Justice and Security Bill [Lords]

Debate between Malcolm Rifkind and David Winnick

Monday 4th March 2013 Commons Chamber

[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?

Intelligence and Security Committee

Debate between Malcolm Rifkind and David Winnick

Monday 21st November 2011 Commons Chamber

[Sir Malcolm Rifkind]

The heads of the agencies have been travelling to the Intelligence and Security Committee to give evidence—albeit in secret, not in public—for a good number of years, so precedent is not being broken. Some thought is being given to holding public sessions, and I certainly hope that will prove possible over the next few months. I cannot give an absolute commitment to that effect, but it is certainly what I would expect.

The nature of secret operations remains as crucial as ever. A much more mature approach is being taken to what Britain needs to remain secret and what is a legitimate question of public debate, even if the intelligence agencies are involved. When I first entered this House, and right up until the 1990s, the very existence of the intelligence agencies was never officially declared or admitted and those who led the agencies were very private figures whose identities were never revealed. Much has changed since enactment of the Intelligence Services Act 1994, but to this day some aspects of that approach remain very much in our eye. The question that must be asked is whether that is acceptable in a modern society. We have three intelligence agencies that collectively receive some £2 billion of taxpayers’ money each year. That is serious money that inevitably needs not only private scrutiny but a degree of public scrutiny, too.

Secondly, the very fact that they are secret agencies in an open society means that there is a need for Parliament and the public to take a serious interest not only in the private but, where possible, in the public way in which the agencies operate. Of course, there is a third consideration, which is that as the very activities of the agencies involve the power to intercept communications or carry out operations that, without the authority of a Secretary of State, would be unlawful, they have a privilege that is not available to the rest of the community. If one thinks that this debate is taking place in the middle of a hacking inquiry when exactly that kind of interception was carried out by those who did not have lawful authority, one can see a clear illustration of why the needs of the agencies should be subject to a degree of transparency.

[Mr David Winnick (Walsall North) (Lab)]

The Chair of the Committee mentioned that before 1994, there was no debate—or at least no acceptance and acknowledgment by the Government of the day—of the security services. Does he accept that during the 1980s some of us pressed for parliamentary scrutiny and used every opportunity in debates to say that there should be such scrutiny by Members of Parliament?

[Sir Malcolm Rifkind]

I not only acknowledge that but can say that both the activity of the hon. Gentleman and many representations from other hon. Members and those outside this House led in the 1990s to the Government changing the situation. I was Defence Secretary at the time and was involved in the discussions within Government that led to the 1994 Act, which set up for the first time the independent oversight machinery. We are now trying to discuss and consider the radical modernisation of that machinery, which has existed since 1994.

It is worth also making the general point that at the end of the cold war there was a debate about whether we still needed intelligence agencies and whether they needed the funding, powers and resources they had been allocated during the cold war. The famous phrase about its being the end of history was quoted at that time. I have always been sceptical of that phrase; I prefer an alternative view, which is that as one door closes another slams in your face.