Justice and Security Bill [HL]

Lord Strasburger Excerpts

Wednesday 21st November 2012 Lords Chamber

[Lord Dubs]

My Lords, in the earlier debates this evening, we discussed the CMPs at great length. As I said in passing, many of the arguments against or seeking to modify the CMPs could easily have ended with a move to abolish them altogether. So in one sense, the case has already been made, except that I have to go back over it briefly. We are talking about probably the most fundamental aspect of the Bill: whether or not we should have anything like CMPs on our statute book at all.

CMPs represent, as was said earlier, an absolutely fundamental change in our judicial system—more fundamental than, perhaps, was fully appreciated. For the things that will fall under CMPs, it is the end of our adversarial system, when judges will no longer have to hear both sides of an argument in order to come to conclusions. It has been said by people who are more expert than I that if you take away one side, then injustice is virtually guaranteed. Our adversarial system depends upon two sides: two parties. Without that, our system can hardly be assured of providing justice. Indeed, it may well not do that at all.

We are, after all, talking about 350 years of applying a principle and doing this in practice. If we depart from such a fundamental principle, we are damaging our basic freedoms. It means that citizens can no longer challenge the powers that be in court and be heard openly in doing so. It takes away one of the most fundamental rights of the British citizen: that they can go to court, that they can challenge authority and the powers that be. That will no longer be possible.

Indeed, this will tarnish the reputation of British justice. I understand that at least one newspaper in Russia has already commented—approvingly or not, I do not know—that these proposals will provide secret courts. Maybe the Russian paper thought that that would be a good idea, or was seeking to justify something in that country. Certainly, however, if other countries are already commenting before we have even passed the legislation, we ought to be pretty careful about it.

Of course, as has been said before, the system will work on whispers. The Minister or the Government will whisper to judges and the decisions will be made accordingly. Indeed, David Anderson QC, the independent reviewer of terrorism, who has often been quoted this evening, has said that these measures cannot be justified on security grounds. He had other reasons for justifying them in terms of cost or not paying people money, but, on security grounds, he did not think that they could be justified.

One of the concerns, which has been expressed quite frequently, is that if you give a Government powers, even on a limited basis, they will inevitably start using them more widely. This is no disrespect to any Minister—it is simply the way the system works. We can all visualise a civil servant saying to a Minister, “Well, Minister, you know you do have the powers to do this, and they’re on the statute book”, and the Minister will say “Hmm, I forgot that”, and then “Can I get away with it?”, or “Will Parliament notice?”, or words to that effect. This is how Governments of all colours work. We therefore have to be careful that when we give powers that are intended to be limited, they will inevitably be used more widely. The special advocates themselves—all those consulted in a survey, which was almost all of them—said, I believe, that this whole idea was “incurably unfair”.

I want to give one example. I have lots of them, but I do not want to trespass on the time of the House too much. I have a document here which was in fact produced by the Ministry of Defence in court, so I am not giving away any secrets, though it was headed “Confidential” before it went into court. It is produced by an organisation called the United Kingdom Detention Oversight Team, or UKDOT. Its job is to visit detainees in Afghanistan who are held by the Afghan authorities. I will quote from this document, because it came out in court because we did not have CMPs. If we had had CMPs, it is almost certain that none of this would have been known. The document is headed “Electric Flex-Redux”.

“The team arrived. On arrival we interrupted an interview (we conduct our interviews in one of the two interview rooms) which caused the interrogator and prisoner to vacate the room in haste to accommodate the UKDOT. In the interview room we found on the floor behind the interviewer’s desk the same UK socket electric flex the UKDOT had seen on a previous visit”—

It refers to the visit in September and then continues:

“We took a photograph of the flex (see photograph) and after a few minutes a guard appeared and, in an uncomfortable silence, removed the flex: no explanation was offered and, for fear of causing a scene, none was asked for”.

I have here a photograph of the flex lying on a carpet. There may be an innocent reason for this, and this is not an investigation of how this operated. The point is, this would never have come out if we had had the legislation that the Government wanted. Therefore, I argue that the CMPs would help cover up things that we ought to know about. It would not have come to light if the CMP had been in use at the time.

I will conclude with the following. I was a member of the JCHR some time ago, when we produced the first report on these proposals, although I was not a member when it produced a second report. However, both reports have a number of things in common, one of which is that they said that the Government had produced no evidence to substantiate the use of CMPs. In the end, that is the most crucial argument. We are stumbling along, setting a very dangerous precedent, as far as our judicial system is concerned, and we are doing it without the evidence that would justify such a dramatic and drastic change. All we have is the say-so that there are a number of cases in the pipeline—and I do not doubt the Minister’s good will—which might or might not come under this system, and which might or might not contain something important that would be revealed if we did not have CMPs. No evidence produced by Government could justify this major piece of legislation. I beg to move.

[Lord Strasburger]

My Lords, when I spoke to your Lordships’ House on Second Reading, I highlighted how the injection of closed material procedures into our civil justice system would infect it with unfairness and corrupt it with secrecy. Currently, the British people hold their courts in high regard, and respect their decisions. This is partly because our judges are seen as incorruptible, independent and wise, but the main reason is that court decisions are the result of a fair and transparent process. In an adversarial system such as the English one, the right to know and challenge the opposing case is not merely a feature of the system—it is the system.

Judges do not have the resources or power to investigate the merits of the case themselves. They depend upon the process in which both sides assemble and present their evidence, and then challenge each other’s cases. They then judge which case is the stronger in the light of those mutual challenges.

The Government have stated that,

“protecting the public should not come at the expense of our freedoms”.—[Official Report, 19/6/12; col. 1660.]

This seems to be precisely the cost that the Government wish to exact in the name of greater security. In fact, the Bill does very little to provide the public with greater security, while giving an unacceptably high level of protection to the security services from exposure of their alleged wrongdoings by the civil courts.

The Government would need to advance the most persuasive reasons to justify such serious damage to our civil justice system. They have completely failed to do so. That is the conclusion that the Joint Committee on Human Rights came to. It stated:

“We remain unpersuaded that the Government has demonstrated by reference to evidence that there exists a significant and growing number of civil cases in which a closed material procedure is ‘essential’”.

Listen to the clear opinion of the special advocates, the government-appointed lawyers who spend much of their time working at the coalface in this dark and murky part of our legal system. A memorandum about the Bill, which was signed by 59 out of 67 of them, states that,

“the Government would have to show the most compelling reasons to justify their introduction”,

referring to the CMPs. It went on to say,

“that no such reasons have been advanced; and that, in our view, none exists”.

The Government have completely ignored this highly authoritative condemnation of the need for the Bill. The only comments that I can recall are an admission by the former Lord Chancellor that,

“the evidence of the special advocates most unsettled me”.

But he has done nothing to correct his unsettled condition and I presume that he is still unsettled, as I am.

--- Later in debate ---

[Lord Reid of Cardowan]

There are three points there. First, of course I was not suggesting that there was any intent on the part of the noble Lord. However, I was explaining that there is a law of unintended consequences. You do not need an intention to make it easier for terrorists in order to embark on a course of action that ends up assisting in that. The second point relates to the Government’s response. As I understand it, the Government are saying that we currently have a system that does not give us justice because the requirement to protect national security information is such that they cannot take it to court, and therefore, whether or not it is just, someone is in receipt of benefits.

[Lord Strasburger]

My Lords—

[Lord Reid of Cardowan]

Let me finish with the questions that I have been asked and then I will happily come back to the noble Lord.

The third question is whether I am off the point. I do not see how this issue can be discussed without a deeper understanding of the security—I truly do not—and yet in this Chamber I hear speech after speech about law but no one sets out the circumstances in which we have to face these threats. We might as well try to exist in a vacuum. Of course we can turn our eyes and act blind to the world outside but we have at least to try and understand the circumstances that give rise to what the Government are doing, or alternatively we will be forced to say that they are either mad, bad, corrupt with power, lapdogs, murky, conspirators or acting at the behest of evil civil servants.

--- Later in debate ---

[Baroness Manningham-Buller]

The noble Lord, Lord Strasburger, should speak first.

[Lord Strasburger]

Can the noble Lord tell the House about a single occasion when a British court has released into the public domain any information that has been detrimental to the country’s national security? Can he name a single one?

[Lord Reid of Cardowan]

That is rather a Catch-22 question, is it not? The reason they have not is that they have settled out of court. That is the point that we are trying to make. The noble Lord is asking for evidence that cannot be adduced. The very purpose of bringing forward this provision is precisely to meet a situation which has arisen because they cannot.

--- Later in debate ---

[Lord Strasburger]

Then the answer to my question is no.

[Lord Reid of Cardowan]

The explanation for a no is always more substantial than a straight no.