Justice and Security Bill [HL]

Lord Macdonald of River Glaven Excerpts

Tuesday 19th June 2012 Lords Chamber

[Lord Macdonald of River Glaven]

My Lords, I declare an interest as chair of Reprieve, an NGO campaigning against the death penalty and secret prisons around the world. It was involved in the Binyam Mohamed case. I start by acknowledging two things. First, the Bill is a significant improvement on the Green Paper that preceded it, and a very welcome improvement. Secondly, there may be a very limited category and number of civil cases in which closed proceedings may be necessary to ensure that justice can be done in circumstances where, if there were no closed proceedings, material critical to the fair resolution of an issue would be excluded from the court’s consideration. This, of course, could include fair resolution in favour of the claimant as well as in favour of the defendant. I would expect this to be a very small—exceedingly small—number of cases.

My question for the House is whether the Bill as currently drafted achieves an appropriate balance between delivering justice in that very small category of cases and the wider public interest in enjoying a justice system that is open and public. Will the Bill deliver that very small—exceedingly small—number of cases, or might it deliver rather more; indeed, too many? My view is that, despite the obvious improvements, there is still a way to go. I want to focus on two areas: public interest immunity and the Norwich Pharmacal jurisdiction.

Public interest immunity has served us very well over many years and judges are very experienced in the exercise of this jurisdiction. It enables a party to the proceedings to invite a judge to conclude that any given material, while relevant to an issue in the case, should be withheld from that case on public interest grounds. Naturally, those public interest grounds can include national security grounds. In conducting this exercise, the judge is required to balance the public interest in protecting sensitive material from disclosure against the private litigant’s legitimate interest in seeing material that may assist his case or undermine the case of his opponent.

I am not aware that it has ever credibly been suggested that judges in our courts are inclined to get this balance wrong. My own experience over many years, including during the five years that I served as Director of Public Prosecutions, is that our judges do not get this balance wrong, despite what American intelligence agencies may quite erroneously believe. Some aspects of the Bill appear to have been included because of what almost everybody accepts is a misapprehension on the part of a foreign intelligence agency.

At present, the Bill requires the Secretary of State merely to consider public interest immunity and presumably to reject it as a suitable mechanism before going on to apply for a close material procedure. This is not enough. I urge the Government to take the opportunity represented by this legislation to strengthen, rather than undermine, our PII jurisdiction. As the Joint Committee on Human Rights has said, it should be placed on a statutory footing to strengthen confidence and to increase clarity. Such a reform could include, among other things, the test to be applied when national security material is the subject of a PII application.

I also believe that it would strengthen the integrity of any CMP were it to be invoked only following a full PII process. In other words, the judge would be invited to rule, in accordance with traditional PII principles, that the relevant material sought to be withheld could properly be withheld on public interest grounds. Having made that ruling, the court would then go on to consider, again on conventional PII principles, the extent to which a redacted form of the material, or a summary, could safely be disclosed consistent with the public interest.

Finally, if at the conclusion of this conventional PII process a party wished to go on to apply that the court should go into closed session to hear any remaining material permitted to be withheld under PII, only then would the court be empowered to accede to that application to the extent that it felt a fair trial would be impossible in the absence of factoring that material into its consideration of the issues in the case.

The scheme would be: first, consider the relevance of the material to issues in the case—normal PII; secondly, consider the extent to which its disclosure might damage national security—normal PII; thirdly, consider the extent to which redaction or summary can cure the problem—normal PII; fourthly, in appropriate cases after that process, rule that the material may be withheld on grounds of public interest; and only then, fifthly, upon an application by one of the parties, rule that the material withheld can be considered by a court in closed session because, in the view of the court, a failure to do so would render the proceedings as a whole unfair. It would be a strong PII system as we understand it today, with the possibility in a small number of cases, once that process had been exhausted, for the court to go into closed session. Such a scheme would encourage a focus throughout the process on the important principles to be decided. It would very strongly discourage abuse or inappropriate, overhasty recourse to the CMP procedure, which is, I fear, a real danger under the current proposals.

I turn to the Norwich Pharmacal jurisdiction and Clauses 13 and 14. These are far too widely drawn for the following reasons. Clause l3 relates to “sensitive material”. The listing of this category of material as deserving of special protection is an unfortunate throwback to the excesses of the Green Paper. Worse, whole swathes of material are deemed to warrant, without any further consideration, the tag of “sensitive”, so that they are automatically and absolutely excluded from disclosure. This includes any material emanating from the intelligence services in the widest sense.

Of course, some material emanating from the intelligence services, though certainly not all of it, may be “sensitive”, but that is the wrong test. It has been abandoned in the rest of the Bill and it should be absent from Clause 13. The test should be the extent to which a disclosure would be damaging to national security, as it is elsewhere. Even then, there should be no automatic carve-out. The power to withhold this material should be subject to a judge’s ruling on the merits, as it is in the case of an application for a CMP. It should be the same test.

Even worse, Clause 13(3)(e) allows the Secretary of State to specify that any other material may be excluded if its disclosure in his judgment could damage national security or damage the interests of our international relations. The exercise of this exceedingly broad executive power is reviewable by a judge, but not on its merits and only on JR principles; that is, the judge can reject the Secretary of State’s certification only if he finds its exercise to have been “irrational”. This test does not provide adequate supervision over such a sensitive exercise of ministerial power, undermining, as it must be, of important principles of open justice.

The Norwich Pharmacal jurisdiction can sound a dry and technical subject, but, as my noble friend Lord Lester of Herne Hill has pointed out, it exists in cases where a great deal may be at stake, including the very life of the complainant who may, for example, be residing in a foreign prison and potentially facing sentence of death, as was the case with a number of Guantanamo Bay inmates. As things stand, the courts will make a Norwich Pharmacal order only where the party against whom it is sought has become mixed up in wrongdoing and where the interests of justice require it. Are we now to say that, however mixed up in wrongdoing the party against whom disclosure is sought may have been, and however strongly the interests of justice may demand disclosure, the behaviour of the wrongdoer, if it is an intelligence agency, shall be afforded total and automatic protection in all third-party applications of this sort? I do not believe that we should say that and this proposal goes too far. It causes deep offence to conventional legal principles because it ousts the effective supervisory role of the court in a way that is almost calculated to lead to injustice, even on a heroic scale.

I accept that, in cases in which national security issues are genuinely engaged, some adjustment to the Norwich Pharmacal jurisdiction may be appropriate, but the solution is emphatically not entirely to exclude certain bodies from its range. The solution may be, as I think the JCHR indicated, a presumption against disclosure in national security cases in the Norwich Pharmacal jurisdiction, overturnable by the judge if, in his or her view, serious injustice is likely to occur in the event of non-disclosure.

Even in the field of national security, I do not believe that it is in the broader public interest to move to a scheme where the interests of justice are entirely exiled from the equation so that they cease to exist as a check against the abuse of state power.