Justice and Security Bill [HL]

Lord Lester of Herne Hill Excerpts

Tuesday 19th June 2012 Lords Chamber

[Lord Wallace of Tankerness]

I have indicated that there was a consultation. There was strong representation that it would not be appropriate to have this kind of procedure in inquests. My main line of defence is that we listened to the consultation and responded to it. I believe that the right judgment was made.

[Lord Lester of Herne Hill]

My Lords—

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[Lord Wallace of Tankerness]

Maybe it is an old habit from the House of Commons that is making me reply.

[Lord Lester of Herne Hill]

Is not the answer to those noble Lords who have asked these questions quite simply that the right to life under the European convention requires particular requirements of openness and transparency, and therefore there is a strong case for separating inquests anyway?

[Lord Wallace of Tankerness]

There is a strong case, and having heeded the representations, we took that particular route.

I was trying to explain that CMPs have been part of our legal system sometimes by agreement in civil cases and that is compatible with the interests of justice, so why bring forward the Bill? The reason is that the Supreme Court last year, in a case called Al Rawi, held that a court is not entitled to adopt a closed material procedure in ordinary civil claims for damages. The court held that it was for Parliament, not the courts, to decide where closed material procedures should be available. The consequence has been that we are no longer able to rely on the ability of the courts to find their own way through this difficult issue of disclosure.

Hence the provisions in Part 2 of the Bill, which seek to respond to this challenge in a proportionate and targeted manner. It makes CMPs available in narrow circumstances—namely, in civil proceedings in the High Court, Court of Appeal and Court of Session, where material is relevant to those proceedings, disclosure of which would damage the interests of national security. Importantly, it will be only after the Secretary of State has considered whether a claim for public interest immunity should be made. In line with a recommendation of the Joint Committee on Human Rights, Part 2 also allows for the transfer of judicial reviews of exclusion, naturalisation and citizenship decisions to the Special Immigration Appeals Commission, which has well established closed procedures.

Under the plans, where the Secretary of State applies for a CMP in civil cases, it will be for a judge to declare whether a CMP may be used. The judge will make this declaration on the basis only of national security considerations, not crime or international relations. Inquests, as we have indicated, have been excluded, and we were never intending to make CMPs available in the criminal courts.

Let me stress the safeguards that will apply. The Secretary of State will first have to consider whether the material can be dealt with by making a claim for public interest immunity. This will be a legally binding obligation and failure to comply can be judicially reviewed in the courts. The Secretary of State will then apply to a judge, and that judge will declare whether in principle a CMP may be used. That judge is the decision-maker. He or she must be satisfied that there was material relevant to the case, the disclosure of which would damage national security.

Once the judge has taken a decision in principle that a CMP may be used, a second exercise will take place in relation to the individual pieces of evidence which he decides are national security sensitive, following representations by a special advocate whose job is to act in the interests of the claimant. The judge will determine the treatment of each piece, whether redacting individual names or sentences would allow the evidence to be heard in open, or whether a summary of the evidence withheld must be made available to the other party and so on. The Bill does not upset the established position that it is for Ministers to decide whether to claim PII. Consequently, it should be the responsibility of the Secretary of State to apply for a declaration to the court that a closed material procedure may be used.

Some suggest that the Government may choose between claiming PII and applying for a closed material procedure opportunistically. Some say that the Government would apply for a closed material procedure where the material was helpful to the Government on the basis that the material could be considered by the court and that the Government would claim PII where the material was unhelpful so that, if successful, the PII claim would exclude that material from consideration.

It is not a realistic concern. The intention behind the closed material procedure proposals is precisely so that allegations made against the Government are investigated and scrutinised by the courts. The intention is that all relevant material—helpful or unhelpful—will be before the courts. It is hard to see that a judge assessing a PII claim would conclude that material should be excluded if the Government were seeking cynically to use PII to exclude material that undermined its case when a closed material procedure was available as an alternative.

The Bill makes absolutely clear that the court must act in accordance with the obligations under Article 6 of the European Convention on Human Rights—the right to a fair trial. The overall effect will be that in practice all evidence currently heard in open court will in consequence of the CMP provisions continue to be heard in open court, including allegations against the state. In reality, claimants will receive as much information where there is a CMP as they would following a PII exercise.

A number of respondents to the consultation made the points that CMPs are a departure from the tried and tested fundamentals of open justice. I agree. No Government propose measures in this area lightly. However, as we have seen, CMPs are already used in our justice system, and have been endorsed by both domestic and international courts for the good reason that they provide a fairer outcome when the alternative is simply silence—no judgment at all and no questions answered.

Briefly, I move on to the final set of provisions in the Bill—namely, ensuring the protection of our intelligence-sharing relationships and our domestically generated intelligence through reform of an area of law that is known as the Norwich Pharmacal jurisdiction. The Norwich Pharmacal jurisdiction grew up in the sphere of intellectual property law, where it is used to force a third party who—however innocently—is mixed up in suspected wrongdoing, to disclose information that a claimant feels may be relevant to a case that they are bringing elsewhere.

However, in 2008 a particularly innovative group of lawyers sought, in the case of Binyam Mohamed, to extend this jurisdiction to argue disclosure of sensitive intelligence information held by the British, including that provided in confidence by our allies. A specific right to the disclosure of intelligence services information has been ruled out by Parliament in the Freedom of Information Act and the Official Secrets Act. Yet, since Binyam Mohamed, there have been no fewer than nine attempts to use this jurisdiction in relation to sensitive information, including secret intelligence.

What is particularly troubling about this area of law is that, as the purpose of the proceedings is solely to gain disclosure of material, the Government do not have the option to withdraw from or settle the proceedings. If a judge orders disclosure, there is no option but for the Government to release the secret intelligence. Those who cannot keep secrets soon stop being told secrets. We expect our allies to protect intelligence material that we share with them from disclosure, and they expect the same from us. It is a regrettable fact that uncertainty about our ability to properly protect classified information provided by foreign Governments has undermined confidence among key allies, including the United States. In some cases, measures have already been put in place to regulate or restrict intelligence exchanges.

This is not just about material from overseas partners. We also need to protect from disclosure United Kingdom-generated sensitive material, which, if disclosed, could reveal the identity of United Kingdom officers or their sources and capabilities. To give but one example, not only could disclosure of sensitive intelligence derived from a UK human source jeopardise an ongoing intelligence dividend from that source, it could also blow the source’s cover, putting his or her life at risk. Our intelligence agencies cannot operate effectively if they cannot offer their sources protection. Norwich Pharmacal is the wrong tool for national security cases. The Government must regain the discretion to decide what the best way of assisting someone should be. Unless we address this situation robustly, the UK will continue to be seen as a soft touch by those wanting to get access to sensitive information. Our allies will—

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[Lord Lester of Herne Hill]

My Lords, the Joint Committee on Human Rights is obtaining evidence about this Bill. We intend to report to Parliament before Report stage and to table amendments in the mean time. It is a highly controversial Bill and we welcome the Minister’s assurance that there will be sufficient time to scrutinise and improve it during its passage in this House. Like the noble Lord, Lord Beecham, whose speech I found particularly impressive, I think we should strive across the House to achieve consensus where we can.

There are welcome ways, identified by the Minister and others, in which the Bill improves on the overly-broad proposals in the Green Paper, in accordance with the recommendations of the JCHR and others. However, the Government have not accepted our criticisms or recommendations, or those of the independent reviewer of terrorism legislation, the special advocates and civil society, about the lack of sufficient judicial control of the closed material procedure, the judicial balancing role of public interest immunity, as described by the noble and learned Lord, Lord Mackay of Clashfern, and the use of the Norwich Pharmacal disclosure jurisdiction post the Binyam Mohamed decision of the Court of Appeal. I regret to say that the Bill betrays an unjustified lack of confidence in our fine system of civil justice and the capacity of our courts to protect state secrets.

The Select Committee on the Constitution has published its very significant report on the Bill, rightly noting that exceptions to the constitutional principles of open justice and natural justice should be accepted only where demonstrated on the basis of clear evidence to be necessary. The JCHR considers that the Government have not demonstrated by reference to evidence that the fairness concern on which they rely is in fact a real and practical problem.

That said, I must now plead guilty. It is to some extent because of my role at the Bar that the closed material procedure was first introduced. It happened as a result of litigation in both European courts. In the first example, Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary, a Minister had certified that national security prevented part-time reservists in the RUC having the merits of their sex discrimination cases heard at all in Northern Ireland. I had to go through Luxembourg for them to get that conclusive ministerial certificate set aside so that we were able to hold a merits hearing before a tribunal in Northern Ireland, partly in camera, and I am glad to say that the women won.

The second example is the Tinnelly and McElduff cases, where Northern Irish complainants said they had been black-balled from getting government contracts because of their religion, and the Government said otherwise. Again, the puzzle was how to do justice to them when the Government said there were national security considerations affecting their cases. I plead guilty to having suggested, as had many NGOs, that the answer was a closed material procedure. That is what was developed in SIAC. I do not, therefore, start off with a root-and-branch opposition to the closed material procedure. Where properly controlled, it is in my view a proper compromise.

The Constitution Committee rightly decided that the scheme contains three basic flaws. I agree with that but I am not going to talk about it, because the committee did not look at Norwich Pharmacal. I am simply going to concentrate the remainder of my remarks on the ouster in Clause 13. This refers to the court’s ability to order the disclosure of any information held by or originating from the intelligence services in civil proceedings where the claimant alleges that wrongdoing by someone else has, or may have, occurred; that our intelligence services were involved in the carrying out of wrongdoing, innocently or not; and that the disclosure is reasonably necessary to enable redress to be obtained or a defence to be relied on in connection with the wrongdoing.

As it stands, Clause 13 would deprive the courts of the ability to make such an order in any circumstance. It is a complete and absolute ouster clause. What would this mean in practice? I will illustrate this in the real world. Shaker Aamer is a Saudi Arabian citizen and the last remaining former British resident detained in Guantanamo. Following his capture in Afghanistan in December 2001, he was detained by US military authorities in Afghanistan, and since February 2002, in Guantanamo. Despite repeated requests by the United Kingdom Government, he has still not been released from Guantanamo.

Shaker Aamer maintains that, during his detention by the US military authorities, he has been subjected to torture and cruel, inhuman and degrading treatment. In English proceedings, he sought disclosure of material alleged to be in the Foreign Secretary’s possession supporting his case before the Guantanamo review task force that any confessions that he may have made during his detention were induced by torture or ill-treatment. The basis of his application is the Norwich Pharmacal jurisdiction, as developed in the Binyam Mohamed case.

The Divisional Court gave judgment on 15 December 2009 granting his application subject to hearing further argument on statutory prohibitions and public interest immunity. The judgment records his allegations of ill-treatment during his detention at Bagram air force base, where his interrogators included a member of the UK Security Service, and his interrogation at Kandahar air force base by two members of the UK Security Service. The Divisional Court held that, to the extent that the information held by the Secretary of State supported that claim, it was essential to the presentation of the claimant’s case before the task force. Without the information sought, and without the ability to make submissions on the basis of that information, the claimant’s case could not be fairly considered by the task force of the review panel.

The current Norwich Pharmacal cases are also those of Omar and Njoroge, both of which are death-penalty cases pending in Uganda. Their substantive claims have been heard in the Divisional Court and judgment is still awaited. Both men claim that the Foreign Secretary holds information, in the possession of the intelligence service, that will prove that they were rendered and tortured and that this was part of a plan. I shall not say any more about those cases because they are pending, but those men are on trial for their lives in Uganda.

If the powers of our courts to order disclosure in those cases in the interests of justice are abrogated by Clause 13, these men and other alleged victims of torture and serious ill-treatment who are on trial for their lives, and their security-cleared lawyers if they have them, will be denied access to crucial information. It is not appropriate to describe cases of this kind as “legal tourism”. They have real and close connections with this country and British intelligence actions here and overseas, and they are properly brought in British courts, just as they could be in other common law countries, including the United States, and civil law countries. Given that it has been suggested that this is some novel English jurisdiction, I have summarised the comparative position on a website, www.odysseus trust.org, where one can find the comparative position across the common law world, the civil law world and the United States.

The motivation driving the Bill is the political need to reassure the United States Government and the CIA, and our own intelligence services, that sensitive information imparted in confidence will remain secret. The working relationships between the intelligence services of the UK and the US are subject to an understanding of confidentiality described as the control principle, which is very important.

In the landmark judgment in Binyam Mohamed, the Lord Chief Justice, the noble and learned Lord, Lord Judge, referred to,

“the painstaking care with which the Divisional Court addressed the public interest arguments advanced by the Foreign Secretary. The approach of the Divisional Court ... represented an exemplary model of judicial patience … If for any reason the court is required to address the question whether the control principle, as understood by the intelligence services, should be disapplied, the decision depends on well understood PII principles. As the executive, not the judiciary, is responsible for national security and public protection and safety from terrorist activity, the judiciary defers to it on these issues, unless it is acting unlawfully, or in the context of litigation the court concludes that the claim by the executive for public interest immunity is not justified. Self evidently that is not a decision to be taken lightly”.

I know of no case in which a British court has failed to respect the intelligence relationship between the UK and United States or the need to protect state secrets and national security, including the case of Binyam Mohamed, where the only information ever revealed by a court was information revealed by Judge Kessler in the district court for the District of Columbia in a federal habeas corpus case. When my friend, the noble Lord, Lord Butler, refers to the damage done by that case, he may not appreciate that the only information ever revealed was public and had been revealed in the United States by the federal district court. That, in truncated form, was all that was ever revealed.

[Lord Butler of Brockwell]

My Lords, I am well aware of that, but the fact is that that was a breach of the control principle. I assure the noble Lord that the United States authorities regarded that as a breach of a sacrosanct understanding between them and the United Kingdom.

[Lord Lester of Herne Hill]

Yes, surely, just as the previous Government thought that even though in Spycatcher, information had been available throughout the United States, it should be stopped in this country. I do not question the sincerity of the belief, simply its rationality.

I hope that the Minister will be able to confirm in winding up this debate that he agrees with the assessment that the British courts have invariably protected state secrets from harmful public disclosure. It is important that that be on public record for the benefit of our American cousins. The Lord Chief Justice also noted in Binyam Mohamed that it had been accepted by and on behalf of the Foreign Secretary, the right honourable David Miliband, in the litigation that,

“in our country, which is governed by the rule of law, upheld by an independent judiciary, the confidentiality principle is indeed subject to the clear limitation that the Government and the intelligence services can never provide the country which provides intelligence with an unconditional guarantee that the confidentiality principle will never be set aside if the courts conclude that the interests of justice make it necessary and appropriate to do so. The acknowledgement”—

that is, by the right honourable David Miliband—

“that the control principle is qualified in this way is plainly correct, and it appears to be accepted that the same limitation on the control principle would apply in the USA. Presumably therefore our intelligence services accept that although the control principle applies to any information which they disclose to their colleagues in the USA, the ultimate decision on disclosure would depend on the courts in the USA, and not the intelligence services, or for that matter the executive”.

Indeed, in his first PII certificate, the right honourable David Miliband MP fairly recognised that he,

“may well have been inclined to reach a different conclusion on the balance of the public interest were the US authorities not to have made the commitments to make the documents available”

to Mr Mohamed’s US counsel. In other words, the previous Government rightly recognised that the control principle was not absolute. Clause 13 would reverse that.

The Government’s briefing describes the Binyam Mohamed case as controversial. It certainly is, and that remains the view of our ally. Even though the previous British Government sought to provide information about his torture and ill-treatment to security-cleared lawyers so that he could have a fair trial for offences carrying the death penalty, the US Government refused to do so. Even after the federal court had published the information in detail, the British Government persisted in seeking to persuade the English Court of Appeal not to publish for fear of offending our American allies who, according to the Government, have lost confidence in our ability to protect their intelligence, and as a result have put measures in place to regulate or restrict our intelligence exchanges. President Obama deserves better informed advice about our courts. The American Supreme Court has itself said:

“Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers”.

Finally, in his evidence in the Binyam Mohamed case, Morton Halperin, a senior expert on security issues, gave extensive evidence explaining how both Governments understand that in both countries the right to order the disclosure of information has to be in accordance with law and subject to the judiciary. Surely the US Government understand our parliamentary system of government under the rule of law by the independent judiciary and would accept a decision by our Parliament that the absolute ouster of the courts’ jurisdiction in Clause 13 is disproportionate and unfair. My noble and learned friend the Minister said that Clause 13 will not affect convention rights, but the Government’s handout on the human rights memorandum says that there are no convention rights that would obtain so that is not an appropriate safeguard. I very much hope that limitations can be written in to ensure that Clause 13 will no longer continue as an absolute ouster clause.