Justice and Security Bill [HL]

Lord Woolf Excerpts

Wednesday 11th July 2012 Lords Chamber

[Lord Woolf]

My Lords, I should perhaps begin by making certain disclosures. First, I have to confess that, together with the director of the Bingham Centre for the Rule of Law, I am among the editors of De Smith, which was referred to in argument as a book that deals with some subjects that are dealt with so admirably by the other book that has been referred to. Secondly, and perhaps more significantly, I should indicate not only that I was a judge who had to deal, as I did from time to time, with PII applications in both criminal and civil proceedings, but that for five years I was what was known as the Treasury Devil, one of whose tasks was normally to appear on behalf of the Government in cases where PII was being sought because of national security. I therefore have a certain degree of practical experience of the position as it arises, alive, within the court system.

The position in criminal proceedings is different from that in civil proceedings, because the issues in criminal proceedings are different from those in civil proceedings. In criminal proceedings, the state is bringing the prosecution. It has the burden of producing the evidence that is to be relied upon. One of the criticisms that have understandably concerned special advocates is that, if the defendant in criminal proceedings does not know the case that is being made against him, it is very difficult for him to give instructions that may be highly relevant and which the special advocate would wish to have in order to do what he is obliged to do: represent the defendant.

In civil proceedings, on the other hand, the probabilities are that the claims for PII or closed proceedings will arise on the grounds of national security where the state is the defendant as opposed to the equivalent of a claimant in civil proceedings, and the person who is the claimant will have full knowledge of the case that he wants to present so as to get the relief that he is seeking. There may be civil proceedings—I put it only as “may be”—in which a special advocate who represents the interests of the claimant can do that more successfully than is possible in criminal proceedings. There may not necessarily be the same inherent unfairness that is always involved in the use of special advocates in criminal proceedings.

While I still stress that the claimant may be under a real disadvantage, and the proceedings may be inherently unfair in that respect, special advocates are certainly better than nothing so far as the party who is being represented by them is concerned. I apprehend that if one were to question special advocates, they would always concede that what they could do was better than their not being there. It is a contribution that must not be ignored, although obviously if one does not need to have secret proceedings and if one is able to disclose all the evidence, the best possible way for that to be done is for it to be done in public, as it should be done in normal civil or criminal proceedings. However, as I say, a special advocate being there is better than nothing.

That brings me to the approach that we are adopting in this legislation. I would say that it has been accepted that there is a need for a procedure that enables in the very few cases that involve national security for material not to be placed before the court in circumstances in which the judge can rely on it. That can be important to the claimant and to the Government because, if the evidence and material are not placed before the court in that situation, the judge may be aware of the material but cannot rely on it in coming to his conclusions, because it is part of his responsibility to determine cases on the evidence that is placed before him in court, whether it is placed before him in the normal way or in the special way that we are considering here.

Only in a small minority of cases is it necessary to resort to the special procedures that we are debating in the course of these proceedings. Certainly on the basis of my experience, usually you can find ways of squaring the circle—ways in which the evidence can be put forward so that it is valuable to the judge without having to risk causing damage to such interests as national security. Justice is done through the advocates involved co-operating, through agreements that certain things are to be redacted, and through the trust that usually exists between the advocates appearing in the proceedings on behalf of the Crown in matters of these sorts and the advocates appearing on behalf of the other parties.

As has been said in argument and as appears in the overriding principle set out in Part 1 of the CPR, the court is seeking to achieve justice, and that should always be the criterion that has to be applied. I would urge that flexibility is very important here. PII has been developed as a common law principle, and if it is accepted on all sides, as I believe it is, that PII in the present proceedings should remain, I question whether we need to reduce into statute that which the common law has developed. Of course, if the common law has developed it, it can continue to develop according to new circumstances that we may not anticipate in the course of the argument taking place in this debate.

I would also urge that it is highly undesirable that we should put the seeking of a PII and a closed hearing into separate watertight containers. If the judge hearing the matter is going to do justice, it is important that he should have before him the knowledge that PII is still available and he can say whether the best way to deal with the matter is through PII or the alternative—through a closed hearing.

The hearing itself might have to be conducted in an unusual way, or might have to be closed, to discuss these matters. However, on this sort of issue the special advocate can be of great assistance to the judge as to the best way of going about it. The advocate on behalf of the Crown will be before the judge and the special advocate can be before the judge, and the judge will take care to ensure that the best way of achieving justice in the situation before him is the one that is adopted.

Many of the amendments here set out principles that I find wholly admirable on the procedure to be adopted on PII. They could have been contained in a text-book; they do not have to be in a statute. So long as it is absolutely clear, as I believe it always has been, that PII is still available, I suggest that that is sufficient for legislation.

[Lord Lester of Herne Hill]

I respectfully agree with everything that the noble and learned Lord has said. Does he appreciate that the reason for this variety of amendments is to achieve precisely the position that he would advocate, and that to get rid of straitjackets seems to be present in the Bill as it stands?

[Lord Woolf]

I agree that there are dangers, in the way the Bill is drafted at present, of it being thought that there is a straitjacket, but there would be an equal danger of a straitjacket if we adopted either of the alternative forms of amendment that have been proposed so far, although I am bound to say that I prefer the option of the noble Lord, Lord Thomas, and the reasons he explained, to the reason previously put forward by the noble Lord, Lord Lester, and others. If you come second in line in putting forward amendments, you can usually do things marginally better than the previous attempt, and I think that has applied here.

As the noble Lord, Lord Pannick, rightly pointed out, the Bill as it is at present is not as clear as it should be. It is very difficult to express it in a more satisfactory way than has been expressed already, but it could be done and I am sure that if the matter is reconsidered it will be possible to make the situation clear beyond peradventure. I would urge that this approach is adopted.

I should also make it clear that I think that the noble Lord, Lord Carlile, is right in saying that in most situations that are covered by the Bill the result will be preferable to both sides if the closed hearing procedure is adopted rather than PII, because PII has the very unfortunate effect that you cannot rely on the material that is in issue, whereas both the claimant and the Government may want to rely on that material. That is a good reason for having the closed-hearing procedure.

[Baroness Berridge]

My Lords, I had planned to speak to Amendments 39 and 40 but what I am about to say relates to what is now being described as the overriding objective of this group of amendments. Whichever it is, it is important that the name “public interest immunity” is retained as, even when we are dealing with national security-sensitive information, it is not government immunity, although it is often claimed by the Government as a party. When it is, it is done on behalf of and for the benefit of the public and not the Government.

--- Later in debate ---

[Lord Falconer of Thoroton]

I hope that the noble and learned Lord, Lord Wallace of Tankerness, takes the same view of this Bill. I am grateful for what the noble Lord, Lord Lester, said and one can recognise that view around the House. I am not yet persuaded of the need for it, but it could be that the noble and learned Lord will persuade me. If there is a need for it, the question is then: what is the right course? In my respectful submission, neither the Government’s proposals nor the amendment quite get there.

With the greatest respect to the noble and learned Lord, Lord Woolf, who I agree with in relation to flexibility, in the light of the decision in the Al Rawi case I do not think it is possible simply to leave the position for the common law to develop. As I understand the Al Rawi decision, it is effectively saying, “You cannot have a closed material procedure unless the parties agree; and even then we are not sure”.

[Lord Woolf]

I was saying that PII should be left flexible. I was not suggesting that you could do without legislation.