Oral Answers to Questions
Hywel Francis Excerpts(10 years, 4 months ago)
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Dr Hywel Francis (Aberavon) (Lab)
7. What assessment he has made of the effects on living standards in Wales of the measures announced in the autumn statement.
The Parliamentary Under-Secretary of State for Wales (Stephen Crabb)
The autumn statement set out further measures to ensure that there is a responsible economic recovery. That is the only way to achieve the sustained rise in living standards in Wales and across the UK that we all want to see.
Stephen Crabb
We know that the Labour party discovered food banks only in 2010. Before that, Labour Members denied that they even existed. In the autumn statement and at the end of last year, we saw average wages in Wales increasing at double the rate of inflation and personal disposable income in Wales increasing. The situation is still very challenging for many households in Wales, but the overall picture is positive, and the hon. Lady should support that.
Dr Francis
In my constituency of Aberavon, real wages have fallen by £2,000 in recent years and some 5,000 households have witnessed a reduction in their working tax credits. That comes against the background of rising energy prices, which are higher in south Wales than anywhere else in Britain. Does the Minister agree—as a reasonable person, I am sure that he does—that the best way to address the squeeze in living standards on the people of my constituency and of Wales is to endorse Labour’s proposal of a freeze in energy prices, which would benefit 30,000 households in my constituency?
Stephen Crabb
We are going further than that by delivering a reduction in energy prices of about £50 per household. One of the best ways in which we can equip households in the hon. Gentleman’s constituency and throughout Wales to face these challenging times is by returning more money to their pockets. We are taking 130,000 people in Wales out of income tax altogether and freezing fuel taxes, so that petrol prices are 20p per litre lower than they would have been under Labour’s plans. That is the way to help households meet the cost of living.
Tributes to Nelson Mandela
Hywel Francis Excerpts(10 years, 5 months ago)
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Dr Hywel Francis (Aberavon) (Lab)
It is a pleasure to follow the hon. and learned Member for Harborough (Sir Edward Garnier). I should like to place on record my thanks to you, Mr Speaker, for allowing me to be called early in the debate, and to apologise for my absence earlier in the day. I have not been particularly well but my doctor, Dr Grant, allowed me to come here because I insisted on doing so.
It is with great pride that I speak today not only as the hon. Member for Aberavon but as the Chair of the Joint Committee on Human Rights, whose work has been enormously influenced by the new free democratic South Africa. I have also been a member of the Wales anti-apartheid movement since its earliest days, and I want to pay tribute to my long-standing friend Hanif Bhamjee, who kept the movement going through the most difficult times. He should have been mentioned in Nelson Mandela’s speech in 1998 when Mr Mandela received the freedom of the city of Cardiff, but Hanif insisted that his name be replaced by that of someone of the same age and vintage as Nelson Mandela—namely, Bert Pearce, who was the general secretary of the Communist party in Wales.
Many tributes have been paid to Nelson Mandela, but to me the most striking was the one from his long-term adversary, F. W. de Klerk. He emphasised how important Nelson Mandela had been in convincing so many people, including himself, of the importance of the universality of human rights.
We all have particular memories of Nelson Mandela and, listening to the debate today, it has been striking to hear how diverse those memories are. My most important memory of him is my first memory, and it dates back almost to the beginning of Nelson Mandela’s journey, at the end of the Rivonia trial. I went with my father, who was the general secretary of the south Wales area of the National Union of Mineworkers, to Llandaff cathedral. Like many cathedrals and churches across the world, Llandaff had decided, under the leadership of the World Council of Churches, to hold a vigil through the night at which people would pray and show their solidarity with Nelson Mandela, Walter Sisulu and all the other African National Congress leaders who could be sentenced to death. It was our duty and privilege to be there, just as it is a privilege to recall that moment. Bishop Glyn Simon and Dean Eryl S. Thomas read from the New Testament through the night until dawn. That gathering was remarkable for its diversity of political opinion and faiths. There, in microcosm, was a kind of mirror image of the African National Congress: it was representative of the emerging Wales anti-apartheid movement, and all progressive opinion in Wales was there.
That was the beginning of the long journey that Nelson Mandela started and, we would like to think, of the journey for those in Wales and Britain who were in solidarity with him. The two most important social movements or institutions at the heart of that movement from beginning to end were the churches, led by the Welsh Council of Churches, and the trade union movement, led by the South Wales Miners Union.
My second memory is of two particular moments in Cardiff in December 1969, when Wales played the Springboks. First, when the main march came to the bottom of St Mary street, it met a separate march from the black community in Butetown, which unified with ours. It was led by the Cardiff International athletic club—the CIACs—with the banner that I understand was made specially for the occasion, and with one of its proudest members and sons, the late great Joe Erskine, the British and European boxing champion. Symbolically, the two marches unified at that point. A second, but sadder, moment was when one speaker said that it was a shame for Wales to have the people’s game played behind barbed wire. The one consolation was that there were more people on the demonstration than inside watching the match.
My third memory was of my late hon. Friend the Member for Aberdare and then for Cynon Valley, Ioan Evans, who did so much solidarity work in South Africa. He came with me to deliver a letter from the Bishop of Namibia in exile, Dr Colin Winter—he had been thrown out of Namibia for his solidarity work in support of striking miners there—urging the members of the Cwmbach male voice choir not to go to South Africa. I mention that choir’s name in tribute to them, because they eventually agreed not to go, and I salute them now, although I had never done so. I suppose that that is our little contribution to reconciliation.
Finally, I have a received memory, not a personal one. A matter of a few yards from this Chamber, the then Leader of the Opposition, Neil Kinnock—he played an enormous part in the anti-apartheid movement in Wales and Britain, and internationally—welcomed Nelson Mandela to the shadow Cabinet room in 1990. It was very striking that Nelson Mandela paused and looked at a particular Welsh miners’ banner that had been made in 1961, a year after the Sharpeville massacre. It was in the brilliant, beautiful colours of the African National Congress—black, green and gold. Importantly, the banner showed a white miner shaking hands with a black miner, with a miner’s lamp shining between them to symbolise the light of the world. I had arranged for the banner to be there, and I had insisted that the Welsh slogan, not the English one, was shown. Nelson Mandela was puzzled by the slogan, “Mewn undeb mae nerth a heddwch”—in unity there is strength and peace—and he asked about its significance and meaning. Neil Kinnock replied, “You will understand when I tell you that that is the banner from the South Wales miners. That is the Abercraf miners’ banner.” Neil said to me, with pride, that Nelson Mandela had said, “I do understand.”
I will end by telling the House that it has been arranged for that banner to return to the shadow Cabinet room. I spoke to the librarian of the South Wales Miners’ Library, Sian Williams, earlier today and she is happy for it to be returned. I suggest that it should be returned on the condition that it stays in the shadow Cabinet room in perpetuity, irrespective of who occupies that room, as a salute to Nelson Mandela, his comrades in the ANC and our comrades in the Anti-Apartheid Movement who did so much to remove apartheid in South Africa.
Justice and Security Bill [Lords]
Hywel Francis Excerpts(11 years, 2 months ago)
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Mr Clarke
I must conclude. I apologise to those distinguished Members to whom I have not given way.
I remind Members of the extraordinarily important objectives that we have for the Bill and which the Government’s amendments support. I do not think that the Opposition wish to destroy the policy of the Bill, but they have tabled amendments that would have that effect. The Bill will ensure that the increasing number of civil claims brought against the Government alleging British involvement in kidnap and torture are for the first time fully examined by the courts and that the agencies are better held to account for their actions both by Parliament, through the Intelligence and Security Committee, and in the courts.
The Bill will enable us to reassure the Heads of State of our closest intelligence-sharing partners that we will keep their secrets. The fact that we cannot do this at the moment has already led to the US putting measures in place restricting intelligence exchange and has seriously undermined confidence among our key allies. As I have already mentioned, the Bill will also stop us having to make unnecessary payouts to people who have not proved their case and reduce the risk of British taxpayers’ money being used to finance terrorism.
We have revised the Bill as far as we can. We all agree on the rule of law and with the principles of justice in this country, but I invite the House to apply a modicum of common sense and a sense of national security to its considerations. We have debated this endlessly. Never can a Government have been quite so responsive to the points put to them, and I fear that I must resist the further pressure.
Dr Hywel Francis (Aberavon) (Lab)
It is a pleasure, and it is certainly a challenge, to follow the Minister without Portfolio.
On Second Reading, I welcomed the improvements that had been made by the House of Lords, but expressed the view that more significant improvements were required. I hoped that the Bill would be amended in Committee to make it compatible with the basic requirements of the rule of law, fairness and open justice, which, of course, the whole House would wish to endorse. Regrettably, however, the amendments made by the Government in Committee have removed or watered down many of the improvements made in the other place.
In an earlier report on the Bill, the Joint Committee on Human Rights, which I have the honour of chairing, considered carefully whether the Government’s amendments gave effect to its recommendations. In its second report, published last week, it reached the clear conclusion that they did not, and recommended further amendments. The day after we agreed our report, the Government tabled further amendments. I think—I choose my words carefully—that that was regrettable. We would have liked to scrutinise those amendments properly. The Minister, however, told the Daily Mail that the Government had now met every sensible legal objection that there could be to the Bill. I welcome some of the latest Government amendments, as does my Committee, but I must add that they meet only one of the seven main concerns expressed by the Committee in the report published last week.
Let me deal first with equality of arms in the ability to apply for a CMP. We welcome and support the Government’s amendment, which is the only one that gives effect to a recommendation in last week’s report. If we are to have CMPs in civil proceedings, it is vital for individuals such as torture victims who are bringing cases against the Government to have the same opportunity as the Government to apply for them, but how does the Minister propose to ensure that such claimants are aware that a CMP might help their case? Can he reassure us that special advocates will be appointed whenever the Government apply for sensitive national security material to be excluded from a case on grounds of public interest immunity, and also that those advocates will be able to communicate to excluded parties the fact that a CMP might help their case? I think that those are both very important questions.
Let me now deal with judicial balancing at the “gateway”—the so-called Wiley balance, which has already been discussed a great deal today. I support the amendment proposed by the shadow Justice Secretary, my right hon. Friend the Member for Tooting (Sadiq Khan). In fact, I shall be supporting quite a few of his amendments, not because of any party loyalty but because he is supporting my Committee’s recommendations.
The Government’s amendments removed from the Bill the Wiley balance between the degree of harm to national security on the one hand and the public interest in the fair and open administration of justice on the other. That important safeguard had been inserted by the House of Lords, following a recommendation from my Committee. As the Committee explained in its report, the purpose of our recommended amendment inserting the Wiley balance was to ensure that the court considered the public interest in the fair and open administration of justice.
Michael Ellis (Northampton North) (Con)
May I ask whether the Joint Committee also considered the human rights of society more widely, including the right not to see millions of pounds of taxpayers’ money given to undesirable elements and individuals because cases must be settled immediately rather than explored properly, evidentially, through the courts?
Dr Francis
I welcome the hon. Gentleman’s point. These are very important issues, and the Committee was cognisant of them.
To return to the point I was making, that purpose is not served if the Bill does not contain any express requirement that the court conduct such a balancing exercise before deciding whether to allow a CMP to be used. By deleting the Government’s new condition that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration and reinstating the Wiley balance as a precondition for a CMP, the amendment would restore a crucial safeguard for open justice.
On last resort, I support the amendment tabled by the shadow Secretary of State for Justice, which would give effect to my Committee’s recommendation. The Committee, in its report last week, explained why it does not accept the Government’s reasons for removing the “last resort” amendments made by the House of Lords, which are based on a misunderstanding of the effect of the provisions. The Government’s commitment to ensuring that CMPs are available only in those cases where they are necessary is most welcome. However, in order to give effect to that intention the Bill must be amended so as to reinstate the condition that the court is satisfied that a fair determination of the issues in the proceedings is not possible by any other means.
The requirement that the court consider whether a claim for PII could have been made must also be reinstated. The Government’s latest amendment, which requires the court to consider whether the party applying for a CMP considered applying for PII, does not go far enough, because it does not require the court itself to consider whether PII is a suitable alternative to a CMP.
Mr Kenneth Clarke
As I have already argued, that sounds as though it is demanding that both the Secretary of State and the court go through the full process of PII before even getting on to applying for a CMP. From what the hon. Gentleman is saying, it sounds as though that is exactly what the Committee is contemplating, but how can that be justifiable when all the people concerned in some of these cases will rapidly come to the conclusion that they are wasting time, money and effort on a totally unnecessary exercise and it would obviously be more sensible to go into a CMP and consider the nature of the evidence?
Sadiq Khan
I think that the Minister without Portfolio is in danger of not understanding his own Bill or the amendments. The amendment would simply require the court to “consider” whether a claim for PII could have been made in relation to the material. That is the same word used in Government amendment 47, which proposed that the Secretary of State must consider whether PII should be used.
Dr Francis
My right hon. Friend has explained that better than I could.
I have a question for the Minister, if he will listen to it, about the effect of the Bill on arrangements known as confidentiality rings. Will he repeat to the House the unequivocal reassurance he gave my Committee that the Bill, as it stands, makes no difference to confidentiality rings, that they will remain available under the Bill as they are now, and that the Government have no intention of taking away the possibility of such arrangements being used as an alternative to CMPs? I am not sure whether he was listening to that, but no doubt his supporters and officials can assist him later.
On the question of judicial balancing in the CMP, I again support the amendment tabled by the shadow Secretary of State. It would give effect to my Committee’s recommendation that the Bill be amended to ensure that a full judicial balancing of interests always takes place within the CMP, weighing the public interest in the fair and open administration of justice against the likely degree of harm to the interests of national security when deciding which material should be heard in closed session and which in open session. My Committee’s report explains why express provision for judicial balancing of interests needs to take place within a CMP. It is essential to ensure that the judges have the discretion they require to ensure that the Bill does not create unfairness.
Finally, on the question of gisting, I support the shadow Justice Secretary’s amendment, which, once again, would give effect to my Committee’s recommendation that this crucial safeguard be included in the legislation. On Second Reading, I said that the House needs to listen to the expert views of the special advocates and act on their recommendation that the Bill must include what has become known as a gisting requirement: a requirement that the party excluded from the courtroom must be given a summary of the closed material that is sufficient to enable him to give effective instructions to his lawyers and the special advocate who represents him in his absence. The special advocates have forcefully repeated that view in their most recent submission to my Committee. The courts have held that such a requirement is necessary in order for the legislation to be compatible with the right to a fair hearing, and the House should make it absolutely clear that that is what it intends, by writing this safeguard into the Bill.
Mr Slaughter
I am indeed, Mr Deputy Speaker.
The point I was trying to encapsulate is that there is so much in the Bill that is new and highly controversial that it seems utterly right that we should not have to wait five years or have only a single process of review, and that we should have instead a process of renewal. That is to say that this House and the other place should have the opportunity to reject the Bill once they have seen it in operation.
Dr Francis
May I place on record the support of the Joint Committee on Human Rights for my hon. Friend’s amendment? It is extremely important and one that is part of my Committee’s most recent report.
Mr Slaughter
I am most grateful, and I think the whole House is grateful for the Joint Committee’s work: it has taken a forensic interest, produced three substantive reports and taken a huge amount of evidence. We would all be a lot poorer in discussing this matter were it not for its role.
The Joint Committee felt able to summarise the need for the annual renewal provision in one paragraph because it had highlighted the difficulties that arose from the rejection of the Wiley balance, the rejection of last resort, the rejection of “PII first”, and the rejection of the Wiley balance in the CMP, a matter that I believe we will have an opportunity to vote on when we press amendment 38 to a Division at the end of the debate. That has not been discussed at any length and all I will say is, as a paragraph of the Joint Committee’s report makes clear,
“The Special Advocates…consider that once a CMP is ordered, and the court has to decide which documents will be “open”…and which “closed”, the court should be required to perform the Wiley balance between national security on the one hand and the fair and open administration of justice on the other.”
That is a point that the right hon. and learned Member for Rushcliffe (Mr Clarke) constantly rejects in what appears to be a wilful misunderstanding of the way the PII process works, or indeed the way that the Wiley balance works. All of the proposals, which have had great support from the Joint Committee, the other place, many parties in this House and a substantial number of senior Members on the Government Benches, are dismissed out of hand by the Government in the belief that the new formulation, the revised new formulation or the revised, revised new formulation is good enough. For all those reasons, it will be necessary to have the annual review process.
Finally, not only are there issues with which we are now familiar, some of which we have just voted on, but the Government have slipped in new proposals. The hon. Member for Cambridge mentioned amendment 28. We believe, notwithstanding the Government’s reassurances, that the aim is to destroy the use of confidentiality rings. Government amendment 47, which we believe allows—[Interruption.] The Government know what their own amendment says. There are serious, additional clauses, which I am sure will be raised in the other place. There has not been the opportunity to raise them on the Floor of the House this afternoon. They have been introduced on Report and not properly debated.
Mr Tyrie
I wish to echo the words used a moment ago in support of the work of the Joint Committee on Human Rights, which has done some excellent reporting on this matter—its investigations and inquiries have been very good—for which I am very grateful to its members.
There are three issues before us—reporting, renewal and review—but I will touch only on renewal and review. I have been arguing for some kind of renewal or sunset clause from the moment I first grasped the implications of the Bill. In the opinion of very many people, including, most notably, the special advocates, who are the only people with extensive experience both of CMPs and PII, CMPs will not make Britain more just, and neither, in my view, will they make Britain more secure. I will be supporting new clause 4, as proposed by the JCHR and tabled by the Opposition Front-Bench team, to introduce a renewal clause, and I will be doing so, above all, because of something the Minister without Portfolio said early on in his speech. He said that the Government did not know what effect the new process would have. That is the clearest indication of something that needs very careful and periodic renewal and review.
I recognise the force of some of the arguments against annual renewal put by the Minister this evening—his thought had occurred to me before he uttered it —particularly in respect of this type of legislation, where there would be so much litigation. Without having thought through all the arguments as carefully as some others, I have a preference for renewal once a Parliament, but the Government have not offered a renewal clause at all. That is a mistake and I hope that they will reconsider.
The Government are offering a review, but even that is defective. For a review to be credible, it must be independent, and be seen to be independent, of the Executive, but clearly that will not be the case with this review. Under new clause 6(1), the Secretary of State acting alone will appoint the reviewer. In another context, this is exactly the problem that the Treasury Select Committee faced when the Chancellor created the Office for Budget Responsibility to make forecasts for him. The Chancellor wanted those forecasts to be seen to be independently prepared, but the Treasury Committee pointed out to him that if he, acting alone, appointed the chairman of the OBR, nobody would believe in its independence.
After discussions with the Committee, the Chancellor decided that the chairman of the OBR should be appointed jointly by him and the Committee. I urge the Government, when they reconsider this matter in the Lords, and their lordships, when examining new clause 6, to make similar provision for the appointment of the reviewer of CMPs. In my view, the reviewer should be appointed only by agreement between the Secretary of State and the JCHR.
Dr Francis
I thank the hon. Gentleman for his kind words about the work of my Joint Committee. I am very attracted to the idea he has proposed. It is not the first time I have heard it, because we had this discussion recently, but I am pleased that he has proposed it on the Floor of the House.
Dr Francis
I see at least one member of my Committee nodding. I will be putting it to my Committee next week that we ought to discuss the idea, and I hope that it will be endorsed and then officially become part of our work. After that, I hope that it will see the light of day and be endorsed by the Government—if not here, then in the other place.
Justice and Security Bill [Lords]
Hywel Francis Excerpts(11 years, 5 months ago)
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Dr Francis
Do I detect from the warm way in which the Minister responded and referred to the report of the Joint Committee on Human Rights that he will be minded to accept many of its recommendations?
Mr Clarke
Minded to? Certainly—we will accept some of them. I speak warmly of the Joint Committee because I do not believe it was pursuing objectives that differed from mine or those of my colleagues. I think it will probably fall to the Under-Secretary of State for the Home Department, my hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire) to explain in Committee why we are not wholly convinced that every one of the amendments is quite right, or even that some of them would have the effect that the Joint Committee proposed. I will not, however, get into that level of detail so early in a Second Reading speech, if I may be allowed not to do so.
We discussed the Green Paper about a year ago, and I recall that it was a comparatively non-controversial occasion. Such was the general satisfaction and understanding on all sides that I left the Chamber wondering whether I needed to have bothered to make an oral statement. Quite a lot has happened since then, but I trust it has not shifted the opinion of the Members who joined in the debate at that time, particularly that of the shadow Justice Secretary, the right hon. Member for Tooting (Sadiq Khan). I still strongly agree with what he said, which I shall quote:
“We need, as a matter of urgency, to bolster the safeguards and scrutiny mechanisms concerning issues of security and intelligence.”—[Official Report, 19 October 2011; Vol. 533, c. 901.]
I am glad to see the right hon. Gentleman nodding his head in response to his own quotation. I was glad to read in a recent interview in The Guardian that he still believes that, as he said:
“In two and a half years’ time, it could be me in that seat making that tough decision. So it is very important for ministers to have the opportunity to protect sources, to protect delicate operations and all the rest of it. They shouldn’t be jeopardised by a civil action.”
I will not comment on the right hon. Gentleman’s political optimism and ambition to occupy any seat at all, but he is certainly right, in my opinion, to identify a serious problem with the current arrangements. At the moment, total secrecy is all that happens to the sensitive intelligence information in far too many cases and no judicial judgment is pronounced on the merits of plaintiff versus defendant. I believe that the present system needs to be reformed urgently. That is why the principle of the Bill is certainly necessary.
In support of the need for change, let me remind the House of a letter written to The Times newspaper last month by a number of individuals for whom I personally have the greatest respect. The signatories included the former Lord Chief Justice, the noble and learned Lord Woolf; the former Home Secretary, Lord Reid; and my right hon. Friend Lord Mackay of Clashfern, a former Lord Chancellor. I am sure we all agree that all those people are totally committed to the rule of law and the principles of justice. In their letter they explained:
“In national security matters our legal system relies upon a procedure known as public interest immunity…Under PII, evidence which is deemed to be national security sensitive is excluded from the courtroom. The judge may not take it into account when coming to his or her judgment.”
This procedure, they say, is
“resulting in a damaging gap in the rule of law.”
They are right to say that.
In my opinion, it has become well nigh impossible for British judges to untangle, and adjudicate on, claims and counter-claims of alleged British involvement in the mistreatment of detainees. If we, as citizens, want to know whether the Security Service could challenge and rebut what is claimed against it, no judge can give us guidance as things stand. Some of the allegations of British involvement in the mistreatment of detainees are really serious, and I do not think that the system should continue to prevent judges from scrutinising the secret actions of the state in such cases.
Mr Clarke
Nothing in the Bill will affect the criminal law. No one will be prosecuted on the basis of secret evidence. However, there are plenty of cases—for instance, those involving MI5 or involving victims of certain types, such as vulnerable victims—in which it is proper to screen witnesses from public view, or otherwise protect them. The Bill, however, has nothing whatever to do with criminal cases.
The purpose of closed procedures is not just to ensure that no one can see what the agent looks like; there are some cases in which we cannot let people know what the agent was doing. The plaintiff may have been compromised as a result of terrorist or other activity, and he and his friends may be dying to know how they were caught. What were the British agents doing that put them on to it? They want to know who shopped them, and that will make things very difficult for a person who they come to suspect is the source of the material that is emerging. As I think everyone knows perfectly well, it is not possible to share that information with the parties in each and every case of this kind. However, while some people might consider it satisfactory to say “Well, in those cases the Government never defend themselves and we just pay millions of pounds”, I really do not think that we need tolerate that situation any longer.
Dr Francis
Given what he said earlier about closed material procedures, how would the right hon. and learned Gentleman respond to what Lord Kerr said recently in the Supreme Court? He said:
“The central fallacy of the argument”—
the Government’s argument, that is—
“lies in the unspoken assumption that, because the judge sees everything, he is bound to be in a better position to reach a fair result. That assumption is misplaced. To be truly valuable, evidence must be capable of withstanding challenge.”
Mr Clarke
I was intending to return to the details of closed material procedures later. We could easily trade quotations, because various judges and legal authorities have expressed different views.
Closed material procedures sometimes achieve success. We have them now—the previous Government introduced them—and as I shall say later, as I should save it until I get to the relevant part of my speech, there are cases in which the special advocates have overturned the Government’s case. The most well known case is that of Abu Qatada, who won in a closed material procedure before a British judge only about a month ago—
Dr Hywel Francis (Aberavon) (Lab)
I welcome the contribution of the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), who joined me last week in seeking—and, I think, securing—clarification from the Prime Minister of the Government’s intentions. May I say how pleased I am by the desire among Members on both Front Benches to improve the Bill in Committee?
The Joint Committee on Human Rights, which I chair, spent a long time scrutinising the proposal before the House today. We took the unusual step of holding an inquiry into the Green Paper that preceded the Bill because some of the proposals in the Green Paper constituted such a radical departure from the country’s constitutional tradition of open justice and fairness that we thought they deserved the most careful scrutiny.
Our examination of the Green Paper revealed serious human rights concerns about a number of the proposals. The Government accepted some of our recommendations on the Green Paper, and when the Bill was introduced in the other place they made some changes to the original proposals. The Government’s decision not to extend closed material procedures to inquests and the narrowing of the scope of the proposals to national security material were particularly welcome.
The Bill as introduced still represented a radical departure from our traditions of fair and open justice. Amendments made in the other place, based on some of the recommendations made by my Committee, have improved the Bill, but I want to explain why the Government still have a long way to go in improving this measure before they can plausibly claim that it is compatible with British traditions of fairness and openness, of which this House has been a proud defender.
Our starting point must be a recognition of how radical a departure from our common law constitution it is to extend closed material procedures to civil proceedings. During my Committee's scrutiny of the Bill the Government appeared to be in denial about this, but every other witness before our inquiry agreed about the enormity of what the Government propose. Let us not forget that in the case of Al-Rawi the Supreme Court refused to countenance such a radical change by judicial development of the common law.
Why does the Bill amount to such a radical departure? There are two main reasons. First, we in this country have always enjoyed a right to an adversarial trial of a civil claim. This includes the right to know the case against us and the evidence on which it is based, the opportunity to respond to evidence and arguments made by the other side, and the opportunity to call witnesses to support our case and to cross-examine opposing witnesses.
The second main reason why the Bill amounts to a radical departure from our constitutional traditions is that it derogates from the principle of open justice—the principle that litigation should be conducted in public and that judgments should be given in public, so that the media can report fully and accurately to the public on what the courts decide. One of the central questions for the House is this: have the Government demonstrated, by reference to sufficiently compelling evidence, the necessity for such a serious departure from the fundamental principles of open justice and fairness? My Committee subjected to careful scrutiny the evidence that the Government say demonstrates the necessity for making closed material procedures available in civil proceedings. We appreciated the Government’s difficulties in proving their case with reference to ongoing cases. We were anxious to give them a proper opportunity to prove their case and did so, but the Home Secretary refused to allow the special advocates to see the material that had been shown to the independent reviewer of terrorism legislation. The Government were unable to provide the Committee with a detailed breakdown of the civil damages claims pending against them in which sensitive national security information is centrally relevant to the case.
The Committee’s report on the Bill states that we remain unpersuaded that the Government have demonstrated by reference to evidence that there exists a significant and growing number of civil cases in which a closed material procedure is essential, in the sense that the issues in the case cannot be determined without a closed material procedure. I am sympathetic to the arguments made by many human rights organisations, including Liberty, Justice and Amnesty International. They argue that, because the Government have not made their case for introducing closed material procedures into civil proceedings, that part of the Bill should be removed altogether. Indeed, I note that a number of eminent lawyers in the other place voted to do just that.
My Committee’s judgment, however, is that the Bill is likely to pass in some form, and it is therefore better to seek to improve it with amendments than seek to make it compatible with the important traditions of open justice and fairness. I will therefore not vote against the Bill today, but the Government are on notice of the need to show us the evidence that demonstrates the necessity for extending closed material procedures into civil proceedings.
The amendments made to the Bill by the House of Lords made some of the necessary improvements, but I shall conclude by outlining four areas where the Committee and I believe improvements are required. First, we need provision for full judicial balancing of interests to take place within a closed material procedure. The House of Lords—by an overwhelming majority—amended the Bill to ensure that there is full judicial balancing of interests at the gateway stage, when the court decides whether a closed material procedure is appropriate. However, the amendment to ensure that the same judicial balancing takes place within the closed material procedure, when the court is deciding whether material should be closed or open, was defeated in the Lords late at night. Labour backed the amendment recommended by my Committee in the Lords, and I hope it will do so in this House. The amendment is essential to ensure that judges have the discretion they require to ensure that the Bill does not create unfairness.
Secondly, the House needs to listen to the expert views of the special advocates and act on their recommendation that the Bill must include what has become known as a gisting requirement, which has been referred to. My Committee recommended that such a requirement be included in the Terrorist Asset-Freezing etc. Act 2010, but the Government resisted, and the High Court last week held that such a requirement is necessary for the legislation to be compatible with human rights. The House should not leave it to the courts to correct the Government’s mistakes, so we should amend the Bill to give effect to the Committee’s recommendation.
Thirdly, the Bill needs to make provision for regular reporting to Parliament, as has been suggested. The Secretary of State should report regularly for independent review by the independent reviewer of terrorism legislation, and for annual renewal, to ensure a regular opportunity for Parliament to review the operation of the legislation and to debate its continuing necessity.
Fourthly and finally, the Bill needs to be amended to provide a more proportionate response to the problem of preventing courts ordering the disclosure of national-security sensitive information.
In conclusion, I look forward to the House, particularly in Committee, living up to its responsibility to ensure that the legislation we pass is compatible with the basic requirements of the rule of law, fairness and open justice.
Oral Answers to Questions
Hywel Francis Excerpts(11 years, 7 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr Jones
The hon. Lady has identified a problem that needs to be resolved, in that the Welsh Language Commissioner is, of course, a position that was created by the Welsh Assembly. It is important that in the non-devolved areas sufficient support should be given to the Welsh language, and I am pleased to report that my office is prepared and anxious to undertake that duty.
Dr Hywel Francis (Aberavon) (Lab)
2. What recent discussions he has had on the future of the steel industry in Wales.
The Parliamentary Under-Secretary of State for Wales (Stephen Crabb)
I have had regular discussions with ministerial colleagues on issues that affect Wales, including the future of the steel industry.
Dr Francis
I thank the Minister for his reply. May I warmly congratulate him and his colleague on their new positions, which I believe were as a consequence of their apprenticeships on the Welsh Affairs Committee?
Tata Steel is a major investor and employer in my constituency. Nearly £250 million has been invested recently in the steel plant at Port Talbot, which is strongly supported by the Welsh Government, the local council, the local trade unions and the local management. This is a strong regional partnership, so what will the Wales Office do to assist the steel industry in these challenging times? Will the Secretary of State speak to the Business Secretary, his Cabinet colleague, to address the issue of a level playing field in energy costs? Will he visit the steelworks in my constituency at the earliest opportunity?
Stephen Crabb
I thank the hon. Gentleman for his question and for his kind remarks. One of the most enjoyable parts of my first term in Parliament was serving under his chairmanship on the Welsh Affairs Committee.
The Government absolutely recognise the strategic importance of Tata Steel as an inward investor into Wales, and the Wales Office has close links with the company. I will certainly speak to the Business Secretary about what more we can do to support Tata’s inward investment. We do recognise that particular issue associated with energy costs. That is why we have made £250 million available for intensive energy users, and I hope that the hon. Gentleman and industries in Wales will be making representations about how they can benefit from that money.