Malcolm Rifkind
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Justice and Security Bill [Lords]
Malcolm Rifkind Excerpts(11 years, 9 months ago)
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Sadiq Khan
On at least four occasions over the past 18 months the Minister has told the public, the media, MPs and Members of the House of Lords that judges had full discretion, notwithstanding the four changes that he has agreed to make over the past 18 months. He cannot be right on all four occasions. Let me tell him what the House of Lords did, pursuant to the report of the Joint Committee on Human Rights. It put on the face of the Bill the balancing exercise that a judge should undertake, balancing on the one hand the public interest in the open and fair administration of justice and the public interest in making sure that there was no damage to our national security as a consequence of material being disclosed. In Committee the right hon. and learned Gentleman tried to tie the hands of that balancing exercise. In a new report last week from which I quoted, the Joint Committee said that he tried to do the very same thing. He is again arguing today why he is right and all the members of the Joint Committee are wrong.
Sadiq Khan
I will give way to the Chair of the Intelligence and Security Committee, then I will make some progress.
Sir Malcolm Rifkind
Does the right hon. Gentleman not appreciate that the bald choice that he is trying to make between national security and the administration of justice certainly applies when one is considering a public interest immunity certificate, because that removes the evidence completely from the consideration of the courts in the interests of national security? But the Wiley test that he referred to just does not apply when one is dealing with closed material procedures because there is a perfectly good argument—the right hon. Gentleman may not accept it—that the administration of justice is better served by at least the judge hearing all the evidence than the evidence being completely withdrawn and not being able to be taken into account at all.
Sadiq Khan
That is exactly what the Supreme Court said in the al-Rawi case: that a judge has at his—I am afraid it mostly is “his”—disposal a number of tools to deal with issues that are sensitive and would create problems for national security. If an application for public interest immunity is made and the certificate is signed by a Minister, the judge will go through a number of loops. He will consider on an application ex parte whether, for example, it is possible to have a fair hearing using anonymity. He will decide whether it is possible to have a fair hearing with confidentiality rings. Imperfect as it is, it is one of the ways in which he will reach a conclusion after balancing the public interest in holding an open and fair administration of justice and the public interest and harm to our national security from disclosure. He does that anyway.
The problem that the Supreme Court recognised in its finding on al-Rawi is that at present the judge does not have the option of a CMP unless we give him that option. That is what the Bill seeks to do. We have explicitly stated in the Bill that there should be a balancing exercise by the judge. In Committee the Ministers tried to limit that. There is no balancing now. All a judge has to consider is whether the procedure is fair and effective, rather than a balance of what is in the public interest.
I am quoting what the Joint Committee said in its report last week, which the Minister finds so objectionable. After his amendments in Committee were defeated by one vote—the Lib Dems voted with Labour—the Joint Committee said that
“there is nothing in the Government’s revised clause 6”—
[Interruption]. The Minister might mutter, but the Committee said that
“there is nothing in the Government’s revised clause 6 which replaces it with anything requiring the court to balance the degree of harm to the interests of national security on the one hand against the public interest in the fair and open administration of justice on the other.”
For us, this is a failing. The test applied at the gateway is very important.
Mr Clarke
I will in just a second. I am sorry not to give way to the Chairman of the Committee at the moment, but I will before I finish.
I think I have made my point that people are grasping at the straws that keen human rights lawyers have presented to the critics of CMP, and trying to bring in a process to prevent them from happening. That would be the effect of most of the amendments. We have accepted the spirit of the JCHR’s amendments, and we have addressed the questions on unintended consequences.
Let us consider amendment 30 and the Wiley balance. I have just mentioned the unfettered discretion that we are giving to judges. Should we add to that discretion a confinement so that a judge would have to apply what is known as the Wiley balance, which is used in PII? I will not repeat the arguments used by my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind), the Chairman of the Intelligence and Security Committee and, I think, the right hon. Member for Salford and Eccles. PII is not the same.
The amendment that the Opposition have been persuaded to table is not actually about the Wiley balance. Whoever drafted it has realised that that would not be quite good enough for their purposes, so they have altered it by adding the words “fair” and “open”. I do not understand how, having decided that national security would be at risk and that that would be relevant to the issues, and that such a measure would be necessary for the fair administration of justice, someone might then decide that they preferred open justice and that the evidence should be given in public anyway. That is a complete non sequitur, in a way. It would be slightly absurd to do that. It would be like saying to the judge, “If you agreed with the Green party and were against the policies in the Bill in the first place, you can now throw everything out anyway because you need to consider whether you would prefer open justice, after those three conditions have been satisfied.” That would be a slight non sequitur, and it is also a bit deceptive—not deliberately; I am not accusing anyone of acting improperly—to describe this proposal as the Wiley balance. It is the Wiley balance with bits added, which some ingenious lawyer has come up with to try to put a spoke in the wheels.
Mr Kenneth Clarke
My right hon. Friend rightly says that in PII, because people do not like excluding all the evidence, there is a perfectly legitimate argument about how much we can gist and how much can be redacted, and then it can be put into the open court. But everything that does not get there is entirely left out; it is not available to claimant, judge, lawyers or anybody else. In a CMP, exactly the same thing can be done, because the judge will be required to consider how much we can gist, how much we can redact, and what can be shared with the defendant. The only difference is that in a CMP, the evidence, including, as my right hon. Friend said, some things that might be absolutely key to the case that cannot unfortunately be disclosed, can be considered by the judge. PII shuts out all that which is not possible to gist. With a CMP, there can be all the gisting and redaction that one wants, but all the evidence is considered.
Sir Malcolm Rifkind
As a Minister who signed a PII certificate in the Matrix Churchill case and was vindicated by the Scott inquiry for having done so, may I say, yes, of course, some things can be permitted through PII? As my right hon. and learned Friend the Minister said, the real issues that would damage national security cannot be considered either by the judge or by anyone else. My right hon. and learned Friend perhaps does not appreciate that even when closed procedures may be approved by the court, once special advocates have been appointed, if the special advocates, having had access to the secret material, put forward a convincing case to the judge that some of that need not continue to be held under closed procedures but can be held in open court, the judge, if so persuaded, is perfectly free to do so. The special advocates themselves, unlike their clients, can put forward that argument, and have done so in immigration cases, and that point has not been mentioned in this debate so far.
Caroline Lucas
I thank the right hon. and learned Gentleman for that intervention but I am afraid that that response does not give me the comfort it obviously gives him.
In conclusion let me say a few words about new clause 2. Although I judge that the House is not with me on amendments 1 to 7, new clause 2—which will be taken as part of the same group—looks at how we can try to restrict the number of cases where CMPs are used. Proposed subsection (1) concerns circumstances in which the liberty of the individual is at stake. Ministers have confirmed recently to the Bill Committee that CMPs could be used in habeas corpus cases where an individual seeks to challenge their detention by the state. Although such cases may not be common, the current Bill would leave us in a position whereby an individual losing their habeas corpus claim could, as a result of a CMP, remain imprisoned without knowing why. Subsection (1) of new clause 2 seeks to rule out such a possibility by ensuring that a CMP will not be available
“where the outcome could result in, contribute to, or impede efforts to challenge the imprisonment; or continued detention of a party, whether in the UK or overseas.”
Subsection (2)(a) of new clause 2 aims to ensure that a CMP cannot be used by the Government to cover up some of the most serious international crimes—for example where genocide or torture are at issue. That is fairly straightforward, as there is clear public interest in those proceedings taking place in as open and even-handed way as possible, and the use of a CMP would be entirely at odds with that aim.
Finally, subsection (2)(b) aims to ensure that material will not be withheld in a CMP where doing so may result in the wrongful imprisonment or death of an individual, whether in the UK or overseas. For example, that could apply where an individual potentially faces capital charges on the basis of “evidence” extracted under torture, as with Binyam Mohamed.
I will now conclude my speech, but let me say that an awful lot of people are watching the House tonight. Although I accept that my words are the minority view in this Chamber, huge numbers of people are deeply concerned about the direction in which closed material proceedings would take us. I hope that hon. Members will be mindful of that when the matter is put to a vote.
Sir Malcolm Rifkind
The hon. Member for Brighton, Pavilion (Caroline Lucas) does no service to the causes in which she believes by the extraordinary exaggeration of her remarks, although she is not the only one. I noticed, for example, that Shami Chakrabarti—who really ought to know better—referred to:
“Government arguments for morphing British courts into shadowy Soviet-style commissions”,
and that Amnesty International said that the system could come
“straight from the pages of a Kafka novel”.
The hon. Lady must try to rely on facts and not on rhetoric. For example, we have the constant use of the phrase “secret courts” but there are to be no secret courts. We are talking about cases in which the vast majority of evidence will be heard in open session. If closed material procedures do apply, they will apply usually to a very modest part of the total evidence. Thousands of civil cases are brought each year and estimates for how many cases would be affected by CMPs are somewhere between seven and 15 a year. The idea that we are transforming our society into one in which civil liberties are not recognised does not bear credence.
I have been somewhat amused by the extraordinary affection that has grown over the past 15 years for public interest immunity certificates. As I mentioned earlier, I signed one of those and I remember hearing howls of execration from the Labour Benches at the time and from the whole civil liberties movement. We were told that public interest immunity certificates were going to send innocent people to jail and do all sorts of terrible things that were incompatible with a free society. Well, we have moved on. Those who denigrated PIIs now see them as a way of preserving our liberties against evil Governments, intelligence agencies and the like.
Let us consider the views of those who have had greatest involvement in such matters, and remind the House what has been said by two people when comparing PIIs with closed material procedures. Lord Carlile, formerly a Liberal Democrat Member of this House and independent reviewer of terrorism legislation, said:
“CMP hearings, with special advocates representing the interests of the individual litigant concerned, are fairer and more searching than the significantly more secretive PII hearings process.”
Lord Justice Woolf, in addition to other remarks that have been cited, said he thought Lord Carlile was right and that
“in most situations that are covered by the Bill the result will be preferable to both sides”—
that is crucial; it will be preferable not just to the Government or the defendants, but to the plaintiff as well—
“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”—
not just the Government; the claimant as well—
“may want to rely on that material. That is a good reason for having the closed-hearing procedure.”—[Official Report, House of Lords, 11 July 2012; Vol. 738, c. 1189.]
Mr David Winnick (Walsall North) (Lab)
Will the right hon. and learned Gentleman clarify whether that is the same Lord Carlile who argued endlessly in defence and justification of 90-days pre-charge detention?
Sir Malcolm Rifkind
I have no idea whether it is the same one or not; that will be a matter for Lord Carlile to deal with. He has served this country extremely well in these sensitive areas, and the hon. Gentleman should take account of that.
The whole problem is that the critics of these measures fail to take into account two things. First, although there can of course be qualifications under PII, including redactions and witnesses giving their evidence behind a screen, the core of the secret material cannot be revealed to the plaintiff without it being revealed to the whole world. It is not just a question of the plaintiff hearing it. Those of us who are privileged to serve on the Intelligence and Security Committee have seen examples of the intelligence material that would have had to be revealed if certain cases had not been settled at huge cost to the taxpayer.
In response to a comment by the right hon. Member for Blackburn (Mr Straw), I must point out that this is not just a question of the identity of an individual agent or officer being revealed. It goes far beyond that, because that person could be protected by a screen or by being given anonymity in court in some other way. It is also a question of evidence involving operating methods, for example. The material could reveal how the intelligence agencies quite lawfully obtain their evidence.
It is worth reminding those who are going to vote against the Government how thankful we are that there have been no further terrorist outrages in this country since the 7/7 bombings. In every year since then, major terrorist plots have been prevented by the work of the intelligence agencies, and much of that work relied on obtaining highly sensitive information, sometimes from individuals who were not intelligence officers but who came from the very organisations and communities in which the plots were being hatched. If the methods by which such information is obtained cannot be kept secret, no one should come to the House saying how much they regret some future terrorist incident if that incident has taken place because the agencies have been prevented from getting the support and co-operation that they need.
Mr Kevan Jones (North Durham) (Lab)
Will the right hon. and learned Gentleman give way?
Sir Malcolm Rifkind
I want to make one other point, if I may.
The other element that critics of the Bill do not take into account is that much of the information we are talking about can relate to misunderstandings on the part of the terrorists or criminals, who sometimes do not realise when their conversations are being listened to or when their property has been entered under lawful warrants and information obtained. They do not realise how stupid some of the precautions are that they take to protect their evil plans. That kind of information cannot be released in court. The plaintiff might be an innocent person, but if the information is released in court, it becomes available to the whole world, including the terrorist organisations and criminals themselves.
Sir Richard Shepherd
I am moved by the impassioned nature of my right hon. and learned Friend’s response to this matter. He is quite right; this is a serious matter and no one doubts that. Is it not strange, however, that some of the information that we are accused of passing on comes from the American court system? We have been held accountable by American intelligence for that as though it were a fault on our part. If the Americans are able to maintain their tradition of an open court system, why should we not do so?
Sir Malcolm Rifkind
I know the case that my hon. Friend is referring to, but that is not really the point at issue. The point is that when intelligence agencies, including the British ones, share information with their friends and allies from other countries, they do so on the strict condition that that information will not enter the public domain without their permission. This is not so much a question of whether the information in a particular document might be harmful; it is a principle, and that principle must not be breached.
Sir Malcolm Rifkind
I am conscious of the time, and I want to make a few more points, if my hon. Friend will forgive me.
This point goes to the heart of what Lord Woolf, the former Lord Chief Justice, has said. The plaintiffs themselves will sometimes benefit from the arrangements, as well as the Government who are defending the case. I can think of current cases, some of which are controversial, in which information given to the judge about the activities of the intelligence agencies some years ago could well help the plaintiff as well as the Government.
Furthermore, if it was suggested that a particular closed material procedure had been drawn too widely to include information that did not need to be protected, the benefit of the special advocate system is that if the advocate was doing their job properly, they would raise the matter with the judge. If the judge was satisfied that the breadth of the closed material procedure needed to be reduced, the evidence in question could be heard in open court.
Sir Menzies Campbell
My right hon. and learned Friend makes a powerful point regarding the interests of the plaintiff. If a PII certificate were to be utilised in such circumstances, the plaintiff would have no chance of taking advantage of any conduct on the part of the intelligence agencies and others that could result in his action being successful.
Sir Malcolm Rifkind
My right hon. and learned Friend is right.
That leads me to my final point, which goes to the heart of the Opposition’s amendment. It concerns the so-called Wiley balancing act, in which a judgment must be made on whether national security is more important than the administration of justice. Of course that is relevant for PII, because that is the absolute choice that has to be made in those circumstances, but the whole point of closed material procedures—unlike PII—is that the evidence will be available to the judge. The administration of justice cannot but be helped if the judge has access to all the relevant information. So the Wiley balancing act is simply not relevant in such cases. The judge must be satisfied that there is a risk to national security, and he will have the last word on that. At that point, a closed material procedure will be granted, and that is the least bad option. We do not argue that CMPs are a good option, that they are desirable or that they are ideal. They are far from that, but they are better than the alternatives and, sometimes in this imperfect world, this is the only responsible way to behave.
Paul Goggins
I shall try to be brief, as I know that other Members wish to speak. It is a pleasure to follow my colleague, the Chair of the Intelligence and Security Committee, the right hon. and learned Member for Kensington (Sir Malcolm Rifkind). I am sure that it was music to the Minister’s ears to hear a speech from his own Benches in support of the Bill. I know that he welcomes the fact that there have been a number of speeches from the Opposition Benches, of which this is another, that are broadly in support of the Bill.
There are two fundamental arguments in favour of the direction that the Government are taking. The first is the need to deal with the present inability of the security and intelligence agencies to defend themselves against civil claims. That point has been debated over the past few hours. My right hon. Friend the Member for Blackburn (Mr Straw) did the House a great service by reminding us that we are talking not about bits of paper, but about human sources of intelligence. We are talking about human beings, and the agencies have a fundamental responsibility to protect the lives of those people. Even in the course of protecting their own interests, they can do nothing to undermine the safety and security of those people. Those are vital obligations to human beings, not to scraps of paper with information written on them. The idea that any serious judge would grant closed material proceedings in relation to intelligence that might prove embarrassing or slightly awkward for an agency is preposterous. This is all about highly sensitive intelligence, about sources and about methods.
The second element that makes the legislation imperative is the need to make the agencies themselves more accountable. I do not want to see a PII one-way street that allows an agency to hide material completely or to settle out of court. If intelligence exists that there has been wrongdoing in the agencies, I want that evidence to be considered by the judge and to be weighed in the balance when conclusions are reached.
Reflecting on the debates on these matters, I believe that it should be possible to close the gap between the Front Benches on the ability of the judge to choose the appropriate route to take. I think I heard the Minister say earlier that, even at this late stage, he was prepared to go away and give further consideration to that issue. If there are further opportunities to do so, I hope that he and my right hon. Friend the Member for Tooting (Sadiq Khan) will reach consensus on this point. The Minister has come some way towards that by tabling amendment 47, and that is helpful. The court must now be satisfied that the Secretary of State has considered whether to make an application for PII, and that goes some way in the right direction. I encourage him and my right hon. Friend to try to close what remains of the gap between them. As far as I am concerned, the last resort should be the PII. I cannot agree with the hierarchy set out by the right hon. Member for Haltemprice and Howden (Mr Davis). I want less secrecy and there is less secrecy through closed material proceedings.
On the Wiley test and the substantive difference that clearly still exists between the two Front Benches, I urge further and fresh consideration, if that is possible. I am not a lawyer, as may be evident to anyone who has ever heard me speak on these matters, but if the decision is whether the material should be in or out, then a test of open justice is a fair test, and that is the test that applies in PII. However, if the decision is about closed material proceedings, then, frankly, that is a decision about whether the material is fully in or not fully in. If a judge can see it but others cannot, and if the merits of a particular piece of intelligence can be weighed by the judge, clearly that is a more difficult and complex judgment. It therefore does not surprise me, as a non-lawyer, to know that a different test from the Wiley test may need to be applied.
Amendment 30, tabled by my right hon. Friend the Member for Tooting, sets the bar too high, but I encourage further consideration wherever possible. There are various stages to the closed material procedure. There has to be consideration on whether to enter the process in the first place, and on whether the process should end. Therefore, there has to be an appropriate test and further thought on it, but I think that my right hon. Friend sets the bar too high.