Lord Wallace of Tankerness
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Justice and Security Bill [HL]
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Lord Beecham
My Lords, I begin by paying tribute to my noble friend Lord Dubs, who has spent a lifetime in the indefatigable support of human and civil rights. I certainly listened very carefully to what he said today.
I confess to some disappointment that during this debate we have heard little evidence of the Deputy Prime Minister’s references to sympathy for the report of the Joint Committee on Human Rights and still less of the amendments that he said the Government would sympathetically consider. I do not know at what stage, if at all, this House will have an opportunity of considering such amendments. We have Third Reading next week, and there is no indication from the Minister that that would be an occasion when such amendments might come forward.
However, I would welcome the recognition of reality on the part of the Government Benches on three of the amendments that were moved earlier this evening. If those amendments had not been carried, we on the Opposition Benches would have voted for the amendment moved by my noble friend and supported by a number of your Lordships tonight, but we conclude that it would be better to send to the House of Commons the considered views and the amendments passed by very large majorities in this House than to send the Bill without those amendments, and simply leaving it that the provisions that caused most of us considerable anxiety were deleted from the Bill. In my judgment, and that of many of us in this House, that would leave us in possibly the worst of all possible worlds.
In terms of the practical politics of the situation, we might conceivably end up with a worse Bill returning to us than the one that, if this amendment is rejected, would be leaving us. For that reason, I am inviting my colleagues on these Benches not to support the amendment, but equally not to vote with the Government against it. My recommendation to my colleagues is that we should not vote on this amendment but should abstain. We look forward to the amendments that the Deputy Prime Minister spoke of yesterday which, presumably, would go further than those which this House approved with such substantial majorities this afternoon and this evening.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, this has clearly been an important debate with passions expressed on both sides of the argument. Following the votes that we have already had —on amendments which my right honourable friend the Deputy Prime Minister was talking about; the House has had an opportunity to consider the amendments emanating from the JCHR report—the Bill looks very different from that which arrived on Report. The CMP process has now altered with the wishes already expressed by this House. I therefore urge noble Lords not to remove these clauses altogether after such time has been taken to scrutinise and amend them. My noble friend Lord Lester summed it up very well: there is no point in spending a long time before the Dinner Break putting these safeguards, as he described them, into the Bill, only to simply take them all out after the Dinner Break.
Lord Wallace of Tankerness
This is the Bill as the House has now passed it. The House has accepted that CMPs are needed. The Government will and should properly reflect on the steer that this House has provided as the Bill moves to the other place. Crucially, we believe that closed material proceedings are absolutely necessary and are, indeed, a significant improvement on the current system.
I am not going to rehearse all the arguments that we have been through on a number of occasions. I will just pick up one or two points that were made in debate. The noble Lord, Lord Dubs, talked about a system of “whispers”. The closed part of the proceedings will not be a cosy chat between the judge and the government lawyers. The non-Government parties will be excluded from the proceedings, as will members of the public, but the interests of the excluded parties will be represented by special advocates, about which I will say a word in a moment. In other words, the closed proceedings will look much like open proceedings in that they will have counsel for the Government and counsel who are special advocates representing the interests of the excluded party and making submissions to the judge.
I understand the concerns that are expressed about the special advocate, but it is also fair to say that the special advocates themselves sometimes underplay their own abilities. The noble and learned Lord, Lord Woolf, said that he has read the transcripts in the case of M v Secretary of State for the Home Department, and had been impressed with the openness and fairness with which the issues in closed session were dealt with by those who were responsible for the evidence in that case before the SAIC. He went on to say that while the procedures that the SAIC adopts are not ideal—no one is pretending that this is a perfection of justice or making that argument—
“it is possible by using special advocates to ensure that those detained can achieve justice and it is wrong therefore to undervalue the SIAC appeal process”.
The noble Lord, Lord Dubs, also referred to what he said were “cover ups”. This was echoed by a number of contributors to the debate. This completely misunderstands the whole purpose of closed-material proceedings. I share the view of those who have expressed in these debates that they abhor torture. The Government abhor torture. The Government do not condone it, and nor do they seek others to conduct torture on their part.
My noble friend Lord Thomas said that we should assume a case where there has been malfeasance on the part of someone acting on behalf of the British Government. The point is that if there were such as case, it is important that these issues are properly considered and investigated. The point under the present situation, with public interest immunity certificates, is that if public interest immunity is successfully asserted, none of that evidence will actually be before a judge. It is important that that evidence should be before a judge. It is important that there is fairness for the claimant, and there is not necessarily fairness for the claimant if the claimant has to settle because important information cannot be considered in open court and we have not allowed them the opportunity of closed material proceedings. While there may be some satisfaction in getting a financial settlement, it might not be a satisfaction if you have indeed been wronged and do not have a court judgment to confirm that. It is not only the security services, on which we have perhaps focused our debates, for which the present system can act unfairly. It is unfair, too, on someone with a just claim who cannot get it properly vindicated in the courts because evidence cannot be brought before them. That makes the point that that is also, as has been said, unfair to those who believe that they have a proper defence and cannot deploy it. In our first group of amendments today the noble Baroness, Lady Manningham-Buller, indicated that that has the effect of lowering morale in cases where people believe that they have done no wrong and they have a proper defence but cannot deploy it.
Lord Wallace of Tankerness
I thank the noble Lord, Lord Beecham, for moving the amendment, which I say at the outset we are not in a position to accept. However, let me give an indication as to why sunset clauses are not necessarily appropriate here. Apart from anything else, I am trying to get my head around the idea of a sunset clause for litigation which could go over a period of time and it is difficult to think that you might have to sunset something. A case might start under a particular form of procedure and, if the sunset clause was effective, that procedure could be reverted in midstream.
There are also other considerations because this goes beyond what is proposed for the closed material proceedings we have been discussing. In relation to the case of Norwich Pharmacal, one of the primary concerns we are seeking to address is how we provide reassurance to those who give us important intelligence information so that we can protect information shared with us in confidence. A time-limited protection would undermine any reassurance we were able to give.
Lord Beecham
My Lords, the Minister should recognise that the amendment relates only to Clauses 6 to 11.
Lord Wallace of Tankerness
I apologise. Other amendments are grouped with it which I suspect have not been spoken to. None the less, the point I was making earlier applies to Clauses 6 to 11. If there was a procedure in train and the provisions were to sunset, I am not sure how that would rest.
However, I may be able to give some reassurance. The Constitution Committee did not recommend a sunset clause but said that the House may wish to consider the Bill being independently reviewed five years after it comes into force. Of course, Bills are subject to review normally some three to five years after Royal Assent, and it might be appropriate to do that should the Select Committee with responsibility decide that it wished to conduct a fuller post-legislative inquiry into the Act.
I recognise what the noble Lord, Lord Beecham, has said and it is self-evident from the debates that we have had that this is a material change. However, it is right and proper that we should leave it to the Select Committee to decide the form that the independent post-legislative scrutiny should take. That is a proper way in which this matter might be addressed.
Lord Beecham
I beg leave to withdraw the amendment. I welcome the noble and learned Lord’s indication that some kind of Select Committee procedure might be adopted for this purpose.
Baroness Williams of Crosby
I also support this important amendment. We know that some countries that are considered to be relatively close allies of the United Kingdom have human rights records that are indescribably bad. It would be a tragedy to have a situation where we cannot take seriously these human rights violations because of the limits that are placed in the language of this Bill.
We are increasingly seeing human rights becoming a new, very important structure of international law, which perhaps encouraged such movements as the Arab spring, and which undoubtedly helped to release many people from the acts of coercion by their own governments. We have close relations, as does the United States and our other allies, with some countries with poor human rights records. When those poor human rights records enter into the area of international criminal action, of the kind described by the noble Lord, Lord Dubs, I hope that we recognise that we have an obligation as a country with a very strong record of supporting human rights to maintain that standard and record. Indeed we are basically the founder of the original European Convention on Human Rights legislation, which binds us all today. We therefore will expect the Government to look very closely at the wording of this part of the Bill before we get to Third Reading to ensure that it will not mean that such major acts of criminality will be disregarded because of our legislation.
Lord Wallace of Tankerness
My Lords, I thank the noble Lord, Lord Dubs, for moving this amendment. We now move on to the Norwich Pharmacal part of this Bill. I thank the noble Baroness, Lady Kennedy, and my noble friend Lady Williams for their important contribution on an issue that, going by the earlier debate, is of considerable importance with regard to human rights and serious breaches of human rights.
The noble Lord, Lord Dubs, highlighted two points: one relating to serious breaches involving, for example, torture; and the other part of his amendment that relates to the control principle. To put this in context, the approach taken by this Bill is consistent with other legislation that has been passed by Parliament. For example, in the Freedom of information Act 2000, Parliament explicitly ruled out a right to access intelligence material; and the Evidence (Proceedings in Other Jurisdictions) Act 1975 and the Crime (International Co-operation) Act 2003 provide for exemptions from disclosure of evidence into overseas proceedings where such disclosure would prejudice the United Kingdom’s national security.
First, I will indicate why limiting the protection offered by legislation to the control principle, which I think is what the noble Lord was seeking to do, does not go far enough. We appreciate that it is important that this is recognised and, of course, as has been said numerous times in our debates, it is essential that the originator of the material remains in control of its handling and dissemination. However, it is often the fact as well as the content of the sharing arrangements that needs to be protected. Certifying information as subject to a control principle agreement could reveal the fact that such a highly sensitive relationship exists. Countries may not thank us for revealing that fact, and might come under pressure to end co-operation with us.
Moreover, there are also some considerable difficulties in identifying what qualifies as control principle material, and these difficulties could lead to further uncertainty and litigation. Perhaps I might be allowed, even at this time of night, to indicate again evidence given by Mr David Anderson QC in June to the Joint Committee on Human Rights, when he discussed these practical difficulties. There may be correspondence between the intelligence services commenting on control principle material, or assessments based on a mix of domestic and foreign material, and it would often be very difficult to distinguish between them.
It is important that we respect human rights and that we take seriously human rights violations, and that we take measures to ensure that there are effective remedies available. I spoke at some length in Committee about what the Government do, both in the United Kingdom and overseas, to promote and uphold human rights. It bears repeating that the United Kingdom Government stand firmly against torture and cruel, inhuman or degrading treatment or punishment. As I indicated in a previous debate, we do not condone it, nor do we ask others to do it on our behalf.
We work on human rights around the world through bilateral contacts, membership of international organisations and development aid and assistance, and in partnership with civil society. Our efforts worldwide on combating torture are guided by the Foreign and Commonwealth Office Prevention of Torture Strategy 2011-2015. The United Kingdom is working to strengthen legal frameworks to prevent and prohibit torture, develop the will and capacity of states to prevent and prohibit torture, and help organisations on the ground to get the expertise and training they need to prevent and prohibit torture.
In recent months the United Kingdom has made its position on torture clear in public statements on countries of concern, lobbied to strengthen adherence to the convention against torture and the ICCPR, and delivered in-country training to officials of other countries on handling complaints of torture in places of detention. In addition, the Government devote significant resources overseas to combating torture. This work is often done behind the scenes, but there is also much work in providing consular assistance as well as in lobbying and capacity-building projects.
In the Norwich Pharmacal context, however, the Government believe that such disclosure is not the most effective solution to the problem. Disclosure in a single case can have far-reaching long-term effects on the United Kingdom’s national security and international relations, making it harder for the United Kingdom to act as a positive influence on human rights world wide. It is not in any way the case that we do not take these matters seriously. I hope I have indicated that there is a very extensive programme of work and commitment on the part of the United Kingdom Government to tackle torture, but we do not believe that using the Norwich Pharmacal procedure is the way in which to do that. In these circumstances, I invite the noble Lord to withdraw his amendment.
Baroness Manningham-Buller
I just say that I understand the concerns about the scale of the paragraph on sensitive intelligence. Equally, I think that Amendment 73 is a bit too narrow. Perhaps the Government can table something between the two by the next stage.
Lord Wallace of Tankerness
I am very grateful to the noble Lord, Lord Pannick, for moving his amendment and the noble Baroness, Lady Smith, for speaking to her amendments. There is recognition on both their parts and across the Chamber of the importance to us of information which we receive from other intelligence agencies. It is often crucial, and it is important that we can reassure them of its confidentiality. We have been trying—I acknowledge that this is the spirit in which the amendments have been moved—to ensure that there is a proportionate response to ensure that the information is protected.
There is the fundamental problem that the novel application of the Norwich Pharmacal jurisdiction, which has its origins in the intellectual property sphere of law, into the national security context has potentially been damaging to the United Kingdom's national security and international relations. As I have said, its very existence can erode the confidence of our agents and our intelligence-sharing partners that we can protect the secrets they share with us. Moreover, in the case of human agents—because it is not just information that we receive from other intelligence agencies; it is important to remember our own agents—there are real concerns of threat to life if there is a requirement to disclose. Each case that goes through the court has potential to cause damage, not just through the disclosure of sensitive information but by highlighting the risk that it could be disclosed.
In addressing the amendments moved and spoken to by the noble Lord, Lord Pannick, I will indicate that in this sphere we believe there is a need to provide certainty and to reduce the scope for litigation. The noble Lord’s suggestion of moving to a certification model, with a narrowed definition of what qualifies as sensitive information, would allow the uncertainty and damage to remain. If we do not legislate in a way which provides sufficient clarity, we could again have the difficulty that our intelligence-sharing relationships stand at risk of deteriorating.
A certificate-only approach would only partially address the concerns of our intelligence partners and of our own agents that sensitive information is at risk of disclosure under the Norwich Pharmacal jurisdiction. It might leave them with the fear that a certificate might not be upheld and that their material might ultimately have to be disclosed. That in itself could have a chilling effect on the activities of our intelligence services and our intelligence-sharing relationships. An absolute exemption therefore provides a clearer and neater protection for this material and more certainty for our partners and our own intelligence services.
I turn to the restriction of the statutory protection to identity, which seeks to define what might be the intelligence with national security concerns. The noble Lord, Lord Pannick, illustrated this by the identity of intelligence officers, their sources and capability and to control principle material alone. We believe that is insufficient, as there is sensitive information falling outside of these two categories that also requires statutory protection. That picks up the point made by the noble Baroness, Lady Manningham-Buller, that this is far too narrowly defined.
Given that the work of the intelligence services is covert, a considerable amount of material would not fall into the category of identities and capabilities but the disclosure of which could nevertheless still be very damaging. Such information includes information about operations and investigations, as well as threat assessments in relation to sabotage, espionage and terrorism, assessments of vulnerabilities of critical national infrastructure or systems, military plans, weapons systems and information on the development or proliferation of nuclear weapons overseas. It may also include operational planning and intelligence reporting, as well as material relating to national security policy and intelligence policy issues and funding, and so on. I hope that giving these examples shows that it is a much broader sphere of activity than is proposed in the amendment.
Likewise, that narrow definition can also create scope for litigation about what does and does not fall within the definition—what, for example, would be meant by the “capability” of intelligence officers? These issues alone could result in lengthy litigation, all of which would divert intelligence officers from front-line duty. The model proposed by the noble Lord, Lord Pannick, also allows no statutory protection for sensitive information whose disclosure could cause damage to the interests of the international relations of the United Kingdom. This point was also picked up on one of the latter amendments in the group by the noble Baroness, Lady Smith. The Government need to offer protection to this category of material to ensure that our international partners remain willing to talk to us in a frank way, so that we can protect and further the United Kingdom’s interests. The mere embarrassment that would be caused from disclosure of diplomatic material would be no basis to certify. Only if material would cause damage to international relations would we be able to certify.
Diplomacy does not work if diplomats cannot talk in confidence and no Government would, or should, sacrifice the benefits which effective diplomacy can offer. As an example, vital work that is done in promoting human rights is not always done in public. Talking to international partners in confidence about their human rights record is an important part of how we seek to influence that agenda. The possibility that such discussions could be made public could have serious consequences for our ability to influence. Clearly, if international partners do not trust the United Kingdom to keep advice and assessments confidential, this could have a serious impact on the United Kingdom’s interests in the fields of human rights co-operation—as well as on consular assistance, trade and investment, and jobs, to name just a few other implications.
The noble Baroness, Lady Smith, proposes adding after,
“held by an intelligence service”,
the qualifier,
“where that information relates to national security or the interests of the United Kingdom”.
We do not believe that that is the right approach. The Freedom of Information Act, which I referred to earlier, does not try to exclude those agencies from the operation of the Act only in so far as they hold information relating to national security. Rather, it excludes them from the Act as a whole in recognition of the fact that, as far as the agencies are concerned, their entire function and raison d’être is to do with national security and necessarily the information they hold is connected with that. The Security Service Act 1989 and the Intelligence Services Act 1994 both make express provision that the heads of those organisations are to make arrangements to ensure that no information is obtained by their agency,
“except so far as is necessary for the proper discharge of its functions”.
I am concerned that adding the wording suggested might only confuse the matter and give further opportunity for unnecessary litigation. We have heard about the canteen menu, and I think the noble and learned Lord, Lord Falconer, referred to someone who had slipped on the floor and wanted to sue the cleaners. I do not think those examples have so far been used in Norwich Pharmacal to get information out of the security services. If that were the issue, there are many other ways that that information could be sought. We are talking about far more serious information, and I do not think that is being challenged.
The noble Baroness said that she could not find anywhere where the Government had said what they might mean by,
“relating to an intelligence service”.
The Opposition propose removing the clauses that protect information relating to an intelligence service and information obtained from or held on behalf of one of our own intelligence services, as opposed to a foreign intelligence service, or information derived from such material. Sensitive information that would not be afforded statutory protection under these amendments includes sensitive intelligence material held by, say, the Home Office, that has been passed to it by the Security Service in support of executive action, for example, deportation on national security grounds or a TPIM notice. It would also include intelligence the Security Service shared with the police in counterterrorism operations, the disclosure of which would readily compromise those operations in either preventing a terrorist attack or bringing terrorists to justice. Work done in other government departments on national security policy and intelligence policy, which relates to the intelligence services, would not be protected if the “relating to an intelligence service” clause were removed.
The Government have reflected on the constructive analysis and considered comment in the legislative period to date. Picking up the point made by the noble Lord, Lord Pannick, I have no doubt that it will be considered further when this Bill goes to another place, but we have concluded, so far, that in the Norwich Pharmacal context, we need to provide absolute exemption for intelligence services information and certification for other sensitive information, the disclosure of which would be damaging to national security or international relations. Only by this can we provide the clarity required to enable the UK to protect its sensitive information in cases of third-party wrongdoing and to restore the confidence of our intelligence-sharing partners and our own security and intelligence services.
I have tried to outline some of the responses to what I appreciate are constructive approaches to what we all agree is a difficult issue. I hope I have explained why the Government resist these amendments, and I hope the noble Lord will withdraw his amendment.
Lord Pannick
I am very grateful to the noble and learned Lord. I recognise the difficulty of defining with precision what information should be covered. I maintain the position that Clause 13(3) does not do a very good job of it. I suggest that the Minister and the Bill team would benefit considerably by having a word with the noble Baroness, Lady Manningham-Buller—although not tonight. At some stage, perhaps they could discuss a way of improving what is a very unsatisfactory Clause 13(3), but for the moment, I beg leave to withdraw the amendment.
“( ) Sub-paragraph (1) does not apply to rules of court in relation to proceedings before the Supreme Court.”
(a) section 1 and Schedule 1, (b) sections 2 to 14,(c) section 15(1) (except so far as relating to paragraph 3A of Schedule 3),(d) Schedule 2, and(e) Schedule 3 (other than paragraph 3A of that Schedule),”
(a) section 15(1) so far as relating to paragraph 3A of Schedule 3,(b) paragraph 3A of Schedule 3,(c) ”