Justice and Security Bill [HL]

Lord Owen Excerpts

Tuesday 26th March 2013 Lords Chamber

[Baroness Berridge]

My Lords, I rise to speak briefly to Amendments 6A and 6B in this group and I am privileged to serve as a member of the Joint Committee on Human Rights. As the committee has been considering this matter since the Green Paper, I am probably as familiar with it as my noble and learned friend Lord Wallace.

The language of last resort that has now been adopted in Amendment 6A is quite suitable. The words,

“is not possible by any other means”,

reflect the recent statement of the noble and learned Lord, Lord Neuberger, in Bank of Mellat v HM Treasury in the Supreme Court when the Supreme Court allowed consideration of a closed judgment in a closed material procedure. He stated that,

“this is a course which is to be taken only where the court is satisfied that it is absolutely necessary to dispose of the appeal justly”.

I reiterate the point that, although I share the concerns of the noble Baroness, Lady Ramsay, about the reputation of those who serve in our security services, this Bill will affect the reputation of the judiciary and, as my noble and learned friend Lord Wallace has outlined, these cases are ones saturated in this type of sensitive material. It is a matter of logic that a judgment in a case that is so saturated runs the risk of being almost completely blank and we face the situation where claimants will appear on the sofas of our breakfast television programmes with judgments from our courts that literally are blank.

This concerns not just the cases of the Guantanamo Bay claimants—I am proud to live in a country where citizens can go to our courts and sue members of our security services. The claimants may also include other people. I have mentioned previously the family of Gareth Williams. We know that his unfortunate death is currently under investigation but often if a prosecution is not brought the family will bring civil proceedings. We are talking about a situation where the parents of someone like Gareth Williams will be excluded from our courtrooms.

It is also most worrying that Her Majesty’s Government have not won the support of the special advocates as to the merit of these closed material proceedings. I speak as a former lawyer. They will gain work if there are more closed material procedures but we have not won their support. In fact, it is their complaint, long-standing according to the recent evidence of Mr David Anderson QC to the Joint Committee, that in SIAC and other jurisdictions there is “occasional overuse of CMP”. In addition, SIAC exceptionalism has not been maintained and CMPs have crept into other jurisdictions. I believe that this amendment guards against that kind of creep in civil forums. The amendment is also worded in a fashion that does not require a full PII process to be gone through before our extremely experienced High Court judges can determine “any other means”.

Why it should be,

“not possible by any other means”,

is also because, arguably, any other means is better than a CMP. I note here what my noble and learned friend Lord Wallace outlined about obtaining the whole truth. It is common that there are serious doubts here as to whether the whole truth will always be obtained when one party to the proceedings is not in the courtroom. I say “arguably” as we have never received figures, although we have requested them, for PII on the grounds of national security that leads to the total exclusion of the evidence produced by the Government. I have never been convinced of the Government’s position that expelling one party to the proceedings and running the risk of evidence not being challenged is better justice than excluding some evidence, not a party, from the hearing, however relevant the evidence is. It is better for the Government but not for justice.

I do not wish to appear glib as I accept that there are serious matters to be considered such as the security of our intelligence sources, their reputation, the reputation of the judiciary, the reputation of justice and the fact that these cases arise where there are serious human rights abuses. However, I find it odd that since your Lordships’ House last considered this Bill Her Majesty’s Government settled a claim by Mr al-Saadi for £2.2 million after he said that the UK was involved in his unlawful rendition to Libya. Why did the Government not wait for the legislation so that they could have a CMP? It leads me to wonder that it is not every case that the Government cannot defend because they do not have access to a CMP and so pay out taxpayers’ money with the security services taking a reputational hit. I happen to think that, in the minds of the great British public, if there is such a reputational hit, it is far outweighed by the kudos of the James Bond brand.

Amendment 6B appeals to the need to take into account the public interest in the fair and open administration of justice. Right from the beginning of this process with the Green Paper, there has been scant, if any, recognition by the Government of the principle of open justice. Perhaps it is because, unlike in the time of Charles Dickens where open justice meant that trials were public entertainment, open justice today is ordinarily journalists being the eyes and ears of the public. The attitude of many to journalists due to phone hacking should not taint the public view of journalists such as Joshua Rozenberg and Gordon Corera who report inquests and matters in this area of law. That is a vital public function.

The test as the Bill currently stands is,

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

and it is not sufficient as quite simply this is not a balancing test, Wiley or otherwise. It is not a balancing of interests. It says you merely put this on one side of the pan of the scales and regardless of what is weighing on the other side it goes into a secret procedure. Not all that would ordinarily be in the Wiley balancing test will, in my view, be included in the test in the Bill. As this is such an irregular trial procedure to adopt, it should be a competition of interests, a battle even for the Government to show that national security outweighs fair and open justice and that the nature of these proceedings is so unusual and so contrary to our principles of a fair trial that it should be only when nothing else is possible.

To conclude, I can do no better than to refer to the statement of the noble and learned Lord, Lord Neuberger:

“It must be emphasised that this is a decision—

to go into a closed material procedure—

“which is reached with great reluctance by all members of the court; indeed it is a majority decision. No judge can face with equanimity the prospect of a hearing, or any part of a hearing, which is not only in private, but involves one of the parties not being present or represented at the hearing”.

This is an unhappy procedure—again, to borrow the language of the noble and learned Lord, Lord Neuberger—and, as such, judgments are secret for 30 years. That was clarified to the Joint Committee. I sincerely hope that I am wrong that the Lord Hennessy of the future will have an annual TV slot at the turn of the new year at the National Archives in Kew uncovering judgments that, had they been open, would have been appealed and the government of that day, again, pay out millions of pounds in compensation, and not even “Skyfall”, which I believe is currently keeping Peers occupied in Committee Room 2, would save the reputation of MI5, MI6 and our judiciary.

[Lord Owen]

My Lords, as a former Minister with responsibility for MI6 I realise that although it has a need to have and an interest in having its views expressed—and that was done very well by the noble Baroness, Lady Ramsay—there is also a prior consideration, and that is to write on to the face of the Bill that we have almost unanimously agreed that this closed procedure can be done only in a tiny minority of cases, or, as other spokesmen have said, only as a wholly exceptional device. I can see no objection whatever to the wording of the amendment of the noble Lord, Lord Beecham, and I profoundly hope that it is agreed to.

The other amendment, proposed by the noble Lord, Lord Macdonald, raises very serious questions about whether we would see this new procedure, which I now think is necessary, in operation. I agree with everything that the noble and learned Lord, Lord Lloyd, said about that and I do not need to repeat his arguments. I think that some would regard the amendment as a blocking mechanism, although I am sure that it was not proposed in that way; I am sure that it was proposed as a double safeguard. However, it would not deal with the issue that, above all, has concerned me: how you protect source material, particularly if it comes through the intelligence of another country. We cannot imagine that a totally rational debate will always take place in a law court. This is an issue of whether you are supplied with that information. If there are profound doubts about the procedures—right or wrong—and if they are held by countries which have been our intelligence partners over many decades and whose information has sometimes saved a considerable number of lives in this country, we have to take account of how they see that procedure. Were the amendment of the noble Lord, Lord Macdonald, to be passed, we might find that other countries would not see the procedure as safe. I would therefore stick to the Government’s amendment and their wording and not go along with the amendment of the noble Lord, Lord Macdonald.

[Baroness Kennedy of The Shaws]

My Lords, I support Amendments 6A and 6B. I think that there is agreement in the House that CMP should be used only in the most exceptional circumstances and that it so radically departs from one of the most fundamental of our common law principles that it is essential that its use is kept to a minimum.

I endorse what the noble and learned Lord, Lord Brown, said about the process that happens in a court. All this sometimes seems arcane or obscure to those who are not lawyers and it is easier to pin it down by having examples. Those of us who practise in the courts and often deal with security matters know that the process described by the noble and learned Lord, Lord Brown—where a judge will consider whether you can redact documents and take out references or anything else that might in any way disclose the identity of an informant—takes place in these cases and has done over the years. There is the business of someone giving evidence with their identity never being disclosed, or giving it from behind a screen, and there are other ways of doing it using new technology. There are many mechanisms, quite different from the PII process, which can protect the things that the security services are sensitive to, and it can be done with agreement while retaining the sense of as much openness as possible.

My sense of what the House wants here is for the closed material procedure of barring the defendant and their lawyers from the court and from hearing the evidence—which is fundamentally unfair and flies in the face of the idea of a fair trial—to happen in the most exceptional circumstances. It therefore seems extraordinary that there should be resistance to the notion that the Bill should state that such a process should be used only as a last resort. The argument made for not doing so is that it would be time-consuming for the Secretary of State—because the Secretary of State, even in this minute number of cases, would have to look through the papers and acquaint him or herself with the detail—as well as for the court. As your Lordships have heard from others who, like me, have participated in proceedings of this kind, one would expect a Secretary of State or a judge in a case of this kind to consider with care the nature of the evidence and whether it was possible to keep it as open as possible. That is what we would expect, and it is certainly what I would expect of a Minister who was exercising authority. Otherwise we would ask, “If the Minister does not want to examine the evidence that is being kept secret, who is exercising the authority? Is it the Minister or is it the security services?”. We really have to be very careful here. I remind the House of what happened in Matrix Churchill, where we understood that there was just a signing-off of requests by the security services, which was of great discredit to government at the time. I would warn against what this procedure will do to confidence in government, confidence in the security services and confidence in our judicial processes.