Justice and Security Bill [HL]

Marquess of Lothian Excerpts

Tuesday 17th July 2012 Lords Chamber

[The Marquess of Lothian]

My Lords, I have very mixed feelings about this amendment. I said in my speech at Second Reading that national security should not be so widely interpreted as to give cover for embarrassment or incompetence. I am sure that is absolutely correct. Indeed, my noble friend Lord Hodgson made that point. However, I am very worried when we begin to interpret something such as national security in terms of specific operations or departments. In passing, I make the point that the Diplomatic Service may do many things overseas that affect national security. Many embassies that I have been to have protected rooms where such matters can be discussed. It would be naive to say that because they were done by the Diplomatic Service and not the intelligence service, those matters were not, in the terms of the Bill, ones of national security.

I do not have an answer. All I can say is that you know national security when you see it. The difficulty of looking at this in terms of legislation is that you cannot see it. To give one example, we debated earlier the activities of the Intelligence and Security Committee and the process of redactions. When a suggestion to redact is made by the Prime Minister, it has to be on the basis of national security. There have been cases in which the committee has argued that national security was not affected. In the course of a practical argument you can come to an answer about what is national security and what is not. This does not help the Minister on the Front Bench. However, I feel it is somehow better to leave the definition more open and allow it to be interpreted in the context of the individual circumstances of each event than to curtail it within the definition of the activities of various departments. In the end, we might find that we are throwing the baby out with the bathwater if we proceed in that way.

[The Earl of Erroll]

My Lords, I shall make a couple of topical points in support of the noble Lord, Lord Deben. This is very complex. In the old days, in a less complex world, we knew how to finesse these things in a common-law society. Now we are moving towards statute law. The French know how to disobey the law sensibly in view of local circumstances. They know that you cannot slavishly obey every rule. We have not learnt that yet, so we should be very careful about how we set the rules in case they are slavishly obeyed. Somehow blurring the boundaries is much more sensible. I am not sure that having this whole thing of national security quite works. We have seen photographers being stopped for photographing perfectly innocent targets in the name of national security. I am very worried about the way that certain people will use these rules to stop normal activities. We regard ourselves as a free country but, if we are not careful, we might cease to be free. We have to worry about how other people, less sensible than us, may interpret rules in a very strict way in the future.

--- Later in debate ---

[Lord Beecham]

My Lords, the noble Lord, Lord Hodgson, is too modest in proclaiming that this is a simple amendment, since it goes to the heart of the whole principle of Part 2 of the Bill, which changes—potentially fundamentally—the approach to the operation of civil justice, though not of course criminal justice, in the provision of a system permitting, in circumstances that we are debating, material to be kept from one of the parties and utilised under the closed material procedures.

It is worth reminding ourselves of some of the concerns that have been expressed. I am particularly interested in the briefing submitted by the Northern Ireland Human Rights Commission, as it comes from a part of the country that has confronted security issues to a very considerable degree and has suffered considerable harm over the past few decades from activities that all of us would deplore and which would probably come within the compass of any definition of national security.

Nevertheless, the Northern Ireland Human Rights Commission in considering the Bill proclaimed that it was,

“regrettable that despite some modifications to the proposals in the Green Paper, and the declaration under clause 11 … of the Bill”,

concerning these matters, there remain,

“the risks to the right to a fair trial under Article 6”,

of the European Convention on Human Rights, and Article 14. The commission goes on to say—and this matter was referred to in Second Reading—that the Government have,

“yet to make an evidence based case as to how the current Public Interest Immunity provisions have failed to protect national security interests and therefore why a system of CMPs is needed at all”.

The commission affirms that it would appear that the Government are,

“prepared to sacrifice fair trial protections and wait for litigation to be brought by those alleging”,

a breach of Article 6,

“rather than ensure adequate protection from the outset”.

It advises that,

“the proposals are not likely to satisfy the requirements of Article 6 … in a significant number of cases”.

That is a fairly trenchant critique of the proposals. The commission concludes that the Government have,

“failed to demonstrate the need for the Bill’s provisions … The move from evoking a CMP on public interest grounds to national security grounds has been reported as an acceptable narrowing of the original proposals. Human rights law accepts national security as grounds for qualifying rights. However, NIHRC expresses concern that ‘national security’ remains a broad term that might still be relied on too readily by Government and in a manner that is not consistent with its human rights obligations”.

The briefing refers, as the noble Baroness, Lady Manningham-Buller, referred, to the national security strategy, with its references to pandemic diseases and,

“natural hazards along with increases in organised crime are listed as threats to national security”.

It concludes that the Government are,

“yet to be sufficiently definitive about what it means by national security for the purposes of requiring a court to permit a CMP in a civil case. The risk is that what is now claimed to be a ‘fix’ for a limited number of civil cases”—

and that is the Government’s case; the extent to which it is likely to be limited to very few cases is supported by Mr Anderson—

“becomes a ‘fix’ increasingly relied on by Government to obstruct scrutiny and attempts to seek redress”.

The commission’s are not the only concerns that have been expressed about the issue of definition. In evidence from the special advocate to the Select Committee, Mr McCullough stated that,

“there is the possibility that national security could be very broadly defined, unless some reassurance as to its scope were given. On one view at least, anything, or almost anything, involving international relations might be argued, and one could envisage being argued by the Government, as to have an impact on national security”.

Of course, as has already been indicated, it is not really possible to be definitive about what constitutes national security and what does not. It would be impossible to be conclusive because, as noble Lords have indicated, circumstances change and threats change, and it would be foolish to prescribe a definitive list. The noble Marquess, Lord Lothian, said of national security that you know it when you see it. The question is, in these circumstances, who is “you”? The Government may take a view; others may take a different view. Although these matters are difficult, we have to try to evolve a system that will give some guidance to those who operate the system and, indeed, those who may ultimately have to form a judicial position on individual cases.

[The Marquess of Lothian]

My Lords, Clause 6(2) states:

“The court must, on an application … make such a declaration if the court considers that … such a disclosure would be damaging to the interests of national security”.

My point is that, in order for the court to be able to make that decision, that court procedure is the time when you can actually “know it when you see it”. There may be arguments on both sides but the court has to resolve that. We, at the moment, are arguing that in a vacuum the court will have to decide it according to the particular circumstances.