Justice and Security Bill [Lords]

Pete Wishart Excerpts

Tuesday 18th December 2012 Commons Chamber

[Mr Clarke]

It sounds as though it could be criminal action in that case, which the provision would not apply to. It would be for the judge to decide whether what is being protected is embarrassment for the Government or national security and the interests of the nation. We can all start dreaming up—I did it myself a moment ago—fanciful cases where such a situation might arise. The judge would have to decide whether national security was at risk. It is a two-stage process, which I will not argue at length today, but what happens is that the judge can allow the closed material proceeding. At the end of the closed material proceeding he can revoke it, he can say that the proceedings should be gisted, he can say that the documents should all go in, but perhaps redacted in key places. There is wide discretion before he goes back to the open session. If a Government at some time want a closed hearing, they will get it only if they can satisfy the judge that national security is at risk.

[Pete Wishart (Perth and North Perthshire) (SNP)]

The right hon. and learned Gentleman will have seen the strongly worded letter from the Cabinet Secretary for Justice in the Scottish Government outlining his serious concerns about the Bill. The Scottish Government have made it clear that they want nothing to do with it as it applies to their jurisdiction. Will the Minister ensure that he respects their position?

[Mr Clarke]

Constitutionally, I will respect the Scottish Government’s position. If they think that Scots are not ready for decisions in these cases and wish everything to remain shrouded in secrecy and mystery, so be it. That is a matter for the Scottish Government. It seems to me that would be the result if they will not move with what I think is the obvious response to the needs of recent cases.

To return to the detailed amendments, let me explain where my reservations come from. The House of Lords decided to get carried away with the discretion. I have already accepted the widest discretion, but they then wanted to start setting out in the legislation factors that the judge ought to take into account. We are considering that, and I can assure Members that there will be a response in Committee. The Lords obviously do not trust judges as much as I do, because they wish to start setting out factors. However, if we set out factors in the legislation, they must be the right ones. If they are not, they can give rise to other problems.

For example, some of the amendments made in the House of Lords—I am leaving aside whether some of them are necessary—would require the judge to consider and exhaust alternatives to closed material proceedings in every case in order to prove that the case could not be tried in any other way. It sounds attractive, but in some cases it would be obvious to the judge from the start that a closed material procedure was necessary. As the independent reviewer of terrorism litigation, David Anderson, explained to the Joint Committee on Human Rights,

“there is no point in banging your head against a brick wall… if the exercise is plainly going to be futile.”

In the Guantanamo Bay cases, which provoked the need to address the law and bring forward this reform, the court would have had to consider about a quarter of a million documents before determining the PII application and moving to a CMP. It would have had to consider a quarter of a million documents before moving beyond a preliminary issue. When I was Home Secretary I certainly issued PII certificates for intelligence material. In the arms to Iraq inquiry, I am glad to say that the judge confirmed that I had done what I was supposed to do: I had read every document—they were brought to me in boxes and put on the floor and required a whole day to consider. The Guantanamo cases would have required a full-time Minister to do nothing but wade through the PII certificates for months and months before the application could be made and further progress could take place. In some cases, the delay of going through that process could have detrimental impacts on other people affected by the issues in the case awaiting judgment.

Equally, all parties might consent to a closed material procedure. If they consent, should the judge still be required to go through the time-consuming PII process? In the Maya Evans case, all parties consented to a closed material procedure as the only way to try the issues. The ruling in that judicial review case, which was with special advocates, changed Government policy on detentions in Afghanistan, directly affecting ongoing Government actions. Delays in that case to consider alternatives to closed material procedures could have meant that more individuals were exposed abroad to a policy that the court ultimately concluded was unlawful.

I will give an indication of why I will not give a blanket assurance that we will accept all the House of Lords amendments. I do not think that the problems were properly considered, and we will bring forward the products of our thinking in Committee. As I have said, we continue to debate the powers the judge should have once a closed material procedure has been granted. Under the Bill, the court will have strong powers to require gisting, redaction and summaries. In particular, the Bill sets out—it is probably unnecessary—that to ensure a fair trial under article 6 of the European convention on human rights, the court can order disclosure of material notwithstanding the damage that would be caused to national security. In that situation, in order to disclose, the Government would have the opportunity, as they currently do under PII, to seek to bring an end to proceedings, or an aspect of proceedings, in order to avoid damage to national security. If the Government do not disclose material or elect not to provide a summary of material, the court can order the Government not to rely on it or to make concession or such other steps as the court might require.

In brief, the Bill leaves it to the judge to decide what is necessary in any particular case, rather than seeking to impose disclosure requirements or to fetter the judge’s discretion in deciding whether to have a closed material procedure. I think that we should reflect on that in Committee. Let us not go into Committee with everyone saying, “What the Joint Committee on Human Rights has said is necessarily right and we will support the Bill so long as we sign up to that.” I think that some of the JCHR amendments raise serious issues that should be debated properly in this House and which the Government must be allowed to exercise their judgment on before reaching a final decision.