Justice and Security Bill [Lords]

Simon Hughes Excerpts

Monday 4th March 2013 Commons Chamber

[Sadiq Khan]

May I adopt the Minister’s arguments in support of our sunset clause, which we will be debating later? He cannot predict the number of cases, which is why we think a sunset clause is appropriate.

[Simon Hughes (Bermondsey and Old Southwark) (LD)]

Will the right hon. Gentleman give way?

[Sadiq Khan]

Briefly, because I actually want to start my speech.

[Simon Hughes]

Does the right hon. Gentleman mean a sunset clause or does he mean a renewal order, which is a different thing?

[Sadiq Khan]

I mean the latter, and we will discuss that after the votes at 8 pm, when my colleague will be dealing with those things. However, the right hon. Gentleman is right to remind the House of the difference between the two measures.

Our conditions are set out in the amendments standing in my name and those of my hon. Friend the Member for Hammersmith (Mr Slaughter), the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) and the hon. Member for Moray (Angus Robertson). Labour’s position has been consistent on this matter since the publication of the draft Bill. We said that the legislation was drafted in such a way that there were too few safeguards in place on the use of CMPs. Safeguards are crucial because CMPs are alien to our tradition of open and fair justice, where justice is not only done, but is seen to be done. Any proceedings held in secret are a major departure from that. Given the exceptional and aberrant nature of CMPs, their use should be clearly constrained. That has been our position and remains so now: consistent and clear, balanced and proportionate. The Lords delivered a strong and clear verdict on the Bill last November.

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[Sadiq Khan]

That is a curious intervention. I am trying to be nice to the hon. Gentleman because I want his vote, so I will not respond in the way his intervention deserves. Instead, I will remind him and the House of what he said in Committee. In response to what was then Government amendment 55, which undid some of the House of Lords improvements, he said:

“I accept that the Minister’s case will be bolstered significantly if the Joint Committee on Human Rights agrees with what he is saying, but”—

this was his advice to the Minister—

“he should reflect carefully on what he will do if that Committee, having looked at the amendments he is proposing and the state of the Bill when that Committee publishes a report, disagrees with him.”

He went on to say:

“I will, further, support any other amendments that take us in the direction of improved safeguards and towards the direction of the Joint Committee on Human Rights”.––[Official Report, Justice and Security Public Bill Committee, 5 February 2013; c. 195.]

I hope the hon. Gentleman and his colleagues will support us and have the courage to vote for our amendments, which reflect the positions taken by Liberal Democrat MPs in Committee and Liberal Democrat peers in the House of Lords. Any other position would be a tragic betrayal of their liberal instincts.

[Simon Hughes]

I want to make it clear to the right hon. Gentleman that my predecessor on the Joint Committee on Human Rights, my hon. Friend the Member for Edinburgh West (Mike Crockart), and I have worked to make a case to push the Government forward. I will support, on all issues, exactly the position taken by the Joint Committee, which says that the Government have moved forward, made progress and improved the Bill, but that more work is to be done.

[Sadiq Khan]

I thank the right hon. Gentleman for that clarity, which shows the advantages of being nice to Liberal Democrats. In case any of his colleagues have any doubt about the advice given, I have the report with me and will remind them of what the Joint Committee said just last week on the Government’s manoeuvres upstairs in Committee.

Given that in Committee the Minister unpicked the Lords changes to the Bill, amendments 26 to 40 are designed to emulate the same improvements as were made in the other place. Our amendments seek to put in place appropriate checks and balances on the use of CMPs. We do not underestimate the difficulties in reconciling the issues of justice and security as contained in the Bill’s title, but this is difficult and not impossible. By putting appropriate measures in place, we believe that the use of CMPs could be made proportionate to the scale of the problem they are intended to address. As has been said, our position is backed by the Joint Committee on Human Rights, whose most recent report systematically goes through the changes made in Committee by the Government and is consistent with the Government’s independent reviewer of terrorism legislation and with the views of the House of Lords.

So here we are once again, trying at a late stage in proceedings to bring some balance to the proposals in front of us. Our amendments address four main areas: judicial balancing both outside and inside proceedings, the use of CMPs as a last resort and equality of arms. I shall deal first with judicial balancing.

We have consistently agreed with David Anderson when he said that

“the decision to trigger a CMP must be for the court, not the Government.”

The original bill, as published, included no substantial role for the judge. I accept that this has been moved on since then, but some of the progress made in the other place has now been undone. Despite claims to the contrary, the Bill does not give a judge the proper discretion to decide between whether to hold proceedings in the open or to move proceedings behind closed doors. The Government chose to remove the Lords amendments that put in place a proper judicial balancing of these competing interests—the so-called Wiley balance.

Last week’s report from the Joint Committee on Human Rights is very powerful on this issue. I pay tribute to the Chair of the Committee, my hon. Friend the Member for Aberavon (Dr Francis), for all its hard work on this. In its report—Liberal Democrat colleagues will be keen to hear this—the Committee says that

“there is nothing in the Government’s revised clause 6 which replaces it with anything requiring the court to balance the degree of harm to the interests of national security on the one hand against the public interest in the fair and open administration of justice on the other.”

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[Dr Huppert]

It is a pleasure to follow the right hon. Member for Blackburn (Mr Straw). Although I am not sure that we agree on everything, I think we do on some things. There have been some interesting discussions between Front and Back Benchers.

I want to focus on some of the amendments. I am pleased to see the recommendations of the Joint Committee on Human Rights, which I used to have the pleasure of serving on. I pushed a number of those proposals during the Bill’s Committee stage and we had interesting debates and votes on a range of things. I do not plan to go through every single aspect, because we rehearsed them thoroughly. I am delighted to see that a number of the amendments that I tabled and supported in Committee have come back.

I hope that the Minister will clarify the position on habeas corpus. Indeed, I would be happy to take an intervention from him, because it is a very important issue. I was happy with his clear answer of no. If he can stick to that, it would be fantastic; if not, we should be clear.

I welcome some of the Government’s good amendments. One that has not really been mentioned—it was tabled in the Lords and accepted by the Government—is that which changes “must” to “may”, allowing discretion to the judge, rather than the Minister. That is very welcome and has made a significant improvement. I am pleased that the Government have stuck to it.

I am also pleased that the Government have agreed to amendments on equality of arms to achieve true symmetry. They were recommended by the JCHR and I spoke to them at great length in the Bill Committee. We lost the vote, but I am glad that the Government have now come around to them. Symmetry is important, because one can think of a number of examples where an ex-employee of MI6 may not be able to raise publicly a document that is important to a case that they may wish to bring. In such circumstances, they may wish to have a CMP themselves so that the document can be debated without putting other things at risk. Such cases may be relatively rare, but ensuring pure symmetrical equality is absolutely the right thing to do.

I am also pleased to see reinstated, at least in the text of the Bill, the role of public interest immunity. There is a debate about whether it goes far enough and about what it does, but including it in the Bill is extremely good. I share the view of those who think that PII is not a perfect process. I do not like the secrecy involved, and there is certainly not a great case for it—we have seen, for example, some of the concerns in the Litvinenko case.

There is an issue with regard to last resort. I would like to see closed proceedings as a last resort. I do not think that this is entirely about openness; it is also about fairness and the principle that both sides should have the chance to see the same evidence. I think that it would be accepted everywhere that a CMP can never quite get to that point, because one person is not able to see everything. That is not a great situation.

[Simon Hughes]

May I reinforce the point that has been made to the Minister without Portfolio by Members from across the House? The Joint Committee on Human Rights did not argue for an exhaustive exploration of PII, but for an assessment by the court of whether PII would be a realistic and sensible option and, if not, for the court to move on and look at other things. The Minister has said that that would be reasonable, so I do not think that there is much between him and those of us who take the position of the Joint Committee. I hope that we can reach agreement on that, even if it does not happen tonight, because the Joint Committee was clear that what we are arguing for is not an extreme position, but a moderate, modest, sensible and pragmatic one.

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[James Brokenshire]

The last debate was about the principles of closed material proceedings; we now turn to a new group of amendments relating to additional reviewing mechanisms for the CMP provisions—in particular, Government new clauses 5 and 6 and associated consequential amendments.

In Committee I said that I was prepared to listen further to concerns expressed about transparency and particularly about ensuring that the new provisions did not make CMP commonplace. I undertook to table amendments on that matter. I have considered the issue carefully and decided to adopt the view of the Constitution Committee. I therefore intend to bring forward annual reporting and a review of the CMP provisions to be conducted five years after Royal Assent.

Given the often lengthy nature of litigation, we believe that the frequency set out in the amendments allows for regular but meaningful reporting and for a review to be informed by enough cases to provide for substantiated conclusions and reasoned recommendations where necessary. We believe that an annual report is the most proportionate approach, as it is anticipated that CMPs will be used infrequently.

The consequence is that there is likely to be little to report on a basis more regular than once a year. Annual reports will not, however, be the only way in which facts relating to cases involving CMPs will be made public during the reporting period. The Government have made an amendment in the Lords to ensure that when an application is made under clause 6(1), that must be reported to the other parties in the proceedings. There are already mechanisms through which the courts publish their open judgments.

The reports will focus on court procedures, as CMPs are a procedural option for the courts and not related to the use of Executive powers. The new clauses list the matters of key concern to be included in the annual reports such as the number of CMP applications and who they are made by; how many CMPs are granted and how many revoked; and how many judgments, both open and closed, are published with respect to the determination of section 6 proceedings. That would include judgments made on the substantive trial and regarding the outcome of the application for a CMP declaration. The new clauses would also cover proceedings deemed to be section 6 proceedings, such as the application process for a declaration and the review of Norwich Pharmacal certification.

In addition to an annual reporting requirement, the Government seek to introduce a provision for a comprehensive review after five years. In line with other legislation, such as the Terrorism Prevention and Investigation Measures Act 2011, it requires the appointment of a reviewer and does not specify the remit of the review except to indicate that it covers the operation of closed material proceedings. That type of review of CMPs would be different from other reviews, in that it would concern not the operation of the Secretary of State’s powers but rather the operation of court processes. That means that the reviewer will have to take care not to review judicial decisions regarding the operation of court processes or the fair running of individual cases.

[Simon Hughes]

I am grateful for the fact that the Government have been responsive to the arguments made on these issues. However, I also support the proposal that there should be a renewal mechanism—a better process than a sunset clause. When the Minister addresses that point, will he reflect on the fact that we have given ourselves the chance in the past of having an annual report and annual confirmation or otherwise of terrorist legislation in Northern Ireland and other legislation in respect of which there are ongoing cases that last a long time?

[James Brokenshire]

I am pleased to engage in that debate. I will come to it when I address the amendments tabled by the Opposition. At this early stage, I should say that in essence it is a question of the assurance provided to external partners as well as the operation of the courts themselves. I hear the point that the right hon. Gentleman makes, but I hope he accepts that the proposal for an annual review or, in effect, an annual sunset clause in the first instance and then an annual renewal thereafter, does not leave a great deal of time for litigation, which is likely to span several years because of its nature and complexity. I am sure that we will hear more from the Opposition about why they have sought to advance this time period over anything else. There is a principle at stake as regards the assurance that we are seeking to provide through this mechanism. We have gone for the option of five-yearly reporting, with a proper examination of the operation of the Bill, to enable Parliament to be properly informed. It will then be for Parliament to consider what further steps may or may not be appropriate at that point.

We would expect such a review to take into account the views of special advocates, among others. We want to ensure that it will involve a proper examination of the operation of CMPs to consider efficiency, trends and types of cases, analysing the numbers provided in the annual reports to reflect on how CMPs are being used.

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[James Brokenshire]

A five-yearly review with, in essence, each Parliament having the opportunity to examine the operation of CMPs is appropriate. As my hon. Friend will know from our previous debates on, for example, the Terrorism Prevention and Investigation Measures Act, my view has been that that time period or cycle gives sufficient time to enable a proper consideration of the operation of the process. The right period is five years—in essence, once a Parliament so that each Parliament can consider what may or may not be appropriate at that point.

New clause 4 provides that the new CMP provisions would expire only a year after Royal Assent unless a statutory instrument extending the provisions for a further year was laid before Parliament and approved by resolution of each House. The Government believe that the new clause would largely negate the benefit of the provisions in part 2 and that it is disproportionate. The negative impact of what would amount in the first year to a sunset clause could be very serious. As I have said, we know that litigation can be lengthy, lasting a number of months and usually more than a year, while document-heavy cases can last for several years. Creating the possibility that CMPs would cease to be available halfway through the progression of a case where the judge had already decided that a CMP was in the interests of the fair and effective administration of justice in the proceedings would, in our view, undermine the judge’s discretion.

I think that the House is in basic agreement that CMPs should be available as a tool to the judge and that the judge should have discretion on whether to use one or not. In exercising that discretion, the judge will consider whether or not he agrees with the Secretary of State’s assessment of damage to national security and how the case should be fairly run. Even once a judge has decided that a CMP should form part of the procedures in the case, each piece of material will be assessed to decide whether it should go into the CMP, be withheld entirely or be redacted, summarised or disclosed. The judge can also decide at any point to revoke a CMP and, indeed, must consider doing so after the disclosure exercise if he feels it is no longer in the interests of the fair and effective administration of justice in the case. Parliament has already decided to provide four CMPs in at least 14 settings, so we do not believe that we are introducing an entirely new concept.

I understand the origin of the new clause. In essence, it is about the provision for annual renewal of control orders under the Prevention of Terrorism Act 2005, which the Terrorism Prevention and Investigation Measures Act repealed and replaced. The 2005 Act was passed under a greatly accelerated parliamentary timetable, with only limited opportunity for debate. By contrast, the Green Paper provided a full consultation and it is fair to say that the Bill has been through parliamentary scrutiny in the other place and this House. It is also worth underlining that the Bill’s provisions relate to the procedures of the court, rather than the exercise of controls by the Executive. I note that in the preceding debate the right hon. Member for Tooting said that we are in a “very different context”.

The circumstances in which CMPs could be used are limited to national security-sensitive cases and for hearings in the High Court, Court of Appeal, Court of Session and Supreme Court. As I have said, the judge has the discretion to determine whether a CMP is appropriate.

This problem is not likely to go away. Claimants should have the continued ability to bring claims against the Government and matters should be scrutinised by the courts, as opposed to a return to the current system, where in some circumstances justice is simply not possible. We will continue to be faced with the unpalatable dilemma of either damaging national security or potentially paying out significant sums of money.

I should also make clear that, although the Opposition’s proposed new clause applies to clauses 6 to 12, it would also affect the reviews of certificates issued by the Secretary of State under the Norwich Pharmacal clauses. Such proceedings are deemed to be section 6 proceedings because the case needs to be heard in CMP in order to ensure that its outcome is not prejudiced by having already publicly disclosed the very information with which the proceedings are concerned. Therefore, the effect of the proposed new clauses would be also to disrupt the Norwich Pharmacal clauses, which are intended to bring clarity and reassurance to intelligence-sharing partners.

International partners have expressed concerns about the Government’s ability to defend themselves and protect national security in cases where claimants make allegations against the state and its defence rests on national security material. We risk undermining the confidence of partners who share such information with us if they feel that we do not have in place secure processes to protect their material while defending Government actions.

[Simon Hughes]

I understand the Minister’s arguments. May I make two other points? I do not seek to defend the exact wording of new clause 4, but the argument that one cannot change something suddenly in the middle of a long court case could be dealt with by negotiating when any change would come into operation. I also remind him that it was the considered view of the Joint Committee on Human Rights that the significance of the change in the Bill merits our being very careful about the length of time for which we introduce the procedure.

[James Brokenshire]

We have all said in a number of ways in Committee and on the Floor of the House that we accept that this is not a perfect solution. We are not in the territory of perfect solutions when we talk about these issues.

I would make a number of points to the right hon. Gentleman. First, one purpose of the Bill is to provide assurance to our external partners on the sharing of intelligence material. Although I recognise the parallel that he draws with other court processes, that assurance is an important additional factor. If a time period was introduced, whether through a form of renewal or sunset, as one got towards the end of that period, there would be significant anxiety about what the future may hold. That would not satisfy the policy objective of giving that assurance to our external partners.

It is interesting that the Constitution Committee did not recommend a sunset clause. Its report said that the House may wish to consider the Bill being independently reviewed—not renewed—five years after it comes into force. The Government have accepted its recommendation in our new clauses.

New clause 9, which the hon. Member for Hayes and Harlington (John McDonnell) may wish to speak to shortly, seeks to provide for the collection of information. We believe that that matter is addressed in a different way by our new clauses, under which the Ministry of Justice will collect and publish data on the number of declarations granted, the number of revocations and the number of final closed judgments.

Regular reporting and a full review of the operation of closed material proceedings will provide an insight into how the provisions are working in practice and a clear mechanism to provide reassurance on their operation. I urge right hon. and hon. Members to support that approach and the Government’s new clauses.

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[Dr Francis]

I thank the hon. Gentleman for his kind words about the work of my Joint Committee. I am very attracted to the idea he has proposed. It is not the first time I have heard it, because we had this discussion recently, but I am pleased that he has proposed it on the Floor of the House.

[Simon Hughes]

indicated assent.