Justice and Security Bill [HL]

Lord Lloyd of Berwick Excerpts

Tuesday 17th July 2012 Lords Chamber

[Lord Dubs]

My Lords, let us suppose that we have the first case heard or not heard in public under these new procedures. There are bound to be doubts, particularly if it is a case that has achieved a certain amount of publicity and notoriety, about the reliability and integrity of a verdict that has been entered against a citizen after the court has heard the evidence against him or her in secret. It is something to do with the concept, in a phrase that I have heard, of the secret whispers that the judge will have heard. I am not for a moment suggesting that the judge would not behave with total reliability and integrity, but there is also the question of the public perception of how that has happened.

There has to be a concern that the public may perceive that a single judge might be thought of as being one-sided if he repeatedly hears the state’s evidence in secret and finds in its favour. All that we shall know is that the judge has heard a lot more than the rest of the world is able to discern. Is it possible to develop any safeguards against what would be a serious perception about how the judges have operated? I repeat that I am not in any way suggesting that the judge would not behave with integrity, but he has to be seen to do so by the public.

This probing amendment suggests that there is one way of lessening a critical perception on the part of the public. That would be to appoint judicial commissioners. They would be able to sit with the judge. It would not be the judge on his own, but there would be four judicial commissioners. As the amendment makes clear, these judicial commissioners would be security-cleared county court judges or retired members of the upper judiciary; they would be totally independent of the security services or the Armed Forces; and, wherever possible, they would not have sat on CMPs before. All I am talking about here is a very simple safeguard that would not affect the principle of what the Government are about.

By putting this amendment forward, I am in no way accepting the basic principle of CMPs, but if one tries to make something one does not like less bad, one is not necessarily accepting the principle of the thing—just in case there is any misunderstanding. Having said that, to make this work less badly than the Bill currently proposes, I am simply suggesting that it might be helpful to have independent commissioners sitting alongside the judge. I beg to move.

[Lord Lloyd of Berwick]

I have not had much time to consider this amendment but, on the face of it, it seems attractive. Of course, judges are quite used to sitting with assessors on questions of fact. Certainly that is true in patent cases at all levels and, if I remember correctly, the Restrictive Practices Court used to sit with lay assessors. It is true that in all those cases the assessor would be an expert rather than a judge, so he would not be able to overrule the judge on a question of fact. But that was not always so in other cases; for example, the president of an employment tribunal could always be overruled—and was sometimes overruled —by the two other members of the tribunal on a pure question of fact. Therefore, the idea of the judge in these cases sitting with other judges is not altogether startling.

However, the reason I support the amendment is rather different from the one given by the noble Lord, Lord Dubs. Being a judge can be a very anxious business. Of course, in the most serious criminal cases findings of fact are made by the jury, so the problem does not arise, but there are very serious civil cases where the judge has to make a finding of fact as to which side he believes, and that necessarily involves a finding that the other side is lying. I sat in many such cases and I often felt the need for someone sitting beside me who could either confirm or overrule my view. One surely cannot imagine a more serious sort of case than that which is going to be tried under the new closed material procedure, and I support the amendment for that reason.

I have doubts about subsection (3). I would have thought that two assessors rather than four would be sufficient for the noble Lord’s purpose. It would certainly have been sufficient for my purpose when I was sitting as a judge. I hope that the Minister will give a fair wind to this amendment, which I support.