opposite. As we have already heard in our deliberations in Committee, concern has been expressed, even a short while ago by the noble Lord, Lord Beecham, about Article 6. The clause seeks to give reassurance and I hope that my noble friend will be satisfied with that. No doubt there may be something on which I can give further reassurance. I think I am right in saying that what is there follows what is in the TPIM Act and the Counter-Terrorism Act. Questions might be raised but it is there to make matters absolutely clear.

My noble friend Lord Hodgson said that he hoped that we would not allow a situation where citizens would be swept up by a wide definition of national security. My noble friend Lord Deben gave a graphic illustration of his son walking the dog. It will not be a constable or a high-ranking officer in Whitehall but a judge who will make the decision. Nor indeed—I shall make this very clear—is the intention to avoid embarrassment. In fact, an important purpose of the Bill is to allow material to be considered by the courts in cases where to exclude it may mean that a case has to be settled. The purpose is actually to allow a court to be able to consider it; this is far from wanting to sweep things under the carpet. If it were the case that, at some date in the future, a Secretary of State tried to use the provisions for the purposes of concealing embarrassment rather than to prevent damage to national security, that is something the court would be entitled to take into account when deciding whether the gateway test in Clause 6 was passed.

There is another point I would make to my noble friend Lord Hodgson, who said that the possibility of someone going to prison was important here. I would like to reassure both my noble friend and the Committee that the provisions in this part of the Bill relate to civil, not criminal proceedings. There would not be a situation, therefore, where a person would go to prison as a result of the provisions in this part of the Bill.

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[Lord Elystan-Morgan]

My Lords, the motivations behind this amendment are, I have no doubt, noble, honourable and sensitive. I greatly respect, therefore, the arguments put forward by the noble Lord, Lord Dubs. I respectfully tend to agree with the noble and learned Lord, Lord Lloyd, that it may well be that there is a case for having what is almost a jury situation. In such a situation—again, bearing in mind that juries very seldom operate in civil cases—we would not normally have a jury in any event, but the real problem is, I think, a much deeper one.

Imagine a judge having to determine the fundamental issue of whether this matter is to be dealt with by way of a secret hearing. Does he look at the prose of the application by the Secretary of State or the affidavits? Does he look into the eyes of learned counsel to see whether there is a burning sincerity in the face of the counsel for the claimant or whether there are doubts genuinely registered in the face of the counsel for the defendant? Is the judge not placed in a situation that is virtually impossible?

To a large extent the question of a special advocate under Clause 5 and, I would say, to a limited extent the appointment of a special counsel under Clause 8, will deal with part of that. There will be a totally independent advocate, but an advocate, however brilliant, forensically skilled and eloquent, can be only as effective as the ammunition that he has at his disposal, which is the correctitude of certain facts that are relied on by a party. If that estimate, however genuine, is wrong, then the decision of the learned judge must be utterly fallacious. How do you deal with that situation? I harken back to debates that we had some years ago in relation to a criminal situation and PII. It seems to me that there is a very strong and unanswerable case for a special investigator operating under the special advocate. It does not seem from my reading of Clause 8 that there is any power for the special advocate to appoint such a person. However, the fairness of the situation will depend entirely on the assiduity with which some other person or body would be able to examine these sensitive facts. That person must be someone in whom the community has total confidence in terms of confidentiality and secrecy but also their competence to bring to the attention of the court that vital element of the correctitude or otherwise of those facts.

[Lord Lester of Herne Hill]

My Lords, in later amendments, we will be considering ways of making what at the moment is an unfair procedure fair, or less unfair. I agree with the noble Lord, Lord Pannick, that the procedure as it stands is not fair and also that it does not become any more fair by adding assessors or advisors to help the judge who has to decide whether to grant a declaration under Clause 6(1).

My experience of assessors or others—whether in an employment tribunal or in a county court for example—in dealing with discrimination cases, which are difficult and often involve weighing proportionality issues, has been an unhappy one. Along with others who have spoken, I have huge admiration for, and confidence in, the ability of our senior judiciary and agree with the noble Lords, Lord Pannick and Lord Carlile of Berriew, that our judges have displayed a very good ability to weigh competing interests in difficult cases.

It will be important to look later at ways of making the procedure fairer, but with all respect to county court judges, whether serving or retired, and to retired judges of the senior courts, I simply do not think that having more of them is going to make it easier. This is not a question of deciding facts, like a jury; it is a question of striking a balance between competing interests. That seems something that our senior judiciary are well able to do without being bolstered by any outside support.

[Lord Beecham]

My Lords, I pay tribute to my noble friend Lord Dubs, who has served with great distinction on the Joint Committee on Human Rights and of course has a long record of interest in matters of justice generally. However, I indicated to him during a conversation beforehand that I was not persuaded by his argument. I was persuaded, albeit temporarily, by the arguments of the noble and learned Lord, Lord Lloyd, but in the end I share the views of other noble Lords who have indicated that this is perhaps an overelaborate and unnecessary addition to the framework that would otherwise exist. One point that struck me is that it is a little invidious for a serving High Court judge to sit with current or retired county court judges. I do not mean any disrespect to county court judges, but am not sure—

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[Lord Lester of Herne Hill]

Will my noble and learned friend reassure the Committee that it is not part of the Government’s aim to change the overriding objective of the Civil Procedure Rules, which enable and require the courts to deal justly with cases?

[Lord Wallace of Tankerness]

I hope I indicated that we do not want to create something that is entirely different—some sort of national security court. Consistent with the other aspects of civil procedure, this is an additional tool to have closed material proceedings for material that would be damaging to national security if disclosed but should nevertheless be available to the courts.

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[Baroness Manningham-Buller]

My Lords, I want to comment on one of the amendments in this group. Looking at the first part of Amendment 67, I understand what this amendment is trying to do, which is to improve the relationship—or, indeed, to create the relationship. However, the special advocate is not able to judge the damage that would be caused by a summary. It is the relevant person who is defined in the Bill who prepares any summaries of material. I do not think that this is workable because the special advocate, however briefed he is, will not understand necessarily the sensitivities behind the intelligence and the damage that would be caused.

[Lord Lester of Herne Hill]

My Lords, I would just point out that Amendment 62, which has not been included with this group of amendments, will deal with a particular way of trying to alleviate the problems about the special advocate. We will come to that in the next group.

[Lord Marks of Henley-on-Thames]

My Lords, I had not intended to intervene in this debate, but having heard the noble Lord, Lord Pannick, and my noble friend Lord Faulks describe—accurately, one has to concede—the role of the special advocate and the limited responsibility that he has to the person whose interest he is appointed to represent, one is bound to come back to the amendments proposed by my noble friend Lord Hodgson and ask whether there is not a field that my noble and learned friend the Minister ought to consider—namely the degree to which we might fairly increase permitted disclosure to the person whom the special advocate is appointed to represent. There ought to be a guiding principle, consistent with what the noble Baroness, Lady Manningham-Buller, said, that there should be as much communication as is consistent with the interests of justice, short of disclosing material to the party from whom some disclosure that is prejudicial to national security is withheld. The special advocate’s position could be effectively carried out without compromising national security if some movement in that direction were to be conceded. It may be that my noble friend’s amendments do not achieve precisely that balance, but at the moment we have a system that is so restrictive of communication that it destroys the public confidence in the special advocate system that there might be.

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[Lord Wallace of Tankerness]

That is a helpful suggestion. I am always wary of saying that, as it might cast doubt on what has been put in an earlier statute which is intended to do the same thing. An absolute requirement may lead to a special advocate being appointed in circumstances where it would be almost impossible for the person to function. I hope that the noble Lord is reassured that it is our intention that whenever an excluded person wants a special advocate, a special advocate will be appointed. I note what he says. Without wanting to cast doubt on what is in other statutes, we shall certainly have regard to what he says.

[Lord Lester of Herne Hill]

I appreciate that there is always the danger of what Lord Wilberforce once described as the “austerity of tabulated legalism”. I ask my noble and learned friend whether it is absolutely clear that, in exercising the rule-making power under Clause 7, nothing will be done to disturb the overriding objective, which is to enable the court to decide the case justly? That is a fundamental principle which must not be overridden, whatever the technical detail may be.

[Lord Wallace of Tankerness]

I would want to reflect on what the “austerity of tabulated legalism” actually means. We have had exchanges in earlier debates and we have set out why an express reference to Article 6 of the European Convention on Human Rights is incorporated into the Bill. I hope that my noble friend is assured by that. I am about to get to the point made by my noble friend Lady Williams. I will get there eventually.

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It is not just that the litigant will inevitably feel a deep sense of injustice when they lose the case and are not told why. Judgments that are reached through a procedure in which at least a summary is not provided to the litigant will inevitably fail to command the confidence of the communities from which the disappointed litigants come. That was a point made earlier this afternoon by the noble Lords, Lord Dubs and Lord Marks of Henley-on-Thames. To adopt this procedure would run the very serious risk of undermining the respect in which the law is held by law-abiding citizens. Those who have no respect for the law may fail to pass on information that the security services require in order to do their job. That, too, would pose dangers for national security. For all those reasons I suggest that we are dealing here with fundamental issues, and that it is vital that the Bill contain the minimum safeguard that the individual concerned should be told at the very least the gist of the case against them.

[Lord Lester of Herne Hill]

My Lords, my name appears on some of these amendments, and I will briefly make a couple of points. I say first to my noble friend Lord Hodgson that he makes a mistake if he refers to me as heavy artillery, since I was the most inefficient gunner officer during the Suez invasion. I lost an entire water-carrying convoy, and laid a smokescreen with 100-metre gaps in it. I do not regard myself as heavy except in a physical sense. Further, the noble Lord, Lord Pannick, referred to Blackstone Chambers, which is my chambers as well. However, I make it absolutely clear than under the cab rank principle, many members of my chambers have appeared on the other side in these cases. Certainly, although I listened to Ben Jaffey, I regard the fact that I am in his in chambers as immaterial.

The noble Lord, Lord Pannick, said almost everything that needs to be said, except that the Joint Committee on Human Rights itself recommended what is now Amendment 62. In paragraph 106 of its report, it recommends that,

“the obligation to disclose sufficient material to enable effective instructions to be given to an individual’s special advocate should always apply in any proceedings in which closed material procedures are used”.

In the previous paragraph, the report quotes my noble friend Lord Carlile as saying that AF standards—that is, these disclosure standards—,

“should apply to all proceedings in any event. I can see no respectable argument against gisting in any circumstances”.

The JCHR report concludes: “We agree”.

My other point is that although I am keen on the European Human Rights Convention setting minimum international standards, in this kind of area it is the common law standards and the standards of Parliament that really set fairness in this country. I sometimes worry that reliance on Article 6 of the convention, in a system where the civil law is very strong, may actually diminish the strength of the common-law system. So I hope that the fact that these amendments have the blessing of the all-party Joint Committee on Human Rights, of the special advocates and of my noble friend Lord Carlile, the former independent reviewer of terrorist legislation, as well as of those who spoke in this debate, will carry great weight with the Government.

[Baroness Kennedy of The Shaws]

My Lords, I agree with my legal colleagues in this House about the need for gisting as a step towards creating greater fairness. In my view, there has to be an obligation to disclose because the detainees in these cases—I have acted in them—are deeply disadvantaged. The noble Lord, Lord Pannick, has described powerfully the bewilderment and disappointment in detainees when an order is made against them, but they have not understood the case against them. I shall give an example because sometimes that helps us to root our understanding of why something might matter.

I took a case where a young man was to be deported on the grounds of concerns about national security. The gist of the case against him suggested that he had been present at a meeting in a house he shared with many other students at which discussions were held that were of concern to the authorities. Because the gist of the case was offered to us, it was possible to show that at the time the meeting took place the young man had been using a computer that was linked to the university in order to work on his thesis. The interactivity showed that he had been involved in quite complex, difficult work on his computer, which meant that he could not have been participating in and party to the meeting taking place in the house. That was one of the features of the case that made a real difference, but we would not have known about it if the gist had not been given to us. The force of something can only be brought home to those not involved in these cases by the use of a real example. The noble Lord, Lord Pannick, described people sitting in the court and being mystified by the process. That drives home just how unacceptable it can be.

I strongly urge that we do this least thing in trying to address the concerns about the whole business of closed material proceedings.

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[Lord Beecham]

My Lords, the noble Baroness, Lady Berridge, has identified and emphasised the crucial nature of Clause 7. It is the fundamental problem with the Bill that, despite the protestations of the Lord Chancellor, it gives little discretion ultimately to the judge as to whether the closed material procedure should be invoked. Clause 7(1)(c) requires the court to give permission if,

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

It seems clear that any disclosure of matters affecting national security would suffice to preclude the material being made available. Therefore, we come back to the position that the noble Lord, Lord Faulks, referred to, as enunciated by the noble and learned Lord, Lord Hoffmann.

It is almost exactly 50 years since I first became acquainted with the noble and learned Lord, Lord Hoffmann, as a new student at University College, Oxford—where I was succeeded in due course, several years later, by the noble Lord, Lord Marks—and I have a great admiration for noble and learned Lord, who was a distinguished opponent of the South African regime. I find it rather surprising that he came to the conclusion that matters of this kind are a matter for the Executive and not the judiciary. It is not a view that can be recommended to your Lordships’ House. It strikes a dagger at the heart of our system, and the amendments before us provide the right approach to procuring a level of fairness that allows the judge to make a decision on the basis of a balancing exercise.

I entirely agree with the noble Baroness, Lady Berridge, and others who have laid an emphasis on the need to have that balancing exercise carried out. The amendments in the names of the noble Lords, Lord Thomas, Lord Pannick and Lord Lester, clearly are directed at securing that important balance and fulfilling the—unjustified—claims made for the Bill that ultimately it will be the judge who actually takes the decision; otherwise the decision is effectively made for him by the Secretary of State, and that is extremely undesirable. It follows that the amendments in relation to gisting, which the noble Lord, Lord Pannick, described as a minimum requirement, also have their place in a system which is fair to the parties.

The noble and learned Lord referred to the application of the European Court of Human Rights. Although I am sure that he is clear in his own mind that there is no real conflict with the human rights legislation, there is, perhaps, a question about that. Clause 7(1)(e), to which other noble Lords have referred, makes it clear, in relation to gisting, for example, that a summary does not contain material the disclosure of which would be damaging to the interests of national security. However, it is apparently the position that the European Court has previously struck down decisions made under the existing closed materials procedure on the basis that they were incompatible with the right to a fair hearing which, of course, Article 6 prescribes.

The case law suggests—I am referring now to a briefing from Justice, the organisation concerned with civil liberties and matters of this kind—that,

“a person must be given as much disclosure—whether through the provision of documents, evidence or a summary—as is needed to secure a fair trial”.

It refers in its briefing to the case of A v United Kingdom, in which,

“the Grand Chamber concluded that where insufficient material had been disclosed to an individual subject to a control order”—

of course, we are not talking about control orders here but about a civil claim—

“this rendered the hearing unfair and incompatible with the Convention”.

The briefing also refers to the case of AF, to which the noble Lord, Lord Pannick, referred. There must be a question as to whether the assurance of the noble and learned Lord, obviously given in good faith, that Clause 11(5) resolves these matters—because it emphasises the duties of the court under the Human Rights Act, such that,

“Nothing … is to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the Human Rights Convention”—

amounts to very much. On the face of it, it would appear that the provisions of the Bill, as drafted, would lead to conflict with Article 6.

[Lord Lester of Herne Hill]

Is the noble Lord aware of a case I once did, Tinnelly and McElduff v UK, where there was a conclusive certificate of national security under our law which prevented these Northern Irish Catholics from having the merits of their religious discrimination claim heard at all when they were blacklisted? The Strasbourg court said that that was clearly contrary to the convention and therefore the national security certificate that had been cleared by the Minister and by the Northern Ireland courts, which said they had no alternative, was held to be in violation of the convention.

[Lord Beecham]

I am grateful to the noble Lord, who brings another example of precisely the same point made in the briefing that I referred to and underlines the apparent discrepancy between the evident intentions of Clause 11(5) and the reality which would appear to be applicable. In looking at these amendments I think that your Lordships’ House may wish, when we come to Report—because we will not be voting today—to support the thrust of these amendments, which seek to import into what is patently an unsatisfactory procedure at the moment evidence of balance and fairness which would leave the decision where it ought to be, in the hands of the judge who is dealing with these matters, assisted, we hope, by the special advocate presenting a case on behalf of the other party to the case.

As matters stand, it does not look as though the Bill adequately reflects these requirements or, indeed, the requirements of Article 6. I hope that the Government will look again at the implications of the situation as it is now presented, bearing in mind the widespread concerns expressed around all these issues by eminent Members of your Lordships’ House, particularly the noble Lord, Lord Carlile, who was very clear that the Bill, as currently drafted, does not adequately deal with the need for fairness through a proper existing procedure. I thought that he made that case very effectively—as indeed did other noble Lords, legally qualified and not legally qualified—raising deep concerns about how the Bill will operate in practice, bearing in mind, again, that many of us still have to be persuaded that there is a substantial issue here, given that we have yet to be shown cases in which damage has been done by the system which has prevailed hitherto.

Of course, when it comes to disclosure the Government still have the last resort of not proceeding with the case. That has a financial cost and it may have other costs, but it preserves the rationale for the Bill’s provisions in that it preserves the interests of national security. If the Government feel that national security has to be protected, they can effectively stop the case by settling it or, perhaps, striking it out.

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The proposals have been guided by fundamental rights to justice and fairness, including those in the European Convention on Human Rights. The convention itself recognises that it may sometimes be necessary to restrict openness in court proceedings where national security requires it. I have made a statement of compatibility under the Human Rights Act 1998 in relation to this Bill. As we have frequently reflected in our deliberations, there are specific provisions in Clause 11(5)(c) which emphasise that nothing in Clauses 6 to 10 are to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the European Convention on Human Rights. That is specifically the point of reassurance sought by the noble Lord, Lord Beecham. Clause 11(5)(c), as it were, trumps anything in Clauses 6 to 10. Perhaps that is where the noble Lord saw a weakness. I hope that reassures him about the purpose of including that.

[Lord Lester of Herne Hill]

My difficulty with my noble and learned friend’s reply is that he keeps saying: “I hope that Members of the House will be reassured”, but we need reassurance in the legislation itself. The problem is that there are no controlling principles. We do not have a written constitutional charter of rights, the nearest we have is the European convention, which is pretty vague and not tailored to these particular needs. When we come to Amendment 90 at night-time on Monday, where the noble Lord, Lord Pannick, and I have tried to put in some constitutional standards, it will be interesting to see whether at least that is accepted. Does my noble and learned friend follow that what we seek to do is put some controlling criteria, other than ministerial assurances, in the Bill to make it constitutionally appropriate?

[Lord Wallace of Tankerness]

I understand the point being made by my noble friend, but what is in the Bill goes beyond a ministerial assurance. What is in the Bill is that nothing in Clauses 6 to 11 or in any provision made by virtue of them is to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the European Convention on Human Rights. I will come to this more specifically in a moment, but these will be matters that will be determined by the court; it is not a matter of ministerial assurance. As we saw in the case of AF (No 3), the courts asserted what was required to make the proceedings consistent with the requirements of Article 6. What is required to achieve fairness in accordance with Article 6 is a matter to be determined by the courts in the context of each individual case. The AF (No 3) disclosure requirement will, of course, be applied by the court when it considers that the requirements of Article 6 so demand to ensure that fair trial requirements are met. However, this does not mean that the AF (No 3) formulation would or should apply in all cases that use these closed procedures. We submit that we must allow the judges to assess the level of disclosure required in each case to meet Article 6.

My noble friend Lord Faulks said that he anticipated that I might refer to what the noble and learned Lord, Lord Hope, said in the case of Tariq. I fully intended to do so. The deputy president of the Supreme Court said in that case:

“There cannot, after all, be an absolute rule that gisting must always be resorted to whatever the circumstances. There are no hard edged rules in this area of the law”.

Reference has already been made in this debate to Mr David Anderson QC, who is in favour of gisting. In January this year, in evidence to the Joint Committee on Human Rights, reflecting on what the noble and learned Lord, Lord Hope, said, he said:

“The courts have … said that it is not a hard-edged area of law. In other words, it is one for them to decide on rather than for Parliament”.

Later he said,

“it is not an area where certainty can sensibly be provided by legislation ... I do not think I would like the legislation very much if it came out”.

Let me also remind your Lordships that the Justice and Security Green Paper suggested that we might consider legislating to clarify the context in which the AF (No 3) gisting requirement does not apply. The Government listened to the consultation responses, which held a majority view that situations in which the AF (No 3) disclosure requirement applied needed to be considered on a case-by-case basis in the courts. The Bingham Centre said:

“Establishing a statutory presumption as to the circumstances in which the AF (No 3) disclosure requirement applies would not avoid the need for the precise parameters of the principle being worked out in the courts. This issue cannot be resolved by domestic legislation alone but requires careful and detailed reference to ECHR and EU law. The content of UK legislation could not have any appreciable influence on the CJEU or ECtHR. Therefore we see no value in this suggestion. If anything, a legislative presumption would only complicate the law and lead to more rather than less litigation”.

I do not think there is any distance between us in trying to ensure fairness. I recognise the importance and significance of all the amendments, not least Amendment 62, but our position is that this would put hard edges into law where it is not desirable and where the courts themselves have indicated that they should be determined on a case-by-case basis. As I have also indicated, if in a particular set of circumstances the court’s view was that the gisting level required in AF (No 3) was the one required in that case, the regard the courts must have to Article 6 of the European Convention on Human Rights allows them to require that. The common law is as much part of our legal system as statute law, and I believe that the courts will continue to be the guardians of individual rights to a fair trial and that further legislation on this provision is not only unnecessary but may even be counterproductive.