Justice and Security Bill [HL]

Lord Taylor of Holbeach Excerpts

Wednesday 21st November 2012 Lords Chamber

Moved by

[Lord Taylor of Holbeach]

63: After Clause 12, insert the following new Clause—
“Use of intercept evidence in employment cases involving national security
(1) Section 18 of the Regulation of Investigatory Powers Act 2000 (exclusion of intercepted communications etc. from legal proceedings: exceptions) is amended as follows.
(2) In subsection (1), after paragraph (d) insert—
“(dza) any proceedings before an employment tribunal, or (in Northern Ireland) an industrial tribunal, where the applicant or the applicant’s representatives are excluded for all or part of the proceedings pursuant to—(i) a direction to the tribunal by virtue of section 10(5)(b) or (c) of the Employment Tribunals Act 1996 or (as the case may be) Article 12(5)(b) or (c) of the Industrial Tribunals (Northern Ireland) Order 1996 (S.I. 1996/1921 (N.I. 18)) (exclusion from Crown employment proceedings by direction of Minister in interests of national security), or(ii) a determination of the tribunal by virtue of section 10(6) of that Act or (as the case may be) Article 12(6) of that Order (determination by tribunal in interests of national security),or any proceedings arising out of such proceedings;(dzb) any proceedings on an appeal under Article 80(2) of the Fair Employment and Treatment (Northern Ireland) Order 1998 (S.I. 1998/3162 (N.I. 21)) where—(i) the appeal relates to a claim of discrimination in contravention of Part 3 of that Order (employment cases) and to a certificate of the Secretary of State that the act concerned was justified for the purpose of safeguarding national security, and(ii) a party to the appeal or the party’s representatives are excluded for all or part of the proceedings by virtue of section 91(4)(b) of the Northern Ireland Act 1998, or any proceedings arising out of such proceedings;”.(3) In subsection (2)—
(a) in the opening words, for “(db)” substitute “(dza)”, (b) after “anything—” insert—“(zza) in the case of proceedings falling within paragraph (dza), to—(i) the person who is or was the applicant in the proceedings before the employment or industrial tribunal, or(ii) any person who for the purposes of proceedings so falling (but otherwise than by virtue of appointment as a special advocate) represents that person;(zzb) in the case of proceedings falling within paragraph (dzb), to—(i) any person who is or was excluded from all or part of the proceedings on appeal under Article 80(2) of the Fair Employment and Treatment (Northern Ireland) Order 1998, or(ii) any person who for the purposes of proceedings so falling (but otherwise than by virtue of appointment as a special advocate) represents that person;”.”

[Lord Taylor of Holbeach]

My Lords, I have a speaking note for this amendment and I will not take the risk of moving it formally because it adds a new clause to the Bill. I hope noble Lords will forgive me if I explain this quite lengthy and complex clause, although it is simple enough in its intention. It would allow intercept material to be adduced in closed material procedures in national security cases in employment tribunals.

Intercept material is excluded from legal proceedings under Section 17 of the Regulation of Investigatory Powers Act 2000, but an exception already applies in limited circumstances by virtue of Section 18 of that Act. The section lists those specialised proceedings, including the Special Immigration Appeals Commission and cases relating to terrorism prevention and investigation measures proceedings, where intercept material can be used in the closed part of the proceedings. It is the Government’s objective to find a practical way to allow the use of intercept evidence in court. Section 18 does not currently include employment tribunals, and the amendment seeks to change this. The change would enhance the effectiveness and fairness of employment tribunals, it would be consistent with the objectives of this Bill and wider government policy, and it will help protect national security. Perhaps I may take these issues in turn.

The first is consistency with the Bill and its effectiveness. By allowing intercept material to be adduced in a limited number of cases where such material may be available, the amendment would enable employers to defend claims, for example, for unfair dismissal with a broader set of evidence than is currently available. The ability to adduce intercept material in CMPs is consistent with the wider provisions of this Bill, in particular paragraph 9 of Schedule 2, which includes a provision for an amendment to Section 18 of the Regulation of Investigatory Powers Act to allow for intercept material to be admitted in any Clause 6 proceedings. This further amendment would bring employment tribunals in line with the small number of specialised civil proceedings in which the disclosure of intercept product is already permissible.

Perhaps I can now address the question of operational necessity. This amendment does not represent an academic exercise. There will be cases before employment tribunals where an employer is not properly equipped to defend its actions as it is unable to adduce the full breadth of material available. For example, there will be cases where the Government are defending a claim for unfair dismissal following the removal of a former employee’s vetting clearance. Currently, if the vetting is based on intercept material, it would not be possible to adduce that material in support of the vetting decision. The national security vetting system is designed to provide an assurance that those with access to sensitive information do not pose a security risk. It is very important that an assessment of the risk is made on the basis of all the relevant material, regardless of the source.

Where a decision is made to withdraw vetting clearance it is important to the integrity of the system that the decision can be maintained and is capable of being defended from legal challenge. Where intercept product or intelligence based on intercept is integral to the decision, its unavailability in employment tribunal findings could result in employers wrongly losing their case and an adverse impact on the national vetting system. Furthermore, departments may become reluctant to rely on information provided by the security and intelligence agencies for fear of not being able to defend decisions taken. It is also important that those bringing proceedings in employment tribunals can be confident that the tribunal has access to all the information on which a decision was made so that decisions can be properly examined.

I believe that the widening of the number of settings for a very small number of important cases in which intercept material can be considered should be welcome. I hope that noble Lords will see fit to support this important amendment. I beg to move.

[Lord Dubs]

My Lords, I do not dissent from the Minister’s reasoning, and indeed am grateful to him for explaining the issue. However, he has opened the door to a much wider issue that I want to touch on but not debate, because the hour is too late and this is not the Bill on which to do it.

The Minister will be aware that many noble Lords, including those of us on the Joint Committee on Human Rights, have for a long time been arguing that intercept evidence should be permissible in criminal cases as a way of bringing people to justice who otherwise cannot be brought to justice and have to be dealt with in other, less sensible ways, such as control orders, TPIMs and things like that. If the Government are so anxious to justify the use of intercept evidence in these instances, I wonder why we cannot take a step further and consider very seriously the use of intercept evidence in criminal cases where we would have a proper system of justice and where people who are guilty of offences, or thought to be guilty, could actually be brought to trial as opposed to being dealt with in the way that they are. This is a bit of a thin end of the wedge, but it is important and I would like to feel that the Government will think hard about it.

On the Joint Committee on Human Rights, we were on two occasions able to meet civil servants dealing with this, who always said to us that they were looking at it but that it was difficult. I can see it is difficult, because it is hard enough in this case and even harder in criminal cases. Will the Government consider looking seriously into the use of intercept evidence in criminal cases now that they have this as a very useful precedent?

[Lord Beecham]

My Lords, I endorse my noble friend’s remarks. I touched on a similar point during Second Reading and I think other Members of your Lordships’ House have also expressed an interest in this matter. We obviously do not expect the Minister to confirm that the principle will be adopted forthwith, but it would be helpful if an indication could be given as to when the Government might respond to the interest in this that has been evident in various of our debates as this Bill has made progress through the House.

[Lord Taylor of Holbeach]

I am grateful to noble Lords for extending the scope of our debate somewhat, outside the frame of the particular Bill that we are dealing with. It raises some very interesting issues and both the noble Lord, Lord Dubs, and my noble friend Lady Hamwee got to the nub of the issue. I take the advice of the noble Lord, Lord Beecham, to perhaps not make a commitment on this issue. However, I can describe the parameters, because Article 6 of the European Convention on Human Rights, the right to a fair trial, differs between civil and criminal proceedings. In particular, the exacting standards imposed by the criminal limb of Article 6, which is at the heart of the legal difficulties for a workable IAE regime, do not apply in the context of civil proceedings.

Furthermore, the nature of CMPs—which may well be involved of course, because of the nature of the intelligence—means that legitimate national security interests, such as the need to protect sensitive techniques or capabilities, can be more certainly protected than in criminal proceedings. I think all noble Lords would understand that. The proposals in the Bill demonstrate our commitment to making progress wherever it is possible. We continue to engage with the cross-party advisory group of privy counsellors in this work.

Amendment 63 agreed.

--- Later in debate ---

Moved by

[Lord Taylor of Holbeach]

88: Schedule 3, page 20, line 25, at end insert—
“3A (1) An order under section 15(2) may, in particular, make provision about the application of section 12, and paragraphs 7, 8 and 10 of Schedule 2, to any direction or decision of the Secretary of State which—
(a) is of a kind falling within section 2C(1)(a) and (b) or (as the case may be) 2D(1)(a) of the Special Immigration Appeals Commission Act 1997, and(b) was made before the section 12 commencement day.(2) Provision of the kind mentioned in sub-paragraph (1) may, in particular, provide for—
(a) the Secretary of State to certify under section 2C(1)(c) or (as the case may be) 2D(1)(b) of the Special Immigration Appeals Commission Act 1997, on or after the section 12 commencement day, any direction or decision falling within sub-paragraph (1),(b) the termination of any judicial review proceedings, or proceedings on appeal from such proceedings, which relate to a direction or decision which is so certified (whether such proceedings began before, on or after the section 12 commencement day).(3) In this paragraph “the section 12 commencement day” means the day on which section 12 comes into force.”

[Lord Taylor of Holbeach]

My Lords, noble Lords will know by now that Clause 12 of the Justice and Security Bill amends the Special Immigration Appeals Commission Act so that the commission—SIAC—is able to consider applications to set aside exclusion or naturalisation decisions, which have been made on the basis of sensitive material.

Currently, we have a rather unsatisfactory arrangement whereby the only course of action open to an individual who wishes to challenge the decision to exclude them from the United Kingdom, or refuse to allow them to naturalise as a British citizen, is to seek judicial review. The problem is that our High Court does not have the capacity for closed proceedings. Where the decision in question has been made by the Secretary of State on the strength of sensitive evidence, the court cannot consider it. The JR claim is therefore stymied, to the satisfaction of neither party, nor to the interests of justice.

In the case of AHK, the High Court called upon Parliament to remedy this situation through legislation; hence, Clause 12. The Joint Committee on Human Rights has also supported this approach. The amendments before the House are intended to ensure a tidy transition from the old arrangements, towards the new arrangement in which SIAC will consider the application to review decisions such as these.

First, there is a jurisdictional matter relating to the United Kingdom’s Crown dependencies. Officials in the Isle of Man and Channel Islands have requested the power to extend the provisions in Clause 12 to their own territories by way of permissive extent. Accordingly, we should allow for these sections of the Bill to be so extended, with or without modification. The Government and our friends in the Crown dependencies are quite sure that we would not want inadvertently to create a loophole on the Isle of Man or Channel Islands whereby justice is done differently from the UK mainland.

These amendments also propose that the Bill’s rule-making power shall include provision for “transitional” exclusion and naturalisation cases. The Government are keen to allow for a seamless and fair transition from old arrangements to new. It would not do to have a two-tier system in operation, in which judicial review proceedings already before the courts would continue to be heard in the imperfect setting of the High Court, while decisions made after the commencement of Clause 12 would benefit from being heard in SIAC. There are a number of JRs already on the books of the High Court, with judges unable to consider key evidence on which the Secretary of State’s decision was based. Accordingly, it seems right and proper that, in these cases, the claimant be given an opportunity to apply to have their case heard afresh in SIAC, where a decision can be made that takes into account all of the relevant evidence.

There will also be a number of cases in which, for instance, a decision has been made to exclude someone shortly before the commencement of Clause 12, leaving them a window of opportunity for applying for a JR which runs over into the new arrangements. It would be untidy to allow these claims to be considered in the High Court, and would create a two-tier system. It would be preferable for the Secretary of State to be able to certify material as sensitive on or after commencement, thereby transferring the venue of redress to SIAC. I should add that the amendments will allow for the rule-making power to take effect—commence—from the day that the Bill receives Royal Assent. This is consistent with the rule-making power already set out in the Bill.

These amendments, while not altering the fundamental purpose of Clause 12, will ensure that we are fair when offering individuals a suitable avenue of redress in respect of decisions that have been made against them, and will eliminate the possibility of inconsistency as to how we go about that. I beg to move.

Amendment 88 agreed.