Justice and Security Bill [HL]

Lord Thomas of Gresford Excerpts

Wednesday 21st November 2012 Lords Chamber

[Lord Reid of Cardowan]

My Lords, it is always a pleasure to follow the noble Baroness. I am sorry to start by correcting her, but the Labour Benches are not empty, nor bereft of any representative of the previous Government. As a former Home Secretary, I am one such representative. Unfortunately, the other Home Secretaries—Mr Clarke, Mr Straw, Mr Blunkett and Ms Smith—cannot be here because they are not Members of this House, which may account for their absence.

I may be a lone voice among the speakers, who all seem to have come from the Joint Committee on Human Rights, but I will say two things. First, on the moral question, I deprecate torture as much as anyone in this House. I deprecate it in the case of that have been mentioned. I also deprecate it in the case of the 62 British citizens who were tortured by being burnt to death in the Twin Towers and the 50-odd British citizens who were tortured to death by being blown up in the subway and on the buses in London. They had human rights as well, and the primary human right is the right to life. There is a moral obligation on government to take that into consideration.

I find that one of the astonishing things about these debates is that there is never any context about the nature of national security. It is paraded camouflaged in words such as murky, corrupt, and lapdog—the disparaging avalanche of comments against our security services. Politicians can take it. We are used to it from the Opposition, from people outside and from some of our errant Back-Benchers, but the intelligence services do not deserve that. Were it not for them, I can tell you, thousands of British citizens would have had their basic human right of life removed from them. In one incident in August 2006, 2,500 people would have been blown out of the skies over the Atlantic were it not for our intelligence services and, yes, their colleagues in the American intelligence services.

So let me just say a word to balance the quite proper legal points that have been made about national security. We have come through a dark time. I regret to say that we still live in a dark time, not just here but throughout the world—anyone who thinks that areas of Pakistan are not a conflict zone does not begin to understand that. There are two elements to the threat to the British people, as there always are in any threat. The first is intention and the second is capability. The real question that we should be asking is not whether this proposal arrives from the Government because they are corrupt, because they have been seduced by civil servants or because they are lapdogs of the Americans. We should be asking what particular set of circumstances regarding the threat to national security brings a measure like this on to the agenda. We should then analyse the two elements of threat: intention and capability. Let me to say a word on both. The intention of those who wish to inflict terrorism on the citizens of this country is now unconstrained. It is not limited, as it was with the IRA in terms of tactical questions. It is not limited by their concern for what the public might think. It is not limited in terms of the numbers that they wish to kill. Anyone who tried to kill 10,000 people in the Twin Towers would be happy to kill 10 million people. Indeed, not only are they not constrained in their intent by politics or ideology, they are driven in their ideological premise towards a massive massacre of people.

That on its own would be bad enough to weigh in the minds of today's Home Secretaries if it were not for the fact that the other element of threat, which is the ability to carry out the intent, is now unfortunately unconstrained as well. Those in the past who had a genocidal intent, such as the Nazis, were constrained by the technical ability to achieve their intention—in the Nazis case either by carbon monoxide or Zyklon B canisters. Biological, chemical and radiological weapons now mean that we live in a world where unconstrained intent to do damage is allied with the potential for unconstrained capability. That is the burden that sits on the shoulders of government Ministers nowadays, not whether they will fall out with the Americans or anyone else. It is in that context that we have to consider the unique circumstances that we have never had to face before because the means of mass destruction have not been available to small groups of non-state actors and, by and large, non-state actors have not had an unconstrained intent to murder in a wholesale fashion. It is those circumstances that make the protection of intelligence all the more important. Had it not been for that exchange of intelligence—in one case, across 29 countries—we would not have achieved the protection of our British citizens and their fundamental right to life.

[Lord Thomas of Gresford]

I am sure the noble Lord is not suggesting that those of us who oppose these clauses are in favour of terrorism. He must appreciate that we are not concerned with proposals that will make security information available to the public. All we are concerned about is, what is the response to an action that is brought by a claimant against the security services or any other government department? I appreciate the noble Lord’s sincerity but is he not a little off the point?

[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.

--- Later in debate ---

[Lord Faulks]

My Lords, the Justice and Security Bill demands justice and security. We have been quite rightly reminded by, among others, the noble Lord, Lord Reid, how important it is to consider security. In human rights terms, Article 2 of the convention places a responsibility on the Government to protect life and to take all steps appropriate to ensure that the human rights of citizens generally are protected, so that human rights are not just for the litigants involved in these proceedings but for all of us. However, justice is to be done by this Bill and there is undoubtedly a justice gap. I thought that, during Committee stage, we had moved towards a consensus that CMPs, although not a desirable option, were nevertheless a necessary evil in order that justice should be done.

Contrary to what my noble friend Lord Strasburger has said, the JCHR, of which I have the good fortune to be a member, acknowledged, relying in part on the evidence of David Anderson, that there were a limited number of cases in which justice could not be done in the current situation. That is why the Bill has been brought before your Lordships’ House. As to the possibility of justice being done under these provisions, the noble and learned Lord, Lord Woolf, who has experience of these things, said in Committee that the special advocates were underestimating their capacity to represent those clients. Nobody suggests that it is an optimal position, but my own experience of judges tells me that they customarily do everything they can to remedy any disadvantage that a litigant might have—and of course they will have a disadvantage in CMPs. The suggestion that the Government’s case will simply be accepted by a judge without challenge or question is wholly unwarranted. Within the Bill as it is at the moment, judges have considerable powers; now that these amendments have become part of it, they will have considerably more powers.

I therefore suggest that the Bill presents an opportunity for security and justice, as the name suggests. The amendment proposed will wreck that opportunity and justice will be denied.

[Lord Thomas of Gresford]

My Lords, I have had experience of a torture case, the Baha Mousa case, which involved the death of a hotel owner in British custody in Basra. Your Lordships will recall that there was a long trial in which what had happened in the stinking hellhole of a derelict guardhouse was investigated. Men had been held in stressed positions with their hands tied behind their backs and hoods over their heads, and Baha Mousa, after a night during which passing soldiers from other regiments were called in to have a pop at the prisoners in that position, died with some 90 injuries to his body. What happened as a result of that? There was the trial and then a long inquiry, chaired by Lord Justice Gage, which lasted more than two years. His report has brought significant publicity and changes to what goes on. The noble Lord, Lord Judd, was talking about transparency. There is something that was brought out into the open. I do not think that any commanding officer in the British Army will not have regard to the treatment of prisoners by troops under his command hereafter. That is what transparency and publicity do. I was very interested to hear the noble Lord, Lord Dubs, cite an interrogation that had taken place in Afghanistan more recently when, no doubt, proper safeguards for the prisoners were in place.

Reputational damage? Of course there was reputational damage to the soldiers, the officers, the regiment and the British Army, but that is the price that has to be paid to put things right. I am not particularly moved by the argument that settling cases causes reputational damage to the security services. Of the civil cases brought in this country, 95% are settled, often without any admission of liability. I have never heard it suggested that there is reputational damage from a settlement from such circumstances. Nor have I heard it suggested anywhere that because the security services have settled cases brought against them, they have suffered reputational damage in any meaningful sense. When one reads what happened in the Binyam Mohamed case, one feels that there should be more transparency about what happens within the security services. Perhaps then, the suspicions with which the noble Baroness is so concerned would go away.

Everything that can be said on the issue of principle has been said, even if not by me, so I do not propose to go back to that. I just want to raise one or two practical points. The first is this. A lot has been said about fairness to the security services—that it is not fair that they should settle. What about fairness to the claimant? Suppose, for example, that a claimant wishes to sue the security services for exposing him to torture or to unlawful rendition. Let us assume that his claim is entirely genuine. Let us not start with the assumption that one hears in certain quarters that of course he is lying. Let us assume that it is a genuine case. There is no legal aid. He cannot find a lawyer to act for him on a no-win, no-fee basis because it will be impossible for a lawyer to assess his chances of success. How can any lawyer take on a case when it is possible for the defendant to go behind the scenes, talk to the judge and disclose evidence which the claimant never sees? How can you take on a case on that basis?

Of course, the special advocate is allowed to see the secret evidence, but can he go back to find out whether there is any possibility of challenging that evidence? How can he go back to his client to talk to him? He is not permitted to under the system. He cannot take proper instructions and, as my noble friend said, use the ordinary method of ascertaining the truth in the British courts of justice for centuries: by cross-examination, by challenging and testing the evidence and the credibility of the person who is giving that evidence. It is just not possible, so nobody is going to take the case on. That is the first problem to get through. We talk as if practical considerations such as that do not count. The claimant never gets his case going, or if he does he loses and never knows why.