Justice and Security Bill [HL]

Lord Thomas of Gresford Excerpts

Tuesday 26th March 2013 Lords Chamber

[Lord Mackay of Clashfern]

Absolutely, that is the procedure with excluded material. Of course, excluding the material can sometimes be extremely damaging to the interests of the other party to the litigation. The noble Baroness referred to Matrix Churchill. That was exactly the sort of case that Matrix Churchill would have been if the judge had excluded it because the material that was sought to be excluded as sensitive material was, on further examination, of great use to the claimant, as we all know. The idea that a public interest immunity certificate is so superior to this procedure strikes me as being without great foundation.

I assume that the only material in question is material that has been subject to all the processes that the noble and learned Lord, Lord Brown, has suggested for removing its sensitivity, because if you can do that the party is not required to produce sensitive material because it has been neutralised and the difficulty has been removed. Therefore, when you have that in mind, it is very hard to see how you can find out whether there is any other way in which the case can be dealt with. One of the problems about that is that at the beginning of a case things may look different from how they look as the case proceeds.

One of the great benefits of the amendments that the other place has put in here is that this matter can be reviewed at any stage of the procedure. Therefore, it seems to me that this system, in a very small minority of cases, will be the best way of securing the fair and effective administration of justice in that case. It is not a question of excluding material, which is an appropriate test for the amendment proposed by the noble Lord, Lord Macdonald; it is nothing to do with that. It is to see that the material that is being used is used in a way that does not damage the security of this nation. The Government have as one of their primary responsibilities securing the national security, as evidenced by what the noble and learned Lord, Lord Woolf, said about control orders, which control people’s liberties, in which this sort of procedure was introduced. I believe that this procedure is the best way in which to secure national security.

I endorse what the noble and learned Lord, Lord Woolf, said in his letter. Our judges are as familiar with the desirability of open justice as any Peer who has spoken. They know the value of open justice; they were brought up to it. There is no question of a judge going for a closed material procedure if he thought it could be done in open court. I believe that giving this discretion to the judiciary in very limited circumstances with two very important conditions is the right way to deal with it. It is not the Executive who are deciding, but the judge. Judges have taken an oath to,

“do right to all manner of people … without fear or favour, affection or ill will”.

That oath will apply in the decision that the judge has to make, and it seems to me that the best possible test has been evolved by the House of Commons in its consideration of our Bill, and the test is the fair and effective administration of justice in that case.

[Lord Thomas of Gresford]

My Lords, much of what I intended to say has already been said, but I shall give an illustration from the classic case of Duncan v Cammell Laird, which involved the sinking of a submarine in Liverpool Bay while undergoing trials on its maiden voyage in 1939. Ninety-nine men were lost. Their widows, mostly from Merseyside, sued the shipbuilders. The Admiralty, in the middle of the Second World War, declined to allow the production of the designs of the submarine on grounds of national security. Contemporary evidence, which has been seen since, suggests that its true motive was to restrict the power of citizens to sue government departments, particularly when they were financed by trade unions. In fact, the claimants lost.

Today, other means, which have been referred to in the course of this debate, might have been used to assist those claimants in the projection of their cases, but suppose this legalisation had been in force and that the Government had applied for a secret hearing. Can your Lordships imagine the uproar in Liverpool if the Admiralty had been able to produce not merely the designs but its expert evidence and argument, and to explain those designs to the judge in secret, without challenge and without anything being heard on the other side? Patently, it would have been a miscarriage of justice.

Open justice, very simply, means first that a claimant should know the case made against him. That principle derives from what was said more than two and a half millennia ago by Aeschylus in the “Oresteia”.

[Lord Mackay of Clashfern]

How does my noble friend know what the judge would have decided, assuming that he had had a chance to look at the designs?

[Lord Thomas of Gresford]

I am not saying what decision he would have made—how could I possibly know? I am saying that the public would have been outraged at the idea that the Admiralty could go to see the judge up the back stairs, in a secret court, and produce the designs and the arguments to support their case.

[Baroness Butler-Sloss]

Perhaps I may say, as a court judge, that nobody would ever visit a judge up the back stairs when a judge was trying a case.

[Lord Thomas of Gresford]

I have certainly been up the front stairs to see many a judge in chambers. The noble and learned Baroness must know that we see the judge in private on many occasions, particularly when public interest immunity claims are being used.

The second principle of open justice is that the acts of public servants must be open to scrutiny and accountability by the public and by Parliament. It is for the judge to determine whether, as a last resort, open justice must give way to national security in the circumstances of the particular case. Everybody who has spoken here this evening has said that judges are perfectly capable of making that judgment, of carrying out that balancing exercise. However, that does not mean that secrets will be disclosed. We are talking about civil cases, about means whereby secret information will be withheld, and many mechanisms for achieving that have been referred to.

I draw your Lordships’ attention to a civil case last December which challenged the Defence Secretary’s practice of handing over detainees who had been captured in Afghanistan to the Afghan security forces. There was evidence to suggest that torture would be inflicted upon those people by those forces. The case came to court and the Defence Secretary claimed public interest immunity for a number of documents. Lord Justice Moses held that there was no objection in principle to the disclosure of material that was the subject of that claim into a lawyer-only confidentiality ring. That procedure is well known in the commercial courts of this country, and I believe that it is used in the United States of America. Is it not interesting that, while we are changing our law, we have not heard any suggestion from the United States, which is faced by the problems with which we are grappling, that it proposes to change its law or constitution in any way at all?

As I have said, these principles are core principles of liberalism and democracy, and I hope that your Lordships will support these amendments in the light of these principles.

[Lord Woolf]

My Lords, I propose to say only very little because to some extent I anticipated what I might say, both in the previous debates on this matter and in the letter that has been referred to. However, when you hear Members of this House, with the experience that they undoubtedly possess, expressing concerns on this subject in relation to this Bill, I say that we have to give those concerns the utmost care and consideration, because their importance is very great indeed. We must be very careful that we do not fall into the trap of changing our traditions when that change will cause more harm than good.

Despite the arguments that have been advanced to the contrary, I remain firmly convinced that the Bill that we are now considering is radically better than the one that we were considering before, and the Government must be entitled to credit for that. As I understand it, what we really are considering, despite the oratory that we have heard, is very much a matter of degree. The only question to consider now is whether two further precautions should be inserted into the Bill in respect of what the Government have already done, which is to be welcomed on all sides.

Of course I accept the importance of open justice. You do not need to have that set out in a Bill for judges or ex-judges to say it. We have heard clear evidence of that in a recent decision of our Supreme Court, where the president of the Supreme Court was dealing with a procedure that is akin to the procedure now being proposed. The president of the Supreme Court, the noble and learned Lord, Lord Neuberger, made the clarion call—and I am delighted that he made the statement—that all should recognise that we are dealing with a situation that involves an intrusion into the principle of open justice. If there was any doubt about the ability of judges to protect that principle, I suggest that the noble and learned Lord, Lord Neuberger, made it clear that judges will protect it. After all, a judge makes a judgment, but his judgment is then subject to appeal. I urge the House to conclude that what we want is a situation where the judiciary, which has the fundamental responsibility of doing justice, has a discretion that is wide enough to do justice in the particular case that comes before it. I suggest that this Bill, without the proposed amendments, has to be judged on whether it enables the judge to do that.

The noble Baroness, Lady Berridge, suggested that this Bill might enable judges to do things that would reflect adversely on them. I accept that that is the inevitable consequence of judges exercising their responsibility to protect national security. If giving a judgment that is right and in the interests of effective and fair justice will reflect adversely on a judge, he or she must do their duty, give that judgment and not be concerned by the reputational consequence for them of giving that judgment. It is my belief that that is just what our judges do. They would put that out of their minds. Those are political considerations, which they should not be concerned with.

What is being done here is something that the Government say will contribute to justice, not the other way round. It is being done because, as must be recognised, it is the only real alternative that the judges do not already have. With great respect to the noble and learned Lord, Lord Goldsmith, I found his submissions difficult to follow, because redaction does not need this Bill; it is something that judges use regularly. The judge’s ability to take sensible precautions to protect national security is used with a degree of frequency, but this Bill does not affect those cases. It affects only those cases when the judge is satisfied that better justice will be done because of the Bill than would be done without the Bill. The amendments are to be criticised for the reasons identified by the Minister in opening the debate. It is right that you cannot have the judge using what is proposed here as a last resort, because that would undermine the Bill’s purpose.

Does the Bill give the judge the discretion that he or she needs? I remind noble Lords of the terms of Clause 6(2), which says:

“The court must keep the declaration under review, and may at any time revoke it if it considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings”.

Those are very wide terms, which give the judge what he needs. Clause 6(3) provides:

“The court must undertake a formal review of the declaration once the pre-trial disclosure exercise in the proceedings has been completed, and must revoke it if it considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings”.

Those provisions put the judge in the driving seat, which is exactly where the judge should be as a result of this Bill.

Although we have to examine the arguments to the contrary with great care and appreciate just how important are the principles at stake, we should come to the conclusion that this is a Bill of which we can now approve.

--- Later in debate ---

[Baroness Manningham-Buller]

My Lords, I hesitate to stand after the really important contributions by so many Members of this House, including a number of very noble and learned Lords. I do not want to make a long speech, but there are some points that have possibly not been touched upon. The central problem here is about litigants, not defendants. It is about people making claims that currently cannot be heard. This is an attempt by the Government to find a way, imperfect as it is—“a second-best solution”, in the words of David Anderson QC—to get these cases heard and to put into court, albeit in a restricted way, material that is not currently put into court, so that there is a better chance of the full picture being seen by the court. David Anderson said—if I may, I quote him slightly to correct him:

“We are in the world of second-best solutions”.

He added:

“But it does not seem to me that the level of injustice inherent in the use of a CMP in a case of this nature necessarily exceeds either the injustice to the claimant of a case being struck out, or the moral hazard and reputational damage to the intelligence agencies that is caused by settling a case which, had it been possible to adduce all the evidence, would have been fought”.

This does not seem to me to be primarily about the reputation of the security and intelligence agencies. The service of which I was once a member welcomes scrutiny. If we disobey or break the law, we should be prosecuted. The first part of this Bill is about greater scrutiny. I expect that scrutiny to evolve and over the years to become more detailed. However, the reputational damage is significant in a way that has nothing to do with personal feelings; it is to do with whether these organisations, which are funded by the taxpayer and scrutinised by Parliament and other bodies, are going to be less effective as a result of this reputational damage. This needs resolution, but it is not primarily about that. It is primarily about making sure that some of these extraordinarily serious allegations are actually heard. At the moment, we do not have an inquiry. I believe that some criminal investigations are happening, but there are still a whole lot of allegations out there that are not resolved, and this would be a way of resolving them.

There is one other point I want to make, which I think speaks to the amendment made by the noble Lord, Lord Macdonald. On the face of it, the amendment looks unexceptional, but I think it is a question of the confidence of our human sources, which is very important. I do not need protection; they do. A point made by the noble Lord, Lord Owen, was that human sources are either approached by the intelligence and security agencies inviting them to provide information in confidence or they approach us or they are the sources of an ally. Not all of them but many of them do so with the highest motives, and in many cases their lives are at risk—although, again, not always. I look to my noble and learned friend Lord Brown. Obviously I entirely agree with him that national security is undefined and that there is a spectrum. There are some things, which he mentioned, at one end of the spectrum that might be labelled “national security” but are not damaging to reveal. However, at the other end of the spectrum—this has not really been discussed today—there is some highly sensitive and secret material in relation to which the risk to human sources’ lives is high.

I know that I am a bit repetitive on this issue in the House and I apologise, but I still think that it is not given enough attention. Technology is vulnerable. If we expose it in a careless way or in a way that is not protected by this legislation via the test that open justice means that we can ditch the national security side of things—I know that the amendment of the noble Lord, Lord Macdonald, is not as crude as that but there is a suggestion that the two things can be held in balance, and I look again to the point made by my noble and learned friend Lord Lloyd—that will potentially have a very chilling effect on the willingness of people to offer us information. I hope that that is wrong but, if it does have that chilling effect, we will cease to get the information.

[Lord Thomas of Gresford]

Does the noble Baroness know of a single case in which sensitive security material such as she talks about has been released to the public or to anybody as a result of even the present procedures that apply to this?

[Baroness Manningham-Buller]

No, but I am saying that if the amendment balances national security versus open justice, however much my former colleagues might seek to reassure human sources that they will be protected and the courts rely on that protection, I fear that they will be apprehensive and will not be willing to talk to us. That is already an issue. That is what I am talking about—not whether the courts and judges have mishandled things. I am not suggesting that for one minute.

Thirdly and finally, I wish to pick up the point made by my noble and learned friend Lord Brown about national security not being defined. If this material were such that it could be redacted or gisted, or if people could give evidence anonymously, we would not need this Bill. To use the words of David Anderson, who is new to this subject and as the independent reviewer of terrorism has looked at all this, these cases are saturated with it and, if it is redacted to that degree, there is nothing to put into the court.

I shall not say any more this evening but I remind the House of the potential damage that we have to continue to guard against.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, the House will agree that this has been a very good and well informed debate and rightly so because the issues we are dealing with are of fundamental importance to our justice system. I do not think anyone who has taken part or who will vote feels at all comfortable about the idea that there should be closed material proceedings. Nevertheless, as has been explained by a number of contributors to the debate such as the noble Baroness, Lady Ramsay of Cartvale, the noble and learned Lords, Lord Lloyd of Berwick and Lord Woolf, and, although he is supporting the amendments, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, there is a need in current circumstances for closed material proceedings.

The present situation, standing the judgment of the Supreme Court in the Al Rawi case, is that closed material proceedings are not available under common law and the Supreme Court invited Parliament to consider the position. We have sought not only to make provision for closed material proceedings but, as we have gone from Second Reading, through Committee and Report, to the other place for debate and back to us, in doing so we have put in place proper safeguards which reflect the values of our justice system.

The noble and learned Lord, Lord Woolf, said it was important that we show the greatest and utmost care and consideration in addressing these issues, and we have done that tonight. I can assure your Lordships’ House that, in reflecting on the amendments passed on Report in this House, Ministers gave careful consideration to how we might respond to them.

The noble Lord, Lord Beecham, asked about the number of cases that had been settled and how much compensation was paid. As I have explained previously, I am not able to comment on the number or details of many of the cases settled as they are often the subject of confidentiality agreements. However, the House will be aware—indeed, my noble friend Lady Berridge referred to it—that a settlement was recently reached with Mr al-Saadi, on a no-liability basis, to the tune of £2.2 million. I am unable to comment on whether actions have been taken against recipients of other settlements. If such actions have been taken, it would be impossible to comment without breaching the terms of the settlement because it could, for example, indirectly reveal the identity of the individuals concerned.

My noble friend Lady Berridge suggested that perhaps the Government had rushed a settlement to get it in before this legislation went onto the statute book. I am sure that noble Lords will agree that it is not desirable for courts to delay the processing of cases in pre-emptive speculation about what may or may not become available in future legislation. It is unhelpful to suggest that that should be the case. It was and is right that the case of Mr al-Saadi and others should be dealt with quickly and fairly on the basis of existing legislation. The alternative of delaying, pending possible future legislative changes, would be unfair to all parties concerned. I certainly would not like to defend such a situation from the Dispatch Box if that allegation ever had any truth.

The noble and learned Lord, Lord Goldsmith, said that, unlike cases in which he was involved when he was in government and introduced closed material proceedings with regard to control orders under which there were restrictions on freedom, what we are dealing with here is just about money. It is about more than just money; it is also about the reputation of, and the trust and confidence in, our security intelligence agencies. It may also be about executive actions—for example, the judicial review of decisions taken by a Secretary of State on national security grounds which would not be the subject of pre-existing statutory CMPs.

As I have said, it is not just a question about money because, at the end of the day, we are trying to ensure that there will be some kind of proceedings available whereby taxpayers’ money is not spent in settling cases where the case has not been proved. My noble friend Lord Phillips of Sudbury referred to secret justice. I have said in these debates that it is second-best justice, but at least it is justice. There is no justice when cases are settled without any proof of the claim being made.

The importance of the safeguards and how we keep these cases to a minimum—they should be the exception—has been reflected in the debate tonight. My noble friend Lord Macdonald has tabled an amendment that would require the courts to have a balancing test akin to the Wiley balancing test that was developed in the context of public interest immunity. The noble and learned Lord, Lord Lloyd of Berwick, explained why he thought that was inappropriate; he said that it was too wide and imprecise. The noble Lord, Lord Owen, and the noble Baroness, Lady Manningham-Buller, indicated that we are also dealing with situations where there might be foreign sources of intelligence and, crucially, human sources who work on our behalf for our security services. They expressed concern that the imprecision of the test would not be helpful.

My noble friend said that he thought the effect of the Bill as it currently stands, without his amendment, would be that the security services and the Government would opt for CMP rather than PII, public interest immunity, and that somehow that would be convenient for them. The noble Baroness, Lady Manningham-Buller, made the important point that Part 1 of the Bill is about scrutiny of the security services, but Part 2 allows for greater scrutiny. If you wish to push something under the carpet, PII, or settling a case without any evidence being led, is one way of ensuring that information does not come out. Albeit closed material proceedings are closed—for all the reasons that people have articulated in this debate they are not as good as open proceedings—they nevertheless allow the court to examine the material that is there and to apply scrutiny to allegations made against our security services, which otherwise would not be the case.

Regarding openness, my noble friend Lady Berridge referred to the president of the Supreme Court, the noble and learned Lord, Lord Neuberger, and what he said this weekend. The point that was picked up by the noble and learned Lord, Lord Woolf, and the noble and learned Baroness, Lady Butler-Sloss, helps make the point that we have been trying to make. Of course, as more than one contributor to this debate has said, the idea of openness is absolutely intrinsic to our system of justice. The noble and learned Lord, Lord Neuberger, reflected that in his comments this week. It was intrinsic and it was instinctive.

It is absolutely fanciful to imagine that, in applying the tests set out by the Government in the amendments before your Lordships’ House tonight, the judges will somehow forget about openness. It is very clear that the justices of the Supreme Court did not need words in a statute to get them to apply their minds to the importance of openness when it came to making the decision, which they did.

[Lord Thomas of Gresford]

Is my noble and learned friend saying that the judges will apply a balancing test when they exercise their discretion between open justice and the interests of national security—that that is implicit in everything he is saying?

[Lord Wallace of Tankerness]

My Lords, it is very clear that open justice is part of our justice system. It is implied by the words “fair and effective”, and it did not need any words in statute to encourage the justices of the Supreme Court to have regard to the importance of openness in these situations. The noble and learned Lord, Lord Neuberger, said the following words, to which I think my noble friend Lady Berridge referred:

“No judge can face with equanimity the prospect of a hearing, or any part of a hearing, which is not only in private, but involves one of the parties not being present or represented”.

He went on to say:

“Nonetheless, as Parliament has decided that, in certain circumstances, such a procedure is necessary and permissible in a trial before a judge, we have concluded that, on an appeal from a decision in a case where a judge has considered closed material and given a closed judgment, it may be necessary for this court to go into closed session in order to dispose of the appeal justly”.

In other words, the just decision on that particular point was that the court would go into closed session.

On the other issue, I also do not find there to be any real difference in what Members of your Lordships’ House wish to see, and it is an issue of judgment as to how we achieve it. These cases should be the rare exceptions; there are a very small number of cases. When I gave evidence by letter to the Joint Committee on Human Rights on 31 October, there were 27 cases which, across government, we considered would lend themselves to closed material proceedings. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, expressed his view as to why closed material proceedings were necessary, but in his judgment these amendments should be in the Bill. I have explained this, and indeed others who have contributed to the debate have also explained why it is not necessary.

We all aim at the same thing: at the end of the day, this should take place in a small number of cases. It is a matter of judgment. As I indicated earlier, at this initial gateway of closed material proceedings the court is considering an application having not yet seen all the material for the case. Against this background, we are keen that legislation should avoid the court being required to meet a condition which would then require it to establish definitively at that point whether a fair determination would be possible by any other means.

As I said, that could mean the exhaustion of a range of measures, including a full PII exercise. Of course, as the noble Baroness, Lady Kennedy of The Shaws, said, it is something to which the Secretary of State should apply his or her mind. If one reads the judgment of Lord Brown in Al Rawi, he indicates at one point that it would take 60 lawyers the best part of two or three years to go through all the material. That is the scale. If that is the road down which judges felt that they ought to go because of the wording of the Bill, that would underline much of its purpose.

I also pick up the point made by the noble and learned Lord, Lord Goldsmith, who seemed to think that the means of achieving it being a backstop and a rare exception was the provision in proposed new subsection (1F) about the court having to be satisfied that the Secretary of State had considered PII. We do not even get to that stage, because the court must not even consider the application unless it is satisfied that the Secretary of State has considered PII. The question asked by the noble Lord, Lord Butler of Brockwell, was very much to the point: the safeguards of last resort, as it were, are not that requirement on the Secretary of State but, rather, the courts being satisfied that the disclosure of material would be damaging to national security, and that it would be in the interests of the fair and effective administration of justice for the application to be granted.