Clause 11 : Sections 6 to 10: interpretation
Lord Beecham: My Lords, this amendment and the other amendments in the group relate to what are extraordinarily wide powers that Clause 11(2) and subsequent subsections would confer on the Secretary of State to amend, for the purposes of the legislation, the definition of “relevant civil proceedings”. The Delegated Powers Committee looked in some detail at these matters and I rely heavily on its observations. It raised significant concerns and made it clear that, while, of course, the procedures are confined to civil proceedings, the effect of the Bill is to permit any such civil proceedings to be ones in which the procedures can be invoked.
Subsections (2) to (4) of Clause 11 confer a very wide power on the Secretary of State to amend the definition and to amend the definition by affirmative order. In so doing, courts or tribunals can be added or removed and rules can be prescribed. The committee stated that:
“The powers are undoubtedly wide”.
They might, indeed, in the view of the committee, be exercised so as to specify a coroner’s court. Of course your Lordships will recall that the question of inquests has been mentioned more than once. The Lord Chancellor has indicated that procedures would not apply to inquests but, on the face of it, that decision could be changed under the provisions of Clause 11(2), by order, to be approved, as I have indicated, by affirmative resolution. In addition to that, there is the possibility of some urgency being required in the mind of the Government and that is also a question which the committee addressed. There is the possibility of a made affirmative procedure being invoked under which a change could be instituted by, effectively, tabling an amendment. Although, ultimately, that would have to be approved, it would take effect immediately.
The committee, while acknowledging the Government’s concerns about urgency, pointed out that if a situation arose in which it was felt that an application needed to be made in proceedings before a court or tribunal which was not initially specified and for which, therefore, an order would have to be brought forward, the Government,
“does not explain why it is thought that an order which attracts the draft affirmative procedure should offer any speedier means of meeting that perceived need for amending legislation than, for instance, a short Bill fast-tracked through both Houses”.
It said, and I think that there is considerable force in the argument, that that approach,
“would at least ensure that control over further extensions of the ‘closed material procedure’ would remain with Parliament, rather than with the Government”.
Nevertheless, it took the view that the House should consider,
“the scope of the powers conferred so that it may appreciate the unconstrained nature and extent of the provision that might be made under them by this or any future government. The House may wish to consider whether the Bill should be amended to restrict that scope or to include any such safeguards as the House might regard as necessary for ensuring Convention rights are observed and for protecting the interests of open justice”.
The Constitution Committee thought that the made affirmative procedure might be more appropriate, but the Delegated Powers Committee felt that that would perhaps be the least likely way to meet the need for urgency.
The provisions here are extensive. The procedure that the Government propose to adopt does not really allow sufficient parliamentary scrutiny and leaves the decision, as the Delegated Powers Committee made clear, in the hands of the Government when there is an alternative if a situation of urgency arises. Your Lordships might think that this is much too broad a power to be left in the way that this clause and its subsections provide and I sense that the other amendments in this group reflect that view. I hope that the Government will reconsider and go back, before Report, to the recommendations of the Delegated Powers Committee and seek to amend this provision as it currently stands to one that is more acceptable and more consonant with the procedures of parliamentary scrutiny of what might be significant changes to the scope of the Bill. I beg to move.
Lord Hodgson of Astley Abbotts: My Lords, I have tabled Amendment 70 in this group. The noble Lord, Lord Beecham, has covered the points and I do not wish to weary the Committee with repetition. Amendment 70 would remove subsections (3) and (4), as well as subsection (2), and is therefore more brutal in its application. One of the briefings I received on this part of the Bill said that this was a potentially,
“unwarranted extension of an unsatisfactory procedure”.
I therefore support what the noble Lord was saying about the dangers of mission creep, which we have discussed before. As we keep hearing it stressed that this is going to be a very rare procedure, it seems strange that we should allow courts to be added in what is essentially a pretty cavalier manner. I am all for statutory instruments and their positive nature, but they are unamendable and inherently too weak to tackle something that is as dangerous and difficult as this area that we have been discussing these past few days.
Subsection (4)(a) refers to “explaining the meaning” of “rules of court”. Do they really need to be explained? Are we not, as the noble and learned Lord, Lord Woolf, has explained to us, able to rely on judicial discretion and ability to interpret? I am concerned that explaining the meaning of the rules of court carries with it, in some more sinister way, an instruction as to what they mean and what judges should do. Similar wording in subsection (4)(b),
“enabling provision of a particular description to be made by such rules of court”,
seems to me, as a non-lawyer, to carry with it a degree of direction and fixed purpose that does not fit well with the sensitivity of the nexus that we have been discussing between civil liberties and the need to protect national security.
Baroness Turner of Camden: My Lords, I am not a lawyer but I am a former trade union official and tend to look at the proposed legislation before us from the standpoint of people who are working in industry and
are members of unions. I am most concerned about the possible impact of this law on employment legislation.
We know that the Government are currently considering employment law and have been considering employment tribunals now for a very long time. Every time I have asked about employment tribunals I have been told that they are under consideration and that the Government are looking at them, and so on and so forth. Every time that employment tribunals, or tribunals of any kind, make an appearance in legislation, I ask what the Government are up to and what it means. Can we be told whether there is an impact on employment in subsections (2) and (4)? It is these two subsections, referred to in Amendment 70, that first attracted my attention. Can we be told precisely what these subsections are intended to involve regarding reference to tribunals, with all that that could mean for employment law?
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Lord Soley: My Lords, I intervene as a member of the Delegated Powers and Regulatory Reform Select Committee, to which my noble friend Lord Beecham has already referred and which has been referred to on the other side of the Chamber. I do not speak for the Committee, but I can say quite clearly that we spent some considerable time on this and were very concerned about it. We all know the powers as Henry VIII powers. Whenever we have these, we look at them carefully and with considerable concern about the power of Parliament being sidelined in relation to the power of the Government.
The context of all this is my own involvement in many of these issues, going right back to the 1970s and 1980s when I first started working with some of the legislation dealing with the emergencies in Northern Ireland and with other prevention of terrorism Acts. The tendency in all these things is for the Government to require the extra powers, for reasons which we all understand and are very sympathetic to, because on one side of the equation is the need to deal with the difficult situations but to do so by exercising the proper rule of law, and on the other is the right of Parliament to oversee what the Government have done.
I have made this point before but I make it again simply to reinforce the context of this. If we look at the history of these sorts of Acts, we see that they have a long involvement in the Government taking additional powers, very often in difficult situations, and then extending those powers into other areas. I have referred in the past to the Official Secrets Act 1911. Not long after that Act, MI5 and MI6 were created. However, neither MI5 nor MI6 had a legal existence until the 1980s; we literally did not put them into law. If we look at the prevention of terrorism Acts in the 1970s and 1980s, we see that we often legislated for drastic situations in which we needed to protect the public but did so in a way in which Parliament was increasingly marginalised. I had a great objection to one of the prevention of terrorism Acts, which had in effect a more than Henry VIII power whereby the Home Secretary alone could exclude a person from one part of the United Kingdom to another part without reference to Parliament.
What did the Delegated Powers and Regulatory Reform Committee focus on here? It was on this very issue of the power that the Government are taking. I refer here not so much to the report which my noble friend Lord Beecham has dealt with very well, but to the notes provided to the Delegated Powers Committee: the Home Office and Ministry of Justice memorandum. This is not new material.
Paragraph 47 of the memorandum says:
“It is appropriate to make provision in the Bill for this power”—
that is, the power to define the relevant civil proceedings in a court, excluding the criminal courts of course—
“because it is possible that a case not within the scope of the current definition of ‘relevant civil proceedings’ will arise, such that a CMP is needed for the just consideration of the case to be heard before a different court or tribunal”—
a point that we are all aware of—
“whilst at the same time there is a need to protect national security sensitive evidence from disclosure”.
Again, that is something we are all very aware of. It continues:
“Furthermore, if this happens, the need to provide for the possibility of a CMP in such proceedings will be pressing in terms of time”.
“For these two reasons it is considered appropriate to provide for this power, since the changes can be made more quickly than amending primary legislation”.
The concern of the Delegated Powers Committee in this respect was what form of parliamentary control could be had over this sort of extension. This is the sort of creeping power that I have described and which any Government, not just this one, could in the future extend to other courts. The exception in the Bill itself is of course criminal courts. The Delegated Powers Committee took the view that there was no reason why this should not extend to coroners’ courts, even though the Government have, as I understand it, expressed the view that it should not in fact do so. However, there is nothing in the Bill to say that it does not. My worry would be that, given that there is a whole range of issues—including the point just made by my noble friend about trade unions, although this might be less likely in the nature of the information required—this would extend to tribunals as well. It could be extended across the board to many other areas of the law, which would be damaging and dangerous.
In the Delegated Powers Committee report we asked why, if there was urgency of time, we were looking at an affirmative procedure. An affirmative procedure is not fast; nor, incidentally, is the super-affirmative procedure referred to in the constitutional law report by the Constitution Committee, which suggested a super-affirmative procedure to deal with this. That is not a fast procedure either. If we need a rapid response—and I for one accept that a rapid change will be needed at times to deal with a case—one begins to look for a different way of addressing these urgent and difficult situations.
I have often felt, particularly as a member of the Delegated Powers Committee, that we do not really have the best system available to look at delegated powers. We almost need additional ways of doing this,
and perhaps there will be a discussion on that when we come to another report issued by the Delegated Powers Committee on another occasion. I would simply say that, in the current situation, a Bill put through both Houses as a fast reaction to this would be a better way of dealing with it, not least because a Bill that is put before both Houses in the expedited system that we are quite used to when dealing with terrorist situations can also have a sunset clause in it. In other words, the action given to the Government and approved by Parliament to allow the Government to take this additional power could have a finite lifespan.
If we suddenly felt that we needed this power for a coroner’s court hearing, for example, there is no reason why a Bill could not be moved through this House quite rapidly and have a sunset clause in it so that it would expire after a certain period of time. We have done that before; we did it with the prevention of terrorism Act in the 1980s, so it is perfectly possible to do this. My concern, and that of most other members of the Delegated Powers Committee, was that this is a very real Henry VIII power that gives the Government great powers which Parliament is not given sufficient control over. That is the history of this sort of legislation. Parliament always needs to be alert to its duty—and it is a duty—to protect the citizens of a country from a Government having excessive powers.
In following up my noble friend’s comments on all this, I would certainly ask the Government for an explanation of why an expedited Bill through both Houses would not be a better option than an affirmative order, whether a super-affirmative order or a conventional affirmative order; or, indeed, whether the Government agree that there is considerable danger in any Government, with the best will in the world, faced with serious problems of the type that we have these days, being content to allow for a situation that is not only not fast—because the affirmative procedure is not fast—but that extends considerable power to the Government, which in most circumstances we would not accept.
Lord Marks of Henley-on-Thames: My Lords, I will speak to Amendments 70A and 70B in my name and the names of my noble friends Lady Williams of Crosby and Lord Thomas of Gresford. I speak as a member—a very new member—of the Delegated Powers and Regulatory Reform Committee.
Our amendments are in narrower terms than the amendments tabled by the noble Lord, Lord Beecham, the noble Baroness, Lady Smith, and those of the noble Lords, Lord Hodgson and Lord Dubs. Amendment 70A is prompted by the concern mentioned by the noble Lords, Lord Beecham and Lord Soley. Clause 11(2) and (3) gives the Secretary of State the power to add courts and tribunals to the very restricted list of courts that may hold closed material proceedings. That list comprises the High Court, the Court of Appeal and the Court of Session. That plainly involves the power to add coroners’ courts.
It is in that respect that the Joint Committee on Human Rights took the view that there was no case for inquests to be made the subject of closed material procedures. Not only did the committee reject the
argument that coroners were liable to be disabled from conducting full investigations by the exclusion of sensitive material, but it pointed out, rightly in my view, that the use of CMPs in inquests would probably be a breach of Article 2 of the European Convention on Human Rights. That right to life article carries with it a procedural requirement for states to investigate suspicious deaths. On the basis of cases both here and in the European Court of Human Rights, such investigation has to be open and enable the families of the deceased to be involved in the proceedings. Compliance with those requirements would not be possible in any meaningful way where an inquest was held with a CMP.
The Government’s response to the JCHR report was to concede that there would be no inquests held under the closed material procedure. In his foreword to the Government’s response, my right honourable friend Ken Clarke, the Justice Secretary, went further and said that CMPs,
“will only be extended to civil cases in the Court of Appeal and High Court, and the equivalent courts in Scotland and Northern Ireland”.
That is in accordance with the Bill as drafted. That extra concession to exclude the lower courts was rightly made. It is important that this extremely sensitive procedure, where it has to occur, should be managed at the highest level. I suggest that both concessions should be made binding and should not be capable of being removed in effect by executive action.
Even if one could envisage the extension of CMPs to other proceedings, there is no reason, as the noble Lord, Lord Soley, pointed out, why that should not be achieved by further primary legislation. I disagree slightly with the noble Lord in that I would suggest that there is no case based on urgency. It is inherent in the nature of inquests that there is no extreme urgency. Indeed, we have all seen that inquests are frequently adjourned for very long periods to allow other proceedings or investigations to take their course. In the case of other civil proceedings, if CMPs are warranted they can be instituted in the High Court, where a CMP application can be made. As the noble Lord, Lord Beecham, pointed out, the Delegated Powers and Regulatory Reform Committee drew our attention to the scope of the powers conferred so that we in this Committee could appreciate the unconstrained nature and extent of the provision that might be made under them by this or a future Government. I suggest that the committee was right to do so.
Amendment 70B would remove from Clause 11(3)(b) the Henry VIII provision in relation to the power to change the definition of “relevant civil proceedings”. There would be no power for the Secretary of State to amend, repeal or otherwise modify any enactment, leaving the Secretary of State with a power to make only minor provisions, such as those that might be necessary to take into account the passage of other legislation. Taken together with Amendment 70A, this amendment would draw the sting from Clause 11(2) and (3) as it stands. I commend the amendments to the Committee.
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Baroness Williams of Crosby: My Lords, I want to add only a short comment to the remarks made by my noble friend. I can think of nothing that would do more to undermine public confidence in the judicial system than an attempt to try to include coroners’ courts. I will be assured that there has been a promise from the Lord Chancellor that this will not happen, but I cannot understand why the Bill still clearly indicates that there could be a power to include such a court. The Bill says that in exact terms. The idea of excluding the CMP in an inquest would so outrage large sections of the public, especially on publicly very sensitive cases, that I can think of little that would do more to undermine confidence.
I also strongly agree with the general thrust of the remarks made by the noble Lord, Lord Soley. He rightly understands that there is a tendency to have what one might call “executive mission creep”. The temptation to extend powers if there is nothing to limit them more strictly in the Bill is a very powerful temptation indeed. The noble Lord is quite right to say that the procedure laid down here is relatively slow. It is also, to be frank, if I may, relatively inefficient because it depends to a great extent on the interest that is shown in the House of Commons in the procedures that are put before it. Sadly, the story of affirmative procedures is often rather of neglect of the issues and substance put before the House.
The noble Lord is absolutely right to argue that primary legislation would be a more appropriate way to safeguard citizens’ freedoms than to rely on this cumbersome procedure. I strongly hope that the Government will reconsider this very wide-ranging legislation, with very few limits on it. I wonder whether it would be possible perhaps to redraft the legislation in narrower terms and to have more effective accountability. Many of us in the Committee would feel rather more confident about the ability of the legislation to win public support and public confidence.
Lord Pannick: My Lords, I share the concerns that have led to these amendments. The views of the Committee and the other place on whether the Bill contains an adequate balance between justice and security will depend on the scope of the Bill and on the scope of the concept of relevant civil proceedings. The wider the scope of the Bill, the less willing Parliament will inevitably be to approve Part 2; and the wider the scope the more willing Parliament must be to include amendments that provide safeguards in respect of the closed procedures.
Given that we are debating this Bill on the basis of the current scope that it contains, it seems fundamentally wrong in principle to give the Secretary of State a power thereafter to expand the Bill’s scope in a manner that when that proposal comes before Parliament will prevent us proposing any amendments that would introduce necessary safeguards that Parliament might think are required in the light of the expanded scope of the Bill.
With the Committee’s permission, I shall return—I have checked the facts—to a matter raised by the noble Baroness, Lady Stowell, in her response to the
previous group of amendments. She told the Committee, as I understood her, and as the noble and learned Lord, Lord Falconer of Thoroton, understood her, that the Government may envisage that an application for a closed material procedure may be made in secret, without notification to anyone. My understanding, which I have confirmed, is that under the old control order procedure and the existing TPIM procedure, the application for a closed hearing is always made in public. Indeed, it has to be made publicly because the whole point of the special advocate procedure is that the special advocate before the closed procedure starts can talk to the litigants concerned and obtain information from them.
Furthermore, once a judgment is given, there is always an open judgment, which always refers to the closed judgment—if there is a closed judgment—without of course disclosing the confidential material that is in the closed judgment.
Like the noble and learned Lord, Lord Falconer of Thoroton, I would be very grateful if there could be clarification as soon as possible as to whether it is really the Government’s intention, in relation to the closed material procedure, that applications could be made in secret, entirely differently from how the control order and TPIM regime works.
Lord Lester of Herne Hill: My Lords, I have a couple of extra concerns to add to what has already been said. The first is political. As I understand it, this Bill has been introduced on the express understanding of both parts of the coalition that coroners’ inquests would be excluded. I see my noble and learned friend nodding in agreement to that. However, the power that is included here would enable a future Secretary of State to take that away, either during the coalition Government or when the coalition ends. That would be a breach of faith, and we should not now be legislating in a way that makes that possible. It seems to me to be a condition of this Bill that under no circumstances is it to apply to coroners’ inquests, for all the reasons that the Joint Committee and everyone else put forward.
My second problem is that these are civil proceedings, as we are constantly being reminded, so they affect the civil rights and obligations of the parties to those proceedings. When we were enacting the Equality Bills, the question frequently arose as to whether it would be fair and reasonable for a Government to take a power to amend the exceptions to that legislation, which is civil, in order to affect the rights and freedoms of the individual. In introducing both the Equality Act 2006 and 2010, the previous Government took powers to amend, but only by means of removing exceptions, not by anything that would affect the fundamental balance of civil proceedings.
What troubles me is that if this Bill goes through without adequate safeguards of the kind we are pressing for, the use of the powers conferred to amend—to add tribunals by delegated legislation—will not be able to add further safeguards; the question will only be whether a new, further tribunal may be added. That will fundamentally affect, anyhow, the rights and liabilities of the parties to that tribunal.
To take the example in the employment field referred to by the noble Baroness, Lady Turner, one can add a whole new set of restrictions that would apply, for example, to civil litigation in the employment field. That is not something that any previous Government would have contemplated. These powers are not simply Henry VIII in analogy, but maybe a later generation of kings under the Stuarts.
Lord Butler of Brockwell: My Lords, it is clear from this debate that two types of issue arise with this group of amendments. One is the issue of whether this is an appropriate use of delegated powers. The other could be described as an issue of policy: whether it is right for the Government to keep open the possibility of adding other types of proceedings, particularly inquests, to those to which the procedures in this Bill are available.
On the first matter of whether this is an appropriate use of delegated powers, as the noble Lords, Lord Soley and Lord Marks, said, we had a long and agonised debate on this in the Delegated Powers Committee. I do not need to add to what the noble Lords said; they summarised the case very well. The reluctance of the Delegated Powers Committee is evident from the words of the conclusion that it reached, where it said that,
“we are reluctant—albeit with considerable misgivings—to recommend in terms that the delegation of powers in clause 11 is inappropriate”.
In other words, the committee was not prepared to go as far as to say that this use of delegated powers was inappropriate, but it thought that this should be a matter for the opinion of the House, and it thought also that the House should consider whether some constraints and limitations should be put on that. I hope that is a matter that the Government will consider.
On the question of policy, as to whether it is right to retain a power to extend the range of proceedings to which the powers in the Bill would be appropriate, I deal directly with the sensitive issue of inquests and coroners’ courts, because that is where the shoe would be most inclined to rub. The noble Lord, Lord Lester, suggested that the Government have declared a policy of excluding inquests because this was the agreement on both sides of the coalition. My impression, I must say, is that this conclusion was reached with greater enthusiasm by one party to the coalition than the other. Indeed, I have heard on one or two occasions the Secretary of State for Justice being asked why this conclusion was reached and he has not been able to give a very convincing answer, other than that this was the way it came out in discussion.
It is difficult to see why the logic that the Government have applied for closed proceedings in other cases should not be available in inquests. The logic is rather similar. It is not often that I disagree with the noble Baroness, Lady Williams of Crosby, and I entirely see her point that it would be very distressing for the public if the proceedings in an inquest could not be entirely in the open. However, again the question arises: is it more disturbing to the public that some proceedings should not be open, or that there is some material relevant to the conclusion of the inquest that is not brought to bear at all? This is the issue that
arises with the rest of the Bill. It is quite difficult to see why the Government have reached this conclusion in one case and an opposite conclusion in the other.
Lord Lester of Herne Hill: My Lords, the noble Lord, Lord Butler of Brockwell, has great experience of ordinary majority Governments but none at all of coalition Governments. Will he accept that we are now in a different world from that which he ever experienced, and that when you have coalition Government, and the two parties to the coalition reach an agreement, if the coalition is to survive and prosper, that agreement must be followed, however difficult for one party or the other?
Lord Butler of Brockwell: My Lords, I am not denying for a moment that this is a conclusion of the coalition. It clearly is. I am just asking whether it is a very logical conclusion.
This is a serious point. There are, I believe, 30 inquests waiting to happen in Northern Ireland, which still have to be undertaken. It is difficult to foresee all the circumstances that might arise. We have got to allow for the possibility that there might be proceedings—inquests, but also perhaps other proceedings—where we would wish, the Government would wish, and perhaps the public would wish, that it would be better that secret information was taken into account than it was not taken into account at all.
For that reason, and with the same reluctance that the Delegated Powers Committee had, I come down, on balance, on keeping these provisions in the Bill. The Government have said they not going to use them, but I think it would be wise to keep the provisions in the Bill, in case circumstances arise in which we would regret their absence.
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Lord Beecham: Would the noble Lord then turn his mind to the question of the procedure to be adopted in those cases, because that is what the amendments seek to do? Does he accept that it would be better to have a Bill taken quickly through the House than to have the affirmative procedure that would otherwise be the case, with all its limitations, to which noble Lords have referred?
Lord Butler of Brockwell: My Lords, that is a very reasonable point and I address it with diffidence. It is obviously a bigger and more difficult undertaking to launch rapidly an emergency Bill than to have an order. If the case were good enough, it would be better to have a procedure that could be undertaken rapidly than to have the need for urgent legislation. But I do not take a very strong stance on that matter.
Baroness Berridge: My Lords, I, too, am grateful for the clarification from the Minister in relation to the exclusion of inquests for this particular reason: I understand that, outside of Northern Ireland, there are currently only two inquests outstanding in England and Wales—the case of Azelle Rodney and that of Mark Duggan from last summer. I am certain that,
in the first case, the proposal is to use the Tribunals and Inquiries Act to conduct that inquest, and I believe that that is also to be the suggestion in the Mark Duggan case. The reasoning behind that is, I believe, that intercept evidence is to be considered.
One can see that it is a small step in the argument to say, “We are using the Tribunals and Inquiries Act and intercept evidence so why not, because we can under this Bill as it stands, use intercept evidence in a closed material procedure?”. It is a small step of reasoning to move into closed material procedures in inquests.
In relation to the issue of procedure and having legislation that goes quickly through the House, one can understand the concerns that exist at the moment in relation to the Mark Duggan situation. In those instances, Parliament should reconsider the matter. We would need to consider all the impacts on public confidence and the outworkings of using a secret procedure in such a high-profile case and an inquest of that significance.
Lord Reid of Cardowan: My Lords, I first apologise that I missed the first few speeches because I was unavoidably detained, but I have listened to quite a few of the speeches over the period and I have tried to read as much as possible of these debates when I have missed them. I have been impressed by the commentary on legal matters, matters of process and by the justice side of what the noble Lord, Lord Pannick, referred to earlier—the balance of justice and security—but I am afraid that I have searched in vain for anyone outside of the Front Bench doing anything in detail to analyse the security context. In other words, we cannot possibly judge whether these are appropriate measures in general unless we judge them in the circumstances of today. As the noble Lord just said, the situation with a coalition Government means that we are living in different times from previously, but the situation of living with the threat that we have today means that we are also living in different times from previously.
I have read with great interest the legal commentaries. I have found them outstanding in their quality and certainly outstanding in their quantity. I always defer to noble Lords with expertise in the human rights area and in the legal area on matters of law and advice on human rights, but I hope that noble Lords will forgive me if I do not defer on deciding on matters of security. I would have been horrified when I was Home Secretary had it been suggested to me that the overall strategic position on security and defence, for which the noble Lord, Lord King, and I had responsibility, was better served by having a lawyer decide rather than an accountable politician. Therefore, although this may be a minority speech, it is one worth bearing in mind for those who are speaking to these amendments today, not least on closed material procedures but not exclusively on them.
My starting point is to ask why these proposals are coming forward in the form that they are today. I am not a lawyer. I am a historian and therefore the two important questions to me are “Why is something happening?” and “Why is it happening when it is happening?”. Of course, there can be motivations ascribed. I have heard it said that this is merely mission
creep. I have heard that it is the malevolence of the intelligence services: it is their guilt and wish to cover up future proceedings. But there may be a simpler answer: that circumstances have changed, and in particular that the nature of the threat has changed.
I say that on an evening when, unpopular as it may be to certain elements of the press, the chemical weapons and weapons of mass destruction debate seems to have been put back on our front pages. It is now widely recognised that they are sitting just across from Iraq. People are naturally very worried about what would happen if they fell into the hands of some of the terrorist groups at present operating in Syria. That is an example of the nature of the modern threat.
Noble Lords will know that there are two essential elements of threat: intention and capability. After 9/11, there can be no doubt that there are people in the world who have an unconstrained intent to commit unconstrained mass murder, including in this country. Whereas 60 years ago there were states with that intention, they lacked the capability. The scientific and technological basis on which they might operate their intent was limited to CO2 from the fumes of cars or vans or to Zyklon B canisters. That is not the case today. Chemical, biological and radiological weapons are also capable of extending unconstrained massacre of human beings. That is what has been in the minds of those charged with the security of the country since 9/11—unconstrained intent and unconstrained capability.
The second feature of that, which brings me to the amendments today and the Bill before us, is that there is now a seamless threat. This is not a threat in one country. It is not a threat that appears only in two countries. I did not deal with one threat that was in fewer than two or three countries, and in one it involved people in 29 different countries. If you have a seamless threat, you have to have a seamless response.
We are no longer, if we ever were, an island fortress, not just with cyber but with some of the potential threats that face the citizens of this country, whom the Front Bench are charged with protecting. If we are to have a seamless response, above all it requires absolute trust between those agencies and those Governments who are working together. That trust and dependence are now far greater than 30 or 40 years ago. Therefore, the breach of that trust, inadvertently or otherwise, through institutions or processes, legal or other operations, becomes a huge hole in the creation of a holistic security policy.
I am not suggesting today that any of the ideas that have been put forward or the amendments are necessarily wrong, and I am certainly not suggesting that they are badly motivated. They are not malevolent; they spring from a natural inclination to oversee government, particularly when government exercise powers that are abnormal. Sometimes, they will be based on first principles and sometimes you will ask where the logic to this is, as the noble Lord, Lord Butler, asked earlier. To that particular question I will tell him that there is no logic. It is a political decision taken for political reasons. It is the result of political discussions. It has been decided to concede in order to gain what is left. I do not expect the Minister to say that, but it is obvious to all of us.
At the end of the day, political decisions have to be made. All I want to do today is put in the minds of everyone who speaks, from every background, the experience in making decisions such as this of those of us who have had the privilege—and burden, in some ways—of being charged with the security of the country. It is not because we are Cromwellian in character; it is not because we have a blind spot for mission creep; it is not because Ministers on the Front Bench will not question the agencies—it is quite proper that they do so. It is because the first premise on which they should base the balance of justice and security is an understanding of the security element, as well as the details of the justice element and the justice process.
Lord Soley: My Lords, I think my noble friend misunderstands a key point of what we are saying. I agree almost absolutely with everything that he has said—and, indeed, we have discussed this on many occasions before. However, I want to bring the purpose here to his attention. The government document from the Ministry of Justice said that these powers are wanted so that changes can be made more quickly than by amending primary legislation. I know that Parliament and parliamentary control is important to him. However, if he had been Home Secretary, what would he have decided if I had come to him and said, “Look, you need to change this legislation. Ask for an affirmative order, which will take a month or two; try to amend it, which will take a couple of months; or have a quick Bill going through both Houses”? If he would have decided the latter, he is on my side.
Lord Reid of Cardowan: The noble Lord knows that I always listened and, for the most part, conceded when he made representations on these matters. I have no problem with what he suggested earlier. I was careful not to attack or to try to criticise any particular amendment. The great omission is not the quality or substance of the amendments put forward, but the fact that we have been debating this in a vacuum.
The noble Lord, Lord Pannick, said that there has to be a balance between justice and security. I completely accept that. It is never an easy balance. There have been times in our history where the security situation has been such that we have had to take abnormal measures to constrain or expedite the justice element of that. I accept that it is much more difficult to perceive that today because we do not have a war. However, there is undoubtedly a conflict of sorts, which is a threat to the people of this country. What if—and I hope to God it is an “if”—something happens which could have been prevented by the exchange of intelligence of which we were not in receipt because we had not maintained trust? I do not just mean the trust of the United States but of all our allies. The great tragedy that was avoided in August 2006 involved intelligence sharing not just between the United States and ourselves but on a much wider basis. Two and a half thousand British citizens were at risk in that single event.
All I ask is that noble Lords and colleagues bear that in mind, so that we do not approach this purely from the position of legalism or legal principles.
These principles are extremely important; certainly, do not abandon oversight. However, recognise that lying behind the proposals brought by the Government is a motivation which I at least—having been there and seen it with one or two other noble Lords who are here today—judge more benevolently than some of the critics of the Government.
Lord Pannick: Does the noble Lord accept that most of the amendments debated so far have been resisted by the Government not on the basis that they would undermine national security but rather, as I understand it, because they are unnecessary safeguards?
Lord Reid of Cardowan: The Government must speak for themselves. I am not a member of the coalition—though, with every passing day, it looks as though they may want others to join in place of those who leave. The Government must phrase their own reaction to the noble Lord’s position. I would much rather that we were transparent, out at the front and talked about it. I have just noticed other people here who are much better versed in matters of intelligence than I am. However, in listening to the speeches in here and reading those that I did not hear, I noticed a dearth, if not a complete absence, of one element of the balance we are trying to find—that is, a description of the security circumstances and an explanation of why these proposals might be brought forward at this time. I hope that the Government will perhaps do a little more of that, because we could all learn with a little education.
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Lord Lester of Herne Hill: Does the noble Lord accept that there is no monopoly of knowledge about national security? I served a Home Secretary long before the noble Lord and we fashioned the first anti-terrorist legislation in 1974. Would he accept that one of the worst things we can do is to fashion legislation in this country that gives colour to the idea that British justice is second-rate or discriminatory in balancing national security and liberty?
Lord Reid of Cardowan: On the noble Lord’s first point, I not only accept that but I recognised in my opening remarks that people here other than me had discharged that responsibility. I agree entirely with his second point. At heart, the struggle—not the only struggle but the major one—is a battle of values. It is an ideological battle. Certainly, it displays itself in acts of terrorism, bombs or death but at heart it is a clash of values. Therefore, everything we do has to be seen in that context. There is a propaganda weapon for those who oppose the very essence of our values if we conduct our affairs so that there is an obvious contradiction between the values we espouse and what we do. However, that has to sit alongside the fact that, on some occasions, these values have to be defended as a whole. That has meant that we have had to take abnormal measures on occasions. The key thing is accepting that they are abnormal and extraordinary, rather than trying to pretend that somehow they are just run of the mill or justifying them on the existing
system. The second thing is to make the argument about why they are necessary. If one fails to make this argument, one will end up in the position indicated by the noble Lord, where what one does appears to contradict what one says.
Lord Thomas of Gresford: The noble Lord has not been able to be with us in our deliberations. However, does he appreciate that, thus far in the Bill, the Government have not suggested that there is any risk to security at all? Does he appreciate that the purpose of the provisions discussed until now concerns the fairness of trials? Security arises in what we are about to debate very shortly. Up to this point, security has not featured because it is not an issue on the provisions we have discussed.
Lord Reid of Cardowan: I thank the noble Lord for that remark. Again, I am not on the Front Bench so I am not making their arguments for them. I am making my argument. As far as the security situation is concerned, whatever is said by the Front Bench, for more than half of the past 10 years we have been either at “severe”—the second highest level—or “critical”, which is not only a likely but an imminent threat of terrorist attack. This demonstrates the fact that we are discussing not a normal security situation but a very difficult one—not least as we approach the Olympics.
Lord Wallace of Tankerness: My Lords, I thank all noble Lords who have tabled these amendments and who have taken part in this debate. The noble Lord, Lord Reid of Cardowan, has given a context to these deliberations. I think that he would agree with us—and I mention here the intervention of my noble friend Lord Lester—that justice or security is not a binary choice. This is a justice and security Bill, not a justice or security Bill. As we deliberate and go through these provisions, it is important that we seek to uphold the national security, which is a responsibility above all on the Executive, and also ensure that the values of justice—which is a cornerstone of what we believe in and what makes us as a nation—are upheld.
The comments of the noble Lord, Lord Reid, may also have some pertinence as we move to the next stage of the Bill, which deals with the Norwich Pharmacal jurisdiction. He pointed to the importance of trust and the consequences of breach of trust.
As an introductory comment, perhaps I may say to the noble Lord, Lord Pannick, that my noble friend and I will write to him about the point he raised about the last set of amendments. I do not think it would be appropriate, when dealing with these amendments, to rerun the arguments put forward for the previous group. However, before Report stage, we will write to noble Lords who took part in that debate.
Understandable concerns have been raised. In many Bills I have taken part in, quite proper discussion takes place about the use of secondary legislation, its appropriateness, the circumstances under which it should be used, and its actual nature. If Amendments 69A or 70 were to be accepted, as my noble friend Lord Hodgson has said, it would remove the order-making power entirely. The question posed by the amendments is this: why do we need the order-making power at all?
Perhaps I may set out why the Government arrived at the approach we have taken in the Bill with regard to the definition of “relevant civil proceedings”. In the Green Paper, the Government consulted on making closed material proceedings an option for any civil proceedings in which sensitive material was relevant. However, the firm steer from the consultation exercise was that the scope of the Bill should be narrowly focused. That was a point made by my noble friend Lord Marks and in the comments of my right honourable friend the Lord Chancellor. After careful consideration of the consultation responses, the Bill provides that closed material proceedings can be used only for hearings in the High Court, the Court of Appeal and the Court of Session. It is in these courts that the difficult cases have arisen, so the Government have defined relevant civil proceedings narrowly in the Bill.
If that is the case, why do we need an order-making power to extend the definition? As was indicated by the noble Lord, Lord Soley, when he quoted from the memorandum that was submitted to the Delegated Powers and Regulatory Reform Committee, the point is that the case for extending CMPs to another civil context may emerge in the future. Where there is a case for change, it is important that there is a mechanism that will allow CMPs to be used swiftly in relevant proceedings. Naturally, we may be asked if we have any particular case in mind. I reassure your Lordships that if there was an obvious example of a difficult area, we would be making the case for its inclusion in the definition of relevant civil proceedings today. But it is possible that difficulties may arise in areas wholly unexpected or unanticipated, and it would then be important that CMPs were available as a matter of some urgency. Noble Lords may be aware that Parliament has already legislated 14 times to provide CMPs in different contexts, and therefore it is not inconceivable that some new context that we cannot foresee today will arise in the future in which they will be necessary.
Perhaps I may say in response to the noble Baroness, Lady Turner of Camden, who asked about employment tribunals, that legislation is already in place with regard to closed material proceedings in such tribunals. Indeed, it was the subject matter of the deliberations of the Supreme Court in the case of Tariq, the judgment of which was reported either last year or earlier this year. The current review of employment tribunals by the Department for Business, Innovation and Skills does not have anything to do with closed material proceedings.
The crucial thing about the power is that it is subject to the affirmative procedure, which means that the exercise of the power would have to be debated and approved in both Houses before being made. Before gaining that approval, the case for change would have to be made to each House on the basis of evidence that is sufficient to convince both Houses. I cannot for a moment imagine that it would be given a clear ride. That is a safeguard and it means that rather than standing here and trying to persuade your Lordships that a broader definition of relevant civil proceedings is needed for the sake of flexibility, the Government will have to put their case at the time of seeking approval of an order.
As has been said, the order-making power has been the subject of scrutiny by both the Delegated Powers and Regulatory Reform Committee, of which the noble Lord, Lord Soley, and my noble friend Lord Marks are members, and the Constitution Committee. The Government appreciate the careful consideration that both committees have given the power. I note that neither committee recommended the removal of the power, but it is fair to note, and as was pointed out by the noble Lord, Lord Soley, and quoted by the noble Lord, Lord Butler, that the Delegated Powers and Regulatory Reform Committee had reservations about the scope of the power. However, it concluded tentatively but nevertheless clearly that it would not recommend that the delegation of powers is inappropriate.
No doubt members of the committee will know better, and I will come on to address the issue of coroners’ courts shortly, but paragraph 6 of its report indicated that one of the concerns was extending the use of this power to those courts.
Lord Soley: The key point is that instead of doing it with a delegated power, we do it with a fast-tracked Bill. I hope that the Minister will deal with that because I would point out to him that the information given by both the Ministry of Justice’s own department and the Cabinet Office suggest that it is necessary that it be done quickly. However, that is not in the notes to this Bill. It is almost as though they have not thought about it.
Lord Wallace of Tankerness: I certainly will come on to that. Both the Constitution Committee and the Delegated Powers and Regulatory Reform Committee raised means of proceeding as alternatives to the power. The Constitution Committee asked whether the super-affirmative procedure was more appropriate, similar to that set out in Part 1 of the Legislative and Regulatory Reform Act 2006. In particular, that procedure would enable parliamentary representations to be made about a draft instrument and for the Minister to make changes to the instrument in the light of those representations. The Government indicated in their response to the committee that they do not agree with that approach. The powers in Part 1 of the 2006 Act are wide-ranging. Under the order-making power in the Bill, there will be at the heart a simple question: should the CMP procedure under the Bill, then the Act, be available for a particular court or tribunal? The affirmative procedure allows for a straightforward yes or no answer.
As the noble Lord, Lord Soley, has indicated, the Delegated Powers and Regulatory Reform Committee asked what would be the advantage of the affirmative procedure over a short emergency Bill. Another Bill to address a narrow problem may well be unnecessary given that the detail of how CMPs should work will have been discussed during the passage of this Bill. Although such legislation might be passed quickly if the circumstances required it—it is always possible to bring forward emergency legislation—the affirmative procedure may also be exercised in urgent circumstances. While it is not for me to say what the agenda of the Constitution Committee would be, it would not seem
to be beyond the wit of appropriate parliamentary committees to consider an affirmative order if one were brought forward.
On the whole, the Government consider that the affirmative procedure has the right mix of speed and accountability. However, in situations like this where people have put forward important points following deliberation in the various committees as to what the balance should be, we should reflect on them. The Government believe that they have struck the right balance, but there has been an important elaboration in the course of your Lordships’ debate of the understanding of what lay behind the committee’s considerations.
Lord Goldsmith: Before the noble and learned Lord moves on, can he say something about why the Government do not see advantages in the super-affirmative procedure which, as he has indicated, would allow at least some adjustments to be made in the event that an additional set of civil proceedings were added to the list which might not be covered by the existing legislation?
Lord Wallace of Tankerness: I sought to indicate why we do not agree with the approach of the Constitution Committee. We think that the powers set out in Part 1 of the Legislative and Regulatory Reform Act 2006, which lead to the super-affirmative procedure suggested by the noble and learned Lord, are not appropriate. If the procedures are in place, it should be a straightforward yes or no decision as to whether a particular tribunal or civil proceeding is added.
I want to come on to a point made by my noble friend Lord Lester. He suggested that there would be no opportunity to do anything different in a Bill. The provisions in the other subsections allow for some powers,
“to make supplementary, incidental, consequential, transitional, transitory or saving provision”,
in an order. If there was a particular feature—I will suggest in a moment what some of those features might be—it could be taken into account within the terms of the order.
One of the other concerns that has been expressed in the debate relates to the possible extension of CMPs to inquests. Following consideration, and particularly taking into account the responses to the consultation on the Green Paper, the Government decided not to cover inquests in the Bill. Both the Constitution Committee and the Delegated Powers Committee discussed whether the order-making power could be used to include inquests at the coroner’s courts, the Delegated Powers Committee considering that the power could be used in this way.
The Government’s view is that the order-making power could not be used in this way. This is because we believe inquests are sui generis inquisitorial proceedings. While they are clearly not criminal, I believe they are inquisitorial rather than civil proceedings. Unlike civil proceedings with parties who may seek to settle or withdraw at any stage, an inquest must be concluded in order to establish the reason for the death. An inquest is a limited form of public inquiry to determine who the deceased was and when, where and how the
deceased came by his or her death. There are no parties, only properly interested persons who are entitled to examine witnesses.
We believe there would be necessity for primary legislation if this was to be extended to inquests and by extension to fatal accident inquiries in Scotland.
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Lord Marks of Henley-on-Thames: I am sorry to interrupt my noble and learned friend but I am just confused as to how the Government can argue that a power which may be exercised to add or remove a court or tribunal in non-criminal proceedings—which by his own admission these are—cannot be said to extend to a coroner’s court. It was that problem that exercised the Delegated Powers Committee and we saw no reason for the conclusion for which my noble and learned friend is arguing.
Lord Wallace of Tankerness: We shall have to agree to differ. Considerable thought has been given to this and we believe that it would not be possible to extend the power here. I am always wary of putting “for avoidance of doubt” clauses into Bills, and I know parliamentary counsel also have anxiety about these things. If that helped, I would certainly be prepared to look at it to put that beyond doubt, although I do so with the caveat that by putting in such things, you have to watch you do not stir up more problems than the ones you are trying to resolve.
We do not believe that the order-making power here can be extended by this coalition Government or any future Government to inquests without primary legislation.
I would like to pick up on the points made by my noble friend Lady Berridge and the differences between civil proceedings, between parties and the inquisitorial nature of a coroner’s inquiry. The Government recognise that inquests have a unique role in our justice system. In inquests where intelligence evidence cannot be disclosed without risking national security and public safety, we will continue to use existing arrangements. In such circumstances, the Government can make a public interest immunity application to exclude the material. The coroner will exclude the material if he or she decides that the public interest in withholding the information outweighs the public interest in disclosing it. An inquest can also be converted into an inquiry under the Inquiries Act 2005. My noble friend made that point in regard to the inquest into the death of Azelle Rodney which could not proceed because neither the coroner nor the jury could see highly sensitive material. To allow all the material to be seen, the inquest was converted into an inquiry with terms of reference mirroring the purpose of the inquest.
With regard to the Mark Duggan case, it would be inappropriate for me to comment at this Dispatch Box on how the Inner North London and North London coroners propose to handle any sensitive material in their conduct of the inquest into the death of Mark Duggan. It is for the coroners concerned in these cases to decide the best course of action.
Finally, Amendments 70A and 70B would limit instead of remove the order-making power. Amendment 70A would omit the aspect of the power which would enable the adding or removal of a court or tribunal. We believe it is the key aspect of the power and so we could not accept it being limited in this way.
Amendment 70B would omit the aspect of the order-making power which enables orders to be made which amend or repeal any enactment, and I fully understand why Parliament is always wary of any such power. The provisions are for the situation where the definition of “relevant civil proceedings” is changed and certain supplementary or consequential changes are needed. An example of this is in subsection (4), and I hope that it meets the specific concerns raised by my noble friend Lord Hodgson. So, if a tribunal is added, Clauses 6 to 11 of the Bill may need to be adapted for use in relation to that tribunal. The power could be used to explain what “rules of court” mean for the tribunal because tribunals have “procedural rules” rather than “rules of court”. These sorts of differences would be reflected in the use of that power.
I hope I have been able to explain why the Government reached this position.
Baroness Williams of Crosby: Perhaps I may press my noble and learned friend one stage further. The material says that a court can be added or excluded as the case may be, and to a lay person saying that it does not apply to a coroner’s court sounds like a Red Queen in Alice in Wonderland announcing that what seems obvious is the opposite of what is obvious. Will my noble and learned friend consider either dropping paragraph (a) or making a particular reference to the exclusion of coroner’s courts so that those of us who are not deeply into legal language would be able to understand the Government’s intention?
Lord Wallace of Tankerness: I take the point made by my noble friend Lady Williams. I said I would be willing to look at words like:
“for the avoidance of doubt this does not include coroner’s courts”.
I caveated it because I am always wary of parliamentary draftsmen finding 10 reasons why that will mean 20 different things. In that spirit, I hope she will be reassured that not only do we not intend to include inquests, but we do not believe that the wording here does include inquests. However, I am prepared to look at that to see whether there is a wording which will put that beyond doubt and reassure those who think that there is no belt-and-braces position as things stand.
I have sought to give reassurance on these important issues, and particularly it is important that Parliament scrutinises the powers available to Government by secondary legislation, perhaps a fortiori in circumstances such as this. I will reflect on what has been said in the course of this Committee’s discussion.
Lord Beecham: My Lords, I refer first to the speech of my noble friend Lord Reid of Cardowan who had a long, distinguished political career crowned by his time as Home Secretary. He is perfectly right to remind us of the serious threats that might affect this country’s
security and the change in the world in which we live. But as the noble Lord, Lord Thomas of Gresford, implied, what we are looking at in this part of the Bill is not an area which would open up this country to any particular threat of that kind. We are talking about closed material procedures in civil proceedings in which if there were to be a threat to security from the disclosure of documents, the Government can effectively pull the case. They do not have to disclose the documents. The cost of that will take another form but it is no cost to national security, so I hope the noble Lord will be comforted by that. He may have a more relevant point when we come to the next amendment.
My noble friend, on taking office as Home Secretary, famously described the Home Office as he then found it as “not fit for purpose”. The amendments that we are discussing this afternoon are intended to make, so far as possible, this part of the Bill fit for purpose because—as many of your Lordships have indicated—currently that is not the case.
That is clearly the view of the Delegated Powers Committee, although it does not go so far as to propose a particular amendment. I remind the Minister that the Committee refers to,
“the unconstrained nature and extent of the provision that might be made under them by this or any future government”,
under the proposals in the Bill as they now stand. That is a pretty wide description of the scope that the Delegated Powers Committee was considering and, as I said in moving the amendment, it then invited the House to consider whether there should be amendments to restrict that scope or include any safeguards. The noble and learned Lord was saying the answer to that should be no so far as your Lordships’ House is concerned.
Having listened to the closing remarks of this speech, I hope he will think further about that matter, because it does not seem to leave us in a very satisfactory position. The general view of those who have spoken would be to prefer primary legislation, however expedited, rather than secondary legislation—which effectively cannot be amended—to add to the scope of the civil proceedings referred to in the Bill. I beg leave to withdraw the amendment.
Amendments 70 to 70B not moved.
Clause 13: Disclosure proceedings
71: Clause 13, page 10, line 4, at end insert—
“( ) Section (Statutory PII for national security sensitive material) applies in disclosure proceedings to which this section applies.”
Lord Lester of Herne Hill: My Lords, in moving the amendment, I have to speak to the other 14 amendments which have been grouped, which are all to do with theNorwich Pharmacal principle. That does not include Amendments 76 or 80. The amendments are designed to include the scheme created by the Bill for what is known as Norwich Pharmacal applications in national security cases. A Norwich Pharmacal application is made for disclosure of documents or information where five conditions are met. These are as follows. First, the claimant has to show that he has an arguable case in the main litigation. Secondly, the defendant has to be involved in or mixed up—whether innocently or otherwise—with the underlying claim. Thirdly, the Norwich Pharmacal jurisdiction is the remedy of last resort, so the claimant must show that he or she has no other way to obtain information. Fourthly, the court will order only such limited disclosure as is shown to be necessary. Fifthly and ultimately, the court must be satisfied, having taken into account each of those factors that the information should be disclosed in the public interest.
The Norwich Pharmacal procedure is a common law procedure devised by the great Scottish Law Lords, Lord Reid and Lord Kilbrandon, with three English Members of the House of Lords. I mentioned that because one of the Government’s less good ideas is that it does not apply in Scotland. I have little doubt that if a case arose, it would apply in Scotland. I placed in the Library my research into Norwich Pharmacal worldwide, and it is applied throughout the common law world and, in a slightly different form, in the United States.
This will test whether I would be any good as a diplomat. The United States is a key ally. It is essential that our security services and theirs should be able to co-operate fully on the basis of mutual trust and understanding. I entirely understand, as did the Joint Committee on Human Rights, the need to give full reassurance to our allies across the Atlantic that the British justice system fully protects national security in all relevant contexts.
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Most unfortunately, during the Binyam Mohamed litigation, in which some very creative members of my Chambers were involved, comments made in the Divisional Court by the two very distinguished judges and in the Court of Appeal gave rise to considerable concern and resentment in the United States. I am sure that it is common ground that, in practice, contrary to the misunderstanding in the United States, our judges are scrupulous in protecting national security in all contexts. There is no case in which our judges have been found wanting in that respect but, as psychiatrists often say, what matters is not reality but whether you believe in something. If it is believed in the United States that that is the position, we recognise that some reassurance is necessary in this context. I suggest that whereas we have so far been debating the closed material procedure, in which United States interests are much less engaged, it is extremely important that we get this right while balancing the interests of justice with those of national security.
In the Binyam Mohamed case itself, no national security information of any kind was published other than a summary of what Judge Kessler had herself decided, as I mentioned at Second Reading, in the companion Guantánamo case, in a 90-page judgment that Binyam Mohamed had suffered serious ill-treatment and therefore that no reliance could be placed on his evidence in incriminating another detainee who was subject to habeas corpus proceedings in which he succeeded.
The control principle, which is concerned here, has been usefully explained by the Constitution Committee as providing that,
“intelligence shared by state A with the intelligence agencies of state B remains under the control of state A even after it has been shared. In particular, state B may not disclose the intelligence shared with it by state A without the consent of state A”.
The committee reminds us that the control principle is not a legal principle.
Under the Bill, the scheme in relation to Norwich Pharmacal has two limbs. First, it prevents any disclosure by the court of any information held by an intelligence service, or obtained from or held on behalf of an intelligence service or derived in whole or part from information obtained from or held on behalf of, or relating to an intelligence service. There is no possibility of reviewing that prohibition. The court has no jurisdiction to hear a challenge, so the exception is expressed as absolute.
Secondly, the Bill prevents disclosure by the court of any information for which the Secretary of State has issued a certificate. That may be done if, in the view of the Secretary of State, disclosure would damage national security or the international relations of the United Kingdom. National security and international relations are not defined, and it would be difficult to do so. The certificate may be reviewed by the court, but only on narrow grounds, which will be difficult to meet.
In our report, the Joint Committee on Human Rights found that an,
“absolute exemption, resulting in the automatic ouster of the court’s jurisdiction to order disclosure”—
as would be accomplished by Clause 13—
“cannot … be considered to be consistent with the rule of law”.
“It would mean that our legal framework admits of the possibility of individuals facing the death penalty being unable to obtain disclosure of material which is central to their defence, without any judicial balancing of the gravity of the harm likely to be down to the individual on the one hand and the degree of risk to national security on the other”—
and that we did not believe that—
“our legal framework should countenance that possibility”.
However, we did accept that the misperception of the United States should be corrected. We stated that,
“there is a case for legislating to provide greater legal certainty about the application of the Norwich Pharmacal principles to national security sensitive material”,
“its exercise in the context of security-sensitive information in the possession of the Government in Binyam Mohamed represents a novel application of the jurisdiction”,
“Norwich Pharmacal applications constitute a special category of civil claim in which the very purpose of the application is to obtain an order disclosure against the opposing party, and that such claims therefore could carry a heightened risk of disclosure of material which is damaging to national security”.
If the noble Lord, Lord Reid, were present I hope he would agree that this is an example of a realistic recognition of the need to protect national security.
The basic scheme of our amendments is first to make it clear that statutory public interest immunity process for national security sensitive material would apply to Norwich Pharmacal proceedings. That would give effect to the Joint Committee’s main recommendation on Norwich Pharmacal and would reintroduce the crucial judicial balancing of national security against the public interest.
Secondly, our amendments provide a long-stop ministerial certification procedure, subject to judicial review, where PII would result in disclosure of information that the Minister says would breach the control principle. That goes further than the JCHR report and gives effect to David Anderson QC’s suggestion of a system of judicially reviewable ministerial certificates. The certification part of the scheme is loosely based on a provision in the Canada Evidence Act, which provides for the Attorney-General of Canada to issue a certificate after an order or decision has been made that will result in the disclosure of information obtained in confidence from a foreign entity, prohibiting such disclosure.
I would like to make three points about this. First, the blanket unreviewable exemption from disclosure for intelligence service information would be removed; it would not be unqualified. Secondly, the scope of the restriction on the Norwich Pharmacal jurisdiction would be confined to the Government’s rationale; namely, concern that intelligence partners are worried about disclosures in breach of the control principle. The certification system would therefore apply only to information received in confidence from foreign intelligence partners, not the much wider category of information that, if disclosed, might cause damage to the interests of national security or the international relations of the United Kingdom. Thirdly, the grounds on which the ministerial certificate could be reviewed are expanded beyond the narrow difficult-to-meet grounds in Clause 14(2).
Under our procedures it is always very difficult to explain an enormous array of amendments. I wish we did what barristers do in their pleadings and published them with red indications of amendments so that they could be read rather like in a Keeling schedule. I would like to try to explain, without going through each amendment, what the 14 amendments together would mean if they were read in our way because that is probably the best way in which I can communicate what we are seeking to do.
“This section applies where, by way of civil proceedings, a person (“A”) seeks the disclosure of information by another person (“B”) on the grounds that—
and then they are set out. After that, one would put in:
“(PII for national security sensitive material) applies in disclosure proceedings to which this section applies”.
That is the first change, which would introduce public interest immunity.
Secondly, in Clause 13(2), we would replace the reference to “sensitive information” with “certified control principle information”. Thirdly, in subsection (3), we would define not “sensitive information” but “certified control principle information” to mean information,
“specified or described in a certificate issued by the Secretary of State, in relation to the proceedings, as information received in confidence from a foreign intelligence service which B should not be ordered to disclose”.
In other words, it would address the United States’ concern that it applies to foreign intelligence material, notably theirs.
In Clause 13(4), we seek to leave out the words,
“be contrary to the public interest”
and insert “breach the control principle”. Clause 13(4) would read:
“The Secretary of State may issue a certificate under subsection (3)(e) only if the Secretary of State considers that it would breach the control principle”.
Again, it defines it with greater precision without losing the whole point of changing the Norwich Pharmacal system. It would define the control principle as meaning,
“the mutual understanding between intelligence services that intelligence is shared confidentially and cannot be disclosed without the consent of the intelligence service which provided the intelligence”.
Clause 14 relates to the review of certification. That would introduce breach of the control principle and the notion that,
“the harm caused by the disclosure of the information is outweighed by the need to ensure an effective remedy for serious human rights violations”.
That would preserve the ability to obtain information in cases of high crimes and misdemeanours or very gross wrongdoing. In the United States, as well as here, the courts—even the federal courts—now recognise an exception where there have been gross violations of human rights. Indeed in the Binyam Mohamed case, the Foreign and Commonwealth Secretary, the right honourable David Miliband MP, in his first certificate recognised the same as did the evidence in that case. It is very important that this should be retained in order to make the provisions constitutional.
I am sorry to have taken so long, but at least I can say in my favour that I have summarised 14 amendments in 10 minutes. I beg to move.
Lord Pannick: My Lords, I have added my name to amendments in this group. We are dealing here with the power of the courts to order disclosure of evidence to individuals who have a properly arguable case that the representatives of this country have been involved in wrongdoing. The powerful memorandum from the 50 special advocates pointed out that these cases may involve the gravest of allegations, concerning torture or death abroad in which the authorities of this country are said to be involved. In that context, I am sure that this Committee will want to consider very carefully indeed whether the restrictions on disclosure of information are necessary and whether there are proper safeguards.
There are three linked defects in Clause 13, which these amendments seek to address. The first defect is that the concept of “sensitive information” is very broadly defined indeed. The second defect is that only in relation to some of this sensitive information does the judge have any power at all to decide whether disclosure would in fact damage the public interest. The Minister will clarify the matter in due course, but as I understand the Bill the judge’s power under Clause 14 to review whether there is damage to the public interest applies only in Clause 13(3)(e) cases and not to the other categories in Clause 13(3)—that is all of the intelligence services information. The third defect is that the judge has no power at all in any case to balance the harm to the public interest by disclosure against the detriment to the individual, and indeed the detriment to the public interest, by concealment of this information, which may show the involvement of the authorities of this country in very serious wrongdoing.
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The Government have relied on the Binyam Mohamed case in 2010 and have expressed concern that the current law may require the disclosure of information supplied in confidence by the security services of our allies, in particular the United States. That would indeed be a very serious matter. There are two answers to that argument which inform these amendments. First, the provisions in Clause 13 are not confined to information supplied in confidence by a foreign intelligence service when disclosure of that information would damage this country’s relations with that foreign intelligence service. Clause 13(5)(b) specifically addresses that issue, but Clause 13 is very much wider than that. If it is appropriate to legislate to address the concern of our foreign allies, let us do so expressly and narrowly and not operate on a much wider basis.
However, there is a second answer to the concern of our foreign allies. It is absolutely clear that the courts are not revealing information supplied by our allies in confidence when that material is confidential. The Court of Appeal made it absolutely clear in the Binyam Mohamed case that the only reason it was ordering disclosure of any information was because that very information had already been publicly disclosed by reason of an order made by a court in the United States. Indeed, this country is entitled to say to the United States that the likelihood of disclosure by the American courts, whether of their own security material or of material provided to the Americans by our security services, far exceeds any risk of our courts disclosing such material.
The position has been made even clearer as a result of the judgment of the Divisional Court in the Omar case on 26 June. The president of the Queen’s Bench Division, Sir John Thomas, sitting with Mr Justice Burnett, held that the court has no power to apply the Norwich Pharmacal jurisdiction to evidence being sought for the purposes of legal proceedings in a foreign jurisdiction. That is because there is an exclusive statutory regime covering those matters. This is all explained in the report dated 6 July of the Constitution Committee, of which I am a member.
The concerns which appear to be driving Clauses 13 and 14 are simply unfounded. In the light of this, the amendments in this group seek, as I understand them, to focus Clause 13 on what needs to be protected and to do so in a balanced manner. There are two central amendments here. First, Amendment 75 would entirely omit paragraphs (a) to (d) of Clause 13(3) and would therefore ensure that the protection would apply only to information the disclosure of which would damage national security or international relations. It is true that much of the material currently within the scope of sensitive information under paragraphs (a) to (d) may well satisfy those criteria of national security or international relations, but it should be protected only because it falls within the scope of those criteria and not otherwise.
The second crucial amendment, as I see it, is Amendment 85, which introduces some balance. It would allow the judge to decide that the harm caused by disclosure is outweighed by the need to ensure an effective remedy for serious human rights violations. In relation to Norwich Pharmacal, as with the earlier matters of closed material procedures provided for under the Bill, the Committee is much assisted by the views of Mr David Anderson, the independent reviewer of terrorism legislation, who gave oral evidence to the Joint Committee on Human Rights on 19 June. On page 3 of the report he said, in a nutshell, that his position on the Norwich Pharmacal clauses is the same as his position on the closed material procedure issue. He said:
“They address what I consider to be a genuine problem, but they do so in a way that is disproportionate. There is an element of overkill”.
I very much hope that the noble and learned Lord, Lord Wallace, will be able to tell the Committee that the Government recognise that there really needs to be some balance in these clauses. A large number of amendments are before the Committee and I very much hope that before Report the Government will come forward with amendments that properly reflect the needed fair balance in this context.
Baroness Williams of Crosby: My Lords, the noble Lord, Lord Pannick, recited directly from the Constitution Committee in its very excellent finding about the width of the phrase “sensitive material”. As usual, we owe a great deal to the common sense of the Constitution Committee in drawing our attention to this kind of matter. I fully appreciate the argument for narrowing down and more closely defining the phrase so that it is not as wide and vague as it is in the Bill. However, before we conclude our discussion on this group of amendments, I also want to refer to one to which no noble Lord on the committee has so far referred at all. Amendment 77A points to the requirement for disclosure on matters that are directly related to international law, to the work of the human rights conventions and to issues concerning, for example, the various United Nations conventions to which this country is party.
The other amendment relating directly to this issue is Amendment 73A. There is a great deal to be said for that but let me say a word or two, because my point relates very directly to the speech of the noble Lord, Lord Reid, which almost completely neglected the significance of international law, international conventions
and international agreements under the United Nations. I believe we have hardly discussed this element in our consideration of this Bill. We would be most foolish to continue to neglect that element.
Let me give one personal piece of evidence. For a substantial part of my life I have been involved in issues concerning the danger of nuclear weapons, which of course threaten not only our security but that of a much wider part of the world. How is it that we have come to deal with this? Not entirely successfully but fundamentally, international law and international convention have so far managed to avoid a nuclear war anywhere in the world over a period that is now 60 years long. In other words, security is achieved not just by taking very strong steps toward suppressing those who threaten it but by building up an international consensus that supports the concept of limitations on certain kinds of behaviour.
I regret that the noble Lord, Lord Reid, is not in his place as I would have liked to have taken him on directly on this. He referred, for example, to the danger of chemical weapons, which are now alleged to be in Syria. One of the most successful international conventions up to now is that regarding chemical weapons. It has been almost completely obeyed, with some rare exceptions, of which Saddam Hussein in Iraq might have been just one. Generally speaking, chemical weapons have not been used in warfare, not even in civil war—the most awful kind of war—although that may no longer be true in Syria; we do not yet know. I say very strongly that the point about Amendment 77A is to build in an additional exclusion to the suppression of information where it directly affects our commitment and our signature to international conventions and international rights, because they are a critical part of what it is to have both justice and security.
I will go one step further. It is crucial that we recognise that there is, outside the whole of the issues that we are considering here, a distinct obligation on the United Kingdom, which has been in the forefront, largely along with its fellow members of the European Union, in pressing for international conventions and international law. It has, for example, taken a leading part in the non-proliferation treaty on nuclear weapons, on chemical and biological weapons and, on an issue dear to the heart of my noble friend Lord Lester, establishing human rights and the many discussions that we have had on the European Convention on Human Rights, which needs to be protected by national as well as international law. Therefore, when we look at Clause 13, and particularly Clauses 13 and 14 together, we need to be clear that we must protect these international rights and international conventions, and that we cannot do so if a large part of the information relevant to them is simply suppressed.
Amendment 73A lists a whole set of international conventions on genocide, abuse, torture and so forth that should be taken into account and respected in the way the Bill is drawn up, interpreted and—not least—drafted. It is crucial that we have an amendment of this kind to the Bill, which shows the precious nature and status of these elements in international law; otherwise, we are undermining our own signatures and commitment to these pieces of legislation.
Clearly, there is a particular problem. So far our American ally has not been carried by, for example, the idea of the International Criminal Court. It has not been carried, so far, by the acceptance of some version of the European Convention on Human Rights. That means the United Kingdom is in rather a special place. It shares with its great ally, the United States, a commitment to human liberty, the rule of law, and to national law, being close to one another in similar systems. However, it does not share our commitment to international law, in particular along the lines that I have addressed in my remarks.
We have to balance two things that are not easy to balance. We have a commitment to the concept of growing international law, particularly the International Criminal Court, which has become central in insisting that there are such things as crimes against humanity and which must be upheld and respected as a fundamental part of what we mean by international security, if not always national security. Our duty is essentially to protect that element of our commitment and our belief in international law despite the fact that many of our allies do not wholly share it. I mention the United States because of its rich tradition of national law. I could, sadly, mention a number of our other allies which have virtually no commitment to human rights internationally at all.
I am not clear how we handle the issue concerning international relations in Clause 13(5) with no distinction at all between those who share—to use the phrase of the noble Lord, Lord Reid—“our values” and those who simply do not, and have not subscribed to, for example, conventions on torture or degrading and inhumane treatment. At this point, I merely wish to push for consideration of Amendments 77A, 73A and other amendments that address the issue of obedience and respect for international law. If we are going to continue to discuss this whole group of amendments, we really have to take that major elephant in the room into consideration or we will sell ourselves and our world very short.
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Lord Thomas of Gresford: My Lords, Amendment 76 is in my name and that of my noble friend Lady Hamwee. Amendment 76 is very much in the same terms as Amendment 75 and I accept everything that has been said by my noble friend Lord Lester, the noble Lord, Lord Pannick, and the noble Baroness, Lady Williams of Crosby. Therefore, I will restrict my remarks to a question. What is the purpose or justification for an absolute bar in Norwich Pharmacal proceedings against disclosure of material in the possession of the security services? As I understand it, the certification procedures for the Secretary of State apply to all other material in anybody else’s hands.
The Secretary of State has to take a decision in which he considers the public interest or, as my noble friend Lord Lester suggests, whether there is a breach of the control principle, which is a rather narrower test. His decision is subject to review on judicial review grounds in Section 6 proceedings. What is it about the security services that enables them to escape the
consideration of the Secretary of State, the public interest and Section 6 proceedings on judicial review grounds? I see no reason for singling out the security services from such control.
Baroness Berridge: My Lords, Amendments 71 to 75, 77 to 79 and 81 to 87 all have my name on them. As the detail of those amendments has already been outlined by my noble friend Lord Lester and the noble Lord, Lord Pannick, I will follow the noble Baroness, Lady Williams, and focus on the core purpose of Amendments 85, 73A and 77A, which is to introduce limited grounds for the disclosure of information received in confidence by the intelligence services and amend what would otherwise be a complete ban on disclosure under Clause 13.
These amendments are required, as David Anderson QC pointed out to the Joint Committee on Human Rights in his evidence, when he said that,
“you are not going to get away with a blanket exclusion of all evidence in the hands of the security service, or even all evidence in the hands of the Government, as they suggest at one point”—
he means in the context of the Green Paper.
Although the disclosure jurisdiction that we deal with today began in the intellectual property field, it is completely by accident that the principles behind the jurisdiction were first applied there. On considering these amendments, I reread the judgment of the noble Lord, Lord Reid, in the Norwich Pharmacal case. It is clear that the jurisdiction is based on sound principle. It is important to consider that principle as it goes to the heart of why these amendments are required.
It is best understood by a threefold division of cases—and I would term myself a Championship not a Premier League lawyer here. First, there are cases where the person, usually the UK Government, is directly responsible for the wrongdoing and a civil case is brought directly against them as the defendant. Clause 13 leaves those actions completely unaffected. Secondly, there are cases where the person in question is a bystander, spectator or mere witness to the wrongdoing. In those circumstances, no action can be brought against that person, they are not even complicit and Norwich Pharmacal will fail.
However, there is a small, narrow group of situations—which are, as the noble Lord, Lord Pannick, has outlined, even narrower after the case of Omar—where, although not directly responsible for the wrong, there is sufficient connection to the wrongdoing that a requirement attaches to you to disclose information or material in your possession that helps the victim of the wrongdoing to seek redress; that is, more often than not, court proceedings. This obligation is based on the limited culpability that attaches as one is mixed up, even innocently, in the wrongdoing. I would term it a bit like moral velcro. Being mixed up in wrongdoing sticks you with certain limited responsibilities.
The kind of mixing up by the UK Government, in cases such as that of Binyam Mohamed, is questioning a man after you should have, at the very least, been aware that he had been tortured. When I read of the injuries to Binyam Mohamed it was rather disturbing. According to the findings in that case, the UK took some of the fruits of that torture by questioning him,
although it is important to emphasise clearly that the UK Government were in no way involved in that torture.
I accept, of course, the evidence of the Joint Committee on Human Rights that the intelligence services in the United States, for example, are disclosing less intelligence to the United Kingdom because of the fact, or perception, that the information could be disclosed through our courts. But the first caveat is the Government’s own Green Paper, which outlines that there is no suggestion that key threat-to-life intelligence would not be shared. The second caveat is whether this fact or perception is justified. As the UK courts have never ordered the disclosure of such material, and any Norwich Pharmacal application that could be made subsequent to the case of Omar would be followed by a PII application as well, the risk is minimal. Allowing limited Norwich Pharmacal applications as outlined in these amendments would be a proportionate response to that minimal risk.
It is also interesting to note the change of position by the United States concerning whether the control principle was breached in the case of Binyam Mohamed, as outlined by the ISC report for 2009-10, in which the United States does not seem to think that there has been a breach of the control principle. In the 2010-11 report, the United States seemed to think that there had been one. It is interesting to note that it is the same time period which saw the mass of WikiLeaks disclosures. I would be saddened if the mistaken perception of our judicial processes or an understandable oversensitivity to the control of its own intelligence material could lead to a change in our law to exclude this jurisdiction from human rights cases, especially when, unfortunately, the alleged wrongdoer may also be the United States.
I would expect that the mere receipt of intelligence information that discloses wrongdoing, even information obtained by torture, is being a witness. Can my noble friend the Minister explore whether the requirement that in national security cases a greater culpability of connection to the wrongdoing other than being innocently mixed up would satisfy the concerns of the United States? If complicity by the United Kingdom is needed, cases where Norwich Pharmacal would apply should be very rare.
In essence, the argument from the Government is that our intelligence services lack certain information and therefore our national security could be at greater risk. I expect the Government to oppose the amendments, especially as it is the first duty of the Government to protect their citizens. I agree that it is the first duty, but it is not the first principle—otherwise protecting national security could justify torture, and it is crystal clear from the Reith Lecture from the noble Baroness, Lady Manningham-Buller, that the UK does not. Protecting national security and even going to war must still be conducted within certain ethical and moral constraints, which include that if you get mixed up in the wrongdoing you may—subject to five stringent tests in the Norwich Pharmacal case, and following a PII application—have to disclose material to help the victim defend himself against a capital charge. I fully accept that the United Kingdom is the junior partner in this situation, and is probably more reliant on intelligence material from
the United States than vice versa. But your ethical and moral principles are often tested—or perhaps only tested—when you are the less powerful person in the situation, not when you are in command.
I end with a very simplistic point. The remedy may not even need to be legislation. If the UK does not get mixed up in, as opposed to merely receiving information about, other countries’ wrongdoing and, a fortiori, if the United States ceased this kind of wrongdoing, it can rest assured that the veil of the control principle cannot be pierced by Norwich Pharmacal. The remedy to some extent lies in the hands of the United States, and it is regrettable that President Obama did not fulfil his election promise to close Guantanamo Bay, which might have provided a line in the sand in this group of cases. I am pleased to live in a place with the high ethical constraints of Norwich Pharmacal and that we have a mechanism to release such information in situations that could literally save a man from the electric chair. The door to such information should be hard to open, but not absolutely barred. I support this group of amendments.
Lord Falconer of Thoroton: My Lords, it has been a very powerful debate. I am particularly grateful to the noble Lords, Lord Lester and Lord Pannick, for maybe seeing a way through a very difficult issue. Both issues that the Bill raises are difficult, but this is the more difficult. The first one, about fairness and making sure that one sticks to fair procedures, necessarily involved a solution whereby the courts made the balance. Ultimately, if there was damage to national security, the intelligence services would be able, if they wanted, to withdraw the case and there would be no damage to national security. This is a much more difficult one because the intelligence services do not have the option of withdrawing from the case.
As the noble Baroness, Lady Berridge, and the noble Lord, Lord Lester, explained, in a Norwich Pharmacal application, when no proceedings are afoot you go to court and say that either the British Government or the intelligence services have either committed wrongs or got mixed up in wrongdoing, and you ask them to disclose documents that show their involvement, not necessarily with the intention of suing the British Government but because you may wish to sue someone else. The courts have dealt with that by saying, “Okay, we’ll consider these Norwich Pharmacals”. If it is concluded that the position is made out whereby one would, prima facie, make a Norwich Pharmacal, the courts then say to the Government, “Okay, we are going to make a Norwich Pharmacal subject to the Government making a PII application”. Then the courts have to balance whether national security outweighs the interests of the individual. I do not know how that balance is to be struck, because it is not easy to strike it as it would be in ordinary litigation. Indeed, except in two cases, it has never been struck. It is not open to the Government to say, “Okay, we’re going off the field at this point”. If the court makes the order and overrides the public interest, it is disclosed.
That process has unquestionably caused some of our allies concern. The effect of the Binyam Mohamed case was that, even though two out of the three judges said that the control principle had not been broken
because the intelligence material was no longer secret—I refer to the principle that if one country gives another country intelligence, the other country cannot use that intelligence without the first country’s consent—the United States Government now give us less information than they did previously. That is what Mr David Anderson said in his supplemental memorandum for the Joint Committee, which expressly said that it did not know whether it was right or wrong and that all it had to go on was what Mr Anderson said. However, he was clear that the effect of the court making it clear that a balance had to be struck, as unquestionably is the case, was that people did not feel so secure about the intelligence that they gave and so gave less. However, as the noble Baroness, Lady Berridge, and other noble Lords have said, they will give us intelligence when there is an immediate threat to life.
The effect of the current position is that we get less intelligence material from the United States of America and maybe our other allies because they are worried that the English courts might order their disclosure. The Joint Committee on Human Rights took the view in the light of that—this is my reading of it—that the minimum should be done to give the reassurance required to get the maximum protection in relation to intelligence. If you took that approach, is what the Bill proposes the minimum that can be done to provide protection?
The noble Baroness, Lady Berridge, described a typical Norwich Pharmacal stripped of any complication about intelligence. It would involve me going to have a cup of tea in a cafeteria in Thames House or Vauxhall Cross and me slipping on the floor, breaking my leg and saying that I would sue whoever owns the building, which is the intelligence services—but they say, “Actually, an independent contractor cleans the floor and it is absolutely their fault that you slipped”.
I could bring a Norwich Pharmacal order if the intelligence services did not tell me who the contractor was in order to bring my action for a broken leg because it had inadvertently got mixed up in wrongdoing. The effect of Clause 13(3) of the current Bill is that, because the information was held by an intelligence service, it would not be able to say, “No, you cannot have the information about who cleans the floor”. It would be the same if I were run over by a van carrying papers to the FCO and I wanted the maintenance records held by someone else; it could say no.
It is plain that the Government do not intend to cover those sorts of cases. What they do intend to cover are the cases where there is a genuine threat to the control principle and you cannot deal with it because the courts are absolutely right in saying that if the courts are going to make a decision they must have a balance.
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As I understand it, the noble Lords, Lord Lester and Lord Pannick, and other noble Lords are trying to say, “Let us give as much protection as we can to the intelligence services”. So we get rid of paragraphs (a) to (d)—all the general ones—and we say, “It is open to the Minister to certify that certain material, if disclosed, will damage our relationship with the United States”, so you cannot disclose it. That is a complete solution,
subject to the problem that the Government have identified, if the House were to find that it was made out, which means that the House would conclude that what David Anderson said was correct. It is much more limited, much more focused, and you cannot complain, if you are the Government, that you do not quite know what the limits of it are because it is the certificate that is signed by the Secretary of State. If there is to be a solution to this case, I strongly favour one that keeps the courts completely out of this.
The position into which the courts are being manoeuvred at the moment is wholly unsatisfactory. The case of the Crown v Omar, which the Constitution Committee refers to, has two ratios. One is a statutory regime that prevents the disclosure of national security information. The second, as I understand it, was a note from a Government, not the United States Government but a diplomat—nothing wrong with a diplomat—that says in effect: “If we disclose this information, which relates to a man who has been tried for his life in a particular country, the particular country would take the view that we were unduly interfering in their processes”. The Divisional Court said, “That is enough for us. We are not going to disclose the information”, even though a man was on trial for his life. If that is what national security requires, do not ask the courts to make those decisions; get the Secretary of State to make them. I have no problem about the Secretary of State making those decisions. Do not leave the courts to make a balance because they will do it in a way that pushes them into a very repressive position and at the same does not give the nation the flow of intelligence that we are looking for from the United States. The United States will say, “As long as there is a balance, we will not give you the intelligence”.
One can take whatever view one likes of the United States of America’s view, but as I understand it Mr Anderson is saying that it will not give this information unless it has more security in relation to it. It is therefore for this House and for the House of Commons to decide whether we think we should, as it were, endanger that flow of information. That, ultimately, is the key choice.
With respect, the noble Baroness, Lady Williams, in a very impressive speech, raised the dilemma, because ultimately she is saying, “Please exclude anything that might arguably be a breach of an international law or convention”. She explicitly made it clear that she had in mind the European Convention on Human Rights, which would include anything such as rendering someone from one country to another when you knew or ought to have known that when they got to the second country that person might be subjected to torture.
I fear that the brutal truth is that all these applications under Norwich Pharmacal that are being made against the Government will at the very least raise allegations of that sort. If the House is minded to go down the route that the noble Baroness is suggesting, which I think is very difficult, the consequence will be that we are simply confirming the US’s concern about the information: namely, that if you give a balance like that, quite rightly you will not be able to tell what will happen in an individual case because the courts might say yes or no, depending on the facts.
The choice that we as a Parliament have is whether we take the route that the noble Lords, Lord Pannick and Lord Lester, are offering us, which is to accept the factual basis that Mr Anderson is putting, but make it as absolutely narrow as possible. Then we will be able as a nation to turn around to our allies and say, “You can be pretty sure that you can protect the information that is given on the control principle, because ultimately a certificate from the Secretary of State keeps the courts out”.
Lord Lester of Herne Hill: My Lords, the noble and learned Lord has expressed his opinion so clearly that I find it very difficult to ask him a question. The burden of what he is saying is that he thinks that the solution is an absolute ouster clause—something that makes the Minister’s certificate conclusive in all circumstances. My understanding is that that is not the position under the law of the United States. Even with its State Secrets Protection Act and its Patriot Act, it does not go that far.
The evidence in the Binyam Mohamed case that was given by Mr Morton Halperin was that intelligence services in both countries recognised that there are some rule-of-law exceptions. What troubles me is that there are cases now pending in the European Court of Human Rights with names such as al-Nashiri, I think, where the court is requiring States parties to disclose information where there are allegations of rendition and torture. Will the noble and learned Lord at least accept that the Bill could limit the power of the Secretary of State to certify so as to exclude the grossest cases of human rights violations so that it is not completely absent, that being an obligation on the Secretary of State that might or might not be traditionally reviewable?
Lord Falconer of Thoroton: There are two points. First, I am seeking to say what the dilemma is for the House. It is necessary for the House first to come to a conclusion about whether there is a difficulty in relation to the flow of information. If it comes to the same conclusion as the Joint Committee on Human Rights came to, based on Mr Anderson’s evidence, the question is: what is the right solution? I think that everyone around the House agrees that it should be proportionate.
On the specific questions, I am not in favour of a complete ouster and, as I understand it, neither are the Government, because they are saying that any certificate given by the Secretary of State is subject to judicial review, so it would not be an ouster of a sort that other Ministers tried on previous occasions. This would leave in the ability to say, “Could a reasonable Minister have given such a certificate?”. There are two bits to that. The approach of the noble Baroness, Lady Williams, is to cut out of the approach that is being suggested anything that might make an allegation of human rights abuse. I can see the attraction of that, but the consequence is probably that Norwich Pharmacal is left untouched, and you have the problem of less intelligence coming. I do not want to sound too dramatic but the indications from the intelligence services, which I do not question in any way, tend to be that that might have a significant effect on the Executive’s ability to protect more individuals. I can see the former head of one of the intelligence services behind me correcting me on this, but it is quite a significant part of the ability to protect ourselves.
If one took the route of the noble Baroness, Lady Williams—if I may call it that—that would avoid giving any protection at all. The route of the noble Lord, Lord Lester, is, “Take the approach that is being suggested. Have the ability to certify. Limit it to the control principle. Cut out everything else. Make it judicially reviewable but accept that there are occasions when there will be gross breaches”. I think he is suggesting in his Amendment 85 that it is something more than a judicial review balance, something else apart from judicial review, because it says in effect that the principles of judicial review will apply to considering where the public interest lies, including considering whether there have been gross breaches of international law. That is not quite the wording but that is what it amounts to. That still seems to me like judicial review, so it is for the Minister to decide whether there is a basis for concluding that it might affect the control principle. If he comes to that conclusion, the certificate is not attackable. That appears to be what is being proposed.
Baroness Manningham-Buller: My Lords, this is obviously one of the trickiest bits of the Bill and I am very grateful for the analysis of the noble and learned Lord, Lord Falconer, because he has forced the Committee to focus on some of the key issues. This was not a problem when I was director-general. Norwich Pharmacal was not being used in national security cases, so it is a relatively new phenomenon.
If the Committee will allow me, I should like to make a slight deviation on the question of public interest. I accept that there have been occasions when Governments of all persuasions have used secret certification to label things secret when they have not been secret at all. I acknowledge that that has happened. However, I hope that the Committee will really accept—some speakers appear not to have done so—that there are real and serious secrets that, if exposed, will cause substantial risk to the public interest. I know that I keep saying that and I hope that noble Lords will forgive me if I repeat it.
The noble Lord, Lord Reid of Cardowan, made a speech about the threat. I shall not go into that because I retired five years ago and I think—in fact, I know—that the nature of the threat has changed. However, the practicality of intelligence work is that you have to work with a great many other services. If he were in his place, I would contradict the noble Lord, Lord Reid, saying that you trust them all, because of course you do not. In some cases, you are dealing with countries with very different standards of law and different attitudes to human rights and so on. On the other hand, as I said in my Reith lecture, you cannot just talk to the Swiss, however nice that would be. We are facing a global threat. We need to talk to the parts of the world that have an understanding of and familiarity with that threat, and the security and intelligence community does so with caution and care. It will not always get it right but it is tuned into the problems.
The reality is that we do not deal just with the United States. The noble Baroness, Lady Berridge, is right that we are the net receiver of intelligence from the United States—naturally enough, as it spends squillions on its intelligence community and it is very much bigger. However, we also deal with people around
the world, including our European allies, with whom intelligence is exchanged extensively every day of the week. We deal with people in the Middle East and the Far East and all around the world. Therefore, we have a difficulty because we will not always know where the intelligence that we are given is derived from and we immediately run into the issue of how it has been obtained. Questions will not resolve that—you will not get the answers. If we have a reduction in intelligence, we will begin to lose insights, and according to David Anderson that is already happening.
It is no consolation to me at all to be told that the Americans will still give us life-saving intelligence. How will one know that it is life-saving? The nature of intelligence work is putting together information from perhaps five or six different countries and 20 different organisations—little bits and pieces of a jigsaw that, together, might save lives. If something tells us, “This is going to happen tomorrow, so you can do something about it”, that is fine, but intelligence is very rarely obviously life-saving when it is first received. Therefore, if that intelligence is reduced or rationed for reasons that, if the noble Lord, Lord Lester, is right, may be mistaken in some cases, that will be a very serious problem for the United Kingdom.
I should also like to point out an irony here. Some of these problems might not have arisen if we had had a closed material procedure, which we talked about on an earlier part of the Bill, at an earlier stage. Putting much more material into the court—albeit through the, as I absolutely accept, not entirely satisfactory arrangement of CMPs—means that there is a chance for HMG to defend themselves and for the claims of a claimant to be scrutinised and judged by an independent judge. I suggest that not being able to defend themselves has been very damaging for the Government and for the intelligence and security community. Anecdotal allegations have assumed the status of facts. Some have been, and are being, investigated as crimes, and obviously it would be inappropriate for me to mention those in any detail on this occasion. However, others are left in limbo, unresolved and under damaging clouds of accusation. Therefore, if in future we can resolve those, that will be very helpful. If we can reach a solution to the difficulties of Norwich Pharmacal that protects other people’s intelligence from this sort of exposure, we will still be in business. If we cannot protect it, it will not just be the Americans who reduce the flow of intelligence, as David Anderson described in his evidence, but many other people as well.
7.45 pm
Lord Falconer of Thoroton: My Lords, the noble Baroness, Lady Manningham-Buller, has made a very powerful intervention—if that is what it was—on my speech. I just want to summarise where I had got to and finish my speech. I think that the issues for the Committee are as follows. First, is the Committee satisfied that there would be a significant loss of intelligence? I found the speech of the noble Baroness, Lady Manningham-Buller, very powerful in that respect. Secondly, if there were a significant loss of intelligence, what would the right course be? In my respectful submission, the right course would be to do the minimum
required to protect the intelligence. It may well be that the minimum is the certification process. However, a question arises from that. The noble Baroness said that there are real secrets and I accept that. The real secrets may not only come from somebody else; they may be ones that we find ourselves. Finally, do not ask the courts to make these decisions. By all means subject them to judicial review but ultimately let the responsibility rest where it rests, which is with the Secretary of State, who should certify on the advice of the intelligence services.
Lord Butler of Brockwell: My Lords, I sense that it would be convenient for the Committee if we finished this debate before the dinner hour, so I shall confine myself to just two or three sentences. I think that the noble and learned Lord, Lord Falconer, has made all the points that I want to make, as has my noble friend Lady Manningham-Buller.
I am one of your Lordships’ representatives on the Intelligence and Security Committee. We visited the United States and our experience would endorse what Mr David Anderson said—that the flow of intelligence from the United States is being limited. I do not want to exaggerate this but the point is that the trust of the US has been weakened and we need to restore that trust. It matters not that the grounds for the breaking of that trust may not be justified. It has been diminished and, unless we can respect the control principle completely and unless other countries believe that information that they give to us will be protected in all circumstances, that trust cannot be restored. So I absolutely agree with the noble and learned Lord. We do not want to give the courts let-outs and we do not want to have a balance; if we have any exceptions, we will not be completely trusted. The responsibility must rest on the Secretary of State and only if that happens can other countries be assured that their confidences are safe with us.
Lord Wallace of Tankerness: My Lords, I thank all noble Lords who have contributed to this debate. Initially, my noble friend Lord Lester set up the framework of what a Norwich Pharmacal order is like and how it is sought. I am particularly grateful to the noble and learned Lord, Lord Falconer of Thoroton, for very clearly indicating some of the consequences of a Norwich Pharmacal order being granted, unlike what we were debating earlier in terms of civil proceedings in an action for damages where it is always open to the Government to settle or to abandon a case or a defence, rather than put information into the public domain. In this case, we are dealing with a court order requiring disclosure.
This is a difficult issue and one to which we have given considerable thought. The aim of a Norwich Pharmacal application is to force a third party who is mixed up in the suspected wrongdoing of another to disclose information that the claimant needs. In the case of sensitive information, this has usually been for another set of legal proceedings elsewhere, often overseas. It is an equitable remedy developed, as has been said, in the intellectual property sphere. However, since 2008 there have been no fewer than nine attempts to use this jurisdiction in relation to disclosure of sensitive
material, such as secret intelligence, which either belongs to the United Kingdom Government or which our allies have shared with us.
As has been said, the Government do not have an option to withdraw from or seek to settle these proceedings. If a judge orders disclosure and a PII claim is unsuccessful in relation to the material, there is no option other than to release the sensitive material. We have had experience of the damage done to our interests of national security—it has been referred to in more than one contribution to this debate—in the dramatic effect of the Binyam Mohamed case on our intelligence-sharing relationship with the United States.
My noble friend Lord Lester and the noble Lord, Lord Pannick, said—it has been said in a number of discussions around this issue—that no national security information was disclosed in the Binyam Mohamed case; it had already been put into the public domain in the United States. The real concern arises out of the Court of Appeal ordering that seven paragraphs which had been redacted from the Divisional Court’s judgment and which contained a summary of US intelligence reporting should be restored to the judgment despite the existence of a PII certificate from the Foreign Secretary. A critical factor in the Court of Appeal’s reasoning was that a court in the United States had made findings of fact directly relevant to the content of that reporting.
The judge in the United States case did not put the contents, or a summary thereof, of the United States intelligence into the public domain; he made findings of fact based on allegations about Binyam Mohamed’s treatment made in another case that were not challenged by the US Government. Crucially, knowledge of the content of the United States intelligence reporting was not in the public domain until the publication of the redacted paragraphs following the order of the UK Court of Appeal. It is the means by which the UK had had the information that was the sensitive part and we believe that what has happened since, as reflected by a number of contributions to this debate, not least the contribution of the noble Lord, Lord Butler of Brockwell, has had a real effect on the flow of information.
The noble Baroness, Lady Manningham-Buller, made the point that, although very obviously any immediate life-threatening information in the hands of the United States intelligence services would be handed to us, very rarely does that happen. Obviously, if there was direct information about a possible terrorist attack tomorrow there is no doubt that they would share it with us, but as I understand the nature of the intelligence process, it may be one part of a jigsaw puzzle that does not necessarily mean anything to the United States intelligence people who would normally share it with us, but it might be a crucial part of the jigsaw puzzle for the United Kingdom intelligence services, because it might allow a picture to be made that was not possible before. It is the loss of that kind of material that would spark concern.
The Government have received clear signals that, if we are unable to safeguard material shared by foreign partners, we can expect the depth and breadth of sensitive material shared with us to reduce significantly. Each time a claim is made, our partners must confront
the possibility of their secrets being disclosed, even if the case never reaches the point where a court orders disclosure. It is that concern that we seek to address.
Obviously, I recognise that efforts that have been made in framing these amendments to deal with the very difficult issues that we are grappling with. My noble friends Lord Lester and Lord Hodgson have tabled amendments that would restrict the clauses relating to Norwich Pharmacal relief to control principle material. By that we mean the important concept that in intelligence exchanges it is essential that the originator of the material remains in control of its handling and dissemination. My noble friends have rightly observed that, in explaining the Bill, the Government have highlighted the particular difficulty where individuals seek disclosure of material covered by the control principle, but the case for reform goes wider than that. This was acknowledged in the closing comments of the noble and learned Lord, Lord Falconer, and I think that I made reference to it on Second Reading. We must also protect intelligence gathered and generated by our own intelligence services as well. The lives and safety of intelligence service staff, as well as the safety of their sources and the effectiveness of the techniques that they use to gather information, could be jeopardised if information is disclosed. Preventing the disclosure of sensitive material produced through the capabilities of our own intelligence services is as important, I submit, to our national interest as protecting material that has been shared by our allies.
The intelligence services have a legal obligation to protect the safety of sources, including, where applicable, the duty under Article 2 of the European Convention on Human Rights. The secrecy of operations and investigations and the limit or the extent of the intelligence services’ coverage and capability are all of crucial importance and, if they were compromised, it would be harder to prevent terrorist attacks and protect public safety. Limiting the protection afforded by Clause 13 to control principle material would diminish the Government’s ability to protect domestically generated intelligence. We believe that this could have severe impacts on the direct activities of our intelligence services as well as on intelligence-sharing relationships.
On a practical level, limiting the definition to control principle material would be challenging. It is often difficult or unfeasible to separate control principle material from domestic material. For example, there may be correspondence between the intelligence services commenting on control principle material, or assessments based on a mix of domestic and foreign material, which it would be difficult to distinguish between. There are therefore inherent difficulties in identifying what qualifies as control principle material. As has been mentioned in the debate, Mr David Anderson QC discussed these practical difficulties in his recent evidence to the Joint Committee on Human Rights and the control principle itself is part of the broader principle that intelligence relationships should remain confidential.
The amendment in the name of my noble friend Lord Thomas of Gresford would remove the absolute exemption for intelligence service material and rely instead on a certificate-based process for sensitive
material whose disclosure would be damaging to the interests of national security or international relations. In a commendably concise intervention, he asked what the justification for the absolute bar is. Unlike in other parts of government, the work of the intelligence services is inevitably covert and secret. We have heard arguments that there may well be cases that would fall under the exemption but where the material sought is not sensitive. The simple fact is that material from the intelligence services sought in Norwich Pharmacal applications is, by its nature, security-sensitive and its disclosure would damage the public interest in safeguarding national security. Applicants do not seek open-source information or other unclassified material from the intelligence services.
I note the point made by the noble and learned Lord, Lord Falconer, about the hypothetical case where he slips. The obvious thing to do there would be to sue the agency, which is the occupier. If it wished to bring in a third party, the contractors, it could do so and all the normal processes would flow from that. All the cases that have arisen under this have been dealing with applications in respect of very sensitive materials.
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Applicants generally seek information relevant to their individual circumstances that is held by the intelligence service and only available from or via that intelligence service. It inevitably involves counterterrorist investigations, agent-recruitment operations or engagement with foreign intelligence services. Disclosure of such material will cause damage to the operational effectiveness of the intelligence services and to national security. It is therefore both justifiable and proportionate, given the potential damage, to exclude all intelligence service-related information, because of the inherent security sensitivity of such information in this context.
In such cases, it could be argued that a certification model should hold no fear for the Government—if material is always sensitive, a certificate would always be upheld. However, as I think the noble Lord, Lord Butler, made very clear, the prospect that the material could be disclosed has already been enough to cause concern among our allies. We need to provide greater assurance that we can protect sensitive material. A certificate-only approach would leave the concerns of our intelligence partners only partially addressed. These relationships would be open to further damage by virtue of the risk that a certificate might not be upheld and the knowledge that their material might ultimately have to be disclosed. Dealing with each application raises the prospect that information might have to be disclosed.
In other amendments, my noble friends Lord Marks and Lord Hodgson raised the important issue of the circumstances of some of those bringing Norwich Pharmacal claims. My noble friend Lady Williams of Crosby spoke very passionately and properly about the international regime to control torture. Let us not forget that this clause does not shut down any disclosure in relation to proceedings that an individual may bring against the United Kingdom Government for any alleged wrongdoing on the part of the Government or their agencies. Nor does it introduce any change to the
existing statutory regimes for the provision of evidence from the United Kingdom for the purpose of foreign, civil or criminal proceedings. However, it does seek to close off disclosure of sensitive evidence within the equitable jurisdiction of the court, which has, only in the last four years, been developed in England and Wales as an avenue of disclosure that is not found anywhere else in the world.
The noble and learned Lord, Lord Falconer, graphically reminded the Committee that in most of these cases, the very fact that they are being raised means that the allegations made are of a very serious nature indeed. The United Kingdom is justly proud of its human rights heritage. As I indicated in response to an earlier amendment, we stand firmly against torture and against cruel, inhuman and degrading treatment or punishment. We do not condone it, nor do we ask others to do it on our behalf. We fully uphold the principle of individual human rights.
As well as upholding human rights at home, the United Kingdom is committed to their promotion and protection overseas. I have to bow to my noble friend Lady Williams in terms of her experience over many years and the issues she has taken up on the international plane, not least, as she indicated, with regard to nuclear proliferation. I know she is passionate about this, but I hope she will accept that although I may not have such experience, I certainly share her passion and commitment in opposition to torture and the promotion of human rights. This country and this Government work on human rights around the world through our bilateral contacts, membership of international organisations, development aid and assistance, and in partnership with civil society. The Government’s efforts worldwide in combating torture are guided by the Foreign and Commonwealth Office’s Strategy for the Prevention of Torture 2011-2015. The Government are working to strengthen legal frameworks to prevent and prohibit torture, and develop the will and capacity of states to prevent and prohibit torture, and are helping organisations on the ground to get the expertise and training they need to prevent and prohibit torture. In recent months, the Government have made our position on torture clear in public statements on countries of concern, lobbied to strengthen adherence to the Convention Against Torture and the ICCPR, and delivered in-country training to officials of other countries on handling complaints of torture in places of detention. The Government have built the capacity of civil society to gather evidence and give testimony on torture cases to improve prosecutions on torture and make it more likely that perpetrators will be held accountable. These are just some examples of the work the Government do overseas to combat torture, as part of their broader work to raise human rights standards.
These are the practical ways in which we honour and fulfil our international commitments. It is not part of any of these conventions to have the Norwich Pharmacal jurisdiction with regard to disclosure in the way it has developed over the last four years; nor do other countries accept that as part of their international convention obligations. That is especially when we recall, as the noble and learned Lord, Lord Falconer, indicated, the very serious consequences that can flow. Although we have a great deal of sympathy with the
circumstances in which some applicants find themselves, our primary duty is to protect the safety and security of the whole of the United Kingdom.
As the noble Baroness, Lady Manningham-Buller, said, we are talking about real and serious secrets, exposure of which can damage the national interest. Disclosure could lead to the loss of access to similar sensitive information in the future, either because the source or technical capability has been exposed, or because a partner stops sharing intelligence. It could leave the UK vulnerable to an attack because it has lost access to the information, simply because of the information being disclosed in a court case or court application. The disclosure might also upset the delicate relationships with other countries where we are encouraging them to improve their human rights compliance.
The amendments could take precedence over the UK’s national security, potentially directly jeopardising the safety and security of the British people, the work of our hard-working intelligence services and our place in the world. There is good reason why, in honouring their international obligations—as we also seek to do—no other country in the world would contemplate the disclosure of their secrets in the manner that the Norwich Pharmacal jurisdiction has given rise to.
I should remind the Committee that we are concerned with a narrow area of law that grew up in intellectual property cases. I say to the noble Lord, Lord Pannick, and my noble friend Lady Berridge that if someone has evidence that the United Kingdom Government or intelligence services have been directly involved in wrongdoing, then they should bring a claim against us. If someone believes their convention rights have been infringed, they can seek to enforce them. If there is evidence of a criminal offence for which the UK courts have jurisdiction, that matter can be referred to the police for investigation.
My noble friend Lady Berridge said something about raising the threshold. I can assure her that this matter has been considered and we have tried to find a way in which that threshold could reflect a formulation that would imply a greater involvement than “innocently mixed up” but which would not reach the point where the Government could be sued directly. As I said earlier and as my noble friend observed, the Government can be sued directly in circumstances where the allegation is that we were directly involved in a wrongdoing. In those circumstances, the obligation on disclosure under the civil procedure rules would apply.
We are concerned here with how we avoid disclosure requests from applicants who are seeking information to support legal proceedings in which the Government are not involved. To date, these have always been legal proceedings abroad. Avenues will continue to exist for individuals seeking access to information. There will be no change to the established statutory framework for handling requests for mutual legal assistance and requests for evidence. As now, if a person has a convention-right-based claim for information, it will be open to them to assert that right, whether or not in free-standing proceedings, or as part of a wider European Convention of Human Rights claim. The Government will continue to be able to assist an individual seeking
to prevent or overturn a miscarriage of justice, or vindicate their rights against a third party, via diplomatic channels.
As I have also mentioned, there are statutory regimes governing the UK’s sharing of evidence for purposes of legal proceedings overseas. Notably, these provide specific exceptions where sharing of such evidence would damage national security. For example, the Evidence (Proceedings in Other Jurisdictions) Act 1975 and the Crime (International Co-operation) Act 2003 provide for assistance to be given where there has been a formal request from a court or other authority overseas to the Secretary of State. In such cases, the Secretary of State is entitled to refuse requests for assistance, and a person cannot be compelled to give evidence if to do so would be prejudicial to the security of the United Kingdom.
Furthermore, as has been mentioned, it is not for the United Kingdom to stand in judgment of proceedings overseas. In the Omar case, the court found that the principles of comity required the court not to act without a request from the Constitutional Court in Uganda. Where evidence is sought for the purpose of overseas proceedings, those statutory regimes should be used and not circumvented by Norwich Pharmacal relief. We should not lose sight of the fact that, however dire the circumstances of any individual, there are normally other routes open to him or her. We believe that Norwich Pharmacal relief, with the consequences that have been described, is the wrong solution.
I hope that in outlining the arguments in some depth and seeking to address the amendments, I have explained why the Government have adopted the position they have. On this basis, I hope the noble Lord will see fit to withdraw his amendment.
Lord Thomas of Gresford: My Lords, may I ask a succinct question? The Minister has justified the absolute ban in relation to the security services and has encouraged claimants to sue the British Government, as opposed to suing a foreign Government and making a Norwich Pharmacal application. If the claimant were to sue the British Government, would material in the hands of the security services which had been obtained through a friendly ally be disclosable in Section 6 proceedings?
Lord Wallace of Tankerness: My Lords, I think this is the point. If the claimant were to sue the British Government, if the allegation was that the British Government had been directly involved in wrongdoing—although there has been no such suggestion; I think that would get pretty short shrift—we would come back to what we have said with regard to this whole debate on Section 6 proceedings. We would wish as much information to be before the court as possible. The crucial difference between these proceedings and the proceedings in Norwich Pharmacal, as the noble and learned Lord, Lord Falconer, explained well, is that under civil damages claims, if the information should come out or the court does not allow the material to remain closed, it is still open to the Government to withdraw from the case or to settle the case. The crucial difference between that and Norwich Pharmacal is that if PII is not successful, then there is no alternative but to disclose.
Lord Thomas of Gresford: Is it right that the court would see that material? Would it see the material from a friendly foreign power that was absolutely barred from disclosure in the Norwich Pharmacal proceedings?
Lord Wallace of Tankerness: Yes, the court would see it. If I have got that wrong, I will certainly say so; but I think that that is the whole point of having closed material proceedings. The material can be made available to the court so that the whole picture can be obtained. The Secretary of State retains the option not to put the material into the public domain, although consequences may flow from that.
Lord Lester of Herne Hill: My Lords, I hope that I will not be criticised for seeking easy popularity in this House by saying that I am going to make a very short reply. I regard the dinner hour as something that should happen at the customary time for dinner, and not breakfast. I am conscious that my noble friend Lord Howell of Guildford and his colleagues have another very important debate to come.
I shall simply say this. First, I am extremely grateful for what has been a most important debate. I am particularly grateful to the Minister for his very full reply, so full and so interesting that I think studying it carefully will be very beneficial. I am a bit more pessimistic than he is, and perhaps more so than the noble and learned Lord, Lord Falconer of Thoroton, about the ability to keep the courts away when there are cases of indirect, and not direct, responsibility. There are knotty and difficult questions about the Human Rights Act, the European Convention, extra-territoriality, jurisdiction and so on. I am not yet persuaded that the certification procedure, perhaps extended beyond these amendments, is not the better approach, with limited judicial review. That is something we will need to consider. However, I am grateful to everybody. I agree in particular with the noble and learned Lord, Lord Falconer, that we should seek the minimum necessary to give reasonable and complete assurance.
Finally, I want to say to my noble friend Lady Williams of Crosby that most of what I have learnt about the law was in the United States in the early sixties. It is not really true that the United States has not been a friend of international human rights. On the contrary, whether we start with Nuremburg, the UN International Covenant, the International Criminal Court, or in other ways, the United States has been championing international human rights. The only snag is that it will not apply them in the United States itself in the way that we do. Nevertheless, I learnt most of my international human rights law there and not here. I hope that what I have said may one day be read by the legal adviser to the Department of State, my good friend Harold Hongju Koh, who will understand that I respect its system very much indeed. I also agree with all of those who say that we must find a way of winning its unqualified support in sharing national security information. I beg leave to withdraw the amendment.
Amendments 72 to 74 not moved.
Baroness Stowell of Beeston: My Lords, as in the debate last week, tonight’s dinner break business is not time-limited. However, unlike in last week’s debate, I suggest that we have an hour’s break for dinner. I am grateful to my noble friend Lord Howell of Guildford and others due to speak tonight for their patience. I am sure that we will be ready to get cracking again in an hour’s time, but perhaps noble Lords will watch the monitor as we do not need to keep strictly to one hour.
House resumed. Committee to begin again not before 9.16 pm.
Court of Justice of the European Union
Motion to Approve
8.17 pm
Moved By Lord Howell of Guildford
That this House takes note of draft regulation 2011/0901A (COD) of the European Parliament and of the Council (amending the Protocol on the Statute of the Court of Justice of the European Union and annexe 1 thereto) and draft regulation 2011/0902 (COD) (relating to temporary judges of the European Union Civil Service Tribunal) and, in accordance with Section 10 of the European Union Act 2011, approves Her Majesty’s Government’s intention to support the adoption of draft regulations 2011/0901A (COD) and 2011/0902 (COD) of the European Parliament and of the Council.
The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): My Lords, the debate this evening covers two draft regulations which make modest and technical reforms to the workings of the Court of Justice of the European Union with the aim of improving its overall efficiency. This is the first time that this House has had a debate of this kind, so I shall briefly rehearse and remind noble Lords why we are having this debate.
The draft regulations are subject to Section 10(1)(d) and (e) of the European Union Act 2011. The Act, through Section 10, which covers a small number of important articles in the EU treaties, provides an extra level of parliamentary control over certain decisions. It requires a positive vote in both Houses of Parliament on a Motion from a Minister before the United Kingdom can support a decision in the Council. Section 10 is therefore fulfilling the function for which it was conceived: increasing democratic oversight of the Government’s relationship with the European Union, and giving Parliament control over issues that matter to Britain.
As noble Lords acknowledged the last time we debated reform of the Court of Justice of the European Union in this House, the Court plays a crucial role in ensuring that EU law is observed. It is right and proper therefore that Parliament should oversee the Government’s approach to any reforms to this important institution, even though the reforms that we are discussing today are relatively minor. Why are we in favour of these reforms? A key function of the Court of Justice of the EU is to interpret and enforce EU law relating to the single market. The European Union single market
is a key element in the Government’s priority of boosting economic growth and achieving prosperity for our nation. As long as there is a single market, the Court of Justice of the EU is needed to enforce the EU law which governs it. As noble Lords are aware, the Court of Justice of the European Union comprises three courts: the Court of Justice, the General Court and the Civil Service Tribunal. Most of the reforms in the package that we are debating this evening are to the Court of Justice, which is the upper court, and the Civil Service Tribunal, which is the employment tribunal for EU officials.
Your Lordships’ European Union Committee set out in its excellent report of March last year that the workload of the Court of Justice has grown substantially in recent years. New cases increased by 18% in total between 2007 and 2011. While the Court has managed that workload effectively to date, the European Union Committee has rightly questioned whether this can continue. It stated in its report that,
“the expansion of the CJ’s jurisdiction into the Area of Freedom, Security and Justice introduced by the Lisbon Treaty, coupled with the increase of EU membership to 27 States, will have an impact on the CJ’s ability to manage its workload”.
It therefore makes sense in our view to act now to reform the court so that it is better equipped to manage its increasing workload. Many of the reforms that we are discussing today, which I will set out now, work towards this aim. Coming to the detail, there are three main reforms to the Court of Justice. First, the new position of vice-president will be created and appointed from among existing judges, to assist the president of the Court in managing litigation, overseeing the business of the Court and representing it externally. Secondly, there will be an increase in the number of judges sitting in the grand chamber of the Court of Justice, which generally handles the Court’s most sensitive cases. Thirdly, there will be a reduction in the number of presidents of five-judge chambers who have to sit in the grand chamber at the same time.
The package of reforms that we are discussing also affect the Civil Service Tribunal—the employment tribunal for EU officials, as I have already said. The reforms include the power to appoint up to three temporary judges to the tribunal if permanent judges are absent for more than three months for medical reasons. Finally, there is one key reform to the lower court—the General Court. As will be the case with the Court of Justice, a new vice-president position will be created. I could go into much more detail on these issues and will be very happy to do so, but they are already on the record, having been debated in the other place, and I suspect are fully familiar to your Lordships who are attending the debate this evening.
Let me say a word on other reforms and next steps because this is important. We are looking at part of a process and not the final pattern. The Government have been active in negotiating the detail of these reforms, which were proposed by the Court of Justice of the European Union itself. One potential reform about which we had particular concerns has been removed from consideration, and a further reform continues to be considered separately. Let me elaborate on that. The Government did not support the original proposal to remove the 10-day period of grace that
litigants are granted for submitting pleadings to the Court of Justice on top of the standard deadline period. We argued that removing the period of grace would damage our national interest by limiting the time available to us to submit pleadings. By retaining it, we have ensured that both the Government and British businesses have the maximum possible time to submit pleadings to the court.
The other reform proposed by the Court, notable in its absence today, was the addition of 12 further judges to the General Court. This reform was proposed to address the substantial backlog of cases, which are currently more than 1,300. My noble friend Lord Bowness, who has played such an active and creative part in this whole issue, explained the reason for the large workload that led to this backlog during our previous debate on this subject. The delay resulting from this backlog of cases is bad for British businesses, which wait months or years for their own case or cases of relevance to them to be heard and determined. We all know from your Lordships’ European Union Committee report, to which the noble Lord, Lord Anderson, referred last time we discussed the Court, that the Confederation of British Industry has expressed its concerns about the implications of these delays. It is essential that the reforms to the General Court address the backlog effectively. This means studying the cause of the problem and the viability of different solutions.
We welcome the establishment of the new group of European member states aiming to specifically consider the broader issue of effective reform to the General Court—the so-called friends of presidency group, which is due to report in December of this year. The Government will actively participate in that group. The detailed work of your Lordships in preparing their report on this subject will be a valuable contribution to discussions.
The questions of increasing the size of the judiciary of that Court, and of how any new judges should be selected and appointed, will be considered in this context. Any increase in the number of judges should be consistent with the requirement for minimal spending in the current economic climate, and should go hand in hand with other efficiencies.
I would like to underline how seriously the Government take this issue and make it clear that we will be working actively over the coming months to try to find an effective solution. We accept that at present the reforms on the table are modest, and it is right that we continue to encourage member states to find a sustainable solution to the wider problems. However, it is clear that these reforms will support the Government’s objective of improving the efficiency of the Court of Justice of the European Union. They will also potentially pave the way for more substantive reform to the General Court at a later stage, when value-for-money considerations can be taken into account. This is obviously important, because a more effective and efficient Court will be good for British businesses operating in the single market. I therefore commend this Motion to the House.
8.26 pm
Lord Anderson of Swansea: My Lords, I thank the Minister for his usual clear explanation of what he has called “modest” and “technical” documents. I note that when his counterpart in the other place, David Lidington,
set out the case in similarly moderate terms, he was assailed by visceral Europhobes on the government Benches, which illustrates, perhaps, the Government’s problem in pursuing a sensible European Union policy. Happily, looking around, I think it unlikely that the Minister will be assailed in a similar way today.