Justice and Security Bill [HL]

Baroness Berridge Excerpts

Monday 23rd July 2012 Lords Chamber

Moved by

[Baroness Berridge]

89: After Clause 14, insert the following new Clause—
“Annual renewal
(1) The Secretary of State’s powers under Part 2 of this Act expire at the end of the period of one year beginning with the day on which this Act is passed.
(2) The Secretary of State may, by order made by statutory instrument, provide that the Secretary of State’s powers under Part 2 of this Act are not to expire at the time when they would otherwise expire under subsection (1) or in accordance with an order under this subsection but are to continue in force after that time for a period not exceeding one year.
(3) An order under this section may not be made unless a draft of it has been laid before Parliament and approved by a resolution of each House.”

[Baroness Berridge]

My Lords, along with the reporting and recording requirements in previous amendments, the new clause proposed by this amendment would keep Parliament abreast of the use of closed material procedures. It is modelled on the provision that was introduced when the control orders were introduced into our system. For the first five years they were subject to annual renewal because they were a novel jurisdiction. The same point applies here with the closed material procedures in civil proceedings.

In Committee, many of your Lordships have mentioned the impact that closed material procedures could have on public confidence in the judicial process. This amendment means that without a resolution of each House the powers fail, which is the appropriate mechanism for Parliament to act swiftly, should there be significant concerns about the understanding of and confidence in our judicial system. One of the agreed facts in Committee has been that this is a controversial mechanism to introduce into the civil justice system. It has been noted that Parliament would have introduced this despite the almost universal view of the special advocates that it is not to be recommended.

It is important to have a swift get-out clause to halt closed material procedures, which this amendment gives. Any mechanism that required primary legislation to amend the Act would take too long to deal with such a situation. I beg to move.

[Lord Pannick]

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

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

--- Later in debate ---

[Baroness Stowell of Beeston]

My Lords, I am merely a Whip, and do not have any powers that would extend to conferring a peerage on anybody, but I will certainly ensure that those that have more authority are aware of the view of the noble Lord, Lord Pannick, about Mr Anderson QC.

The amendment moved by my noble friend Lady Berridge is part of a wider set of amendments that she has tabled—some of which we debated last week—which are part of a package of measures that noble Lords would like to see introduced in order to ensure that the Bill, if it becomes an Act, is reviewed post its Royal Assent.

I can understand the reasons behind that because, as we have acknowledged on many occasions, this is a Bill which would introduce very different measures to the justice system than have been in place hitherto. However, we believe that the amendment is not necessary. I hope I can explain why to the satisfaction of your Lordships this evening.

In the case of Norwich Pharmacal, the primary problem we are seeking to address is how we provide reassurance to our allies that we can protect information shared with us in confidence. We had an extensive debate about this before dinner. One question we could ask ourselves is: would we share a secret with someone knowing full well that it was only guaranteed to be safe for up to 12 months, and that after that time the person might be required to release that information? We expect our allies to protect intelligence material we share with them from disclosure, and they expect the same from us. The inadequacies in our current ability to properly protect classified information provided by foreign Governments have already seriously undermined confidence among our key allies, as we have heard this evening.

A time-limited protection will simply not provide enough reassurance. It would cause our allies to continue to doubt our ability to keep material safe from disclosure. For these reasons the measures in Clauses 13 and 14 of the Bill remain the only comprehensive safeguard against the serious damage that Norwich Pharmacal relief poses to our national security and international relations.

In relation to proceedings in which the CMPs introduced by Clause 6 would be available, we expect that current CMP live cases would be dealt with in the first year, with stayed cases spread over the two years thereafter, alongside other emerging cases. As noble Lords know who are more familiar with the law than I am, civil claim caseloads can be unpredictable in the long term. I believe it is important that claimants have the continued ability to bring all claims against the Government, and that matters are scrutinised by the courts, rather than returning to the current system, where in some circumstances justice is not possible.

I should remind the House that the Bill provides the power to remove a court or tribunal from the definition of “relevant civil proceeding”, as we heard in previous debates tonight, where there is no longer a case for it to be included. This is already provided for in the order-making power in Clause 11.

As we have discussed several times during previous debates, the final decision to hold a CMP in the High Court, Court of Appeal or a Court of Session will be made by a judge. The judge will determine whether a CMP goes ahead on the grounds that there is some material relevant to the case, the disclosure of which would damage national security. The judge would then decide how each individual piece of evidence should be dealt with, and whether that should be in closed session or in open session. We can be confident that the judge will ensure that the provisions for CMPs will be used only in the very specific and narrow circumstances where that test is met.

In the case of challenges of the Home Secretary’s decision to refuse someone British citizenship or to exclude them from the UK, we are dealing with a category of cases where the court has found that it is potentially fairer to the claimant for there to be a CMP available. The expiry of those clauses would reduce fairness by removing the ability to challenge those decisions effectively.

By way of contrast, there are similar provisions in the TPIM Act. My noble friend referred to the control orders and the introduction of a sunset clause when control orders, the predecessors of TPIMs, were introduced. Under Section 21 of that Act, the powers expire five years after Royal Assent. This can then be extended for further periods of five years. However, TPIMs are unique. They involve measures that have an impact on the daily lives of those subject to the orders, including restrictions on liberty. As a consequence Parliament decided that strict post-legislative measures were needed. There are no sunset provisions in place in any other context where CMPs are available.

I should also point out that in its report the Constitution Committee considered how the Bill should be reviewed after Royal Assent, and it did not recommend a sunset clause. Its report said that the House might wish to consider the Bill being independently reviewed five years after it came into force. As I explained in my response to Amendment 67A last week on day 3 of Committee, Bills are normally subject to review three to five years after Royal Assent. The Select Committee responsible will then decide whether it wishes to conduct a further post-legislative inquiry into the Act and it is right to leave it to the Select Committee to decide the form of independent post-legislative scrutiny.

As I said, I recognise that the amendment and others like it that we have discussed previously are inspired by a strong feeling among some noble Lords that we should have in place a thorough process for post-legislative scrutiny on a Bill that is introducing something different. But, as I hope I have been able to outline tonight, the measures that already exist will meet the objective that has been set out by those who spoke in favour of the amendments, and sufficient safeguards are in place without introducing a sunset clause. On the basis of that, I hope that my noble friend will feel able to withdraw her amendment.

[Baroness Berridge]

My Lords, I am grateful to the noble Lord, Lord Pannick, for illustrating how one can tangent with one amendment to introduce a slightly different topic. I am also grateful to the noble Lord, Lord Beecham; I think that we now have a score draw on whether there is support from the Benches opposite for my amendments.

I am of course disappointed to hear that my noble friend does not believe that this is necessary. There are distinctions between control orders that affect the liberty of the citizen as opposed to this jurisdiction. This is a very distinct jurisdiction to be introducing closed material procedures into. It will affect our civil justice process, which is very different from the other legislative regimes. In civil proceedings, it often calls the Government to account for their actions. Vast amounts of resources, as I saw going down to the High Court, are invested in putting someone under a control order. It was said that there is nothing worse for them than being in existence for only a year, even though so much is invested in them and it could have all fallen flat in that year.

Finally, it was said that people would not share secrets thinking that they would be secret only for a year, but there has been agreement around the House that this is a very narrow jurisdiction, particularly after the Omar case that we are dealing with, so there would be no massive knock-back effect on intelligence if there were some kind of sunset clause. I hope that we will be able to return to this matter later on in the proceedings on the Bill. I beg leave to withdraw the amendment.

Amendment 89 withdrawn.