House of Lords
Wednesday, 21 November 2012.
3 pm
Prayers—read by the Lord Bishop of Bath and Wells.
Rwanda
Question
3.06 pm
To ask Her Majesty’s Government what assessment they have made of the Amnesty International report Rwanda: shrouded in secrecy.
The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi): My Lords, the UK shares the concerns raised in this Amnesty International report. Our high commissioner in Kigali has raised illegal detentions and key concerns in the report with the Rwandan Government on a number of occasions. He has also regularly requested access to detention centres and, in September, was granted access to the Gikondo transit centre, a facility that has been mentioned in other international human rights reports on illegal detentions.
Lord Chidgey: I thank my noble friend for that response. She will be aware that the Amnesty report documents illegal detention and torture over more than two years while, over the past two days, the Rwandan military has been backing the M23 in its incursions. They have overrun the city of Goma in the Congo. Surely both of these events are serious breaches of a memorandum of understanding that Rwanda signed with the UK just this September, committing it to:
“The principles of good governance … respect for human rights”,
“The promotion of peace and stability in the Great Lakes region”.
In the absence of any signs of compliance with the memorandum of understanding, can my noble friend tell us whether, during our Minister for Africa’s visit to the region—he is there now—we will curb Rwanda’s aid programme forthwith?
Baroness Warsi: My noble friend raised a number of issues, some of which relate to reports that were clearly leaked. It would be inappropriate for me to comment specifically on a leaked report but I can confirm that this Government take those concerns extremely seriously. That is why, among other reasons, the Minister for Africa is in the region. My noble friend will be aware of the United Nations Security Council presidential statement, which was issued only yesterday and deals with specific concerns about the M23 in Goma. I am sure he will also accept that our aid programme in Rwanda is, specifically, to deal with poverty in a country where almost 45% of Rwandans
remain in extreme poverty. Real progress has been made since the genocide of 1994 in building Rwanda’s economy. I am sure he will accept that our support to the poorest in that economy is part of that.
Lord Alton of Liverpool: Does the noble Baroness not recall that in September, in reply to a Written Question that I tabled, her noble friend Lady Northover confirmed that some £344 million is being provided in bilateral aid to Rwanda between 2011 and 2015? In that same reply, she said that Rwanda,
“must adhere to strict partnership principles”,—[
Official Report
, 24/9/12; col.
WA284
.]
and that the Secretary of State was still considering whether those expectations were being met. Given what the noble Lord, Lord Chidgey, just said about the fall of Goma—there are now 80,000 displaced people and refugees in that area—and what Ban Ki-Moon has said about using aid for leverage, will the Minister say whether we are reconsidering our decision to restore aid in that vast degree to Rwanda and who is arming and paying for the arms of the M23 rebels?
Baroness Warsi: I cannot comment on the last question that the noble Lord raised but, in relation to aid, in 2012-13 we have committed £75 million, of which £29 million is general budget support. The noble Lord will be aware that in July of this year, because of certain concerns that were raised, a £16 million tranche of general budget funding was not given over until September and, at that point, £8 million was given over as general budget support but £8 million was redirected to education and food. The next tranche is due in December and my right honourable friend the Secretary of State for International Development is looking at all these matters.
Baroness Kinnock of Holyhead: My Lords, does the Minister have a view on how the Security Council could accept yesterday that M23 is getting external support but then perversely claim that it lacks evidence? Does she agree that it need look no further than the new, well documented evidence provided by Human Rights Watch on Rwanda’s provision of, for instance, logistical support and sophisticated weaponry to M23?
Baroness Warsi: We were heavily involved in that presidential statement at the United Nations Security Council yesterday. It was important that we raised our concerns, and we raised them. As the noble Baroness will note from that report, the support given to M23 is not entirely clear. Reference was made to it by the United Nations group of experts’ report via a leaked report. It would be inappropriate for me to comment on that leak, but these are matters that we continuously discuss with Rwanda.
The Lord Bishop of Bath and Wells: My Lords, Rwanda: Shrouded in Secrecy paints a bleak picture of arbitrary arrest and torture inside Rwanda. What steps are the Government taking to urge the Rwandan Government to investigate all cases of unlawful detention, enforced disappearance, torture and other ill treatment by the military and to ensure that those responsible are brought to justice?
Baroness Warsi: I can assure the right reverend Prelate that human rights are an important component of the development work we do in Rwanda. The UK recognises that there are serious concerns about human rights in Rwanda, particularly about political rights and freedom of expression, as well as the concerns detailed in the Amnesty International report. We raise these concerns consistently in our discussions with the Rwandan Government at the highest level, and we will continue to do so.
Lord McConnell of Glenscorrodale: My Lords, do the Government acknowledge that in addition to the aid provided to Rwanda, this country is also one of the largest aid contributors to Uganda and is increasing its aid year after year to the Democratic Republic of Congo? That puts the United Kingdom in a unique position with our role in the Security Council and in the European Union to insist that the talks happening today in Kampala produce a long-term regional solution that involves all the countries of the region accepting their responsibility for the situation, not just at the moment in Goma, but the continuing violence over recent years. A regional solution that delivers peace not just for people in North Kivu, but for the rest of the region as well, is essential.
Baroness Warsi: The noble Lord raises important points. He will be aware that the Minister for Africa is visiting Uganda, Rwanda and the DRC. We have strong relationships in the region, not just through our aid programmes, and it is important that we use them to further stability in the region. The noble Lord may not be aware that aid to the Ugandan Government has been temporarily suspended as a result of evidence emerging from an ongoing forensic audit of the Prime Minister’s office.
Lord Avebury:Considering that with 20,000 armed men and a budget of $1.4 million MONUSCO has been unable to protect the civilians of Goma from the aggression of M23, does the Minister think that it is time to consider more than just reviewing the mandate of MONUSCO? Has she seen the French proposals to give MONUSCO an aggressive capability? Will she discuss that with it to see whether we could support it in the Security Council accordingly?
Baroness Warsi: The MONUSCO mandate, as the noble Lord is aware, is specifically to protect civilians. They do not have, as he says, a more aggressive mandate at this stage but I will take what he has said on board and feed it back.
Health: Mental Health
Question
3.15 pm
To ask Her Majesty’s Government, further to the remarks by Earl Howe on 8 February (HL Deb, col. 273), what action they have taken to ensure mental health is treated on a par with other National Health Service services.
Baroness Sherlock: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as a director and former chair of Chapel Street community health.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, the Health and Social Care Act 2012 creates equal status for mental and physical health; the new mandate to the NHS Commissioning Board tasks it with delivering this goal. One of the eight objectives of the mandate is,
“putting mental health on an equal footing with physical health–this means everyone who needs mental health services having timely access to the best available treatment”.
The NHS will be expected to demonstrate progress by March 2015.
Baroness Sherlock: I thank the Minister for that Answer. The NHS constitution gives a patient the right to drugs and treatment recommended by NICE for use in the NHS where clinically appropriate. “Recommended” means that they have passed NICE’s technological appraisal. For mental health, the problem with talking therapies is that they are not appraised because they are not technological. Will the Minister reassure the House that “parity of esteem” will mean that the NHS constitution will give someone the right to any therapy or treatment recommended by NICE for use in the NHS, even if it has not passed the technology appraisal, provided that there is good evidence for its efficacy—for example, CBT for schizophrenia?
Earl Howe: My Lords, as the noble Baroness made clear, the NHS constitution sets out that patients have the right to drugs and treatments that have been recommended by NICE for use in the NHS if their doctor says that they are clinically appropriate for them; that includes talking therapies for certain problems. The mandate to the NHS Commissioning Board is clear about everyone who needs mental health services having timely access to the best available treatment. The NHS will be expected to demonstrate progress in achieving that by 2015, as I mentioned. For many patients, there are few better therapies than talking therapies. Given that the board must deliver those outcomes, the rest follows.
Lord Alderdice: My Lords, I will press the Minister further on this. In his response to my debate on mental health on 8 October, he undertook to write on a number of issues. True to his word, as we have come to expect, he wrote a long, substantial, constructive and positive letter in which he discussed psychological therapies being available for disturbed people. I want to pick up on what the noble Baroness has said about schizophrenic disorders. There is a tendency for people with the schizophrenias simply to be given medication and social management. There are psychological treatments—family therapy and others—that are appropriate. Can my noble friend ensure that those who suffer from the schizophrenias will also receive appropriate psychological therapies and not simply be abandoned to medication and social management?
Earl Howe: My Lords, my noble friend makes an important point, and I can reassure him on that. I know that he is concerned that IAPT services may be displacing other psychological therapies. In fact, having looked into this, I can tell him that data from the NHS finance mapping exercise shows that IAPT services are not displacing other therapies; I have figures here to prove that. Spending on non-IAPT psychological therapies has reduced very slightly, by just over 5%, but the overall picture is one of a dramatic expansion in the availability and range of psychological therapies.
Lord Patel: My Lords, as the mover of the amendment that put equality of mental and psychical health in legislation, I am pleased that the Government did not contest it again—albeit that it was won by a Division. I am also pleased that mental health is to be treated equally in the mandate.
Lord Patel: I am coming to the question which is important. Having put it in the mandate, would it not now be right for the department to ask the Commissioning Board to produce a framework outcome for mental health so it can assess progress in treatment equality for mental health?
Earl Howe: My Lords, we expect the equal priority for mental and physical health to be reflected in all relevant aspects of the NHS’s work. There can be no single measure of parity. As I said earlier, we expect the board to be able to demonstrate measureable progress towards parity by 2015. However, there are some specific areas where we expect progress; for example, relevant measures from the NHS outcomes framework, including reducing excess mortality of people with severe mental illness; delivering the IAPT programme in full and extending it further; addressing unacceptable delays, and significantly improving access and waiting times; and working with others to support vulnerable and troubled families. Those are very detailed objectives for the board, all of which bear upon the key question of parity between mental and physical health.
Lord Patel of Bradford: Given the real terms drop in mental health funding last year, which was even greater for older people’s mental health services—an area which has many challenges ahead for us; will the Minister tell us how the Government will ensure consistency and parity in local commissioning strategies, as clinical commissioning groups can obviously choose to prioritise or exclude what they want to have in those strategies? How will the Government deliver the Prime Minister’s dementia target?
Earl Howe: My Lords, the way in which mental health services are commissioned locally is of paramount importance. One of the features of the reforms is to bring together local authorities and the health service to plan services in a much more integrated way. Clinical commissioning groups will ignore the imperative of mental health at their peril, because they will be charged—under the commissioning outcomes framework, which the board will set—to deliver meaningful progress on
all the indicators, including mental health indicators. It is an absolute necessity that good commissioning takes place at a local level.
Baroness Meacher: My Lords, the Minister is well aware that only a third of people whose lives are being ravaged by depression and anxiety are receiving treatment. He rightly pointed out that the commissioning board has a responsibility here, but I understand that it does not regard this as one of its priorities. Will the Minister give a very clear signal to the commissioning board that Ministers regard the equal treatment of mental and physical illnesses as important, and that parity must be achieved?
Earl Howe: My Lords, that objective is explicitly spelt out in the mandate. I have already spoken about some of the ways in which we expect the board to demonstrate that they have delivered that objective, and I can give the noble Baroness the reassurance that she seeks.
Young People: Staying Put Scheme
Question
3.22 pm
To ask Her Majesty’s Government what plans they have to roll out the Staying Put scheme across England and Wales.
The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford): My Lords, the Government are encouraging all local authorities to expand staying-put arrangements so that more young people can stay with their former foster carers until age 21, particularly when these young people are in further or higher education. My honourable friend Edward Timpson, the Children’s Minister, has recently written to all directors of children’s services, urging them to ensure that care leavers always live in safe, suitable accommodation, including staying-put arrangements.
The Earl of Listowel: I thank the Minister for his reply. Does he share my concern that these young people, in particular, need enduring and reliable relationships in their lives because of their poor start? Does he also share my concern at the recent findings from the deputy Children’s Commissioner about the sexual exploitation of young people leaving care? Does that not highlight the urgency with which the Government should pursue their current activity in encouraging local authorities to spread this practice as far, and as soon, as possible?
Lord Hill of Oareford: I agree with the noble Earl on both points. Any help that he and others can give in raising the salience of the issue with local authorities would be very welcome. As I said, my honourable friend has written to all of them, and he will be monitoring the situation. I am glad that in the past year the number of young people in staying-put arrangements has increased—admittedly from a low base—by more than a third, so there has been some progress. However, we all need to keep the spotlight on it.
Baroness Brinton: Is the Minister aware of the bizarre anomaly that care leavers who are not in education, employment and training are eligible for a personal adviser only until they are 21 years old, while those who are in education, employment and training are eligible for support from a personal adviser until the age of 25? In light of this, will the Government consider extending the offer of personal advisers for NEET care leavers until they are 25?
Lord Hill of Oareford: My Lords, I think that I am right in saying that the extension to the age of 25 for those who are in education was a fairly recent extension from the age of 21. I will take up the noble Baroness’s second point with my honourable friend Mr Timpson.
Baroness Hughes of Stretford: My Lords, I am sure that none of us as parents would want to be forced to turn our son or daughter out of the house on the day of their 18th birthday but that is happening to thousands of young people in care. The Minister has effectively said, as the Government constantly say, that it is up to local authorities. However, this is a very special case because these young people are in the care of the state; the Government have ultimate responsibility for their well-being and cannot pass the buck to local authorities. Will the Government give young people in care the entitlement to stay in their placement after the age of 18, if it is in their interests to do so, and ensure that local authorities provide the support for that to happen? Will they further ensure that any planned changes to housing benefit and welfare reform being considered by the Government do not further disadvantage young people in care?
Lord Hill of Oareford: My Lords, it is not a question of the Government seeking to pass the buck to local authorities. As the noble Baroness will know much better than me, that is where the statutory responsibility lies and where we think that it should be. Given those statutory duties, I am sure she will have seen the recent Section 251 returns around the funding that local authorities are putting into looked-after children—it has shown a small increase over the past year, which reflects the priority that is being attached to it—and the statutory framework that is in place.
On the noble Baroness’s second point about whatever changes may be made to the benefits system and seeking to make sure that the interests particularly of this most disadvantaged group of care leavers are taken into account, she is right that we need to make sure that those concerns are properly considered. I know that my colleagues will be doing that as policy is developed.
Lord Roberts of Llandudno: My Lords, I am delighted to see that Wales is included in this, as so many things are devolved to Wales. Will the Minister explain exactly how this scheme operates in Wales? Is it through the Assembly Government or directly from Whitehall?
Lord Hill of Oareford: The Welsh Government are responsible for their own arrangements but, in parallel, they are carrying out a consultation looking into
precisely the same issues and whether it is appropriate to introduce their version of staying-put arrangements into Wales. That consultation is going on at the moment.
Lord Harris of Haringey: The noble Earl, Lord Listowel, has referred to the Children’s Commissioner’s report which came out today, in particular the dreadful findings about how many children in care have been sexually abused. Will the Minister tell the House the Government’s stance about that report, given that, apparently, people speaking on behalf of the Government to both the BBC Radio 4 “Today” programme and the Sun said that the report was overemotional and were trying to undermine its conclusions?
Lord Hill of Oareford: The Government’s stance is that the report from the deputy Children’s Commissioner is helpful for the Government to have. We will reflect on the findings that it makes in terms of its recommendations and its estimates about the extent of the problem. I think I am right in saying that the report recognises that making any precise estimate is by nature very difficult, but the more information we have the better. Even before this report, the Government have been seeking to improve the systems for getting accurate reporting from various local agencies and authorities to make sure that we have as accurate a picture as possible to make sure that we do not underestimate or overestimate the problem. Everyone is very aware of the salience of this issue and the important issues that that report gives rise to.
Bahrain
Question
3.29 pm
To ask Her Majesty’s Government what representations they will make to the Government of Bahrain regarding the deprivation of citizenship imposed on 31 persons on 7 November 2012.
The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi): My Lords, we have told the Bahraini Government that revoking citizenship, which leaves individuals stateless, is a negative step and, ultimately, a barrier towards reconciliation. I understand that those affected have the right of appeal, but we regularly express our concerns about human rights abuses in Bahrain.
Lord Avebury: My Lords, I noticed that my right honourable friend the Foreign Secretary had been cosying up to one of the hereditary oligarchs of a regime that regularly kills, tortures and arbitrarily imprisons any of its opponents, and has now taken to depriving them of their citizenship. Would my noble friend agree to meet me with brothers, Jalal and Jawad Fairooz, former MPs of the al-Wefaq Party, who were deprived of their citizenship and are now stranded in London without visible means of support, without any citizenship, and separated permanently—as far as I can see—from their families in Bahrain? Will she also bear in mind that, if you are going to have a
dialogue that will solve the constitutional problems of Bahrain, it can be done only if you free the political prisoners who are the leaders of the opposition and who are at present incarcerated for very long periods in prison?
Baroness Warsi: My Lords, I understand that officials from the Foreign and Commonwealth Office are in touch with, and have had some contact with, the two specific cases to which my noble friend refers. I know that he has strong views in relation to this matter, but I would take exception to the description given to my right honourable friend the Foreign Secretary. Indeed, earlier this week I myself met with Shaikh Khalid bin Ahmed al-Khalifa, who is the Foreign Minister, and indeed the individual to which my noble friend refers. It was a robust and frank exchange, and a conversation in which human rights were openly and frankly discussed.
Lord Soley: We are all aware of the influence of Iran in this area, but how much have we discussed with the Bahraini authorities the difficulties that they face as a result of the two branches of Islam—Shia and Sunni—and involving that in the constitutional discussions that are taking place? It is very important, and there are ways of addressing it. Have they discussed it? I should declare an interest as the chairman of the Good Governance Foundation, which operates in the region.
Baroness Warsi: Certainly, we have these specific discussions regularly around freedom of religion. I spoke with the Foreign Minister when he was here this week specifically about that issue, and we had a lengthy conversation about the Shia-Sunni dynamic in Bahrain. We also spoke about historic coexistence between these two theologies within Islam. Indeed, we had a lengthy conversation about my own history when I explained to him that I was half-Sunni and half-Shia.
Lord Luce: While acknowledging the importance of the Question asked by the noble Lord, Lord Avebury, would the Minister give some credit to the Government of Bahrain for setting up last year a very distinguished international commission on human rights, which at the end of the year made over 170 recommendations, of which the Government have so far decided to implement 140? Should we not give some credit to the Government of Bahrain for that?
Baroness Warsi: The noble Lord makes an important point. Indeed, today is the anniversary of the publication of those first ambitions set out in the Bahrain Independent Commission of Inquiry. He is right when he says that 143 of the 176 recommendations were accepted—and, indeed, a further 13 were partially accepted. Bahrain is trying to make progress on these matters, and we are supporting it in doing that.
Baroness Uddin: My Lords, given her recent discussion with the Foreign Minister, would the Minister tell the House what progress has been made, in her assessment, between the Bahrain Government and opposition parties? In asking this question I declare my interest as a member of the UK-Bahrain All-Party Parliamentary
Group. Alongside the discussion that the noble Lord, Lord Avebury, is asking her to host, would she also engage with the all-party group?
Baroness Warsi: An amount of progress has been made, both politically and in relation to governance. Some underlying concerns, of course, need to be addressed before progress can be made politically. Much of that has been set out in the Bahrain Independent Commission of Inquiry. I know that progress has been made on a special investigations unit, for example, which looks into the particular disturbances that led to the current concerns. Some progress has also been made in relation to constitutional amendments that will form the basis of reconciliation.
Baroness Falkner of Margravine: My Lords, does my noble friend accept that while some of the recommendations of the Bassiouni commission have indeed been accepted and enforced, the principal recommendation—which was about reconciliation and talks to resolve the differences between the two sides—rested on there being an opposition with whom to have talks about reconciliation? When so many members of that opposition might have been freed but then deprived of their citizenship and are, in other words, stateless, it is impossible to have discussions with them. What are the Government doing to speak directly to the Prime Minister, rather than the Foreign Minister, of Bahrain to ask that the revocation of these peoples’ citizenship be readdressed?
Baroness Warsi: We have discussions at all levels in relation to this matter, including with the Prime Minister. The specific issue regarding the revocation of citizenship has been raised and our concerns have been registered. There is a right of appeal. We are pressing the Bahraini Government to consider these matters seriously during that right of appeal.
Lord Triesman: My Lords, I share the concerns expressed in the central proposition of the previous question. There has been progress but, on the most fundamental issues, the progress is woeful. It is against a background of a grim record and, if anything, Bahrain’s record is getting worse, rather than better. We have called for a dialogue but, for reasons that I understand, that dialogue has been limited. I noted that, at the end of October, the United States Navy Fifth Fleet was anchored off Bahrain, not because I think it intended to intervene but as a show of support. Can the Minister tell us whether a co-operating force of the United Kingdom and the United States—a diplomatic force, not a military one—might, if it took a sufficiently firm and determined view, have more impact than all of us trying to do it separately?
Baroness Warsi: That is something that I will take back. However, I can assure the noble Lord on our bilateral relationship. Earlier this week we set up a joint working group and political and diplomatic reform and assistance with human rights are central to it. We hope that we can use that working group as the basis for some of these more serious discussions.
Partnerships (Prosecution) (Scotland) Bill [HL]
Motion to Refer to Second Reading Committee
3.37 pm
Moved By Lord Wallace of Tankerness
That the Bill be referred to a Second Reading Committee.
Justice and Security Bill [HL]
Report (2nd Day)
3.38 pm
31: Before Clause 6, insert the following new Clause—
“Application for public interest immunity
(1) In any relevant civil proceedings in which the Secretary of State considers that—
(a) a party to the proceedings, whether or not the Secretary of State, would be required to disclose material in the course of the proceedings;
(b) such disclosure would be damaging to the interests of national security; and
(c) the interests of national security outweigh the public interest in the fair and open administration of justice,
the Secretary of State must make an application for public interest immunity under this section.
(2) An application for public interest immunity under this section must be made by the Secretary of State issuing a certificate relating to the individual documents in question and giving reasons why, in the Secretary of State’s view, disclosure of each relevant document would be damaging to the interests of national security.
(3) The court must, when deciding whether the material attracts public interest immunity on application under subsection (1), weigh the degree of harm to the interests of national security if the relevant material is disclosed against the public interests in the fair and open administration of justice.
(4) The court shall, in conducting the balancing exercise required under subsection (3), consider whether any of the following procedures may mitigate any harm claimed to the interests of national security so as to enable disclosure or partial disclosure of material subject to an application under this section—
(a) redaction;
(b) orders for anonymity;
(c) disclosure subject to confidentiality undertakings;
(d) hearings in camera;
(e) restrictions on reporting;
(f) restrictions on access;
(g) restrictions on the use of the material.
(5) If, after conducting the process set out in subsections (3) and (4), the court concludes that the balance of the public interest lies in excluding any material, the court must uphold the application for public interest immunity made by the Secretary of State in relation to that material.
(6) Where any claim by the Secretary of State for public interest immunity is upheld the court must appoint a special advocate pursuant to section 8.”
Lord Hodgson of Astley Abbotts: My Lords, I shall speak also to Amendments 32 and 44. I am grateful to the noble Lord, Lord Dubs, for putting his name to these amendments.
We come now to Part 2 of the Bill, which is concerned with closed material procedures. They are a new development in UK civil courts and the proposal has not proved to be uncontroversial. We discussed the challenges of CMPs extensively in Committee in July. I am aware that noble Lords have tabled a number of amendments in this group, which will enable a wider discussion of this important issue, so I will cut to the chase. If in cutting to the chase as a non-lawyer I trespass on some legal niceties, I apologise in advance.
My concerns about closed material procedures can be grouped under two main, broad headings. The first is the issue of fairness. Can a trial in which the accused does not have an untrammelled ability to test fully the evidence against him, interacting as appropriate with the best legal advice, ever be fair? The issue of fairness is one that I shall return to and consider in more detail when we examine the role and duties of the special advocate and consider the rules of court.
My second general concern is what might be described as the danger of mission creep. It is on this that Amendments 31, 32 and 44 focus. Having heard from my noble and learned friend on the Front Bench, and having listened carefully to the powerful and informed speeches of the noble Baroness, Lady Manningham-Buller, I accept that there may be cases where a closed material procedure is required. However, on all the evidence that I have read, it would be a rare event indeed. I have no doubt that my noble and learned friend on the Front Bench and the Government believe that the procedure would be used only very occasionally. However, times change, Ministers change, Governments change and, above all, circumstances change, and with those changes may come—not necessarily will come—new approaches. My concern is the risk that what begins as a rare event will over time morph into the default option.
I would like to see enshrined in the Bill a set of steps—hurdles, if you like—that the Government of the day will have to clear before they can resort to a CMP. The first is a requirement to go through the public interest immunity procedure, from which the judge can reach a balanced conclusion on whether the interests of national security require a closed court. Amendment 31 would insert a new clause at the beginning of Part 2 requiring a PII application to be made in any case where a CMP is envisaged. It would set up a series of requirements for making such an application. Amendment 32 lays down a further series of tests to be met in associated court proceedings. Amendment 44 would prohibit the use of CMPs where a claimant’s loss of liberty may result.
I will briefly outline one or two of the key provisions in the amendments. Subsection (1) in Amendment 31 would require the Secretary of State to make a PII application in any case where he considered that evidence would be disclosed that would damage national security, and where that concern outweighed the key public interest in open and natural justice being done. Subsection (2) would ensure that the Minister had to certify why disclosure of each document was withheld; it states that each certification will have to be considered individually by the court. This would enable the judge
to balance the competing interests of national security and open justice—what I am told is called the Wiley balance.
Subsection (3) would give the judge a crucial judgmental role and is in contrast to what some have called the judicial straitjacket in Clause 6. As highlighted in our debate in July, the PII system does not enable a judge to rely on material that is seen by one party and not another. As a general rule, it does not take place in secret. In this way, national security can be protected while ensuring fairness, transparency and equality of arms. It is worth remembering also that, unlike CMPs, PII is not an all-or-nothing process. A wide range of tools is available to judges, including the use of redactions and in camera hearings, to ensure that justice can be done while national security-sensitive information, such as the names of agents or their operating techniques, is excluded. My noble and learned friend on the Front Bench said that a first-stage PII process would be costly and illogical. However, we have been reassured by the special advocates that this is not right and that it is CMPs that are likely to prove costly and time-consuming—in addition to their other, controversial qualities.
3.45 pm
Finally on Amendment 31, subsection (6) proposes the appointment of a special advocate as soon as the court has determined the PII procedures. It is linked to Amendment 32, which would enable either party to apply for a CMP. For this right to have any meaningful effect, a claimant must surely be advised by an advocate acting for him whether or not it is in his interests to apply for a CMP. If this is not permitted and no one from his side has seen the excluded material, he would indeed be in a blind spot when deciding whether to exercise his right or not.
Amendment 32 makes additional provisions regarding court proceedings and covers much of the same ground in another form. In essence, it seeks to increase judicial discretion, ensure as far as possible the right of challenge and achieve a proper balance of competing interests between open justice and national security. However, it opens up the possibility of any party applying for a CMP. At present, only the Secretary of State can apply. Why should that be so? If I were to believe that my case would be strengthened by disclosure of material that could be heard only in a closed court, why should I not be able to apply for a CMP to enable it to be heard?
In summary, the amendment seeks to address the issues revealed in the following exchanges. David Anderson, the head of the special advocates, was asked by the Joint Committee on Human Rights:
“Does Part 2 of the Bill contain the sorts of conditions that you had in mind to ensure that a CMP is resorted to only in cases of strict necessity?”
Martin Chamberlain of the special advocates said:
“The one respect in which I think the Bill is problematic, even if, contrary to the view that we have expressed, you think it is a good idea to have Closed Material Procedures in civil litigation, is that the safeguards that it had been reported were present in this Bill are, on close analysis, in fact not present”.
I am not a lawyer and my career has been in finance and the City. In the City, when considering how to proceed in a particular transaction, many of us—sadly, evidentially, not enough of us—place a good deal of reliance on what I call the smell test. Behind the technical requirements, the fine words and the policy pronouncements, does what is proposed smell right? For me, in its present form, the Bill fails that smell test. I am far from alone in that view. On Monday, the Times leader stated:
“If this Bill were to become an Act in its current form, those feeling that they had suffered a grave injustice at the hands of the Government would feel they had suffered another at the hands of the courts. That is an even more serious proposition. They would be told that their case had been rejected but not why, that allegations had been made against them but not what, that a case had been made on their behalf but not how. This is simply not acceptable. If the Government feels that there really is no other way of winning compensation cases than this proposal then it is better that it loses the cases, even to those who do not deserve to win them. There is no point in being naive. Rejecting closed courts could sacrifice money to very bad people unjustly. But it is better that than to sacrifice the founding principles of liberty”.
Lord Pannick: My Lords, Amendments 36 to 38, 40 and 47 to 49 are in my name and the names of the noble Lords, Lord Lester of Herne Hill and Lord Beecham, and the noble Baroness, Lady Berridge. Amendment 50 has the same signatories save that the noble Baroness, Lady Kennedy of The Shaws, is a substitute for the noble Lord, Lord Beecham, for reasons that I should explain. The amendments, like all the amendments to Part 2 in my name, seek to implement the report published last week by the Joint Committee on Human Rights, a committee on which the noble Lord, Lord Lester, and the noble Baroness, Lady Berridge, serve as members. The amendments also seek to implement similar conclusions of your Lordships’ Constitution Committee, of which I am a member.
Noble Lords will know very well that strong views are held on all sides of the House about whether closed material procedures should be introduced. This is a difficult and sensitive issue. The amendments in my name do not—I repeat, do not—seek to resolve the dispute as to whether noble Lords should approve the introduction of closed material procedures. We will address that issue when we come to Amendment 45, in the name of the noble Lord, Lord Dubs, and other noble Lords. The amendments in my name—particularly the amendments in this group—seek to ensure that if CMPs are to become part of our law, careful controls are needed to limit their application to ensure balance and fairness. In particular, they seek to ensure that a judge in an individual case should have a discretion, not a duty, to order a CMP. The judge should ask himself or herself whether or not a CMP is needed in a particular case as a last resort if there is no other effective means of ensuring both justice and security.
There are three reasons why your Lordships’ House should adopt the approach that this should be a last resort with judicial control and discretion. First, CMPs are a radical departure from common law principles, which we all respect and approve, that a party to a case has a right to see the evidence against him and has a chance to answer it. This is a departure—it may be a
necessary departure—from the principle of transparent justice. The Joint Committee addressed this issue at paragraph 16 of its report. It said:
“All of the evidence that we have received, apart from that of the Government, regards the proposals in the Bill which extend closed material procedures into civil proceedings generally as a radical departure from the United Kingdom’s constitutional tradition of open justice and fairness. We agree”.
The second reason why we should be very careful and impose controls on CMPs is that a CMP is inherently damaging to the integrity of the judicial process. Judicial decisions are respected precisely because all the evidence is heard in open court and can be reported, subject to exceptions, and judges give a reasoned judgment that explains their decision.
The third reason why a fair balance involving judicial discretion is so important is that the Government’s own rationale for introducing CMPs is not the protection of national security. It is very important to be clear about this. The law already has effective means of ensuring that any information the disclosure of which would damage national security does not have to be revealed in open court. Those are the rules of public interest immunity. The Government say that CMPs are needed not to protect national security but to ensure fairness to them as defendants and to ensure that as much evidence as possible can be heard by the judge. There may or may not be strength in that argument—these amendments do not address that issue—but if the Government’s own case for CMPs is promoting the fairness and efficiency of civil proceedings, then this House should ensure that the CMP provisions are fair and balanced.
To turn to the specific amendments, Amendment 37 provides that the judge should order a CMP only if satisfied that fairness cannot be achieved by any other means. If there is another solution, such as supplying the gist of the evidence to the claimant, using anonymity orders, or security witnesses giving evidence from behind screens, all of which happens now, and if those methods enable the evidence, or as much of it as possible, to be disclosed to the claimant, it is surely wrong in principle for the law to require the judge to move into a secret hearing. This was the view expressed to the Joint Committee by Mr David Anderson QC, who is the independent reviewer of terrorism legislation. The Joint Committee quoted his views in paragraphs 66 and 67 of its report. Perhaps I may remind the House of what Mr Anderson said:
“I said that I thought that a CMP could be tolerable in these sorts of cases—but only if certain conditions were satisfied. One was that a CMP should be a last resort to avoid cases being untriable”.
At paragraph 67 the Joint Committee adds:
“The Independent Reviewer in his more recent evidence indicated that he would be supportive of building into clause 6 of the Bill a requirement that a CMP only be permitted as a last resort: as he put it, a CMP should be available only if ‘there is no other fair way of determining the case’”.
That was the recommendation of the Joint Committee.
Amendments 38 and 40 have a similar objective. They would allow the judge, when he or she considers whether to impose a CMP, to have regard to the possibility that another solution is available through
public interest immunity. Public interest immunity is the doctrine of law that keeps out of open court material the disclosure of which would be damaging to national security. But public interest immunity is not an all-or-nothing matter. As I have said, it may enable some of the material to be disclosed—the gist or essence of the case—and documents can be redacted to preserve what is genuinely confidential. I suggest that the existence of PII needs to be taken into account by the judge in deciding whether to move into secret session. I know that the noble Lord, Lord Marks, is concerned about Amendment 38, but it is important to remove Clause 6(3)(a) so that the judge can consider other means of addressing the problem. Amendments 38 and 40 were recommended by the Joint Committee at paragraph 62 of the report. I will not spend time on it, but again this was a recommendation from the independent reviewer, Mr Anderson. All these amendments are necessary if CMPs are not to be imposed unnecessarily and disproportionately.
Amendments 48, 49 and 50 would ensure that the litigant excluded from the open hearing by the CMP was always given at the very least a summary and the gist of the closed material sufficient to enable him to give instructions to his legal representatives and the special advocates. Again, that was recommended by the Joint Committee, which referred to the supporting evidence on that issue from the former reviewer of terrorism legislation, the noble Lord, Lord Carlile of Berriew, and to the views of the current reviewer, Mr Anderson.
Amendments 36 and 47 seek to ensure that, before ordering a CMP, the judge should ask whether the degree of harm to the interests of national security if the material is disclosed outweighs the public interest in the fair and open administration of justice. The Joint Committee stated in its report, at paragraphs 69 to 72, that the Bill as currently drafted wrongly precludes any balancing at all, however limited the national security interest may be, however substantial the damage to fairness if a CMP is ordered and, indeed, however peripheral the national security evidence may be to the issues in the case. That cannot be right; we need some degree of balancing here. I emphasise that the effect of these amendments, if approved, would not be that any evidence touching on national security would have to be disclosed—PII would prevent that—but simply that the judge could not order a closed hearing unless this balance is satisfied and the Government would therefore be unable to rely on the evidence.
I know that the noble Lord, Lord Beecham, is not persuaded yet by Amendment 50 and that the noble Lord, Lord Marks, is also concerned about it. It might be better if, in due course, I do not move Amendment 50 today but consider with others, in the light of the amendments, if any, that are approved by the House today, whether it is appropriate on Third Reading next week to look again at what is now Amendment 50 for the purposes of tidying up the legislation. I hope that that approach—on Amendment 50—commends itself to the House.
Each of the amendments in this group in my name will help to ensure that, if we are to have CMPs, there are proper limits, proper controls, a proper balance and
judicial discretion, and that CMPs are a last resort in what I suspect will be the very small category of cases where there is no other fair solution that maintains national security. At the appropriate time, and unless the Government are prepared, as I hope they will be, to make concessions even at this late stage on these matters, I intend to test the opinion of the House on the amendments in my name.
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Lord Beecham: My Lords, I thought it might help the House to take the unusual step of speaking early in the debate on behalf of the Opposition in order to make our position clear in relation to the amendments in this group, in particular those that emanate from the report of the Joint Committee on Human Rights. I note, incidentally, that yesterday the Deputy Prime Minister endorsed many of its recommendations. In answer to a question from my right honourable friend Sadiq Khan, he said:
“I am very sympathetic to a lot of what the Committee says, and the Government are considering its amendments with an open and, in many respects, sympathetic mind. I hope that we will be able to amend the Bill to allay those concerns in line with many of the recommendations made by the Joint Committee on Human Rights”.—[
Official Report
, Commons, 20/11/12; col. 428.]
I do not know whether the noble and learned Lord would be able, later in the debate, to indicate whether and when those expectations that the Deputy Prime Minister encouragingly aroused yesterday will be fulfilled. We already have some amendments that would not quite meet the Deputy Prime Minister’s intentions as expressed yesterday.
During Second Reading, I referred to the difficulty that we and Parliament as a whole face in calibrating the balance between the two principles embodied in the Bill’s title of “Justice” and “Security”. It has become increasingly clear that completely reconciling those competing desiderata is effectively impossible. We of course accept that the Government have genuine concerns about national security, even though, perhaps understandably, the Bill does not define the term, as was pointed out by a number of Members of your Lordships’ House, including the noble Lords, Lord Hodgson and Lord Deben, and the noble Earl, Lord Errol, during Second Reading. The noble Marquess, Lord Lothian, took the view then about national security that, “You know it when you see it”. That might be thought to be uncomfortably close to implying that security is in the eye of the beholder; in this case, a government beholder. It is impossible to provide a comprehensive statutory definition of what constitutes national security, but some guidance during parliamentary debates, of which later judicial notice might be taken, would be helpful in at least indicating areas that would fall outside the definition.
The Government’s other main concern, of course, is the difficulties that they face in presenting their case without the protection of closed proceedings, coupled with the cost—both reputational and financial—of having to settle cases in order to avoid disclosure. However, as we have heard repeatedly during the passage of this Bill through the House, the proposals constitute a radical departure from the cornerstone of our legal system: the right of a party to know, and to
challenge, his opponent’s case. This right has been emphasised in the clearest terms in a number of judgments to which reference was made earlier in these proceedings, such as those of Lord Kerr and Lord Neuberger. Moreover, although the Government do not accept the point, they also appear to clash with the provisions of Article 6 of the European Convention on Human Rights, as powerfully argued by John Howell QC in his opinion for the Equality and Human Rights Commission. I understand that the Government are not prepared to disclose the legal advice that they have obtained on this point, effectively invoking their own closed material procedure on the issue.
The Government’s proposals in themselves constitute a significant reputational risk to our system of justice. In passing, it is interesting that, just as we are debating this Bill, the Government are announcing serious changes to the system of judicial review that are designed to make it much more difficult for their decisions in a whole variety of areas to be challenged. Your Lordships might think that a disturbing pattern seems to be emerging.
We are told, in relation to CMPs, that a number of claims are now pending. However, interestingly, the special advocates were denied access by the Home Secretary to any of the files, despite the independent reviewer of terrorism legislation, Mr David Anderson QC, upon whom the Government seem selectively to rely, supporting that request. We have recently seen in the Daily Mail an attempt to imply that the Government were facing the prospect of paying out millions to settle cases involving suspected terrorists, although even the Daily Mail, editorially, seems to be opposed to the Government’s proposals. But of course the procedures need not involve claimants of that description. They could apply to all civil claims where a national security justification might be advanced. So claims by a member of the Armed Forces or security services, or an innocent victim of what is euphemistically called “collateral damage” arising from military action, would also be caught by this procedure.
There is also the paradox that the procedures would not apply to inquests, so that justice will be seen to be done only where there has, sadly, been a fatality. Yet as my right honourable friend Sadiq Khan pointed out in his letter to Mr Clarke, the 7/7 inquests were conducted along lines very similar to those advocated by the Joint Committee and reflected in the amendments that we are now debating, without any damage ensuing.
The interests of national security can be protected by means other than simply relying upon closed material procedures. The Opposition support most of the suite of amendments effectively emanating from the Joint Committee report, seven of which we have subscribed to. The thrust of these amendments is to vest greater discretion in the judges, who are not quick to reject the Government’s case, and to facilitate a balancing of the public interest in justice and the interests of national security in a way that, despite the Government’s rather airy protestations, the Bill as drafted does not.
Amendment 33 extends the possibility of an application for CMP to either party and on the court’s own motion. Amendment 40 refers to the possibility of utilising the public interest immunity procedure under
which, as we have heard from the noble Lords, Lord Hodgson and Lord Pannick, a variety of workable steps can be taken—gisting, redaction, confidentiality rings, closed hearings—to protect material that should not be made public, before recourse is had to closed material procedures as a last resort. Incidentally, Mr Clarke’s statement on Monday’s “Today” programme that the judge should not have the discretion to have, in public, evidence that puts at risk the lives of agents or intelligence services, was grossly misleading in implying that this would be a consequence of accepting amendments of this kind. The measures I have just mentioned would prevent that happening.
Amendments 35 to 38, 40 and 47 enshrine both the judicial discretion which many have criticised in the course of debates and the balancing principle which is at the heart of the Joint Committee’s proposals. Taken together, these amendments place the judge firmly in control of the process, with the means to balance the interests of justice and security, protecting from disclosure what is essential not to be made public. Despite the protestations of Ministers, the Bill in its current form does not meet these critical objectives.
We have some difficulties, as the noble Lord, Lord Pannick, has referred to, with Amendments 48 to 50, particularly the insertion of the phrase, in Amendment 50,
“so far as it is possible to do so”,
in the proposed requirement to ensure that a summary of material, disclosure of which the court does not authorise, does not itself contain material damaging to national security. I for one am not sure what the words import or how far they would extend. We would wish to explore this issue further, perhaps at Third Reading, as the noble Lord indicated, or even later when the Bill is considered in the House of Commons.
In his letter of 13 November, the noble and learned Lord, Lord Wallace, who has a deservedly high reputation for legal expertise and fair-mindedness, made some minor concessions and one major one. The latter restricts the order-making powers to extend closed material procedures, and another requires notice to be given to the other party of an intention to apply for a CMP. Those concessions are welcome and I am grateful to the noble and learned Lord, and indeed the Government, for them. Interestingly, the noble and learned Lord’s letter also touches on the court’s inherent right to strike out a claim if highly relevant sensitive information could not be considered—itself a powerful tool with which to protect national security without the need for this Bill.
Outside the Government, there appears precious little support for the sweeping changes the Government propose. Civil liberties organisations—as one might expect, perhaps—the Law Society, the Bar Council, even Monday’s editorial in the Times, which has been quoted, and some leading Conservative Members of Parliament such as David Davis and Andrew Tyrie, unite in expressing profound concern at the changes that this Bill would bring about in our system of justice.
Like many other Members of this House, I travel to and from it by the Underground, where passengers are regularly enjoined to “mind the closing doors”. I hope we bear that injunction in mind today. We must ensure
that the doors of justice are not closed in the way this Bill seeks to do, however genuine may be the reasons that prompt it.
We learnt a few days ago the identity of the next Archbishop of Canterbury, the right reverend Prelate the Bishop of Durham, whom all Members of your Lordships’ House, of all faiths and none, will join in congratulating and wishing well. The announcement put me in mind of another archbishop, Thomas à Becket, whose life and death were the subject of TS Eliot’s Murder in the Cathedral, in which the following lines occur:
“The last temptation is the greatest treason:To do the right deed for the wrong reason”.
I urge the House to support the amendments backed by the Opposition, moved by the noble Lord, Lord Pannick, and in so doing not to succumb to the alternative temptation of doing the wrong deed for the right reason.
Lord Lester of Herne Hill: My Lords, I speak as a member of the Joint Committee on Human Rights. I intend to make only one speech, if I can get away with that, and to make it as brief as I can.
The issues raised in this debate are of profound importance to the rule of law in a parliamentary democracy. Part 2 of the Bill has aroused huge and justifiable controversy. It was condemned root and branch by my party at its annual conference. Many Liberal Democrats would ditch Part 2 in its entirety as illiberal, with or without procedural safeguards. In her letter to the Times last week, the noble Baroness, Lady Manningham-Buller, explained that she remains of the view that inviting the court to look at all the relevant secret material and letting it decide what, if any, weight to put on it is an advance over where we are today. I agree with her.
The purpose of these amendments, recommended unanimously by the Joint Committee on Human Rights, is to achieve that result and to make Part 2 comply with the fundamental principles of justice and fairness protected by the common law. We hope that the Minister and the House will agree that our report was thorough, fair and balanced, and that our recommendations are put forward to improve, not to wreck, Part 2.
I shall not delay and weary the House by reading the relevant parts of the JCHR report into the record. The noble Lord, Lord Pannick, has already referred to the relevant parts. The report speaks for itself, and I would suppose that anyone who takes part in this debate will have read the report in its entirety.
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Our constitutional system depends upon the wise exercise of the powers of both Houses of Parliament to ensure that the laws that it enacts do not undermine the basic civil rights and liberties of the individual and the cherished principles of justice protected by the common law. The chairman of the Bar Council, Michael Todd QC, and the president of the Law Society of England and Wales have written to the Government describing secret trials and withholding evidence as reminiscent of,
“repressive regimes and undemocratic societies”.
“While HM government rightly takes a strong stance in respect of the importance of the rule of law globally … this bill will adversely affect the UK’s international reputation for fair justice”.
“We believe that the plans for secret courts erode core principles of our civil justice system and will fatally undermine the courtroom as an independent and objective forum in which allegations of wrongdoing can be fairly tested and where the government and others can be transparently held to account”.
I agree with those strong views, unless we are able to write really effective safeguards into Part 2 as recommended by the JCHR.
Many human rights bodies have urged us to vote to ditch Part 2 of the Bill, and that view is supported by the JCHR’s reference to the absence of sufficient evidence to justify the measure. Some of them advocated the introduction of CMPs in the 1990s. The JCHR has recommended that the wiser course is to hedge rather than to ditch; that is, to amend the Bill to make it compatible with the principles of natural justice and fairness and the rule of law.
That is our common purpose in moving these amendments today, with support from all sides of the House. If we failed to achieve those changes, the case for ditching Part 2 would become very much stronger, but we hope that it will not be necessary to wield that blunt instrument of removal of Clauses 6 and 7. If the JCHR amendments are accepted by the House, I will be unable to support the amendment of the noble Lord, Lord Dubs, because it would nullify the amendments that we would have made to Clauses 6 and 7.
Closed material procedure is of course less than perfect justice. It came into our law as a result of the Strasbourg court judgments and the arguments presented to the court. In Chahal, the court explained in its judgment that it attached significance to the fact that, as the interveners pointed out, in Canada,
“a more effective form of judicial control has been developed in cases of this type. This example illustrates that there are techniques which can be deployed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice”.
The interveners in Chahal included Liberty and Justice, the AIRE Centre and Amnesty International. They were in that case advocating a Canadian-style closed material procedure, because judicial review did not constitute an effective remedy in cases involving national security.
In Tinnelly and McElduff, in which I represented the applicants, the Strasbourg court noted that in other contexts it had been found possible to modify judicial procedures in such a way as to safeguard national security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice.
This is what led to the SIAC Act of 1997, which I supported in this House and which my noble friend Lord Thomas of Gresford opposed, as he does today. CMP involves less-than-perfect justice, but it is vastly better than the previous situation where judicial review was unable to provide effective judicial control in national security cases, and it is a procedure supported at the time by civil society organisations.
As the noble Lord, Lord Reid of Cardowan, the noble and learned Lords, Lord Mackay and Lord Woolf, the noble Lord, Lord Carlile of Berriew, the noble Baroness, Lady Neville-Jones, and the noble Lords, Lord West of Spithead and Lord Faulks, observe in their letter to the Times today, CMPs are not ideal, but they are a better option where the alternative is no justice at all. I agree. However, it is unacceptable to extend that procedure to civil claims against the state without adequate safeguards of fairness and civil justice administered by the courts.
It is well known that the driving force behind that part of the Bill emanates from the United States Government and the Central Intelligence Agency, who misunderstand the fine record of our courts in protecting national security within the rule of law. As someone who learnt the value of the American Constitution and Bill of Rights half a century ago at Harvard Law School, I hope and believe that our debate today on Part 2 will not harm our special relationship or the vital co-operation between our intelligence and security services. I should like the Minister to confirm that in his reply.
Reference has already been made to the right honourable Kenneth Clarke’s interview on the “Today” programme on Monday, when he described our amendments as legalistic. That is an odd criticism for the former Justice Secretary and Lord Chancellor to have made. The amendments are designed to keep faith with the fundamental principles of justice and fairness in our common law system, within the rule of law, and national security protected by the independent judiciary. Ken Clarke also emphasised the importance of saving taxpayers’ money from being spent on settling claims against the state that could be saved if the claims were determined by the CMP procedure. Quite apart from the unfair advantage that the scheme as it stands would give to the Executive and their agents, the central question is not whether CMP is objectionable, but how it can be made to operate fairly, entrusting full discretion to the judge in charge of the case.
We are faced with a choice of evils. The JCHR approach is an attempt to achieve a fair balance. I hope that there will be support for our amendments across the House.
Lord Dubs: My Lords, briefly, I support the amendments. I make one specific comment. Having listened to the speeches of my noble friend Lord Beecham and the noble Lord, Lord Pannick, I say simply that there is a very thin line between their arguments in support of the amendments and Amendment 45 and the other group, which seek the removal of CMPs. The line is so thin that I believe that I could use the case of the noble Lord, Lord Pannick, in particular, which he put so eloquently, to come to a different conclusion: to support our amendments. That is an argument for later. In the mean time, I hope that the House will support the key amendments when we come to votes.
Baroness Berridge: My Lords, I speak as a member of the Joint Committee on Human Rights and as the fourth name on this group of amendments. Normally, I take very seriously the advice given by our Government
—so much so that I took the advice of the Government’s Chief Medical Officer early last week not to seek antibiotics for a cough and cold, so I apologise. I am living to regret following that advice and I apologise for any resultant disturbance to your Lordships’ proceedings this afternoon.
It is the judge’s court, not the Government’s, so it should be the judge’s decision or discretion as to the fairest way to proceed with the case before him or her—whether that is by using public interest immunity with all its flexibility, as outlined by the noble Lord, Lord Pannick, or by using a closed material procedure.
It is so important that this House stands firm on that principle, not only to protect the credibility of the judicial process but to safeguard the interests of the other party to that litigation. The Government, who are one party to the litigation that we are considering, usually have control over the other place, so it is only this Chamber that can protect the other party to the litigation and keep the important procedural powers in the hands of the judge by your Lordships accepting this group of amendments.
These amendments, particularly Amendment 37, reflect the view of David Anderson, the independent reviewer of terrorism legislation when he stated to the joint committee that this ensures that cases are not tried in closed material procedure that could otherwise be done under public interest immunity, nor will cases be struck out that can be tried in a closed material procedure. The judge must retain a wide procedural discretion, which, if these amendments are accepted, I accept may mean that our judiciary will begin a new balancing act: balancing the unfairness of the exclusionary nature of PII against the unfairness of the closed material procedure, which leads to the claimant and his or her lawyer being absent. I believe it is very important to retain this judicial discretion and to leave these matters in the hands of our judiciary, who have shown that they can be entrusted with such fine balancing acts. My name is therefore on these amendments.
Lord Lloyd of Berwick: My Lords—
Lord Morgan: Thank you. I am very anxious to hear the noble and learned Lord, Lord Lloyd, too. I will not speak for very long. I am not a lawyer and I sit on the Back Benches, as I always have, where one is required to vote but not necessarily to think. Yet occasional flickers of thought agitate our minds. This clause is deeply unfair and the amendments are profoundly right. It seems characteristic of what has happened to liberty in this country over many years with, I am sorry to say, the endorsement of all three major parties: the tilting of the balance away from the free individual—the citizen—towards the state, reinforcing raison d’état contrary to the common law. The element of secrecy adds something new that we have not had since the time of the Tudors. It was specifically condemned in the Petition of Right in 1628, which is quite a long time ago.
This clause has caused outrage among lawyers, as we have heard, and civil liberties groups. It has been strongly criticised by the Joint Committee on Human
Rights. Why? Because it is totally one-sided. It is a closed court, with the litigants, lawyers and the press excluded. Only the lawyers representing the Crown can communicate in private with the judge. The litigants are not aware of the content, tone or substance of those conversations. They are protected inadequately by special advocates, because their powers are limited, and the interests of litigants in civil cases are not properly defended as, if I may say, people accused of criminal activity under the criminal legal system are protected. Public interest is cited: a term defined so broadly almost as to lose all meaning. It shows that the normal judicial process is a fair, balanced and adversarial system when both sides can present their case. These aspects are being marginalised and sidelined. As previous speakers have said, this is a process that has now been launched and is very likely to increase and multiply.
These amendments should go further—I would like to see the whole clause disappear—but will undoubtedly improve these otherwise dismal procedures. This reflects a welcome tilt towards libertarianism, including from my own party, which has not been notable in that sphere in recent years. I am very glad to welcome that under its present leadership. The Secretary of State would be compelled to present a case for a public immunity initiative; the court would be able to consider it dispassionately and calmly without being steam-rollered by the Government, as would otherwise happen; the litigants could have proper legal discussions with their advocates.
At the moment, there would be no real authority accorded to judges, whose hands would be tied by the terms of the Bill. They would have little choice other than to accept the submissions of the Government, so these amendments are deeply valuable—not simply to those involved with the law but to any citizen of this country. This would enable the courts to consider and to estimate the comparative balance between the rights of a free individual as against the damage to national security, which might have to be more carefully defined. To that extent, these amendments make an odious Bill somewhat less repulsive. The Minister is a very fair-minded man who has the respect of all Members of the House. He has listened to strong arguments against this clause from all sections of the House, and I am sure he will consider them fairly and courteously.
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Lord Lloyd of Berwick: I fear that I may disappoint the noble Lord, Lord Morgan—but I hope not. I have no difficulty at all with Amendments 37 and 40, which were tabled by the noble Lord, Lord Pannick, but I have some difficulties with Amendments 34 and 35, which we are going to come to in a later group. Those are the amendments that would substitute the word “may” for “must”. They are the basic amendments that would give the judge a discretion rather than imposing on him a duty in certain circumstances.
Amendment 36, which has been spoken to by the noble Lord, Lord Pannick, spells out how that discretion is to be exercised. It states that the judge must balance,
“the degree of harm to the interests of national security”,
“the public interest in the fair and open administration of justice”.
It is now many years since I heard a PII application. It was never an easy balancing operation, but at least with a PII application one was balancing a particular piece of evidence and how much harm it would do to the national interest, on the one side, and how much good it would do to the case of one party or the other, on the other side. It was difficult but it was a fairly specific balancing operation. I find much greater difficulty with the judge being required to take account of,
“the public interest in the fair and open administration of justice”.
I cannot see how he can possibly evaluate that in the abstract. In one sense, it might be said to overwhelm everything else, of course; but on the other hand, how much weight can be given to that? Amendment 36 is very different from the operation that one used to, and still does, carry out in an ordinary PII application. I am not happy with Amendment 36 and that sort of discretion being given to a judge.
Baroness Neville-Jones: My Lords, the focus of the Bill is to enable this country to find a means of dispensing justice while protecting national security. National security has not had much of a hearing so far this afternoon. I shall explain why I do not think that public interest immunity is any longer an adequate safeguard in respect of national security. Indeed, I would go so far as to say that, at the moment, the PII regime prevents justice being dispensed consistent with security. Pace the noble Lord, Lord Beecham, I do not think that this is an impossible goal.
When national security-sensitive evidence which may be important to the claimant’s case—we all agree about that—is excluded from the courtroom by a PII certificate and the judge may not take it into account in coming to a judgment, there are two consequences: the claimant is unable to prove his case and the Government cannot defend themselves properly. To protect national security evidence from disclosure in open court the Government are being forced to agree substantial settlements, with unjustified reputational damage ensuing. The inability of our legal system to provide adequate recourse to parties in civil dispute brings no credit to it and we need to do something to mend it.
Amendment 40 would insert PII as a first stage in the legal process. This would undoubtedly greatly increase the length of proceedings and costs without necessarily guaranteeing that evidence would be heard. I cannot help feeling that this is pointless. Moreover—and this is a real problem—PII impinges adversely on the claimant’s rights and, contrary to the assertion of the noble Lord, Lord Pannick, since the case concerning Binyam Mohamed, PII has also proved to be a less than total protection for national security sensitive information. We do not now have a safeguard in PII to protect national security. It has really changed the ground. In that case, the court ordering disclosure of American material despite the Government’s PII certificate has damaged our intelligence relationship with the allies, especially, although not only, with the United States. We have this judgment from the independent reviewer of terrorism, David Anderson QC, who I know has been quoted by other noble Lords. However, I know that, on this point, he is right. It is a very serious matter if our allies can no longer trust our ability to keep secret intelligence passed to us secret.
The fact that we have not had a major terrorist incident in this country since 7/7 is not the result of the conversion of the enemy but of the successful diligence of our intelligence and security services in protecting us. They depend on vital—and I mean vital—sharing of intelligence with allies. The effect of recent cases in civil courts, and the numbers of these are growing, has now spread into the core security interests of the UK. Some noble Lords talked about the core security interests of this country in justice, and I entirely agree. However, we also have another interest to protect which is important to us. We are now damaging the core security interests of the UK. If we do not find a way, as part of a responsible national security policy, of restoring credibility to our promise to protect information given to us, we will find our intelligence relationships further eroded over time and our national security eroded with them.
It is not just the control principle that is at issue, it is UK national security. This cannot be subjected to balancing tests of the kind set out in Amendment 47 —and Amendment 46, for that matter—as if it were somehow exchangeable with other goods. Lives are not at stake in civil proceedings but they are—they can be—in national security.
Closed material proceedings are of course second-best to completely open court proceedings. There is nothing that divides anybody in this House on that point; we all agree. The problem, however, is that we are not in an ideal world. Only the court can decide to allow closed material proceedings under the Bill, and presumably the judge would not permit that if they did not think that there was a substantial national security interest to be protected and they had not been convinced by the submission of the Secretary of State. In that case, this issue would not arise. However, if it does arise and the court agrees that there should be CMP, it will permit a full testing of the claimant’s case. The Government will be able to defend themselves in a manner that protects sensitive national security information.
The Bill also provides for gisting to the claimant. This is much better than the absence of justice and the potential prejudice to national security at the same time. Amendments 48, 49 and 50 would destroy the balance that the Bill would bring about.
Much has been made already of the Government’s proposals being “a radical departure” from our traditional norms. However, the closed material procedure is drawn from the procedure created by the previous Labour Government for the special immigration appeals courts which, I might say, Liberty was very influential in setting up, and which have been tested and accepted as compatible with the European Convention on Human Rights. The reality of justice there is demonstrated by the fact that the Government lose cases. Amendment 44 would bring some SIAC procedures into question, as well as rendering this Bill null and void.
I hope that this House will accept that this Bill is a balanced response to a difficult issue. I take seriously, along with other Lords, the need for safeguards, but I believe that many of the proposals on the Marshalled List go too far. I hope that this House will reject amendments which, far from improving the Bill, either remove or render ineffectual the purpose of closed
material proceedings. To use the words of the noble Lord, Lord Hodgson, I believe that this Bill passes the smell test.
Lord Wigley: I want to speak very briefly to Amendment 48, which has been grouped with these amendments. I do not accept that this tips the balance, as the noble Baroness suggested just a moment ago.
One of the most unsettling provisions of this Bill is contained in Clause 7, which provides that if a Closed Material Procedure is triggered, a court is not required to give the excluded party a summary of the closed material. Rather, the legislation, as drafted, requires only that the court should consider requiring such a summary to be given. In any case, Clause 7(1)(e) provides that the court must ensure that, where a summary is given, it does not contain material, the disclosure of which would be against the interests of national security.
If this clause goes through unamended, there will be no requirement to give excluded parties sufficient information about the case against them so that they can give instructions to their special advocate. Surely this is wrong, otherwise people could lose cases without being told any of the reasons why, which is an unacceptable situation in circumstances where the national security is not at stake.
Lord Marks of Henley-on-Thames: My Lords, I start by paying tribute to the Joint Committee on Human Rights for the very important work it put into producing the thorough and excellent report that gave rise to the amendments in the name of the noble Lord, Lord Pannick, and others.
The first question to be addressed in considering the introduction of CMPs to ordinary civil proceedings is whether the Government have in any way made out a case for their necessity. That is a matter upon which, as the noble Lord, Lord Pannick, pointed out, the Joint Committee found itself unpersuaded. However, if there are 20 such cases now, as figures recently released by my noble and learned friend the Advocate General for Scotland state, as well as the obvious prospect of an increasing number in the future, as the fact that the Government are a soft target for such cases becomes well known, that is a significant number, if a small one. In such cases, because the evidence has to be withheld altogether for the protection of national security—and it is worth reminding ourselves that that is what PII does—there can at present be no determination at all, and therefore no justice. That lack of justice has to be weighed against the damage that would be done to our civil justice system by the extension of CMPs to certain civil claims. CMPs are, as has been said, inherently unfair. They represent a serious departure from open justice, because the evidence cannot be tested by cross-examination in the ordinary way: by advocates acting on the instructions of their clients, who themselves have a full opportunity to know and meet the case against them. CMPs, therefore, represent a justice that is flawed. For my part, I think that to choose to have no determination at all in these cases, and to prefer no justice to flawed justice, would be the better choice, unless the safeguards for CMPs proposed by the Joint Committee are in place.
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The first essential safeguard is that there must be full judicial control and discretion. It must be for a judge to conduct the vital exercise of balancing the interests of national security against the public interest in open justice. While I have heard what the noble and learned Lord, Lord Lloyd, said about the difficulty facing judges in conducting that delicate exercise, I suggest that they are the best placed in this country to conduct that exercise. It should not be an exercise for government.
It cannot be right for the Secretary of State to form a view as to where the public interest lies, then to make an application, and for the statute to preclude the judge from saying that the Secretary of State is wrong in any case where it is established that there is some security-sensitive material, no matter how little or how central or peripheral to the case that material may be. In answer to the noble Baroness, Lady Neville-Jones, neither I nor my noble friend Lord Lester know of any case where a United Kingdom judge has prejudiced the interests of national security by ordering disclosure of material that should not have been disclosed.
It has been claimed by some members of the Government that the Bill allows the judge a reasonable discretion in Clause 7. I suggest that that is not the case. Without taking your Lordships through a detailed analysis, such an analysis shows that all that the judge can do is tinker with the detail once a Clause 6 declaration is made. That discretion is far too little and it comes far too late in the process. It does not give the judge any control over the decision of principle as to whether a CMP is warranted in a particular case.
The second safeguard, as Amendment 33 proposes, is that there must be equality of arms so that claimants may also benefit from CMPs, where taking into account security-sensitive material would help their cases. It is easy to envisage cases where the state might, genuinely in the national interest, wish to withhold from a claimant security material which might help prove his case; for example, because it would disclose details of activity by agents of the security services which are consistent with the claimant’s account of what had happened to him. In such cases, the special advocate should be able to advise the claimant, without jeopardising national security, that on the basis of material that the special advocate has seen, the claimant should apply for the material to be heard in a CMP. That is equality of arms.
Thirdly, it must be absolutely clear that the use of CMPs is available only as a last resort—as my noble friend Lady Berridge said, when all alternative procedures have been considered and rejected—where no determination of the case would otherwise be possible. Fourthly, summaries of the closed material should be sufficient to enable the excluded party to know as much as possible and to be able to give instructions to the special advocate to enable that special advocate to represent his interest as effectively as possible.
Fifthly, in every case the court, not the Secretary of State, should be bound to consider whether a claim to PII could have been made successfully to exclude the security-sensitive material. The noble Lords, Lord Hodgson and Lord Dubs, as the noble Lord,
Lord Hodgson, has explained, favour a rule that PII always has to be granted before any CMP application can be made. It may be that in the generality of the cases, that is the proper order. In that, I differ from the noble Baroness, Lady Neville-Jones. But the JCHR preferred to avoid this straitjacket approach, which might in some cases be impractical: the Al Rawi Guantanamo Bay case was said by the Government in the Supreme Court to be one such case because of the sheer weight and complexity of the documents involved. I accept the JCHR’s position on that point.
Finally, to ensure that the public has as much information as practical, the media must be told what they can be told about the working of the system and the issues and material in relevant cases as soon as the secrecy surrounding them has gone. All these safeguards are provided by the JCHR amendments, and I shall be voting for them today—and I hope that other noble Lords on these Benches will do the same. I take comfort from what my right honourable friend the Deputy Prime Minister said in the House of Commons yesterday, as the noble Lord, Lord Beecham, pointed out, to the effect that the Government will approach these amendments sympathetically.
I have just two caveats, to which the noble Lord, Lord Pannick, referred. The first concerns Amendment 38, which on its face appears to remove an important qualification in deciding whether material is disclosable for the purpose of Section 6(2). If, as the amendment suggests, you omit Clause 6(3)(a), the judge does not ignore the fact that the material that he is considering under Clause 6(2)(a) would not be disclosable if it were subject to PII. I am sorry that this is a technical point, but the effect is that he cannot then decide whether that material is within Clause 6(2)(a) if it would be subject to PII. If that analysis is right, that is the opposite of what I take the JCHR to have intended. In his reply to me, the noble Lord, Lord Pannick, indicated that there may be some ambiguity—and, if there is such ambiguity, perhaps my noble and learned friend the Lord Advocate could take it back and consider it.
The second concern, which I share with the noble Lord, Lord Beecham, concerns Amendment 50, which requires full summaries as would be required by Amendment 49, even where it is impossible to give such summaries without disclosing material damaging to national security. I agree with the noble Lord, Lord Pannick, that the best course might be not to move that amendment today but to take it away and bring it back at Third Reading. I hope that the Government might come back with an amendment that balances the need for summaries with the need to withhold such material as is damaging to national security. The amendment as it stands might jeopardise national security when other considerations favoured a CMP with summaries that are as full as possible.
In conclusion, it seems to me that with the amendments proposed by the Joint Committee, on balance the flawed justice represented by CMPs but safeguarded is better than no justice at all. Accordingly, if the JCHR amendments succeed, I will vote against Amendment 45.
Lord Phillips of Worth Matravers: My Lords, I find myself in familiar territory, as I sat in a judicial capacity on a number of appeals dealing with closed material, including Al-Rawi. Closed material is anathema to any court, and the Supreme Court always managed to deal with issues relating to closed material without looking at the material itself. I am, however, reluctantly persuaded of the need, in the interests of justice, for a closed material procedure in exceptional cases where the Government would otherwise have no alternative but to submit to a civil claim for damages because to defend it would necessarily involve putting into the public domain material that would cause disproportionate harm to national security. It is for that reason that I support the batch of amendments tabled by the noble Lord, Lord Pannick, and other noble Lords in relation to Clauses 6 and 7.
I would expect the Government and those supporting Clauses 6 and 7 to welcome these amendments. Let me explain why. I draw attention to Clause 11(5)(c), which provides that,
“Nothing in sections 6 to 10 … is to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the Human Rights Convention”.
That is a very significant provision. It means that a judge will be precluded from acceding to a closed material application unless satisfied that to do so will be compatible with the Article 6 right to a fair trial.
The use of closed material in civil litigation will undoubtedly be challenged as a matter of principle. That challenge will surely reach the Supreme Court and, if it fails, will be renewed before the Strasbourg Court. If it reaches that court, its decision is likely to be critical. If it holds that the use of closed material in civil proceedings is incompatible with Article 6, the English judges are likely to follow that ruling; and Clauses 6 and 7 will become a dead letter.
The Bill as it stands makes no provision for the application of a test of proportionality. The test is simply: would disclosure be damaging to the interests of national security? If the answer is yes, the court is mandated to accede to the application that the material in question be not disclosed. Clause 7 then leaves it in the discretion of the court as to the extent to which, if at all, the closed material can be deployed in support of the Government’s case. The amendments proposed by the noble Lord, Lord Pannick, and other noble Lords introduce a test of proportionality. They also make it plain that a closed material order can be made only as a last resort when there is no other way of having a trial that is fair to both parties. The amendments also require a gist of the closed material to be given to the other party.
These amendments will, it seems to me, significantly increase the chances that the provisions in relation to closed material are held to be compatible with Article 6 by the Strasbourg Court. That court has made it plain that it considered that gisting was an essential feature of a closed material procedure in the context of control orders, and the court is likely to take the same view in relation to civil litigation. If and when this issue reaches Strasbourg, it is important to appreciate that the court is not likely to have access to the closed material that has weighed with the courts of this
country, nor to the closed judgments relating to that material. It seems to me likely that the Strasbourg Court will require to be persuaded that the English courts have applied a test of proportionality before allowing closed material to influence their decisions, that a gist of the closed material which is sufficiently specific to enable the other party to meet the case made against him has been provided to him, and that closed material has been admitted because there was no other way of procuring a fair trial. That is what these amendments set out to achieve.
If these amendments are made, it does not mean that the Government are going to be forced on occasion to disclose material that they consider to be adverse to the interests of national security. It means that where the court does not consider that the use of closed material will be proportionate, the Government may have to litigate without the benefit of that material if they remain unprepared to disclose it, or even to settle the claim made against them. The same will be true if the Government are not prepared to gist the closed material. As the noble Lord, Lord Pannick, has observed, the debate on Clauses 6 and 7 is not concerned with the protection of national security; it is concerned with the requirements of a fair trial.
It is for these reasons that I support the amendments in question.
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Lord Judd: My Lords, I should like to add a word of tribute to the Joint Committee on Human Rights for the thoroughness and courage of its work, and I pay tribute to those who put these amendments forward.
I am not a lawyer, but what concerns me in all this is what lies behind the issues we are discussing—we are trying to protect a society that is worth having. Central to the society that is worth protecting in the United Kingdom, as I understand it, has been the evolution of the cause of justice and fairness in our legal system. That has been the central pillar of what has made Britain a country in which it is good to live. Alongside this, of course, has been the independence of the judiciary; and the judge has a key role—not a role that is perceived by just those in the know, but one that can be widely seen as the key role—in ensuring that this happens.
The first thing I will say is that I find myself troubled by the fact that if we compare ourselves now with how we were 20 years ago, the quality of justice in our society is not as good; there has been an erosion. Of course I understand the acute and sinister pressures behind this trend. We are up against sinister, ruthless techniques and people. I worry that we are giving them the victory and legislating to underpin that victory by taking steps that may diminish the quality of our justice.
Let us look for a moment at the kind of issues that are being considered in the cases about which we are worried. They include torture and human rights, which are sensitive and emotive matters. If it becomes a growing concern in society that things are not as they should be in the administration of justice in these areas, and if it should be thought that the Government and Executive want to conceal things that happened
which should not have happened, that will play into the hands of the extremists who are trying to build anxiety, doubt and instability into our society.
This is the very time that we must stand steadfast. Of course I am not suggesting—it would be madness to do so—that there are no matters that simply cannot be revealed in a court case. However, we must not regard this as something that on balance is right. If we are going to diminish the normal standards that we expect and see as central to our justice system, it must be an absolute last resort because we have to do it, and it should be confined to the narrowest possible areas of control. The amendments in this group are a step towards resisting a further erosion of our system of justice.
Lord Phillips of Sudbury: My Lords, I accept that my noble friend the Minister has an acutely difficult task in dealing with this part of the Bill and with these amendments. I do not think that anybody in this House pretends otherwise. Balancing national security against individual liberty and due process is judgment-of-Solomon stuff. However, I concur with the virtually unanimous voice of those who have said that there is a want of balance and proportionality in the arrangements in this part of the Bill.
In particular, I support Amendment 36. I will not repeat what others said very well, but I will draw the attention of the House—and perhaps of some beyond the House—to a very plangent example of the failure of the Bill to balance as it should the two competing issues. As was explained, Clause 6 requires a judge—it is not discretionary—to grant an application for a closed material procedure if,
“disclosure would be damaging to the interests of national security”.
There is no qualification of “damaging”. There is no talk of “substantial” or “significant” damage. As it stands, a judge would have to grant such an application if the damage were marginal or even trivial. That is why it is essential to agree Amendment 36—and Amendment 37 with it—and some other amendments in the group that would ensure that no judge was put in the difficult, highly undesirable circumstance of having to grant a closed material proceedings application in circumstances that, on any common-sense basis, would not be warrantable.
Lord Glentoran: My Lords, I will step out of the courtroom and into the street. Most of my life I have lived close to terrorism or among it. I have lived close to those in the secret services and many in the police. One thing that we must not vote for tonight is a reduction in the abilities of the public prosecution services, lawyers and, more importantly, police, who to my personal knowledge are extremely frustrated, certainly in Northern Ireland and in other areas that I know of, that they cannot get convictions when they know that people are guilty. They cannot get the evidence into court because they are protecting our secret services—our police and undercover agents. Throughout the problems in Northern Ireland which I have known, and throughout some of the other ones which I have known in my lifetime, those people have done a wonderful, brave job. They must not be put at risk on account of the human rights requirements.
Lord Owen: My Lords, although I did not intend to intervene, I urge the Minister, when he comes to reply, to develop any serious reservations he may have about Amendment 48. Perhaps the noble Lord, Lord Pannick, would consider doing for Amendment 48 what he is doing for Amendment 50. I do not hold the alarmist view of these amendments that is held by some members of the intelligence services; they are necessary and correct and I have no difficulty with any of them. However, I can imagine circumstances in which, under Amendment 48, it would be difficult to change “consider requiring” to “require”. That is particularly true if one considers that Amendment 49 states,
“sufficient to enable the party to whom the summary is provided to give effective instructions on the undisclosed material to their legal representatives and special advocates”.
That seems a pretty fair summary of what should be required, but it rings a certain alarm bell that there might be circumstances under which it would be necessary to try to persuade the courts, even in this difficult situation, that the pressures, particularly coming from people who have made available this intelligence, are so great that it would jeopardise the relationship of sharing information if we accepted Amendment 48. It would remove all discretion from the court.
In this debate those who have been justifying the amendments have often said that it is to avoid restricting the court and to give more power to the court’s judgments. This amendment would go in the opposite direction. I would like a little more explanation as to whether it is really necessary to change “consider requiring” to “require”.
Lord Macdonald of River Glaven: My Lords, I can be very brief. Following the publication of the Green Paper, the Government indicated a concession that the Green Paper’s proposals were drawn far too widely and that the legislation that they would bring forward for consideration would be far tighter. In particular, they indicated that a judge rather than a Minister would have the final say and that closed material procedures would be available only in the most exceptional circumstances.
In fact, the Bill did not provide for either of those undertakings. It is only these amendments that are capable of securing them. The amendments finally give the judge the appropriate discretion to balance national security with the interests of justice, which is an essential tool for the judge if he is to control the fairness of the procedures in his own court, which is a critical aspect of the rule of law.
Secondly, the amendments secure a situation in which a closed material procedure would genuinely be a measure of last resort because they will require every other option to be considered first. My conclusion is that the amendments provide what the Government promised but did not secure in the Bill. For that reason, I shall support them.
Lord Woolf: My Lords, may I just add a few words to the very able speeches that have already been made? I preface them by saying that I am a hedger, not a ditcher. I hope that I will be forgiven for putting my words in the context of my own experience in this case because it is particularly relevant. For five years I was
what was known as a Treasury devil or a Treasury junior, whose task, without having any political allegiance, was to be its representative in the courts in cases which would otherwise cause difficulty when being heard. One went to the court with the advantage that you were instructed by the Treasury solicitor. You were the general counsel of the Government in civil cases but when you were dealing with cases of the kind we are here considering you appeared in a completely neutral capacity.
As a result of that experience, I found that within the procedure then available—in which evidence which damaged national security would have to be excluded—there were all kinds of things that the courts and advocates could do to avoid the decision being made that the evidence could not be looked at in the court because of public interest immunity. As has been pointed out, that does not help the interests of justice because the court is blindfolded for some evidence which would otherwise be relevant. However, by using the tools available—which included members of the Bar on different sides accepting that they could rely absolutely on the integrity of the Treasury devil counsel—you could, in the great majority of cases, get evidence before the court in a way which achieved justice.
However, there was a very small minority of cases where that could not be done. One then had the unfortunate situation where there was relevant evidence that could influence the outcome which not even the judge could take into account, either for a claimant or a defendant. I suspect that no one in this House would like that situation to arise—certainly the judge did not like it—and that is why the kinds of efforts that I have indicated were taken regularly to avoid it happening. I emphasise also that, even where that happened, only a small portion of the case would not be investigated; other parts of the case could be investigated.
In generality, the proposals contained in the Bill have a great advantage over the existing process of public interest immunity: they allow the judge to have the material in a way which ensures that the interests of national security are protected. The European Convention on Human Rights does not intend or require a court system of any country to act in a way which is inconsistent with the interests of national security. It requires that the court, if it is going to take action which is not normally appropriate, should take all the steps which are open to it to minimise the effects of so doing. That is why, so far as proceedings in this country are concerned, the European Court of Justice in Strasbourg proposed the use of the special advocate. That was one step that could be taken to further the interests of justice which hitherto we had not taken. The noble Lord, Lord Lester, in his powerful speech, explained the history of how that form of action had its source in Canada, was praised by the European court, and when appropriate was adopted in this country. The procedure did not cure the disadvantages of evidence not being given in the ordinary way, but it did provide a way of getting closer to doing justice than was possible without it.
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We want, first of all, to protect national security, but secondly we want to do it in a minimal way—here I think I am reflecting what the noble Lord, Lord Judd,
was saying when I say that that is what we should be trying to do—because we do not want to do any more than is really necessary. We should take advantage of the general proposals of my noble friend Lord Pannick without examining them in detail, which would take far too long for me at the present time, so as to find a means of squaring the circle as far as that is possible. At the centre of what my noble friend Lord Pannick said in his speech—I hope that I have not misunderstood him—is that the weakness in what has been proposed by the Government can be summarised by saying that it diminishes the role of the judge in relation to the closed procedure. It is true that the closed procedure will not apply to a whole case but only to what the judge considers, under the provisions of the Act, to those areas where it is appropriate. The closed procedure will enable him to take advantage of the evidence, which may or may not be favourable to the Government; indeed, it may be to the advantage of the claimant.
The whole of our court process is under the control of a judge. The present public interest immunity procedure is under the control of a judge. The Government have the important role, one that I sometimes played, of intervening in proceedings by saying that part of the evidence should be excluded from consideration because it is damaging to national security. In those circumstances, the judge has to be satisfied that the contention being advanced is meritorious. To do that he might read things that are only going to be read by him—which he will do in chambers, so the procedure is closed to that extent—in order to come to a conclusion about the merits of the claim for public interest immunity. I would suggest that, just as he performs that role, he is the natural and indeed the only person, consistent with doing justice generally, who can deal with the matters which my noble friend Lord Pannick, under the guidance of the conclusions of the Joint Committee, feels it is appropriate to put before the House for consideration. If we approach the matter in that way, we will retain our standards of general justice.
Of course justice should always be open whenever that is possible, but Article 6 of the European convention deals with the doing of justice in a wholly different way from that which it deals with the question of forbidding torture. The provision there is absolute. The provision relating to a fair trial does not lay down that certain things can never be done, but gives the standards that should be generally applied. Strasbourg, as the noble and learned Lord, Lord Phillips, has pointed out, would expect that this legislation will take a course that will enable justice to be done in the conventional way in a case, so far as is possible. However, it will recognise that, if there is a matter of national security that cannot be dealt with otherwise, it is appropriate and proper for there to be a new and additional ability for the court, where national security issues arise, that allows the judge to deal with the matter in a special way, with a closed procedure, so far as that is necessary to do justice in that case and where it could not be done otherwise.
Lord Faulks: My Lords, I will be very brief as all the arguments have been well rehearsed. I share the concern of all other noble Lords about these provisions and
the agonising balance that has to be struck. I particularly agree of course that either party should have the right to go to these proceedings, very much as a last resort. However, I have one particular anxiety and I hope that the noble Lord, Lord Pannick, will be able to satisfy me and other Members of the House when he comes to sum up at the end. The various amendments that the noble Lord, Lord Hodgson, proposes include a number of hurdles—a Grand National of hurdles in fact—while the JCHR amendments provide a slightly fewer number of hurdles. If those amendments become part of the Bill, there will be circumstances in which we are left in precisely the same situation that we are in now; namely, that a judge does not accept the Government’s view about national security in operating the balancing act and the Government will then be left with the choice of doing exactly as they are now, and either settling the case or giving up.
Although I entirely applaud all the sentiments behind these amendments, I worry about how they are going to work in practice and whether they have a danger of defeating the Bill as a whole.
Lord Carswell: My Lords, the issues in this Bill can be fairly described as a clash of rights. They could also be described as a clash of wrongs. It is wrong—terribly wrong—that people’s safety and lives should be put at risk by the disclosure in the public domain of evidence that could, in some way, be withheld without irretrievably compromising the interests of justice. It is wrong, as the Government have said, that they should have to expend enormous sums of taxpayers’ money to settle claims because that evidence might put at risk the lives of people or the intelligence interests and co-operation of our allies. It is also terribly wrong that litigants be left in a Kafkaesque limbo, where they cannot know the case that is being made against them or the evidence that is being produced, or cannot be allowed full consultation with their advocates to ensure that they are able to put forward their own case, if they have one, as effectively as possible.
The balancing of interests and considerations has been traditionally not just a principle but a very strong instinct running through our law. It is far, far better if we can incorporate compliance with that instinct into the present issue rather than impose certain rigid requirements that are incapable of being observed without the risk of considerable and great injustice. I pay tribute to the Joint Committee on Human Rights for the quality of the argument and expression of its report.
There is a range of means in practically every case for reaching a proper solution that acknowledges and gives effect to the different considerations. I give an analogy that is not from the present issues, not from civil law but from criminal law: the protection of witnesses who would fear for their own safety if they were to give evidence in public. This is something of which I have had fairly considerable experience over the years, sitting as a trial judge when many witnesses, quite understandably, were extremely fearful for their lives and safety if they gave evidence.
There was a graduated list of possible ways of dealing with this and one had to consider that in any given case. It started at the lowest end, allowing the
witness to give his or her name and address on paper to the judge only, but otherwise giving evidence in the normal way in open court and subject to ordinary cross-examination. At the other end of the scale, the witness was hidden behind a curtain or a screen and his or her voice was distorted so that the persons in the court could have no idea, unless they were clairvoyant, who was giving this evidence. It could have its humorous side. I remember a group of Army witnesses sitting in court—they all had dark glasses on and the most curious wigs, and they looked an amazing sight. But we applied that list as best we could and I suggest that this approach exemplifies the way in which Parliament should deal with this problem. For that reason I support the amendments.
This will not be an easy task for the judges who have to shoulder it. One has to acknowledge that it may not always be discharged perfectly, and certainly it will not always be discharged in a way that pleases the Government of the day. But undertaking that sort of burden is part of the function of a judge and we must trust them to take it on and to discharge it to the best of their ability. We must bear it in mind that in any given case the judge will have expert argument—and the noble Lord, Lord Pannick, has said how effective and persuasive that can be—setting out the issues, giving the judge the opportunity and the time to weigh them up and attempt to come to the best possible solution. I submit that it is far better to run the risk of justice being imperfectly administered than to put the judges into a straitjacket at the Government’s behest. I support the amendments.
Lord Elton: My Lords, many noble Lords have said that striking a balance between justice and public security is a very difficult task, and that is exactly what this House is now being asked to do. Your Lordships who are learned, or learned in the law, will no doubt have made up your minds by now, but as a Member of the House who is a layman in these matters I rise simply to make a plea to my noble friend. He has brought a Bill to the House asking for more powers to be given to the Government to protect their agents working in the public interest. History is full of such appeals, and the duty of Parliament is to look at them with grave suspicion, particularly, as my noble friend Lady Berridge says, at a time when a Government have achieved so much preponderance in the other place. I am therefore very anxious to have clear statements, in one voice, from the Government who are putting this case, as to the individual merits of the different amendments.
It seems to me that there are not two simple, discrete packages, but that there are individual bits that are appealing and others that are not. Each will have a price. That price will be paid either in cash, by not going forward with the case, or in security, by risking exposure. We need to know that price as we make up our minds on each individual case. I speak as a layman, and I believe that there are many who need this guidance.
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Lord King of Bridgwater: My Lords, I hesitate to intervene in such a distinguished judicial gathering. In my time, I have had some involvement with intelligence
matters. I recognise, as has been very well recognised by a number of noble Lords, how extraordinarily difficult these issues are and the challenges that they will pose for a judge when exercising his responsibilities.
The noble and learned Lord, Lord Woolf, made the point very well that what we should be concerned about is national security. We should also be concerned with public respect for the system of justice. If there were to be, as we are told, an increasing number of cases that cannot be defended by the Government, in which perhaps substantial payments have to be made to what may appear to be thoroughly undeserving claimants, the public outrage and the damage that will do to respect for justice in this country will be extremely grave. I have been very impressed by what I think is a general consensus emerging that this is not a measure that should be abandoned by voting against Clause 6 but that this is a measure of last resort, provided that there are proper protections in place.
It cannot be emphasised too strongly that we depend for our defence in this country not just on the very able capabilities of our own intelligence and security services but on the vital liaison that we have with a number of key allies. Those allies are now spread much more widely than people may realise. A number of them are extremely sensitive about whether the security of the intelligence that they provide under the tightest restrictions, which is held most closely in their own countries, is going to be maintained in whatever arrangements we introduce into the justice system in this country.
The noble Lord, Lord Marks, was querying whether there had been any such case. Of course, we are familiar with the issues that arose in the Binyam Mohamed case, when the Divisional Court ultimately rejected the Foreign Secretary’s third PII certificate. David Anderson QC, who has been referred to on a number of occasions, said that on the basis of what he was shown,
“there are signs that we are currently on probation and that there has already, in some respects, been a diminution in intelligence sharing”.
That is a very serious concern and certainly not a judgment that I would challenge. In my own experience, I was very conscious of the sensitivity in these matters and the importance of maintaining the most open channels.
Lord Lester of Herne Hill: I am sorry to interrupt my noble friend, but does he accept that in the Binyam Mohamed case, neither the Divisional Court nor the Court of Appeal presided over by the noble and learned Lord, Lord Neuberger, revealed any information that in any way prejudiced national security, even though it is true that some of the affidavit evidence of the Foreign Secretary and of Hillary Clinton was questioned at the Divisional Court level?
Lord King of Bridgwater: I do not think I have ever quoted Donald Rumsfeld, but when my noble friend very firmly asserts that there was no risk to national security, my worry always is the,
“things we don’t know we don’t know”
in these issues as to what sensitivities there may be. That is the worry that emerges out of this.
Let us be quite frank, there is not always a huge enthusiasm to share intelligence. There are plenty of people in the intelligence agencies of other countries who are very secretive indeed about the intelligence that they have and deeply distrustful of any other country that they do not believe will properly protect it, so any excuse that they can have—which they will argue internally in their own organisations—not to share intelligence in this way is something that we have to be extremely careful about.
It is against that background that I look with great interest to the reply of my noble friend the Minister. I have listened with great respect to the points that have been made. Some very good points have been made about the importance of ensuring judicial discretion in these matters. I got the impression that the Government have already moved quite significantly in that direction, which I wait to hear. However, in respect of my noble friend’s Amendment 31, I think that CMPs definitely have an advantage over PIIs. I do not support Amendment 31. I support the noble Lord, Lord Owen, in what he said about Amendment 48. I believe that Amendment 50 is also one that people have reservations about and I hope that that will not be pressed either.
Baroness Manningham-Buller: My Lords, I well understand the concern coming from all angles of this House on this legislation, and it is entirely right that these issues are fully scrutinised and judged by us. I think that everybody accepts that what is proposed is not ideal, but the question is: what is the best answer? There is the central dilemma of how to deploy into court a wealth of secret information that can be judged and weighed by the court without compromising it.
I am sorry to repeat this, but I think that I have to: the dangers of compromising secret information are several. The first is the obvious risk to the officers who are concerned with it and, as the noble and learned Lord, Lord Carswell, made clear, to the sources of it. The second is the technologies that are available but are fragile and can no longer be used. We are trying to deal with those two things.
If the House will indulge me, I want to say something pretty personal. It is deeply distressing to me and to my former colleagues to be accused of really wicked iniquities in the case of torture and maltreatment. We have not been able to defend ourselves. The closed material procedure gives the opportunity for this material, which may or may not reflect badly on the security and intelligence services—I naturally think that it would not, but others may judge differently—to be looked at. We have been judged by many to have been engaged in criminal activity. But there has been no prosecution; there has been, concerning my service, one police investigation and the CPS found no case to answer. There are other police inquiries going on at the moment and, because I believe in and respect the rule of law, I cannot comment on them; we will see what the outcome is. However, I believe that closed material procedures are a way in which the judiciary can make a judgment on the validity of those claims. We need CMPs for a range of reasons, and I am glad that it seems that, with some exceptions, the need for them is accepted by this House.
When we get on to the next part of the Bill, we will talk about intelligence sharing and Norwich Pharmacal. I may wish to comment at that stage; I do not now.
PII, apart from keeping out of court material that we wish the judge to look at, will be impractical in some cases. I believe—this is information from my former colleagues because I had retired by then—that around a quarter of a million documents were involved in some of the claims that have already been settled. Going through those line by line would be a mammoth and very long task.
Finally, perhaps I may pick up the point made by the noble Lord, Lord Faulks. We should hope to avoid reaching a stage where, because of the need for the open practice of justice and because the balancing act rules out the use of secret intelligence, the Government will have to withdraw and settle and we might get back to where we started, with these cases not being heard. That is a risk that we will probably have to cope with, but I hope that the House will support the central value of having some proceedings to hear these cases in the absence of any at the moment.
The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, I thank all noble Lords who have taken part in this debate. By any account, it has been a very well informed debate, with people speaking from some rich experience. The contributions from those who claim to have no legal background are equally important in bringing the perspective of those who do not deal day-in and day-out with legal issues. As my noble friend Lord Elton said, we are dealing with the difficult issues of trying to achieve a proper balance between liberty, justice and security.
I was encouraged by my noble friend Lord Elton to look at the amendments in turn, but perhaps I may make some introductory remarks. It has been some time since we last considered Part 2, although much has been said about it in the mean time. It is important to remind the House why the Government have brought forward the clauses introducing closed material procedures into civil proceedings where sensitive national security material is relevant. As my noble friend Lord Marks indicated, in a letter which is available in the Printed Paper Office, which I sent to the chair of the Joint Committee on Human Rights, we believe, having done a cross-departmental trawl, that there are about 20 current civil damages cases where material relating to national security would be central. There have been seven new cases during the 12 months leading up to 31 October this year. As my noble friend said, if for some reason we were thought to be a soft touch and did not have any means of properly determining those cases with evidence being allowed to come before a judge, a trend could be established.
Intelligence operations depend, inevitably, on surveillance, investigation and, most critically, information -sharing between agencies, their sources and their liaison partners, as was said by my noble friends Lord King and Lady Neville-Jones. Underlying those arrangements are two principles. The United Kingdom does not confirm its involvement or the involvement of its liaison partners and sources, as to do so would result in a loss of trust and information-sharing would dry up. We rely on others to keep our information
safe; and our partners rely on us to do the same. Although much reference has been made to the United States, I recall from our deliberations in Committee that it was made clear that there is a number of other countries whose information we also depend and rely on.
In cases where people are bringing proceedings alleging that the Government were involved in detention, rendition or torture, the Government’s defence would be likely to include: the nature of any involvement, which would require the Government to breach their long-standing policy not to comment publicly on whether or not they had been involved in any particular operation; what the Government knew at the time, potentially risking the lives and safety of sources; what the Government had shared with their partners, potentially revealing the fact of, and nature of, relationships with partners; and any assurances sought and/or received about an operation, again, potentially revealing the fact of, and nature of, those relationships. All those things could be central to any defence and none of them could be put in the public domain without the risk of jeopardising the safety of sources or the willingness of partners to work with the United Kingdom.
It is interesting that the shadow Justice Secretary is on the record as saying:
“In two and a half years’ time, it could be me in that seat making that tough decision. So it is very important for ministers to have the opportunity to protect sources, to protect delicate operations and all the rest of it. They shouldn’t be jeopardised by a civil action”.
At present, as has been said in our debate, the only way to prevent the disclosure of such highly sensitive national security material when civil litigation arises is through public interest immunity. Although the system of PII works well in most cases, it is not working in a small number of cases that hinge on sensitive national security material. That point was clearly and eloquently made by the noble and learned Lord, Lord Woolf. He said during our deliberations in Committee:
“PII has the very unfortunate effect that you cannot rely on the material that is in issue, whereas both the claimant and the Government may want to rely on that material”.—(
Official Report
, 11/7/12; col. 1189.)
PII requires the court to balance, on the one hand, the damage that would be caused to the public interest with, on the other hand, the public interest in the administration of justice. That includes the impact excluding the material will have on the claimant’s and defendant’s cases, as well as the general public interest in open and transparent proceedings—the so-called Wiley balance.
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I will pause to make it clear what that means. In most cases, the judge will decide that the national security of the United Kingdom outweighs the damage to the administration of justice from excluding the material. In that case, the judge will exclude the material from the court’s consideration, no matter how relevant it is. The judge also has the power to look at material and agree that it would damage national security if revealed in open court but, nevertheless, decide it must be disclosed anyway. I think many of us, if we were agents, would feel that that might be a somewhat frightening theoretical prospect. Where the Government’s
case rests wholly or substantially on sensitive national security material, there is clearly a real problem. That has been identified by a number of contributors to the debate.
The noble Lords’ amendments raise important issues in this Bill on the relative benefits of and interaction between closed material proceedings and public interest immunity. Perhaps your Lordships can identify three distinct packages within this group. Amendment 31, moved by my noble friend Lord Hodgson, would, with Amendments 32 and 44, put PII on the statute book where national security is concerned, require the Secretary of State to go through this process for every document before a CMP declaration can be made and prevent CMPs being used in claims,
“which arise in connection with the claimant’s loss of liberty”.
Amendments 36, 37, 38 and 40, proposed by the noble Lord, Lord Pannick, but emanating from the report of the Joint Committee on Human Rights, deal with stage one of the CMP, in which the Secretary of State makes an application to the court for there to be a CMP in principle.
Amendments 47, 48, 49 and 50, also tabled by members of the Joint Committee, are a separate group, introducing balancing and additional gisting requirements at stage two, within the CMP itself. As I think the noble Lord, Lord Owen, indicated, and as the noble Lord, Lord Pannick, indicated in regard to Amendment 50, Amendments 48 to 50 may be a subset of these amendments. I will refer to those later in my remarks.
Perhaps I may start by dealing with the amendments spoken to by my noble friend Lord Hodgson. I have made general remarks about the problems with PII in this context. Amendment 31 would introduce a system of statutory PII for national security material only. My reading of the amendment is that it would go beyond the purposes of this Bill. Indeed, where there is national security material it would put PII on a statutory basis generally in civil proceedings. There is no such procedure currently set out in legislation. PII is a common law principle that the courts have developed to deal with the handling of sensitive material over the years. A wide and flexible range of public interests fall within its umbrella.
Over recent weeks, it may not surprise your Lordships to know that I have had to engage with a number of groups and individuals who were very concerned on these issues and who have been advancing the importance of PII. I am sometimes somewhat surprised that there has been a love affair with PII that was not always apparent some 10, 15 or 20 years ago, but the point made regularly to me was its importance because it has grown out of and been developed by the common law, thus allowing the flexibility that the common law brings to changing circumstances.
In our Justice and Security Green Paper, we ruled out statutory PII because we believe that it does little to advance on the current system in providing clarity on applicable principles and stability and certainty for the UK Government. In Committee, the noble and learned Lord, Lord Woolf, said:
“I would urge that flexibility is very important here. PII has been developed as a common law principle, and if it is accepted on all sides, as I believe it is, that PII in the present proceedings
should remain, I question whether we need to reduce into statute that which the common law has developed. Of course, if the common law has developed it, it can continue to develop according to new circumstances that we may not anticipate in the course of the argument taking place in this debate”.—[
Official Report
, 11/7/12; col. 1188.]
The Government would strongly endorse this view.
Amendment 32 would require PII to be exhausted first. The test the court must apply when considering an application for a CMP would therefore be much tighter. The Government do not agree that PII must be exhausted before applying for a closed material proceeding; nor do some notable commentators. Mr David Anderson QC, who probably gets the prize for the most quoted person in these debates, said that,
“if the exercise is plainly going to be futile, I do not think legislation should require it to be performed.”
I note that the report on the Bill by the Constitution Committee of your Lordships’ House did not go so far as to recommend that the Bill should require PII to be exhausted before a CMP declaration should be sought from the court. That report stated:
“We can see force in the argument that it will sometimes be otiose to push the PII process to its completion before turning to CMP”.
My noble friend Lord Hodgson claimed that PII would not be time-consuming. I think it was my noble friend Lord Marks who mentioned the Guantanamo civil litigation. It was settled because the Prime Minister wanted to draw a line under detainee issues and to illustrate the potential scale of the problem. There were around 250,000 relevant, sensitive documents in that case. It would have taken several years to complete PII, requiring a full-time Minister who barely did anything else. If PII had been successfully asserted, the Government would have had excluded a large part of their defence.
My noble friend Lord Hodgson referred to the toolkit on PII, but there is a toolkit in Clause 7 on the different ways in which the judge in closed material proceedings can deal with individual items and pieces of information. I know my noble friend Lord Marks does not think that goes far enough, but we should not lose sight of the fact that there is within the Bill the opportunity for the judge to consider each individual piece of evidence once the gateway has been passed with regard to the principle of closed material proceedings in any one case.
Amendment 44 was spoken to by my noble friend and prevents CMPs being used in claims which,
“arise in connection with the claimant’s loss of liberty”.
Claims relating to issues of liberty might be thought more routinely to arise in the United Kingdom in the context of criminal proceedings. Although I think all noble Lords have acknowledged it, I emphasise that the provisions in the Bill do not relate to criminal proceedings. Noble Lords may be thinking of a recent case in the civil courts, the case of Rahmatullah. In that case, proceedings were brought in the UK in relation to a person in US custody. There was no relevant national sensitive security material in that case and no claim for PII was made. The UK Supreme Court and the courts below were able to determine the issues without a CMP.
I have emphasised a number of times that the use of a CMP is designed to include more material in determining the case rather than excluding it. This ensures that the claim can proceed on the basis of all the relevant material. We would wish to see as much material as possible, and we cannot understand why noble Lords who tabled these amendments would wish to produce a situation in which material relevant to a case could not be taken into account by a judge. I therefore ask my noble friend to withdraw Amendment 31 and not to move Amendments 32 and 44.
Moving now to the second set of amendments within this group—Amendments 36, 37, 38 and 40—I preface my remarks by expressing gratitude to the members of the Joint Committee on Human Rights for their thorough and detailed report on this Bill, which was published last week. My noble friend Lord Hodgson mentioned concern about the thin end of the wedge, which is what the members of the Joint Committee on Human Rights perhaps sought to do in their views about how to address the procedural aspects of the Bill. I welcome the committee’s acknowledgement of the changes that have already been made from the proposals originally put forward in the Green Paper. I welcome the contributions by two distinguished members of the committee, my noble friends Lord Lester and Lady Berridge. My noble friend Lord Lester gave a very clear indication of how we got into closed material proceedings at all, which goes back some 15 years to cases in which he was involved and which evolved from a decision in a case before the European Court of Human Rights. As we have heard, the report contains a number of clear and detailed recommendations, which are reflected in the amendments we are considering this evening. For example, the recommendation to remove from the Bill the order-making power to extend CMPs is one that we have already been able to agree and we will debate it later. The issues raised by some of the other recommendations are complex, and one would expect the Government to give them the careful consideration that they merit. We will respond fully to the Joint Committee’s report in due course.
One recommendation was picked up by the noble Lord, Lord Beecham. He said that it is difficult to define national security. That is accepted. Twenty years ago, no one would have thought of cybersecurity. He acknowledged that you could be stuck with a definition, but he asked whether we could say what is not included. The Joint Committee recommended that the Government confirm to Parliament that Clauses 6 to 11 are not intended to cover material the disclosure of which would be damaging to international relations, such as diplomatic exchanges. I confirm to the House that “national security” is deliberately a very narrow definition, and a term well understood by the judiciary. It excludes other aspects of the public interest, such as international relations or the prevention or detection of crime, which will still be dealt with under the PII regime.
By way of comparison, the Special Immigration Appeals Commission must uphold the Secretary of State’s view that material should be closed material where disclosure of that material would be contrary to
the public interest. As I have said, in this case it is limited, as a response to the previous report of the Joint Committee on Human Rights, to national security.
Amendment 36 would introduce full judicial balancing into the court’s decision to grant an application for closed material proceedings. The Government agree that judicial discretion is vitally important. Quite properly and thankfully, no one in your Lordships’ House suggested that CMPs might be used to deal with issues and inquiries arising from the Hillsborough tragedy, although I have had to deal in other forums with that allegation being made. Quite clearly, a judge seeing that coming up would readily identify that it was not a matter of national security, and deal with it appropriately.
The Government believe that such elements of judicial discretion must be provided for in the right way and at the right stage of the process. If it is to be meaningful, it must have regard to the Government’s responsibility for matters of national security. We believe that the duty on the Secretary of State to consider PII first and the flexibility that the judge has at the second stage of the process to which I have already referred, which critically includes the duty to ensure Article 6 rights are guaranteed, is both meaningful and appropriate. As my noble friend Lord Faulks said in Committee:
“It should be emphasised that CMPs are not of themselves a novelty and exist in a number of different contexts”.—[Official Report, 19/6/2012; col. 1740.]
In none of these contexts do they begin with a balancing test or a PII exercise.
Other amendments in this group would give the court discretion to grant an application if the potential damage to national security outweighed the public interest in the fair and open administration of justice and if it considers that a closed material procedure is the only way fairly to determine the issues. These amendments would require the test the court must apply when considering an application for a CMP to be much narrower, not only making a CMP an absolute last resort but making it available to dispose of the issues only in the situation where a fair determination of the proceedings is not available by any other means.
I will indicate why I am not persuaded that this is the right approach. It leads to two questions. First, by what other way might the issues be determined? Secondly, how far should the judge have to go to attempt these routes? The noble and learned Lord, Lord Lloyd, from his experience, expressed some concern about the test here. He said that the difficulty with Amendment 66 was balancing harm with public interest in the fair and open administration of justice. I can understand that it would be somewhat uncertain. As I have said, it is vital that we produce clear legislation that signals what Parliament intends. One of the aims of this Bill is to provide clarity on these issues and when these procedures should operate. The noble and learned Lord, Lord Phillips, indicated that he presided over the court in the Al Rawi decision where the court passed the baton to Parliament to determine the procedure and the circumstances in which closed material proceedings should apply in civil proceedings. The court indicated that Parliament should legislate and make it clear in what circumstances CMPs should be available. I somewhat fear that the test here does not give the clarity which
ought to apply. This particular phraseology is used at the second stage—the Clause 7 stage—through Amendment 47.
One route sometimes pointed to is in-camera hearings and confidentiality rings but, where national security—and potentially individuals’ lives—are at stake, these mechanisms cannot give the required degree of assurance. There may be no way to manage or contain the harmful impact of making sensitive information public. David Anderson has said,
“I would suggest that a confidentiality ring … is not the answer to everything. It drives a barrier between counsel and client, which can be very difficult to maintain”.
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My noble friend Lord Carlile of Berriew asked the JCHR,
“not to be too enthusiastic about confidentiality rings in this range of cases. They are not right in principle here.”
The only other option, therefore, which would appear to be available is PII, but going through the whole PII exercise may well be an irresponsible waste of the court’s time in cases where, quite clearly, at the outset, material would be excluded.
Fundamentally, none of the options—settling, using PII, offering no defence to serious allegations or having the court strike a case out as untriable—enables the courts to get to the truth of what happened. The noble Lord, Lord Beecham, pointed out that I had said that in some cases the court could strike it out, and he felt that that would safeguard national security. It would certainly do that if no information was ever made available before a judge, even under closed proceedings. PII also achieves that to some extent at the moment, when some material is excluded, but that does mean that relevant information may not come before a judge. Perhaps some people look at it from the perspective of the Government and agencies that were not allowed to put a defence forward, but equally, if a claimant puts forward a valid claim, they may not be able to get judgment, to have that claim properly vindicated, if a case has to settle because material was necessarily excluded from the court. That is why I take on the point made by my noble friend Lord Faulks.
It still could be the situation, even under the proposals that the Government have made. Under the test that would apply under Clauses 7, 72 and 73, if the Government do not feel able to bring forward information if the court requires it, and feel able to disclose it, they would not be allowed to use that information. In these circumstances, even under proposals here, it might still be necessary to settle. We are seeking to try to reduce as much as we can the cases where settlement is the option. We would much prefer cases where relevant information could be brought before a court for a determination.
Settling is sometimes portrayed as an easy option, but it is far from certain. For a start, it relies on the other party being willing to settle. If they are not, the Government are left with the same problem of seeking to exclude their own defence by means of PII, facing potentially damaging disclosure of sensitive material, or offering no defence and losing by default. They would not even be able to put any evidence before the
court that might determine the quantum of damages, which opens up the Government potentially to even greater cost.
Settling is not without serious consequences. Although cases are settled without admission of liability, people assume that the UK is only settling because somewhere there has been some wrongdoing. As the noble Baroness, Lady Manningham-Buller, has said, that has huge reputational damage, and can be used to legitimise extremism or terrorism against the UK. In Committee the noble Baroness said that,
“public confidence in the security and intelligence community is not helped by the fact that, in many cases, we have been unable to defend ourselves”.—[
Official Report
, 11/7/12; col. 1228.]
She believes, as I do, that inviting the court to look at all the relevant secret material—and it will decide what, if any, weight is to be put on it—is an advance over where we are today.
As I have indicated, the claim that balancing in PII leads to more disclosure of national security material ignores what happens in practice. I will briefly pick up the point made by my noble Friend, Lord Marks about Amendment 38. There is a technical issue here. Amendment 38 goes to the leg of the admission to closed material proceedings, that there must be a requirement to disclose. If PII has been successfully invoked there would be no requirement to disclose, and that would almost be self-defeating. However, I accept how the noble Lord, Lord Pannick, put it, that it was all part of a wider package. As it stands on its own—and we had this debate in Committee—it is there not in any sinister way to exclude PII, but rather to not find a position where the judge can say “I can’t allow this, because you could have excluded it with PII”.
Under the new arrangements, where the court declares that the case is one where a closed material procedure may be used, this does not mean that all material in those proceedings is automatically heard in closed proceedings. Only material that is damaging to the interests of national security will be considered in closed session, and as with PII, there will be a painstaking exercise to ensure that as much of the evidence as possible is heard in open court. I certainly recognise the point that the noble and learned Lord, Lord Phillips, made, about the Strasbourg court’s views on these provisions. If the Strasbourg court were to say that CMPs could never be compatible with the ECHR, then we might be in some trouble.