Justice and Security Bill [Lords]

Simon Reevell Excerpts

Tuesday 18th December 2012 Commons Chamber

[Simon Reevell (Dewsbury) (Con)]

One of the least attractive things I have seen in 20-odd years practising at the Bar is lawyers trying to persuade a judge that he should deal with evidence in private because the evidence had the potential to embarrass the then Government. It did have that potential. Employees of the Ministry of Defence on oath were giving evidence that six months before the invasion of Iraq, they had been told not just that it was going to happen, but the day on which it would take place, and that the British Army had been told that it could not commence its training because it would give away the fact that a decision had been made. A properly robust judge sent them away and told them in no uncertain terms that the functions of the court do not include preserving the modesty of the Government.

So I come to the proposals, proposals that for years and years no one in the world of civil litigation ever dreamt or thought were necessary. Suddenly we encounter a different sort of civil litigation in which the body most concerned is the state. Allegations are made that the state has been complicit in kidnap and torture—we call it rendition, but rendition simply means kidnap and torture—and that drone strikes have killed innocent families, and suddenly the civil rules that have been good enough for as long as anyone can remember are no longer good enough and there needs to be secrecy. It is, at best, an unfortunate coincidence that the need for secrecy coincides with litigation in which the state finds itself at the very heart.

The effect of the proposals could be that a claimant who brings a case is suddenly and quite literally ushered out of court and told to take their lawyers with them. They will then have to sit and wait until they are invited to go back in, at which point they might be told, “Sorry, but you’ve lost.” The reason is that these proposals are not the same as PII, although there has been much talk of PII, and they are not simply a replacement for it.

The way litigation works means that parties to it must consider whether they possess material that might assist the other side. If they have such material but want to keep that secret, they can make a PII application. If they win they are allowed to keep that secret, and if they lose they have two options: they can hand the material over or they can settle the case. That is what PII is all about, but that is not what this proposal is about. This is about being able to use material aggressively against a case. It is about the state having material that it can use to defeat a claim and wanting to use it in secret.

At the moment, if the state wants to use that material it must do so in open court, but it is about the decision on how to fight the case; it is not about public interest immunity. That is why the Bill clearly goes through the PII phase before getting to the point where closed hearings are contemplated. For example, if I know something that might assist you when you sue me, Mr Deputy Speaker, I must either tell you or claim PII, but this proposal is about me wanting to use something against you to defeat your claim and you will never know what it is. You will not have the chance to question it, to say that it is not accurate or to say that it has been fabricated. You will know nothing about it. You will simply be told, “I’m sorry, but you’ve lost your case.”

When such a proposal is introduced on the back of litigation aimed at the state, making allegations of the worst sort of behaviour on the part of the state—I have referred already to kidnap, torture and killing—people are bound to be suspicious. Either it is just a coincidence, or someone somewhere wants to take on these claimants using information that no one will ever be able properly to test.

The House sat very quietly last week to listen to the Prime Minister deal with the report prepared in respect of Mr Finucane. He ended his observations by saying this:

“One thing this Government can do to help is to face up honestly when things have gone wrong in the past. If we as a country want to uphold democracy and the rule of law, we must be prepared to be judged by the highest standards.”—[Official Report, 12 December 2012; Vol. 555, c. 299.]

These proposals are not a very good start.

[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.