Justice and Security Bill [HL]

Lord Beecham Excerpts

Tuesday 26th March 2013 Lords Chamber

The Government have been urged to rethink their approach. We have listened and we have brought forward, substantially, a new structure for closed material proceedings. We have embraced the spirit of the amendments passed by this House and recast them to give them practical effect. I commend the amendment.

[Lord Beecham]

My Lords, I wish to speak to Amendment 6A as an amendment to Amendment 6.

During the Second Reading debate on the Bill I referred to the obvious difficulty that your Lordships faced in calibrating the balance between the two desiderata of justice and security. There were some then, as there are now, who took the view that such an exercise was unnecessary, and indeed wrong in principle, and that the interests of justice must at all times and in all circumstances be paramount. On that basis, they urged that Part 2 of the Bill dealing with closed material procedures should be struck out. That was not the view of your Lordships’ House which, following the advice of the Joint Committee on Human Rights and the eloquent and forensic advocacy of the noble Lord, Lord Pannick, in particular, chose instead to amend the Bill and to circumscribe the application of a new procedure.

Those who would have wished to prevent any departure from the traditions of our system, which have long required that a party in a civil case should know the case he has to meet, must acknowledge that such a course is now no longer open to us. Our task, therefore, is to consider the Commons amendments and determine whether they have gone far enough in striking that delicate balance or whether, as I believe, further adjustments need to be made. I acknowledge and welcome the Government’s acceptance of some of the changes agreed by this House. In particular, as the Minister has pointed out, there is much more judicial involvement in the process than the Bill in its original form envisaged.

I also remind your Lordships of the serious implications for our system of justice of the Bill as it now stands and, to be frank, as it would stand even if, as I hope, we make further amendments and invite the House of Commons to think again about a small number of important issues. To a long line of pronouncements in this area by the most eminent judges we can now add the recent concerns expressed by the president of the Supreme Court, the noble and learned Lord, Lord Neuberger. Nor can we overlook the cavalier and, it might be thought, analogous approach of the Government to such different but cardinal areas as the deployment of emergency and retrospective legislation, demonstrated as recently as last Thursday and last night over the Jobseekers (Back to Work Schemes) Bill.

That is why we need to build on the progress made thus far in improving this Bill in three areas in particular. Two are embodied in amendments in this group in my name and that of the noble Lord, Lord Macdonald of River Glaven, dealing with what we may term, by way of shorthand, as the principles of last resort and judicial balancing respectively, reflecting the amendments moved so powerfully by the noble Lord, Lord Pannick, who would be moving them today had he been able to be present. The third area is that of a process for renewing the legislation after a period, to which we will come later. I propose to deal principally with the amendment in my name, but I whole heartedly endorse, and will say a word or two about, the amendment in the name of the noble Lord, Lord Macdonald. I am authorised by the noble Lord, Lord Pannick, to say that he entirely supports these amendments. His recent article in the Times makes his views clear.

The first amendment, Amendment 6A, effectively seeks to restore the position set out in the Bill which left this House, in making the use of closed material procedures a last resort. Amendments 16A, 16B and 16C import the same principle into the process for the court’s review of its decision contained in government Amendment 16. I consider these to be consequential upon this first amendment. I trust the House will forgive me if I remind noble Lords that closed material procedures allow the use of material not disclosed to the other party, who is therefore not able to give effective instructions, even to the highly security-vetted special advocate appointed to assist him. The amendment seeks to correct this by requiring the court to consider whether a fair determination of the proceedings is not possible by other means, such as some of the processes available under PII, the public interest immunity procedure. These include a range of options, such as the gisting of the case, redaction, the giving of evidence by security agents from behind a screen, and more besides.

In relation to PII, it is interesting to note that the Government appear to be taking a somewhat inconsistent approach. Inquest proceedings, after all, will not be covered by the provisions of the Bill. The Government have constantly represented PII as a lengthy process which leaves them in a position where they might feel compelled to choose to settle a case rather than disclose information. Sweeping, if unsubstantiated, claims have been made about millions of pounds having been paid, or potentially having to be paid, to unidentified numbers of unidentified terrorists, to be used for unidentified purposes. Perhaps the noble and learned Lord could enlighten us as to the number of claimants who have received compensation, and who have been charged with any offence, been made subject to a control order or similar constraint, or had their compensation frozen—as it could be—on the grounds that it might be used for terrorist purposes. After all, the Minister without Portfolio, Mr Clarke, said:

“We expect only a handful of cases”.—[Official Report, Commons, 04/03/2013; col. 705.]

The notion that there is a great tidal wave of cases waiting to sweep over us and our system, involving vast expenditures, seems to have been exaggerated, to put it mildly, in the light of the Minister’s remarks just a week or two ago.

As the noble Lord, Lord Pannick, pointed out in his article, under the PII procedure, the courts are,

“able to reconcile justice and security by taking steps”,

such as those to which I have referred. He went on:

“Only if those methods cannot protect security, and allow for an open assessment or at least a gist of the case against the claimant, should the court consider moving into a closed session”.

He went on to dismiss the Government’s contradictory responses, namely that judges would adopt that approach in any event, and that such a safeguard would be too time-consuming. He also went on to rebut the Government’s counterargument against balancing the interests of national security against the public interest in the fair and open administration of justice, pointing out that this is exactly what the PII procedure involves. He is of course, as the noble and learned Lord has pointed out, not the only Member of your Lordships’ House to have contributed to the columns of the Times on these issues. His article may be seen in part as a reply to a letter from the noble and learned Lord, Lord Woolf, expressing approval of the amended Bill’s provisions in relation to CMPs, to which he has referred at some length.

It is with more than usual trepidation that I join the noble Lord, Lord Pannick, special advocates, the Joint Committee on Human Rights and the Equality and Human Rights Commission in respectfully dissenting from the conclusions of the noble and learned Lord, Lord Woolf. These, while properly welcoming the positive responses by the Government to amendments carried by this House, for which the noble and learned Lord voted, effectively endorse their position on the issues of last resort and balancing. The noble and learned Lord referred in his letter, not unreasonably, to the fact that in a minority of cases, and I use the same quotation as the noble and learned Lord:

“The interests of justice are not served when courts are blindfolded”.

The consequences of closed material procedures are that claimants are both blindfolded and effectively gagged, even in cases of habeas corpus. The Minister without Portfolio has, after some initial confusion about the matter, conceded that the Bill would apply to this, one of the most fundamental parts of our English common law. It is not unreasonable therefore to require the court to determine that the case cannot fairly be decided by any other means, rather than it having merely to be satisfied that the Secretary has, in the words of proposed new subsection (1F),

“considered whether to make, or advise another person to make, a claim for public interest immunity”.

That sets a very low bar for the Secretary of State to surmount. He has only to have considered it. Concern about the Government’s overall position can only be enhanced, despite their bland assurances, by the form of words set out in proposed new subsection (1D) in Amendment 6, which makes two substantial changes to the amendment carried here on the recommendation of the Joint Committee on Human Rights. Members may recall that Clause 6(2) of the Bill which left us stipulated that the court may make a declaration allowing CMP if, were the material to be disclosed, the degree of harm to the interests of national security would be likely to,

“outweigh the public interest in the fair and open administration of justice”.

Under Amendment 6, proposed new subsection (1D) changes this to impose the condition that,

“it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration”.

Openness is therefore replaced by effectiveness, a very different concept. Effective, one might ask, from whose perspective? Is it that of the party, presumably the Government? Openness now counts for nothing. The phrase “in the proceedings” is added, excluding the wider considerations of the public interest. The concept of balancing the two interests disappears. This applies also to Amendment 16, on which the noble and learned Lord seeks to rely.

The Minister without Portfolio likes to paint with a broad brush. He claims that the effect of these amendments would require the Secretary of State and the court to go through all the documents before an application for a CMP is made. They would not. As the special advocates point out, disclosure under present statutory CMPs is no less time-consuming than PIIs. Once having examined the documents, the court could consider whether PII could lead to a fair trial without having to undergo a full PII exercise. The Secretary of State has only to consider whether a PII claim could have been made. He is not under an obligation to go through every document.

Mr Clarke’s adherence to liberal principles over the years has earned him many admirers in a lifetime in politics, although not necessarily within his own party. I hope that, by endorsing these amendments, the House can not only help to minimise the damage threatened to the most valued elements of our jurisprudence and judicial system, but help rescue the Minister without Portfolio from self-inflicted damage on his reputation for upholding those liberal values, as he comes to the end of his most distinguished career. In the name of our cherished traditions of fair and open justice, I invite your Lordships’ House to support the amendments.

[Lord Macdonald of River Glaven]

My Lords, I speak to Amendment 6B in my name. Everyone accepts that CMPs represent a significant departure from normal rule of law principles. Many people accept that they also contain a strong strand of unfairness, and that this unfairness consists in the exclusion of one of the parties from a critical part of the proceedings, perhaps even that very part of the case in which the defining issue is decided. Therefore, the claimant can never know the evidence that has damned his cause—it is never revealed to him.

Let us be blunt about this. The party withholding the material, and gifting it to the judge in secret, will almost always be the Government. The illiberalism inherent in the Bill seems to me to lie in this. CMPs as presently constituted are not fair, because they do not and cannot deliver balanced justice between the citizen and the state. This is the finding of the JCHR; it is the finding of those eminent lawyers appointed by the Government to conduct closed proceedings, the special advocates; and it was the overwhelming conclusion of this House when last we debated these measures. It is no doubt in recognition of this central unfairness that the Government insist, and the Secretary of State has repeatedly insisted, that it is their fervent desire that CMPs should only ever be used as a last resort.

--- Later in debate ---

Moved by

[Lord Beecham]

6A: Line 2, at beginning insert “If the court considers that a fair determination of the proceedings is not possible by any other means,”

[Lord Beecham]

My Lords, your Lordships will be at one with the noble and learned Lord, Lord Mackay of Clashfern, in agreeing that it is the prime duty of government to protect the national security. That is currently being achieved by a variety of means, including PII. It would continue to be achieved under the terms of this amendment if your Lordships’ House agrees to it and if that is confirmed by the House of Commons. Your Lordships’ House is usually and naturally reluctant to overturn Commons amendments. There can be no better or more necessary occasion to do so than when issues profoundly affecting our system of justice or the rights of citizens are at stake. This is just such an occasion. I beg to move and test the opinion of the House.

--- Later in debate ---

[Lord Butler of Brockwell]

My Lords, I want to reinforce what the Minister has said about the prejudice which a sunset clause would have to the confidence which partners would have in us. I noticed that the noble Lord, Lord Marks, was modifying his proposals in his speech because he has recognised that.

Let us suppose that an ally is at this moment considering whether to pass confidences to the Government. If those confidences were held by the intelligence services they would be protected under the Bill. If they were held by another department, they could be protected only by a certificate passed by a Secretary of State. If at this moment the ally was considering whether to pass those confidences to this country and was uncertain whether in four or five years’ time there would be closed procedures under which that certificate could then be considered, it would be a matter of uncertainty whether those confidences would be protected in four or five years’ time. That would affect the willingness of allies to pass secrets to us now. It would, therefore, be very damaging if a sunset clause in the form proposed originally by the noble Lord, Lord Marks, supported by the Opposition, were to pass into law. I very much hope that the House will not support that proposal.

[Lord Beecham]

My Lords, I support the amendments tabled by the noble Lord, Lord Marks, and I am prepared to say at this stage that I will not be pressing my own amendment, which is on similar terms at least to the last amendment that the noble Lord has moved.

The noble Lord, Lord Butler, has adumbrated a case in which it would seem almost that the doctrine that no Parliament can bind its successor is somehow to be disregarded. Of course, it would be open to any subsequent Parliament to amend this law in any event. Any nation dealing with us will be aware of that. There is not, therefore, a great deal of force in what the noble Lord has been proposing as a justification for supporting the Government’s position on this matter.

The question arises: what is the point of a review? If a review is to take place—and the Government have given welcome acceptance to that concept—where does it lead? Apparently it would lead nowhere. The whole purpose of the review in these circumstances would be vitiated. There needs to be a review, given the nature of the change in our proceedings for us to establish a principle that there should be a renewal, and certainly on that basis I am prepared to support the noble Lord’s amendments.

[Lord Wallace of Tankerness]

My Lords, this has been a relatively short debate, but nevertheless important points have been made by my noble friend Lord Marks and the noble Lords, Lord Butler and Lord Beecham.

The first point I wish to make with regard to the first amendment in the name of my noble friend is, as I indicated in my opening remarks, that a number of public appointments, not least the appointment of Sir David Anderson, have been made by the Secretary of State without the consultation that my noble friend is suggesting in his amendment. I know that it is furthest from my noble friend’s mind to suggest this, but I am sure we would not want a situation where perhaps the appointment of some independent reviewers was questioned because they had not had the same statutory consultation requirements as have been proposed here.

I do not think anyone can deny that the role that Mr David Anderson plays is a very sensitive one. The independent reviewer of terrorism legislation reviews quite significantly the actions of the Executive. It is in the interests, too, of the Secretary of State that the person appointed as the reviewer is credible. I do not think that the recent appointment by the Home Secretary of the Biometrics Commissioner—or indeed of Mr Anderson—has given rise to any concerns. I would caution against fixing a problem that does not exist, because you might inadvertently create another problem by perhaps casting some doubt on the independence of those who have been appointed under the present regime. The Secretary of State should have the discretion, in a highly sensitive national security context, to ensure the appointment of an individual who does not pose any risk. I am sure that would be agreed across the House.

I listened to what my noble friend said and, as the noble Lord, Lord Butler, pointed out, he indicated that he was perhaps shifting—that is not a criticism at all—on the position of the renewal, given the deemed Section 6 proceedings as far as Norwich Pharmacal is concerned. The noble Lord, Lord Butler, makes an important point with regard to the confidence in which other countries share information with us. The fact that there would be regular potential for renewals puts it in a different category from that raised by the noble Lord, Lord Beecham, and it could raise a problem. In one of our earliest debates, the noble Lord, Lord Butler, indicated from a visit to America that when we discussed information perhaps being withheld, it was not fanciful; it was something that he actually encountered in his role as a member of the ISC.

I simply say to my noble friend and to the noble Lord, Lord Beecham, who ask what is the point of a review if nothing could happen, that the answer lies in what the noble Lord, Lord Beecham, himself said. No one is suggesting that this Parliament is binding its successors by this. I remind the House that it is not just the actions of the Executive and the Secretary of State; it is the whole system that we are setting up, which involves the courts. If a review proved that closed material proceedings were not working, manifest injustice was following on from them and they were not actually doing what they were set up to do, of course it would be possible for a future Parliament, through primary legislation, to repeal the legislation if that system is not working. Indeed, it may not go as far as repeal. It may be that a review would point out particular things that perhaps needed amendment, falling far short of a repeal. So a review could have a proper purpose that does not necessarily require a renewal order to follow on from it. In these circumstances, I invite the House to support and approve the amendments that have been brought from another place and I invite my noble friend not to move his amendment.