Justice and Security Bill [HL]

Lord Thomas of Gresford Excerpts

Tuesday 17th July 2012 Lords Chamber

[The Earl of Erroll]

My Lords, there was one thing I forgot to say. It is important to the noble Lord, Lord Hodgson. I think Pepper v Hart applies only where there is a conflict between European directives or regulations and UK law and the interpretation of it. Therefore you may not be able to get a Pepper v Hart —as you might say—pronouncement from the Minister tonight.

[Lord Thomas of Gresford]

I think that is too narrow a definition of the Pepper v Hart principle. I seem to recollect that when this Bill was first discussed and promulgated, the Government were intending not to use the test of the interests of national security but what was in the public interest. That was thought to be extremely wide. The leader of my party and my noble and learned friend’s party, apparently—at least he claimed—fought for its reduction to the interests to national security. Where the public interest stops and national security begins is a fine line, or perhaps it is a fuzzy one, but it is up to the Minister to give to a judge who has to consider applications of this sort positive guidelines as to what the Government have in mind now they have reconsidered the original purpose of their Bill.

[Lord Beecham]

My Lords, the noble Lord, Lord Hodgson, is too modest in proclaiming that this is a simple amendment, since it goes to the heart of the whole principle of Part 2 of the Bill, which changes—potentially fundamentally—the approach to the operation of civil justice, though not of course criminal justice, in the provision of a system permitting, in circumstances that we are debating, material to be kept from one of the parties and utilised under the closed material procedures.

It is worth reminding ourselves of some of the concerns that have been expressed. I am particularly interested in the briefing submitted by the Northern Ireland Human Rights Commission, as it comes from a part of the country that has confronted security issues to a very considerable degree and has suffered considerable harm over the past few decades from activities that all of us would deplore and which would probably come within the compass of any definition of national security.

Nevertheless, the Northern Ireland Human Rights Commission in considering the Bill proclaimed that it was,

“regrettable that despite some modifications to the proposals in the Green Paper, and the declaration under clause 11 … of the Bill”,

concerning these matters, there remain,

“the risks to the right to a fair trial under Article 6”,

of the European Convention on Human Rights, and Article 14. The commission goes on to say—and this matter was referred to in Second Reading—that the Government have,

“yet to make an evidence based case as to how the current Public Interest Immunity provisions have failed to protect national security interests and therefore why a system of CMPs is needed at all”.

The commission affirms that it would appear that the Government are,

“prepared to sacrifice fair trial protections and wait for litigation to be brought by those alleging”,

a breach of Article 6,

“rather than ensure adequate protection from the outset”.

It advises that,

“the proposals are not likely to satisfy the requirements of Article 6 … in a significant number of cases”.

That is a fairly trenchant critique of the proposals. The commission concludes that the Government have,

“failed to demonstrate the need for the Bill’s provisions … The move from evoking a CMP on public interest grounds to national security grounds has been reported as an acceptable narrowing of the original proposals. Human rights law accepts national security as grounds for qualifying rights. However, NIHRC expresses concern that ‘national security’ remains a broad term that might still be relied on too readily by Government and in a manner that is not consistent with its human rights obligations”.

The briefing refers, as the noble Baroness, Lady Manningham-Buller, referred, to the national security strategy, with its references to pandemic diseases and,

“natural hazards along with increases in organised crime are listed as threats to national security”.

It concludes that the Government are,

“yet to be sufficiently definitive about what it means by national security for the purposes of requiring a court to permit a CMP in a civil case. The risk is that what is now claimed to be a ‘fix’ for a limited number of civil cases”—

and that is the Government’s case; the extent to which it is likely to be limited to very few cases is supported by Mr Anderson—

“becomes a ‘fix’ increasingly relied on by Government to obstruct scrutiny and attempts to seek redress”.

The commission’s are not the only concerns that have been expressed about the issue of definition. In evidence from the special advocate to the Select Committee, Mr McCullough stated that,

“there is the possibility that national security could be very broadly defined, unless some reassurance as to its scope were given. On one view at least, anything, or almost anything, involving international relations might be argued, and one could envisage being argued by the Government, as to have an impact on national security”.

Of course, as has already been indicated, it is not really possible to be definitive about what constitutes national security and what does not. It would be impossible to be conclusive because, as noble Lords have indicated, circumstances change and threats change, and it would be foolish to prescribe a definitive list. The noble Marquess, Lord Lothian, said of national security that you know it when you see it. The question is, in these circumstances, who is “you”? The Government may take a view; others may take a different view. Although these matters are difficult, we have to try to evolve a system that will give some guidance to those who operate the system and, indeed, those who may ultimately have to form a judicial position on individual cases.

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Moved by

[Lord Thomas of Gresford]

54: After Clause 6, insert the following new Clause—
“Disclosure of information
The disclosure of information in civil proceedings pursuant to an order of the court is to be regarded for the purposes of the Security Service Act 1989 or the Intelligence Services Act 1994 as necessary for the proper discharge of the functions of the Security Service, the Secret Intelligence Service or (as the case may be) the Government Communications Headquarters.”

[Lord Thomas of Gresford]

My Lords, this amendment is concerned with an anomaly that was revealed in the case of Evans v Ministry of Defence. The case concerned the handing over of Taliban suspects by British forces to Afghan security police, with the distinct likelihood that they would be tortured. The security services argued that they were not required to disclose documents in their possession for the purposes of the case because they were not themselves being sued—they were not the party concerned. The defendants were the Ministry of Defence. They said that there was a statutory bar. By Section 2 of the Intelligence Services Act 1994, the chief of the Intelligence Service is under a duty to ensure that there are arrangements for securing that no information is disclosed,

“except so far as is necessary for the proper discharge of its functions”.

Section 2(2)(a) of the Security Service Act 1989 is of a similar effect. It was argued that it was not necessary even to reveal the existence of the relevant material in their possession since it was not disclosable. I am informed by the Bingham Centre for the Rule of Law that the Evans case is not the only case in which the security services have advanced that argument.

Clause 6(2) as currently drafted provides that CMP applications apply where a party to the proceedings,

“would be required to disclose material”,

and so it is still open to the security services to argue for what they call a statutory bar, which would mean that they were not required to disclose anything at all unless they were themselves being sued. Paragraph 3(4) of Schedule 1, which we have looked at on a number of occasions, is interesting because it makes a specific provision that disclosure to the ISC is,

“necessary for the proper discharge of the functions”.

It is there, presumably, to counter any argument that might be made by the security services that they were not required to disclose anything to the ISC in particular circumstances. If that specific provision is in place for the ISC, there is no reason why a similar provision should not be made for disclosure to the court under Clause 6(2), which is the purpose of the additional clause I have advanced. It would counter any argument that the security services would not be required to reveal anything unless they were being sued themselves. I beg to move.

[Lord Pannick]

My Lords, would the noble Lord clarify whether the court accepted the argument that it was outside the duties of the intelligence services because they were not themselves being sued?

[Lord Thomas of Gresford]

As I understand it, the court did not accept the argument.

[Lord Beecham]

My Lords, I am grateful to the noble Lord for a clear explanation of something which, I am afraid, I approached with complete bewilderment. I simply did not know the point he was aiming at. I do now and I am persuaded by his argument. I hope that the noble and learned Lord will be sympathetic to the case he has made because it is convincing and consistent with the approach to the Intelligence and Security Committee. Given that precedent, I would have thought not that it would damage the interests of the security services, but rather that it would strengthen the role of the courts and uphold the principles that Members across the House seek to maintain in terms of the operation of the justice system. I hope that the noble and learned Lord will accede to his noble friend’s plea.

[Lord Wallace of Tankerness]

My Lords, I am grateful to my noble friend for bringing forward this amendment. He rightly points to two pieces of legislation which govern the security and intelligence agencies, the Security Service Act 1989 and the Intelligence Services Act 1994. As my noble friend has indicated, they place an obligation on each of the agency heads to prevent the disclosure of information obtained by the agencies except on certain limited grounds set out in those Acts. In particular, the disclosure of information is permissible where necessary in the proper discharge of the functions of the agencies. Information held by the security and intelligence agencies will include information and intelligence from human source reporting, and therefore is essential to the agencies’ operational effectiveness and the protection of national security.

As I understand it, the concern behind this amendment seems to be that these provisions would prevent the agencies complying with their disclosure obligations in civil proceedings. However, it is our view that the amendment is unnecessary. The agencies take their disclosure obligations very seriously. In England and Wales, if the claim is a civil damages claim, for example, Part 31 of the Civil Procedure Rules will generally apply. Standard disclosure requires parties to disclose the documents on which they rely—documents which undermine their or another party’s case and documents which support another party’s case. If the claim is for judicial review, all public authorities are subject to a duty of candour which requires the public authority, when presenting its evidence, to set out fully and fairly all matters that are relevant to the proceedings. Naturally, part of considering these disclosure obligations is the question of whether PII should be claimed or, if Parliament passes Part 2 of the Bill, whether the Secretary of State should apply for closed material proceedings. In a case where the agency is being sued for civil damages or someone is applying for judicial review, it is part and parcel of the proper discharge of an agency’s function to defend actions taken in the discharge of its functions. I therefore believe that the amendment is unnecessary.

My noble friend has made reference to paragraph 3(4) of Schedule 1 concerning the ISC provisions. This paragraph reflects a provision in the Intelligence Services Act 1994 which treats disclosure by the agencies to the ISC as necessary for the proper discharge of their functions. It may be asked, as my noble friend did, why this provision is needed there and not in the context of civil litigation. It is simply because it is right to make it clear, as existing legislation does, that disclosure to the ISC is permitted.

My noble friend may well be raising a case where it is a question of third-party disclosure. He mentioned a case of Evans v Ministry of Defence and, on the intervention of the noble Lord, Lord Pannick, I understood him to indicate that that argument did not win the day. It is a case that I wish to consider in the light of what my noble friend has said. If the effect of this amendment would be to treat the disclosure into any civil proceedings, regardless of the identity of the parties or the subject matter of the proceedings, as somehow part of the proper discharge of the agencies’ functions, that would conflict with the agencies’ need and ability to operate in secret. This is vital to maintaining the trust and confidence of those with whom they work; or, as was said in the previous debate by the noble Baroness, Lady Manningham-Buller, information may come from a particular agent, and the secrecy of that is important. I am thinking in particular of proceedings that do not at all involve the agencies and where a request for disclosure is made. It is right that in these circumstances the courts consider whether disclosure would be necessary for the proper discharge of an agency’s functions before an order for disclosure is made.

I have indicated to my noble friend that I will look at the Evans case. Based on what he said, I am advised that it may be similar to and consistent with the arguments that the agencies made in the Omagh bombing case—namely, that Section 22A is a bar to third-party disclosure, and that it was for the courts to decide. I hope that he hears that the agencies take seriously the requirements of disclosure in civil proceedings under Part 31 of the Civil Procedure Rules. On that ground I urge that the amendment is unnecessary and ask my noble friend to withdraw it.

[Lord Thomas of Gresford]

I am most grateful to my noble friend for indicating that he will look at these cases. In the light of that I beg leave to withdraw my amendment.

Amendment 54 withdrawn.

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[Lord Pannick]

My Lords, my answer to the point made by the noble Baroness, Lady Williams of Crosby, is that regrettably Clause 8(4) is wholly accurate because the nature of the special advocates and the task that they are required to perform is that they are not responsible to the individual in whose case they are appearing. They are not responsible because they cannot tell the person concerned the information that is known to them, as the lawyer in the case. They cannot ask the individual to comment on that information or to give instructions to them on that information. If they speak to the individual concerned, what the individual tells them—the special advocate—may be wholly irrelevant to the case, unknown to the client.

Although the special advocate system is made available as being better than no representation at all, it is inherently and fundamentally unfair in that the individual concerned does not know the nature of the case against them; and nothing that the special advocate does, however competent and industrious they are, can affect that. I therefore think that there is no advantage in seeking to supply in the Bill what would be a fig leaf to conceal the reality of the situation; and the reality of the situation is precisely as it is put in Clause 8(4).

[Lord Thomas of Gresford]

My Lords, it also raises a very interesting question about which all lawyers will be concerned: who pays? When the special advocate is appointed in civil proceedings, does the losing party pay? Does the person who made the application—namely, the state—pay, win or lose? Where do costs lie in an event like that? When you have a provision in the Bill such as Clause 8(4) here, which states that the,

“special advocate is not responsible”,

to the claimant, how can the claimant possibly be responsible for his costs?

[Lord Faulks]

My Lords, the whole role of the special advocate is inherently unsatisfactory and is an exception to what we understand to be a normal way of proceeding in accordance with general notions of fairness. However, it is a practice that has become well established; it has evolved. There are a number of special advocates who have performed their roles with distinction and effectiveness, as the noble and learned Lord, Lord Woolf, said in a much-quoted judgment. Many of their concerns, referred to earlier in the debate, were directed towards the way in which material was disclosed and the lateness and inadequacy of such disclosure. There may be much in those criticisms. They are fairly familiar incantations from advocates, whether the proceedings are closed or open. They do not reflect well on anyone who is responsible for late disclosure in a case.

We should bear in mind that judges have shown themselves particularly astute at protecting parties whose cases are heard in a closed session. If there is unsatisfactory practice on the part of the Government in terms of late disclosure or not giving special advocates fair access to material that will enable them to do their task, that is not going to improve the Government’s prospects and will be reflected, I suggest, in the way in which the judge approaches the case altogether.

While I have considerable sympathy for what lies behind these amendments, I would respectfully suggest that the position of the special advocates is quite correctly set out in Clause 8(4). It is not an ideal situation but it is a situation that has developed, and I trust the judges to respond appropriately to the demands that this particular procedure presents.

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[Lord Thomas of Gresford]

I speak to Amendment 58 in my name and that of my noble friend Lady Hamwee. Clause 7(1) contains five paragraphs of which (a), (b), (d) and (e) are largely procedural. But paragraph (c), which states that,

“the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security”,

goes to the heart of the issue. Does the judge have any function when he is considering an application? Can he carry out a balancing exercise in which he can weigh the interests of not disclosing material against the interests of justice?

My amendment is simple. I note that my noble friend Lord Lester and the noble Lord, Lord Pannick, have a similar one to follow. I will not weary your Lordships with the argument for any length of time. It introduces the instruction to the judge that he must balance his decision and not simply follow a rubric that is laid out for him by the statute as currently drafted.

[Lord Pannick]

My Lords, I am certainly not the heavy artillery to which the noble Lord, Lord Hodgson, referred, but I will offer him some small arms fire in support. Amendment 59 is in my name and that of the noble Lord, Lord Lester of Herne Hill. As with all the amendments in this group, and as indicated by the noble Lord, Lord Hodgson, it is a further attempt to address the core problem with which the Committee has been concerned in relation to Part 2 of the Bill: that is, the need to ensure that the court is given power to order a CMP in the exceptional cases in which such a need arises, but only where there is no other fair and proper means of balancing justice and security.

Amendment 59, as the noble Lord, Lord Thomas of Gresford, said, is in similar terms to his Amendment 58. It would ensure that the rules of court would require the judge to ask whether the damage that the disclosure would do to national security would outweigh the public interest in the fair and open administration of justice. The Bill as drafted, as I understand it, would enable a CMP to be imposed even if the judge concludes that the damage done by not moving to a CMP was minimal, and even if the damage to fairness by denying open justice was substantial on the facts of the individual case. That cannot be right, especially when, as we have previously debated, a decision by a judge not to adopt a CMP would impose no obligation on the Secretary of State to disclose the material, because they would have the option of not continuing to defend the proceedings.

Amendment 59 is designed to implement the objective that was stated by the independent reviewer of terrorism, Mr David Anderson QC, in his oral evidence of 19 June to the Joint Committee on Human Rights. He said:

“The closed material procedure is a weapon that could usefully be added to a judge’s armoury, but it should be for the judge to decide on the fairest way to dispose of a case”.

At present, Clause 7 prevents that desirable objective from being achieved.

I will speak also to Amendments 60 and 62 in the group, to which I have added my name. Amendment 60 would require the judge, if ordering a CMP, not just to “consider requiring” a summary of the closed material to be provided to the other parties—it would require that such a summary of the closed material be provided.

Amendment 62 would require the court to ensure that the summary of the closed material contained sufficient information to enable the excluded party to give effective instructions to his legal representatives and to the special advocate. It would require the summary to satisfy that test even if it would impinge on national security. The reasoning behind Amendment 62 is that it sets out the bare minimum necessary to ensure a fair hearing. It is based on the criteria that were stated by the Appellate Committee of this House in the AF case in 2009 in relation to control order cases. Sufficient information was required by the Appellate Committee in a control order case to enable the subject to give effective instructions, even if such disclosure would have damaged national security. I declare an interest: I was counsel to AF in that case.