Justice and Security Bill [HL]

Baroness Williams of Crosby Excerpts

Monday 23rd July 2012 Lords Chamber

[Baroness Williams of Crosby]

My Lords, I want to add only a short comment to the remarks made by my noble friend. I can think of nothing that would do more to undermine public confidence in the judicial system than an attempt to try to include coroners’ courts. I will be assured that there has been a promise from the Lord Chancellor that this will not happen, but I cannot understand why the Bill still clearly indicates that there could be a power to include such a court. The Bill says that in exact terms. The idea of excluding the CMP in an inquest would so outrage large sections of the public, especially on publicly very sensitive cases, that I can think of little that would do more to undermine confidence.

I also strongly agree with the general thrust of the remarks made by the noble Lord, Lord Soley. He rightly understands that there is a tendency to have what one might call “executive mission creep”. The temptation to extend powers if there is nothing to limit them more strictly in the Bill is a very powerful temptation indeed. The noble Lord is quite right to say that the procedure laid down here is relatively slow. It is also, to be frank, if I may, relatively inefficient because it depends to a great extent on the interest that is shown in the House of Commons in the procedures that are put before it. Sadly, the story of affirmative procedures is often rather of neglect of the issues and substance put before the House.

The noble Lord is absolutely right to argue that primary legislation would be a more appropriate way to safeguard citizens’ freedoms than to rely on this cumbersome procedure. I strongly hope that the Government will reconsider this very wide-ranging legislation, with very few limits on it. I wonder whether it would be possible perhaps to redraft the legislation in narrower terms and to have more effective accountability. Many of us in the Committee would feel rather more confident about the ability of the legislation to win public support and public confidence.

[Lord Pannick]

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

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

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

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

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

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[Lord Wallace of Tankerness]

We shall have to agree to differ. Considerable thought has been given to this and we believe that it would not be possible to extend the power here. I am always wary of putting “for avoidance of doubt” clauses into Bills, and I know parliamentary counsel also have anxiety about these things. If that helped, I would certainly be prepared to look at it to put that beyond doubt, although I do so with the caveat that by putting in such things, you have to watch you do not stir up more problems than the ones you are trying to resolve.

We do not believe that the order-making power here can be extended by this coalition Government or any future Government to inquests without primary legislation.

I would like to pick up on the points made by my noble friend Lady Berridge and the differences between civil proceedings, between parties and the inquisitorial nature of a coroner’s inquiry. The Government recognise that inquests have a unique role in our justice system. In inquests where intelligence evidence cannot be disclosed without risking national security and public safety, we will continue to use existing arrangements. In such circumstances, the Government can make a public interest immunity application to exclude the material. The coroner will exclude the material if he or she decides that the public interest in withholding the information outweighs the public interest in disclosing it. An inquest can also be converted into an inquiry under the Inquiries Act 2005. My noble friend made that point in regard to the inquest into the death of Azelle Rodney which could not proceed because neither the coroner nor the jury could see highly sensitive material. To allow all the material to be seen, the inquest was converted into an inquiry with terms of reference mirroring the purpose of the inquest.

With regard to the Mark Duggan case, it would be inappropriate for me to comment at this Dispatch Box on how the Inner North London and North London coroners propose to handle any sensitive material in their conduct of the inquest into the death of Mark Duggan. It is for the coroners concerned in these cases to decide the best course of action.

Finally, Amendments 70A and 70B would limit instead of remove the order-making power. Amendment 70A would omit the aspect of the power which would enable the adding or removal of a court or tribunal. We believe it is the key aspect of the power and so we could not accept it being limited in this way.

Amendment 70B would omit the aspect of the order-making power which enables orders to be made which amend or repeal any enactment, and I fully understand why Parliament is always wary of any such power. The provisions are for the situation where the definition of “relevant civil proceedings” is changed and certain supplementary or consequential changes are needed. An example of this is in subsection (4), and I hope that it meets the specific concerns raised by my noble friend Lord Hodgson. So, if a tribunal is added, Clauses 6 to 11 of the Bill may need to be adapted for use in relation to that tribunal. The power could be used to explain what “rules of court” mean for the tribunal because tribunals have “procedural rules” rather than “rules of court”. These sorts of differences would be reflected in the use of that power.

I hope I have been able to explain why the Government reached this position.

[Baroness Williams of Crosby]

Perhaps I may press my noble and learned friend one stage further. The material says that a court can be added or excluded as the case may be, and to a lay person saying that it does not apply to a coroner’s court sounds like a Red Queen in Alice in Wonderland announcing that what seems obvious is the opposite of what is obvious. Will my noble and learned friend consider either dropping paragraph (a) or making a particular reference to the exclusion of coroner’s courts so that those of us who are not deeply into legal language would be able to understand the Government’s intention?

[Lord Wallace of Tankerness]

I take the point made by my noble friend Lady Williams. I said I would be willing to look at words like:

“for the avoidance of doubt this does not include coroner’s courts”.

I caveated it because I am always wary of parliamentary draftsmen finding 10 reasons why that will mean 20 different things. In that spirit, I hope she will be reassured that not only do we not intend to include inquests, but we do not believe that the wording here does include inquests. However, I am prepared to look at that to see whether there is a wording which will put that beyond doubt and reassure those who think that there is no belt-and-braces position as things stand.

I have sought to give reassurance on these important issues, and particularly it is important that Parliament scrutinises the powers available to Government by secondary legislation, perhaps a fortiori in circumstances such as this. I will reflect on what has been said in the course of this Committee’s discussion.

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I very much hope that the noble and learned Lord, Lord Wallace, will be able to tell the Committee that the Government recognise that there really needs to be some balance in these clauses. A large number of amendments are before the Committee and I very much hope that before Report the Government will come forward with amendments that properly reflect the needed fair balance in this context.

[Baroness Williams of Crosby]

My Lords, the noble Lord, Lord Pannick, recited directly from the Constitution Committee in its very excellent finding about the width of the phrase “sensitive material”. As usual, we owe a great deal to the common sense of the Constitution Committee in drawing our attention to this kind of matter. I fully appreciate the argument for narrowing down and more closely defining the phrase so that it is not as wide and vague as it is in the Bill. However, before we conclude our discussion on this group of amendments, I also want to refer to one to which no noble Lord on the committee has so far referred at all. Amendment 77A points to the requirement for disclosure on matters that are directly related to international law, to the work of the human rights conventions and to issues concerning, for example, the various United Nations conventions to which this country is party.

The other amendment relating directly to this issue is Amendment 73A. There is a great deal to be said for that but let me say a word or two, because my point relates very directly to the speech of the noble Lord, Lord Reid, which almost completely neglected the significance of international law, international conventions and international agreements under the United Nations. I believe we have hardly discussed this element in our consideration of this Bill. We would be most foolish to continue to neglect that element.

Let me give one personal piece of evidence. For a substantial part of my life I have been involved in issues concerning the danger of nuclear weapons, which of course threaten not only our security but that of a much wider part of the world. How is it that we have come to deal with this? Not entirely successfully but fundamentally, international law and international convention have so far managed to avoid a nuclear war anywhere in the world over a period that is now 60 years long. In other words, security is achieved not just by taking very strong steps toward suppressing those who threaten it but by building up an international consensus that supports the concept of limitations on certain kinds of behaviour.

I regret that the noble Lord, Lord Reid, is not in his place as I would have liked to have taken him on directly on this. He referred, for example, to the danger of chemical weapons, which are now alleged to be in Syria. One of the most successful international conventions up to now is that regarding chemical weapons. It has been almost completely obeyed, with some rare exceptions, of which Saddam Hussein in Iraq might have been just one. Generally speaking, chemical weapons have not been used in warfare, not even in civil war—the most awful kind of war—although that may no longer be true in Syria; we do not yet know. I say very strongly that the point about Amendment 77A is to build in an additional exclusion to the suppression of information where it directly affects our commitment and our signature to international conventions and international rights, because they are a critical part of what it is to have both justice and security.

I will go one step further. It is crucial that we recognise that there is, outside the whole of the issues that we are considering here, a distinct obligation on the United Kingdom, which has been in the forefront, largely along with its fellow members of the European Union, in pressing for international conventions and international law. It has, for example, taken a leading part in the non-proliferation treaty on nuclear weapons, on chemical and biological weapons and, on an issue dear to the heart of my noble friend Lord Lester, establishing human rights and the many discussions that we have had on the European Convention on Human Rights, which needs to be protected by national as well as international law. Therefore, when we look at Clause 13, and particularly Clauses 13 and 14 together, we need to be clear that we must protect these international rights and international conventions, and that we cannot do so if a large part of the information relevant to them is simply suppressed.

Amendment 73A lists a whole set of international conventions on genocide, abuse, torture and so forth that should be taken into account and respected in the way the Bill is drawn up, interpreted and—not least—drafted. It is crucial that we have an amendment of this kind to the Bill, which shows the precious nature and status of these elements in international law; otherwise, we are undermining our own signatures and commitment to these pieces of legislation.

Clearly, there is a particular problem. So far our American ally has not been carried by, for example, the idea of the International Criminal Court. It has not been carried, so far, by the acceptance of some version of the European Convention on Human Rights. That means the United Kingdom is in rather a special place. It shares with its great ally, the United States, a commitment to human liberty, the rule of law, and to national law, being close to one another in similar systems. However, it does not share our commitment to international law, in particular along the lines that I have addressed in my remarks.

We have to balance two things that are not easy to balance. We have a commitment to the concept of growing international law, particularly the International Criminal Court, which has become central in insisting that there are such things as crimes against humanity and which must be upheld and respected as a fundamental part of what we mean by international security, if not always national security. Our duty is essentially to protect that element of our commitment and our belief in international law despite the fact that many of our allies do not wholly share it. I mention the United States because of its rich tradition of national law. I could, sadly, mention a number of our other allies which have virtually no commitment to human rights internationally at all.

I am not clear how we handle the issue concerning international relations in Clause 13(5) with no distinction at all between those who share—to use the phrase of the noble Lord, Lord Reid—“our values” and those who simply do not, and have not subscribed to, for example, conventions on torture or degrading and inhumane treatment. At this point, I merely wish to push for consideration of Amendments 77A, 73A and other amendments that address the issue of obedience and respect for international law. If we are going to continue to discuss this whole group of amendments, we really have to take that major elephant in the room into consideration or we will sell ourselves and our world very short.