Justice and Security Bill [HL]

Lord Martin of Springburn Excerpts

Tuesday 19th June 2012 Lords Chamber

[Lord Wallace of Tankerness]

There is a strong case, and having heeded the representations, we took that particular route.

I was trying to explain that CMPs have been part of our legal system sometimes by agreement in civil cases and that is compatible with the interests of justice, so why bring forward the Bill? The reason is that the Supreme Court last year, in a case called Al Rawi, held that a court is not entitled to adopt a closed material procedure in ordinary civil claims for damages. The court held that it was for Parliament, not the courts, to decide where closed material procedures should be available. The consequence has been that we are no longer able to rely on the ability of the courts to find their own way through this difficult issue of disclosure.

Hence the provisions in Part 2 of the Bill, which seek to respond to this challenge in a proportionate and targeted manner. It makes CMPs available in narrow circumstances—namely, in civil proceedings in the High Court, Court of Appeal and Court of Session, where material is relevant to those proceedings, disclosure of which would damage the interests of national security. Importantly, it will be only after the Secretary of State has considered whether a claim for public interest immunity should be made. In line with a recommendation of the Joint Committee on Human Rights, Part 2 also allows for the transfer of judicial reviews of exclusion, naturalisation and citizenship decisions to the Special Immigration Appeals Commission, which has well established closed procedures.

Under the plans, where the Secretary of State applies for a CMP in civil cases, it will be for a judge to declare whether a CMP may be used. The judge will make this declaration on the basis only of national security considerations, not crime or international relations. Inquests, as we have indicated, have been excluded, and we were never intending to make CMPs available in the criminal courts.

Let me stress the safeguards that will apply. The Secretary of State will first have to consider whether the material can be dealt with by making a claim for public interest immunity. This will be a legally binding obligation and failure to comply can be judicially reviewed in the courts. The Secretary of State will then apply to a judge, and that judge will declare whether in principle a CMP may be used. That judge is the decision-maker. He or she must be satisfied that there was material relevant to the case, the disclosure of which would damage national security.

Once the judge has taken a decision in principle that a CMP may be used, a second exercise will take place in relation to the individual pieces of evidence which he decides are national security sensitive, following representations by a special advocate whose job is to act in the interests of the claimant. The judge will determine the treatment of each piece, whether redacting individual names or sentences would allow the evidence to be heard in open, or whether a summary of the evidence withheld must be made available to the other party and so on. The Bill does not upset the established position that it is for Ministers to decide whether to claim PII. Consequently, it should be the responsibility of the Secretary of State to apply for a declaration to the court that a closed material procedure may be used.

Some suggest that the Government may choose between claiming PII and applying for a closed material procedure opportunistically. Some say that the Government would apply for a closed material procedure where the material was helpful to the Government on the basis that the material could be considered by the court and that the Government would claim PII where the material was unhelpful so that, if successful, the PII claim would exclude that material from consideration.

It is not a realistic concern. The intention behind the closed material procedure proposals is precisely so that allegations made against the Government are investigated and scrutinised by the courts. The intention is that all relevant material—helpful or unhelpful—will be before the courts. It is hard to see that a judge assessing a PII claim would conclude that material should be excluded if the Government were seeking cynically to use PII to exclude material that undermined its case when a closed material procedure was available as an alternative.

The Bill makes absolutely clear that the court must act in accordance with the obligations under Article 6 of the European Convention on Human Rights—the right to a fair trial. The overall effect will be that in practice all evidence currently heard in open court will in consequence of the CMP provisions continue to be heard in open court, including allegations against the state. In reality, claimants will receive as much information where there is a CMP as they would following a PII exercise.

A number of respondents to the consultation made the points that CMPs are a departure from the tried and tested fundamentals of open justice. I agree. No Government propose measures in this area lightly. However, as we have seen, CMPs are already used in our justice system, and have been endorsed by both domestic and international courts for the good reason that they provide a fairer outcome when the alternative is simply silence—no judgment at all and no questions answered.

Briefly, I move on to the final set of provisions in the Bill—namely, ensuring the protection of our intelligence-sharing relationships and our domestically generated intelligence through reform of an area of law that is known as the Norwich Pharmacal jurisdiction. The Norwich Pharmacal jurisdiction grew up in the sphere of intellectual property law, where it is used to force a third party who—however innocently—is mixed up in suspected wrongdoing, to disclose information that a claimant feels may be relevant to a case that they are bringing elsewhere.

However, in 2008 a particularly innovative group of lawyers sought, in the case of Binyam Mohamed, to extend this jurisdiction to argue disclosure of sensitive intelligence information held by the British, including that provided in confidence by our allies. A specific right to the disclosure of intelligence services information has been ruled out by Parliament in the Freedom of Information Act and the Official Secrets Act. Yet, since Binyam Mohamed, there have been no fewer than nine attempts to use this jurisdiction in relation to sensitive information, including secret intelligence.

What is particularly troubling about this area of law is that, as the purpose of the proceedings is solely to gain disclosure of material, the Government do not have the option to withdraw from or settle the proceedings. If a judge orders disclosure, there is no option but for the Government to release the secret intelligence. Those who cannot keep secrets soon stop being told secrets. We expect our allies to protect intelligence material that we share with them from disclosure, and they expect the same from us. It is a regrettable fact that uncertainty about our ability to properly protect classified information provided by foreign Governments has undermined confidence among key allies, including the United States. In some cases, measures have already been put in place to regulate or restrict intelligence exchanges.

This is not just about material from overseas partners. We also need to protect from disclosure United Kingdom-generated sensitive material, which, if disclosed, could reveal the identity of United Kingdom officers or their sources and capabilities. To give but one example, not only could disclosure of sensitive intelligence derived from a UK human source jeopardise an ongoing intelligence dividend from that source, it could also blow the source’s cover, putting his or her life at risk. Our intelligence agencies cannot operate effectively if they cannot offer their sources protection. Norwich Pharmacal is the wrong tool for national security cases. The Government must regain the discretion to decide what the best way of assisting someone should be. Unless we address this situation robustly, the UK will continue to be seen as a soft touch by those wanting to get access to sensitive information. Our allies will—

[Lord Martin of Springburn]

I am sorry that the noble and learned Lord is upset about this interruption—

[Lord McNally]

You of all people.

[Lord Martin of Springburn]

Yes, me of all people, but I am entitled to seek information. The noble and learned Lord mentioned the Freedom of Information Act and people seeking access through that Act. Is it the case that someone living abroad can make an application under the Freedom of Information Act to information officers over here, including those in Parliament? I hope that I have been brief enough for the noble and learned Lord.

[Lord Wallace of Tankerness]

I cannot give an immediate answer to that question, but I suspect that it may be the case. The important point in this context, as I have just indicated, is that Parliament has decided that, under the Freedom of Information Act, a specific right to the disclosure of intelligence services information has been ruled out, irrespective of where the applicant comes from.

That is why the Government intend to legislate to exempt from disclosures under a Norwich Pharmacal application material held by, originating from or relating to an intelligence service defined as including the intelligence agencies and those parts of Her Majesty’s Armed Forces or the Ministry of Defence that engage in intelligence activities, or if the Minister has certified that it would cause damage to national security or international relations if it were disclosed. I seek to reassure the House that these measures will have no impact on claims that the Government or the security and intelligence agencies have been directly involved in wrongdoing; nor do they prevent someone enforcing their convention rights, and nor do they exempt the agencies from their disclosure obligations in other civil cases. We are not seeking to abolish an ancient right. The Norwich Pharmacal jurisdiction has existed only since the 1970s and it has been found to apply in national security cases only since 2008. Our reforms will affect the jurisdiction only in so far as it applies to national security and international relations.

In conclusion, the Bill seeks to reshape the way we scrutinise the actions of our security and intelligence agencies both inside and outside the courts. The Bill raises significant issues about how we can best achieve that scrutiny, and what should be the respective roles of Government, Parliament and the courts. As I have said, the Green Paper that preceded this Bill prompted much public debate. The Government listened carefully to that debate and have responded by amending their proposals, including taking up a number of suggestions made in a useful report published by the Joint Committee on Human Rights, a number of whose members I am sure will contribute to this debate. There has also been an important report from the Constitution Committee, to which we intend to respond soon.

I think that the provisions in this Bill are a measured and proportionate response to the challenges I described earlier. We need to ensure that the courts can secure that justice is done. We must maintain the rule of law and ensure that proceedings are fair for all parties to the case. We must protect information that is shared with us in confidence, particularly if it would inhibit the ability of our security and intelligence agencies to keep us all safe if there is a risk that it could be disclosed, and we must make sure that those we trust to oversee the work of the agencies on our behalf have the powers to do an effective job and are able to command public confidence.

I look forward to what I am sure will be a thorough and instructive debate both today and as we proceed into Committee on how we meet those challenges and seek to balance the age-old tension between liberty and security. I commend the Bill to the House and I beg to move.