Justice and Security Bill [Lords]

Debate between Stephen Phillips and Lord Tyrie

Tuesday 18th December 2012 Commons Chamber

[Mr Tyrie]

My hon. Friend makes an interesting point. The judge now has discretion on CMPs—at least, I hope that is where we will end up as a result of efforts in the other place—so we could arrive at a position where we have more justice and not less, which is the underlying principle we are discussing. With respect to Norwich Pharmacal, the case is unarguable. We would know less about rendition had the Norwich Pharmacal jurisdiction been closed down, because it was used to elicit information about the extent of Britain’s involvement.

The Government have argued that CMPs could deliver more justice because they will be able to introduce evidence that they cannot introduce at the moment for fear it will damage national security. How true is that? I do not know—very few Members present in the Chamber do. The special advocates, security-vetted lawyers who are responsible for making CMPs work, are the small group of people with access to the information required to know the answer. They have been unequivocal—the right hon. Member for Knowsley (Mr Howarth) quoted them a moment ago. They say that CMPs are not

“capable of delivering procedural fairness”

and that their introduction

“could only be justified by the most compelling reasons and, in our view, none exists.”

It is worth reading the report by the special advocates in full as it is pretty blistering.

I am grateful to the Minister, my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), for returning to the Chamber, as he also said that PII was deeply flawed. It is certainly not perfect but, again, the special advocates have expressed a view and said that

“there is as yet no example of a civil claim involving national security that has proved untriable using PII and the flexible use of ancillary procedures (such as confidentiality rings and “in private” hearings from which the public, but not the parties, are excluded).”

[Stephen Phillips (Sleaford and North Hykeham) (Con)]

That statement may be accurate in so far as it goes, but one case—the Carnduff case—was stayed because it could not be properly tried, albeit that it was not directly in the national security arena. The Supreme Court has said that the principle exists, in which case there will be cases where there is no trial at all unless we use CMPs. Surely my hon. Friend will agree that it is better to go down that route than to have the possibility of no trial for very serious cases.

[Mr Tyrie]

I agree that a CMP could be of use in some cases. My point is that the special advocates, who are well placed to judge, have looked at the proposals and said that, so far, they have seen no cases in which PII could not do the job.

A cynic would argue that the special advocates have an interest in arguing for more legal work and more CMPs, but it is significant that they have spoken in the opposite direction—against the extension of CMPs. Their lordships shared the concerns of the special advocates, and by majorities or more than 100, shredded that part of the Bill.

The Lords amendments included two crucial safeguards that I consider to be essential. The first, which we have discussed, is that they gave the judge rather than the Minister discretion on whether to hold a CMP. The original Bill clearly gave the lion’s share of that discretion to the Minister, and it is not true, as the Minister said a moment ago, that he gave up that position “months ago”. If he gave it up “months ago”, why on earth did their lordships debate replacing the word “must” with the word “may” only a fortnight ago?

The second crucial Lords amendment was a measure—clause 6(6)—to ensure that a judge should be able to exhaust PII in his search for justice before considering CMPs. Unfortunately, my right hon. and learned Friend the Minister did not say that he would accept it. On the contrary, he used a number of phrases to suggest that he would do no more than consider it, and that he had not yet finished his consideration. I regret that and the fact that we are discussing the Bill so quickly. It needs further consideration and I agree with him on that. The debate should have taken place in January. That it is being rushed through just before Christmas adds to my concerns.

A third safeguard would be valuable. A review should be held after a period to see whether CMPs have led to more rather than less justice. To ensure that the review happens properly, it should be accompanied by a sunset clause—in perhaps seven, eight or 10 years. That proposal was a recommendation of the Joint Committee on Human Rights, the Chairman of which is not in the Chamber at the moment. I would like it included in the Bill.

Having said that, my concluding thought is this: we should remain deeply sceptical of the utility of holding a hearing in which one party is shut out of the case. This is what the former Director of Public Prosecutions has to say on that—I shall quote it in full, because it is so forceful. He said:

“I have spent many years in criminal courts watching evidence that at first sight seemed persuasive, truthful and accurate disintegrating under cross-examination conducted upon the instructions of one of the parties…That is the risk that we are facing, that we are introducing into civil justice—in the most sensitive and controversial cases, where deeply serious allegations are made against the Government and the security services—a process that expels the claimant and gives him a form of justice that is not better than nothing. It is worse than nothing because it may be justice that is based on entirely misleading evidence.”.—[Official Report, House of Lords, 21 November 2012; Vol. 740, c. 1989-1900.]

I accept that, in some very restricted circumstances, one can conceive of more justice being achieved with a CMP than without one, but I am clear in my mind that that must come only after all other existing routes to try to obtain justice, including PII, have been exhausted. The Minister has not accepted clause 6(6) as amended by the other place. For that reason, above all, I cannot accept the Bill.

--- Later in debate ---

[Stephen Phillips (Sleaford and North Hykeham) (Con)]

It is a real pleasure to follow the hon. Member for Islington North (Jeremy Corbyn), who speaks consistently on this and other civil rights issues, even if he does not often agree with the right hon. Member for Knowsley (Mr Howarth). I suspect that, on this occasion, he is also unlikely to agree with me.

I have to confess that I hesitated before deciding to speak in this Second Reading debate, partly because I see a Bill Committee looming and the prospect of 12 days in the spring with the hon. Member for Hammersmith (Mr Slaughter) is not particularly attractive to any of us, and partly because consensus seems to be emerging among the majority of Members that, unsatisfactory though the Bill might be, it is none the less a necessary measure.

There is little disagreement on the first part of the Bill, which will establish a regime for the oversight of the intelligence services that has long been called for. That is much to be welcomed. It is the second part of the Bill, which deals with the closed material proceedings—wrongly, in my view, called secret courts—that appears to cause controversy. I shall focus my remarks on that part of the Bill, although not at length as consensus is emerging and many of the points that I wanted to raise have already been discussed. The right hon. Member for Salford and Eccles (Hazel Blears), for example, identified many of the arguments that I would deploy in support of the Bill being given a Second Reading.

Many lawyers, myself included, regard the Bill as at best undesirable and possibly pernicious. The obvious reason for that is that the principle that has served us well for many years is that we do justice publicly. We also permit full access to the evidence for those against whom allegations are made—whether serious or not; in these cases, they usually are—and for those who make those allegations, in order that a fair adjudication can be openly and publicly be made of their complaint and of what has been said against the accused.

The Government need to persuade those who have expressed concerns that the mischief against which the Bill is said to be directed is so serious that, in the limited number of cases to which closed material proceedings would apply, we need to take a fundamentally different approach from the one that has traditionally applied to the administration of public justice. The Government have identified four problems, although they have not always been clearly articulated. It is worth identifying them, for the sake of those such as my hon. Friend the Member for Chichester (Mr Tyrie) who are troubled by the Bill, in order for me to explain why I think the Bill should be given a Second Reading.

The first is the continued necessity in the security climate in which we the United Kingdom and, indeed, the western world find ourselves to have access to very good intelligence material—material gathered not only from our sources and by our own agencies, but by the agencies and sources that are available to our allies overseas. The difficulty the Government face as regards those agencies capable of providing us with information that is essential for the defence and security of this country is that when something is secret and comes from a foreign intelligence agency and potentially a source of that intelligence agency that might be exposed or, if it is a live source, even threatened, the Government need to be able to give an absolute assurance that that material will remain closed and will remain secret. Without that assurance—this applies not only to the United States but to other intelligence agencies, too—the Government face real difficulties in ensuring that the intelligence necessary to protect all our constituents will be available in this country.

There is, of course, a related point—that the intelligence services here need to be able to recruit their own agents and need to be able to assure those agents from the very first that their identity and anything connected to anything that might reveal their identity will remain secret. That is the first issue that calls to be dealt with, and it supports the Government’s position on part 2.

The second problem, as I see it, is that undoubtedly in the past the Government—perhaps not only this Government but the preceding one—have been obliged to settle cases where they had legitimate defences to the accusations that were made against them, but in respect of which they felt, for the reasons I have already given, that those defences could not properly be advanced, usually for the simple reason that it would expose intelligence sources and, potentially, the way in which intelligence is gathered.

Those settlements are wrong for two reasons. First, there is never any adjudication whatever of the underlying merits of the case, and from the perspective of justice as a whole—and, I might add, from the perspective of claimants as well as that of the Government—that is totally unsatisfactory. Secondly, because the Government have been obliged to settle these cases—a point touched on by the right hon. Member for Salford and Eccles—large sums of taxpayers’ money have had to be paid out. In many cases, they might have been lost by the Government and perhaps the damages were justified, but we do not know where the money has gone in other cases and we do not know, for example, that it has not gone to fund activities that are, putting them at their very lowest, detrimental to the interests of this country. That is the second reason why the Bill, and particularly part 2, is deserving of a Second Reading.

There is a related third point—the reputational risk to this country. These cases are settled, albeit with no admission of liability, in circumstances where, as was said earlier, much of the world will say that there is no smoke without fire. People might say that the British Government would not settle these cases unless there was some truth in the allegations, which does this country enormous damage overseas. It also runs the risk—I say this particularly to my hon. Friend the Member for Chichester—of encouraging those who would see this country damaged by radicalising young Muslim men overseas who will believe that this country has no respect for the rights it is trying to push on the Islamic world.

[Mr Tyrie]

Does my hon. and learned Friend not also accept that the extension of what would be portrayed as secret courts—CMPs—could also damage Britain’s reputation abroad?

[Stephen Phillips]

I accept my hon. Friend’s point, but for my own part I do not think the risk is nearly as great, and I would go further than that. If we carry on calling CMPs “secret courts”, there might be that risk, but we are not talking about secret courts. We are talking about courts in which defendants and claimants are properly represented, where there is access to the information necessary to ensure as fair a resolution of the issues between the parties as possible and, indeed, where the proceedings are overseen by a judge. I shall come back to this in a moment, but the alternative in many of these cases is, as I said in an intervention on my hon. Friend, that there is no justice at all—either because they are struck out or because the Government have to settle them. That is totally unsatisfactory—much more so than the Government’s proposals in the Bill. I think it was the Independent Reviewer of Terrorism Legislation who said that we were in the world of second-best solutions, and indeed we are. No one wishes to see this legislation. I myself have described it as at best undesirable, and possibly pernicious. However, we are where we are. We face the threats that we face, and we have to deal with them.

My fourth reason for thinking that the Bill deserves a Second Reading is that, at present, justice is not done at all in many cases of this kind. As I said earlier, the Government, because they cannot disclose information, are obliged to settle some cases when a perfectly good defence is available to the security services. There are, potentially, other cases—and at least one, which I mentioned earlier, may have already arisen—in which a claimant has a legitimate cause of action which may or may not be capable of being sustained at trial, but owing to the success of a public interest immunity application, information that would otherwise have enabled the issues between the parties to be properly resolved is not available.

In a third group of cases, such as the Carnduff case, there is the possibility of a stay if the public interest immunity application fails, and those are the cases that trouble me particularly. Claimants are essentially being told, “You may have a perfectly good cause of action, but the public interest of protecting national security outweighs the public interest of doing justice in your case.” That seems to me much more undesirable than saying to a claimant, “You may press ahead, but part of the proceedings will take place in a forum that is no longer open to the public.”

The Bill may indeed be a second-best or an undesirable solution, and part 2, at least, may even constitute a pernicious piece of legislation. However, for the four reasons that I have given, I approve of the principle behind it. I believe that that principle has been generally accepted throughout this House, and was finally accepted by their lordships, subject to the amendments that they made. It is a principle from which I do not believe parliamentarians can legitimately distance themselves. It is the principle that we need to be here to protect our constituents, and it is the principle that no matter how unsatisfactory the Bill is, it is the right Bill, and, regrettably, a necessary measure.