To conclude, I have two questions. First, how does one capture the emotional and spiritual development of such children and how they are fairing without
annual monitoring of children in school? What sort of metric can capture that? I expect that it is very difficult to capture. In terms of staff handover, I am grateful to hear from the noble Baroness, Lady Perry of Southwark, that if a head teacher changes, there will be a sudden new focus on that school. However, senior staff move on too; school leadership is very important for good outcomes in schools. I would like further reassurance from the Minister, therefore, that there will be close monitoring of changes in school staff. Would that be a trigger for re-inspection?
In conclusion, I worry that schools can decline very quickly and that we might be letting some of their pupils down by this move. I worry that the needs of vulnerable children in schools might be overlooked because there will not be inspection in the future. Can the Minister give reassurance in his response to the debate?
Baroness Massey of Darwen: My Lords, I am very glad that my noble friend Lady Hughes of Stretford has put down this Motion of Regret. This is proving to be an important debate, quite rightly raising all manner of concerns. I find the notion of schools being exempt from inspection quite extraordinary and somewhat sinister. If this is about money, can we afford to downgrade excellence in education? Inspection is about checking on measures to improve quality in all aspects of school life.
I would like to pick up on some of the things said by the noble Earl, Lord Listowel. Inspection is not, of course, the only measure. I recognise that many schools have in place excellent self-assessment procedures. However, that is not the same as inspection. Who inspects the self-assessment procedures? I wonder whether the chief inspector’s risk assessment can kick in quickly enough or be rigorous enough. Regular inspection is something that many schools learn from; it makes them vigilant. My principal concern about exempting schools from inspection is that, as I know, the Minister must know and at least three other Lords have mentioned, schools can slip very quickly from being excellent, even good, to being not so good and not so excellent. I have known the loss of an inspiring head of department or an inspiring head teacher plummet a school into difficulties in less than a year. Deterioration of that kind can go unnoticed for a while but would not if inspection were in place.
School improvement partners were disbanded by this Government and not replaced. As a school governor, I found in south London that visits by the school improvement partner were a great help in examining pupil achievement and well-being, structural issues and staff training needs. That has gone. Where will the checks be? It is ironic that private schools are inspected regularly and thoroughly. Why will some state schools be exempt? This lack of inspection could well reinforce inequality. It is not fair on pupils and parents in state schools to remove controls on standards while they are maintained rigorously in the private sector.
I have seen good school inspection teams in operation. This is where I want to pick up on what the noble Earl, Lord Listowel, said. A good inspection team does not just pick up on academic achievement, although that
is important. A good inspection team will recognise that some children have difficulty learning because of factors in their lives that inhibit learning, such as a home background that does not foster it. Schools must make good that deficit before children can take advantage of what the school offers. If they do not, and if they rely on developing self-esteem and overcoming disadvantage solely through literacy and numeracy, this has a profoundly negative effect on equality of opportunity. A Government who express a wish to overcome disadvantage should be ashamed to risk denying opportunities through negligence and through a lack of consideration for how schools are delivering consistently and appropriately for all pupils, including delivering on dimensions which are non-academic but which support learning.
I have just looked at the Ofsted subsidiary guidance issued to inspectors in January 2012. That guidance includes a spiritual dimension—the pupil’s perspective on life, their enjoyment of learning and so forth. It includes a moral dimension—the ability to recognise the difference between right and wrong and the consequences of actions. It includes a social dimension—co-operation and resolving conflict. It also includes a cultural dimension—responsiveness to artistic, musical, sporting, mathematical and cultural opportunities and exploring diversity.
Education is not education if these dimensions of learning are not considered, and they ought to be inspected. They are the less definable aspects of education. Inspection teams should look for a positive school ethos that fosters respect for others and respect for self. This ethos, embodied in and reliant on these less definable aspects and the dimensions that I have listed, can disappear even more quickly than academic achievement. It is terribly important to have inspectors go in, look around them and focus on the ethos of the school and the elements of learning that are essential to underpin all achievement.
I remember a discussion with the inspector for personal, social and health education. She had, in her reports, examples of good practice in different schools. That is another example of what inspection can do—to gather and share good work on all aspects of education. What a waste if that potential is lost.
I do not understand the logic of the Government’s thinking on these regulations. Good practice does not fear inspection. Inspection promotes vigilance and excellence. Excellence supports children in academic subjects and in personal and social well-being. I urge the Government to think again on this matter.
The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford): My Lords, we have had an interesting and wide-ranging debate. Many noble Lords have spoken with a great deal of passion. We have talked again about some of the issues that we discussed previously in Committee and on Report and we have talked about the whole question of inspection itself. A number of themes have been covered. I will concentrate my remarks on the Motion before us moved by the noble Baroness, Lady Hughes of Stretford. I will attempt to pick up on the points raised relating to that. If I fail, I will follow up any particular questions afterwards.
I think that it is fair to say that, although there is clearly disagreement between us as to the definition of “proportionate”, there is agreement in principle that having a more proportionate approach to inspection in itself is not a bad idea to pursue. But, as I say, there is a difference between what we mean by “proportionate”. I know that noble Lords opposite and others argue that “proportionate” means that all schools should be inspected automatically at least once every five years. I contend that “proportionate” means that so long as there are proper safeguards—obviously I will come back to that—it is possible that some schools can be exempt from routine inspections.
As I listened to the contributions this evening, a number of common themes emerged. The first was that schools can fail very quickly—how can we be sure that we will spot that? That was raised by the noble Baroness, Lady Hughes of Stretford, the noble Earl, Lord Listowel, and most recently by the noble Baroness, Lady Massey. How do you pick up failure? How will we share good practice? How will inspectors and others within the school system know what “outstanding” means and how will they learn from one another? The noble Baroness, Lady Morris of Yardley, asked to what extent the Government’s proposals were being driven by financial considerations. How will we know about safeguarding concerns? Is it right in principle that all schools should be inspected? I will come back and try to answer all those concerns, but I want briefly to put the Government’s overall changes in context, because that helps to explain why we are doing what we are doing.
Before Ofsted was established 20 years ago, back in 1992, we had not had regular inspection of all schools. There was no formal assessment of primary schools and there was no published performance information. The introduction of routine inspection was the start of a process of making parents and the public more aware of how schools were performing. Since then, as noble Lords are well aware, there have been a number of developments under both Governments which have led to much more information being available. Key stage 2 testing, for example, was introduced in 1994, performance tables were introduced for secondary schools in 1994 and primary school performance tables followed in 1996. As a result, today there is a huge amount of information available on how schools are performing. I very much agree with the point made by the noble Baroness, Lady Morris of Yardley, about having that information that we can share.
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I contend that we are getting that information through the publication of more and more information on schools. Last year’s performance tables, for example, contained information on attainment and progress, and differentiated between high, middle and low attainers. They covered the extent to which schools were narrowing the gap between the most disadvantaged and other pupils. They had information on the proportion of pupils with special needs, those for whom English is not their first language and those eligible for free school meals. They included details on pupil absence and on spend per pupil, and information about the staff, including pupil/teacher ratios. Just today, the
department has published data showing the destinations for key stage 4 and key stage 5 pupils by local authority and by institution.
I argue that inspection itself is no longer the sole, or perhaps the main, source of information regularly produced about schools’ performance. As the availability of information has evolved and improved, so we argue that inspection should evolve too. That is a point that successive Governments have recognised. The last Government introduced regulations back in 2009 to allow for less frequent inspection for good and outstanding schools; they moved that to every five years, rather than once every three years. They accompanied that with stronger risk assessment. Therefore, I argue that the changes that the Government have introduced build on that principle, rather than departing significantly from it.
The noble Baroness, Lady Hughes, drew the distinction between concerns about principle and practical concerns—I recognise this. Let me say a few words to address those practical concerns, which a number of noble Lords have raised. I accept the case made by a number of noble Lords, including the noble Lord, Lord Hunt of Kings Heath, that schools decline and, indeed, can do so quite quickly. Ofsted evidence—and we have heard some figures—shows that 95% of outstanding schools are either outstanding or good at their next inspection. However, there is some movement from outstanding to good, and some will go further. I accept that point. That is where the nature of Ofsted’s risk assessment process is so important, as my noble friend Lady Walmsley argued. Let me try to outline how that will work, because I recognise that that lies at the heart of a number of the concerns.
First, every exempt school will be risk-assessed once a year. That will look at, for example, the overall performance of the school, the trend in results, the performance of different groups of children, including those with special educational needs—the noble Earl asked a question about this—and the progress that they make. In response to a specific question from the noble Lord, Lord Hunt of Kings Heath, a school with high exam results but poor pupil progress would be picked up. The basis of that assessment will determine what steps Ofsted then takes, leading to a full inspection if it thinks that that is necessary. In the past, risk assessment led to about 2% of outstanding schools being re-inspected. Ofsted’s experience is that this accurately picked up schools that had slipped in the way that noble Lords were concerned about. The new chief inspector has said that he expects to be inspecting between 5% and 10% of outstanding schools, but in fact he has complete discretion as to the number of schools that he thinks should be re-inspected. The exemption regulations do not constrain him in respect of how many schools he can inspect.
In addition to the annual risk assessment, there are a number of other ways in which any emerging concerns can be flagged and acted on. Parents, for example, can contact Ofsted through its website, Parent View, or they can make a specific formal complaint about the kinds of issues raised as examples by a number of noble Lords. That could lead to Ofsted bringing forward its assessment or, indeed, it could lead directly to an
inspection. A local authority with good local intelligence could also contact Ofsted with the same result, bringing forward a risk assessment or leading directly to an inspection. Another factor that can lead to a sudden change in a school’s performance is a change of head, which was mentioned by several noble Lords. That is another case that Ofsted would use as a trigger for early risk assessment. High turnover of staff would also be looked at—the noble Earl, Lord Listowel, asked about that. Any of these examples could lead to a fact-finding visit or a full inspection by Ofsted. What in effect we are doing is giving the responsibility for making these judgments to Ofsted rather than having a uniform approach applied across the country that does not take into account the performance of a school or local circumstances.
On the question of how good practice will be shared and how inspectors will know what “outstanding” looks like, the chief inspector has made it clear that he wants to make much more of the wealth of information that Ofsted holds on good practice. This will continue to be gathered through routine inspections and surveys. As part of plans to strengthen monitoring and provide support for weaker schools, the chief inspector intends to put in place more regular monitoring, which will include inspectors signposting best practice so that schools can benefit from it. As my noble friend Lady Perry argued, inspectors will continue to see outstanding practice through a combination of survey visits, including on subjects such as PSHE, to the best schools and the flow of schools that have moved to outstanding in their latest Section 5 inspection.
I was asked about the extent to which these decisions are being driven by financial constraints. That is not the case. In fact, as developments since the appointment of the new chief inspector in January show, there will in fact be more inspections taking place than originally intended, with more outstanding schools being picked up, as well as the more targeted follow-up of schools that require improvement. I agree with the comments made by my noble friend Lady Walmsley about the importance of having good inspectors. I know that the chief inspector is working up plans to try to make sure that he has a supply of good inspectors and specifically to attract into inspection more outstanding heads with recent and relevant experience.
On safeguarding, which is a particular concern of noble Lords, Ofsted evidence shows that outstanding schools perform well in terms of safeguarding. In 2009-10, 98% of schools that were judged outstanding were either outstanding or good for safeguarding, and the figure rose to 99% in 2010-11. I should like to reassure noble Lords that, under the new inspection framework, safeguarding forms part of the judgment on leadership and management. Inspectors must consider how leadership and management at all levels manage safeguarding arrangements to ensure that there is safe recruitment and that all pupils are safe. In addition, if anyone, including teachers, parents, pupils or the local authority, has a concern about safeguarding in any state-funded school, they must raise this with Ofsted, which can decide to inspect immediately and without notice. That will continue to be the case for any school exempt under these regulations.
Lord Hunt of Kings Heath: My Lords, the noble Lord will know that the chief inspector is laying much greater emphasis on the quality of teaching and learning in the new judgment on schools. I would imagine that that would mean that a number of schools graded outstanding under the old regime would not be outstanding under the new one. I seek reassurance on this. I understand the argument for schools that are graded outstanding by the new chief inspector under the new criteria that he has brought in, but what I do not understand is why schools that were graded outstanding under the previous criteria will continue to be treated as outstanding.
Lord Hill of Oareford: The basic response to the question comes in two parts. First, to reclassify retrospectively schools that were once classified in a particular way is difficult. The judgment that is made at the time should be based on the framework within which they are operating. Secondly, as far as how these schools will be picked up is concerned, we do not intend that they should be re-inspected automatically, because they were found outstanding under the existing framework. But the point about outstanding teaching would be precisely the kind of issue that, in terms of prioritising schools for risk assessment, Ofsted would put at the top of its list with the focus that it now gives to outstanding teaching.
As I said on Report, Ofsted will carry out a targeted review during the academic year 2012-13 to look specifically at where the safeguarding arrangements remain strong in a sample of outstanding primary and secondary schools. The findings from that review will be published and used to inform the effectiveness of the new arrangements. We know much more about schools. We need to use inspection wisely and effectively. We know, including from recent evidence from the Institute of Education, that inspection has most impact in weaker schools. That is why we are keen to target inspection there.
There is no evidence that Ofsted is going soft on schools. Most of the time the department gets comments in the opposite direction. If anything the chief inspector has signalled a tougher approach, but it is right to recognise those schools that have demonstrated the strongest performance. We want to encourage the best school leaders to play a full and active part in wider system improvement, working in partnership with other schools, in federations and chains, as well as more formally, such as becoming national leaders in education. As my noble friend Lady Perry argued, we need to signal our trust in these leaders. One way of doing this is by recognising their hard work and not requiring them to be routinely inspected and asking them to spend more time working with other schools.
The noble Baroness, Lady Morris of Yardley, asked me about special schools. As far as vulnerable children are concerned the reason why the exemption regulations do not apply to special schools—pupil referral units and nurseries—is because we recognise that there is a concern about vulnerable children. We want the reassurance of knowing before one were to exempt them that we could satisfy ourselves that that was a wise course of action. The current intention is that they will undergo routine inspection, but we will keep that under review.
Baroness Morris of Yardley: Why are the data less reliable with those schools than they are with non-special schools? That has been the thrust of the Minister’s argument: that data are strong enough for us to be able to take this course of action. The data are the same for the special schools, so what is the problem?
Lord Hill of Oareford: There are some harder judgments to make about some of the children who might typically be in special schools or pupil referrals. That is a fair point. Given the particular sensitivity about those schools we would prefer to proceed cautiously in that respect.
At bottom, this is an argument about trust, not just about trust in schools—and I am not seeking to make a political point—but about whether we feel that we can trust Ofsted to do its job. There is a difference of opinion between us over the meaning of “proportionate”. What the Government have been doing has been made possible by the great increase in information that we have encouraged, as well as by the further strengthening of risk assessment that has been put in place, partly as a result of concerns expressed by Members of this House. It is no more than a logical expansion of developments in recent years. I commend the steps that we have taken to the House.
Baroness Walmsley: Since my noble friend appears to be drawing his remarks to a close, will he write to me about the questions that I asked him?
Lord Hill of Oareford: Yes, of course, my Lords.
The Earl of Listowel: Before the noble Lord concludes, I thank him for his careful response. I may have missed his response to the question asked by the noble Lord, Lord Hunt, with regard to faith schools, but will the risk assessments also consider the impact of faith schools on the teaching of science, for example, and the need to monitor that area?
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Lord Hill of Oareford: First, inspections into faith schools concerning the arrangements that those schools make around their religious education will continue in any case, even for exempt schools. If there are concerns of the kind raised by the noble Lord, Lord Hunt of Kings Heath, about individual schools, whether by parents, local authorities or others, those would be referred to Ofsted and Ofsted would need to take a view as to whether it needed to act.
Baroness Hughes of Stretford: My Lords, I thank the Minister and my noble friends and noble Baronesses opposite for their very thoughtful and detailed contributions to what has been a very important debate. It has boiled down to three crucial questions. I will be brief because I am mindful of colleagues who want to carry on with the main business. I will not delay the House but I would like to bring these three items to our attention.
First, is external inspection necessary, even if it is not of itself now sufficient, to assure quality of education for pupils and to reassure the public? Notwithstanding the contribution of the Minister and the views of the
noble Baroness, Lady Perry, I do not think we have had an answer to that tonight, even though the Minister said he would address the Motion—and the first part of the Motion is about the undermining of that principle of regular inspection of public services. In every other service, the answer to that question is yes. In some critical services, as we heard from my noble friend Lord Hunt, inspection is not becoming lighter touch; it is becoming tighter. We have not heard the argument for schools uniquely to be exempt from inspection. We have not heard the Government’s answer to that question tonight.
Secondly, do we have the evidence that, contrary to other public services, outstanding schools exceptionally remain outstanding once they have been judged so to be? The answer is no, as we have heard. All the evidence says that many outstanding schools decline in standards; some decline dramatically and quickly, as my noble friend Lady Massey pointed out. If they can fall dramatically in relation to educational standards, they can certainly fall dramatically as well in relation to safeguarding and those other issues particularly germane to vulnerable children that the noble Earl, Lord Listowel, was concerned about, and I share his concern.
Thirdly, the Government’s argument comes down to the fact that the safety net, the annual desktop risk assessment, is there as a catch-all. As my noble friend Lady Morris pointed out, not only is this becoming an edifice in itself, but in my view it can never be a substitute for directly observing what is going on and talking to parents and teachers. I am afraid what came to mind when I was listening to the arguments in favour of this as an effective safety net was the Baby P case in Haringey, when I was a Minister, when we learned that Ofsted had very recently completed a desktop assessment of social care in Haringey, which obviously had failed to uncover the very serious problems in policy and practice. It seems to be common sense that a desktop analysis of data is never actually going to reveal what is going on.
I hope that the Minister has at least appreciated the genuine strength of feeling and concern on this side of the House—and I suspect elsewhere. I am not going to press this matter to a vote at this late hour but I hope that the Government will reflect and monitor what happens as a result of this measure. If this measure has some of the negative consequences that we fear in even one school, many children will have their educational years blighted unnecessarily and avoidably, and I think we all agree that that would be a tragedy. I withdraw the Motion.
Justice and Security Bill [HL]
Committee (3rd Day) (Continued)
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67A: After Clause 8, insert the following new Clause—
“Independent review of closed material procedure
The Secretary of State shall ensure that an independent review is conducted into the impact of the provisions under Part 2, to conclude three years after the coming into force of this Act, and shall publish a report on the review to both Houses of Parliament.”
Lord Beecham: My Lords, this amendment and the others in this group stem from the report of the Constitution Committee and representations from organisations such as Justice. The Constitution Committee records that my right honourable friend Sadiq Khan, the shadow Justice Minister, asked a question in the House of Commons about the number of cases in which a CMP had been adopted under the existing provisions, which relate to control orders and the like. The reply of the Minister, Mr Djanogly, was that there was no information, it had not been collated and it would be too expensive to provide such information. The Constitution Committee rightly points out that these are matters of considerable interest to the public and, indeed, to Parliament and such a record should be made available. It invites the House,
“to consider whether the Government should be required to maintain consolidated records”.
Amendment 67B looks to provide such information, as does Amendment 67A, again following the recommendation of the Constitution Committee and representations, in this case from Justice, that the Government should report on the impact of the provisions of the Bill. The noble Baroness, Lady Berridge, has a similar amendment, Amendment 88.
Amendment 67A talks of a three-year period because it seems sensible, given the suggestion that there are likely to be very few cases, to allow sufficient time to elapse to gauge whether that is right or not. It would perhaps be wrong to rely on a single year’s experience as the basis for a review. Three years is long enough, in my judgment. Justice suggests a five-year period, which seems to me to be too long, given the scale of the changes. I hope that the Government will accept that these amendments, which are of course tabled on the basis that we end up with a CMP provision, will facilitate a greater understanding of how the system works and allow consideration of modifications should any of the difficulties which some of us have canvassed today in Committee and on previous occasions be warranted. I hope that the Government will look benignly on these amendments: they are not in any way destructive and should allow a proper consideration of how matters progress should the legislation pass in something like its present form. I beg to move.
Baroness Berridge: My Lords, I shall speak to Amendment 88, which, as the noble Lord, Lord Beecham, has said, is in my name. I concur with much of his reasoning and concerns about the recording and reporting of these matters. The amendments would enable Parliament to monitor the use of these unusual court proceedings. I would be grateful if my noble friend would say whether the response given in the other place to the question from Mr Sadiq Khan still stands, as the Government have very helpfully agreed to compile a central database of closed material procedures for the use of special advocates. If the Government are able to compile that database for special advocates, could they not also do so for Parliament?
If the closed material procedures are granted by Parliament, it would be on the basis of there being a very small number of cases. This amendment would enable Parliament to monitor whether that is indeed the case. Unfortunately, things that are intended to be
rare have a tendency to creep, as apparently Lord Williams of Mostyn assured your Lordships’ House in 1997 in relation to the introduction of SIAC. The closed material procedures are now used in a large number of statutory situations—I think about 14 different jurisdictions. I expect there will need to be some agreement as to how frequently a report is laid but it is important with such a closed system that as much information as possible comes into the public domain, particularly information that can be assessed by Parliament. Although not the subject of this amendment, the same argument applies to the use of closed material procedures generally, so that Parliament would know how often they are applied for, granted, appealed and, in particular, successfully appealed, as well as which government departments are making use of the procedures and under which legislative regime they are being used. I also believe that there could be useful comparative statistics on how often appeals are brought in jurisdictions where appeal is allowed on a matter of law alone compared to on a matter of fact, as in the civil proceedings considered under this Bill.
Amendment 88 adds the requirement for the independent reviewer of terrorism legislation to bring a report to Parliament, which I understand would be similar to the role of the independent reviewer in relation to control orders and now TPIMs. It could also perhaps provide a means for the independent reviewer to receive the continuing views of the special advocates, which have been such a concern to many people including the Lord Chancellor. Unless someone independent reads all these closed judgments in an area, I do not know how we will know if there are inconsistent decisions and perhaps cases that have been decided without knowledge of a previous precedent due to the fact that these are secret judgments. Some of that risk will of course now be averted by the new central database that I have mentioned, which will be available to special advocates. However, it will not be completely averted, in my view, due to the nature of the system and not in a way that Parliament can be assured of the integrity of the body of these decisions. The independent reviewer of terrorism legislation might even need a method of passing cases that he or she is concerned about to be reviewed by the court for the reasons I have outlined.
I believe it is very much in the Government’s interests to have as much information in the public domain and as much scrutiny as possible of a closed system. I also hope, along with the noble Lord, Lord Beecham, that there will be good news on Report on the principle behind this amendment.
Lord Pannick: My Lords, I added my name to Amendment 88 and entirely agree with what has been said by the noble Lord, Lord Beecham, and the noble Baroness, Lady Berridge. The noble and learned Lord the Advocate-General for Scotland said earlier this evening that CMPs are “second-best justice”. If we are to have CMPs as a necessary but regrettable diminution in the quality of justice, and if the quality of justice is to be strained in this way, with all the damage that is done to fair and open justice, it is essential that the legislation contains adequate provisions for reporting and review so that this new procedure can be carefully monitored.
Lord Judd: My Lords, I support these amendments for all the reasons we have discussed with previous amendments but will just make this observation. I do not want to be too manic depressive about the implications of this Bill but it seems that all this can become very routine—we have a report and an annual consideration, but we do things this different way. I am sure that noble Lords in all parts of the House know exactly what I am talking about and can imagine, late in the evening with very few noble Lords present, a ritual whereby the report comes before us and is considered. There will be a tremendous responsibility in the future. We all have a duty to keep this sense of responsibility alive and, as I put it earlier, to say this is an exceptional and—I certainly agree with the noble Lord, Lord Pannick—regrettable digression. It is exceptional and it must be justified. It must not become just an alternative on which we report, take note and so on. It is something that ideally should not be there. Of course, I take second place to nobody in my anxieties about the nature and gravity of the threats which confront us. Of course I take that very seriously. That is why it is all the more important that we do not cave in to the extremists and that we do not in the end give them a victory in the sense that we have diminished justice. There will be an ongoing task for us all to be vigilant on this matter.
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Baroness Stowell of Beeston: My Lords, I am grateful to the noble Lord, Lord Beecham, my noble friend Lady Berridge and other noble Lords who have contributed to this short debate. It raises some important issues about how an Act of Parliament, especially one such as this, is scrutinised after Royal Assent. I understand the intention behind the amendments, which is to ensure that effective mechanisms are in place for reviewing the operation of CMPs and other aspects of the Bill. I also understand, support and indeed share the objective of ensuring accountability of Government to Parliament, particularly in an area where we are moving towards new measures which are different and mark a significant step away from what has been routine until this point.
Amendment 67A, moved by the noble Lord, Lord Beecham, would require an independent review of the impact of the provisions under Part 2 three years after Royal Assent. It may be helpful to remind noble Lords that any Act has always been liable to some form of post-legislative review, whether by a parliamentary committee or internally within Government. Since March 2008, an additional and more systematic process has been in place. Normally, three to five years after Royal Assent, the responsible department must submit a memorandum to the relevant Commons departmental Select Committee. The memorandum will include a preliminary assessment of how the Act has worked out in practice, relative to objectives and benchmarks identified during the passage of the Bill. The Select Committee, or another committee, will then decide whether it wishes to conduct a fuller post-legislative inquiry into the Act. The process applies to all Acts receiving Royal Assent in or after 2005. This process already covers a requirement for a review after several years. Therefore, I think that the objective outlined in the amendment of the noble Lord, Lord Beecham, is already covered.
Amendment 67B and the first part of Amendment 88 seek respectively to introduce annual and quarterly reports on the operation of this part of the Act. The noble Lord, Lord Judd, made an important point. While it is important to have a process for calling the Government to account and for reviewing the operation of the Act and the CMP process, we need to be careful of the law of diminishing returns by introducing a process that is so systematic that over time it is no longer as impactful as it might otherwise be. What is important is that the Government collect the relevant data so that if a Select Committee or any parliamentarian wants to ask a question, or if there is a debate or a parliamentarian wishes to scrutinise the operation of CMPs, we are in a position to do so. My noble friend Lady Berridge referred to that point. During the process between now and Report, as we consider the implementation phase of the Bill, we will carefully consider how best to do that. I will certainly take on board the points made in the debate.
The second part of Amendment 88 seeks to add the review of the provisions in Part 2 of the Bill to the remit of the independent reviewer of terrorism legislation. I am concerned about how practical such a proposal may be to achieve its aims, given that the remit of the independent reviewer has already been extended on several occasions. His statutory responsibilities relate to the Terrorism Act 2000, Part 1 of the Terrorism Act 2006, the TPIM Act 2011 and the Terrorist Asset-Freezing (Temporary Provisions) Act 2010. Furthermore, the Protection of Freedoms Act, which came into force this year, requires that the independent reviewer or someone on his behalf undertakes a review of any detention of a terrorist suspect beyond the current statutory limit and if the Government intend to commence functions in the Coroners and Justice Act 2009 relating to the independent reviewer inspecting places of terrorist detention.
The TPIM Act is unique in that its measures are designed to restrict the behaviour and activities of individuals suspected of involvement in terrorism who, the Government argue, cannot be prosecuted or deported. This is why Parliament legislated for close post-legislative scrutiny. David Anderson QC indicated, when giving evidence to the Joint Committee on the Draft Detention of Terrorist Suspects (Temporary Extension) Bills, that his role has already increased and that there is a limit to how much one person can do. It is important that we avoid diluting the effectiveness of the role by overburdening it. Notwithstanding this, I recognise the valuable contribution that David Anderson QC has made to the debate about the need for CMPs. His reviewer functions for asset-freezing and TPIMs already include the use of CMPs. There is nothing to prevent Mr Anderson or any future post-holder being asked to undertake ad hoc reports into issues of wider national security relevance or being invited by Parliament to give his opinions. It is important that any such ad hoc report should not seek to provide oversight or review of the judiciary’s decisions on individual cases. That would not be appropriate.
My noble friend Lady Berridge asked about the database that is being made available to the special advocates. I can inform her that the closed database is to ensure that special advocates have access to judgments
for legal precedent value. However, the database will contain sensitive information and will not be appropriate for disclosure generally to Parliament.
All that said, I hope that I have gone some way to reassuring the noble Lord, Lord Beecham, and other noble Lords that the measures currently in place are sufficient to ensure that the Act, if the Bill achieves Royal Assent, is properly scrutinised and that the department takes seriously its responsibility to ensure that we are in a position to be held accountable in the way that Parliament has every right to expect. On that basis, I hope that the noble Lord feels able to withdraw his amendment.
Lord Beecham: My Lords, if I am right, this is the first occasion on which the noble Baroness has responded to a justice debate. I welcome her to her new responsibilities. I wonder whether she is by any chance related to Lord Stowell, an eminent 18th century judge from Newcastle. He was the brother of the Tory Lord Chancellor, Lord Eldon—the most reactionary Lord Chancellor that the country has ever had. Perhaps she would enlighten me on her genealogy or, if she is not sure, look into it.
Baroness Stowell of Beeston: I will not detain the House. He is no relation but I know of his existence, which is why my title is Baroness Stowell of Beeston.
Lord Butler of Brockwell: Perhaps I may point out that he had a connection with the college to which the noble Lord, Lord Beecham, and I also have a connection.
Lord Beecham: As does the noble Lord, Lord Marks. I had the misfortune to sit beneath the portraits of both those distinguished judges at my school and my college. I could not escape them but I would not wish to escape the noble Baroness.
Despite these warm words, I am somewhat disappointed by the noble Baroness’s reply on the amendments. Amendment 67A seeks, in effect, to replicate the independent review process of the independent reviewer of terrorism legislation without adopting that individual, as the noble Baroness, Lady Berridge, suggested. Having said that, it would not be beyond the wit of government to appoint a second independent reviewer of terrorism legislation and allied matters if that were thought to be required. It is the independence of the review that is essential. Furthermore, the post-legislative review process is normally designed to take place after three to five years. Five years is too long. This is a rather different piece of legislation from most of that which would be reviewed. We are dealing with some fundamental rights and a fundamental change in the justice system. It deserves special consideration. I hope the Government will think again about that. The same really applies to Amendment 67B. It is important that there should be in the public domain regular checks on precisely what use is being made of these procedures. Concerns have been expressed in Committee today that, like Topsy, the use of these things may simply grow. The legislature needs to keep an eye on developments here. The assumption is that
there will not be many. That is an assumption which needs to be tested regularly. A compilation of statistics on an annual basis should help that.
Lord Hodgson of Astley Abbotts: Does the noble Lord agree that the phrase “mission creep” could be made for this sort of thing? We just find it spreading out. Mission creep would be a most dangerous aspect of this legislation.
Lord Beecham: I concur with that view, hence the need for regular reporting, not just of the statistics. The next amendment I will move will deal with other aspects. There does not appear to be available in general an indication of how much use is being made of the process under the present regime. It will be even more important when we are looking at the new developments that the Bill proposes. I am somewhat disappointed with the reply. It may well be that we will have to return to these issues on Report. In the circumstances, I beg leave to withdraw the amendment.
67C: After Clause 8, insert the following new Clause—
“Open statements for closed judgments
Closed judgments must be accompanied by an open statement from the court, which shall include—
(a) the reasons for the closed material procedure;
(b) any factors which would be particularly relevant in determining whether all or part of the closed judgment could be made open at a later date;
(c) the duration of open hearings and closed hearings;
(d) the number of witnesses heard in closed proceedings, and the nature of those witnesses;
(e) the length of a closed judgment;
(f) whether national security was an issue in the proceedings; and
(g) the date at which the closed status of the judgment should be reviewed, which must be no later than five years from the date of the judgment.”
Lord Beecham: My Lords, this amendment was suggested effectively by Dr McNamara of the University of Reading, who is conducting a research project around—as he puts it—how different arms of the state control and manage information about terrorism and security. It is a project that has involved a great many government departments and individuals from government to police forces and the like. He suggested that it would be sensible, again given the important nature of the proposals in the Bill, to look at how the system is working in somewhat more detail than simply the numbers of cases we referred to in previous amendments. The thrust of this amendment is to require a judgment when it is made to give the reasons for the closed material procedure, such as national security, as well as the other factors that are listed in the amendment—I will not take up the time of the House by repeating them all.
The essence is to have a clear view of what is happening in individual cases and ultimately to make possible the availability of the status of the judgment. Paragraph (g) of the proposed new clause would give a date at which the status of the judgment should be reviewed—in other words it would create the possibility of opening up the material at some point. That would not be an absolute requirement. It would still be a matter for determination as to whether the material should be disclosed, but a time period would at least set the clock running for that possibility. In some cases it would not eventuate but in others it might be appropriate for the material to be disclosed. This would reinforce the acceptability if CMPs come into play because the public would have some assurance that ultimately consideration would be given to disclosing material. That may allay some of the fears that surround the issue. I beg to move.
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Lord Lester of Herne Hill: My Lords, this amendment is perfectly understandable and very prescriptive. It might be to the benefit of the House if I explained that I asked the Government in a Question for Written Answer whether they would introduce measures to ensure that judgments made by courts and tribunals under the closed material procedures were made public when the reasons for maintaining their secrecy no longer obtained. This, of course, relates to a later amendment.
My noble friend Lord McNally gave a Written Answer on 10 July, which may make any comment unnecessary. He said:
“Closed judgments contain highly sensitive material. For this reason they are not suitable for publication by law reporting organisations which are not security cleared. Closed judgments are usually handed down in tandem with an open judgment, and most judges”—
“state in their open judgment that a closed judgment has also been handed down ... Judges will put as much of their reasoning into open as possible, including statements of legal principle that are most likely to have cross-case relevance. It is open to special advocates and counsel for the Government to make submissions about moving material from the closed judgment to the open judgment. If the court is persuaded that it would not harm the public interest to do so, then material will be moved to the open judgment”.—[
Official Report
, 10/7/12; col. WA243.]
It then refers to the code of practice under the Freedom of Information Act. I mention that Answer because it shows that an unsatisfactory situation will obtain with regard to these judgments. Whether this or a later amendment or some other approach is needed, I have no doubt that standards are needed so that we get common—in fact universal—practice as to what we can do to make sure that judgments whose secrecy has been lost over time or because of particular circumstances may be made public in accordance with the principle of open justice.
Lord Pannick: My Lords, I, too, support the amendment, and not just because in principle it is right that judgments should be closed for as limited a time as necessary. There is also a very real practical consideration that, despite what the noble Lord, Lord McNally, said in his Answer that the noble Lord,
Lord Lester of Herne Hill, quoted, there have been examples of closed judgments that contained statements of principle that were not in open judgments or that contained statements relevant to other cases or potential cases. The difficulty is that those practising in this area who represent individual litigants do not have access to this body of jurisprudence. If we are to create this closed material procedure, we have to recognise that we are creating a body of case law that is not generally available. That is a very real problem for the rule of law. One way in which to address the problem is to minimise as far as we reasonably can the length of time for which a closed judgment is not generally available. For that reason, in addition to the reasons already given, I support the amendment.
Baroness Berridge: My Lords, I, too, support the amendment and am aware that part of this issue is covered by a later amendment in a separate group. I want to raise the very practical point that leads on from the point made by the noble Lord, Lord Pannick. From hearing evidence in the Joint Committee on Human Rights, a very basic question arose: where, physically, are these judgments?
Normally, you can go into a law library and they are all there. Special advocates and other people just seem to be unaware of where, physically, this body of case law is stored. We know from the answer to Mr Sadiq Khan that it seems not to be collated centrally. It is a very important question. It sounds incredibly basic, but we need to know where, physically, these judgments are stored.
Lord Judd: My Lords, as somebody who would anyway have supported the amendment, I just want to say that the last two interventions by the noble Lord, Lord Pannick, and the noble Baroness, Lady Berridge, have convinced me that this is an essential amendment.
The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, it is obvious that the amendment moved by the noble Lord, Lord Beecham, is important and goes to a number of aspects of the use of closed judgments. I think it is agreed that we are constantly trying to balance fairness and national security. It is self-evident that closed judgments contain material that should not be disclosed in the interests of national security. Of course, this is the only basis on which a judgment can be classified as closed. As is the practice in existing statutory regimes for CMPs, such as TPIMs and SIAC cases, judges will hand down an open judgment, in tandem with a closed judgment, that contains the parts of the judgment that can be disclosed without causing damage to national security.
In February 2010, special advocates raised concerns about accessing a searchable database of closed judgments. I hope this goes some way in answering the point raised by my noble friend Lady Berridge. The Government agree that it is important to ensure that those who are entitled to access closed judgments are able to do so efficiently and effectively. We have been consulting the Special Advocates Support Office on the creation, storage and dissemination of the head notes and are in the process of finalising arrangements. We anticipate
that the database will be populated with all historic closed judgments by the end of the summer. I know that does not go the whole way, as some noble Lords have indicated, but I hope that I have indicated that we have addressed the concern that was raised and are making significant progress towards meeting it.
The next part of my remarks will probably reflect what was said by my noble friend Lord McNally in his response to my noble friend Lord Lester. It is the case that judges will put as much of their reasoning into the open as possible, including the statements of legal principle that are most likely to have cross-case relevance. It is the role of special advocates to make submissions about what material can properly go into the open judgment. If the court is persuaded that it would not harm national security, material will be included in an open judgment rather than a closed judgment.
However, it is not always possible to provide an open statement containing the information as it is described in this amendment. For example, the amendment suggests that it should reveal the length of the closed hearing, the number of witnesses and the nature of those witnesses, which could be damaging to national security. If in the judgment the summary said that the closed session lasted five days while members of the Security Service gave evidence, this would provide to the claimant the knowledge that the intelligence services held a lot of information on them when they may not have been aware of that fact. As already outlined, it will be up to special advocates and counsel for the Government to make submissions about whether material can be included in an open judgment or should remain closed, with the final decision being for the court, which will decide that material should be classified as closed only if its disclosure would be contrary to the interests of national security.
The amendment also requires the judge to declare whether national security was an issue in the proceedings. I believe that this is unnecessary. As we have made clear on a number of occasions in Committee, the Bill makes it clear that the only reason a court can go in to a closed session is that the disclosure of some material relevant to the case would damage national security.
The Lord Chancellor’s code of practice on the management of records, issued under Section 46 of the Freedom of Information Act 2000, provides guidance on the management of records held by bodies subject to the Public Records Act 1958. Authorities are required to identify records worthy of permanent preservation and transfer them to the National Archives, a place of deposit for public records or the Public Record Office of Northern Ireland, as appropriate. Authorities all need to consider whether parts of records might be released if the sensitive information were redacted— in other words, rendered invisible or blanked out. Information that has been redacted should be stored securely and should be returned to the parent record when the exemption has ceased to apply.
I heard what was said by my noble friends and by the noble Lords, Lord Beecham and Lord Pannick, about when the national security considerations have in some respects flown off. I want to revisit this matter and discuss it with officials because I recognise the
point that has been made. I am not going to pretend that there may be an easy answer to it, but if there is no longer a national security consideration, I see the force of what has been said. However, I have tried to describe the current arrangements for the storage and permanent preservation of records.
However, as things stand, it is up to the courts to decide the detail to include in their judgments. The Bill allows the judges to make these judgments with as much information available to them as possible, while ensuring that the interests of national security are not damaged. I do not believe that Parliament needs to go further and dictate to judges specific information that they are require to release, and I therefore do not believe that the many detailed parts of the amendment are necessary. I hope that in the light of that explanation, the noble Lord will be willing to withdraw the amendment.
Lord Lester of Herne Hill: I am very grateful to my noble and learned friend for his open-minded response, but there are two problems. One is the problem of legal certainty, which is how the public, lawyers and people who are not special advocates can know exactly what the law is. That problem is obviously a human rights convention problem as well as a common law problem. The second problem is about whose responsibility it would be to make sure, when secrecy has been lost and national security considerations are no longer there, that something is done to put a matter into the public domain. I am still puzzled about who would be responsible. The final point is: how can one get guidance to the courts to ensure a common approach? Is it contemplated that rules will be made through amendments to Clause 7 or that guidance will be given? Will the judges be consulted and so on? These are practical problems that are important to address. As I understand from the response of my noble and learned friend, he is open to thought and discussion about those kinds of practical matters.
Lord Wallace of Tankerness: My Lords, there were three points. First, I understand my noble friend’s point about the availability of judgments that are closed to people who are not special advocates. That is a difficult problem that I cannot readily see a solution to, given that the very reason why they are closed judgments is because of the sensitive nature of the information in them the disclosure of which could be damaging to national security.
The second point is very much one of detail. Who would determine whether there was, in fact, no longer a national security consideration? Where would the responsibility lie? That is the very issue that I want to consider, because how that would be addressed does not readily present itself to me. I sought to indicate that there is an issue here. I am not pretending for a moment that there is an easy answer, but the issue is important to consider.
On the third point that my noble friend makes about consistency, the difficulty—perhaps it is a reality rather than a difficulty—is that every case will be dealt with on its own individual circumstances. What goes into an open judgment or a closed judgment may well be the result of representations, debate and argument
before the judge by special advocates. In those circumstances, it is difficult to ensure that there is rigid consistency because that might inhibit more openness in circumstances where a special advocate makes a compelling case that particular material ought to be included in an open, rather than a closed, judgment. It may be the counsel of perfection, or of the impossible, to think that there would be consistency when we are dealing with circumstances that can differ considerably from case to case. I think it must be left to the argument presented by counsel on both sides—special advocates and counsel for the Government—to determine what a judge puts into open judgment and what is put into closed judgment.
I hope that with those words, the noble Lord, Lord Beecham, will consider withdrawing the amendment.
Lord Beecham: I am grateful to the noble and learned Lord for agreeing to give consideration to that particular aspect. There are two issues here. One is public confidence in the system, for which some information about the process—I am not talking about detailed information about the closed material itself—needs to be in the public domain. The second issue is that this should be done in a systematic way, perhaps by the equivalent of the 30-year rule for Cabinet papers and the like.
I am not suggesting for a moment that we should set out to prescribe a given period at this point, but at some point the option of disclosing material ought to be built into the system. This should not necessarily be with a particular time frame in mind, but be a process that is available to the Government of the day to determine, perhaps in conjunction with the courts, what information might be released and when. That is something that we might look at further on Report, in addition to the point that the Minister has agreed to take back. However, in the circumstances I beg leave to withdraw the amendment.
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67D: After Clause 9, insert the following new Clause—
(1) The jurisdiction of the court in section 6 proceedings shall be exercised by a judge designated by the Lord Chief Justice for such purposes.
(2) A judge so designated shall be referred to as “the disclosure judge”.
(3) The disclosure judge shall not be the trial judge of the relevant civil proceedings.”
Lord Thomas of Gresford: My Lords, I raised in my Second Reading speech the question of a separate judge for the determination of disclosure issues, in particular PII applications and Section 6 proceedings: that is, a judge who is separate and distinct from the trial judge. The reason I believe this to be a necessary safeguard in civil proceedings is because the trial judge
in civil proceedings is the judge of fact. That is quite distinct from criminal proceedings in the Crown Court, where it is the jury that makes the decision on what has happened.
It was the procedure instituted in the Diplock criminal courts in Northern Ireland, where the judge, unusually, sat alone without a jury. He decided the facts and returned the verdict. The purpose of this practice was to build public confidence in the criminal trial process in the absence of a jury. The importance of public confidence in the system has been emphasised today, most particularly by my noble friend Lady Williams, but also by others who have referred to the need to keep public confidence in the judicial system.
This proposal has been the subject of discussion with the Minister, and with the Secretary of State, for which I am grateful, and I have been provided with a note which sets out the Ministry of Justice’s views. The first reason for its lack of support for my suggestion is that,
“it is better from the point of view of the administration of justice and judicial case management that the judge trying the case—who will have a direct interest in ensuring that he or she oversees a fair trial process—should be the judge who determines whether a CMP should be allowed”.
This totally ignores the fact that, in ordinary civil litigation, preliminary issues are the province of a Master of the Queen’s Bench, or a registrar. He deals with strike-out applications, case management, and in particular, with disclosure under Part 31 of the rules of the Supreme Court. Applications seeking further disclosure or contesting claims for disclosure are tried by the Master subject to appeal, not necessarily to the trial judge, but to another High Court judge.
In civil proceedings, unlike criminal proceedings, a two-tier system is in existence at the moment. Anything that is ruled out by the Master on the basis that it should not be disclosed or is irrelevant or inadmissible is not put before the trial judge. The trial judge does not become involved in these proceedings until the case is ready for trial and the disclosure issues are already dealt with.
Another aspect of the Master’s work is to deal with, as I said, strike-out applications, where allegations in the pleadings which are irrelevant or scandalous are struck out and never come before the trial judge at all. Clause 9 says that subject to Clauses 7, 8 and 10, the normal rules of court continue to apply, in relation to disclosure. That seems to mean that the Master would govern all applications in the case relating to material which is not the subject of a Section 6 application but, when it comes to sensitive material, those applications are dealt with by the trial judge. I do not believe that the Ministry of Justice has fully taken on board the standard everyday practice in civil proceedings, whether in London or across the country, where preliminary issues are not dealt with by the trial judge.
The second reason given by the Ministry of Justice for rejecting my suggestion is that relevant, but very sensitive, evidence, which would fall to be excluded otherwise from the proceedings under a public interest immunity application, is considered by the trial judge. I draw attention straight away to the difference between “material”, which is the word used throughout the Bill—Section 6 applications relate to material—and
evidence, which is what is admissible and what is relevant and what the judge may take into account in coming to his decision.
“The issue is about allowing the judge to know the full facts, even in circumstances where they cannot be fully shared with the claimant. So there will usually be no question of the judge’s mind being swayed by evidence which ought not to be taken into account at all. It is about allowing the judge to take all the evidence into account”.
Of course, if all the material is put before the judge—not evidence, but material—he still has to exclude from his mind irrelevant and inadmissible material. Presumably that is multiple hearsay, inexpert opinion, the product of intercept and so on.
On intercept, I want to ask the Minister a very specific question. Under the provisions of this Bill on a Section 6 application, the judge is permitted to look at intercept material. Is he, as the trial judge, permitted to consider intercept evidence for the purposes of his decision on the issues between the parties on material that would be inadmissible in open proceedings? The Bill as drafted suggests that he may take such material into account in making a declaration under Clause 6 that a CMP application may be made, but nothing is said in the following clauses about whether he may take inadmissible evidence, like intercept, into account in formulating his judgment.
Indeed, there is a huge hole in this Bill. It deals with a Section 6 application and how you can make it; it deals with how the judge determines that application and what rules are to be applied; and it deals with how he is required to withhold material the disclosure of which he considers would be damaging to the interests of national security; but having made all those decisions what then? One would have expected a clause saying something to the effect that the judge in open court may take into account the material that he has considered in the Section 6 application. One would have expected at that point that the Bill would not be silent about what happens afterwards and to what degree he can take into account what he has seen but which he cannot disclose. If evidence is inadmissible in open proceedings, how can it be inadmissible in closed proceedings? The inherent unfairness of Section 6 applications is doubly compounded.
That brings me to the Government’s third point. Again, I quote:
“It is normal for judges at all levels to decide whether evidence is admissible and, if it is not, to put it out of their minds when reaching a judgment”.
That seems to confirm that the judge is to take into account only admissible evidence in deciding the issue. Again, I ask: does that apply to the intercept evidence that he is permitted to see in a Section 6 application? Does he put intercept out of his mind?
“This is true even when the judge is also the decision maker on the facts—for example in criminal cases in the magistrates’ court, where there is no jury; and in cases in the civil courts where PII claims are made”.
We are most certainly not dealing with criminal proceedings in the magistrates’ court in this Bill. I would be grateful if the Minister would indicate how
often PII hearings do take place in such magistrates’ courts, where the magistrates carry out the Wiley test of weighing the interests of secrecy against the interests of justice. I have never heard of it happening. It may do, but I have never heard of PII applications determined by magistrates. In the civil courts, of course, I repeat, the judge discards material which he rules should not be disclosed as inadmissible —that is to say, it does not enter into the process of his determination of the issues in the case. He must sift out, from the material put to him in the Section 6 application, what is to be discarded because it is inadmissible and take into account only relevant evidence.
The final substantive point made by the Ministry of Justice is that a separate judge would have to review disclosure decisions as the trial progresses. Perhaps he would, but he would be fully informed of the state of the proceedings and of the issue which had arisen in the open proceedings, no doubt by the state’s representative, who would discuss the position with the claimant’s special advocate before such a hearing. There are ways of getting round what goes on in the open hearing which may be required to be reported back to the disclosure judge.
My point is that the designation of a disclosure judge by the Lord Chief Justice, although I put it might be more appropriate to say the Lord Chancellor, or, since it is civil proceedings, the Master of the Rolls would ensure that there is a cadre of judges, security cleared, who would develop expertise in this type of case. They would quickly be adept at redaction, gisting, disclosure to a security ring or whatever way they can deal with evidence or parts of evidence which might be disclosed to the parties. A disclosure judge could, for example, permit the special advocate to ask the claimant specific questions by way of taking instructions and could control the manner in which that would happen. If the disclosure judge decided there was a limited area of the evidence that justice demanded that the trial judge, but not the parties, should see, I suppose that in extremis that could be done. There could be a tiny residue of material which cannot be disclosed by gisting or in any other way to the parties in the open proceedings. Otherwise, however, the trial judge would deal with the issues between the parties only on the admissible and relevant evidence which the disclosure judge had decided should be open to them all.
The Government have suggested that the rationale of my amendment is to avoid the contamination of the judge’s mind in relation to material which he has seen but which is not shared with the parties. The use of the pejorative word “contamination” clouds the issue; the intention of the state in applying for Section 6 proceedings is exactly to influence prejudice or, if you like, contaminate the judge’s mind in coming to his judgment. I am concerned to ensure that justice is seen to be done in an open and transparent way that will command the confidence of the public and continued respect for the rule of law. I beg to move.
Lord Marks of Henley-on-Thames: My Lords, I added my name to the amendment put down by my noble friend Lord Thomas of Gresford. This debate is informed by the far-reaching discussion that we had
last Wednesday on the relationship between PII and CMP. I suggest that in that debate there emerged a consensus around a series of principles which can be distilled as follows.
First, the use of CMP should always be a last resort given the inherent injustice in the trial judge seeing evidence that is withheld from one or more of the parties. Secondly, there should be substantial flexibility in considering how far a just determination of the issues could be achieved by relying on the PII procedure where the exclusion of security-sensitive material under PII would not make determination of the issues impossible. Thirdly, the court should always, as far as possible, make use of gisting, redaction and other ways of protecting security-sensitive material rather than relying on CMP. Fourthly, before resorting to CMP the court should always be satisfied that the public interest lies in having closed proceedings rather than in letting the case go without a determination on the merits at all. Finally, in any CMP, the use of closed material should be kept to the minimum.
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The application of those principles requires in every case a careful balancing exercise by a judge. That judge’s task is to determine what evidence will be heard in the open and how, what evidence will be excluded under PII or for any other reason, and what if any evidence will be heard in closed proceedings and under what conditions. It is far preferable that the judge conducting the exercise should not be the trial judge, but another judge independent of the judge responsible for the trial of the issues.
A designated judge or judges will be able to build up a body of expertise in dealing with these difficult questions to give detailed attention without inhibition to preparing the body of evidence that will form the basis of the trial judge’s determination. That exercise should be conducted without prejudicing the trial judge, who should consider only the evidence that he or she may properly take into account.
Lawyers are all familiar with the process whereby a judge is said to put out of his or her mind the evidence that he or she has ruled inadmissible. The noble and learned Lord, Lord Woolf, talked of the process last week. However, in our heart of hearts, I suggest that even the purest lawyer is aware that the process is flawed. It may work when the effect of the exclusion of inadmissible evidence is that no acceptable evidence remains to support a particular conclusion. In that case, the result simply follows the exclusion. However, where there is other evidence in support of a conclusion, it is almost impossible to be confident that knowledge of the excluded evidence does not sway the mind of even the most conscientious judge.
Furthermore, even if those of us who are judges and lawyers can be convinced that the process of a judge putting excluded material out of his or her mind is effective, the public cannot be expected to accept such a concept. The appearance of justice must suffer if the public know that the judge has seen evidence that he or she is not permitted to take into account.
I accept entirely the point that this is what happens in those cases where a PII application is made and succeeds after the judge has looked at the evidence.
However, that does not make it right. In Northern Ireland, as my noble friend pointed out, there was a disclosure judge in the Diplock courts. There are other similar cases in English proceedings, not only, as he said, where the Master determines preliminary issues, but where it is necessary for a judge to see at an interlocutory stage material such as payments into court or offers that have been made that the trial judge may not see. In those cases, a different judge is required to hear the trial.
As a matter of fairness, we should arrange for these difficult evidential matters that are the subject of the Bill to be determined by an independent judge. If a disclosure judge deals with these issues, leaving the trial judge to determine the issues in the trial on the basis of the evidence and procedure that have been independently determined by a disclosure judge, I suggest that that is the fairest arrangement that can be made consistent with having the issues in the case judicially determined.
As has been pointed out a great many times in these debates, the proposals in the Bill import into ordinary civil cases a new jurisdiction that involves a substantial and, for many of us, deeply disturbing departure from the principles of fairness and open justice that lie at the heart of our system. I suggest that it is incumbent on us to make it as clear as we can that the system will be administered as fairly and as transparently as possible. The introduction of an independent disclosure judge is a minimum step that we should take in that direction.
Lord Pannick: My Lords, I sympathise with the objectives of the amendment and I agree with much that was said by the noble Lords, Lord Thomas of Gresford and Lord Marks of Henley-on-Thames. However, I have this concern about the amendment: in practice it will be very difficult indeed for judges to determine whether to move into a closed material procedure as an abstract preliminary question. We are far more likely to get a sensible result from a judge on whether it is necessary to move into a closed procedure, and a far more sensible result on the balance of competing interests, if the judge is fully aware of all the detail of the case and has heard the opening from the parties concerned on both sides with the open material. The judge will then be able to take a far more informed and sensible view on whether this exceptional procedure is really required.
I am very concerned that if these matters are addressed as a preliminary question, we may well find that judges—very properly, to protect national security—are going to authorise far more closed material procedures than would actually be necessary if the judge were fully aware of all the details of the case and had heard at least the opening statements on an open basis.
Lord Thomas of Gresford: Would not the problem then arise that disclosure is a preliminary part of the procedure in ordinary civil proceedings? It is upon disclosure and the pleadings that very important decisions are made: for example, for payments in and settlement of a case, and so on. As I understand the noble Lord, he is saying, “Well, leave it until the trial has begun and both sides, or at least the plaintiff, have opened
their case. Only then should issues of disclosure take place”. Now, suppose the trial has started, the expense has been incurred, and something very significant appears as a result of a disclosure application which makes months of work completely unnecessary. Is that not the danger of his course?
Lord Pannick: The noble Lord is of course correct; that is a danger. However, very often, highly sensitive questions of disclosure that raise issues of PII are not dealt with as abstract, preliminary questions, but on the basis that in civil litigation, one needs to see precisely how the case is going to be argued, how material is going to be deployed, and what the issues are. I suggest to the noble Lord that it is going to be very difficult indeed, particularly in this exceptionally sensitive area, for a judge hearing matters on a preliminary basis to form an accurate and informed assessment of what we all agree are going to be exceptional categories of cases where closed procedures are appropriate, on this preliminary basis. That is my concern. It is a difficult issue.
Lord Thomas of Gresford: This is a very useful dialogue. I hope other noble Lords are listening. Is it not the case that strike-out applications, for example, and all sorts of issues are tried on the pleadings? Donoghue and Stevenson was tried on the pleadings. Major cases are tried on the pleadings because, unlike criminal procedures where the defence statements are laughable, in civil proceedings the case must be set out very fully and considered by both sides, and all the evidence must be produced up front, well before the trial starts.
Lord Pannick: The noble Lord is correct and I accept, at least to an extent, that there may be Clause 6 cases where a discrete, fundamental issue can be identified at an early stage. However, I suggest that there will also be cases—the majority, I suspect—where the issues will not be formulated and clarified in this specific way on a preliminary strike-out basis. I am concerned that it is inevitable that there will also be cases where fresh evidence comes to light or where, as a result of the way the case is put in the trial, new Clause 6 issues arise. It seems impractical to require the trial judge, who has already started to hear the case, then to say, “I am going to stop”, whereupon the issue would go off to a disclosure judge. There are real issues here and I am far from convinced that the amendment, the purposes of which I entirely sympathise with, will result in fewer CMPs than the procedure that is in the Bill.
Lord Faulks: My Lords, I share with noble Lords who have proposed this amendment the desire that there should be public confidence in the system. However, like the noble Lord, Lord Pannick, I do not think that this is the solution. It is true of course that there are circumstances in which it is desirable, if not essential, that one judge should hear one part of the proceedings and another should hear another part, but the question of it being desirable, as it were, to have separate judges is a different matter. In fact, there is quite a strong argument that there should be greater continuity. The days of having one judge hearing preliminary issues
and summonses and then the matter moving on to another judge have to some extent been changed in the Commercial Court, the Technology and Construction Court and in many cases in the county courts, so that if possible there is the same judge with a grip on the case right from the beginning.
On the face of it there is considerable advantage to having continuity unless, of course, the process is going to result in injustice to the litigant. We are talking in the context of CMPs with a claimant who may feel that injustice is being done to him or her by virtue of the possibility of closed material provisions. All I can say is that if I were in the position of that claimant, I would much prefer the judge who first heard and no doubt scrutinised the application under Clause 6 to conduct the case throughout in order to make sure that there is fairness, to show the flexibility we discussed in the last session of this Committee, and to deal with what might arise in accordance with the guidance given by the Bill in such a way as to provide justice. Although I wholly understand what motivates the amendment, I fear that it is not going to achieve what it is intended to.
Lord Beecham: My Lords, as I said, I have a good deal of sympathy for the amendment proposed by the noble Lord, Lord Thomas of Gresford, and I am particularly seized of the argument of the noble Lord, Lord Marks. Ultimately it comes down to a question of the public perception of a situation where you have what appear to be secret trials at the behest of the Government of the day. That puts the case in a different category from other kinds of case where there is perhaps a lesser degree of public interest or concern about the nature of the proceedings as a whole.
Cases of this kind are distinguishable from the kind of case that the noble and learned Lord, Lord Woolf—another, if I may say, eminent Newcastle holder of high judicial office—referred to. There is a distinction to be made with cases where a judge can put matters out of his mind, and no doubt judges would be able to do so. However, I suspect that the public will be more concerned, to the degree that they are at all concerned about these things, in a case of this kind where we are talking in effect about closed procedures and what can be described loosely but not entirely inaccurately as secret trials.
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I lean very much towards the arguments propounded by the noble Lord, Lord Thomas, and supported by the noble Lord, Lord Marks. Similar arguments could also apply to the PII procedure. After all, the judges there are invested with knowledge of material, which may not be disclosed. The same argument about possible taint and possible perception could apply. There is a question about whether the formulation of this amendment should also apply to those circumstances.
My noble and learned friend Lord Falconer, who is elsewhere, approves of the idea, but his inclination is towards a system under which the first judge—let us call him the disclosure judge—should decide whether or not he should go on to the hear the trial having made that adjudication. That is a halfway house and
I am not certain that it is an acceptable way forward, but it is perhaps something to be thought about as a possible alternative, meeting some of the objections which no doubt the noble and learned Lord will be raising to the proposition contained in this amendment. For those reasons about public perception it is worth exploring this further. I do not know whether the noble and learned Lord is willing to do that. It is something to consider in the light of the unique category of case here and the possible degree of public concern around the process presently prescribed by the Bill.
Lord Wallace of Tankerness: My Lords, I am grateful to my noble friends for tabling these amendments. The issue of the role of the judge in providing fairness during a close material procedure is important. As my noble friend Lord Marks said, we have been looking in our debates at the careful balancing exercise by a judge in these matters. As he has said and other noble Lords have indicated, the issue of public perception and public confidence is important too. I understand why my noble friend might consider it fairer to have a separate judge to deal with the applications for a declaration that a CMP should apply and on individual pieces of evidence. This is a matter about which my noble friend Lord Thomas has been particularly anxious. He raised it at Second Reading and he has raised it with me and with the Lord Chancellor. We have given careful consideration to it. He has had the advantage of being able to anticipate what I am about to say to him, but I would still like to say it and perhaps give some explanation as to why we are not being persuaded by the merits of the proposal.
It is better from the point of view of the administration of justice and judicial case management that the judge trying the case should be the judge who determines whether a CMP should be allowed and what materials should be heard in closed proceedings. That judge has a direct interest in ensuring that he or she oversees a fair trial process. In earlier debates it has been put to the Government that we have supplied insufficient room for judicial discretion and it seems to us that a single judge in charge of the entire process is more likely to guarantee judicial discretion than if the roles of disclosure and trial are compartmentalised.
My noble friend is right to say that there will be cases too when masters decide pre-trial issues. My anticipation of what is likely to happen is much as described by the noble Lord, Lord Pannick, and echoed by my noble friend Lord Faulks. It is more likely that these issues come up in the course of the proceedings. In TPIM cases, for example, there are disclosure issues at the beginning. There is an ongoing issue of disclosure. These will be addressed as the case goes on. Indeed, fresh issues may well arise mid-case. It was also pointed out that in cases where public interest immunity is asserted, this is normally dealt with by the judge hearing the case. I am not saying that it could not be dealt with as a preliminary issue but it very rarely is.
In addition, the whole point of the CMP provisions is to ensure that relevant but very sensitive evidence, which would otherwise be excluded from the proceedings under PII, is considered by the judge. It is not a question of the purpose of this being to exclude material altogether from consideration in the case. It is
in fact the opposite: it is to allow it to be considered in some very exceptional circumstances. It is about allowing the judge to know the full facts, even if they cannot be shared with the claimant for reasons of potential damage to national security. There will usually be no question of the judge’s mind being swayed by evidence that ought not to be taken into account at all. It is about allowing the judge to take evidence into account.
My noble friend asked about intercept evidence. The provision in Clause 6 is to put to one side whether or not there would be an exclusion for intercept material in determining whether a party would be required to disclose material, but it is the intention of the Bill that intercept evidence should be permitted. The provision for this is in paragraph 9 of Schedule 2. It is of course a matter for the courts and an individual judge in a particular case as to what weight would be given to that evidence. I hope that answers the very specific question that my noble friend raised.
Lord Thomas of Gresford: As I understood it, paragraph 9 of Schedule 2 refers to what the judge hears in the Section 6 proceedings. What I do not see, when he draws my attention to it, is that the judge can take into account intercept evidence in determining the issues between the parties in the trial. It seems to be quite wrong that you could take into account intercept evidence that you have heard in closed proceedings for the purposes of the trial when it would be inadmissible if the proceedings were not closed.
Lord Wallace of Tankerness: My Lords, I refer my noble friend to paragraph 9 and indicate that it is the intention that intercept evidence should be permitted before the court. We may wish to have a debate as to whether that is right or wrong—
Lord Thomas of Gresford: Perhaps I may point out the problem that then arises. The press have been full of “secret trials” and so on, and now, if the noble and learned Lord is right, the Government are proposing a secret trial, because inadmissible evidence, which you could not adduce in any form in an open proceeding, whether it is sensitive or not—intercept evidence may not be sensitive; the methods of obtaining it may be but the evidence may not be—could not be introduced in an open trial. Yet the noble and learned Lord is saying that the judge can decide the case—not the Section 6 application but the case—on inadmissible evidence that he has heard in secret. What are the press going to make of that?
Lord Wallace of Tankerness: My Lords, I will no doubt be corrected if I have got this wrong but I think it is the case that it is currently permissible in some other areas where there are closed material proceedings. We may well wish to have a fuller debate on intercept evidence rather than dealing with it as part of a debate on whether there should be a separate disclosure judge. I confirm that in fact it is available in all other closed material proceedings, so this is keeping it in line with what happens elsewhere. No doubt we may return to this if my noble friend wants a more fundamental debate on the role of intercept evidence. I just point out what the position is with regard to the Bill, since he asked a specific question.
In any event, judges are accustomed to consider material for the purpose of making evidential and disclosure decisions. It is normal for judges at all levels to decide whether evidence is admissible and, if it is not, to put it out of their minds. I know that there has been some discussion about the extent to which that is possible. Obviously, it is the case in dealing with PII claims where PII is successfully asserted. My noble friend asked about the number of PII claims in criminal cases in magistrates’ courts. That is not really the point that we were seeking to make in the speaking note which he saw; rather we sought to make the point that in magistrates’ courts there must, day in, day out, be cases, not of PII, in which magistrates have to decide on the admissibility of evidence. The argument is heard before the magistrates as to whether particular evidence is admissible or not and, if it is not, they have to put it out of their minds. The point I was making is that there is no problem in principle, even in criminal cases in magistrates’ courts, for judges to decide issues of fact and law. There are cases, too, when they will have to put out of their minds evidence which they have deemed to be inadmissible.
A separate judge would make review of disclosure decisions as the case progresses cumbersome, as was pointed out by the noble Lord, Lord Pannick. The disclosure judge would need to follow the progress of the case in order to understand potential implications for the fairness of proceedings before he or she was able to rule on disclosure issues, and that could cause delay. I accept that this is not the same as the amendment moved by the noble Lord, Lord Dubs, earlier this evening, but some of the same considerations arise.
I take this opportunity to clarify what I said in an earlier exchange with the noble Lord, Lord Dubs, when he said that the Bill will abolish juries. I think that I responded by saying that these are civil proceedings presided over by a single judge and do not relate to criminal proceedings where there would be a jury. For clarification and for the avoidance of doubt, the position is that the Bill amends the Senior Courts Act 1981, and its Northern Ireland equivalent, which contain a residual right to jury trial in some civil cases. I do not think that that was what the noble Lord, Lord Dubs, had in mind, but it is important to say that for completeness and clarification.
Lord Thomas of Gresford: For the avoidance of doubt, I was involved in a case of false imprisonment tried as a civil case in the Royal Courts of Justice in front of a jury, and I am not aware that that possibility has been abolished.
Lord Wallace of Tankerness: For completeness, the Bill allows the court, however, to refuse an application for a jury where it is of the view that the trial will involve a CMP. Highly sensitive information clearly could not be shared with a jury without presenting serious national security concerns and risks, but the original point is that the Bill does not affect trial by jury in criminal cases, since the Bill does not relate to
criminal cases. Of course, criminal cases have been adduced with regard to Northern Ireland, where the practice is to have a separate disclosure judge but in a very specific context—the trial of serious terrorist offences in a climate where there a real risk of paramilitary and community-based pressures on jurors and a history of terrorist threats against judges. There, it is a very valuable safeguard, but I do not believe that such considerations apply to CMPs in civil cases.
I reassure my noble friend who raised this matter earlier that although we have given them considerable consideration, we remain unpersuaded by the arguments for a separate disclosure judge. We believe that the approach we are proposing here will lead to fairness with the same judge involved in all aspects of the case. Therefore, I ask my noble friend to withdraw his amendment.
Lord Thomas of Gresford: My Lords, I am not surprised, but I am very disappointed by that answer. I hope that things can settle down over the Recess so that the matter can be reconsidered. It seems obvious to me that it would be in the interests of justice for there to be a separate disclosure judge as I have described.
On the point raised by the noble Lord, Lord Pannick, of course issues can arise in the course of the case where what did not appear to be relevant becomes relevant. That can be covered—and one way of doing it would be to give the special advocate a watching brief throughout the case. Particularly if the Attorney-General is paying his expenses, there is no reason why he should not continue in that role, to watch how the case develops and to see if applications need to be made.
It must be in the public interest that disclosure should come at the proper time, early on in the proceedings before a case is ready for trial. At that point, as I indicated to the noble Lord, Lord Pannick, serious decisions are made: is this case one where you make or accept an offer, settle or negotiate? In what way can you shorten the cost and expense of a trial? Certainly in my experience, one always attempts to do that because a settlement may produce a better result than a judgment in your favour if you negotiate hard and well.
I wish I could expand a little further on this, but I am afraid I cannot. I ask leave to withdraw the amendment but hope that we will have further discussions on the matter and come back to it on Report.
Clause 10 : General provision about section 6 proceedings