Justice and Security Bill [HL]

Lord Mackay of Clashfern Excerpts

Monday 23rd July 2012 Lords Chamber

[Lord Woolf]

My Lords, the submissions put before noble Lords by various Members of the House in favour of these amendments, given their source, require the very greatest attention. I make no cavil at all about the spirit in which they are put forward, but I suggest that the House needs to look at the amendments with regard to how judges operate in practice. The situations in which there are closed proceedings are very limited indeed. Here we are dealing with the use of closed material in civil proceedings, where it is even rarer for there to be the sort of closed proceedings that have been necessary in trials by jury in the criminal courts. A small minority of cases in civil proceedings are tried by a judge alone. Indeed, if there were a need for closed hearings, it would not be practical for what is envisaged here to be used in those very few cases where a jury might care because there is then a purpose in the closed proceedings. The jury could not be told of the evidence that would be the subject matter of the closed proceedings and therefore there could not be any purpose in the judge making a ruling that certain evidence should be heard in closed proceedings.

Having indicated, I hope, the context that we must look at, I find it extraordinary that it should be thought necessary for a judge, in this unusual situation when there is to be a closed hearing, to be told what he has to do to safeguard as far as possible the party which does not have access to the material. Any judge hearing these matters is going to find throughout the hearing that that is his primary responsibility. I would suggest that perhaps it is dangerous to be too specific in what he can do and what he must do because the whole of civil procedure has evolved so that a judge is put in charge of a case and he manages it in accordance with the overriding principle that is being relied on by those who wish to amend this legislation so as to achieve justice and fairness as far as possible. While I am very much in sympathy with all noble Lords who have supported these amendments, I question whether we are necessarily being constructive with regard to this issue.

What we have given as the justification for the closed procedure is that it will actually assist in achieving justice. In considering what justice is required, one must not look at the matter entirely from the point of view of one party alone. If the Government are the defendant in the proceedings, they have important responsibilities to put before the court to ensure that the rights of the citizen to be protected are not damaged inadvertently by what is proposed. We must remember that, in this very special area of national security other states are very sensitive that their material, which they regard as important for their purposes, should not come in to the public domain. It is in that situation that these procedures, as I understand them, are being proposed. As I have suggested, the judge would apply the ordinary principles with regard to weighing the material that he would apply in other proceedings, and also with regard to its admissibility. I look forward to hearing how the Advocate-General deals with the point that is now being taken with regard to the intercept evidence. That evidence is not normally admissible in proceedings, and it is not evidence that a judge can look at. I suggest that, if he were to hear it inadvertently, he would not be entitled to rely on it unless there was some reason that made it admissible.

Therefore, I hope that the Advocate-General will in due course explain why the normal rules, which I suggest must apply in so far as possible here, are not applicable also in the special circumstances of closed hearings.

[Lord Mackay of Clashfern]

My Lords, I think that this may be an opportunity for the Home Office, in particular, to reconsider the advice apparently previously to it by the holder of the office of Attorney-General. With this possibility, there may be a way of introducing more flexibility into the general role with regard to intercept evidence than seems to exist at present.

[Baroness Manningham-Buller]

My Lords, I should like to comment on paragraph (e) in Amendment 69ZB tabled by the noble Lords, Lord Hodgson of Astley Abbotts and Lord Dubs. I can assure the Committee from my past experience in the Security Service that if this paragraph were to appear in the legislation, it would have a chilling effect on sources and on their willingness to provide information. I predict that many existing sources would refuse to continue in their role and new ones would resist recruitment.

Sources provide a range of information—some of it to be discounted and some of it valid but all to be assessed, which is something that the judge will seek to do. Some of that intelligence from human sources has prevented major atrocities and loss of life. However, when individuals agree to provide that information in confidence, they seek reassurance that their lives will be protected, and anonymity is key to that. If they were identified, I am afraid that not only would they need to be resettled but very few more would be willing to work for the Government.