Northern Ireland (Miscellaneous Provisions) Bill

Lord Lester of Herne Hill Excerpts

Tuesday 25th February 2014 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, in Committee the Minister sought to reassure me about why the opportunity was not being taken in this Bill to introduce the defences of Civil Service impartiality in Northern Ireland that exist for the rest of the United Kingdom under the 2010 Act. She said:

“It is the Government’s intention that we would be moving to devolution with safeguards that would have the kind of statutory enforcement that exists for England”.—[Official Report, 3/2/2014; col. 36.]

I take that to mean that that statutory enforcement would be introduced before devolution takes place. Can the Minister explain how that is to be done? Since the only further legislative move that is necessary before devolution takes place is a statutory instrument introducing it, is that the means by which she says the statutory defence of Civil Service impartiality will be introduced? That is my first question.

My second point is the reason why I support this amendment now. If and when that statutory instrument comes before the House, we will have a chance to vote only for or against the whole statutory instrument. That is a less satisfactory means for the House to deal with it than if we were able to debate this sort of amendment to the Bill before it comes into force.

[Lord Lester of Herne Hill (LD)]

My Lords, I was not intending to take part in the discussion of this part of the Bill, but I would be grateful if my noble friend the Minister could clarify whether the existing legal regime in Northern Ireland forbids any form of discrimination within or by the Civil Service. It was my understanding that that was the position under the Northern Ireland Act as it stands. I know that in Northern Ireland there is some backwardness in amending equality law. It still has not, as we have done, produced a single Equality Act. That is most regrettable. It is true that it was Labour that first sought to initiate that reform. But in terms of the Civil Service and public administration, I understood that not only in common law but under the Northern Ireland Act any form of arbitrary discrimination, direct or indirect, would be unlawful. I would be very grateful if that can be clarified.

[Baroness Smith of Basildon (Lab)]

My Lords, I suspect that the noble Baroness has a sense from the tone of this debate, as in Committee, of how strongly your Lordships’ House feels on this issue. The noble Lord, Lord Alderdice, made the point that we have devolution, not disengagement, and there is a responsibility here for your Lordships’ House.

The noble Lords, Lord Alderdice and Lord Bew, made the point about the differences—not just cultural but practical—between the Northern Ireland Civil Service and the Westminster Civil Service. As a Northern Ireland Minister, I was struck by the far higher profile that senior civil servants have in Northern Ireland than they do here in GB. This is partly because, particularly when the Assembly has been suspended or there have been different governance arrangements, it has often been a civil servant who has undertaken the role that Ministers have here in defending or promoting policies and engaging with the public. So the difference is cultural and practical.

The timing of the Minister’s letter on this issue to noble Lords, dated yesterday and which I received today, is rather unfortunate. I appreciate that we have just had a recess, but it would have been helpful to have had the letter earlier; it may well have informed more of the debate today and the amendment that is being put forward.

There are a couple of points in the Minister’s letter on which I would like some clarification. I think that there is some confusion about what has been devolved and what is excepted. In her letter, she mentioned the debate in Committee and said that,

“many of the points made in debate related to the impartiality of the Northern Ireland Civil Service as a whole, which is of course a transferred matter”.

But the reason why there was a debate around impartiality was that we were discussing the role of the Northern Ireland Civil Service Commission, which is not an excepted matter. It was the role of the commission that brought about that debate. I think that people fully understand that the Northern Ireland Civil Service is devolved, but it is the role of the commission and its responsibility in ensuring the independence and impartiality of the Civil Service.

The point of the amendment and the whole tone of the debate is that, when the Northern Ireland Civil Service Commission is transferred, it is with the statutory understanding that it retains its remit for ensuring impartiality in appointments to the Northern Ireland Civil Service. I do not think that there was any misunderstanding in the debate in your Lordships’ House about what was transferred or excepted, but the reassurance was required, which was not really explicit enough in the Committee debate, that before being a devolved organisation there would be statutory protection on its remit for impartiality.

The Minister said in her letter that there would be further parliamentary scrutiny in both Houses, but the point made by the noble Lord, Lord Butler, is relevant here—it would be secondary legislation. But she also says that she intends to bring forward an amendment at Third Reading. I think that it is a great shame that we do not have the amendment before us today, because it would have been helpful to your Lordships’ House to be able to discuss it today. What we will seek from her today is to understand exactly what that amendment would say. If the earliest time we see that amendment is at Third Reading, it is rather late in the day, and I am disappointed that we do not have that government amendment before us today. If she could clarify exactly what it will say and what the process of debate and vote will be, that would be extremely helpful to your Lordships’ House and might allay some concerns. I hope that she is able do that—but, to put it on record again, it would have been helpful to have that amendment today.

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[Baroness Randerson]

I hope to come to that in the latter part of my response. I was attempting to respond to the noble Lord, Lord Butler, on the specific issue of the process. Prior to the intervention I was saying that the House would have the final say on whether devolution should take place when an order to that effect was proposed. However, in responding to the comment of the noble Lord, Lord Butler, I should make it clear again that the Government are committed to protecting the independence of the Civil Service Commissioners and that we fully understand the concerns expressed about the future independence of the Northern Ireland Civil Service.

We recognise the significant and important role played by the Civil Service in Northern Ireland and, in the light of the concerns expressed, the Government propose to bring forward an amendment at Third Reading which would require the Secretary of State to lay a report before both Houses on the independence of the Northern Ireland Civil Service prior to bringing a devolution order. In her report the Secretary of State will be required to set out her view of the effect of devolution on the principle that persons should be selected for appointment to the Northern Ireland Civil Service on merit and on the basis of fair and open competition. That approach flags up the importance your Lordships attach to the question. We would wish the House to be reminded of that at a later date when and if a devolution order is brought forward.

The noble Lord, Lord Lester, asked whether discrimination is possible at this point in time in the Civil Service. There are extensive safeguards in Northern Ireland law and in the 1998 Act against discrimination in employment and, more generally, against discrimination by public authorities. I am sure that on this issue it would be more significant if I responded to the noble Lord in detail, possibly by letter, which I could place in the Library.

[Lord Lester of Herne Hill]

I am extremely grateful to my noble friend for her reassurance. I want to make it clear that my understanding, as a matter of law, is that if the commission were not to recruit on merit, on the basis of fair and open competition, that would already be unlawful both by statute and common law. The House may need that reassurance in considering whether the proposal now being made, for a report in the future, would be sufficient safeguard against abuse. If the Minister finds it more convenient to confirm that in writing, I would be grateful for that.

[Baroness Randerson]

As an issue of principle, my understanding is that that is the situation. However, in order that noble Lords might understand it in more detail, I will ensure that a letter is sent to my noble friend and a copy placed in the Library in order that we can make the current situation clear. As I listened to this debate and read the Hansard report of our previous one, it became clear that this is a complex issue in which we are, in practice, moving between the appointment of the Civil Service Commissioners on a fair, equal and open basis and the standards by which we would expect the Civil Service in Northern Ireland to operate. Some of these issues are devolved but it is important to be clear about which safeguards are already in place, at which level, and which points are devolved. I give way to the noble Baroness.

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[Lord Alderdice]

My Lords, this amendment follows on in a sense from many of the principles of the previous amendment, but there are also some significant differences. The question of human rights and how to maintain them has been a long-standing interest and concern of mine. My first formal involvement in the issue occurred in my late teens and early 20s when I was a youth representative in the human rights commission of the Irish churches. However, I have never been a human rights fundamentalist. I remember one of the senior clergy in that commission describing the question of human rights in a way that I have always found helpful. He said that “human rights” is an important and helpful disturbing notion. In other words, it is something which should always make us ask certain kinds of questions, but on its own it does not determine all human behaviour—in particular, the balance of human rights and human responsibilities.

As I say, human rights has always been a matter of concern to me. When I got involved with Liberal International, which is the worldwide organisation of liberal political parties, I found that its only standing committee—apart from the bureau, executive and congress—is the one on human rights. I got involved with that committee and became its chairman, and I was the chairman for some time. As I tried to help that organisation move forward, I thought that it would be a good idea to consult an old friend and colleague from Ireland, Mary Robinson, who at that point was the High Commissioner for Human Rights at the United Nations. When I went to discuss this in her office in Geneva she said, “If you’ve got an issue and you have a campaign, and if you are successful in your aims, you will have achieved success in one campaign; but if you can put in place a structure or an organisation, or an institution which has longevity and good people in it, then you will address not just one issue but one issue after another”. She encouraged me to encourage my colleagues in different parts of the world to set up parliamentary human rights committees, ombudsmen and, importantly, independent human rights commissions and institutions, and I spent quite a number of years trying to do that.

However, it is not just about human rights commissions but about independent human rights commissions. In particular, these commissions need to have an independence from the Executive in those countries. It is enough that they frequently find themselves dependent on the Executive for funding; it is even worse if they are wholly dependent for their nomination and appointment on the Executive. One of my concerns about this proposal to open up devolution of the Northern Ireland Human Rights Commission, with appointments made by the First Minister and Deputy First Minister, is that it would undermine this question of independence. I am puzzled about it because the other area of devolution that we are conscious of is not just Wales—with respect to my noble friend on the Front Bench—but also Scotland. What is the situation in Scotland? The Human Rights Commission there is responsible to the Scottish Parliament, not to the Scottish Government or Executive. I was completely unsurprised to find that when the Northern Ireland Human Rights Commission was asked to respond to the Northern Ireland Affairs Committee in another place, it said, “If the Government want to move ahead on this, that is all very good. But it would conform much more closely to the Belgrade principles if it were accountable to the Assembly and not to the Northern Ireland Executive”.

I have therefore tabled this amendment. It is not a complete amendment or an amendment which I intend to press—it is entirely a probing amendment. I urge colleagues not to get involved in finding flaws with it because that would be much too easy a job. I am simply setting down the principle that, if and when the Government move forward with this proposal—and perhaps my noble friend can even give me some encouragement that at Third Reading there might be an amendment that will address this question—the Northern Ireland Assembly is the key body to which the Human Rights Commission is accountable, and the Assembly and not just the Executive should have a say in the appointment of Northern Ireland Human Rights Commission members and chair. In practice, it may well be the Office of the First Minister and Deputy First Minister that makes nominations. In political terms, it is hugely important that the members are accountable to the Assembly, perhaps with a vote for their appointment and the tabling of an annual report to it.

There are many ways in which the Human Rights Commission already involves itself with the Assembly; for example, it advises the Speaker, when he requests it, on the human rights compliance of legislation before it comes to First Reading and before it leaves the Assembly. That is not the issue. It is the question of principle. If it is to be and to remain an independent body there should be a clear significance of that by it being accountable to the Assembly and not just to the Executive. I beg to move.

[Lord Lester of Herne Hill]

My Lords, I support the object of my noble friend’s amendment and I want to explain why. I have practical experience in Northern Ireland. Between 1975 and 1977 I had the privilege of being the special adviser to what was then called the Standing Advisory Commission on Human Rights in Northern Ireland. At that stage the commission was examining the highly controversial question of whether the European human rights convention should be given direct effect in UK law or in Northern Ireland law. The Northern Ireland Office, like others within that Government, was strongly opposed to the idea of incorporation at that time. I regret that there was undoubted interference behind the scenes with the commission by the Northern Ireland Office. A member of the Executive was present throughout and reported back to them. At one stage there was an attempt to remove me because they saw the way that the body was going, and when we produced the report in November 1977 three members of the commission who had been—in my view—on the right side were removed summarily in a way that I thought was quite wrong.

I agree with my noble friend about the great importance of the independence of the commission from the Executive, and I wish that this was not a devolved function at all. I think that the commission would be better protected if it was not being devolved. However, given that it is to be devolved, and in accordance with the Paris principles and the Belgrade principles, it is vitally important that it is seen to be independent and properly buttressed. In supporting the amendment, I do not know whether the particular solution would be the right one because I can envisage a situation in which the Assembly might be guilty of improper interference. However, I am certain that the independence of this body is vital. The Joint Committee on Human Rights has been in frequent touch with the Human Rights Commission in Northern Ireland and we have been very concerned about the need for its independence to be properly protected.

[Baroness O'Loan (CB)]

My Lords, I had not intended to speak to this amendment. I have not been present in previous discussions on this Bill in your Lordships’ House. I simply wish to endorse all that the noble Lords, Lord Alderdice and Lord Lester, have said about the importance of the independence of the Northern Ireland Human Rights Commission. The separation of that commission from the Executive is profoundly important not least because it gives assurance to people that the commission itself will act independently. We still have very profound constitutional issues at stake in Northern Ireland and I urge your Lordships to support the noble Lord, Lord Alderdice, in this matter.

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[Lord Lexden]

My Lords, I brought forward this amendment in Committee. I am reintroducing it because of the immense importance of the issues that it seeks to address and because of the urgent need to make progress with regard to it in Northern Ireland. My interest in Northern Ireland is of very long standing, stemming from the days when I lived there while teaching at Queen’s University in Belfast in the 1970s.

On 1 January, a new Defamation Act came into effect in England and Wales. By common consent, it will confer great benefits. Those benefits were three years in the making, they have the full support of all three main political parties, they were subject to careful scrutiny by a Joint Committee of both Houses and a full public consultation took place across the whole United Kingdom. The new, widely welcomed libel law has perhaps been more carefully thought through than any other piece of legislation in recent years, and your Lordships will immediately think of many other pieces of legislation that could usefully have been thought through with the care given to the new Defamation Act.

There is practically universal agreement that the new law strikes the right balance between protecting individual reputations and upholding freedom of expression. The benefits of this major, far-reaching reform will be enjoyed fully throughout England and Wales but not in Northern Ireland. For the first time ever, Northern Ireland now has a different libel law—the old law, which belongs firmly in the past because it cannot provide properly for the needs of the present, let alone the future.

In this immensely important area of our law, which directly affects so many people and so many publications, Northern Ireland has been split from England and Wales. The union of our country has been weakened. A common jurisdiction has been divided into two—not after careful consideration of the effects of such a rupture but without any inquiry whatever into the consequences. Whereas the new law in force in England and Wales was prepared with great care, the old law has been retained in Northern Ireland without any explanation being offered by the Northern Ireland Executive, who are responsible for its retention there.

The Executive do not even seem to have held a collective discussion on the matter, despite its importance. It was only through the persistence of journalists that it finally emerged last year that a single Minister was responsible for the Executive’s inaction because he had withdrawn a proposal that would have led to collective discussion in the Executive. Not a word of all this formally reached the Assembly, to which the Executive are accountable. It is an extraordinary state of affairs. I have the words of my old friend the noble Lord, Lord Kilclooney, about the danger of declining faith in the Assembly ringing in my ears.

The Northern Ireland Executive’s inaction is fraught with risk and peril for the community whom the Executive exist to serve. More than 6,000 people work in publishing and the broadcast media in this part of our country. Their jobs are now at risk. The costly hazards of the old law could drive out the media companies which provide those jobs. New investment by international companies at the cutting edge of the digital revolution—so badly needed to bring down unemployment and enlarge the Province’s shrunken private sector—will be seriously imperilled. The impact on ordinary people using the internet could be severe. The new defences to an action enshrined in the new law will not be available to our fellow countrymen and women in the Province. They could find themselves facing huge bills, long-running court cases and financial ruin for what they believe to be a piece of harmless content on the web.

Consider, too, the position of those who might have to use the law to protect their reputation. Fortunately, it is rare that people have to take out injunctions on grounds of a potential libel to protect their reputation, but it does happen and it can often mean the difference between protecting and destroying someone’s life. A man or a woman in Northern Ireland faced with such a prospect would, in order to make an injunction work, now have to take one out in four jurisdictions under very different laws: one in Northern Ireland under the out-of-date common law; one covering England and Wales with a modern regime; one covering Scotland; and potentially one covering the Republic of Ireland, where the law is different again. Failure to do so would mean that the injunction is not worth the expensive paper on which it is written. Such a prospect, and the huge costs involved, would be beyond the ability of most people other than the super-rich. Therefore the action—or rather, inaction—of the Northern Ireland Executive is, in effect, not only exposing ordinary people to great risk but removing the ability of ordinary people to use the law to protect themselves.

The old libel law that the Northern Ireland Executive has retained without explanation can have literally fatal consequences. Last July a senior NHS cardiologist told a committee of the Northern Ireland Assembly that a large American company had used the old law to prosecute him and suppress his research evidence that revealed serious problems with one of its products, used to close holes in the heart. He told the committee that while he was gagged by the old law some patients who had been forced to have faulty heart devices surgically removed had died as a result. He said that Northern Ireland must ditch the old law to stop such outrageous instances of the suppression of freedom of speech.

Yet the Northern Ireland Executive ignore such powerful evidence of the need for change. All they have been prepared to do is to seek a review by the Northern Ireland Law Commission, but all the relevant information is in the public domain already. A review could take a very long time. The Executive should back the Private Member’s Bill introduced at Stormont by the Ulster Unionist leader, Mr Mike Nesbitt, to replace the discredited old law with the new one. That they have so far failed to do. Freedom of speech, human rights and the integrity of the law itself: those three fundamental elements of our democracy and our free society stand at the heart of the crisis—I do not think that that is too strong a word—that my amendment seeks to address.

This issue cannot be evaded by maintaining, as the Labour Front Bench has sought to do, that devolution removes from the Government and this Parliament the duty or the responsibility to take action. My amendment is about freedom of speech above all. While devolution is a core value of modern British constitutionalism and the Sewel convention is the central principle within our current devolutionary arrangements, freedom of speech is an even more fundamental value of our constitution.

In conclusion, I have three questions for the Government and I would be grateful for my noble friend’s comments. First, will the Government secure from the Northern Ireland Executive a clear, public explanation of their inaction, which they have so far failed to provide? Secondly, will the Government establish and place on public record what, if anything, the Northern Ireland Executive now intend belatedly to do? Thirdly, if the Executive prove unresponsive, what further action will the Government take? I beg to move.

[Lord Lester of Herne Hill]

My Lords, I was unable to be present for the earlier stages of the Bill, but I have read all the debates, including the discussion on 3 February about the amendment then moved by my noble friend Lord Lexden, with the powerful support of the noble Lords, Lord Bew, Lord Black of Brentwood and Lord Empey, and now moved again by my noble friend Lord Lexden, with my support and that of the noble Lords, Lord Black and Lord Pannick. I noted then the welcome support from the Minister for the aim of the amendment, even though she was unable to support the amendment itself.

I have a particular interest—I say this with some trepidation, as I sit opposite the noble Lord, Lord Carswell, in case what I am about to say in any way disturbs him—in that my experience as leading counsel for the Irish News in the Northern Ireland Court of Appeal in the Convery case brought home to me, as nothing else had, the importance of persuading Parliament to strike a fair balance between the right to protect a good reputation and the right to freedom of expression.

The Irish News was sued for libel for a review written by Caroline Workman, an experienced food critic. She was highly critical of the quality of the food, drink, staff and smoky atmosphere at the Belfast Italian restaurant, Goodfellas. The owner, Ciarnan Convery, claimed that the article was a hatchet job, and the jury agreed. After a lengthy trial, he was awarded £25,000 damages and four times that amount in legal costs. Caroline Workman was subjected to detailed and lengthy cross-examination about the accuracy of her article. The experience was so traumatic that she gave up her profession as a journalist. Everyone at the trial was confused about the difference between truth, fact and honest opinion. We succeeded in the appeal but the state of the common law remained unsatisfactory. That is one of the factors that caused me to think that it was about time Parliament intervened.

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[Lord Hope of Craighead (CB)]

My Lords, I hesitated as to whether or not to intervene, as my experience of devolution is in regard to matters relating to Scotland, but I have also had experience in the UK Supreme Court of devolution matters relating to Wales. I think it is right that I add a word of caution in support of what the noble and learned Lord, Lord Carswell, said. The amendment seems to me to raise a constitutional issue not quite in the terms suggested by the noble Lord opposite. The issue is really how one balances the structure of the devolved legislature’s powers between what is reserved and what is devolved.

In Scotland, the language is different. As noble Lords will know, the position is that matters open to any legislation are called reserved matters. In Scottish parlance, what we have been talking about here is a devolved matter, which would be a matter for the Scottish Parliament. It is well established by convention that it is not open for Westminster to enter into legislation relating to devolved matters unless there is a Sewel convention which permits that. It is arranged with the Scottish Parliament and a Motion is passed through the Scottish Parliament that approves of the measure that this House or the other place seeks to pass. That is well established and happens quite frequently. It helps one get over the difficulties of demarcation, if there be any.

I am certain that north of the border—I am talking about Scotland, on this side of the Irish Sea—to use the word alarm would be to put it rather softly. It would be regarded as quite offensive for Westminster now, having devolved matters, to tell the Scottish Parliament how it should deal with an issue such as this. I make absolutely no comment on the nature of defamation law in Northern Ireland; that is not the issue. The question is whether it is really properly open to this House to engage with the matter, given the nature of the devolution arrangement which both Houses have approved and which is in legislation. As was suggested, there are other mechanisms for bringing about reform of the law. It may be extremely frustrating that it would take so long, but the law commissions exist to take these matters on board. Unpalatable though it may be, I would respectfully suggest that the advice of the noble and learned Lord, Lord Carswell, is absolutely sound. It would be most unwise of this House to disregard it.

[Lord Lester of Herne Hill]

Before the noble and learned Lord sits down, I wonder whether I could just ask this question. Given that the European convention limits the powers of the devolved institutions in Scotland and Northern Ireland and given that it expressly empowers the Secretary of State to require action if inaction would lead to a breach, would it not therefore be the case that it is within the competence of the Executive in London, and if necessary the Parliament in London, to secure compliance with the convention rights to free speech and a good reputation?

[Lord Hope of Craighead]

The noble Lord is quite right that the powers of the Executive are controlled by convention rights. The legislative competence of the Parliament is controlled in the same way and it is open to a court to pronounce an affirmative order requiring a member of the Executive to do something. There are mechanisms, and these would be put into place through the existing devolved system. This is something that could be arranged, but that is quite different from what is being suggested here, which is, without that background and without that attempt being made, to simply legislate from this House. I underline the caution which is being properly urged on the House by the noble and learned Lord.

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[Baroness Randerson]

It has been said several times this afternoon—more times than I can count—that the Northern Ireland Executive have not given any explanation. Of course, the most important group to which the explanation is owed is the people of Northern Ireland.

The second question asked by the noble Lord was whether we would establish what the Executive intend to do. I repeat that it is for the Assembly and not the Government to hold the Executive to account, and it is for the Assembly to seek an explanation. That goes along with my comment that the people of Northern Ireland are those to whom the Executive should be explaining themselves in the first instance.

In response to the third question put by the noble Lord, Lord Lexden, we have of course set out to the Executive what we see as the benefits of the Act and we will continue to discuss the issue. When my noble friend Lord McNally was Minister for Justice, he wrote to the Executive commending the Act, and I am absolutely sure that the Executive will in due course become aware of our debate this afternoon.

Therefore, the Government have been active in encouraging the Executive to consider the need for change. Prior to the introduction of the Defamation Bill before Parliament, there was contact at official level to establish whether the Executive wished to seek the approval of the Assembly to a legislative consent Motion. Following completion of the Bill’s passage, as I said, my noble friend Lord McNally wrote commending it to the Executive.

[Lord Lester of Herne Hill]

My noble friend has emphasised the importance of the Law Commission in Northern Ireland. Can she correct my misunderstanding, if that is what it is? My understanding is that the Northern Ireland Law Commission consists of a part-time commissioner and a chief executive, and that is it. Am I wrong about that?

[Baroness Randerson]

I am not aware of the exact size of the Law Commission. However, I am aware that the Law Commission’s reputation is not affected by any issue regarding its size, in that it is clearly a body with a good reputation. If the commission is as small as my noble friend indicates, that might explain why it will take it some time to consider this issue. However, I am not able to give a precise answer to his question.

I wish to remind noble Lords that the civil law of defamation is of course a devolved matter, and under the Sewel convention decisions on whether legislation in transferred areas should apply to Northern Ireland usually fall to the devolved Administration. A number of noble Lords have set out why they believe the Government should consider breaching the Sewel convention. I urge them to consider the wider ramifications of doing so for our relations with all the devolved legislatures in the United Kingdom. I welcome the words of the noble and learned Lords, Lord Carswell and Lord Hope, in this regard. It is important that we respect devolution. It is not just in respect of Scotland that we should be wary of breaching the Sewel convention; I believe that it would be destabilising in Northern Ireland if we were to pick and choose which bits of devolution we decided to observe. My noble friend Lord Lester has eloquently explained the weaknesses of our non-federal system of devolution, but I urge noble Lords who are of the mind that we should breach the Sewel convention to look at this from the viewpoint of the nations of the UK. We should be considering what it looks like from Scotland, Wales and Northern Ireland if we pick and choose which aspects of devolution we observe.

Defamation Act 2013: Northern Ireland

Lord Lester of Herne Hill Excerpts

Thursday 27th June 2013 Grand Committee

[Lord Lester of Herne Hill]

My Lords, we are grateful to my noble friend Lord Lexden for initiating this debate with such a powerful speech on an issue of great importance to everyone within the United Kingdom and beyond, including the media and public. It concerns the refusal by the Northern Ireland Government to consent to the application of the Defamation Act 2013 in that part of the UK or to introduce matching legislation.

The Chief Commissioner of the Northern Ireland Human Rights Commission drew attention to the problem in his letter of 3 May, and my noble friend Lord McNally wrote a further detailed letter on 29 May to the Minister of Finance and Personnel, Mr Sammy Wilson MP MLA, to assist him in considering the position in Northern Ireland. Mr Sammy Wilson is the DUP Member for East Antrim. He replied yesterday as follows:

“I have noted that the new provisions will be brought into force later this year and it will be interesting to see how they operate. However, at this stage, I have no plans to review the law on defamation in Northern Ireland”.

I do not know whether this reply was cleared with his coalition partners in Sinn Fein, whose support for the Good Friday agreement and the effective protection of human rights is so important. But it is in line with the comments made by his colleague, Ian Paisley Jr, the DUP MP for North Antrim, during the Second Reading debate on 12 June 2012, in cols. 204-5, and also those made by the Belfast libel lawyer, Paul Tweed, with whose negative views he agreed.

The Defamation Act was three years in the making. It has support among all three main political parties and was the subject of public consultation and careful scrutiny by a Joint Committee of both Houses. It is a model of how to make law and strike a fair balance between the right to protect a good reputation and the right to freedom of expression. The Bill was introduced in the light of widespread international criticism from the UN Human Rights Committee, the United States and beyond, and our own libel reform campaign, because of the chilling effect of our libel laws on freedom of speech.

The Joint Committee on Human Rights, on which I serve, scrutinised the Defamation Bill and received a detailed memorandum from the Ministry of Justice explaining how the new legislation would comply with the convention rights to free speech, a good reputation and access to justice. The memorandum made it clear that the Bill was intended to redress the balance in favour of freedom of speech. We published our report on the Bill on 12 December 2012.

Article 6 of the convention protects access to justice and Article 13 the right to effective domestic remedies for breaches of the convention. Article 8 protects the right to a good reputation. Article 10 protects the right to,

“receive and impart information and ideas without interference by public authority and”—

I emphasise—

“regardless of frontier”.

That includes the public authorities of Northern Ireland and the frontier across the Irish Sea.

Those who publish in England and Wales inevitably publish in Northern Ireland. If libel law in Northern Ireland remains unreformed, as my noble friend said, its chilling effects will interfere with the fundamental rights not only of those who seek to publish information and opinions on matters of public interest and concern, but everyone living within Northern Ireland and the rest of the UK. It will also mean that the courts will have to operate in a situation of legal uncertainty to resolve the conflict of law across the Irish Sea and between the UK and the European Court of Human Rights in Strasbourg.

Those who signed the Good Friday or Belfast agreement dedicated themselves to,

“the protection and vindication of the human rights of all”.

The agreement referred to the convention as a necessary safeguard for the protection of all sections of the community. It recognised the right of the Westminster Parliament to,

“legislate as necessary to ensure the United Kingdom’s international obligations are met in respect of Northern Ireland”.

Article 1 of the convention obliges the UK to secure to everyone within its jurisdiction the convention rights and freedoms. The Northern Ireland Act 1998 gave effect to the Good Friday or Belfast agreement and to the UK’s international legal obligations. Section 26(2) says:

“If the Secretary of State considers that any action capable of being taken by a Minister or Northern Ireland department is required for the purpose of giving effect to any international obligations … he may … direct that the action shall be taken”.

However, because we lack a federal system, the only way in which fundamental human rights can be secured by law to everyone is by giving effect to the convention rights protected by the Devolution Acts and the Human Rights Act. It should not be necessary for the Secretary of State to have to use the power of direction vested in her. However, if it becomes necessary and if she fails to do so, she will become vulnerable to legal challenge under the Human Rights Act for failing to act in a way that is compatible with convention rights. The Northern Ireland Executive and legislature will also be vulnerable to legal challenge. It would be highly regrettable if it were necessary to use the power to direct or to resort to expensive and lengthy litigation.

What is needed is common sense and a political solution in Northern Ireland. It would be a stain on the reputation of Northern Ireland if it were to replace London as the libel tourist capital by clinging to archaic, unbalanced and uncertain common law, which would be great for the vested interests of wealthy clients and their lawyers in Belfast, but wholly against the public interest. It is profoundly ironic that I am addressing this indirectly to the Democratic Unionist Party, which believes in the union, but seeking help from Sinn Fein, which does not.

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[Baroness Randerson]

My Lords, I congratulate the noble Lord, Lord Lexden, on securing this debate and I thank all noble Lords who have spoken for their positive remarks on the merits of the Defamation Act, which was recently passed by Parliament. I can confirm that the Government are taking forward the necessary procedural steps to enable the Act to be brought into force in England and Wales by the end of the year.

As the Committee is aware, defamation, in common with other civil law issues, is a devolved area, so the law in Northern Ireland is a matter for the Northern Ireland Executive and Assembly. That theme has run throughout this debate, although I have detected a strong requirement from the noble Lords who have participated that the UK Government should step in at this point. I recognise the concerns expressed about the possibility that the law in Northern Ireland may become out of step with that in England and Wales. I do not wish to speculate about the extent to which those concerns may come to be justified, but it is inevitable, as part of having devolved responsibilities, that differences in the law may arise between the different parts of the United Kingdom.

My noble friend Lord Lester expressed his frustration at the lack of a federal system and at the shortcomings of our constitutional settlement. I might share some of his frustration from time to time, but it is very important in this debate that we recognise where we are now in our constitutional settlement. Under the Sewel convention, the UK Parliament remains sovereign but will not normally pass primary legislation relating to areas in which a devolved legislature has legislative competence, except with the agreement of the devolved legislature in the form of a legislative consent Motion. I will give way.

[Lord Lester of Herne Hill]

I am grateful to the Minister. Will she accept the fundamental point made throughout this debate that Northern Ireland law, like all our law, must comply with the European human rights convention, which is embedded in the devolution statutes and the Human Rights Act?

[Baroness Randerson]

I accept that of course, and I will return to that issue later. The memorandum of understanding between the UK Government and the devolved Administrations recognises that the UK Government retain authority to legislate on any issue, whether devolved or not. However, in this instance we do not consider that it would have been right for us to have sought to impose the Defamation Act on Northern Ireland without any concession to the sentiments of the Northern Ireland Executive on the constitutional propriety of such a move, or to its views on the substance of the proposed legislation.

In that context, I can confirm that, in accordance with the Sewel convention, prior to the introduction of the Defamation Bill officials at the Ministry of Justice contacted their counterparts in the Northern Ireland Executive. They asked whether the Executive wished to seek the approval of the Northern Ireland Assembly for an LCM in relation to any aspects of the Bill. In the event, an LCM was not requested, and I am not in a position to comment or speculate as to why that was.

Concerns were raised by the noble Lords, Lord Lester and Lord Bew, at a very late stage in the passage of the Bill—namely, during the Lords’ consideration of Commons reasons. In the light of that, following completion of the Bill’s passage, my noble friend Lord McNally wrote to the Minister for Finance and Personnel in the Northern Ireland Executive to commend the Act to him, and to set out the benefits which we believe it has—and which have been expressed around this Chamber today—so that these can be taken into account by the Executive in considering the way forward in Northern Ireland. As the noble Lord, Lord Lester, indicated, the Minister for Finance and Personnel has just replied to the letter from my noble friend Lord McNally indicating that he currently has no plans to review the law. However, as has also been mentioned, the relevant departmental committee in the Assembly is currently taking evidence on the issue and a Private Member’s Bill on the subject may well be introduced.

It is important to point out that, although the debate in the Assembly has taken some time to ignite, it is alive at this moment. I have here a research paper produced for the Northern Ireland Assembly on the Defamation Act 2013, so efforts are now being made to inform the debate in the Assembly. I hope that these developments will ensure that the issue is fully debated and considered in Northern Ireland and throughout civil society in Northern Ireland.

In that context, it continues to be our view that the action that we have taken represents the limit of what it is proper for the Government to do. I join noble Lords in hoping that the Northern Ireland Executive and Assembly give very careful consideration to the question of whether legislation along the lines of the Act is appropriate in Northern Ireland. However, we retain the view that the matter is entirely one for them.

The noble Lord, Lord Browne, said that this has been an extremely good debate and indeed it has. However, it is important that we draw it to the attention of those in the Northern Ireland Assembly and Executive to contribute to the public debate that several noble Lords have referred to this afternoon.

I will reply briefly to some specific points. My noble friend Lord Lexden referred to the “antiquated” libel laws and pointed out what he saw as the anomaly that the responsibility for this issue in Northern Ireland is with the Minister for Finance and Personnel. Noble Lords are very well aware of this, but it is important to point out for the record that the arrangements in the Northern Ireland Executive are complex and balanced. It is therefore possible that which department it lies with is of less significance than those balanced and complex relationships. The noble Lord, Lord Lexden, also pointed out that the Executive have not taken this decision; this issue has not come to the Executive. He also pointed out the potential importance of Mike Nesbitt’s Private Member’s Bill on defamation. I am confident that this debate will run in Northern Ireland.

I have already referred to the comments from my noble friend Lord Lester, who intervened to refer to the importance of the human rights implications. It is obviously key that UK Ministers have regard to our international obligations on human rights at all times. However, it is always a matter of balancing one set of human rights against another. Those human rights also bind and oblige the Northern Ireland Executive in the way that they make their decisions. I refer, particularly, to the reference by the noble Lord, Lord Lester, to the ECHR memorandum that was prepared by the MoJ at the request of the Joint Committee on Human Rights to assist its consideration of the Defamation Bill. That memorandum focused on issues relating to the compatibility of the provisions contained in the Bill, not on the compatibility of the existing law.

I move rapidly on to the noble Viscount, Lord Colville, who speculated on why Northern Ireland politicians were not keen to have free comment. The key point that I want to draw out from what he said is the possibility of libel tourism. We do not consider that likely. However, we acknowledge that, once the Act is brought into force in England and Wales, there might be attempts to exploit the differences in law between the two jurisdictions. I am sure that the Northern Ireland Executive and Assembly will take that into consideration as they look at this issue. The noble Lord also pointed out that newspapers cross borders and spoke of the complexities of the situation for the newspaper industry. That was also referred to by my noble friend Lord Black.

The noble Viscount talked about the liberalising and modernising Act and making our law fit for the digital age. He talked about the importance of global media and said that we cannot declare UDI on that. His core point, which will perhaps be of particular interest to those in Northern Ireland reading or possibly even listening to this debate, was on the 6,000 people who work in the media—the publishing and broadcasting industries—and the implications for them and, indeed, for the blogging citizen journalists to whom he referred. I very much hope that the prediction that UK newspapers might withdraw from Northern Ireland will prove to be unfounded, but I understand the logic of what he said.

The noble Lord, Lord Bew, referred to the human rights at the heart of the Belfast agreement. He made a very important point—a new one, not emphasised by other noble Lords—about the impact on academics and the fact that leading academics might not be encouraged to go to Northern Ireland universities if they felt that they were not given the freedom that they get elsewhere.

Finally, the noble Lord, Lord Browne, asked whether I accepted the dilemma at the core of the question whether the UK Government should intervene. I say to noble Lords and, in particular, to the noble Lord, Lord Browne, that I have observed the frequency with which UK Ministers are asked to intervene in Northern Ireland for one side or another. I acknowledge the cause of concern on this issue. However, I feel as I do every time people say that UK Ministers should intervene. I acknowledge the frustration but, as the noble Lord said, this is a period of transition. It is important that we support and encourage the Northern Ireland Executive and Northern Ireland democracy. We must resist the temptation to take over whenever we have a sense of frustration.

Justice and Security Bill [HL]

Lord Lester of Herne Hill Excerpts

Monday 23rd July 2012 Lords Chamber

I strongly urge the Government to consider each of these amendments and the amendments to come. If this procedure is to come into law, it should do so only surrounded by very clear safeguards whereby judges know precisely what they have to do and litigants are not disadvantaged any more than is inevitable by the procedure being proposed.

[Lord Lester of Herne Hill]

My Lords, I am probably surplus to requirements, but I agree with each of the last four speeches and want to add a couple of obvious points. As the noble and learned Lord, Lord Goldsmith, emphasised—and I think he is the first to do so—what we are doing in Parliament now will be closely watched not only in the United States but throughout the common-law world. If the Bill goes through in its present form, I have no doubt that it will be cited as a model to be followed elsewhere, and there will be great pressure from across the Atlantic for this to happen. Therefore, we are the only safeguard to ensure that the legislation that is enacted complies with the principles of open justice, natural justice and equality of arms.

I know that the particular difficulty about intercept evidence—and I strongly support those who want to use it—is that the moment it comes to be seen by a claimant, very sensitive questions will be asked about sources and so on, and that would have to be handled with great care. However, my understanding is that in the United States intercept evidence is used, with proper safeguards. Is anything in this part of the Bill echoed in the United States in respect of intercept evidence? My understanding is that it is not, and that therefore these provisions, to which four Members of the House have objected, would not apply to equivalent United States legislation. If that is true, it is an even further argument in favour of these amendments.

[Lord Woolf]

My Lords, the submissions put before noble Lords by various Members of the House in favour of these amendments, given their source, require the very greatest attention. I make no cavil at all about the spirit in which they are put forward, but I suggest that the House needs to look at the amendments with regard to how judges operate in practice. The situations in which there are closed proceedings are very limited indeed. Here we are dealing with the use of closed material in civil proceedings, where it is even rarer for there to be the sort of closed proceedings that have been necessary in trials by jury in the criminal courts. A small minority of cases in civil proceedings are tried by a judge alone. Indeed, if there were a need for closed hearings, it would not be practical for what is envisaged here to be used in those very few cases where a jury might care because there is then a purpose in the closed proceedings. The jury could not be told of the evidence that would be the subject matter of the closed proceedings and therefore there could not be any purpose in the judge making a ruling that certain evidence should be heard in closed proceedings.

Having indicated, I hope, the context that we must look at, I find it extraordinary that it should be thought necessary for a judge, in this unusual situation when there is to be a closed hearing, to be told what he has to do to safeguard as far as possible the party which does not have access to the material. Any judge hearing these matters is going to find throughout the hearing that that is his primary responsibility. I would suggest that perhaps it is dangerous to be too specific in what he can do and what he must do because the whole of civil procedure has evolved so that a judge is put in charge of a case and he manages it in accordance with the overriding principle that is being relied on by those who wish to amend this legislation so as to achieve justice and fairness as far as possible. While I am very much in sympathy with all noble Lords who have supported these amendments, I question whether we are necessarily being constructive with regard to this issue.

What we have given as the justification for the closed procedure is that it will actually assist in achieving justice. In considering what justice is required, one must not look at the matter entirely from the point of view of one party alone. If the Government are the defendant in the proceedings, they have important responsibilities to put before the court to ensure that the rights of the citizen to be protected are not damaged inadvertently by what is proposed. We must remember that, in this very special area of national security other states are very sensitive that their material, which they regard as important for their purposes, should not come in to the public domain. It is in that situation that these procedures, as I understand them, are being proposed. As I have suggested, the judge would apply the ordinary principles with regard to weighing the material that he would apply in other proceedings, and also with regard to its admissibility. I look forward to hearing how the Advocate-General deals with the point that is now being taken with regard to the intercept evidence. That evidence is not normally admissible in proceedings, and it is not evidence that a judge can look at. I suggest that, if he were to hear it inadvertently, he would not be entitled to rely on it unless there was some reason that made it admissible.

Therefore, I hope that the Advocate-General will in due course explain why the normal rules, which I suggest must apply in so far as possible here, are not applicable also in the special circumstances of closed hearings.

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[Lord Wallace of Tankerness]

I apologise if I was equivocal, but I thought that I had indicated that the issue revolves around the use of intercept evidence, as the noble Lord, Lord Pannick, mentioned when he quoted what I said. I rather thought that the quote he used was quite unequivocal, which caused the surprise.

My noble friend asked whether the purpose of the Bill was to make inadmissible material admissible to support the Government. It is worth indicating that the purpose behind the closed material provisions is to ensure that the court can consider as much relevant material as possible, be it helpful or unhelpful to the Government. The most obvious example is material that might otherwise be excluded by PII, but material that might otherwise be inadmissible because of RIPA provisions we seek to make admissible in these provisions.

The noble Lord, Lord Pannick, indicated that the Government had not considered intercept before in closed material proceedings. Section 18 of RIPA, as amended, has a long list of contexts, including any proceedings before SIAC. The most recent time when Parliament considered this matter was in paragraph 4(2) of Schedule 7 to the Terrorism Prevention and Investigation Measures Act 2011. Were the amendment to be incorporated into the Bill, a judge in a closed material proceeding could not consider relevant intercept material because the law prevents its disclosure in open hearings.

Paragraph 9 of Schedule 2 includes provision for an amendment to Section 18 of the Regulation of Investigatory Powers Act 2000 to allow for intercept material to be admitted in any Section 6 proceedings. It is our view that the amendment is necessary if intercept material is to be adduced or disclosed in the closed part of any proceedings where the court has declared that a closed material application may be made. If Section 18 is not amended, the current prohibition on disclosure in Section 17 of RIPA will prevent intercept material being adduced within such proceedings. Consequently, it would narrow the scope of material available in the case and could undermine the wider purpose of CMPs, which is to make available as much material, helpful or unhelpful to the Government, as possible.

I have highlighted that a judge can consider intercept material in reviewing an application for a CMP or in proceedings where a declaration has been made. It is right and proper that this is the case, but I accept, and it is evident from the debate, that it is a matter that attracts views on different sides. The noble and learned Lord, Lord Goldsmith, referred to some of the history of the use of intercept evidence.

Some surprise was expressed in the report of the Joint Committee on Human Rights in response to the Government’s Green Paper on justice and security. Paragraph 49 states:

“Since one of the driving forces behind the Green Paper is said to be the Government’s desire to ensure that, wherever possible, evidence is put before a court rather than excluded from its consideration, it does seem surprising that the admissibility of intercept as evidence is not included within the scope of the Green Paper”.

It goes on:

“We accept that the Green Paper is mainly concerned with civil proceedings, and the question of the admissibility of intercept as evidence has tended to focus on its use in criminal prosecutions. However, intercept is also relied on by the Government in a number of other contexts and we find it surprising that the Government is going to such trouble to make sure that evidence can go before a judge when material which sometimes forms a substantial part of the material relied on by the Government will still not be admissible under the proposals in the Green Paper. There is now a very long history of Reports, from this Committee and others, urging legislative reform to enable the admissibility of intercept. In our Report on the TPIMs Bill, we expressed concern about what appeared to be the significant decline in the number of successful prosecutions for terrorism offences over the last few years ... We reiterate our and our predecessor Committee’s recommendations that legislation to provide for the admissibility of intercept as evidence be brought forward as a matter of urgency”.

I accept that that goes wider than is specific to this Bill, but it indicated some surprise that, in the Green Paper at least, the Government had not flagged up the possible use of intercept, if indeed the intention is indeed to get as much relevant material before the court as possible. Therefore, the Government have made provision in the Bill for that to happen.

[Lord Lester of Herne Hill]

My Lords, I am very grateful to my noble and learned friend. I agreed to those paragraphs as part of the Joint Committee on Human Rights, and it is perfectly right to draw attention to them. That is why I support the use of intercept evidence in the context of this Bill. However, the noble and learned Lord, Lord Woolf, placed justifiable reliance on the fairness of judges and the overriding interest in the interests of justice in interpreting the Bill. Would my noble and learned friend accept that when we come at least to Report, we need to consider the safeguards?

This Bill restricts judicial discretion in certain ways. It does not leave it at large. It does not leave the overriding interest in natural justice, or the pursuit of justice, as a free-standing consideration that trumps everything. Therefore, will my noble and learned friend consider with an open mind—I am sure he will—questions such as AF disclosure to special advocates as one of the safeguards to try to do the best we can to secure equality of arms in this context?

[Lord Wallace of Tankerness]

My Lords, that perhaps goes wider than the specific issue of intercept evidence. However, I have of course indicated on a number of occasions a willingness to engage.

For completeness, my noble friend asked about the United States procedures. While they are similar in many respects, it is important to remind ourselves that the legal frameworks between the United States and the United Kingdom also differ. There are significant operational differences, so comparisons are of limited value, but it is certainly an issue on which I am willing to engage with my noble friend.

It is clear that there are different views on this and, in his memorandum to the Joint Committee on Human Rights, Mr David Anderson QC, the independent reviewer of terrorism legislation, said:

“The major benefit of existing CMPs are that they allow the court or tribunal to decide the issues before them on the basis of all the evidence—including the intercept evidence that is otherwise not admissible in legal proceedings. If a CMP is to be introduced into civil proceedings, it should be on condition that section 18(1) of RIPA be amended so as to add civil litigation CMPs to the list of proceedings in which intercept evidence can be admitted”.

On the point made by my noble friend Lord Marks, I think there is a perception that this will always be in the interests of the Government. I accept the decision of Mr Justice Ouseley in the case of AHK, which I think related to naturalisation and so would come out separately under Clause 12 but under a judicial review. The Secretary of State might well, in a judicial review, come to a particular decision because she had access to material from intercept. If that evidence is not to be made available, and is to be withheld from the court that is considering a Secretary of State decision that is being judicially reviewed, justice might well not be done to the claimant.

The point is that other statutory CMPs can hear RIPA material—intercept evidence. Therefore, the exception to the rule would be if we did not allow this RIPA material to be held in civil proceedings, which could be to the detriment of claimants bringing cases against the Government. It is very clear that this is an issue that we will wish to consider.

On the point made by my noble and learned friend Lord Mackay of Clashfern, I accept that there are important differences between criminal procedure and civil procedure. I am advised, too, by my noble friend Lord Henley that your Lordships will have another opportunity to explore this issue when he answers an Oral Question from the noble and learned Lord, Lord Lloyd, tomorrow on the wider issues relating to intercept evidence.

There are evidential differences between criminal and civil proceedings, so the fact that intercept evidence may be used in closed material proceedings of a civil nature does not read across to criminal cases where the disclosure obligations on the prosecution to the defence are much stronger than the corresponding disclosure obligations in civil proceedings.

I have sought to address the specific points of procedure that were mentioned by my noble friend Lord Hodgson and the noble Lord, Lord Dubs, as well as to deal with the issue of intercept evidence. I hope that, having heard these arguments, the noble Lord will withdraw his amendment.

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[Lord Lester of Herne Hill]

My name is also on this amendment. When I heard my noble and learned kinsman Lord Woolf indicate in his speech why we should trust the judges, I was reminded of what Archbishop William Temple once said:

“Whenever I travel on the Underground I always intend to buy a ticket, but the fact that there is a ticket collector at the other end just clinches it”.

However good our judiciary might be, it is important that the legislation should just clinch it.

The principle of open justice is a constitutional one anchored in our written and unwritten law and in the Human Rights Act both as regards the right to a fair and public hearing of civil and criminal proceedings protected by Article 6 of the convention, and the right to freedom of expression protected by Article 10. As my noble friend Lady Berridge has indicated, the principles were laid down most famously in Scott v Scott in 1913 when Lord Haldane, Lord Chancellor, referred to:

“the general principles as regards publicity which regulated the other courts of justice in this country”,

as being of “much public importance”.

“They lay down that the administration of justice must, so far as the trial of the case is concerned, with certain narrowly defined exceptions . . . be conducted in open court”.

Later Lord Haldane noted in the same case that the power of an ordinary court to hear in private cannot rest merely on the discretion of the judge. He said:

“If there is any exception to the broad principle that requires the administration of justice to take place in open court, that exception must be based on the application of some other and overriding principle which defines the field of exception and does not leave its limits to the individual discretion of the judge”.

The principle of open justice was reaffirmed by the English Court of Appeal, including the noble and learned Lord, Lord Neuberger, the Master of the Rolls, whose appointment as president of the Supreme Court I am sure we all greatly welcome. That Court of Appeal, as recently as 7 February 2012, was dealing with the successful appeal against the refusal by the district court to grant access to documents supplied to the court for the purpose of extradition to the United States of two individuals alleged to have been involved in bribing Nigerian officials by a subsidiary of the US company Halliburton. Lord Justice Toulson gave the leading judgment, in which he observed that the principle of open justice,

“has been recognised by the common law since the fall of the Stuart dynasty”.

After he quoted from Scott v Scott, he cited a New Zealand case, Broadcasting Corporation of New Zealand v the Attorney-General, in which the president, Sir Owen Woodhouse, another great and famous jurist, observed that,

“the principle of public access to the Courts is an essential element in our system. Nor are the reasons in the slightest degree difficult to find. The Judges speak and act on behalf of the community. They necessarily exercise great power in order to discharge heavy responsibilities. The fact that they do it under the eyes of their fellow citizens means that they must provide daily and public assurance that so far as they can manage it what they do is done efficiently if possible, with human understanding it may be hoped, but certainly by a fair and balanced application of the law to the facts as they really appear to be. Nor is it simply a matter of providing just answers for individual cases, important though that always will be. It is a matter as well of maintaining a system of justice which requires that the judiciary will be seen day by day attempting to grapple in the same even fashion with the whole generality of cases. To the extent that public confidence is then given in return so may the process be regarded as fulfilling its purposes”.

Lord Justice Toulson of course recognised that there are exceptions to the principle of open justice, but they must be justified by some even more important principle. In the Binyam Mohamed case, the Lord Chief Justice, the noble and learned Lord, Lord Judge, declared:

“Without the commitment of an independent media, the operation of the principle of open justice would be irremediably diminished”.

He recognised the special significance of the open justice principle in cases involving allegations of wrongdoing against the Executive.

As my noble friend Lady Berridge observed, the Joint Committee on Human Rights, in its report on the Green Paper, pointed out that the significant implications of the Government’s proposals for freedom of the media to report matters of public interest and concern did not feature at all. The committee regarded that as a “serious omission” and, at paragraph 217, called for the,

“human rights memorandum accompanying the Bill to include a thorough assessment of its impact on media freedom and on continuing public confidence in the administration of justice”.

When it came, the human rights memorandum contained just four brief paragraphs, paragraphs 32 to 35, asserting that the Bill is compatible with the freedom of the press because,

“in all cases where the test for closed proceedings is met it will be possible to justify the interferences with Article 10 rights as necessary and proportionate in the interests of national security”.

The Government’s response to our report provides even less comfort on that score. It states at page 15 that, in the Government’s view,

“the proposals will enhance transparency and public trust, not undermine it”,

and that,

“the media can be expected to have increased opportunities to report on substantive findings in cases that raise matters of significant public interest”,

because more relevant material will be put before the court to enable it to reach a decision in cases which currently cannot proceed. It is disappointing that there is nothing in the Bill so far to address the JCHR’s significant concerns about the impact upon media freedom and democratic accountability. As it stands, the Bill would undermine principles that have guided this country for centuries, threatening to violate open justice and free speech where they are most needed, especially in the context of cases involving allegations of wrongdoing by citizens against the executive.

I will not trouble the House with the convention case law that supports all of this, but I will say that to avoid arbitrary laws there are two fundamental requirements anchored in our legal system and in the convention. First, the law must be reasonably certain and foreseeable so as to be accessible to the citizen. Secondly, the law must provide adequate safeguards against abuse. The memorandum from the Government on the convention issues does not mention these vital safeguards of the rule of law and constitutional rights. The Bill as it stands would authorise the courts in future cases, without any prescribed and foreseeable criteria and safeguards, to operate a closed system of justice, shielded from public scrutiny. The virtue of Amendment 69ZA is that it requires rules of court to be made that would strike a fair balance between open justice, freedom of expression and national security, while satisfying the principles of common law and the convention.

Finally, as the noble Lord, Lord Pannick, and the noble Baroness, Lady Berridge, have indicated, on the question about the publication of judgments in this area, the principle of legal certainty makes it absolutely essential that everybody should know the nature and scope of the relevant law. I remember in arguing the thalidomide case at Strasbourg many years ago that, because of the uncertainty of the law, we relied on the abuse by a Roman emperor who wrote the law on the top of very tall pillars, which prevented Roman citizens from being able to see it properly. That is an example in Roman law of the vice of legal uncertainty. A similar problem will arise if judgments given by the courts in cases of this kind remain altogether secret with no safeguards for them to be published when their secrecy is no longer necessary. I very much hope that those points will be addressed, whether in these amendments or others.

[Lord Beecham]

My Lords, we have previously debated amendments that would help to secure oversight of this system, if indeed this Bill survives the legislative process. Most, though not all, noble Lords who have spoken in the debates in Committee have expressed considerable reservations about the principle. Most have then spoken to amendments that would mitigate the effect of the principle if indeed it emerges in the final transition of the Bill to the statute book.

For my part, I concur very strongly with the views of the noble Lord, Lord Pannick, and the noble Baroness, Lady Berridge, regarding the establishment of a system for identifying the case law and the judgments and making them available, at some point at any rate, to inform the judicial process. That seems very important to me and certainly I lean towards amendments that ultimately would require the publication of reasons for a decision.

I am less attracted, however, by the first parts of the amendment moved by the noble Baroness, which would allow the media to intervene in proceedings. I am not quite certain of the form in which such intervention would take place, but in any event I am not at all persuaded thus far that this is something that would materially assist the process as opposed to simply promoting the interests of the media. It is difficult to see how that would work in practice, so we cannot support those elements of the amendment.

However, we look to the Government to respond constructively to the points made about the recording and availability of case law and the justification for particular decisions being made at a point when security interests are no longer as strong as when the closed material procedures, if indeed they exist, are implemented in a particular case. There ought at some point to be a disclosure. To that extent we sympathise with that part of the amendment, but in relation to its first parts we cannot really support what the noble Baroness is trying to do.

--- Later in debate ---

Bearing in mind that throughout the proceedings the judge would be in a position to ensure that closed proceedings were used only to the extent necessary to protect national security interests, we are satisfied that the restrictions are compatible with Article 10.

[Lord Lester of Herne Hill]

I fully accept that Article 10(2) has exceptions and that the Bill falls within those exceptions. The problem is one of a lack of legal certainty. As my noble friend has indicated, the restrictions must be prescribed by law, and legal certainty therefore requires some accessibility. When courts think of making injunctions that affect freedom of speech, such as Spycatcher-type injunctions, they give notice to the press so that it can come along and explain why it thinks that the procedure or injunction is inappropriate. I perfectly understand, as the noble Lord, Lord Beecham, said, that there is an objection to the press being present throughout the proceedings, but I have not so far heard any reason why the press cannot at least be informed. The press could come along on a Section 6 application and explain why it thinks that the procedure is appropriate when wrongdoing has been alleged. I do not understand, either, why there should be no mechanism to ensure that judgments that are secret should be published when they have lost their secrecy. Those are the kinds of issues that arise under Article 10.

[Baroness Stowell of Beeston]

I shall come on to the issue of redacted judgments in a moment. As to whether the press should be notified at the point of application for a CMP, it may well be informed, but it will not be informed if the issue is related to national security. That is the clear distinction between this kind of case and a PII case because, if the Secretary of State is making an application under CMP, she is doing so because she considers national security to be at risk.

The important points of principle for certainty are generally dealt with on the face of the open judgment. When that is published, the certainty that the noble Lord looks for will be provided. Sensitive details of the case may not be released but this does not mean all details will be placed in closed judgments. Judges are well accustomed to considering what material is published in a final judgment. At the moment the media and the public do not get this information. Instead, they are left with accusations that have not been investigated.

[Baroness Stowell of Beeston]

As I understand it, in some instances the fact of the application will not be made public because that is also what happens now under PII. If the knowledge that the application has been made could give rise to concern about national security, it would not be made public, but that does not mean that all applications would be kept secret. If necessary, I will come back to clarify that point for the noble and learned Lord.

On the points covered in proposed new paragraphs (d) and (e), to which all noble Lords have referred, about closed judgments and the point at which they may no longer be considered classified or secret and could be made public, I refer noble Lords to the extended debate in Committee last week when my noble and learned friend made the following point:

“The Lord Chancellor's code of practice on the management of records, issued under Section 46 of the Freedom of Information Act 2000, provides guidance on the management of records held by bodies subject to the Public Records Act 1958. Authorities are required to identify records worthy of permanent preservation and transfer them to the National Archives”.—[Official Report, 17/7/12; col. 209.]

However, we are considering this matter and will continue to do so between now and Report.

My noble friend Lady Berridge referred again to the database of closed judgments. I responded to her last week, I believe, that that issue is now in hand because of the useful contributions from the JCHR on this matter. She went on to ask whether it could go beyond the head notes to form cases. I do not have an answer for her at the moment but I will, of course, come back to her. As to the very specific points raised about the same issue by the noble Lord, Lord Pannick, I believe that I have already covered those in the remarks that I have just made.

In conclusion, we are discussing points of fundamental importance concerning freedom of the press and public trust in the justice system. I will come back to the noble and learned Lord on his point, but I hope that I have been able to demonstrate that the Bill will help to enhance transparency and public trust rather than undermine them, and in doing so we will reinforce the principles of open justice while protecting the UK’s national security.

I noticed the noble and learned Lord looking at me rather sceptically then. Before I sit down, I think that it is worth repeating that during this process only some material will be considered in closed proceedings. The material that will be in open proceedings will be accessible to the media, and there will be more than there is at this time. The arrangements being considered will ensure that the media will have access to the cases in a way that is consistent with their responsibility to report and to hold the Government to account, but, as I said at the start, they do not have a formal role in that process. Primarily what we are looking for in this Bill is that we are allowed to ensure that justice is done where it has not been seen to be done previously. That is an essential part of what we are trying to achieve. I hope that my noble friend feels able to withdraw her amendment.

[Lord Lester of Herne Hill]

The Minister has referred twice to the vital principle that justice must be done, but on neither occasion has she added the usual part of that, which is that justice must be done and must manifestly be seen to be done. Between now and Report, could the Government reflect on the implications of having a procedure where even the fact of an application for closed proceedings under Clause 6 would be secret? I know of only one precedent for that kind of thing in this country. It was Defence Regulation 18B during the Second World War, which led to the infamous decision in Liversidge v Anderson. I cannot believe that such a conclusion is what the Government really intend.

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[Lord Pannick]

My Lords, I share the concerns that have led to these amendments. The views of the Committee and the other place on whether the Bill contains an adequate balance between justice and security will depend on the scope of the Bill and on the scope of the concept of relevant civil proceedings. The wider the scope of the Bill, the less willing Parliament will inevitably be to approve Part 2; and the wider the scope the more willing Parliament must be to include amendments that provide safeguards in respect of the closed procedures.

Given that we are debating this Bill on the basis of the current scope that it contains, it seems fundamentally wrong in principle to give the Secretary of State a power thereafter to expand the Bill’s scope in a manner that when that proposal comes before Parliament will prevent us proposing any amendments that would introduce necessary safeguards that Parliament might think are required in the light of the expanded scope of the Bill.

With the Committee’s permission, I shall return—I have checked the facts—to a matter raised by the noble Baroness, Lady Stowell, in her response to the previous group of amendments. She told the Committee, as I understood her, and as the noble and learned Lord, Lord Falconer of Thoroton, understood her, that the Government may envisage that an application for a closed material procedure may be made in secret, without notification to anyone. My understanding, which I have confirmed, is that under the old control order procedure and the existing TPIM procedure, the application for a closed hearing is always made in public. Indeed, it has to be made publicly because the whole point of the special advocate procedure is that the special advocate before the closed procedure starts can talk to the litigants concerned and obtain information from them.

Furthermore, once a judgment is given, there is always an open judgment, which always refers to the closed judgment—if there is a closed judgment—without of course disclosing the confidential material that is in the closed judgment.

Like the noble and learned Lord, Lord Falconer of Thoroton, I would be very grateful if there could be clarification as soon as possible as to whether it is really the Government’s intention, in relation to the closed material procedure, that applications could be made in secret, entirely differently from how the control order and TPIM regime works.

[Lord Lester of Herne Hill]

My Lords, I have a couple of extra concerns to add to what has already been said. The first is political. As I understand it, this Bill has been introduced on the express understanding of both parts of the coalition that coroners’ inquests would be excluded. I see my noble and learned friend nodding in agreement to that. However, the power that is included here would enable a future Secretary of State to take that away, either during the coalition Government or when the coalition ends. That would be a breach of faith, and we should not now be legislating in a way that makes that possible. It seems to me to be a condition of this Bill that under no circumstances is it to apply to coroners’ inquests, for all the reasons that the Joint Committee and everyone else put forward.

My second problem is that these are civil proceedings, as we are constantly being reminded, so they affect the civil rights and obligations of the parties to those proceedings. When we were enacting the Equality Bills, the question frequently arose as to whether it would be fair and reasonable for a Government to take a power to amend the exceptions to that legislation, which is civil, in order to affect the rights and freedoms of the individual. In introducing both the Equality Act 2006 and 2010, the previous Government took powers to amend, but only by means of removing exceptions, not by anything that would affect the fundamental balance of civil proceedings.

What troubles me is that if this Bill goes through without adequate safeguards of the kind we are pressing for, the use of the powers conferred to amend—to add tribunals by delegated legislation—will not be able to add further safeguards; the question will only be whether a new, further tribunal may be added. That will fundamentally affect, anyhow, the rights and liabilities of the parties to that tribunal.

To take the example in the employment field referred to by the noble Baroness, Lady Turner, one can add a whole new set of restrictions that would apply, for example, to civil litigation in the employment field. That is not something that any previous Government would have contemplated. These powers are not simply Henry VIII in analogy, but maybe a later generation of kings under the Stuarts.

[Lord Butler of Brockwell]

My Lords, it is clear from this debate that two types of issue arise with this group of amendments. One is the issue of whether this is an appropriate use of delegated powers. The other could be described as an issue of policy: whether it is right for the Government to keep open the possibility of adding other types of proceedings, particularly inquests, to those to which the procedures in this Bill are available.

On the first matter of whether this is an appropriate use of delegated powers, as the noble Lords, Lord Soley and Lord Marks, said, we had a long and agonised debate on this in the Delegated Powers Committee. I do not need to add to what the noble Lords said; they summarised the case very well. The reluctance of the Delegated Powers Committee is evident from the words of the conclusion that it reached, where it said that,

“we are reluctant—albeit with considerable misgivings—to recommend in terms that the delegation of powers in clause 11 is inappropriate”.

In other words, the committee was not prepared to go as far as to say that this use of delegated powers was inappropriate, but it thought that this should be a matter for the opinion of the House, and it thought also that the House should consider whether some constraints and limitations should be put on that. I hope that is a matter that the Government will consider.

On the question of policy, as to whether it is right to retain a power to extend the range of proceedings to which the powers in the Bill would be appropriate, I deal directly with the sensitive issue of inquests and coroners’ courts, because that is where the shoe would be most inclined to rub. The noble Lord, Lord Lester, suggested that the Government have declared a policy of excluding inquests because this was the agreement on both sides of the coalition. My impression, I must say, is that this conclusion was reached with greater enthusiasm by one party to the coalition than the other. Indeed, I have heard on one or two occasions the Secretary of State for Justice being asked why this conclusion was reached and he has not been able to give a very convincing answer, other than that this was the way it came out in discussion.

It is difficult to see why the logic that the Government have applied for closed proceedings in other cases should not be available in inquests. The logic is rather similar. It is not often that I disagree with the noble Baroness, Lady Williams of Crosby, and I entirely see her point that it would be very distressing for the public if the proceedings in an inquest could not be entirely in the open. However, again the question arises: is it more disturbing to the public that some proceedings should not be open, or that there is some material relevant to the conclusion of the inquest that is not brought to bear at all? This is the issue that arises with the rest of the Bill. It is quite difficult to see why the Government have reached this conclusion in one case and an opposite conclusion in the other.

[Lord Lester of Herne Hill]

My Lords, the noble Lord, Lord Butler of Brockwell, has great experience of ordinary majority Governments but none at all of coalition Governments. Will he accept that we are now in a different world from that which he ever experienced, and that when you have coalition Government, and the two parties to the coalition reach an agreement, if the coalition is to survive and prosper, that agreement must be followed, however difficult for one party or the other?

[Lord Butler of Brockwell]

My Lords, I am not denying for a moment that this is a conclusion of the coalition. It clearly is. I am just asking whether it is a very logical conclusion.

This is a serious point. There are, I believe, 30 inquests waiting to happen in Northern Ireland, which still have to be undertaken. It is difficult to foresee all the circumstances that might arise. We have got to allow for the possibility that there might be proceedings—inquests, but also perhaps other proceedings—where we would wish, the Government would wish, and perhaps the public would wish, that it would be better that secret information was taken into account than it was not taken into account at all.

For that reason, and with the same reluctance that the Delegated Powers Committee had, I come down, on balance, on keeping these provisions in the Bill. The Government have said they not going to use them, but I think it would be wise to keep the provisions in the Bill, in case circumstances arise in which we would regret their absence.

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[Lord Lester of Herne Hill]

Does the noble Lord accept that there is no monopoly of knowledge about national security? I served a Home Secretary long before the noble Lord and we fashioned the first anti-terrorist legislation in 1974. Would he accept that one of the worst things we can do is to fashion legislation in this country that gives colour to the idea that British justice is second-rate or discriminatory in balancing national security and liberty?

[Lord Reid of Cardowan]

On the noble Lord’s first point, I not only accept that but I recognised in my opening remarks that people here other than me had discharged that responsibility. I agree entirely with his second point. At heart, the struggle—not the only struggle but the major one—is a battle of values. It is an ideological battle. Certainly, it displays itself in acts of terrorism, bombs or death but at heart it is a clash of values. Therefore, everything we do has to be seen in that context. There is a propaganda weapon for those who oppose the very essence of our values if we conduct our affairs so that there is an obvious contradiction between the values we espouse and what we do. However, that has to sit alongside the fact that, on some occasions, these values have to be defended as a whole. That has meant that we have had to take abnormal measures on occasions. The key thing is accepting that they are abnormal and extraordinary, rather than trying to pretend that somehow they are just run of the mill or justifying them on the existing system. The second thing is to make the argument about why they are necessary. If one fails to make this argument, one will end up in the position indicated by the noble Lord, where what one does appears to contradict what one says.

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Moved by

[Lord Lester of Herne Hill]

71: Clause 13, page 10, line 4, at end insert—
“( ) Section (Statutory PII for national security sensitive material) applies in disclosure proceedings to which this section applies.”

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[Lord Lester of Herne Hill]

My Lords, in moving the amendment, I have to speak to the other 14 amendments which have been grouped, which are all to do with the Norwich Pharmacal principle. That does not include Amendments 76 or 80. The amendments are designed to include the scheme created by the Bill for what is known as Norwich Pharmacal applications in national security cases. A Norwich Pharmacal application is made for disclosure of documents or information where five conditions are met. These are as follows. First, the claimant has to show that he has an arguable case in the main litigation. Secondly, the defendant has to be involved in or mixed up—whether innocently or otherwise—with the underlying claim. Thirdly, the Norwich Pharmacal jurisdiction is the remedy of last resort, so the claimant must show that he or she has no other way to obtain information. Fourthly, the court will order only such limited disclosure as is shown to be necessary. Fifthly and ultimately, the court must be satisfied, having taken into account each of those factors that the information should be disclosed in the public interest.

The Norwich Pharmacal procedure is a common law procedure devised by the great Scottish Law Lords, Lord Reid and Lord Kilbrandon, with three English Members of the House of Lords. I mentioned that because one of the Government’s less good ideas is that it does not apply in Scotland. I have little doubt that if a case arose, it would apply in Scotland. I placed in the Library my research into Norwich Pharmacal worldwide, and it is applied throughout the common law world and, in a slightly different form, in the United States.

This will test whether I would be any good as a diplomat. The United States is a key ally. It is essential that our security services and theirs should be able to co-operate fully on the basis of mutual trust and understanding. I entirely understand, as did the Joint Committee on Human Rights, the need to give full reassurance to our allies across the Atlantic that the British justice system fully protects national security in all relevant contexts.

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The choice that we as a Parliament have is whether we take the route that the noble Lords, Lord Pannick and Lord Lester, are offering us, which is to accept the factual basis that Mr Anderson is putting, but make it as absolutely narrow as possible. Then we will be able as a nation to turn around to our allies and say, “You can be pretty sure that you can protect the information that is given on the control principle, because ultimately a certificate from the Secretary of State keeps the courts out”.

[Lord Lester of Herne Hill]

My Lords, the noble and learned Lord has expressed his opinion so clearly that I find it very difficult to ask him a question. The burden of what he is saying is that he thinks that the solution is an absolute ouster clause—something that makes the Minister’s certificate conclusive in all circumstances. My understanding is that that is not the position under the law of the United States. Even with its State Secrets Protection Act and its Patriot Act, it does not go that far.

The evidence in the Binyam Mohamed case that was given by Mr Morton Halperin was that intelligence services in both countries recognised that there are some rule-of-law exceptions. What troubles me is that there are cases now pending in the European Court of Human Rights with names such as al-Nashiri, I think, where the court is requiring States parties to disclose information where there are allegations of rendition and torture. Will the noble and learned Lord at least accept that the Bill could limit the power of the Secretary of State to certify so as to exclude the grossest cases of human rights violations so that it is not completely absent, that being an obligation on the Secretary of State that might or might not be traditionally reviewable?

[Lord Falconer of Thoroton]

There are two points. First, I am seeking to say what the dilemma is for the House. It is necessary for the House first to come to a conclusion about whether there is a difficulty in relation to the flow of information. If it comes to the same conclusion as the Joint Committee on Human Rights came to, based on Mr Anderson’s evidence, the question is: what is the right solution? I think that everyone around the House agrees that it should be proportionate.

On the specific questions, I am not in favour of a complete ouster and, as I understand it, neither are the Government, because they are saying that any certificate given by the Secretary of State is subject to judicial review, so it would not be an ouster of a sort that other Ministers tried on previous occasions. This would leave in the ability to say, “Could a reasonable Minister have given such a certificate?”. There are two bits to that. The approach of the noble Baroness, Lady Williams, is to cut out of the approach that is being suggested anything that might make an allegation of human rights abuse. I can see the attraction of that, but the consequence is probably that Norwich Pharmacal is left untouched, and you have the problem of less intelligence coming. I do not want to sound too dramatic but the indications from the intelligence services, which I do not question in any way, tend to be that that might have a significant effect on the Executive’s ability to protect more individuals. I can see the former head of one of the intelligence services behind me correcting me on this, but it is quite a significant part of the ability to protect ourselves.

If one took the route of the noble Baroness, Lady Williams—if I may call it that—that would avoid giving any protection at all. The route of the noble Lord, Lord Lester, is, “Take the approach that is being suggested. Have the ability to certify. Limit it to the control principle. Cut out everything else. Make it judicially reviewable but accept that there are occasions when there will be gross breaches”. I think he is suggesting in his Amendment 85 that it is something more than a judicial review balance, something else apart from judicial review, because it says in effect that the principles of judicial review will apply to considering where the public interest lies, including considering whether there have been gross breaches of international law. That is not quite the wording but that is what it amounts to. That still seems to me like judicial review, so it is for the Minister to decide whether there is a basis for concluding that it might affect the control principle. If he comes to that conclusion, the certificate is not attackable. That appears to be what is being proposed.

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[Lord Wallace of Tankerness]

Yes, the court would see it. If I have got that wrong, I will certainly say so; but I think that that is the whole point of having closed material proceedings. The material can be made available to the court so that the whole picture can be obtained. The Secretary of State retains the option not to put the material into the public domain, although consequences may flow from that.

[Lord Lester of Herne Hill]

My Lords, I hope that I will not be criticised for seeking easy popularity in this House by saying that I am going to make a very short reply. I regard the dinner hour as something that should happen at the customary time for dinner, and not breakfast. I am conscious that my noble friend Lord Howell of Guildford and his colleagues have another very important debate to come.

I shall simply say this. First, I am extremely grateful for what has been a most important debate. I am particularly grateful to the Minister for his very full reply, so full and so interesting that I think studying it carefully will be very beneficial. I am a bit more pessimistic than he is, and perhaps more so than the noble and learned Lord, Lord Falconer of Thoroton, about the ability to keep the courts away when there are cases of indirect, and not direct, responsibility. There are knotty and difficult questions about the Human Rights Act, the European Convention, extra-territoriality, jurisdiction and so on. I am not yet persuaded that the certification procedure, perhaps extended beyond these amendments, is not the better approach, with limited judicial review. That is something we will need to consider. However, I am grateful to everybody. I agree in particular with the noble and learned Lord, Lord Falconer, that we should seek the minimum necessary to give reasonable and complete assurance.

Finally, I want to say to my noble friend Lady Williams of Crosby that most of what I have learnt about the law was in the United States in the early sixties. It is not really true that the United States has not been a friend of international human rights. On the contrary, whether we start with Nuremburg, the UN International Covenant, the International Criminal Court, or in other ways, the United States has been championing international human rights. The only snag is that it will not apply them in the United States itself in the way that we do. Nevertheless, I learnt most of my international human rights law there and not here. I hope that what I have said may one day be read by the legal adviser to the Department of State, my good friend Harold Hongju Koh, who will understand that I respect its system very much indeed. I also agree with all of those who say that we must find a way of winning its unqualified support in sharing national security information. I beg leave to withdraw the amendment.

Amendment 71 withdrawn.

Justice and Security Bill [HL]

Lord Lester of Herne Hill Excerpts

Monday 23rd July 2012 Lords Chamber

[Lord Pannick]

My Lords, I have added my name to this amendment. Nobody who has listened to or read our debates on Part 2 of this Bill over the past few weeks could doubt the importance or difficulties of the issues that we have been considering. Parliament may well decide that it is necessary to include these provisions in Part 2 but they undoubtedly are a departure from the fundamental principles of the common law. There is no doubt that they have a considerable novelty. It is essential that Parliament keeps these procedures under close review. Indeed, how these provisions are operating in practice will be vital to the balance between justice and security, which the noble and learned Lord the Advocate-General for Scotland has repeatedly and correctly in my view emphasised is the primary concern. An obligation on the Secretary of State to bring these matters back to Parliament for an extension of these provisions after a year will focus the mind of the Secretary of State and officials. It will give this House and the other place an opportunity to look at what has happened in practice. I hope that we will also then have the advantage—and it will be a real advantage—of seeing a report from the much respected independent reviewer of terrorism legislation, Mr David Anderson, on how these provisions have been applied.

I hope that I am not out of order in saying that I would very much hope that noble Lords might have the opportunity to hear directly from Mr Anderson, as we always benefited and still benefit from hearing his equally respected predecessor, the noble Lord, Lord Carlile of Berriew. The noble and learned Lord the Advocate-General for Scotland might want to suggest to his right honourable friend the Prime Minister that it would be most helpful to noble Lords if Mr Anderson were able to express views in this House as a noble Lord and participate in our debates. Whether we hear from Mr Anderson directly or indirectly I strongly support the amendment.

[Lord Lester of Herne Hill]

I am not sure that David Anderson QC can be made a Peer with sufficient speed to meet the wish of the noble Lord, Lord Pannick, but I can tell the Committee that the Joint Committee on Human Rights has asked him to give further evidence and we are anticipating preparing a report in time for Report stage that will include his views. That part of the amendment may be met through the committee system in an ordinary way.

[Lord Beecham]

My Lords, the sun has already set here, although not in Newcastle or even further north, so I shall not detain the Committee long. I support the amendment moved by the noble Baroness. She is absolutely right in what she said. I make an additional suggestion to that of the noble Lord, Lord Pannick, which is that the Intelligence and Security Committee could look at the position at the end of the year. Its deliberations could no doubt inform the discussion that will take place here and in the House of Commons in relation to an annual renewal. A number of assertions have been made about the likelihood of there being only a small number of cases and the impact of the proposed changes. Following the precedent referred to by the noble Baroness, it would be well to monitor those at least for a period until we can see clearly how the legislation works out in practice. I commend the amendment to the Committee.

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Moved by

[Lord Lester of Herne Hill]

90: After Clause 14, insert the following new Clause—
“Overriding objectives
In performing their functions under this Part, the Secretary of State and the court must have regard, in particular—(a) to the overriding objective of protecting the interests of justice and fairness, and(b) to the need to ensure that any interference with the principle of open justice is no more than is necessary to protect the interests of national security.”

[Lord Lester of Herne Hill]

My Lords, the noble Lord, Lord Campbell of Alloway, once gave me some very wise advice. It was a kind of rebuke. He said, “Never make a serious point after the dinner hour”. I am sure that that was indeed wise advice, but I am going to make a serious point nevertheless.

The noble Lord, Lord Pannick, and I listened very carefully to the debate that took place on 11 July when the noble and learned Lord, Lord Wallace, indicated that he could not make a concession at that time about the principle of proportionality, but he would listen very carefully to what had been said by the noble and learned Lord, Lord Falconer of Thoroton, my noble friend Lord Thomas of Gresford and myself.

The principle of proportionality sounds foreign except to those who have had a proper classical education who will remember that the Greeks themselves and their philosophers developed the idea of the golden mean and a sense of proportion. That idea is rooted in our legal and political system and is as English as roast beef, Yorkshire pudding, and roast potatoes. It simply requires that the decision-taker should not use a sledgehammer to crack a nut.

Amendment 90 seeks to embody in the Bill principles which have to be taken into account by the Secretary of State and by the court in the way in which they interpret and apply the provisions of the Bill as a whole. It therefore requires that, in performing their functions under Part 2, the Minister and the court,

“must have regard, in particular … to the overriding objective of protecting the interests of justice and fairness, and … to the need to ensure that any interference with the principle of open justice is no more than is necessary to protect the interests of national security”.

Even though the Government may be unable to accept some of the other more prescriptive amendments, I very much hope that this amendment will find favour. I beg to move.

[Lord Pannick]

My Lords, I added my name to this amendment because, in light of the importance, the difficulty, the novelty, and the sensitivity of the issues that we have been debating, it is highly desirable that the Bill states on its face the objectives which the Secretary of State and the courts must seek to advance. The overriding objective of the courts is, indeed, to protect the interests of justice and fairness. That is what the Civil Procedure Rules state. Any interference with open justice must surely be confined to what is necessary, as the amendment says,

“to protect the interests of national security”.

Who could possibly object to that?

[Lord Butler of Brockwell]

My Lords, I rise to make a brief point. I do not doubt the seriousness of the noble Lord, Lord Lester, even after dinner—nor his good intentions. However, it seems to me that the word “overriding” introduces a dangerous note of ambiguity. What does it override?

[Lord Lester of Herne Hill]

I am sorry to interrupt but those words come from our governing Civil Procedure Rules. I did not invent them. It is described as the overriding objective because that is the fundamental principle of the rule of law.

[Lord Butler of Brockwell]

I think we agree that there are certain circumstances where the interests of justice and fairness should not override national security. We are seeking a balance. I would have no objection to this amendment if it said,

“must have regard … to the objective of protecting the interests of justice and fairness”,

followed by subsection (b).

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[Lord Wallace of Tankerness]

My Lords, it is fitting, albeit after the dinner hour, that we come to consider this amendment at the end of our detailed consideration of the Bill in Committee. My noble friend Lord Lester and the noble Lord, Lord Pannick, have proposed an amendment that highlights important issues of principle that we have come back to continually in our debates, particularly when considering Part 2. It covers the values of justice and fairness, and how we ensure a proportionate response when the interests of the safety and security of the United Kingdom appear to conflict with the principle of open justice.

I agree with both noble Lords about the importance of these values. The fundamental rights to justice and fairness have guided the development of the provisions of this Bill from the beginning. I hope it has become clear during our debates, and as I said following the contribution earlier by the noble Lord, Lord Reid of Cardowen, that I do not believe there should be a binary choice between justice on the one hand and security on the other. That seems to be a false choice. The question is what we can do in the best way to maximise our achievement of both aims. The Lord Chancellor made clear in his foreword to the Green Paper that preceded this Bill that:

“These are matters of profound importance which go to the heart of our democratic values and our belief in human rights, justice and fairness. Inevitably they are immensely complex and difficult—but we must not shy away from this debate”.

I do not intend to go over all the points that have been made on this amendment and in earlier debates. Many of them are very much the issues that the Government have wrestled with when trying to formulate the provisions of this Bill. For example, the Government believe that there is scope for securing greater justice and fairness in our approach to civil proceedings. In particular, we have highlighted the difficulties where sensitive national security information is so relevant to the case that the current arrangements require the Government to make a choice between the justice of a fair judgment based on all the relevant evidence, even if that risks damage to national security, and the need to protect the safety and security of this country, even if that is at the expense of costly settlement in relation to serious allegations that the Government believe are unmeritorious. I therefore agree with all noble Lords who have spoken both to this amendment and in our preceding debates that these values are important.

I cannot fully support the amendment because I am not satisfied that the Committee has been given a satisfactory explanation of its effect in practice. It is all very well to agree the principles, but how would the Secretary of State behave differently under the present provisions in the Bill, and how would the courts behave differently? The Bill sets out in clear language the duty and functions of the Government and the courts, and if the Committee disagrees with that formulation, that is the whole purpose of our deliberations both at this stage and the next.

The second point is that the Government view the amendment as unnecessary as the Bill encapsulates the Government’s respect for the interests of justice, fairness and proportionality. I know that it is a matter that we have debated and which I confidently predict we will continue to debate.

Fundamentally, the Government consider that in the very narrow circumstances in which, under this Bill, material may be heard in closed session, such material should be considered by the court rather than excluded from it by a public interest immunity certificate. We must also protect information that is shared with us in confidence or that would inhibit the ability of our security intelligence agencies to keep us all safe if there is a risk that it could be disclosed.

Fairness, justice and proportionality are also reflected in the narrowness of the application of Part 2 of the Bill and the safeguards that are set out there. The Secretary of State must first consider public interest immunity before applying for a declaration that closed material proceedings may be used. Closed material proceedings are available only where disclosure of the material would damage national security and not on some wider public interest ground. Even where the court grants a CMP declaration, those civil proceedings remain entirely open, pending painstaking scrutiny by the court of each piece of material which the Government wish to have heard in closed session. If the court refuses to hear material in closed session, the court has real powers in the event that the Government nevertheless wish not to disclose the material. The court can require concessions or can exclude the material.

Above all, we believe that the CMP proceedings will be fair. I say that with confidence because the Bill makes it absolutely clear that it does not affect Article 6 of the European Convention on Human Rights, which guarantees a right to a fair trial. The Norwich Pharmacal provisions are strictly confined to intelligence service information or to where the Secretary of State has certified that certain types of disclosure would damage the interests of national security or international relations. The Bill makes provision for judicial scrutiny of the certificate.

It is these carefully calibrated provisions that respect justice and fairness and ensure that a proportionate approach is taken to any interference in the principle of open justice. I accept and understand that a number of noble Lords may yet remain to be persuaded by this calibration. It is on these detailed points that I am sure we will continue to look further and use our energies. I will endeavour to persuade noble Lords of the merits of the Government’s position.

I think we have had very useful debates in Committee. I accept that there are a number of issues on which noble Lords in Committee still have to be persuaded, but in relation both to civil proceedings and to the risk arising from the possibility of court order disclosure of sensitive material through the Norwich Pharmacal jurisdiction, I think there has been a general acceptance in most contributions that some provisions were required, albeit in a very small number of cases. I accept and acknowledge that the opposition Front Bench reserved its position on closed material proceeding.

I am conscious that nevertheless there are still points of detail that we will return to on Report. I have sought during Committee to give a detailed explanation of the rationale for the choices that the Government have made in bringing forward these provisions. I hope that that has helped to shed light on where the Government are coming from, and to inform the debate on these crucial, sensitive and important issues.

It is important that we continue these conversations as scrutiny of the Bill continues. As noble Lords are aware, I am keen to continue to engage on these issues outside the Chamber. I am sure that we will not use all our coming weeks in recess to focus on these, but there is a considerable amount of time during which I hope we can engage and consider them. I recognise their importance, and we will, I hope, have an opportunity to reflect and debate these details further on Report after the Recess. In that spirit, I would be grateful if my noble friend would agree to withdraw the amendment.

[Lord Lester of Herne Hill]

My Lords, this amendment has given the Minister the opportunity to look back on the proceedings in Committee, and it enables me to say that we very much appreciate the way in which he has done so and his open-mindedness. I should also like to say, coming back to Amendment 90, that the role of the Opposition in this area is of great importance. If the Opposition had simply accepted the Government’s position, there would have been very weak scrutiny. That is what happened in the United States Congress when the Patriot Act was introduced, where I am afraid Congress did not do its job properly. That cannot be said to be true of this House.

My noble friend asked: what is the point of Amendment 90—what is it intended to achieve? The noble and learned Lord, Lord Falconer, answered that by referring to the Constitutional Reform Act 2005. The value of having general principles is especially important in this area. We do not have a written constitution. We do not have a constitutional Bill of Rights. We rely on the European Convention on Human Rights under the Human Rights Act as a kind of substitute for a domestic charter of rights.

The Government’s attempt to incorporate principles in the Bill is in Clause 11(5). It is curiously drafted, but it relies, among other things, on Article 6 of the European Convention on Human Rights. I do not think that that is a sensible way to articulate the general principles, which are part of our legal heritage and political system. I would prefer the principles by which we stand under common and statute law to be in the Bill. Amendment 90 is intended only—apparently, this is common ground, because it is what the Government seek to achieve—to ensure that the two principles, which have to be fairly balanced, are taken into account in the way in which Ministers exercise their discretion and the courts exercise and apply the law. I take the point of the noble Lord, Lord Butler, that one does not necessarily need the word “overriding”, but it is in the civil rules of procedure. I am not persuaded at all that the case has been made for an absence of good British principles that are not wholly dependent on Article 6 of the European convention which, for various reasons, does not do the job perfectly.

Having said all that, of course I beg leave to withdraw the amendment.

Amendment 90 withdrawn.

Justice and Security Bill [HL]

Lord Lester of Herne Hill Excerpts

Tuesday 17th July 2012 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, for the purpose of closed material proceedings and what we are dealing with here, national security is the specific concept, although it is not defined in the Bill. As I indicated, the Green Paper suggested that it might go wider to include some of the matters that the noble Lord, Lord Pannick, raised, but we have quite clearly indicated that that will not be the case in matters of national security. I give way to my noble friend who I understand was a counsel in Pepper v Hart.

[Lord Lester of Herne Hill]

I have two points. I do not understand why it is necessary to refer to Article 6 of the convention in the way that the Bill unusually does, given that the Human Rights Act requires the Bill to be read and given effect to—in so far as is possible—compatibly with convention rights, including Article 6, and given that the court is required under Section 6 of the Human Rights Act to act in a way compatible with convention rights, including Article 6. I have not before seen in any other legislation post the Human Rights Act the singling out of an article of the convention in that way. It seems to me to be troublesome as it might lead to some inferences that are incompatible with the scheme of the Human Rights Act.

On the same subject, the convention distinguishes between national security in the narrow sense and factors like the economic well-being of the country, to which the noble Lord, Lord Pannick, referred. Am I right in understanding that those are the kind of distinctions that the Government have in mind when they deal with national security in a narrow sense?

[Lord Wallace of Tankerness]

My Lords, I hope that Clause 11(5)(c) is not troublesome because it is intended to be the opposite. As we have already heard in our deliberations in Committee, concern has been expressed, even a short while ago by the noble Lord, Lord Beecham, about Article 6. The clause seeks to give reassurance and I hope that my noble friend will be satisfied with that. No doubt there may be something on which I can give further reassurance. I think I am right in saying that what is there follows what is in the TPIM Act and the Counter-Terrorism Act. Questions might be raised but it is there to make matters absolutely clear.

My noble friend Lord Hodgson said that he hoped that we would not allow a situation where citizens would be swept up by a wide definition of national security. My noble friend Lord Deben gave a graphic illustration of his son walking the dog. It will not be a constable or a high-ranking officer in Whitehall but a judge who will make the decision. Nor indeed—I shall make this very clear—is the intention to avoid embarrassment. In fact, an important purpose of the Bill is to allow material to be considered by the courts in cases where to exclude it may mean that a case has to be settled. The purpose is actually to allow a court to be able to consider it; this is far from wanting to sweep things under the carpet. If it were the case that, at some date in the future, a Secretary of State tried to use the provisions for the purposes of concealing embarrassment rather than to prevent damage to national security, that is something the court would be entitled to take into account when deciding whether the gateway test in Clause 6 was passed.

There is another point I would make to my noble friend Lord Hodgson, who said that the possibility of someone going to prison was important here. I would like to reassure both my noble friend and the Committee that the provisions in this part of the Bill relate to civil, not criminal proceedings. There would not be a situation, therefore, where a person would go to prison as a result of the provisions in this part of the Bill.

--- Later in debate ---

[Lord Elystan-Morgan]

My Lords, the motivations behind this amendment are, I have no doubt, noble, honourable and sensitive. I greatly respect, therefore, the arguments put forward by the noble Lord, Lord Dubs. I respectfully tend to agree with the noble and learned Lord, Lord Lloyd, that it may well be that there is a case for having what is almost a jury situation. In such a situation—again, bearing in mind that juries very seldom operate in civil cases—we would not normally have a jury in any event, but the real problem is, I think, a much deeper one.

Imagine a judge having to determine the fundamental issue of whether this matter is to be dealt with by way of a secret hearing. Does he look at the prose of the application by the Secretary of State or the affidavits? Does he look into the eyes of learned counsel to see whether there is a burning sincerity in the face of the counsel for the claimant or whether there are doubts genuinely registered in the face of the counsel for the defendant? Is the judge not placed in a situation that is virtually impossible?

To a large extent the question of a special advocate under Clause 5 and, I would say, to a limited extent the appointment of a special counsel under Clause 8, will deal with part of that. There will be a totally independent advocate, but an advocate, however brilliant, forensically skilled and eloquent, can be only as effective as the ammunition that he has at his disposal, which is the correctitude of certain facts that are relied on by a party. If that estimate, however genuine, is wrong, then the decision of the learned judge must be utterly fallacious. How do you deal with that situation? I harken back to debates that we had some years ago in relation to a criminal situation and PII. It seems to me that there is a very strong and unanswerable case for a special investigator operating under the special advocate. It does not seem from my reading of Clause 8 that there is any power for the special advocate to appoint such a person. However, the fairness of the situation will depend entirely on the assiduity with which some other person or body would be able to examine these sensitive facts. That person must be someone in whom the community has total confidence in terms of confidentiality and secrecy but also their competence to bring to the attention of the court that vital element of the correctitude or otherwise of those facts.

[Lord Lester of Herne Hill]

My Lords, in later amendments, we will be considering ways of making what at the moment is an unfair procedure fair, or less unfair. I agree with the noble Lord, Lord Pannick, that the procedure as it stands is not fair and also that it does not become any more fair by adding assessors or advisors to help the judge who has to decide whether to grant a declaration under Clause 6(1).

My experience of assessors or others—whether in an employment tribunal or in a county court for example—in dealing with discrimination cases, which are difficult and often involve weighing proportionality issues, has been an unhappy one. Along with others who have spoken, I have huge admiration for, and confidence in, the ability of our senior judiciary and agree with the noble Lords, Lord Pannick and Lord Carlile of Berriew, that our judges have displayed a very good ability to weigh competing interests in difficult cases.

It will be important to look later at ways of making the procedure fairer, but with all respect to county court judges, whether serving or retired, and to retired judges of the senior courts, I simply do not think that having more of them is going to make it easier. This is not a question of deciding facts, like a jury; it is a question of striking a balance between competing interests. That seems something that our senior judiciary are well able to do without being bolstered by any outside support.

[Lord Beecham]

My Lords, I pay tribute to my noble friend Lord Dubs, who has served with great distinction on the Joint Committee on Human Rights and of course has a long record of interest in matters of justice generally. However, I indicated to him during a conversation beforehand that I was not persuaded by his argument. I was persuaded, albeit temporarily, by the arguments of the noble and learned Lord, Lord Lloyd, but in the end I share the views of other noble Lords who have indicated that this is perhaps an overelaborate and unnecessary addition to the framework that would otherwise exist. One point that struck me is that it is a little invidious for a serving High Court judge to sit with current or retired county court judges. I do not mean any disrespect to county court judges, but am not sure—

--- Later in debate ---

[Lord Lester of Herne Hill]

Will my noble and learned friend reassure the Committee that it is not part of the Government’s aim to change the overriding objective of the Civil Procedure Rules, which enable and require the courts to deal justly with cases?

[Lord Wallace of Tankerness]

I hope I indicated that we do not want to create something that is entirely different—some sort of national security court. Consistent with the other aspects of civil procedure, this is an additional tool to have closed material proceedings for material that would be damaging to national security if disclosed but should nevertheless be available to the courts.

--- Later in debate ---

[Baroness Manningham-Buller]

My Lords, I want to comment on one of the amendments in this group. Looking at the first part of Amendment 67, I understand what this amendment is trying to do, which is to improve the relationship—or, indeed, to create the relationship. However, the special advocate is not able to judge the damage that would be caused by a summary. It is the relevant person who is defined in the Bill who prepares any summaries of material. I do not think that this is workable because the special advocate, however briefed he is, will not understand necessarily the sensitivities behind the intelligence and the damage that would be caused.

[Lord Lester of Herne Hill]

My Lords, I would just point out that Amendment 62, which has not been included with this group of amendments, will deal with a particular way of trying to alleviate the problems about the special advocate. We will come to that in the next group.

[Lord Marks of Henley-on-Thames]

My Lords, I had not intended to intervene in this debate, but having heard the noble Lord, Lord Pannick, and my noble friend Lord Faulks describe—accurately, one has to concede—the role of the special advocate and the limited responsibility that he has to the person whose interest he is appointed to represent, one is bound to come back to the amendments proposed by my noble friend Lord Hodgson and ask whether there is not a field that my noble and learned friend the Minister ought to consider—namely the degree to which we might fairly increase permitted disclosure to the person whom the special advocate is appointed to represent. There ought to be a guiding principle, consistent with what the noble Baroness, Lady Manningham-Buller, said, that there should be as much communication as is consistent with the interests of justice, short of disclosing material to the party from whom some disclosure that is prejudicial to national security is withheld. The special advocate’s position could be effectively carried out without compromising national security if some movement in that direction were to be conceded. It may be that my noble friend’s amendments do not achieve precisely that balance, but at the moment we have a system that is so restrictive of communication that it destroys the public confidence in the special advocate system that there might be.

--- Later in debate ---

[Lord Wallace of Tankerness]

That is a helpful suggestion. I am always wary of saying that, as it might cast doubt on what has been put in an earlier statute which is intended to do the same thing. An absolute requirement may lead to a special advocate being appointed in circumstances where it would be almost impossible for the person to function. I hope that the noble Lord is reassured that it is our intention that whenever an excluded person wants a special advocate, a special advocate will be appointed. I note what he says. Without wanting to cast doubt on what is in other statutes, we shall certainly have regard to what he says.

[Lord Lester of Herne Hill]

I appreciate that there is always the danger of what Lord Wilberforce once described as the “austerity of tabulated legalism”. I ask my noble and learned friend whether it is absolutely clear that, in exercising the rule-making power under Clause 7, nothing will be done to disturb the overriding objective, which is to enable the court to decide the case justly? That is a fundamental principle which must not be overridden, whatever the technical detail may be.

[Lord Wallace of Tankerness]

I would want to reflect on what the “austerity of tabulated legalism” actually means. We have had exchanges in earlier debates and we have set out why an express reference to Article 6 of the European Convention on Human Rights is incorporated into the Bill. I hope that my noble friend is assured by that. I am about to get to the point made by my noble friend Lady Williams. I will get there eventually.

--- Later in debate ---

It is not just that the litigant will inevitably feel a deep sense of injustice when they lose the case and are not told why. Judgments that are reached through a procedure in which at least a summary is not provided to the litigant will inevitably fail to command the confidence of the communities from which the disappointed litigants come. That was a point made earlier this afternoon by the noble Lords, Lord Dubs and Lord Marks of Henley-on-Thames. To adopt this procedure would run the very serious risk of undermining the respect in which the law is held by law-abiding citizens. Those who have no respect for the law may fail to pass on information that the security services require in order to do their job. That, too, would pose dangers for national security. For all those reasons I suggest that we are dealing here with fundamental issues, and that it is vital that the Bill contain the minimum safeguard that the individual concerned should be told at the very least the gist of the case against them.

[Lord Lester of Herne Hill]

My Lords, my name appears on some of these amendments, and I will briefly make a couple of points. I say first to my noble friend Lord Hodgson that he makes a mistake if he refers to me as heavy artillery, since I was the most inefficient gunner officer during the Suez invasion. I lost an entire water-carrying convoy, and laid a smokescreen with 100-metre gaps in it. I do not regard myself as heavy except in a physical sense. Further, the noble Lord, Lord Pannick, referred to Blackstone Chambers, which is my chambers as well. However, I make it absolutely clear than under the cab rank principle, many members of my chambers have appeared on the other side in these cases. Certainly, although I listened to Ben Jaffey, I regard the fact that I am in his in chambers as immaterial.

The noble Lord, Lord Pannick, said almost everything that needs to be said, except that the Joint Committee on Human Rights itself recommended what is now Amendment 62. In paragraph 106 of its report, it recommends that,

“the obligation to disclose sufficient material to enable effective instructions to be given to an individual’s special advocate should always apply in any proceedings in which closed material procedures are used”.

In the previous paragraph, the report quotes my noble friend Lord Carlile as saying that AF standards—that is, these disclosure standards—,

“should apply to all proceedings in any event. I can see no respectable argument against gisting in any circumstances”.

The JCHR report concludes: “We agree”.

My other point is that although I am keen on the European Human Rights Convention setting minimum international standards, in this kind of area it is the common law standards and the standards of Parliament that really set fairness in this country. I sometimes worry that reliance on Article 6 of the convention, in a system where the civil law is very strong, may actually diminish the strength of the common-law system. So I hope that the fact that these amendments have the blessing of the all-party Joint Committee on Human Rights, of the special advocates and of my noble friend Lord Carlile, the former independent reviewer of terrorist legislation, as well as of those who spoke in this debate, will carry great weight with the Government.

[Baroness Kennedy of The Shaws]

My Lords, I agree with my legal colleagues in this House about the need for gisting as a step towards creating greater fairness. In my view, there has to be an obligation to disclose because the detainees in these cases—I have acted in them—are deeply disadvantaged. The noble Lord, Lord Pannick, has described powerfully the bewilderment and disappointment in detainees when an order is made against them, but they have not understood the case against them. I shall give an example because sometimes that helps us to root our understanding of why something might matter.

I took a case where a young man was to be deported on the grounds of concerns about national security. The gist of the case against him suggested that he had been present at a meeting in a house he shared with many other students at which discussions were held that were of concern to the authorities. Because the gist of the case was offered to us, it was possible to show that at the time the meeting took place the young man had been using a computer that was linked to the university in order to work on his thesis. The interactivity showed that he had been involved in quite complex, difficult work on his computer, which meant that he could not have been participating in and party to the meeting taking place in the house. That was one of the features of the case that made a real difference, but we would not have known about it if the gist had not been given to us. The force of something can only be brought home to those not involved in these cases by the use of a real example. The noble Lord, Lord Pannick, described people sitting in the court and being mystified by the process. That drives home just how unacceptable it can be.

I strongly urge that we do this least thing in trying to address the concerns about the whole business of closed material proceedings.

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[Lord Beecham]

My Lords, the noble Baroness, Lady Berridge, has identified and emphasised the crucial nature of Clause 7. It is the fundamental problem with the Bill that, despite the protestations of the Lord Chancellor, it gives little discretion ultimately to the judge as to whether the closed material procedure should be invoked. Clause 7(1)(c) requires the court to give permission if,

“the disclosure of the material would be damaging to the interests of national security”.

It seems clear that any disclosure of matters affecting national security would suffice to preclude the material being made available. Therefore, we come back to the position that the noble Lord, Lord Faulks, referred to, as enunciated by the noble and learned Lord, Lord Hoffmann.

It is almost exactly 50 years since I first became acquainted with the noble and learned Lord, Lord Hoffmann, as a new student at University College, Oxford—where I was succeeded in due course, several years later, by the noble Lord, Lord Marks—and I have a great admiration for noble and learned Lord, who was a distinguished opponent of the South African regime. I find it rather surprising that he came to the conclusion that matters of this kind are a matter for the Executive and not the judiciary. It is not a view that can be recommended to your Lordships’ House. It strikes a dagger at the heart of our system, and the amendments before us provide the right approach to procuring a level of fairness that allows the judge to make a decision on the basis of a balancing exercise.

I entirely agree with the noble Baroness, Lady Berridge, and others who have laid an emphasis on the need to have that balancing exercise carried out. The amendments in the names of the noble Lords, Lord Thomas, Lord Pannick and Lord Lester, clearly are directed at securing that important balance and fulfilling the—unjustified—claims made for the Bill that ultimately it will be the judge who actually takes the decision; otherwise the decision is effectively made for him by the Secretary of State, and that is extremely undesirable. It follows that the amendments in relation to gisting, which the noble Lord, Lord Pannick, described as a minimum requirement, also have their place in a system which is fair to the parties.

The noble and learned Lord referred to the application of the European Court of Human Rights. Although I am sure that he is clear in his own mind that there is no real conflict with the human rights legislation, there is, perhaps, a question about that. Clause 7(1)(e), to which other noble Lords have referred, makes it clear, in relation to gisting, for example, that a summary does not contain material the disclosure of which would be damaging to the interests of national security. However, it is apparently the position that the European Court has previously struck down decisions made under the existing closed materials procedure on the basis that they were incompatible with the right to a fair hearing which, of course, Article 6 prescribes.

The case law suggests—I am referring now to a briefing from Justice, the organisation concerned with civil liberties and matters of this kind—that,

“a person must be given as much disclosure—whether through the provision of documents, evidence or a summary—as is needed to secure a fair trial”.

It refers in its briefing to the case of A v United Kingdom, in which,

“the Grand Chamber concluded that where insufficient material had been disclosed to an individual subject to a control order”—

of course, we are not talking about control orders here but about a civil claim—

“this rendered the hearing unfair and incompatible with the Convention”.

The briefing also refers to the case of AF, to which the noble Lord, Lord Pannick, referred. There must be a question as to whether the assurance of the noble and learned Lord, obviously given in good faith, that Clause 11(5) resolves these matters—because it emphasises the duties of the court under the Human Rights Act, such that,

“Nothing … is to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the Human Rights Convention”—

amounts to very much. On the face of it, it would appear that the provisions of the Bill, as drafted, would lead to conflict with Article 6.

[Lord Lester of Herne Hill]

Is the noble Lord aware of a case I once did, Tinnelly and McElduff v UK, where there was a conclusive certificate of national security under our law which prevented these Northern Irish Catholics from having the merits of their religious discrimination claim heard at all when they were blacklisted? The Strasbourg court said that that was clearly contrary to the convention and therefore the national security certificate that had been cleared by the Minister and by the Northern Ireland courts, which said they had no alternative, was held to be in violation of the convention.

[Lord Beecham]

I am grateful to the noble Lord, who brings another example of precisely the same point made in the briefing that I referred to and underlines the apparent discrepancy between the evident intentions of Clause 11(5) and the reality which would appear to be applicable. In looking at these amendments I think that your Lordships’ House may wish, when we come to Report—because we will not be voting today—to support the thrust of these amendments, which seek to import into what is patently an unsatisfactory procedure at the moment evidence of balance and fairness which would leave the decision where it ought to be, in the hands of the judge who is dealing with these matters, assisted, we hope, by the special advocate presenting a case on behalf of the other party to the case.

As matters stand, it does not look as though the Bill adequately reflects these requirements or, indeed, the requirements of Article 6. I hope that the Government will look again at the implications of the situation as it is now presented, bearing in mind the widespread concerns expressed around all these issues by eminent Members of your Lordships’ House, particularly the noble Lord, Lord Carlile, who was very clear that the Bill, as currently drafted, does not adequately deal with the need for fairness through a proper existing procedure. I thought that he made that case very effectively—as indeed did other noble Lords, legally qualified and not legally qualified—raising deep concerns about how the Bill will operate in practice, bearing in mind, again, that many of us still have to be persuaded that there is a substantial issue here, given that we have yet to be shown cases in which damage has been done by the system which has prevailed hitherto.

Of course, when it comes to disclosure the Government still have the last resort of not proceeding with the case. That has a financial cost and it may have other costs, but it preserves the rationale for the Bill’s provisions in that it preserves the interests of national security. If the Government feel that national security has to be protected, they can effectively stop the case by settling it or, perhaps, striking it out.

--- Later in debate ---

The proposals have been guided by fundamental rights to justice and fairness, including those in the European Convention on Human Rights. The convention itself recognises that it may sometimes be necessary to restrict openness in court proceedings where national security requires it. I have made a statement of compatibility under the Human Rights Act 1998 in relation to this Bill. As we have frequently reflected in our deliberations, there are specific provisions in Clause 11(5)(c) which emphasise that nothing in Clauses 6 to 10 are to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the European Convention on Human Rights. That is specifically the point of reassurance sought by the noble Lord, Lord Beecham. Clause 11(5)(c), as it were, trumps anything in Clauses 6 to 10. Perhaps that is where the noble Lord saw a weakness. I hope that reassures him about the purpose of including that.

[Lord Lester of Herne Hill]

My difficulty with my noble and learned friend’s reply is that he keeps saying: “I hope that Members of the House will be reassured”, but we need reassurance in the legislation itself. The problem is that there are no controlling principles. We do not have a written constitutional charter of rights, the nearest we have is the European convention, which is pretty vague and not tailored to these particular needs. When we come to Amendment 90 at night-time on Monday, where the noble Lord, Lord Pannick, and I have tried to put in some constitutional standards, it will be interesting to see whether at least that is accepted. Does my noble and learned friend follow that what we seek to do is put some controlling criteria, other than ministerial assurances, in the Bill to make it constitutionally appropriate?

[Lord Wallace of Tankerness]

I understand the point being made by my noble friend, but what is in the Bill goes beyond a ministerial assurance. What is in the Bill is that nothing in Clauses 6 to 11 or in any provision made by virtue of them is to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the European Convention on Human Rights. I will come to this more specifically in a moment, but these will be matters that will be determined by the court; it is not a matter of ministerial assurance. As we saw in the case of AF (No 3), the courts asserted what was required to make the proceedings consistent with the requirements of Article 6. What is required to achieve fairness in accordance with Article 6 is a matter to be determined by the courts in the context of each individual case. The AF (No 3) disclosure requirement will, of course, be applied by the court when it considers that the requirements of Article 6 so demand to ensure that fair trial requirements are met. However, this does not mean that the AF (No 3) formulation would or should apply in all cases that use these closed procedures. We submit that we must allow the judges to assess the level of disclosure required in each case to meet Article 6.

My noble friend Lord Faulks said that he anticipated that I might refer to what the noble and learned Lord, Lord Hope, said in the case of Tariq. I fully intended to do so. The deputy president of the Supreme Court said in that case:

“There cannot, after all, be an absolute rule that gisting must always be resorted to whatever the circumstances. There are no hard edged rules in this area of the law”.

Reference has already been made in this debate to Mr David Anderson QC, who is in favour of gisting. In January this year, in evidence to the Joint Committee on Human Rights, reflecting on what the noble and learned Lord, Lord Hope, said, he said:

“The courts have … said that it is not a hard-edged area of law. In other words, it is one for them to decide on rather than for Parliament”.

Later he said,

“it is not an area where certainty can sensibly be provided by legislation ... I do not think I would like the legislation very much if it came out”.

Let me also remind your Lordships that the Justice and Security Green Paper suggested that we might consider legislating to clarify the context in which the AF (No 3) gisting requirement does not apply. The Government listened to the consultation responses, which held a majority view that situations in which the AF (No 3) disclosure requirement applied needed to be considered on a case-by-case basis in the courts. The Bingham Centre said:

“Establishing a statutory presumption as to the circumstances in which the AF (No 3) disclosure requirement applies would not avoid the need for the precise parameters of the principle being worked out in the courts. This issue cannot be resolved by domestic legislation alone but requires careful and detailed reference to ECHR and EU law. The content of UK legislation could not have any appreciable influence on the CJEU or ECtHR. Therefore we see no value in this suggestion. If anything, a legislative presumption would only complicate the law and lead to more rather than less litigation”.

I do not think there is any distance between us in trying to ensure fairness. I recognise the importance and significance of all the amendments, not least Amendment 62, but our position is that this would put hard edges into law where it is not desirable and where the courts themselves have indicated that they should be determined on a case-by-case basis. As I have also indicated, if in a particular set of circumstances the court’s view was that the gisting level required in AF (No 3) was the one required in that case, the regard the courts must have to Article 6 of the European Convention on Human Rights allows them to require that. The common law is as much part of our legal system as statute law, and I believe that the courts will continue to be the guardians of individual rights to a fair trial and that further legislation on this provision is not only unnecessary but may even be counterproductive.

Justice and Security Bill [HL]

Lord Lester of Herne Hill Excerpts

Tuesday 17th July 2012 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, this amendment is perfectly understandable and very prescriptive. It might be to the benefit of the House if I explained that I asked the Government in a Question for Written Answer whether they would introduce measures to ensure that judgments made by courts and tribunals under the closed material procedures were made public when the reasons for maintaining their secrecy no longer obtained. This, of course, relates to a later amendment.

My noble friend Lord McNally gave a Written Answer on 10 July, which may make any comment unnecessary. He said:

“Closed judgments contain highly sensitive material. For this reason they are not suitable for publication by law reporting organisations which are not security cleared. Closed judgments are usually handed down in tandem with an open judgment, and most judges”—

I emphasise “most”—

“state in their open judgment that a closed judgment has also been handed down ... Judges will put as much of their reasoning into open as possible, including statements of legal principle that are most likely to have cross-case relevance. It is open to special advocates and counsel for the Government to make submissions about moving material from the closed judgment to the open judgment. If the court is persuaded that it would not harm the public interest to do so, then material will be moved to the open judgment”.—[Official Report, 10/7/12; col. WA243.]

It then refers to the code of practice under the Freedom of Information Act. I mention that Answer because it shows that an unsatisfactory situation will obtain with regard to these judgments. Whether this or a later amendment or some other approach is needed, I have no doubt that standards are needed so that we get common—in fact universal—practice as to what we can do to make sure that judgments whose secrecy has been lost over time or because of particular circumstances may be made public in accordance with the principle of open justice.

[Lord Pannick]

My Lords, I, too, support the amendment, and not just because in principle it is right that judgments should be closed for as limited a time as necessary. There is also a very real practical consideration that, despite what the noble Lord, Lord McNally, said in his Answer that the noble Lord, Lord Lester of Herne Hill, quoted, there have been examples of closed judgments that contained statements of principle that were not in open judgments or that contained statements relevant to other cases or potential cases. The difficulty is that those practising in this area who represent individual litigants do not have access to this body of jurisprudence. If we are to create this closed material procedure, we have to recognise that we are creating a body of case law that is not generally available. That is a very real problem for the rule of law. One way in which to address the problem is to minimise as far as we reasonably can the length of time for which a closed judgment is not generally available. For that reason, in addition to the reasons already given, I support the amendment.

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[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, it is obvious that the amendment moved by the noble Lord, Lord Beecham, is important and goes to a number of aspects of the use of closed judgments. I think it is agreed that we are constantly trying to balance fairness and national security. It is self-evident that closed judgments contain material that should not be disclosed in the interests of national security. Of course, this is the only basis on which a judgment can be classified as closed. As is the practice in existing statutory regimes for CMPs, such as TPIMs and SIAC cases, judges will hand down an open judgment, in tandem with a closed judgment, that contains the parts of the judgment that can be disclosed without causing damage to national security.

In February 2010, special advocates raised concerns about accessing a searchable database of closed judgments. I hope this goes some way in answering the point raised by my noble friend Lady Berridge. The Government agree that it is important to ensure that those who are entitled to access closed judgments are able to do so efficiently and effectively. We have been consulting the Special Advocates Support Office on the creation, storage and dissemination of the head notes and are in the process of finalising arrangements. We anticipate that the database will be populated with all historic closed judgments by the end of the summer. I know that does not go the whole way, as some noble Lords have indicated, but I hope that I have indicated that we have addressed the concern that was raised and are making significant progress towards meeting it.

The next part of my remarks will probably reflect what was said by my noble friend Lord McNally in his response to my noble friend Lord Lester. It is the case that judges will put as much of their reasoning into the open as possible, including the statements of legal principle that are most likely to have cross-case relevance. It is the role of special advocates to make submissions about what material can properly go into the open judgment. If the court is persuaded that it would not harm national security, material will be included in an open judgment rather than a closed judgment.

However, it is not always possible to provide an open statement containing the information as it is described in this amendment. For example, the amendment suggests that it should reveal the length of the closed hearing, the number of witnesses and the nature of those witnesses, which could be damaging to national security. If in the judgment the summary said that the closed session lasted five days while members of the Security Service gave evidence, this would provide to the claimant the knowledge that the intelligence services held a lot of information on them when they may not have been aware of that fact. As already outlined, it will be up to special advocates and counsel for the Government to make submissions about whether material can be included in an open judgment or should remain closed, with the final decision being for the court, which will decide that material should be classified as closed only if its disclosure would be contrary to the interests of national security.

The amendment also requires the judge to declare whether national security was an issue in the proceedings. I believe that this is unnecessary. As we have made clear on a number of occasions in Committee, the Bill makes it clear that the only reason a court can go in to a closed session is that the disclosure of some material relevant to the case would damage national security.

The Lord Chancellor’s code of practice on the management of records, issued under Section 46 of the Freedom of Information Act 2000, provides guidance on the management of records held by bodies subject to the Public Records Act 1958. Authorities are required to identify records worthy of permanent preservation and transfer them to the National Archives, a place of deposit for public records or the Public Record Office of Northern Ireland, as appropriate. Authorities all need to consider whether parts of records might be released if the sensitive information were redacted— in other words, rendered invisible or blanked out. Information that has been redacted should be stored securely and should be returned to the parent record when the exemption has ceased to apply.

I heard what was said by my noble friends and by the noble Lords, Lord Beecham and Lord Pannick, about when the national security considerations have in some respects flown off. I want to revisit this matter and discuss it with officials because I recognise the point that has been made. I am not going to pretend that there may be an easy answer to it, but if there is no longer a national security consideration, I see the force of what has been said. However, I have tried to describe the current arrangements for the storage and permanent preservation of records.

However, as things stand, it is up to the courts to decide the detail to include in their judgments. The Bill allows the judges to make these judgments with as much information available to them as possible, while ensuring that the interests of national security are not damaged. I do not believe that Parliament needs to go further and dictate to judges specific information that they are require to release, and I therefore do not believe that the many detailed parts of the amendment are necessary. I hope that in the light of that explanation, the noble Lord will be willing to withdraw the amendment.

[Lord Lester of Herne Hill]

I am very grateful to my noble and learned friend for his open-minded response, but there are two problems. One is the problem of legal certainty, which is how the public, lawyers and people who are not special advocates can know exactly what the law is. That problem is obviously a human rights convention problem as well as a common law problem. The second problem is about whose responsibility it would be to make sure, when secrecy has been lost and national security considerations are no longer there, that something is done to put a matter into the public domain. I am still puzzled about who would be responsible. The final point is: how can one get guidance to the courts to ensure a common approach? Is it contemplated that rules will be made through amendments to Clause 7 or that guidance will be given? Will the judges be consulted and so on? These are practical problems that are important to address. As I understand from the response of my noble and learned friend, he is open to thought and discussion about those kinds of practical matters.

[Lord Wallace of Tankerness]

My Lords, there were three points. First, I understand my noble friend’s point about the availability of judgments that are closed to people who are not special advocates. That is a difficult problem that I cannot readily see a solution to, given that the very reason why they are closed judgments is because of the sensitive nature of the information in them the disclosure of which could be damaging to national security.

The second point is very much one of detail. Who would determine whether there was, in fact, no longer a national security consideration? Where would the responsibility lie? That is the very issue that I want to consider, because how that would be addressed does not readily present itself to me. I sought to indicate that there is an issue here. I am not pretending for a moment that there is an easy answer, but the issue is important to consider.

On the third point that my noble friend makes about consistency, the difficulty—perhaps it is a reality rather than a difficulty—is that every case will be dealt with on its own individual circumstances. What goes into an open judgment or a closed judgment may well be the result of representations, debate and argument before the judge by special advocates. In those circumstances, it is difficult to ensure that there is rigid consistency because that might inhibit more openness in circumstances where a special advocate makes a compelling case that particular material ought to be included in an open, rather than a closed, judgment. It may be the counsel of perfection, or of the impossible, to think that there would be consistency when we are dealing with circumstances that can differ considerably from case to case. I think it must be left to the argument presented by counsel on both sides—special advocates and counsel for the Government—to determine what a judge puts into open judgment and what is put into closed judgment.

I hope that with those words, the noble Lord, Lord Beecham, will consider withdrawing the amendment.

Justice and Security Bill [HL]

Lord Lester of Herne Hill Excerpts

Wednesday 11th July 2012 Lords Chamber

[Lord Campbell-Savours]

Yes, but the thrust of the amendment moved by my noble friend Lord Rosser is that for some reason, which I cannot understand and he clearly does not understand either, the Government have picked another set of criteria for refusing to provide information to the committee, instead of simply using the provisions set out under Schedule 1. Again, I shall be interested in the Minister’s response.

[Lord Lester of Herne Hill]

My Lords, the reason why I am sympathetic to Amendment 36 has already been explained. My difficulty with the Bill as it stands is that its wording is very subjective with regard to the Prime Minister. I like the way in which Amendment 36 seeks to spell out some criteria which are echoed in the Bill itself rather than leaving the matter entirely at large.

When I spoke last time in Committee, I briefly mentioned Humpty Dumpty to the Minister. I am not sure whether he got the import of what I was saying. I was referring to Liversidge v Anderson, the famous case in which the late Lord Atkin referred to Humpty Dumpty. The emergency legislation said, “If the Minister thinks”. The late Lord Atkin said, in dissenting in Liversidge, that that was similar to Lewis Carroll’s Humpty Dumpty. I, on the whole, prefer criteria to be spelt out in the Bill and I like the way in which that has been done in Amendment 36, unless there is some very good reason for the contrary.

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[Lord Campbell-Savours]

Amendment 37 derives directly from conversations I had with the former MP Chris Mullin, a good pal of mine, while he was chairman of the Home Affairs Select Committee in the House of Commons and also conversations with members of the Defence Select Committee in the Commons. They were denied access to the agencies for reasons that at that time I was able to accept. But there were occasions when they felt that we could secure on their behalf access to material which, following discussion with the agencies, could under certain conditions possibly be made available by the ISC to those parliamentary Select Committees. It was their way of trying to ensure that questions would be asked of agencies where they were unable to ask those same questions themselves. It was not that they always sought to have access to the material, but that they wanted to be assured that the ISC was prepared to ask the questions.

I recognise that in the past 11 years since I was a member of the committee the relationship between the Select Committees and the agencies has changed, although the noble Lord, Lord Lester of Herne Hill, in his two interesting interventions on Monday, raised difficulties that his committee had experienced with the Joint Committee on Human Rights—no doubt he will wish to speak during this debate.

My amendment is only a modest attempt to clarify the relationship. There are two parts to it. The first part would place a requirement on the ISC to consider a request from a Select Committee for it to make a report to Parliament. It would not require publication of that report or its transmission to the Select Committee which had made the original request. The only requirement would be for the ISC, if it had complied with the request, to report to Parliament that it had made such a report—in other words, that it had carried out an inquiry.

The second part of Amendment 37 would place a requirement on the ISC to consider a request from a Select Committee for information to be given to that committee where it could show that it needed the information to carry out its functions as a Select Committee. Both parts of the amendment have been carefully crafted—although I am an amateur in these matters—so as to avoid either intentional or inadvertent breaches of national security. I beg to move.

[Lord Lester of Herne Hill]

My Lords, I support the amendment for the reason indicated by the noble Lord, Lord Campbell-Savours; that is, it seems to be a very practical way of solving the problem that I raised when we last discussed the Bill. It treats the ISC quite properly as within the inner ring of confidence and the best judge at that stage of the relationship between Parliament through its committees and the Intelligence and Security Service. I find the amendment attractive because it would mean, for example, that if the Joint Committee on Human Rights wished to be helped by the Intelligence and Security Service it could go to the ISC with a request instead of the awkwardness of writing and seeking direct help. The ISC could then act as the intermediary, decide what was appropriate and then come back to that committee. That seems a practical way of dealing with what would otherwise be an awkward situation. I am glad that the Minister has indicated that he will anyhow reflect on the points that I raise before Report, but the amendment seems an ingenious way of producing a practical answer which should not damage the work of the ISC, the Security and Intelligence Service or the public interest.

[Lord Henley]

My Lords, I assure my noble friend that I will always reflect on all points that are put to me in the course of these debates between now and Report. I appreciate the intention behind the amendments of the noble Lord, Lord Campbell-Savours, which is simply to create stronger links between the ISC and other committees. I appreciate that he has discussed this matter with former chairmen of the Home Affairs Select Committee such as Chris Mullin, whose diaries I have recently been reading and greatly enjoyed, as I imagine all of us have.

It is certainly our intention that the ISC should be a strong and effective committee and cover in its work matters of public and parliamentary interest and national importance relating to the agencies. Equally, an important feature of the committee is that it is party, as I have said on many occasions, to the most sensitive material and will scrutinise matters that are secret, some of which Parliament and the public will not have sight of for very good reasons.

While on the face of it the proposed changes seem helpful, I have some concerns about them. At the moment, obviously it is open to any Select Committee to write to the ISC and request that it focuses its work on a particular area. There is nothing in the new arrangements to prevent it from doing so and I am sure that the ISC will continue to take any such requests seriously, particularly if the noble Lord, Lord Campbell-Savours, was a member of the ISC, although I imagine it would be equally true with any other membership of that committee.

My concern is really about the idea of creating a formal statutory mechanism for making and considering these requests, with a requirement on the ISC to report on its decision-making process, which is what the noble Lord is seeking to do. I will give three very brief reasons why I do not think it is necessary to create a formal process, although, as I say, we shall take this away and consider it. First, I am concerned that the ISC could become overwhelmed with the number of requests to report on particular matters. If it acceded to all requests, its programme of work could be overwhelmed with matters that are of interest to other committees, taking its focus away from its core work of scrutinising matters that it alone should identify itself with.

Secondly, there is the question of what the ISC would be able to say in response to those requests, given the highly sensitive nature of the agencies’ work. Thirdly, if the ISC did not accede to all requests from Select Committees, tensions could develop between the ISC and those committees. That could undermine and damage the ISC’s reputation when the reality is that the ISC is carrying out important scrutiny, determining the priorities for that scrutiny in the light of its expertise and access to the relevant information in line with its remit.

With my assurance that other committees are welcome to make requests to the ISC, along with my explanation as to why I do not think it is necessary to make this into a statutory obligation and the fact that I have concerns about setting it down in that way, I hope that the noble Lord will be more than happy to withdraw his amendment. However, as I said at the beginning in response to my noble friend, we are always prepared to reflect on such points.

[Lord Lester of Herne Hill]

I quite understand the Minister not wishing this amendment to be in statutory form, but would it be beyond the wit of man or woman to embody the idea behind these amendments in a protocol, a memorandum of understanding or something of that kind? I have in mind just such an agreement between the Law and Institutions Sub-Committee of the European Union Select Committee and the Joint Committee on Human Rights as to how one deals with overlaps and so on. Could the Minister perhaps reflect on whether there are other ways of achieving this aim that are not simply an assurance from him but something short of statute?

[Lord Henley]

My Lords, I have served on one of the two committees that the noble Lord refers to—and felt considerably out of my depth—but not on the other. I note what he says about the memorandum of understanding between them. This might be something that the ISC and other committees could reflect upon between themselves and decide how they want to proceed. Again, however, I do not think that this is best set out in statute, although obviously we will reflect on these matters. That is the point of this House and why we are going through a Committee process. I have set out why I do not think that this is the best way of going about it, but I shall listen to the noble Lord, Lord Campbell-Savours, and trust that he will feel able to withdraw his amendment at this stage.

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[Lord Lester of Herne Hill]

I am grateful to my noble friend for the way in which he introduced the amendments. It makes my task brief and rather less sophisticated. I will make a number of points. First, the report of the Joint Committee on Human Rights on the Green Paper summarised, in paragraph 97 onwards, the main differences between PII and CMP. It pointed out in paragraph 103:

“The Government’s position in the Al Rawi litigation”—

in which I appeared for a third party—

“was that it should be for the courts to make the determination and the Green Paper does not explain what has changed the Government’s position since that case”.

The Joint Committee emphasised the importance of a judge rather than a Minister making the determination. The germ of the idea of putting the horse before the cart rather than the cart before the horse—that is, putting the balancing of PII first and CMP second—came from Mr David Anderson QC in his evidence to the committee.

It is my impression that our allies in the United States are much more concerned about the Norwich Pharmacal point than they are about the closed material point. The closed material point is very much a matter of procedure in which it is not suggested that Wiley balancing, as it is known, would in any way jeopardise national security if it were considered to be the first step in that procedure.

The advantages of considering PII first are that it makes it less likely that there will be an unnecessary resort to CMP. I am agnostic—even though I am a party to our amendment—about the way in which this can be expressed. The noble Lord, Lord Hodgson, has another way of doing so, and no doubt it would be easy for the Government to find a way of doing so. I am concerned with the principle, which is that it should be for the judge and not the Minister to determine at the outset of a case whether to rush into the CMP procedure or to ask whether PII is desirable.

[Lord Falconer of Thoroton]

Perhaps I should put this question to the noble Lord, Lord Faulks. I very much applaud the efforts made to produce the amendment, for which I have considerable sympathy, but I am confused by one proposition. As I understand it, under the amendments tabled by the noble Lords, Lord Hodgson, Lord Faulks and Lord Lester, the court has to say, “We are not going to disclose under PII before we get to the possibility of a closed hearing”. In reaching that conclusion, the court has to exclude the possibility of a CMP hearing: it will approach the case on an ordinary PII basis. I can easily envisage a situation where a judge says, “It is a finely balanced case, but I have decided to order disclosure because a fair trial would be so damaged, even though significant damage will be done to national security”. Under the amendment of the noble Lords, Lord Lester and Lord Faulks, that fine balance would have to be struck before getting to CMP. It seems an odd conclusion. Am I right in my analysis of the amendment? If so, why is it put like that?

[Lord Lester of Herne Hill]

I did not understand it to impose that degree of rigidity. If it does, then I respectfully agree that some modification of the wording is necessary. I want to deal briefly with one or two other points.

The noble Lord, Lord Pannick, may want to say something himself about the Government’s response to the Constitution Committee’s report, which analysed the three flaws, as the committee saw it, in the existing scheme. I read and reread this government document and it gave me a headache because I simply did not understand what it was saying. It seems to be saying that there is very little difference between PII and a CMP, that there would be the same flexibility in a CMP as in PII, and that, having gone through a CMP, the judge can in any case go back to PII. It must be my fault but I simply do not understand what the Government’s settled position in that document really is. The Government say that the judge would have a number of important tools in a CMP to ensure that it was conducted fairly. They say that there is a similar level of flexibility to that available to the judge under PII. They say that it should be exceptional to use a CMP. All these points are certainly interesting but my basic point is on Wiley balancing. The noble and learned Lord, Lord Woolf, was responsible in his judgment in Wiley for articulating that Wiley balancing should be open to the judge first and that a CMP should be an exceptional procedure following it and that at all stages national security and other vital public interests should be preserved.

I have just one question for the Minister. Does he agree that there is no case in which an English or Scottish judge has breached national security or not shown the appropriate degree of deference to the executive branch of the security and intelligence services in his or her final adjudication? I ask that because I am very concerned that across the Atlantic there seems to have arisen a complete misunderstanding that our judges cannot be trusted with state secrets and national security. I do not know how that came about. My guess is that it arose in dialogue during the Binyam Mohamed case, especially at the Divisional Court level. However, it seems to me vital, as a matter of public record, that the Government make it absolutely clear that our judges can be trusted and have a fine record of trust of that kind.

[Lord Pannick]

My Lords, I have added my name to Amendments 39 and 40. I am very grateful to the noble Lord, Lord Faulks, for introducing the amendment. I recognise that there may well be a need in some exceptional cases for a CMP or closed material procedure, but it seems to me that this should be a last rather than a first resort. My answer to the question put by the noble Lord, Lord Carlile, is that PII certainly maintains secrecy just as effectively as a closed material procedure. If it did not, then it would not be a satisfactory alternative. The advantage of PII is that it does not enable the judge in determining the substance of the case—a point made by the noble Lord, Lord Thomas of Gresford—to rely on material that is seen by only one party and not by the other party. The evidence that is admitted is seen by both sides in the case. My answer to the question posed by the noble and learned Lord, Lord Falconer of Thoroton, is this. If, as a result of the PII—

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[Lord Pannick]

We know that because there is absolutely no evidence of which I am aware of public authorities appealing against PII decisions and saying that it is unacceptable, because sensitive material or any other public information is going to be revealed by the judge.

However, there is a second answer to the noble Lord, which is that under a PII application, even if the public authorities take the view that the judge has balanced matters and decided to reveal that which is sensitive, the public authority has no obligation to reveal it. It can decide that it would rather lose the case than disclose this information. That is why we need a procedure for CMPs, because there may be cases where PII does not produce a satisfactory result for public authorities. I am prepared to accept this, not least because David Anderson QC, the independent reviewer, has concluded that there ought to be such a procedure. My point is that it ought to be a last resort, rather than a first resort. My fundamental objection—

[Lord Lester of Herne Hill]

The noble Lord, Lord Pannick, has much more experience than I have in the uses of PII. Subsection (5) of the proposed new clause lists the different matters which the judge should regard when making his decision. Am I right in thinking that these are matters to which the judge has regard to in a PII case? Are those the kind of considerations that the judge will look at carefully in order to tailor the needs of national security and justice?

[Lord Pannick]

The noble Lord is absolutely right. The purpose of the new clause before Clause 6, and the detail that is set out in Amendment 39, is that it is an attempt—with the very considerable assistance, as the noble Lord, Lord Faulks, said, of the legal advisers to the Joint Committee—to set out in statutory form the common law position. That is its purpose; but I emphasise that PII is not a procedure that requires disclosure. It is distinct, as the noble and learned Lord, Lord Lester, says, from the issues that we will be discussing on Norwich Pharmacal where the concern is that if the judge makes an order, there must be disclosure.

My fundamental objection to Clause 6, and the reason I support these amendments, is that under subsection (5) the Secretary of State, before he decides whether to make an application for a closed material procedure, must first consider whether to make a claim for PII. So the obligation is on the Minister to consider whether to apply for PII or not. That is all to the good. However, if a closed material procedure application is made by the Secretary of State—or indeed by anybody else—Clause 6(3) provides that,

“the court must ignore … the fact that that there would be no requirement to disclose if … the material were withheld on grounds of public interest immunity”.

As I understand Clause 6, the judge is obliged to ignore the possibility of PII. I take the view that, just as the Minister ought to consider whether PII provides a satisfactory means of resolving the conflict between security and fairness before he applies for a closed material procedure, equally, the judge should have to consider that.

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[Lord Falconer of Thoroton]

I am impressed by what has been said about the opportunistic opportunities that this gives. At the moment I am bewildered by what it is suggested the claimant would want to use closed material proceedings for. I can see the point about the appearance of equality of arms, but it strikes one initially as being a slightly odd conclusion to reach. I am sympathetic to the idea that the courts should make sure, as the noble Lord, Lord Pannick, is saying, that every other option has been tried, but I would be grateful if the noble Lord, Lord Thomas, would explain what are the circumstances in which the claimant—a man such as Binyam Mohamed in an ordinary civil litigation—would want to keep things secret. The noble Lord, Lord Lester, is going to answer.

[Lord Lester of Herne Hill]

I wonder whether this is helpful. In the case of Binyam Mohamed there was a parallel case in the district court of Columbia by another Guantanamo detainee facing a capital charge. This was a habeas corpus case and the question was whether Binyam Mohamed’s evidence, which had pointed to this man as an evil rogue, could be relied upon. The applicant in the habeas corpus case wished to show that Binyam Mohamed had been tortured, so the federal court had to decide that question. It was very much in the interests of the applicant for habeas corpus that that “closed”, secret material be placed before the court to exonerate him. In the end, Judge Kessler came to the conclusion, since it was not contested by the American Government, that he had been subjected to gross ill treatment and that this other man should be granted habeas corpus because Binyam Mohamed’s evidence was unreliable by being induced by torture. That is a real-life example in the context of habeas corpus in which it was in the interests of the applicant to rely upon that material.

[Lord Pannick]

As a matter of principle, the claimant may believe that the secret material would exonerate him. PII would prevent the secret material from being disclosed to him because it concerns security information, but he is confident that he has done nothing wrong—there is no reason why he should not be given naturalisation or some other benefit. He just wants the judge to be able to look at it. The claimant might prefer the judge looking at it without the claimant seeing it to the judge not seeing it at all.

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[Lord Carlile of Berriew]

My Lords, there are a few brave souls who are not lawyers still left in your Lordships’ House after 55 minutes of this debate. There are three to my right and I suspect that they are the ones who can recognise that there is quite a small pin with some lawyers dancing the rumba of closed material procedures on it and others doing the cha-cha-cha of PII. We owe it to them to give a comprehensible explanation of the difference and of how a proper outcome of this debate is reached. Given that, I suppose I can be forgiven for confusing the matter further by using two Latin phrases, as old lawyers like me tend to do. The first arises from hearing during this debate from the formidable duo of my noble friend Lord Lester and the noble Lord, Lord Pannick. I am not sure which way round they appear on the spine of the book on my bookshelf—whether it is Pannick and Lester or Lester and Pannick on human rights—but I suspect that age probably comes before beauty. I see the noble Lord, Lord Pannick, nodding in agreement. There is a danger of argumentum ad maiorem on any issue of this kind. Oh, dear. I give way to the older of the two.

[Lord Lester of Herne Hill]

I remind my noble friend that we are in the presence of the noble and learned Lord, Lord Woolf, who has banned Latin from use in courts. On this occasion it would be desirable if my noble friend spoke English and not some archaic antique language.

[Lord Carlile of Berriew]

The writ of the noble and learned Lord, Lord Woolf, certainly ran through the courts in those days, but I am not sure that the use of Latin has yet been banned in your Lordships’ House. I want to use what I regard as a very meaningful Latin phrase, which I read in the first administrative law textbook that I studied, de Smith’s Administrative Law, before Lester and Pannick reached the shelves. It was a seminal work and I remember the phrase “audi alteram partem” being an important part of what I learnt from that book. I am pleased to see the noble and learned Lord, Lord Woolf, nodding at least in recollection if nothing else.

Audi alteram partem is extremely important because it depicts that both sides should be heard wherever possible and it is presumed that both sides should be heard in a legal dispute. For those reasons, in shorthand, I support the succinctly moved amendment of my noble friend Lord Hodgson. For the reasons that he and my noble friend Lord Thomas of Gresford gave, it seems that there may be cases in which it is a perfectly legitimate tactic and it may be proved to be right in substance for a party other than the Government to apply for a closed material procedure—if CMPs are to survive this legislation.

I hope I am right in saying—and it was certainly evident from the way in which the amendment was moved by my noble friend Lord Faulks—that we are all trying to achieve the same thing with this group of amendments. I firmly believe that the draft legislation shows that the Government and my noble and learned friend on the Front Bench, the Advocate-General, are trying to achieve the same aim. The overriding objective, as we call it, is that civil proceedings should be decided justly and fairly for both sides. I therefore agree with the principle that for the overriding objective to be achieved the proceedings should be as transparent as possible and that hearings in secret in which both sides are not heard should be as rare as possible. I certainly agree with that part of what my wise and successful successor as independent reviewer of terrorism legislation, David Anderson QC, has said. I am a little puzzled as to why so many people seem to believe that PII is fairer than closed material procedures. My experience of PII is limited to criminal proceedings, but it is instructive.

In one case in which I was instructed—a lengthy police corruption case—it turned out that, unknown to me as leading counsel for a defendant, there had been a number of PII applications. Some two to three months into the case, the High Court judge trying it came into court and said: “I wish to hold a further PII hearing in relation to some documentation that I have seen to determine whether it should be disclosed to the defence”. He then retired into chambers with leading counsel for the prosecution, his two juniors and a solicitor from the Crown Prosecution Service. After a lengthy hiatus in which we drank a large number of cups of Nottingham Crown Court’s best coffee, the judge emerged in court and two redacted pieces of paper were revealed. They were rather important and my junior and I wondered why we had not been given these documents at the beginning of the trial. We felt that we should have been but, already many weeks into the trial, the prospects of the jury being discharged and the trial starting again were realistically zero. The same would apply in civil proceedings, where, as the noble Lord, Lord Pannick, has confirmed from his experience, which is different from mine, the same processes are followed. The public authority in question makes its application for PII, usually in secret, the other side—the claimant in civil proceedings—knows absolutely nothing about it, and a few weeks into the trial the judge may decide that he or she should review PII.

What the Government are offering through closed material procedures is not for both sides to be heard but, given the provision in this Bill for the appointment of special advocates, in reality it would become the norm for a special advocate to be appointed. Although not instructed by or on behalf of the claimant, the special advocate would represent the interests of the claimant. Having read a very large number of control order case transcripts, including a lot of closed transcripts, I happen to believe that special advocates have sold themselves rather short and that they were extremely successful, as results have shown, in a large number of control order cases. I was interested and encouraged to hear the noble and learned Lord, Lord Woolf, saying “Hear, hear!” as I made that statement.

Although one would not have a wholly transparent process, one would have a process in which highly skilled advocates, often leading counsel, would represent the interests of the litigants concerned. That looks to me much more like a transparent legal procedure. I do not think for one moment that these procedures, whichever we adopt, should become the norm. They should remain rare. I firmly believe that, although it is inevitable that in almost all cases a public authority will make the application, the decision that determines how the case progresses, if at all, should be made by a judge, having weighed up all the arguments placed before him or her. It is of course inevitable that the issue will be raised in 99 cases out of 100 by the public authority because the public authority is the custodian of national security and of secret material.

Although I can see grounds for amending the legislation, I remain unpersuaded that the cha-cha-cha is a more attractive dance than the rumba here. My noble friend wants to do a waltz, I think.

[Lord Lester of Herne Hill]

I would like to do a quick-step. Is my noble friend going to be sympathetic to Amendment 62 in order to improve his dance?

[Lord Carlile of Berriew]

I am sympathetic to any amendment which will improve the justice of decisions made. I am broadly sympathetic to Amendment 62. When I was independent reviewer of terrorism legislation, I frequently expressed the view that there should be stronger discussion between special advocates and those whose interests they represent. I remain of the view that the security services are over-sensitive, if not hyper-sensitive, about such communications. The short answer to my noble friend is yes.

I therefore invite the Minister to assist this Committee, particularly the non-lawyers here, by answering the fundamental question as to whether the Government have chosen a fairer procedure. Surely that is all we are trying to achieve. I say “that is all” but, if we achieve it, it will be a noble achievement indeed.

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[Lord Lester of Herne Hill]

I respectfully agree with everything that the noble and learned Lord has said. Does he appreciate that the reason for this variety of amendments is to achieve precisely the position that he would advocate, and that to get rid of straitjackets seems to be present in the Bill as it stands?

[Lord Woolf]

I agree that there are dangers, in the way the Bill is drafted at present, of it being thought that there is a straitjacket, but there would be an equal danger of a straitjacket if we adopted either of the alternative forms of amendment that have been proposed so far, although I am bound to say that I prefer the option of the noble Lord, Lord Thomas, and the reasons he explained, to the reason previously put forward by the noble Lord, Lord Lester, and others. If you come second in line in putting forward amendments, you can usually do things marginally better than the previous attempt, and I think that has applied here.

As the noble Lord, Lord Pannick, rightly pointed out, the Bill as it is at present is not as clear as it should be. It is very difficult to express it in a more satisfactory way than has been expressed already, but it could be done and I am sure that if the matter is reconsidered it will be possible to make the situation clear beyond peradventure. I would urge that this approach is adopted.

I should also make it clear that I think that the noble Lord, Lord Carlile, is right in saying that in most situations that are covered by the Bill the result will be preferable to both sides if the closed hearing procedure is adopted rather than PII, because PII has the very unfortunate effect that you cannot rely on the material that is in issue, whereas both the claimant and the Government may want to rely on that material. That is a good reason for having the closed-hearing procedure.

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[Lord Lester of Herne Hill]

I am just wondering whether it is right for the noble and learned Lord to put these issues into such neat boxes. Let us take the case of Binyam Mohamed and assume that there was closed material procedure so that the Government would not have had to pay a lot of money to settle the case. That would be a case saturated with national security on both sides. I am not speaking with any personal knowledge of the case, but Judge Kessler in the United States would have looked at the material showing serious ill-treatment. He would have wanted that material to be put forward. No doubt there would have been material within the intelligence and security service showing that Mr Binyam Mohamed was not an ideal citizen. Both sides would have been reliant upon heavily saturated material from the intelligence and security service. Therefore, I suggest national security would be involved in the first category as well as the Norwich Pharmacal one.

[Lord Falconer of Thoroton]

I have read the eight judgments in the Binyam Mohamed case and, although it was dressed up as a judicial review application at one stage, the case was essentially an application for a disclosure of documents and is therefore a Norwich Pharmacal case.

[Lord Lester of Herne Hill]

I am talking about when he was seeking damages in the civil claim after he had been released and brought back to this country. That is the process to which this would be relevant.

[Lord Falconer of Thoroton]

Yes, indeed, and in relation to that the Government would be free to withdraw their defence—indeed this is the route that was taken, as I understand it—at which point national security would be protected. It is that situation that we are dealing with first. As I was saying in relation to Norwich Pharmacal, which we shall deal with at a later stage in proceedings, the Government do not have the option of withdrawing from the case. The consequence of this is that they may be forced to disclose information that any reasonable person would think damaging to national security. Equally significantly, those foreign intelligence agencies that provide us with information might consider that it is no longer politick or sensible to do so.

This evening, however, we are dealing with the category of fairness in the context of civil proceedings, rather than danger to national security. The change proposed by this Bill is significant. Very helpfully, in answer to one of the many reports that Parliament has produced on this issue, the Government have set out the list of circumstances in which closed proceedings are possible at the moment. Generally, they are terrorist-related and not usually in relation to resolving a dispute between two civil claimants; it is about whether the state is going to do something not good as far as the individual is concerned. Therefore, this would be a significant change.

Issue number one for the Government is to establish that there is a sufficient problem—unfairness to the state—to demand this quite significant change. Here in the Chamber we are all aware that in the Al Rawi case the Supreme Court said closed proceedings generally are not fair. That does not mean this is not the answer because it may be the best that can be done. However, we need to pause before introducing a system where, as the noble and learned Lord, Lord Kerr of Tonaghmore, said—and everybody agreed with this—closed proceedings could lead to a situation where a judge is looking at material that is not only not cross-examined but might be misleading.

What is the case for the change? The Joint Committee on Human Rights, on which the noble Lords, Lord Faulks and Lord Lester, and the noble Baroness, Lady Berridge, sit, had quite detailed hearings about this. To start with, it did not get any evidence. After it closed its witness sessions, it got evidence from Mr David Anderson QC who said that there may be “a small but indeterminate” number of cases,

“both for judicial review … and for civil damages, in respect of which it is preferable that the option of a CMP … should exist”.

In relation to those cases, it was his view that,

“there was material of central relevance … that it seemed highly unlikely could ever be deployed”,

except in closed proceedings.

David Anderson QC divided his two sets of cases into judicial review and ordinary civil damages claims. The judicial review proceedings were all in respect of refusing naturalisation or excluding an undesirable from this country. Those judicial review proceedings are now dealt with under Clause 12, so we put them to one side. He said that three civil damages claims were the foundation of his case that there was this small group of cases in respect of which CMP might be useful.

In response to what David Anderson QC said, a number of special advocates put in evidence in which they questioned his conclusion that the evidence referred to could be deployed only in closed session. They referred to the fact that in every case in which they had been involved, which slightly reflects what the noble and learned Lord, Lord Woolf, said, there always proved to be a way, whether by redactions, gisting or some other means, in which the material was deployed in some way without damage to national security. That is where the evidence rests at the moment.

I should say that I was Solicitor-General for a period of time. One of the things that the Solicitor-General does is look at PII certification. There were some difficult problems that were getting worse when I left the post. I suspect that they got worse after I left because the situation in the world changed. I should also say that David Anderson gave very sensible advice and was highly respected. We are in a position where the only person who has seen the detail of the cases is David Anderson QC for whom I have great respect. We are also in a situation where it is perfectly possible—the noble Baroness, Lady Manningham-Buller has said this—to envisage cases where intelligence is completely the defence on which the Government would legitimately rely but could not disclose. As the Joint Committee on Human Rights has said, the Government have slightly damaged themselves by the strange way in which they have deployed their case. We are willing to be persuaded, but we need to be persuaded.

[Lord Falconer of Thoroton]

I was aware of that. The Joint Committee on Human Rights said:

“The flexible and imaginative use of ancillary procedures (such as confidentiality rings and ‘in private’ hearings) has meant that to date there is no example of a civil claim involving national security that has proved untriable”.

So the committee is saying that there may be ways around that. I find it difficult to imagine that the key point about the closed material procedure is that the claimant does not see the documents. From what has been said—this may well be right—the claimant is the person you do not want to see the material. How does a confidentiality ring or an in-private hearing deal with that fundamental point about closed material proceedings? From this side of the House, we understand what is being said but query whether the case is yet proved.

On the second issue, let us assume that you need something because the case is to be treated as proved in relation to these three cases, which is what is relied on. Is what the Government are proposing the right answer? Remembering that the point here is fairness and not the protection of national security, in our respectful submission, the solution is obviously flawed. There are two problems with it. First, it says that where a Minister certifies or contends that national security would be damaged—no balancing exercise: end of story—closed material proceedings are allowed. No balancing would be allowed.

There is a little bit of movement on the other side in relation to that. I say that because Clause 6(1) states:

“The Secretary of State may apply to the court seised of relevant civil proceedings for a declaration that the proceedings are proceedings in which a closed material application may be made to the court … The court must, on an application under subsection (1), make such a declaration if the court considers that … such a disclosure would be damaging to the interests of national security”.

There is no balancing of any sort before you get to the declaration of Clause 6(1).

Clause 7(1)(c) makes provision for rules of court and states that,

“the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security”.

Once even the most minor damage to national security is established, the door comes down and you do not disclose.

I cannot believe that that is what the Government intend in relation to this. They do not even include in the provision anything along the lines of “Before you do that, think very carefully about whether the problem can be avoided by any one of the many means currently used”. My two big worries about the Bill in this respect would be, first, that there is no balancing exercise and, secondly, that there is no requirement for there to be thinking about whether there are means by which it could be avoided in other ways.

The noble Lord, Lord Thomas, and the noble and learned Lord, Lord Woolf, came together in an unusual combination in relation to this. They said that maximum flexibility is the answer and I agree. This is not a maximum flexibility situation. For the two reasons that I have given, I would respectfully submit that the Government have got it wrong in relation to this.

What is the answer? For the reasons I have given, I think that what the noble Lords, Lord Faulks, Lord Lester and Lord Pannick, have proposed does not quite get there. I cannot understand why the obvious answer, at the moment, is that you give a judge the power to rule that it is PII and is not disclosed; or that it is disclosed in full; or that, in exceptional circumstances, it should be heard in a closed material proceeding. With the amendment in the names of the noble Lords, Lord Faulks, Lord Lester and Lord Pannick, you end up in a situation where only if you say no to disclosure can there then be a closed material procedure. However, there must be cases where it is a finely balanced thing. If the court was forced to choose between disclosure and non-disclosure, it would choose disclosure, but if it also had the option of a closed material procedure, it would take that. The amendment does not allow for that flexibility.

[Lord Lester of Herne Hill]

The spirit of liberty is the spirit that is not too sure that it is right, but I tried to indicate agnosticism about the precise way of approaching it. I entirely agree with the noble and learned Lord, with the noble and learned Lord, Lord Woolf, and with my noble friend Lord Thomas of Gresford that flexibility is key and that if we can achieve that, we do not want to put it into a straitjacket. We simply produced a form of words that were an attempt to be formal but were not intended to be the last word at all.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I join the noble and learned Lord, Lord Falconer of Thoroton, in congratulating all who have taken part in the debate. It has been very helpful. I certainly welcome the spirit in which various proposals were put forward.

Perhaps I may deal first with the noble and learned Lord, Lord Falconer, who said that he remains to be convinced. I noted that most other contributors to the debate thought that there were cases, albeit a small number, where closed material proceedings would be required. He quoted David Anderson QC, who has had access to some of the material and has been satisfied. There is only a small number of cases. No one is claiming that there is a huge number, and I will come on to that in a moment. There is the experience of people such as the noble Baroness, Lady Manningham -Buller, who have seen the kind of cases where this issue could arise. I generally agree with the analysis where the noble and learned Lord, Lord Falconer, indicated at the outset of his speech that there were two different issues here—fairness in civil proceedings that by their nature are not of the Government’s instance, and other cases that we will consider later in Committee with regard to Norwich Pharmacal.

We are trying to secure fairness. The Bingham Centre for the Rule of Law, which has been quoted and referred to in this debate, said, in its response to the public consultation that,

“we consider that the prospect of claims alleging very serious wrongdoing on the part of state agencies (such as complicity in kidnapping, forced disappearances and torture—as have been made in several recent cases) being dismissed because key evidence inculpating state agencies is held to be immune from disclosure, to be a very concerning one from the perspective of the rule of law”.

We are seeking to ensure that there is material there and, if so, that it can be placed before a judge, obviously subject to safeguards, and that if national security issues are involved they would not be prejudiced by the material coming into the public domain.

I detected in the debate a sharing of that objective. It is perhaps worth reminding the Committee that in the Green Paper that the Government published last year, we made it clear in paragraph 2.4 that:

“CMPs should only be available in exceptional circumstances, and where used, every effort is and should continue to be made to have as much material considered in open court as possible. But in the small number of cases where sensitive material is crucial to the outcome, it is better that the court should be able to decide the case, despite the additional complexities a CMP might create, than—in a worst case—that the case should not be tried at all”.

We also said in paragraph 2.5:

“An appropriate mechanism for triggering the CMPs will help to ensure that they are only used where it is absolutely necessary to enable the case to proceed in the interests of justice. The principle of open justice is an extremely important one, and any departure from it should be no more than is strictly necessary to achieve a proper administration of justice”.

I hope that that provides reassurance to a number of my noble friends; the noble and learned Lord, Lord Woolf, emphasised the importance of it—as did the noble and learned Lord, Lord Falconer.

Perhaps I may first address the amendment of my noble friend Lord Faulks. It would introduce a system of statutory public interest immunity for national security material only. I fully recognise that the purpose of the amendment is, as it were, as a precursor to Amendment 40. As the noble and learned Lord, Lord Woolf, indicated, nevertheless it would represent a change from a situation where public interest immunity has proceeded on a common-law basis. Putting it on a statutory footing would be a significant change. We obviously need to put closed material proceedings in civil cases on to a statutory footing, because in Al Rawi the Supreme Court indicated that there was no common-law basis for them. We are dealing with two different things in that respect.

PII is a principle that the courts have developed over a number of years to deal with the handling of sensitive material, and a wide and flexible range of public interests falls within its ambit. However, I have concerns that to change all these things may lead to more difficulties than the problem the change was intended to resolve. The Government ruled out a statutory PII in the Green Paper because it would offer little advance on the current system in providing clarity on the applicable principles, stability and certainty. If you start to create a statutory presumption in relation to national security when PII is asserted, it would start to raise questions when PII is claimed and sought in respect of some other grounds.

However, I accept that the primary purpose of the amendment was to prepare the way for Amendments 40 and 47, on which my noble friends Lord Faulks and Lord Thomas raised important issues about the relative benefits and interaction of closed material proceedings and public interest immunity.

My noble friend Lord Faulks asked whether Clause 6(5) was a tick-box exercise. It is important to emphasise that it is a statutory duty. The Secretary of State would consider whether a claim for PII should be made before applying for a CMP on the basis that it is a statutory duty and a legally binding obligation. Were someone to apply for judicial review of that exercise, the Secretary of State would in practice need to show the court that he or she had in fact properly considered PII as an alternative to a CMP application. That entails giving the matter serious consideration, taking into account all relevant considerations, ignoring irrelevant ones, and coming to a rational conclusion on the facts of a particular case.

The statutory duty would mean that, were PII successfully claimed, for example, the Secretary of State would consider factors such as what this would mean in terms of exclusion of materials which CMPs would otherwise allow the court to take into account. It may relate to the volume of national security material, or only one piece of evidence in the case might be relevant. Why go through the requirement for PII if indeed there is only one piece of evidence or—at the other extreme, and this is the term that has been used—if it is saturated? It may also relate to how relevant or sensitive the national security material is to a particular case. However, it is not a tick-box exercise.

[Lord Lester of Herne Hill]

I do not understand why it is sensible to do this by way of satellite litigation—judicial review of a Minister—rather than leaving the judge at the centre to make the judicial decision himself.

[Lord Wallace of Tankerness]

My Lords, I come on to why I do not agree that the PII ought to be exhausted first, and that that should be the test of what should apply with regard to an application. I have indicated why it would not be advisable, and I totally accept what my noble friend said: he is agnostic as to the terms of this. We are just trying to find a way of reaching proceedings that are acceptable.

[Lord Lester of Herne Hill]

Just to clarify, I am not talking about which comes first. I do not understand why it is sensible to say that a Minister makes the decision, and then it can be judicially reviewed. Why is that a more practical and sensible approach than leaving the flexibility to the judge from the very beginning?

[Lord Wallace of Tankerness]

Of course, it has been Ministers who have asserted PII, and I think that is what we expect the Minister to do: to give consideration to whether that would be appropriate in this particular case before considering an application for closed material procedures.

We do not find an exhaustive proceeding of PII satisfactory because, where it is obvious from the outset that the Government would be claiming PII, and national security counts for the overwhelming majority of relevant material, why go through the PII exercise before applying to the court for a declaration that closed material procedure can be used? That may be the kind of case that the noble Baroness, Lady Manningham-Buller, was talking about. As I have indicated, the Government’s proceedings specifically include a duty to consider it. However, Mr David Anderson QC in his evidence to the Joint Committee on Human Rights said that the termination could be made without conducting a whole PII. He said that,

“if the exercise is plainly going to be futile, I do not think legislation should require it to be performed”.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I do not accept that it is a straitjacket. I have sought to indicate that at the second stage proceedings each individual piece of material will be looked at. If disclosure subject to redaction is needed, that is what will be ordered. If gisting is needed, the power will be there for the court to do that. I do not believe there is terribly much between anyone as to what we seek to achieve. I have made it clear that it is not the intention of the Government that uncomfortable, unhelpful evidence should be held back. Indeed, I have just said that it is our intention that all relevant material should be before the court. If your Lordships do not think that the wording achieves that, it would be only proper, given the quality of the debate we have had, for me to reflect on the points that have been made. We are all grappling with how we get the procedure that achieves an objective which is widely shared.

I hope noble Lords will also consider the points that I have made. Some of the comments made suggested that it had not been fully understood what the nature and extent of the second stage procedure would be with regard to individual documentation and evidence once the gateway had been opened and the principle of closed material proceedings had been accepted. I hope noble Lords will reflect that that procedure is available. I am more than willing to engage with the Opposition, with my noble friends and with Cross-Benchers to see if we can address the objective in a way which does not defeat the object of this but ensures that in cases where justice and fairness demand that material should be made available, material which would be damaging to national security were it to go into the public domain, that that can be achieved. I have no doubt that when I invite my noble friend to withdraw his amendment he will indicate that we will come back to it at the Report stage. I sincerely hope that over the summer months we can have some consideration of it and perhaps the agnostics might become believers.

[Lord Lester of Herne Hill]

Just to be clear, is the Minister saying that he accepts that the judge at the first stage should have complete discretion in deciding on case management and whether it should be dealt with first by PII or not? If not, why is that such a bad idea?

[Lord Wallace of Tankerness]

My Lords, that is not what I said. I did say, however, that the judge at the first stage has to be satisfied that two tests are met before he even opens the gateway to closed material proceedings. There has perhaps been some misunderstanding that when you pass through the gateway, everything suddenly becomes subject to closed material proceedings. That is not the case. It is at that stage that individual pieces of evidence are looked at. That is a materially different position from the one which has sometimes been suggested that the gateway is the be-all and end-all and once you go through the gateway the doors and the shutters came down. That is not what is proposed but obviously if noble Lords do not believe that is properly reflected in the drafting, I am more than happy to try to find a way in which we can proceed.

Justice and Security Bill [HL]

Lord Lester of Herne Hill Excerpts

Wednesday 11th July 2012 Lords Chamber

[Lord Hodgson of Astley Abbotts]

My Lords, I shall also speak to Amendments 44, 46, 48 and 49. They say that you should never begin your remarks with an apology, but I apologise because I had understood that there would be a mini-debate and the noble Lord, Lord Thomas of Gresford, and I were in the second half. He de-grouped so I am something of a tail-end Charlie.

I will cover some of the ground that we discussed earlier—in particular, the use of PII before a CMP application—but with some differences, which I shall come to later. I do not expect my noble and learned friend on the Front Bench to give a long and considered answer, because he gave one before the dinner break, but I hope that he will be able to take on board some of the points that I shall make in the next few minutes.

As this is the first group of amendments that I have proposed, I should declare interests. I am a trustee of Fair Trials International and treasurer of the All-Party Parliamentary Group on Extraordinary Rendition. However, as I said at Second Reading, I am not a lawyer and I have never been involved in the security services. I said then that I ventured out on to the ice with some trepidation and, watching the legal thunderbolts that flew across the Chamber earlier this evening, my trepidation has not reduced. However, I was encouraged by another contributor to our Second Reading debate who said that this was too important a matter to be left to the lawyers, so I am venturing a bit further on to the ice.

All these amendments are probing and I hope to tease out the Government’s thinking on a number of issues. To guard against the more obvious ways of making a fool of myself in your Lordships’ Chamber, I have enlisted the help of Tony Peto of Blackstone Chambers and of the campaigning group Reprieve, to whom I am extremely grateful. All the amendments that I have tabled, and more that we shall discuss later and no doubt at our next sitting, have a common theme and background about which I feel strongly. I hope that the Committee will forgive me if on this first set of amendments I explain the background in a little more detail—I will not have to do it again—and, if this appears slightly unlawyerly, I apologise.

I said at Second Reading that I recognised that there was an important issue here, and before the dinner break the noble and learned Lord, Lord Woolf, said that there were going to be a number of cases where national security was inherently and implicitly involved in the case. At the nexus of civil liberties and national security lies the fact that not everybody can know everything and there are legitimate reasons for having to keep some things secret. However, to keep matters secret is undesirable, so I believe that there has to be a strict test of justification. My amendments, all of which are probing at this stage, are designed to develop the Government’s thinking about this justification and, in doing so, to have a chance to benefit from the legal expertise in your Lordships’ House.

My concerns about the Bill can be grouped under two headings. Both concern fairness and are what I have described before as regulatory capture and the possible impact of these proposals on our society. I have said before that I am always concerned about the naturally inherent risk of the adverse nature of regulators, and the security services are one such example. In all fields, whether it be national security, social services or financial services, regulators are judged by failure or at least by the absence of failure. Therefore, regulators tend to want to set the bar as high as possible to give themselves the maximum amount of power or points of leverage to deliver their allotted task.

That, of course, is the entirely positive aspect of the regulatory case, but I am afraid that there can be a less attractive aspect, which is that of spreading a blanket of confidentiality over a matter so as to avoid issues of incompetence or embarrassment being revealed, or the revelation of a smoking gun. I am hoping to find out during our Committee proceedings how we can lean into the wind, so to speak, and make sure that the procedures that we set up really do enable the sorting of the wheat from the chaff in these difficult and critical areas.

My second area of concern is about the impact on our society of these measures, and this underlines the critical importance of our discussions. This is not about legal technicalities but real life. I take part in the Lord Speaker’s outreach programme. It is a fascinating experience which I thoroughly enjoy. I never go to one of these meetings without learning something about our society and the way in which your Lordships’ House and Parliament are viewed. Most of my visits are to schools, to young men and women of 17 or 18 years of age, doing A-levels. I am a West Midlander, so my visits take me to schools in Birmingham and the Black Country, where there is a large black minority ethnic, particularly Muslim, population. I emphasise, as background to our discussion on the Bill, that these young men and women are keenly interested in our judicial system and its application to them and their communities. When you see them, you get questions—I welcome the questions, because I get such a lot from them—about Guantanamo Bay, Binyam Mohamed, and all these aspects which are the background to what we are discussing during the passage of the Bill.

My second reason for tabling my amendments is therefore to ensure that we do not strain the fabric of our society too much and so, indeed, to ensure that when I begin my visits again to the schools in the autumn, I can look these young men and women in the eye, and say, “Yes, we did look at these issues; yes, we did explore the ramifications; yes, we did have legal expertise bearing down on it; yes, we did make the Government justify their policies; and no, this is emphatically not a system with any in-built bias”.

So, with that rather long-winded explanation of the amendments that I have tabled, to horse! Amendment 43 is a trigger for the operation of Clause 6(1), the application for a CMP. During the earlier debate, I was interested in the balance of advantage for PII and CMPs. Amendment 44 sets out the conditions to be fulfilled before the trigger can be pulled. Four of these are listed: that the court has gone through a PII process; that the process has resulted in excluded material; that material includes evidence damaging to national security; and that, as a consequence, the court is prepared to consider an application for a closed material proceeding.

Amendment 46 sets three tests for the court to consider before making a deliberation: that the threshold conditions have been met; that only a CMP can provide a just resolution and PII will not work; and, lastly and perhaps most importantly, that,

“there is no serious risk of injustice to either party”.

I have been advised—I say that with care—that the earlier amendments that we looked at did not cover that in quite the same way. Indeed, with this, you increase the amount of judicial discretion and therefore improve the application of justice and reduce the ability of the Government to dominate the proceedings.

Amendment 48 inserts a new set of tests for the court to consider in deciding to allow an application. There are five of them, which are self-explanatory, but I draw attention to the last one, on which I am again told that in the interests of open justice and natural justice the statement of whether it would be in the interests of justice to grant the application is again likely to increase judicial discretion.

Finally, Amendment 49 requires the Secretary of State or another party to go through the PII process before applying for a CMP, as opposed to considering whether to make such an application for a CMP outright. The purpose behind these amendments overall is to increase the amount of judicial discretion, and to do so to a greater extent than the alternatives that have been put before us tonight. I beg to move.

[Lord Lester of Herne Hill]

My Lords, in a sense, we have been through this before. This is another means of tackling the problem. I entirely agree with the noble Lord, Lord Hodgson, in raising issues of public confidence. It is a matter of great concern to me that what we call civil society—often very uncivil civil society—has reacted to the Green Paper and the Government’s proposals in extreme terms, it even having been suggested that we should deny the Bill a Second Reading. There is a great deal of cynicism and suspicion about the work done by our security and intelligence agencies. The fact that the press feel aggrieved that the principle of open justice is necessarily limited by the Bill that we are now considering again leads to the impression that something perfectly unconstitutional and disgraceful is being put forward.

I have never taken that view and have agreed with the Bingham institute and Tom Hickman in particular in the way in which they have approached the problem. However, the Government have not done themselves any service by the way in which they produced a Green Paper and put forward far too broad terms, which gave rise immediately to a justifiable negative reaction, and they are now rightly narrowing what they originally sought to do. We have to be careful to realise as we sit in this Chamber at this hour that what we are now doing will probably not enhance confidence outside but, rather, do the opposite, much as we regret it. We must do what we can to combat cynicism and lack of confidence in the work done by the security and intelligence agencies.

I sometimes worry that, unless we give our judges appropriate powers and discretion, we will in the long run also undermine public confidence in the judiciary. It will be most undesirable if the judges are seen merely to be rubber stamps. I just want to give one example. The only time I took part in closed evidence material proceedings was when I represented the People’s Mujahideen of Iran, which had been proscribed by Jack Straw and was seeking to have the proscription removed. It was prevented from collecting funds, having meetings or publishing material. I turned up as its advocate. There was a special advocate but the special advocate was unable to be of any use at all because what we needed to know was the gist of the case against the People’s Mujahideen of Iran.

After two days, my clients came to me and said that this was a completely unfair procedure, that they did not have the faintest idea of the gist of what they were supposed to have done and that they were now going to withdraw from the proceedings and withdraw my instructions. I perfectly understood their view. Later, they chose another counsel, David Vaughan QC, who went to Luxembourg. The Court of Justice in Luxembourg eventually found in their favour, as a result of which I think that the organisation is no longer proscribed.

I say all that because, having lived through that experience, I understand perfectly why the closed material procedure causes such anxiety to the press, to members of the public who take an interest, to those who go through the procedure and to the special advocates. It is no use saying that special advocates underrate their own capacity. They have to live with this procedure and do the best they can, and I perfectly understand why they have these reservations.

[Baroness Berridge]

My Lords, I rise briefly to concur with the comments of my noble friend Lord Lester, as well as my noble friend Lord Hodgson, particularly bearing in mind his quote about the possible impact on our society. Although we had an incredibly in-depth legal discussion on the previous group of amendments, I felt some frustration as what we were rightly considering was whether we can in particular cases get the least imperfect solution. That is the purpose of the Bill. However, I believe that there is a wider purpose—that of public confidence in our judicial system, which, along with the Royal Family, is one of only two institutions in our society that have remarkably high levels of public trust.

--- Later in debate ---

[Lord Falconer of Thoroton]

The noble and learned Lord referred to Clause 11(5), which states:

“Nothing in sections 6 to 10 … affects the common law rules as to the withholding, on grounds of public interest immunity, of any material in any proceedings”.

He referred to paragraph (c), but I am looking at paragraph (b). Does it mean that, in considering a PII application, the court cannot have regard to the subsequent possibility of a CMP application?

[Lord Lester of Herne Hill]

My Lords, perhaps I may ask a question related to the same provision. Subsection (5)(c) states that nothing in those sections,

“is to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the Human Rights Convention”.

I take it that what that means is, “in breach of the duty imposed by Section 6 of the Human Rights Act”, which requires courts to act in a way that is compatible with convention rights, including Article 6. One might think about amending that paragraph to make it clear that one is talking about not just the international treaty but domestic law, which imposes that duty under Section 6 of the Human Rights Act. Can thought be given to that?

[Lord Wallace of Tankerness]

Certainly, it could be thought about. We just wanted to make it clear in the Bill that Article 6 was pertinent. I am answering this to the best of my ability. The noble and learned Lord asked whether Clause 11(5)(b) ousted PII when a court was thinking about closed material proceedings. I am not sure if that was his question.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, once again I thank my noble friend for moving his amendment. It highlights an important issue in the Bill relating to judicial discretion. Under the proposed proceedings, the Secretary of State would apply for a declaration that a closed material procedure might be used in the case. The judge will need to be satisfied of two things before he grants the application. The two conditions set out in Clause 6(2) are that the material is so relevant that normally a party would be required to disclose it, and that disclosure of the material would damage national security.

The construct is that if both conditions are met, there is no discretion; the judge says that this is a case where a closed material procedure will happen. As I started to explain prior to the dinner break, that is a gateway. It does not mean that every piece of material is necessarily going to be the subject of evidence led in closed proceedings. Things would then move on to the second stage where, similar to what happens in PII, evidence documents are then tested. It may be that, subject to proper redaction, certain documents then could be admitted, or permission might be refused for them to be in closed material proceedings and they could be admitted to open proceedings if the redaction was made. In other words, the redaction would be the non-disclosure. Equally, as indicated in Clause 7(1)(d), if permission is given by the court not to disclose material, the rules of court must provide that the court should consider requiring the relevant person to provide a summary—the gisting—of the material. As subsections (2) and (3) of Clause 7 indicate, there are consequences. If the court does not give the relevant person, most likely the Secretary of State, permission to withhold material and the Secretary of State elects not to disclose it, there are consequences that can flow from that and these are set out in Clause 7(3).

That is the process we envisage. Obviously, the court will be assisted and will receive representations from special advocates. It is the intention that the court should have the power to refuse non-disclosure or permit non-disclosure only to parts of a document or require summaries or require a party to take action for refusal to disclose or to summarise—for example, not to take certain points or to make concessions. That is certainly the intention. I am more than willing to look at the wording to see that it gives effect to the intention.

[Lord Lester of Herne Hill]

Is the answer to the noble and learned Lord, Lord Falconer, that the principle of proportionality is intended to apply here—in other words, that the court must exercise a sense of proportion once a case is through the gateway? If that is so, it is very important. Can the Government think about writing in the need for proportionality as the previous Government did in their Equality Bill?

[Lord Wallace of Tankerness]

My Lords, I am not conceding at this point that it is proportionality. The dynamic of representation is from special advocates and the court considering the material may be able to disclose a particular document if there are certain redactions. I understand that that is the nature of many of these cases and that representations can be made.

The important point I wish to make is that that is at the second stage. The amendment which my noble friend has moved relates to the first stage. That is a gateway which we believe the case ought to be allowed to go through if the two tests are met—namely, that it is a case where disclosure of material is required. We envisage that the Secretary of State would present the material to the court. If there were a vast number of documents, he could present a sample, giving the flavour of why he believes that issues of national security are involved, and ask for the principle of closed material proceedings to be accepted. But the detail takes place at the second stage. Therefore, our view is that the discretion would not be appropriate at the first stage because it is at the second stage that individual documents are being looked at. If the two tests are met, it is important that closed material procedures are allowed to take place, although what actually becomes closed material will be subject to no doubt considerable discussion, debate and representation. It is for that reason that we do not believe it would be appropriate to allow judicial discretion in these circumstances.

However, I certainly take the point about Clause 7(1)(c) that was made by the noble and learned Lord, Lord Falconer, and referred to by my noble friends Lord Hodgson and Lord Thomas. If they feel that that is a total barrier and does not allow the kind of discussion, debate and representation to be made at the second stage that we clearly intend should be part of this process, we are happy to look at it.

[Lord Wallace of Tankerness]

My Lords, if the test is made as to whether it,

“would be damaging to the interests of national security”,

with all due respect, I do not think that is a trivial matter, and I do not think the Secretary of State would actually seek to do it if it was a very minor matter. We are talking about matters that would have to satisfy the court that it,

“would be damaging to the interests of national security”.

That is quite a serious level of consideration. We are not talking about something that is trivial. What I am trying to say is that if the Secretary of State sought to do something that perhaps was not so much in the interests of national security but might be thought in some way to be hiding an embarrassment, as is clear also from the Bill—I think it is in Clause 10(4)—special advocates are engaged at the gateway stage and obviously we would make representations to that effect. If the court was not satisfied that this was a matter of damaging the interests of national security, the test would not be met and it would not be appropriate for the closed material procedure application to succeed.

[Lord Lester of Herne Hill]

I was trying to be helpful—and obviously failing—in asking why the Government do not accept that the principle of proportionality must apply at the second stage. It is an ancient principle of our common law that you do not take a sledgehammer to crack a nut. Provided that the judge has that discretion, it seems a very important safeguard. Could whether or not to write it into the Bill be considered before Report?

[Lord Thomas of Gresford]

If I may add to that, my Amendment 58 seeks to add words to Clause 7(1)(c) that would introduce a test of proportionality. Clause 7(1)(c) says,

“that the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security”,

to which my amendment would add,

“and that damage outweighs the interests of justice in disclosure”.

That would introduce a balancing test for the judge. As I understand what my noble and learned friend is saying, Clause 6(2) is concerned with the gateway and that could be satisfied by the production of a sample of material. But when you get to the second stage, the judge would be considering things in absolute detail, endeavouring to perhaps make things available by redaction or other means. Even when doing that, my Amendment 58 would be a very appropriate addition to Clause 7(1)(c).

--- Later in debate ---

[Lord Lester of Herne Hill]

I am sorry to pursue the matter once more. When a judge is deciding on the scope of an injunction, or on whether a restraint of trade is no more than is necessary, that judge is then applying the principle of proportionality. I do not understand why the same does not apply here. When the judge is deciding on such things as redaction and looking at documents, surely he or she will decide that there should not be overkill, that the interests of justice are to be weighed and that the principle of proportionality should therefore apply. However it is expressed, that is the same as the European test under both EU and convention law. It is also the same under our own scheme. I do not understand why that does not apply here.

[Lord Wallace of Tankerness]

My Lords, I think I have already replied to my noble friend. I indicated that he had raised the issue of proportionality and that I would not make a concession on that point on the hoof. However, I also undertook to consider it.

Justice and Security Bill [HL]

Lord Lester of Herne Hill Excerpts

Tuesday 19th June 2012 Lords Chamber

[Lord Wallace of Tankerness]

I have indicated that there was a consultation. There was strong representation that it would not be appropriate to have this kind of procedure in inquests. My main line of defence is that we listened to the consultation and responded to it. I believe that the right judgment was made.

[Lord Lester of Herne Hill]

My Lords—

--- Later in debate ---

[Lord Wallace of Tankerness]

Maybe it is an old habit from the House of Commons that is making me reply.

[Lord Lester of Herne Hill]

Is not the answer to those noble Lords who have asked these questions quite simply that the right to life under the European convention requires particular requirements of openness and transparency, and therefore there is a strong case for separating inquests anyway?

[Lord Wallace of Tankerness]

There is a strong case, and having heeded the representations, we took that particular route.

I was trying to explain that CMPs have been part of our legal system sometimes by agreement in civil cases and that is compatible with the interests of justice, so why bring forward the Bill? The reason is that the Supreme Court last year, in a case called Al Rawi, held that a court is not entitled to adopt a closed material procedure in ordinary civil claims for damages. The court held that it was for Parliament, not the courts, to decide where closed material procedures should be available. The consequence has been that we are no longer able to rely on the ability of the courts to find their own way through this difficult issue of disclosure.

Hence the provisions in Part 2 of the Bill, which seek to respond to this challenge in a proportionate and targeted manner. It makes CMPs available in narrow circumstances—namely, in civil proceedings in the High Court, Court of Appeal and Court of Session, where material is relevant to those proceedings, disclosure of which would damage the interests of national security. Importantly, it will be only after the Secretary of State has considered whether a claim for public interest immunity should be made. In line with a recommendation of the Joint Committee on Human Rights, Part 2 also allows for the transfer of judicial reviews of exclusion, naturalisation and citizenship decisions to the Special Immigration Appeals Commission, which has well established closed procedures.

Under the plans, where the Secretary of State applies for a CMP in civil cases, it will be for a judge to declare whether a CMP may be used. The judge will make this declaration on the basis only of national security considerations, not crime or international relations. Inquests, as we have indicated, have been excluded, and we were never intending to make CMPs available in the criminal courts.

Let me stress the safeguards that will apply. The Secretary of State will first have to consider whether the material can be dealt with by making a claim for public interest immunity. This will be a legally binding obligation and failure to comply can be judicially reviewed in the courts. The Secretary of State will then apply to a judge, and that judge will declare whether in principle a CMP may be used. That judge is the decision-maker. He or she must be satisfied that there was material relevant to the case, the disclosure of which would damage national security.

Once the judge has taken a decision in principle that a CMP may be used, a second exercise will take place in relation to the individual pieces of evidence which he decides are national security sensitive, following representations by a special advocate whose job is to act in the interests of the claimant. The judge will determine the treatment of each piece, whether redacting individual names or sentences would allow the evidence to be heard in open, or whether a summary of the evidence withheld must be made available to the other party and so on. The Bill does not upset the established position that it is for Ministers to decide whether to claim PII. Consequently, it should be the responsibility of the Secretary of State to apply for a declaration to the court that a closed material procedure may be used.

Some suggest that the Government may choose between claiming PII and applying for a closed material procedure opportunistically. Some say that the Government would apply for a closed material procedure where the material was helpful to the Government on the basis that the material could be considered by the court and that the Government would claim PII where the material was unhelpful so that, if successful, the PII claim would exclude that material from consideration.

It is not a realistic concern. The intention behind the closed material procedure proposals is precisely so that allegations made against the Government are investigated and scrutinised by the courts. The intention is that all relevant material—helpful or unhelpful—will be before the courts. It is hard to see that a judge assessing a PII claim would conclude that material should be excluded if the Government were seeking cynically to use PII to exclude material that undermined its case when a closed material procedure was available as an alternative.

The Bill makes absolutely clear that the court must act in accordance with the obligations under Article 6 of the European Convention on Human Rights—the right to a fair trial. The overall effect will be that in practice all evidence currently heard in open court will in consequence of the CMP provisions continue to be heard in open court, including allegations against the state. In reality, claimants will receive as much information where there is a CMP as they would following a PII exercise.

A number of respondents to the consultation made the points that CMPs are a departure from the tried and tested fundamentals of open justice. I agree. No Government propose measures in this area lightly. However, as we have seen, CMPs are already used in our justice system, and have been endorsed by both domestic and international courts for the good reason that they provide a fairer outcome when the alternative is simply silence—no judgment at all and no questions answered.

Briefly, I move on to the final set of provisions in the Bill—namely, ensuring the protection of our intelligence-sharing relationships and our domestically generated intelligence through reform of an area of law that is known as the Norwich Pharmacal jurisdiction. The Norwich Pharmacal jurisdiction grew up in the sphere of intellectual property law, where it is used to force a third party who—however innocently—is mixed up in suspected wrongdoing, to disclose information that a claimant feels may be relevant to a case that they are bringing elsewhere.

However, in 2008 a particularly innovative group of lawyers sought, in the case of Binyam Mohamed, to extend this jurisdiction to argue disclosure of sensitive intelligence information held by the British, including that provided in confidence by our allies. A specific right to the disclosure of intelligence services information has been ruled out by Parliament in the Freedom of Information Act and the Official Secrets Act. Yet, since Binyam Mohamed, there have been no fewer than nine attempts to use this jurisdiction in relation to sensitive information, including secret intelligence.

What is particularly troubling about this area of law is that, as the purpose of the proceedings is solely to gain disclosure of material, the Government do not have the option to withdraw from or settle the proceedings. If a judge orders disclosure, there is no option but for the Government to release the secret intelligence. Those who cannot keep secrets soon stop being told secrets. We expect our allies to protect intelligence material that we share with them from disclosure, and they expect the same from us. It is a regrettable fact that uncertainty about our ability to properly protect classified information provided by foreign Governments has undermined confidence among key allies, including the United States. In some cases, measures have already been put in place to regulate or restrict intelligence exchanges.

This is not just about material from overseas partners. We also need to protect from disclosure United Kingdom-generated sensitive material, which, if disclosed, could reveal the identity of United Kingdom officers or their sources and capabilities. To give but one example, not only could disclosure of sensitive intelligence derived from a UK human source jeopardise an ongoing intelligence dividend from that source, it could also blow the source’s cover, putting his or her life at risk. Our intelligence agencies cannot operate effectively if they cannot offer their sources protection. Norwich Pharmacal is the wrong tool for national security cases. The Government must regain the discretion to decide what the best way of assisting someone should be. Unless we address this situation robustly, the UK will continue to be seen as a soft touch by those wanting to get access to sensitive information. Our allies will—

--- Later in debate ---

[Lord Lester of Herne Hill]

My Lords, the Joint Committee on Human Rights is obtaining evidence about this Bill. We intend to report to Parliament before Report stage and to table amendments in the mean time. It is a highly controversial Bill and we welcome the Minister’s assurance that there will be sufficient time to scrutinise and improve it during its passage in this House. Like the noble Lord, Lord Beecham, whose speech I found particularly impressive, I think we should strive across the House to achieve consensus where we can.

There are welcome ways, identified by the Minister and others, in which the Bill improves on the overly-broad proposals in the Green Paper, in accordance with the recommendations of the JCHR and others. However, the Government have not accepted our criticisms or recommendations, or those of the independent reviewer of terrorism legislation, the special advocates and civil society, about the lack of sufficient judicial control of the closed material procedure, the judicial balancing role of public interest immunity, as described by the noble and learned Lord, Lord Mackay of Clashfern, and the use of the Norwich Pharmacal disclosure jurisdiction post the Binyam Mohamed decision of the Court of Appeal. I regret to say that the Bill betrays an unjustified lack of confidence in our fine system of civil justice and the capacity of our courts to protect state secrets.

The Select Committee on the Constitution has published its very significant report on the Bill, rightly noting that exceptions to the constitutional principles of open justice and natural justice should be accepted only where demonstrated on the basis of clear evidence to be necessary. The JCHR considers that the Government have not demonstrated by reference to evidence that the fairness concern on which they rely is in fact a real and practical problem.

That said, I must now plead guilty. It is to some extent because of my role at the Bar that the closed material procedure was first introduced. It happened as a result of litigation in both European courts. In the first example, Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary, a Minister had certified that national security prevented part-time reservists in the RUC having the merits of their sex discrimination cases heard at all in Northern Ireland. I had to go through Luxembourg for them to get that conclusive ministerial certificate set aside so that we were able to hold a merits hearing before a tribunal in Northern Ireland, partly in camera, and I am glad to say that the women won.

The second example is the Tinnelly and McElduff cases, where Northern Irish complainants said they had been black-balled from getting government contracts because of their religion, and the Government said otherwise. Again, the puzzle was how to do justice to them when the Government said there were national security considerations affecting their cases. I plead guilty to having suggested, as had many NGOs, that the answer was a closed material procedure. That is what was developed in SIAC. I do not, therefore, start off with a root-and-branch opposition to the closed material procedure. Where properly controlled, it is in my view a proper compromise.

The Constitution Committee rightly decided that the scheme contains three basic flaws. I agree with that but I am not going to talk about it, because the committee did not look at Norwich Pharmacal. I am simply going to concentrate the remainder of my remarks on the ouster in Clause 13. This refers to the court’s ability to order the disclosure of any information held by or originating from the intelligence services in civil proceedings where the claimant alleges that wrongdoing by someone else has, or may have, occurred; that our intelligence services were involved in the carrying out of wrongdoing, innocently or not; and that the disclosure is reasonably necessary to enable redress to be obtained or a defence to be relied on in connection with the wrongdoing.

As it stands, Clause 13 would deprive the courts of the ability to make such an order in any circumstance. It is a complete and absolute ouster clause. What would this mean in practice? I will illustrate this in the real world. Shaker Aamer is a Saudi Arabian citizen and the last remaining former British resident detained in Guantanamo. Following his capture in Afghanistan in December 2001, he was detained by US military authorities in Afghanistan, and since February 2002, in Guantanamo. Despite repeated requests by the United Kingdom Government, he has still not been released from Guantanamo.

Shaker Aamer maintains that, during his detention by the US military authorities, he has been subjected to torture and cruel, inhuman and degrading treatment. In English proceedings, he sought disclosure of material alleged to be in the Foreign Secretary’s possession supporting his case before the Guantanamo review task force that any confessions that he may have made during his detention were induced by torture or ill-treatment. The basis of his application is the Norwich Pharmacal jurisdiction, as developed in the Binyam Mohamed case.

The Divisional Court gave judgment on 15 December 2009 granting his application subject to hearing further argument on statutory prohibitions and public interest immunity. The judgment records his allegations of ill-treatment during his detention at Bagram air force base, where his interrogators included a member of the UK Security Service, and his interrogation at Kandahar air force base by two members of the UK Security Service. The Divisional Court held that, to the extent that the information held by the Secretary of State supported that claim, it was essential to the presentation of the claimant’s case before the task force. Without the information sought, and without the ability to make submissions on the basis of that information, the claimant’s case could not be fairly considered by the task force of the review panel.

The current Norwich Pharmacal cases are also those of Omar and Njoroge, both of which are death-penalty cases pending in Uganda. Their substantive claims have been heard in the Divisional Court and judgment is still awaited. Both men claim that the Foreign Secretary holds information, in the possession of the intelligence service, that will prove that they were rendered and tortured and that this was part of a plan. I shall not say any more about those cases because they are pending, but those men are on trial for their lives in Uganda.

If the powers of our courts to order disclosure in those cases in the interests of justice are abrogated by Clause 13, these men and other alleged victims of torture and serious ill-treatment who are on trial for their lives, and their security-cleared lawyers if they have them, will be denied access to crucial information. It is not appropriate to describe cases of this kind as “legal tourism”. They have real and close connections with this country and British intelligence actions here and overseas, and they are properly brought in British courts, just as they could be in other common law countries, including the United States, and civil law countries. Given that it has been suggested that this is some novel English jurisdiction, I have summarised the comparative position on a website, www.odysseus trust.org, where one can find the comparative position across the common law world, the civil law world and the United States.

The motivation driving the Bill is the political need to reassure the United States Government and the CIA, and our own intelligence services, that sensitive information imparted in confidence will remain secret. The working relationships between the intelligence services of the UK and the US are subject to an understanding of confidentiality described as the control principle, which is very important.

In the landmark judgment in Binyam Mohamed, the Lord Chief Justice, the noble and learned Lord, Lord Judge, referred to,

“the painstaking care with which the Divisional Court addressed the public interest arguments advanced by the Foreign Secretary. The approach of the Divisional Court ... represented an exemplary model of judicial patience … If for any reason the court is required to address the question whether the control principle, as understood by the intelligence services, should be disapplied, the decision depends on well understood PII principles. As the executive, not the judiciary, is responsible for national security and public protection and safety from terrorist activity, the judiciary defers to it on these issues, unless it is acting unlawfully, or in the context of litigation the court concludes that the claim by the executive for public interest immunity is not justified. Self evidently that is not a decision to be taken lightly”.

I know of no case in which a British court has failed to respect the intelligence relationship between the UK and United States or the need to protect state secrets and national security, including the case of Binyam Mohamed, where the only information ever revealed by a court was information revealed by Judge Kessler in the district court for the District of Columbia in a federal habeas corpus case. When my friend, the noble Lord, Lord Butler, refers to the damage done by that case, he may not appreciate that the only information ever revealed was public and had been revealed in the United States by the federal district court. That, in truncated form, was all that was ever revealed.

[Lord Butler of Brockwell]

My Lords, I am well aware of that, but the fact is that that was a breach of the control principle. I assure the noble Lord that the United States authorities regarded that as a breach of a sacrosanct understanding between them and the United Kingdom.

[Lord Lester of Herne Hill]

Yes, surely, just as the previous Government thought that even though in Spycatcher, information had been available throughout the United States, it should be stopped in this country. I do not question the sincerity of the belief, simply its rationality.

I hope that the Minister will be able to confirm in winding up this debate that he agrees with the assessment that the British courts have invariably protected state secrets from harmful public disclosure. It is important that that be on public record for the benefit of our American cousins. The Lord Chief Justice also noted in Binyam Mohamed that it had been accepted by and on behalf of the Foreign Secretary, the right honourable David Miliband, in the litigation that,

“in our country, which is governed by the rule of law, upheld by an independent judiciary, the confidentiality principle is indeed subject to the clear limitation that the Government and the intelligence services can never provide the country which provides intelligence with an unconditional guarantee that the confidentiality principle will never be set aside if the courts conclude that the interests of justice make it necessary and appropriate to do so. The acknowledgement”—

that is, by the right honourable David Miliband—

“that the control principle is qualified in this way is plainly correct, and it appears to be accepted that the same limitation on the control principle would apply in the USA. Presumably therefore our intelligence services accept that although the control principle applies to any information which they disclose to their colleagues in the USA, the ultimate decision on disclosure would depend on the courts in the USA, and not the intelligence services, or for that matter the executive”.

Indeed, in his first PII certificate, the right honourable David Miliband MP fairly recognised that he,

“may well have been inclined to reach a different conclusion on the balance of the public interest were the US authorities not to have made the commitments to make the documents available”

to Mr Mohamed’s US counsel. In other words, the previous Government rightly recognised that the control principle was not absolute. Clause 13 would reverse that.

The Government’s briefing describes the Binyam Mohamed case as controversial. It certainly is, and that remains the view of our ally. Even though the previous British Government sought to provide information about his torture and ill-treatment to security-cleared lawyers so that he could have a fair trial for offences carrying the death penalty, the US Government refused to do so. Even after the federal court had published the information in detail, the British Government persisted in seeking to persuade the English Court of Appeal not to publish for fear of offending our American allies who, according to the Government, have lost confidence in our ability to protect their intelligence, and as a result have put measures in place to regulate or restrict our intelligence exchanges. President Obama deserves better informed advice about our courts. The American Supreme Court has itself said:

“Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers”.

Finally, in his evidence in the Binyam Mohamed case, Morton Halperin, a senior expert on security issues, gave extensive evidence explaining how both Governments understand that in both countries the right to order the disclosure of information has to be in accordance with law and subject to the judiciary. Surely the US Government understand our parliamentary system of government under the rule of law by the independent judiciary and would accept a decision by our Parliament that the absolute ouster of the courts’ jurisdiction in Clause 13 is disproportionate and unfair. My noble and learned friend the Minister said that Clause 13 will not affect convention rights, but the Government’s handout on the human rights memorandum says that there are no convention rights that would obtain so that is not an appropriate safeguard. I very much hope that limitations can be written in to ensure that Clause 13 will no longer continue as an absolute ouster clause.

Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill

Lord Lester of Herne Hill Excerpts

Wednesday 15th June 2011 Lords Chamber

[Lord Waddington]

There is just one little matter that puzzles me and I would be very grateful for my noble and learned friend’s help on it. If Amendment 32B is read along with Amendment 33, it seems to suggest that Amendment 33 covers all the ground in Clause 18 but merely puts it better. In fact, Amendment 33 does not address one of the matters which Clause 18 seeks to address; that is, the suggestion that EU law may be binding on us quite irrespective of any Act of Parliament. I wonder what my noble and learned friend’s answer is to that, because I do not think that his Amendment 33 covers one of the matters which Clause 18 seeks to address. The argument advanced by counsel in the metric martyrs case suggested that EU law was binding on this country quite apart from any Act of this Parliament.

[Lord Lester of Herne Hill]

I have added my name to the amendment. When I was young and at the Bar I remember that there was a High Court judge all of whose judgments were two words: “I agree”. I shall do my best to follow that admirable example as I agree with the analysis of the noble and learned Lord, Lord Mackay of Clashfern. I want to add a couple of things. First, paragraph 114 of the Explanatory Notes refers to a case that I was in more than 30 years ago, Macarthys Ltd v Smith, in which Lord Denning set out the exact position recited in that paragraph. The Explanatory Notes recite:

“As Lord Denning noted in the case of Macarthys Ltd v. Smith … ‘Community law is part of our law by our own statute, the European Communities Act 1972. Community law is now part of our law: and whenever there is any inconsistency, Community law has priority. It is not supplanting English law. It is part of our law which overrides any other part which is inconsistent with it.’”

That is exactly what this amendment puts into statutory language. The 1972 Act, the brilliant Act, if I may say so in his presence, introduced by my noble and learned friend Lord Howe of Aberavon, is the organic Act. That Act is the parent. It is that Act which made sure that the binding force of European Community law would not be directly as a result of judgments of the Luxembourg Court but would be directly as a result of the Geoffrey Howe Act. That is what is said here. To recite further Acts which have come in afterwards by way of a list, as the noble and learned Lord, Lord Mackay, has indicated, is inappropriate.

[Lord Williamson of Horton]

It seems a long time since we discussed Clause 18 at Second Reading and in Committee. I would recall that it is only tenuously linked to the referendum lock clauses. It has been described as the parliamentary sovereignty clause, but it is perhaps best described, as in the words of the Bill, as a clause on the “status of EU law”. It is a declaratory provision which confirms—it does not establish—that directly applicable or directly effective EU law takes effect in the UK only as a result of an Act of Parliament. Some people do not like declaratory provisions in legislation, but the Government may certainly propose such a clause if they think it has importance in maintaining public confidence by confirming, for the first time in statute, our existing treatment of EU law within the UK’s domestic legal order. It is consistent with the decisions of our courts, notably by Lord Denning in Macarthys Ltd v Smith in 1979.

Amendment 32B has not been moved, so Clause 18 is in the Bill and we have a choice between the Government’s text and the revised text proposed in Amendment 33, which refers specifically to the European Communities Act 1972 rather than to an Act of Parliament. The Explanatory Notes to the Bill state that the words,

“by virtue of an Act of Parliament”,

cover UK subordinate legislation made under Acts and also Acts and measures of the devolved legislatures in exercise of the powers conferred on them by the relevant UK primary legislation.

That is the description, but will the Minister say—this is the same point that has been broadly covered by the noble and learned Lord, Lord Mackay— whether that is the specific reason why these words were chosen in the Government’s text? As everything seems to come back to the European Communities Act 1972, would the reference to that Act in the text of the amendments not also cover subordinate legislation and Acts of the devolved legislatures? That is what has been stated and I should like the Government to confirm whether that is the case.

--- Later in debate ---

[Lord Flight]

My Lords, I rise with some trepidation, as I am not a lawyer. I have not been entirely satisfied by the arguments that have been put forward by both the noble and learned Lord, Lord Mackay, and other eminent lawyers in the House that we can rely entirely on the 1972 Act and the fact that apparently subsequent legislation depends on the definitions in that Act, to the effect that the 1972 Act covers all relevant legislation.

The noble and learned Lord made the point that there was very little difference between his position and that of the Government in this territory, so I wonder what is wrong with taking a belt and braces approach to this matter. If I understand the position, there are other sources in relation to subsequent Acts that are as drafted not wholly dependent on the 1972 Act, and EU law can be given legal effect in the UK by secondary delegated legislation and not just by primary legislation.

[Lord Lester of Herne Hill]

I realise the noble Lord is not a lawyer and what I am about to say may seem unfair, but the answer to what is wrong with his suggestion is that the Court of Appeal and the House of Lords in the cases of Macarthys v Smith and Factortame have made the legal position perfectly plain. That is why the noble Lord, Lord Richard, is right in saying that we do not need Clause 18, but if we are going to have it we may as well have it stating the law as declared by our judges.

--- Later in debate ---

[Lord Wallace of Tankerness]

No, my Lords, but one should consider the context. This new clause was proposed in its original form in the context of trying to lay to rest any contrary suggestion that there are other means—means which I do not think anyone in this debate has accepted; nevertheless, they are out there and are run as arguments—by which European Union law can be imported into the legal systems of the United Kingdom. That is why we use “only”.

[Lord Lester of Herne Hill]

I hope that my noble and learned friend takes this question in the spirit in which I ask it. Is there not a danger that his approach would be in accordance with Lord Wilberforce’s warning about the “austerity of tabulated legalism”?

[Lord Wallace of Tankerness]

That is the sort of question that one wants notice of and where the answer might in any case be misinterpreted. I think that I made it clear, and that it has been generally recognised in these debates, that this is against a background of suggestions made not in this Chamber—I think the position is perfectly well understood here—but elsewhere that there could be other channels via which European Union law could be imported into this country. We want to make it clear—I think there is near unanimity in the House—that it is by Acts of Queen and Parliament that the European Union law has effect.

The main difference between us is the view expressed in the amendment that the European Communities Act 1972 is the sole legislative vehicle for doing this. Our concern is that there are other Acts of the United Kingdom Parliament which make direct reference to European Union law, particularly the one on directors’ disqualification, which does so without reference to any other form of the 1972 legislation, even through the Interpretation Act. As my noble friend Lord Flight said, it is belt and braces. In a situation such as this we believe that the belt and braces are required. It is a fine point—not one of principle, but it is one of statutory interpretation. We believe that to list would not be neat because of the danger of leaving one out, but we need to make it very clear that European law becomes part of our United Kingdom legal system through an Act of Parliament. That is the way it happens and by no other way. To limit it to one Act, however fundamentally important that Act, runs the risk of leaving others out which are already on our statute book. For that reason, I invite my noble and learned friend to withdraw the amendment.

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[Lord Risby]

My Lords, the whole House will recognise the magnificent work over many years that, as a great public servant, the noble Lord, Lord Kerr, has done for this country but at the heart of the amendment is the fact that he dislikes the Bill in its entirety. It may also be fair to say that his idea of a sunset clause is the very passionate hope that the sun will never rise on it again. I see him smiling.

The whole point about this Bill is that it is meant to provide an enduring framework or umbrella under which future important EU decisions can be made. It comes back to this fundamental question, which is one of trust. People need to feel that they have a longer term guarantee of that sense of ownership of these procedures if we are to give away powers to the European Union. That is simply at the heart of this Bill. A sunset clause would give a limited time frame—providing perhaps for a time when we do not expect a referendum, or taking that right away when there might be a treaty change. That is the possible danger. But I might use the analogy of saying to the noble Lord, “Here is £5, but you can spend it only between four o’clock and six o’clock in the afternoon, otherwise I am going to take it back”. That is the essence of what this is all about.

We all want to build trust, which has been absent in the relationship between the people of Britain, Governments and the European Union. As we have observed already in our debates and discussions, the Laeken treaty, which was meant to rebuild that trust, following through to the Lisbon treaty, has certainly failed to do that, and we are seeing the consequences right across the European Union. We do not want a future Government, who are to re-engage people, to be able to renege on a promise. This Bill does not seek to bind a future Government—that certainly could not be done anyway—but it binds a Government politically to ensure that the people of this country are involved. That is the key and heart of this particular legislation.

A sunset clause can be appropriate in certain circumstances. Most of your Lordships will agree that the Counter-Terrorism Bill was a case in point. There was perhaps, arguably, a temporary situation that had to be dealt with, although I certainly did not agree with it, and then our traditional liberal traditions needed to be returned to in due course after what some people regarded as an exceptional situation. But in practice this amendment would return ministerial discretion to decide whether to revive Part 1, which includes the whole issue of the referendum and parliamentary control provisions. There is a risk that a Government might revive the Bill only if they were confident that there was no chance of treaty change during that Parliament. Of course, should this Bill become an Act of Parliament, which I certainly hope it does, it could be repealed, as the noble Lord said. But it should be repealed on the same mechanism of equal importance as its introduction if a repeal is going to take place. In future, the Government will have to come back and explain themselves about major EU decisions, which is essentially what the Bill demands.

If the noble Lord’s amendment were to improve the Bill, we might consider it in a rather more dispassionate way. But what this is about really is taking the heart out of the Bill—and I am confident that the noble Lord knows that too well.

[Lord Lester of Herne Hill]

My Lords, one benefit of our largely unwritten constitution is the flexibility that our system gives us; one defect is that we do not have a very consistent set of principles to guide us. We tend to be pragmatic. My experience as a blow-in or holiday resident for 38 years in the Republic of Ireland and my experience of their system makes me attracted to one of the arguments in the speech in support of the amendment by the noble Lord, Lord Kerr. It has convinced me that any attempt in this Bill to introduce inflexibility would be a grave mistake. I also think that referenda on complicated and highly technical matters are not a very good idea.

The Irish constitution has been interpreted by a narrow majority of the Supreme Court of Ireland as requiring referenda in quite a number of circumstances. When the treaty of Lisbon was put out for referendum the Irish Government produced an information pack which was completely incomprehensible even to lawyers, since it referred to bits of that treaty by reference to article numbers, paragraphs and specific legislative proposals. They left an information pack in each post office. I took the trouble to try to understand it and, as I say, I found the information given to the citizens of the Irish Republic to be so opaque that I certainly could not understand it.

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[Lord Empey]

My Lords, I was amazed that the name of the noble Lord, Lord Pearson, is not on the amendment. I was also surprised at the remarks of the noble Baroness, Lady Williams, who is well known throughout the country as a very wise head. However, the effect of the amendment, and the idea of a sunset clause, would be to give those who want to sever any relationship between this country and the European Union an opportunity at least every five years to have a platform with a specific objective in mind and to achieve it. That would be unwise. I am not sure whether anybody in the Chamber has not made up their mind on the Bill, but I will assume that one or two noble Lords are subject to persuasion. There could be nothing less attractive for somebody who believes in European Union than putting in a sunset clause. It would turn every election into a referendum on the European Union. Nothing would do more damage to the European cause because everybody would come out of the woodwork to oppose it and to run single-issue campaigns. We know that they work, because campaigners for hospitals, and environmental campaigners, have won seats in different countries. Single-issue elections are the most dangerous type, and I fear that we would open up a Pandora's box. Those who passionately oppose the Bill are shooting themselves in the foot with this amendment.

The noble Lord, Lord Lester of Herne Hill, made the point that he had seen the Irish constitution in action. The Irish are very proud of their constitution. The Irish Government accepted, after the first referendum on the Lisbon treaty, that they had provided an overcomplicated form of information to the people, and subsequently corrected this at the next referendum. Nevertheless, people are still passionately in favour of their constitutional rights. If one goes to anybody in the Republic and says, “This is too complicated—the Government put forward all this stuff and we could not understand it because it referred to treaties and articles”, and then asks them whether they want to retain the right to have the final say, they will say yes. Even though there is a complication in a referendum on a single issue—it can be very difficult—the people in the Republic passionately believe in their right to choose. You would not find anybody in the political establishment in Dublin who would challenge that.

[Lord Lester of Herne Hill]

The noble Lord has the advantage of coming from the northern part of the island of Ireland. As I said, I have the advantage of having lived in the southern part for many years as a blow-in. Is he aware of the fact that the reason that the constitution has been interpreted to apply so indiscriminately to so many referenda is not that the Irish people decided that but that a very narrow majority of the Supreme Court of Ireland so decided, against the powerful dissents of others? In other words, it was a curious judicial decision and not a popular one.

[Lord Empey]

I take the point that the noble Lord makes. However, he will also know that if there was any groundswell of opinion to change the constitution, proposals would come forward in the Dàil for that to occur. I know of no current or recent Member of that Parliament who would stand up on a platform to advocate it. While the noble Lord is no doubt correct in his judicial interpretation, there is no support in the Republic for removing the right of the Irish people to make decisions on these issues.

The underlying danger of the proposed new clause goes back to the reason why we have the Bill in the first place. It is the “we know best” syndrome: in other words, in both Houses of Parliament, we know best. In many cases that may be true: I believe in parliamentary democracy. However, the reason that we are in this position is that the usage of that right to represent the people has resulted over time in a breakdown in their confidence in the decisions of Parliament on this subject. That is why, as I understand it, the Government are putting forward a proposal which they hope over time will bring a resurgence in that confidence. Noble Lords have suggested reviews. Perhaps, in time, if that confidence is restored, such measures may no longer be required. It is a response to a particular set of circumstances that we face today.

I do not wish to put words into the mouth of the noble Lord, Lord Kerr, or to apply a motive to what he said or to his proposal, but this is effectively a kill-the-Bill amendment. The Bill would be better not passed than passed with this clause in it. What we are actually saying to the public is, nod-nod, wink-wink, “We’ve found a way round this. By the time we get to the next general election, we’ll be able to tear it up again and go back to our old ways”. That would further undermine people’s confidence that we are listening to them and taking this issue seriously. Therefore, I see this as a kill-the-Bill amendment, and I sincerely hope that we do not include it because it will affect every subsequent election. We would open Pandora’s Box. Let us suppose that Brussels, as it is perfectly capable of doing, comes out with a proposal a few weeks before the election requiring us to have straight bananas or something stupid. It could turn the election into a referendum on Europe. Everybody who believes in the European Union, and many here are clearly passionate about it, would not be serving their cause. I hope under these circumstances we will vote not content on this amendment.