Justice and Security Bill [Lords]

Robert Buckland Excerpts

Tuesday 18th December 2012 Commons Chamber

[Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)]

It is interesting to follow the right hon. Member for Bermondsey and Old Southwark (Simon Hughes). He said that there was a lack of evidence to support the need for change, which was reminiscent of where the proposal for 90-day pre-charge detention fell down. I believe that part 2 of the Bill threatens to undermine the principle of natural justice that demands that parties to an action should be given access to the case they confront. The Bill is deeply contentious, but some vital amendments have been made by the other place and I think that they must be upheld as a bare minimum, although I am sure that I am not alone in wishing that certain elements of the Bill should be removed entirely. On my reading, even as amended the Bill could result in members of the public losing their cases against the state without ever having been told why, in the Government’s being allowed to hide evidence of wrongdoing, and in officials being given the power to exclude the other party from court proceedings. As Reprieve points out, that effectively means that they could place themselves beyond challenge and hence above the law.

Last week, we heard about the Finucane case. We were all heartily disgusted at what went on—the collusion between the police service and the security services. God forbid, but if such a thing happened again, I believe that the Bill would make it easier for the state to prevent a family from suing in such circumstances. Have we thought about that?

Part 2 also sets out the Government’s intention to remove the courts’ power to order someone who has been involved in wrongdoing to disclose information—the Norwich Pharmacal jurisdiction, which needs to be considered in Committee.

I shall restrict my remarks to the proposed extension of closed material procedure—known as “secret courts” in outside parlance—to all civil proceedings in clauses 6 to 13. Responding to those provisions, the president of the Law Society and the chairman of the Bar wrote to the Minister without Portfolio saying:

“CMPs…undermine the principle that public justice should be dispensed in public and will weaken fair trial guarantees and the principle of equality of arms. These are both essential elements of the rule of law.”

I might also add, as others have, that they undermine the principle that justice must be seen to be done.

We have heard what the Joint Committee on Human Rights has said. It has been vocal in its criticism of the legislation and has drawn attention to the

“troubling lack of evidence of any actual cases demonstrating the problem which the”

Government “asserts to exist.” At no point have the Government produced any known case that could not be tried under the current public interest immunity system, which I have seen operate over many years as a legal practitioner myself.

The special advocates memorandum says

“CMPs are inherently unfair and contrary to the common law tradition...the Government would have to show the most compelling reasons to justify their introduction...no such reasons have been advanced; and...in our view, none exists.”

It speaks volumes that the special advocates memorandum was so scathing about what the legislation purports to do; special advocates, of course, are better qualified to comment than anyone else. Among their concerns was the fact that the Bill as originally drafted required a judge to allow the Government’s application for a CMP if there was any material at all that could damage national security, even if the judge considered that the case could be fairly tried under the existing PII. The memorandum also makes the point that the decision on whether to trigger a CMP should lie with a judge and not the Secretary of State—an amendment to that effect has been carried and is most welcome; I hope that it will remain in the Bill.

Furthermore, under clause 6 as it originally stood, only the Government would have been able to apply for a CMP and not both parties. That is objectionable. The amendment on that is also welcome and I hope that it will be retained, although I am sure that the circumstances in which a plaintiff or claimant would apply would be limited.

I wish to refer to comments made by Lord Hodgson on Report in the other place. He said:

“I would like to see enshrined in the Bill a set of steps-hurdles…that the Government of the day will have to clear before they can resort to a CMP. The first is a requirement to go through the public interest immunity procedure, from which the judge can reach a balanced conclusion on whether the interests of national security require a closed court.”

In the same debate, Lord Pannick, a pre-eminent Queen’s Counsel, is recorded as arguing that

“a judge in an individual case should have a discretion, not a duty, to order a CMP.”—[Official Report, House of Lords, 21 November 2012; Vol. 740, c. 1812-14.]

I urge the Government to take heed of those arguments and to uphold the amendments carried in the other place.

Perhaps the most disturbing provision of all is in clause 7(1)(d), which provides that, if a CMP is triggered, a court is not required to give the excluded party a summary of the closed material. Rather, the Bill as drafted requires only that the court should “consider requiring” that such a summary be given. Clause 7(1)(e) provides that the court must ensure that where a summary is given it

“does not contain material the disclosure of which would be”

against

“the interests of national security.”

[Mr Robert Buckland (South Swindon) (Con)]

I am listening very carefully to the right hon. Gentleman. Is not the problem with his argument on clause 7 that there will be cases, if only perhaps a very few, where gisting will not be possible without revealing the essence of what needs to be secret? Therefore, is it not essential to retain some discretion for the court to “consider”, and does that not give more power to the judges?

[Mr Llwyd]

The hon. Gentleman has obviously thought about this, and he may well be right, but at the moment we are all looking into a rather dark room as we do not know what we are actually facing. What he says is quite logical, and I accept it, but I remain concerned.

--- Later in debate ---

[Mr Robert Buckland (South Swindon) (Con)]

It is a pleasure to follow my hon. Friend, and professional colleague, the Member for Dewsbury (Simon Reevell). I accept with alacrity what he says on the differing functions of PII and closed material proceedings, but information will be dealt with in closed material proceedings that could equally support the claimant’s case, just as there will be information that might undermine it. That is why it is important to support the amendment made in the other place to allow not just the defendant, such as the Government, but other parties, including the claimant, to make an application for the use of closed material proceedings.

Like my hon. Friend, I have spent many years in the criminal courts. I have, I suppose, been dealing with human rights; that was my stock in trade as a barrister prior to my election to this place. We did not really use the words “human rights”; every day we did a job of dealing with the liberty of the individual and the power of the state when it came to imprisoning and dealing with individuals who may have committed criminal offences. It was my life, my bread and butter, and my stock in trade.

It is difficult for me to accept any departure from the principles of open justice. I never liked being confronted with public interest immunity applications, whether I made them on behalf of the Crown or in relation to third party disclosure, or whether I found out about them later because I was not party to the application. These principles do not sit well with me. However, I learned a long time ago that politics has to start from the world as we find it, not necessarily the world as we would like it to be. No matter how idealistic I may be and how important certain principles are to me and many other Members, the realities of international politics and security will often conflict with some of the principles that I hold so dear.

The scenario that the Bill seeks to deal with represents one such conflict. In an ever-changing world, one certainty endures. We have more and more information sharing and the world is ever more interconnected, so greater and greater challenges to our national security are posed every day. We also live in an age when decisions of the state itself are rightly called into question. As a result of those proper questions being asked, we are seeing a rise in civil litigation mounted against the state by individuals who claim grievance.

All those factors mean that a challenge has arisen. Given the information provided by the Government and my understanding of the situation, the problem is not going away any time soon—in fact, it is going to get worse. The Government cannot hide behind inactivity when looking at that challenge; only last week, we saw a further settlement of a civil claim, in this case by the Libyan dissident Mr al-Saadi. That is but the latest manifestation of an issue that is causing real concern not only to the Government and security services but to those who risk their lives for this country and to the public at large who are rightly worried that millions of pounds of their money—our money—is paid over for reasons to which they and we will never be privy in any real sense.

[Simon Reevell]

Does my hon. Friend accept that a good way to avoid having to make payouts to Libyan dissidents would be not to be involved in kidnapping them and shipping them and their families back to Libya to be tortured?

[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.