Justice and Security Bill [Lords]

Mark Durkan Excerpts

Tuesday 18th December 2012 Commons Chamber

[Paul Goggins]

I do not make light of the issues. If intelligence were shared with a coroner, but not with the family of the deceased, that would be a massive step, but it is better that we should know the cause of death rather than the whole thing remain a mystery. I am therefore grateful to my right hon. Friend for her intervention.

[Mark Durkan (Foyle) (SDLP)]

My right hon. Friend will not be surprised to hear that I beg to differ strongly on that point. The idea that we can make a contribution to resolving issues of the past in Northern Ireland and all these inquests that have not taken place by creating a closed material procedure simply will not wash, not least in the light of the implications of the de Silva report and the issues for many families, not just the Finucane family, in relation to some of the revelations, never mind the material that was not disclosed by de Silva.

[Paul Goggins]

As ever, I warmly welcome the intervention of my hon. Friend, even though for some years we have disagreed on that point. It is good to know that he continues to make the point and that we continue to debate the issue. He may be interested in my next point which relates to the judicial review of a decision to revoke the licence of a convicted terrorist who has been released from prison, and where there is intelligence to suggest that that individual is again engaged in terrorist activity.

I shall refer to my specific experience in Northern Ireland. In 2008, I revoked the licence of a leading member of the Real IRA who was a convicted terrorist and had been allowed out of prison. Intelligence given to me made it perfectly clear that he was again involved in organising terrorist activity. That intelligence came from the Security Service. He did not like the fact that I revoked his licence and he went back to prison, but he challenged me for more than 12 months on that decision. In the end, the case went all the way to the Supreme Court. The outcome was that he had to be released into the community, though he was due to be released a few months after that date in any event.

The court made it clear that I had behaved perfectly reasonably and lawfully throughout, but it demanded that more of the information on which I made my decision should be given to the individual than the Security Service could possibly have allowed, so he walked free. I simply say to the Minister—and it will be interesting to see whether the Under-Secretary will comment on this in his winding-up speech—that the issue will not go away, especially as an increasing number of convicted terrorists will come out of prison in the foreseeable future. I suggest that this is something that needs to be looked at.

Finally, I agree that the closed material procedure used by the Special Immigration Appeals Commission, and included in the Bill, is not a perfect procedure, but to work as best as it can it requires the co-operation and advocacy of the special advocates who represent claimants or defendants. I do not criticise special advocates because they express strong opinions, and I do not question their motives, but if Parliament decides that the provision of a closed material procedure is a proportionate response to the risks that we face, it is absolutely vital that special advocates, like the rest of us, do whatever they can to make the system work. I hope that the Under-Secretary will tell us that he is engaging in a new initiative with special advocates that will mean that they will strive to make sure that they can represent their clients in the best way possible. The Bill is an important further step. It was improved in the other place, and I am sure that it will be improved in Committee.

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[Mark Durkan]

My right hon. Friend referred to US concerns based on the Binyam Mohamed case. Does she not, and do they not, recognise that no disclosure of information was ordered by the courts here and that the disclosure actually happened in US proceedings, not here?

[Hazel Blears]

I think the Americans have a great deal of concern about many legal jurisdictions when it results in information subject to the control principle being disclosed in open court.

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[Mark Durkan (Foyle) (SDLP)]

Other Members have observed that there seems to be consensus on part 1 of the Bill, but I may be more of a doubting Thomas in that respect. I am not sure that part 1 will do all that it promises to do for the Intelligence and Security Committee, the House or the Bill itself.

I do not, of course, speak with experience of membership of the ISC, although I was offered membership a number of years ago, in bizarre circumstances. In fact, at one point my party was offered two seats on it, which seems bizarre even now. At that time we were negotiating the St Andrews agreement, and Tony Blair got it into his head that I might be prepared to accept annex E—which re-routed some of the Patten provisions relating to intelligence and national security—if I was offered a place on the ISC.

Hours later, I was advised that two places were on offer. I had said that it would be very difficult for a member of my party to sit on the Committee, supposedly to offer scrutiny and challenge, while being unable to tell anyone that he or she had done so or to say anything about it. The consolation was that we would have two members there, each of whom would vouch for the other in our secrecy. It was a bit like King Louie in “The Jungle Book”: “Have a banana; have two bananas.”

Members have said that the Bill is a significant advance on existing law, but I am not sure whether it is adequate or truly accountable. Part 2, obviously, has raised the more substantial issues and differences. I am at a bit of a loss, because I hear differing and confusing arguments. I hear those who commend part 2 saying that closed material procedures are not a particularly big departure because they are already used in cases of various types, and that the Bill merely codifies them in a particular area. I also hear the argument that PII is no good, that it cannot be used, that it stops cases being defended and that by its very nature it means that evidence cannot be brought. The reality is that PII can be dealt with on an evidence-by-evidence basis, and does not have to be done entirely wholesale. We have seen where it has worked in the past when the courts have granted immunity in relation to certain material, evidence and witnesses. They have protected their anonymity and secrecy and have protected material from being disclosed altogether. In other cases, they have protected material by due and measured redaction. The idea that PII is basically just a one-size-fits-all option is nonsense, as it can be used in a measured way.

I feel almost as though I am involved in some sort of closed material proceedings, because everyone else seems to be aware of why certain cases were settled as quickly as they were. I do not know why the al-Rawi case was settled in the way that it was. It had not even gone to the Supreme Court once appeal was allowed, yet settlement took place. Was it so compelling that the state had no other choice? Was there no way of having more measured terms? I do not know, but other people seem to. They seem to have been briefed and perhaps they are privy to such things, but I certainly am not and as a legislator I am not prepared to pass serious, significant legislation on spec based on somebody else’s hunch that the state would not have settled if it did not really have to.

I come from a part of the world where the state has done many things and failed to do many things. People attributed all sorts of reasons and pure motives to it, saying, “They wouldn’t have done that if they didn’t have to.” We know from last week’s revelations that that logic absolutely stinks. One of the worst things was that all down the years, when such things were happening, they were not sufficiently challenged by enough people in this Chamber and in other places.

When we receive such legislation, we must question it and ask what the compelling reason for it is. We must also look to those who know something about such things. Lord Justice Kerr has been widely quoted today on the subject of closed material proceedings, but he was not the only one to make significant statements in the al-Rawi judgment. Lord Dyson, giving the lead judgment, said that the introduction of closed proceedings in ordinary civil claims would involve

“an inroad into a fundamental common law right.”

He went on to say:

“The PII process is not perfect, but it works well enough. In some cases, it is cumbersome and costly to operate, but a closed material procedure would be no less so.”

Other hon. Members have quoted Lord Kerr’s concluding judgment. An additional point he made was:

“This would not be a development of the common law”

as the Government

“would have it. It would be, at a stroke, the deliberate forfeiture of a fundamental right which…has been established for more than three centuries.”

In those circumstances, I do not think that we should lightly pass the Bill on the basis that the other place has made a few amendments that make it good enough.

[John McDonnell]

The point has been made throughout the debate—I have not heard it all as I have been in a Westminster Hall debate—that in a piece of legislation that is actually flawed, we must ask whether the balance of interest lies in protecting the state or the individual. Clearly, the Bill protects the state rather than the individual.

[Mark Durkan]

That is exactly the nature of the Bill. It is a measure to ensure that the state will be protected in various litigations and that it will have an absolutely unequal power to use a procedure that will frustrate a case against it using a special secret procedure.

We are told—I have listened to other hon. Members say it—that the amendment to clause 6 in the other place that changed “must” to “may” now means that the proceedings are entirely a matter of judicial discretion and that we should therefore trust the courts. Of course, however, that is only in relation to clause 6. Once the national security case has been engaged by a judge under clause 6, clause 7 means that what happens is entirely in the hands of the state. That joker is played by the state and cannot be predicted. PII means that a judge can be selective and can scrutinise what evidence might compromise national security and what should or should not be admitted in balancing the interests of hearing the case and protecting national security, but that will no longer be the case. We are being sold a false argument about just how big a difference there is because of the change from “must” to “may”.

As well as listening to learned judges who have considered the matter, we should look to those who also have experience of closed material proceedings and such legislation—the special advocates. The Minister without Portfolio told us, in effect, that special advocates underestimate their own power—they do rather well under such provisions and have quite a good score rate. Let us listen to what the special advocates and other observers say. The late Lord Chief Justice, Lord Bingham, described the role of a special advocate as akin to

“taking blind shots at a hidden target”.

Special advocates themselves have described it as “shadow boxing” in circumstances where

“you are speaking into a black hole because you have no idea if your strategy and points are on the money or wide of the mark”.

So special advocates are frustrated by their own professional standards. They must be particularly frustrated in relation to the interests and rights of their clients.

Remember, that is what we are talking about—people who have reason, good or ill, for taking a case against the state. If, in doing so, they are speaking of actions that have fundamentally affected their human rights, that have done damage or harm to them which in other circumstances and at the hands of someone else would be deemed to be illegal, that is serious. We should not treat the issue as a matter of administrative convenience. The argument should not be that it takes Ministers too long to decide whether they want to look for public interest immunity certificates in respect of all the different pieces of information, that it could take them a whole day to do so, and that we have to come up with something quicker, so we go for closed material proceedings. That is not the way in which we should legislate for justice to be done.

Others have quoted the Government’s independent reviewer of terrorism legislation, David Anderson. On one occasion he attended a session with representatives of the Government and of all three intelligence services and counsel. He was talked through seven significant cases and left with a bundle of top-secret material in each case, including evidence and internal and external advice, which he had taken the opportunity to read. Three of those seven cases were civil damages cases. His conclusion was that

“there is a small but indeterminate category of national security-related claims . . . for civil damages, in respect of which it is preferable that the option of a CMP . . . should exist”—

only preferable that the option of a CMP should exist, but the Bill goes down an almost compulsive route in relation to that and legislates too far.

There is the irony that the very procedure that the independent reviewer engaged in was a closed material procedure. He looked at files that were presented by Government. He listened to the representatives of the intelligence agencies and their legal advisers, and he formed an assessment with no other view being given from special advocates or anybody else, yet it is his advice and his conclusions that we are told we should listen to.

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[The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire)]

I am grateful for the range of contributions that have been made today, including those made by informed members of the Intelligence and Security Committee, the Joint Committee on Human Rights, and the Justice Committee. This is an important Bill, and it is right for it to be the subject of such vigorous and thorough debate in the House.

As is plain from the quality of the debate since the introduction of the Bill, these are challenging matters, and I respect the concern that we should get the balance between justice and security right. The changes in the global landscape present us with a number of complex problems that we cannot ignore. The concepts of justice, the rule of law and human rights are fundamental principles of which our nation has a rich heritage.

Having carefully examined our options, we believe that the Bill will enable us to tackle the problems that we face both justly and securely, but I accept what has been said by a number of Members today about some of those difficulties. The Chairman of the ISC, my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind), said that the Bill was not perfect, but was a great deal better than what we have at present. My hon. Friend the Member for South Swindon (Mr Buckland) said that we must start with the world in which we find ourselves, rather than the world that we might like it to be.

Those themes were underlined during the debate, along with other challenges that were mentioned by Members. I was struck by what was said by my hon. Friend the Member for Oxford West and Abingdon (Nicola Blackwood) about the changes that had been made in the Lords, and the impact that they had had on her impressions of the Bill. I was also struck by the comments made by my hon. Friend the Member for Wycombe (Steve Baker) about the need to ensure that liberty and justice were appropriately balanced. I can say to him very clearly that this is not about expediency but about how we can ensure that the difficult challenges of providing safety and security while reflecting justice are properly reflected in the changes made to the Bill. The same applies to the comments made by my hon. Friend the Member for Edinburgh West (Mike Crockart) and my right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes).

I recognise that some Members in the Chamber this afternoon are fundamentally opposed to the Bill in principle and do not accept that the provisions are balanced in the way that I have characterised them. The speeches from the hon. Member for Islington North (Jeremy Corbyn), my hon. Friend the Member for Dewsbury (Simon Reevell) and my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) underlined some of those themes. The situation we are in at the moment is not right, however, and does not meet many of the objections they proffered against the Bill. We believe that it will make an important improvement to the situation by ensuring that difficult cases, which cannot be heard at all because the evidence does not come within the ambit of the court or the public view, are put before a judge so that justice can be done.

The points made by the right hon. Member for Salford and Eccles (Hazel Blears), which were reflected in the speeches made by my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) and the right hon. Member for Blackburn (Mr Straw), underlined that if there is no adjudication, that is unsatisfactory for justice, particularly in the context of the cases that are settled in which there is a defence for the Government but the moneys have to be paid out. We judge the reputational risk that poses for the Government and, as my hon. Friend the Member for Ipswich (Ben Gummer) highlighted, for those individuals concerned in those particular cases to be significant.

We have seen significant changes over the past few decades in the evolving threat from terrorism. The UK faces a global terrorist threat from beyond our shores and our intelligence services are heavily committed to protecting our national security by tackling those threats. We are also now in a more litigious society and the combined effect has seen an increase in numbers of civil claims against the Government. The problem is that in these cases, the material the Government need to defend their case is often classified and cannot be disclosed to the court without compromising operations or risking the sensitive sources and techniques on which we rely to keep the people of this country safe. As the former Lord Chief Justice, Lord Woolf, said in Committee in the Lords,

“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.”—[Official Report, House of Lords, 11 July 2012; Vol. 738, c. 1189.]

The result is that at present the courts cannot rule in those cases, so the Government might be left with no option but to settle. That is why the Bill seeks to introduce the use of closed material procedures in a small number of cases that hinge on sensitive national security material.

Some hon. Members have suggested that the public interest immunity system is perfectly adequate to deal with national security matters. Let me be clear that the Government are not trying to abolish PII through this Bill: it will continue to exist and be used in certain contexts. Without the possibility of a closed material procedure, however, a very small number of cases that hinge on national security-sensitive information will not be able to reach a conclusion. When the very material that would determine a case would be excluded from PII, the case cannot be fairly concluded without a forum for it to be heard in. If it is central to the Government’s case, the case cannot proceed and the Government may have to settle. Vast sums of taxpayers’ money could be paid out as a result.

Some have argued that PII leads to more information being disclosed than would be the case under a CMP, but we do not accept that that is the case. The court can order the disclosure of material, notwithstanding the damage that would be caused to national security. But the Government then have the choice not to rely on that material, to make admissions or to seek to settle the case entirely. That means that such a damaging disclosure is never made. So, in practice, we believe that no evidence that can currently be heard in open court will be put into closed proceedings in future. Only evidence that would otherwise not see the light of day will be heard by a judge in closed proceedings.

There have been concerns that the claimant will be kept in the dark about accusations against them, though I hope it has been made clear through a number of contributions to today’s debate that that is not the case. It does no harm to restate that the Bill will introduce closed material procedures only in civil cases, not criminal cases, where the Government are the defendant, and claimants will have full knowledge of the allegations that they are making.

CMPs will allow the Government to defend their case and the claimant will have a special advocate working on their behalf, fighting their case. Moreover, it could well be that information that could be considered in a closed material procedure is of benefit to the claimant, and having the case heard using a closed material procedure does not guarantee that the Government will win.

[Mark Durkan]

Will the Minister address the implications of schedule 2 part 2 as it applies to Northern Ireland? That provides that where the court is of the opinion that there are or that there will be section 6 proceedings, a jury can be dismissed. If there is a jury trial, the jury can be dismissed, so it is not just a matter of select proceedings. The provision fundamentally alters the nature of the trial. What reputational damage does that do to the due character of the devolved justice system?

[James Brokenshire]

I am clear that, as we have said throughout the debate, the measure does not relate to criminal matters. It relates only to civil proceedings. If there are concerns, I look forward to robust scrutiny, debate and discussion in Committee. I know that hon. Members on both sides will make their points clearly. As right hon. and hon. Members who have previously served on Bill Committees with me know, I welcome all those contributions and we will respond to them.

The Lords indicated that closed material procedures are absolutely necessary and strongly rejected an amendment to remove the CMP clauses altogether. It is worth noting that the amendment was defeated by 164 votes to 24. Fair points have been made. The right hon. Member for Wythenshawe and Sale East (Paul Goggins) highlighted the issue of special advocates. We are working with the special advocates to establish where there may be further training needs, and on ways of dealing with some of the administrative issues and the processes involved. There are detailed points that we can return to in Committee. The right hon. Gentleman also highlighted the issue of inquests, a point that was touched on also by my right hon. Friend the Member for Haltemprice and Howden (Mr Davis). We have considered this, but believe that the current arrangements, with an inquiry being established, are still the appropriate way forward, but I look forward to further discussion on those matters.

I heard the points made from the Front Bench and more generally in relation to the part 1 provisions on oversight. We believe that the changes proposed in the Bill strengthen oversight. A good point was made that our intelligence agencies are better for the oversight. That view is reflected in all parts of the House, respecting and acknowledging the excellent work that they do for all of us in keeping our country safe. I look forward to further detailed discussions on those topics and on the memorandum of understanding that is being worked through with the Intelligence and Security Committee.

In relation to Norwich Pharmacal, I think that there is broad agreement across the House that the issue needs to be dealt with. Essentially, we are the only country that has this type of arrangement, which was created through jurisprudence established to deal with intellectual property cases, rather than national security cases, in which there is the ability to obtain information in that way, and that impacts on the willingness of our international partners to share intelligence information with us in respect of the control principle. Again, I look forward to discussing the matter further in Committee.

In conclusion, we strongly believe that the Bill is needed. Yes, there are difficult issues that need to be addressed, but when we look at justice and security we believe that justice is better served by ensuring that more cases are heard than are not heard. Essentially, the part 2 provisions are the fundamental issue at stake. Although I respect a number of important points that have been made this afternoon, that is the core of the issue. We believe that justice and security will be established through the Bill. Therefore, I commend the Bill to the House.

Question put, That the Bill be now read a Second time.