Lord Wallace of Tankerness
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Justice and Security Bill [HL]
Lord Wallace of Tankerness Excerpts(11 years, 8 months ago)
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Lord Taylor of Holbeach
That this House do agree with the Commons in their Amendment 1.
Lord Taylor of Holbeach
That this House do agree with the Commons in their Amendments 2 and 3.
(a) the ISC and the Prime Minister are satisfied that the matter—
(i) is not part of any ongoing intelligence or security operation, and
(ii) is of significant national interest,
(b) the Prime Minister has asked the ISC to consider the matter, or
(c) the ISC’s consideration of the matter is limited to the consideration of information provided voluntarily to the ISC (whether or not in response to a request by the ISC) by—
(i) the Security Service,
(ii) the Secret Intelligence Service,
(iii) the Government Communications Headquarters, or
(iv) a government department.
(3A) The ISC’s consideration of a particular operational matter under subsection (3)(a) or (b) must, in the opinion of the ISC and the Prime Minister, be consistent with any principles set out in, or other provision made by, a memorandum of understanding.”
Lord Wallace of Tankerness
That this House do agree with the Commons in their Amendment 4.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I beg to move that this House do agree with the Commons in their Amendment 4 and in doing so, I shall also speak to the other amendments in this group. It is fair to say that the provisions dealing with closed material procedures have undergone significant changes since the Bill was first introduced into your Lordships’ House 10 months ago. This House made significant amendments to the Bill on important issues of principle. A number of noble Lords made their support for these provisions contingent on those changes being made. The Government have brought forward amendments that address the views of this House, and I believe that the measures in the Bill are proportionate and sensible.
In seeking to persuade your Lordships’ House that these amendments should allay the concerns expressed, we should remind ourselves briefly why the Government have brought the closed material procedure—CMP—provisions forward. Fundamentally, they will increase scrutiny of the intelligence and security agencies. CMPs will ensure that intelligence material which would risk the lives of agents and sources, or betray secret techniques is not revealed in open court. At present, the only method to protect very sensitive material such as the identity of informants from disclosure in open court is through public interest immunity. The problem is that a successful PII claim results in the exclusion of that material from the proceedings. Any judgment reached at the end of the case is not informed by that material, no matter how central or relevant it is to the issues in the case. This system works in some contexts, but when a case is so saturated in sensitive material the PII procedure can remove the evidence which one side needs to put their case. Settling is not always an option, and in serious cases involving accusations such as mistreatment, settling does not allow the court to get to the whole truth of what may or may not have happened. The other possibility is Carnduff-type strikeout, which also results in a case not being heard at all. We believe that CMPs offer a way through the dilemma. They enable the courts to ensure that allegations made against the Government are fully investigated and scrutinised, while addressing the potentially severe implications for national security.
A number of changes were made as the Bill proceeded through Committee and, principally, on Report in your Lordships’ House. There were six key amendments on Report, which it is fair to say were taken forward on the basis of a report from the Joint Committee on Human Rights. These increased the discretion available to the judge and allowed any party to apply for the CMP, and indeed for the court to order one, on its own motion.
Turning to the amendments, the Government have sought to take on board the concerns of the Joint Committee on Human Rights and amendments passed in your Lordships’ House. We have brought forward a completely restructured Clause 6—Amendments 4 to 15. There is also a proposed new clause, which is Amendment 16. It addresses the last resort concern by allowing the court to revoke a CMP declaration at any time. The Government’s proposals reflect the intention underlying the amendments made in this House, but also seek to avoid some unintended consequences that would cause problems in practice. Under these amendments the judge now has total discretion over whether to make a CMP declaration following an application by any party to the proceedings, or a Secretary of State, should the Secretary of State not be a party to the proceedings. The court also has the power to order a CMP declaration of its own motion. In making the case for CMPs, the Government argued that they can sometimes be fairer for claimants, too. The courts have confirmed that in some circumstances claimants’ cases will automatically fail without a CMP.
The Joint Committee on Human Rights, and this House observed and argued, rightly, that if CMPs are sometimes in the interests of claimants, they should be able to apply for them and the court should be able to order CMPs as well. These amendments make some technical changes to the amendments originally passed by your Lordships’ House, but they put all parties to proceedings on the same footing when it comes to making an application for a CMP declaration, and will allow the court to order one of its own motion. Where a non-government party is applying for a CMP declaration in relation to sensitive material they do not hold themselves, their interests will be represented by a special advocate in the closed part of the hearings determining that application. The Government have also fully accepted the amendment passed by this House that gave the judge discretion on whether there should be a CMP declaration. As I reflected in some conversations with my noble friends, many of us in our parliamentary lives have tabled amendments to change “must” to “may” or “may” to “must”. This House passed that this should be a change from “must” to “may”, which is possibly the most profound amendment that it made. It has some far-reaching consequences with regard to asserting judicial discretion. Previously, if the court was satisfied that there was relevant evidence that would damage the interests of national security were it to be disclosed, the court had no option but to make a declaration. Now the judge does have discretion.
Lord Gilbert
My Lords, I had not intended to take part in this debate but I have been moved to do so. We have heard this evening that this debate is about the reputation of the security services. We have heard it is about 2,000 to 2,500 years of British justice and that we must of course be on our guard to make sure that we do no damage to either of those principles. However, for me the Bill is not about those things at all. I was a constituency MP for 27 years and I can tell your Lordships that what concerned my constituents was that we should not produce a set of circumstances in which several hundred of them could be blown to smithereens on the District line while going about their ordinary day’s business. That is what concerns them, not what we have been hearing this evening. I have not heard that said once throughout this debate—it astounds me.
Lord Wallace of Tankerness
My Lords, the House will agree that this has been a very good and well informed debate and rightly so because the issues we are dealing with are of fundamental importance to our justice system. I do not think anyone who has taken part or who will vote feels at all comfortable about the idea that there should be closed material proceedings. Nevertheless, as has been explained by a number of contributors to the debate such as the noble Baroness, Lady Ramsay of Cartvale, the noble and learned Lords, Lord Lloyd of Berwick and Lord Woolf, and, although he is supporting the amendments, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, there is a need in current circumstances for closed material proceedings.
The present situation, standing the judgment of the Supreme Court in the Al Rawi case, is that closed material proceedings are not available under common law and the Supreme Court invited Parliament to consider the position. We have sought not only to make provision for closed material proceedings but, as we have gone from Second Reading, through Committee and Report, to the other place for debate and back to us, in doing so we have put in place proper safeguards which reflect the values of our justice system.
The noble and learned Lord, Lord Woolf, said it was important that we show the greatest and utmost care and consideration in addressing these issues, and we have done that tonight. I can assure your Lordships’ House that, in reflecting on the amendments passed on Report in this House, Ministers gave careful consideration to how we might respond to them.
The noble Lord, Lord Beecham, asked about the number of cases that had been settled and how much compensation was paid. As I have explained previously, I am not able to comment on the number or details of many of the cases settled as they are often the subject of confidentiality agreements. However, the House will be aware—indeed, my noble friend Lady Berridge referred to it—that a settlement was recently reached with Mr al-Saadi, on a no-liability basis, to the tune of £2.2 million. I am unable to comment on whether actions have been taken against recipients of other settlements. If such actions have been taken, it would be impossible to comment without breaching the terms of the settlement because it could, for example, indirectly reveal the identity of the individuals concerned.
My noble friend Lady Berridge suggested that perhaps the Government had rushed a settlement to get it in before this legislation went onto the statute book. I am sure that noble Lords will agree that it is not desirable for courts to delay the processing of cases in pre-emptive speculation about what may or may not become available in future legislation. It is unhelpful to suggest that that should be the case. It was and is right that the case of Mr al-Saadi and others should be dealt with quickly and fairly on the basis of existing legislation. The alternative of delaying, pending possible future legislative changes, would be unfair to all parties concerned. I certainly would not like to defend such a situation from the Dispatch Box if that allegation ever had any truth.
The noble and learned Lord, Lord Goldsmith, said that, unlike cases in which he was involved when he was in government and introduced closed material proceedings with regard to control orders under which there were restrictions on freedom, what we are dealing with here is just about money. It is about more than just money; it is also about the reputation of, and the trust and confidence in, our security intelligence agencies. It may also be about executive actions—for example, the judicial review of decisions taken by a Secretary of State on national security grounds which would not be the subject of pre-existing statutory CMPs.
As I have said, it is not just a question about money because, at the end of the day, we are trying to ensure that there will be some kind of proceedings available whereby taxpayers’ money is not spent in settling cases where the case has not been proved. My noble friend Lord Phillips of Sudbury referred to secret justice. I have said in these debates that it is second-best justice, but at least it is justice. There is no justice when cases are settled without any proof of the claim being made.
The importance of the safeguards and how we keep these cases to a minimum—they should be the exception—has been reflected in the debate tonight. My noble friend Lord Macdonald has tabled an amendment that would require the courts to have a balancing test akin to the Wiley balancing test that was developed in the context of public interest immunity. The noble and learned Lord, Lord Lloyd of Berwick, explained why he thought that was inappropriate; he said that it was too wide and imprecise. The noble Lord, Lord Owen, and the noble Baroness, Lady Manningham-Buller, indicated that we are also dealing with situations where there might be foreign sources of intelligence and, crucially, human sources who work on our behalf for our security services. They expressed concern that the imprecision of the test would not be helpful.
My noble friend said that he thought the effect of the Bill as it currently stands, without his amendment, would be that the security services and the Government would opt for CMP rather than PII, public interest immunity, and that somehow that would be convenient for them. The noble Baroness, Lady Manningham-Buller, made the important point that Part 1 of the Bill is about scrutiny of the security services, but Part 2 allows for greater scrutiny. If you wish to push something under the carpet, PII, or settling a case without any evidence being led, is one way of ensuring that information does not come out. Albeit closed material proceedings are closed—for all the reasons that people have articulated in this debate they are not as good as open proceedings—they nevertheless allow the court to examine the material that is there and to apply scrutiny to allegations made against our security services, which otherwise would not be the case.
Regarding openness, my noble friend Lady Berridge referred to the president of the Supreme Court, the noble and learned Lord, Lord Neuberger, and what he said this weekend. The point that was picked up by the noble and learned Lord, Lord Woolf, and the noble and learned Baroness, Lady Butler-Sloss, helps make the point that we have been trying to make. Of course, as more than one contributor to this debate has said, the idea of openness is absolutely intrinsic to our system of justice. The noble and learned Lord, Lord Neuberger, reflected that in his comments this week. It was intrinsic and it was instinctive.
It is absolutely fanciful to imagine that, in applying the tests set out by the Government in the amendments before your Lordships’ House tonight, the judges will somehow forget about openness. It is very clear that the justices of the Supreme Court did not need words in a statute to get them to apply their minds to the importance of openness when it came to making the decision, which they did.
Lord Thomas of Gresford
Is my noble and learned friend saying that the judges will apply a balancing test when they exercise their discretion between open justice and the interests of national security—that that is implicit in everything he is saying?
Lord Wallace of Tankerness
My Lords, it is very clear that open justice is part of our justice system. It is implied by the words “fair and effective”, and it did not need any words in statute to encourage the justices of the Supreme Court to have regard to the importance of openness in these situations. The noble and learned Lord, Lord Neuberger, said the following words, to which I think my noble friend Lady Berridge referred:
“No judge can face with equanimity the prospect of a hearing, or any part of a hearing, which is not only in private, but involves one of the parties not being present or represented”.
He went on to say:
“Nonetheless, as Parliament has decided that, in certain circumstances, such a procedure is necessary and permissible in a trial before a judge, we have concluded that, on an appeal from a decision in a case where a judge has considered closed material and given a closed judgment, it may be necessary for this court to go into closed session in order to dispose of the appeal justly”.
In other words, the just decision on that particular point was that the court would go into closed session.
On the other issue, I also do not find there to be any real difference in what Members of your Lordships’ House wish to see, and it is an issue of judgment as to how we achieve it. These cases should be the rare exceptions; there are a very small number of cases. When I gave evidence by letter to the Joint Committee on Human Rights on 31 October, there were 27 cases which, across government, we considered would lend themselves to closed material proceedings. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, expressed his view as to why closed material proceedings were necessary, but in his judgment these amendments should be in the Bill. I have explained this, and indeed others who have contributed to the debate have also explained why it is not necessary.
We all aim at the same thing: at the end of the day, this should take place in a small number of cases. It is a matter of judgment. As I indicated earlier, at this initial gateway of closed material proceedings the court is considering an application having not yet seen all the material for the case. Against this background, we are keen that legislation should avoid the court being required to meet a condition which would then require it to establish definitively at that point whether a fair determination would be possible by any other means.
As I said, that could mean the exhaustion of a range of measures, including a full PII exercise. Of course, as the noble Baroness, Lady Kennedy of The Shaws, said, it is something to which the Secretary of State should apply his or her mind. If one reads the judgment of Lord Brown in Al Rawi, he indicates at one point that it would take 60 lawyers the best part of two or three years to go through all the material. That is the scale. If that is the road down which judges felt that they ought to go because of the wording of the Bill, that would underline much of its purpose.
I also pick up the point made by the noble and learned Lord, Lord Goldsmith, who seemed to think that the means of achieving it being a backstop and a rare exception was the provision in proposed new subsection (1F) about the court having to be satisfied that the Secretary of State had considered PII. We do not even get to that stage, because the court must not even consider the application unless it is satisfied that the Secretary of State has considered PII. The question asked by the noble Lord, Lord Butler of Brockwell, was very much to the point: the safeguards of last resort, as it were, are not that requirement on the Secretary of State but, rather, the courts being satisfied that the disclosure of material would be damaging to national security, and that it would be in the interests of the fair and effective administration of justice for the application to be granted.
Baroness Kennedy of The Shaws
My Lords, I point out to the Minister that I, too, am a member of the Joint Committee on Human Rights. We looked at whether it would take many months for the Secretary of State to review the material. We were firmly of the view that that is not what is required of the Secretary of State at all. It is only about looking at material that would move it into in the special category which would mean that it would require closed material proceedings. This business that it would take insurmountable periods of time to examine the material is not what we are talking about. The Joint Committee was absolutely satisfied on that.
Lord Wallace of Tankerness
My Lords, I fully accept that the Joint Committee on Human Rights and your Lordships’ Constitution Committee have said that it would be undesirable to go down the path of an exhaustive PII. The point that I am trying to make to your Lordships’ House is that when we make law, the Joint Committee on Human Rights will not be deciding how it is interpreted, it will be the courts. The courts will no doubt be at the receiving end of very eloquent and persuasive arguments from special advocates as to why they should exhaust different routes. That is our concern: if we include such words in the Bill which allow such arguments to be made, the courts may well feel that they must take those exhaustive steps before entertaining an application for closed material proceedings. We believe that that would take away much of the purpose of the provisions.
In conclusion, it is not as if we are just leaving it there. As I said in my opening remarks, we believe that the tests that we have in place, giving considerable discretion to the judges, the revocation possibilities during the review and the disclosure phase, and the requirement on the court to consider at the end of all the disclosure whether closed material proceedings should still continue constitute a very powerful weapon in the hands of the court and at judges’ discretion that will ensure that those procedures will be used only in truly exceptional cases.
My noble friend Lady Hamwee asked about the change from “must” to “may”. She is absolutely right: it is only if all those conditions are fulfilled that the court may grant an application for and make a declaration of closed material proceedings. Even at that stage, the court has discretion whether or not to do so. The noble and learned Lord, Lord Woolf, asked whether it gives the judges discretion to do the right thing in the circumstances of the particular case. I very much believe that what we have put in place in the other place does that. I fear that to accept the amendments could in some ways undermine that, although I fully understand why they have been moved. I believe that we have the right discretion for our judges in place. As the noble and learned Lord, Lord Goldsmith, said, trust the judges. On that basis, I beg to move.
Lord Wallace of Tankerness
That this House do agree with the Commons in their Amendment 5.
“(1A) The court may make such a declaration—
(a) on the application of—
(i) the Secretary of State (whether or not the Secretary of State is a party to the proceedings), or
(ii) any party to the proceedings, or
(b) of its own motion.”
Lord Wallace of Tankerness
That this House do agree with the Commons in their Amendment 6.
“(1B) The court may make such a declaration if it considers that the following two conditions are met.
(1C) The first condition is that—
(a) a party to the proceedings would be required to disclose sensitive material in the course of the proceedings to another person (whether or not another party to the proceedings), or
(b) a party to the proceedings would be required to make such a disclosure were it not for one or more of the following—
(i) the possibility of a claim for public interest immunity in relation to the material,
(ii) the fact that there would be no requirement to disclose if the party chose not to rely on the material,
(iii) section 17(1) of the Regulation of Investigatory Powers Act 2000 (exclusion for intercept material),
(iv) any other enactment that would prevent the party from disclosing the material but would not do so if the proceedings were proceedings in relation to which there was a declaration under this section.
(1D) The second condition is that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration.
(1E) The two conditions are met if the court considers that they are met in relation to any material that would be required to be disclosed in the course of the proceedings (and an application under subsection (1A)(a) need not be based on all of the material that might meet the conditions or on material that the applicant would be required to disclose).
(1F) The court must not consider an application by the Secretary of State under subsection (1A)(a) unless it is satisfied that the Secretary of State has, before making the application, considered whether to make, or advise another person to make, a claim for public interest immunity in relation to the material on which the application is based.
(1G) A declaration under this section must identify the party or parties to the proceedings who would be required to disclose the sensitive material (“a relevant person”).”
Lord Wallace of Tankerness
My Lords, for the convenience of the House, I will speak also to the other amendments in this group. The Government have listened to concerns expressed in this House and elsewhere about transparency, particularly around the new closed material proceedings provisions. I know that several Members of your Lordships’ House expressed frustration at the lack of information available about how many CMPs take place.
The Government have accepted that the unusual nature of CMPs means that there would be significant public and parliamentary interest in more information about how the provisions in this Bill will operate. A strong view was expressed in this House, although no amendments to the Bill were passed, that reporting and review arrangements would be valuable safeguards.
The Government have brought forward amendments that address these concerns. We decided to adopt the expert view of the Constitution Committee by providing for annual reporting to Parliament and for a review of the CMP provisions under this Bill to be conducted five years after Royal Assent. The Joint Committee on Human Rights also made similar recommendations.
Given the often lengthy nature of litigation, with cases often lasting more than a year and sometimes several years, we believe that the frequency of review under these provisions allows for regular but meaningful reporting and for a review to be informed by enough cases to provide for substantiated conclusions and reasoned recommendations where necessary.
An annual report is the most proportionate approach. We expect that the CMP provisions in the Bill will be used rarely. More frequent reports may contain too few data to be meaningful. Annual reports will not, however, be the only way in which facts relating to cases involving CMPs will be made public during the reporting period. The Government made an amendment when the Bill was last considered by this House to ensure that where an application is made under Clause 6(2), that fact must be reported to the other parties in proceedings; and there are already existing mechanisms by which the courts publish their open judgments and the media report on cases of interest to the public.
The reports will focus on the volume of cases and applications. The amendment lists the matters of key concern to be included in the annual report as: the number of applications for a CMP declaration and by whom the applications are made; the number of declarations and revocations made by the court; and the number of judgments published, both open and closed, with respect to the determination of Section 6 proceedings—this would include judgments made on the substantive trial and judgments made regarding the outcome of the application for a CMP declaration. The reporting arrangements will also cover “deemed” Section 6 proceedings or those treated as Section 6 proceedings.
In addition to an annual reporting requirement, the Government have introduced provisions for a comprehensive review of the operation of the CMP provisions in this Bill after five years, conducted by an independent figure and with a report made to Parliament. We expect such a review to take into account the views of special advocates, among others; to consider efficiency, trends and types of case; and to analyse the numbers provided in the annual reports to reflect on how CMPs are being used. The reviewer will have to take care not to comment on judicial decisions or on how the judge has run particular cases.
In line with most other legislation, this clause provides for the appointment of the reviewer by the Secretary of State. Amendment 19A in the name of my noble friend Lord Marks would require consultation first with the Lord Chief Justices and the Lord President of the Court of Session. We do not believe that such consultation is necessary for a reviewer or commissioner to be independent or to be perceived as being independent, as has been repeatedly shown by the independence displayed by Mr David Anderson QC and other independent reviewers and commissioners. David Anderson has been clear about his views on this Bill, for example, and has been influential in persuading the Government to change their position on a number of issues. Such appointments are now subject to a statutory code for public appointments to ensure that they are undertaken transparently and on merit. This should provide reassurance that the person with the right skills and background will be appointed.
It has also been suggested that a review after a shorter period of time would be better. My noble friend’s Amendment 19B would reduce this period from five to four years, which I note seeks to ensure that the sunsetting provision follows consideration of the reviewer’s report. I believe that given how long litigation can take and the small number of cases expected, five years is the right period for there to be enough evidence for a review meaningfully to draw upon.
Amendment 19C would require a further review every five years. In its report, the Constitution Committee said the House may wish to consider the Bill being independently reviewed five years after it comes into force. We have followed that recommendation. Any reviews should be focused where there is proper justification for them, and they should be proportionate.
We should remember that judges have full discretion over whether to grant a CMP, whether to revoke it at any point in a case, whether they agree with the Secretary of State’s assessment of national security damage, how material should be treated within the CMP, effective management of the case, whether a CMP should continue, and in deciding the outcome. There have also been some suggestions that the unusual nature of the CMP provisions means that a sunset clause would be appropriate. This would allow Parliament the opportunity to revisit the need for the provisions in the Bill once they had been operating for a while. The Joint Committee on Human Rights recommended such a provision but the Constitution Committee did not.
Amendment 19D in the name of my noble friend Lord Marks and Amendment 19E, tabled by the noble Lord, Lord Beecham, seek to introduce a sunset and renewal clause for the new CMP provisions, requiring renewal every five years. My noble friend’s amendment provides for a renewal order to follow completion of the reviewer’s report. His amendment makes it clear that the CMP provisions would cease to take effect except relating to proceedings where a declaration had already been made, thereby not interrupting ongoing cases.
I point out to noble Lords that the effect of this amendment would also be to disrupt the Norwich Pharmacal clauses in the Bill that are intended to bring clarity to the Norwich Pharmacal jurisdiction when sensitive information is involved and to provide reassurance to intelligence-sharing partners, a point that was made in the previous debate by the noble Lord, Lord Owen. Although such a clause would apply to the new CMP Clauses 6 to 10 of the Bill, it would also affect proceedings connected to Norwich Pharmacal, both those where the Secretary of State would need to apply for a CMP and the reviews of certificates issued by the Secretary of State under the Norwich Pharmacal clauses. These proceedings are deemed to be Section 6 proceedings because the case needs to be heard in a closed material procedure to ensure that the outcome of the proceedings is not prejudiced by having already publicly disclosed the very information with which the proceedings are concerned.
Such a sunset clause would undermine the purpose of the Bill and unnecessarily so. Both Houses have agreed that there is a gap in the law, that there are circumstances where a judge may decide that a CMP is preferable, that claimants’ cases must sometimes automatically fail without a CMP and that the judge should have a CMP in his toolkit. Given the wide discretion that we have given the judge about when the provisions should be used, I do not know why we would then want to remove CMPs from the judge’s toolkit.
As I have said, the Bill provides for the procedures of the court over which the judge has discretion and not the exercise of controls by the Executive. I reinforce the point, made in an earlier debate, that international partners have expressed concerns regarding the United Kingdom’s ability to protect sensitive information shared with the United Kingdom in cases where claimants are making allegations against the state and its defence rests on national security material. We risk further undermining the confidence that partners have to share information with us if they feel that we do not have secure processes in place to protect their material while defending government actions. We fear that a sunset clause would introduce unnecessary uncertainty.
As I indicated before, the Constitution Committee did not recommend a sunset clause. In its report it said that the House may wish to consider the Bill being independently reviewed, but not renewed, five years after it comes into force; or rather it did not recommend renewal. The Government have accepted the Constitution Committee’s recommendations, and believe that the report and review provisions are sufficient to provide reassurance about how CMPs are used. I therefore beg to move that the House agrees with the Commons in their amendments.
Lord Marks of Henley-on-Thames
My Lords, I rise to speak to Amendments 19A to 19D in my name as amendments to Amendment 19, concerning review and renewal of the operation of CMPs in the legislation.
In the other place, as my noble and learned friend has explained, the Government conceded that the operation of Clauses 6 to 10 of the Bill should be the subject of a review after five years of the Bill’s operation. That is the effect of Amendment 19. As far as they go, the provisions of the amendment are welcome. They were introduced against the background of the recommendation of the Joint Committee on Human Rights in each of its two reports in November last year and February this year that the operation of Part 2 of the Bill should be subject to annual renewal. This amendment not only fails to meet that recommendation but, as it stands, has a number of significant weaknesses that make it frankly unfit for its purpose.
First, proposed new subsection (1) requires the Secretary of State on his or her own to appoint the reviewer. Yet one of the central complaints about the Bill, as my noble friend Lord Macdonald pointed out earlier, is that in practice it gives too much power to the state and to the Secretary of State in particular. The concerns focus not only on the degree to which the Bill sacrifices common-law principles of fairness and open justice but also on the relationship between the Secretary of State and the courts. That remains true notwithstanding the concessions, important though they are, that there have been on judicial discretion and equality of arms.
The Bill undoubtedly accords to the Secretary of State significant new power to influence how trials of some civil cases may be conducted. How the Secretary of State exercises that power and whether it is found in the light of experience to be either excessive or unnecessary will be fundamental questions for the reviewer to address.
Lord Beecham
My Lords, I support the amendments tabled by the noble Lord, Lord Marks, and I am prepared to say at this stage that I will not be pressing my own amendment, which is on similar terms at least to the last amendment that the noble Lord has moved.
The noble Lord, Lord Butler, has adumbrated a case in which it would seem almost that the doctrine that no Parliament can bind its successor is somehow to be disregarded. Of course, it would be open to any subsequent Parliament to amend this law in any event. Any nation dealing with us will be aware of that. There is not, therefore, a great deal of force in what the noble Lord has been proposing as a justification for supporting the Government’s position on this matter.
The question arises: what is the point of a review? If a review is to take place—and the Government have given welcome acceptance to that concept—where does it lead? Apparently it would lead nowhere. The whole purpose of the review in these circumstances would be vitiated. There needs to be a review, given the nature of the change in our proceedings for us to establish a principle that there should be a renewal, and certainly on that basis I am prepared to support the noble Lord’s amendments.
Lord Wallace of Tankerness
My Lords, this has been a relatively short debate, but nevertheless important points have been made by my noble friend Lord Marks and the noble Lords, Lord Butler and Lord Beecham.
The first point I wish to make with regard to the first amendment in the name of my noble friend is, as I indicated in my opening remarks, that a number of public appointments, not least the appointment of Sir David Anderson, have been made by the Secretary of State without the consultation that my noble friend is suggesting in his amendment. I know that it is furthest from my noble friend’s mind to suggest this, but I am sure we would not want a situation where perhaps the appointment of some independent reviewers was questioned because they had not had the same statutory consultation requirements as have been proposed here.
I do not think anyone can deny that the role that Mr David Anderson plays is a very sensitive one. The independent reviewer of terrorism legislation reviews quite significantly the actions of the Executive. It is in the interests, too, of the Secretary of State that the person appointed as the reviewer is credible. I do not think that the recent appointment by the Home Secretary of the Biometrics Commissioner—or indeed of Mr Anderson—has given rise to any concerns. I would caution against fixing a problem that does not exist, because you might inadvertently create another problem by perhaps casting some doubt on the independence of those who have been appointed under the present regime. The Secretary of State should have the discretion, in a highly sensitive national security context, to ensure the appointment of an individual who does not pose any risk. I am sure that would be agreed across the House.
I listened to what my noble friend said and, as the noble Lord, Lord Butler, pointed out, he indicated that he was perhaps shifting—that is not a criticism at all—on the position of the renewal, given the deemed Section 6 proceedings as far as Norwich Pharmacal is concerned. The noble Lord, Lord Butler, makes an important point with regard to the confidence in which other countries share information with us. The fact that there would be regular potential for renewals puts it in a different category from that raised by the noble Lord, Lord Beecham, and it could raise a problem. In one of our earliest debates, the noble Lord, Lord Butler, indicated from a visit to America that when we discussed information perhaps being withheld, it was not fanciful; it was something that he actually encountered in his role as a member of the ISC.
I simply say to my noble friend and to the noble Lord, Lord Beecham, who ask what is the point of a review if nothing could happen, that the answer lies in what the noble Lord, Lord Beecham, himself said. No one is suggesting that this Parliament is binding its successors by this. I remind the House that it is not just the actions of the Executive and the Secretary of State; it is the whole system that we are setting up, which involves the courts. If a review proved that closed material proceedings were not working, manifest injustice was following on from them and they were not actually doing what they were set up to do, of course it would be possible for a future Parliament, through primary legislation, to repeal the legislation if that system is not working. Indeed, it may not go as far as repeal. It may be that a review would point out particular things that perhaps needed amendment, falling far short of a repeal. So a review could have a proper purpose that does not necessarily require a renewal order to follow on from it. In these circumstances, I invite the House to support and approve the amendments that have been brought from another place and I invite my noble friend not to move his amendment.
Lord Wallace of Tankerness
That this House do agree with the Commons in their Amendment 19.
“Review of sections 6 to 10
(1) The Secretary of State must appoint a person to review the operation of sections 6 to 10 (the “reviewer”).
(2) The reviewer must carry out a review of the operation of sections 6 to 10 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.”
Lord Wallace of Tankerness
That this House do agree with the Commons in their Amendments 20 to 24.
Lord Wallace of Tankerness
That this House do agree with the Commons in their Amendment 25.
Lord Wallace of Tankerness
My Lords, I beg to move that this House do agree with the Commons in their Amendment 25. This is a minor technical amendment. It removes the privilege amendment which was inserted into the Bill at Third Reading in this House to recognise the privilege of the other place to control any charges on the people or on public funds. The removal of this amendment at this point is standard procedure.
Lord Wallace of Tankerness
That this House do agree with the Commons in their Amendments 26 to 45.
“(6) The ISC may take evidence on oath, and for that purpose may administer oaths.”