Justice and Security Bill [HL]

Lord Faulks Excerpts

Wednesday 11th July 2012 Lords Chamber

Moved by

[Lord Faulks]

39: Before Clause 6, insert the following new Clause—
“Statutory PII for national security sensitive material
(1) In any relevant civil proceedings in which the Secretary of State considers that—
(a) a party to the proceedings (whether or not the Secretary of State) would be required to disclose material in the course of the proceedings to another person (whether or not another party to the proceedings), and(b) such a disclosure would be damaging to the interests of national security,the Secretary of State must make a claim for public interest immunity in relation to that material under this section.(2) A claim for public interest immunity under this section must be made by the Secretary of State issuing a certificate relating to the individual documents in question and giving reasons why, in the Secretary of State’s view, disclosure would be damaging to the interests of national security.
(3) When deciding whether the material attracts PII under this section, the court must weigh, on the one hand, the degree of harm to the interests of national security if the material is disclosed against the public interest in the fair and open administration of justice on the other.
(4) When conducting the balancing exercise under subsection (3), the court shall—
(a) apply a presumption against disclosure of national security sensitive material held by, derived from or relating to an intelligence service, rebuttable only by compelling reasons, and(b) pay due regard to—(i) fair trial principles,(ii) the principle of open justice,(iii) the right to an effective remedy for violations of human rights,(iv) the ability of the media to report matters in the public interest, and(v) the need for state accountability for human rights violations.(5) If, after conducting the balancing exercise under subsection (3), the court considers that the balance of the public interest lies in non-disclosure, it must consider whether sufficient disclosure to enable a fair trial of the issues is possible by other means short of full disclosure, such as—
(a) redaction;(b) provision of a summary of the material;(c) disclosure subject to confidentiality undertakings;(d) hearings in private;(e) restrictions on reporting;(f) restrictions on access;(g) restrictions on the use of the material.(6) If, after conducting the process set out in subsection (3) to (5), the court concludes that the balance of the public interest lies in non-disclosure, the court must rule that the material shall not be disclosed.”

[Lord Faulks]

My Lords, in moving Amendment 39, I shall also speak to Amendment 40. These amendments are in the names of my noble friends Lord Lester of Herne Hill and Lord Macdonald of River Glaven, the noble Lord, Lord Pannick, and me. My noble friend Lord Lester and I are members of the Joint Committee on Human Rights. My noble friend Lord Macdonald, who unfortunately is in the British Virgin Islands at the moment and sends his apologies, and the noble Lord, Lord Pannick, are members of the Constitution Committee of your Lordships’ House.

We are now moving on to Part 2. These amendments would provide for the insertion before Clause 6 of the public interest immunity procedure to be reduced into statutory form, and would provide that, following PII, either party to civil proceedings could move on to closed material proceedings. A judge may at that juncture grant permission if the court considers that, first, the CMP is the only way forward and, secondly, that the public interest is served in having issues determined by the CMP, which outweighs the unfairness of either the claim or the defence being struck out.

At the moment, PII operates on the basis of common law. It is well understood and all the evidence suggests that judges are getting decisions in individual cases right. However, the Government’s complaint is that, despite the prime facie satisfactory way in which PII operates, there is a justice gap. Certain cases are effectively untriable. They have to be settled or even struck out. The provisions of Clauses 6 to 12 represent the Government’s solution.

The concerns expressed by many noble Lords at Second Reading suggest that there may well be considerable room for improvement in these provisions. I do not claim to speak for my co-signatories or for other noble Lords who have put forward similar amendments in this group, but I can be confident that all are concerned to understand quite how these complex provisions will work in practice. For example, Clause 6(5) states:

“Before making an application under subsection (1), the Secretary of State must consider whether to make, or advise another person to make, a claim for public interest immunity in relation to the material on which the application would be based”.

Many noble Lords and commentators have said that this is a meaningless obligation and that it runs the risk of merely being a tick-box process.

At Second Reading, I said that I would expect judges to require some convincing that the Secretary of State had gone through this process. I suppose there could, in theory at least, be a freestanding judicial review application in relation to that provision. Can the Minister reassure the House that the provision represents a real safeguard and explain how it works, or should work, in practice? Why not, as the amendment proposes, place the PII procedure in the Bill and make it an essential precursor to an application for a CMP?

Another concern expressed by many has been the fact that CMPs are open only to the Secretary of State and not to other parties to the litigation—that is, claimants. It is not immediately obvious what the circumstances are in which a claimant would want or have the ability to invoke a PII procedure and then move on to the CMP, but it surely does not help to make this legislation seem fair and proportionate if the recourse to so-called secret justice is available only to one side.

In the debate on the Bill, much has been made of the memoranda and evidence of the special advocates involved in these closed and open hearings. I share with many other noble Lords a respect for this body of highly qualified men and women, and I identify with many of their concerns. Their view is that PII is working well and that CMPs are an offence to open and natural justice. I do not go that far. These amendments do not attempt to remove the right to proceed by way of CMPs. It may be a form of justice that is very much one of last resort, but I am satisfied that the Government have made their case for the availability of CMPs in civil proceedings, just as CMPs operate in other fields. I am reinforced in this conclusion by the observations of the highly respected Independent Reviewer of Terrorism Legislation, David Anderson QC.

It may help if I take the Committee briefly through the amendment, which is on a, “Statutory PII for national security sensitive material”. It provides that the Secretary of State must make a claim for PII and issue a certificate giving reasons. The court must then weigh the balance between the degree of harm as against the fair and open administration of justice, and the amendment sets out the balancing exercise that the court should perform, including,

“a presumption against disclosure of national security sensitive material”.

Subsection (4)(b) of the amendment states that the court should,

“pay due regard to … fair trial principles … the principle of open justice … the right to an effective remedy for violations of human rights … the ability of the media to report … and … the need for state accountability for human rights violations”.

The amendment continues:

“If, after conducting the balancing exercise … the court considers that the balance … lies in non-disclosure, it must consider whether sufficient disclosure to enable a fair trial of the issues is possible by other means”.

The amendment then sets out a menu of other means that have been discovered over the years by judges as a way of mitigating any hardship by means of partial disclosure, and concludes by stating:

“If, after conducting the process … the court concludes that the balance of the public interest lies in non-disclosure, the court must rule that the material shall not be disclosed”.

This process gives the judge the balancing exercise for which he or she is well qualified, but leaves in the hands of the Secretary of State consideration of whether the disclosure of material would damage the interests of national security.

I confess to a little uncertainty about how Clause 6, as drafted, will operate in one important respect. Is it open to the judge to decide that in his view disclosure of the relevant material is not damaging to the interests of national security? In other words, can he second-guess the Secretary of State? In the helpful letter sent by Ministers following Second Reading, with the accompanying algorithm, that seemed to be the contention. If that is right, does it not mean that the CMP could be sidestepped altogether? My reading of the inclusion of “must” in Clause 6 does not sit easily with that construction.

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[Lord Carlile of Berriew]

I am very grateful to my noble friend for giving way, and for the great clarity with which he has opened this debate. However, will he deal with this question: why are PII proceedings less secretive than CMP proceedings?

[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.

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[Lord Wallace of Tankerness]

Certainly I am aware of that concern. It was perfectly legitimate for the noble and learned Lord to raise it, because it motivated the amendments tabled by my noble friends Lord Thomas and Lord Hodgson.

For the sake of completeness, I will indicate that it is important to remember that the court will need to be satisfied that disclosure of that material would damage the interests of national security, and that any obligations under Article 6 of the European Convention on Human Rights are met. Of course the court will have the assistance of special advocates representing the interests of excluded parties in testing whether these conditions are met. I endorse what was said by the noble and learned Lord, Lord Woolf, and my noble friend Lord Carlile, that perhaps special advocates have sometimes undersold themselves. I think it was in the case of M v Home Office that the noble and learned Lord, Lord Woolf, indicated that he had been very impressed by what the special advocates had done in challenging evidence.

I move on to the point about the Secretary of State and the important amendment spoken to by my noble friend Lord Hodgson. It raises an important issue that the Constitution Committee flagged up with very seductive arguments that we should consider. I am aware that there is concern about the potential unfairness of the Secretary of State being the only party to proceedings who can make an application. However, I will explain to the Committee that we heard that the motivation behind the amendment was concern that there would be too much control in the hands of the Government, and that were they to apply for PII to exclude material from the case, the other party would not be able to request a CMP so that the information would be put before a court. As I indicated, this matter was picked up by the Constitution Committee.

There is an important constitutional point here. Under our system of government, the Executive are the guardian of the United Kingdom’s national security interests. The courts have frequently stated that the Government’s function to protect national security by claiming PII is a duty rather than an option. Correspondingly, we believe that it should be the responsibility of the Secretary of State to apply for a declaration that a closed material procedure may be used when the sole criterion is that of national security. There would have been stronger arguments if some of the other grounds that were floated in the Green Paper had been included—but we confined this purely to national security. We believe that the courts can play an essential role.

[Lord Faulks]

I entirely accept what the noble and learned Lord said about the relative roles of the judge and the Secretary of State. Perhaps this might give him an opportunity to deal with the response in the Second Reading debate. It was suggested in the algorithm that the judge could decide what was in the interests of national security.

[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.

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[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.

[Lord Faulks]

My Lords, this has been a lengthy but helpful debate. I am grateful to all noble Lords for taking part and for the very constructive comments that the noble and learned Lord, Lord Wallace, has made. It seems to me that we are moving, if not dancing as the noble and learned Lord would have it, towards some sort of consensus here. The question is whether we have found the right route to CMPs—an option which should be exercised only in the last resort. As the noble and learned Lord, Lord Woolf, said, it is certainly better than nothing. It is hoped that there will not be many cases that need CMPs. Like the noble Lord, Lord Lester, I do not wish to be competitive about which amendment is preferable. The amendments are intended to probe the somewhat complex provisions. There has been a great deal of clarification from the noble and learned Lord, Lord Wallace, for which I am grateful. It is still not entirely clear to me how some of the various parts of the procedure are going to work with each other. I think it is accepted that there is room for some improvement in that regard.

The noble and learned Lord, Lord Falconer, asked for the evidence that PII is actually working. Apart from the anecdotal evidence and the absence of appeals, there is some substantial evidence from the special advocates themselves, who say that not only is it working but it is enough, and they do not support the possibility of CMPs at all.

I accept that there is always a danger in putting in statutory form something that is in common law; it could perhaps remove the possibility of growth. None the less, PII is a mature form of the common law and the definition of PII contains a great many checks and balances, as this statutory interpretation has set out. Taking Amendments 39 and 40 together, it looks a rather complex procedure, formulaic or even a straitjacket. In practice, all it is doing is summarising what is well established, and there will indeed be a great deal of flexibility even if one were to follow the terms of the amendment.

Flexibility is clearly desirable, but I would reiterate that it is most important—as the Government acknowledge in Clause 6(5)—that the question of PII should be properly considered, and potentially judicially reviewable. This amendment puts in the Bill an obligation to go through the process before going to CMPs. I suggest that, with modifications, that represents a positive safeguard on what I hope will be a rarely resorted to but undoubtedly necessary procedure. In the light of what has helpfully been said, I am happy to withdraw the amendment.

Amendment 39 withdrawn.