Justice and Security Bill [Lords]

Lord Tyrie Excerpts

Monday 4th March 2013 Commons Chamber

[Mr Andrew Tyrie (Chichester) (Con)]

I am very grateful indeed, in the circumstances, to the Minister for giving way. Did I hear him correctly? Perhaps I will give him the opportunity to correct the suggestion, which I think he pretty much made a moment ago, that the remaining opposition to the Bill has been got up by a few human rights lawyers. Will he explain, which he has still failed to do, why the only people who really understand the system—the people who have experience both of PII and CMPs; that is, the special advocates—have concluded absolutely clearly and unequivocally:

“The introduction of such a sweeping power could only be justified by the most compelling reasons and, in our view, none exists.”?

[Mr Clarke]

I do not think that I would conceivably use the language that my hon. Friend tries to attribute to me. Human rights Members are fervently opposed to the whole idea of CMP. They are extremely able lawyers and draftsmen. I am left in wonder and admiration at their ingenuity in producing an endless procession of amendments, so that every time their principles are adopted by the Government in amendments at various stages, a fresh set of amendments is tabled introducing new concepts that are designed to elaborate on the process. That is enough praise for my opponents, but it is ingenious.

We are not putting in the Wiley test, because we have three perfectly effective tests and complete discretion for the judge anyway. The Wiley test is used for PII, which is a quite different process that tries to exclude the evidence entirely from the judge, the claimant, the lawyers and everybody. PII is an application for total silence. We do not need to put the test in for that.

Amendment 31 is more difficult, as it requires that a CMP may be used only as a last resort. The circumstances I have described are getting pretty near to the last resort. We expect only a handful of cases, because we do not think our intelligence agencies will be sued very often. They are strictly enjoined to follow the principles of human rights, and not to connive at torture and everything else, but we do not know, and the conditions we have applied make it clear that we will only ever have CMPs in national security cases, unless a future Government try to relax them.

The trouble is that the last resort argument will undoubtedly be used for going through the whole PII process before starting on CMPs, and there are some people who want to do that. They say that they do not like the fact that the Secretary of State has to consider an application for PII. They want the Secretary of State to go through the whole process. They do not like the fact that the court has other tests for going to a CMP. They want the court to go through the whole PII process before it gets there. Why? Because it could take months or years. The Guantanamo Bay cases had hundreds of thousands of documents—it is a very elaborate process.

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[Mr Tyrie]

It is rare that I find myself agreeing with the lion’s share of what Opposition Members are saying and not agreeing with much that I have heard from my Front-Bench team. This is particularly unusual because of who has been speaking from the Dispatch Box. I normally agree with a great deal of what my right hon. and learned Friend the Minister without Portfolio says, but I cannot agree with him tonight.

The amendments on closed material procedures may look technical but they are really about the kind of society we want to live in: they are about whether people can get to hear the case that is being made against them; they are about whether we can keep legal safeguards that we have had for generations; they are about whether we are committed to finding out how much Britain has facilitated the United States’ programme of rendition—kidnap and, in some cases, torture; and, above all, they are about what values this country is seeking to espouse and export.

Amendments 30, 31 and 34 would take us some way in the right direction, and I will be voting for them. Amendments 31 and 34 would ensure that CMP is used at the discretion of a judge only as a last resort and only if obtaining justice is impossible by other means. For the sake of clarity, let me say that that is certainly not what the Government originally intended. Clause 6(5) of their original Bill required only that

“the Secretary of State must consider whether to make…a claim for public interest immunity”

before making an application for a CMP. A moment’s thought can tell us that that was almost worthless, as I believe the Government knew right from the start; all the Secretary of State would have to do would be to think about this matter, and he could do that in the bath if he so chose.

The House of Lords rescued matters, adding another provision requiring the judge to consider whether a PII “could have been made”. That meant that the court would be required to see whether a fair trial would be possible using PII, and so it would be up to the judge, not the Secretary of State, to decide whether PII should apply. We need to be mindful—this point has not been raised today—that the Executive, in general, and Secretaries of State, in particular, advised by officials, have interests of their own to serve. Foolishly, the Government scrapped that sensible House of Lords provision in Committee and they even scrapped the then clause 6(5), which would have required a Secretary of State at least to consider a PII.

The Government now intend to replace all that with their amendment 47, about which there has just been an exchange. It will provide that before making an order for a CMP the judge must be “satisfied” that the Secretary of State has “considered” making a CMP application. How, in a secret area, consideration by the Secretary of State would really be demonstrated is still unclear. Earlier the Minister said that we do not know exactly what effect this new process will have. No doubt officials will be able to provide suitable documentation to the Secretary of State in order for him to make that judgment, but I am not yet convinced that he will not be able to consider that in the bath as well. In other words, the discretion and control will lie fully not with the judge, as Lord Woolf wrongly supposes it will in his letter in The Times, but to a significant extent with the Secretary of State.

We have been told several times, and I have also been told in correspondence with the Minister, that this is a crucial area of the Bill on which further concessions would damage the interests of both justice and security. It is worth pointing out that on this crucial issue the Government have already held three incompatible positions: first, that the Secretary of State must think about PII; then, after Committee, that the Secretary of State should not even think about PII; and now, if amendment 47 is accepted, that the Secretary of State must tell the judge that he has thought very carefully about PII. Frankly, if this were not so serious an issue, all this chopping and changing would look slightly comical.

Amendment 30 is equally important. It would enable the judge to exercise the discretion he or she has now to balance the interests of justice against those of national security in determining what evidence should be disclosed. That is what is known as the Wiley balancing test, which has been discussed and is supported by the JCHR and a large proportion of the legal profession. It is important to be clear that that should not mean that judges will permit disclosure of information that would prejudice our security. I have asked for, but have not yet been told of, any case in which a judge has made that mistake under PII so far. Judges might not be perfect, but so far they have done a very good job of protecting our security and balancing security with justice.

[Mr Brazier]

Will my hon. Friend give way?

[Mr Tyrie]

I am concluding, if my hon. Friend will forgive me.

For those reasons, I shall support amendments 30, 31 and 34. In my view, they give the minimum necessary judicial discretion to the court.

[Hazel Blears]

I, too, intend to speak briefly as I know that a range of Members want to contribute.

My speech follows that of the hon. Member for Chichester (Mr Tyrie) and I have the greatest respect for his point of view on this issue, for the depth of his knowledge and for how he has studied these matters. The sense in the House is that people hold varying views which, in many cases, cross party lines. People feel strongly about trying to strike the right balance between liberty and security, which has been the subject of many of our previous debates.

It is right that these matters should be controversial, because they go to the heart of our legal system, protecting the rights of applicants and respondents, ensuring that the role of the state is in the proper place to hold the balance between parties, and trying to ensure that our justice system retains its respect and integrity across the world. That balance is difficult to draw and is never easy to achieve, and I say that as the Minister with responsibility for counter-terrorism who took the controversial legislation on control orders through the House. We debated them until 5 am in one of our very rare all-night sittings, which was for me evidence of how strongly people felt about these issues and how much they wanted to protect the integrity of our legal system. I share that desire.

The Bill has been debated at length and the issues have been debated in great depth. It is perhaps almost otiose to be debating them again, but a few points need to be made.

We must not forget why we are debating the Bill. If we did not need to debate it, none of us would want to introduce it. Everybody in this House and in the country believes in the British system of open justice, an adversarial system in which evidence is brought into open court and tested by the parties, allowing the judge to deliberate on the evidence and make a judgment.

We are in this position for two reasons. First, legitimate concerns have been expressed by our intelligence liaison partners, particularly in the United States of America, about the breach of the control principle for intelligence, which has put sources, techniques and capabilities at risk. That is the issue of national security, which is very much about the assets that are at risk. I am delighted that the Norwich Pharmacal provisions have gone through with agreement on both sides, which has been extremely positive, but concerns nevertheless remain about the possibility of information being disclosed in open court proceedings that could damage our intelligence relationships. That is the first reason why we are debating this issue.

The second reason is that we have seen an increasing number of claims of unlawful detention and allegations of mistreatment or torture by the security services against people who have been held in a range of different circumstances. Those allegations amount to more than 20 outstanding cases and the number is likely to increase if there is a jurisdiction within which such claims can be ventilated freely. The position has been that many of those claims have had to be settled because the evidence necessary to prove the case either way impinges on national security. That is why we have seen payments made to some claimants without having the opportunity to decide whether their claims were well founded as the evidence has not been put into a judicial setting.

I feel particularly strongly about this matter. If the security agencies have been conducting operations in a way that falls outside our framework of human rights, I want those issues to be put before a court and to be litigated. The fact that they cannot be goes to the heart of the reputation of our intelligence services. People will always say, “Well, you are settling that case because something in it was well founded. That is why you are prepared to pay £2 million, £3 million or £4 million to avoid litigation in our courts.” I want that information; I want to know what happened. Equally, if these claims are unfounded and unfair allegations are being brought against our security services, I want them to be able to defend themselves and the good name and integrity of our intelligence agencies.

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[Hazel Blears]

It may well be that some people take a principled position that paying out millions of pounds is a price worth paying if they do not want to have closed proceedings. That is a perfectly legitimate place to be, but it does not happen to be a situation with which I agree. My hon. Friend talks, as many Members do, about PII, which is about excluding information; I want to be in a position where we maximise the inclusion of information and bring it before the judge.

[Mr Tyrie]

The right hon. Lady and a number of others have fallen into the same trap as did the Advocate-General in the House of Lords, and the point was decisively knocked down by Lord Pannick when he said that the Advocate-General

“wrongly presents PII as a mechanism which, when it applies, necessarily means that the material is excluded from the trial. It is on that premise—a wrong premise…that he suggests a CMP is preferable…The reality…is that the court has an ability applying PII to devise means by which security and fairness can be reconciled”—[Official Report, House of Lords, 19 June 2012; Vol. 737, c. 1694.]—

by the use of other mechanisms. He then listed what they were. Because I am making an intervention, I will not list them, but they are obviously to do with redaction, the anonymising of witnesses and the use of confidentiality rings. There has been a serious misrepresentation of the effects of PII.

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[Mr Tyrie]

I wish to echo the words used a moment ago in support of the work of the Joint Committee on Human Rights, which has done some excellent reporting on this matter—its investigations and inquiries have been very good—for which I am very grateful to its members.

There are three issues before us—reporting, renewal and review—but I will touch only on renewal and review. I have been arguing for some kind of renewal or sunset clause from the moment I first grasped the implications of the Bill. In the opinion of very many people, including, most notably, the special advocates, who are the only people with extensive experience both of CMPs and PII, CMPs will not make Britain more just, and neither, in my view, will they make Britain more secure. I will be supporting new clause 4, as proposed by the JCHR and tabled by the Opposition Front-Bench team, to introduce a renewal clause, and I will be doing so, above all, because of something the Minister without Portfolio said early on in his speech. He said that the Government did not know what effect the new process would have. That is the clearest indication of something that needs very careful and periodic renewal and review.

I recognise the force of some of the arguments against annual renewal put by the Minister this evening—his thought had occurred to me before he uttered it —particularly in respect of this type of legislation, where there would be so much litigation. Without having thought through all the arguments as carefully as some others, I have a preference for renewal once a Parliament, but the Government have not offered a renewal clause at all. That is a mistake and I hope that they will reconsider.

The Government are offering a review, but even that is defective. For a review to be credible, it must be independent, and be seen to be independent, of the Executive, but clearly that will not be the case with this review. Under new clause 6(1), the Secretary of State acting alone will appoint the reviewer. In another context, this is exactly the problem that the Treasury Select Committee faced when the Chancellor created the Office for Budget Responsibility to make forecasts for him. The Chancellor wanted those forecasts to be seen to be independently prepared, but the Treasury Committee pointed out to him that if he, acting alone, appointed the chairman of the OBR, nobody would believe in its independence.

After discussions with the Committee, the Chancellor decided that the chairman of the OBR should be appointed jointly by him and the Committee. I urge the Government, when they reconsider this matter in the Lords, and their lordships, when examining new clause 6, to make similar provision for the appointment of the reviewer of CMPs. In my view, the reviewer should be appointed only by agreement between the Secretary of State and the JCHR.

[Dr Francis]

rose—

[Mr Tyrie]

I give way to the Chairman of the JCHR.

[Dr Francis]

I thank the hon. Gentleman for his kind words about the work of my Joint Committee. I am very attracted to the idea he has proposed. It is not the first time I have heard it, because we had this discussion recently, but I am pleased that he has proposed it on the Floor of the House.

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[Dr Francis]

I see at least one member of my Committee nodding. I will be putting it to my Committee next week that we ought to discuss the idea, and I hope that it will be endorsed and then officially become part of our work. After that, I hope that it will see the light of day and be endorsed by the Government—if not here, then in the other place.

[Mr Tyrie]

I am grateful for what appears to be, already, the Joint Committee’s support for the recommendation. It is an innovation from the Treasury Committee—Parliament has not dealt with any appointments in that way before—but I think that it adds something.

[Mr Slaughter]

What the hon. Gentleman has said is very persuasive, as is what was said by my hon. Friend the Member for Aberavon (Dr Francis). I think that we would support such action, and that the Government should consider it seriously.

[Mr Tyrie]

Well, I have one Front Bench aboard; that leaves another one. I do not see any movement just yet, but if I keep going for a couple more minutes, who knows? I might receive a response.

I think that it is in the interests of the Government to adopt this route, because it would bolster public confidence that the review and the reviewer were truly independent of the Government. My personal view is that five-yearly renewals, informed by a five-yearly review clause, should be satisfactory or at least adequate, but that is certainly the minimum that is required. What the Government have offered so far, which is just some reporting plus a five-yearly review, is clearly not enough. If they do not indicate that they are prepared to move this evening, I will vote against them. However, I hope very much that their lordships are also listening to the debate. They will have an opportunity to improve the new clause in a number of ways, and I hope that those will include the ways that I have suggested.

[John McDonnell]

I tabled new clause 9, which, as has been said, was debated in Committee. I congratulate Lawrence McNamara on his work—on the advice that he gave the House overall, and the evidence that he gave to the Joint Committee on Human Rights. He made a simple point. As we have seen tonight, this is an extremely contentious Bill concerning a contentious procedure, and it therefore warrants close monitoring. The best way of enabling that to happen is to establish a database at the earliest opportunity in order to ensure that the necessary information is recorded.

Lawrence McNamara made a fairly straightforward recommendation to the Committee. He suggested a template-form statement specifying the duration of open hearings and closed hearings, the number of witnesses heard in closed proceedings and the nature of those witnesses, the length of a closed judgment, and whether national security was an issue in the proceedings. The information whose collection is requested is not exactly highly controversial. The reason for requiring it is that it would inform the proposed review, and inform the wider media and the general public about the activities that were being undertaken as a result of the Bill. I am perplexed about why the Government did not simply accept that recommendation. Surely they would want to collect the information as well, in order to monitor their own legislation.

I welcome new clause 5. At least the Government are doing something about reporting. However, the report that they propose would be undertaken after 12 months of operation. I think that people need an ongoing database to which they can refer regularly, and which can be used when necessary to inform debates in the House and among the general public. The database would also feed into the review itself. It would enable a proper discussion to be held about whether the legislation was being implemented effectively, and about the scale of its implementation.

One of the arguments that we have heard tonight is that the CMPs will be used in only a small number of cases—15, according to the impact assessment, but that figure appeared to have been plucked out of the air when the Minister without Portfolio was interrogated further. Given the uncertainty about the import and breadth of the use of the legislation, there is obviously a need for an ongoing database to monitor the position, and that is all that the amendment does. For the life of me, I cannot understand why the Government are unwilling to accept it. I would expect a good Government to want to manage that information anyway.

With regard to the review, I wholeheartedly support the proposal for Joint Committee approval of the appointment. We had a similar discussion about the Bank of England, although without success, but the Treasury Committee was certainly successful with regard to the Office for Budget Responsibility. I suggest that this post is equally important and that, because the legislation is contentious, it is important that the person who reviews it has the full support of the House, and that could be secured by the Committee.

With regard to expiry and renewal, I remind Members that when the Prevention of Terrorism Act 2005 was introduced, we secured an annual debate on renewal. I cannot remember it being argued at the time that that was because the legislation did not have sufficient scrutiny in its early days. I know that it was introduced as emergency legislation, but subsequently there was fairly intense debate about whether it needed to be amended at different stages. The annual renewal was intended to give us an opportunity to see whether it was working effectively and to estimate the consequences for human rights, a critical debate that a number of us have engaged in year in, year out. It did not mean that there were any major amendments as such; it meant that Members of this House, and through them the general public, could satisfy themselves as to whether the legislation was operating in accordance with the original intentions. That is what an expiry and renewal clause would enable us to do. Again, I cannot for the life of me see that as contentious; it is simply another democratic fall-back or long-stop mechanism to ensure that we are fully consulted and that we are satisfied that the legislation has been implemented effectively.

On that basis, I will support the amendments tabled by Opposition Front Benchers and will not press new clause 9 to a Division, but I must express my disappointment that the Government have not gone very far in accommodating what I think would simply be an exercise in openness and transparency for a particularly contentious piece of legislation.

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[James Brokenshire]

It is difficult to answer my hon. Friend’s question. Parallels are difficult to draw in this respect. I can think of one European jurisdiction that is seeking to examine the appointment of an independent reviewer of its own terrorism legislation. We are unusual in having an individual who does such work. People are reflecting on the input from David Anderson, the current reviewer, and his predecessor, Lord Carlile, shining a light and having access to sensitive materials better to inform the debate on sensitive issues relating to terrorist legislation.

I am not seeking to avoid my hon. Friend’s question. It is genuinely difficult to draw parallels with the type of court processes and the review structure that we have in this country, and to say that another country deals with the issue by having an x year review or some sort of renewal system or independent reviewer. It is hard to make such an analysis, because countries and their systems are so different.

The hon. Member for Hayes and Harlington (John McDonnell) spoke about the provision of information and the need for a database. On closed proceedings and closed judgments, there is a database which is held and managed by the Home Office and will be updated three times a year in relation to closed judgments, to ensure that special advocates are able to look at summaries of legal principles in particularly sensitive judgments. Those will be added on a less routine basis to reduce the risk of the summary being linked to a particular case, because of the sensitivity of some of the details. It is intended that summaries of all future closed judgments will be entered into the database to inform debates and discussions and the work of the special advocates.

Part of the debate has been on the principle of whether there should be an annual sunset or renewal—whatever language we choose—or whether the system should be on a five-year basis, which I know that others have suggested as an alternative, although that option is not before the House tonight. The choice that the House has is whether to accept the Government’s new clauses on the provision of information and the review, which I hope it will, recognising that this is an addition that seeks to improve the Bill and the scrutiny and analysis that it provides.

Ultimately, if we were to introduce some form of renewal, we would have to face up to the message that that gives to some of our external partners on the control principle and the sharing of intelligence, given that one of the principles behind the changes being introduced is to give assurance to our external partners, recognising the point that David Anderson and others have made that, in essence, our relationship with a number of external partners has been affected by some cases. If we were to provide an annual renewal, it would materially impact on that. Equally, if we were to provide a further formal five-year renewal in the Bill, our judgment is that that would not provide the assurance to our external partners that is anticipated for our intelligence relationships.

[Mr Tyrie]

I am a little concerned that I am listening to a suggestion that the legislation is somehow for the benefit of our closest allies, the United States. It should be pointed out that the United States does not rewrite its law to take account of the fact that we send some of our intelligence material to it. Indeed, it is often argued that it is a good deal more leaky than we are. A former head of the CIA counter-terrorism centre recently remarked that he supposed that British intelligence must be very unhappy because it is often exasperated, quite reasonably, with its American friends, who are far more leak prone than it is. Nor has it sought to change its system of law to take account of our requests. Is that not one of my hon. Friend’s weakest arguments?

[James Brokenshire]

My hon. Friend says that it is a weak argument, but I disagree. An important part of the Bill is to ensure that justice is achieved in those cases where otherwise evidence would be excluded. Also, through the Norwich Pharmacal provisions, assurance is given that the control principle will be adhered to. That important provision needs to be considered as part of this segment of the Bill and when considering five-year renewal or otherwise. In essence, once we get towards the end of the five-year period, the assurance will not be there. People will be considering what the situation would be, and the issues around the control principle and the assurance that we seek to give to external partners are relevant factors for consideration in this context.

On the point made by the hon. Member for Cambridge on the ISC, under the Bill the ISC’s function will be to oversee the expenditure, administration, policy and operations of the security and intelligence agencies and other Government activities in relation to intelligence or security matters. In the course of that work, it may come across information relevant to this issue and it would be open to the committee to report on those matters to Parliament or to the Prime Minister if it found evidence that the Government may have been abusing the CMP. The ISC has the ability to examine some of these issues if that helps for the scrutiny that is applied in respect of the Bill.

The hon. Member for Hammersmith highlighted the conditions for a declaration to be made. They can be met on material that a party other than the applicant is required to disclose. Amendment 46 makes it clear that the two conditions for a declaration to be made can be met and based on such material. I do not know whether that is helpful to him in the context of the points that he made.

Ultimately, the House will need to determine whether the Government’s new clauses are sufficient. We believe that they are; they allow for a reviewer to look at the legislation in five years’ time. Following the report that the reviewer provides, it is open to the House to re-legislate if it considers that change is needed. Equally, we judge that the legislation on the provision of information gives assurance within an appropriate period on how the Bill will be used.

Others may take a contrary view, but we judge that the new clauses are appropriate. We recommend them to the House, because it is important for us to have the transparency and that ability to consider. That is precisely what the new clauses will give us.

Question put and agreed to.

New clause 5 accordingly read a Second time, and added to the Bill.

New Clause 6

Review of sections 6 to 11

‘(1) The Secretary of State must appoint a person to review the operation of sections 6 to 11 (the “reviewer”).

(2) The reviewer must carry out a review of the operation of sections 6 to 11 in respect of the period of five years beginning with the day on which section 6 comes into force.

(3) The review must be completed as soon as reasonably practicable after the end of the period to which the review relates.

(4) As soon as reasonably practicable after completing a review under this section, the reviewer must send to the Secretary of State a report on its outcome.

(5) On receiving a report under subsection (4), the Secretary of State must lay a copy of it before Parliament.

(6) Before laying a copy of a report before Parliament under subsection (5), the Secretary of State may, after consulting the reviewer, exclude from the copy any part of the report that would, in the opinion of the Secretary of State, be damaging to the interests of national security if it were included in the copy laid before Parliament.

(7) The Secretary of State may pay to the reviewer—

(a) expenses incurred by the reviewer in carrying out functions under this section, and

(b) such allowances as the Secretary of State determines.’. —(James Brokenshire.)

Brought up, read the First and Second time, and added to the Bill.

New Clause 4

Expiry and renewal

‘(1) Sections 6 to 12 of this Act expire at the end of the period of one year beginning with the day on which this Act is passed.

(2) The Secretary of State may, by order made by statutory instrument, provide that sections 6 to 12 of this Act are not to expire at the time when they would otherwise expire under subsection (1) or in accordance with an order under this subsection but are to continue in force after that time for a period not exceeding one year.

(3) An order under this section may not be made unless a draft of it has been laid before Parliament and approved by a resolution of each House.’.—(Mr Slaughter.)

Brought up, and read the First time.

Question put, That the clause be read a Second time.