Justice and Security Bill [HL]

Lord Lloyd of Berwick Excerpts

Wednesday 21st November 2012 Lords Chamber

[Lord Morgan]

My Lords—

[Lord Lloyd of Berwick]

My Lords—

[Lord Morgan]

Thank you. I am very anxious to hear the noble and learned Lord, Lord Lloyd, too. I will not speak for very long. I am not a lawyer and I sit on the Back Benches, as I always have, where one is required to vote but not necessarily to think. Yet occasional flickers of thought agitate our minds. This clause is deeply unfair and the amendments are profoundly right. It seems characteristic of what has happened to liberty in this country over many years with, I am sorry to say, the endorsement of all three major parties: the tilting of the balance away from the free individual—the citizen—towards the state, reinforcing raison d’état contrary to the common law. The element of secrecy adds something new that we have not had since the time of the Tudors. It was specifically condemned in the Petition of Right in 1628, which is quite a long time ago.

This clause has caused outrage among lawyers, as we have heard, and civil liberties groups. It has been strongly criticised by the Joint Committee on Human Rights. Why? Because it is totally one-sided. It is a closed court, with the litigants, lawyers and the press excluded. Only the lawyers representing the Crown can communicate in private with the judge. The litigants are not aware of the content, tone or substance of those conversations. They are protected inadequately by special advocates, because their powers are limited, and the interests of litigants in civil cases are not properly defended as, if I may say, people accused of criminal activity under the criminal legal system are protected. Public interest is cited: a term defined so broadly almost as to lose all meaning. It shows that the normal judicial process is a fair, balanced and adversarial system when both sides can present their case. These aspects are being marginalised and sidelined. As previous speakers have said, this is a process that has now been launched and is very likely to increase and multiply.

These amendments should go further—I would like to see the whole clause disappear—but will undoubtedly improve these otherwise dismal procedures. This reflects a welcome tilt towards libertarianism, including from my own party, which has not been notable in that sphere in recent years. I am very glad to welcome that under its present leadership. The Secretary of State would be compelled to present a case for a public immunity initiative; the court would be able to consider it dispassionately and calmly without being steam-rollered by the Government, as would otherwise happen; the litigants could have proper legal discussions with their advocates.

At the moment, there would be no real authority accorded to judges, whose hands would be tied by the terms of the Bill. They would have little choice other than to accept the submissions of the Government, so these amendments are deeply valuable—not simply to those involved with the law but to any citizen of this country. This would enable the courts to consider and to estimate the comparative balance between the rights of a free individual as against the damage to national security, which might have to be more carefully defined. To that extent, these amendments make an odious Bill somewhat less repulsive. The Minister is a very fair-minded man who has the respect of all Members of the House. He has listened to strong arguments against this clause from all sections of the House, and I am sure he will consider them fairly and courteously.

[Lord Lloyd of Berwick]

I fear that I may disappoint the noble Lord, Lord Morgan—but I hope not. I have no difficulty at all with Amendments 37 and 40, which were tabled by the noble Lord, Lord Pannick, but I have some difficulties with Amendments 34 and 35, which we are going to come to in a later group. Those are the amendments that would substitute the word “may” for “must”. They are the basic amendments that would give the judge a discretion rather than imposing on him a duty in certain circumstances.

Amendment 36, which has been spoken to by the noble Lord, Lord Pannick, spells out how that discretion is to be exercised. It states that the judge must balance,

“the degree of harm to the interests of national security”,

on the one hand, against,

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

It is now many years since I heard a PII application. It was never an easy balancing operation, but at least with a PII application one was balancing a particular piece of evidence and how much harm it would do to the national interest, on the one side, and how much good it would do to the case of one party or the other, on the other side. It was difficult but it was a fairly specific balancing operation. I find much greater difficulty with the judge being required to take account of,

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

I cannot see how he can possibly evaluate that in the abstract. In one sense, it might be said to overwhelm everything else, of course; but on the other hand, how much weight can be given to that? Amendment 36 is very different from the operation that one used to, and still does, carry out in an ordinary PII application. I am not happy with Amendment 36 and that sort of discretion being given to a judge.

[Baroness Neville-Jones]

My Lords, the focus of the Bill is to enable this country to find a means of dispensing justice while protecting national security. National security has not had much of a hearing so far this afternoon. I shall explain why I do not think that public interest immunity is any longer an adequate safeguard in respect of national security. Indeed, I would go so far as to say that, at the moment, the PII regime prevents justice being dispensed consistent with security. Pace the noble Lord, Lord Beecham, I do not think that this is an impossible goal.

When national security-sensitive evidence which may be important to the claimant’s case—we all agree about that—is excluded from the courtroom by a PII certificate and the judge may not take it into account in coming to a judgment, there are two consequences: the claimant is unable to prove his case and the Government cannot defend themselves properly. To protect national security evidence from disclosure in open court the Government are being forced to agree substantial settlements, with unjustified reputational damage ensuing. The inability of our legal system to provide adequate recourse to parties in civil dispute brings no credit to it and we need to do something to mend it.

Amendment 40 would insert PII as a first stage in the legal process. This would undoubtedly greatly increase the length of proceedings and costs without necessarily guaranteeing that evidence would be heard. I cannot help feeling that this is pointless. Moreover—and this is a real problem—PII impinges adversely on the claimant’s rights and, contrary to the assertion of the noble Lord, Lord Pannick, since the case concerning Binyam Mohamed, PII has also proved to be a less than total protection for national security sensitive information. We do not now have a safeguard in PII to protect national security. It has really changed the ground. In that case, the court ordering disclosure of American material despite the Government’s PII certificate has damaged our intelligence relationship with the allies, especially, although not only, with the United States. We have this judgment from the independent reviewer of terrorism, David Anderson QC, who I know has been quoted by other noble Lords. However, I know that, on this point, he is right. It is a very serious matter if our allies can no longer trust our ability to keep secret intelligence passed to us secret.

The fact that we have not had a major terrorist incident in this country since 7/7 is not the result of the conversion of the enemy but of the successful diligence of our intelligence and security services in protecting us. They depend on vital—and I mean vital—sharing of intelligence with allies. The effect of recent cases in civil courts, and the numbers of these are growing, has now spread into the core security interests of the UK. Some noble Lords talked about the core security interests of this country in justice, and I entirely agree. However, we also have another interest to protect which is important to us. We are now damaging the core security interests of the UK. If we do not find a way, as part of a responsible national security policy, of restoring credibility to our promise to protect information given to us, we will find our intelligence relationships further eroded over time and our national security eroded with them.

It is not just the control principle that is at issue, it is UK national security. This cannot be subjected to balancing tests of the kind set out in Amendment 47 —and Amendment 46, for that matter—as if it were somehow exchangeable with other goods. Lives are not at stake in civil proceedings but they are—they can be—in national security.

Closed material proceedings are of course second-best to completely open court proceedings. There is nothing that divides anybody in this House on that point; we all agree. The problem, however, is that we are not in an ideal world. Only the court can decide to allow closed material proceedings under the Bill, and presumably the judge would not permit that if they did not think that there was a substantial national security interest to be protected and they had not been convinced by the submission of the Secretary of State. In that case, this issue would not arise. However, if it does arise and the court agrees that there should be CMP, it will permit a full testing of the claimant’s case. The Government will be able to defend themselves in a manner that protects sensitive national security information.

The Bill also provides for gisting to the claimant. This is much better than the absence of justice and the potential prejudice to national security at the same time. Amendments 48, 49 and 50 would destroy the balance that the Bill would bring about.

Much has been made already of the Government’s proposals being “a radical departure” from our traditional norms. However, the closed material procedure is drawn from the procedure created by the previous Labour Government for the special immigration appeals courts which, I might say, Liberty was very influential in setting up, and which have been tested and accepted as compatible with the European Convention on Human Rights. The reality of justice there is demonstrated by the fact that the Government lose cases. Amendment 44 would bring some SIAC procedures into question, as well as rendering this Bill null and void.

I hope that this House will accept that this Bill is a balanced response to a difficult issue. I take seriously, along with other Lords, the need for safeguards, but I believe that many of the proposals on the Marshalled List go too far. I hope that this House will reject amendments which, far from improving the Bill, either remove or render ineffectual the purpose of closed material proceedings. To use the words of the noble Lord, Lord Hodgson, I believe that this Bill passes the smell test.