23 July 2012 : Column 471

23 July 2012 : Column 471

House of Lords

Monday, 23 July 2012.

2.30 pm

Prayers—read by the Lord Bishop of Bristol.



2.37 pm

Asked By Baroness Tonge

To ask Her Majesty’s Government what assessment they have made of the recent report by Medical Aid for Palestinians and Save the Children on the health of children and pregnant women in Gaza.

Baroness Northover: My Lords, the UK is very concerned about the health of the people in Gaza, as highlighted by this report, and we are already acting on the issues raised. We provide multiyear funding for food security and service delivery. We also work with partners to promote humanitarian access and the entry of medical supplies and materials for infrastructure rehabilitation.

Baroness Tonge: My Lords, I thank the noble Baroness for that Answer. Despite the claim by the Foreign Secretary in this year’s Foreign Office report that human rights lie at the heart of our foreign policy and DfID’s annual report trumpeting value for money in delivering overseas aid, humanitarian assistance in Gaza has not worked. This report tells us that since the deliberate destruction of the sewage plant in Gaza during Operation Cast Lead five years ago—

Noble Lords: Question!

Baroness Tonge: My Lords, this is important and I beg noble Lords to listen. The children of Gaza are denied their human rights. They have become malnourished and anaemic; they suffer from chronic diarrhoea; they are stunted in growth and psychologically disturbed; and they are being poisoned by 10 times the safe level of chlorides and nitrates in their drinking water. Three children have already drowned in sewage.

Noble Lords: Order!

The Minister of State, Ministry of Justice (Lord McNally): My Lords, the noble Baroness has been in this House long enough to know that she is now abusing Question Time. I know that she feels strongly about this matter but she must ask a short question.

Baroness Tonge: I am glad to ask a short question. Can the Minister tell this House when the Government will demand that Israel pays for the damage it has done to the infrastructure of Gaza and allow materials through the crossings? In the light of these conditions and the continuing expansion of the settlements in the West Bank, will we be supporting the upgrade of the EU-Israel Association Agreement in Brussels tomorrow?

23 July 2012 : Column 472

Baroness Northover: My Lords, the UK is very concerned about the state of the sewage system in Gaza. Indeed, 90% of the drinking water is undrinkable. This is clearly unacceptable and we call on Israel to allow the entry of essential items to permit the rehabilitation of the water network. On the noble Baroness’s last point about the meeting tomorrow, this is of the EU-Israel Association Council. It will discuss various matters in line with the existing EU-Israel action plan. It will not upgrade EU-Israel relations. The EU is very clear that no progress can be made on upgrading the wider EU-Israel relationship until there is substantial progress towards a two-state solution.

Baroness Ramsay of Cartvale: My Lords, is the Minister aware that the World Health Organisation has blamed, in no uncertain terms, the problems of the import of medical supplies into Gaza on the lack of communication between the Palestinian Authority and Hamas? Can the noble Baroness assure the House that Her Majesty’s Government are doing everything they can to persuade the Palestinian Authority to improve its relations with Hamas, at least in relation to the import of medical supplies into Gaza?

Baroness Northover: We call on all parties to improve their co-ordination. Israel, too, needs to provide uninterrupted access for medical supplies, personnel and patients in and out of Gaza.

Lord Hylton: My Lords, the noble Baroness has virtually agreed that we are facing a public health disaster. Can she say how soon that will happen if things just drift on as they are at present? When will UNRWA be able to build the schools and houses for which it has both plans and funds?

Baroness Northover: At the current rate of depletion, the Gaza aquifer will become unusable by 2016 and the damage will be irreversible by 2020. We are urging Israel to allow supplies to come in through the crossings so that the damage that has been done can be rectified.

The Lord Bishop of Exeter: My Lords, five years on from the start of this blockade the indiscriminate attacks from Gaza on civilian populations in Israel shows no sign of abating. While these attacks should be condemned as abhorrent, does the noble Baroness agree that the continued attacks show that the restrictions have not served their avowed objective of weakening Hamas and other extremist groups in Gaza? Is there not a danger that the endemic poverty in Gaza, in itself so concerning and so painfully documented in this report from Save the Children, now also risks fuelling the conflict further by exacerbating the very conditions which provide a fertile recruiting ground for extremist organisations?

Baroness Northover: The right reverend Prelate makes a very cogent case. We condemn violence on both sides, but improving the economy in Gaza is essential, not only for the people of Gaza but also in Israel’s security interests. At the moment, the blockade of Gaza and insufficient access through the crossings has

23 July 2012 : Column 473

meant that use of the tunnels has magnified considerably, which assists Hamas and certainly does not assist Israel’s long-term interests.

Baroness Deech: Is the Minister aware that thousands of Palestinians are treated in Israeli hospitals and that Palestinian trainee doctors receive training there as well? The situation across the Middle East for women and children is dire—for instance, in Syria, where thousands of children have been killed. Could it be that non-governmental organisations go in to make a report only where they are allowed and that we therefore take our eye off much worse situations?

Baroness Northover: The noble Baroness might like to bear in mind that the OPT, the Occupied Territories, are the poorest part of the Middle East and North Africa, with the exceptions of Sudan and Yemen. It is against that background that we urge that everything possible is done to allow the economy of the West Bank and Gaza to grow. The WHO estimates that travel is denied to 10% to 25% of medical professionals and students who apply for Israeli-issued permits to leave the West Bank and Gaza to attend medical training. That does not help things either.

Baroness Kinnock of Holyhead: My Lords, is the Minister aware that no fewer than 16 internationally led projects designed to address Gaza’s desperate needs as regards water and sanitation have not yet been implemented since the easing of the blockade in 2010? In fact, only one fifth of the materials have been allowed through because of the blockade, with the rest left sitting in storage in Israel. What, specifically, is the UK doing to ensure that these 16 urgent projects are being implemented and to insist to the Israeli authorities that there is a timetable for completion?

Baroness Northover: What is vital here is that Israel recognises its long-term security interests. We understand its concerns about security, but these specific projects to help rebuild the economy in both the West Bank and Gaza are essential for the prosperity of those areas and the future security of Israel.

Aviation: Policy


2.46 pm

Asked By Lord Spicer

To ask Her Majesty’s Government when they will publish their aviation policy.

Earl Attlee: My Lords, the Department for Transport published on 12 July a draft aviation policy framework setting out the importance of aviation to the UK economy and the Government’s proposals on how aviation can grow and deliver for the economy while meeting its noise, climate change and habitat obligations. The Government aim to adopt the final aviation policy framework next spring. Separately, a call for evidence on maintaining the UK’s international aviation connectivity will be published later this year.

23 July 2012 : Column 474

Lord Spicer: Does my noble friend agree that aviation in general and Heathrow in particular are vital to the nation’s economic prosperity and growth, and that this is particularly apparent in the week in which we begin to host the Olympic Games? If he does, and if the Government do, why the delay in the consultation process about airports?

Earl Attlee: My Lords, I agree that aviation is vital to the economy of the United Kingdom. My noble friend asked me about the delay. It is important that we get this policy right and that it can be sustained even with a change in government.

Lord Clinton-Davis: Aviation companies and trade unions argue that the aviation policy devised by the Government is based on indecision not decision. Would it not be hugely advantageous for the UK if we had a third runway at Heathrow, embarked on large-scale road traffic amelioration there and, at the same time, sought to develop a south-eastern airport? Would that not be an advantage?

Earl Attlee: My Lords, the noble Lord suggests that there would be an advantage in having a third runway. Of course there would be an advantage in having a third runway, which is why the previous Government supported one. However, we also need to bear in mind the interests of the more than 200,000 people who live in west London underneath the flight path.

Lord Trefgarne: My Lords, can the Minister confirm that business aviation and general aviation will continue to play an important part in the Government’s aeronautical thinking?

Earl Attlee: My noble friend makes an important point. At a meeting with my noble friend Lord Rotherwick, I agreed to take forward to my right honourable friend Theresa Villiers the importance of maintaining general aviation airfields.

Lord Soley: I can tell the Minister, as someone who lived under the flight path in west London for something like 30 years and represented the area, that in fact opinion there is much more evenly divided than he says. Why? Because Heathrow provides enormous levels of employment; some 170,000 jobs depend on it remaining a premier hub airport. For the sake of the economy and of jobs, will the Government finally make their mind up?

Earl Attlee: My Lords, the noble Lord is quite right about the number of jobs involved at Heathrow Airport. It is, of course, a major consideration that in moving one’s hub airport somewhere else you would have to move 176,000 employees—over time, I agree.

Lord Wigley: My Lords, will the Minister confirm that a central part of aviation policy is the question of pilot safety? Will he recall the representations made to him by my noble friend Lady Mar about the quality of air in cockpits? Will he confirm that since he refused

23 July 2012 : Column 475

to accept those arguments fairly recently, his department has received representations on behalf of pilots who are extremely concerned about this matter?

Earl Attlee: My Lords, I can confirm that I have received numerous e-mails on this particular subject, and I will be very surprised indeed if the noble Countess does not pursue the matter vigorously on Report. I am looking forward to the debate.

Lord Davies of Oldham: My Lords, is not the Government’s policy since coming to office one just of dither and delay? They have taken one decision—to abandon the third runway proposal at Heathrow—but have taken no other constructive position at all. Is it not about time that the Government stopped looking for the long grass, or the long Recess, in which to run for cover on this issue, and for the Minister to say that by next spring—three years after this Government came to power—they might have some proposals to put before the nation? It is quite scandalous.

Earl Attlee: My Lords, it is not quite right to say that we have done nothing about Heathrow. First, we introduced the operational freedoms that will make it easier for Heathrow to recover from any disruption during the day without having any more unscheduled night flights. In addition, we have just announced the western rail access to Heathrow, so the argument that we have done nothing is not a good one.

Lord Bradshaw: My Lords, will the noble Earl tell his right honourable friend that there are a lot of capacity issues to discuss? There is a lot of capacity at Stansted, Birmingham, Gatwick, Manchester and Luton that is underused. Will she also make sure that, as well as taking the environment and regional growth outside London into account, what the passenger wants is also taken fully into account?

Earl Attlee: My Lords, I am very grateful to my noble friend for putting the other side of the argument to the House. My right honourable friend the Secretary of State is well seized of these points.

Lord Brooke of Alverthorpe: My Lords, the Government have delayed this review and the Minister says that that is to “get it right”. Would he be kind enough to tell the House just what they are doing to get it right?

Earl Attlee: My Lords, we have published our aviation policy framework for consultation and we will release the call for evidence later this year.

Baroness McIntosh of Hudnall: My Lords, since the noble Lord, Lord Bradshaw, has raised the issue of spare capacity at airports outside Heathrow, would the Minister not agree that Stansted, for example, has had its capacity increased very considerably and that that capacity has not been taken up? Would he not further agree, therefore, that the airlines are very unlikely to have any particular wish to make Stansted a seriously larger airport than it is now?

23 July 2012 : Column 476

Earl Attlee: The noble Baroness makes an interesting point, but I think what concerns people such as the noble Lord, Lord Soley, is having one very effective hub airport with connectivity right around the world. We issued our call for evidence on hub connectivity because it is such an important issue.

David Livingstone Bicentenary


2.53 pm

Asked By Lord McConnell of Glenscorrodale

To ask Her Majesty’s Government what plans they have to celebrate in 2013 the bicentenary of the birth of David Livingstone.

The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, Scotland Office Ministers and officials have met representatives of the Scotland Malawi Partnership to discuss the best way for the United Kingdom Government to mark this bicentenary. The Scotland Office will host a commemorative event at Dover House. The department’s officials are working with other interested parties, including the Scotland Malawi Partnership and colleagues in Whitehall, to ensure that this anniversary is celebrated across the United Kingdom.

Lord McConnell of Glenscorrodale: I thank the Minister for his Answer. On my first ever visit to Malawi I was reminded by the Malawians that Dr Livingstone did not discover Malawi, the Malawians discovered him. They still to this day celebrate his role in the abolition of the slave trade in east Africa. I am aware of the plans for celebrations in Scotland next year, but given that Dr Livingstone was buried at Westminster Abbey and his coffin was covered with a wreath provided by Queen Victoria, I believe that this should be a UK-wide celebration. I would ask the Government to think again about this being simply a Scottish celebration and to ensure that it is celebrated here in London as well.

Lord Wallace of Tankerness: My Lords, I sought in my original Answer to indicate that the Scotland Office has already taken one particular initiative. Scotland Office officials and Ministers, including my right honourable friend the Parliamentary Under-Secretary of State, have been in contact with the Department for International Development. We are also engaged with other Whitehall departments, very much taking on board the point that the noble Lord made. He mentioned his visit to Malawi. It may well be appropriate to place on the record that the Scotland Malawi Partnership is very much the product of a concordat between the Government of Malawi and the Scottish Government of whom he was the First Minister. It is a reflection of his personal commitment to Malawi.

Lord Steel of Aikwood: Will my noble and learned friend consider whether Her Majesty’s Government, or indeed the Scottish Government, might make some contribution to the refurbishment of David Livingstone’s

23 July 2012 : Column 477

house in Zanzibar? I am in touch with friends in the devolved Government in Zanzibar and I am sure that a small contribution might enable them to provide some matching funds. At the moment the house is full of rather wilted press cuttings. Given the importance of that island in the slave trade which David Livingstone helped to abolish, it would be good if something could be done now.

Lord Wallace of Tankerness: My Lords, I understand that the house to which my noble friend refers was where David Livingstone stayed in Tanzania, in Zanzibar, prior to the start of his final expedition in 1866. There are no current plans for the United Kingdom Government to provide a contribution for the renovation of the building but I am aware of my noble friend’s interests in this matter and I will certainly ensure that his comments are drawn to the attention of the relevant department.

Lord Morgan: My Lords, we are prone to celebrate the more exploitative and squalid aspects of empire in the history of this country and many of its practitioners are celebrated in key points of our squares and roads in the centre of London. David Livingstone surely embodies the humanitarian and idealist strain that we ought to honour, so could we perhaps have a statue of him as well?

Lord Wallace of Tankerness: My Lords, I am not sure about a statue, but the noble Lord makes an important point. It is perhaps worthy of note that in post-colonial times, place names such as Blantyre in Malawi and Livingstone in Zambia have remained while other pre-independence names have been changed. That is a reflection of the esteem in which David Livingstone is held. Some of the themes that he focused on in his life—themes such as faith, education, medicine, the abolition of the slave trade and standing up for those who are exploited—are ones that we would do well to ponder. Maybe the best memorial that we can give him on the bicentenary of his birth is to take seriously the kind of issues that he took seriously in his lifetime.

Lord Flight: My Lords, I am proud of this country’s history, warts and all. However, does the Minister agree that Dr Livingstone is a great model for the sort of person that this country needs today—a hero who is also a righteous person? That is why celebrating his birth is so important.

Lord Wallace of Tankerness: My Lords, I am glad that there seems to be such consensus across the Chamber on this. I reiterate the point that there are many positive aspects to the life, career and work of David Livingstone. I think that his bicentenary will give us all an opportunity across the United Kingdom—and, indeed, in Africa too—to reflect on these issues and to take from them what is really good, and to build on them.

Lord Cormack: My Lords, as it is important that our young people should be aware of the achievements of this very great man, should we not ask Mr Wiggins

23 July 2012 : Column 478

to cycle round the United Kingdom next year proclaiming David Livingstone’s virtues? Does this not give us an opportunity to congratulate Mr Wiggins on his recent triumph?

Lord Wallace of Tankerness: My Lords, I congratulate my noble friend on his ingenuity in mentioning Mr Wiggins. He said it, but I am sure that I speak for the whole House in extending our warmest congratulations on an astounding sporting achievement.

Noble Lords: Hear, hear!

Lord Wallace of Tankerness: Whether in his preparation to retain the Tour de France championship he has time to cycle round the whole of the United Kingdom, I do not know, but certainly the point about young people is well made. Those who are planning and involved in the work to commemorate this bicentenary will reflect on the importance to young people.

Lord Mawhinney: My Lords, getting back to the original Question, I am sure that my noble and learned friend has summed up the mood of the House in saying that there is widespread support for Dr Livingstone. I am also clear that the Scottish Government will do something about the bicentenary. However, as I leave here today, I will be equally clear that the British Government have no plans to do anything about it. If the Minister does not want me to leave with that understanding, will he explain why?

Lord Wallace of Tankerness: My Lords, I have already explained that the Scotland Office plans a commemorative event to be held here, in the Scotland Office. I have also indicated that my right honourable friend the Parliamentary Under-Secretary of State has already met representatives of the Scotland Malawi Partnership. We will also be working out how the United Kingdom Government might best be involved in these celebrations, not only with the partnership but also, as I indicated in my answer to the noble Lord, Lord McConnell of Glenscorrodale, by involving our officials and Ministers in the Foreign and Commonwealth Office and the Department for International Development. We certainly take this intervention seriously, and we will be looking at ways in which we can, as a United Kingdom Government, make an appropriate contribution.

Lord Hunt of Kings Heath: My Lords, I wonder if the noble and learned Lord could confirm whether the Scotland Office is part of the UK Government?

Lord Wallace of Tankerness: My Lords, for those who had not got the point, I am more than happy to confirm it. Indeed, the commemoration in the Scotland Office will be one by the United Kingdom Government.

Lord West of Spithead: My Lords, the Minister will be aware that a lot of Livingstone’s travels were on Lake Malawi, on the waterways of Malawi. Perhaps the British Government could support the training school for

23 July 2012 : Column 479

fishermen on Lake Malawi, where many die every year at the moment. That would be a good way of recognising him.

Lord Wallace of Tankerness: My Lords, I welcome that positive suggestion and will make sure that it is passed on.

Housing: Leaseholder Deposit Protection


3.01 pm

Asked By Baroness Gardner of Parkes

To ask Her Majesty’s Government whether they will introduce a transparent scheme, similar to the Deposit Protection Scheme for tenants, to protect monies paid by leaseholders and held by managing agents.

Baroness Gardner of Parkes: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I state that my interest is on the register.

The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham): My Lords, the law already provides protection for service charges. They are deemed to be held in trust. The law also provides leaseholders with a number of rights to aid transparency over service charges. These include rights to be consulted, to ask for a summary of service charges, and to see supporting documentation. The Government therefore have no plans for additional regulation of leasehold service charges.

Baroness Gardner of Parkes: My Lords, is the Minister aware of the case reported last month of the managing agent who pleaded guilty to stealing £122,000 from leaseholder funds? Does she not think that the nearly 3 million leaseholders are entitled to the protection called for by the voluntary accreditation bodies, Leasehold Knowledge Partnership and the Association of Residential Managing Agents, and supported by the British Property Federation? Can she tell me what parliamentary procedures would be required to introduce regulation?

Baroness Hanham: My Lords, I thank my noble friend for drawing to my attention the article about the offence to which she referred. As it is a matter of court action, I do not think there is anything I can say. The article is not sufficiently detailed to know exactly where the money came from so I do not think I can comment any further on that.

My noble friend will know that if you are going to undertake legislation then before doing so, you must undertake consultation, draw up plans and take the process through, not only the regulators but also the leaseholders and those who are carrying out the voluntary regulation at the moment. You must then find legislative time to deal with it. We do not believe that it is necessary at this stage to undertake any of that.

23 July 2012 : Column 480

Baroness Maddock: My Lords, my noble friend will remember the Commonhold and Leasehold Reform Act 2002. We spent many hours on it. My noble friend will also know that Section 156 of the Act, which would have protected leaseholders from losing their funds, has not yet been brought in. Can my noble friend tell me what the Government’s plans are regarding this part of that important Act?

Baroness Hanham: My Lords, the Government have no plans to implement these provisions at present, but we are keeping a watching brief on the concerns of people within the leasehold reform area. A technical guide was published last year by the Institute of Chartered Accountants in England and Wales on accounting and reporting on residential service charges. We would encourage its adoption across the sector.

Lord McKenzie of Luton: My Lords, I draw attention to my interest in the register. The noble Baroness, Lady Gardner of Parkes, has rightly raised the issue of regulating managing agents from the perspective of leaseholders. However, with the private rented sector now at 3.6 million households, and with nearly one-third of all private rented sector households being families with children, is now not the time for effective and comprehensive regulation of the whole sector?

Baroness Hanham: My Lords, as the noble Lord will know, there are two parts to this. This Question is not about the private rented sector. It is about leaseholders. We have no policies at present to bring the private rented sector under the law.

Baroness Scotland of Asthal: My Lords, why have the Government chosen not to make plans to implement legislation that was passed in 2002?

Baroness Hanham: The noble and learned Baroness will be aware that this was not our legislation: it was the legislation of the previous Government and it was the previous Government's responsibility to implement it.

Baroness Oppenheim-Barnes: Is my noble friend aware that, very often, sinking funds that go missing amount to millions of pounds affecting only about 100 leaseholders? It is not acceptable for this to be allowed to continue under the Act.

Baroness Hanham: My Lords, there are voluntary regulators and voluntary regulations and organisations that are keeping an eye on this. I am sure my noble friend will agree that it is not always for the law or for Parliament to dictate or regulate and that an industry can be self regulating. That is the situation at present.

Lord Hughes of Woodside: Will the Minister please explain, because it was not clear to me from her Answer, what she actually said? If a clause is in statute, is it not obligatory for a Government to take action on it and not say that they are thinking about it?

23 July 2012 : Column 481

Baroness Hanham: As I said before, this was not this Government's legislation. We helped with it and we went through it. In fact, I have been reminded that one of my amendments was agreed by this House in 2001, which is unusual. If the previous Government had wished to implement the Act and those clauses, they could have done so. We have not chosen or do not think that it is appropriate to do so.

Lord Lloyd of Berwick: An important new principle has just been announced. There are many reasons for not bringing things into force, which Parliament has passed, but surely one is not that the other side passed the legislation. Parliament passed the legislation and the Minister is saying that she does not like it.

Baroness Hanham: My Lords, I am saying that this was not this Government’s legislation. The noble and learned Lord is wise enough to know that after a change of Government the new Government will not necessarily take up all the issues or points that have been raised in what has been passed by Parliament.

HSBC: Lord Green of Hurstpierpoint

Private Notice Question

3.07 pm

Tabled By Baroness Royall of Blaisdon

To ask Her Majesty’s Government what assessment they have made of the impact of the allegations about HSBC made by the Permanent Subcommittee on Investigations of the United States Senate Committee on Homeland Security and Governmental Affairs on the ability of Lord Green of Hurstpierpoint to fulfil his ministerial duties.

Baroness Royall of Blaisdon: My Lords, I beg leave to ask a Question of which I have given private notice.

The Chancellor of the Duchy of Lancaster (Lord Strathclyde): My Lords, Her Majesty’s Government have every confidence in my noble friend Lord Green ability to fulfil his ministerial duties. His experience, expertise and enthusiasm provide great benefit to the UK’s international profile and to the support that UK Trade and Investment provides to British businesses.

Baroness Royall of Blaisdon: My Lords, I am grateful to the Leader of the House for that Answer. However, as the noble Lord will be aware, questions have been asked about the present ministerial role of the noble Lord, Lord Green, following the US Senate committee’s findings.

Paragraph 1.2 of the Ministerial Code, which sets out the responsibility of Ministers to Parliament, says that:

“Ministers should be as open as possible with Parliament and the public, refusing to provide information only when disclosure would not be in the public interest”.

Given that obligation, will the Leader of the House ask the noble Lord, Lord Green of Hurstpierpoint, to come to your Lordships’ House to place on record what he knew and when about the matters investigated

23 July 2012 : Column 482

by the US Senate committee, including what steps he took to deal with them? Would such a move not give the noble Lord, Lord Green, the opportunity to dispel once and for all the questions being asked about his present ministerial role?

Lord Strathclyde: My Lords, I congratulate the Leader of the Opposition. I know that she has been trying to find a PNQ to put to the House and she has managed to do so. I am very glad to be able to respond on behalf of Her Majesty’s Government.

There is no urgency in this matter. The investigation started more than two years ago. The report in question was published two weeks ago. There was no evidence of personal wrongdoing of my noble friend; indeed, there was no personal criticism whatever of my noble friend. The investigation is ongoing. As for ministerial accountability, my noble friend Lord Green is accountable to this House—to Parliament—for the work he does as a Minister. However, many Ministers have had previous careers. No Minister needs to be accountable to Parliament for their previous career, only for what they are doing as a Minister.

Lord Butler of Brockwell: My Lords, I declare an interest as a non-executive director of HSBC during the time when the noble Lord, Lord Green, was chief executive officer and chairman. Is the Leader aware that when I was advising the Prime Minister on calls for ministerial resignations, I drew a distinction—which I think is widely accepted—between accountability and responsibility? While it may be the case that the chairman and chief executive officer of a major international company is accountable for everything that happens in that company, there is no possible way in which they can be responsible for everything that happens in a worldwide group of the size of HSBC.

Lord Strathclyde: My Lords, with all his experience and knowledge—not just as head of the Civil Service and Cabinet Secretary but having had a more commercial career since he left—the noble Lord, Lord Butler of Brockwell, has brought a lot of wisdom and good sense to this debate, on which we should all reflect.

Lord Kinnock: My Lords, since the Leader of the House has told us that the work of the noble Lord, Lord Green, is of benefit to the United Kingdom’s profile—the words he just used—does he think that the accountability of an individual in a very senior position in government or business ceases when that individual changes post? Does he not think that it would benefit the UK’s profile to ensure that a Minister rigorously adheres to the wording of the Ministerial Code, as just spelt out by my noble friend? Further, does he not think that the ethics of business require that a Minister who has the opportunity and the right to come to this House to explain themselves should do so?

Lord Strathclyde: My Lords, I do not disagree at all with what the noble Lord says about the ethics of the industry in which my noble friend was involved. In fact, only last week, this House set up a special Joint Select Committee to look at ethics and many other

23 July 2012 : Column 483

practices in the banking industry. Surely that is the point. If a Select Committee of this House or another place wishes to ask my noble friend questions, it should do so. My purpose is to reflect on my noble friend’s role in government and to answer on behalf of Her Majesty’s Government.

Lord Cormack: My Lords, does my noble friend agree that anyone who knows the noble Lord, Lord Green, could not doubt his total integrity for a moment?

Lord Strathclyde: My Lords, I agree with that but I wholly accept that questions need to be asked—and are habitually asked—of a Minister to make sure that he is accountable to Parliament. As I said in my reply to the noble Lord, Lord Kinnock, if a committee of Parliament wishes to put questions to my noble friend, it is entirely free to do so.

Lord Grocott: My Lords, perhaps I can remind the Leader of the House of a report with which he will be, no doubt, almost word perfect: the report of the Leader’s Group on Working Practices, which made a number of recommendations. Of course, the group was established by the Leader for the Leader. Recommendation 3 of that report—which, I remind him again, was published more than a year ago in April last year—said:

“We … recommend that there should be a monthly question time dedicated to questions on House of Lords matters addressed to the Leader of the House”.

Perhaps I may helpfully suggest that both today’s Question and indeed the very important one raised last week by my noble friend Lord Barnett could be handled were the Leader to accept that simple, unanimous recommendation by a committee that was set up at his instigation. I urge him to act on that recommendation as soon as possible.

Lord Strathclyde: My Lords, from memory, I do not think that there has been a single Question put to me in my capacity as Leader of the House in the past 12 months. That rather leads me to believe that there is no great demand for a monthly Question Time session for the Leader. There are perfectly good methods for asking me questions and noble Lords should use them if they wish to.

Lord Hughes of Woodside: My Lords, from a rather different view, perhaps, I query what was said by the noble Lord, Lord Butler. Surely accountability and responsibility cannot simply be divided one from the other—it is not as sharp as that. Accountability and responsibility go hand in hand and no one should doubt it.

Lord Strathclyde: My Lords, my noble friend Lord Cormack said that no one should challenge the integrity of my noble friend Lord Green, and I agree with him. But if it comes to a choice between the noble Lord’s view of what is responsibility and accountability and that of the noble Lord, Lord Butler of Brockwell, I will go with the noble Lord, Lord Butler of Brockwell.

23 July 2012 : Column 484

Baroness McIntosh of Hudnall: My Lords, I personally—along with most of the House, I feel—am in no position and would not wish to challenge the integrity of the noble Lord, Lord Green. However, does the Leader of the House agree that perhaps there would be less question about his conduct over the issue of HSBC were the House to see him more often answering questions that relate to his ministerial responsibilities? It may have something to do with his relative unfamiliarity to Members of the House that they are perhaps more sceptical than they should be.

Lord Strathclyde: My Lords, as a Minister for trade, my noble friend of course spends a great deal of time overseas. Since he was appointed, he has travelled to 42 countries and visited 73 cities. In his role as Minister of State for Trade and Investment, he has answered a total of 72 Parliamentary Questions, including two Oral Questions out of three that he could have answered. The response to the point raised by the noble Baroness is that if more Questions on trade and investment were put down, I am sure that my noble friend would be very happy to come and answer them.

Baroness Royall of Blaisdon: My Lords, I thank the noble Lord for his answers, but perhaps I may say that I found his initial response to my Question slightly patronising, albeit not in terms of the substance. I table PNQs when I believe that there is a matter of accountability which is of interest to this Parliament as a whole—we are the only House of Parliament sitting at the moment—and when I believe that it is of importance to this nation. I do not do so for personal gratification.

Lord Strathclyde: My Lords, if the noble Baroness felt that I was in any way seeking to patronise her, I apologise fully.

London Local Authorities and Transport for London (No. 2) Bill

Revival Motion

3.18 pm

Moved By The Chairman of Committees

That the Commons message of 12 July be now considered; and that the promoters of the London Local Authorities and Transport for London (No. 2) Bill [HL], which was originally introduced in this House in Session 2007-08 on 22 January 2008, should have leave to proceed with the Bill in the current Session according to the provisions of Private Business Standing Order 150B (Revival of bills).

Motion agreed.

23 July 2012 : Column 485

City of London (Various Powers) Bill [HL]

Third Reading

3.19 pm

Amendment 1

Moved by The Chairman of Committees

1: Clause 7, page 9, line 41, leave out “item” and insert “article or thing”

The Chairman of Committees (Lord Sewel): My Lords, six amendments have been proposed by the promoters. They are minor drafting amendments and they have been made available in the Printed Paper Office in the usual way for parliamentary Bills. It might help if I point out to your Lordships that all six amendments leave out the word “item”, replacing it with the words “article or thing”. I leave it to the erudition of noble Lords to work out the difference.

Amendment 1 agreed.

Amendments 2 to 6

Moved by The Chairman of Committees

2: Page 9, line 44, leave out “item” and insert “article or thing”

3: Page 10, line 4, leave out “item” and insert “article or thing”

4: Page 10, line 7, leave out “item” and insert “article or thing”

5: Page 10, line 13, leave out “item” and insert “article or thing”

6: Page 10, line 14, leave out “item” and insert “article or thing”

Amendments 2 to 6 agreed.

Bill passed and sent to the Commons.

Designation of Features (Appeals) (England) Regulations 2012

Public Bodies (Abolition of Environment Protection Advisory Committees) Order 2012

Public Bodies (Abolition of Regional and Local Fisheries Advisory Committees) Order 2012

Motions to Approve

3.20 pm

Moved By Lord De Mauley

That the draft regulations and orders laid before the House on 21 May and 11 June be approved.

Relevant documents: 3rd Report from the Joint Committee on Statutory Instruments, 4th Report from the Secondary Legislation Scrutiny Committee, considered in Grand Committee on 17 July.

Motions agreed.

23 July 2012 : Column 486

Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2012

Data Protection (Processing of Sensitive Personal Data) Order 2012

Public Bodies (Abolition of Her Majesty’s Inspectorate of Courts Administration and the Public Guardian Board) Order 2012

Public Bodies (Abolition of Crown Court Rule Committee and Magistrates’ Courts Rule Committee) Order 2012

Motions to Approve

3.20 pm

Moved By Lord McNally

That the draft orders laid before the House on 7, 10 and 14 May be approved.

Relevant documents: 2nd and 3rd Reports from the Joint Committee on Statutory Instruments, 2nd, 3rd and 4th Reports from the Secondary Legislation Scrutiny Committee,considered in Grand Committee on 18 July.

Motions agreed.

National Minimum Wage (Amendment) Regulations 2012

Community Interest Company (Amendment) Regulations 2012

Tribunals, Courts and Enforcement Act 2007 (Consequential Amendments) Order 2012

Motions to Approve

3.21 pm

Moved By Lord De Mauley

That the draft regulations and order laid before the House on 14, 19 and 25 June be approved.

Relevant documents: 4th and 5th Reports from the Joint Committee on Statutory Instruments, considered in Grand Committee on 18 July.

Motions agreed.

23 July 2012 : Column 487

Smoke-free Private Vehicles Bill [HL]

Third Reading

3.21 pm

Bill passed and sent to the Commons.

Justice and Security Bill [HL]

Bill Main Page3rd Report from the Constitution Committee5th Report from the Delegated Powers Committee

Committee (4th Day)

3.22 pm

Relevant documents: 3rd and 4th Reports from the Constitution Committee, 5th Report from the Delegated Powers Committee.

Clause 10 : General provision about section 6 proceedings

Amendment 69

Moved by Lord Hodgson of Astley Abbotts

69: Clause 10, page 7, line 3, leave out paragraph (b)

Lord Hodgson of Astley Abbotts: My Lords, Amendment 69, which is also in the name of the noble Lord, Lord Dubs, is one of a group of three, and our names are also attached to Amendment 69ZB. I will pass the baton to him—appropriately in this Olympic week—for the second amendment in a minute.

The group of amendments is concerned with Clause 10, the general provision about Section 6 proceedings, and subsection (2), which is about rules of court relating to Section 6 proceedings. Paragraph (b) says:

“enabling or requiring the proceedings to be determined without a hearing”.

My amendment seeks to leave out those words.

When my noble and learned friend winds up this debate, he may say that this is just a case of avoiding expense where no hearing is needed. If so, I understand the purpose, but I do not entirely support it or agree with it. Carried to an extreme, this would deprive the special advocate and/or the claimant of any opportunity to engage to any extent in this part of the procedure. We are talking here about closed material proceedings—secret hearings—about which there may be public concern.

I hope that my noble and learned friend will be able to explain why the interests of transparency and open justice do not command the idea that some hearing, however formal, formulaic or brief, would be appropriate. In particular, I hope that he will explain why the word “require” should appear here; I understand why “enable” should be included, but requiring proceedings to be determined without a hearing seems a step too far. I beg to move.

Lord Dubs: My Lords, I shall speak to Amendment 69ZB, but before that I comment that in previous Committee sittings on the Bill, the Government have had hundreds of thousands of pounds-worth of free legal advice—some of it contradictory, but advice has been there. They are not going to get any from me because, like the noble Lord, Lord Hodgson, I am not a lawyer, so I tread tentatively along this path.

23 July 2012 : Column 488

Amendment 69ZB is somewhat more complicated than the amendment by the noble Lord, Lord Hodgson, to which my name is also attached. I understand that it is a well preserved tradition that in common law there are rules against the admission of hearsay evidence, inexpert opinion evidence and other unreliable forms of. However, I also understand that in recent years there has been a move away from those rules, because it is now easier for evidence to be challenged and the trial judge can, with the benefit of that challenge, assess how much weight to give to the evidence.

The difficulty is that, in a CMP regime, the judge cannot assess the reliability of unchallenged evidence; he is disabled from doing that. The public and the excluded party need to be reassured that the state will be permitted only to allow private evidence to deprive the citizen of a verdict if that evidence is deemed reliable by objective standards. That is my first point.

Secondly, there is a duty of frankness on the Secretary of State. The provisions in proposed new subsections (6)(b) and (f) do no more than ensure that an excluded citizen will get the same protection as is usually afforded to an absent party in the High Court—one might refer to ex parte proceedings, and so on. It would be unreasonable for the Secretary of State not to make such full and frank disclosure to the court when he is obtaining the huge advantage of a CMP.

The material must be relevant to the following matters: any issue in the case; the question of whether any evidence is admissible; and, in the case of hearsay statement, whether it was obtained by torture and whether it was accurately recorded. Next, there is the reliability of the evidence: whether the source was subjected to threats or bribes to induce him or her to give information. Then, as regards witnesses, there is the existence of lines of inquiry or names of witnesses. Given the disadvantage faced by the special advocate in challenging the state’s case, the state should give any special advocate the leads it has. That echoes the traditional common-law rule—I think it is known as the old Peruvian Guano case—which obliges the party to disclose lines of inquiry in any civil litigation. Finally, there is any evidence relevant to whether the CMP is necessary at all. The need for that disclosure is self-explanatory.

Proposed new subsection (6)(b) prohibits the Secretary of State from redacting parts of documents disclosed to the special advocate. After all, special advocates are already security cleared. There can be no justification based on security risk or privacy to suppress parts of otherwise relevant documents from those within the security ring or circle. If part of the document is relevant, the entire document should surely be seen so that everything can be read in its context. Quotations out of context may not be meaningful.

Then there is the question of banning evidence obtained by torture or cruelty. Evidence should not be admitted unless the court is convinced that it was not procured by torture or other cruel treatment. There is a danger that statements from persons in detention abroad may have been obtained in this way. Given that there is already a ban laid down by the Supreme Court on using statements obtained by torture, and that only the Government would have access to information

23 July 2012 : Column 489

about how statements were obtained, surely it is only fair that the burden of proof should rest upon the Government to show how such statements were obtained when they seek to use them in evidence. The excluded party would have no ability to make such inquiries.

3.30 pm

The public also need to be reassured that the secret evidence will not contain intelligence reports based upon the personal views of intelligence officers. We can all understand why the Government might wish to call these into play, but such evidence is subjective, nearly impossible for a special advocate to challenge, and usurps the proper role of the judge.

Lastly, the public should surely be assured that the excluded citizen will not be deprived of a verdict based upon unattributed or unreliable hearsay. There may be a suspicion—and I say just a suspicion because I believe very much that the security services display a great deal of integrity in their approach, although perhaps that is qualifying it too much; they do display integrity—that the security services will put before the judge intelligence reports referring to multiple instances of unattributed hearsay or rumour. Such evidence cannot be challenged effectively in a CMP. Therefore, to my mind it is perfectly reasonable that the judge must include hearsay where the source is unidentified and available to be cross-examined, or where there is a danger of Chinese whispers.

Lord Thomas of Gresford: My Lords, I shall speak to Amendment 69ZC in my name and those of my noble friend Lord Marks of Henley-on-Thames and the noble Lord, Lord Pannick. This Bill says nothing about the trial judge’s approach to the material that has been disclosed to him once the Section 6 proceedings have been completed. The word “material” is used throughout Sections 6 and 7, and Section 6(3) implies that the judge should consider intercept material: that is, material that would not be admissible in open proceedings under Section 17(1) of the Regulation of Investigatory Powers Act 2000. I remind your Lordships very briefly of what it says:

“(1) Subject to section 18, no evidence shall be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of or in connection with any legal proceedings [or Inquiries Act proceedings] which (in any manner)—

(a) discloses, in circumstances from which its origin in anything falling within subsection (2) may be inferred, any of the contents of an intercepted communication or any related communications data”.

Perhaps your Lordships will be only too aware of the campaign that the noble and learned Lord, Lord Lloyd of Berwick, has carried out, with my support, for intercepted material to be allowed as evidence in court, but that has never been a position that the Government would take.

The word “material”, which appears in Sections 6 and 7, is not evidence upon which the court may act. The amendments that have just been outlined by the noble Lords, Lord Hodgson of Astley Abbotts and Lord Dubs, spell out examples of such excluded evidence: evidence obtained by torture, inexpert opinion, or hearsay that cannot be admitted in the usual way by a

23 July 2012 : Column 490

notice to the other party. However, the amendment from the noble Lord, Lord Hodgson of Astley Abbotts, does not include the product of intercept.

It would be quite unacceptable for the trial judge to take into consideration, in determining the issues between the parties, anything that not only is never disclosed to the claimant but that would not be admissible in evidence if it were disclosed. The claimant would be doubly prejudiced: there would be evidence given against him in secret that was not admissible, if the judge were to take it into account.

The whole purpose of the civil rules of procedure is to ensure that the cards are on the table. Pleadings are followed by disclosure, and it is at that stage in particular that the parties take important decisions about preparations for trial, the nature and extent of the evidence they wish to call, including witnesses or documents and acceptance of offers, settlement of the case, payments into court and so on. That is why we have the system that we do: so that the cards are on the table before we ever get anywhere near a trial. In this Bill, the Government seem to want to deal from the bottom of the pack and, just for the purpose of saving the cost of settlement in a particular case, disregard the violation of centuries of open and accountable justice. Is it the unstated purpose of this Bill to reveal intercept and similar other inadmissible material to the trial judge in the hope that it will produce a judgment that is favourable to the Government? I hope that that is not the purpose of the Bill, but the way it is progressing leads me to believe that it might be.

My amendment has the merit of setting out in the Bill the parameters which the judge at trial will follow after he has concluded these Section 6 proceedings. He will exclude from his consideration anything that would be inadmissible if disclosed to him as material in closed proceedings. He will dismiss that when he comes to consider the issues in open proceedings.

Lord Pannick: My Lords, I support what has been said by the noble Lord, Lord Thomas of Gresford. I added my name to Amendment 69ZC because I was concerned to hear the noble and learned Lord the Advocate-General for Scotland say last Tuesday night, at col. 220, that the Bill would allow the judge to look at intercept evidence in closed proceedings. I had not previously understood that this was the purpose and effect of paragraph 9 of Schedule 2, and that is my fault. However, as a matter of principle it is surely one thing for the Bill to allow the judge in a secret procedure to look at material that is admissible in court but which the state is unwilling to have looked at in open court because of its sensitivity. One understands the purpose of those provisions. It is quite another thing for the state to be allowed to rely in the closed hearing on material that is, in any event, inadmissible in open court.

I had understood the Government’s defence of the closed material procedure to be that the state should not be in a worse position because the evidence on which it wishes to rely cannot be adduced in open court. To allow the state to rely on intercept evidence in the closed procedure—evidence that is inadmissible in open court—would put the state in a better position

23 July 2012 : Column 491

in a closed material procedure than in an open proceeding, and that cannot be right. Nor can it be a defence of such an arrangement for the Minister to argue, as he did briefly last Tuesday night when we touched on this important issue, that this is what happens in other closed material proceedings. I do not recall the House giving any consideration to this important issue on those occasions. We are now being asked to expand the scope of closed material proceedings very substantially, and I hope that we can now address the issue of principle.

Lord Marks of Henley-on-Thames: My Lords, I have been one of those persuaded by the Government of the need for Part 2 of this Bill: that there may indeed be cases in which the injustice of being unable to achieve a determination of the issues in the case outweighs the injustice inherent in having the case tried in part by closed material procedure.

In being so persuaded, however, I have been one of those who have been extremely reluctant to see such a departure from the principles that normally guide us in civil proceedings. That persuasion has been on the basis that closed material proceedings would be a last resort only and that the decision to hold such proceedings would be taken only on the basis that national security required certain material to be withheld from the public at large and from the excluded party or parties, despite the serious unfairness inherent in that procedure.

However, it would be fundamental that, except for the departures from ordinary procedural law inherent in the withholding of security-sensitive information, the proceedings before the judge would otherwise be ordinary civil proceedings. Moreover, the material before the judge, which he could consider in coming to his conclusion, would be evidence that he or she would ordinarily be able to hear and take into account in ordinary civil proceedings.

If that were not to be the case, and material that would be inadmissible in an ordinary case were to become admissible because the proceedings were held as a CMP, that would set them apart from the ordinary procedural law of the land and create an entirely new security court of a type that many in this House would find both alien and sinister. Furthermore, it would undermine the whole concept of the use of a CMP being a last resort, because the very fact of the CMP would give a party seeking to introduce evidence that would otherwise be inadmissible a litigation advantage. That would make the CMP procedure desirable in itself, irrespective of any considerations of national security. The CMP would then become a parallel and less fair procedure than ordinary civil proceedings in a way quite unintended by those of us who see the need for the Bill.

For those reasons, I support this simple amendment, which makes absolutely clear the position of the admissibility of material considered by the judge. I hope that the Minister will accept the amendment and reassure us on this important point in closing.

Lord Goldsmith: I start by apologising to the Committee that I have been unable to take part in the debate on the part of the Bill that I wanted to take part in—this part—due to other commitments. It would have given

23 July 2012 : Column 492

me the opportunity to say more than I will say now about how concerned I am about the departures from traditional ways of resolving disputes, which other noble Lords have referred to. All the amendments that have been moved deserve careful consideration by the Government, and I will underline why that should be so.

First, as soon as one moves to a different procedure for determining civil disputes, it is important that one makes sure that the safeguards for litigants are available. Whereas in ordinary civil litigation one may simply be able to reply on the general approach of the court to make sure that those safeguards are there, in this novel and as yet uncharted territory one does not know. That is why it seems right that the Government should carefully consider, as noble Lords’ amendments propose, the detailed procedural safeguards that should take place. That is all the more so—this is my second reason —because this is a one-sided procedure. In circumstances in which the Government determine that they wish to go down closed material procedures, these considerations apply all the more because the risk is that the Government see the advantage to them of this procedure rather than to the litigant.

Looking at the way in which the Bill would operate, I also think about how some of us might have to explain this procedure to colleagues in other countries. They will ask, “Is it true that England, a country that we thought had such strong safeguards for liberty, can now have procedures in which evidence is relied on by the state against an individual without that individual seeing it?”. I have spent a lot of time overseas and I will find that difficult to justify. I will find it all the more difficult to justify if—and this is why I support the amendment moved first by the noble Lord, Lord Hodgson of Astley Abbotts—I had to say, “And what is more, it is true that the judge made the decision for that procedure to apply without there even being a hearing as to whether it should”. I would find that very difficult indeed to justify.

3.45 pm

My final point relates to the question of the admissibility of evidence. The points that noble Lords have made to the Committee about why admissibility of evidence matters seem very well taken, and the issue of intercept is especially important. I am one who has strongly supported, as the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Lloyd, have also supported, finding a way for intercept evidence to be available more generally. In government, I was unable to persuade successive Home Secretaries that that was the right approach. That was not the only thing of which I failed to persuade people in government—but never mind, that is all past. Some day, perhaps, it will happen.

What is interesting is that there are already exceptions. The control orders produced an exception to the inadmissibility of intercept material, but if the noble and learned Lord the Advocate-General for Scotland was right, we would have a further exception. The Government might wonder how they would maintain, although I would not want them to do so, a block on intercept evidence in circumstances in which exception after exception was being created. They must be very clear

23 July 2012 : Column 493

on their position and clear about why they would take the view that it is legitimate for them to rely on that evidence on civil procedure. That is the effect of the closed material procedure, because the Government will determine whether they want to make an application, whereas other litigants cannot, and in other circumstances it will not be.

I strongly urge the Government to consider each of these amendments and the amendments to come. If this procedure is to come into law, it should do so only surrounded by very clear safeguards whereby judges know precisely what they have to do and litigants are not disadvantaged any more than is inevitable by the procedure being proposed.

Lord Lester of Herne Hill: My Lords, I am probably surplus to requirements, but I agree with each of the last four speeches and want to add a couple of obvious points. As the noble and learned Lord, Lord Goldsmith, emphasised—and I think he is the first to do so—what we are doing in Parliament now will be closely watched not only in the United States but throughout the common-law world. If the Bill goes through in its present form, I have no doubt that it will be cited as a model to be followed elsewhere, and there will be great pressure from across the Atlantic for this to happen. Therefore, we are the only safeguard to ensure that the legislation that is enacted complies with the principles of open justice, natural justice and equality of arms.

I know that the particular difficulty about intercept evidence—and I strongly support those who want to use it—is that the moment it comes to be seen by a claimant, very sensitive questions will be asked about sources and so on, and that would have to be handled with great care. However, my understanding is that in the United States intercept evidence is used, with proper safeguards. Is anything in this part of the Bill echoed in the United States in respect of intercept evidence? My understanding is that it is not, and that therefore these provisions, to which four Members of the House have objected, would not apply to equivalent United States legislation. If that is true, it is an even further argument in favour of these amendments.

Lord Woolf: My Lords, the submissions put before noble Lords by various Members of the House in favour of these amendments, given their source, require the very greatest attention. I make no cavil at all about the spirit in which they are put forward, but I suggest that the House needs to look at the amendments with regard to how judges operate in practice. The situations in which there are closed proceedings are very limited indeed. Here we are dealing with the use of closed material in civil proceedings, where it is even rarer for there to be the sort of closed proceedings that have been necessary in trials by jury in the criminal courts. A small minority of cases in civil proceedings are tried by a judge alone. Indeed, if there were a need for closed hearings, it would not be practical for what is envisaged here to be used in those very few cases where a jury might care because there is then a purpose in the closed proceedings. The jury could not be told of the evidence that would be the subject matter of the

23 July 2012 : Column 494

closed proceedings and therefore there could not be any purpose in the judge making a ruling that certain evidence should be heard in closed proceedings.

Having indicated, I hope, the context that we must look at, I find it extraordinary that it should be thought necessary for a judge, in this unusual situation when there is to be a closed hearing, to be told what he has to do to safeguard as far as possible the party which does not have access to the material. Any judge hearing these matters is going to find throughout the hearing that that is his primary responsibility. I would suggest that perhaps it is dangerous to be too specific in what he can do and what he must do because the whole of civil procedure has evolved so that a judge is put in charge of a case and he manages it in accordance with the overriding principle that is being relied on by those who wish to amend this legislation so as to achieve justice and fairness as far as possible. While I am very much in sympathy with all noble Lords who have supported these amendments, I question whether we are necessarily being constructive with regard to this issue.

What we have given as the justification for the closed procedure is that it will actually assist in achieving justice. In considering what justice is required, one must not look at the matter entirely from the point of view of one party alone. If the Government are the defendant in the proceedings, they have important responsibilities to put before the court to ensure that the rights of the citizen to be protected are not damaged inadvertently by what is proposed. We must remember that, in this very special area of national security other states are very sensitive that their material, which they regard as important for their purposes, should not come in to the public domain. It is in that situation that these procedures, as I understand them, are being proposed. As I have suggested, the judge would apply the ordinary principles with regard to weighing the material that he would apply in other proceedings, and also with regard to its admissibility. I look forward to hearing how the Advocate-General deals with the point that is now being taken with regard to the intercept evidence. That evidence is not normally admissible in proceedings, and it is not evidence that a judge can look at. I suggest that, if he were to hear it inadvertently, he would not be entitled to rely on it unless there was some reason that made it admissible.

Therefore, I hope that the Advocate-General will in due course explain why the normal rules, which I suggest must apply in so far as possible here, are not applicable also in the special circumstances of closed hearings.

Lord Mackay of Clashfern: My Lords, I think that this may be an opportunity for the Home Office, in particular, to reconsider the advice apparently previously to it by the holder of the office of Attorney-General. With this possibility, there may be a way of introducing more flexibility into the general role with regard to intercept evidence than seems to exist at present.

Baroness Manningham-Buller: My Lords, I should like to comment on paragraph (e) in Amendment 69ZB tabled by the noble Lords, Lord Hodgson of Astley

23 July 2012 : Column 495

Abbotts and Lord Dubs. I can assure the Committee from my past experience in the Security Service that if this paragraph were to appear in the legislation, it would have a chilling effect on sources and on their willingness to provide information. I predict that many existing sources would refuse to continue in their role and new ones would resist recruitment.

Sources provide a range of information—some of it to be discounted and some of it valid but all to be assessed, which is something that the judge will seek to do. Some of that intelligence from human sources has prevented major atrocities and loss of life. However, when individuals agree to provide that information in confidence, they seek reassurance that their lives will be protected, and anonymity is key to that. If they were identified, I am afraid that not only would they need to be resettled but very few more would be willing to work for the Government.

Lord Beecham: My Lords, my noble friend Lord Dubs referred to the quantity and indeed the quality of legal advice which has been proffered to the Government and to the noble and learned Lord in particular by several Members of your Lordships’ House. I would not presume to offer legal advice but, if I did, my charging rate would be considerably less than that which noble and learned Lords would, quite rightly, be able to charge. Nevertheless, I support the thrust of the amendments that we are now discussing. I take the point made by the noble Baroness in respect of paragraph (e) in Amendment 69ZB, and I think she has a significant point in that respect. However, the overriding concern is not to depart far, if at all, from the basic provisions of our system in guaranteeing a fair trial of the issues in civil, as well as criminal, matters and in the question of equality of arms.

The noble and learned Lord, Lord Woolf, referred to the perhaps superfluous character of amendments which seek to empower judges to do what they can in any case do. I do not read the amendments quite in that way, particularly Amendment 69ZB, much of which imposes a duty on the Secretary of State, in particular in relation to the disclosure of information to the special advocate for the purpose of the hearing. That seems to me a compelling argument. I do not necessarily subscribe to every one of the points made in that amendment but I think that, taken as a whole, they are matters which the Government should consider very carefully, and I entirely endorse the views of my noble and learned friend Lord Goldsmith in that regard.

4 pm

Even if it felt somewhat superfluous in terms of the degree of judicial discretion that may exist in any event, it would be no bad thing for the Government to affirm that they support the thrust of the amendments in terms of their outcome. That would lend strength to their argument that this is not too severe an incursion upon the traditional rights of the parties in this type of litigation.

The noble and learned Lord, Lord Woolf, referred—as the Government constantly do—to the fact that there is likely to be a very small number of cases in which

23 July 2012 : Column 496

these matters might apply. Of course, that may be the case—certainly one would hope so—but surely there can be no guarantee of that. There is a danger of what I call the housemaid’s baby argument: it starts off as only a small baby, but, of course, babies are inclined to grow. In that context, given that there may be more cases in due course, it is sensible to adopt some of the safeguards that are reflected in this group of amendments. I would certainly be interested to hear the Government’s views on them, and if they are not prepared to accept them, either by amending the legislation or by giving a very clear indication of how they envisage the process working, that would be a matter of regret.

Perhaps I might refer to one other matter that is not covered by the amendments but it is relevant to our consideration of this part of Bill because it deals with rules of court. I draw your Lordships’ attention to paragraph 4 of the Delegated Powers Committee report of 4 July, which expresses a concern about the consultations to be carried out by the Lord Chancellor before making the rules under Schedule 3. The committee says that the schedule does not provide an obligation to consult anyone except the Lord Chief Justice of England and Wales or the Lord Chief Justice of Northern Ireland—not even, as the report makes clear,

“the rule-making body whose function it would be”,

except for the provision of Schedule 3, to make those rules. The committee says that it regards,

“the absence of a duty to consult relevant rule-making bodies as a significant omission in the present instance where the rules are to apply to any civil proceedings in any of the High Court, the Court of Appeal or the Court of Session. We draw that omission to the attention of the House”.

I am slightly trespassing on the good nature of the noble and learned Lord, because this is not actually covered by the amendment. I am sure that he would wish, if not necessarily today, to clarify the Government’s position on that and to look again at that reservation. It seems to me to have some force and perhaps the Government will look again at that advice, perhaps on Report, and amend the schedule. Subject to that, I commend the thrust of the amendments and look forward to hearing the noble and learned Lord’s response.

The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, I am grateful to my noble friend for bringing forward this amendment and to other noble friends and noble Lords who have spoken to amendments in this group, which concern how Clause 6(1) proceedings and closed material procedures will operate in practice. The noble and learned Lord, Lord Goldsmith, was right to expect that the Government will take these issues seriously. In embarking upon these kinds of procedures, I assure not just the noble and learned Lord but the whole Committee—as I have sought to do during our deliberations—that these are matters on which the Government have given considerable care to putting the proper balances and provisions in place. Indeed, that goes without saying to the amendments that have been proposed in this group, although I reiterate the point, which I think I made earlier in Committee, that it is the intention that this should apply to a very small number of cases; nevertheless, it is important that the provisions are well considered and thought through.

23 July 2012 : Column 497

I say to the noble Lord, Lord Dubs, and indeed to others who in earlier debates have almost apologised for not being a lawyer, that my fellow lawyers who are present will know that the questions that come from people who are not lawyers are sometimes the ones that are the most penetrating and that you have to be on your toes for. Those who are non-lawyers should not shy away from a very full and active participation in these deliberations. Very often, they raise the issues that put us on our mettle.

Taking Amendment 69 first, the provision that the amendment would remove allows rules of court to enable or require the court to determine proceedings without the need for a hearing. I hope that I can provide reassurance that there is no sinister intent behind this provision. The intention of the Bill is that civil proceedings in which closed material proceedings are required will continue as regular civil proceedings as best they can, save only for the sensitive material elements that will be considered in closed session. It is emphatically not the intention that the whole proceedings should pass through the gateway to being closed proceedings in their entirety.

However, it is important that the Bill does not interfere in any way with the court’s ability to exercise its normal case management powers; for example, where decisions can be made on the papers without a hearing, particularly if the parties have agreed such a course. This is well precedented in other closed material proceeding contexts, most recently paragraph 2(2)(b) of Schedule 4 to the Terrorism Prevention and Investigation Measures Act 2011. The rules made under that paragraph provide for certain matters to require a hearing, with exceptions where a hearing is not required, such as with the agreement of the parties or where the matter has already been determined. It is that kind of situation that is anticipated by the provision in the Bill.

Amendment 69ZB would insert, rather than remove, some specific requirements for rules of court to contain certain provisions concerning the burden and standard of proof and the reliability and admissibility of evidence under a closed material proceeding. The Committee will have heard the noble and learned Lord, Lord Woolf, indicate that these are issues where, particularly when dealing with situations such as this where the judiciary takes a very close interest in trying to ensure fairness, there can sometimes be dangers in being too specific. Again, I emphasise the point that the intention is for the proceedings to continue as regular civil proceedings as far as possible. The very purpose of closed material proceedings is to ensure that all relevant material can be fully considered by the court in coming to a judgment without damaging national security interests. It follows that the disclosure of sensitive material to the court and special advocate will be full and open, precisely because it is not being made more widely.

I will look at each of the various elements of this amendment in turn. The amendment seeks to introduce a new subsection (6) to Clause 10, paragraph (a) of which relates to the burden and standard of proof. I assure the noble Lord, Lord Dubs, that evidence adduced here will be subject to challenge by special advocates. On more than one occasion in Committee, reference

23 July 2012 : Column 498

has been made to comments from judges, particularly Court of Appeal judges, who have looked at the body of evidence and transcripts and have commented on the rigour with which special advocates undertake this responsibility. As drafted, the change in the burden of the standard of proof would apply to any proceedings in which a declaration under Clause 6(1) had been made. It would impose a burden of proving any fact on a party that holds the sensitive material, and requires facts to be proven to a high degree of conviction.

Therefore, in damages claims against the Government, if the Government hold material that cannot be disclosed in open court for reasons of national security, this amendment would require them to disprove the claims made against them to a high degree of conviction. I accept that the phrase “high degree of conviction” is a novel term, but it is presumably intended to import something more like the criminal standard of proof into these civil proceedings. This would place too high a burden on the Government. There would be no requirement on the claimant to prove their claims, only on the Government to disprove them, so not only would the standard of proof be raised but the burden would be reversed. Similarly, where another party in proceedings held the sensitive material, they would be placed at a significant disadvantage. This change in the burden and standard of proof is especially hard to justify when it is remembered that there may well be cases where the closed aspects of the proceedings may be only a very small part of the overall proceedings.

Proposed new paragraph (b) would require the Secretary of State to make full disclosure of sensitive material to the court and special advocate, along with the information on the reliability of that evidence and the existence of witnesses. There is already sufficient provision for this in the Bill. Clause 9 requires rules to be made to ensure that normal disclosure rules still apply to closed material proceedings, subject to Clauses 7, 8 and 10. Nothing in these clauses affects the normal rules of disclosure where, in relation to judicial review, for example, a duty of candour is required of the parties.

Therefore, the Secretary of State will in any case be required to put all information before the court, including, in closed proceedings, all information even if that may be viewed as damaging to national security. We believe, therefore, that this amendment is unnecessary. With regard to proposed new paragraph (b)(ii)—the part of the amendment that would require disclosure of the reliability of evidence—it is the case that, in practice, assessments of the accuracy and reliability of the evidence on which the Government are relying are provided to the court and can be used to test the evidence. We believe, therefore, that this part of the amendment is also unnecessary.

Proposed new paragraph (c) deals with the exclusion of evidence obtained by torture. Courts at both domestic and international level have established that the use of evidence obtained by torture is not permitted in legal proceedings. This principle of international law, contained in Article 15 of the United Nations Convention Against Torture, is one that the Government resolutely support, and it would apply in closed material proceedings as it would in open proceedings. The special advocate would

23 July 2012 : Column 499

be able to challenge any evidence adduced by the Secretary of State in closed proceedings on the grounds that it was obtained by torture or inhuman or degrading treatment. It would be for the judge to decide, on the balance of probabilities and based on the arguments of both parties, whether this challenge was substantiated and, if so, whether the evidence can lawfully be admitted, and, if so, what weight can be placed upon it.

Following the Judicial Committee of your Lordships’ House in A and others v Secretary of State for the Home Department (No 2) in 2005, a court cannot admit evidence if it concludes, on a balance of probabilities, that it was obtained by torture. There is, therefore, existing protection against the use of torture evidence. To increase the evidential threshold in the way that this amendment purports to do would be to allow a special advocate to introduce a new standard of proof to proceedings, simply by raising the question of torture. The House of Lords has previously held that the current standard is the proper one and is in accordance with our international obligations, not least the UN Convention Against Torture. We believe, therefore, that there is no need to change it.

Proposed new paragraph (d) would render inexpert opinion evidence inadmissible. Inexpert opinion evidence is allowed in regular civil proceedings in certain circumstances, such as where the opinion or belief of a witness is relevant to an issue or is a way of conveying facts personally perceived by him or her. Such evidence can be valuable and to exclude it completely in closed material proceedings could have a detrimental effect on the ability of courts to reach decisions in those cases. However, it is important to emphasise that in closed material proceedings it remains open to the judge to decide what evidence to accept, and what weight to place on that evidence. The special advocate will be able to cross-examine witnesses, expert or inexpert, in order to establish the veracity and reliability of their evidence. We believe that with this safeguard in place, and due to the potential importance of non-expert opinion evidence, the amendment should be rejected.

Proposed new paragraph (e) would restrict the use of hearsay evidence. We heard the comments of the noble Baroness, Lady Manningham-Buller, who feared that this particular part of the amendment could have a very chilling effect on people coming forward and engaging in work on behalf of the security services. It is important to reiterate that the Bill does not seek to change the general approach in relation to evidence, save to ensure that material that would damage national security if disclosed is only provided to the court and the special advocate. Again, the role of the special advocate here is to challenge the evidence, as a normal legal representative in regular civil proceedings would do. Hearsay evidence would be admissible under the Bill, as it is in other closed material procedures and in civil proceedings generally. The special advocate could challenge the evidence as to its credibility and the weight to be attached to it as robustly as any other advocate.

Proposed new paragraph (f) seeks to add a provision permitting the court to strike out a case where there is any failure to comply with the directions of the court. As a general proposition, that is part of the court’s

23 July 2012 : Column 500

general case management powers. More specifically, in the context of the closed material procedure, the Bill contains in Clause 7 a requirement that rules are made to give the court certain powers where a party refuses to disclose material but has not received the authorisation of the court not to disclose. These powers would include directing that a party make such concessions as the court specifies, which could include having to concede the case altogether.

I hope that this explanation gives some reassurance as to the nature of what the Bill sets out to achieve in procedural terms, and explains why the Government consider that the two amendments proposed—which I recognise have been moved and talked to with the objective of trying to ensure fairness—are not in fact necessary to address the concerns from which they derive.

4.15 pm

Before turning to the question of the intercept evidence, the noble Lord, Lord Beecham, mentioned the Delegated Powers and Regulatory Reform Committee. I regret that I do not have an answer for him, but no doubt, as he said, he will return to the matter on Report.

On the amendment tabled by my noble friend Lord Thomas on intercept evidence, we believe—

Lord Thomas of Gresford: The amendment is not related to intercept evidence. Intercept evidence is part of it, but I am saying that the open civil proceedings should continue and that the judge should come to his conclusion on admissible evidence. Intercept is an illustration. Indeed, my amendment arises, as the noble and learned Lord will remember, from his unusually equivocal answer last Tuesday when I asked him the direct question.

Lord Wallace of Tankerness: I apologise if I was equivocal, but I thought that I had indicated that the issue revolves around the use of intercept evidence, as the noble Lord, Lord Pannick, mentioned when he quoted what I said. I rather thought that the quote he used was quite unequivocal, which caused the surprise.

My noble friend asked whether the purpose of the Bill was to make inadmissible material admissible to support the Government. It is worth indicating that the purpose behind the closed material provisions is to ensure that the court can consider as much relevant material as possible, be it helpful or unhelpful to the Government. The most obvious example is material that might otherwise be excluded by PII, but material that might otherwise be inadmissible because of RIPA provisions we seek to make admissible in these provisions.

The noble Lord, Lord Pannick, indicated that the Government had not considered intercept before in closed material proceedings. Section 18 of RIPA, as amended, has a long list of contexts, including any proceedings before SIAC. The most recent time when Parliament considered this matter was in paragraph 4(2) of Schedule 7 to the Terrorism Prevention and Investigation Measures Act 2011. Were the amendment to be incorporated into the Bill, a judge in a closed

23 July 2012 : Column 501

material proceeding could not consider relevant intercept material because the law prevents its disclosure in open hearings.

Paragraph 9 of Schedule 2 includes provision for an amendment to Section 18 of the Regulation of Investigatory Powers Act 2000 to allow for intercept material to be admitted in any Section 6 proceedings. It is our view that the amendment is necessary if intercept material is to be adduced or disclosed in the closed part of any proceedings where the court has declared that a closed material application may be made. If Section 18 is not amended, the current prohibition on disclosure in Section 17 of RIPA will prevent intercept material being adduced within such proceedings. Consequently, it would narrow the scope of material available in the case and could undermine the wider purpose of CMPs, which is to make available as much material, helpful or unhelpful to the Government, as possible.

I have highlighted that a judge can consider intercept material in reviewing an application for a CMP or in proceedings where a declaration has been made. It is right and proper that this is the case, but I accept, and it is evident from the debate, that it is a matter that attracts views on different sides. The noble and learned Lord, Lord Goldsmith, referred to some of the history of the use of intercept evidence.

Some surprise was expressed in the report of the Joint Committee on Human Rights in response to the Government’s Green Paper on justice and security. Paragraph 49 states:

“Since one of the driving forces behind the Green Paper is said to be the Government’s desire to ensure that, wherever possible, evidence is put before a court rather than excluded from its consideration, it does seem surprising that the admissibility of intercept as evidence is not included within the scope of the Green Paper”.

It goes on:

“We accept that the Green Paper is mainly concerned with civil proceedings, and the question of the admissibility of intercept as evidence has tended to focus on its use in criminal prosecutions. However, intercept is also relied on by the Government in a number of other contexts and we find it surprising that the Government is going to such trouble to make sure that evidence can go before a judge when material which sometimes forms a substantial part of the material relied on by the Government will still not be admissible under the proposals in the Green Paper. There is now a very long history of Reports, from this Committee and others, urging legislative reform to enable the admissibility of intercept. In our Report on the TPIMs Bill, we expressed concern about what appeared to be the significant decline in the number of successful prosecutions for terrorism offences over the last few years ... We reiterate our and our predecessor Committee’s recommendations that legislation to provide for the admissibility of intercept as evidence be brought forward as a matter of urgency”.

I accept that that goes wider than is specific to this Bill, but it indicated some surprise that, in the Green Paper at least, the Government had not flagged up the possible use of intercept, if indeed the intention is indeed to get as much relevant material before the court as possible. Therefore, the Government have made provision in the Bill for that to happen.

Lord Lester of Herne Hill: My Lords, I am very grateful to my noble and learned friend. I agreed to those paragraphs as part of the Joint Committee on

23 July 2012 : Column 502

Human Rights, and it is perfectly right to draw attention to them. That is why I support the use of intercept evidence in the context of this Bill. However, the noble and learned Lord, Lord Woolf, placed justifiable reliance on the fairness of judges and the overriding interest in the interests of justice in interpreting the Bill. Would my noble and learned friend accept that when we come at least to Report, we need to consider the safeguards?

This Bill restricts judicial discretion in certain ways. It does not leave it at large. It does not leave the overriding interest in natural justice, or the pursuit of justice, as a free-standing consideration that trumps everything. Therefore, will my noble and learned friend consider with an open mind—I am sure he will—questions such as AF disclosure to special advocates as one of the safeguards to try to do the best we can to secure equality of arms in this context?

Lord Wallace of Tankerness: My Lords, that perhaps goes wider than the specific issue of intercept evidence. However, I have of course indicated on a number of occasions a willingness to engage.

For completeness, my noble friend asked about the United States procedures. While they are similar in many respects, it is important to remind ourselves that the legal frameworks between the United States and the United Kingdom also differ. There are significant operational differences, so comparisons are of limited value, but it is certainly an issue on which I am willing to engage with my noble friend.

It is clear that there are different views on this and, in his memorandum to the Joint Committee on Human Rights, Mr David Anderson QC, the independent reviewer of terrorism legislation, said:

“The major benefit of existing CMPs are that they allow the court or tribunal to decide the issues before them on the basis of all the evidence—including the intercept evidence that is otherwise not admissible in legal proceedings. If a CMP is to be introduced into civil proceedings, it should be on condition that section 18(1) of RIPA be amended so as to add civil litigation CMPs to the list of proceedings in which intercept evidence can be admitted”.

On the point made by my noble friend Lord Marks, I think there is a perception that this will always be in the interests of the Government. I accept the decision of Mr Justice Ouseley in the case of AHK, which I think related to naturalisation and so would come out separately under Clause 12 but under a judicial review. The Secretary of State might well, in a judicial review, come to a particular decision because she had access to material from intercept. If that evidence is not to be made available, and is to be withheld from the court that is considering a Secretary of State decision that is being judicially reviewed, justice might well not be done to the claimant.

The point is that other statutory CMPs can hear RIPA material—intercept evidence. Therefore, the exception to the rule would be if we did not allow this RIPA material to be held in civil proceedings, which could be to the detriment of claimants bringing cases against the Government. It is very clear that this is an issue that we will wish to consider.

On the point made by my noble and learned friend Lord Mackay of Clashfern, I accept that there are important differences between criminal procedure and

23 July 2012 : Column 503

civil procedure. I am advised, too, by my noble friend Lord Henley that your Lordships will have another opportunity to explore this issue when he answers an Oral Question from the noble and learned Lord, Lord Lloyd, tomorrow on the wider issues relating to intercept evidence.

There are evidential differences between criminal and civil proceedings, so the fact that intercept evidence may be used in closed material proceedings of a civil nature does not read across to criminal cases where the disclosure obligations on the prosecution to the defence are much stronger than the corresponding disclosure obligations in civil proceedings.

I have sought to address the specific points of procedure that were mentioned by my noble friend Lord Hodgson and the noble Lord, Lord Dubs, as well as to deal with the issue of intercept evidence. I hope that, having heard these arguments, the noble Lord will withdraw his amendment.

Lord Thomas of Gresford: Perhaps I may repeat that I do not, in my amendment, refer only to intercept evidence. It deals with what is admissible evidence in civil proceedings. At the end of that, I am still left in some doubt. I started with the position that the noble and learned Lord, Lord Woolf, enunciated that a judge would be able to do what was justice in a particular case and would not require direction. But it struck me when we discussed the matter last Tuesday that this was a means of putting before the judge—the decider of the facts—material that he would never otherwise see if the proceedings were open. It is fundamentally unfair that that should be so.

Is that the position of the Government? Do they really want the judge to decide not whether closed proceedings should be held, which is what Section 6 is about, but in the trial of the issue—the determination of who wins the case—whether to use material, of which intercept evidence is one example, that if there were no such proceedings would never play a part in the trial? Is that the position?

Lord Wallace of Tankerness: My Lords, there is a danger of going over some of the ground that we went over at an earlier stage. There are two stages to what we are proposing. There is what we have commonly come to describe as the gateway stage and there is the subsequent stage where individual pieces of evidence are argued over and special advocates make representations on those individual pieces of evidence. If the impression has been given that somehow intercept evidence is in a category of its own and will not be allowed to be challenged by the special advocates, then that is a wrong impression. Like other pieces of evidence, it will be subject to robust argument and debate overseen by a judge who, as the noble and learned Lord, Lord Woolf, said, is there to ensure that there is fairness. It is not a question that somehow such evidence is in a special category and in a box not to be challenged and not to be talked about.

Lord Hodgson of Astley Abbotts: My Lords, I am extremely grateful to my noble and learned friend for the very full response he has given to the debate. Obviously, there is a lot of information for us to absorb and think about during the Recess before we get to the next stage of the Bill.

23 July 2012 : Column 504

When a couple of non-lawyers such as the noble Lord, Lord Dubs, and I propose an amendment and we are followed by a past Lord Chancellor, a past Attorney-General, a past Lord Chief Justice and a past head of the security services, we need to be pretty careful about what we are doing and sit up and listen. The purpose of the amendments was to improve the balance and the fairness. They were probing amendments at this stage and intended to shine a light of transparency wherever and as far as we could.

The noble and learned Lord, Lord Woolf, argued about proportionality. He said that this would apply in only a limited number of cases in civil proceedings and that the issue of judicial discretion could carry the day. However, in previous debates I have said how in a very few cases that could involve the minority community and in particular the Muslim community, which could have a disproportionate impact on the way that our society operates and the way that justice is seen to be operating. I have referred to my own visits to schools and so on as part of the Lord Speaker’s outreach programme, where one sees how extremely sensitive these communities are about the way our judicial system works. Therefore, I am concerned about that. I am also concerned about what the noble Lord, Lord Beecham, said about mission creep. His Amendment 69A concerns another area of danger in Clause 11—where the mission could be expanded quite a lot on the basis of regulation—which we all need to explore.

The noble Baroness, Lady Manningham-Buller, feels that I have got it in for the security services. I have not got it in for the security services at all—

Baroness Manningham-Buller: I assure the noble Lord that I have no such thoughts.

Lord Hodgson of Astley Abbotts: I am merely testing the case and, as I have said before, I quite understand the anonymity of sources and the danger of publicity to them. However, perhaps I may just say that the amendments that the noble Lord, Lord Dubs, and I have tabled today refer to the role of the special advocate, who is security cleared. Therefore, we should be able to rely on that.

With regard to Amendment 69, my noble and learned friend said that this was an issue of case management where the parties have agreed and that it was business as usual. Unfortunately, this is where the ice cracks under my feet because I have no idea whether that is a good argument. I see nothing about parties having agreed in the Bill at present. However, I am sure that we will have a chance to consider this further. I will certainly need further advice before going any further on the point. Therefore, at this stage, I beg leave to withdraw the amendment.

Amendment 69 withdrawn.

4.30 pm

Amendment 69ZA

Moved by Baroness Berridge

69ZA: Clause 10, page 7, line 14, at end insert—

“( ) Rules of court relating to section 6 proceedings must make provision—

23 July 2012 : Column 505

(a) requiring the court concerned to notify relevant representatives of the media of proceedings in which an application for a declaration under section 6 has been made,

(b) providing for any person notified under paragraph (a) to be permitted to intervene in the proceedings,

(c) providing for a stay or sist of relevant civil proceedings to enable anyone notified under paragraph (a) to consider whether to intervene in the proceedings,

(d) enabling any party to the proceedings or any intervener to apply to the court concerned for a determination of whether there continues to be justification for not giving full particulars of the reasons for decisions in the proceedings, and

(e) requiring the court concerned, on an application under paragraph (d), to publish such of the reasons for decision as the court determines can no longer be justifiably withheld.”

Baroness Berridge: My Lords, this amendment to Clause 10 relates to two matters: open justice in paragraphs (a) to (c) and the nature of secret judgments in paragraphs (d) to (e). The amendment also bears the names of the noble Lord, Lord Pannick, and my noble friend Lord Lester. I will deal with each of these matters in turn.

Paragraphs (a) to (c) simply provide that the press would be notified of a Clause 6 application for a declaration that the proceedings may require closed material proceedings. Paragraph (b) enables the press to intervene and, if they wish to do so, they might need the services of a special advocate. A subscription-based e-mail alert system would be a simple, cheap and effective method of notification.

In the seminal case of Scott v Scott, Lord Shaw said that open justice is a sacred part of our constitution and our administration of justice. One of the main criticisms by the Joint Committee on Human Rights on the Green Paper was that it lacked any consideration that the interests of the public are served by the press having access to proceedings. In fact, the Joint Committee referred to open justice as the “missing issue” in the Green Paper.

This amendment is somewhat analogous to existing situations in our judicial process, such as where there is a media injunction. Of course, the media can make representations for it to be lifted. It is also analogous to the situation where certain newspapers intervened in the Al Rawi litigation. They were represented by my noble friend Lord Lester to argue the impact that closed proceedings would have on their access to information.

I am very grateful that various media representatives and lawyers gave evidence to the Joint Committee. Mr Cobain from the Guardian maintained that certain material substantiated allegations that the British Government had been closely involved in rendition that the disclosure process in court proceedings brought into the public domain for the first time. He said that he had previously been told by the Government that such allegations were conspiracy theories and that, without the disclosure process, documents, such as a telegram from the Foreign Secretary to various UK missions around the world explaining that no objection would be made to the transfer of British nationals to Guantanamo Bay, would not have been seen. He maintained that, under this closed material regime, the press would not have access to that evidence. Accordingly, the press, and therefore the public, would

23 July 2012 : Column 506

be arguably less able to scrutinise government actions or to know whether the press allegations by the press are indeed mere conspiracy theories.

During the consideration of these issues over many months now, it has been brought home to me that the public need to know the judge’s reasons—and, obviously, giving an open judgment is one of the main ways in which our judges are held accountable as it enables them to be scrutinised or even appealed. The disclosure and discovery procedures of a court case can also be a vital tool to convert a mere allegation or theory into established fact. Often those processes are the only way in which that information is made public. This amendment would enable the media to make representations—I emphasise on behalf of the public interest, not their own—to see this material and have an open trial.

Paragraphs (d) and (e) of the amendment are, I confess, probing in nature. They seek further details of the Government’s view on the recommendation made by the Joint Committee on Human Rights to deal with important questions raised in relation to closed judgments in a legal system that relies so heavily on precedent. One of my abiding memories from university is that of going into the law library for the first time and seeing all those bound volumes stacked from floor to ceiling. That shine wears off when one is trying to understand the complexity of some of the judgments. I am grateful to know that by the end of the summer the Government will have compiled a systematic database of the headnotes of the existing judgments in closed material procedures. It was troubling to the Joint Committee to hear from special advocates that they did not have access to secret judgments and that it could be merely by chance that they would find out about a case that might be relevant to the one they were involved in. Can my noble and learned friend Lord Wallace say why the database is not to cover the whole case being compiled, or was I the only lawyer who was occasionally led astray by an inaccurate headnote? That would also answer what I believe is an outstanding question: where physically are these judgments held?

Paragraphs (d) and (e) would introduce a mechanism for a party to apply for a secret judgment to become an open judgment and goes beyond the mere review of a judgment that was dealt with in subsection (g) of the new clause proposed in Amendment 67C in Committee on 17 July. I am grateful to my noble and learned friend Lord Wallace for saying that he understood the issue and would revisit the point about secret judgments when,

“the national security considerations have in some respects flown off”.—[

Official Report

, 17/7/12; col. 209.]

However, it is not only when secrecy has disappeared that there can be a need to open up these judgments either for review or possibly for appeal. There have been a number of instances where the evidence of a witness in a case, often an expert but sometimes a police officer, has been so discredited in its methodology or by the witness’s veracity, that other cases where that witness’s evidence has been relied on need to be looked at. Although it is a rare situation, unfortunately one has only to think of the conduct last week of Chief Inspector Anthony Tagg, who was found by the judge to have lied under oath in the trial relating to the

23 July 2012 : Column 507

deaths of three men during the riots last summer in Birmingham. It is an example of where other cases in which he has given evidence may have to be looked at. It can only support confidence in our justice system if, as the amendment outlines, a party is allowed in these circumstances to request the court to look at the secret part of a judgment. I hope that the Government will support both aspects of the amendment as I believe that it puts the missing element of open justice firmly back into the Bill. I beg to move.

Lord Pannick: My Lords, I have added my name to this amendment and I support what the noble Baroness, Lady Berridge, has said. It is often the case, when courts consider whether to go into closed proceedings in other contexts, such as in family law cases or in those that concern confidential personal information, that the persons who object are representatives of the media. The litigant who is adversely affected may be playing only a very limited role in the proceedings or they may have reasons of their own for not objecting to the closed hearing. It will often assist the court in deciding whether to go into a closed procedure if it hears from representatives of the media as to the disadvantages of doing so and the relevant law in respect of the matter. But the media can make those representations only if they are notified of the possibility of the court moving into a closed session.

As the noble Baroness, Lady Berridge, has said, the amendment addresses a second topic, one that this Committee addressed briefly last Tuesday night, and that is the vital need to ensure that there is the possibility of a periodic review of whether a judgment needs to remain confidential. The concern is that there will be, as there already is in relation to control order decisions and TPIM cases, a body of case law, the contents of which is known only to a very few people. The case law is known to officials, to counsel who have represented the Home Office, to counsel who have acted as special advocates and to some judges. However those counsel and those judges may be aware only of the decisions in the cases in which they have played a part, yet this case law may contain information which is very important to the determination of later cases.

This is a very real problem for a common law system in that some of the case law is secret. I understand that it has been suggested—only partly in jest—that a set of secret law reports should be published, a subscription to which could only be bought by those with security clearance. It may be necessary—this is what we are debating in relation to Part 2—for Parliament to depart from basic principles of fairness and openness, but it is then vital for us to build express procedural safeguards into this Bill, safeguards that do not undermine the maintenance of secrecy.

The noble and learned Lord, Lord Woolf, just expressed the view that it is unnecessary for Parliament to tell the judges how to protect fairness. He is right. All the judges in this area have been and continue to be concerned about maintaining fairness in the procedures in control order cases and in TPIM cases. Nevertheless, I consider it is very important that Parliament should do all that it can to set out clearly, for the avoidance of doubt, the existence of vital safeguards in this area, both to give confidence to the individuals concerned

23 July 2012 : Column 508

and to ensure that we avoid so far as possible the inevitable expensive and protracted litigation. Two of these vital protections are set out in this amendment—that the press should have notification of a proposal to go into closed procedure and that there must be an opportunity periodically to review whether to maintain the secrecy of a closed judgment after a period of time.

4.45 pm

Lord Lester of Herne Hill: My name is also on this amendment. When I heard my noble and learned kinsman Lord Woolf indicate in his speech why we should trust the judges, I was reminded of what Archbishop William Temple once said:

“Whenever I travel on the Underground I always intend to buy a ticket, but the fact that there is a ticket collector at the other end just clinches it”.

However good our judiciary might be, it is important that the legislation should just clinch it.

The principle of open justice is a constitutional one anchored in our written and unwritten law and in the Human Rights Act both as regards the right to a fair and public hearing of civil and criminal proceedings protected by Article 6 of the convention, and the right to freedom of expression protected by Article 10. As my noble friend Lady Berridge has indicated, the principles were laid down most famously in Scott v Scott in 1913 when Lord Haldane, Lord Chancellor, referred to:

“the general principles as regards publicity which regulated the other courts of justice in this country”,

as being of “much public importance”.

“They lay down that the administration of justice must, so far as the trial of the case is concerned, with certain narrowly defined exceptions . . . be conducted in open court”.

Later Lord Haldane noted in the same case that the power of an ordinary court to hear in private cannot rest merely on the discretion of the judge. He said:

“If there is any exception to the broad principle that requires the administration of justice to take place in open court, that exception must be based on the application of some other and overriding principle which defines the field of exception and does not leave its limits to the individual discretion of the judge”.

The principle of open justice was reaffirmed by the English Court of Appeal, including the noble and learned Lord, Lord Neuberger, the Master of the Rolls, whose appointment as president of the Supreme Court I am sure we all greatly welcome. That Court of Appeal, as recently as 7 February 2012, was dealing with the successful appeal against the refusal by the district court to grant access to documents supplied to the court for the purpose of extradition to the United States of two individuals alleged to have been involved in bribing Nigerian officials by a subsidiary of the US company Halliburton. Lord Justice Toulson gave the leading judgment, in which he observed that the principle of open justice,

“has been recognised by the common law since the fall of the Stuart dynasty”.

After he quoted from Scott v Scott, he cited a New Zealand case, Broadcasting Corporation of New Zealand v the Attorney-General, in which the president, Sir Owen Woodhouse, another great and famous jurist, observed that,

“the principle of public access to the Courts is an essential element in our system. Nor are the reasons in the slightest degree

23 July 2012 : Column 509

difficult to find. The Judges speak and act on behalf of the community. They necessarily exercise great power in order to discharge heavy responsibilities. The fact that they do it under the eyes of their fellow citizens means that they must provide daily and public assurance that so far as they can manage it what they do is done efficiently if possible, with human understanding it may be hoped, but certainly by a fair and balanced application of the law to the facts as they really appear to be. Nor is it simply a matter of providing just answers for individual cases, important though that always will be. It is a matter as well of maintaining a system of justice which requires that the judiciary will be seen day by day attempting to grapple in the same even fashion with the whole generality of cases. To the extent that public confidence is then given in return so may the process be regarded as fulfilling its purposes”.

Lord Justice Toulson of course recognised that there are exceptions to the principle of open justice, but they must be justified by some even more important principle. In the Binyam Mohamed case, the Lord Chief Justice, the noble and learned Lord, Lord Judge, declared:

“Without the commitment of an independent media, the operation of the principle of open justice would be irremediably diminished”.

He recognised the special significance of the open justice principle in cases involving allegations of wrongdoing against the Executive.

As my noble friend Lady Berridge observed, the Joint Committee on Human Rights, in its report on the Green Paper, pointed out that the significant implications of the Government’s proposals for freedom of the media to report matters of public interest and concern did not feature at all. The committee regarded that as a “serious omission” and, at paragraph 217, called for the,

“human rights memorandum accompanying the Bill to include a thorough assessment of its impact on media freedom and on continuing public confidence in the administration of justice”.

When it came, the human rights memorandum contained just four brief paragraphs, paragraphs 32 to 35, asserting that the Bill is compatible with the freedom of the press because,

“in all cases where the test for closed proceedings is met it will be possible to justify the interferences with Article 10 rights as necessary and proportionate in the interests of national security”.

The Government’s response to our report provides even less comfort on that score. It states at page 15 that, in the Government’s view,

“the proposals will enhance transparency and public trust, not undermine it”,

and that,

“the media can be expected to have increased opportunities to report on substantive findings in cases that raise matters of significant public interest”,

because more relevant material will be put before the court to enable it to reach a decision in cases which currently cannot proceed. It is disappointing that there is nothing in the Bill so far to address the JCHR’s significant concerns about the impact upon media freedom and democratic accountability. As it stands, the Bill would undermine principles that have guided this country for centuries, threatening to violate open justice and free speech where they are most needed, especially in the context of cases involving allegations of wrongdoing by citizens against the executive.

23 July 2012 : Column 510

I will not trouble the House with the convention case law that supports all of this, but I will say that to avoid arbitrary laws there are two fundamental requirements anchored in our legal system and in the convention. First, the law must be reasonably certain and foreseeable so as to be accessible to the citizen. Secondly, the law must provide adequate safeguards against abuse. The memorandum from the Government on the convention issues does not mention these vital safeguards of the rule of law and constitutional rights. The Bill as it stands would authorise the courts in future cases, without any prescribed and foreseeable criteria and safeguards, to operate a closed system of justice, shielded from public scrutiny. The virtue of Amendment 69ZA is that it requires rules of court to be made that would strike a fair balance between open justice, freedom of expression and national security, while satisfying the principles of common law and the convention.

Finally, as the noble Lord, Lord Pannick, and the noble Baroness, Lady Berridge, have indicated, on the question about the publication of judgments in this area, the principle of legal certainty makes it absolutely essential that everybody should know the nature and scope of the relevant law. I remember in arguing the thalidomide case at Strasbourg many years ago that, because of the uncertainty of the law, we relied on the abuse by a Roman emperor who wrote the law on the top of very tall pillars, which prevented Roman citizens from being able to see it properly. That is an example in Roman law of the vice of legal uncertainty. A similar problem will arise if judgments given by the courts in cases of this kind remain altogether secret with no safeguards for them to be published when their secrecy is no longer necessary. I very much hope that those points will be addressed, whether in these amendments or others.

Lord Beecham: My Lords, we have previously debated amendments that would help to secure oversight of this system, if indeed this Bill survives the legislative process. Most, though not all, noble Lords who have spoken in the debates in Committee have expressed considerable reservations about the principle. Most have then spoken to amendments that would mitigate the effect of the principle if indeed it emerges in the final transition of the Bill to the statute book.

For my part, I concur very strongly with the views of the noble Lord, Lord Pannick, and the noble Baroness, Lady Berridge, regarding the establishment of a system for identifying the case law and the judgments and making them available, at some point at any rate, to inform the judicial process. That seems very important to me and certainly I lean towards amendments that ultimately would require the publication of reasons for a decision.

I am less attracted, however, by the first parts of the amendment moved by the noble Baroness, which would allow the media to intervene in proceedings. I am not quite certain of the form in which such intervention would take place, but in any event I am not at all persuaded thus far that this is something that would materially assist the process as opposed to simply promoting the interests of the media. It is difficult to see how that would work in practice, so we cannot support those elements of the amendment.

23 July 2012 : Column 511

However, we look to the Government to respond constructively to the points made about the recording and availability of case law and the justification for particular decisions being made at a point when security interests are no longer as strong as when the closed material procedures, if indeed they exist, are implemented in a particular case. There ought at some point to be a disclosure. To that extent we sympathise with that part of the amendment, but in relation to its first parts we cannot really support what the noble Baroness is trying to do.

Baroness Stowell of Beeston: My Lords, I am grateful to my noble friend Lady Berridge for tabling this amendment because it is important that, in a Bill such as this, we have an opportunity to discuss freedom of expression and the media’s important role in holding the Government to account and scrutinising what happens in this country. I think my noble friend suggested that one of the purposes of her amendment was to ensure that there is public trust in the judicial system. She certainly made several remarks about the importance of open justice, and was joined in that by other noble Lords. We obviously share that objective and, from the report of the Joint Committee on Human Rights, we are aware of its concerns about the impact on public trust and confidence in the courts.

However, it is important that we remind ourselves that this Bill is also about allowing justice to be done where that has not been possible before—and doing so in a way that is as fair as we can make it. Throughout the debates on the closed material procedure aspect of the Bill the Government, through my noble and learned friend, have been at pains to stress that as much material and judicial reasoning as is possible without damaging national security will go into open court. The special advocates will assist with pushing as much material as possible out of the closed case into open court, and at all stages of the process: at the application stage, during the substance of the case and at the point of judgment, when they will challenge the material in the closed judgment and make representations about why it should be in the open. The media will have access to all open elements of proceedings, as normal. Indeed, as I will come on to explain, we believe that in this process they will have access to more material than they might otherwise have had.

My noble friend and the noble Lord, Lord Pannick, referred to safeguards. I think the noble Lord said that it was important to build in safeguards in order not to undermine the need for secrecy. There was some consensus built around the later legs of the amendment, which refer to what I might describe as the declassification of the judgments. I will come back to that later.

My immediate response to the first part of the amendment is that it raises some practical difficulties as far as giving the media access to intervening in the proceedings. Indeed, I was interested to hear the noble Lord, Lord Beecham, express his doubts about whether that would actually add to the proceedings. While I know that my noble friend mentioned the suggestion of the media being appointed a special advocate in order to be able to intervene in proceedings, it is important to recognise that the media is not in and of itself an institution with a formal responsibility to

23 July 2012 : Column 512

represent the public interest. The media have several functions, whether to report or to investigate. Certainly in open proceedings, they are there representing the public alongside the public who are already there. To give them access to something that is closed because the nature of the discussion and the evidence at issue could, if brought into the open, damage national security, would seem an anomaly. It would also be difficult to make possible in practice.

5 pm

I am grateful to my noble friend for emphasising the important role of the media in holding the Government to account. We agree that this is a vital aspect of the principle of open justice. However, regarding civil cases that someone might want to bring against the Government, it is not possible for the media to do that at the moment because the Government are not pursuing these cases; these cases do not get as far as being properly determined because the Government are not able to rely on the confidentiality being maintained of the evidence that they wish to rely on.

In the current system, sensitive material is either entirely excluded from the court or the Government are forced to seek to bring the proceedings to a close, regardless of the merits of the underlying case, to prevent the disclosure of damaging material. This is profoundly untransparent and undermines public trust, which is very much at issue here. We believe the public would prefer to know that relevant material could be seen and taken into account by a judge, rather than excluded from proceedings altogether.

We also believe that the public would prefer that the Government were able to defend themselves and allow cases to continue to judgment rather than be settled, potentially at great expense to the public purse, because of the unacceptable risks arising from the process which did not permit the protection of sensitive material. It is also worth bearing in mind that, while we are at pains to ensure that public confidence in the judicial system is not put at risk in this process, we must also not put at risk public confidence in the security services, which are also there to act in the interests of the public and which, at the moment, are not able to defend themselves against any allegations that may be brought against them.

Nothing in the Bill’s proposals will prevent the media reporting allegations made about government action, or the detail of proceedings held in open court. As to claims that the Bill’s proposals are not compatible with our international obligations on freedom of the press, and particularly Article 10 of the European Convention on Human Rights concerning the freedom of expression, the Government have given full consideration to these claims and we stand by our firm conclusion that the proposals are entirely compatible with both Article 10 and Article 6.

My noble friend Lord Lester quoted a judge at length. I should perhaps declare, because I have not in my previous interventions in debates on the Bill, that I am one of the non-lawyer members of the team here for the Government. When I was preparing for today’s debate, I could not help noticing that the JCHR’s report on the Bill quotes at length the Lord Chief

23 July 2012 : Column 513

Justice. It is worth reminding ourselves of what he said about this kind of judicial system. He said,

“in my judgment the principles of freedom of expression, democratic accountability and the rule of law are integral to the principle of open justice and they are beyond question”.

He goes on to say that they do not,

“permit the media to study material which has been made subject to non-disclosure on well established PII principles, or to report proceedings where, in the interests of justice, by operation of law, such reporting is prohibited”.

So he acknowledges that this is a necessary part of our system. He concluded by saying that,

“it should be rare indeed for the court to order that any part of the reasoning in the judgment which has led it to its conclusion should be redacted”.

Noble Lords have concerns about the redaction or summaries of judgments and their publication. The Lord Chief Justice, albeit he talks about them happening on rare occasions only, none the less acknowledges that they are sometimes necessary.

We acknowledge that, in practice, when closed material proceedings are used in a very small number of cases, the ability of the press to report on those proceedings is correspondingly limited, but this restriction is permitted by Article 10(2) of the European Convention on Human Rights, which provides that the exercise of freedom of expression may be subject to such restrictions,

“as are prescribed by law and as are necessary in a democratic society, in the interests of national security”.

Bearing in mind that throughout the proceedings the judge would be in a position to ensure that closed proceedings were used only to the extent necessary to protect national security interests, we are satisfied that the restrictions are compatible with Article 10.

Lord Lester of Herne Hill: I fully accept that Article 10(2) has exceptions and that the Bill falls within those exceptions. The problem is one of a lack of legal certainty. As my noble friend has indicated, the restrictions must be prescribed by law, and legal certainty therefore requires some accessibility. When courts think of making injunctions that affect freedom of speech, such as Spycatcher-type injunctions, they give notice to the press so that it can come along and explain why it thinks that the procedure or injunction is inappropriate. I perfectly understand, as the noble Lord, Lord Beecham, said, that there is an objection to the press being present throughout the proceedings, but I have not so far heard any reason why the press cannot at least be informed. The press could come along on a Section 6 application and explain why it thinks that the procedure is appropriate when wrongdoing has been alleged. I do not understand, either, why there should be no mechanism to ensure that judgments that are secret should be published when they have lost their secrecy. Those are the kinds of issues that arise under Article 10.

Baroness Stowell of Beeston: I shall come on to the issue of redacted judgments in a moment. As to whether the press should be notified at the point of application for a CMP, it may well be informed, but it will not be informed if the issue is related to national

23 July 2012 : Column 514

security. That is the clear distinction between this kind of case and a PII case because, if the Secretary of State is making an application under CMP, she is doing so because she considers national security to be at risk.

The important points of principle for certainty are generally dealt with on the face of the open judgment. When that is published, the certainty that the noble Lord looks for will be provided. Sensitive details of the case may not be released but this does not mean all details will be placed in closed judgments. Judges are well accustomed to considering what material is published in a final judgment. At the moment the media and the public do not get this information. Instead, they are left with accusations that have not been investigated.

Lord Falconer of Thoroton: From what the Minister said, I am not clear whether it is envisaged that the fact of an application being made for a closed material proceeding should be kept secret. I had not understood that that was the purpose of the Bill or that any rules of court could be made to make the fact of the application secret. What is the Government’s intention towards that process? Is it intended that there will be certain circumstances when even the fact of an application under Section 6 is to be kept secret?

Baroness Stowell of Beeston: As I understand it, in some instances the fact of the application will not be made public because that is also what happens now under PII. If the knowledge that the application has been made could give rise to concern about national security, it would not be made public, but that does not mean that all applications would be kept secret. If necessary, I will come back to clarify that point for the noble and learned Lord.

On the points covered in proposed new paragraphs (d) and (e), to which all noble Lords have referred, about closed judgments and the point at which they may no longer be considered classified or secret and could be made public, I refer noble Lords to the extended debate in Committee last week when my noble and learned friend made the following point:

“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”.—[Official Report, 17/7/12; col. 209.]

However, we are considering this matter and will continue to do so between now and Report.

My noble friend Lady Berridge referred again to the database of closed judgments. I responded to her last week, I believe, that that issue is now in hand because of the useful contributions from the JCHR on this matter. She went on to ask whether it could go beyond the head notes to form cases. I do not have an answer for her at the moment but I will, of course, come back to her. As to the very specific points raised about the same issue by the noble Lord, Lord Pannick, I believe that I have already covered those in the remarks that I have just made.

23 July 2012 : Column 515

In conclusion, we are discussing points of fundamental importance concerning freedom of the press and public trust in the justice system. I will come back to the noble and learned Lord on his point, but I hope that I have been able to demonstrate that the Bill will help to enhance transparency and public trust rather than undermine them, and in doing so we will reinforce the principles of open justice while protecting the UK’s national security.

I noticed the noble and learned Lord looking at me rather sceptically then. Before I sit down, I think that it is worth repeating that during this process only some material will be considered in closed proceedings. The material that will be in open proceedings will be accessible to the media, and there will be more than there is at this time. The arrangements being considered will ensure that the media will have access to the cases in a way that is consistent with their responsibility to report and to hold the Government to account, but, as I said at the start, they do not have a formal role in that process. Primarily what we are looking for in this Bill is that we are allowed to ensure that justice is done where it has not been seen to be done previously. That is an essential part of what we are trying to achieve. I hope that my noble friend feels able to withdraw her amendment.

Lord Lester of Herne Hill: The Minister has referred twice to the vital principle that justice must be done, but on neither occasion has she added the usual part of that, which is that justice must be done and must manifestly be seen to be done. Between now and Report, could the Government reflect on the implications of having a procedure where even the fact of an application for closed proceedings under Clause 6 would be secret? I know of only one precedent for that kind of thing in this country. It was Defence Regulation 18B during the Second World War, which led to the infamous decision in Liversidge v Anderson. I cannot believe that such a conclusion is what the Government really intend.

5.15 pm

Baroness Stowell of Beeston: I always listen carefully to the points that my noble friend makes. This is about ensuring that justice is done, and of course justice should be seen to be done. It has been said many times before in debates on this Bill that this is not the optimum system, and it is not the one that we would want to follow. However, if the Government are to be able to defend themselves against allegations and indeed if somebody is to have the opportunity to make a claim against the Government and see that claim through, we think that this system will deliver that. We are bringing forward this Bill because ultimately that is what we want to achieve.

Baroness Berridge: My Lords, I am grateful to the noble Lords, Lord Pannick and Lord Lester, for their contributions on this amendment. I am also grateful, in part, for the contribution of the noble Lord, Lord Beecham. I hope that he can be persuaded of the need to inform the media, and not only for the reasons outlined by the noble Lord, Lord Pannick. In my view, in reality these cases are going to be twin-tracked. Either legal proceedings will be preceded by allegations in the media or allegations will be made at the same

23 July 2012 : Column 516

time as those proceedings. That is the nature of these cases. Unfortunately, they often involve allegations of rendition and so on. Therefore, it is very important to think through thoroughly the implications of not notifying the press when those allegations will be rolling at the same time in our national newspapers, on Twitter and in blogs. It is important to understand the implications of not informing the press of the application for a closed material procedure.

I am not surprised to hear from the noble Lord, Lord Beecham, of the practical difficulties of notifying the media in these circumstances. There is also some weight in the comments of my noble friend Lady Stowell in relation to the anomaly of having a special advocate representing a public interest and seeing information to which the public does not have access. However, I think it is accepted that this system is anomalous and that there are going to be practical difficulties in ensuring open justice. When you have an anomalous system, it is not surprising if you breed slightly more anomalies in trying to achieve the best result you can in the circumstances. It is important to remember that, if it is told, the press will be there representing the public administration of justice. That is a serious matter that counterweighs the anomaly or the practical difficulties. As I have outlined, there has been a tradition of the press intervening and representing the issues in certain cases.

Before closing, I wish to refer to two matters that were mentioned. My noble friend Lady Stowell talked about the public preferring evidence to be taken into account so that the Government can defend themselves, and she also mentioned the money that is paid out if they cannot do so. A lot of confidence is placed in the public’s view of this system. I do not like to rely on opinion polls because I think that the answers depend on how the questions are phrased. However, what evidence are the Government relying on? There is a high degree of public mistrust. As soon as you mention secret trials, you get a very adverse reaction, particularly when dealing with actions against the Government in these circumstances. I should be grateful for some clarification of the basis on which the Government are sure that the public are behind the introduction of this system.

Finally, my noble friend outlined something that has been an issue throughout a lot of the debate on these amendments. She mentioned only some material being closed. At the same time, a big thrust of the Government’s argument has been that these cases are saturated by intelligence material. Therefore, we need some explanation here. It may be that only some material will be closed but we are also talking about cases that are saturated by intelligence material and where most of the proceedings will be closed and therefore the secret judgment will perhaps be a blank. I hope that the Minister can provide further clarification. I beg leave to withdraw the amendment.

Amendment 69ZA withdrawn.

Amendment 69ZB not moved.

Clause 10 agreed.

Amendment 69ZC not moved.