However, the court has not made such a finding, and in fact, it has found that CMPs can occur compatibly; for example, the case of Kennedy. As the noble and learned Lord, Lord Woolf, indicated, the provisions of the convention do not put a stoppage on Governments taking measures through their judicial proceedings to consider national security. However, as it is indeed the case, there is an express requirement on the court in Clause 11(5)(c) to have proper regard and to bear in mind the provisions and requirements of Article 6, and if Article 6 requires disclosure, then the court must order it.
Lord Lester of Herne Hill: I am sorry to interrupt my noble and learned friend. Does he accept the Joint Committee’s point that, instead of relying on Article 6, to weaken the common law, one should approach the convention through our legal system, including common law guarantees of fairness? Does he also accept that we should not use Article 6, which is a compromise, for mainly civil countries’ standards, but that we should be looking at our own common law, as explained by the Supreme Court in the Al Rawi case?
Lord Wallace of Tankerness: My Lords, Article 6 has been a very good safeguard for many claimants, or people appearing before the courts, of securing a fair trial. The fact that the courts are expressly enjoined to have regard to it does mean that in particular cases, if the requirements of a fair trial lead to requirements of disclosure, when one comes to that second stage of the CMP process the court would be obliged to order disclosure. However, as I have already indicated, it may well be that in these circumstances the Government take the view that even then, disclosure could be damaging to national security, but they must bear the consequences, as set out in Clause 7(3), if they feel unable to disclose.
I finally come to Amendments 47 to 50. They relate to the second stage of the process—and I indicated before that Amendment 47 has the same considerations that I expressed with regard to Amendment 36. The aim of the provisions is to put more material before the court—not the same amount—so that cases that currently cannot be tried because they hinge on highly sensitive national security material can be heard, leading to real findings on important allegations about government action.
Where the consequences are the inclusion of the material in the case, there is no precedent for including Wiley balancing. Other CMPs that already exist and do not use it have been upheld by the courts as being fair and compliant with Article 6. The position of the Government is therefore that there is no case to include balancing of the sort that is implicit in these particular amendments.
The noble Lord, Lord Owen, expressed concern about the requirement, as opposed to an obligation to consider to require, in terms of disclosure. As a Government we share that concern about this set of amendments. Amendment 49 also goes even further and provides for disclosure under the AF no. 3 principle, meaning that material can be disclosed, even if it is damaging to national security, if that is necessary for the individual to be able to instruct their special advocate. This amendment does not take full account of the judgment of the Supreme Court in Tariq—and I will stand corrected by the noble and learned Lord, Lord Phillips, if I get this wrong—which held that Article 6 does not provide a uniform gisting requirement in all circumstances.
The noble and learned Lord, Lord Mance, said at paragraph 27 that,
“the balancing exercise called for in paragraph 217 of the European Court’s judgment in A v United Kingdom depends on the nature and weight of the circumstances on each side, and cases where the state is seeking to impose on the individual actual or virtual imprisonment are in a different category to the present”—
the present being an employment tribunal—
“where an individual is seeking to pursue a civil claim for discrimination against the state which is seeking to defend itself”.
The noble and learned Lord, Lord Hope, went on to say at paragraph 72:
“The context will always be crucial to a resolution of questions as to where and how this balance is to be struck”.
I could not help but think of the point that the noble Lord, Lord Owen, made, that when so much has been said about judicial discretion, this is perhaps an area where there ought to be proper judicial discretion, and where an absolute requirement on the judges should not be made. Wherever it is possible to provide gists and summaries of national security-sensitive material without causing damage, they will be supplied. In those cases where Article 6 requires gisting of this type, as I have already indicated, Clause 11(5)(c) means that the court will order it.
Finally, Amendment 50, which the noble Lord, Lord Pannick, indicated that he may not move, would instruct the court to ensure that any summaries only do no damage to the interests of national security,
“so far as it is possible to do so”.
I am afraid that that is a risk that the Government cannot take. We cannot say to our international partners that we will protect their information,
“so far as it is possible to do so”.
Perhaps above all, we cannot say to sources who are risking their lives for us, “We will protect your identity and, accordingly, your life and safety as far as it is possible to do so”. We do not believe that that is a risk that the Government should take and we believe that we should be categorical about it.
This set of amendments puts at risk our national security in order to hear compensation claims that can be fairly dealt with by the model set out in this regard in the Bill. The Government’s duty is to protect national security and it is not an optional duty. It is fundamental and some may say that it is our very first duty. Against that background, I very much hope that the noble Lord will withdraw his amendment.
Lord Pannick: Before the noble Lord, Lord Hodgson, replies, it may be of assistance to the House if I seek to respond to a specific question put to me by the noble Lord, Lord Owen. I am very grateful for the general support around the House for the concept of judicial discretion in this area and that CMPs should be a last resort, if they are to exist at all.
The noble Lord, Lord Owen, asked me to address Amendments 48 and 49, to which the Minister referred. I am grateful to the Minister for the very careful way in which he went through the amendments. The noble Lord, Lord Owen, was concerned that Amendments 48 and 49 would introduce a duty to provide a summary or a gist of the material if the closed material proceeding is to be ordered. The answer is that disclosure of the summary or the gist would be required only if the Government wish to proceed with a CMP. If they do not wish to disclose the gist or the summary, which is a matter entirely for them, they do not have to do so under the amendment. There simply would be no closed material proceeding. I suggest that that is entirely
appropriate if we are to have a fair balance of the interests in open justice and other competing interests. I am grateful to the House.
Lord Hodgson of Astley Abbotts: I am extremely grateful to my noble and learned friend for the courteous and extensive way in which he has replied to Amendment 31, on which this debate has hung. Perhaps I may make clear to my noble friend Lady Neville-Jones that this was not to end CMPs: it was merely to narrow the gateway to CMPs by requiring a PII process first. The noble Lord, Lord Pannick, has discussed a number of amendments that give effect to the recommendations of the Joint Select Committee. If I was going to be irreverent, I might say that I regard those as offering 80% of the loaf, as opposed to 100% of the loaf that I was seeking.
However, I have to recognise that the Joint Select Committee has spent a great deal of time on this, a great deal more time than I have. Speaking as it does for both Houses of Parliament, it speaks with great authority. I also practically recognise that 80% of a loaf is better than no loaf at all. I shall seek, with the leave of the House, to withdraw my amendment and then give my support to the noble Lord if he chooses to move his amendments to give effect to the Joint Select Committee’s proposals. I beg leave to withdraw the amendment.
Clause 6 : Proceedings in which court permits closed material applications
33:Clause 6, page 4, line 18, leave out from first “The” to first “a” in line 19 and insert “court seised of relevant civil proceedings may, on application of either party or of its own motion, make”
Lord Pannick: My Lords, I can be very brief because I can see that your Lordships are keen to move to vote on this matter. Amendment 33 addresses a specific aspect of fair balance. Under the Bill, a CMP may be ordered only on the application of the state. Amendment 33 would provide that the judge is able to order a CMP also on the application of another party to the proceedings or on the court’s own motion. That may be a practical matter for the reason given by the noble Lord, Lord Marks. The claimant, on the advice of the special advocate, may prefer the case to be heard by means of a CMP or at least part of it, rather than to have the evidence excluded altogether, given that the evidence may assist the claimant. I beg to move.
6.15 pm
Lord Beecham: My Lords, to be clear, the Opposition support this amendment.
Lord Wallace of Tankerness: My Lords, consistent with the spirit of the way in which the noble Lord moved his amendment, I shall try to be brief, but I think that it is only fair that I explain why the Government are not accepting this amendment.
It is part of the principle behind our system of government that the Executive are the guardian of the United Kingdom’s national security interest. Courts have frequently stated that the Government’s function to protect national security by claiming PII is a duty rather than an option. Correspondingly, we believe that it should be the responsibility of the Secretary of State to apply for a declaration that a closed material procedure may be used. The courts play an essential role in scrutinising the Government’s exercise of these functions, but the question of whether to claim PII, and accordingly whether to make an application for a declaration that a closed material procedure may be used, should be a question for the Government.
In practice, it is the Secretary of State who holds national security-sensitive material and is in the best position to judge the scope and nature of that material, with advice from the security and intelligence agencies. Other parties may not even be aware that the national security information exists. It will remain open to a third party to approach the Secretary of State and request an application for a CMP if they do have reason to want one. If the Secretary of State refuses, that decision could be judicially reviewed.
I accept there is an underlying concern that the Government could inappropriately use this power because there is a feeling the courts are powerless to prevent the Government claiming PII to hide something, and conversely claiming a CMP when it is to the Government’s advantage to have material before the court. I do not think this is a concern that is ever likely to be raised in practice. In the first instance, it is for the Secretary of State to instigate the CMP application or PII claim, and the power to order a CMP or to accept a PII application rests solely with the judge. The judge would be alert to any unfairness to the non-government party, and within the CMP would have the case management powers to be able to ensure that the claim is fairly heard.
That is, in summary, why we would resist the amendment, and I invite the noble Lord to withdraw.
Lord Pannick: I am very grateful to the noble and learned Lord. If we are to have CMPs there must be equality of arms and there must be fairness, and it must be open to the applicant to apply to the judge for a CMP to be ordered. I wish to test the opinion of the House.
6.17 pm
Contents 273; Not-Contents 173. [The Tellers for the Contents reported 273 votes: the Clerks recorded 272 names.]
CONTENTS
Aberdare, L.
Adams of Craigielea, B.
Addington, L.
Adonis, L.
Ahmed, L.
Alderdice, L.
Allenby of Megiddo, V.
Alton of Liverpool, L.
Anderson of Swansea, L.
Ashdown of Norton-sub-Hamdon, L.
Avebury, L.
Bach, L.
Bakewell, B.
Barker, B.
Barnett, L.
Bath and Wells, Bp.
Beecham, L.
Berkeley, L.
Berridge, B.
Bichard, L.
Bilston, L.
Blackstone, B.
Blair of Boughton, L.
Bonham-Carter of Yarnbury, B.
Boothroyd, B.
Borrie, L.
Bradley, L.
Bradshaw, L.
Bragg, L.
Brinton, B.
Brooke of Alverthorpe, L.
Brookman, L.
Brown of Eaton-under-Heywood, L.
Browne of Ladyton, L.
Burnett, L.
Butler-Sloss, B.
Campbell-Savours, L.
Carswell, L.
Carter of Coles, L.
Chester, Bp.
Chidgey, L.
Christopher, L.
Clancarty, E.
Clark of Windermere, L.
Clement-Jones, L.
Clinton-Davis, L.
Cobbold, L.
Collins of Highbury, L.
Colville of Culross, V.
Condon, L.
Corston, B.
Cotter, L.
Coussins, B.
Cox, B.
Crawley, B.
Crisp, L.
Cunningham of Felling, L.
Dannatt, L.
Davies of Coity, L.
Davies of Oldham, L.
Davies of Stamford, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Dholakia, L.
Donaghy, B.
Donoughue, L.
Doocey, B.
Dubs, L.
Dykes, L.
Elder, L.
Elystan-Morgan, L.
Emerton, B.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Exeter, Bp.
Falkland, V.
Falkner of Margravine, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Freyberg, L.
Gale, B.
German, L.
Gilbert, L.
Golding, B.
Goldsmith, L.
Goodhart, L.
Goudie, B.
Gould of Potternewton, B.
Grantchester, L.
Greaves, L.
Greengross, B.
Grenfell, L.
Grey-Thompson, B.
Griffiths of Burry Port, L.
Grocott, L.
Hamwee, B.
Hannay of Chiswick, L.
Hanworth, V.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Hayman, B.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Henig, B.
Hereford, Bp.
Hilton of Eggardon, B.
Hodgson of Astley Abbotts, L.
Hollick, L.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hussain, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jolly, B.
Jones, L.
Jones of Cheltenham, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
Kennedy of Southwark, L.
Kennedy of The Shaws, B.
Kidron, B.
Kilclooney, L.
King of Bow, B.
King of West Bromwich, L.
Kinnock, L.
Kinnock of Holyhead, B.
Kirkhill, L.
Kirkwood of Kirkhope, L.
Knight of Weymouth, L.
Kramer, B.
Laird, L.
Lea of Crondall, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Levy, L.
Linklater of Butterstone, B.
Lister of Burtersett, B.
Low of Dalston, L.
Lytton, E.
McAvoy, L.
McConnell of Glenscorrodale, L.
McDonagh, B.
Macdonald of River Glaven, L.
Macdonald of Tradeston, L.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Maclennan of Rogart, L.
Maginnis of Drumglass, L.
Mallalieu, B.
Mar, C.
Mar and Kellie, E.
Marks of Henley-on-Thames, L.
Martin of Springburn, L.
Masham of Ilton, B.
Maxton, L.
May of Oxford, L.
Meacher, B.
Mitchell, L.
Morgan, L.
Morgan of Huyton, B.
Morris of Handsworth, L.
Morris of Yardley, B.
Newcastle, Bp.
Nye, B.
Oakeshott of Seagrove Bay, L.
O'Loan, B.
O'Neill of Bengarve, B.
O'Neill of Clackmannan, L.
Owen, L.
Palmer of Childs Hill, L.
Pannick, L. [Teller]
Parminter, B.
Patel, L. [Teller]
Patel of Blackburn, L.
Patel of Bradford, L.
Pendry, L.
Phillips of Sudbury, L.
Phillips of Worth Matravers, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prashar, B.
Prescott, L.
Prosser, B.
Radice, L.
Ramsbotham, L.
Razzall, L.
Rea, L.
Rendell of Babergh, B.
Rennard, L.
Richard, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Roper, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
St John of Bletso, L.
Sandwich, E.
Scott of Foscote, L.
Scott of Needham Market, B.
Sherlock, B.
Shipley, L.
Shutt of Greetland, L.
Simon, V.
Smith of Basildon, B.
Smith of Clifton, L.
Smith of Finsbury, L.
Smith of Gilmorehill, B.
Soley, L.
Steel of Aikwood, L.
Stephen, L.
Stern, B.
Stevenson of Balmacara, L.
Stoddart of Swindon, L.
Strasburger, L.
Symons of Vernham Dean, B.
Taverne, L.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Tenby, V.
Teverson, L.
Thomas of Gresford, L.
Thomas of Winchester, B.
Thornton, B.
Tomlinson, L.
Tonge, B.
Tordoff, L.
Touhig, L.
Trees, L.
Triesman, L.
Tunnicliffe, L.
Turner of Camden, B.
Tyler, L.
Tyler of Enfield, B.
Uddin, B.
Wakefield, Bp.
Walmsley, B.
Walpole, L.
Warner, L.
Warnock, B.
Wheeler, B.
Whitaker, B.
Whitty, L.
Wigley, L.
Wilkins, B.
Williams of Elvel, L.
Willis of Knaresborough, L.
Wills, L.
Wood of Anfield, L.
Woolf, L.
Woolmer of Leeds, L.
Worthington, B.
Young of Hornsey, B.
Young of Norwood Green, L.
NOT CONTENTS
Adebowale, L.
Ahmad of Wimbledon, L.
Anelay of St Johns, B. [Teller]
Armstrong of Ilminster, L.
Arran, E.
Ashcroft, L.
Ashton of Hyde, L.
Astor of Hever, L.
Attlee, E.
Bates, L.
Bew, L.
Bilimoria, L.
Black of Brentwood, L.
Blencathra, L.
Bottomley of Nettlestone, B.
Bridgeman, V.
Brittan of Spennithorne, L.
Brougham and Vaux, L.
Browne of Belmont, L.
Browning, B.
Byford, B.
Caithness, E.
Cameron of Lochbroom, L.
Campbell of Alloway, L.
Cathcart, E.
Cavendish of Furness, L.
Chadlington, L.
Chalker of Wallasey, B.
Colwyn, L.
Cope of Berkeley, L.
Cormack, L.
Courtown, E.
Craigavon, V.
Crathorne, L.
Crickhowell, L.
De Mauley, L.
Deech, B.
Dixon-Smith, L.
Dobbs, L.
Dundee, E.
Eaton, B.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Elton, L.
Empey, L.
Faulks, L.
Feldman of Elstree, L.
Flight, L.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Framlingham, L.
Fraser of Carmyllie, L.
Freeman, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
Glenarthur, L.
Glentoran, L.
Goodlad, L.
Goschen, V.
Green of Hurstpierpoint, L.
Greenway, L.
Hamilton of Epsom, L.
Hanham, B.
Harries of Pentregarth, L.
Harris of Peckham, L.
Henley, L.
Heseltine, L.
Heyhoe Flint, B.
Hill of Oareford, L.
Hooper, B.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howell of Guildford, L.
Hunt of Wirral, L.
Janvrin, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jopling, L.
Kakkar, L.
King of Bridgwater, L.
Kirkham, L.
Knight of Collingtree, B.
Laming, L.
Leach of Fairford, L.
Lexden, L.
Lindsay, E.
Lingfield, L.
Listowel, E.
Liverpool, E.
Lloyd of Berwick, L.
Luke, L.
McColl of Dulwich, L.
McNally, L.
Maddock, B.
Magan of Castletown, L.
Mancroft, L.
Manningham-Buller, B.
Marland, L.
Marlesford, L.
Mawson, L.
Mayhew of Twysden, L.
Montrose, D.
Moore of Lower Marsh, L.
Morris of Bolton, B.
Moynihan, L.
Naseby, L.
Neville-Jones, B.
Newby, L. [Teller]
Newlove, B.
Nicholson of Winterbourne, B.
Northbrook, L.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
Oppenheim-Barnes, B.
Palmer, L.
Patten, L.
Perry of Southwark, B.
Popat, L.
Powell of Bayswater, L.
Randerson, B.
Rawlings, B.
Redesdale, L.
Ribeiro, L.
Roberts of Conwy, L.
Saatchi, L.
Sanderson of Bowden, L.
Sassoon, L.
Seccombe, B.
Selkirk of Douglas, L.
Selsdon, L.
Shackleton of Belgravia, B.
Sharkey, L.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shrewsbury, E.
Singh of Wimbledon, L.
Slim, V.
Spicer, L.
Stedman-Scott, B.
Stewartby, L.
Stoneham of Droxford, L.
Stowell of Beeston, B.
Strathclyde, L.
Sutherland of Houndwood, L.
Taylor of Holbeach, L.
Thomas of Swynnerton, L.
Trefgarne, L.
Trimble, L.
True, L.
Tugendhat, L.
Ullswater, V.
Verma, B.
Wade of Chorlton, L.
Wakeham, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Warsi, B.
Wasserman, L.
Wheatcroft, B.
Wilcox, B.
Wilson of Tillyorn, L.
Wright of Richmond, L.
Younger of Leckie, V.
6.33 pm
35: Clause 6, page 4, line 21, leave out “must, on an application under subsection (1),” and insert “may”
Lord Pannick: My Lords, the amendment would provide for judicial discretion in this context. We have had a full debate on whether or not there should be judicial discretion. I beg to move.
Lord Tunnicliffe: The amendment is supported by these Benches.
Lord Wallace of Tankerness: My Lords, I am not quite sure that I can say that we do not support the amendment and just leave it at that, as that would not be courteous to the House.
Very briefly, the Bill states that the judge must order a CMP if he considers that a party to the proceedings would be required to disclose material and that such a disclosure would be damaging to the interests of national security. The amendment would change the “must” to “may”, introducing greater judicial discretion. However, the Government do not consider that this is a necessary amendment given the narrow criteria that are set out for triggering a CMP and the other safeguards in the process.
When the Secretary of State makes an application whereby a CMP might be used, the judge needs to be satisfied of two things: first, that there is material that a party would normally be required to disclose; and, secondly and significantly, that disclosure of that material would damage national security. That is not a fig leaf, as some have described it. The judge will have the final say about whether or not those conditions are satisfied. The Secretary of State has to demonstrate that genuine damage to national security, not embarrassment, would be caused by the material being disclosed publicly; and if the judge disagrees with that assessment, he could refuse to order a CMP. Equally, if he considered that the material was not relevant to the facts of the case and the Secretary of State was therefore seeking a CMP where one was not necessary to protect material that was relevant to the case, he could refuse to order one on that basis, too. This is a significant role for the judge.
It is also important to remember that the process does not end with the court’s declaration that a CMP may be used. It is, as has been described in our previous debates, a gateway. Stage 2, set out in Clause 7, is a process whereby the special advocate can then challenge individual documents as to whether they should go into open or closed proceedings, and this is done successfully.
In those circumstances, I encourage the noble Lord to withdraw his amendment, although I suspect that he is not going to do so.
Lord Pannick: The noble and learned Lord is very wise. If we are going to have CMPs, it should be at the discretion of the judge rather than as a matter of duty. I wish to test the opinion of the House.
6.36 pm
Contents 264; Not-Contents 159.
CONTENTS
Aberdare, L.
Adams of Craigielea, B.
Addington, L.
Adonis, L.
Ahmed, L.
Alderdice, L.
Alton of Liverpool, L.
Anderson of Swansea, L.
Ashdown of Norton-sub-Hamdon, L.
Avebury, L.
Bach, L.
Bakewell, B.
Barker, B.
Bassam of Brighton, L.
Bath and Wells, Bp.
Beecham, L.
Berkeley, L.
Berridge, B.
Bichard, L.
Bilimoria, L.
Bilston, L.
Blair of Boughton, L.
Bonham-Carter of Yarnbury, B.
Boothroyd, B.
Borrie, L.
Bradley, L.
Bradshaw, L.
Bragg, L.
Brinton, B.
Brooke of Alverthorpe, L.
Brookman, L.
Brown of Eaton-under-Heywood, L.
Browne of Ladyton, L.
Burnett, L.
Butler-Sloss, B.
Cameron of Lochbroom, L.
Campbell-Savours, L.
Carswell, L.
Carter of Coles, L.
Chester, Bp.
Chidgey, L.
Christopher, L.
Clancarty, E.
Clark of Windermere, L.
Clement-Jones, L.
Clinton-Davis, L.
Cobbold, L.
Collins of Highbury, L.
Colville of Culross, V.
Corston, B.
Cotter, L.
Coussins, B.
Crawley, B.
Crisp, L.
Cunningham of Felling, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L.
Davies of Stamford, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Dholakia, L.
Donaghy, B.
Donoughue, L.
Doocey, B.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Emerton, B.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falkland, V.
Falkner of Margravine, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Freyberg, L.
Gale, B.
German, L.
Gilbert, L.
Golding, B.
Goldsmith, L.
Goodhart, L.
Goudie, B.
Gould of Potternewton, B.
Grantchester, L.
Greaves, L.
Greengross, B.
Grenfell, L.
Grey-Thompson, B.
Griffiths of Burry Port, L.
Grocott, L.
Hamwee, B.
Hannay of Chiswick, L.
Hanworth, V.
Harries of Pentregarth, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Hayman, B.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Henig, B.
Hereford, Bp.
Hilton of Eggardon, B.
Hodgson of Astley Abbotts, L.
Hollick, L.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hussain, L.
Hylton, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jolly, B.
Jones, L.
Jones of Cheltenham, L.
Jones of Whitchurch, B.
Judd, L.
Kennedy of Southwark, L.
Kennedy of The Shaws, B.
Kidron, B.
Kilclooney, L.
King of West Bromwich, L.
Kinnock, L.
Kinnock of Holyhead, B.
Kirkhill, L.
Kirkwood of Kirkhope, L.
Knight of Weymouth, L.
Kramer, B.
Laird, L.
Laming, L.
Lea of Crondall, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Levy, L.
Linklater of Butterstone, B.
Low of Dalston, L.
Lytton, E.
McAvoy, L.
McDonagh, B.
Macdonald of River Glaven, L.
Macdonald of Tradeston, L.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Maclennan of Rogart, L.
Maginnis of Drumglass, L.
Mallalieu, B.
Mar, C.
Mar and Kellie, E.
Marks of Henley-on-Thames, L.
Martin of Springburn, L.
Masham of Ilton, B.
Maxton, L.
May of Oxford, L.
Meacher, B.
Mitchell, L.
Morgan, L.
Morgan of Huyton, B.
Morris of Handsworth, L.
Morris of Yardley, B.
Newcastle, Bp.
Nye, B.
O'Loan, B.
O'Neill of Bengarve, B.
O'Neill of Clackmannan, L.
Owen, L.
Palmer of Childs Hill, L.
Pannick, L. [Teller]
Parminter, B.
Patel, L. [Teller]
Patel of Blackburn, L.
Patel of Bradford, L.
Pearson of Rannoch, L.
Pendry, L.
Phillips of Sudbury, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prashar, B.
Prescott, L.
Prosser, B.
Radice, L.
Ramsbotham, L.
Razzall, L.
Rennard, L.
Richard, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Roper, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
St John of Bletso, L.
Sandwich, E.
Scott of Foscote, L.
Scott of Needham Market, B.
Sherlock, B.
Shipley, L.
Shutt of Greetland, L.
Simon, V.
Smith of Basildon, B.
Smith of Clifton, L.
Smith of Finsbury, L.
Smith of Gilmorehill, B.
Soley, L.
Steel of Aikwood, L.
Stephen, L.
Stern, B.
Stevenson of Balmacara, L.
Stoddart of Swindon, L.
Strasburger, L.
Sutherland of Houndwood, L.
Symons of Vernham Dean, B.
Taverne, L.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Winchester, B.
Thornton, B.
Tomlinson, L.
Tonge, B.
Tordoff, L.
Touhig, L.
Trees, L.
Triesman, L.
Tunnicliffe, L.
Turner of Camden, B.
Tyler, L.
Tyler of Enfield, B.
Uddin, B.
Walmsley, B.
Walpole, L.
Warner, L.
Warnock, B.
Wheeler, B.
Whitaker, B.
Whitty, L.
Wigley, L.
Wilkins, B.
Williams of Elvel, L.
Williamson of Horton, L.
Willis of Knaresborough, L.
Wills, L.
Wilson of Tillyorn, L.
Wood of Anfield, L.
Woolf, L.
Woolmer of Leeds, L.
Worthington, B.
Young of Hornsey, B.
Young of Norwood Green, L.
NOT CONTENTS
Ahmad of Wimbledon, L.
Anelay of St Johns, B. [Teller]
Armstrong of Ilminster, L.
Arran, E.
Ashcroft, L.
Ashton of Hyde, L.
Astor of Hever, L.
Attlee, E.
Bates, L.
Bew, L.
Black of Brentwood, L.
Blencathra, L.
Bowness, L.
Bridgeman, V.
Brittan of Spennithorne, L.
Brougham and Vaux, L.
Browne of Belmont, L.
Browning, B.
Butler of Brockwell, L.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Cathcart, E.
Cavendish of Furness, L.
Chadlington, L.
Chalker of Wallasey, B.
Colwyn, L.
Condon, L.
Cope of Berkeley, L.
Cormack, L.
Courtown, E.
Craigavon, V.
Crathorne, L.
Crickhowell, L.
De Mauley, L.
Deech, B.
Dixon-Smith, L.
Dobbs, L.
Eaton, B.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Elton, L.
Empey, L.
Faulks, L.
Feldman of Elstree, L.
Fookes, B.
Forsyth of Drumlean, L.
Framlingham, L.
Fraser of Carmyllie, L.
Freeman, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
Glenarthur, L.
Glentoran, L.
Goodlad, L.
Goschen, V.
Green of Hurstpierpoint, L.
Hamilton of Epsom, L.
Hanham, B.
Harris of Peckham, L.
Henley, L.
Heseltine, L.
Heyhoe Flint, B.
Hill of Oareford, L.
Hooper, B.
Howard of Rising, L.
Howe, E.
Howell of Guildford, L.
Hunt of Wirral, L.
Hussein-Ece, B.
James of Blackheath, L.
Janvrin, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jopling, L.
Kakkar, L.
King of Bridgwater, L.
Kirkham, L.
Knight of Collingtree, B.
Lexden, L.
Lindsay, E.
Lingfield, L.
Liverpool, E.
Lloyd of Berwick, L.
Luke, L.
McColl of Dulwich, L.
McNally, L.
Maddock, B.
Magan of Castletown, L.
Mancroft, L.
Manningham-Buller, B.
Marland, L.
Marlesford, L.
Mawson, L.
Mayhew of Twysden, L.
Montrose, D.
Moore of Lower Marsh, L.
Morris of Bolton, B.
Moynihan, L.
Naseby, L.
Neville-Jones, B.
Newby, L. [Teller]
Newlove, B.
Nicholson of Winterbourne, B.
Northbrook, L.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
Oppenheim-Barnes, B.
Patten, L.
Perry of Southwark, B.
Popat, L.
Powell of Bayswater, L.
Randerson, B.
Rawlings, B.
Ribeiro, L.
Roberts of Conwy, L.
Saatchi, L.
Sanderson of Bowden, L.
Sassoon, L.
Seccombe, B.
Selkirk of Douglas, L.
Selsdon, L.
Shackleton of Belgravia, B.
Sharkey, L.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shrewsbury, E.
Slim, V.
Spicer, L.
Stedman-Scott, B.
Stewartby, L.
Stoneham of Droxford, L.
Stowell of Beeston, B.
Strathclyde, L.
Taylor of Holbeach, L.
Thomas of Swynnerton, L.
Trefgarne, L.
Trimble, L.
True, L.
Tugendhat, L.
Ullswater, V.
Verma, B.
Wakeham, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Warsi, B.
Wasserman, L.
Wheatcroft, B.
Wilcox, B.
Wright of Richmond, L.
Younger of Leckie, V.
6.50 pm
36: Clause 6, page 4, line 27, at end insert—
“( ) the degree of harm to the interests of national security if the material is disclosed would be likely to outweigh the public interest in the fair and open administration of justice”
6.50 pm
Contents 247; Not-Contents 160.
CONTENTS
Aberdare, L.
Adams of Craigielea, B.
Addington, L.
Adonis, L.
Ahmed, L.
Alderdice, L.
Anderson of Swansea, L.
Ashdown of Norton-sub-Hamdon, L.
Avebury, L.
Bach, L.
Bakewell, B.
Barker, B.
Bassam of Brighton, L.
Bath and Wells, Bp.
Beecham, L.
Berkeley, L.
Berridge, B.
Bichard, L.
Bilimoria, L.
Bilston, L.
Bonham-Carter of Yarnbury, B.
Boothroyd, B.
Bradley, L.
Bradshaw, L.
Bragg, L.
Brinton, B.
Brooke of Alverthorpe, L.
Brookman, L.
Brown of Eaton-under-Heywood, L.
Browne of Ladyton, L.
Burnett, L.
Butler-Sloss, B.
Cameron of Lochbroom, L.
Campbell of Alloway, L.
Campbell-Savours, L.
Carswell, L.
Carter of Coles, L.
Chester, Bp.
Chidgey, L.
Christopher, L.
Clancarty, E.
Clark of Windermere, L.
Clement-Jones, L.
Clinton-Davis, L.
Cobbold, L.
Collins of Highbury, L.
Corston, B.
Cotter, L.
Coussins, B.
Crawley, B.
Cunningham of Felling, L.
Davies of Coity, L.
Davies of Oldham, L.
Davies of Stamford, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Dholakia, L.
Donaghy, B.
Donoughue, L.
Doocey, B.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Emerton, B.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falkland, V.
Falkner of Margravine, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Freyberg, L.
Gale, B.
German, L.
Gilbert, L.
Golding, B.
Goldsmith, L.
Goodhart, L.
Gould of Potternewton, B.
Grantchester, L.
Greaves, L.
Greengross, B.
Grey-Thompson, B.
Griffiths of Burry Port, L.
Grocott, L.
Hamwee, B.
Hannay of Chiswick, L.
Hanworth, V.
Harries of Pentregarth, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Hayman, B.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Henig, B.
Hereford, Bp.
Hilton of Eggardon, B.
Hodgson of Astley Abbotts, L.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hussain, L.
Irvine of Lairg, L.
Jay of Paddington, B.
Jolly, B.
Jones, L.
Jones of Cheltenham, L.
Jones of Whitchurch, B.
Judd, L.
Kennedy of Southwark, L.
Kennedy of The Shaws, B.
Kidron, B.
Kilclooney, L.
King of West Bromwich, L.
Kirkhill, L.
Kirkwood of Kirkhope, L.
Knight of Weymouth, L.
Kramer, B.
Laming, L.
Lea of Crondall, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Levy, L.
Linklater of Butterstone, B.
Low of Dalston, L.
Lytton, E.
McAvoy, L.
McDonagh, B.
Macdonald of River Glaven, L.
Macdonald of Tradeston, L.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Maclennan of Rogart, L.
Maginnis of Drumglass, L.
Mallalieu, B.
Mar, C.
Mar and Kellie, E.
Marks of Henley-on-Thames, L.
Martin of Springburn, L.
Masham of Ilton, B.
Maxton, L.
May of Oxford, L.
Mitchell, L.
Morgan, L.
Morgan of Huyton, B.
Morris of Handsworth, L.
Morris of Yardley, B.
Newcastle, Bp.
Nye, B.
O'Loan, B.
O'Neill of Clackmannan, L.
Owen, L.
Pannick, L. [Teller]
Parminter, B.
Patel, L. [Teller]
Patel of Blackburn, L.
Patel of Bradford, L.
Pendry, L.
Phillips of Sudbury, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prashar, B.
Prescott, L.
Prosser, B.
Radice, L.
Ramsbotham, L.
Razzall, L.
Rennard, L.
Richard, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Roper, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sandwich, E.
Scott of Foscote, L.
Scott of Needham Market, B.
Sherlock, B.
Shipley, L.
Shutt of Greetland, L.
Simon, V.
Smith of Basildon, B.
Smith of Clifton, L.
Smith of Finsbury, L.
Smith of Gilmorehill, B.
Soley, L.
Steel of Aikwood, L.
Stephen, L.
Stern, B.
Stevenson of Balmacara, L.
Stoddart of Swindon, L.
Strasburger, L.
Symons of Vernham Dean, B.
Taverne, L.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Winchester, B.
Thornton, B.
Tomlinson, L.
Tonge, B.
Tordoff, L.
Touhig, L.
Trees, L.
Triesman, L.
Tunnicliffe, L.
Turner of Camden, B.
Tyler, L.
Tyler of Enfield, B.
Uddin, B.
Wakefield, Bp.
Walmsley, B.
Walpole, L.
Warner, L.
Warnock, B.
Wheeler, B.
Whitaker, B.
Whitty, L.
Wigley, L.
Wilkins, B.
Williams of Elvel, L.
Williamson of Horton, L.
Willis of Knaresborough, L.
Wills, L.
Wilson of Tillyorn, L.
Wood of Anfield, L.
Woolf, L.
Woolmer of Leeds, L.
Worthington, B.
Young of Hornsey, B.
Young of Norwood Green, L.
NOT CONTENTS
Ahmad of Wimbledon, L.
Anelay of St Johns, B. [Teller]
Armstrong of Ilminster, L.
Arran, E.
Ashcroft, L.
Ashton of Hyde, L.
Astor of Hever, L.
Attlee, E.
Bates, L.
Bew, L.
Black of Brentwood, L.
Blencathra, L.
Bridgeman, V.
Brittan of Spennithorne, L.
Brougham and Vaux, L.
Browne of Belmont, L.
Browning, B.
Butler of Brockwell, L.
Byford, B.
Caithness, E.
Cathcart, E.
Chadlington, L.
Chalker of Wallasey, B.
Colville of Culross, V.
Colwyn, L.
Condon, L.
Cope of Berkeley, L.
Cormack, L.
Courtown, E.
Craigavon, V.
Crathorne, L.
Crickhowell, L.
De Mauley, L.
Deech, B.
Dixon-Smith, L.
Dobbs, L.
Eaton, B.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Empey, L.
Faulks, L.
Feldman of Elstree, L.
Flight, L.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Framlingham, L.
Fraser of Carmyllie, L.
Freeman, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
Glenarthur, L.
Glentoran, L.
Goodlad, L.
Goschen, V.
Green of Hurstpierpoint, L.
Hamilton of Epsom, L.
Hanham, B.
Harris of Peckham, L.
Henley, L.
Heseltine, L.
Heyhoe Flint, B.
Hill of Oareford, L.
Hooper, B.
Howard of Rising, L.
Howe, E.
Howell of Guildford, L.
Hunt of Wirral, L.
James of Blackheath, L.
Janvrin, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jopling, L.
Kakkar, L.
King of Bridgwater, L.
Kirkham, L.
Knight of Collingtree, B.
Lexden, L.
Lindsay, E.
Lingfield, L.
Liverpool, E.
Lloyd of Berwick, L.
Luke, L.
McColl of Dulwich, L.
McNally, L.
Maddock, B.
Magan of Castletown, L.
Mancroft, L.
Manningham-Buller, B.
Marland, L.
Marlesford, L.
Mawson, L.
Mayhew of Twysden, L.
Meacher, B.
Montrose, D.
Moore of Lower Marsh, L.
Morris of Bolton, B.
Moynihan, L.
Naseby, L.
Neville-Jones, B.
Newby, L. [Teller]
Newlove, B.
Nicholson of Winterbourne, B.
Northbrook, L.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
Oppenheim-Barnes, B.
Palmer, L.
Patten, L.
Perry of Southwark, B.
Popat, L.
Powell of Bayswater, L.
Randerson, B.
Rawlings, B.
Ribeiro, L.
Risby, L.
Roberts of Conwy, L.
Saatchi, L.
Sanderson of Bowden, L.
Sassoon, L.
Seccombe, B.
Selkirk of Douglas, L.
Selsdon, L.
Shackleton of Belgravia, B.
Sharkey, L.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shrewsbury, E.
Spicer, L.
Stedman-Scott, B.
Stewartby, L.
Stoneham of Droxford, L.
Stowell of Beeston, B.
Strathclyde, L.
Sutherland of Houndwood, L.
Taylor of Holbeach, L.
Thomas of Swynnerton, L.
Trefgarne, L.
Trimble, L.
True, L.
Tugendhat, L.
Ullswater, V.
Verma, B.
Wakeham, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Warsi, B.
Wasserman, L.
Wheatcroft, B.
Wilcox, B.
Wright of Richmond, L.
Younger of Leckie, V.
7.03 pm
37: Clause 6, page 4, line 27, at end insert—
“( ) a fair determination of the proceedings is not possible by any other means”
Lord Wallace of Tankerness: My Lords, it may be for the convenience of the House if I indicate that, while the Government do not accept Amendments 37, 38 and 40, we do not propose to resist them at this time. There will obviously be an opportunity to reflect on them.
39: Clause 6, page 4, line 35, at end insert “and any other enactment which would prevent the party from disclosing the material but would not do so if the proceedings were proceedings in relation to which there was a declaration under this section.”
Lord Wallace of Tankerness: My Lords, in Committee, my noble friend Lord Thomas of Gresford tabled an amendment seeking to amend the effect of the disclosure gateway provisions in the Security Service Act 1989 and the Intelligence Services Act 1994. The amendment was based on a suggestion that emanated from the Bingham Centre for the Rule of Law. At that time the Government resisted the amendment on the grounds that it was not necessary to secure the agencies’ compliance with their disclosure obligations and that it was wider than appropriate because it would mean the courts could order disclosure into civil proceedings regardless of the connection between those proceedings and the agencies’ functions.
However, following the Committee stage, Professor Sir Jeffrey Jowell from the Bingham Centre wrote to me urging the Government to reconsider the issues raised by the amendment. After careful consideration and consultation with experts on this complex area of law, the Government have concluded that a similar amendment would be necessary. This is a technical area of law and it may help if I briefly explain why the change is needed.
Under Clause 6, the court must, on an application from the Secretary of State, make a declaration that the proceedings are ones in which a closed material application may be made if the court considers that a party would be required to disclose material in the course of proceedings and disclosure would be damaging to the interests of national security. The problem with the Bill as drafted is that it does not make it clear that statutory bars to disclosure into open court should not prevent there being disclosure into closed material procedures.
I assure the House that the Liberty analysis of this amendment is wrong. In an e-mail to parliamentarians its policy director described the amendment as being able to expand the categories of secret information on which the application for a CMP declaration can be based. That is not the case. The amendment makes it clear that the court should ignore any statutory provision that would prevent the disclosure of relevant material into open court but not into closed material procedures when the court is deciding the question of whether a party to proceedings would be required to disclose material. In other words, we do not want to be in the unfortunate position where we are unable to use a CMP as a result of these Acts covering the Security and Intelligence Agencies. These Acts are in part designed to ensure that highly sensitive information is not made public in the interests of our national security. The closed material procedures, however, have been assessed to be secure enough to allow highly sensitive information into a courtroom to be considered by a judge. The Government and agencies want the chance for a judge to come to an independent judgment. We do not want silence on these important matters.
Once again, I am grateful to my noble friend Lord Thomas for having raised this issue in Committee. While we may not have agreed on every point today, I am always grateful for his tireless work in holding the Government to account and for his detailed contribution. I am particularly grateful to the Bingham centre for taking time to scrutinise the Bill and for writing to me and asking the Government to rethink. The centre is an important legal research institute and the Government welcome its contribution to make sure that the Bill is suitably drafted. I beg to move.
Lord Thomas of Gresford: My Lords, have I not always said that this is a listening Government? I am grateful to my noble and learned friend for taking on board what I said on the last occasion, which I confess I have now totally forgotten. However, clearly it was very persuasive and I thank the noble and learned Lord for the amendment.
40: Clause 6, page 4, line 42, at end insert—
“( ) Before making a declaration under subsection (2), the court must consider whether a claim for public interest immunity could have been made in relation to the material.”
41: Clause 6, page 5, line 10, at end insert—
“( ) Rules of court must make provision—
(a) requiring the Secretary of State, before making an application under subsection (1), to give notice of the Secretary of State’s intention to make an application to all of the parties to the relevant civil proceedings,
(b) requiring the Secretary of State to inform all of the parties to the relevant civil proceedings of the outcome of the application.”
Baroness Stowell of Beeston: My Lords, I shall speak to Amendment 41 now but I hope it will assist the House if I do not speak to the other amendments in this group until after they have been debated. I shall therefore respond at the end of the debate to both this amendment and the other amendments in the group which have been tabled by other noble Lords.
When I was responding to a debate on a topic which falls within this group, I boldly announced that I am not a lawyer. In the course of my remarks I said something which provoked a strong response from some of the lawyers who were involved in the debate that day and it is therefore a pleasure to move a government amendment that addresses the concerns raised in debate at that time. The point at issue then was the provision of notice by the Secretary of State to the other parties in a case in which a CMP is to be applied for. The Government committed to considering the issue. We gave it more detailed consideration over the Summer Recess and wrote to the noble and learned Lord, Lord Falconer, together with a number of other noble Lords who raised questions at the time of the debate.
In that letter, the Government explained that on further consideration it was clear to us that there were difficulties of both principle and practice with having CMPs without notice. We made it clear that closed judgments would exist without anyone other than the judge and the Secretary of State being aware of their existence if we were not to give notice, and that special advocates would also be unable to take instructions from the individuals whose interests they represent or to communicate with them at all. It was our view that this problem could be sorted out in the detailed rules of court for CMPs. However, the Government have considered this further and believe that it should be safeguarded in the Bill. The amendment provides for two procedures: the Secretary of State must give notice of his or her intention to apply for a CMP to the other parties in the case, and he or she must also inform the other parties of the outcome of the application.
I hope noble Lords will agree that this enhances the safeguards available under the Bill to ensure that the maximum amount of information that can be provided to the open representatives in the case is provided. I hope noble Lords will also agree that this amendment materially advances the continued efforts of the Government to ensure as much openness and transparency as possible, and to ensure that nothing is kept secret that does not need to be for genuine national security reasons. I beg to move.
Lord Pannick: My Lords, I shall speak to Amendment 56 in this group, which has been proposed by the Joint Committee. It would ensure that rules of court make provision for the media to be notified of any application for a closed material procedure so that they can make representations on the issue to the judge. The amendment would also ensure that a party to a closed judgment may apply for it to be made open at a later stage. It is not sufficient for the Secretary of State to give notice of an application for a CMP to the parties to the case. The reason for that is that a CMP will severely impede the ability of the press to report legal proceedings. It may be that it is only the media who are concerned about a proposal to introduce a CMP in a particular case; the other parties may not be focusing on the matter or may not object.
It is also essential for rules of court to provide a mechanism by which judgments that are closed can be reopened and published after the passage of time if there is no longer any reason for secrecy. These provisions were recommended by the Joint Committee, and perhaps I may quote what was said yesterday in a lecture by the president of the Supreme Court, the noble and learned Lord, Lord Neuberger:
“Without judgement there would be no justice. And without Judgments there would be no justice, because judicial decisions, at least in civil and family law, without reasons are certainly not justice: indeed, they are scarcely decisions at all. It is therefore an absolute necessity that Judgments are readily accessible”.
I accept entirely that if there is a CMP, of course that part of the judgment will be closed, but it is essential that rules of court allow for the possibility of a later application to open up that which no longer needs to be secret.
Baroness Kennedy of The Shaws: My Lords, I support the comments of the noble Lord, Lord Pannick. I serve on the Joint Committee on Human Rights and we were concerned that confidence in the judiciary is absolutely vital in our society. The press coverage of matters and their entitlement to come to a court and to make applications is an important element of democracy and open justice. We would encourage the Government to accept this amendment.
7.15 pm
Lord Phillips of Sudbury: My Lords, Amendment 56A in this group is tabled in my name. I am afraid that it is a manuscript amendment and I hope that noble Lords have got it, but for those who were not given a copy when they came in, it is an addition to Clause 10 which is about the general provisions under Section 6 proceedings. It requires that the:
“Rules of court under subsection (2) shall only diverge from rules of court pertaining to proceedings outside the scope of this
Act to the extent necessary to prevent disclosures of information damaging to the interests of national security”.
The whole point of the amendment is to put some constraint on the otherwise unacceptable breadth of the provisions in Clause 10(2) which allow rules of court to be made. Perhaps I may briefly give noble Lords a gist of the breadth of this provision-making power. The first set out in paragraph (a) is,
“about the mode of proof and about evidence in the proceedings”.
There are no qualifications, there is no limitation, guidance or definition, so they can just make rules about the mode of proof and evidence in the proceedings; paragraph (b) concerns whether the proceedings shall have a hearing attached to them at all; paragraph (c) concerns whether there shall be legal representations in the proceedings; and paragraph (d) concerns whether the person against whom the proceedings are launched shall have full particulars of the reasons for the decision reached in those proceedings, and so on.
I do not understand why the Government have produced a rule-making power relating to a highly sensitive and important clause with no constraint, limitation or definition. All my amendment seeks to do is to put a lasso around what I believe are unduly wide powers. It would provide that, in effect, the only use of these powers shall be,
“to prevent disclosures of information damaging to the interests of national security”,
which is what this part of the Bill is principally all about. I have put the amendment forward in the hope that the Government will accept it or, if the wording is not to their liking, that they will undertake to bring new wording back at Third Reading.
Lord Beecham: My Lords, for the avoidance of doubt, I should say that the Opposition support Amendment 56. My noble friend Lady Kennedy beat me to the Public Bill Office in putting her name to it. As she and the noble Lord, Lord Pannick, have said, it is important that the press and the media generally should have notification of applications of this kind. It complements a later amendment that will require the regular reporting of the number of applications that have been made, so to some degree the two things flow together.
The manuscript amendment tabled by the noble Lord, Lord Phillips, has arrived very late in the day and, given the other excitements we have been enjoying, I confess that I personally have not given it sufficient attention. I will be interested to hear the views of the Minister if she is replying to that particular amendment in due course. I would also be interested to learn the views of the noble Lord, Lord Pannick, on it, if he is able to give them. On the face of it, the amendment seems fairly persuasive, but it has been brought forward so late that I am finding it difficult to come to a decision, although other noble Lords may find it easier to do so. But certainly so far as Amendment 56 is concerned, and indeed the original amendment in this group, the Opposition are fully supportive.
Baroness Stowell of Beeston: My Lords, I am grateful to all noble Lords for their remarks. I will speak generally and respond to the noble Lord, Lord Phillips.
The noble Lord, Lord Hodgson, has not said anything about his amendments in this group but what I will say applies to those as well.
The Bill does not seek to change the rules in relation to civil proceedings, save where this is necessary to have a closed material procedure; we are not otherwise changing the ordinary rules in civil procedures relating to disclosure of evidence. The noble Lord, Lord Phillips, in speaking to his manuscript amendment, talked about adding a lasso. We believe that the Bill already provides a lasso. We agree with the thrust of the points he makes but do not think it is necessary to accept his amendment, because the Bill provides for the essence of this point in Clause 9, where it says that, subject to securing closed material procedures, the ordinary rules of disclosure must otherwise apply. The way that his amendment is worded may also be a potential source of confusion in that it is unclear what is meant by the word “necessary” in the amendment in a particular case. More specifically, we are already providing for the concerns that he has raised.
Lord Phillips of Sudbury: I apologise again to my noble friend and to the House for the lateness of this amendment. I think her argument was that Clause 9 makes my amendment redundant, but am I right in thinking that Clause 9 relates to rules of disclosure whereas Clause 10(2) relates to rules across a much wider plain, governing standards of proof, evidence, whether or not there is a hearing, legal representation and so on?
Baroness Stowell of Beeston: I will address that point by saying that we are not seeking to change any of the ordinary rules for civil proceedings in this Bill. The normal rules for civil proceedings apply in the same way here except for where it is necessary to change them in order for us to meet the requirements of a closed material proceeding.
Lord Phillips of Sudbury: The noble Baroness says that the normal rules of civil procedure apply but Clause 10(2) gives extraordinarily wide powers to make new and different rules. That is my point and that is my concern.
Baroness Stowell of Beeston: It is probably easier if I turn to the other points that have been made in this debate. In the course of doing so, maybe I will receive some assistance that will allow me to answer the noble Lord’s question in greater detail. As if by magic, I have been handed a note. Clause 10(2) gives powers to make rules but these are in consequence of CMPs.
I move on to the question of media reporting and the points raised by the noble Lord, Lord Pannick, and the noble Baroness, Lady Kennedy. The amendment that I have moved, which hopefully the House will accept, means that the parties to CMPs will be notified when an application has been made. In essence, the point was that this is not sufficient in terms of notifying the media. It is obviously a matter for the parties to the claim to decide whether to inform the media. This amendment will ensure that the judge notifies the parties, such that this will be disclosed in the normal
proceedings of disclosure that courts make. The noble Lord is looking at me quizzically. He will know more about this than I do, but when the judge notifies the parties that there has been an application, unless it is necessary for him not to do so in the interests of national security, that will be in the public record that exists in the court, which presumably the media are monitoring at all times. This is not about withholding information from the media.
Furthermore, if the media had the right to intervene in this process, it would be necessary for them to have access to all the material so that they could judge or come to a view as to whether it should be a matter for a closed hearing or not. That would be contrary to the whole point of a closed material procedure.
Lord Pannick: I am not of course suggesting that the media should have access to the closed material, any more than the claimant does. The claimant is notified but does not see the secret material. The point is that the media should also simply be notified, so that they can object to a closed procedure.
Baroness Stowell of Beeston: They will be notified, if not directly, by the process of the court notifying both parties to the claim. If the parties wish to notify the media, they can. The media will also be aware through the court disclosing its business in the normal way. The media will also be aware if the claimant wishes to tell them—as I am sure many will—about accusations that they wish to bring against the Government and the reason for them bringing the case in the first place. It is quite unlikely that the media will not be made aware of the application that has been made for a closed material procedure.
I would also add the point I made in Committee, that the media are not an institution with formal responsibilities to represent the public interest. Once they are notified formally in this way, it seems sensible or logical to me that they would then feel that they need to know more about the case—one limb of the amendment covers this—in order for them to have some kind of useful contribution to make about whether this should be a closed hearing or not.
Baroness Kennedy of The Shaws: In what way is this really significantly different from the many circumstances in which the press are excluded, or are advised not to print matters that are taking place in a court, such as the names of individuals, and a notice is posted to ensure that that is not done? We are really asking for a process of posting. The Minister is, of course, absolutely right that the rumour mill is likely to lead to people knowing and to the press finding out, but this is about making sure that there are formal processes rather than relying on the press being informed by lawyers, the parties or persons who would want the press to become interested. I would have thought that this is much better done through a formal process. I wonder why it is so different from other cases.
Baroness Stowell of Beeston: The amendment means that the judge will notify the claimant that the Secretary of State has made an application. Following
normal practice, the judge’s decision will be part of the public record and so the media will be informed of that in the normal way.
Obviously, the press will have access to all the open elements of the case in the same way as they have access now. The sort of scenario that the noble Baroness describes would be a normal open court hearing within which there are aspects that the judge has decided to put some rules around. This is a specific issue about an application for a CMP and is therefore slightly different but, in terms of the direct analogy with the open part of the hearing, it would be exactly the same.
7.30 pm
Lord Lester of Herne Hill: My Lords, I apologise for the fact that I missed the very beginning of this and it may be that in doing so I am about to say something stupid. However, am I right in taking from what the Minister is saying that the Government oppose Amendment 56 even though the Joint Committee attached enormous importance to this as a way of securing open justice without in any way damaging national security? In other words, in accepting Amendment 41, are the Government saying that Amendment 41 is instead of Amendment 56?
Baroness Stowell of Beeston: The point that I am trying to make, and I have made it several times, is that in the amendment that the Government are moving we are ensuring that it is now going to be part of the formal process of the courts to alert those who may be interested of the judge’s decision. As far as the media are concerned, we do not feel that it is necessary for there to be a specific notification to the media of the fact that the CMP has been applied for and consequently has been agreed or not agreed. There is nothing in that that is about withholding information.
The media report on other cases that use CMPs, in particular they are able to report on a finding on the issues. Indeed on other CMPs there does not seem to be a problem at all with the way that this works. In terms of the media being able to intervene in individual cases, which is another aspect to this amendment, civil damages cases that would be heard under this legislation are private law claims and it could be inappropriate for third party interventions to be made in such claims. The claimant may not want the media to intervene in the proceedings. I think that the most important point is that the outcome of all CMP cases will be reportable, increasing the opportunities for the media to report on these kinds of cases, as at present the Government are obviously having to settle rather than a claim being seen through to its conclusion.
I will turn to the other point that the noble Lord, Lord Pannick, raised about closed judgments, which is also covered in the JCHR amendments. It may be helpful for noble Lords if I briefly give some background on how closed judgments already work. There is a judicial safeguard on the use of closed judgments. In a case involving sensitive material, the judge must be satisfied that any material in the closed, rather than open, judgment would be damaging to national security and so could not be released. Special advocates can also make submissions to the judge about moving
material from the closed judgment to the open judgment. If the court is persuaded that there would be no harm to national security, the material can then be moved to the open judgment.
The Government believe that it is important that those that are entitled to access closed judgments are able to do so. For this reason, the Government have created a searchable database containing summaries of closed judgments that will allow special advocates and HMG counsel to identify potentially relevant closed judgments. It is worth making the point that this new initiative has been put in place following the various stages of the passage of this Bill, both in terms of hearings and of discussion at JCHR. I am grateful to all noble Lords who have led to that new database being available.
The amendments also propose a review mechanism. Although I welcome this suggestion, the Government do not think that this particular proposal would work in practice. As drafted, it could mean that a person could attempt to subvert the disclosure process built into closed material proceedings by applying for the information immediately after the court had decided what information should be contained within the open and closed judgment, and then at regular intervals thereafter. A person could also abuse the process and put in an application each day. This would place a serious resource burden on the courts and agencies.
Having listened to the debate today and the findings from the JCHR report, the Government recognise that the review of closed judgments is an important issue and needs further thinking. The Government therefore request that Ministers have more time to look into the issues and report our findings to Parliament during the passage of this Bill. Obviously this may be something that would be looked at in the other place. To conclude, I ask noble Lords to accept the government amendment not to have CMPs without notice. I hope from the course of this debate that the noble Lords who have amendments in this group feel able to withdraw them at this time.
Lord Beecham: Before the noble Baroness sits down, in relation to the amendment of the noble Lord, Lord Phillips, would it be a way forward for her to take that back so that it might be raised, if necessary, at Third Reading? It is very late and the Minister is in difficulty—I think that we are all in difficulty—in terms of understanding the implications of the amendment, so this may be a way through the dilemma.
Lord Phillips of Sudbury: I am grateful for that suggestion. I do not want to keep apologising, but I do think, if the Minister agrees, that that is the way to deal with this.
Baroness Stowell of Beeston: I cannot commit to anything at this stage, but what I can do is to consider the amendment outside the Chamber and certainly to have a further discussion with the noble Lord.
Lord Wallace of Tankerness: My Lords, I will also speak to Amendment 43, the effect of which would be to add the Supreme Court to the High Court, the Court of Appeal and the Court of Session as the courts that would be covered by closed material proceedings in the context of this Bill.
I think that it is important that there is consistency within the hierarchy of courts covered by these provisions. As I have indicated, this amendment would add civil proceedings before the Supreme Court of the United Kingdom to the list of courts in the Bill in which closed material procedures under Clauses 6 to 11 may be used. At present, the only courts for which this is available are the High Court, the Court of Appeal and the Court of Session.
I understand that there might be some concerns about adding to the list. The reason for adding the reference to the Supreme Court is to seek to put beyond doubt that the Supreme Court is empowered to apply closed material procedures. It was felt that the Supreme Court was likely to be considering points of law only and the Supreme Court already has some of its own bespoke procedures where it can exceptionally exclude parties from proceedings if in the public interest. However, after the Bill was introduced, the Government became concerned that omitting the Supreme Court might be a gap in the legislation. The lower courts would be able to rely on the procedures set out in the Bill but the Supreme Court—the supervisory court for those courts—would have either no exceptional procedure or a different one.
I do not think that the Government are naive. I think that we are realistic enough to realise that once we enact this Bill, the early uses of the procedure in the High Court almost certainly will be appealed in some form or another, and it seems quite likely that at least some of these appeals will make their way to the Supreme Court. This amendment will put beyond doubt the Government’s intention that the Supreme Court should continue to have the ability to consider sensitive material and ensure that we are not left in the very unusual situation of the highest court in the land not being able to adopt the same procedures used in the lower courts.
For completeness, I should add that noble Lords may have noted that the first set of rules of court under the Bill for the High Court and the Court of Appeal in England and Wales and Northern Ireland are to be made by the Lord Chancellor. This is simply a matter of ensuring that the implementation of the CMP provisions of the Bill can occur swiftly. We do not think that the same rationale applies for the Supreme Court. The first set of rules are to be made by the president of the Supreme Court, as now.
I very much hope that the reasons for adding the Supreme Court will satisfy your Lordships’ House. We are not talking about the horizontal scope of the Bill but the vertical reach, namely the courts in the hierarchy that may hear such claims.
Concern was also expressed in Committee that in the future the reference to “relevant civil proceedings” to which there could be an extension by order could include inquests and fatal accident inquiries. That was not the Government’s policy, as we made clear in our response to the Green Paper consultation. We had brought forward a Bill we believed would not allow any Government to add inquests to the definition of relevant civil proceedings now or in the future, but we were grateful to the Delegated Powers Committee’s consideration and we took on board its comments.
Likewise, the report by the Joint Committee on Human Rights also made comments regarding this order. I understand that the remaining concerns are to ensure that closed material proceedings should be used only when absolutely necessary and in a narrow and targeted context. It is for this reason that the Government have tabled an amendment to remove the order-making power completely; in other words, removing Clause 11(2) to 11(4).
I can assure your Lordships that this decision has not been taken lightly. Parliament has legislated for CMPs no fewer than 14 times over the past 10 years. It is conceivable that national security material may become relevant in contexts other than the narrow ones listed in the Bill. The impact of cases not being heard is felt by not only the Government but claimants, whose cases can be severely delayed. Nevertheless, the Government understand the importance of the issue. This amendment will set to rest any fears raised by the Joint Committee that the order-making power could have been misused or that this clause would open the door to commonplace use of CMPs. It will also put beyond any doubt that inquests are beyond the scope of the Bill.
My noble friend the Duke of Montrose has tabled an amendment to require the consent of the Scottish Government and the Northern Ireland Executive for the Secretary of State to make an order to amend the definition of civil proceedings. The Government are committed to properly respecting the devolution settlements, but if the amendments to delete the order-making power altogether are carried, my noble friend’s amendment would not be necessary. I hope that this also satisfies the amendment tabled by the noble Lord, Lord Pannick, and others that takes forward the recommendation of the Joint Committee on Human Rights. I beg to move.
Lord Pannick: I am very grateful to the Minister for confirming that the Government are proposing the deletion of Clause 11(2) and the order-making power.
I have a concern about Amendment 43, which includes the Supreme Court in the list of courts that will have power to make a CMP. Given the role of the Supreme Court as the final court of appeal in this jurisdiction, it is highly undesirable that it should decide points of law of public importance in judgments that the public and lawyers generally cannot see.
I do not intend to divide the House on Amendment 43. Given the amendments supported by the House earlier this evening, I would understand that the Supreme Court would have ample discretion to decide whether or not it is appropriate for it as the final court of
appeal to order a CMP, and no doubt it would wish to take into account the undesirability, if so perceived, of the Supreme Court issuing judgments that, at least in part, the public and lawyers generally would not be able to see. However, I raise that concern.
The Duke of Montrose: My Lords, I thank my noble and learned friend for the way in which he presented his amendments. As he notified the House earlier, if his Amendment 59 is approved, my Amendment 60 will become superfluous. I raise the point that without Amendment 59, there would be a very real danger that anything that the Secretary of State had decided to amend by order in the Scottish courts would be seen as meddling in the affairs of the Scottish legal system. At present, there is nothing more likely to inflame the amour propre of the Scots than actions such as this.
The possibility of this problem was drawn to my attention by the Law Society of Scotland. If Amendment 59 is adopted, we will have a much clearer and more workable piece of legislation than one that is likely to cause controversy. If by any chance it is not carried, I will still wish to bring my amendment forward.
The Bill appears to be walking a fine line on what might be termed issues that might require a legislative consent Motion in the Scottish Parliament and those that would not. Even now, Clause 6(7)(c) of the Bill gives powers to the Court of Session. I understand that early in Committee it was briefly drawn to the attention of the Justice Committee in Edinburgh. Can my noble and learned friend tell the House whether this question of a legislative consent Motion has finally and satisfactorily been resolved?
Lord Wallace of Tankerness: My Lords, as I indicated, the intention is that the Supreme Court should not have available to it powers that are available in the lower courts, but the noble Lord, Lord Pannick, makes an important point with regard to judgments.
With regard to my noble friend’s concerns, it probably would have been the case that had we had a power that involved Scottish Ministers, a legislative consent Motion would have been required. Although the Bill refers to the Court of Session, it has become abundantly clear in our deliberations that the substance of these matters relates to national security, and national security is very clearly reserved to the United Kingdom Parliament and therefore a legislative consent Motion would not arise.
7.45 pm
Baroness Stowell of Beeston: My Lords, I beg to move that further consideration on Report be now adjourned. In doing so, it is worth noting that the dinner break business this evening is not time-limited. Without prejudging the debate, it is possible that we may be able to return to the Bill in less than an hour. Following discussions in the usual channels, I suggest that Report will not resume for 45 minutes, so not before 8.31 pm.
Consideration on Report adjourned.
Care Quality Commission (Healthwatch England Committee) Regulations 2012
Motion of Regret
7.46 pm
Moved by Lord Collins of Highbury
That this House regrets that the Care Quality Commission (Healthwatch England Committee) Regulations 2012 (SI 2012/1640) fail to provide sufficient safeguards to ensure the independence of Healthwatch England from the Care Quality Commission, despite Government assurances given to the House at report stage of the Health and Social Care Bill on 8 March 2012, and that the regulations fail to provide for effective national patient representation in the health service.
Lord Collins of Highbury: My Lords, my purpose in tabling this Motion is to highlight how these regulations, in their present form, may undermine the one thing Healthwatch England needs to succeed: public trust and confidence.
As my noble friend Lord Harris of Haringey argued so brilliantly on Report, an effective organisation for patients must be measured against three basic criteria: first, independence from the providers, commissioners and regulators of health services, because a patient complaint may involve the need to challenge any or all of these interests; secondly, genuine grass-roots representation from groups and individuals—no top-down organisation; thirdly, that its work and comments be derived from sound local information.
Over the past 40 years, we have seen community health councils, then patient participation forums and, most recently, LINks. They may not have always fully met these criteria, but each built on the progress of its predecessor in delivering greater patient involvement. No matter how often the Government assert to the contrary, the arrangements proposed in these regulations do not pass the test of independence. They say that Healthwatch England will have genuine operational independence by ensuring that the majority of its members are not also members of the Care Quality Commission. However, under the regulations the Healthwatch England chair must consult the CQC chair before the first appointments are made. That does not exactly reinforce the notion in my mind of independence. However, even with this measure and some of the others in place, it remains difficult to see
how Healthwatch England can build public trust when its governance is controlled by the CQC, a body whose own organisation and resource problems have been so publicly aired.
The fear for many is that that the Healthwatch England committee will be rapidly absorbed into, and moulded and overwhelmed by, the dominant culture and infrastructure of the CQC. The Government have told us how important the duty of collaboration is within their reformed NHS. If that is the case, why not use this duty rather than leave Healthwatch England within the governance structure of the CQC?
The skill and ability of the new Healthwatch England chair will no doubt be a significant factor in whether it succeeds. I congratulate Anna Bradley on her appointment. Having worked at Which? for many years and been a former chief executive of the National Consumer Council, she is extremely well qualified to meet the challenge. From her public statements, it is clear that she fully appreciates that for Healthwatch England to succeed it must meet the challenge of independence and effective patient representation.
A key to this will be the strength of the local Healthwatch network. As local Healthwatch develops during the next six months, it must show that it listens to patients and service users and captures their feedback, a role that LINks have performed with distinction in many areas.
However, with no clear rules in law, we are potentially left with a range of different local social enterprises determining national representation. By not providing statutory status to local Healthwatch, the Government missed the opportunity for them to be organisations that were fully trusted and supported by patients and public alike. At the launch of Healthwatch England, Anna Bradley also acknowledged that, with stretched health and social care budgets, an ageing population and significant systems reform, it was essential that HWE be focused on real people, their experiences and their needs. She said that Healthwatch England would actively seek out evidence from all sections of the community and collate it to find out what needed to change. I fully understand her desire to ensure that such evidence is not dependent on those who shout the loudest. She said that Healthwatch England would go out of its way to hear from those who sometimes struggle to be heard. However, I fear that, with these regulations, we will have a body that is perceived to be appointed from high—a top-down organisation which is not representative. The 10 members recently appointed to Healthwatch England have highly relevant knowledge and experience, and I have no doubt that their specific skills and expertise will be a tremendous asset to its work—three have been appointed because of their specific local involvement. However, to be genuinely representative, there is a case for more, if not a majority, to be drawn from local Healthwatch.
Healthwatch England will be looked to by 152 local Healthwatches as an organisation that understands and has experience of both national and local problems and issues, including the special needs of deprived communities, people suffering as a result of health inequalities and people living in rural areas. The
connection between local Healthwatch and Healthwatch England must be more than a brand, a name and a conversation.
The decision to restrict local Healthwatch membership of Healthwatch England to only four members, one from each of the four NHS regions, Greater London, North, Midlands and South, appears totally inadequate. In addition, the decision to restrict from 2013 local Healthwatch membership of Healthwatch England to people described as “directors” of local Healthwatch organisations is limiting and confusing.
Not only is there a risk of reduced funding with local authorities commissioning local Healthwatch, some of which we have already seen in the tendering process that has commenced, but there is also huge potential for conflicts of interest. Can we really ask a patient or carer to have confidence in a complaint being properly pursued when it involves a regulatory failure in a local authority social service? I am sure that patients will see the potential conflict of interest even if the Government cannot.
We are facing the prospect of fragmented services being delivered by multiple providers even within a single local authority. One issue of particular concern for me, which I have raised previously in the House, is the patient advocacy service, used by adults, young people and children wishing to make a complaint about NHS healthcare. There are currently three providers of the Independent Complaints Advocacy Service in England, commissioned by the Department of Health centrally. In future, this will be commissioned instead by 152 local authorities. It has been estimated that this will add £2.2 million to the cost of the service—which currently costs £11.7 million—massively reducing what is available for other patient services provided by the Local Involvement Networks.
Further, while there will be only one local Healthwatch contracted in a single local authority, this body will be permitted to subcontract most, if not all, of its activities. This will result in some areas in multiple contracts, solicitors’ fees and all the other on-cost of commissioning. The waste of public money on contracting is absolutely appalling.
In the end, it will come back to how the structure proposed in these regulations will play out in practice and how conflicts of interest between Healthwatch England and the CQC, or indeed Healthwatch organisations in local authorities, will be dealt with. The issues that the Minister must therefore address and questions that he must answer tonight are: how will public trust be maintained when a complainant about a CQC investigation into a care home discovers that the body investigating the complaint or championing improved quality of care on behalf of patients is a committee of the CQC itself? How will the culture clash between Healthwatch and the CQC be addressed and managed? How will the Minister, to quote the word used by many in this House, stop CQC “suffocating” Healthwatch England? How will he ensure that potentially serious conflicts of interest are dealt with?
I conclude with the issue I started with: public perception and understanding of, and confidence in, the independence of Healthwatch. It is important that Healthwatch is seen to be credible and truly independent,
able to challenge and to scrutinise the work and decisions of the regulators, both CQC and Monitor. We need an independent Healthwatch England and we need local Healthwatch bodies that everyone can rely on to be genuine patient representatives. I am afraid that these regulations give us neither.
8 pm
Baroness Jolly: My Lords, I will not speak at length this evening and will speak mainly of the issue of the independence of Healthwatch England. I was at the launch of Healthwatch England and met some of the members of the committee. As the noble Lord said, many come from wide and relevant backgrounds, and they were really enthusiastic about the task in hand. They represent all regions of the UK, disabilities and gender. I understand that the full committee is now appointed.
There is an undoubted need for a patient watchdog, as we have heard. Many hours were spent in debate in this Chamber, in Committee and on Report, on the Health and Social Care Bill to try to mould it as best as possible to achieve that. During that debate, some of us carried out a campaign with Ministers outside the Chamber as well as inside, but there was no acknowledgement that the siting of Healthwatch England as a committee within the Care Quality Commission would cause concern. Indeed, it was said that the connection would be beneficial to the process and result in improved channels of communication.
Those arguments are now past, and Healthwatch England is now constituted, but the secondary legislation we are discussing today is silent on the issue of independence. We are left to wonder whether that is a missed opportunity or a deliberate omission. I always look on the bright side, so let us assume that it is a missed opportunity.
We know that the chief executive officer of the CQC holds the budget for Healthwatch England. What safeguards are in place to ensure that the money is not used to support core Care Quality Commission business or, indeed, to prevent the board of the Care Quality Commission, of which the chair of Healthwatch England herself is a member, saying that the way that the Healthwatch England committee wanted to spend the allocation was not as it thought fit?
If so, where does that put both the Care Quality Commission and Healthwatch England—and, indeed, the confidence of the public in their watchdog—if a future chair of Healthwatch England goes native or a chair of the Care Quality Commission becomes overbearing? That is a reflection not on personalities or individuals but on roles and responsibilities. Both current incumbents of those positions have assured me that that could never happen, but we all know of instances where what seemed perfectly good appointments change the way that they work over time. Working arrangements honoured under one regime may not carry over to a successor.
I commend the work that Anna Bradley has done thus far in setting up the organisation and her commitment and understanding of the role. She has said:
“We will be accountable to Parliament not the CQC ... We will work with the CQC as strategic partners. Guarding that independence will be a very important aspect of my job and the committee’s job”.
As I said, Anna Bradley sits on the Care Quality Commission board as part of her role and is appointed directly by the Health Secretary. She is adamant that the patients’ champion will be fully independent from the regulator.
A set of arrangements has been developed to safeguard the independence of Healthwatch England, whose budget—£3 million in 2012-13—is determined by the Department of Health. Healthwatch England will have full editorial independence over its publications; its committee will set its own priorities; and the chair will appoint the committee, ensuring that a majority are not Care Quality Commission commissioners, and oversee the work of Healthwatch England’s director, its senior officer. Any disputes between the Care Quality Commission and Healthwatch should be resolved through “open and frank discussion”, with the Department of Health responsible for resolving any intractable issues.
The Government’s intention was clear about the independence of Healthwatch England when the Bill was being debated, and it is to be regretted that that did not find its way into legislation or this secondary regulation. This organisation will be closely watched. Its relationships with partners are clearly defined in legislation. Its first chair has been absolutely explicit about its independence very early in her appointment, with the clear support of both the CEO and the chair of the hosting organisation, the Care Quality Commission.
I want Healthwatch England and local Healthwatch to succeed. We owe that to all patients across the country. With all the changes working their way through the NHS and the care system—it is essential that, despite its name, we should not forget that Healthwatch watches after health and care—it is imperative that it is working as efficiently as possible to its agenda, not that of the many stakeholders. For the sake of the public, those in receipt of care, it must succeed.
I would welcome reassurance from my noble friend that the lack of regulation or independence will not impede Healthwatch England’s independent operation and an indication of how that can be guaranteed.
Lord Harris of Haringey: My Lords, I am pleased to have the opportunity to follow the noble Baroness, Lady Jolly, on this Prayer. She has highlighted the weakness in the Government’s position. I am confident that the people who have set up Healthwatch England are of good will and that they intend and wish it to work; that Anna Bradley will be an excellent person as chair of Healthwatch England; that the outgoing chair of the Care Quality Commission is committed to making it work; and that the chief executive of the Care Quality Commission is committed to making it work. I even believe that Ministers in the Department of Health are committed to making it work.
The problem is that we are provided with a framework of regulation which does not guarantee that in future. One or two appointments down the road, with a new leadership of the Care Quality Commission and, perhaps, with different Ministers at the Department of Health, how will those things be ensured, especially if budgets remain tight and Healthwatch England starts to be effective and makes criticisms which are difficult for
Ministers—or, worse still, in this context, for the Care Quality Commission? That is when those problems may arise.
That is why, when the Bill was passing through this House, there was so much concern about the importance of independence for the Healthwatch structure. My concern is that, given that the legislation has passed, this is a wasted opportunity to make it stronger.
One of the lessons that is expected to come from the Mid-Staffs inquiry relates to independence. The report is expected to identify the systemic failure of organisations to focus primarily on the needs of the patients of that hospital. Because each was looking at its own area, nobody was taking the step back to say, “How does this work from the point of view of patients?”. That is where Healthwatch should come in and be influential: to cut through the complicated organisational structures which the Health and Social Care Act has bequeathed to the NHS. That is why the simple issue of how it preserves its independence is so vital.
When the Bill was going through Parliament, the noble Earl held a meeting to discuss how Healthwatch England should work. He made the point that there would be valuable synergies from Healthwatch England being located within the Care Quality Commission. He did not stress, but it was clearly part of the equation, that there would also be some useful cost savings associated with that. The cost savings could be achieved in a whole variety of ways. It would be possible to have an agency agreement whereby some of the back office functions were provided by the Care Quality Commission or any of the plethora of structures that the Health and Social Care Act has bequeathed to the NHS. Similarly, because the duty of co-operation exists, you would hope that those synergies could be activated without the need for the Healthwatch organisation to be subservient to the Care Quality Commission. It would have been possible in these regulations to create a structure which, while preserving the general framework of the Act, would ensure that there was independence.
If we look at the regulations that we have before us, we see a number of flaws. First and foremost, for example, is the size of the Healthwatch England committee. Potentially, this will be a committee of as few as six members. I appreciate that in the initial instance it is larger than that, because people of goodwill are trying to make this structure work. However, in three, four or five years’ time there may not quite be the same atmosphere or there may be a feeling that the wings of Healthwatch England need to be clipped back. In any event, with six to 12 members it is going to be extremely difficult to ensure that there really is the geographical diversity that is necessary; the coverage of all the many major areas of special need that exist as far as health and social care is concerned; and proper recognition of ethnicity and gender within that. Again, the initial membership has provided a reasonable attempt to achieve that diversity, but where is the guarantee of that in the future?
I know there is a feeling that small boards work well. The noble Baroness, Lady Cumberlege, who is not in her place on this occasion, has talked to us glowingly about the value of having small, dynamic boards to run organisations but this is a different sort
of organisation. It is supposed to be one that represents the generality of the interests of patients across the whole country and which derives its authority from what is happening in local Healthwatch organisations around the country—the 150-odd local organisations that will exist. It is therefore not appropriate to have a small board in such a case, as it is not the same sort of structure.
Then we have the rather strange arrangements for the appointment process. In the first instance, the chair of Healthwatch England has to get the approval of the chair of the Care Quality Commission before appointments can be made. The future arrangements are that the chair will make the appointments directly but let us be clear: the chair of Healthwatch England is a Secretary of State appointment and has the potential to be the poodle of the Department of Health. I have been in the position of being in charge of the organisation representing patients and I remember successive Secretaries of State, from two parties, making attacks on the organisation because we were being effective and raising issues that were uncomfortable.
Under those circumstances, can we be satisfied with a future arrangement whereby the Secretary of State solely makes the appointment of that individual, who then appoints all the other members of the Healthwatch England committee? In the initial stage, you have a double lock where the chair of the Care Quality Commission gets involved but in future you will have someone who might be appointed as a poodle or to muzzle the watchdog nature of Healthwatch England appointing individuals who are, no doubt, like-minded. That is why the arrangements are strange.
We then have the provision for suspending members, which is set out here. Presumably, the suspension is different from disqualification but the Secretary of State may dispense with the chair of Healthwatch England for a variety of reasons, which includes,
“failing to carry out those duties”.
Who is going to determine what those duties should be? Essentially, we are being told that the Secretary of State will decide what he or she thinks is appropriate for Healthwatch England to be carrying out. Again, the chair then has similar powers in respect of individual members. I make a specific request of the Minister: that in his reply he spells out absolutely that it will not be appropriate for either the chair or the members of Healthwatch England to be suspended from their membership if they are pursuing their interpretation of what is in the interests of patients and their organisations, and the people that they represent.
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Because of the requirement saying that the chair of Healthwatch England must be a member of the board of the Care Quality Commission, we are inevitably creating that subservient relationship. Will the chair of Healthwatch England be subjected to, in essence, the collective responsibility of the members of the board of the Care Quality Commission? There have been recent issues with the membership of that commission’s board, where the chair has taken a different view about what the role of individual members should be. That has led to conflict and serious problems.
Let us pan forward a few years: if the chair of the Care Quality Commission does not like the approach being taken by the chair of Healthwatch England, are they then able to say, “You are not fulfilling your duties as a member of the board of the Care Quality Commission because you are not abiding by the collective responsibility of that board’s members. I am therefore asking the Secretary of State to remove you from office and suspend you because you are not fulfilling your roles”? Even if that does not happen we will have, as my noble friend Lord Collins said earlier, the appearance of potential conflict of interest. Ultimately, how are the public going to have confidence in a structure where it looks to them as though the leadership of Healthwatch England is subservient to the Care Quality Commission, one of those important agencies about whose effectiveness it may have to make criticisms?
We should remind ourselves that the aim of all this is to enhance the collective voice of patients in the NHS. You will succeed in doing that only if the public at large have confidence in the structures that you have created. If you build into them the appearance of subservience and potential conflicts of interest, you are weakening that voice. That cannot in any way be in line with what either your Lordships would expect to see from this, or indeed with what I believe Ministers’ intentions to be as far as Healthwatch England is concerned.
Baroness Masham of Ilton: My Lords, the Explanatory Memorandum to these regulations states:
“The instrument also places a requirement on the chair to ensure that arrangements for the selection and appointment of persons take into account the principles of openness and transparency”.
The votes this evening illustrate that people want openness and transparency, and I commend this. I would like an assurance from the noble Earl, Lord Howe, that the members of Healthwatch England and the local Healthwatches will be treated well. As volunteers, LINks members have not been given enough support. It is disappointing that Healthwatch England will not be independent. It must not become a puppet of the CQC, which has had problems, and the local authorities that host it.
There is an immense amount to do to keep patients safe in the health service—those in care homes and those with mental problems. One hopes that Healthwatch England will support local Healthwatches. When there is so much fragmentation and so much to do, will the CQC and Healthwatch manage to cope? I hope there will be spot checks, otherwise inspections do not mean very much, as has been shown in the awful problem of the care home near Bristol. I hope that the Minister, who I think believes in independence in his heart, can give us some assurances tonight.
Lord Whitty: My Lords, I do not want to repeat the arguments that have been made. I was going to repeat the arguments that I made about the history of consumer representation in other sectors, but time is against us. The conclusion from that would be that independence and the perception of independence are vital for all the reasons that my colleagues have spelt out today. The Act is there, and the regulations will be there after
tonight, but the Minister at least ought to be prepared to say that he will review the situation after, say, two years. If he were prepared to say that tonight, I would give Anna Bradley, who I have great respect for, and the other members the chance to prove that this situation works, but it might also show up some strains in it. If the Minister could say that, I would walk away tonight a happier man.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, the noble Lord, Lord Collins, has posed a number of questions about Healthwatch England and how it will work within the Care Quality Commission, and I welcome this debate. In view of the time constraint, I am not sure that I am going to be able to cover all the points, particularly those relating to local Healthwatch, but I will do my best.
First, I would like to take a step back to the White Paper Equity and Excellence: Liberating the NHS where our first plans for Healthwatch were set out. The Health and Social Care Act 2012 was passed by Parliament in March this year and enacted the proposals for Healthwatch to be the new consumer champion for people in health and social care. As a result, locally and nationally, Healthwatch will bring about better national leadership on public engagement and better communication for patients, service users, members of the public and communities to enable their concerns to be heard and acted on.
In the debate on the Bill in the Lords, the Government made it clear that Healthwatch England has an important role to play for patients and the public to present their views on health and social care at the national level to inform service improvements. Accordingly, the 2012 Act set up Healthwatch England to be the national body that would present the collective voice of the people who use health and social care services so as to influence national policy, advice and guidance. The Act sets up Healthwatch England to have relationships with other national bodies, such as the NHS Commissioning Board, Monitor and the Care Quality Commission itself, and with local authorities and the Secretary of State. Healthwatch England has the power to advise these bodies and the Secretary of State for Health, which could include making recommendations, and the recipients of such advice are under a statutory duty to respond. This is an important power for Healthwatch England to drive the consideration of issues, get a response and make the correspondence public, which I believe is a very tangible way of delivering openness and transparency in how these bodies respond to the issues that Healthwatch England raises. That could be a matter relating to the actions of the CQC itself.
I believe that these arrangements will engender trust. They will also embed the patient and public voice and the experiences of patients and the public at the heart of services. Healthwatch England is able to build other national relationships, such as with Public Health England. In addition, Healthwatch England will provide the leadership and support to a network of local healthwatch organisations which, in turn, will feed back the information from local people and communities to inform the national picture of what needs to be heard, and acted upon.
Since the Act was passed, the Healthwatch England committee was launched on 1 October at a stakeholder event hosted by the first chair of Healthwatch England, Anna Bradley. The chair has appointed to the committee 10 members so far who, collectively, bring the range of expertise and experience required for Healthwatch England to operate strategically at the national level. Those members were shortlisted and interviewed by a selection panel through an open and transparent process. Independent members of the panel included Joe Irvin, chief executive of the National Association for Voluntary and Community Action, and the criteria were drawn up in consultation with external stakeholders.
I shall name the 10 members for the benefit of noble Lords. They are: John Carvel, who was social affairs editor of the Guardian for nine years and a Guardian staff writer for nearly 40 years; Alun Davies, who has worked as a policy and planning manager in an adult social services department in a unitary council in the south-west and has been actively involved in disabled people’s politics; Michael Hughes, an independent policy and research adviser who was the director of studies for six years at the Audit Commission overseeing national reports on a range of topics including adult and children’s social care; Christine Lenehan, who is director of the Council for Disabled Children and has worked with disabled children and their families for over 30 years; Jane Mordue, who is deputy chair of Citizens Advice; Dave Shields, who was a health and well-being strategy manager for Southampton City Council, developing the city’s health and well-being partnership; Patrick Vernon, who was the chief executive of the Afiya Trust, one of the leading race equality health charities in the country and previously worked as regional director for MIND; Christine Vigars, who is chair of Kensington and Chelsea LINk and a trustee and former chair of Age UK Kensington and Chelsea—she has taught social work and worked in community care development in the voluntary sector; David Rogers OBE, who is a councillor for East Sussex County Council and chairs the Local Government Association’s community well-being board; and Dag Saunders, who is chair of Telford and Wrekin LINk and is one of two representatives for LINks on the Healthwatch programme board at the Department of Health. I hope the House will agree that this membership will give Healthwatch England not only strong and independent leadership but also the right skills and knowledge in relation to the commissioning and delivery of health and social care services, as well as on public engagement, consumer advocacy, equality and diversity, and specialisms such as children and young people.
The noble Lord, Lord Collins, has questioned the extent to which Healthwatch England will be able to act independently. I suggest to him that it will be able to do this in a very real sense. Healthwatch England will set its own strategic priorities, separate from the CQC; it will have its own operational and editorial voice, again separate from the CQC; and it will develop its own business plan and take responsibility for managing its own budget.
Under the leadership of its new chair, Healthwatch England has already made great progress in putting arrangements in place to ensure that it will function
independently of the Care Quality Commission, while benefiting from its position as a statutory committee of the commission, without compromising good governance and lines of accountability. In fact, the benefit of this structure runs both ways. It will immensely strengthen the link between the views of patients and the public and regulation. The advice that Healthwatch England provides to the Care Quality Commission will enable the commission to address failings in the provision of health and social care services. It will also enable the commission to address any local risk management systems and, at the same time, Healthwatch England will have the commission’s offer of valuable expertise in data management, the gathering and use of intelligence, analysis, and an evidence base of information to pool and share knowledge. The CQC has publicly committed in its consultation document on its strategy for 2013-2016 to make the most of the opportunity Healthwatch offers and to support its development to make sure people’s views, experiences and concerns about their local health and social care services are heard. The CQC has made it clear that people’s views, experiences and concerns will more systematically inform its work.
Working as a committee within the Care Quality Commission makes Healthwatch England very well placed to connect people’s concerns about safety and quality with the work of the commission. This symbiotic and symbolic relationship is unique and will go a long way to embedding what I know noble Lords want to see, which are the voices of the patient and the public at the heart of care.
I was asked what will happen if Healthwatch England goes off the rails in some way or goes native. The Secretary of State has a duty to keep the performance of the health service functions under review. That requirement involves keeping the effectiveness of the national bodies under review; these bodies are listed in the Act. The list includes the Care Quality Commission, and Healthwatch England as its committee. That reassurance should go a long way to make sure that the functions that these bodies are meant to perform are ones on which they will be held to account.
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My noble friend Lady Jolly asked about the Healthwatch England budget. Healthwatch England has been allocated £3 million for this financial year. In future years, the budget will be negotiated with the Department of Health in the same way as that of the Care Quality Commission. Healthwatch England’s budget will be held by the CQC, but will be kept separate from that of the CQC so that it is safeguarded and only spent on Healthwatch England functions. It will be accounted for separately in public accounts.
Healthwatch England is now here, real and ready to take forward the task we have given it to be the national consumer champion, leading the way for its Healthwatch network to have coherence. The first chair, Anna Bradley, has publicly stated that Healthwatch England,
“will actively seek views from all sections of the community to build a national picture of what matters most to local people and make sure their views and experiences are really listened to, analysed and acted upon. Better health and social care services has to be the result”.
Let us not doubt what it can achieve before it even starts; how it can work at meeting the challenge we have given it to be truly the patient and public voice; and how it can embed that very voice in the new health and care system.
I ask the noble Lord, Lord Collins, and noble Lords opposite in particular, to support Healthwatch England, with Anna Bradley at the helm, to achieve our common goal, which is to build confidence among the public that they will be heard—that confidence is important—and to do that in the interests of health and social care services, and the outcomes that those services deliver.
Lord Collins of Highbury: My Lords, I thank the Minister for his response, and all noble Lords for their contribution. The noble Baroness, Lady Jolly, said that this was a missed opportunity and I am glad that she recognises that on this occasion. I wish that, on Report, we could have pushed through some of those concerns in a much more positive way. I am afraid that it is still a missed opportunity in view of the contribution from the noble Earl. As my noble friend Lord Whitty says, there was an opportunity today to state publicly not only a genuine commitment, but how we can translate that commitment into the assurances that the public will want. I hope that the Government will keep this matter under review. It is a sad fact that we have an organisation whose formal governance is under the Care Quality Commission. The chief accounting officer of Healthwatch England will not be Anna Bradley; it will be the Care Quality Commission. That poses some fundamental issues for the public.
Nevertheless, we have had a good debate. Everyone on this side of the House wishes Healthwatch England every success. We certainly wish its new chair every success. In the light of the debate, I beg leave to withdraw the Motion.
Justice and Security Bill [HL]
Report (2nd Day) (Continued)
8.34 pm
Lord Dubs: My Lords, in the earlier debates this evening, we discussed the CMPs at great length. As I said in passing, many of the arguments against or seeking to modify the CMPs could easily have ended with a move to abolish them altogether. So in one sense, the case has already been made, except that I have to go back over it briefly. We are talking about probably the most fundamental aspect of the Bill: whether or not we should have anything like CMPs on our statute book at all.
CMPs represent, as was said earlier, an absolutely fundamental change in our judicial system—more fundamental than, perhaps, was fully appreciated. For the things that will fall under CMPs, it is the end of
our adversarial system, when judges will no longer have to hear both sides of an argument in order to come to conclusions. It has been said by people who are more expert than I that if you take away one side, then injustice is virtually guaranteed. Our adversarial system depends upon two sides: two parties. Without that, our system can hardly be assured of providing justice. Indeed, it may well not do that at all.
We are, after all, talking about 350 years of applying a principle and doing this in practice. If we depart from such a fundamental principle, we are damaging our basic freedoms. It means that citizens can no longer challenge the powers that be in court and be heard openly in doing so. It takes away one of the most fundamental rights of the British citizen: that they can go to court, that they can challenge authority and the powers that be. That will no longer be possible.
Indeed, this will tarnish the reputation of British justice. I understand that at least one newspaper in Russia has already commented—approvingly or not, I do not know—that these proposals will provide secret courts. Maybe the Russian paper thought that that would be a good idea, or was seeking to justify something in that country. Certainly, however, if other countries are already commenting before we have even passed the legislation, we ought to be pretty careful about it.
Of course, as has been said before, the system will work on whispers. The Minister or the Government will whisper to judges and the decisions will be made accordingly. Indeed, David Anderson QC, the independent reviewer of terrorism, who has often been quoted this evening, has said that these measures cannot be justified on security grounds. He had other reasons for justifying them in terms of cost or not paying people money, but, on security grounds, he did not think that they could be justified.
One of the concerns, which has been expressed quite frequently, is that if you give a Government powers, even on a limited basis, they will inevitably start using them more widely. This is no disrespect to any Minister—it is simply the way the system works. We can all visualise a civil servant saying to a Minister, “Well, Minister, you know you do have the powers to do this, and they’re on the statute book”, and the Minister will say “Hmm, I forgot that”, and then “Can I get away with it?”, or “Will Parliament notice?”, or words to that effect. This is how Governments of all colours work. We therefore have to be careful that when we give powers that are intended to be limited, they will inevitably be used more widely. The special advocates themselves—all those consulted in a survey, which was almost all of them—said, I believe, that this whole idea was “incurably unfair”.
I want to give one example. I have lots of them, but I do not want to trespass on the time of the House too much. I have a document here which was in fact produced by the Ministry of Defence in court, so I am not giving away any secrets, though it was headed “Confidential” before it went into court. It is produced by an organisation called the United Kingdom Detention Oversight Team, or UKDOT. Its job is to visit detainees in Afghanistan who are held by the Afghan authorities. I will quote from this document, because it came out in court because we did not have CMPs. If we had had
CMPs, it is almost certain that none of this would have been known. The document is headed “Electric Flex-Redux”.
“The team arrived. On arrival we interrupted an interview (we conduct our interviews in one of the two interview rooms) which caused the interrogator and prisoner to vacate the room in haste to accommodate the UKDOT. In the interview room we found on the floor behind the interviewer’s desk the same UK socket electric flex the UKDOT had seen on a previous visit”—
It refers to the visit in September and then continues:
“We took a photograph of the flex (see photograph) and after a few minutes a guard appeared and, in an uncomfortable silence, removed the flex: no explanation was offered and, for fear of causing a scene, none was asked for”.
I have here a photograph of the flex lying on a carpet. There may be an innocent reason for this, and this is not an investigation of how this operated. The point is, this would never have come out if we had had the legislation that the Government wanted. Therefore, I argue that the CMPs would help cover up things that we ought to know about. It would not have come to light if the CMP had been in use at the time.
I will conclude with the following. I was a member of the JCHR some time ago, when we produced the first report on these proposals, although I was not a member when it produced a second report. However, both reports have a number of things in common, one of which is that they said that the Government had produced no evidence to substantiate the use of CMPs. In the end, that is the most crucial argument. We are stumbling along, setting a very dangerous precedent, as far as our judicial system is concerned, and we are doing it without the evidence that would justify such a dramatic and drastic change. All we have is the say-so that there are a number of cases in the pipeline—and I do not doubt the Minister’s good will—which might or might not come under this system, and which might or might not contain something important that would be revealed if we did not have CMPs. No evidence produced by Government could justify this major piece of legislation. I beg to move.
Lord Strasburger: My Lords, when I spoke to your Lordships’ House on Second Reading, I highlighted how the injection of closed material procedures into our civil justice system would infect it with unfairness and corrupt it with secrecy. Currently, the British people hold their courts in high regard, and respect their decisions. This is partly because our judges are seen as incorruptible, independent and wise, but the main reason is that court decisions are the result of a fair and transparent process. In an adversarial system such as the English one, the right to know and challenge the opposing case is not merely a feature of the system—it is the system.
Judges do not have the resources or power to investigate the merits of the case themselves. They depend upon the process in which both sides assemble and present their evidence, and then challenge each other’s cases. They then judge which case is the stronger in the light of those mutual challenges.
The Government have stated that,
“protecting the public should not come at the expense of our freedoms”.—[
Official Report
, 19/6/12; col. 1660.]
This seems to be precisely the cost that the Government wish to exact in the name of greater security. In fact,
the Bill does very little to provide the public with greater security, while giving an unacceptably high level of protection to the security services from exposure of their alleged wrongdoings by the civil courts.
The Government would need to advance the most persuasive reasons to justify such serious damage to our civil justice system. They have completely failed to do so. That is the conclusion that the Joint Committee on Human Rights came to. It stated:
“We remain unpersuaded that the Government has demonstrated by reference to evidence that there exists a significant and growing number of civil cases in which a closed material procedure is ‘essential’”.
Listen to the clear opinion of the special advocates, the government-appointed lawyers who spend much of their time working at the coalface in this dark and murky part of our legal system. A memorandum about the Bill, which was signed by 59 out of 67 of them, states that,
“the Government would have to show the most compelling reasons to justify their introduction”,
referring to the CMPs. It went on to say,
“that no such reasons have been advanced; and that, in our view, none exists”.
The Government have completely ignored this highly authoritative condemnation of the need for the Bill. The only comments that I can recall are an admission by the former Lord Chancellor that,
“the evidence of the special advocates most unsettled me”.
But he has done nothing to correct his unsettled condition and I presume that he is still unsettled, as I am.
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The Minister has not responded to the special advocates’ strong evidence but instead has showered them with praise for the work that they do. I say to my noble and learned friend that if he respects the special advocates so much, listen to them, stop ignoring them and drop CMPs from this Bill. In case that idea falls on deaf ears, I will carry on.
What are the Government’s justifications for all the damage that they want to do to our civil justice system? Many justifications have been and gone. However, one keeps coming back but without any evidence to support it. It is this: the Government argue that the Bill is necessary because otherwise they will be forced to settle claims and to pay damages, even when they have a good defence, because they cannot use secret evidence without risking harm to national security. That sounds very beguiling and plausible, does it not? However, it is flawed as a matter of principle and is factually incorrect.
The Government usually point to the Guantanamo litigation as their example of a case which had to be settled because they could not defend themselves without a closed material procedure. I am not aware of any other identified case that they have put forward. As a matter of principle, it is no answer to the claim that the system is unfair to the Government to introduce a procedure which means that they can use the secret material, but that the other side cannot see it and is therefore unable to rebut it. All that has been achieved is to substitute one form of unfairness for another, and the new unfairness is much worse.
Under the existing PII system, which works very well, the inability to use a document affects both sides equally. But a closed material procedure will always give the Government an unfair advantage. It destroys the fundamental principle of equality of arms, as well as one of the pillars of natural justice.
In any case, defendants and claimants settle claims every day of the week because they do not wish to disclose confidential, damaging or embarrassing documents, or do not want particular evidence to be given in court and reported publicly. There is no good reason why the Government should be uniquely entitled to bypass this normal and salutary part of the pressure of civil litigation by having at their disposal a procedure that enables them to fight their case in secret and in the absence of the other side
The Government’s reliance on the Guantanamo litigation as an example of a weak claim against them—that they were forced to settle because they could not use a closed material procedure—is disingenuous for two reasons. The Government settled the Guantanamo claims, by mediation, before the Supreme Court had ruled that closed material procedures were not permissible. The Government can hardly assert that they had to settle because they could not invoke CMPs. The decision on whether a CMP was permissible or not had not been taken when the Government chose to settle.
Furthermore, a significant quantity of evidence had already been disclosed in the case and it was apparent that the Government did not have a good defence to the claims. In fact, they were very far from having a good defence to the claims. That is likely to have been the real reason for the settlement, together with the desire to avoid the public embarrassment that would have followed exposure of the fact that, while publicly condemning rendition and Guantanamo in Parliament, the Government were actively involved in interrogating prisoners and assisting the USA in its torture and rendition programme. Therefore, the Government’s star case—in fact, their only case—to support the assertion that they are having to settle cases that they could have won with CMPs just does not stand up and is discredited.
So where are all these cases on which the Government rely? The JCHR was told that the Government had a number of other cases that were “posing difficulties”. This number was at different times put at 27, 15, six and three—and, since the JCHR reported last week, it has become 20. I do not know what noble Lords think, but to me this sounds more like parliamentary bingo than rational law-making. In any event, the Home Secretary declined two requests from the JCHR to let the special advocates evaluate these cases. We should remember that the special advocates are government-appointed security-cleared lawyers. The Home Secretary refused to see whether any of them supported the Government’s contention.
The special advocates’ response to the JCHR was as follows:
“There is as yet no example of a civil claim involving national security that has proved untriable using PII and flexible and imaginative use of ancillary procedure”.
That is coming from the special advocates, who are the people who really know what they are talking about, and really understand these cases. And still the Government keep repeating their claim that there are cases where PII cannot cope and which need CMP, as if saying it often enough will make it come true. It is not true; there is no evidence to support it, and there is no evidence to support this claimed justification.
As to the JCHR amendments, they address the regime around CMPs, tighten it up and will reduce the frequency with which the Government can use CMPs—and I voted for all those amendments. But with all those JCHR amendments, we still end up with CMPs inserted into our civil justice system, where they have no place. They are still unfair, still secret and still incompatible with our adversarial common-law system. Only one set of amendments tonight deals with the unfairness and secrecy of CMPs—only one that ejects them from this Bill. That is the one led by Amendment 45, and I commend it to the House.
Baroness Kennedy of The Shaws: My Lords, I should say immediately that I am a member of the Joint Committee on Human Rights, and I supported the amendments that have just gone through this House. But in fact my position is quite a clear one; I do not approve of the closed material procedure at all. I was prepared to make concessions and vote for the amendments that have just gone through, but really I do not think that it is needed at all.
This country is just emerging from a very dark period in our history in which there is compelling evidence that in the aftermath of 9/11 our intelligence services departed from the standards that we would expect of them and became too closely connected with those who torture. There has been evidence of involvement in rendition, and allegations of being too closely proximate to places where torture has been taking place, providing questions and information to interrogators who have used horrifying procedures to extract answers from people who are detained. Unfortunately, our desire to be a supportive ally to the United States of America often led us into activities that are unacceptable but should not have been covered up by secrecy—and nor should they be in future. It is important for the good standing of our country in the world, but also for the standards that we normally set ourselves, that that history is placed before the public, and that we know that it happened so that it cannot happen again.
I accept that there are matters of national security that should not be in the public domain, but national security cannot be used to cover up conduct that is criminal and which debases our standing in the world. Over many years of practice in the courts I have done many cases involving national security, and I am sensitive to the issues involved. The prohibition of torture is one of the few absolutes in the law of human rights. The United States of America forgot that in the Bush era, despite being a signatory to the conventions, as indeed we are. It insisted on calling its methods, “enhanced interrogation procedures”—anything more than waterboarding being outsourced to other countries that were not quite as squeamish.
I support the amendment because the flag of national security is too often a flag of convenience to prevent shameful or embarrassing conduct being exposed. We have well established procedures in our courts and our system to deal with issues that need the cover of secrecy. I have been involved in many cases where PII has been used, where witnesses appear behind screens, or where there is non-disclosure of names or anything that could be identifying material. There are methods and ways in which material that is sensitive to national security can be received without putting our security in jeopardy or, indeed, not received at all.
Let us be clear. This piece of legislation arises at the behest of the United States of America, and we should not behave like a lapdog. One of the reasons is because the USA is also unhappy about being revealed as having participated in many of these shameful activities. However, this legislation has arisen in particular because of the exposure of the terrible facts in the case of Binyam Mohamed. I keep hearing people saying, “But of course these were people suspected of terrorism”. I heard the young American colonel who came to this country who did not choose to represent Binyam Mohamed, but eventually, when it was said that there had to be representation of people in Guantanamo Bay, she acted for him. I heard her presenting to a gathering of lawyers evidence of the extent to which he had been tortured and rendered from Pakistan to north Africa, and eventually to Guantanamo, where his genitals were subjected to insult and attack, and where he was tortured. There is no doubt that he experienced terrible events. It does not matter whether you are talking about someone who is a suspect of terrorism or not; such conduct is unacceptable.
Torture is one of the most egregious of crimes and we are trying to stamp it out in the world. That will be done only if we set ourselves the highest standards, take the lead in doing that and do not succumb to the entreaties of even our closest ally to enter into court processes that might make it more difficult for people who want redress for any role that we might have played in their torture. When they seek redress and come to our courts, they should be able to expect not to be spurned by the courts, which is, in the end, what this piece of legislation will allow to happen.
I remind this House that not long ago in Libya, papers were found after the events in that country and its liberation from Gaddafi, which disclosed that we, Britain, had played a part in the rendition of a man who now sits in government in Libya—a man who was an opponent of Gaddafi. However, at the request of Gaddafi, we had participated in his rendition back to that country.
I want also to raise another issue that is of profound moral and ethical importance to us if we are to care about such issues—the use of drones. There is evidence that our intelligence services are providing locational intelligence to the Americans in order that a CIA operative, sitting in Oregon, can direct a drone even into Pakistan, and sometimes find that large numbers of civilians, including children, are at the receiving end of the bombing. It may have the success of taking out people considered to be enemies, but it has the horrifying additional outcome of killing innocent people.
The closed material procedure will make it impossible for us to reach into these dark parts of conduct that may be taking place in our name. It would be shameful to allow this to go through our House without calling it to account. It is not a piece of legislation to which we should put our names. I regret that the Labour Benches are empty. Perhaps it is because a lot of this might have happened on a Labour Government’s watch.
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Lord Lester of Herne Hill: The noble Baroness gave the example of drones. Could she explain how anything in the Bill would impact on a claimant in the context of drones?
Baroness Kennedy of The Shaws: There is a case going through the courts. A British resident called Noor Khan is seeking a judicial review. He wants a declaration of unlawfulness made because his father—a civilian, not a terrorist—was killed in northern Waziristan in an American drone attack. This was not in the conflict area of Afghanistan but in Pakistan, and the victim was a civilian casualty. I am told that a number of cases that concern people are linked to the use of drones in Afghanistan, Pakistan and elsewhere. People in Britain will call into question certain legalities because our domestic law covers the behaviour of people who are not in a war zone, and who therefore are subject to domestic law. The noble Lord, Lord Lester, will know that that does not mean that international humanitarian law gives them any protection.
Lord Lester of Herne Hill: I am sorry to press the noble Baroness, but I still do not understand what she is saying. It must be my fault. I would like to know how, in a judicial review of that kind about drone policy, what is in the Bill will change the matter in a way that will not allow the applicant for judicial review to secure justice. How will the process be different from what we have now? That is what I am trying to understand.
Baroness Kennedy of The Shaws: I am interested to hear the noble Lord, Lord Lester, the great human rights lawyer, defending secret processes of this kind. There is no doubt that applications will be made for closed material proceedings in those sorts of cases because the state will not want to divulge the circumstances in which locational intelligence was given. What we as members of the public would want to know would be whether we are playing the role of providing that kind of intelligence, which may in turn lead to the deaths of many civilians, particularly in places that are not covered by war.
I call upon the moral impulses of the House. Do noble Lords think that this is a proper way of dealing with activities that may be covered by national security, when national security is being used as an excuse to cover unacceptable behaviour? It may mean that we will never be able to find out the truth about rendition and the use of torture, and about any role that British operatives played. That would be a very unhappy state of affairs, and a departure from a very proud part of our common-law history and principles. It is a source of regret that so many people are prepared to go down this road.
Lord Reid of Cardowan: My Lords, it is always a pleasure to follow the noble Baroness. I am sorry to start by correcting her, but the Labour Benches are not empty, nor bereft of any representative of the previous Government. As a former Home Secretary, I am one such representative. Unfortunately, the other Home Secretaries—Mr Clarke, Mr Straw, Mr Blunkett and Ms Smith—cannot be here because they are not Members of this House, which may account for their absence.
I may be a lone voice among the speakers, who all seem to have come from the Joint Committee on Human Rights, but I will say two things. First, on the moral question, I deprecate torture as much as anyone in this House. I deprecate it in the case of that have been mentioned. I also deprecate it in the case of the 62 British citizens who were tortured by being burnt to death in the Twin Towers and the 50-odd British citizens who were tortured to death by being blown up in the subway and on the buses in London. They had human rights as well, and the primary human right is the right to life. There is a moral obligation on government to take that into consideration.
I find that one of the astonishing things about these debates is that there is never any context about the nature of national security. It is paraded camouflaged in words such as murky, corrupt, and lapdog—the disparaging avalanche of comments against our security services. Politicians can take it. We are used to it from the Opposition, from people outside and from some of our errant Back-Benchers, but the intelligence services do not deserve that. Were it not for them, I can tell you, thousands of British citizens would have had their basic human right of life removed from them. In one incident in August 2006, 2,500 people would have been blown out of the skies over the Atlantic were it not for our intelligence services and, yes, their colleagues in the American intelligence services.
So let me just say a word to balance the quite proper legal points that have been made about national security. We have come through a dark time. I regret to say that we still live in a dark time, not just here but throughout the world—anyone who thinks that areas of Pakistan are not a conflict zone does not begin to understand that. There are two elements to the threat to the British people, as there always are in any threat. The first is intention and the second is capability. The real question that we should be asking is not whether this proposal arrives from the Government because they are corrupt, because they have been seduced by civil servants or because they are lapdogs of the Americans. We should be asking what particular set of circumstances regarding the threat to national security brings a measure like this on to the agenda. We should then analyse the two elements of threat: intention and capability. Let me to say a word on both. The intention of those who wish to inflict terrorism on the citizens of this country is now unconstrained. It is not limited, as it was with the IRA in terms of tactical questions. It is not limited by their concern for what the public might think. It is not limited in terms of the numbers that they wish to kill. Anyone who tried to kill 10,000 people in the Twin Towers would be happy to kill 10 million people. Indeed, not only are they not constrained in their
intent by politics or ideology, they are driven in their ideological premise towards a massive massacre of people.
That on its own would be bad enough to weigh in the minds of today's Home Secretaries if it were not for the fact that the other element of threat, which is the ability to carry out the intent, is now unfortunately unconstrained as well. Those in the past who had a genocidal intent, such as the Nazis, were constrained by the technical ability to achieve their intention—in the Nazis case either by carbon monoxide or Zyklon B canisters. Biological, chemical and radiological weapons now mean that we live in a world where unconstrained intent to do damage is allied with the potential for unconstrained capability. That is the burden that sits on the shoulders of government Ministers nowadays, not whether they will fall out with the Americans or anyone else. It is in that context that we have to consider the unique circumstances that we have never had to face before because the means of mass destruction have not been available to small groups of non-state actors and, by and large, non-state actors have not had an unconstrained intent to murder in a wholesale fashion. It is those circumstances that make the protection of intelligence all the more important. Had it not been for that exchange of intelligence—in one case, across 29 countries—we would not have achieved the protection of our British citizens and their fundamental right to life.
Lord Thomas of Gresford: I am sure the noble Lord is not suggesting that those of us who oppose these clauses are in favour of terrorism. He must appreciate that we are not concerned with proposals that will make security information available to the public. All we are concerned about is, what is the response to an action that is brought by a claimant against the security services or any other government department? I appreciate the noble Lord’s sincerity but is he not a little off the point?
Lord Reid of Cardowan: There are three points there. First, of course I was not suggesting that there was any intent on the part of the noble Lord. However, I was explaining that there is a law of unintended consequences. You do not need an intention to make it easier for terrorists in order to embark on a course of action that ends up assisting in that. The second point relates to the Government’s response. As I understand it, the Government are saying that we currently have a system that does not give us justice because the requirement to protect national security information is such that they cannot take it to court, and therefore, whether or not it is just, someone is in receipt of benefits.
Lord Reid of Cardowan: Let me finish with the questions that I have been asked and then I will happily come back to the noble Lord.
The third question is whether I am off the point. I do not see how this issue can be discussed without a deeper understanding of the security—I truly do not—and yet in this Chamber I hear speech after speech about
law but no one sets out the circumstances in which we have to face these threats. We might as well try to exist in a vacuum. Of course we can turn our eyes and act blind to the world outside but we have at least to try and understand the circumstances that give rise to what the Government are doing, or alternatively we will be forced to say that they are either mad, bad, corrupt with power, lapdogs, murky, conspirators or acting at the behest of evil civil servants.
Baroness Kennedy of The Shaws: The noble Lord is presenting a parody of the argument that I have made, and I refute it. I understand—as does everyone in this House because we have debated it so often—the incredible context of having to deal with terrorism. Sensibly, however, most of us accept that you do not sacrifice the high standards of legal procedure that we have developed in this country to the terrorists. When the British state does that, it descends to the level of the people who bomb, kill and do all the things that the noble Lord has described so powerfully. If there is any question that our security services have in any way fallen from grace—and no one is suggesting that they have tortured—in the standards that we expect and which they normally set store by themselves, it is important that that should be explored so that we can put right any of the wrongs that have taken place. That is the issue.
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Baroness Manningham-Buller: My Lords—
Lord Reid of Cardowan: Perhaps I may respond and then I will give way to the noble Baroness, Lady Manningham-Buller. I was not trying to parody or even respond to the argument of the noble Baroness, Lady Kennedy, with the exception of her incorrect statement that there is no one from Labour here and her reference to Pakistan. The rest of it actually applied to the generality of the arguments that I have heard since I came in. I have made my position known on torture, but I have also made my position known on the obligations of government to protect the rights of the British citizen, including the basic one of the right to life.
Baroness Manningham-Buller: The noble Lord, Lord Strasburger, should speak first.
Lord Strasburger: Can the noble Lord tell the House about a single occasion when a British court has released into the public domain any information that has been detrimental to the country’s national security? Can he name a single one?
Lord Reid of Cardowan: That is rather a Catch-22 question, is it not? The reason they have not is that they have settled out of court. That is the point that we are trying to make. The noble Lord is asking for evidence that cannot be adduced. The very purpose of bringing forward this provision is precisely to meet a situation which has arisen because they cannot.
Lord Strasburger: Then the answer to my question is no.
Lord Reid of Cardowan: The explanation for a no is always more substantial than a straight no.
Baroness Manningham-Buller: My Lords, I feel I have to rise to speak because of the presumption of guilt suggested by some people on the part of my organisation in the past. I should say first that torture is a crime in our law and in international law. It is morally wrong, ethically wrong and it is never justified—even when, as the Americans would claim, you get the truth from it. That is irrelevant. It is not what a civilised country does and it is illegal. For my colleagues to be accused of it is to accuse us of a crime.