Justice and Security Bill [HL]

Lord Marks of Henley-on-Thames Excerpts

Monday 23rd July 2012 Lords Chamber

[Lord Pannick]

My Lords, I support what has been said by the noble Lord, Lord Thomas of Gresford. I added my name to Amendment 69ZC because I was concerned to hear the noble and learned Lord the Advocate-General for Scotland say last Tuesday night, at col. 220, that the Bill would allow the judge to look at intercept evidence in closed proceedings. I had not previously understood that this was the purpose and effect of paragraph 9 of Schedule 2, and that is my fault. However, as a matter of principle it is surely one thing for the Bill to allow the judge in a secret procedure to look at material that is admissible in court but which the state is unwilling to have looked at in open court because of its sensitivity. One understands the purpose of those provisions. It is quite another thing for the state to be allowed to rely in the closed hearing on material that is, in any event, inadmissible in open court.

I had understood the Government’s defence of the closed material procedure to be that the state should not be in a worse position because the evidence on which it wishes to rely cannot be adduced in open court. To allow the state to rely on intercept evidence in the closed procedure—evidence that is inadmissible in open court—would put the state in a better position in a closed material procedure than in an open proceeding, and that cannot be right. Nor can it be a defence of such an arrangement for the Minister to argue, as he did briefly last Tuesday night when we touched on this important issue, that this is what happens in other closed material proceedings. I do not recall the House giving any consideration to this important issue on those occasions. We are now being asked to expand the scope of closed material proceedings very substantially, and I hope that we can now address the issue of principle.

[Lord Marks of Henley-on-Thames]

My Lords, I have been one of those persuaded by the Government of the need for Part 2 of this Bill: that there may indeed be cases in which the injustice of being unable to achieve a determination of the issues in the case outweighs the injustice inherent in having the case tried in part by closed material procedure.

In being so persuaded, however, I have been one of those who have been extremely reluctant to see such a departure from the principles that normally guide us in civil proceedings. That persuasion has been on the basis that closed material proceedings would be a last resort only and that the decision to hold such proceedings would be taken only on the basis that national security required certain material to be withheld from the public at large and from the excluded party or parties, despite the serious unfairness inherent in that procedure.

However, it would be fundamental that, except for the departures from ordinary procedural law inherent in the withholding of security-sensitive information, the proceedings before the judge would otherwise be ordinary civil proceedings. Moreover, the material before the judge, which he could consider in coming to his conclusion, would be evidence that he or she would ordinarily be able to hear and take into account in ordinary civil proceedings.

If that were not to be the case, and material that would be inadmissible in an ordinary case were to become admissible because the proceedings were held as a CMP, that would set them apart from the ordinary procedural law of the land and create an entirely new security court of a type that many in this House would find both alien and sinister. Furthermore, it would undermine the whole concept of the use of a CMP being a last resort, because the very fact of the CMP would give a party seeking to introduce evidence that would otherwise be inadmissible a litigation advantage. That would make the CMP procedure desirable in itself, irrespective of any considerations of national security. The CMP would then become a parallel and less fair procedure than ordinary civil proceedings in a way quite unintended by those of us who see the need for the Bill.

For those reasons, I support this simple amendment, which makes absolutely clear the position of the admissibility of material considered by the judge. I hope that the Minister will accept the amendment and reassure us on this important point in closing.

[Lord Goldsmith]

I start by apologising to the Committee that I have been unable to take part in the debate on the part of the Bill that I wanted to take part in—this part—due to other commitments. It would have given me the opportunity to say more than I will say now about how concerned I am about the departures from traditional ways of resolving disputes, which other noble Lords have referred to. All the amendments that have been moved deserve careful consideration by the Government, and I will underline why that should be so.

First, as soon as one moves to a different procedure for determining civil disputes, it is important that one makes sure that the safeguards for litigants are available. Whereas in ordinary civil litigation one may simply be able to reply on the general approach of the court to make sure that those safeguards are there, in this novel and as yet uncharted territory one does not know. That is why it seems right that the Government should carefully consider, as noble Lords’ amendments propose, the detailed procedural safeguards that should take place. That is all the more so—this is my second reason —because this is a one-sided procedure. In circumstances in which the Government determine that they wish to go down closed material procedures, these considerations apply all the more because the risk is that the Government see the advantage to them of this procedure rather than to the litigant.

Looking at the way in which the Bill would operate, I also think about how some of us might have to explain this procedure to colleagues in other countries. They will ask, “Is it true that England, a country that we thought had such strong safeguards for liberty, can now have procedures in which evidence is relied on by the state against an individual without that individual seeing it?”. I have spent a lot of time overseas and I will find that difficult to justify. I will find it all the more difficult to justify if—and this is why I support the amendment moved first by the noble Lord, Lord Hodgson of Astley Abbotts—I had to say, “And what is more, it is true that the judge made the decision for that procedure to apply without there even being a hearing as to whether it should”. I would find that very difficult indeed to justify.

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[Lord Soley]

My Lords, I intervene as a member of the Delegated Powers and Regulatory Reform Select Committee, to which my noble friend Lord Beecham has already referred and which has been referred to on the other side of the Chamber. I do not speak for the Committee, but I can say quite clearly that we spent some considerable time on this and were very concerned about it. We all know the powers as Henry VIII powers. Whenever we have these, we look at them carefully and with considerable concern about the power of Parliament being sidelined in relation to the power of the Government.

The context of all this is my own involvement in many of these issues, going right back to the 1970s and 1980s when I first started working with some of the legislation dealing with the emergencies in Northern Ireland and with other prevention of terrorism Acts. The tendency in all these things is for the Government to require the extra powers, for reasons which we all understand and are very sympathetic to, because on one side of the equation is the need to deal with the difficult situations but to do so by exercising the proper rule of law, and on the other is the right of Parliament to oversee what the Government have done.

I have made this point before but I make it again simply to reinforce the context of this. If we look at the history of these sorts of Acts, we see that they have a long involvement in the Government taking additional powers, very often in difficult situations, and then extending those powers into other areas. I have referred in the past to the Official Secrets Act 1911. Not long after that Act, MI5 and MI6 were created. However, neither MI5 nor MI6 had a legal existence until the 1980s; we literally did not put them into law. If we look at the prevention of terrorism Acts in the 1970s and 1980s, we see that we often legislated for drastic situations in which we needed to protect the public but did so in a way in which Parliament was increasingly marginalised. I had a great objection to one of the prevention of terrorism Acts, which had in effect a more than Henry VIII power whereby the Home Secretary alone could exclude a person from one part of the United Kingdom to another part without reference to Parliament.

What did the Delegated Powers and Regulatory Reform Committee focus on here? It was on this very issue of the power that the Government are taking. I refer here not so much to the report which my noble friend Lord Beecham has dealt with very well, but to the notes provided to the Delegated Powers Committee: the Home Office and Ministry of Justice memorandum. This is not new material.

Paragraph 47 of the memorandum says:

“It is appropriate to make provision in the Bill for this power”—

that is, the power to define the relevant civil proceedings in a court, excluding the criminal courts of course—

“because it is possible that a case not within the scope of the current definition of ‘relevant civil proceedings’ will arise, such that a CMP is needed for the just consideration of the case to be heard before a different court or tribunal”—

a point that we are all aware of—

“whilst at the same time there is a need to protect national security sensitive evidence from disclosure”.

Again, that is something we are all very aware of. It continues:

“Furthermore, if this happens, the need to provide for the possibility of a CMP in such proceedings will be pressing in terms of time”.

The last sentence says:

“For these two reasons it is considered appropriate to provide for this power, since the changes can be made more quickly than amending primary legislation”.

The concern of the Delegated Powers Committee in this respect was what form of parliamentary control could be had over this sort of extension. This is the sort of creeping power that I have described and which any Government, not just this one, could in the future extend to other courts. The exception in the Bill itself is of course criminal courts. The Delegated Powers Committee took the view that there was no reason why this should not extend to coroners’ courts, even though the Government have, as I understand it, expressed the view that it should not in fact do so. However, there is nothing in the Bill to say that it does not. My worry would be that, given that there is a whole range of issues—including the point just made by my noble friend about trade unions, although this might be less likely in the nature of the information required—this would extend to tribunals as well. It could be extended across the board to many other areas of the law, which would be damaging and dangerous.

In the Delegated Powers Committee report we asked why, if there was urgency of time, we were looking at an affirmative procedure. An affirmative procedure is not fast; nor, incidentally, is the super-affirmative procedure referred to in the constitutional law report by the Constitution Committee, which suggested a super-affirmative procedure to deal with this. That is not a fast procedure either. If we need a rapid response—and I for one accept that a rapid change will be needed at times to deal with a case—one begins to look for a different way of addressing these urgent and difficult situations.

I have often felt, particularly as a member of the Delegated Powers Committee, that we do not really have the best system available to look at delegated powers. We almost need additional ways of doing this, and perhaps there will be a discussion on that when we come to another report issued by the Delegated Powers Committee on another occasion. I would simply say that, in the current situation, a Bill put through both Houses as a fast reaction to this would be a better way of dealing with it, not least because a Bill that is put before both Houses in the expedited system that we are quite used to when dealing with terrorist situations can also have a sunset clause in it. In other words, the action given to the Government and approved by Parliament to allow the Government to take this additional power could have a finite lifespan.

If we suddenly felt that we needed this power for a coroner’s court hearing, for example, there is no reason why a Bill could not be moved through this House quite rapidly and have a sunset clause in it so that it would expire after a certain period of time. We have done that before; we did it with the prevention of terrorism Act in the 1980s, so it is perfectly possible to do this. My concern, and that of most other members of the Delegated Powers Committee, was that this is a very real Henry VIII power that gives the Government great powers which Parliament is not given sufficient control over. That is the history of this sort of legislation. Parliament always needs to be alert to its duty—and it is a duty—to protect the citizens of a country from a Government having excessive powers.

In following up my noble friend’s comments on all this, I would certainly ask the Government for an explanation of why an expedited Bill through both Houses would not be a better option than an affirmative order, whether a super-affirmative order or a conventional affirmative order; or, indeed, whether the Government agree that there is considerable danger in any Government, with the best will in the world, faced with serious problems of the type that we have these days, being content to allow for a situation that is not only not fast—because the affirmative procedure is not fast—but that extends considerable power to the Government, which in most circumstances we would not accept.

[Lord Marks of Henley-on-Thames]

My Lords, I will speak to Amendments 70A and 70B in my name and the names of my noble friends Lady Williams of Crosby and Lord Thomas of Gresford. I speak as a member—a very new member—of the Delegated Powers and Regulatory Reform Committee.

Our amendments are in narrower terms than the amendments tabled by the noble Lord, Lord Beecham, the noble Baroness, Lady Smith, and those of the noble Lords, Lord Hodgson and Lord Dubs. Amendment 70A is prompted by the concern mentioned by the noble Lords, Lord Beecham and Lord Soley. Clause 11(2) and (3) gives the Secretary of State the power to add courts and tribunals to the very restricted list of courts that may hold closed material proceedings. That list comprises the High Court, the Court of Appeal and the Court of Session. That plainly involves the power to add coroners’ courts.

It is in that respect that the Joint Committee on Human Rights took the view that there was no case for inquests to be made the subject of closed material procedures. Not only did the committee reject the argument that coroners were liable to be disabled from conducting full investigations by the exclusion of sensitive material, but it pointed out, rightly in my view, that the use of CMPs in inquests would probably be a breach of Article 2 of the European Convention on Human Rights. That right to life article carries with it a procedural requirement for states to investigate suspicious deaths. On the basis of cases both here and in the European Court of Human Rights, such investigation has to be open and enable the families of the deceased to be involved in the proceedings. Compliance with those requirements would not be possible in any meaningful way where an inquest was held with a CMP.

The Government’s response to the JCHR report was to concede that there would be no inquests held under the closed material procedure. In his foreword to the Government’s response, my right honourable friend Ken Clarke, the Justice Secretary, went further and said that CMPs,

“will only be extended to civil cases in the Court of Appeal and High Court, and the equivalent courts in Scotland and Northern Ireland”.

That is in accordance with the Bill as drafted. That extra concession to exclude the lower courts was rightly made. It is important that this extremely sensitive procedure, where it has to occur, should be managed at the highest level. I suggest that both concessions should be made binding and should not be capable of being removed in effect by executive action.

Even if one could envisage the extension of CMPs to other proceedings, there is no reason, as the noble Lord, Lord Soley, pointed out, why that should not be achieved by further primary legislation. I disagree slightly with the noble Lord in that I would suggest that there is no case based on urgency. It is inherent in the nature of inquests that there is no extreme urgency. Indeed, we have all seen that inquests are frequently adjourned for very long periods to allow other proceedings or investigations to take their course. In the case of other civil proceedings, if CMPs are warranted they can be instituted in the High Court, where a CMP application can be made. As the noble Lord, Lord Beecham, pointed out, the Delegated Powers and Regulatory Reform Committee drew our attention to the scope of the powers conferred so that we in this Committee could appreciate the unconstrained nature and extent of the provision that might be made under them by this or a future Government. I suggest that the committee was right to do so.

Amendment 70B would remove from Clause 11(3)(b) the Henry VIII provision in relation to the power to change the definition of “relevant civil proceedings”. There would be no power for the Secretary of State to amend, repeal or otherwise modify any enactment, leaving the Secretary of State with a power to make only minor provisions, such as those that might be necessary to take into account the passage of other legislation. Taken together with Amendment 70A, this amendment would draw the sting from Clause 11(2) and (3) as it stands. I commend the amendments to the Committee.

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[Lord Marks of Henley-on-Thames]

I am sorry to interrupt my noble and learned friend but I am just confused as to how the Government can argue that a power which may be exercised to add or remove a court or tribunal in non-criminal proceedings—which by his own admission these are—cannot be said to extend to a coroner’s court. It was that problem that exercised the Delegated Powers Committee and we saw no reason for the conclusion for which my noble and learned friend is arguing.

[Lord Wallace of Tankerness]

We shall have to agree to differ. Considerable thought has been given to this and we believe that it would not be possible to extend the power here. I am always wary of putting “for avoidance of doubt” clauses into Bills, and I know parliamentary counsel also have anxiety about these things. If that helped, I would certainly be prepared to look at it to put that beyond doubt, although I do so with the caveat that by putting in such things, you have to watch you do not stir up more problems than the ones you are trying to resolve.

We do not believe that the order-making power here can be extended by this coalition Government or any future Government to inquests without primary legislation.

I would like to pick up on the points made by my noble friend Lady Berridge and the differences between civil proceedings, between parties and the inquisitorial nature of a coroner’s inquiry. The Government recognise that inquests have a unique role in our justice system. In inquests where intelligence evidence cannot be disclosed without risking national security and public safety, we will continue to use existing arrangements. In such circumstances, the Government can make a public interest immunity application to exclude the material. The coroner will exclude the material if he or she decides that the public interest in withholding the information outweighs the public interest in disclosing it. An inquest can also be converted into an inquiry under the Inquiries Act 2005. My noble friend made that point in regard to the inquest into the death of Azelle Rodney which could not proceed because neither the coroner nor the jury could see highly sensitive material. To allow all the material to be seen, the inquest was converted into an inquiry with terms of reference mirroring the purpose of the inquest.

With regard to the Mark Duggan case, it would be inappropriate for me to comment at this Dispatch Box on how the Inner North London and North London coroners propose to handle any sensitive material in their conduct of the inquest into the death of Mark Duggan. It is for the coroners concerned in these cases to decide the best course of action.

Finally, Amendments 70A and 70B would limit instead of remove the order-making power. Amendment 70A would omit the aspect of the power which would enable the adding or removal of a court or tribunal. We believe it is the key aspect of the power and so we could not accept it being limited in this way.

Amendment 70B would omit the aspect of the order-making power which enables orders to be made which amend or repeal any enactment, and I fully understand why Parliament is always wary of any such power. The provisions are for the situation where the definition of “relevant civil proceedings” is changed and certain supplementary or consequential changes are needed. An example of this is in subsection (4), and I hope that it meets the specific concerns raised by my noble friend Lord Hodgson. So, if a tribunal is added, Clauses 6 to 11 of the Bill may need to be adapted for use in relation to that tribunal. The power could be used to explain what “rules of court” mean for the tribunal because tribunals have “procedural rules” rather than “rules of court”. These sorts of differences would be reflected in the use of that power.

I hope I have been able to explain why the Government reached this position.