Justice and Security Bill [HL]

Debate between Lord Pannick and Lord Marks of Henley-on-Thames

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.

Fixed-term Parliaments Bill

Debate between Lord Pannick and Lord Marks of Henley-on-Thames

Tuesday 10th May 2011 Lords Chamber

[Lord Pannick]

My Lords, I am grateful to all noble Lords who have spoken in this interesting debate and for the support that has been expressed on all sides of the House. My answer to the noble and learned Lord, Lord Mackay of Clashfern, is that we are dealing with an exceptional Bill which is being brought forward by the coalition Government to deal with a particular short-term political problem. In the light of that, we should think very carefully before we embody on the statute book, as a permanent measure introducing permanent constitutional change, a measure which has at best a short-term political purpose.

I respect the views expressed by the noble Lords, Lord Tyler and Lord Marks, and by the Minister. I respect their views because they and the Liberal Democrats strongly believe in fixed-term Parliaments as a matter of principle. However, their difficulty is that large numbers of noble Lords on the government Benches do not agree with fixed-term Parliaments as a matter of principle. They are rightly concerned about the constitutional implications of such a measure, as so eloquently expressed by the noble Lords, Lord Hamilton and Lord Cormack, in this debate. They are particularly concerned about this matter in the absence of any public consultation on this issue, in the absence of any pre-legislative scrutiny and given the lack of any evidential basis for the new constitutional principles we are about to enact.

The inescapable reality is that the Government and large numbers of noble Lords on the government Benches are supporting the Bill not because they believe in the constitutional principle but because it is part of the coalition agreement, and it is part of the coalition agreement because of the political needs of this coalition Government to remain together for five years. I repeat: I do not deprecate that; it is a perfectly proper political position to adopt as a basis for legislation which applies to this Parliament. However, it is not an acceptable basis for general constitutional change, as the noble Lord, Lord Butler, has pointed out.

The noble Lord, Lord Turnbull, asked whether under the amendments a future Parliament could approve a resolution at any time during that Parliament. The answer is yes, and the reason the amendment is so drafted is that it would be inappropriate to limit the events and the circumstances that may occur during a future Parliament. It is quite possible that a coalition Government might be formed part of the way through a future Parliament. The noble Lord, Lord Marks, and the Minister were concerned about the Parliament Act, but of course a future Parliament could at any time enact primary legislation on this subject.

The Minister asked a fair question—all his questions were fair, of course, but he asked me to address this one in my reply—about how this will work in the future. My belief, my expectation, is that no future Government will want to apply the provisions in this Bill as they are unless there is another coalition Government with similar political demands to this one. I hope and expect that after the next general election, if there is a desire in principle for fixed-term Parliaments, the relevant responsible Government will bring forward new primary legislation that will be based upon proper consultation and pre-legislative scrutiny and in the light of experience.

[Lord Marks of Henley-on-Thames]

I am sorry to interrupt the noble Lord, but what is his answer to my point and to that of the Minister that there should be proper, full parliamentary consideration of primary legislation to amend or appeal this Bill rather than the odd mechanism proposed in his amendments.