Justice and Security Bill [HL]

Lord Macdonald of River Glaven Excerpts

Tuesday 26th March 2013 Lords Chamber

[Lord Beecham]

My Lords, I wish to speak to Amendment 6A as an amendment to Amendment 6.

During the Second Reading debate on the Bill I referred to the obvious difficulty that your Lordships faced in calibrating the balance between the two desiderata of justice and security. There were some then, as there are now, who took the view that such an exercise was unnecessary, and indeed wrong in principle, and that the interests of justice must at all times and in all circumstances be paramount. On that basis, they urged that Part 2 of the Bill dealing with closed material procedures should be struck out. That was not the view of your Lordships’ House which, following the advice of the Joint Committee on Human Rights and the eloquent and forensic advocacy of the noble Lord, Lord Pannick, in particular, chose instead to amend the Bill and to circumscribe the application of a new procedure.

Those who would have wished to prevent any departure from the traditions of our system, which have long required that a party in a civil case should know the case he has to meet, must acknowledge that such a course is now no longer open to us. Our task, therefore, is to consider the Commons amendments and determine whether they have gone far enough in striking that delicate balance or whether, as I believe, further adjustments need to be made. I acknowledge and welcome the Government’s acceptance of some of the changes agreed by this House. In particular, as the Minister has pointed out, there is much more judicial involvement in the process than the Bill in its original form envisaged.

I also remind your Lordships of the serious implications for our system of justice of the Bill as it now stands and, to be frank, as it would stand even if, as I hope, we make further amendments and invite the House of Commons to think again about a small number of important issues. To a long line of pronouncements in this area by the most eminent judges we can now add the recent concerns expressed by the president of the Supreme Court, the noble and learned Lord, Lord Neuberger. Nor can we overlook the cavalier and, it might be thought, analogous approach of the Government to such different but cardinal areas as the deployment of emergency and retrospective legislation, demonstrated as recently as last Thursday and last night over the Jobseekers (Back to Work Schemes) Bill.

That is why we need to build on the progress made thus far in improving this Bill in three areas in particular. Two are embodied in amendments in this group in my name and that of the noble Lord, Lord Macdonald of River Glaven, dealing with what we may term, by way of shorthand, as the principles of last resort and judicial balancing respectively, reflecting the amendments moved so powerfully by the noble Lord, Lord Pannick, who would be moving them today had he been able to be present. The third area is that of a process for renewing the legislation after a period, to which we will come later. I propose to deal principally with the amendment in my name, but I whole heartedly endorse, and will say a word or two about, the amendment in the name of the noble Lord, Lord Macdonald. I am authorised by the noble Lord, Lord Pannick, to say that he entirely supports these amendments. His recent article in the Times makes his views clear.

The first amendment, Amendment 6A, effectively seeks to restore the position set out in the Bill which left this House, in making the use of closed material procedures a last resort. Amendments 16A, 16B and 16C import the same principle into the process for the court’s review of its decision contained in government Amendment 16. I consider these to be consequential upon this first amendment. I trust the House will forgive me if I remind noble Lords that closed material procedures allow the use of material not disclosed to the other party, who is therefore not able to give effective instructions, even to the highly security-vetted special advocate appointed to assist him. The amendment seeks to correct this by requiring the court to consider whether a fair determination of the proceedings is not possible by other means, such as some of the processes available under PII, the public interest immunity procedure. These include a range of options, such as the gisting of the case, redaction, the giving of evidence by security agents from behind a screen, and more besides.

In relation to PII, it is interesting to note that the Government appear to be taking a somewhat inconsistent approach. Inquest proceedings, after all, will not be covered by the provisions of the Bill. The Government have constantly represented PII as a lengthy process which leaves them in a position where they might feel compelled to choose to settle a case rather than disclose information. Sweeping, if unsubstantiated, claims have been made about millions of pounds having been paid, or potentially having to be paid, to unidentified numbers of unidentified terrorists, to be used for unidentified purposes. Perhaps the noble and learned Lord could enlighten us as to the number of claimants who have received compensation, and who have been charged with any offence, been made subject to a control order or similar constraint, or had their compensation frozen—as it could be—on the grounds that it might be used for terrorist purposes. After all, the Minister without Portfolio, Mr Clarke, said:

“We expect only a handful of cases”.—[Official Report, Commons, 04/03/2013; col. 705.]

The notion that there is a great tidal wave of cases waiting to sweep over us and our system, involving vast expenditures, seems to have been exaggerated, to put it mildly, in the light of the Minister’s remarks just a week or two ago.

As the noble Lord, Lord Pannick, pointed out in his article, under the PII procedure, the courts are,

“able to reconcile justice and security by taking steps”,

such as those to which I have referred. He went on:

“Only if those methods cannot protect security, and allow for an open assessment or at least a gist of the case against the claimant, should the court consider moving into a closed session”.

He went on to dismiss the Government’s contradictory responses, namely that judges would adopt that approach in any event, and that such a safeguard would be too time-consuming. He also went on to rebut the Government’s counterargument against balancing the interests of national security against the public interest in the fair and open administration of justice, pointing out that this is exactly what the PII procedure involves. He is of course, as the noble and learned Lord has pointed out, not the only Member of your Lordships’ House to have contributed to the columns of the Times on these issues. His article may be seen in part as a reply to a letter from the noble and learned Lord, Lord Woolf, expressing approval of the amended Bill’s provisions in relation to CMPs, to which he has referred at some length.

It is with more than usual trepidation that I join the noble Lord, Lord Pannick, special advocates, the Joint Committee on Human Rights and the Equality and Human Rights Commission in respectfully dissenting from the conclusions of the noble and learned Lord, Lord Woolf. These, while properly welcoming the positive responses by the Government to amendments carried by this House, for which the noble and learned Lord voted, effectively endorse their position on the issues of last resort and balancing. The noble and learned Lord referred in his letter, not unreasonably, to the fact that in a minority of cases, and I use the same quotation as the noble and learned Lord:

“The interests of justice are not served when courts are blindfolded”.

The consequences of closed material procedures are that claimants are both blindfolded and effectively gagged, even in cases of habeas corpus. The Minister without Portfolio has, after some initial confusion about the matter, conceded that the Bill would apply to this, one of the most fundamental parts of our English common law. It is not unreasonable therefore to require the court to determine that the case cannot fairly be decided by any other means, rather than it having merely to be satisfied that the Secretary has, in the words of proposed new subsection (1F),

“considered whether to make, or advise another person to make, a claim for public interest immunity”.

That sets a very low bar for the Secretary of State to surmount. He has only to have considered it. Concern about the Government’s overall position can only be enhanced, despite their bland assurances, by the form of words set out in proposed new subsection (1D) in Amendment 6, which makes two substantial changes to the amendment carried here on the recommendation of the Joint Committee on Human Rights. Members may recall that Clause 6(2) of the Bill which left us stipulated that the court may make a declaration allowing CMP if, were the material to be disclosed, the degree of harm to the interests of national security would be likely to,

“outweigh the public interest in the fair and open administration of justice”.

Under Amendment 6, proposed new subsection (1D) changes this to impose the condition that,

“it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration”.

Openness is therefore replaced by effectiveness, a very different concept. Effective, one might ask, from whose perspective? Is it that of the party, presumably the Government? Openness now counts for nothing. The phrase “in the proceedings” is added, excluding the wider considerations of the public interest. The concept of balancing the two interests disappears. This applies also to Amendment 16, on which the noble and learned Lord seeks to rely.

The Minister without Portfolio likes to paint with a broad brush. He claims that the effect of these amendments would require the Secretary of State and the court to go through all the documents before an application for a CMP is made. They would not. As the special advocates point out, disclosure under present statutory CMPs is no less time-consuming than PIIs. Once having examined the documents, the court could consider whether PII could lead to a fair trial without having to undergo a full PII exercise. The Secretary of State has only to consider whether a PII claim could have been made. He is not under an obligation to go through every document.

Mr Clarke’s adherence to liberal principles over the years has earned him many admirers in a lifetime in politics, although not necessarily within his own party. I hope that, by endorsing these amendments, the House can not only help to minimise the damage threatened to the most valued elements of our jurisprudence and judicial system, but help rescue the Minister without Portfolio from self-inflicted damage on his reputation for upholding those liberal values, as he comes to the end of his most distinguished career. In the name of our cherished traditions of fair and open justice, I invite your Lordships’ House to support the amendments.

[Lord Macdonald of River Glaven]

My Lords, I speak to Amendment 6B in my name. Everyone accepts that CMPs represent a significant departure from normal rule of law principles. Many people accept that they also contain a strong strand of unfairness, and that this unfairness consists in the exclusion of one of the parties from a critical part of the proceedings, perhaps even that very part of the case in which the defining issue is decided. Therefore, the claimant can never know the evidence that has damned his cause—it is never revealed to him.

Let us be blunt about this. The party withholding the material, and gifting it to the judge in secret, will almost always be the Government. The illiberalism inherent in the Bill seems to me to lie in this. CMPs as presently constituted are not fair, because they do not and cannot deliver balanced justice between the citizen and the state. This is the finding of the JCHR; it is the finding of those eminent lawyers appointed by the Government to conduct closed proceedings, the special advocates; and it was the overwhelming conclusion of this House when last we debated these measures. It is no doubt in recognition of this central unfairness that the Government insist, and the Secretary of State has repeatedly insisted, that it is their fervent desire that CMPs should only ever be used as a last resort.