Justice and Security Bill [Lords]

Debate between Malcolm Rifkind and Robert Buckland

Tuesday 18th December 2012 Commons Chamber

[Mr Buckland]

We do not know that, and that is the problem with the current system. I would accept my hon. Friend’s argument if we had a system in which such issues could be properly tried, or at least tried in some second-best scenario; I accept that closed material proceedings are very much a second best to the principles of open justice in which my hon. Friend and I believe. However, we will never know—we will never be privy to whether the British state infringed principles of justice and international convention when it came to unlawful rendition.

[Sir Malcolm Rifkind]

I reassure my hon. Friend that once the current police inquiries are complete, the intention of the Intelligence and Security Committee is to continue our investigation, which we had already started, of the allegations about United Kingdom complicity in Libyan rendition and to publish our conclusions to the extent that we can.

[Mr Buckland]

I am grateful to my right hon. and learned Friend, and commend him and his Committee for their work in that area. It is something that I would like to know more about, as would many people in this House and outside. Sadly, the Gibson inquiry had to be terminated, or postponed, because of ongoing criminal proceedings. I very much believe that wrongdoing should be exposed, but, as has been pointed out, in the case of this civil proceeding we do not, and will not, know the precise merits or otherwise of the claim that was made against the British Government.

Much has been made of the views of Mr David Anderson QC, the Government’s independent reviewer on terrorism. I will spare his blushes. It is absolutely right to say that he, like me, is very much a reluctant convert to the limited use of closed material proceedings in certain cases where national security is very much at the heart of the claim. He makes the very important point that in referrals made by Her Majesty’s Government, we must put our trust in our judiciary to come to fair and balanced decisions on the material before them and to apply fairness not only to the Government but to claimants, because these questions apply equally to both parties in any such case.

Their lordships’ amendment to clause 6 opens up the limited discretion in the clause as originally drafted. I welcome that. It is wrong to say that there was no discretion before, but it was limited. They have expanded that discretion by the use of the word “may”. It is a much wider discretion than many of us in criminal practice have got used to. For example, in the sort of discretion that sentencing judges have in dealing with mandatory minimum terms of imprisonment, the word used is very bald. “May” cannot put it any more simply. The amendment is very significant, and the fact that the Government have rightly accepted it eases many of the concerns that I and others had about the extent of the power of Ministers, in effect, to limit the court’s ability to disagree with a reference from Ministers.

That is the trigger, but it does not end there. The hon. Member for Foyle (Mark Durkan) said that a blanket then comes down on the use of closed material proceedings. I have great respect for him, but I do not think he is right. It is not a question of a blanket coming down, because the judge has a duty to look at each individual piece of evidence to determine whether it should be the subject of open proceedings or closed material proceedings. The judge will retain that important check and balance in looking at the evidence.

We need to put firmly to bed the notion that closed material proceedings are a silver bullet that will allow the Government always to be able to win—to successfully defend—these cases, because they most certainly are not. The recent decision by SIAC which had the effect of allowing the release of Abu Qatada is a notable example of that. CMPs were used in that case. The result was perhaps not popular in many quarters, but it is an example of the court being able to cope with the second-best solution and to reach an outcome that was, on a neutral interpretation, a fair one. CMPs can be a way for claimants to ensure that all the issues they want to see raised are properly considered by the court as part of the case.

Public interest immunity has been prayed in aid as a substitute for the process, but it is not; its function is different. PII relates to the extent and quality of disclosure, which occurs at a different stage from the fact-finding process itself. Material that is successfully subject to a PII certificate remains undisclosed to the party seeking it. There is no gisting or anything else. Redaction of documents may well happen, but that still means that the material sought by the party who wishes to see it remains undisclosed. PII has a practical effect, whether it is on the continuation of a prosecution in a criminal context or, as in this context, the continuation of a defence in a civil case. The choice for those at the receiving end is either to disclose the material or to stop the case. That means, as we have already discussed, that cases in which genuine allegations of wrongdoing are made will never properly be dealt with by the court. It is the justice gap that has been spoken about not just in this place but by eminent Members of the other place, most notably Lord Woolf, Lord Mackay and Lady Manningham-Buller, who all support the use of closed material proceedings in restricted circumstances.

As other Members have said, there is nothing groundbreaking about the use of closed material proceedings in English law. They have been used for some years, in both SIAC and the regime of terrorism prevention and investigation measures, and in a way, as I have said, that cannot be regarded as resulting in manifest unfairness or injustice.

I would welcome clear and continued assurances from Ministers that, if future consideration is ever given to further extending the use of closed material procedures to other areas of law, it is this House that will deal with the issue and that there will be strong grounds to justify any further extension before we allow it to happen.

We live in an imperfect world. It is a troubled world where sometimes grim reality invades noble principle. This Bill is an exemplar of that, which is why I support its Second Reading.