Justice and Security Bill [Lords]

Robert Neill Excerpts

Tuesday 18th December 2012 Commons Chamber

[Robert Neill (Bromley and Chislehurst) (Con)]

rose—

[Mr Clarke]

I shall give way one last time, and then I must press on to the JCHR’s amendments.

[Robert Neill]

Does my right hon. and learned Friend agree that although the proposed system is not perfect and never can be in litigation, it is surely preferable to have that than a system where an ex parte application for PII can be made without the defendant having any notice of any kind and without anybody, not even a special advocate, being able to test the material?

[Mr Clarke]

The time has come for reform. The present system is not defensible, in my opinion, and my hon. Friend confirms that all kinds of features of PII are hopelessly unsatisfactory. We have to deal with them.

Let me move on—

--- Later in debate ---

[Robert Neill (Bromley and Chislehurst) (Con)]

It is a pleasure to follow the hon. Member for Edinburgh West (Mike Crockart). I seem to remember studying some of the judgments of Justice Learned Hand myself when I was doing my jurisprudence course at the London School of Economics. I knew they would come in handy one day.

I was much impressed with the speech of my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips), and I agreed with him entirely. He put it more elegantly than I could—that is why he is a Queen’s counsel and I am not. I also rather agreed with my hon. Friend the Member for South Swindon (Mr Buckland).

I want to concentrate on part 2 of the Bill, because it relates to the area in which I have been interested as a lawyer. It seems to me that we should not allow the best to become the enemy of the good. The best, of course, is open hearings in court with the normal, full process. However, in a limited number of cases there are particular circumstances, which my hon. Friend the Member for South Swindon rehearsed well, in which it is necessary to have a different procedure.

With respect to my hon. Friend the Member for Dewsbury (Simon Reevell), who is not in his place at the moment, I do not accept the proposition that the Bill will be used to prevent people from bringing claims. Nothing that is currently available in open court will become secret as a consequence of it.

[John McDonnell]

Let me give the hon. Gentleman an example of how the argument about security is used—the Shrewsbury 24, the pickets who were imprisoned 40 years ago. When they sought the information upon which they were arrested and prosecuted by the Government, the letter sent back from the Secretary of State for Justice told them that a “security blanket” had been wrapped around that information, so the records would not be published on the grounds of national security. Is that the sort of issue that the Bill should cover?

[Robert Neill]

With respect, it seems to me that at the moment public interest immunity would be invoked in such a case, possibly by an ex parte application, without any notice to the claimant. I fail to see how that would assist people in such a situation. It is better at least to have the opportunity for any relevant and admissible material to be considered, albeit through the less than perfect closed material process.

In my 25 years at the Bar, I predominantly practised in the criminal jurisdiction, and it is right that the Government are not seeking to apply the closed material procedure to that jurisdiction. When I started, public interest immunity criminal cases were a little-developed area, and the jurisprudence grew as time went on to reflect, as other Members have said, the changing demands placed upon the courts system and the nature of how intelligence operations were conducted. The jurisprudence moved flexibly to reflect that, and the same is occurring in the Bill.

I know two things from my experience of the use of PII in criminal cases. First, the judges took extremely seriously their responsibilities in relation to PII applications, including their duty to review the material and their initial rulings. I have no reason whatever to doubt that the same judicial meticulousness will be applied to the closed material procedure in civil cases. It is right that there should be safeguards, which I think are broadly accepted and will be taken forward. I, too, am pleased that the discretion allowed for in clause 6 is widened by the use of the word “may”. I agree with my hon. Friend the Member for South Swindon that that is adequate, and I urge my hon. Friend the Minister to resist the temptation to refine the definition further by including certain factors in the Bill. The risk of that would be that jurisprudence would grow up around the definition of those factors, and case law would eventually erode the jurisdiction and make it worse than simply using the word “may”.

The second point that strikes me from my experience at the Bar is that, as has been observed, it is not always the individual who is the loser as the result of a PII application. I believe the same will apply to the closed material procedure. I remember, in a criminal case, invoking not PII but the court’s inherent jurisdiction to sit in camera. Part of the mitigation that I needed to advance on my client’s behalf related to his activities in relation to reputable freedom movements in the Soviet bloc. I could not advance that mitigation in open court, because the consul of the Communist-controlled country was represented in court and was sitting in the gallery, and there would have been serious consequences for my client and his family. Mr Justice Steyn—later Lord Steyn; a very eminent judge—acceded to the application, and important material in my client’s favour was put before the court. Again, the point is that the material could be ventilated, and it is better in a civil case that that is done through the closed material procedure than were it not ventilated at all. That is why we should not allow the best—an open procedure—to become the enemy of the good, or CMP, which is an improvement in civil cases on existing PII arrangements.

There is general consensus about the importance of removing the Norwich Pharmacal jurisdiction from such cases. We have to be realistic and concede that although many meritorious claims are brought against Government and Government agencies, many unmeritorious claims are brought in the courts. There is, as the right hon. Member for Salford and Eccles (Hazel Blears) suggested, a growing tendency for jurisdiction shopping in relation to the Norwich Pharmacal jurisdiction, which has moved away from its original purpose in intellectual property cases to cases of this kind. It is not right that we should allow that to be abused in these cases.

Similarly, it is not right that the British taxpayer should pay millions of pounds when it is not possible to resist a claim in cases where, if the material were considered by the judge under the closed material procedure, it might be discredited. In the criminal jurisdiction, the choice facing the prosecutor is either to disclose material if ordered to do so or not to continue with the case. We have a tradition in this country of respecting assurances that have to be given in the interests of furthering justice. We have discussed that in relation to the assurances that we give the security services of our allies abroad.

We already do so in a different way in criminal cases in relation to informers, and have done so on more than one occasion. It is distasteful but necessary that we sometimes employ informers so that wrongdoers can be brought to book, and it is important that they are given assurances by the police that their anonymity will be protected. In certain circumstances, rather than disclose someone’s identity, I and other prosecuting barristers would offer no evidence so as not to put the informer’s identity at risk. Otherwise not only are they at risk, and not only is an undertaking breached, but there is a risk that other people will be less willing to come forward and provide information that might be helpful. The same applies even more strongly to assurances given in relation to our national security. I do not think that we should worry about that, subject to the proper safeguards.

In conclusion, it is important to stress again that we are not discussing secret courts. Yes, it is a less than satisfactory process, but ultimately it is one part of the process: the rest is an open process, and the hearing of the claim, as my hon. Friend the Member for South Swindon set out, remains in the public domain. A number of hon. Members have cited Lord Kerr and the al-Rawi case, but to balance Lord Kerr’s judgment it is worth quoting the judgment of Lord Clarke, who took a different view:

“A closed procedure might also be necessary in a case in which…the non-state party…wishes to rely upon the material which would otherwise be subject to PII in order to defend itself in some way against the state. In such a case either party might seek an order for such a procedure based on necessity, namely that such a procedure would be necessary in order to permit a fair trial.”

That is a balanced statement on what is proposed in the Bill. I agree with Lord Clarke, and it seems to me that Mr Justice Ouseley, in the AHK case, made a similar proposition.

When he responds to the debate, I hope the Minister will take on board some of the legitimate concerns that have been raised. I shall support the Bill on Second Reading and we can examine the detail in Committee. We should not, however, allow ourselves to retreat from a necessary—albeit not always desirable—step in this class of case, and allow the best to become the enemy of the good. I therefore hope that the Bill will commend itself to the House.