Wales: Commission on Devolution in Wales
Lord Thomas of Gresford Excerpts(10 years, 6 months ago)
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Lord Thomas of Gresford
My Lords, it is all very well saying that you are going to vote yes for a referendum. Would my noble friend the Minister be good enough to say who is going to frame the question which is to be put to the Welsh people? It has been noticeable that the First Minister, Mr Carwyn Jones, has not been overanxious to commit himself to timing for a referendum. Can we take it that the legislation will ensure that a referendum will be held and will not be deferred until some replacement for the Barnett formula has been found? In the 13 years of the previous Labour Government, they were unable to do that, despite all the pleas that were put to them at that time. Will my noble friend confirm that this referendum will go ahead with a proper question, within a reasonable time and with the Welsh Assembly having the power to determine precisely when?
Baroness Randerson
I thank my noble friend for raising two new issues, the first relating to the question for the referendum. The Government’s response on this has laid great emphasis on how well we believe arrangements worked for the previous referendum on full legislative powers. In that case, the matter was very much in the hands of the Welsh Government and Welsh Assembly in consultation with the UK Government. However, there was a very important role for the Electoral Commission, whose advice was taken and was pivotal. I hope that the Welsh Government will lead the call for a referendum and that the situation in Wales will enable them to lead that call relatively soon. It is important that the Welsh Government feel that they are in a position strongly to call for a referendum, because the UK Government believe that the joint statement of October 2012 meant that there was agreement between the two Governments on the way in which future funding for Wales would be dealt with.
Justice and Security Bill [HL]
Lord Thomas of Gresford Excerpts(11 years, 10 months ago)
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Lord Thomas of Gresford
My Lords, I shall speak to Amendment 69ZC in my name and those of my noble friend Lord Marks of Henley-on-Thames and the noble Lord, Lord Pannick. This Bill says nothing about the trial judge’s approach to the material that has been disclosed to him once the Section 6 proceedings have been completed. The word “material” is used throughout Sections 6 and 7, and Section 6(3) implies that the judge should consider intercept material: that is, material that would not be admissible in open proceedings under Section 17(1) of the Regulation of Investigatory Powers Act 2000. I remind your Lordships very briefly of what it says:
“(1) Subject to section 18, no evidence shall be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of or in connection with any legal proceedings [or Inquiries Act proceedings] which (in any manner)—
(a) discloses, in circumstances from which its origin in anything falling within subsection (2) may be inferred, any of the contents of an intercepted communication or any related communications data”.
Perhaps your Lordships will be only too aware of the campaign that the noble and learned Lord, Lord Lloyd of Berwick, has carried out, with my support, for intercepted material to be allowed as evidence in court, but that has never been a position that the Government would take.
The word “material”, which appears in Sections 6 and 7, is not evidence upon which the court may act. The amendments that have just been outlined by the noble Lords, Lord Hodgson of Astley Abbotts and Lord Dubs, spell out examples of such excluded evidence: evidence obtained by torture, inexpert opinion, or hearsay that cannot be admitted in the usual way by a notice to the other party. However, the amendment from the noble Lord, Lord Hodgson of Astley Abbotts, does not include the product of intercept.
It would be quite unacceptable for the trial judge to take into consideration, in determining the issues between the parties, anything that not only is never disclosed to the claimant but that would not be admissible in evidence if it were disclosed. The claimant would be doubly prejudiced: there would be evidence given against him in secret that was not admissible, if the judge were to take it into account.
The whole purpose of the civil rules of procedure is to ensure that the cards are on the table. Pleadings are followed by disclosure, and it is at that stage in particular that the parties take important decisions about preparations for trial, the nature and extent of the evidence they wish to call, including witnesses or documents and acceptance of offers, settlement of the case, payments into court and so on. That is why we have the system that we do: so that the cards are on the table before we ever get anywhere near a trial. In this Bill, the Government seem to want to deal from the bottom of the pack and, just for the purpose of saving the cost of settlement in a particular case, disregard the violation of centuries of open and accountable justice. Is it the unstated purpose of this Bill to reveal intercept and similar other inadmissible material to the trial judge in the hope that it will produce a judgment that is favourable to the Government? I hope that that is not the purpose of the Bill, but the way it is progressing leads me to believe that it might be.
My amendment has the merit of setting out in the Bill the parameters which the judge at trial will follow after he has concluded these Section 6 proceedings. He will exclude from his consideration anything that would be inadmissible if disclosed to him as material in closed proceedings. He will dismiss that when he comes to consider the issues in open proceedings.
Lord Pannick
My Lords, I support what has been said by the noble Lord, Lord Thomas of Gresford. I added my name to Amendment 69ZC because I was concerned to hear the noble and learned Lord the Advocate-General for Scotland say last Tuesday night, at col. 220, that the Bill would allow the judge to look at intercept evidence in closed proceedings. I had not previously understood that this was the purpose and effect of paragraph 9 of Schedule 2, and that is my fault. However, as a matter of principle it is surely one thing for the Bill to allow the judge in a secret procedure to look at material that is admissible in court but which the state is unwilling to have looked at in open court because of its sensitivity. One understands the purpose of those provisions. It is quite another thing for the state to be allowed to rely in the closed hearing on material that is, in any event, inadmissible in open court.
I had understood the Government’s defence of the closed material procedure to be that the state should not be in a worse position because the evidence on which it wishes to rely cannot be adduced in open court. To allow the state to rely on intercept evidence in the closed procedure—evidence that is inadmissible in open court—would put the state in a better position in a closed material procedure than in an open proceeding, and that cannot be right. Nor can it be a defence of such an arrangement for the Minister to argue, as he did briefly last Tuesday night when we touched on this important issue, that this is what happens in other closed material proceedings. I do not recall the House giving any consideration to this important issue on those occasions. We are now being asked to expand the scope of closed material proceedings very substantially, and I hope that we can now address the issue of principle.
Lord Thomas of Gresford
The amendment is not related to intercept evidence. Intercept evidence is part of it, but I am saying that the open civil proceedings should continue and that the judge should come to his conclusion on admissible evidence. Intercept is an illustration. Indeed, my amendment arises, as the noble and learned Lord will remember, from his unusually equivocal answer last Tuesday when I asked him the direct question.
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 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.
Lord Thomas of Gresford
Perhaps I may repeat that I do not, in my amendment, refer only to intercept evidence. It deals with what is admissible evidence in civil proceedings. At the end of that, I am still left in some doubt. I started with the position that the noble and learned Lord, Lord Woolf, enunciated that a judge would be able to do what was justice in a particular case and would not require direction. But it struck me when we discussed the matter last Tuesday that this was a means of putting before the judge—the decider of the facts—material that he would never otherwise see if the proceedings were open. It is fundamentally unfair that that should be so.
Is that the position of the Government? Do they really want the judge to decide not whether closed proceedings should be held, which is what Section 6 is about, but in the trial of the issue—the determination of who wins the case—whether to use material, of which intercept evidence is one example, that if there were no such proceedings would never play a part in the trial? Is that the position?
Lord Wallace of Tankerness
My Lords, there is a danger of going over some of the ground that we went over at an earlier stage. There are two stages to what we are proposing. There is what we have commonly come to describe as the gateway stage and there is the subsequent stage where individual pieces of evidence are argued over and special advocates make representations on those individual pieces of evidence. If the impression has been given that somehow intercept evidence is in a category of its own and will not be allowed to be challenged by the special advocates, then that is a wrong impression. Like other pieces of evidence, it will be subject to robust argument and debate overseen by a judge who, as the noble and learned Lord, Lord Woolf, said, is there to ensure that there is fairness. It is not a question that somehow such evidence is in a special category and in a box not to be challenged and not to be talked about.
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.
Lord Thomas of Gresford
The noble Lord has not been able to be with us in our deliberations. However, does he appreciate that, thus far in the Bill, the Government have not suggested that there is any risk to security at all? Does he appreciate that the purpose of the provisions discussed until now concerns the fairness of trials? Security arises in what we are about to debate very shortly. Up to this point, security has not featured because it is not an issue on the provisions we have discussed.
Lord Reid of Cardowan
I thank the noble Lord for that remark. Again, I am not on the Front Bench so I am not making their arguments for them. I am making my argument. As far as the security situation is concerned, whatever is said by the Front Bench, for more than half of the past 10 years we have been either at “severe”—the second highest level—or “critical”, which is not only a likely but an imminent threat of terrorist attack. This demonstrates the fact that we are discussing not a normal security situation but a very difficult one—not least as we approach the Olympics.
Lord Thomas of Gresford
My Lords, Amendment 76 is in my name and that of my noble friend Lady Hamwee. Amendment 76 is very much in the same terms as Amendment 75 and I accept everything that has been said by my noble friend Lord Lester, the noble Lord, Lord Pannick, and the noble Baroness, Lady Williams of Crosby. Therefore, I will restrict my remarks to a question. What is the purpose or justification for an absolute bar in Norwich Pharmacal proceedings against disclosure of material in the possession of the security services? As I understand it, the certification procedures for the Secretary of State apply to all other material in anybody else’s hands.
The Secretary of State has to take a decision in which he considers the public interest or, as my noble friend Lord Lester suggests, whether there is a breach of the control principle, which is a rather narrower test. His decision is subject to review on judicial review grounds in Section 6 proceedings. What is it about the security services that enables them to escape the consideration of the Secretary of State, the public interest and Section 6 proceedings on judicial review grounds? I see no reason for singling out the security services from such control.
Baroness Berridge
My Lords, Amendments 71 to 75, 77 to 79 and 81 to 87 all have my name on them. As the detail of those amendments has already been outlined by my noble friend Lord Lester and the noble Lord, Lord Pannick, I will follow the noble Baroness, Lady Williams, and focus on the core purpose of Amendments 85, 73A and 77A, which is to introduce limited grounds for the disclosure of information received in confidence by the intelligence services and amend what would otherwise be a complete ban on disclosure under Clause 13.
These amendments are required, as David Anderson QC pointed out to the Joint Committee on Human Rights in his evidence, when he said that,
“you are not going to get away with a blanket exclusion of all evidence in the hands of the security service, or even all evidence in the hands of the Government, as they suggest at one point”—
he means in the context of the Green Paper.
Although the disclosure jurisdiction that we deal with today began in the intellectual property field, it is completely by accident that the principles behind the jurisdiction were first applied there. On considering these amendments, I reread the judgment of the noble Lord, Lord Reid, in the Norwich Pharmacal case. It is clear that the jurisdiction is based on sound principle. It is important to consider that principle as it goes to the heart of why these amendments are required.
It is best understood by a threefold division of cases—and I would term myself a Championship not a Premier League lawyer here. First, there are cases where the person, usually the UK Government, is directly responsible for the wrongdoing and a civil case is brought directly against them as the defendant. Clause 13 leaves those actions completely unaffected. Secondly, there are cases where the person in question is a bystander, spectator or mere witness to the wrongdoing. In those circumstances, no action can be brought against that person, they are not even complicit and Norwich Pharmacal will fail.
However, there is a small, narrow group of situations—which are, as the noble Lord, Lord Pannick, has outlined, even narrower after the case of Omar—where, although not directly responsible for the wrong, there is sufficient connection to the wrongdoing that a requirement attaches to you to disclose information or material in your possession that helps the victim of the wrongdoing to seek redress; that is, more often than not, court proceedings. This obligation is based on the limited culpability that attaches as one is mixed up, even innocently, in the wrongdoing. I would term it a bit like moral velcro. Being mixed up in wrongdoing sticks you with certain limited responsibilities.
The kind of mixing up by the UK Government, in cases such as that of Binyam Mohamed, is questioning a man after you should have, at the very least, been aware that he had been tortured. When I read of the injuries to Binyam Mohamed it was rather disturbing. According to the findings in that case, the UK took some of the fruits of that torture by questioning him, although it is important to emphasise clearly that the UK Government were in no way involved in that torture.
I accept, of course, the evidence of the Joint Committee on Human Rights that the intelligence services in the United States, for example, are disclosing less intelligence to the United Kingdom because of the fact, or perception, that the information could be disclosed through our courts. But the first caveat is the Government’s own Green Paper, which outlines that there is no suggestion that key threat-to-life intelligence would not be shared. The second caveat is whether this fact or perception is justified. As the UK courts have never ordered the disclosure of such material, and any Norwich Pharmacal application that could be made subsequent to the case of Omar would be followed by a PII application as well, the risk is minimal. Allowing limited Norwich Pharmacal applications as outlined in these amendments would be a proportionate response to that minimal risk.
It is also interesting to note the change of position by the United States concerning whether the control principle was breached in the case of Binyam Mohamed, as outlined by the ISC report for 2009-10, in which the United States does not seem to think that there has been a breach of the control principle. In the 2010-11 report, the United States seemed to think that there had been one. It is interesting to note that it is the same time period which saw the mass of WikiLeaks disclosures. I would be saddened if the mistaken perception of our judicial processes or an understandable oversensitivity to the control of its own intelligence material could lead to a change in our law to exclude this jurisdiction from human rights cases, especially when, unfortunately, the alleged wrongdoer may also be the United States.
I would expect that the mere receipt of intelligence information that discloses wrongdoing, even information obtained by torture, is being a witness. Can my noble friend the Minister explore whether the requirement that in national security cases a greater culpability of connection to the wrongdoing other than being innocently mixed up would satisfy the concerns of the United States? If complicity by the United Kingdom is needed, cases where Norwich Pharmacal would apply should be very rare.
In essence, the argument from the Government is that our intelligence services lack certain information and therefore our national security could be at greater risk. I expect the Government to oppose the amendments, especially as it is the first duty of the Government to protect their citizens. I agree that it is the first duty, but it is not the first principle—otherwise protecting national security could justify torture, and it is crystal clear from the Reith Lecture from the noble Baroness, Lady Manningham-Buller, that the UK does not. Protecting national security and even going to war must still be conducted within certain ethical and moral constraints, which include that if you get mixed up in the wrongdoing you may—subject to five stringent tests in the Norwich Pharmacal case, and following a PII application—have to disclose material to help the victim defend himself against a capital charge. I fully accept that the United Kingdom is the junior partner in this situation, and is probably more reliant on intelligence material from the United States than vice versa. But your ethical and moral principles are often tested—or perhaps only tested—when you are the less powerful person in the situation, not when you are in command.
I end with a very simplistic point. The remedy may not even need to be legislation. If the UK does not get mixed up in, as opposed to merely receiving information about, other countries’ wrongdoing and, a fortiori, if the United States ceased this kind of wrongdoing, it can rest assured that the veil of the control principle cannot be pierced by Norwich Pharmacal. The remedy to some extent lies in the hands of the United States, and it is regrettable that President Obama did not fulfil his election promise to close Guantanamo Bay, which might have provided a line in the sand in this group of cases. I am pleased to live in a place with the high ethical constraints of Norwich Pharmacal and that we have a mechanism to release such information in situations that could literally save a man from the electric chair. The door to such information should be hard to open, but not absolutely barred. I support this group of amendments.
Lord Thomas of Gresford
My Lords, may I ask a succinct question? The Minister has justified the absolute ban in relation to the security services and has encouraged claimants to sue the British Government, as opposed to suing a foreign Government and making a Norwich Pharmacal application. If the claimant were to sue the British Government, would material in the hands of the security services which had been obtained through a friendly ally be disclosable in Section 6 proceedings?
Lord Wallace of Tankerness
My Lords, I think this is the point. If the claimant were to sue the British Government, if the allegation was that the British Government had been directly involved in wrongdoing—although there has been no such suggestion; I think that would get pretty short shrift—we would come back to what we have said with regard to this whole debate on Section 6 proceedings. We would wish as much information to be before the court as possible. The crucial difference between these proceedings and the proceedings in Norwich Pharmacal, as the noble and learned Lord, Lord Falconer, explained well, is that under civil damages claims, if the information should come out or the court does not allow the material to remain closed, it is still open to the Government to withdraw from the case or to settle the case. The crucial difference between that and Norwich Pharmacal is that if PII is not successful, then there is no alternative but to disclose.
Lord Thomas of Gresford
Is it right that the court would see that material? Would it see the material from a friendly foreign power that was absolutely barred from disclosure in the Norwich Pharmacal proceedings?
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.
Wales: Devolution
Lord Thomas of Gresford Excerpts(11 years, 10 months ago)
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Lord Thomas of Gresford
My Lords, in the last Welsh Assembly election in 2011, Peter Hain, the shadow Secretary for Wales, introduced the Welsh Labour Party manifesto with a call to the voters to vote for Carwyn Jones and Welsh Labour, which was fair enough, but then added:
“'But it is also an opportunity to send a message to the Tory-led Government in Whitehall: that Wales is being treated unfairly and their deep and savage cuts are hurting but not working”.
On 17 April this year, in the build-up to the local elections in Wales, for which the Welsh Government are responsible, Carwyn Jones told a public meeting in Newport:
“Vote Labour on the 3rd of May to tell Cameron and Clegg that their brutal cuts have been rejected in Wales”.
Peter Hain at the same meeting urged voters to make 3 May,
“a referendum on this unfair and disastrous budget”.
He was not of course referring to the budget of the Labour Assembly Government, a budget that was passed only with the assistance of Liberal Democrat Assembly Members. He was fairly and squarely passing the buck for the underperformance of the Welsh economy, referred to by the noble Lord, Lord Roberts of Conwy, and the noble Lord, Lord Wigley.
Labour has indeed adopted my very useful family motto, “Ar Bwy Mae’r Bai?”—“Who can we blame?” Blaming Westminster for all the ills and inequalities in Wales is only too easy. It illustrates that the Welsh Government in Cardiff escape accountability for their spending decisions. They do not want the Welsh voter to ask the questions that almost every elected body in the world has to face: “How have you spent my money? What have you done to my taxes?” Those are the questions that I would ask of the Gresford Community Council about its precept, which forms part of my council tax.
Those of us who have campaigned for devolution for all our political lives hoped to see a Welsh Government who had fiscal responsibility for both the raising and the spending of people’s money within the policy areas devolved to them—I fought on that basis in 1964, which seems rather a long time ago. That has not happened; we got the Barnett formula. As the noble Lord, Lord Rowlands, has just admitted, Labour ducked its reform.
The fundamental weakness of the Silk commission is that the Secretary of State announced when setting it up:
“The Commission will not consider … the Holtham Commission’s proposals for funding reform in Wales, including Welsh Ministers’ existing borrowing powers”.—[Official Report, Commons, 11/10/11; col. 28WS.]
Those powers were to be dealt with in a different way. I fail to see how the Silk commission can fulfil its remit to,
“examine issues of fiscal devolution and accountability in Wales and … focus on building consensus”—[Official Report, Commons, 19/7/11; col. 115WS.]
without an examination of the present system and the Holtham proposals for reforming it. How can it be possible to build a consensus in which powers to raise funds by taxation of the people or of businesses in Wales are introduced to increase accountability without reform of the Barnett formula?
Everybody agrees that Barnett is inequitable, even the noble Lord, Lord Barnett. There is consensus, from the Richard commission, to which I gave evidence in 2004, to the Steel commission and the Calman commission in Scotland. The House of Lords commission on the Barnett formula of the noble Lord, Lord Richard, of which the noble Lord was a member, said that Barnett was “arbitrary and unfair” and the Holtham commission of 2010 said that it lacked any objective justification. Holtham’s conclusion was that the Barnett “squeeze”,
“has caused the funding of devolved activities in Wales to fall below what Wales would receive were its budget determined by the various formulae that the UK Government uses to allocate resources to comparable functions in England”.
It is a formula based on crude population percentages and it takes no account of need. Noble Lords have already referred to the figures. On the basis of need, Wales should get 117% of English per capita spending and currently gets only 112%—a deficit of £400 million. Scotland should get 105%, but gets 120%. Perhaps the reason that Barnett remains is that Scotland drags its feet—like the Cardis, Scots know the value of money, and they are getting an extra £4 billion out of it. That £4 billion might fire the English to vote for Scottish independence, if they ever had a chance to do so.
A needs formula for Wales would take into account the higher levels of deprivation, the lower levels of economic prosperity, a much higher degree of rurality and the quality of public health. In addition, Barnett does not fulfil the requirements for accountability. There is no link at all between the spending decisions made by the devolved Government and the revenue that is raised and handed over to them by the United Kingdom Government. How then do you build accountability into the system, which is the declared purpose of the Silk commission?
Holtham pointed out that there are only three areas of tax that raise significant revenue: VAT, national insurance and income tax. VAT is ruled out because Europe does not permit varying rates of VAT within the borders of a member country. Gresford roads would also be choked by smugglers heading across the border to Chester, some eight miles away, as they used to be choked by people struggling over the border for a drink in the dim and distant days when our part of Wales was dry. I can tell the noble Lord, Lord Rowlands, that I know all about border issues. Increases in national insurance would impact on jobs and, in any event, as it is linked to welfare, it is not a devolved matter. The Welsh Government should be funded primarily by income tax and corporation tax. There are difficulties, of course, but they have to be worked out. The revenues from those taxes would increase as the Welsh Government succeeded in boosting jobs and industry. As my noble friend Lady Randerson—who must be congratulated on introducing this debate—said, it would be the reward for the Government pursuing successful job creation and business-friendly policies. If the Assembly Government failed and the revenues decreased, the answer would lie in the ballot box. It does not currently. As the Labour Government said, “Send a message to Westminster”.
Another safeguard would be continued equalisation funding. I agree with Holtham that United Kingdom income tax should be reduced in Wales by 50% and the Assembly given the responsibility of voting annually to raise the remaining taxes, with the safeguard that the Assembly should set a rate of 3p either side of the UK rate, a matter to which other noble Lords have referred. The excellent submission to Silk by the Changing Union project, funded by the Joseph Rowntree Charitable Trust, pointed out that the Holtham commission estimated that in 2007-08 total identifiable expenditure in Wales was about £25 billion, exceeding Welsh tax receipts by £6 billion. It said:
“This represented a fiscal deficit of 10% of Welsh GDP, although he”—
Holtham—
“suggests this gap would have more than been made up with a possible revenue equalisation grant of £27.5 billion from the Treasury based on 5% of UK population share”.
Other devolved Administrations have borrowing powers. In Wales, speedy investment in much-needed infrastructure and capital projects will stimulate the economy in both the short and long term. The Welsh Government cannot fund a long-term programme of investment out of their general expenditure. Borrowing powers are essential.
In the 1960s, I was greatly influenced by the late Professor Ted Nevin, then of Swansea University, who attacked the policy of bribing companies to come to Wales with cash subsidies. His view was that you invest such funds as you have available in creating the infrastructure of communications—road, rail, air and telecommunications—designating enterprise zones and customs-free zones, and investing in training a skilled workforce. Business must want to come to Wales for the business-friendly environment that a Welsh Government should create. That is what we hope for. That was the policy of the Welsh Liberal Party back in the 1970 general election—I know, because I wrote it—and it remains the policy of the Welsh Liberal Democrats. The Welsh Government need the funds for these long-term aims to be realised. I fervently hope that the Silk commission produces the right decisions.
Justice and Security Bill [HL]
Lord Thomas of Gresford Excerpts(11 years, 10 months ago)
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“Disclosure judge
(1) The jurisdiction of the court in section 6 proceedings shall be exercised by a judge designated by the Lord Chief Justice for such purposes.
(2) A judge so designated shall be referred to as “the disclosure judge”.
(3) The disclosure judge shall not be the trial judge of the relevant civil proceedings.”
Lord Thomas of Gresford
My Lords, I raised in my Second Reading speech the question of a separate judge for the determination of disclosure issues, in particular PII applications and Section 6 proceedings: that is, a judge who is separate and distinct from the trial judge. The reason I believe this to be a necessary safeguard in civil proceedings is because the trial judge in civil proceedings is the judge of fact. That is quite distinct from criminal proceedings in the Crown Court, where it is the jury that makes the decision on what has happened.
It was the procedure instituted in the Diplock criminal courts in Northern Ireland, where the judge, unusually, sat alone without a jury. He decided the facts and returned the verdict. The purpose of this practice was to build public confidence in the criminal trial process in the absence of a jury. The importance of public confidence in the system has been emphasised today, most particularly by my noble friend Lady Williams, but also by others who have referred to the need to keep public confidence in the judicial system.
This proposal has been the subject of discussion with the Minister, and with the Secretary of State, for which I am grateful, and I have been provided with a note which sets out the Ministry of Justice’s views. The first reason for its lack of support for my suggestion is that,
“it is better from the point of view of the administration of justice and judicial case management that the judge trying the case—who will have a direct interest in ensuring that he or she oversees a fair trial process—should be the judge who determines whether a CMP should be allowed”.
This totally ignores the fact that, in ordinary civil litigation, preliminary issues are the province of a Master of the Queen’s Bench, or a registrar. He deals with strike-out applications, case management, and in particular, with disclosure under Part 31 of the rules of the Supreme Court. Applications seeking further disclosure or contesting claims for disclosure are tried by the Master subject to appeal, not necessarily to the trial judge, but to another High Court judge.
In civil proceedings, unlike criminal proceedings, a two-tier system is in existence at the moment. Anything that is ruled out by the Master on the basis that it should not be disclosed or is irrelevant or inadmissible is not put before the trial judge. The trial judge does not become involved in these proceedings until the case is ready for trial and the disclosure issues are already dealt with.
Another aspect of the Master’s work is to deal with, as I said, strike-out applications, where allegations in the pleadings which are irrelevant or scandalous are struck out and never come before the trial judge at all. Clause 9 says that subject to Clauses 7, 8 and 10, the normal rules of court continue to apply, in relation to disclosure. That seems to mean that the Master would govern all applications in the case relating to material which is not the subject of a Section 6 application but, when it comes to sensitive material, those applications are dealt with by the trial judge. I do not believe that the Ministry of Justice has fully taken on board the standard everyday practice in civil proceedings, whether in London or across the country, where preliminary issues are not dealt with by the trial judge.
The second reason given by the Ministry of Justice for rejecting my suggestion is that relevant, but very sensitive, evidence, which would fall to be excluded otherwise from the proceedings under a public interest immunity application, is considered by the trial judge. I draw attention straight away to the difference between “material”, which is the word used throughout the Bill—Section 6 applications relate to material—and evidence, which is what is admissible and what is relevant and what the judge may take into account in coming to his decision.
The ministry says that:
“The issue is about allowing the judge to know the full facts, even in circumstances where they cannot be fully shared with the claimant. So there will usually be no question of the judge’s mind being swayed by evidence which ought not to be taken into account at all. It is about allowing the judge to take all the evidence into account”.
Of course, if all the material is put before the judge—not evidence, but material—he still has to exclude from his mind irrelevant and inadmissible material. Presumably that is multiple hearsay, inexpert opinion, the product of intercept and so on.
On intercept, I want to ask the Minister a very specific question. Under the provisions of this Bill on a Section 6 application, the judge is permitted to look at intercept material. Is he, as the trial judge, permitted to consider intercept evidence for the purposes of his decision on the issues between the parties on material that would be inadmissible in open proceedings? The Bill as drafted suggests that he may take such material into account in making a declaration under Clause 6 that a CMP application may be made, but nothing is said in the following clauses about whether he may take inadmissible evidence, like intercept, into account in formulating his judgment.
Indeed, there is a huge hole in this Bill. It deals with a Section 6 application and how you can make it; it deals with how the judge determines that application and what rules are to be applied; and it deals with how he is required to withhold material the disclosure of which he considers would be damaging to the interests of national security; but having made all those decisions what then? One would have expected a clause saying something to the effect that the judge in open court may take into account the material that he has considered in the Section 6 application. One would have expected at that point that the Bill would not be silent about what happens afterwards and to what degree he can take into account what he has seen but which he cannot disclose. If evidence is inadmissible in open proceedings, how can it be inadmissible in closed proceedings? The inherent unfairness of Section 6 applications is doubly compounded.
That brings me to the Government’s third point. Again, I quote:
“It is normal for judges at all levels to decide whether evidence is admissible and, if it is not, to put it out of their minds when reaching a judgment”.
That seems to confirm that the judge is to take into account only admissible evidence in deciding the issue. Again, I ask: does that apply to the intercept evidence that he is permitted to see in a Section 6 application? Does he put intercept out of his mind?
The fourth point is:
“This is true even when the judge is also the decision maker on the facts—for example in criminal cases in the magistrates’ court, where there is no jury; and in cases in the civil courts where PII claims are made”.
We are most certainly not dealing with criminal proceedings in the magistrates’ court in this Bill. I would be grateful if the Minister would indicate how often PII hearings do take place in such magistrates’ courts, where the magistrates carry out the Wiley test of weighing the interests of secrecy against the interests of justice. I have never heard of it happening. It may do, but I have never heard of PII applications determined by magistrates. In the civil courts, of course, I repeat, the judge discards material which he rules should not be disclosed as inadmissible —that is to say, it does not enter into the process of his determination of the issues in the case. He must sift out, from the material put to him in the Section 6 application, what is to be discarded because it is inadmissible and take into account only relevant evidence.
The final substantive point made by the Ministry of Justice is that a separate judge would have to review disclosure decisions as the trial progresses. Perhaps he would, but he would be fully informed of the state of the proceedings and of the issue which had arisen in the open proceedings, no doubt by the state’s representative, who would discuss the position with the claimant’s special advocate before such a hearing. There are ways of getting round what goes on in the open hearing which may be required to be reported back to the disclosure judge.
My point is that the designation of a disclosure judge by the Lord Chief Justice, although I put it might be more appropriate to say the Lord Chancellor, or, since it is civil proceedings, the Master of the Rolls would ensure that there is a cadre of judges, security cleared, who would develop expertise in this type of case. They would quickly be adept at redaction, gisting, disclosure to a security ring or whatever way they can deal with evidence or parts of evidence which might be disclosed to the parties. A disclosure judge could, for example, permit the special advocate to ask the claimant specific questions by way of taking instructions and could control the manner in which that would happen. If the disclosure judge decided there was a limited area of the evidence that justice demanded that the trial judge, but not the parties, should see, I suppose that in extremis that could be done. There could be a tiny residue of material which cannot be disclosed by gisting or in any other way to the parties in the open proceedings. Otherwise, however, the trial judge would deal with the issues between the parties only on the admissible and relevant evidence which the disclosure judge had decided should be open to them all.
The Government have suggested that the rationale of my amendment is to avoid the contamination of the judge’s mind in relation to material which he has seen but which is not shared with the parties. The use of the pejorative word “contamination” clouds the issue; the intention of the state in applying for Section 6 proceedings is exactly to influence prejudice or, if you like, contaminate the judge’s mind in coming to his judgment. I am concerned to ensure that justice is seen to be done in an open and transparent way that will command the confidence of the public and continued respect for the rule of law. I beg to move.
Lord Marks of Henley-on-Thames
My Lords, I added my name to the amendment put down by my noble friend Lord Thomas of Gresford. This debate is informed by the far-reaching discussion that we had last Wednesday on the relationship between PII and CMP. I suggest that in that debate there emerged a consensus around a series of principles which can be distilled as follows.
First, the use of CMP should always be a last resort given the inherent injustice in the trial judge seeing evidence that is withheld from one or more of the parties. Secondly, there should be substantial flexibility in considering how far a just determination of the issues could be achieved by relying on the PII procedure where the exclusion of security-sensitive material under PII would not make determination of the issues impossible. Thirdly, the court should always, as far as possible, make use of gisting, redaction and other ways of protecting security-sensitive material rather than relying on CMP. Fourthly, before resorting to CMP the court should always be satisfied that the public interest lies in having closed proceedings rather than in letting the case go without a determination on the merits at all. Finally, in any CMP, the use of closed material should be kept to the minimum.
Lord Pannick
My Lords, I sympathise with the objectives of the amendment and I agree with much that was said by the noble Lords, Lord Thomas of Gresford and Lord Marks of Henley-on-Thames. However, I have this concern about the amendment: in practice it will be very difficult indeed for judges to determine whether to move into a closed material procedure as an abstract preliminary question. We are far more likely to get a sensible result from a judge on whether it is necessary to move into a closed procedure, and a far more sensible result on the balance of competing interests, if the judge is fully aware of all the detail of the case and has heard the opening from the parties concerned on both sides with the open material. The judge will then be able to take a far more informed and sensible view on whether this exceptional procedure is really required.
I am very concerned that if these matters are addressed as a preliminary question, we may well find that judges—very properly, to protect national security—are going to authorise far more closed material procedures than would actually be necessary if the judge were fully aware of all the details of the case and had heard at least the opening statements on an open basis.
Lord Thomas of Gresford
Would not the problem then arise that disclosure is a preliminary part of the procedure in ordinary civil proceedings? It is upon disclosure and the pleadings that very important decisions are made: for example, for payments in and settlement of a case, and so on. As I understand the noble Lord, he is saying, “Well, leave it until the trial has begun and both sides, or at least the plaintiff, have opened their case. Only then should issues of disclosure take place”. Now, suppose the trial has started, the expense has been incurred, and something very significant appears as a result of a disclosure application which makes months of work completely unnecessary. Is that not the danger of his course?
Lord Pannick
The noble Lord is of course correct; that is a danger. However, very often, highly sensitive questions of disclosure that raise issues of PII are not dealt with as abstract, preliminary questions, but on the basis that in civil litigation, one needs to see precisely how the case is going to be argued, how material is going to be deployed, and what the issues are. I suggest to the noble Lord that it is going to be very difficult indeed, particularly in this exceptionally sensitive area, for a judge hearing matters on a preliminary basis to form an accurate and informed assessment of what we all agree are going to be exceptional categories of cases where closed procedures are appropriate, on this preliminary basis. That is my concern. It is a difficult issue.
Lord Thomas of Gresford
This is a very useful dialogue. I hope other noble Lords are listening. Is it not the case that strike-out applications, for example, and all sorts of issues are tried on the pleadings? Donoghue and Stevenson was tried on the pleadings. Major cases are tried on the pleadings because, unlike criminal procedures where the defence statements are laughable, in civil proceedings the case must be set out very fully and considered by both sides, and all the evidence must be produced up front, well before the trial starts.
Lord Pannick
The noble Lord is correct and I accept, at least to an extent, that there may be Clause 6 cases where a discrete, fundamental issue can be identified at an early stage. However, I suggest that there will also be cases—the majority, I suspect—where the issues will not be formulated and clarified in this specific way on a preliminary strike-out basis. I am concerned that it is inevitable that there will also be cases where fresh evidence comes to light or where, as a result of the way the case is put in the trial, new Clause 6 issues arise. It seems impractical to require the trial judge, who has already started to hear the case, then to say, “I am going to stop”, whereupon the issue would go off to a disclosure judge. There are real issues here and I am far from convinced that the amendment, the purposes of which I entirely sympathise with, will result in fewer CMPs than the procedure that is in the Bill.
Lord Wallace of Tankerness
My Lords, I am grateful to my noble friends for tabling these amendments. The issue of the role of the judge in providing fairness during a close material procedure is important. As my noble friend Lord Marks said, we have been looking in our debates at the careful balancing exercise by a judge in these matters. As he has said and other noble Lords have indicated, the issue of public perception and public confidence is important too. I understand why my noble friend might consider it fairer to have a separate judge to deal with the applications for a declaration that a CMP should apply and on individual pieces of evidence. This is a matter about which my noble friend Lord Thomas has been particularly anxious. He raised it at Second Reading and he has raised it with me and with the Lord Chancellor. We have given careful consideration to it. He has had the advantage of being able to anticipate what I am about to say to him, but I would still like to say it and perhaps give some explanation as to why we are not being persuaded by the merits of the proposal.
It is better from the point of view of the administration of justice and judicial case management that the judge trying the case should be the judge who determines whether a CMP should be allowed and what materials should be heard in closed proceedings. That judge has a direct interest in ensuring that he or she oversees a fair trial process. In earlier debates it has been put to the Government that we have supplied insufficient room for judicial discretion and it seems to us that a single judge in charge of the entire process is more likely to guarantee judicial discretion than if the roles of disclosure and trial are compartmentalised.
My noble friend is right to say that there will be cases too when masters decide pre-trial issues. My anticipation of what is likely to happen is much as described by the noble Lord, Lord Pannick, and echoed by my noble friend Lord Faulks. It is more likely that these issues come up in the course of the proceedings. In TPIM cases, for example, there are disclosure issues at the beginning. There is an ongoing issue of disclosure. These will be addressed as the case goes on. Indeed, fresh issues may well arise mid-case. It was also pointed out that in cases where public interest immunity is asserted, this is normally dealt with by the judge hearing the case. I am not saying that it could not be dealt with as a preliminary issue but it very rarely is.
In addition, the whole point of the CMP provisions is to ensure that relevant but very sensitive evidence, which would otherwise be excluded from the proceedings under PII, is considered by the judge. It is not a question of the purpose of this being to exclude material altogether from consideration in the case. It is in fact the opposite: it is to allow it to be considered in some very exceptional circumstances. It is about allowing the judge to know the full facts, even if they cannot be shared with the claimant for reasons of potential damage to national security. There will usually be no question of the judge’s mind being swayed by evidence that ought not to be taken into account at all. It is about allowing the judge to take evidence into account.
My noble friend asked about intercept evidence. The provision in Clause 6 is to put to one side whether or not there would be an exclusion for intercept material in determining whether a party would be required to disclose material, but it is the intention of the Bill that intercept evidence should be permitted. The provision for this is in paragraph 9 of Schedule 2. It is of course a matter for the courts and an individual judge in a particular case as to what weight would be given to that evidence. I hope that answers the very specific question that my noble friend raised.
Lord Thomas of Gresford
As I understood it, paragraph 9 of Schedule 2 refers to what the judge hears in the Section 6 proceedings. What I do not see, when he draws my attention to it, is that the judge can take into account intercept evidence in determining the issues between the parties in the trial. It seems to be quite wrong that you could take into account intercept evidence that you have heard in closed proceedings for the purposes of the trial when it would be inadmissible if the proceedings were not closed.
Lord Wallace of Tankerness
My Lords, I refer my noble friend to paragraph 9 and indicate that it is the intention that intercept evidence should be permitted before the court. We may wish to have a debate as to whether that is right or wrong—
Lord Thomas of Gresford
Perhaps I may point out the problem that then arises. The press have been full of “secret trials” and so on, and now, if the noble and learned Lord is right, the Government are proposing a secret trial, because inadmissible evidence, which you could not adduce in any form in an open proceeding, whether it is sensitive or not—intercept evidence may not be sensitive; the methods of obtaining it may be but the evidence may not be—could not be introduced in an open trial. Yet the noble and learned Lord is saying that the judge can decide the case—not the Section 6 application but the case—on inadmissible evidence that he has heard in secret. What are the press going to make of that?
Lord Wallace of Tankerness
My Lords, I will no doubt be corrected if I have got this wrong but I think it is the case that it is currently permissible in some other areas where there are closed material proceedings. We may well wish to have a fuller debate on intercept evidence rather than dealing with it as part of a debate on whether there should be a separate disclosure judge. I confirm that in fact it is available in all other closed material proceedings, so this is keeping it in line with what happens elsewhere. No doubt we may return to this if my noble friend wants a more fundamental debate on the role of intercept evidence. I just point out what the position is with regard to the Bill, since he asked a specific question.
In any event, judges are accustomed to consider material for the purpose of making evidential and disclosure decisions. It is normal for judges at all levels to decide whether evidence is admissible and, if it is not, to put it out of their minds. I know that there has been some discussion about the extent to which that is possible. Obviously, it is the case in dealing with PII claims where PII is successfully asserted. My noble friend asked about the number of PII claims in criminal cases in magistrates’ courts. That is not really the point that we were seeking to make in the speaking note which he saw; rather we sought to make the point that in magistrates’ courts there must, day in, day out, be cases, not of PII, in which magistrates have to decide on the admissibility of evidence. The argument is heard before the magistrates as to whether particular evidence is admissible or not and, if it is not, they have to put it out of their minds. The point I was making is that there is no problem in principle, even in criminal cases in magistrates’ courts, for judges to decide issues of fact and law. There are cases, too, when they will have to put out of their minds evidence which they have deemed to be inadmissible.
A separate judge would make review of disclosure decisions as the case progresses cumbersome, as was pointed out by the noble Lord, Lord Pannick. The disclosure judge would need to follow the progress of the case in order to understand potential implications for the fairness of proceedings before he or she was able to rule on disclosure issues, and that could cause delay. I accept that this is not the same as the amendment moved by the noble Lord, Lord Dubs, earlier this evening, but some of the same considerations arise.
I take this opportunity to clarify what I said in an earlier exchange with the noble Lord, Lord Dubs, when he said that the Bill will abolish juries. I think that I responded by saying that these are civil proceedings presided over by a single judge and do not relate to criminal proceedings where there would be a jury. For clarification and for the avoidance of doubt, the position is that the Bill amends the Senior Courts Act 1981, and its Northern Ireland equivalent, which contain a residual right to jury trial in some civil cases. I do not think that that was what the noble Lord, Lord Dubs, had in mind, but it is important to say that for completeness and clarification.
Lord Thomas of Gresford
For the avoidance of doubt, I was involved in a case of false imprisonment tried as a civil case in the Royal Courts of Justice in front of a jury, and I am not aware that that possibility has been abolished.
Lord Wallace of Tankerness
For completeness, the Bill allows the court, however, to refuse an application for a jury where it is of the view that the trial will involve a CMP. Highly sensitive information clearly could not be shared with a jury without presenting serious national security concerns and risks, but the original point is that the Bill does not affect trial by jury in criminal cases, since the Bill does not relate to criminal cases. Of course, criminal cases have been adduced with regard to Northern Ireland, where the practice is to have a separate disclosure judge but in a very specific context—the trial of serious terrorist offences in a climate where there a real risk of paramilitary and community-based pressures on jurors and a history of terrorist threats against judges. There, it is a very valuable safeguard, but I do not believe that such considerations apply to CMPs in civil cases.
I reassure my noble friend who raised this matter earlier that although we have given them considerable consideration, we remain unpersuaded by the arguments for a separate disclosure judge. We believe that the approach we are proposing here will lead to fairness with the same judge involved in all aspects of the case. Therefore, I ask my noble friend to withdraw his amendment.
Lord Thomas of Gresford
My Lords, I am not surprised, but I am very disappointed by that answer. I hope that things can settle down over the Recess so that the matter can be reconsidered. It seems obvious to me that it would be in the interests of justice for there to be a separate disclosure judge as I have described.
On the point raised by the noble Lord, Lord Pannick, of course issues can arise in the course of the case where what did not appear to be relevant becomes relevant. That can be covered—and one way of doing it would be to give the special advocate a watching brief throughout the case. Particularly if the Attorney-General is paying his expenses, there is no reason why he should not continue in that role, to watch how the case develops and to see if applications need to be made.
It must be in the public interest that disclosure should come at the proper time, early on in the proceedings before a case is ready for trial. At that point, as I indicated to the noble Lord, Lord Pannick, serious decisions are made: is this case one where you make or accept an offer, settle or negotiate? In what way can you shorten the cost and expense of a trial? Certainly in my experience, one always attempts to do that because a settlement may produce a better result than a judgment in your favour if you negotiate hard and well.
I wish I could expand a little further on this, but I am afraid I cannot. I ask leave to withdraw the amendment but hope that we will have further discussions on the matter and come back to it on Report.
Justice and Security Bill [HL]
Lord Thomas of Gresford Excerpts(11 years, 10 months ago)
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The Earl of Erroll
My Lords, there was one thing I forgot to say. It is important to the noble Lord, Lord Hodgson. I think Pepper v Hart applies only where there is a conflict between European directives or regulations and UK law and the interpretation of it. Therefore you may not be able to get a Pepper v Hart —as you might say—pronouncement from the Minister tonight.
Lord Thomas of Gresford
I think that is too narrow a definition of the Pepper v Hart principle. I seem to recollect that when this Bill was first discussed and promulgated, the Government were intending not to use the test of the interests of national security but what was in the public interest. That was thought to be extremely wide. The leader of my party and my noble and learned friend’s party, apparently—at least he claimed—fought for its reduction to the interests to national security. Where the public interest stops and national security begins is a fine line, or perhaps it is a fuzzy one, but it is up to the Minister to give to a judge who has to consider applications of this sort positive guidelines as to what the Government have in mind now they have reconsidered the original purpose of their Bill.
Lord Beecham
My Lords, the noble Lord, Lord Hodgson, is too modest in proclaiming that this is a simple amendment, since it goes to the heart of the whole principle of Part 2 of the Bill, which changes—potentially fundamentally—the approach to the operation of civil justice, though not of course criminal justice, in the provision of a system permitting, in circumstances that we are debating, material to be kept from one of the parties and utilised under the closed material procedures.
It is worth reminding ourselves of some of the concerns that have been expressed. I am particularly interested in the briefing submitted by the Northern Ireland Human Rights Commission, as it comes from a part of the country that has confronted security issues to a very considerable degree and has suffered considerable harm over the past few decades from activities that all of us would deplore and which would probably come within the compass of any definition of national security.
Nevertheless, the Northern Ireland Human Rights Commission in considering the Bill proclaimed that it was,
“regrettable that despite some modifications to the proposals in the Green Paper, and the declaration under clause 11 … of the Bill”,
concerning these matters, there remain,
“the risks to the right to a fair trial under Article 6”,
of the European Convention on Human Rights, and Article 14. The commission goes on to say—and this matter was referred to in Second Reading—that the Government have,
“yet to make an evidence based case as to how the current Public Interest Immunity provisions have failed to protect national security interests and therefore why a system of CMPs is needed at all”.
The commission affirms that it would appear that the Government are,
“prepared to sacrifice fair trial protections and wait for litigation to be brought by those alleging”,
a breach of Article 6,
“rather than ensure adequate protection from the outset”.
It advises that,
“the proposals are not likely to satisfy the requirements of Article 6 … in a significant number of cases”.
That is a fairly trenchant critique of the proposals. The commission concludes that the Government have,
“failed to demonstrate the need for the Bill’s provisions … The move from evoking a CMP on public interest grounds to national security grounds has been reported as an acceptable narrowing of the original proposals. Human rights law accepts national security as grounds for qualifying rights. However, NIHRC expresses concern that ‘national security’ remains a broad term that might still be relied on too readily by Government and in a manner that is not consistent with its human rights obligations”.
The briefing refers, as the noble Baroness, Lady Manningham-Buller, referred, to the national security strategy, with its references to pandemic diseases and,
“natural hazards along with increases in organised crime are listed as threats to national security”.
It concludes that the Government are,
“yet to be sufficiently definitive about what it means by national security for the purposes of requiring a court to permit a CMP in a civil case. The risk is that what is now claimed to be a ‘fix’ for a limited number of civil cases”—
and that is the Government’s case; the extent to which it is likely to be limited to very few cases is supported by Mr Anderson—
“becomes a ‘fix’ increasingly relied on by Government to obstruct scrutiny and attempts to seek redress”.
The commission’s are not the only concerns that have been expressed about the issue of definition. In evidence from the special advocate to the Select Committee, Mr McCullough stated that,
“there is the possibility that national security could be very broadly defined, unless some reassurance as to its scope were given. On one view at least, anything, or almost anything, involving international relations might be argued, and one could envisage being argued by the Government, as to have an impact on national security”.
Of course, as has already been indicated, it is not really possible to be definitive about what constitutes national security and what does not. It would be impossible to be conclusive because, as noble Lords have indicated, circumstances change and threats change, and it would be foolish to prescribe a definitive list. The noble Marquess, Lord Lothian, said of national security that you know it when you see it. The question is, in these circumstances, who is “you”? The Government may take a view; others may take a different view. Although these matters are difficult, we have to try to evolve a system that will give some guidance to those who operate the system and, indeed, those who may ultimately have to form a judicial position on individual cases.
“Disclosure of information
The disclosure of information in civil proceedings pursuant to an order of the court is to be regarded for the purposes of the Security Service Act 1989 or the Intelligence Services Act 1994 as necessary for the proper discharge of the functions of the Security Service, the Secret Intelligence Service or (as the case may be) the Government Communications Headquarters.”
Lord Thomas of Gresford
My Lords, this amendment is concerned with an anomaly that was revealed in the case of Evans v Ministry of Defence. The case concerned the handing over of Taliban suspects by British forces to Afghan security police, with the distinct likelihood that they would be tortured. The security services argued that they were not required to disclose documents in their possession for the purposes of the case because they were not themselves being sued—they were not the party concerned. The defendants were the Ministry of Defence. They said that there was a statutory bar. By Section 2 of the Intelligence Services Act 1994, the chief of the Intelligence Service is under a duty to ensure that there are arrangements for securing that no information is disclosed,
“except so far as is necessary for the proper discharge of its functions”.
Section 2(2)(a) of the Security Service Act 1989 is of a similar effect. It was argued that it was not necessary even to reveal the existence of the relevant material in their possession since it was not disclosable. I am informed by the Bingham Centre for the Rule of Law that the Evans case is not the only case in which the security services have advanced that argument.
Clause 6(2) as currently drafted provides that CMP applications apply where a party to the proceedings,
“would be required to disclose material”,
and so it is still open to the security services to argue for what they call a statutory bar, which would mean that they were not required to disclose anything at all unless they were themselves being sued. Paragraph 3(4) of Schedule 1, which we have looked at on a number of occasions, is interesting because it makes a specific provision that disclosure to the ISC is,
“necessary for the proper discharge of the functions”.
It is there, presumably, to counter any argument that might be made by the security services that they were not required to disclose anything to the ISC in particular circumstances. If that specific provision is in place for the ISC, there is no reason why a similar provision should not be made for disclosure to the court under Clause 6(2), which is the purpose of the additional clause I have advanced. It would counter any argument that the security services would not be required to reveal anything unless they were being sued themselves. I beg to move.
Lord Pannick
My Lords, would the noble Lord clarify whether the court accepted the argument that it was outside the duties of the intelligence services because they were not themselves being sued?
Lord Beecham
My Lords, I am grateful to the noble Lord for a clear explanation of something which, I am afraid, I approached with complete bewilderment. I simply did not know the point he was aiming at. I do now and I am persuaded by his argument. I hope that the noble and learned Lord will be sympathetic to the case he has made because it is convincing and consistent with the approach to the Intelligence and Security Committee. Given that precedent, I would have thought not that it would damage the interests of the security services, but rather that it would strengthen the role of the courts and uphold the principles that Members across the House seek to maintain in terms of the operation of the justice system. I hope that the noble and learned Lord will accede to his noble friend’s plea.
Lord Wallace of Tankerness
My Lords, I am grateful to my noble friend for bringing forward this amendment. He rightly points to two pieces of legislation which govern the security and intelligence agencies, the Security Service Act 1989 and the Intelligence Services Act 1994. As my noble friend has indicated, they place an obligation on each of the agency heads to prevent the disclosure of information obtained by the agencies except on certain limited grounds set out in those Acts. In particular, the disclosure of information is permissible where necessary in the proper discharge of the functions of the agencies. Information held by the security and intelligence agencies will include information and intelligence from human source reporting, and therefore is essential to the agencies’ operational effectiveness and the protection of national security.
As I understand it, the concern behind this amendment seems to be that these provisions would prevent the agencies complying with their disclosure obligations in civil proceedings. However, it is our view that the amendment is unnecessary. The agencies take their disclosure obligations very seriously. In England and Wales, if the claim is a civil damages claim, for example, Part 31 of the Civil Procedure Rules will generally apply. Standard disclosure requires parties to disclose the documents on which they rely—documents which undermine their or another party’s case and documents which support another party’s case. If the claim is for judicial review, all public authorities are subject to a duty of candour which requires the public authority, when presenting its evidence, to set out fully and fairly all matters that are relevant to the proceedings. Naturally, part of considering these disclosure obligations is the question of whether PII should be claimed or, if Parliament passes Part 2 of the Bill, whether the Secretary of State should apply for closed material proceedings. In a case where the agency is being sued for civil damages or someone is applying for judicial review, it is part and parcel of the proper discharge of an agency’s function to defend actions taken in the discharge of its functions. I therefore believe that the amendment is unnecessary.
My noble friend has made reference to paragraph 3(4) of Schedule 1 concerning the ISC provisions. This paragraph reflects a provision in the Intelligence Services Act 1994 which treats disclosure by the agencies to the ISC as necessary for the proper discharge of their functions. It may be asked, as my noble friend did, why this provision is needed there and not in the context of civil litigation. It is simply because it is right to make it clear, as existing legislation does, that disclosure to the ISC is permitted.
My noble friend may well be raising a case where it is a question of third-party disclosure. He mentioned a case of Evans v Ministry of Defence and, on the intervention of the noble Lord, Lord Pannick, I understood him to indicate that that argument did not win the day. It is a case that I wish to consider in the light of what my noble friend has said. If the effect of this amendment would be to treat the disclosure into any civil proceedings, regardless of the identity of the parties or the subject matter of the proceedings, as somehow part of the proper discharge of the agencies’ functions, that would conflict with the agencies’ need and ability to operate in secret. This is vital to maintaining the trust and confidence of those with whom they work; or, as was said in the previous debate by the noble Baroness, Lady Manningham-Buller, information may come from a particular agent, and the secrecy of that is important. I am thinking in particular of proceedings that do not at all involve the agencies and where a request for disclosure is made. It is right that in these circumstances the courts consider whether disclosure would be necessary for the proper discharge of an agency’s functions before an order for disclosure is made.
I have indicated to my noble friend that I will look at the Evans case. Based on what he said, I am advised that it may be similar to and consistent with the arguments that the agencies made in the Omagh bombing case—namely, that Section 22A is a bar to third-party disclosure, and that it was for the courts to decide. I hope that he hears that the agencies take seriously the requirements of disclosure in civil proceedings under Part 31 of the Civil Procedure Rules. On that ground I urge that the amendment is unnecessary and ask my noble friend to withdraw it.
Lord Thomas of Gresford
I am most grateful to my noble friend for indicating that he will look at these cases. In the light of that I beg leave to withdraw my amendment.
Lord Pannick
My Lords, my answer to the point made by the noble Baroness, Lady Williams of Crosby, is that regrettably Clause 8(4) is wholly accurate because the nature of the special advocates and the task that they are required to perform is that they are not responsible to the individual in whose case they are appearing. They are not responsible because they cannot tell the person concerned the information that is known to them, as the lawyer in the case. They cannot ask the individual to comment on that information or to give instructions to them on that information. If they speak to the individual concerned, what the individual tells them—the special advocate—may be wholly irrelevant to the case, unknown to the client.
Although the special advocate system is made available as being better than no representation at all, it is inherently and fundamentally unfair in that the individual concerned does not know the nature of the case against them; and nothing that the special advocate does, however competent and industrious they are, can affect that. I therefore think that there is no advantage in seeking to supply in the Bill what would be a fig leaf to conceal the reality of the situation; and the reality of the situation is precisely as it is put in Clause 8(4).
Lord Thomas of Gresford
My Lords, it also raises a very interesting question about which all lawyers will be concerned: who pays? When the special advocate is appointed in civil proceedings, does the losing party pay? Does the person who made the application—namely, the state—pay, win or lose? Where do costs lie in an event like that? When you have a provision in the Bill such as Clause 8(4) here, which states that the,
“special advocate is not responsible”,
to the claimant, how can the claimant possibly be responsible for his costs?
Lord Faulks
My Lords, the whole role of the special advocate is inherently unsatisfactory and is an exception to what we understand to be a normal way of proceeding in accordance with general notions of fairness. However, it is a practice that has become well established; it has evolved. There are a number of special advocates who have performed their roles with distinction and effectiveness, as the noble and learned Lord, Lord Woolf, said in a much-quoted judgment. Many of their concerns, referred to earlier in the debate, were directed towards the way in which material was disclosed and the lateness and inadequacy of such disclosure. There may be much in those criticisms. They are fairly familiar incantations from advocates, whether the proceedings are closed or open. They do not reflect well on anyone who is responsible for late disclosure in a case.
We should bear in mind that judges have shown themselves particularly astute at protecting parties whose cases are heard in a closed session. If there is unsatisfactory practice on the part of the Government in terms of late disclosure or not giving special advocates fair access to material that will enable them to do their task, that is not going to improve the Government’s prospects and will be reflected, I suggest, in the way in which the judge approaches the case altogether.
While I have considerable sympathy for what lies behind these amendments, I would respectfully suggest that the position of the special advocates is quite correctly set out in Clause 8(4). It is not an ideal situation but it is a situation that has developed, and I trust the judges to respond appropriately to the demands that this particular procedure presents.
Lord Thomas of Gresford
I speak to Amendment 58 in my name and that of my noble friend Lady Hamwee. Clause 7(1) contains five paragraphs of which (a), (b), (d) and (e) are largely procedural. But paragraph (c), which 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”,
goes to the heart of the issue. Does the judge have any function when he is considering an application? Can he carry out a balancing exercise in which he can weigh the interests of not disclosing material against the interests of justice?
My amendment is simple. I note that my noble friend Lord Lester and the noble Lord, Lord Pannick, have a similar one to follow. I will not weary your Lordships with the argument for any length of time. It introduces the instruction to the judge that he must balance his decision and not simply follow a rubric that is laid out for him by the statute as currently drafted.
Lord Pannick
My Lords, I am certainly not the heavy artillery to which the noble Lord, Lord Hodgson, referred, but I will offer him some small arms fire in support. Amendment 59 is in my name and that of the noble Lord, Lord Lester of Herne Hill. As with all the amendments in this group, and as indicated by the noble Lord, Lord Hodgson, it is a further attempt to address the core problem with which the Committee has been concerned in relation to Part 2 of the Bill: that is, the need to ensure that the court is given power to order a CMP in the exceptional cases in which such a need arises, but only where there is no other fair and proper means of balancing justice and security.
Amendment 59, as the noble Lord, Lord Thomas of Gresford, said, is in similar terms to his Amendment 58. It would ensure that the rules of court would require the judge to ask whether the damage that the disclosure would do to national security would outweigh the public interest in the fair and open administration of justice. The Bill as drafted, as I understand it, would enable a CMP to be imposed even if the judge concludes that the damage done by not moving to a CMP was minimal, and even if the damage to fairness by denying open justice was substantial on the facts of the individual case. That cannot be right, especially when, as we have previously debated, a decision by a judge not to adopt a CMP would impose no obligation on the Secretary of State to disclose the material, because they would have the option of not continuing to defend the proceedings.
Amendment 59 is designed to implement the objective that was stated by the independent reviewer of terrorism, Mr David Anderson QC, in his oral evidence of 19 June to the Joint Committee on Human Rights. He said:
“The closed material procedure is a weapon that could usefully be added to a judge’s armoury, but it should be for the judge to decide on the fairest way to dispose of a case”.
At present, Clause 7 prevents that desirable objective from being achieved.
I will speak also to Amendments 60 and 62 in the group, to which I have added my name. Amendment 60 would require the judge, if ordering a CMP, not just to “consider requiring” a summary of the closed material to be provided to the other parties—it would require that such a summary of the closed material be provided.
Amendment 62 would require the court to ensure that the summary of the closed material contained sufficient information to enable the excluded party to give effective instructions to his legal representatives and to the special advocate. It would require the summary to satisfy that test even if it would impinge on national security. The reasoning behind Amendment 62 is that it sets out the bare minimum necessary to ensure a fair hearing. It is based on the criteria that were stated by the Appellate Committee of this House in the AF case in 2009 in relation to control order cases. Sufficient information was required by the Appellate Committee in a control order case to enable the subject to give effective instructions, even if such disclosure would have damaged national security. I declare an interest: I was counsel to AF in that case.
Justice and Security Bill [HL]
Lord Thomas of Gresford Excerpts(11 years, 10 months ago)
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Lord Faulks
The PII proceedings, which we attempt to define in this amendment, would not normally be secret. The process contains a number of different options for a judge in dealing with an application. It is conceivable that in the course of responding to the particular facts of a case a judge might decide that a certain part of the hearing, even under PII, might have to be under a CMP. However, the purpose of the amendment is not to impose a straightjacket on the procedure but to ensure that the PII procedure is gone through—with all its inherent safeguards—before moving on to CMPs, which are by definition closed material proceedings and therefore do not involve access to the litigants or to the open advocate.
Lord Thomas of Gresford
Is not an answer to the question posed by the noble Lord, Lord Carlile, that the PII applications are heard in just as much secrecy as the closed material procedures? The difference is that in PII applications the judge’s decision over what is to be disclosed and what is not to be disclosed is discarded from consideration, whereas with closed material procedures he is supposed to consider it and take it into account. In terms of secrecy, there is no difference.
Lord Faulks
I am grateful for the clarification—that is indeed helpful. In dealing with whether or not it is appropriate to go through the PII process first, the Minister in his response to this suggestion at Second Reading said, at col. 1756, that do so would be “costly and illogical”. I do not expect any judge to spend much time and expense undertaking a process that has an inevitable outcome; nor would I expect advocates to insist on it. However, as I said earlier, the obligation to go through the PII process is an important portal. In this context, I would also expect judges to be very conscious of wasted costs. I cannot for the moment see why it would be illogical to go through the process.
The amendments in this group, which include a statutory definition of PII—for which I give credit to the legal adviser to the JCHR—represent an attempt to preserve the option of CMPs while ensuring that the resort to closed proceedings should be undertaken with extreme care and in a way that minimises the risk of injustice. I beg to move.
Lord Thomas of Gresford
I will speak to Amendments 42 and 47, which are grouped with the other amendments that have been spoken to. I acknowledge the assistance of the Bingham Centre for the Rule of Law in drafting my amendments.
The approach in the amendments introduced by the noble Lord, Lord Faulks, is to create a special, statutory public interest immunity procedure, limited to material sensitive to national security, which must be followed by the Secretary of State as a precursor to a closed material application. I consider that to be preferable to the clause as drafted but it is a bit of a straitjacket, as the noble and learned Lord, Lord Falconer, pointed out. It means that the judge would have to go through a series of hoops set out in Amendments 39 and 40 before he could proceed. I hope to suggest a different model that runs more with the grain of the Government’s proposals and is more flexible but achieves the safeguards that I am sure all noble Lords—except possibly my noble and learned friend the Minister—consider necessary.
The present position, as outlined already by other noble Lords, is that public interest immunity springs from a common-law basis, with its principles derived from a number of cases. I need not go into that. The Government’s approach in the Bill is to leave public interest immunity to the common law and not introduce a statutory procedure, but as an alternative to introduce statutory closed material procedures at the Secretary of State’s discretion for the protection of material sensitive to national security. All the Secretary of State need do is consider whether to make a PII application under Clause 6(5)—but he does not have to make such an application.
It is necessary to restate and hold in the forefront of our minds whenever we discuss this topic the essential distinction between the two applications. In a PII application, the judge weighs the material on Wiley principles and orders disclosure or partial disclosure where he determines that the public interest in the administration of justice outweighs the public interest in non-disclosure. But material that is not disclosed under PII—being, in the judge’s judgment, too sensitive —is not admissible and therefore plays no part in his determination of the case. Under CMPs, closed material is admissible even if it is not disclosed. Indeed, the Secretary of State may wish the secret information to be central to the judge’s determination. I am sorry to restate what has been said over and again but it is important to bear that in mind because it impacts on the amendments I am putting forward.
Therefore, if sensitive material in the hands of Secretary of State undermines his case or supports the the claimant’s case, it is in the Secretary of State’s interest to make a PII application and to persuade the judge not to disclose it or have it form any part of his determination. If, on the other hand, the Secretary of State is in possession of sensitive material which he wishes to rely on and which he wishes to be admissible—which he wishes the judge to take into account—it is in his interest to make application for closed material procedures. Remember, under the Bill it is entirely for the Secretary of State to determine which sort of application he makes.
The choice given to the Secretary of State by Clause 6(5) as to which procedure to follow gives him a significant litigation advantage over the claimant in two respects. First, it may deny to the claimant access to material in his favour when a PII application is made. Secondly, by the use of closed material procedures, if that choice is taken, it puts unchallengeable but admissible evidence in the Secretary of State’s favour before the judge for his determination of the issues. This consequence of Clause 6 is in direct conflict with the motivation of the Bill, as stated publicly by the Lord Chancellor—repeated in speeches and in the documentation that has been supplied to us—that this proposal in the Bill is not to protect secrets, because PII and closed material procedures equally protect secrets, but to make litigation fairer. Yet the proposal to make litigation fairer gives, as I say, a litigation advantage to the Secretary of State.
This brings me to Amendment 42. An astute litigator on behalf of the claimant should suspect that if the Secretary of State makes an application for public interest immunity, the chances are that the sensitive material which is withheld is in the claimant’s favour. The purpose of the amendment, like Amendment 41, is to permit any party to the proceedings to make a closed material application if he has reason to believe it would be in his interest to do so. That would go some way towards equality of arms.
The noble Lord, Lord Carlile, pointed out that in criminal proceedings, with which he and I are particularly familiar, very often a defendant will not know that an application has been made at all. Nothing may be said. I think, but I may be subject to correction, that in civil proceedings a claimant would know that a Secretary of State’s certificate had been issued to claim public interest immunity.
Lord Carlile of Berriew
We heard from the noble Lord, Lord Pannick, that in civil proceedings, as in criminal proceedings, there are certain circumstances in which one might know—there are categories set out in judicial decisions—but there are certainly cases in which one might not know, whether in civil or criminal proceedings. I am sure that that is right.
Lord Thomas of Gresford
That is a matter for clarification by people who know about it and we will look into that later.
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 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.
Lord Thomas of Gresford
It is more than the judge merely looking at it, though; the claimant might want the judge to take it into account through closed material procedures. That is the point. If I were acting for a claimant, knowing that the Secretary of State had a discretion over whether to go for a PII application that would exclude material or a closed material procedure that would include material, make it admissible and allow the judge to take into account, and the Secretary of State chose PII, I would think—and I am not a very suspicious person—that the Government were seeking to conceal something that the judge should have in mind in my favour. I might very well advise my client to take the risk.
In, I think, the case of Gillan the court suggested to the litigant, having looked at the material, that perhaps closed material procedures would assist him, but his counsel did not take the risk and he was stuck with that. So even though the material apparently assisted him, because he would not ask the closed material procedures —unfamiliar territory to most of us—that material, which might have been in his favour, could not be taken into account by the judge. The judge might know about it but he has to cast it to one side under PII.
That is why I say there is such litigation advantage in the way that the Bill is framed. PII applications can exclude stuff that might be favourable to the applicant. I hope that that answers the question that the noble and learned Lord, Lord Falconer, raised.
I suggest that Amendment 47 is a neater way than Amendments 39 and 40 of incorporating further safeguards. It would provide that the judge must not make the declaration that a closed material application be made to the court unless he considered that the material was inadmissible on the existing common-law public interest immunity principles and that it was strictly necessary in the interests of justice. These simple amendments of course infer, first, that the judge has considered the question of public interest immunity. It may not be necessary for him to go through the whole process; one recalls that in the Guantanamo case there were some 9,000 documents, so it was likely to take months for a judge to carry out the public interest immunity exercise if he had to do it first. He could look at the nature of the documents and realise that at least some of them would be inadmissible. However, it is the judge and not the Secretary of State who decides whether closed material procedures should be introduced, after the judge has considered whether PII would be a better approach. Secondly, it requires the judge to consider whether it is strictly necessary in the interest of justice. That amendment puts the judge firmly in control of case management. As the Bill is drafted, the Secretary of State not only has the litigation advantage to which I have already referred but actually controls the procedure to be followed.
Lord Falconer of Thoroton
That was my fault. More generally, I have two further points. First, I now understand the point made by the noble Lords, Lord Hodgson and Lord Thomas. I did not understand it previously. I thought that they were talking about the claimant keeping material back, but I now understand that they were saying that it should be possible for the claimant to say that he has not seen the material, but that the judge should see it, even if the claimant does not. I can see force in relation to that. Even though it appears to give equality of arms to the claimant, it is in fact a very unequal equality because the claimant has not seen the material and the defendant has seen it. The tactical decision that the claimant will make in litigation is quite tricky.
Lord Thomas of Gresford
I think I made precisely that point—that it was not equality of arms but a step towards equality of arms, and it was better than the present situation.
Lord Falconer of Thoroton
Yes, and indeed my noble and learned friend—although I should not refer to him as learned, but he is learned in every other respect—Lord Beecham is saying that that is exactly the point that the noble Lord, Lord Thomas, made. There is agreement all round on that.
Where we come out in relation to this is: prove your case. If you do that, then having no balancing or requirement to go through steps beforehand is an inadequate response. We favour more the amendments tabled. We particularly like the idea of flexibility that the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Thomas, have advanced. We hope that the Government will, having heard the debate, produce a reformed approach that will reflect a pretty unanimous view around the House on how best to deal with this issue.
Lord Wallace of Tankerness
It was helpful of my noble friend to raise that. Clause 6(2) states that there are two ways in which a judge must be satisfied before he must grant an application for closed material proceedings. The first is that the party to the proceedings would be required to disclose material to another person in the course of the proceedings. That would normally come under Rule 31 of the Civil Procedure Rules. Again, I say to the noble Lord, Lord Pannick, that Clause 6(3)(a)(i) is there because there could be circumstances in which a judge could take the view that you would not be required to disclose something because you could assert public interest immunity, and that argument would succeed. Apart from the fact that there might be public interest immunity, if disclosure would be required under normal rules in civil proceedings, that would be the first test that the judge has to apply.
The second test is that it would be damaging to the interests of national security. It was said by a number of noble Lords, including my noble friend Lord Lester of Herne Hill, that the courts over many years have been very respectful of the government position on that. The Bill makes it very clear that the application would be one in which special advocates would be involved. They could assert to the judge that the case had nothing to do with national security and that the Government were trying to cover up some embarrassment. That is why the second test is there. The two conditions must be fulfilled: first, there must be a requirement to disclose; and, secondly, disclosure would be damaging to the interests of national security.
In practical terms, the Secretary of State would be in the best position to judge the scope and nature of national security-sensitive material. Despite the fact that the absence of a CMP might be detrimental to their interests, other parties will not even be aware that relevant national security information exists, and would not be able fully to judge what damage there might be if the information were released. It is therefore clear that the argument for the Secretary of State making the application is a strong one. Nevertheless, it can remain open to a third party to approach the Secretary of State and request an application for a CMP should they require one. One example of this might be if the police were party to proceedings involving national security-sensitive material, for example in relation to counterterrorism. The Secretary of State would assess the risk of damage and make an application for a CMP on their behalf.
If the public interest were more widely drawn than national security, there would be a stronger case for other parties to the proceedings to be able to apply for a CMP. However, as my noble friends Lord Thomas of Gresford and Lady Berridge made clear—I was asked about this by the noble and learned Lord, Lord Falconer—one concern is that the Government might want to have their cake and eat it, and might choose between claiming PII and applying for a closed material procedure opportunistically—opting for PII to exclude material and cover up wrongdoing and CMP where closed material would help their case. We do not believe that this is a realistic concern.
I assure noble Lords that the intention behind the CMP proposals is precisely that allegations against the Government are fully investigated and scrutinised by the courts. The intention is that all relevant material, helpful or unhelpful, will be put before the courts. Although it is in the first instance for the Secretary of State to instigate the CMP application, or to make a claim for PII, the power to order CMP or accept a PII certificate will rest with the judge, who will be alert to any unfairness to the non-government party, and with the CMP would have the case-management powers under Clause 7 to ensure that individual pieces of evidence are treated fairly through requiring disclosure or exclusion. It is inconceivable that a judge assessing the PII claim would conclude that the public interest in excluding material outweighed the public interest in its disclosure if the Government were cynically seeking to use PII to exclude material that undermined their case or assisted another party to the proceedings, especially where the court would know that the possibility existed of making an application for the use of a closed material procedure.
This is where the point made by the noble and learned Lord, Lord Woolf, is relevant. He said that these matters could be looked at in the round and should not be put in silos. That is what we anticipate happening. The concern is perfectly legitimate and I fully understand it. However, we do not believe in reality that that would happen, and that the judge who was asked to grant a closed material proceeding or a public interest immunity certificate would allow such cynical ploys to succeed.
Lord Thomas of Gresford
That sounds like one of the great lies. “I am from the Government and I am here to help you”. The noble and learned Lord is saying that a Minister faced with a claim against him is inevitably going to be like a judge and not weigh one thing against another. If he can win his case by going for PII instead of closed material procedures, which I suggest he can, why would he not choose to go for PII? That is why I say my suspicions would be aroused if the Minister who had that choice went for PII, knowing that excluded material could not form part of the judgment. That is the problem. For the past five minutes the noble and learned Lord has been emphasising that the judge has this decision; he has this discretion; he looks at this material; he makes up his mind. The Bill is a straitjacket whereby the Minister controls which procedures are to be followed as well as what material is to be disclosed. So I hope the noble and learned Lord will reflect on what he has been saying.
Lord Falconer of Thoroton
My Lords, I am grateful for that constructive indication. I would co-operate fully in trying to draft an answer that reflects what the noble and learned Lord is saying. I understand him to be saying that if a PII application were made, the judge would be able to say, “You cannot keep all this secret. You should deal with it in a CMP”. That is what I understand the noble and learned Lord to be saying. I think he is nodding, although it may be an involuntary twitch. Assuming that he is nodding, there seems to me to be a problem in the drafting because it gives the court the power to make a CMP order only where there is an application by the Secretary of State. I would be more than happy if the solution reached was to apply to the judge who has the power to decide, balancing all the factors, whether this should be PII, complete disclosure or a CMP. That is not what the Bill says now but that is broadly what I understand the noble Lord, Lord Thomas, to be arguing for—the noble Lord, Lord Lester, is nodding—and the noble and learned Lord, Lord Wallace, to be saying. I am more than happy to sit down with everybody and draft that but that is not the current position.
Lord Thomas of Gresford
Perhaps I may add that my Amendment 45, which we have not come to, is designed to replace the word “must” in Clause 6(2) with “may”—in other words, a discretion for the judge to decide whether to make a declaration based on the criteria that he must apply.
Lord Wallace of Tankerness
My Lords, again we are falling into the trap of jumping to stage 2 and thinking that the application immediately rules everything as closed material, which is not the case. If there is a body of evidence which can be presented to the judge showing that interests of national security are absolutely pertinent to the determination of this case, it is “must”; there must be closed material proceedings. But, as I have indicated, that does not mean that every piece of evidence is to be excluded and is not to be disclosed. If the Secretary of State cynically applies for PII when a CMP is available, the judge may not be disposed to grant PII. What I understood from the noble and learned Lord, Lord Woolf, is that the reality, particularly if you have special advocates arguing the case, is that unless the Secretary of State seeks a CMP for this kind of material he will have less of a chance of getting his PII accepted. Even if a CMP application was not made by the Secretary of State and a request was made to him for a CMP which he refused, that in itself would be judicially reviewable. If that refusal was seen to be unfounded and irrational, or the only rationality was to hide malfeasance, then clearly that would weigh heavily with the Secretary of State. I have indicated what we intend to achieve by this. I repeat: the intention is that all relevant material, helpful or unhelpful, will be before the courts. I think we can have a worthwhile discussion as to how that could be brought about.
Justice and Security Bill [HL]
Lord Thomas of Gresford Excerpts(11 years, 10 months ago)
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Baroness Manningham-Buller
My Lords, I am surprised to be compared to a regulator on the strength of the organisation to which I once belonged. I see very little parallel between the security and intelligence agencies and regulation. The conclusion that that makes them overcautious is therefore entirely spurious.
Of course, public opinion of and confidence in the judiciary is extremely important, and we do not want to do anything to damage that. Notwithstanding comments in the Daily Mail, I think that public confidence in the security and intelligence community is not helped by the fact that, in many cases, we have been unable to defend ourselves because of the problem that we are describing today. None the less, as I said at Second Reading, the support that my colleagues get from the public is extensive and perhaps greater than the noble Lord, Lord Lester, suggests.
Another point relates to secret information. We need to have the confidence of those—including many young men and women from the communities to which the noble Lord, Lord Hodgson, referred—who give information to the security and intelligence agencies at risk of their lives and in secret. That is one of the fundamental reasons for secrecy. I ask the Committee to remember that in thinking of the confidence in other regards that we want to maintain.
Lord Thomas of Gresford
I respect the views that the noble Baroness has just put forward, but I do not think that public confidence is improved if a closed judgment is given on closed material to the Government in a particular case. It is essential that the public know what is going on as much as is conceivably possible. The interests of national security can be invoked in only the smallest area of cases if confidence is to be maintained.
Lord Falconer of Thoroton
The noble Lords, Lord Hodgson and Lord Lester, and the noble Baroness, Lady Berridge, have made important points, but we must surely address the issue on the basis of what within our court system produces the most just result available, recognising that imperfect justice may be involved. Everybody accepts that two conflicting principles are valid, namely a properly functioning justice system and the need to protect national security. My view is that if a case is made that unjust results might be being reached, with claimants making claims that they know the Security Service cannot defend, then we should do enough to enable our justice system to properly defend those cases. Open justice is a means to producing justice. The courts have always recognised that if you cannot do justice that is open—for example, if you destroy the confidentiality that the justice system is designed to protect—then exceptional measures are needed for exceptional cases. I do not think our security services are being well served if they are forced to admit claims that they should not, and neither is respect being paid to our judges if they are simply a rubber stamp.
The right answer in relation to this issue is, first of all: is the case proved? That is an open question at the moment, as far as I am concerned. If the case is proved that some measures are needed then these should be kept to a minimum and the judges should decide what is required in order to create the fairest possible system. The problem with the amendments from the noble Lord, Lord Hodgson of Astley Abbotts, which I think he would be the first to acknowledge, is that they involve the judge considering whether there would be any serious risk of injustice to either party if the application for a closed material procedure were to be granted. However, everybody involved in closed proceedings knows perfectly well that if you have procedure that reveals evidence about person A and A never knows what is said about him or her, the prospect of an injustice is significant. However, that may be the best that can be done under the circumstances.
I respect the noble Lord, Lord Hodgson of Astley Abbotts, for raising these points. I just do not think the House of Lords can avoid asking: what is the right answer? The only guide we have is to try to reach the right answer. That is the only way we shall retain respect for what we do. The task we are engaged in is trying to balance those two factors. As I said before supper, what we are aiming for in this bit of the debate is fairness because ultimately national security can be protected by the security services pulling a case, so it is all about deciding whether there are a sufficient number of unfair cases that some special procedure needs to be crafted.
As it happens—and I think the noble Lord, Lord Lester of Herne Hill, is right here—the points raised by the noble Lord, Lord Hodgson of Astley Abbotts, are pretty well the same points we had before supper, and he acknowledged this in his opening remarks. The noble Lord’s basic approach in Amendment 44 is to say that one should go the PII route first; then only if the PII decision is non-disclosure do you go on to CMP. I do not like that approach for the reasons I advanced in response to the amendment from the noble Lord, Lord Faulks, in concert with the noble and learned Lord, Lord Woolf. It is too inflexible. I do not see why we cannot give the court all the options at the time it makes the decision, as the noble Lord, Lord Thomas of Gresford, suggested. This would avoid opportunistic applications and allow the court to come to the fairest possible results. I would be repeating myself if I went on about that. The noble Lord’s amendment has promoted debate, but the effect of that debate is that we do not want the lack of flexibility that his amendment proposes.
Lord Hodgson of Astley Abbotts
Amendment 45 takes us to Clause 6(2), which begins:
“The court must, on an application under subsection (1), make such a declaration”.
My amendment seeks to replace “must” with “may”. I intend to be quite brief and to call up very shortly the heavy artillery of my noble friend Lord Thomas of Gresford in support. There have been, of course, many references to the key role of judicial discussion in the operation of CMPs under Clause 6. This amendment simply seeks to ensure that the Government’s claim that a judge will have the final say on whether a CMP takes place is a reality. As drafted, the Bill does not seem to do this. While it gives the judge the last word, the reviewer of terrorism legislation has said that:
“The only difficulty is that that word is dictated to the judge by the Secretary of State”.
The special advocates have warned that the Bill creates a statutory straitjacket for judges, and we came across this earlier this evening. Martin Chamberlain said this in his evidence to the Joint Committee on Human Rights. He said that a key safeguard that had been promised—enabling a judge to have the final say on when secret proceedings are needed—was missing from the draft Bill. He went on to say that,
“in fact the position is that the judge is required to accede to the Secretary of State’s application for a Closed Material Procedure—the word ‘must’ is used—if there is any evidence at all whose disclosure would be contrary to the interests of national security. So, there is no ability for a judge to say, ‘I think this is the type of case that could perfectly fairly be tried using normal Public Interest Immunity rules’”.
Finally, he said,
“you are going to be giving them”—
that is, the judges—
“a statutory straitjacket that requires them to ensure that nothing is disclosed contrary to the interests of national security … there is to be no balance between national security on the one hand and fairness on the other”.
I argue that we should replace “must” with “may” to once again improve judicial discretion. I beg to move.
Lord Thomas of Gresford
My Lords, I support this amendment. I have already made the point that the procedures of the court should be controlled by the judge and not by the Secretary of State. The words “rubber stamp” have been used on a number of occasions, not least by my noble friend Lord Lester, in relation to these provisions. It is a rubber stamp when one combines the provisions in Clause 6(2) with what the judge must do in determining the application, under the provisions of Clause 7(1)(c). This is a point that the noble and learned Lord, Lord Falconer, made in his original submission on an earlier amendment, and we have not followed it up very much. Clause 7(1)(c) 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”.
Now, who gives evidence about the interests of national security? It must be, by virtue of the nature of the proceedings, the uncontested evidence of those who are responsible for security. What exactly is meant by the interests of national security is something that I wish to pursue, perhaps at the next sitting of this Committee. In some definitions, it can refer to economic interests, and there are all sorts of others, as well as simply terrorism, which is the context in which we think of national security at the moment. We will need a better definition in due course.
The use of “must” in this clause reduces the judge’s power virtually to nil. The grounds put forward by the Minister may be reduced to the interest of national security, but as I have said, as the Bill is drafted those interests will be defined by the Minister himself. Clause 6(3) instructs the judge to ignore two very relevant considerations: first, that there may be no requirement on the Secretary of State to disclose; and, secondly, that the intercept evidence which the Secretary of State intends to put before him is inadmissible in the very proceedings he is supposed to be judging. If intercept evidence is inadmissible in open court, surely it is inadmissible in closed court. Intercept evidence would have to be normally regarded as inadmissible in such circumstances.
The word “may” will give the judge a discretion to decide what is proportionate and necessary in all the circumstances that come before him. It will give the judge control and power to manage proceedings, and the ability to decide how the procedure will be carried out and which type of procedure would be more appropriate. It will give the flexibility that I talked about in relation to the amendment that we debated earlier.
Lord Falconer of Thoroton
My Lords, this is a key amendment. It has to be read alongside Clause 7(1)(c). The effect of the amendment tabled by the noble Lords, Lord Hodgson and Lord Thomas of Gresford, would be that once it was established that a disclosure to a claimant would be damaging to the interests of national security, it would be open to the court, balancing all the factors for and against non-disclosure, to determine that the case should involve the option for the defendant to have a closed material proceeding. If the position were exactly as the noble Lord, Lord Thomas, suggested, and there was some damage to national security but it was extremely minor and only in respect of one document when there were millions of other documents whose disclosure would not do any harm at all, even if the Secretary of State certified that minor harm would be done, it would be open to the court to say, “Yes, we accept that there will be damage to national security but it does not warrant a CMP procedure”. That would give the judges some degree of control.
Currently, if the Secretary of State for Foreign and Commonwealth Affairs said, “I have spoken to the security services and they tell me that if you disclose this, it will damage national security, and I believe that to be true”, I find it very difficult to imagine that a responsible judge would be able to say no. Once the judge has said yes to that proposition, he or she would be obliged under Clause 6(2) to say, “This is now a case in which an application can be made”. The consequence of that is that Clause 7(1)(c) would apply. Rules of court would have to be made that would then allow the Secretary of State or the relevant party to make an application. If in respect of an individual document or piece of information the Secretary of State says, “I have spoken to the security services and they tell me that disclosure of these 25 documents would damage national security in quite a mild way”—they would not say that, but let us imagine that they did—the judge would have no discretion.
The correct course, if the case is made that we need to change the legal position, is that the judge should have a discretion. Again, I emphasise that what the Bill is trying to do is not protect national security—that can be protected by the case being pulled—but ensure a fair trial. I look to the noble and learned Lord to justify the fact that there is no balance and no discretion. Why is there an obligation to opt for CMP even if the damage to national security would be very mild? The noble Lords’ amendment would get round this and give the judges real discretion.
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).
Lord Wallace of Tankerness
My Lords, I know my noble friends are trying to be helpful and I am sure that equally they will understand why I am not prepared to make a concession on the hoof, as it were. This is clearly something one would wish to consider and clearly we will also have the opportunity in good time to consider my noble friend’s Amendment 58. I am glad that he made the distinction between getting through the gateway—which is what Amendment 45 applies to—and the second stage. We are of the view that if the two tests in Clause 6(2) are satisfied to the discretion of the judge, the application for the closed material procedure must succeed and thereupon the detailed consideration of the documentation takes place under the rules of court, which are to be set out under Clause 7.
Lord Thomas of Gresford
My Lords, the closed material procedure applies when a court is, under Clause 6(1),
“seised of relevant civil proceedings”.
Clause 6(7) defines “relevant civil proceedings” as,
“any proceedings (other than proceedings in a criminal cause or matter) before … the High Court … the Court of Appeal, or … the Court of Session”.
CMP applications can be brought only where a disclosure of material would be damaging to the interests of national security. However, can such applications be appropriate in habeas corpus proceedings or judicial review involving the liberty of the subject or claims for wrongful arrest against the police or prison officers? Not even the United States goes that far. As my noble and learned friend will be well aware, the habeas applications in the Guantanamo cases have a special procedure whereby sensitive material is released to security-cleared advocates acting on behalf of the applicant. Then the court, in such special procedures, can give permission to those security-cleared advocates to discuss specific matters or questions laid out by the court with the client.
In habeas corpus proceedings, the onus is on the respondent to the writ to justify the restraint of the applicant. Blackstone cites the first recorded use of habeas corpus in 1305, during the reign of King Edward I. He explains the basis of the writ in these terms:
“The King is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted”.
I am always conscious of the Magna Carta Lords who look down on our proceedings in this Chamber. At Runnymede nearly 800 years ago, they insisted that:
“No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed”.
Are actions against the police for wrongful arrest to be defeated by secret evidence? Let us take the example of someone arrested on a bus for smoking a fake cigarette. He brings proceedings against the police for wrongful arrest. Those acting for the police go to see the judge in secret and say, “We had a tip-off from the security services. We cannot tell the claimant in this particular case. You must strike his claim out or find in our favour”—or whatever. Is his claim then to be defeated? I suggest that that would be quite contrary to the basis of habeas corpus and the protection of freedom of the individual as we have known it for centuries.
In my submission, the Government should define much more closely the relevant civil proceedings in which CMPs may be applied for. We have been talking all day but only in the context of civil claims for damages brought in the High Court in the ordinary way. We have not discussed habeas corpus and matters of that sort. I suggest that they should be specifically excluded. I beg to move.
Lord Beecham
My Lords, I have some sympathy with the suggestion of the noble Lord, Lord Thomas, that habeas corpus proceedings should fall within the civil proceedings provisions of the Bill. I am less persuaded by the argument to include any action against the police. It would probably seem wrong to exclude these specific actions from the procedures, not least in the light of the Crime and Courts Bill, with the creation of the National Crime Agency, the extension of powers to the border agency and the like, and the possible involvement of ordinary police forces under the auspices of the NCA in matters which could go to issues of terrorism or other aspects of national security.
The noble Lord may have a point about habeas corpus and it would be interesting to hear the Minister’s response to that, but I do not think that the Opposition could necessarily support the amendment as it stands. There is the problem that we will refer to later about definitions of national security and the like, which possibly offer a more fruitful way of narrowing the scope of the provisions of the Bill. Having said that, I entirely concur with my noble and learned friend’s view. Anything that I say on subsequent amendments or indeed in relation to this amendment is without prejudice to the stance that we take, but we are yet to be persuaded of the case for closed material procedures in the first instance. All the discussions that have taken place so far, and that we will continue to have in relation to this part of the Bill are subject to that distinct reservation. We are not, therefore, conceding the point when we look to see what ultimate fallback provisions might be desirable and necessary if it is the wish of your Lordships’ House on Report to go forward with the Bill in much the condition that we now find it. We will be looking to discuss amendments and we hope that the Government will respond positively to some of them but in relation to this amendment we will be commending the latter part to the Minister’s attention.
Lord Wallace of Tankerness
My noble friend’s amendment seeks to narrow further the contexts in which a CMP can be used. I hope I can demonstrate to your Lordships that the Bill is already very narrowly drafted and that the amendment could remove justice from those who are entitled to it. The Bill as drafted allows CMPs to be used only in relation to information damaging to the interests of national security, only in the High Court, Court of Appeal or Court of Session, and not in a criminal cause or matter.
The amendment would mean that CMPs could not be used in any action against the police or law enforcement agencies, or any action seeking a person’s release from detention. Where such cases involve information that cannot be disclosed for reasons of national security, this amendment would not allow judges to reach a judgment based on all the facts. Claims relating to national security should, surely, be capable of being heard, rather than material being excluded by way of public interest immunity, regardless of whether the defendant is the police or a government department. As was reflected in the comments of the noble Lord, Lord Beecham, the police play a vital role in national security in, for example, counterterrorism investigations. There may be many civil cases which would involve the police—it would not necessarily be directed against a Secretary of State—and it would be unfortunate if they were to be excluded from the possible use of CMPs. Judges should be able to come to a judgment on the full facts in any case relating to national security.
The Bill is designed to increase justice for claimants and defendants in all civil cases where national security means that, otherwise, information could not be put into open court. This amendment would take that justice away from claimants who bring a national security case against the police or law enforcement agencies, or where, as my noble friend explained, the case is about a person’s release from detention. Cases about a person’s release from detention in the UK will generally be in the context of a criminal cause or matter where CMPs are not available, but should this not be the case, it is important that all of the material is before the court, if possible, rather than being excluded by PII.
My noble friend gave a quotation about habeas corpus going back to the reign of King Edward I. I hope that I do not strike too nationalistic a tone, but north of the border, Edward I is not seen as a fount of justice and liberty. That apart, my noble friend raises a serious point. It is our considered view that in the context of habeas corpus cases it is vital that the court is in possession of relevant material before making a decision to issue a writ. Without all of the relevant information, it may not be possible for the court to come to the right decision.
I know that noble Lords are concerned that the nature of the types of cases covered by this amendment creates a greater need for transparency, and that, indeed, in some circumstances, such as proceedings into potential violations of Article 5 of the European Convention on Human Rights, there is a requirement for transparency. The argument that public confidence requires fully open proceedings in such cases is an understandable one, but I believe that these concerns can be addressed through our current proposals. Nothing in this Bill is incompatible with the ECHR. My noble friend has raised a serious point about detention. I will reflect further on it, but our approach is that it is important, even in these cases, that all the material, if possible, is made available to the court before a decision is made, rather than some of being excluded through PII. I will reflect on what he has said, but our view is that we have struck the right balance. I hope that on that basis he will be able to withdraw his amendment.
Lord Thomas of Gresford
I know that my noble and learned friend is heading for the sleeper so perhaps we can send homewards to think again about this issue. Habeas applications in the United States have a special procedure and the importance of it is that the applicant for habeas is given some idea of what he is facing. I am not saying that habeas corpus applications should be completely open, but it is inappropriate to apply the strictures and limitations contained in the Bill to applications of that sort. It is a matter that we can discuss. On that basis, I beg leave to withdraw the amendment.
Justice and Security Bill [HL]
Lord Thomas of Gresford Excerpts(11 years, 11 months ago)
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Lord Wallace of Tankerness
My Lords, I am cautious about hazarding the estimate that the noble and learned Lord asks of me. In the Green Paper, we indicated that the kind of cases that we were looking at were 27 current claims. The most recent figures that I have, as of yesterday, show that the numbers have fluctuated somewhat since October 2011 at the publication of the Green Paper. Currently, there are estimated to be 29 live cases, which were of the type cited in the Green Paper. To give an estimate of the number of cases where sensitive information was central to the case, based on current cases handled by the Treasury Solicitor, there are 29 live cases but they exclude a number of appeals against executive actions that are currently stayed. There are 15 civil damages claims; three asset-freeze judicial reviews; seven exclusion judicial reviews; four lead naturalisation judicial reviews; and around 60 further naturalisation judicial reviews stayed behind these cases. I hope that gives the noble and learned Lord and the House an idea of the kind of figures that we are dealing with where we believe that sensitive information is central to the case, based on the estimate of the Treasury Solicitor at this time.
The recent settlement of the civil damages claims brought by the Guantanamo Bay detainees underlines the point that I was making. The evidence which the Government needed to rely on in order to defend themselves was highly secret intelligence material, which could not be released in open court. One option open to the Government would have been to claim PII over that material. If the PII claim had been successful, the Government would have succeeded in excluding a very large quantity of material, but material that they would have wanted to rely on to defend their position. The only practical option was to settle the claims for significant sums without admitting liability.
Although the numbers of these cases are small, they often contain extremely significant allegations about the actions of the Government and the security and intelligence agencies. There is a real public interest in being able to get to the truth of such allegations. Indeed, I think it is arguable to say that the rule of law is supported by courts being able to reach determinations on such matters. Although such settlements are often made without any admission of liability being made, as we all know, mud sticks. Allegations have been made in public that have never been examined or rebutted, and many people choose to believe that they are true. The damage to the reputation of this country can be immense and those unrebutted allegations can be used by individuals seeking to garner support for terrorism in retaliation for perceived wrongdoing by this country.
This is the backdrop against which our plans to allow material to be heard in court via CMPs should be seen.
Lord Thomas of Gresford
Perhaps my noble and learned friend would explain how the public would be more informed and the allegations of wrongdoing on the part of the Government would be exploded by the use of CMP procedures when, by definition, it would all remain secret.
Lord Wallace of Tankerness
My Lords, the point I was seeking to make is that if one goes down the route of PII, the issues will never be tested at all. It may be that so much material has to be withheld that it is not possible for a determination to be made and the Government may be forced to settle. I do not believe that that enhances the confidence of the public in the security services.
It is an irony somewhat overshadowed by the controversy over CMPs that, before recent developments in case law, courts were themselves successfully using this approach in civil cases where sensitive evidence was involved to ensure it could be heard but also considered and tested. For example, a peace campaigner called Maya Evans sought to challenge United Kingdom policy in relation to the transfer to the Afghan authorities of suspected insurgents detained by UK Armed Forces in the course of operations in Afghanistan.
Lord Thomas of Gresford
My Lords, I declare an interest as a practising barrister. Indeed, I think I was involved in the first case in which public interest immunity procedures were developed following the case of Johnson in January 1993. I was then instructed by the CPS and the security services to prosecute a number of letter bombers who had distributed letter bombs to important and prominent people in north Wales.
I welcome the proposed reforms of the Intelligence and Security Committee, subject to the pertinent criticisms that I know my noble friend Lord Macdonald will advance and which we hope will lead to improvements in the provisions. I intend to confine myself to the second part of the Bill, which deals with CMPs. In a criminal trial, the judge does not decide the facts; he does not decide what happened. The jury hears the evidence presented to it, almost always in open court, and it must be both admissible and relevant.
If either the prosecution or the defence questions the admissibility or relevance of any evidence that the other seeks to adduce, there is an argument in the absence of the jury, and the judge gives a ruling. The judge in a criminal trial may be, and usually is, in possession of information, such as the previous convictions of the accused or evidence that he has ruled to be inadmissible or irrelevant, that the jury—the judges of the facts—never hear and which therefore play no part in its decision. The judge may also know of secret matters, which are never released, even to the defence, because the prosecution successfully claims public interest immunity from disclosure. In a criminal trial, the judge carries out a balancing test between the interests of justice and the interests of national security or other public interest. Crucially, in a criminal case the secret material plays no part in the jury’s decision because it does not know about it.
In the vast majority of civil trials, on the other hand, there is no jury. The judge decides the facts, and in applying the law gives a reasoned judgment in favour of one side or the other. Very often he will hear evidence that is prejudicial to one side or another which he deems to be inadmissible or irrelevant, and in these very common circumstances he is trained to ignore such evidence and to put it out of his mind altogether in coming to his conclusions. Invariably, in the course of giving a ruling or a judgment, he will openly and transparently say so.
Part 2 of this Bill is primarily concerned with actions brought by an individual against the state for damages for human rights violations such as torture or other cruel, inhuman or degrading treatment, false imprisonment, illegal renditions, or complicity in such violations in other jurisdictions. This Bill proposes that the judge should hear secret material from one party, the state, which is withheld altogether from the other party, the claimant. In complete distinction from public interest immunity applications, whether in criminal or civil procedures at present, and rulings on inadmissible or irrelevant evidence, the secret material proposed in this Bill is not to be disregarded or put out of the judge’s mind. On the contrary, the state claims that the secret material should play a part, perhaps even a crucial and central part, in the judge’s ultimate decision on the case before him. Your Lordships will appreciate that this is therefore a very considerable step.
There is an obvious unfairness to the claimant, who cannot answer or test any allegations that may be contained in the secret material. In addition, it is against the public interest generally that the state should hide its case behind a cloak of secrecy and therefore potentially hide its misdeeds, or give the appearance that it is so doing.
It is argued, however, that the claimant can be protected through the closed material procedures that have been developed whereby the state brings an individual before the Special Immigration Appeals Commission in immigration and in other naturalisation and extradition matters. I must tell your Lordships that I opposed these procedures in June 1997, at the Second Reading of the SIAC Bill, on the basis that it was a straightforward breach of natural justice that proceedings should be held in the absence of the appellant or of any legal representative who is instructed by him. I questioned whether a special advocate appointed by the Attorney-General would ever be able to take the appellant’s instructions, to have confidentiality with his client, or to have the benefit of legal professional privilege. The model later adopted was that he most certainly would not have those standard requirements of a lawyer, which is repeated in this Bill.
The body of special advocates, security cleared and appointed by the law officers, and now with 15 years’ collective experience of the system in action, have unanimously opposed the extension of CMPs to civil proceedings of this nature. They rejected the argument set out in the Green Paper that:
“A judgment based on the full facts is more likely to secure justice than a judgment based only on a proportion of relevant material”.
It was rejected on the grounds on which the noble and learned Lord, Lord Kerr, in the Supreme Court in al-Rawi rejected it. The noble Lord, Lord Beecham, quoted his judgment, but I will not repeat it.
The noble and learned Lord, Lord Kerr, pointed out that the right to know and the right to challenge the other side’s evidence is essential to the concept of a fair trial. The special advocates said that his reasoning reflected their experience as special advocates operating in existing CMPs. They added this important point:
“Our knowledge of the nature of closed material makes us doubt that most of it could be admissible as truth of its contents in civil proceedings, on an application of established rules of admissibility. Such documentary evidence”,
which they have seen,
“routinely contains information which may be second or third hand, and of which the primary source will usually be unidentified (and may be unknown) … It scarcely seems worth applying CMPs to civil proceedings if the evidence concerned will be largely inadmissible as evidence of the truth of its contents (or to which no weight can be attached)”.
In addition to the argument on principle, there is a practical side to this issue. Ninety-five per cent of civil litigation settles. When the pleadings that set out the issues clearly between the parties have been completed and all the documents have been disclosed, as there is an obligation to disclose all the documents relevant to a case, the lawyers on both sides will assess the risks of the litigation and generally can and do come to a compromise based on their assessment of risk in 95% of civil litigation. Settlement may not give both sides all that they want, but sometimes it arrives at satisfactory solutions that are beyond the scope of the trial judge, who can award only the remedies pleaded in the pleadings. One very relevant example of that is that a confidentiality agreement can be entered into on a settlement.
Lord Williams of Elvel
The noble Lord will be aware that members of the Armed Forces have come into our Gallery. As I understand it, this is not a military coup, but we should welcome them in attending our debate.
Lord Thomas of Gresford
I am most grateful for that intervention. Perhaps I may add my welcome and that of these Benches to all visitors, whatever they may be, who come to listen to our proceedings.
Settlement in civil proceedings, which generally happens, is threatened by these procedures. It is ironic that the motivation behind this Bill is that the Government dislike settlements. They demand a judgment, so they say, to clear the air and to banish suspicions of nefarious conduct on the part of government agencies. I reject the reputational damage argument advanced by my noble and learned friend Lord Wallace. That is why I interrupted and pointed out that you cannot say that allegations of torture have been answered when the judge delivers a judgment and says, “Well, I find against you but I can’t tell you why”. I cannot imagine what that does to clear the air.
What will the Government do in the pleadings? What will they say their case is? How do they propose to alter the disclosure rules to hold back documents which they are duty bound to disclose? How can the claimant’s lawyers begin to assess risk in order to consider proposals for settlement that may be advanced by the Government, or to make proposals themselves when that lawyer does not know whether or what secret material is before the judge? When the Government’s lawyers go behind the claimant’s back into the judge’s chambers, they are seeking judgment in their favour on their untested allegations against the claimant. What is more, by this means they can keep secret any embarrassments or nefarious conduct of their own. How does the claimant’s lawyer, in practice, advise his client to settle the case? You put settlements out when you adopt a procedure such as that suggested in Part 2 of this Bill. What then should be done?
The experience of the Diplock courts in Northern Ireland provides an acceptable answer. It became impossible, your Lordships will recall, to hold normal jury trials in terrorist cases in that jurisdiction due to intimidation and prejudice arising out of sectarian divisions in the Province. In Diplock trials, the judge sat alone and in criminal cases became the judge of fact as well as of law. He decided what had happened. Accordingly, a separate judge, a disclosure judge, heard applications, for example for the exclusion of inadmissible evidence and applications for public interest immunity. The noble and learned Lord, Lord Kerr, then Lord Chief Justice, in the case of McKeown in the Northern Irish Court of Appeal in 2004 described this different model of procedure in the Diplock system. He said:
“The system of non jury trial, involving as it does the judge as the tribunal of fact as well as the arbiter on legal issues, clearly calls for a different model than that which is suitable for trial by judge and jury … Since it is a non-jury trial, it would be plainly unsuitable for the judge who must decide on the accused’s guilt to see material that might be adverse to him. A ‘disclosure judge’ had to be assigned to examine the subject of the material that should be made available to the defence. The level of intervention by the disclosure judge depended on the nature of the issues that arose on the trial”.
So there, in Northern Ireland, we have experience of where, in criminal matters, the judge was the judge of fact and a separate judge dealt with disclosure and with the sensitive matters of public interest immunity. In my view, it is directly analogous and I shall be putting down amendments to the effect that applications to withhold sensitive material should be made to a designated judge, a disclosure judge, who will be quite separate from the trial judge. The disclosure judge would first of all carry out a public interest immunity exercise so as to identify what material, if any, would assist the claimant’s case or damage the Government’s case. In my view it is an utterly unsatisfactory feature of this Bill that the Secretary of State only has to “consider” whether he should make a PII application before launching into a CMP application. We shall endeavour to ensure that there shall be no CMP application unless it is preceded by a PII hearing. It should be for the court to consider whether the Government’s concerns could be met by the public interest immunity application without recourse to this very much more serious dent in principle of CMP procedures.
The disclosure judge carrying out a public interest immunity application would look at the sensitive material and hear submissions from both sides, including any special advocate appointed for the claimant. He might even, in proscribed circumstances and subject to safeguards, give permission to the special advocate to speak to the claimant. In his ruling on disclosure, the disclosure judge would exclude irrelevant and inadmissible evidence, such as hearsay, opinion and intercept. He could determine what should be disclosed and the form in which the disclosed evidence should be received in open trial before the trial judge who is to decide the facts of the case. He could use redacted documents or precautions to preserve the anonymity of the sources and secret techniques of the security services, and the other precautions that are currently available in PII cases. The point is that the claimant or another interested party, and the public, can be reassured that in the generality of cases, the trial judge—the judge of fact; the judge who produces the final judgment—has not seen anything more in secret from the Government than the claimant has seen and has not been prejudiced thereby. I stress “the public” because public confidence in justice and fairness underpins the whole justice system.
What would happen if the Government were unwilling to disclose secret material that the disclosure judge on a public interest immunity application ordered should be disclosed? In a criminal case at present, the prosecution ordered to disclose something may refuse to do so and may drop the case. In civil cases, as the Government complain, they may decide to settle the case and pay damages to the claimant without admission of liability. It is only in this situation, where the Government still seek to rely on secret material after the public interest immunity application has been heard and the PII possibilities have been explored, that CMP procedures would have any part to play. I concede that in rare and extreme instances, where the interests of justice are overwhelming, the disclosure judge should have the power to convey to the trial judge some fact or circumstance relevant to his determination of the case heard that could not be disclosed to the claimant. Although it is contrary to the principle for which I argue, I can conceive that, sparingly used, such a power would be a safeguard—a safety valve—that should satisfy the Government’s concerns. I bear in mind that matters that the Government wish to conceal might not necessarily be in their interests and might reveal facts that would assist the claimant, even though he does not know about them. I also bear in mind the safeguards in Clause 7(3), to which the noble and learned Lord, Lord Mackay, has spoken.
Your Lordships will be pleased to hear that I do not have time to comment on the Norwich Pharmacal issues, which will be developed by my noble friend Lord Lester. I agree with him and the Joint Committee on Human Rights that it is essential that the jurisdiction of the court should not be ousted in these cases, and that any ministerial certificate should be reviewable—not simply on procedural grounds but on the balance of the public interest.
Baroness Stowell of Beeston
My Lords, for the benefit of the whole House, and before the noble Lord, Lord Butler, contributes to the debate, noble Lords might find it helpful if I remind them of what the Companion says about speeches in debates where there are no formal time limits. It states that,
“members opening or winding up, from either side, are expected to keep within 20 minutes. Other speakers are expected to keep within 15 minutes. These are only guidelines and, on occasion, a speech of outstanding importance, or a ministerial speech winding up an exceptionally long debate, may exceed these limits”.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Thomas of Gresford Excerpts(12 years, 2 months ago)
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Lord Beecham
My Lords, I remain disappointed in that response. There is potentially a huge range of claims that might be made. Some of them are minimal and perfectly capable of being disposed of in the way the noble and learned Lord referred to. Other are clearly of a different order altogether. Negligence advice from a solicitor, accountant, architect or other professional person can be very costly to individuals who may not be able to afford litigation. Even if they recover using CFAs, they will potentially lose a significant slice of the amount they have already lost. I do not think that is just, and it again reinforces the impression that the Government are giving that they are content with, effectively, a two-tier system of justice from which many people will be excluded. It is most unfortunate, but clearly in the circumstances and in the light of the time, there is not much point in seeking to test the opinion of the House. Accordingly, I beg to leave to withdraw the amendment.
Lord Thomas of Gresford
Before the noble Lord sits down, I may say that he is developing a very fine line in insulting jibes. I did not hear any mention of Brown in anything that he said in presenting his submission or in his reply.
Lord Beecham
I do not quite understand the relevance of that observation. I mentioned Brown. I am sorry if it offended the noble Lord. Mr Brown has offended a great many people.
“Social entitlement(1) Civil legal services and advocacy in appeals from the Social Entitlement Chamber of the First-tier Tribunal to the Upper Tribunal, the Court of Appeal and the Supreme Court where the relevant court or tribunal certifies that—
(a) the appeal raises a complex issue of law or of fact (in which case the certificate must identify the issue),(b) the matter is one of significant wider public interest (in which case the certificate must identify that interest), or(c) there is some other compelling reason why the proper conduct of the appeal requires the provision of civil legal services (in which case the certificate must set out the reason).(2) Rules of procedure applicable to the relevant court or tribunal may make provision about certificates under this paragraph.”
Lord Thomas of Gresford
My Lords, Amendment 22 and Amendment 78 are concerned with appeals in social welfare and immigration cases. I am grateful to the noble Lord, Lord Bach, for paving the way to this earlier today. They seek to secure legal aid for appeals in welfare cases from the Social Entitlement Chamber and the Immigration Chamber of the First-tier Tribunal to the Upper Tribunal, the Court of Appeal and the Supreme Court. By Clause 9 of the Bill, civil legal services other than Part 1 services are made available where the Director of Legal Aid Casework has made an exceptional case determination and, of course, an individual’s means qualify. The tests of exceptionality as we have known them in the law, and as have previously been applied by the Legal Services Commission and indeed by the then Minister, Lord Bach, in person as he did from time to time, are no longer relevant. That is because an exceptional case determination is precisely defined in Clause 9(3). Exceptionality is directly linked to any case where the failure to provide civil legal services would be a breach of the European covenant rights—EU rights—or where there is a risk of such a breach.
I seek to persuade your Lordships that there can be no clearer case of a breach, or at least the risk of a breach of Article 6 rights, than in appeals from the First-tier Tribunal to the Upper Tribunal or beyond if the litigant in person is opposed at the hearing by a government legal team of counsel and/or solicitors. This is particularly so since appeals are permitted only on a point of law and the litigant in person will be required to argue legal points for which he is by no means qualified. No appeal can be brought to the Upper Tribunal without the leave of the First-tier Tribunal, nor can appeals be brought to the Court of Appeal or the Supreme Court without leave. At each stage, leave has to be obtained. The mechanism is already in place for the judges who tried the case and heard all the facts to determine not just whether there is sufficient merit in the appeal on a point of law to go forward but to determine whether the issues are complex. Who better to judge whether a matter is complex than the judge who has tried the case? It is a small step to amend the rules to require them to certify whether or not the issues are complex.
Lord Wallace of Tankerness
My Lords, the amendment moved by my noble friend Lord Thomas of Gresford would seek to provide legal aid for all onward appeals on issues arising from a social entitlement chamber. My understanding is that that would be advice on matters of asylum support, criminal injuries compensation and welfare benefit. I am not able to judge offhand whether it covers the whole extent of what was passed earlier this evening by your Lordships but we are in the same area.
My first point is that the amendment would go beyond the existing scope of civil legal aid to the extent that it would allow legal aid for advocacy in the Upper Tribunal on welfare benefit, asylum support and criminal injury matters. We are restricting legal aid and I ask my noble friend to bear that in mind. It is the case that legal aid for legal representation has never been routinely available for the Upper Tribunal for matters of welfare benefit, asylum support or criminal injuries compensation. An estimate has been made that to do so could cost up to £7 million per year.
Lord Thomas of Gresford
Is that on the basis of an assessment of how many cases a judge would declare complex? I propose a filter for these cases; only those that are complex should go there.
Lord Wallace of Tankerness
That is the point I was about to make. It is possibly based on the majority of cases currently going to the Upper Tribunal. As my noble friend rightly points out, we perhaps do not know how many cases would be certified as complex. That is an unknown unknown. I think my noble friend gets the point I am trying to make: we do not know that.
My noble friend makes an important point that the complexity of those cases arising out of the social entitlement chamber would be one factor that could engage Article 6 and lead into the exceptional funding in Clause 9. That exceptional funding is intended to take account of Article 6 issues. As he indicated in moving his amendment, that would require taking into consideration the complexity of each individual case considered under Clause 9. He indicated that that could lead to a waste of resources and he asked what was lost were a judge to make the determination rather than a legal aid director. One possible response is that the director’s determination under Clause 9 is whether the case is such that the refusal of legal aid would be a breach. Clearly, each case would have to be determined on its individual merits.
We move on to bringing into scope cases which are certified to be of significant wider public interest. Under the current legal aid scheme, there is a rule that allows any excluded case other than a business case to be brought back into scope if it is of significant wider public interest. As I have indicated previously, the Government do not intend to include such a rule in the civil legal aid scheme created by the Bill.
My noble friend also made a point that I wish to reflect on. I think he referred to the Cart case in terms of judicial review. If one were to go down that route, where legal aid would be available, the balance would be in terms of costs as opposed to what he proposes, where there would be a possibility of certification of a case in the significant wider public interest.
Without being in a position to make any commitment as to the outcome, on the point that the noble Lord raised—as well as the point that he made that not all cases would necessarily qualify that went to the Upper Tribunal or beyond—I have discussed the issue with my noble friend Lord McNally and we would be willing to consider this further if the noble Lord will withdraw the amendment. However, I make it clear that I cannot guarantee that he will necessarily ultimately get the result that he wants. But he has raised matters that I want to reflect on and pursue further. I include the noble Lord, Lord Bach, in that. There are important legal issues at stake.
Lord Thomas of Gresford
I am most grateful to my noble friend for that reply. I ask him to add this point to his deliberation. If the judge who has tried the case and knows all the facts and circumstances certifies that it is complex, the case can go forward on its merits to the Upper Tribunal under what I am suggesting. If the judicial review procedure is followed, an application for leave will be made to the Upper Tribunal, so that whoever sits in the Upper Tribunal has to determine first of all whether leave can be granted in this particular case. It happens in criminal courts all the time that cases go forward on the basis of a certificate from the judge, from the Court of Appeal to the Supreme Court in particular. The particular judge is in so much better a position to decide whether this is a case that merits a certificate and whether the merits of the case are such that it should be given permission to go up. That is a far better situation than the one whereby the defeated applicant applies for leave for judicial review to a judge in the Upper Tribunal who has to spend his time considering the papers put in front of him. If the noble and learned Lord has any contact with members of the judiciary, he will know that one thing that they do not like doing is to wade through piles of applications for judicial review from scratch to try to determine whether there is a point worth arguing in the administrative court. So there is a practical side to it that I suggest he should take into consideration. I am grateful to him for his response and on that basis hope to have further discussion and, perhaps, return to the matter on Third Reading. I beg leave to withdraw the amendment.
“Best interests of patients16A Civil legal services provided in relation to any question whether particular medical treatment is in the best interests of a person who is incapable of giving or withholding consent to such treatment.
Exclusions16B Paragraph 16A is subject to the exclusions in Parts 2 and 3 of this Schedule.
Definitions16C For the purposes of this paragraph “medical treatment” has the same meaning as in the Mental Health Act 1983.”
Lord Thomas of Gresford
My Lords, I moved this amendment in Committee. It is concerned with people who tragically are in a vegetative state and require an application to the court for the withholding of nutrition and/or treatment. I said everything that I needed to say in Committee and I wait to hear what further thoughts the Minister may have had. I beg to move.
Lord Beecham
My Lords, I congratulated the noble Lord on moving this important amendment in Committee, where he raised a particularly moving case. I congratulate him on raising the matter again on Report. I hope that the Minister will produce a satisfactory answer.
In Committee I raised a different point—perhaps not as clearly as I might have done—based on advice that MIND provides for patients. The point was not in relation to treatment for a mental health disorder, which of course would be covered by the Mental Health Acts and which the noble Lord, Lord McNally, pointed out would remain within scope. However, there may be a question regarding someone who suffers from a mental health disorder but whose treatment is for a physical problem, not for that disorder. The MIND briefing to patients states:
“Specifically, the laws in Part IV of the MHA on treating people without consent, only apply to treatment for mental disorder. They do not apply to the treatment of physical disorders unless it can reasonably be said that the physical disorder is a symptom or underlying cause of a mental disorder”.
A situation may be arising there in which the provision of legal advice would not be within scope because it is not for treating the mental health disorder.
I appreciate that an off-the-cuff answer might not be immediately available on that point, and I may have got it entirely wrong. However, such a situation strikes me as a possibility emerging from this briefing. So while I would certainly encourage the Minister to endorse the amendment of his noble friend, I would also ask him to undertake to look at the point that I have raised and, if necessary, to bring something back at Third Reading.
Lord McNally
My Lords, the amendment seeks to insert a paragraph to provide legal aid for cases concerning whether medical treatment is in the best interests of those incapable of giving or withholding consent. As my noble friend Lord Thomas explained, he also tabled this amendment in Committee, where I think it was established that the matters envisaged by the amendment would in fact already fall within the scope of paragraph 5 of Schedule 1.
However, my noble friend also took the opportunity to speak about the wider issues and asked that I consider the observations made by the judge in the case of W against M and others—in particular, whether an exception could be made to provide free legal aid for mental incapacity cases which concerned the withdrawal of nutrition and hydration from a family member. Although it would not be right to comment on the specifics of any particular case, I understand the concern that such a case can raise. However, we do not plan to abolish means-testing for cases involving the withdrawal of nutrition and hydration. The means test for legal aid is intended to focus our limited resources on those who need them most and takes into account the applicant’s income and any capital they may hold. Those who fall outside the financial eligibility limits are expected to rely on their resources to fund their case. However, if an applicant's circumstances change, they can apply for legal aid funding. I therefore urge my noble friend to withdraw his amendment.
On the specific point raised by the noble Lord, Lord Beecham, if he would like to send me the briefing that he has received, I will certainly check on it, write to him and put the letter in the Library of the House.
In the mean time, although I know that my noble friend will be disappointed by my reply, means-testing for legal aid is intended to focus our limited resources on those who need them most.
Lord Thomas of Gresford
My Lords, I am grateful to noble Lords who have spoken in support of the amendment. I am indeed disappointed by the Minister’s response, but it seems to me that he has accepted that applications of this sort fall within paragraph 5, and that is on the record. I am disappointed that means tests come into a case of this nature; it seems to me utterly heartless that it should be like that, particularly when the noble and learned Baroness, Lady Butler-Sloss, has pointed out how difficult those cases are. They are heart-rending for the people concerned and for the judge who has to try such issues, not to mention all those who are involved in presenting evidence.
I shall not press the matter, but I register my view that the Government ought to have taken a more generous view on this small number of cases.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Thomas of Gresford Excerpts(12 years, 3 months ago)
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Lord Wallace of Tankerness
My Lords, it is always possible to speculate on what might happen in one case or another. To take the noble Baroness’s point, if it were a case where there were efforts to prevent her joining a trade union, that suggests that there was trade union involvement there, and one of the points that I have made is that trade unions have been a source of support over many years. However, it is difficult to look at the circumstances of one case without drawing conclusions that may be inappropriate. I simply observe that there are other forms and sources of advice that could be available in such circumstances, but perhaps not least from a trade union.
I conclude by making it clear that, as the noble Lord, Lord Pannick, highlighted, although legal aid has been removed for employment cases, it will be retained for judicial reviews and claims relating to contravention of the Employment Act 2010; discrimination claims are available there. That is consistent with what we had indicated we believed to be an important priority. In those circumstances, I ask the noble Lord to withdraw his amendment.
Lord Thomas of Gresford
My Lords, the concept that employment tribunals are a cosy chat between an employee and his boss in front of a very receptive body of people is quite wrong these days. An impression of unfairness is created for the employee who is seeking his rights when he finds perhaps even a QC appearing on behalf of a wealthy employer. I have appeared many times for employers, sometimes for employees and sometimes on my own behalf.
The excuse, or the reasons, given by the Minister would be far more acceptable if he were to say, “Well, if a union is backing an employee, that is fair enough; they can pay for legal representation”. If he is there on his own, why not just have the boss—the person who did the sacking—in front of the tribunal, not lawyers who in many cases are overpaid when they are dealing with the individual appearing in front of them?
Lord Pannick
Before the Minister sits down completely, I have a question arising out of his emphasis on legal aid being available for equality claims. If I have understood this part correctly, paragraph 40 makes clear that legal aid will be available if your claim is in connection with a claim that is within scope. Is it right, therefore, that if I am a dismissed employee and I wish to be eligible for legal aid under the new regime, I should add a discrimination claim to my claim for unfair dismissal and then both of them would be within scope for legal aid? If that is correct, the consequence of excluding general employment claims from scope will simply be to encourage unmeritorious discrimination claims to be brought in order to ensure legal aid for unfair dismissal claims.
“Appeals where court or tribunal certifies complex point etc.(1) Civil legal services provided in relation to an appeal to the Upper Tribunal, the Senior Courts or the Supreme Court where the relevant court or tribunal certifies that—
(a) the appeal raises a complex issue of law or an issue of fact of exceptional complexity (in which case the certificate must identify the issue),(b) the matter is one of significant wider public interest (in which case the certificate must identify that interest), or(c) there is some other compelling reason why the proper conduct of the appeal requires the provision of civil legal services (in which case the certificate must set out the reason).(2) Rules of procedure applicable to the relevant court or tribunal may make provision about certificates under this paragraph.”
Lord Thomas of Gresford
My Lords, the amendment deals with appeals where a court or tribunal certifies a complex point of law. The Judges’ Council, in response to the original consultation document, stressed the importance of continued funding for competent lawyers in meritorious cases. The problem is to identify which are the meritorious cases. Its response stated:
“Appeals before the Court of Appeal or the Supreme Court have to get through a demanding permission filter, frequently involve issues of difficulty and importance and may lead to the laying down of binding principles of broad application—a fortiori in the case of ‘second’ appeals to the Court of Appeal, which are subject to even stricter criteria requiring the appeal to raise an important point of principle or practice or that there is some other compelling reason why the appeal should be heard. References to the European Court of Justice relate to a difficult area of law and are made only where the answer is unclear. In appeals and references of this nature, the court ought to be given all possible assistance through professional advocacy. There should be no further cut-back in the availability of legal aid for such cases. The possibility of applying under the funding scheme for excluded cases is not a satisfactory answer, both because the scheme will be very limited in scope and because the very process of applying under the scheme is bound to be complicated and dissuasive”.
Appeals are not only about the individual case before the court or tribunal; they often change the law, and make new law and law that is binding on later cases. There is a powerful public interest that both sides of the case are properly argued. It is the court or tribunal itself that is best placed to decide whether to trigger the operation of an appeal by issuing a certificate. The concept of exceptional funding under Clause 9 is excessively narrow in its scope, and I will be returning to that later. This amendment ensures that such cases remain, where appropriate, within the scope of legal aid and would retain the possibility of legal aid when the appeal is on a matter of significant wider public interest or there is some other compelling reason why legal services are required. I beg to move.
Lord Thomas of Gresford
My Lords, I do not intend to go into the complexities of proof in a Scottish court; it has always seemed something of a haar to me. I am grateful to all noble Lords who spoke in the debate. I will stress two points from the speeches that we heard. My noble friend Lord Carlile pointed out that under Clause 9 it is the director of legal aid who will determine whether, in exceptional cases, legal aid should be granted. I cannot imagine any director who would have in his mind the full scope of the issues that can arise in appeals against decisions from tribunals and courts. I would have thought that the Government would have welcomed, as a safeguard, the fact that civil legal services will not be provided unless there is a certificate expressly stating why legal aid should be granted in the case. That will be an advantage, rather than leaving it to the director of legal aid, whose decision may well be challenged by way of judicial review. Surely satellite litigation is the one thing that we want to avoid when we pass the Bill.
The other point that I will stress follows from what was said by the noble Baroness, Lady Mallalieu, who outlined all the steps that must be taken in every appeal: the complicated preparation of schedules, skeleton arguments and documents that some of us are familiar with. As she said, it would be quite impossible for any individual to conduct an appeal, given all the background work that has to be done. As the noble Lord, Lord Pannick, said, the amendment is tightly drawn. I am disappointed with the response of my noble and learned friend. I hope that I will be able to pursue the matter with him afterwards and come back to it at a later stage. I beg leave to withdraw the amendment.
Lord Thomas of Gresford
I was a member of the Criminal Injury Compensation Board for seven or eight years and resigned when the noble Lord, Lord Howard, introduced his tariff scheme in 1993. Reverting to the Scottish theme, I recall sitting in Glasgow on one occasion with two very senior Scottish QCs next to me. I was the junior member. We had an applicant in front of us who addressed us in a language that I did not understand. At that time, I had been married to my late wife for some 30 years. She was from West Lothian, so I was pretty well attuned to the Scottish dialect of the central belt. However, I noticed that my learned friends on either side were nodding as though they understood, so I said to the chairman, “What’s he saying?”, and the chairman replied out of the side of his mouth, “I haven’t a clue”, so I said to the applicant, “Would you mind speaking more slowly please?”. He looked at me and said, “Eh?”. He could not understand me, so there was a certain confusion. I there realised the importance of having an advocate who could explain the case clearly to the tribunal. On the other hand, the members of the Criminal Injury Compensation Board were, I am sure the noble Lord, Lord Beecham, will acknowledge, a pretty experienced bunch of people, and we handled most claims without representation and without any difficulty, so if there are priorities to be chosen here, this would not be one of mine.
Lord Pannick
My Lords, there are undoubtedly few examples of claims under the scheme that raise complex legal issues that require legal advice, but there are some, and it is unfortunate that the Bill should seek to exclude legal advice and representation in cases where such complex legal issues arise. It is particularly unfortunate that paragraph 16 of Part 2 should exclude claims under the criminal injuries compensation scheme because that conflicts with one of the most welcome and important developments in criminal law in recent decades: the recognition of the rights and interests of victims of serious crime. The criminal injuries compensation scheme is one of the earliest statutory—or non-statutory, in its case—recognitions of the rights and interests of victims. I can think of nothing more likely to undermine the real interests of victims where complex matters are raised than denying them any opportunity of legal aid and advice through the legal aid scheme.
(c) that it is in the interests of justice generally”
Lord Thomas of Gresford
My Lords, I rise with a sense of relief, now we have got through Schedule 1.
The amendments grouped with my Amendment 91 seek to clarify or perhaps extend the circumstances in which an exceptional case determination can be made under Clause 9(3). At the moment, as drafted, that subsection says that an exceptional case determination is one that,
“is necessary to make the services available”
because of,
“a breach of … the individual’s Convention rights … or … rights of the individual to the provision of legal services that are enforceable EU rights, or … that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach”.
In other words, an exceptional case has to fall within a breach of the individual’s convention rights for funding to be granted at all. That is far too narrow a situation.
Amendment 91 is a perfectly simple amendment that says that exceptional funding should be available when,
“it is in the interests of justice generally”.
The amendments that are grouped with mine, in the name of the noble Lords, Lord Bach and Lord Beecham, rather extend that definition, but the idea is simple enough. We believe that Clause 9 does not go far enough to address the gap in funding for parties that need representation. It is not sufficient to counter the adverse effects of litigants being forced to pursue litigation in person in areas of civil and family law where legal representation is important for the proper conduct of the case. I have already referred to what the Judges’ Council had to say on this issue in addressing a previous amendment.
The exclusion of private family law from legal aid is likely to make the operation of this clause particularly problematic. There is a long line of Strasbourg cases to the effect that at least some family cases not involving domestic violence require legal aid to be available. Serious injustice would be caused if parties to these emotionally charged cases were forced to act in person. In practice, even under the clause as drafted, it is likely that a large number of cases would have to be treated as exceptional because of the risk of a breach of the right to a fair hearing under Article 6 of the European convention.
However, the problem does not end there. Article 6 does not apply in cases of an administrative character. Many cases of that kind, which reach the courts from tribunals or decision-making officials, involve important issues about education, privacy or social care, for example. Unfairness can have devastating consequences for individuals. Not surprisingly, the English courts have long accepted that domestic law in these cases imposes the same standards of fairness as Article 6. However, Clause 9 would not permit exceptional funding to be granted to avoid a miscarriage of justice in a case of this sort. It is very interesting that the coalition Government, in which there is a certain element of the Conservative Party, are limiting exceptional funding to a breach of convention rights and not to the English common law that would show that an injustice might follow.
This amendment ensures that an exceptional case determination may be made where it is appropriate in the interests of justice generally, not merely in cases where there would otherwise be a breach or a risk of a breach of the European convention. I beg to move.
Lord Bach
My Lords, this is an important group and anything I say of course comes with the proviso that we too support the amendment moved by the noble Lord, Lord Thomas of Gresford. We have put down an amendment proposed by the Law Centres Federation, which many noble Lords will know is responsible in many ways for the law centres dotted around England and Wales. I think that it is generally agreed by noble Lords and those outside this Committee that the federation does a fantastic job on very small resources. It gives poor people and others a chance to have access to justice to sort out their legal problems. That is at the very heart of Part 1 and I am privileged to put forward this amendment, which the Law Centres Federation originally proposed.
Exceptional funding is a proposed essential safeguard in a legal scheme that obviously seeks to exclude whole areas of law from cover. It is a mechanism by which individuals who suffer particular injustices as a result of these broad exclusions that we have been debating can in exceptional circumstances obtain legal aid to help them assert their rights. We believe that it is wrong to remove whole areas of law from scope rather than consider individual cases, as no account is taken of the importance of the case to the individual or their ability to address their legal problems by other means.
Clients with physical or mental health difficulties or with low levels of education may be wholly unable to resolve their problems without legal-aided support. They will also be seriously disadvantaged when facing, as we have been debating in the past few minutes, unusually complex areas of law or well funded opponents employing significant expert legal resources. To address this injustice, the Government rely on their proposed exceptional funding provision in Clause 9.
However, Clause 9 as drafted is too narrow, as the noble Lord, Lord Thomas of Gresford, has persuasively argued, and is problematic in a number of ways. First, as I have said, the clause is too narrow and depends on proving human rights or European law concepts. These highly complex areas of law are still meant as the only gateway to legal aid for individuals who, by definition, are often not in a position to deal with their underlying legal problems.
Secondly, Clause 9 excludes any prospect of legal aid for the initial advice and assistance stage, which is often the stage at which most help can be provided to the client to resolve matters and has the inestimable advantage of avoiding more costly litigation. I ask the noble and learned Lord when he replies to consider whether the proposition that I have just put as regards the initial advice and assistance stage is out of scope.
The current draft clause states that to acquire exceptional funding a client would have to prove that refusal of legal aid would be in breach of “the individual’s convention rights” or their rights,
“to the provision of legal services”,
under European Union law or,
“that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach”.
However, in determining which areas of law to leave in scope and which to exclude, the Government have used some more approachable tests: namely, is the client likely to be particularly vulnerable; is advice and representation available from other sources; is the area of law complex; and, finally, can the client deal with matters or represent themselves? Given those considerations, surely it is appropriate to have an exceptional funding provision also based on these tests. That is the basis of the amendment to which I am speaking at the moment.
Lord Thomas of Gresford
I shall have my chance to reply later, but it is important that we focus on this. My noble and learned friend says that it is a broad interpretation and opens up a wide field, but everything is governed by that word “exceptional”. We have referred to that word in earlier discussions and debate during the passage of this Bill. “Exceptional” takes it out of the ordinary; it is unusual, outside what is normal. That cuts down the broad interpretation. You need a wide field because exceptional cases do not arise simply in relation to what the noble Lord, Lord Pannick, referred to as the “floor”—the minimum rights guaranteed by the convention; they can come out from left field, as the Americans would say. Something quite unexpected is exceptional, which would not necessarily engage the rights under the European convention or European law. “Exceptional” cuts down the broad interpretation for which the noble Lord is arguing.
Lord Wallace of Tankerness
It may cut it down, but it leaves it still without any parameters, subject to “exceptional”, whereas in what is being proposed the kind of factors which the director would be required to take into account are those which I think people would agree are relevant, particularly in determining whether an application is exceptional. The importance of the issue is to the individual concerned: the nature of the rights at stake, the complexity of the case, the capacity of the individual to represent him or herself effectively and whether there are alternative means of securing access to justice. These are not airy fairy considerations; they are ones which I would fully expect the director to be able to bring to bear in dealing with individual cases, and I am sure he would do so. Everyone who makes an application no doubt thinks that their case is in the interests of justice and that it should be funded. At least, there is some indication here as to what criteria the director will apply.
On Amendment 92, I accept what the noble Lord, Lord Bach, said, and we will ensure that the specific questions that he asked about the chief coroner get a response as soon as we can. His amendment would make it a requirement for the director to consult the chief coroner and have regard to his views before making a significant wider public interest determination about whether to fund advocacy at an inquest. Inquest cases can currently be funded if there is a “significant wider public interest” in the applicant being represented. This is a term with a clear definition under the funding code: benefits to the wider public must be tangible, must be likely to accrue to a substantial number of people and must arise as a consequence of the representation. It is not enough for there to be a general public interest in the case.
The Government consider it important to retain the ability to fund inquest representation on the basis of the wider public interest because the provision of such representation may lead to findings which help prevent future deaths. That is why Clause 9(4), which I think in its generality the noble Lord welcomes, gives the director the power to provide funding on the basis of a “wider public interest” determination.
The onus has never been on the decision-maker to consult coroners—I am well aware that I am in the presence of someone who had to make these decisions on many occasions and I recognise the experience of the noble Lord, Lord Bach, in these matters. Indeed, many coroners may not wish to give a view at all. Some are not prepared to give a view about substantive elements of the case until the inquest is being held. However, under the current guidance on the existing exceptional funding system, the views of coroners are material, though not determinative, to decisions concerning the requirement for funding to be provided in order to fulfil the state’s obligations under Article 2 of the European convention.
Consequently, coroners are far more likely to give a view about potential ECHR engagement in inquests than on whether the case has significant wider public interest.
Lord Thomas of Gresford
I understood my noble and learned friend to say a moment ago that “exceptional” means no more than it is a case outside Schedule 1, not that it is exceptional in the class of cases. That is a very different concept. I had understood “exceptional” to be in a class of cases that are not covered by Schedule 1 and not in scope and that you would need to have an exceptional case in that class of cases. However, if “exceptional” means, as my noble and learned friend said—and no doubt he will think about it—that it is merely a case that is outside Schedule 1, that is a very different situation.
Lord Wallace of Tankerness
My Lords, I shall certainly think about it. Clearly, if it falls within scope, it falls within scope, whereas we have discussed some cases which would not necessarily fall within scope. We had a lengthy discussion on clinical negligence, which does not fall within scope but would nevertheless be an exceptional case—obviously as determined and defined in Clause 9.
Lord Thomas of Gresford
My point is that a clinical negligence case, on what the noble and learned Lord said, as I understood it, would be exceptional. So that qualification is immediately fulfilled and then you are concerned only with the convention rights. However, any clinical negligence case would be exceptional.
Lord Wallace of Tankerness
No. When debating clinical negligence cases we agreed that they did not fall within Schedule 1. However, clinical negligence cases would be exceptional if they met the criteria set out in Clause 9. In particular I go back to the debate on the criteria which relate to the individual’s convention rights within the meaning of the Human Rights Act 1998. The noble Lord, Lord Pannick, said that this is a floor operation rather than a ceiling operation but, nevertheless, Article 6 of the European convention is an important threshold and, in that respect, is exceptional. I hope I have not made things less clear. The policy is to limit this to where a failure to accept cases and make an exceptional determination would breach an individual’s convention rights or any right to the provision of legal services enforceable under European Union law. That is the nature of the exceptional circumstances.
If we go any further we will probably tie ourselves up in knots. We almost got there when we were looking at clinical negligence cases in which the exceptional circumstances as defined here, with particular reference to convention rights, would apply.
Lord Thomas of Gresford
My Lords, my noble and learned friend referred to guidance that would be given to the director in due course about how he approached his task. I would indeed expect that the criteria for what is exceptional would be published by the director as one of his first tasks. An application form for exceptional funding would no doubt have a block saying, “You will not get this funding unless it is exceptional in the following sense”, or some guidance like that. Accordingly, it would be quite possible to publish criteria as to what the director would consider to be in the interests of justice generally, but I defer to the expression that was used by the noble and learned Lord, Lord Mackay, about there being a real risk of injustice if legal aid is not granted. That seems an admirable way to approach it, and I will press that on my noble and learned friend in due course. For the moment, I beg leave to withdraw the amendment.