Justice and Security Bill [HL]

Lord Wallace of Tankerness Excerpts

Wednesday 11th July 2012 Lords Chamber

[Lord Falconer of Thoroton]

The noble Lords, Lord Hodgson and Lord Lester, and the noble Baroness, Lady Berridge, have made important points, but we must surely address the issue on the basis of what within our court system produces the most just result available, recognising that imperfect justice may be involved. Everybody accepts that two conflicting principles are valid, namely a properly functioning justice system and the need to protect national security. My view is that if a case is made that unjust results might be being reached, with claimants making claims that they know the Security Service cannot defend, then we should do enough to enable our justice system to properly defend those cases. Open justice is a means to producing justice. The courts have always recognised that if you cannot do justice that is open—for example, if you destroy the confidentiality that the justice system is designed to protect—then exceptional measures are needed for exceptional cases. I do not think our security services are being well served if they are forced to admit claims that they should not, and neither is respect being paid to our judges if they are simply a rubber stamp.

The right answer in relation to this issue is, first of all: is the case proved? That is an open question at the moment, as far as I am concerned. If the case is proved that some measures are needed then these should be kept to a minimum and the judges should decide what is required in order to create the fairest possible system. The problem with the amendments from the noble Lord, Lord Hodgson of Astley Abbotts, which I think he would be the first to acknowledge, is that they involve the judge considering whether there would be any serious risk of injustice to either party if the application for a closed material procedure were to be granted. However, everybody involved in closed proceedings knows perfectly well that if you have procedure that reveals evidence about person A and A never knows what is said about him or her, the prospect of an injustice is significant. However, that may be the best that can be done under the circumstances.

I respect the noble Lord, Lord Hodgson of Astley Abbotts, for raising these points. I just do not think the House of Lords can avoid asking: what is the right answer? The only guide we have is to try to reach the right answer. That is the only way we shall retain respect for what we do. The task we are engaged in is trying to balance those two factors. As I said before supper, what we are aiming for in this bit of the debate is fairness because ultimately national security can be protected by the security services pulling a case, so it is all about deciding whether there are a sufficient number of unfair cases that some special procedure needs to be crafted.

As it happens—and I think the noble Lord, Lord Lester of Herne Hill, is right here—the points raised by the noble Lord, Lord Hodgson of Astley Abbotts, are pretty well the same points we had before supper, and he acknowledged this in his opening remarks. The noble Lord’s basic approach in Amendment 44 is to say that one should go the PII route first; then only if the PII decision is non-disclosure do you go on to CMP. I do not like that approach for the reasons I advanced in response to the amendment from the noble Lord, Lord Faulks, in concert with the noble and learned Lord, Lord Woolf. It is too inflexible. I do not see why we cannot give the court all the options at the time it makes the decision, as the noble Lord, Lord Thomas of Gresford, suggested. This would avoid opportunistic applications and allow the court to come to the fairest possible results. I would be repeating myself if I went on about that. The noble Lord’s amendment has promoted debate, but the effect of that debate is that we do not want the lack of flexibility that his amendment proposes.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, I thank my noble friend Lord Hodgson of Astley Abbotts for putting forward these amendments and for indicating his concerns: that we should be seeking fairness and reflecting on the possible impacts upon society.

I repeat again the passage from paragraph 2.5 of the Green Paper, which is pertinent here, where the Government assert that the,

“appropriate mechanism for triggering the CMPs will help to ensure that they are only used where it is absolutely necessary to enable the case to proceed in the interests of justice. The principle of open justice is an extremely important one, and any departure from it should be no more than is strictly necessary to achieve a proper administration of justice”.

Inasmuch as we are testing this legislation, that is where this House serves an important part of our democratic procedures. Before the dinner break we tested it very well with all the points that were made. I hope that when my noble friend does the outreach he can say that, in trying to ensure no more than is strictly necessary to achieve the proper administration of justice, these tests have been applied and that there has been a very active engagement of Members of your Lordships’ House in trying to ensure that that outcome is reached.

If we are trying to ensure fairness and that there should be no in-built bias, there will be cases where the use of closed material proceedings means that people who might otherwise have been excluded get an opportunity for material to be heard which might well exculpate them. That may be more relevant to one of the later clauses.

The noble Baroness, Lady Manningham-Buller, made a point about fairness. Indeed, it might be important fairness in terms of how the public approach these matters. If the intelligence service, the Security Service, has a full answer to many of the allegations made against it, it is inherently wrong that it should be denied being able to put forward an answer. I perhaps can do no better than again to quote Mr David Anderson QC, much quoted in today’s deliberations:

“We are in a world of second-best solutions: but it does not seem to me that the level of injustice inherent in the use of CMPs 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”.

Bearing in mind these considerations too, I think that all parts of the House are trying to ensure that we find a way forward to achieve the objective.

My noble friend indicated the type of safeguards that he wished to put in. I will not go over them in any detail again but, in response to the previous debate, I think that I explained why the Government do not believe that an exhaustive use of PII before applying for a CMP is appropriate. There clearly will be cases when it could be futile to do so because it is very obvious that to exclude all that evidence by way of PII could render the case that a proper defence could not be put forward.

If my noble friend’s intention is to ensure that CMPs are used only in extremely rare circumstances, I am not persuaded that these amendments are the way in which to achieve that. The noble and learned Lord, Lord Falconer, indicated some of the difficulties inherent in the requirement that there should be no serious risk of injustice. The point to remember is that important safeguards are built into this Bill to ensure that national security is not claimed erroneously and that the fair trial rights of all parties are respected. The court will grant a declaration that a CMP may be used only where disclosure of relevant material would otherwise damage national security. As I indicated earlier, there is a second stage in which the court—with the full engagement of special advocates appointed to represent the interests of an excluded party—will adopt a painstaking process to ensure that only material heard in closed session will be material, the disclosure of which would damage national security.

In addition, I mentioned that the operation of the procedure is explicitly made subject to the right to a fair trial protected by Article 6 of the European Convention on Human Rights under Clause 11(5)(c). In a CMP, the court will make the necessary orders to ensure that the proceedings are conducted in a manner that complies with the article. The judge, with the assistance of the special advocates, will ensure that as much information as possible can be disclosed into open court. If the full document cannot be disclosed, the court will also consider whether it could be disclosed in part through redactions or whether a summary could be provided to the other parties without damaging the interests of national security.

If there is a serious risk of injustice of the kind which my noble friend describes, the court can take the steps which I have described. Equally, if the judge is not satisfied that a CMP has properly enabled the fair testing of closed material he will simply put no weight on it. That approach is the right one in the national security context. A court will grant a declaration under Clause 6 or permit material to be heard in closed session only on the extremely narrow ground that disclosure of material would damage the interests of national security and there are strong safeguards already available to the court.

It is important that we air not only some of the details of my noble friend’s amendment but look at the context in which he proposed it. However, I believe that these balancing considerations have been considered in the proposals before your Lordships’ House. While I do not in any way quibble that these amendments raise an important issue, I hope that I have explained why they are unnecessary, given the other safeguards in the Bill. I ask my noble friend to withdraw the amendment.

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[Lord Lester of Herne Hill]

My Lords, perhaps I may ask a question related to the same provision. Subsection (5)(c) states that nothing in those sections,

“is to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the Human Rights Convention”.

I take it that what that means is, “in breach of the duty imposed by Section 6 of the Human Rights Act”, which requires courts to act in a way that is compatible with convention rights, including Article 6. One might think about amending that paragraph to make it clear that one is talking about not just the international treaty but domestic law, which imposes that duty under Section 6 of the Human Rights Act. Can thought be given to that?

[Lord Wallace of Tankerness]

Certainly, it could be thought about. We just wanted to make it clear in the Bill that Article 6 was pertinent. I am answering this to the best of my ability. The noble and learned Lord asked whether Clause 11(5)(b) ousted PII when a court was thinking about closed material proceedings. I am not sure if that was his question.

[Lord Falconer of Thoroton]

The noble and learned that Lord said before supper, “Oh, well. You could always bear in mind if a PII application was made that the court could say that it was not very keen on it. The much better course would be to apply for a closed material proceedings”. I read Clause 11(5)(b) as saying that you have to ignore the possibility of a CMP application when you are considering PII, because the clause states:

“Nothing in sections 6 to 10 … affects the common law rules as to the withholding, on grounds of public interest immunity, of any material in any proceedings”.

I am not therefore sure that it would be open to a judge to say, “I am not going to look at PII because I want you to do a CMP”.

[Lord Wallace of Tankerness]

My Lords, obviously we will reach Clause 11. My understanding is that concerns were expressed in some quarters that what we were proposing in some way ousted PII and that it was, as some of the more extreme comments suggested, dead in the water. The purpose of the provision was to make it clear that PII is not lost in time or space, and that the common-law rules relating to PII are not affected. If that is not a full answer, we can deal with this in more detail when we consider Clause 11.

[Lord Hodgson of Astley Abbotts]

My Lords, I am grateful to my noble and learned friend for that lengthy reply. It was rather lengthier than I expected it to be, bearing in mind that we covered quite a lot of this ground before the dinner break. I thank my noble friend Lady Berridge for her support, and of course I accept the strictures of the noble Baroness, Lady Manningham-Buller. I promise her that I will not do it again. In the mean time, I beg leave to withdraw the amendment.

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[Lord Wallace of Tankerness]

My Lords, once again I thank my noble friend for moving his amendment. It highlights an important issue in the Bill relating to judicial discretion. Under the proposed proceedings, the Secretary of State would apply for a declaration that a closed material procedure might be used in the case. The judge will need to be satisfied of two things before he grants the application. The two conditions set out in Clause 6(2) are that the material is so relevant that normally a party would be required to disclose it, and that disclosure of the material would damage national security.

The construct is that if both conditions are met, there is no discretion; the judge says that this is a case where a closed material procedure will happen. As I started to explain prior to the dinner break, that is a gateway. It does not mean that every piece of material is necessarily going to be the subject of evidence led in closed proceedings. Things would then move on to the second stage where, similar to what happens in PII, evidence documents are then tested. It may be that, subject to proper redaction, certain documents then could be admitted, or permission might be refused for them to be in closed material proceedings and they could be admitted to open proceedings if the redaction was made. In other words, the redaction would be the non-disclosure. Equally, as indicated in Clause 7(1)(d), if permission is given by the court not to disclose material, the rules of court must provide that the court should consider requiring the relevant person to provide a summary—the gisting—of the material. As subsections (2) and (3) of Clause 7 indicate, there are consequences. If the court does not give the relevant person, most likely the Secretary of State, permission to withhold material and the Secretary of State elects not to disclose it, there are consequences that can flow from that and these are set out in Clause 7(3).

That is the process we envisage. Obviously, the court will be assisted and will receive representations from special advocates. It is the intention that the court should have the power to refuse non-disclosure or permit non-disclosure only to parts of a document or require summaries or require a party to take action for refusal to disclose or to summarise—for example, not to take certain points or to make concessions. That is certainly the intention. I am more than willing to look at the wording to see that it gives effect to the intention.

[Lord Lester of Herne Hill]

Is the answer to the noble and learned Lord, Lord Falconer, that the principle of proportionality is intended to apply here—in other words, that the court must exercise a sense of proportion once a case is through the gateway? If that is so, it is very important. Can the Government think about writing in the need for proportionality as the previous Government did in their Equality Bill?

[Lord Wallace of Tankerness]

My Lords, I am not conceding at this point that it is proportionality. The dynamic of representation is from special advocates and the court considering the material may be able to disclose a particular document if there are certain redactions. I understand that that is the nature of many of these cases and that representations can be made.

The important point I wish to make is that that is at the second stage. The amendment which my noble friend has moved relates to the first stage. That is a gateway which we believe the case ought to be allowed to go through if the two tests are met—namely, that it is a case where disclosure of material is required. We envisage that the Secretary of State would present the material to the court. If there were a vast number of documents, he could present a sample, giving the flavour of why he believes that issues of national security are involved, and ask for the principle of closed material proceedings to be accepted. But the detail takes place at the second stage. Therefore, our view is that the discretion would not be appropriate at the first stage because it is at the second stage that individual documents are being looked at. If the two tests are met, it is important that closed material procedures are allowed to take place, although what actually becomes closed material will be subject to no doubt considerable discussion, debate and representation. It is for that reason that we do not believe it would be appropriate to allow judicial discretion in these circumstances.

However, I certainly take the point about Clause 7(1)(c) that was made by the noble and learned Lord, Lord Falconer, and referred to by my noble friends Lord Hodgson and Lord Thomas. If they feel that that is a total barrier and does not allow the kind of discussion, debate and representation to be made at the second stage that we clearly intend should be part of this process, we are happy to look at it.

[Lord Hodgson of Astley Abbotts]

Perhaps I might ask for clarification for a non-lawyer. Clause 6(2) has the two tests: a requirement to disclose and whether the disclosure is damaging. No matter how trivial or tiny the case is, you go through that sequence. Then we have the second stage of a gateway that could result in further actions to open up material by redaction and enable it to be disclosed and so on. Where does that second stage come in? Am I right in thinking that Clause 6(2) applies no matter how trivial the matter is?

[Lord Wallace of Tankerness]

My Lords, if the test is made as to whether it,

“would be damaging to the interests of national security”,

with all due respect, I do not think that is a trivial matter, and I do not think the Secretary of State would actually seek to do it if it was a very minor matter. We are talking about matters that would have to satisfy the court that it,

“would be damaging to the interests of national security”.

That is quite a serious level of consideration. We are not talking about something that is trivial. What I am trying to say is that if the Secretary of State sought to do something that perhaps was not so much in the interests of national security but might be thought in some way to be hiding an embarrassment, as is clear also from the Bill—I think it is in Clause 10(4)—special advocates are engaged at the gateway stage and obviously we would make representations to that effect. If the court was not satisfied that this was a matter of damaging the interests of national security, the test would not be met and it would not be appropriate for the closed material procedure application to succeed.

[Lord Lester of Herne Hill]

I was trying to be helpful—and obviously failing—in asking why the Government do not accept that the principle of proportionality must apply at the second stage. It is an ancient principle of our common law that you do not take a sledgehammer to crack a nut. Provided that the judge has that discretion, it seems a very important safeguard. Could whether or not to write it into the Bill be considered before Report?

[Lord Thomas of Gresford]

If I may add to that, my Amendment 58 seeks to add words to Clause 7(1)(c) that would introduce a test of proportionality. Clause 7(1)(c) says,

“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”,

to which my amendment would add,

“and that damage outweighs the interests of justice in disclosure”.

That would introduce a balancing test for the judge. As I understand what my noble and learned friend is saying, Clause 6(2) is concerned with the gateway and that could be satisfied by the production of a sample of material. But when you get to the second stage, the judge would be considering things in absolute detail, endeavouring to perhaps make things available by redaction or other means. Even when doing that, my Amendment 58 would be a very appropriate addition to Clause 7(1)(c).

[Lord Wallace of Tankerness]

My Lords, I know my noble friends are trying to be helpful and I am sure that equally they will understand why I am not prepared to make a concession on the hoof, as it were. This is clearly something one would wish to consider and clearly we will also have the opportunity in good time to consider my noble friend’s Amendment 58. I am glad that he made the distinction between getting through the gateway—which is what Amendment 45 applies to—and the second stage. We are of the view that if the two tests in Clause 6(2) are satisfied to the discretion of the judge, the application for the closed material procedure must succeed and thereupon the detailed consideration of the documentation takes place under the rules of court, which are to be set out under Clause 7.

[Lord Falconer of Thoroton]

I understand that the noble and learned Lord is seeking to say that there is no discretion to determine whether the threshold is passed. However, something akin to a discretion is reached in Clause 7. Looking at the wording of it, the Clause 7 requirement is rules. Under Clause 7(1)(a), you are not allowed to have the claimant present when you are looking at the individual material. If the court is satisfied that there is damage to national security, it has give permission for it not to be disclosed. It is not a discretionary matter. It is simply determining, as the noble Lord, Lord Thomas, said, whether the threshold is met. If the threshold is met, there is no discretion. One additional power is given; namely, can a summary be given that does not give away the national security material? It is not a question of proportionality. It is exactly the same test in practice as that which is referred to in the gateway in Clause 6(1). If the Secretary of State says, “If you disclose that document I am advised by the security services that it will damage national security”, unless the judge thinks that the Secretary of State is irrational, which would be very rare, he will be obliged to give effect to that. It is not a question of discretion at all. There are no balancing factors. It is simply, “Right, the consequences are that I cannot disclose that. Can a summary be given?”. That is the only thing that a judge is allowed to consider under this Bill. Although I understand what the noble and learned Lord is trying to say, it is not really right to say that there is a gateway under Clause 6 and then some sort of discretion under Clause 7. There is not a discretion under Clause 7.

[Lord Wallace of Tankerness]

My Lords, I make the following point in response to what the noble and learned Lord says. He is right to say that Clause 7(1)(d) would give rise to gisting. However, under Clause 7(1)(c), it may well be that after representations, argument and debate a document is redacted, and of course the redaction may well be the material that should not be disclosed because it is the material which could be damaging to national security. However, once redacted, the remainder of the document might then be admitted to open proceedings. That is an important part of the process. It is not a blanket application to the document as a whole. It may be that the non-disclosure extends to only part of that document. Only part of that document would be a matter of damaging national security. For example, it could be that a document gives the name of an agent. If that was redacted, the rest of the document could well be admitted to open proceedings, but the name of the agent is something which quite properly should not be disclosed.

[Lord Falconer of Thoroton]

It would not get through the gateway.

[Lord Wallace of Tankerness]

The noble and learned Lord says that it would not get through the gateway, but it is not a gateway for every document. It is a gateway to trigger the closed material proceedings. It may be a sample document saying, “Here is the kind of defence we want to mount. There is material here on which we will wish to rely but it cannot be put into the public domain because it would be damaging to the interests of national security”. If the judge agrees that there is documentation there that would satisfy that, the application is granted and thereafter the documentation or evidence is gone through page by page. It may be that you can take something out of a document and the rest of it would be quite safe from the point of view of national security to allow into open proceedings.

That is the process that we envisage being gone through at stage 2. It is an important part of the process, which means that only a small amount of material would be subject to closed material proceedings. However, to get to that process of going through material document by document, you must first get through the gateway. It is on getting through the gateway, if the two tests are satisfied, that the application should be granted. Going back to my noble friend’s amendment, he argues that there should be some discretion at that point. The Government’s position is that the two tests should be met but can be challenged. Special advocates can be involved at that stage to challenge whether the tests have been met. However, if they are met, we should get through the gateway and, thereafter, we can look at issues such as redaction and gisting. That is an important part of the stage 2 proceedings.

[Lord Lester of Herne Hill]

I am sorry to pursue the matter once more. When a judge is deciding on the scope of an injunction, or on whether a restraint of trade is no more than is necessary, that judge is then applying the principle of proportionality. I do not understand why the same does not apply here. When the judge is deciding on such things as redaction and looking at documents, surely he or she will decide that there should not be overkill, that the interests of justice are to be weighed and that the principle of proportionality should therefore apply. However it is expressed, that is the same as the European test under both EU and convention law. It is also the same under our own scheme. I do not understand why that does not apply here.

[Lord Wallace of Tankerness]

My Lords, I think I have already replied to my noble friend. I indicated that he had raised the issue of proportionality and that I would not make a concession on that point on the hoof. However, I also undertook to consider it.

[Lord Hodgson of Astley Abbotts]

My Lords, I am grateful to my noble and learned friend for those comments. I have listened carefully to him on the interplay between Clauses 6 and 7. Obviously, we shall look further at Clause 7 in relation to what can and cannot be revealed and the implications for the gateway, as he put it, under Clause 6(2). I have a slight instinctive dislike of the word “must”, which remains in my mind because of the issue of judicial discretion. However, we will no doubt get further illumination on that as we get to Clause 7 and the later amendments. That may make me wish to consider this again but, in the mean time, I beg leave to withdraw the amendment.

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[Lord Beecham]

My Lords, I have some sympathy with the suggestion of the noble Lord, Lord Thomas, that habeas corpus proceedings should fall within the civil proceedings provisions of the Bill. I am less persuaded by the argument to include any action against the police. It would probably seem wrong to exclude these specific actions from the procedures, not least in the light of the Crime and Courts Bill, with the creation of the National Crime Agency, the extension of powers to the border agency and the like, and the possible involvement of ordinary police forces under the auspices of the NCA in matters which could go to issues of terrorism or other aspects of national security.

The noble Lord may have a point about habeas corpus and it would be interesting to hear the Minister’s response to that, but I do not think that the Opposition could necessarily support the amendment as it stands. There is the problem that we will refer to later about definitions of national security and the like, which possibly offer a more fruitful way of narrowing the scope of the provisions of the Bill. Having said that, I entirely concur with my noble and learned friend’s view. Anything that I say on subsequent amendments or indeed in relation to this amendment is without prejudice to the stance that we take, but we are yet to be persuaded of the case for closed material procedures in the first instance. All the discussions that have taken place so far, and that we will continue to have in relation to this part of the Bill are subject to that distinct reservation. We are not, therefore, conceding the point when we look to see what ultimate fallback provisions might be desirable and necessary if it is the wish of your Lordships’ House on Report to go forward with the Bill in much the condition that we now find it. We will be looking to discuss amendments and we hope that the Government will respond positively to some of them but in relation to this amendment we will be commending the latter part to the Minister’s attention.

[Lord Wallace of Tankerness]

My noble friend’s amendment seeks to narrow further the contexts in which a CMP can be used. I hope I can demonstrate to your Lordships that the Bill is already very narrowly drafted and that the amendment could remove justice from those who are entitled to it. The Bill as drafted allows CMPs to be used only in relation to information damaging to the interests of national security, only in the High Court, Court of Appeal or Court of Session, and not in a criminal cause or matter.

The amendment would mean that CMPs could not be used in any action against the police or law enforcement agencies, or any action seeking a person’s release from detention. Where such cases involve information that cannot be disclosed for reasons of national security, this amendment would not allow judges to reach a judgment based on all the facts. Claims relating to national security should, surely, be capable of being heard, rather than material being excluded by way of public interest immunity, regardless of whether the defendant is the police or a government department. As was reflected in the comments of the noble Lord, Lord Beecham, the police play a vital role in national security in, for example, counterterrorism investigations. There may be many civil cases which would involve the police—it would not necessarily be directed against a Secretary of State—and it would be unfortunate if they were to be excluded from the possible use of CMPs. Judges should be able to come to a judgment on the full facts in any case relating to national security.

The Bill is designed to increase justice for claimants and defendants in all civil cases where national security means that, otherwise, information could not be put into open court. This amendment would take that justice away from claimants who bring a national security case against the police or law enforcement agencies, or where, as my noble friend explained, the case is about a person’s release from detention. Cases about a person’s release from detention in the UK will generally be in the context of a criminal cause or matter where CMPs are not available, but should this not be the case, it is important that all of the material is before the court, if possible, rather than being excluded by PII.

My noble friend gave a quotation about habeas corpus going back to the reign of King Edward I. I hope that I do not strike too nationalistic a tone, but north of the border, Edward I is not seen as a fount of justice and liberty. That apart, my noble friend raises a serious point. It is our considered view that in the context of habeas corpus cases it is vital that the court is in possession of relevant material before making a decision to issue a writ. Without all of the relevant information, it may not be possible for the court to come to the right decision.

I know that noble Lords are concerned that the nature of the types of cases covered by this amendment creates a greater need for transparency, and that, indeed, in some circumstances, such as proceedings into potential violations of Article 5 of the European Convention on Human Rights, there is a requirement for transparency. The argument that public confidence requires fully open proceedings in such cases is an understandable one, but I believe that these concerns can be addressed through our current proposals. Nothing in this Bill is incompatible with the ECHR. My noble friend has raised a serious point about detention. I will reflect further on it, but our approach is that it is important, even in these cases, that all the material, if possible, is made available to the court before a decision is made, rather than some of being excluded through PII. I will reflect on what he has said, but our view is that we have struck the right balance. I hope that on that basis he will be able to withdraw his amendment.

[Lord Thomas of Gresford]

I know that my noble and learned friend is heading for the sleeper so perhaps we can send homewards to think again about this issue. Habeas applications in the United States have a special procedure and the importance of it is that the applicant for habeas is given some idea of what he is facing. I am not saying that habeas corpus applications should be completely open, but it is inappropriate to apply the strictures and limitations contained in the Bill to applications of that sort. It is a matter that we can discuss. On that basis, I beg leave to withdraw the amendment.