Justice and Security Bill [Lords]

Paul Goggins Excerpts

Monday 4th March 2013 Commons Chamber

[Mr Davis]

I do not dispute any of that; that is where I am coming to with respect to the attitude of the special advocates. Clearly, of the two they do not like CMPs, for reasons on which I am about to elaborate. That means not that CMPs should be impossible to use, but that restriction should be the order of the day.

The best outline of the weakness of closed material procedures came from Lord Justice Kerr, who effectively said—I am now desperately paraphrasing—that unchallenged evidence can be “misleading”, which was the word he used. That came up any number of times during the Lords debate from a number of lawyers. Helena Kennedy, for example, cited a case in which a tape recording of a conversation that appeared to incriminate a defendant was played in court. When the defendant heard it, he said, “I’m sorry, but I left after about five minutes.” People listened carefully and could hear the door opening and closing as he went. So a piece of evidence that appeared to be incredibly incriminating became not incriminating at all. David Anderson put a similar point to the Lords Committee when he was giving evidence.

The issue of challenge is important; it is critical to our judicial process—completely different from any other judicial process around the world. The challenge is vital. Without it, the judicial process is not operating properly. That is why we have to take on board what the special advocates say and effectively build it into the structure of the Bill—to create, as it were, a hierarchy. We have to go through that thought process.

I am cognisant of the point made by the Minister without Portfolio. We do not want a Minister to be pinned down for a year working on one PII. I am sure—indeed, I know from experience—that some of the Guantanamo cases are incredibly complicated and involve very many documents. I do not think it is beyond the ken of the House to achieve that.

I will support the Opposition’s amendment today, although I am open to argument if we can find better wording to get what we are trying for. I am talking about a hierarchy, a priority—first, open hearings; then the PII process, if that is appropriate; if it is not, CMPs in the final analysis. I agree with my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind) that the process should be more open than it currently is.

[Paul Goggins (Wythenshawe and Sale East) (Lab)]

The right hon. Gentleman is making a characteristically interesting speech. He has referred several times to a hierarchy in relation to openness, in which he places PII above closed material procedure. I am sure that the House would be interested to know his rationale.

[Mr Davis]

All right, let me give the right hon. Gentleman an example. The question is whether or not there can be a challenge; if the evidence can be in court, it should be capable of being challenged. There is an example that goes back to 2006 relating to the current CMPs used in the Special Immigration Appeals Commission. I shall read from the Press Association release:

“A judge in a secret hearing has criticised the Home Office over contradictory MI5 intelligence in the trial of two terrorism suspects. The intelligence only came to light because—by chance—the same barrister was acting in both cases.

Mr Justice Newman said the ‘administration of justice’ had been put at risk in the trial of Algerian Abu Doha and a suspect known as MK…Both sets of contradictory evidence had come from MI5.”

There had been a false passport that was claimed to have been used by two different people in two different places at the same moment on the same day—clearly impossible. That became apparent only because the same barrister was acting as a special advocate in each case. The problem is that there was no process of challenge; if there had been, the contention would have been denied and struck out. As it was, both cases were struck down because they were clearly implausible. The process of challenge is vital.

For that reason, I am entirely with what the Joint Committee on Human Rights wants—gisting, if it is possible.

[Paul Goggins]

rose—

[Mr George Howarth]

rose—

--- Later in debate ---

[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.

[Mr Winnick]

My right hon. Friend talked about a consensus in this House. I hope there will be the maximum amount of opposition to the proposals. Does he dismiss out of hand the number of people—distinguished lawyers who cannot be lumped together as hopeless liberals and so on—who believe that the proposals, which will no doubt be carried, erode the rule of law? We should be very concerned about what is happening.

[Paul Goggins]

My hon. Friend knows me well enough to know that I do not dismiss critics of the Bill. I listen to them carefully; I just happen to disagree with them. The same applies to my hon. Friend: I listen carefully to what he says on this issue. Sometimes we agree and sometimes we disagree, and I sense that we will disagree on this. I am making a plea for further attempts to achieve consensus, but I am making it clear that if there is no consensus then I think that my right hon. Friend the Member for Tooting is setting the bar too high.

On inquests, I am sorry that the Minister did not take an intervention from me earlier. I would be delighted to take an intervention from him at any stage in the next couple of minutes. I am grateful to Members who supported my amendment 70, which would make closed material proceedings available for inquests as well as civil proceedings. We just need an explanation from the Minister on why the Bill proposes CMPs for civil cases, but does not propose them for inquests. That was in the original plan. He knows that senior members of the Government and senior judges think it is nonsense and inconsistent to have one and not the other.

[Mr Kenneth Clarke]

I think we have had this exchange before. The explanation is simple. The Government were faced, in Parliament and from all the lobbies, with overwhelming opposition to extending CMPs to inquests. We have said throughout today’s proceedings that we have been trying to concede as far as possible, and that if people did not want to trust coroners with these powers and the ability to take into account this information, we decided it was impossible to maintain it, particularly after recent controversy regarding coroners and inquests. All kinds of unlikely organisations were seen to be believing that we were closing down inquests, getting rid of juries and so on, so I am afraid that we took the line of least resistance. The result is that total secrecy and silence will continue to be the case in inquests whenever national security is involved.

[Paul Goggins]

The purpose of tabling amendment 70 —again, I am grateful for the support of hon. Members—was not that I thought I would win the day. Clearly, the Minister is not going to support it. I tabled the amendment to encourage him, the Under-Secretary of State for the Home Department, the hon. Member for Old Bexley and Sidcup (James Brokenshire) who is sitting next to him and anybody else who is listening. This issue will come back and either his Government or preferably a Government that I support, will have to deal with it.

[Mr Straw]

I am sure that my right hon. Friend is aware that the idea of having closed material proceedings was not just the policy of the previous Labour Government. Proposals were introduced, but sadly they were blocked in the other place.

[Paul Goggins]

My right hon. Friend is absolutely right. If CMPs are to be available in civil proceedings, they should certainly be available in inquests. There are difficulties concerning families and bereaved relatives, but in the end this about a search for the truth. If there is information and intelligence that reveals the cause of a death, the coroner should know it, even if it has to be kept as secret intelligence.

The Minister himself made the perfect argument today. He went on the radio at lunchtime and made the argument about the limitations of having to have just PII, rather than CMPs. What was the example he gave? The Litvinenko inquest. There are more than 30 historic inquests in Northern Ireland waiting to be resolved. Whether the deaths involved the Army or the police, all of those issues will be there. There will other inquests in future that will bring national security issues into play.

[Mr Kenneth Clarke]

The right hon. Gentleman has been very patient in listening to the whole debate. All the people who are more liberal than we are and who are denouncing CMPs, are defending the existing law. What is at the moment in controversy at the Litvinenko inquest is that what they are saying is superior to admitting the evidence and having it heard and determined by the judge. One has to bring in the present inquests or inquests will never have this material, because such a fantastic volume of opposition was excited by the proposal when we first put it forward.

[Paul Goggins]

I accept that the Minister felt under enormous pressure to make that concession. Anybody who doubts the minds of coroners and senior judges in relation to the test that will be applied need only look at the coroner in the Litvinenko inquest, Sir Robert Owen, and the comments he made last week. He said clearly:

“I intend to conduct this inquest with the greatest degree of openness and transparency”—

and that he would give the Foreign Secretary’s request for a PII certificate—

“the most stringent and critical examination”.

We ought to trust the coroner and the judges.

In the end, the search for justice is a search for the truth. A secret court is one where information and intelligence is either not considered at all, or where the Government and their agencies cave in and make a settlement where no case has been heard—that is secret justice. Closed material proceedings are not perfection, but we are not dealing with perfection; we are dealing with a difficult issue in a small number of cases. However, we are more likely to get closer to the truth if the judge has seen the relevant information than if nobody has seen it at all.

[Mr Brazier]

This has been a high quality debate, starting with a typically rigorous speech by the Minister without Portfolio. It has been particularly noticeable that, while there have been strong speeches on both sides, all three Members who have had responsibility for this matter—the right hon. Member for Salford and Eccles (Hazel Blears), the right hon. Member for Blackburn (Mr Straw) and my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind), who made an outstanding contribution—took the view that we have to have this kind of legislation, and that the amendments would not be helpful. I want to put forward a couple of underlying reasons why I believe firmly that we need the Bill and that the amendments—some of them, anyway—would wreck it, and then delve a little into the historical background. I am concerned that the civil liberties lobby is just a little bit too free in its claims about British judicial traditions.

The one voice that does not seem to have been heard anywhere in the debate is that of the intelligence service. Baroness Manningham-Buller said:

“At the moment there is no justice at all in civil cases where individuals sue the Government for compensation, claiming, say, mistreatment or complicity in torture. Because the secret material held by the authorities cannot be used in court, the Government is forced to settle without a judge examining the merits of the claim. This is immensely damaging”—

immensely damaging—

“to the reputation of the Government and the intelligence and security agencies which cannot defend themselves; to the taxpayer who has increasingly to stump up millions in compensation; and perhaps most importantly of all to the claimants who, while they may receive large cash settlements, do not get their cases heard and judgment reached.”

I have a further concern. A friend of mine, former SAS officer Colonel Richard Williams, who has allowed me to quote his name in the press, has recently been attacked in one of our newspapers with allegations of brutality. The allegations are lies from beginning to end. Bizarrely, they start with the claim that he is being investigated for wrongdoing in Iraq. As he has never been investigated in any shape or form, that is a lie before we even get into the specific allegations. But let us suppose just for a moment that somebody was to turn those allegations into a court case. The circumstances of the operation concerned in the allegations involve some extremely secret material—where the tip-offs came from, modus operandi and so on. Now, it is quite possible that this man, who has been decorated for gallantry and leadership twice and badly wounded—indeed, he had another operation for his wounds only last year—could find himself facing a court case while being extremely reluctant to use certain material in his own defence, because no procedure is available under which he could do so without the risk of breaching secrecy.