Justice and Security Bill [HL]

Lord Wallace of Tankerness Excerpts

Monday 23rd July 2012 Lords Chamber

[Lord Beecham]

My Lords, these amendments seek to confine the definition of “sensitive information” for the purposes of Norwich Pharmacal cases to intelligence effectively held by foreign intelligence services, rather than any intelligence service, including our own. So Amendment 74A would delete in Clause 13(3)(a) the reference to,

“held by an intelligence service”,

which would, of course, embrace our own intelligence services. Under Amendment 76A, Clause 13(3)(b) would cover, within the definition of “sensitive information”, information held on behalf of a foreign intelligence service. Amendment 76C would, at line 13, delete the paragraph so that the whole issue becomes that of a foreign intelligence service.

Amendment 80A, on the other hand, looks at the rather more significant issue of whether,

“disclosure is contrary to the public interest if it would cause damage (a) to the interests of national security”—

which is, of course, accepted—

“or (b) to the interests of the international relations of the United Kingdom”.

The wording of the amendment looks to have been truncated somewhat. The intention is the same as that of Amendment 80, in the name of the noble Baroness, Lady Williams, who is not in her place, but it would leave out reference to,

“the interests of the international relations of the United Kingdom”.

Of course, security matters would remain covered. The question is: what is the import of the Government’s intention to allow removal from disclosure in the interests of international relations?

One can envisage, of course, that international relations might include questions of national security, but there might also be other matters, such as trade relations with other countries. Are we to be obliged to protect documentation which might relate to, or have an impact on, our economic relations with a foreign country? It might not be an ally; it might simply be a trading partner, a country to which we are exporting or seeking to export goods; a country, perhaps, with an undemocratic regime. Why should these matters not be withheld to protect interests of that kind, as opposed to matters of national security? It will be interesting to hear the noble and learned Lord’s justification for that rather broader definition.

I repeat that we accept that the interests of national security are perfectly legitimate and should be protected. I beg to move.

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

My Lords, the noble Lord, Lord Beecham, has sought to explore whether it is possible to define the Norwich Pharmacal jurisdiction in a narrower way than is available under the Bill as it stands. As was well aired in the earlier debate—and, indeed, on the second day of Committee and at Second Reading—because the aim of a Norwich Pharmacal case is to achieve release of information, it is not possible to agree a monetary settlement in order to prevent that information being released.

It is a different situation in damages claims. In this case, the court can still order the Government to release information if public interest immunity is not upheld. It is therefore important that Clause 13 provides the necessary protection for material whose could cause damage to national security or, in the part that these amendments relate to, to the effective functioning of international relations with key foreign partners.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, it is fitting, albeit after the dinner hour, that we come to consider this amendment at the end of our detailed consideration of the Bill in Committee. My noble friend Lord Lester and the noble Lord, Lord Pannick, have proposed an amendment that highlights important issues of principle that we have come back to continually in our debates, particularly when considering Part 2. It covers the values of justice and fairness, and how we ensure a proportionate response when the interests of the safety and security of the United Kingdom appear to conflict with the principle of open justice.

I agree with both noble Lords about the importance of these values. The fundamental rights to justice and fairness have guided the development of the provisions of this Bill from the beginning. I hope it has become clear during our debates, and as I said following the contribution earlier by the noble Lord, Lord Reid of Cardowen, that I do not believe there should be a binary choice between justice on the one hand and security on the other. That seems to be a false choice. The question is what we can do in the best way to maximise our achievement of both aims. The Lord Chancellor made clear in his foreword to the Green Paper that preceded this Bill that:

“These are matters of profound importance which go to the heart of our democratic values and our belief in human rights, justice and fairness. Inevitably they are immensely complex and difficult—but we must not shy away from this debate”.

I do not intend to go over all the points that have been made on this amendment and in earlier debates. Many of them are very much the issues that the Government have wrestled with when trying to formulate the provisions of this Bill. For example, the Government believe that there is scope for securing greater justice and fairness in our approach to civil proceedings. In particular, we have highlighted the difficulties where sensitive national security information is so relevant to the case that the current arrangements require the Government to make a choice between the justice of a fair judgment based on all the relevant evidence, even if that risks damage to national security, and the need to protect the safety and security of this country, even if that is at the expense of costly settlement in relation to serious allegations that the Government believe are unmeritorious. I therefore agree with all noble Lords who have spoken both to this amendment and in our preceding debates that these values are important.

I cannot fully support the amendment because I am not satisfied that the Committee has been given a satisfactory explanation of its effect in practice. It is all very well to agree the principles, but how would the Secretary of State behave differently under the present provisions in the Bill, and how would the courts behave differently? The Bill sets out in clear language the duty and functions of the Government and the courts, and if the Committee disagrees with that formulation, that is the whole purpose of our deliberations both at this stage and the next.

The second point is that the Government view the amendment as unnecessary as the Bill encapsulates the Government’s respect for the interests of justice, fairness and proportionality. I know that it is a matter that we have debated and which I confidently predict we will continue to debate.

Fundamentally, the Government consider that in the very narrow circumstances in which, under this Bill, material may be heard in closed session, such material should be considered by the court rather than excluded from it by a public interest immunity certificate. We must also protect information that is shared with us in confidence or that would inhibit the ability of our security intelligence agencies to keep us all safe if there is a risk that it could be disclosed.

Fairness, justice and proportionality are also reflected in the narrowness of the application of Part 2 of the Bill and the safeguards that are set out there. The Secretary of State must first consider public interest immunity before applying for a declaration that closed material proceedings may be used. Closed material proceedings are available only where disclosure of the material would damage national security and not on some wider public interest ground. Even where the court grants a CMP declaration, those civil proceedings remain entirely open, pending painstaking scrutiny by the court of each piece of material which the Government wish to have heard in closed session. If the court refuses to hear material in closed session, the court has real powers in the event that the Government nevertheless wish not to disclose the material. The court can require concessions or can exclude the material.

Above all, we believe that the CMP proceedings will be fair. I say that with confidence because the Bill makes it absolutely clear that it does not affect Article 6 of the European Convention on Human Rights, which guarantees a right to a fair trial. The Norwich Pharmacal provisions are strictly confined to intelligence service information or to where the Secretary of State has certified that certain types of disclosure would damage the interests of national security or international relations. The Bill makes provision for judicial scrutiny of the certificate.

It is these carefully calibrated provisions that respect justice and fairness and ensure that a proportionate approach is taken to any interference in the principle of open justice. I accept and understand that a number of noble Lords may yet remain to be persuaded by this calibration. It is on these detailed points that I am sure we will continue to look further and use our energies. I will endeavour to persuade noble Lords of the merits of the Government’s position.

I think we have had very useful debates in Committee. I accept that there are a number of issues on which noble Lords in Committee still have to be persuaded, but in relation both to civil proceedings and to the risk arising from the possibility of court order disclosure of sensitive material through the Norwich Pharmacal jurisdiction, I think there has been a general acceptance in most contributions that some provisions were required, albeit in a very small number of cases. I accept and acknowledge that the opposition Front Bench reserved its position on closed material proceeding.

I am conscious that nevertheless there are still points of detail that we will return to on Report. I have sought during Committee to give a detailed explanation of the rationale for the choices that the Government have made in bringing forward these provisions. I hope that that has helped to shed light on where the Government are coming from, and to inform the debate on these crucial, sensitive and important issues.

It is important that we continue these conversations as scrutiny of the Bill continues. As noble Lords are aware, I am keen to continue to engage on these issues outside the Chamber. I am sure that we will not use all our coming weeks in recess to focus on these, but there is a considerable amount of time during which I hope we can engage and consider them. I recognise their importance, and we will, I hope, have an opportunity to reflect and debate these details further on Report after the Recess. In that spirit, I would be grateful if my noble friend would agree to withdraw the amendment.

[Lord Lester of Herne Hill]

My Lords, this amendment has given the Minister the opportunity to look back on the proceedings in Committee, and it enables me to say that we very much appreciate the way in which he has done so and his open-mindedness. I should also like to say, coming back to Amendment 90, that the role of the Opposition in this area is of great importance. If the Opposition had simply accepted the Government’s position, there would have been very weak scrutiny. That is what happened in the United States Congress when the Patriot Act was introduced, where I am afraid Congress did not do its job properly. That cannot be said to be true of this House.

My noble friend asked: what is the point of Amendment 90—what is it intended to achieve? The noble and learned Lord, Lord Falconer, answered that by referring to the Constitutional Reform Act 2005. The value of having general principles is especially important in this area. We do not have a written constitution. We do not have a constitutional Bill of Rights. We rely on the European Convention on Human Rights under the Human Rights Act as a kind of substitute for a domestic charter of rights.

The Government’s attempt to incorporate principles in the Bill is in Clause 11(5). It is curiously drafted, but it relies, among other things, on Article 6 of the European Convention on Human Rights. I do not think that that is a sensible way to articulate the general principles, which are part of our legal heritage and political system. I would prefer the principles by which we stand under common and statute law to be in the Bill. Amendment 90 is intended only—apparently, this is common ground, because it is what the Government seek to achieve—to ensure that the two principles, which have to be fairly balanced, are taken into account in the way in which Ministers exercise their discretion and the courts exercise and apply the law. I take the point of the noble Lord, Lord Butler, that one does not necessarily need the word “overriding”, but it is in the civil rules of procedure. I am not persuaded at all that the case has been made for an absence of good British principles that are not wholly dependent on Article 6 of the European convention which, for various reasons, does not do the job perfectly.

Having said all that, of course I beg leave to withdraw the amendment.