Justice and Security Bill [HL]

Lord Pannick Excerpts

Tuesday 17th July 2012 Lords Chamber

[Baroness Berridge]

My Lords, I shall speak to Amendment 88, which, as the noble Lord, Lord Beecham, has said, is in my name. I concur with much of his reasoning and concerns about the recording and reporting of these matters. The amendments would enable Parliament to monitor the use of these unusual court proceedings. I would be grateful if my noble friend would say whether the response given in the other place to the question from Mr Sadiq Khan still stands, as the Government have very helpfully agreed to compile a central database of closed material procedures for the use of special advocates. If the Government are able to compile that database for special advocates, could they not also do so for Parliament?

If the closed material procedures are granted by Parliament, it would be on the basis of there being a very small number of cases. This amendment would enable Parliament to monitor whether that is indeed the case. Unfortunately, things that are intended to be rare have a tendency to creep, as apparently Lord Williams of Mostyn assured your Lordships’ House in 1997 in relation to the introduction of SIAC. The closed material procedures are now used in a large number of statutory situations—I think about 14 different jurisdictions. I expect there will need to be some agreement as to how frequently a report is laid but it is important with such a closed system that as much information as possible comes into the public domain, particularly information that can be assessed by Parliament. Although not the subject of this amendment, the same argument applies to the use of closed material procedures generally, so that Parliament would know how often they are applied for, granted, appealed and, in particular, successfully appealed, as well as which government departments are making use of the procedures and under which legislative regime they are being used. I also believe that there could be useful comparative statistics on how often appeals are brought in jurisdictions where appeal is allowed on a matter of law alone compared to on a matter of fact, as in the civil proceedings considered under this Bill.

Amendment 88 adds the requirement for the independent reviewer of terrorism legislation to bring a report to Parliament, which I understand would be similar to the role of the independent reviewer in relation to control orders and now TPIMs. It could also perhaps provide a means for the independent reviewer to receive the continuing views of the special advocates, which have been such a concern to many people including the Lord Chancellor. Unless someone independent reads all these closed judgments in an area, I do not know how we will know if there are inconsistent decisions and perhaps cases that have been decided without knowledge of a previous precedent due to the fact that these are secret judgments. Some of that risk will of course now be averted by the new central database that I have mentioned, which will be available to special advocates. However, it will not be completely averted, in my view, due to the nature of the system and not in a way that Parliament can be assured of the integrity of the body of these decisions. The independent reviewer of terrorism legislation might even need a method of passing cases that he or she is concerned about to be reviewed by the court for the reasons I have outlined.

I believe it is very much in the Government’s interests to have as much information in the public domain and as much scrutiny as possible of a closed system. I also hope, along with the noble Lord, Lord Beecham, that there will be good news on Report on the principle behind this amendment.

[Lord Pannick]

My Lords, I added my name to Amendment 88 and entirely agree with what has been said by the noble Lord, Lord Beecham, and the noble Baroness, Lady Berridge. The noble and learned Lord the Advocate-General for Scotland said earlier this evening that CMPs are “second-best justice”. If we are to have CMPs as a necessary but regrettable diminution in the quality of justice, and if the quality of justice is to be strained in this way, with all the damage that is done to fair and open justice, it is essential that the legislation contains adequate provisions for reporting and review so that this new procedure can be carefully monitored.

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[Lord Lester of Herne Hill]

My Lords, this amendment is perfectly understandable and very prescriptive. It might be to the benefit of the House if I explained that I asked the Government in a Question for Written Answer whether they would introduce measures to ensure that judgments made by courts and tribunals under the closed material procedures were made public when the reasons for maintaining their secrecy no longer obtained. This, of course, relates to a later amendment.

My noble friend Lord McNally gave a Written Answer on 10 July, which may make any comment unnecessary. He said:

“Closed judgments contain highly sensitive material. For this reason they are not suitable for publication by law reporting organisations which are not security cleared. Closed judgments are usually handed down in tandem with an open judgment, and most judges”—

I emphasise “most”—

“state in their open judgment that a closed judgment has also been handed down ... Judges will put as much of their reasoning into open as possible, including statements of legal principle that are most likely to have cross-case relevance. It is open to special advocates and counsel for the Government to make submissions about moving material from the closed judgment to the open judgment. If the court is persuaded that it would not harm the public interest to do so, then material will be moved to the open judgment”.—[Official Report, 10/7/12; col. WA243.]

It then refers to the code of practice under the Freedom of Information Act. I mention that Answer because it shows that an unsatisfactory situation will obtain with regard to these judgments. Whether this or a later amendment or some other approach is needed, I have no doubt that standards are needed so that we get common—in fact universal—practice as to what we can do to make sure that judgments whose secrecy has been lost over time or because of particular circumstances may be made public in accordance with the principle of open justice.

[Lord Pannick]

My Lords, I, too, support the amendment, and not just because in principle it is right that judgments should be closed for as limited a time as necessary. There is also a very real practical consideration that, despite what the noble Lord, Lord McNally, said in his Answer that the noble Lord, Lord Lester of Herne Hill, quoted, there have been examples of closed judgments that contained statements of principle that were not in open judgments or that contained statements relevant to other cases or potential cases. The difficulty is that those practising in this area who represent individual litigants do not have access to this body of jurisprudence. If we are to create this closed material procedure, we have to recognise that we are creating a body of case law that is not generally available. That is a very real problem for the rule of law. One way in which to address the problem is to minimise as far as we reasonably can the length of time for which a closed judgment is not generally available. For that reason, in addition to the reasons already given, I support the amendment.

[Baroness Berridge]

My Lords, I, too, support the amendment and am aware that part of this issue is covered by a later amendment in a separate group. I want to raise the very practical point that leads on from the point made by the noble Lord, Lord Pannick. From hearing evidence in the Joint Committee on Human Rights, a very basic question arose: where, physically, are these judgments?

Normally, you can go into a law library and they are all there. Special advocates and other people just seem to be unaware of where, physically, this body of case law is stored. We know from the answer to Mr Sadiq Khan that it seems not to be collated centrally. It is a very important question. It sounds incredibly basic, but we need to know where, physically, these judgments are stored.

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As has been pointed out a great many times in these debates, the proposals in the Bill import into ordinary civil cases a new jurisdiction that involves a substantial and, for many of us, deeply disturbing departure from the principles of fairness and open justice that lie at the heart of our system. I suggest that it is incumbent on us to make it as clear as we can that the system will be administered as fairly and as transparently as possible. The introduction of an independent disclosure judge is a minimum step that we should take in that direction.

[Lord Pannick]

My Lords, I sympathise with the objectives of the amendment and I agree with much that was said by the noble Lords, Lord Thomas of Gresford and Lord Marks of Henley-on-Thames. However, I have this concern about the amendment: in practice it will be very difficult indeed for judges to determine whether to move into a closed material procedure as an abstract preliminary question. We are far more likely to get a sensible result from a judge on whether it is necessary to move into a closed procedure, and a far more sensible result on the balance of competing interests, if the judge is fully aware of all the detail of the case and has heard the opening from the parties concerned on both sides with the open material. The judge will then be able to take a far more informed and sensible view on whether this exceptional procedure is really required.

I am very concerned that if these matters are addressed as a preliminary question, we may well find that judges—very properly, to protect national security—are going to authorise far more closed material procedures than would actually be necessary if the judge were fully aware of all the details of the case and had heard at least the opening statements on an open basis.

[Lord Thomas of Gresford]

Would not the problem then arise that disclosure is a preliminary part of the procedure in ordinary civil proceedings? It is upon disclosure and the pleadings that very important decisions are made: for example, for payments in and settlement of a case, and so on. As I understand the noble Lord, he is saying, “Well, leave it until the trial has begun and both sides, or at least the plaintiff, have opened their case. Only then should issues of disclosure take place”. Now, suppose the trial has started, the expense has been incurred, and something very significant appears as a result of a disclosure application which makes months of work completely unnecessary. Is that not the danger of his course?

[Lord Pannick]

The noble Lord is of course correct; that is a danger. However, very often, highly sensitive questions of disclosure that raise issues of PII are not dealt with as abstract, preliminary questions, but on the basis that in civil litigation, one needs to see precisely how the case is going to be argued, how material is going to be deployed, and what the issues are. I suggest to the noble Lord that it is going to be very difficult indeed, particularly in this exceptionally sensitive area, for a judge hearing matters on a preliminary basis to form an accurate and informed assessment of what we all agree are going to be exceptional categories of cases where closed procedures are appropriate, on this preliminary basis. That is my concern. It is a difficult issue.

[Lord Thomas of Gresford]

This is a very useful dialogue. I hope other noble Lords are listening. Is it not the case that strike-out applications, for example, and all sorts of issues are tried on the pleadings? Donoghue and Stevenson was tried on the pleadings. Major cases are tried on the pleadings because, unlike criminal procedures where the defence statements are laughable, in civil proceedings the case must be set out very fully and considered by both sides, and all the evidence must be produced up front, well before the trial starts.

[Lord Pannick]

The noble Lord is correct and I accept, at least to an extent, that there may be Clause 6 cases where a discrete, fundamental issue can be identified at an early stage. However, I suggest that there will also be cases—the majority, I suspect—where the issues will not be formulated and clarified in this specific way on a preliminary strike-out basis. I am concerned that it is inevitable that there will also be cases where fresh evidence comes to light or where, as a result of the way the case is put in the trial, new Clause 6 issues arise. It seems impractical to require the trial judge, who has already started to hear the case, then to say, “I am going to stop”, whereupon the issue would go off to a disclosure judge. There are real issues here and I am far from convinced that the amendment, the purposes of which I entirely sympathise with, will result in fewer CMPs than the procedure that is in the Bill.

[Lord Faulks]

My Lords, I share with noble Lords who have proposed this amendment the desire that there should be public confidence in the system. However, like the noble Lord, Lord Pannick, I do not think that this is the solution. It is true of course that there are circumstances in which it is desirable, if not essential, that one judge should hear one part of the proceedings and another should hear another part, but the question of it being desirable, as it were, to have separate judges is a different matter. In fact, there is quite a strong argument that there should be greater continuity. The days of having one judge hearing preliminary issues and summonses and then the matter moving on to another judge have to some extent been changed in the Commercial Court, the Technology and Construction Court and in many cases in the county courts, so that if possible there is the same judge with a grip on the case right from the beginning.

On the face of it there is considerable advantage to having continuity unless, of course, the process is going to result in injustice to the litigant. We are talking in the context of CMPs with a claimant who may feel that injustice is being done to him or her by virtue of the possibility of closed material provisions. All I can say is that if I were in the position of that claimant, I would much prefer the judge who first heard and no doubt scrutinised the application under Clause 6 to conduct the case throughout in order to make sure that there is fairness, to show the flexibility we discussed in the last session of this Committee, and to deal with what might arise in accordance with the guidance given by the Bill in such a way as to provide justice. Although I wholly understand what motivates the amendment, I fear that it is not going to achieve what it is intended to.