[Relevant document: The Fourth Report from the Joint Committee on Human Rights, Legislative Scrutiny: Justice and Security Bill, HC 370]
I beg to move, That the Bill be now read a Second time.
Since we first consulted on the Bill and during its passage through the House of Lords, it has aroused quite a bit of passion and debate among those interested in the subject. The first aim of my speech will be to try to satisfy the House that most of the passion and debate turns on the very important detail of the way in which the Bill’s processes will work. No doubt, the detail will be considered at great length in Committee rather than today. I believe that I can demonstrate that there is no real division on principle between the Government and most of the people who have debated this matter. The Government are just as committed as any other Member of either House of Parliament to the principles of justice being done in civil cases, the rule of law and the accountability of our intelligence agencies both to the courts and to Parliament. I believe that accountability will be improved by the Bill.
Our intelligence services comprise brave men and women, and we all realise they do essential work in helping to protect us against the great threats to this country. We also insist that they should respect and follow our values when carrying out their work, and they are properly accountable to the law and Parliament. I think the best people in the intelligence agencies are anxious to be able to demonstrate that, to protect their reputation and taxpayers’ money for claims made against them.
Before my right hon. and learned Friend embarks on a more detailed consideration, I wonder whether he understands that the amendments made in the House of Lords have been regarded by many people as being entirely favourable and reasonable. Will he confirm whether Her Majesty’s Government will accept those amendments and will remain open to any further amendments, particularly those with the purpose of extending the discretion of the courts?
I shall come on to the detail a little later in my speech and I want to start, if I may, by reiterating the case in principle. I will deal with the amendments later, and we will accept some of them, but express our doubts about others. We will come back with a detailed response in Committee. I think the people who moved those amendments were pushing at an open door in terms of judicial discretion, but they were desperately anxious to dot every i and cross every t. In some cases, we are going to have to consider whether they put the right dots on the right i’s and crossed the right t’s. I shall deal with that. I quite understand that the Joint Committee on Human Rights came forward with recommendations that commanded wide support in the House of Lords—and, no doubt, in this House, too—but Ministers need to address them properly. If we wish to come back to some of them, we will explain in detail the reasons why.
Let me get under way. It was about a year ago when the House—
I will give way to the Chairman of the Joint Committee, but I will not start a rash of giving way at this early stage of my speech.
Do I detect from the warm way in which the Minister responded and referred to the report of the Joint Committee on Human Rights that he will be minded to accept many of its recommendations?
Minded to? Certainly—we will accept some of them. I speak warmly of the Joint Committee because I do not believe it was pursuing objectives that differed from mine or those of my colleagues. I think it will probably fall to the Under-Secretary of State for the Home Department, my hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire) to explain in Committee why we are not wholly convinced that every one of the amendments is quite right, or even that some of them would have the effect that the Joint Committee proposed. I will not, however, get into that level of detail so early in a Second Reading speech, if I may be allowed not to do so.
We discussed the Green Paper about a year ago, and I recall that it was a comparatively non-controversial occasion. Such was the general satisfaction and understanding on all sides that I left the Chamber wondering whether I needed to have bothered to make an oral statement. Quite a lot has happened since then, but I trust it has not shifted the opinion of the Members who joined in the debate at that time, particularly that of the shadow Justice Secretary, the right hon. Member for Tooting (Sadiq Khan). I still strongly agree with what he said, which I shall quote:
“We need, as a matter of urgency, to bolster the safeguards and scrutiny mechanisms concerning issues of security and intelligence.”—[Official Report, 19 October 2011; Vol. 533, c. 901.]
I am glad to see the right hon. Gentleman nodding his head in response to his own quotation. I was glad to read in a recent interview in The Guardian that he still believes that, as he said:
“In two and a half years’ time, it could be me in that seat making that tough decision. So it is very important for ministers to have the opportunity to protect sources, to protect delicate operations and all the rest of it. They shouldn’t be jeopardised by a civil action.”
I will not comment on the right hon. Gentleman’s political optimism and ambition to occupy any seat at all, but he is certainly right, in my opinion, to identify a serious problem with the current arrangements. At the moment, total secrecy is all that happens to the sensitive intelligence information in far too many cases and no judicial judgment is pronounced on the merits of plaintiff versus defendant. I believe that the present system needs to be reformed urgently. That is why the principle of the Bill is certainly necessary.
In support of the need for change, let me remind the House of a letter written to The Times newspaper last month by a number of individuals for whom I personally have the greatest respect. The signatories included the former Lord Chief Justice, the noble and learned Lord Woolf; the former Home Secretary, Lord Reid; and my right hon. Friend Lord Mackay of Clashfern, a former Lord Chancellor. I am sure we all agree that all those people are totally committed to the rule of law and the principles of justice. In their letter they explained:
“In national security matters our legal system relies upon a procedure known as public interest immunity…Under PII, evidence which is deemed to be national security sensitive is excluded from the courtroom. The judge may not take it into account when coming to his or her judgment.”
This procedure, they say, is
“resulting in a damaging gap in the rule of law.”
They are right to say that.
In my opinion, it has become well nigh impossible for British judges to untangle, and adjudicate on, claims and counter-claims of alleged British involvement in the mistreatment of detainees. If we, as citizens, want to know whether the Security Service could challenge and rebut what is claimed against it, no judge can give us guidance as things stand. Some of the allegations of British involvement in the mistreatment of detainees are really serious, and I do not think that the system should continue to prevent judges from scrutinising the secret actions of the state in such cases.
Not only will judges not have the full information, but when cases are settled, adverse inferences will inevitably be drawn about behaviour that may or may not have taken place, and that affects the reputation of our agencies. Is it not therefore essential that we can get to the heart of the matter, so that the agencies can at least put their case?
I entirely agree. We keep being reminded of that. The fact is that the reputational damage is probably more significant than the millions of pounds that have been involved in some of these cases, and we need to ensure that some way can be found of trying them.
Will my right hon. and learned Friend give way—on that point?
Let me just explain. All of this is relevant.
Some of our critics appear to be arguing decisively that the status quo is somehow defensible and should continue, but I believe that that position is untenable now. It is simply not possible for a judge to hear these matters, and, as was pointed out by the right hon. Member for Salford and Eccles (Hazel Blears), all kinds of insinuations are made about cases in which it ought to be obvious to everyone that the intelligence agencies were in no position to call any evidence that would seriously address the issues.
The serious evidence that might be called and might be relevant—I am not commenting on the merits of any individual cases—might relate to the precise nature of the British intelligence agencies’ involvement in the issues concerned. What did our agents know about either an individual or an organisation at the time when the events being described were taking place? What collaboration was taking place between the British Government and partners in overseas agencies, and what information was being shared? Those are all very sensible questions, given the nature of some of the claims that have been made about the behaviour of British agents.
As I have told the House before, I do not think that any country in the world would tolerate a legal system in which our spies and our agents and their collaborators cheerily appeared in open court, in front of the parties, their lawyers and the press, and gave evidence on these matters. It would be exceedingly damaging. Public interest immunity, on which people now rely, has one obvious defect. If a Minister obtains it, that means that the material is entirely excluded from the court, and neither party can rely on it.
What continually happens, certainly in relation to defence evidence, is that—although there has been no proper hearing of all the evidence—the parties settle, the taxpayer pays up, claims are made which are damaging to the reputation of the service and no one knows whether or not they are justified, and we have to move on from there. I want us to reach a point at which cases are not being settled simply because our court procedures are not capable of allowing sensitive national security material to be heard in the few cases in which it is plainly relevant. It has always been obvious to me that what is needed in civil actions of this kind is the very limited use, in exceptional cases, of the closed procedures that were created by the last Government, which would enable a High Court judge to consider all the evidence from both sides, but to do so in necessarily closed conditions if national security was at risk.
What inference does my right hon. and learned Friend think the public will draw if the Government win a case involving the closed material procedure in which the other party has had no chance to see or challenge the evidence—secret evidence—that the Government have introduced in support of that case?
The inference I would draw is that at least a judge, doing the best that he or she can, has had a chance to consider the evidence, and has delivered a judgment. If the judge is not allowed to consider the evidence, obviously no useful judgment can be pronounced at the end of the case. Of course it would be very much better if the evidence were given in an open procedure—in normal cases, the openness of justice is one of the proudest boasts of our system—but in cases in which national security will be jeopardised if evidence is given openly, it must be ensured that the evidence can be given in the best possible circumstances in the light of the obvious limitations of the case.
British judges are quite capable of deciding whether or not national security is involved. British judges do not need us to lecture them on the rule of law and the duty to be impartial between the parties. British judges will want to hear evidence openly if they think that that can possibly be practicable. British judges will be able to judge—they do it all the time—the weight to be given to evidence. Once the judges discover who was the source of the information, people can be challenged about the reliability of that source. Of course the system is not ideal—if we could only persuade all the country’s enemies to close their ears, there could be a perfectly ordinary single-action trial and we could hear everything—but I believe that the Bill will move us from what is currently a hopeless position to a better position that will allow us to hear the judgment of a judge in appropriate cases.
Is the right hon. and learned Gentleman aware of a criminal trial that took place some years ago in Caernarfon Crown court in north Wales, involving the damage to second homes, in which MI5 officers gave evidence behind a screen? Their anonymity was not compromised, and nor were the interests of the state.
Nothing in the Bill will affect the criminal law. No one will be prosecuted on the basis of secret evidence. However, there are plenty of cases—for instance, those involving MI5 or involving victims of certain types, such as vulnerable victims—in which it is proper to screen witnesses from public view, or otherwise protect them. The Bill, however, has nothing whatever to do with criminal cases.
The purpose of closed procedures is not just to ensure that no one can see what the agent looks like; there are some cases in which we cannot let people know what the agent was doing. The plaintiff may have been compromised as a result of terrorist or other activity, and he and his friends may be dying to know how they were caught. What were the British agents doing that put them on to it? They want to know who shopped them, and that will make things very difficult for a person who they come to suspect is the source of the material that is emerging. As I think everyone knows perfectly well, it is not possible to share that information with the parties in each and every case of this kind. However, while some people might consider it satisfactory to say “Well, in those cases the Government never defend themselves and we just pay millions of pounds”, I really do not think that we need tolerate that situation any longer.
Given what he said earlier about closed material procedures, how would the right hon. and learned Gentleman respond to what Lord Kerr said recently in the Supreme Court? He said:
“The central fallacy of the argument”—
the Government’s argument, that is—
“lies in the unspoken assumption that, because the judge sees everything, he is bound to be in a better position to reach a fair result. That assumption is misplaced. To be truly valuable, evidence must be capable of withstanding challenge.”
I was intending to return to the details of closed material procedures later. We could easily trade quotations, because various judges and legal authorities have expressed different views.
Closed material procedures sometimes achieve success. We have them now—the previous Government introduced them—and as I shall say later, as I should save it until I get to the relevant part of my speech, there are cases in which the special advocates have overturned the Government’s case. The most well known case is that of Abu Qatada, who won in a closed material procedure before a British judge only about a month ago—
It is being appealed.
Of course it is being appealed, but that does not alter my point. Depending on which side one is on, it is no good saying that we cannot have closed material procedures if the wrong side is going to win. In that case, the Government lost and Abu Qatada won using a special advocate and a closed material procedure.
On exactly that point, my right hon. and learned Friend—and he is my friend—said that these proceedings were created under the Labour Government. They were, and there are now 69 special advocates, 32 of whom are experienced in closed material procedures. The vast majority of them—nearly all of them—oppose the Bill as they think PII works better than the procedure they have been operating for the past few years. Why does he think that is?
The special advocates surprised me with the ferocity of the evidence they provided. They start from the side of the argument that challenges the security services and is suspicious of what goes on, and judges have told me—some have said this publicly—that they underrate their effectiveness in such actions. They are used to practising the present law and I assume that their position is that the present law is perfectly all right and that they wish to continue with it. I am surprised by the adherence to PII, which has not hitherto been evident.
Let me give the example of another case to show that special advocates can successfully challenge the evidence put forward in closed proceedings by claimants. Ekaterina Zatuliveter, the Russian girlfriend of a Liberal Democrat Member of Parliament, won her deportation case after a closed hearing in which a special advocate challenged the argument that she was a threat to national security and should be deported. It is simply not the case that in closed procedures it is impossible to challenge these points. Such cases are comparatively new, as no one dreamed we would have such litigation until 10 or 15 years ago.
The claims are getting steadily more numerous as we have an attractive jurisdiction in which the person against whom one makes allegations will probably not be able to call any evidence and one will be paid millions of pounds. The best way forward is the one that has been successfully used in the two cases I have already cited, which is, despite our very limited experience, having closed proceedings and special advocates. It is less than ideal, but it is justice, not secrecy. Secrecy is what we have at the moment, with an uncertain and debatable outcome in all these cases.
The right hon. and learned Gentleman is correct to say, of course, that the previous Labour Administration introduced closed material proceedings in 1997, with support from all parties, as I recall. They have worked. Will he confirm that in at least seven of more than 30 Special Immigration Appeals Commission cases since the beginning of 2007, including the two he mentioned, the court has found against the Government and in favour of the potential deportee?
I accept the right hon. Gentleman’s statistics. I cannot confirm them, as I do not have them myself, but they sound wholly credible. As he said, a Labour Government introduced these procedures—it might have been him—
It was me.
It was he, as Home Secretary, who introduced them. They arose partly at the behest of human rights lobbyists who are now vehemently opposing the Bill. It was the intervention of human rights activists in the case of Chahal in the late 1990s that saw the system of closed hearings develop, but some of the same people are now arguing that closed material proceedings put the Government above the rule of law.
As I have already said and as the right hon. Gentleman has with authority confirmed, people have been successful in fighting the Government in these civil actions under the closed material proceedings, as the number of claims goes—
Let me move on, because I am probably moving on to the point of concern—
On this point.
My right hon. and learned Friend referred to the ability of the special advocate to challenge the evidence. Lord Kerr, in the remarks quoted earlier, talked about gisting and whether it was possible for the special advocate to confirm or correct with the other party whether he was in a particular place at a particular time, because that had come up in the evidence. We need to consider a little more carefully that ability to check back with the person who would normally be instructing the advocate but cannot because he is a special advocate.
I shall turn to some of this detail, but gisting is allowed under the Bill. The judge will have all the powers he requires to recommend gisting once he has heard the secret evidence.
My right hon. Friend is very generous in giving way and I understand the dilemma he faces, but is it not a fundamental principle of British jurisprudence, defended by this House for 500 years, that a defendant should have sight of the evidence used against him that might affect his liberty?
In a criminal case, that is so. That is why we cannot prosecute some people we really should, because there is no way to reveal the evidence against them—if it cannot be revealed to a judge and a jury, he is untouchable under the criminal law. We are talking about civil actions, sometimes involving people with tenuous connections with this country who have come to this country and sought damages from a British court for what they say is the misbehaviour of the intelligence agencies of the Government. I have tried to explain why it is impossible to follow the normal and desirable rules of civil justice and hear it all in the open. We must find some way in which these cases can be resolved by a judge in a way that is consistent with our principles of justice without at the same time jeopardising national security. That is the straightforward dilemma.
I shall give way one last time, and then I must press on to the JCHR’s amendments.
Does my right hon. and learned Friend agree that although the proposed system is not perfect and never can be in litigation, it is surely preferable to have that than a system where an ex parte application for PII can be made without the defendant having any notice of any kind and without anybody, not even a special advocate, being able to test the material?
The time has come for reform. The present system is not defensible, in my opinion, and my hon. Friend confirms that all kinds of features of PII are hopelessly unsatisfactory. We have to deal with them.
Let me move on—
Will my right hon. and learned Friend give way one last time?
I keep giving way one last time, so, with apologies to my hon. Friend, let me turn to what I think is the subject matter of the serious debate that has been taking place since we consulted on the Green Paper.
It was our intention from the start to consult on the Green Paper. As what we are doing goes to the fundamentals of our legal system and our rule of law, we actively sought the widest possible support for what we are doing. Even before the Bill was introduced and before it went through the Lords, we narrowed its scope to make quite sure that CMPs could be made available only when disclosure of the material would be damaging to the interests of national security. Green Paper language that slightly implied that the police, Customs and Excise and all sorts of other people might start invoking them has gone completely away. We removed the Secretary of State’s power to extend the scope of the Bill by order, and excluded inquests after a campaign led by the Daily Mail got widespread support in this House. As I have already said, we never even contemplated that our proposals should cover criminal cases.
We also conceded—this is the key point, which I think we are still debating with most of the critics—very early on, after publishing the Green Paper, that the decision whether to allow a closed material procedure or not should be a matter for the judge and never for the Minister. That is an important principle and it is what most of the arguments, even about the JCHR’s amendments, are all about. We have all, I hope, now agreed that it is a judge’s decision whether or not to hold closed procedures. The question is how far we need to keep amending the Bill to clarify this and how we avoid unnecessary consequences if we overdo it. I shall return to that.
That is what most of the debate was about in the House of Lords and it is the point of the JCHR’s report. When it came to a Division in the House of Lords on the principle of closed material procedures, the Government had an enormous majority. The Labour party did not oppose the principles of CMP, even though it was a Back-Bench Labour amendment which the other place voted down. I trust that the Front-Bench Labour team and the right hon. Member for Tooting continue to be of that opinion. Unless his undoubted radical left-wing instincts have got the better of him, I do not think that is the position of any party in this House.
The concern of the House of Lords and of the JCHR was that the judge should have a real and substantive discretion about whether a CMP is necessary in any case. Many Members of the upper House made their support for CMPs contingent on changes being made to increase judicial discretion and ensure that it was clear on the face of the Bill that CMPs would be used only for a very small category of exceptional cases.
I begin by making it clear on behalf of the Government that I agree that the judge should have discretion. I agree that we should be talking about a small number of cases where any other process is impossible and it is necessary for it to be handled in this way. A strong and compelling case was made by those who argued that we ought to trust our judges to decide the right way to try the issues in any particular case. I agree. The debate—I suspect it will be the same debate today as it was in the House of Lords—starts from the fact that the Government’s case is that the Bill as it stood already accepted that principle. As we were defeated, we will consider what more we can do by way of reassurance. People are deeply suspicious of anything in this area and they are convinced that, despite what we put in the Bill, the judge will somehow be inhibited by what the Government propose to do.
Our judges are among the finest in the world. They are staunch defenders of the rule of law, and they have shown time and again that they can be trusted not to endanger the national security of this country. I know that they can be—
Will my right hon. and learned Friend give way?
If it is on a British process, not a Strasbourg one.
It is on the Law Lords themselves in the past and now the Supreme Court. Does my right hon. and learned Friend accept that there are divisions of opinion even at the highest level about the extent to which such decisions should ultimately be made by the most senior judges or Parliament, and that there are very senior judges who take the view that Parliament, not the judges, should decide these questions?
There are other occasions on which we shall no doubt debate parliamentary override of the courts of law. I realise that that is a matter dear to my hon. Friend’s heart. In the Duma it would be carried nem. con. The Russian Government would be utterly delighted to hear the principle of parliamentary override brought into our legal system in this country. I think the House of Commons should be hesitant. There may be senior judges who think that that should apply. The process that we are applying is different. The Government’s case is based on trusting the judges to use the discretion sensibly. That is what I think we should do, but of course I address seriously the views that were put forward.
I want to make it clear, to go back to what the right hon. and learned Member for North East Fife (Sir Menzies Campbell) asked me earlier, that the Government will not seek to overturn the most important amendment—the most important, in my opinion—made by the House of Lords that the court “may” rather than “must” order a closed material procedure upon an application. I do not see how we could give a wider discretion than that.
We will also accept that any party, not just the Government, should be able to ask for a closed material procedure. I think it highly unlikely that any plaintiff will be in any situation to start arguing that he wants to protect national security, but if people want that, they can have it. More importantly, the court of its own volition should be able to order a closed material procedure.
A further series of amendments were made which we still need to look at more closely. We have time to look at them closely and the others will be addressed by the Under-Secretary of State for the Home Department, my hon. Friend the Member for Old Bexley and Sidcup in Committee. We are not against the principle, but we are not sure that the amendments add anything. I shall give the reasons in a moment.
I am grateful for the opportunity to question the Minister. My main concern is where the discretion is being applied. Can the right hon. and learned Gentleman clarify for me the position of families of armed forces personnel who have been illegally killed, or people who have been injured and wish to take out court cases? How will the new arrangements apply to them, and how will it be possible to ensure transparency in the courts?
I answered that in the written question that the hon. Lady put to me. She is welcome to put an oral question to me at Cabinet Office questions, now that she has discovered who is handling the Bill. Most such Ministry of Defence cases do not give rise to national security considerations, and the Ministry of Defence does not expect to start invoking closed material proceedings. One cannot anticipate it, but it is possible that the circumstances of the tragic death of a soldier might involve some highly secret operation, and then the situation might arise. We have not had problems on this front so far and the expectation is that it need not arise. If it were to arise, there would still be the judgment of the judge and a decision in the case.
I am trying to think of examples that could conceivably arise. If a soldier was killed and it was alleged that that was the result of some actionable negligence, which apparently we are now going to allow people to argue in our courts, and that took place in some highly secret operation in some unlikely part of the world, I cannot rule out a CMP application being made. The Ministry of Defence is more robust than I am. I am told that it does not think that most of these cases involve national security at all.
In reply to my hon. Friend the Member for Stoke-on-Trent North (Joan Walley), the Minister outlined extreme circumstances of an injury to a British soldier. Would the same process apply if there was embarrassment over arms sales to a particular country, where those sold arms had been used to deny the human rights of many others, against the policies and wishes of this country, and there was a desire not to make that too public?
It sounds as though it could be criminal action in that case, which the provision would not apply to. It would be for the judge to decide whether what is being protected is embarrassment for the Government or national security and the interests of the nation. We can all start dreaming up—I did it myself a moment ago—fanciful cases where such a situation might arise. The judge would have to decide whether national security was at risk. It is a two-stage process, which I will not argue at length today, but what happens is that the judge can allow the closed material proceeding. At the end of the closed material proceeding he can revoke it, he can say that the proceedings should be gisted, he can say that the documents should all go in, but perhaps redacted in key places. There is wide discretion before he goes back to the open session. If a Government at some time want a closed hearing, they will get it only if they can satisfy the judge that national security is at risk.
The right hon. and learned Gentleman will have seen the strongly worded letter from the Cabinet Secretary for Justice in the Scottish Government outlining his serious concerns about the Bill. The Scottish Government have made it clear that they want nothing to do with it as it applies to their jurisdiction. Will the Minister ensure that he respects their position?
Constitutionally, I will respect the Scottish Government’s position. If they think that Scots are not ready for decisions in these cases and wish everything to remain shrouded in secrecy and mystery, so be it. That is a matter for the Scottish Government. It seems to me that would be the result if they will not move with what I think is the obvious response to the needs of recent cases.
To return to the detailed amendments, let me explain where my reservations come from. The House of Lords decided to get carried away with the discretion. I have already accepted the widest discretion, but they then wanted to start setting out in the legislation factors that the judge ought to take into account. We are considering that, and I can assure Members that there will be a response in Committee. The Lords obviously do not trust judges as much as I do, because they wish to start setting out factors. However, if we set out factors in the legislation, they must be the right ones. If they are not, they can give rise to other problems.
For example, some of the amendments made in the House of Lords—I am leaving aside whether some of them are necessary—would require the judge to consider and exhaust alternatives to closed material proceedings in every case in order to prove that the case could not be tried in any other way. It sounds attractive, but in some cases it would be obvious to the judge from the start that a closed material procedure was necessary. As the independent reviewer of terrorism litigation, David Anderson, explained to the Joint Committee on Human Rights,
“there is no point in banging your head against a brick wall… if the exercise is plainly going to be futile.”
In the Guantanamo Bay cases, which provoked the need to address the law and bring forward this reform, the court would have had to consider about a quarter of a million documents before determining the PII application and moving to a CMP. It would have had to consider a quarter of a million documents before moving beyond a preliminary issue. When I was Home Secretary I certainly issued PII certificates for intelligence material. In the arms to Iraq inquiry, I am glad to say that the judge confirmed that I had done what I was supposed to do: I had read every document—they were brought to me in boxes and put on the floor and required a whole day to consider. The Guantanamo cases would have required a full-time Minister to do nothing but wade through the PII certificates for months and months before the application could be made and further progress could take place. In some cases, the delay of going through that process could have detrimental impacts on other people affected by the issues in the case awaiting judgment.
Equally, all parties might consent to a closed material procedure. If they consent, should the judge still be required to go through the time-consuming PII process? In the Maya Evans case, all parties consented to a closed material procedure as the only way to try the issues. The ruling in that judicial review case, which was with special advocates, changed Government policy on detentions in Afghanistan, directly affecting ongoing Government actions. Delays in that case to consider alternatives to closed material procedures could have meant that more individuals were exposed abroad to a policy that the court ultimately concluded was unlawful.
I will give an indication of why I will not give a blanket assurance that we will accept all the House of Lords amendments. I do not think that the problems were properly considered, and we will bring forward the products of our thinking in Committee. As I have said, we continue to debate the powers the judge should have once a closed material procedure has been granted. Under the Bill, the court will have strong powers to require gisting, redaction and summaries. In particular, the Bill sets out—it is probably unnecessary—that to ensure a fair trial under article 6 of the European convention on human rights, the court can order disclosure of material notwithstanding the damage that would be caused to national security. In that situation, in order to disclose, the Government would have the opportunity, as they currently do under PII, to seek to bring an end to proceedings, or an aspect of proceedings, in order to avoid damage to national security. If the Government do not disclose material or elect not to provide a summary of material, the court can order the Government not to rely on it or to make concession or such other steps as the court might require.
In brief, the Bill leaves it to the judge to decide what is necessary in any particular case, rather than seeking to impose disclosure requirements or to fetter the judge’s discretion in deciding whether to have a closed material procedure. I think that we should reflect on that in Committee. Let us not go into Committee with everyone saying, “What the Joint Committee on Human Rights has said is necessarily right and we will support the Bill so long as we sign up to that.” I think that some of the JCHR amendments raise serious issues that should be debated properly in this House and which the Government must be allowed to exercise their judgment on before reaching a final decision.
I conducted in excess of a dozen PII trials as a criminal barrister. Does the Minister accept that there is a fundamental difference between what he is proposing and the procedures under PII?
Yes, because we want a process whereby the judge can hear the evidence of the intelligence agencies in a closed—secret, if one likes—process, and that is not the purpose of PII. PII is a very old process that has developed over the years from simple beginnings, and I imagine that in the early cases—before my time—it was probably rather straightforward: if a Minister said he wanted public interest immunity, it was granted. The findings of Lord Justice Scott in the arms to Iraq inquiry —not at my expense, I am glad to say—rather upset that approach. PII is of course used flexibly in proper cases because judges and lawyers all want to hear evidence in open court whenever possible, but I think that we need to update all this. We are not abolishing public interest immunity, but I think that in many cases extending closed material procedures, which is what we are proposing, would be an altogether more sensible way of getting a proper judgment in the case.
Let me turn to the provisions of the Norwich Pharmacal jurisdiction.
I want to tease out the right hon. and learned Gentleman’s view on the balancing test, which is part of the House of Lords amendments. At the moment there is a test stating that the judge, when deciding whether closed material procedures can be applied for, has to balance the degree of harm to the interests of national security with the public interest in the fair and open administration of justice. Balancing tests are notoriously difficult. One of the main problems with the Chahal case, which led to significant issues for this country’s national security, was whether the balancing test was in the right place, and most of us felt that it was not. If we are to have a balancing test in the legislation, it is in the part about whether proceedings are suitable; it is not in the part about when an application can be made. We need some clarity on the Government’s position with regard to the balancing test, because clearly the interests of national security are not always equivalent to the interests of an open proceeding, and that is a difficult balance to strike.
The balance is indeed difficult to draw. We have debated the balancing test on various occasions and in the past I have rather resisted it because it gives rise to the possibility of the judge saying, “Oh yes, there is a risk to national security. What a pity, never mind. I wish open justice to be done, so let’s take a chance with national security.” That is probably a somewhat broad-brush piece of opposition, and we are reflecting on the issue. The proper response to the right hon. Lady’s entirely sensible and pertinent question is probably best given in Committee, when we will have had more time to decide the position.
My hon. Friend is nodding; he will be presenting our reactions.
“Norwich Pharmacal” is the phrase used by lawyers to describe a process that grew up in the sphere of intellectual property law, in which someone is enabled to apply for the disclosure of evidence—documents, usually—relevant to a claim that they are making. It is used to force a third party who is mixed up, however innocently, in suspected wrongdoing, to disclose information that a claimant feels may be relevant to a case that they are bringing in some other jurisdiction, usually abroad.
In 2008, as a result of ingenious arguments, the Norwich Pharmacal principle was extended to national security law. The purpose of proceedings under the principle now is for people involved in a legal process of some kind, usually overseas, seeking to obtain disclosure of intelligence material in the hands of the British Government.
As the purpose of the proceedings is only disclosure—no other judgment is being sought—the Government do not have the option to withdraw from or settle proceedings; if the judge orders disclosure, there is no option but for the Government to release the secret intelligence. That has given rise to understandable fears that if a person shares information with the British Government’s agencies, British judges have the power to order the release of some of it and that person cannot be certain of being able to resist that.
There is no point in my setting out obvious platitudes about the nature of intelligence work. If intelligence agencies are not able to guarantee to their sources, be they friendly overseas Governments or agents, that they can keep secrets, people will not share so much information with them. Lives will literally be at risk in some cases as will international co-operation on such vital issues as torture prevention and human rights.
I will give way and then seek to persuade the House that those fears are not fanciful or false; the problem is happening now.
I thank my right hon. and learned Friend for giving way. I entirely agree; he has admirably put forward the concerns about Norwich Pharmacal and the historical accident that has arisen as far as national security cases are concerned. Was he not tempted, therefore, simply to exclude Norwich Pharmacal matters from national security—in other words, make it absolutely clear through Parliament that the Norwich Pharmacal arrangements should be regarded narrowly as being available only in intellectual property cases and should not apply to national security matters? Is he not taking us down a rather more convoluted route in the Bill?
The practical effect of the Bill is exactly as my hon. Friend recommends, although it may have been drafted with a few too many provisos and provisions because of the deep suspicion with which these things are regarded. Essentially, however, we do not think that Norwich Pharmacal should apply to intelligence material provided in confidence to the British security services.
I will not take too long on this because the argument is perfectly straightforward, but I want to tell the House that these are not false fears. Over the past year, we have picked up concerns from human agents. They have always been concerned about the degree to which their relationships can be protected, of course, but they are now becoming really concerned about disclosure to the British courts. Sir Daniel Bethlehem, a former legal adviser to the Foreign Office, told the Joint Committee on Human Rights that the flow of intelligence from the United States was being limited. He said that he did not want to exaggerate, but the point was that the trust of the United States had been weakened and that trust needed to be restored.[Official Report, 8 January 2013, Vol. 556, c. 3MC.]
Arguments tend to break out as to whether agents have any reason to be fearful, but that is not totally the point. As long as, as a result of hearing about the extraordinary process called Norwich Pharmacal, other intelligence agencies and our agents think that there is always a risk of disclosure by the British courts, the damage is done. To follow the point made by my hon. Friend the Member for Cities of London and Westminster (Mark Field), what on earth are we running that risk for?
In support of what my right hon. and learned Friend has just said, I should say that the Intelligence and Security Committee has taken extensive evidence on the matter in both the United Kingdom and Washington in respect of the likelihood or actuality of damage to very important information that prevents or might prevent terrorist incidents in the United Kingdom. We are satisfied that my right hon. and learned Friend’s point is entirely valid and that the House should take it into account.
I close my case, as they say; there is no need for me to carry on addressing the House about Norwich Pharmacal. We wait to hear what points might be raised about it.
I move on to part 1 of the Bill, to which I think the House should have much more regard. It deals with the important issue of parliamentary oversight of our security and intelligence agencies. I suggest to both sides of the House that if we wish to be reassured about the accountability of our security services and really try to guarantee to ourselves that they are not misbehaving, we should look to stronger parliamentary oversight as well as to more accountability to the courts.
It is time to put the Intelligence and Security Committee, chaired by my right hon. and learned Friend, on a much stronger footing and to enhance its independence to strengthen the valuable work it has done so far. We have to give Parliament more effective oversight of the intelligence and security agencies.
The ISC operates within arrangements established by Parliament in 1994, but the nature of the Committee’s work has changed dramatically. In the past 18 years, particularly since 9/11, the public profile, budgets and operational demands on the agencies have all significantly increased, but there has been no change in the statutory arrangements for oversight. In the past, the ISC has overseen operational matters but has done so relatively infrequently and generally at the direct invitation of the Prime Minister. The ISC has no statutory powers to oversee such matters. Its statutory remit is also limited to oversight of the security and intelligence agencies, although it has long heard evidence from the wider intelligence community.
At the moment, the Prime Minister receives its report and appoints its members. Currently, the heads of the security and intelligence agencies are permitted, in certain circumstances, to withhold information from it. We can certainly improve on that. We need to give the ISC greater teeth to ensure that we can continue to have confidence in those who oversee the agencies on our behalf.
The Bill provides that the ISC will in future be able to oversee the agencies’ operations, within appropriate constraints. The Committee will also in future report to Parliament, as well as the Prime Minister. Its members will be appointed by Parliament, after nomination by the Prime Minister. The power to withhold information from the ISC will move from the agency heads to the Secretary of State responsible for that agency—a Minister accountable to the House. It will be a parliamentary Committee. We are greatly strengthening our powers to hold accountable those who do such vital work for our country.
My right hon. and learned Friend said that the Intelligence and Security Committee will henceforth be accountable to Parliament. Will he be prepared to consider the proposals of the Wright Committee on parliamentary renewal—that the Chairman of the ISC should henceforth be elected by a secret ballot of the whole House, subject to a veto by the Prime Minister at the nomination stage? That was accepted unanimously by the Wright Committee and it has won widespread support. It would greatly enhance the credibility and sense of independence of the ISC Chairman.
I have the greatest respect for the Wright Committee and we will consider the matter further, although I am not instantly attracted by that proposal. We are moving to a situation in which the Chairman of the ISC will be elected by the Committee and the Committee itself will be elected by the whole House from a list approved first by the Prime Minister. On reflection, I think that the problem with a system whereby the House could elect whoever it liked, subject to a prime ministerial veto, is that it would be an Exocet that was hugely embarrassing to use. It is not impossible—I hope that it is not too fanciful—to envisage a case where the security services have satisfied the Prime Minister that there is some problem with a particular Member of this House of which the wider world is completely unaware. [Interruption.] That is not unknown; I am sure that it has happened in the experience of the right hon. Member for Blackburn (Mr Straw). The idea that the Prime Minister must suddenly issue a veto on the result of an election carried out in this House is probably a step too far, and I think that my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind), the Chairman of the ISC, agreed with me when we discussed this very matter not too long ago.
My right hon. and learned Friend nods his head in approval.
The arrangements that we are proposing for a stronger Committee will in some cases be underpinned by a memorandum of understanding between the Government and the Committee. The MOU will set out the arrangements at a level of detail far beyond that which need be put in this Bill. We have reached the stage of discussing the terms of that MOU with the Committee. I have had some extremely constructive discussions with my right hon. and learned Friend and other members of the Committee about the Bill. We will bring forward other amendments if necessary to make clear the ISC’s increased connection to Parliament and provide it with some statutory immunities to assist in this work.
I apologise for the length of time that I have taken in introducing the Bill, but I have given way generously. It is the kind of Bill where there should not be serious argument about the principle, but the details are extremely important in a country which has high regard to the rule of law and does not to want to risk abuse of process in any proper case. That is why I commend its Second Reading to the House. To reject it and stay with the status quo would be to continue a quite intolerable situation that is not only unacceptable to the agencies, which cannot defend their reputations, but should be unacceptable to the taxpayer, who has to pay for some of these settlements, and to any citizen who wants a judge to have the chance to make a judgment on the issues.
In my opinion, for all the reasons I have given, the Bill strengthens the accountability of our intelligence agencies and GCHQ to the courts and to this House. It supports our belief in justice, the rule of law and the liberal, democratic principles that underpin this country. I trust that the House will therefore be content to give it a Second Reading.
The Minister without Portfolio has spoken for exactly one hour. Everyone will be pleased to know that my contribution will be far shorter.
Before us is a Bill that is less bad than when the Government first published it. It is less bad because of the changes made to it by colleagues in the other place, which have started to restore some equilibrium in the great balancing act that we face between our nation’s security and the rights of individuals up and down the country. I want to make it clear, up front and in very simple terms, that Labour Members fully recognise the very important issues that the Government are seeking to grapple with in this Bill. The Minister called for a serious debate, and I hope that we get one this afternoon and in Committee.
Our intelligence agencies do untold amounts of good work in keeping the citizens of this country safe. I should like again to put on record our appreciation of this role. Our intelligence agencies are fighting to defend our democratic values, so it is only right that those same agencies should be subjected to those same democratic values, which include judicial and parliamentary scrutiny. That is why part 1 is so important. It outlines attempts progressively to reform the work of the Intelligence and Security Committee, giving it a formal statutory footing with improvements in how the membership and Chair are chosen. I agree with what the Minister said about this, and my hon. Friend the Member for Kingston upon Hull North (Diana Johnson) will say more on that at the conclusion of the debate.
The issue in part 2 is one of allowing justice to take its course, with those on the end of alleged true abuses of power and indiscretions allowed to seek full and proper recourse, and with the Government also in a position whereby they can defend themselves. I intend to focus my remarks on this part, especially given the changes made by colleagues in the other place. The Minister informed the House that he will accept some of them, albeit not yet all of them.
The marriage of justice and security in the Bill’s title hints at the difficult but not impossible balancing act that is required. It is simply wrong to argue that the achievement of one is to the detriment of the other. Those who take this view are failing to show sufficient respect for the nature of the issues. Openness and transparency of justice is a hugely important principle. Any deviation from this hundreds-of-years-long tradition should be considered only in the most extreme of circumstances and must be accompanied by transparent checks and balances. The Bill, as first published by the Government, failed in that respect.
At this point, I must turn my attention to the role of the Minister without Portfolio, who kept hold of the responsibility for this Bill after the reshuffle. The House will know that I have a huge amount of respect for him, and—dare I say it?—affection as well. He is a national treasure. It is worth considering the suspicion that many felt as to why the Prime Minister decided that he should retain control of the Bill. It is hard not to conclude that it was for his “liberal credentials”. The suspicion was that the Prime Minister thought that the right hon. and learned Gentleman would make a better sell of the proposals on secret courts than his successor as Lord Chancellor, the right hon. Member for Epsom and Ewell (Chris Grayling), who does not have quite the same “liberal credentials.”
That may well be the case. In any event, I am afraid that the Minister has made a hash of the Bill up until now. He has rushed headlong into legislation, despite guarantees to the contrary. He has failed to listen to the concerns of a very wide range of groups and experts. He has criticised those who have genuine concerns, as he did again today, building up straw men only to knock them down. I am afraid that on some occasions he has given the impression that he has failed to understand the details of his own Bill. I do not know about pushing at an open door, but he has now been on the receiving end of three humiliating defeats in the House of Lords and forced to concede further changes or face the prospect of even more defeats.
Part 2 includes clauses 6 to 13 on the introduction of closed material proceedings, or CMPs, into our civil justice system. CMPs will allow the Government to hold in secret parts of court hearings in which an individual is seeking recourse through our civil courts. These are civil actions for damages for claims ranging from allegations of rendition to allegations of complicity in torture and the most serious forms of tort there are.
Will my right hon. Friend give way?
Just this once. I want to make progress because many other Members want to get in.
My right hon. Friend will be well aware that in cases of allegations of torture and extraordinary rendition it has been the devil’s own job to get any information, transparency or accountability, and this has gone on for a very long time. Does he not think that this Bill misses an opportunity to lift the cover on the whole miserable period since 2001 when we have had extraordinary rendition and Guantanamo Bay?
I will come to some of the huge improvements made in the other place.
The Government claim that they are unable to defend themselves in court because the nature of the evidence they would need to deploy is so bound up with sensitive intelligence as to make it impossible for it to be made public. As a result, they are having to settle cases and pay out-of-court compensation. By allowing CMPs in situations involving national security, the Government are seeking to avoid situations where cases are not seen through to their conclusion and avoid the premature payment of compensation.
Let us go right back to the very beginning of this legislative process. The original proposals that were published in the Green Paper involved huge issues. The Minister said at the time that after the consultation on the Green Paper, he expected a White Paper, followed by a Bill. We had serious problems with the Green Paper, but we were encouraged by the sensible pace at which he proposed to progress.
As I have said, the original Green Paper was roundly criticised by others for being too broadly drafted in its coverage of CMPs. After the consultation, the Government decided to jettison secret inquests, making a virtue, as has happened again today, of this concession. I pay tribute to the Royal British Legion and the non-governmental organisation, Inquest, for successfully fighting that barmy idea. Many suspect, however, that the inclusion of inquests in the first place was a wheeze—an idea that would be later binned and presented as a major concession. It is the oldest trick in the book.
The process then changed: there was no White Paper. Instead, we jumped straight from the Green Paper to a Bill, which, while including inquests, did not take on board the wide range of concerns that had been raised about the proposals. In many people’s eyes, the Bill’s process for deciding when there should be a CMP was worse than the process set out in the Green Paper. Even more power was concentrated in the hands of Ministers to decide what would stay secret, while judges had fewer powers to take a balanced view on whether it was in the national interest to keep something secret or whether it was in the public interest to disclose it.
It is on this point that the right hon. and learned Gentleman disagrees with many independent experts, including judges, about how the process will work. He insisted that the CMP process was a judge-led, balancing exercise and that it was not a Minister-led process. He repeated that several times, criticising those who dared to question his assertions, and he has done so again today. I and many others have picked him up on this, because the Bill as drafted was clear: it was not a judge-led process. In the old clause 6, there was no balancing exercise. It was a grab for power by Ministers. They would have decided what stayed secret and what did not. Judges were left with no option but to grant a CMP. The word used was “must”, not “may”. It was simply unacceptable. The power that that would have handed to the Executive to keep material secret was unacceptable and I am pleased that the right hon. and learned Gentleman has accepted the change made in the other place.
Extraordinary assertions keep being made outside this House that the Bill allows Ministers to decide whether there should be closed material proceedings, but that is complete nonsense. The “must” to “may” amendment arises in circumstances where the judge who takes the decision decides that national security would be at issue. The original Bill said that once he finds that there is a risk to national security, he “must” have a closed material procedure. Such is the concern of all these critics that we have made it clear that we will accept a wider discretion, so even when the judge—not the Minister—is satisfied that national security is at risk, he “may” have a closed material procedure. I submit that people should think about the possibility that that leaves the judge with all the discretion in the world to think about all the other issues that might mean there is some compelling reason in a particular case not to allow a CMP, even when national security is threatened. I simply do not understand why the right hon. Gentleman—he is not the first; I am not singling him out—and others keep asserting that Ministers will decide on that when the Government gave up that position months ago.
I know that the right hon. and learned Gentleman has not practised law for a while, but he is wrong. The old Bill clearly said that if a Minister decides that there is a threat to national security, the judge must order a CMP. The improvements made by the House of Lords changed that and I am glad that he has accepted them.
The right hon. and learned Gentleman has lashed out—he did it again today—at what he called the “reactionary” elements of the civil liberties community. He is sniggering, but he will recall that he was once a part of that community. Does he really believe that David Anderson QC, the Government’s independent reviewer of terrorism legislation, fits that description? I remind him of what Mr Anderson said about the Bill’s original proposal that Ministers would trigger a closed hearing:
“That proposal seems to me profoundly wrong in principle. The decision whether to order a CMP is properly for the court in the exercise of its case management functions.”
He also said that a CMP should be used only if
“the just resolution of a case cannot be obtained by other procedural means (including not only PII but other established means such as confidentiality rings and hearings in camera).”
It seems that it was not just me who got it wrong; according to the Minister without Portfolio, his own independent reviewer of terrorism legislation also got it wrong.
Advocates also appear to have got it wrong by not understanding the Bill as previously drafted. Many esteemed legal Members of the other place, such as Lord Pannick, Lord Macdonald and Lord Phillips, also got it wrong if the Minister without Portfolio is correct.
On 19 November, the day the other place considered the Bill on Report, an editorial in The Times—hardly a member of the “reactionary” civil liberties community—said:
“The Justice and Security Bill being considered in the House of Lords today cannot be allowed to stand in its current form”.
The Daily Mail, which is not historically known to be a “reactionary” element of the civil liberties community, either, has also consistently opposed the right hon. and learned Gentleman’s original proposals.
I accept that some have argued strenuously against the whole principle of CMPs in our civil courts. Others have focused their energies on ensuring that the Bill has proper checks and balances in place.
I will give way to the Minister without Portfolio. Clearly, one hour was not enough for him.
We are merely warming up. To refresh the right hon. Gentleman’s memory, I have a copy of the original Bill. I think he is talking about a debate that was last sensibly carried out when the Green Paper, in which we said that it would be for a Minister to decide on this matter, was considered. Clause 6(2) of the old Bill says:
“The court must, on an application under subsection (1), make such a declaration if the court considers that…(b) such a disclosure would be damaging to the interests of national security.”
We published the Bill on the basis that it was a judge’s decision. We are making the judge’s discretion wider. He does not have to have a CMP. Even if he is satisfied that national security is at risk, he “may” make a declaration, which is what has been proposed to us by the House of Lords.
The right hon. and learned Gentleman can use the present or past tense, but the reality is that, previously, the judge would have had to order a CMP if the Minister said that there were national security issues. There was no balancing exercise. The changes made in the other place mean that the process is now judge-led and I am glad that the Minister without Portfolio welcomes them. I am glad that legal experts agree with me. We will have a chance to come back to the issue later.
The defeats inflicted on the Government in the other place were truly stunning—the Minister without Portfolio used the phrase, “Pushing at an open door”—with majorities of 100, 105 and 87. Those defeats mean that, as the Bill stands, there will be an equality of arms between the two parties in a civil action and a full judicial balancing of the competing public interest. Moreover, if CMPs are to be granted, it must be as a last resort—I know that the right hon. and learned Gentleman does not like that change made in the other place—and, importantly, there will now be judicial balancing within the CMP.
I have no doubt that there would have been more defeats had the Minister in the other place, Lord Wallace, not seen sense and conceded on other amendments. The scale of those Government defeats is testament to the enormous levels of unhappiness of distinguished legal experts and serious people with the Bill as originally published.
I pay tribute to the Joint Committee on Human Rights, particularly its Chair, my hon. Friend the Member for Aberavon (Dr Francis), for the work it has done. Its amendments—the Opposition supported the majority of them—were the basis of the victories in the House of Lords. We will seek to make other changes to the Bill in Committee, in order to ensure greater fairness. We will oppose any attempts to water down the improvements that have already been made.
I want to touch briefly on clauses 14 and 15, which address the so-called Norwich Pharmacal cases. They prevent the disclosure of “sensitive information” that the Secretary of State certifies it would be contrary to the interests of national security or international relations to disclose. In those cases, a party seeks an order for the disclosure of evidence in order to pursue or defend a case against a third party, possibly outside the jurisdiction, as in the cases that have attracted attention in which the defendant—that is, the Government—is to some degree mixed up in events, perhaps by quite innocently coming into possession of some information.
Disclosure via Norwich Pharmacal is, we are told, already seriously undermining confidence among our most important partners, including the United States of America. That is an important matter for our intelligence agencies, which I have already paid tribute to, because they probably work more closely with their colleagues in the USA than those in any other country. We understand the importance of the control principle.
Although there may be an issue that needs to be addressed and a case for regularising the situation created by the Norwich Pharmacal cases, we question whether the Government’s approach is too broad. We will test that in Committee. The independent reviewer of terrorism legislation, David Anderson QC, agrees with our position and has publicly accepted that there is
“a case for restricting the novel application of the Norwich Pharmacal jurisdiction to national security information.”
He concluded, however, that what is now clause 14 was too broad in its application.
We do not intend to oppose the Bill on Second Reading. However, I hope that I have made it clear that we wish not only to hold on to the improvements that were made to the Bill in the other place, but to use the Committee stage to seek further improvements. How we vote on Report and Third Reading will be determined by the Government’s actions in Committee between now and then.
Order. There is a 10-minute limit on contributions from now on, with the usual injury time for up to two interventions.
As Chairman of the Intelligence and Security Committee, I will concentrate my comments on the proposed reforms of the ISC in part 1 of the Bill.
It is easy for me and the Committee to welcome part 1, because 95% of it is exactly what we recommended to the Government many months ago. We pay tribute to them for being willing to accept such a radical change in the powers relating to independent oversight in the United Kingdom. The system has been imperfect since 1994, as has been commented on in the past. I can say with confidence that if the proposals in part 1 are implemented, the United Kingdom will have a system of independent intelligence oversight with the powers that are necessary to make it effective. It will be one of the most powerful systems of independent oversight in the western world.
It is worth remembering for a moment why independent oversight is crucial in an open society. Our intelligence agencies have and need to have powers which, if used by other citizens, would be a breach of the criminal law. Given that situation, the agencies are the first to acknowledge that it is essential in a parliamentary democracy for there to be not only Government accountability, but accountability to Parliament and the public. The agencies use some £2 billion of resources. That is a lot of money and it has to be justified, particularly in difficult times.
From time to time, it will be necessary, as it has been in the past, to criticise the agencies when something foolish, unwise or unacceptable takes place. However, the agencies also appreciate that the power of genuine, independent oversight means that they can be defended if, as happens occasionally, they are unfairly criticised or attacked and cannot defend themselves. For obvious reasons, if the Government try to defend them, there is seen to be a potential conflict of interests. That does not apply in the case of genuine, independent oversight. For example, in the 7/7 bombings inquiry, the Intelligence and Security Committee was able to point to some of the unfair accusations that were being made.
What are the reforms that are crucial in transforming the role of independent oversight in the United Kingdom? First, until now—including as I speak—the Intelligence and Security Committee has been a committee of parliamentarians, but not a Committee of Parliament. That is going to change. For the first time, the last word on whether the proposed members of the Committee are acceptable will be with the House of Commons and the House of Lords. As has been said, the Chairman of the Committee will in future be appointed not by the Prime Minister, as I was, but by the Committee itself.
The Committee will report to Parliament. At the moment, it reports to the Prime Minister and only through the Prime Minister do its reports reach this place. Some redactions will, of course, be necessary. There will be occasions, as there have been in the past, when the ISC reports on such sensitive matters that it will, in practice, report only to the Prime Minister because the material overwhelmingly cannot come into the public domain. Nevertheless, for the first time, we will have a parliamentary Committee that is parliamentary in the sense of other Committees, except where the need for the respect of secret information continues to require some differences of treatment.
The second major change is in relation to operations. I will differ slightly from my right hon. and learned Friend the Minister without Portfolio in saying that the extent to which the Intelligence and Security Committee has already been involved, through agreement with the agencies, in looking at operations and sensitive material is not exceptional or occasional, but substantial. Nevertheless, there has been no statutory basis to it. That is crucial, because operations are what the agencies are about to a considerable degree and are where parliamentary and public concern can be most manifest. It is profoundly unsatisfactory that, until now, there has been no meaningful statutory role for the Committee in relation to operations.
I point out to my right hon. and learned Friend that that situation means that refusal is possible and is too easy in circumstances where embarrassment is involved. I can think of at least one case in which I feel that that happened during my time on the Committee.
I agree with my right hon. Friend. There has to be an ultimate right for the Prime Minister to decline to allow the Committee to receive certain information. However, until now, the agencies have been able to exercise that power. To be fair to them, they have rarely, if ever, tried to do so.
On operations, the statutory basis is crucial. The Committee has accepted that our oversight of operations should be retrospective. We do not wish to interfere in ongoing operations. That would be unreasonable and would put an intolerable burden on the agencies. As long as the oversight is retrospective and there is a significant national interest—we will have debates over what that phrase means—I believe that there is a sound basis.
Thirdly, until now, the Intelligence and Security Committee has been able only to request information from the agencies, not require it. To be fair to the agencies, they have not, for all practical purposes, ever refused us information, but they have been in control of the information that has been provided. Real problems have emerged over the years. On some occasions, it has been found, subsequent to the publication of a report, that important documents had simply not been made available to the Committee. That may not have been done in bad faith, but the consequence was embarrassment for the agencies and for the system of independent oversight. That cannot be allowed to continue.
We have also found that when the agencies have responded to a requirement of the courts, the resources and the time that they have devoted to finding every relevant document have been slightly greater than for a Committee that can only request information and not require it. That is going to change. I pay tribute to the agencies for accepting the need to make this change. The Committee will now have the power to require information from the agencies, including information on operations, subject to one or two important safeguards.
I come now to the crucial difference. Until now, the problem has been that although the agencies hold vast amounts of information on any given subject, we do not expect them, when we request information, to fill several forklift trucks with information and dump it at our offices. That would be absurd, and we will not expect that when we require information in the future. However, until now, the agencies have done the editing themselves. Even if it is done entirely in good faith, that does not enable the Committee to be confident that it has seen all the information that it would wish to see before it brings forward its proposals.
We have proposed that we will appoint additional staff—assistants to the Committee, who will be our employees and be answerable to us—who will go to the agencies when we require information on a particular subject from them and discuss all the information, including the raw material, that they have in their files. I pay tribute again to the Government and the agencies for agreeing to that. I hope that there will be a process of agreement and discussion, but at the end of the day, it will be our staff who decide which parts of the available material the Committee is likely to want to see. We, Parliament and the public will therefore be able to have confidence that the decision will be taken by the Committee itself, not by the agencies, however much they would be trying to do their best in good faith.
That is an enormous culture change for MI6, MI5 and GCHQ to accept. For the first time in their history they will be not just providing information to people who are not employees of the agencies or part of the Government—we are not part of the Government, and in future we will be part of Parliament—but allowing them to come into their offices, see material and discuss what the ISC would like to evaluate. I pay tribute to the agencies for accepting that. Of course they have some reservations and concerns, and a memorandum of understanding is being discussed. It is referred to in the Bill and will be published in due course. It will explain in greater detail how the system will work on a day-to-day basis. We may have to review it in a year or two in the light of experience.
I pay tribute also to both Her Majesty’s Government and Her Majesty’s Opposition, because such a change is not just a potential rod for the back of the agencies but will occasionally create problems for the Government of the day. Both Front-Bench teams know that the Bill will mean that intelligence oversight will have the teeth that it has not had in the past, because it will be on a statutory basis and include the real powers that I have described. That is why I and the Committee feel confident in saying that we will have a tougher, more effective and more reliable system of oversight than we have ever had in our history or than can currently be found in almost any country in the western world or globally.
I pay tribute to the right hon. and learned Gentleman for his leadership of the Intelligence and Security Committee. I do not think we would have quite such robust proposals had it not been for his work.
May I remind the right hon. and learned Gentleman of one small point? As the Bill is drafted, it would prevent the Committee from examining ongoing operations. If the Government were to ask us to consider a matter that was ongoing and not retrospective, that would be forbidden. The Bill therefore needs to be amended on that point.
I must first reciprocate the right hon. Lady’s compliment. She has made an enormous and much-respected contribution to the Committee’s work.
The right hon. Lady raises an important point. Of course we accept that our oversight of operations must be retrospective and on matters of significant national interest. However, there have been circumstances in which the Prime Minister of the day has invited the Committee to examine an ongoing operation on some specific matter. In addition, there are sometimes occasions when, because of leaks and press awareness, an ongoing operation becomes a matter of public discussion and debate. There must be flexibility in the Bill to allow the Committee to examine such matters. The House should feel confident that, although we wish a number of improvements to be made in Committee, we are entering a new phase of intelligence oversight.
I want to say a few words about part 2 of the Bill. A number of my right hon. and hon. Friends who serve on the Committee will undoubtedly wish to speak about it as well. It goes without saying that closed material proceedings are not very satisfactory, but in the imperfect world in which we live, the choice is sometimes between good solutions and bad solutions but more often between bad solutions and worse solutions. As has been said, public interest immunity is not a feasible alternative. The £2 million settlement that was made just a couple of weeks ago was a case to which intelligence material would have been central if it had gone to court. There could not have been PII, because that would have excluded all the material. That leaves us to introduce a system that, as the former Lord Chief Justice Lord Woolf has said, is certainly preferable to PII. I say to hon. Members who still have their doubts that the system is not perfect, but it is a lot better than the one we have at the moment. That is why it is in the national interest to support the Bill.
It is a pleasure to follow the chairman of the Intelligence and Security Committee, the right hon. and learned Member for Kensington (Sir Malcolm Rifkind), and I echo the comments of my right hon. Friend the Member for Salford and Eccles (Hazel Blears) about his leadership on matters concerning the Bill and our general work. It has been a genuine pleasure to work with him over the past two years.
The debates that we have had on national security over the past decade have been among the most important exchanges in the House over that period. They have taken us to the heart of the balance between individual liberty, including the rights of those who are suspected of plotting terror, and our collective security, including the most fundamental human right of all, the right to life.
As we have responded to the new threats of global terror from al-Qaeda, it would have been a miracle if Governments had been able to get everything absolutely right first time. As I have said before in the House, I accept that the proposals for 90-day and 42-day pre-charge detention went too far, as an issue of practicality as well as one of principle, and Parliament was right to block them. Equally, the judges were right to deem detention without trial non-compliant with the rights of defendants. That, too, had to be replaced.
It remains to be seen whether the reforms of the past two years have gone too far in taking the balance away from public safety. I certainly do not accept the narrative that everything that has happened since 9/11—all the extra resources provided to the intelligence and security agencies and the stronger powers that Parliament has decided on to deal with suspects—are a victory for the securocrats, who hoodwink Ministers into illiberal measures to undermine our basic freedoms. The simple fact is that many thousands of lives have been saved because of the actions that Governments and Parliament have taken. At the same time, suspects have still been able to enforce their rights in the courts, and judges have increasingly ordered the disclosure of information that would have been held secret in the past.
The Bill deals specifically with the balance between greater scrutiny and the limits that ought to apply in a certain small number of civil cases. The Intelligence and Security Committee has played an important role in scrutinising the agencies, as its chairman said. That role far exceeds what was envisaged in 1994 and includes the close examination of some ongoing operations. However, the ISC will be in a stronger position when it is a Committee of Parliament and has greater powers and resources to ensure that it can get the information that it requires rather than simply trusting that the agencies are giving it what it has requested.
I place on record the tremendous debt that all members of the ISC, and therefore all Members of Parliament, owe the small, dedicated team of staff who work to support it in all its work. The chairman of the ISC alluded to a number of issues that still need to be ironed out. I suggest that the starting point for our deliberations in Committee should be that the Bill must not prevent the ISC from doing anything that it is already doing in practice.
As we have heard in the opening Front-Bench speeches, the most controversial part of the Bill relates to the closed material procedure. I do not intend to dwell on the background to it, because others have spoken about the importance of the control principle and the difficulties that the agencies currently face in defending themselves against civil claims. However, I want to make two points. The first is to confirm that the increasing reluctance of the United States intelligence community to share life-saving secrets with the United Kingdom is not a made-up scare story. I have seen and heard, in frank exchanges with colleagues in Washington when the Committee visited last year and earlier this year, that that is a substantial problem that simply has to be dealt with.
Secondly, the agencies’ desire to defend themselves is not about suppressing the truth, and it is not primarily about saving the taxpayer the millions of pounds that it is currently costing, although those are substantial sums. It is about being able to defend their reputation and the high standards of those who take risks every day to protect our freedoms. Clearly mistakes have been made and individuals have been mistreated, but I simply cannot accept the casual assertion that is often made, or at least implied, that the agencies are inevitably the bad guys while the claimants are always the blameless victims.
The comments of Lord Phillips and others during the consideration of the Bill in the other place, and the support that those independent-minded politicians gave for the closed material procedure, were very welcome. It is fair to say that the Bill has been improved in the other place. It is right that judges have discretion and decide whether the closed material procedure is appropriate. It is right that the courts must decide whether, on balance, the interests of national security are likely to outweigh the interests of fairness and open justice. The question of how that balance is to be struck, as the Minister without Portfolio said, is likely to be debated in detail in Committee. I was pleased to hear that he and the Under-Secretary of State for the Home Department, the hon. Member for Old Bexley and Sidcup (James Brokenshire) intend to promote discussion in relation to PII. Under the Bill, consideration of PII should always come first, before the closed material procedure. As the Minister without Portfolio said, that could produce long delays in the judicial process, even though the outcome could be staring the court in the face from the outset.
In the short time remaining, there are two more issues that I should like to raise. If I am feeling brave enough, I might even table some amendments about them in due course. In relation to the order-making power, which was in clause 11 but has now been dropped for reasons of political consideration—presumably to make sure that the Bill completes its passage and that the main provisions remain—the cause of the concerns that prompted that power, which would allow the closed material procedure in other proceedings, has not gone away.
There are two particular types of proceedings that are relevant. The first is inquests, as I have said to the Minister before. If there is secret intelligence that cannot be revealed because it would result in the disclosure of sources, methodologies and so on, but which explained the cause of death, the coroner at the inquest should be able to see it. It might be possible in most cases not to have a closed material procedure. Lady Justice Hallett did a fine job in making sure that intelligence could be considered at the 7/7 inquest without the need for a closed material procedure, but I would not rule it out in future. The order-making power originally included in clause 11 would have provided an opportunity for Ministers, as and when cases arose.
I am thinking in particular of more than 30 historic inquests that have still to be heard in Northern Ireland and where the deaths involved the police or Army. That is an issue that will not go away. I have raised it with the Minister, and with other Ministers, and I have yet to hear one disagree with my assertion that if it is right to have a closed material procedure in civil cases, it is right to have it in inquests. I am thinking, too, of proceedings in relation to the judicial review of decisions to revoke the licences of convicted terrorists who have been released from prison, but where there is intelligence that suggests that they are again engaging in terrorist activity.
My right hon. Friend has pursued the issue of inquests with huge tenacity, and he makes an almost irrefutable point: how are we to get a proper decision in an inquest unless the full information can be put before the coroner? Certainly in the case of the historic inquests in Northern Ireland, inevitably, by its very nature, that information will be private and secret information from the intelligence agencies. I have yet to hear an answer from the Government on that.
I do not make light of the issues. If intelligence were shared with a coroner, but not with the family of the deceased, that would be a massive step, but it is better that we should know the cause of death rather than the whole thing remain a mystery. I am therefore grateful to my right hon. Friend for her intervention.
My right hon. Friend will not be surprised to hear that I beg to differ strongly on that point. The idea that we can make a contribution to resolving issues of the past in Northern Ireland and all these inquests that have not taken place by creating a closed material procedure simply will not wash, not least in the light of the implications of the de Silva report and the issues for many families, not just the Finucane family, in relation to some of the revelations, never mind the material that was not disclosed by de Silva.
As ever, I warmly welcome the intervention of my hon. Friend, even though for some years we have disagreed on that point. It is good to know that he continues to make the point and that we continue to debate the issue. He may be interested in my next point which relates to the judicial review of a decision to revoke the licence of a convicted terrorist who has been released from prison, and where there is intelligence to suggest that that individual is again engaged in terrorist activity.
I shall refer to my specific experience in Northern Ireland. In 2008, I revoked the licence of a leading member of the Real IRA who was a convicted terrorist and had been allowed out of prison. Intelligence given to me made it perfectly clear that he was again involved in organising terrorist activity. That intelligence came from the Security Service. He did not like the fact that I revoked his licence and he went back to prison, but he challenged me for more than 12 months on that decision. In the end, the case went all the way to the Supreme Court. The outcome was that he had to be released into the community, though he was due to be released a few months after that date in any event.
The court made it clear that I had behaved perfectly reasonably and lawfully throughout, but it demanded that more of the information on which I made my decision should be given to the individual than the Security Service could possibly have allowed, so he walked free. I simply say to the Minister—and it will be interesting to see whether the Under-Secretary will comment on this in his winding-up speech—that the issue will not go away, especially as an increasing number of convicted terrorists will come out of prison in the foreseeable future. I suggest that this is something that needs to be looked at.
Finally, I agree that the closed material procedure used by the Special Immigration Appeals Commission, and included in the Bill, is not a perfect procedure, but to work as best as it can it requires the co-operation and advocacy of the special advocates who represent claimants or defendants. I do not criticise special advocates because they express strong opinions, and I do not question their motives, but if Parliament decides that the provision of a closed material procedure is a proportionate response to the risks that we face, it is absolutely vital that special advocates, like the rest of us, do whatever they can to make the system work. I hope that the Under-Secretary will tell us that he is engaging in a new initiative with special advocates that will mean that they will strive to make sure that they can represent their clients in the best way possible. The Bill is an important further step. It was improved in the other place, and I am sure that it will be improved in Committee.
Having served on the Intelligence and Security Committee for more than a decade after it was first established, I warmly welcome the action of Ministers in introducing these new provisions. I have some slight reservations about improvements that are needed, but the measure is a good indication of the importance that the Government attach to the effective oversight of intelligence.
Much of my time on the Committee was deeply rewarding, and gave me a great deal of respect for the people who work in our intelligence services or assist them. Sometimes, however, it was like drilling into hard rock, and the drill had not got through the rock by the time I left the Committee. There were still many areas where the Committee did not have the information that it ought to have had to make the right kinds of judgment.
The value of the Committee rests only partly on its reports, which it makes to the Prime Minister. In future, it will make reports to Parliament. There has been reference to an annual report: the Committee makes numerous reports on different matters, and occasionally it has to make a report exclusively to the Prime Minister because none of the content can be revealed, so provision is made for that. The Committee’s value also rests on the fact that it gives confidence to the House and to colleagues that there are people who have enough access to know whether there is likely to be incompetence, illegality or unacceptable behaviour going on. The Committee provides reassurance that if that were the case, it would challenge it. To do so, it needs depth of knowledge, which means being aware of what is going on operationally.
Some of the definitions in the Bill are capable of benign use, but could also be put to hostile use, and could be used to restrict information. I do not think that that is the intention, but they could be improved significantly. The right hon. Member for Salford and Eccles (Hazel Blears) made a point about ongoing operations, and I think that that is a limiting provision. When does an operation end? Many of our operations against terrorism are ongoing for as long as we think there is a threat, but we have to know what is happening. If we look back to the period leading up to the Finucane murder, for example, it would have been wrong, if the ISC had existed then, for it not to have had some understanding of the relationship between the Security Service and military units such as the force research unit and the basis on which information might be released by agencies and get into the hands of paramilitary organisations. The Committee needs that level of understanding to meet the test I described, so the wording needs to be adapted. It would be wrong, and a terrible mistake, if the Committee knew who was serving as agents and what handlers were finding in particular cases at particular times. That information should be kept as narrowly as possible, but allowing understanding of the operation, why it is being conducted and on what lines is significant.
My right hon. Friend may like to know that part of the intention of the reforms is to ensure that we receive regular—probably quarterly— reports on the spectrum of agency activity, including operations, subject to retrospection and significant national interest. That gives us a broader awareness of the totality of agencies’ activities than has been possible in the past.
That is very helpful. There is a success story here: the Committee is still building the relationships necessary to give the confidence I described earlier. I pay tribute to those who have been involved in this on the Committee side as well as on the Government side. There will be occasions, as there have been in the past, when the public fear that power within the intelligence sphere is being used inappropriately or, indeed, not effectively. A democratically elected body must therefore be able to provide reassurance that if something goes wrong it will know about it and try to do something about it.
The other part of the Bill deals with closed proceedings, which are also closely related to intelligence. I emphasise that we are discussing civil proceedings, not prosecutions. Closed material proceedings are unwelcome, but it is difficult to see an alternative. They are necessary to protect the operational effectiveness of intelligence services, including the secrecy of sources. The control principle of foreign intelligence is fundamental to intelligence operations: people do not give away their country’s intelligence unless they know it will not be misused.
That is not a one-way process—other nations sometimes forget the control principle. I recall a rendition case in which our US allies did not observe the principle. Indeed, the Committee reported on it because the intelligence was provided on the basis that action would not be taken, yet it was used to provide the basis for an action. That was an example of the control principle not being applied, but we must apply it; otherwise, we will not gather the intelligence we need to protect our citizens.
I pay tribute to the work of the Joint Committee on Human Rights, which the Justice Committee decided was doing the work and should be allowed to get on with it. Boundary lines between our two Committees are often drawn, but the Joint Committee’s excellent work contributed hugely to their lordships making the Bill more acceptable to those of us who come at it from a more liberal standpoint. Their lordships made it quite clear that although the Executive apply for closed material proceedings, the judge decides.
The original subsection (2) of clause 11, which would have allowed the extension of closed material proceedings into other areas, was removed by a welcome Government amendment. Their lordships passed an amendment on considering alternatives such as public interest immunity and a strict necessity test. The amendment appeared to be desirable, although my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) today indicated that it could lead to some cumbersome processes, so it will be appropriate for the Committee to look a little more closely at it.
A court will be required to balance national security with fairness, transparency and the need for open justice. The amendment that was unsuccessfully proposed to bring that process continuously into closed material proceedings was unrealistic—it is pretty difficult to satisfy foreign allies that we will apply the control principle if the question is being reopened in proceedings daily. The Government have indicated that they will accept the provision under which either side will be able to invoke closed material proceedings. I find it hard to envisage the circumstances in which a plaintiff would do so, but equality of arms requires that provision. I do not know why the Government resist the amendment proposing an annual report on the use of closed material proceedings—a fairly simple requirement—but perhaps such proceedings will not be so frequent and only a biennial report will be necessary.
As a result of proceedings in the other place we are now close to achieving a reasonably satisfactory balance in using difficult and unwelcome powers to ensure that information can be put before a court. None of us would want to have to use the process, but without it we will not be able to decide cases on the evidence available.
Another matter with which the Bill deals is the more general application of the Norwich Pharmacal principle to intelligence, on which the Government are right to act. I note the Intelligence and Security Committee’s suggestion, which the Justice Committee can look at, on how we limit its application so that we more specifically refer to foreign intelligence and the control principle or information that would impair the effectiveness of our security operations. The Government must act to defend our ability to acquire intelligence from elsewhere.
Further improvements might be possible to make it clear that a gisting process can work in cases where the special advocate realises that he cannot effectively challenge or assess evidence without more information that is in the possession of only the plaintiff. We must find some way of resolving that. We cannot allow the present position to continue, but we must get the Bill into the best state possible.
I welcome the contribution of the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), who joined me last week in seeking—and, I think, securing—clarification from the Prime Minister of the Government’s intentions. May I say how pleased I am by the desire among Members on both Front Benches to improve the Bill in Committee?
The Joint Committee on Human Rights, which I chair, spent a long time scrutinising the proposal before the House today. We took the unusual step of holding an inquiry into the Green Paper that preceded the Bill because some of the proposals in the Green Paper constituted such a radical departure from the country’s constitutional tradition of open justice and fairness that we thought they deserved the most careful scrutiny.
Our examination of the Green Paper revealed serious human rights concerns about a number of the proposals. The Government accepted some of our recommendations on the Green Paper, and when the Bill was introduced in the other place they made some changes to the original proposals. The Government’s decision not to extend closed material procedures to inquests and the narrowing of the scope of the proposals to national security material were particularly welcome.
The Bill as introduced still represented a radical departure from our traditions of fair and open justice. Amendments made in the other place, based on some of the recommendations made by my Committee, have improved the Bill, but I want to explain why the Government still have a long way to go in improving this measure before they can plausibly claim that it is compatible with British traditions of fairness and openness, of which this House has been a proud defender.
Our starting point must be a recognition of how radical a departure from our common law constitution it is to extend closed material procedures to civil proceedings. During my Committee's scrutiny of the Bill the Government appeared to be in denial about this, but every other witness before our inquiry agreed about the enormity of what the Government propose. Let us not forget that in the case of Al-Rawi the Supreme Court refused to countenance such a radical change by judicial development of the common law.
Why does the Bill amount to such a radical departure? There are two main reasons. First, we in this country have always enjoyed a right to an adversarial trial of a civil claim. This includes the right to know the case against us and the evidence on which it is based, the opportunity to respond to evidence and arguments made by the other side, and the opportunity to call witnesses to support our case and to cross-examine opposing witnesses.
The second main reason why the Bill amounts to a radical departure from our constitutional traditions is that it derogates from the principle of open justice—the principle that litigation should be conducted in public and that judgments should be given in public, so that the media can report fully and accurately to the public on what the courts decide. One of the central questions for the House is this: have the Government demonstrated, by reference to sufficiently compelling evidence, the necessity for such a serious departure from the fundamental principles of open justice and fairness? My Committee subjected to careful scrutiny the evidence that the Government say demonstrates the necessity for making closed material procedures available in civil proceedings. We appreciated the Government’s difficulties in proving their case with reference to ongoing cases. We were anxious to give them a proper opportunity to prove their case and did so, but the Home Secretary refused to allow the special advocates to see the material that had been shown to the independent reviewer of terrorism legislation. The Government were unable to provide the Committee with a detailed breakdown of the civil damages claims pending against them in which sensitive national security information is centrally relevant to the case.
The Committee’s report on the Bill states that we remain unpersuaded that the Government have demonstrated by reference to evidence that there exists a significant and growing number of civil cases in which a closed material procedure is essential, in the sense that the issues in the case cannot be determined without a closed material procedure. I am sympathetic to the arguments made by many human rights organisations, including Liberty, Justice and Amnesty International. They argue that, because the Government have not made their case for introducing closed material procedures into civil proceedings, that part of the Bill should be removed altogether. Indeed, I note that a number of eminent lawyers in the other place voted to do just that.
My Committee’s judgment, however, is that the Bill is likely to pass in some form, and it is therefore better to seek to improve it with amendments than seek to make it compatible with the important traditions of open justice and fairness. I will therefore not vote against the Bill today, but the Government are on notice of the need to show us the evidence that demonstrates the necessity for extending closed material procedures into civil proceedings.
The amendments made to the Bill by the House of Lords made some of the necessary improvements, but I shall conclude by outlining four areas where the Committee and I believe improvements are required. First, we need provision for full judicial balancing of interests to take place within a closed material procedure. The House of Lords—by an overwhelming majority—amended the Bill to ensure that there is full judicial balancing of interests at the gateway stage, when the court decides whether a closed material procedure is appropriate. However, the amendment to ensure that the same judicial balancing takes place within the closed material procedure, when the court is deciding whether material should be closed or open, was defeated in the Lords late at night. Labour backed the amendment recommended by my Committee in the Lords, and I hope it will do so in this House. The amendment is essential to ensure that judges have the discretion they require to ensure that the Bill does not create unfairness.
Secondly, the House needs to listen to the expert views of the special advocates and act on their recommendation that the Bill must include what has become known as a gisting requirement, which has been referred to. My Committee recommended that such a requirement be included in the Terrorist Asset-Freezing etc. Act 2010, but the Government resisted, and the High Court last week held that such a requirement is necessary for the legislation to be compatible with human rights. The House should not leave it to the courts to correct the Government’s mistakes, so we should amend the Bill to give effect to the Committee’s recommendation.
Thirdly, the Bill needs to make provision for regular reporting to Parliament, as has been suggested. The Secretary of State should report regularly for independent review by the independent reviewer of terrorism legislation, and for annual renewal, to ensure a regular opportunity for Parliament to review the operation of the legislation and to debate its continuing necessity.
Fourthly and finally, the Bill needs to be amended to provide a more proportionate response to the problem of preventing courts ordering the disclosure of national-security sensitive information.
In conclusion, I look forward to the House, particularly in Committee, living up to its responsibility to ensure that the legislation we pass is compatible with the basic requirements of the rule of law, fairness and open justice.
It is a pleasure to follow the hon. Member for Aberavon (Dr Francis), whose Committee—the Joint Committee on Human Rights—produced the best guide to the Government’s proposals and their weaknesses, and to the threats they pose to our current civil liberties.
In recent months, the Prime Minister rightly received plaudits for how he handled the apology for the Bloody Sunday massacre and the Finucane murder. He did so with great openness and sensitivity. Both inquiries exposed unlawful killing, either directly or indirectly, by agents of the state, and subsequent cover-ups. Thankfully, that sort of thing is extraordinarily rare in the UK. One reason why it is rare is that such things are exposed and deterred by an open and transparent system of justice—the whole system of justice, including the criminal judicial system, the inquest system and the civil courts system.
Measures in the Bill create the power to take parts of that civil judicial system not just out of the public domain —that already happens in some ways—but completely out of the normal judicial testing procedure. Under the Bill, evidence can be presented by the Government that the other side and their defence lawyers cannot see. That evidence cannot be tested, and therefore may be wholly wrong and misleading, which undermines the very thing that makes our system work.
What role does the right hon. Gentleman imagine a defence lawyer would have in such proceedings?
A defence lawyer has the role of challenging the evidence, but I will come back to the right hon. Gentleman’s point later.
The Bill is, in the words of Lord David Pannick, a leading barrister—indeed, he is the Government’s leading barrister of choice—“unnecessary, unfair and unbalanced”. He said it is unnecessary because we already have the public interest immunity system.
My right hon. Friend has chosen to quote Lord Pannick, but in the debate in the House of Lords on 11 July, he also said:
“I recognise that there may well be a need in some exceptional cases for a…closed material procedure, but…this should be a last rather than a first resort.”—[Official Report, House of Lords, 11 July 2012; Vol. 738, c. 1176.]
Exactly—or not exactly, in the context of this debate. Much depends on how the Government decide to respond to amendments made in the Lords.
If my right hon. and learned Friend will forgive me, I have run out of injury time.
If a case involves sensitive information, the Secretary of State asks the judge’s permission to keep documents away from the court. The judge examines the evidence and makes a decision that balances national security with the interests of justice. Under the PII system, evidence can be shown in an edited form, and witnesses, whether spies or special forces or whoever, can speak from behind screens. Suspects can be given the gist of the case against them, and the court can sit in open session or in camera. All those operations are possible under the PII system, which has served British justice well for decades, not just against the current threat of terrorism, but against the Soviet threat, which in many ways was much more professional, and the previous Irish terrorist threat. The proof of the PII system is that no Government, including this one, can point to a single court judgment that has undermined national security—not one judgment.
Will the right hon. Gentleman give way?
I will, but only because it is to the right hon. Gentleman.
The right hon. Gentleman is right that no one can say that PII has led to a disclosure of evidence, because PII excludes evidence—that is the whole point of it.
I missed the right hon. Gentleman’s last words.
The whole point of PII is that it excludes evidence. Therefore, by definition, there can be no compromise of national security in PII, but there can be no evidence before a court either.
PII balances the demands of national security and justice—that is exactly what it does. I do not want to be distracted for too long, but I discussed this at some length with Lord Pannick, whom my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind) mentioned, with a number of lawyers who operate in this system all the time—not just as an aside or even as criminal lawyers, but all the time—and with the special advocates. This is not just the view of some civil liberties extremists, as the Minister without Portfolio tries to imply. It is the view of the Joint Committee on Human Rights, which is unpersuaded —the word it used—that the existing law is not up to the task. It is the view of almost all the special advocates, the lawyers who make closed material procedures work and understand the procedure better than anyone else—indeed, I would argue that they are the only people who understand both the strengths and the weaknesses of the procedure they operate. It is the view of Lord Pannick, as I said, and the view of the former Director of Public Prosecutions, Lord Macdonald, who had a formidable record of prosecution in terrorist cases in his time as DPP.
The Government, the security agencies and their proxies say the opposite, just as they did—in fact, we had the reference earlier—when the 7/7 inquest was proposed. What did MI5 say? It said that holding the inquest in public would amount to “handing over the keys” to its headquarters. It said that if evidence was not heard in secret then it might have to release information from top secret intelligence files. No such thing happened. Instead, we learned a great deal about what happened on 7/7. We learned about failings in operations, data handling and management—all perfectly proper things for the British public to know, and not a single failure of security or intelligence. As the right hon. Member for Wythenshawe and Sale East (Paul Goggins) said, Dame Justice Hallett ran the inquest very well indeed, as we expect our security-experienced judges to do. That balance was managed nearly perfectly. There is no doubt that this sort of important information about the scrutiny of the state is far more likely to come out in an open court of law than by any other means. I even include in that the Intelligence and Security Committee, good job though it does; an open court is even more important than that.
Many of the Government misdemeanours I have just mentioned have been and gone—inquests held and claims settled. However, the problem of Governments using the rhetoric of national security as a shield for politically embarrassing information has not gone away. In recent years, we have seen allegations of Government complicity in torture and extraordinary rendition. We have seen Gaddafi’s political opponents seized and handed back to the Libyan dictator to face imprisonment and torture—the case that was settled last week. I suspect we will be involved in the use of drones, which have killed scores of innocent people, because of intelligence. This issue of exposure of state misdemeanour in the courts, therefore, is still very current indeed.
It is worth looking at an example of how the state currently uses closed material procedure when it is able. As luck would have it, we have a topical case right now—the case of Serdar Mohammed. Two weeks ago, a British court heard allegations that a suspected Taliban terrorist, captured by UK forces, was tortured by Afghan security services. A secret document was presented to the court in redacted form, the way it would have been in a closed material procedure. Indeed, the document was in the Maya Evans evidence case that my right hon. and learned Friend the Minister without Portfolio referred to earlier. The court did not allow the redaction of the secret UK eyes only document, so we now have both the redacted and unredacted copies in the public domain. We can, therefore, see what was redacted, supposedly for security reasons.
Paragraph 20 talks about a visit to this prisoner by British embassy staff and Royal Military Police. It states:
“The detainee showed the visit party...some of the injuries which he claimed were made as a result of being beaten several times with steel rods to the areas of his legs and feet which he claims left him unable to stand afterwards. Photographs of some of the alleged injuries are also annexed.”
Where the security interest of the British state is in redacting that, I do not know. It was absolutely material to the case in front of the court on Serdar Mohammed. The information posed no threat to any agents, no threat to any techniques, and no threat to any British national interest and yet that was one of the redactions. The only negative effect of showing it in court, of course, was the possible political embarrassment that we may not have met our duties under international law and under the rules of war in protecting a prisoner who was technically under our command. This is exactly the sort of public interest information that could be concealed if the Bill became law.
With closed material procedures enshrined in law, the intelligence agencies would inevitably be tempted to protest that any information relating to their activities was “sensitive”. We have seen that before in the Binyam Mohamed case. More cases would be heard in secret, with no defence lawyers, victims, press or public present to challenge or report what transpired. Evidence heard in secret cannot be easily challenged, and we need to address that. Inconsistencies cannot be spotted and witnesses cannot be properly cross-examined. Under these conditions, evidence may not be worth the paper it is written on.
Let me give the House another example of how this system can fail. A few years ago, there was a control order case, under the previous Government, where the suspect was accused of entering Britain at a specific date and time using a fake passport, which was part of the evidence. Shortly afterwards, exactly the same evidence, including the same fake passport, was used against a different suspect in another, totally unrelated case. They were both supposed to have used the same passport on the same day, which was clearly not possible. It was only by lucky coincidence that the same special advocate, out of approximately 70, was handling both cases. He recognised the evidence and was able to point out that this was false. I do not believe that it was an intentional misleading of the court by the agencies; I think it was simply a mistake. However, it is a matter of public record and the special advocate concerned is now a judge. That demonstrates how easily the CMP can fail miserably in critical issues of justice. That is why Supreme Court Justice Lord Kerr, former Government prosecutor in Northern Ireland during the troubles, subsequently Lord Chief Justice of Northern Ireland, said:
“It would be, at a stroke, the deliberate forfeiture of a fundamental right which has been established for more than three centuries.”
The Justice and Security Bill is being sold as a fair way to protect our national security and justice. It does neither.
It is a pleasure to follow the right hon. Member for Haltemprice and Howden (Mr Davis). I am not entirely sure that we will see completely eye to eye in our contributions, but I hope that we will have the opportunity to debate the subject further.
As a member of the Intelligence and Security Committee, I welcome the proposals in Part 1 of the Bill. They will go a long way to ensuring that the scrutiny of our intelligence agencies is more robust and transparent. In turn, that will give the British public a greater degree of reassurance that the intelligence agencies are properly and fully scrutinised. That is important because they spend a great deal of public money—approximately £2 billion—and because they are involved in some of the most controversial and difficult areas of our national life and operations across the globe.
I commend to the Minister the amendments ably and deftly moved by my colleagues Lord Butler of Brockwell and the Marquess Lothian in the other place, particularly in relation to the issue about not limiting the Committee to dealing entirely with retrospective matters, but giving it some freedom to look at current issues if that is what the Government want us to do. I hope the amendments will be adopted.
I want to add my thanks to those from the Chair of the Committee and from my right hon. Friend the Member for Wythenshawe and Sale East (Paul Goggins) to our current secretariat. They are few in number, but the work they do is amazing. I do not think that the Committee would fulfil its role in the way that it does without their insight, intelligence and intellect, and I pay tribute to them.
If Part 1 of the Bill is relatively uncontentious, the same cannot be said of part 2. My hon. Friend the Member for Aberavon (Dr Francis), the Chairman of the Joint Committee on Human Rights, repeated the phrase that these proposals are a “radical departure” from our normal system of justice. That is also what Lord Pannick said in the other place and was the basis of all the evidence put before the Joint Committee. Yes, it is a radical departure. Under our normal system of justice, evidence is heard in open court and challenged by adversarial cross-examination, and the judge weighs the evidence and comes to a reasoned judgment at the end of the case.
Does my right hon. Friend agree that, although these proposals are a radical departure, the circumstances in which they would be used are also a radical departure?
My right hon. Friend is absolutely right. Since the terrorist threat to the country has increased, particularly since 9/11, and remains a significant threat, clearly other measures have had to be taken.
That is exactly the point: although everyone is saying that these proposals are a radical departure, actually we have trodden this path before. As the Minister responsible for taking the control order legislation through the House, I know only too well the depth of feeling among Members on both sides of the House—this is hugely controversial stuff about which people have very strong feelings. It is contentious among the legal profession, and there are many different views among judges and practitioners, but, as has been said, none of us wants to go down this path—it is not something that we relish doing—but, if we are to protect national security and to have a fair hearing of these issues, we have no other option.
Last night, I tried something that the judges will have to do, which was a little balancing act: I drew up a table of arguments for and against the proposals to highlight in my own mind where the balance in the Bill should lie. First, on the “for” side—the reasons I support the proposals for closed procedures—was the need to protect our international relationships and liaison with countries across the globe. Yes, that is about America, but it is not just about America; increasingly, many of the plots that threaten the UK have an international element and much more work now has to be done upstream—in the words of the security agencies—to disrupt terrorist training and plots that might manifest themselves in this country unless we can do work internationally as well as in this country. That means we have to have these relationships. They are fundamental to the success of our fight against terrorism.
Some people have asked whether the threat that America might not co-operate with us as much as it has in the past is real, or whether it is something that the security agencies are making up to force us down this path. As the Americans would say, “You bet it’s real”. When the Committee visited America last year, we were told in no uncertain terms by law officers, the CIA and a whole host of agencies that the damage done not so much by the information in the Binyam Mohamed case, but by the breaching of the control principle had shaken that relationship—I would not say to its foundations, because it is a very strong relationship, but it had shaken it—and resulted in a lack of information sharing.
The right hon. Lady might not be aware, but the greatest release of intelligence information in history prior to WikiLeaks came in the Pentagon papers. In that case, the American Government brought the control principle before their courts, and they were turned down and vast amounts of data provided by foreign countries were released into the public domain—and that was not the last time; it has happened several times since. Indeed, evidence to the Binyam Mohamed trial stated that the US understood the issues about control because the courts in the states were independent.
I think the right hon. Gentleman gets the balance wrong in that case. I think of the information that the US has provided us with to protect our security. I think of the bomb plot in April—the second underpants bomb plot—where the liaison between the US and this country was essential to preventing an incident that could have cost many lives. We have to strike a balance, but national security is our first responsibility to the country.
My right hon. Friend referred to US concerns based on the Binyam Mohamed case. Does she not, and do they not, recognise that no disclosure of information was ordered by the courts here and that the disclosure actually happened in US proceedings, not here?
I think the Americans have a great deal of concern about many legal jurisdictions when it results in information subject to the control principle being disclosed in open court.
Is the right hon. Lady aware that the American courts do not provide that absolute level of protection and that there is no reciprocation of the control principle in US courts, so it is perfectly possible, through the US court system, that information that we have handed to the Americans could, in principle, find its way into the public domain? That point has been made once or twice already. It is crucial that both countries have a sense of balance and put their courts back at the centre of making that judgment.
With respect to the hon. Gentleman, clearly the control principle relates to relationships between different intelligence services and liaison countries. Also, in America, they have the states secret privilege, under which they can say, “This matter is not justiciable at all, because it covers matters relating to national intelligence”, so in some respects it is a more draconian system than ours. We are seeking to find a balance, rather than having an Executive veto, and I think that that is the right way to go.
The second issue on my “for” list was about revealing capabilities, techniques and methods. As a member of the Intelligence and Security Committee, I am in a privileged position and have had an opportunity to look at the current cases lodged for damages in civil proceedings. I have looked at the grounds from the applicants and the defence grounds from the agencies, and it is startlingly clear that, were the defence to be pursued, it would reveal techniques, methods, capabilities and networks of agents, and that it would be impossible for the security agencies to pursue their defence in those contemporary cases. Some people think that these cases are historical and that once we have dealt with the ones from Guantanamo Bay, which we have, there will not be any more coming down the track, but that is not the case. Many have happened recently, and, as the Minister without Portfolio said, this jurisdiction is now becoming an attractive place to bring a claim, because the agencies are not in a position to defend themselves.
Thirdly and fundamentally, the system of closed procedures will allow all the evidence to be put before the judge. That is the foundation here. If we have public interest immunity, we exclude information from the judge, which is the opposite of what we are trying to achieve, and I do not believe that partial justice, in which information that could go to the heart of the proceedings is excluded, is proper justice.
The final point that I weighed in the balance was about safeguarding the reputation of our agencies. My right hon. Friend the Member for Wythenshawe and Sale East made the point very powerfully that these are people who, in some cases, put their lives on the line for our safety and that of those we represent, and when they have to settle cases, as they did last week in the claim by Mr al-Saadi, people will inevitably draw inferences. They will say, “There’s no smoke without fire. There must have been something in it, if the Government are prepared to pay £2 million”, and that puts the agencies in an invidious position. Men and women of integrity and honour who dedicate their lives to the protection of this country are smeared by the implication that they have been complicit in torture or mistreatment. It might have happened in some cases, but I would rather that all the information was before the judge, because at least then the services could get a proper decision, rather than have their integrity smeared, which I think is outrageous.
My final point is about taxpayers’ money. It is not our main issue, but many millions of pounds has been paid to people, some of whom might not have had legitimate claims had we been able to get them into court. If we are giving them millions of pounds, there is the prospect of some of it being used to fund further extremist or terrorist activity. That is totally unacceptable.
There are a number of outstanding questions, and I have no doubt that the Minister will explore them in fine detail in Committee. I look forward to the prospect of discussing them with him. I want to make a couple of final points now, however. The decisions to accept discretion and to move from “must” to “may” are welcome. If this is really to be a judge-led process, that is where we need to be. I also want to make a point to the right hon. Member for Haltemprice and Howden, who is no longer in his place. He talked about the court being able to look at each piece of information; that is exactly what the court will be able to do. The judge will be able to look at each piece of evidence and ask whether it goes to the heart of the issue and whether it should be kept secret or disclosed. If there were a redacted paragraph that had no national security implications, for example, the judge would be able to determine that it could be disclosed. PII would be available, and the matter would not even be before the court, so the right hon. Gentleman’s point really did not support his argument. On the PII issue, I have misgivings about the length of time involved and the cumbersome nature of the process in every case. I want to explore the balancing judgment to get this in the right place.
This is a necessary Bill. As I have said, this is not a move that any of us relishes making. We are democrats in this country, and we believe in the rule of law, but if we are to protect our national security and get the balance right, it is essential that we support it.
It is a pleasure to follow the right hon. Member for Salford and Eccles (Hazel Blears). I am not a lawyer, a former Home Office Minister or a member of the Intelligence and Security Committee, so I will speak with humility. I would like to start by paying tribute to the members of the Joint Committee on Human Rights and the Members of the other place who have already done much to illuminate and improve the workings of the Bill.
The Bill clearly sits at the juxtaposition of justice and national security. As a result, it involves less than perfect solutions, in both directions. No one pursuing absolute principles of open justice or fairness would reach for the closed material procedure, public interest immunity certificates, confidentiality rings or in-camera hearings to try to achieve a measure of justice in the national security context. It is unarguable that extreme caution and extreme conservatism—with a small c—should be our starting point in approaching limits to those fundamentals of the rule of law of which we are so rightly proud here in the UK.
I have previously made it clear that I had significant reservations about the Bill. I accepted the principle that the closed material procedure might be appropriate in exceptional cases and as a last resort—that was also the position of David Anderson QC, who, unlike the majority of us here today, has been able to review some of the evidence that forms the Government’s case for the Bill—but I was not so happy with the details of the Bill in its original form.
I will restrict my remarks to part 2, which deals with the secret courts provisions. In particular, I found it difficult to accept the lack of discretion available to judges; the inequality of arms; the failure to ensure that CMP would be triggered as a last resort and only when strictly necessary; and the order-making power in clause 11. A Bill containing such provisions did not give the impression of limiting our traditions of open justice and fairness reluctantly, or of doing only the minimum to achieve the Government’s stated aims of preserving our vital intelligence links while enabling the Government to defend themselves against civil claims. I must be honest and say that I would have struggled to vote for such a Bill.
The Lords amendments have put a different Bill before us today, however; they have addressed every one of the points that I have just raised. They have strengthened the Government’s attempts to achieve their stated aims. I am pleased that the Government have accepted the amendment that will enable judges to exercise a measure of discretion. Replacing the word “must” with the word “may” might not seem like much to the casual observer, but to the non-state party in court, that will mark the difference between an obligation on the judiciary to grant CMP, on the one hand, and confidence in an independent decision made in the courts and not the Home Office, on the other. Our judiciary has so far shown itself to be trustworthy when it comes to protecting our national security interests, and decisions of the courts must clearly be theirs and not the Government’s, if the judiciary is to command respect here and abroad.
I was sorry to hear that the Minister without Portfolio was not convinced by arguments to allow judges to take into account whether alternative, existing procedural measures might be more appropriate in the first instance. Many of those measures provide more minimally invasive ways of excising national security material from the mass of evidence in a case and therefore keep more of the proceedings in the public eye. Put more clearly, rather than reaching for the total blackout of the CMP in the first instance, combining existing mechanisms such as PII certificates, confidentiality rings and in- camera hearings could well be more effective. That could achieve a more open justice, not compromise too greatly on fairness and still preserve the safety of intelligence for the majority of cases. It is important for us to know that that will be the default position, and that the CMP will not become the lazy or inappropriately risk-averse option rather than a necessity due to the nature of the evidence in specific cases or the desire of the applicant to rely on the sensitive information in their argument.
There will always be hard cases, such as that of al-Rawi, that prove that PII certificates might not be appropriate, perhaps due to the sheer volume of sensitive material involved, but such hard cases do not make good law and they prove nothing more than that there will be exceptional cases in which PII will not work and that this new alternative might be necessary. I think that we can trust the judiciary to work that one out. I also think that that course of action is sensible and the very least that can be done to reassure all parties to the litigation and the public that a decision to invoke CMP was strictly necessary and that all alternative solutions had been ruled out first.
I am pleased that the Government have also accepted the argument on equality of arms. It is worth remembering David Anderson QC’s evidence to the Joint Committee on Human Rights on this matter. He said:
“I am a little baffled by this. It is very much part of the Government’s justification for the Green Paper and the Bill that a closed material procedure can achieve fairness for individuals whose claims would otherwise have been struck out.”
It is illogical to exclude an application for CMP if the Government are arguing that the procedure would achieve fairness in such circumstances. I hope that the Government will continue to put forward that justification.
So far, I have made the case for the Government retaining amendments that have already been made, and I am grateful to them when they have done so. I would also like to discuss an issue that has affected many special advocates, who have made it clear that CMPs are “inherently unfair”. That is inevitable, given the circumstances, but the situation should be mitigated as much as possible. A major problem that special advocates have identified relates to their inability fully to represent clients when they are unable to disclose sufficient information to elicit effective instructions from the client. This obviously turns on how effectively and consistently the “AF No. 3 gisting obligation” is applied. Lord Carlile, in his evidence to the JCHR, explicitly acknowledged that that obligation should apply to all proceedings as a default. I am not yet convinced that the language in clause 7(l)(d), which states that the court need only “consider” providing a summary, matches that interpretation.
I hope that the Government will address that matter in Committee. Unless they demonstrate good faith in relation to open justice and state that disclosure will be the default position except in truly exceptional circumstances, it will be difficult to persuade a sceptical public that the measures proposed today are necessary and proportionate. I am afraid that I disagree with the right hon. Member for Wythenshawe and Sale East (Paul Goggins) about the removal of clause 11. His points on individual courts might be true, but an order-making power that does not define the courts involved should not be included in the Bill. It is appropriate that such extreme measures should be fully debated in the House.
Any measure that threatens the rule of law in the UK, or that sends a message that we do not uphold the highest standards of openness and fairness in our judicial system, is to be abhorred. However, when the choice is between no justice—due to national security material in evidence causing cases to collapse—and a measure of justice achieved by CMP, we have an uneasy choice to make. If we can hedge CMP around with sufficient protections for both parties—by keeping the amendments that will ensure sufficient judicial discretion and equality of arms and allow courts to ensure that CMP in civil courts is limited to truly exceptional cases as a last resort, and by ensuring that the gisting obligation is honoured—then and only then will the gains in fairness just about make up for the losses in openness. If those protections are not put in place, however, we will lose fairness and openness, and it will be extremely difficult to justify these changes.
Before I come to the merits of the Bill, I would like to draw the House’s attention to the fact that, along with Her Majesty’s Government, I have been a defendant in civil actions brought by two Libyan nationals and their families—Mr al-Saadi, who has already been mentioned, and Mr Belhaj. A settlement was made public last week in respect of Mr al-Saadi’s case without any admission of liability by any of the defendants. In the case of Mr Belhaj, proceedings are still active. In these circumstances, the House will, I am sure, understand how constrained I must be in respect of these matters at the present time. I hope to be able to say much more about these cases at an appropriate stage in the future. I should, however, make it clear that at all times, in all the positions of Secretary of State that I occupied, I was scrupulous in seeking to carry out my duties in accordance with the law.
On a lighter note, I apologise Mr Deputy Speaker, to you and to the House that I may have to leave if the winding-up speeches go past 6.15 pm, as I have to conduct an open air carol service beyond the House at 7 pm.
Let me move on to discuss the Bill. As Home Secretary and Foreign Secretary, I was responsible over a period of nine years for all three of the agencies—a distinction, I gather, I share only with the noble Lord Hurd in the other place. During those nine years, I came to have a very high regard indeed for the agencies, for their leadership and for all the staff who work for them. I also recognised that it is through improved methods and means of accountability that the quality and standing of those agencies can be improved and not undermined. I therefore greatly welcome the proposals in part 1 to strengthen the role and status of the Intelligence and Security Committee, and, indeed, to add to the powers of the Intelligence Services Commissioner.
The more controversial aspects of the Bill—on closed material proceedings—are contained in part 2. The starting-point for everyone in this House has to be that, in principle, justice must be open and has to be seen to be done. This House and our courts have rightly established a high bar for any modification of that principle. Sometimes, however, they have so modified that principle where it collides with other equally important principles. One of those concerns the safety of witnesses in criminal trials. Thus, in the Criminal Evidence (Witness Anonymity) Act 2008, following the Law Lords’ decision in the Davis case, I introduced—and both Houses quickly passed—a statutory scheme providing for witnesses who would otherwise be in grave danger, to give their evidence under the protection of anonymity. That evidence is still heard by the defendant and his counsel, as well as by the jury: it is the identity of the witness, not the evidence itself, that is kept confidential.
There is, then, the situation that this Bill seeks to address, where the clash with the principle of open justice is the greater. That is where in civil actions, not just the identity of the witness, but the evidence they give, is kept confidential from one of the parties and their counsel—typically in circumstances where the action is against the state.
My hon. Friend the Member for Aberavon (Dr Francis), who I regret is not in his place at the moment, talked about part 2 being a “radical departure” from accepted principles of the common law. The irony is that the first “radical departure” to establish closed material proceedings came as a result of the decision of the European Court of Human Rights in the Chahal case. As the Minister without Portfolio pointed out, closed material proceedings were established in response to those human rights concerns and at the behest of the same human rights lawyers who are now claiming that closed material proceedings represent some fundamental breach of human rights. If I may say so, they do not, and the Special Immigration Appeals Commission process has been found to be completely consistent with the European convention.
As we know, SIAC’s task is to determine whether a deportation order made against an individual on grounds of national security should be executed. The special advocates see all the evidence, and their duty—formally to the court and not to the client—is to have all the secret evidence tested as forensically as possible before the tribunal, but the deportee cannot know what the evidence is. As a result, there is an especial burden on the tribunal to test this evidence.
Those who are sceptical about SIAC, or any closed material proceedings, need to address themselves to SIAC’s record. I mentioned in an intervention on the Minister without Portfolio that of 37 substantive cases before SIAC since January 2007, in at least seven, SIAC has found against the Government—and the cases do not go there in the first place unless the evidence is quite strong.
SIAC could not operate without closed material proceedings at its heart. The question before the House today is whether such proceedings should be extended to civil actions. In the case of al-Rawi, the Supreme Court decided that if CMP were to be extended to civil actions, that must be a matter for Parliament rather than the courts. Its decision followed the approach of the Law Lords in R v. Davis.
I make no complaint about that. For all the talk about alleged excessive judicial activism, in both cases the Supreme Court and the Law Lords were simply saying “We cannot make the law here in order to extend the law; this is a matter for Parliament.” That seems to me entirely appropriate, and I take issue with the suggestion of my hon. Friend the Member for Aberavon that it was as big a “radical departure” as he and his Committee had claimed. The truth is that there was no necessity for any radical departure in respect of the accountability of the intelligence agencies until 15 years ago, because before then the agencies were not accountable at all. There was no way in the world in which any of these actions would have been entertained. Had they been tried, they would have been struck out by the judge because there was no evidence.
The hon. Member for Oxford West and Abingdon (Nicola Blackwood) is looking at me sceptically, but before 1989, the existence of the agencies was not even admitted publicly. The present situation is relatively new. It arises precisely because of the work done by successive Governments in the last 20 years to make the agencies accountable, and not for any other reason.
Does my right hon. Friend really think that the work of an Intelligence and Security Committee all of whose members have been appointed by the Prime Minister amounts to open and democratic parliamentary scrutiny?
That has been the charge against the ISC in the past, and I am glad that things are going to change. However, I can tell my hon. Friend that I have given evidence to the ISC on a number of occasions, and it is no patsy Committee. It is composed of senior parliamentarians from both Houses, and they do a proper and effective job. The challenge for my hon. Friend is to explain how, given the nature of its subject matter, that job could conceivably be done by means of open hearings. It is not possible. The choice is between an ISC that operates in the way that the Bill proposes, and the absence of any kind of parliamentary scrutiny. I know which I choose.
Let me now deal with the arguments that have been advanced against closed material proceedings. The most frequently used argument is that we should resort to public interest immunity certificates. I accept that, if possible, gisting should be used or the court should sit in camera, but in most cases those options are not possible. Public interest immunity certificates are used fairly often, but they work effectively only when the evidence that they seek to exclude is relatively peripheral to the proceedings. If they are used in relation to evidence that is central to the case, they make it impossible for a trial of the action to take place at all. They do not protect evidence and make it safely usable in court; they exclude it altogether.
Does the right hon. Gentleman agree that the observation by my right hon. Friend the Member for Haltemprice and Howden (Mr Davis)—I am sorry that he is no longer in the Chamber—that PII certificates have not imperilled national security was obviously correct but utterly banal? As long as we are willing to drop all these cases and pay millions of pounds, national security will not be affected, but the Exchequer will be.
Yes, and using PII certificates in respect of evidence that is central to a case is profoundly unjust to both sets of parties.
Dinah Rose is a leading critic of the proposals in the Bill. I have looked carefully at her response to the consultation document, which was published earlier this year.
“PII is not perfect—it does result in some cases being tried without all evidence being available.”
She also stated that in rare cases:
“PII may also result…in a situation in which a party is ordered to disclose a document which it is not prepared to disclose, leaving it no alternative but to settle the claim.”
She is being disingenuous, because in these national security cases we are talking about not a document—her word—but bundles of documents that are central to the adjudication of the action.
I, like the Minister, dealt with lots of PII cases and had to work through them very carefully. If there were thousands of documents, as there would be in these cases, a Minister would have to take a month or so off to operate that and, at the end, if the court accepted the PII application, there would be evidence that could not be used in the case.
Ms Rose concludes her summary by referring to the need for “potential misconduct” by the agencies to
“see the light of day”.
I absolutely agree with her sentiment. The problem is that in the absence of CMPs, there is no way of determining misconduct by members of the agencies in a civil action. The most that can happen is a settlement out of court with a payment into court but no admission of liability. That is profoundly unjust to both sides. It is unjust to the complainant, who might well have right on their side but who is denied the means to have the court find in their favour, and equally unjust to the agencies and their staff, who might also have right on their side but no means of making their defence.
In the other place, various amendments were made that were designed to strengthen the role of the courts in determining whether and, if so, how CMPs should be used. They will be examined upstairs and I look forward to the result of the Committee. I am in no doubt about the necessity of the Bill and if the sceptics want to make the agencies more accountable, they should have this Bill—
It is pleasure to follow the right hon. Member for Blackburn (Mr Straw), the former Home Secretary, and the House will give due weight to his considered contribution. This Bill is clearly important. The world outside might not have realised that it is in three parts: the third is the ancillary part and is very small, the first appears almost to have consensus on both sides of the House, and the second is clearly still controversial.
Let me first say a word about part 1. Ever since I have been in this place, I have felt that it was right that the responsibility for intelligence and security matters should transfer from the Prime Minister to Parliament. It has been a gradual, careful and considered process, but it is right that we have now done that as all three major parties made a commitment that it should happen. I pay tribute to the current Committee and its predecessors, but it is clearly right that people elected by the people should hold our security and intelligence services to account. With some small further changes that colleagues have debated, we will be on the right track and I anticipate that the newly reconstituted Committee will soon be doing a very important job. I pay tribute to all colleagues who are members of the Committee.
That leaves part 2, which is about the hugely important issue of how we deal with civil cases—I repeat, civil cases—in which there are intelligence issues that cannot easily be shared with the watching world. I say civil cases, but there is one question that was not entirely answered by my very good and noble Friend Lord Wallace of Tankerness, who spoke for the Liberal Democrats and the Government in the House of Lords, when he was asked about the application of habeas corpus, which is not necessarily a civil case in the full sense. He was not entirely clear whether closed material proceedings could apply in a habeas corpus application, and that will need to be specifically addressed as we have to know exactly where we stand as we deal with the Bill.
When the first proposals were published in the Green Paper, my Liberal Democrat colleagues and I were extremely nervous about them. We were concerned that they gave far too much power to the state and far too little power to the courts, and that they crossed the line between the open courts we have always accepted as the right principle and courts with a restricted process. The former Secretary of State for Justice and Lord Chancellor, the Minister without Portfolio, fairly said that the Government wanted to consult and they did, and they have listened to the responses to the Green Paper. There is an argument that there could have been a White Paper, but that is not a central argument for today. It is particularly helpful that not only at the beginning, but by the time the Bill came to the Lords, some changes had already been made. My right hon. Friend the Deputy Prime Minister and colleagues had argued for these changes and set out what, for us, were the bottom lines. In April that was made clear. One of them was that we should restrict the scope of the Bill to national security cases only: done. The second was that we should remove inquests: done, although I hear what the right hon. Member for Salford and Eccles (Hazel Blears) said. There is an inquest question and I do not want to be dismissive of that. The third was ensuring that closed material proceedings were triggered by an application to a judge, not by a decision by Ministers.
Those steps represented good progress. The Bill then went to the Lords, where it was the subject of long deliberation. It was also examined by the Joint Committee on Human Rights. I pay tribute to my hon. Friend the Member for Edinburgh West (Mike Crockart) who served on the Committee for almost its entire work on the Bill. I declare an interest: I joined the Committee at the very end of its proceedings on the Bill. Effectively the work had been done. There was unanimity on the Committee as to the changes that should be made.
I welcome the fact that the recommendations made by the Joint Committee have almost entirely been picked up by the House of Lords on Report and supported by a majority in the Lords—in many cases, large majorities—against the Government. They have made the Bill a better Bill, with many of the safeguards that we want. I hope the Minister without Portfolio and his colleagues in the Home Office will accept the principle of all the amendments that have come to us from the Lords. The Joint Committee wants that to happen and I would urge that, as would my party colleagues.
In between those two things we debated the Bill at our Liberal Democrat conference in Brighton, and it got a resounding thumbs-down from my colleagues as going far too far across the line to closed courts from open courts. I understand that, and I am sensitive to it as I make my remaining comments this afternoon.
With reference to our party conference, there are those who, like me, would perhaps see closed material proceedings limited to the quantum and the consideration of the quantum rather than the substantive issue. Perhaps that would be an alternative that would attract more support from the party.
That is a point of view, but I am not sure. I have not discussed it with my hon. Friend. The point of view of our colleagues was that we have to be very careful when we move away from open justice. We have to accept the evidence of those who say it is not necessary. The Joint Committee heard from the special advocates that it was not necessary. They did not support the proposal and we should give that due weight.
The central issue is what the procedure will be in order to protect the security interests on the one hand, but make sure that we deliver a fair outcome to a reasonable case on the other. The existing system, the public interest immunity system, means that Ministers declare documents secret and therefore they cannot be used. It is a very simple system, although it can be time consuming. I accept the argument that that often means that a case cannot be carried through to a conclusion, so I am not here to defend the idea that the PII system is the solution to all our difficulties.
Happily, the Bill is now drafted in such a way that consideration has to be given to that option first, and to whether, if certain documents are withheld, the trial can none the less proceed fairly. But if that is not the answer entirely, we have to consider whether there is something else. I want to flag up the changes that have been made and the ones that I think might get us nearer to what my party colleagues would like to see, as would many people who have written to us.
First, it is right that we should stick to the idea that the discretion is with the judge, not with Ministers of the state as an alternative. That is why the change referred to by the hon. Member for Oxford West and Abingdon (Nicola Blackwood), that the judge “may” do things, rather than “must” do things, is the right change—small word but big implication in the context of clause 6. We have added the requirement to look at alternatives, such as the PII alternative. We have also added the requirement—a good one—that all parties to the proceedings can apply for closed material proceedings, or that could happen at the judge’s instigation, which is a good thing. We have also dealt with the inquests issue.
However, we have not dealt with the fundamentally important issue of how a defendant can see the evidence against them, and that is what gave the Joint Committee on Human Rights its biggest difficulty. The Committee made it absolutely clear in its report’s conclusions that, because we had not had the information that justified the case and had heard from the special advocates that they were not persuaded, even though the Government’s official reviewer said he was persuaded, the Committee was not persuaded either. That is set out in paragraphs 44 to 46. There was uncertainly about how many cases we were talking about. Paragraph 42 states:
“In the light of the lack of clarity about whether the number of pending claims is 27, 15, 6 or 3, and in the light of the Independent Reviewer’s evidence we wrote to the Minister in charge of the Bill on 23 October to ask how many civil damages claims were currently pending”.
Just after the Committee wrote the report, the Advocate-General for Scotland, my noble Friend Lord Wallace of Tankerness, replied to that:
“I can confirm that as of 31 October 2012, there are 20 such live civil damages claims (including those stayed and at pre-action stage). There are also a number of other live cases, including judicial review challenges.”
He went on to elaborate the detail of that figure. I think we have to accept that that is roughly the number of cases we are talking about, but some of them are very significant cases and cannot be dismissed.
We must therefore take seriously the challenge that the Government have brought us. My honest view is that we have to allow the defence better access to the information, either through special advocates or by another means. It is on the new word that has only recently come into our language—“gisting”, which means allowing the defence to see not every iota of evidence, but the gist of it—that we need to do the most work in Committee. I think that there must be a mandatory requirement that the information be given in summary to the defence and that the defence—they can be specially cleared defendant advocates or representatives—can see the evidence, respond and take instructions on it. If we are going to say that we will allow the courts to go into closed session, it seems to me that we need the security of knowing that the defendant will have the right to know the case against them and the right to challenge. I hope that the Committee will do some detailed work on that over the coming weeks.
I agree that we need to deal with the Norwich Pharmacal situation, because at the moment we are precluded from using intelligence from abroad because of the court’s overriding power to have that put into the public domain. That has to be dealt with, because it is clearly unsatisfactory. I agree that we need to have a reporting and reviewing process and allow the media to make representations, as recommended by the Joint Committee.
I have two final points. First, we must ensure the judicial balance of national security against the public interest takes place in the second stage of the closed material proceedings process, not just at the gateway. Secondly, we have to consider whether we can just sign off this legislation forever or whether we have to come back to it in a certain number of years. This is very unusual territory for us. Civil liberties are at risk. We have made progress, but we are not there yet.
It is interesting to follow the right hon. Member for Bermondsey and Old Southwark (Simon Hughes). He said that there was a lack of evidence to support the need for change, which was reminiscent of where the proposal for 90-day pre-charge detention fell down. I believe that part 2 of the Bill threatens to undermine the principle of natural justice that demands that parties to an action should be given access to the case they confront. The Bill is deeply contentious, but some vital amendments have been made by the other place and I think that they must be upheld as a bare minimum, although I am sure that I am not alone in wishing that certain elements of the Bill should be removed entirely. On my reading, even as amended the Bill could result in members of the public losing their cases against the state without ever having been told why, in the Government’s being allowed to hide evidence of wrongdoing, and in officials being given the power to exclude the other party from court proceedings. As Reprieve points out, that effectively means that they could place themselves beyond challenge and hence above the law.
Last week, we heard about the Finucane case. We were all heartily disgusted at what went on—the collusion between the police service and the security services. God forbid, but if such a thing happened again, I believe that the Bill would make it easier for the state to prevent a family from suing in such circumstances. Have we thought about that?
Part 2 also sets out the Government’s intention to remove the courts’ power to order someone who has been involved in wrongdoing to disclose information—the Norwich Pharmacal jurisdiction, which needs to be considered in Committee.
I shall restrict my remarks to the proposed extension of closed material procedure—known as “secret courts” in outside parlance—to all civil proceedings in clauses 6 to 13. Responding to those provisions, the president of the Law Society and the chairman of the Bar wrote to the Minister without Portfolio saying:
“CMPs…undermine the principle that public justice should be dispensed in public and will weaken fair trial guarantees and the principle of equality of arms. These are both essential elements of the rule of law.”
I might also add, as others have, that they undermine the principle that justice must be seen to be done.
We have heard what the Joint Committee on Human Rights has said. It has been vocal in its criticism of the legislation and has drawn attention to the
“troubling lack of evidence of any actual cases demonstrating the problem which the”
Government “asserts to exist.” At no point have the Government produced any known case that could not be tried under the current public interest immunity system, which I have seen operate over many years as a legal practitioner myself.
The special advocates memorandum says
“CMPs are inherently unfair and contrary to the common law tradition...the Government would have to show the most compelling reasons to justify their introduction...no such reasons have been advanced; and...in our view, none exists.”
It speaks volumes that the special advocates memorandum was so scathing about what the legislation purports to do; special advocates, of course, are better qualified to comment than anyone else. Among their concerns was the fact that the Bill as originally drafted required a judge to allow the Government’s application for a CMP if there was any material at all that could damage national security, even if the judge considered that the case could be fairly tried under the existing PII. The memorandum also makes the point that the decision on whether to trigger a CMP should lie with a judge and not the Secretary of State—an amendment to that effect has been carried and is most welcome; I hope that it will remain in the Bill.
Furthermore, under clause 6 as it originally stood, only the Government would have been able to apply for a CMP and not both parties. That is objectionable. The amendment on that is also welcome and I hope that it will be retained, although I am sure that the circumstances in which a plaintiff or claimant would apply would be limited.
I wish to refer to comments made by Lord Hodgson on Report in the other place. He said:
“I would like to see enshrined in the Bill a set of steps-hurdles…that the Government of the day will have to clear before they can resort to a CMP. The first is a requirement to go through the public interest immunity procedure, from which the judge can reach a balanced conclusion on whether the interests of national security require a closed court.”
In the same debate, Lord Pannick, a pre-eminent Queen’s Counsel, is recorded as arguing that
“a judge in an individual case should have a discretion, not a duty, to order a CMP.”—[Official Report, House of Lords, 21 November 2012; Vol. 740, c. 1812-14.]
I urge the Government to take heed of those arguments and to uphold the amendments carried in the other place.
Perhaps the most disturbing provision of all is in clause 7(1)(d), which provides that, if a CMP is triggered, a court is not required to give the excluded party a summary of the closed material. Rather, the Bill as drafted requires only that the court should “consider requiring” that such a summary be given. Clause 7(1)(e) provides that the court must ensure that where a summary is given it
“does not contain material the disclosure of which would be”
“the interests of national security.”
I am listening very carefully to the right hon. Gentleman. Is not the problem with his argument on clause 7 that there will be cases, if only perhaps a very few, where gisting will not be possible without revealing the essence of what needs to be secret? Therefore, is it not essential to retain some discretion for the court to “consider”, and does that not give more power to the judges?
The hon. Gentleman has obviously thought about this, and he may well be right, but at the moment we are all looking into a rather dark room as we do not know what we are actually facing. What he says is quite logical, and I accept it, but I remain concerned.
I am tempted on the whole to agree with the thrust of the right hon. Gentleman’s argument, but I draw his attention to clause 7(3), which, if I understand it correctly, requires that the court would direct that the party would not be able to rely on such points unless they provided a summary. I am therefore not sure that his argument stands.
I believe that it does.
Will the right hon. Gentleman give way?
I would like to make some progress.
I have no time to deal with that at this stage. The hon. Member for Wycombe (Steve Baker) may be right; I do not know. I would like to discuss it with him on another occasion, perhaps in Committee.
If clause 7 goes through unamended, there will be no requirement to give excluded parties sufficient information about the case. I have heard the arguments about gisting, but surely in 99.9% of cases the gisting procedure will be the answer, coupled with other safeguards, one hopes.
Nicholas Blake QC, in giving evidence to the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights, made the following comments on the situation that would arise after a judgment is given:
“If the special advocate thinks there is an error of law in the closed judgment, he gets permission to say, to pass the message out to the other team to say ‘I think that you should be appealing, I can’t tell you why’...So there is a sort of open appeal. ‘We think there is something wrong but we don’t know what it is.’ And then the court goes into closed session, so it is antithetical to every”
“of due process and open justice.”
The Joint Committee on Human Rights has urged the Government to ensure that if CMPs are to be extended, there must be a
“statutory requirement in all cases to provide the excluded party with a gist of the closed material that is sufficient to enable him to give effective instructions to his Special Advocate.”
That is entirely reasonable, while taking on board what the hon. Member for South Swindon (Mr Buckland) says about avoiding breaches of national security, and so on. The Constitution Committee said in its report on the Bill published in June this year:
“In our view, the court should be required, for example, to consider whether the material could be disclosed to parties’ legal representatives in confidence and whether the material could be disclosed in redacted form.”
A related point that must be raised is the knock-on effect that clause 7 may have on appeals in civil cases, which is something that we really need to think through.
The Law Society has pointed out that the extension of CMPs will have wider implications for civil litigation and the professional ethics of solicitors. Solicitors will be impaired in advising their clients on the merits of a case and the prospects of success if they are unable to see the evidence brought by the other party. They will also be unable to advise on any prospect of an appeal, so undermining the client’s right to legal assistance in the determination of their civil rights and the fair trial guarantees under article 6 of the European convention on human rights.
The provisions contained in part 2 of this Bill will mark a departure—I am not saying that it will be radical, but it will be a departure—from the principles of open justice, and it will possibly undermine confidence in our justice system. I sincerely hope that this House will follow the example of the other place in seeking to amend what appears to be an unbalanced Bill. Discretion as to whether a CMP should be used must ultimately lie, of course, with a judge and not the Secretary of State. Although courts should be required to balance the interests of national security against those of fairness, either party in proceedings should be able to apply for a CMP and, perhaps most importantly of all, there should be a statutory requirement in all cases to provide the excluded party with a summary of the material to enable him or her to give cogent instructions to the special advocate representing his or her interests in court.
I am grateful that this Bill began its journey in the other place, so that people, such as myself, who are not learned could have the benefit of the thoughts of some of our most senior lawyers. I took two things in particular from their deliberations on Report: first, that many of our great legal minds support the Bill, and secondly, that they support it with their suggested amendments.
Lord Pannick has been quoted and counter-quoted, but, for the benefit for those of us who are not learned, he said that
“the proposals constitute a radical departure from the cornerstone of our legal system: the right of a party to know, and to challenge, his opponent’s case” ,
“The Government's proposals in themselves constitute a significant reputational risk to our system of justice.” —[Official Report, House of Lords, 21 November 2012; Vol. 740, c. 1817-18.]
I was particularly struck that Lord Phillips of Worth Matravers, who was the first President of the Supreme Court, supported the Bill.
When I consider the balance of liberty, justice and security, I am always inclined to go for liberty and justice, but it would be difficult for me to oppose the Bill as presented. I hope the Government will look extremely sympathetically at the amendments that have been made.
My right hon. and learned Friend the Minister without Portfolio said specifically that he did not expect any serious discussion about the principle behind the Bill. I was conscious of that when the hon. Member for Aberavon (Dr Francis) seemed to confess, if I understood him correctly, that his Committee thought it would be futile to stop the Bill, so it sought to make the best of it.
There seems to be enormous momentum behind the Bill, but no particular enthusiasm to carry it through. Why is there this sense of futility about what is a cornerstone of our judicial system? My right hon. Friend the Member for Haltemprice and Howden (Mr Davis) mentioned some of the instances that show that the state is not always to be trusted, so it is important that we ask ourselves why the particular set of circumstances under discussion should drive us forward.
There are two issues to consider. First, the highest principle of government today seems to be expediency rather than ultimate values. Secondly, security is the highest aim. We have come a very long way indeed since the time when a British Prime Minister might have said that necessity is the plea for every infringement of human liberty—I expect that colleagues will know the rest of that. Indeed, in the face of a Bill such as this and the lukewarm support it has received, those of us who think that liberty and justice are our best form of security have very little to add.
Finally—I will finish early—we should not be surprised if those outside the House who share my view that liberty and justice matter so much are extremely concerned. If we put this measure in the context of the draft Communications Data Bill, the Government’s plans to reduce access to judicial review and, indeed, measures for general anti-avoidance rules for taxation, we see that there is a significant rebalancing of power towards the state—and towards the administrative state at that. It is a disturbing path, but we seem unable to escape it. I hope that the Government will consider the amendments extremely carefully and that we will end up with a Bill in which we can take at least some pride.
It is a pleasure to follow the hon. Member for Wycombe (Steve Baker), who set out neatly and succinctly the competing principles that we are dealing with, particularly with regard to clause 2.
I speak as someone who has had the privilege of sitting on the Intelligence and Security Committee since 2005. Without trying to amplify my own influence, that nevertheless gives me a certain insight into the matters under discussion. I will say a brief word about part 1 and then rather more about part 2.
As a member of the Intelligence and Security Committee, I welcome part 1 pretty much without reservation. Two issues have still not been fully addressed, but I think they can be resolved in Committee. The first relates to the oversight of operations, particularly when they are ongoing. We have had oversight of ongoing operations on occasion, and that ability, with the co-operation of the agencies, has been quite important. That issue has not been fully resolved in the Bill. I hope that it will be resolved through further amendments or the proposed memorandum of understanding, but we are not quite there yet.
Does my right hon. Friend agree that it is very important that the Bill does not prevent the Intelligence and Security Committee from undertaking the tasks and inquiries that it currently carries out?
My right hon. Friend’s assertion is right. I do not think it is anybody’s intention that that should happen, but we have concerns that the current wording might lead to that inadvertently.
The second issue, which has been referred to by several hon. Members and initially by the Chairman of the ISC, the right hon. and learned Member for Kensington (Sir Malcolm Rifkind), relates to the resources that it will take for the Committee to do the job that is envisaged in the Bill. I do not want to labour the point, but we are being asked to do a great deal more. I think that it is right to extend what we, as the representatives of this House in such matters, can do, but it will take more resources. As others have said, the secretariat of the Committee is working exceptionally long hours, often without any additional remuneration. People cannot be expected to do that indefinitely, especially when the amount of work that they have to do is increasing. I hope that the staffing issue can be put to bed before the Bill gets much further.
In support of what the right hon. Gentleman, who is also my friend, has just said, the House should bear it in mind that it is not just a quantitative increase in resources that is required. If that increase is forthcoming, there will be a qualitative change because, as the Chairman of the ISC pointed out, the new people will act like investigators, going into the agencies and thus giving a realistic prospect of seriously close scrutiny.
The hon. Gentleman is correct and I am glad that he has added to what I have said.
I will address my remarks on part 2 to closed material proceedings. Usually, if I find myself in agreement with the Minister without Portfolio and the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) on these matters, it means that I am in the wrong and I change my position. They tend to be far more liberal than me on these matters.
Indeed. However, I am reassured by the unholy alliance that has been formed between my hon. Friend the Member for Islington North (Jeremy Corbyn) and the right hon. Member for Haltemprice and Howden (Mr Davis). That has made me feel a little more secure about the extent to which I agree with those other Members. I rather think that I have brought on an intervention with that remark.
An intervention has indeed been brought on. Will my right hon. Friend concede that during all the time we have been in Parliament, we have always disagreed on anti-terrorism laws? I continue with my position, because I believe in the power of the courts rather than in secrecy.
I am grateful to my hon. Friend. In fact, we have almost never agreed on anything, and as far as I am concerned, long may that continue.
I shall try to make it clear where I stand and what I think happened as the Bill progressed through the other place. I start with a proposition that almost everybody would agree with—perhaps everybody other than my hon. Friend. It is that the state has to be able to hold secrets. That is not a desirable state of affairs, but the reality of relationships around the world and the problems that we face even within our own country are such that the state sometimes has information that should remain uniquely its property.
If that is the case, the question arises of what should happen in court proceedings. Closed material proceedings relate to civil cases. I do not know whether anybody other than me, sad as I am, has read the history of the agencies involved, but this is not a new phenomenon. As far back as world war one, some cases simply did not go to court because the agencies concerned did not want their networks, individual agents and practices exposed in a court of law. That is not new. What is new is that we now have cases exported from abroad, as it were, and heard in our courts for civil reasons.
The right hon. Member for Haltemprice and Howden came to the debate, said a few words and went—he does not seem to have listened to anybody else’s argument, but that is a matter for him. He made two fundamental mistakes, and I will deal with them in turn. First, he gave an example of what must have been a Special Immigration Appeals Commission case in which a special advocate had been used and the case had been overturned as a result of his being privy to certain information. The right hon. Gentleman prayed that in aid as an argument against special advocates, but as far as I could tell it was an argument in exactly the opposite direction. His point was flawed in that respect.
Secondly, the right hon. Gentleman seemed to misunderstand the control principle. It means that when agencies representing two nations share information, the originator of that information has control over what happens to it when it is shared. He cited the Binyam Mohamed case and was right that some of the evidence that emerged in a British civil court had previously been heard in a court of the United States’ jurisdiction. However, that does not alter the principle. The fact that that information could have been found by other means does not mean that the originator of the intelligence does not still own it. The problem was a breach of principle rather than the actual information that came out in the British court.
I echo what several Members have already said: I and many others have reason to know that there have been cases in which lives in this country have been saved because of shared information. To be blunt, if we cannot continue to share information with our counterparts, particularly in America, but not exclusively, lives will be lost. That is the tough, blunt reality of the choice that we have to make. I have no doubt that the balance of the argument lies with a system that many people say, from pure legal principles, is imperfect, but it is the best system that anyone has been able come up with to deal with the problem. I have no difficulty in supporting part 2, and I have no difficulty in supporting Second Reading if there is a Division.
Finally, we have to make a choice on closed material proceedings—the hon. Member for New Forest East (Dr Lewis) made a point about that in an intervention. We also have to make a choice about whether it is better not to defend civil cases because we know from the arguments that PII will not resolve the issue; it just means that nothing will be heard. Do we not defend those civil actions, many of which are probably founded on dubious grounds, and carry on paying out millions of pounds in compensation, even in cases where we know that the person concerned had bad intent to this country and its citizens? I think I know what my constituents think about that issue. I know where I stand: the answer is no, we should not carry on spending that money for that purpose.
It has been an interesting debate, full of thoughtful interventions, and I have learned quite a bit.
I should like to make three initial points. First, I strongly support the work of the security services, which is essential for our safety. My concerns about the Bill need to be seen in that context. Secondly, I shall refer to the origins of the Bill, and thirdly, I shall deal with what might be at stake, even though we shall discuss it only to some extent this afternoon.
The Bill came about partly as a consequence of the recent exposure of Britain’s involvement in a programme of extraordinary rendition. Bringing all that into the public domain is a matter of deep concern to the Americans, particularly their security agencies. They are worried that our court proceedings could lead to the exposure of intelligence information handed to them by us. The Bill is a consequence, as we have just heard, of the cost and embarrassment of settling a number of civil actions brought by people who have alleged maltreatment. To deal with the first problem, the proposal is to close down the so-called Norwich Pharmacal jurisdiction and, to deal with the second problem, the Government have decided to replace public interest immunity certificates with closed material procedures in most national security cases. I shall come on to the case for those proposals in a moment.
I should like to discuss briefly what is at stake in a broader perspective. All these issues may appear to be abstruse and technical, but they are about the kind of society that we want to live in. It is worth saying a little more about the trigger for the Bill—the issue of extraordinary rendition. We now know that Britain facilitated extraordinary rendition—we do not know its extent—and the Bill may make it more difficult to find out the degree of Britain’s complicity. Senior British public officials have facilitated the kidnapping of people and their transfer to places where our Government knew they might be maltreated or tortured. Last week, Britain paid £2.2 million in compensation to someone who was apparently rendered—and tortured—along with his family, to the Gaddafi regime by British intelligence in 2004. Britain also facilitated the rendition of Binyam Mohamed to Morocco, and apparently he, too, was horrifically tortured. There are other cases, possibly many more: we do not know.
If we do not get to the bottom of our complicity in such disgusting practices, we surrender the moral high ground. We must be wary about extending secret court proceedings for the same reason. Secret courts are usually held to be the tools of dictators, not of democracies, and their prevalence is often a test of whether a society can be called “free”. I am deeply saddened that my country has become involved in kidnap and torture, and I do not want it to be accused—rightly or wrongly—of covering up such things. That, however, is exactly what Britain’s detractors abroad might claim—fairly or unfairly—about this Bill.
I appreciate the serious point about getting to the bottom of a given rendition. Does my hon. Friend agree that if we are left with only PII, pay-offs will tend to be given and we will not get to the bottom of cases? However, if a pay-off is made when closed material procedure could have been used, one can deduce that something was amiss because although the Government could have used a more specific route, they chose not to do so.
My hon. Friend makes an interesting point. The judge now has discretion on CMPs—at least, I hope that is where we will end up as a result of efforts in the other place—so we could arrive at a position where we have more justice and not less, which is the underlying principle we are discussing. With respect to Norwich Pharmacal, the case is unarguable. We would know less about rendition had the Norwich Pharmacal jurisdiction been closed down, because it was used to elicit information about the extent of Britain’s involvement.
The Government have argued that CMPs could deliver more justice because they will be able to introduce evidence that they cannot introduce at the moment for fear it will damage national security. How true is that? I do not know—very few Members present in the Chamber do. The special advocates, security-vetted lawyers who are responsible for making CMPs work, are the small group of people with access to the information required to know the answer. They have been unequivocal—the right hon. Member for Knowsley (Mr Howarth) quoted them a moment ago. They say that CMPs are not
“capable of delivering procedural fairness”
and that their introduction
“could only be justified by the most compelling reasons and, in our view, none exists.”
It is worth reading the report by the special advocates in full as it is pretty blistering.
I am grateful to the Minister, my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), for returning to the Chamber, as he also said that PII was deeply flawed. It is certainly not perfect but, again, the special advocates have expressed a view and said that
“there is as yet no example of a civil claim involving national security that has proved untriable using PII and the flexible use of ancillary procedures (such as confidentiality rings and “in private” hearings from which the public, but not the parties, are excluded).”
That statement may be accurate in so far as it goes, but one case—the Carnduff case—was stayed because it could not be properly tried, albeit that it was not directly in the national security arena. The Supreme Court has said that the principle exists, in which case there will be cases where there is no trial at all unless we use CMPs. Surely my hon. Friend will agree that it is better to go down that route than to have the possibility of no trial for very serious cases.
I agree that a CMP could be of use in some cases. My point is that the special advocates, who are well placed to judge, have looked at the proposals and said that, so far, they have seen no cases in which PII could not do the job.
A cynic would argue that the special advocates have an interest in arguing for more legal work and more CMPs, but it is significant that they have spoken in the opposite direction—against the extension of CMPs. Their lordships shared the concerns of the special advocates, and by majorities or more than 100, shredded that part of the Bill.
The Lords amendments included two crucial safeguards that I consider to be essential. The first, which we have discussed, is that they gave the judge rather than the Minister discretion on whether to hold a CMP. The original Bill clearly gave the lion’s share of that discretion to the Minister, and it is not true, as the Minister said a moment ago, that he gave up that position “months ago”. If he gave it up “months ago”, why on earth did their lordships debate replacing the word “must” with the word “may” only a fortnight ago?
The second crucial Lords amendment was a measure—clause 6(6)—to ensure that a judge should be able to exhaust PII in his search for justice before considering CMPs. Unfortunately, my right hon. and learned Friend the Minister did not say that he would accept it. On the contrary, he used a number of phrases to suggest that he would do no more than consider it, and that he had not yet finished his consideration. I regret that and the fact that we are discussing the Bill so quickly. It needs further consideration and I agree with him on that. The debate should have taken place in January. That it is being rushed through just before Christmas adds to my concerns.
A third safeguard would be valuable. A review should be held after a period to see whether CMPs have led to more rather than less justice. To ensure that the review happens properly, it should be accompanied by a sunset clause—in perhaps seven, eight or 10 years. That proposal was a recommendation of the Joint Committee on Human Rights, the Chairman of which is not in the Chamber at the moment. I would like it included in the Bill.
Having said that, my concluding thought is this: we should remain deeply sceptical of the utility of holding a hearing in which one party is shut out of the case. This is what the former Director of Public Prosecutions has to say on that—I shall quote it in full, because it is so forceful. He said:
“I have spent many years in criminal courts watching evidence that at first sight seemed persuasive, truthful and accurate disintegrating under cross-examination conducted upon the instructions of one of the parties…That is the risk that we are facing, that we are introducing into civil justice—in the most sensitive and controversial cases, where deeply serious allegations are made against the Government and the security services—a process that expels the claimant and gives him a form of justice that is not better than nothing. It is worse than nothing because it may be justice that is based on entirely misleading evidence.”.—[Official Report, House of Lords, 21 November 2012; Vol. 740, c. 1989-1900.]
I accept that, in some very restricted circumstances, one can conceive of more justice being achieved with a CMP than without one, but I am clear in my mind that that must come only after all other existing routes to try to obtain justice, including PII, have been exhausted. The Minister has not accepted clause 6(6) as amended by the other place. For that reason, above all, I cannot accept the Bill.
It is a pleasure to follow the hon. Member for Chichester (Mr Tyrie). I want to put on record my thanks to, and admiration for, him for forming the all-party group on extraordinary rendition and his work on exposing the awfulness of extraordinary rendition and how many Governments, either willingly or unwillingly, were deceived into allowing it to take place through their jurisdictions. The House owes him a debt of gratitude for that.
The hon. Gentleman is also right about the speed with which we are considering the Bill. I suspect we will return to major human rights issues in the near future. The Commission on a Bill of Rights has just published its report, which makes excellent reading. I urge all parliamentarians who see their role as protecting civil liberties in our society to read the authoritative essay in the report by Baroness Helena Kennedy and Phillipe Sands QC. They make the point of building on the past rather than destroying the march towards an open society in which we have genuinely independent judicial systems.
I want the House to consider the Bill—particularly in Committee when we come to reform it—in the context of the power of the secret state: the very large power held by the security services in our society and how, in every western state, they have grown enormously since 2001 and the declaration of the war on terror.
Guantanamo Bay is a product of that thinking. It is a most evil institution that has treated people abominably, denied them any right to justice or proper access to judicial process, and tortured them and kept them there for many years. Our country took part in the extraordinary rendition of people from Afghanistan to Guantanamo Bay. Indeed, rendition even took place through Diego Garcia, which is part of the British Indian Ocean Territory, by the use of the US base there.
Political opportunism led us from being an enemy of Colonel Gaddafi to being a friend of Colonel Gaddafi then an arms supplier to Colonel Gaddafi. We were apparently so involved in his operations that our security services were prepared to hijack one of his enemies from another jurisdiction and take him back to Libya, where he was subsequently tortured by Gaddafi’s henchmen. That information was uncovered only in the chaos and rubble of Tripoli. So far £2.2 million has been paid in compensation, which I assume avoids the embarrassment of an open court case with Sami al-Saadi. As my right hon. Friend the Member for Blackburn (Mr Straw) pointed out, the Belhaj case is still pending and cannot be discussed. There is a lesson here about our easy acceptance of the power of the secret state and the security services, which has led us to this appalling situation where that amount of money has to be paid because of clear transgressions of the rights and justice of an individual who was standing up for the society he believed in—something that we claim to want all around the world.
The Bill deals with two or three issues that I want to cover briefly in the short time available, the first of which is parliamentary oversight. When I first came into the House in 1983, there was no parliamentary oversight of security services at all. It was an article of faith in the Labour party at that time—my right hon. Friend the Member for Knowsley (Mr Howarth) and I may agree on this particular point—that there should have been some parliamentary oversight of the security services. There we have it—agreement on this occasion.
I would not want my hon. Friend to take this too far, though.
I am very cautious about claiming agreement and support at any stage, but I thank my right hon. Friend for that. I am sure that he would acknowledge that, despite the demand for parliamentary oversight and the subsequent considerable reforms of the House of Commons—achieved mainly by the former hon. Member for Cannock Chase Tony Wright—where we now have elected Select Committees and a much greater sense of openness in our business, the Intelligence and Security Committee seems to have avoided the reform process altogether. It is the only Select Committee where its members are appointed by the Prime Minister, in consultation with the Leader of the Opposition, and where the Chair is elected by the Committee rather than by a vote by party caucuses of the whole House. Its reports are published, yes, but one wonders how much is told to our colleagues on the Committee. I have no great ambitions or expectations of being appointed to it, but in an elected process all kinds of things could happen. Patronage is one of the great traditions of the British Parliament. It creates the illusion that the security services are accountable. I would have hoped that the Committee would have given the security services an extremely hard time over Sami al-Saadi, in whose case the British security services were clearly involved, over Guantanamo Bay, over Diego Garcia and over many other issues.
The second point I want to raise concerns the process that has led us to this pass of having a degree of secrecy in our courts. I opposed the establishment of the Special Immigration Appeals courts because they were anathema to everything we believe in: a special judge alone has access to the evidence; the defendant has no access to it; the defendant’s barrister has no access to evidence that he can share with his client; only the prosecutor has access to it. The whole issue is stacked against the defendant, and therein lies the potential for the most massive miscarriages of justice. Those of us who have spent much of our lives campaigning against miscarriages of justice will be well aware of past secrecy and the need for openness.
In opening, the Minister without Portfolio made much of the fact that the closed material procedure would be decided by a judge. Clause 6(2) states that
“a party to the proceedings (whether or not the Secretary of State) would be required to disclose material in the course of the proceedings to another person (whether or not another party to the proceedings)”,
“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, and”
“a fair determination of the proceedings is not possible by any other means.”
It seems to me that the Secretary of State would have considerable power in that situation.
I hope that the House understands the depth of feeling among many eminent people outside the House who have spent their lives campaigning for justice—against all the odds—and sometimes achieved it. Those who campaigned on Hillsborough eventually achieved justice, as did those who campaigned for the Birmingham Six and the Guildford Four. I do not want us to create yet another situation in which future miscarriages of justice can take place.
Like me, my hon. Friend was here when the Special Immigration Appeals Commission procedures were introduced, about which we expressed some concern. He has referred to cases about which concerns have been expressed. Would he also like to comment on clause 12 with regard to SIAC? The case of (AHK and Ors) v. Secretary of State, which concerned a refusal of British citizenships on grounds of character, summed up what can go wrong in these procedures. Justice Ouseley said that
“he has been told nothing other than that naturalisation has been refused on the grounds of character and that it would be contrary to the public interest to give reasons.”
“It is not so much that the case is untriable…it is simply that the evidence means that the Claimant cannot win.”
Having dealt with cases of constituents who have been refused naturalisation or British nationality on the basis of evidence that is unavailable, I understand exactly my hon. Friend’s point and the point made by Judge Ouseley.
In its briefing on the Bill, Reprieve told us:
“The Bill, even as amended, would still mean that…Members of the public could lose their cases against the state without ever knowing why; or knowing what evidence was used against them”,
It also states that the
“Government would be able to cover up evidence of wrongdoing”,
“Ministers and officials would be able to exclude the other side from court, effectively putting themselves beyond challenge and above the law.”
The Bill would allow Ministers to use secret courts in a wide range of cases, such as those of soldiers or their families bringing negligence claims against the Ministry of Defence over faulty equipment resulting in injury or death. Many colleagues have taken up cases of soldiers who have died in the most tragic circumstances and where, on the face of it, there is a case against the Government. It could also include victims of torture or rendition seeking redress in cases in which the Government have been involved and actions brought against the Government over corruption in arms deals, which was a point I raised with the Minister earlier.
Amnesty International has also expressed deep concern about the Bill. It is concerned that the move
“could potentially mean that individuals and their lawyers who are seeking to establish the extent of the involvement of UK officials in serious wrongdoing such as torture and enforced disappearances, will be prevented from seeing crucial documents on “national security” grounds. This secrecy could be maintained potentially indefinitely, even if there is an overwhelming public interest in disclosure.”
I appeal to the House to think carefully and seriously about what we are discussing and voting on here today.
A couple of months ago, I was in the High Court to hear the case being brought by the Mau Mau people from Kenya relating to the abominable way in which they had been tortured and ill-treated by the British armed forces in the 1950s. They finally won their case and were able to present their evidence to the court. That evidence had been hidden for 40 years. They had been denied access to it, and it was only their determination that brought it to light. It had been held using secrecy arguments, and I suspect that if legislation such as this had already been in operation, they would still not have been able to bring their case to court.
Before voting on the Bill, we must think seriously about the implications of creating an even stronger secret state and an even less accountable judicial system. We must also remember that our function as Members of Parliament is to represent people against power, so that they can get justice through an independent judicial system.
It is a real pleasure to follow the hon. Member for Islington North (Jeremy Corbyn), who speaks consistently on this and other civil rights issues, even if he does not often agree with the right hon. Member for Knowsley (Mr Howarth). I suspect that, on this occasion, he is also unlikely to agree with me.
I have to confess that I hesitated before deciding to speak in this Second Reading debate, partly because I see a Bill Committee looming and the prospect of 12 days in the spring with the hon. Member for Hammersmith (Mr Slaughter) is not particularly attractive to any of us, and partly because consensus seems to be emerging among the majority of Members that, unsatisfactory though the Bill might be, it is none the less a necessary measure.
There is little disagreement on the first part of the Bill, which will establish a regime for the oversight of the intelligence services that has long been called for. That is much to be welcomed. It is the second part of the Bill, which deals with the closed material proceedings—wrongly, in my view, called secret courts—that appears to cause controversy. I shall focus my remarks on that part of the Bill, although not at length as consensus is emerging and many of the points that I wanted to raise have already been discussed. The right hon. Member for Salford and Eccles (Hazel Blears), for example, identified many of the arguments that I would deploy in support of the Bill being given a Second Reading.
Many lawyers, myself included, regard the Bill as at best undesirable and possibly pernicious. The obvious reason for that is that the principle that has served us well for many years is that we do justice publicly. We also permit full access to the evidence for those against whom allegations are made—whether serious or not; in these cases, they usually are—and for those who make those allegations, in order that a fair adjudication can be openly and publicly be made of their complaint and of what has been said against the accused.
The Government need to persuade those who have expressed concerns that the mischief against which the Bill is said to be directed is so serious that, in the limited number of cases to which closed material proceedings would apply, we need to take a fundamentally different approach from the one that has traditionally applied to the administration of public justice. The Government have identified four problems, although they have not always been clearly articulated. It is worth identifying them, for the sake of those such as my hon. Friend the Member for Chichester (Mr Tyrie) who are troubled by the Bill, in order for me to explain why I think the Bill should be given a Second Reading.
The first is the continued necessity in the security climate in which we the United Kingdom and, indeed, the western world find ourselves to have access to very good intelligence material—material gathered not only from our sources and by our own agencies, but by the agencies and sources that are available to our allies overseas. The difficulty the Government face as regards those agencies capable of providing us with information that is essential for the defence and security of this country is that when something is secret and comes from a foreign intelligence agency and potentially a source of that intelligence agency that might be exposed or, if it is a live source, even threatened, the Government need to be able to give an absolute assurance that that material will remain closed and will remain secret. Without that assurance—this applies not only to the United States but to other intelligence agencies, too—the Government face real difficulties in ensuring that the intelligence necessary to protect all our constituents will be available in this country.
There is, of course, a related point—that the intelligence services here need to be able to recruit their own agents and need to be able to assure those agents from the very first that their identity and anything connected to anything that might reveal their identity will remain secret. That is the first issue that calls to be dealt with, and it supports the Government’s position on part 2.
The second problem, as I see it, is that undoubtedly in the past the Government—perhaps not only this Government but the preceding one—have been obliged to settle cases where they had legitimate defences to the accusations that were made against them, but in respect of which they felt, for the reasons I have already given, that those defences could not properly be advanced, usually for the simple reason that it would expose intelligence sources and, potentially, the way in which intelligence is gathered.
Those settlements are wrong for two reasons. First, there is never any adjudication whatever of the underlying merits of the case, and from the perspective of justice as a whole—and, I might add, from the perspective of claimants as well as that of the Government—that is totally unsatisfactory. Secondly, because the Government have been obliged to settle these cases—a point touched on by the right hon. Member for Salford and Eccles—large sums of taxpayers’ money have had to be paid out. In many cases, they might have been lost by the Government and perhaps the damages were justified, but we do not know where the money has gone in other cases and we do not know, for example, that it has not gone to fund activities that are, putting them at their very lowest, detrimental to the interests of this country. That is the second reason why the Bill, and particularly part 2, is deserving of a Second Reading.
There is a related third point—the reputational risk to this country. These cases are settled, albeit with no admission of liability, in circumstances where, as was said earlier, much of the world will say that there is no smoke without fire. People might say that the British Government would not settle these cases unless there was some truth in the allegations, which does this country enormous damage overseas. It also runs the risk—I say this particularly to my hon. Friend the Member for Chichester—of encouraging those who would see this country damaged by radicalising young Muslim men overseas who will believe that this country has no respect for the rights it is trying to push on the Islamic world.
Does my hon. and learned Friend not also accept that the extension of what would be portrayed as secret courts—CMPs—could also damage Britain’s reputation abroad?
I accept my hon. Friend’s point, but for my own part I do not think the risk is nearly as great, and I would go further than that. If we carry on calling CMPs “secret courts”, there might be that risk, but we are not talking about secret courts. We are talking about courts in which defendants and claimants are properly represented, where there is access to the information necessary to ensure as fair a resolution of the issues between the parties as possible and, indeed, where the proceedings are overseen by a judge. I shall come back to this in a moment, but the alternative in many of these cases is, as I said in an intervention on my hon. Friend, that there is no justice at all—either because they are struck out or because the Government have to settle them. That is totally unsatisfactory—much more so than the Government’s proposals in the Bill. I think it was the Independent Reviewer of Terrorism Legislation who said that we were in the world of second-best solutions, and indeed we are. No one wishes to see this legislation. I myself have described it as at best undesirable, and possibly pernicious. However, we are where we are. We face the threats that we face, and we have to deal with them.
My fourth reason for thinking that the Bill deserves a Second Reading is that, at present, justice is not done at all in many cases of this kind. As I said earlier, the Government, because they cannot disclose information, are obliged to settle some cases when a perfectly good defence is available to the security services. There are, potentially, other cases—and at least one, which I mentioned earlier, may have already arisen—in which a claimant has a legitimate cause of action which may or may not be capable of being sustained at trial, but owing to the success of a public interest immunity application, information that would otherwise have enabled the issues between the parties to be properly resolved is not available.
In a third group of cases, such as the Carnduff case, there is the possibility of a stay if the public interest immunity application fails, and those are the cases that trouble me particularly. Claimants are essentially being told, “You may have a perfectly good cause of action, but the public interest of protecting national security outweighs the public interest of doing justice in your case.” That seems to me much more undesirable than saying to a claimant, “You may press ahead, but part of the proceedings will take place in a forum that is no longer open to the public.”
The Bill may indeed be a second-best or an undesirable solution, and part 2, at least, may even constitute a pernicious piece of legislation. However, for the four reasons that I have given, I approve of the principle behind it. I believe that that principle has been generally accepted throughout this House, and was finally accepted by their lordships, subject to the amendments that they made. It is a principle from which I do not believe parliamentarians can legitimately distance themselves. It is the principle that we need to be here to protect our constituents, and it is the principle that no matter how unsatisfactory the Bill is, it is the right Bill, and, regrettably, a necessary measure.
Other Members have observed that there seems to be consensus on part 1 of the Bill, but I may be more of a doubting Thomas in that respect. I am not sure that part 1 will do all that it promises to do for the Intelligence and Security Committee, the House or the Bill itself.
I do not, of course, speak with experience of membership of the ISC, although I was offered membership a number of years ago, in bizarre circumstances. In fact, at one point my party was offered two seats on it, which seems bizarre even now. At that time we were negotiating the St Andrews agreement, and Tony Blair got it into his head that I might be prepared to accept annex E—which re-routed some of the Patten provisions relating to intelligence and national security—if I was offered a place on the ISC.
Hours later, I was advised that two places were on offer. I had said that it would be very difficult for a member of my party to sit on the Committee, supposedly to offer scrutiny and challenge, while being unable to tell anyone that he or she had done so or to say anything about it. The consolation was that we would have two members there, each of whom would vouch for the other in our secrecy. It was a bit like King Louie in “The Jungle Book”: “Have a banana; have two bananas.”
Members have said that the Bill is a significant advance on existing law, but I am not sure whether it is adequate or truly accountable. Part 2, obviously, has raised the more substantial issues and differences. I am at a bit of a loss, because I hear differing and confusing arguments. I hear those who commend part 2 saying that closed material procedures are not a particularly big departure because they are already used in cases of various types, and that the Bill merely codifies them in a particular area. I also hear the argument that PII is no good, that it cannot be used, that it stops cases being defended and that by its very nature it means that evidence cannot be brought. The reality is that PII can be dealt with on an evidence-by-evidence basis, and does not have to be done entirely wholesale. We have seen where it has worked in the past when the courts have granted immunity in relation to certain material, evidence and witnesses. They have protected their anonymity and secrecy and have protected material from being disclosed altogether. In other cases, they have protected material by due and measured redaction. The idea that PII is basically just a one-size-fits-all option is nonsense, as it can be used in a measured way.
I feel almost as though I am involved in some sort of closed material proceedings, because everyone else seems to be aware of why certain cases were settled as quickly as they were. I do not know why the al-Rawi case was settled in the way that it was. It had not even gone to the Supreme Court once appeal was allowed, yet settlement took place. Was it so compelling that the state had no other choice? Was there no way of having more measured terms? I do not know, but other people seem to. They seem to have been briefed and perhaps they are privy to such things, but I certainly am not and as a legislator I am not prepared to pass serious, significant legislation on spec based on somebody else’s hunch that the state would not have settled if it did not really have to.
I come from a part of the world where the state has done many things and failed to do many things. People attributed all sorts of reasons and pure motives to it, saying, “They wouldn’t have done that if they didn’t have to.” We know from last week’s revelations that that logic absolutely stinks. One of the worst things was that all down the years, when such things were happening, they were not sufficiently challenged by enough people in this Chamber and in other places.
When we receive such legislation, we must question it and ask what the compelling reason for it is. We must also look to those who know something about such things. Lord Justice Kerr has been widely quoted today on the subject of closed material proceedings, but he was not the only one to make significant statements in the al-Rawi judgment. Lord Dyson, giving the lead judgment, said that the introduction of closed proceedings in ordinary civil claims would involve
“an inroad into a fundamental common law right.”
He went on to say:
“The PII process is not perfect, but it works well enough. In some cases, it is cumbersome and costly to operate, but a closed material procedure would be no less so.”
Other hon. Members have quoted Lord Kerr’s concluding judgment. An additional point he made was:
“This would not be a development of the common law”
as the Government
“would have it. It would be, at a stroke, the deliberate forfeiture of a fundamental right which…has been established for more than three centuries.”
In those circumstances, I do not think that we should lightly pass the Bill on the basis that the other place has made a few amendments that make it good enough.
The point has been made throughout the debate—I have not heard it all as I have been in a Westminster Hall debate—that in a piece of legislation that is actually flawed, we must ask whether the balance of interest lies in protecting the state or the individual. Clearly, the Bill protects the state rather than the individual.
That is exactly the nature of the Bill. It is a measure to ensure that the state will be protected in various litigations and that it will have an absolutely unequal power to use a procedure that will frustrate a case against it using a special secret procedure.
We are told—I have listened to other hon. Members say it—that the amendment to clause 6 in the other place that changed “must” to “may” now means that the proceedings are entirely a matter of judicial discretion and that we should therefore trust the courts. Of course, however, that is only in relation to clause 6. Once the national security case has been engaged by a judge under clause 6, clause 7 means that what happens is entirely in the hands of the state. That joker is played by the state and cannot be predicted. PII means that a judge can be selective and can scrutinise what evidence might compromise national security and what should or should not be admitted in balancing the interests of hearing the case and protecting national security, but that will no longer be the case. We are being sold a false argument about just how big a difference there is because of the change from “must” to “may”.
As well as listening to learned judges who have considered the matter, we should look to those who also have experience of closed material proceedings and such legislation—the special advocates. The Minister without Portfolio told us, in effect, that special advocates underestimate their own power—they do rather well under such provisions and have quite a good score rate. Let us listen to what the special advocates and other observers say. The late Lord Chief Justice, Lord Bingham, described the role of a special advocate as akin to
“taking blind shots at a hidden target”.
Special advocates themselves have described it as “shadow boxing” in circumstances where
“you are speaking into a black hole because you have no idea if your strategy and points are on the money or wide of the mark”.
So special advocates are frustrated by their own professional standards. They must be particularly frustrated in relation to the interests and rights of their clients.
Remember, that is what we are talking about—people who have reason, good or ill, for taking a case against the state. If, in doing so, they are speaking of actions that have fundamentally affected their human rights, that have done damage or harm to them which in other circumstances and at the hands of someone else would be deemed to be illegal, that is serious. We should not treat the issue as a matter of administrative convenience. The argument should not be that it takes Ministers too long to decide whether they want to look for public interest immunity certificates in respect of all the different pieces of information, that it could take them a whole day to do so, and that we have to come up with something quicker, so we go for closed material proceedings. That is not the way in which we should legislate for justice to be done.
Others have quoted the Government’s independent reviewer of terrorism legislation, David Anderson. On one occasion he attended a session with representatives of the Government and of all three intelligence services and counsel. He was talked through seven significant cases and left with a bundle of top-secret material in each case, including evidence and internal and external advice, which he had taken the opportunity to read. Three of those seven cases were civil damages cases. His conclusion was that
“there is a small but indeterminate category of national security-related claims . . . for civil damages, in respect of which it is preferable that the option of a CMP . . . should exist”—
only preferable that the option of a CMP should exist, but the Bill goes down an almost compulsive route in relation to that and legislates too far.
There is the irony that the very procedure that the independent reviewer engaged in was a closed material procedure. He looked at files that were presented by Government. He listened to the representatives of the intelligence agencies and their legal advisers, and he formed an assessment with no other view being given from special advocates or anybody else, yet it is his advice and his conclusions that we are told we should listen to.
One of the least attractive things I have seen in 20-odd years practising at the Bar is lawyers trying to persuade a judge that he should deal with evidence in private because the evidence had the potential to embarrass the then Government. It did have that potential. Employees of the Ministry of Defence on oath were giving evidence that six months before the invasion of Iraq, they had been told not just that it was going to happen, but the day on which it would take place, and that the British Army had been told that it could not commence its training because it would give away the fact that a decision had been made. A properly robust judge sent them away and told them in no uncertain terms that the functions of the court do not include preserving the modesty of the Government.
So I come to the proposals, proposals that for years and years no one in the world of civil litigation ever dreamt or thought were necessary. Suddenly we encounter a different sort of civil litigation in which the body most concerned is the state. Allegations are made that the state has been complicit in kidnap and torture—we call it rendition, but rendition simply means kidnap and torture—and that drone strikes have killed innocent families, and suddenly the civil rules that have been good enough for as long as anyone can remember are no longer good enough and there needs to be secrecy. It is, at best, an unfortunate coincidence that the need for secrecy coincides with litigation in which the state finds itself at the very heart.
The effect of the proposals could be that a claimant who brings a case is suddenly and quite literally ushered out of court and told to take their lawyers with them. They will then have to sit and wait until they are invited to go back in, at which point they might be told, “Sorry, but you’ve lost.” The reason is that these proposals are not the same as PII, although there has been much talk of PII, and they are not simply a replacement for it.
The way litigation works means that parties to it must consider whether they possess material that might assist the other side. If they have such material but want to keep that secret, they can make a PII application. If they win they are allowed to keep that secret, and if they lose they have two options: they can hand the material over or they can settle the case. That is what PII is all about, but that is not what this proposal is about. This is about being able to use material aggressively against a case. It is about the state having material that it can use to defeat a claim and wanting to use it in secret.
At the moment, if the state wants to use that material it must do so in open court, but it is about the decision on how to fight the case; it is not about public interest immunity. That is why the Bill clearly goes through the PII phase before getting to the point where closed hearings are contemplated. For example, if I know something that might assist you when you sue me, Mr Deputy Speaker, I must either tell you or claim PII, but this proposal is about me wanting to use something against you to defeat your claim and you will never know what it is. You will not have the chance to question it, to say that it is not accurate or to say that it has been fabricated. You will know nothing about it. You will simply be told, “I’m sorry, but you’ve lost your case.”
When such a proposal is introduced on the back of litigation aimed at the state, making allegations of the worst sort of behaviour on the part of the state—I have referred already to kidnap, torture and killing—people are bound to be suspicious. Either it is just a coincidence, or someone somewhere wants to take on these claimants using information that no one will ever be able properly to test.
The House sat very quietly last week to listen to the Prime Minister deal with the report prepared in respect of Mr Finucane. He ended his observations by saying this:
“One thing this Government can do to help is to face up honestly when things have gone wrong in the past. If we as a country want to uphold democracy and the rule of law, we must be prepared to be judged by the highest standards.”—[Official Report, 12 December 2012; Vol. 555, c. 299.]
These proposals are not a very good start.
It is a pleasure to follow my hon. Friend, and professional colleague, the Member for Dewsbury (Simon Reevell). I accept with alacrity what he says on the differing functions of PII and closed material proceedings, but information will be dealt with in closed material proceedings that could equally support the claimant’s case, just as there will be information that might undermine it. That is why it is important to support the amendment made in the other place to allow not just the defendant, such as the Government, but other parties, including the claimant, to make an application for the use of closed material proceedings.
Like my hon. Friend, I have spent many years in the criminal courts. I have, I suppose, been dealing with human rights; that was my stock in trade as a barrister prior to my election to this place. We did not really use the words “human rights”; every day we did a job of dealing with the liberty of the individual and the power of the state when it came to imprisoning and dealing with individuals who may have committed criminal offences. It was my life, my bread and butter, and my stock in trade.
It is difficult for me to accept any departure from the principles of open justice. I never liked being confronted with public interest immunity applications, whether I made them on behalf of the Crown or in relation to third party disclosure, or whether I found out about them later because I was not party to the application. These principles do not sit well with me. However, I learned a long time ago that politics has to start from the world as we find it, not necessarily the world as we would like it to be. No matter how idealistic I may be and how important certain principles are to me and many other Members, the realities of international politics and security will often conflict with some of the principles that I hold so dear.
The scenario that the Bill seeks to deal with represents one such conflict. In an ever-changing world, one certainty endures. We have more and more information sharing and the world is ever more interconnected, so greater and greater challenges to our national security are posed every day. We also live in an age when decisions of the state itself are rightly called into question. As a result of those proper questions being asked, we are seeing a rise in civil litigation mounted against the state by individuals who claim grievance.
All those factors mean that a challenge has arisen. Given the information provided by the Government and my understanding of the situation, the problem is not going away any time soon—in fact, it is going to get worse. The Government cannot hide behind inactivity when looking at that challenge; only last week, we saw a further settlement of a civil claim, in this case by the Libyan dissident Mr al-Saadi. That is but the latest manifestation of an issue that is causing real concern not only to the Government and security services but to those who risk their lives for this country and to the public at large who are rightly worried that millions of pounds of their money—our money—is paid over for reasons to which they and we will never be privy in any real sense.
Does my hon. Friend accept that a good way to avoid having to make payouts to Libyan dissidents would be not to be involved in kidnapping them and shipping them and their families back to Libya to be tortured?
We do not know that, and that is the problem with the current system. I would accept my hon. Friend’s argument if we had a system in which such issues could be properly tried, or at least tried in some second-best scenario; I accept that closed material proceedings are very much a second best to the principles of open justice in which my hon. Friend and I believe. However, we will never know—we will never be privy to whether the British state infringed principles of justice and international convention when it came to unlawful rendition.
I reassure my hon. Friend that once the current police inquiries are complete, the intention of the Intelligence and Security Committee is to continue our investigation, which we had already started, of the allegations about United Kingdom complicity in Libyan rendition and to publish our conclusions to the extent that we can.
I am grateful to my right hon. and learned Friend, and commend him and his Committee for their work in that area. It is something that I would like to know more about, as would many people in this House and outside. Sadly, the Gibson inquiry had to be terminated, or postponed, because of ongoing criminal proceedings. I very much believe that wrongdoing should be exposed, but, as has been pointed out, in the case of this civil proceeding we do not, and will not, know the precise merits or otherwise of the claim that was made against the British Government.
Much has been made of the views of Mr David Anderson QC, the Government’s independent reviewer on terrorism. I will spare his blushes. It is absolutely right to say that he, like me, is very much a reluctant convert to the limited use of closed material proceedings in certain cases where national security is very much at the heart of the claim. He makes the very important point that in referrals made by Her Majesty’s Government, we must put our trust in our judiciary to come to fair and balanced decisions on the material before them and to apply fairness not only to the Government but to claimants, because these questions apply equally to both parties in any such case.
Their lordships’ amendment to clause 6 opens up the limited discretion in the clause as originally drafted. I welcome that. It is wrong to say that there was no discretion before, but it was limited. They have expanded that discretion by the use of the word “may”. It is a much wider discretion than many of us in criminal practice have got used to. For example, in the sort of discretion that sentencing judges have in dealing with mandatory minimum terms of imprisonment, the word used is very bald. “May” cannot put it any more simply. The amendment is very significant, and the fact that the Government have rightly accepted it eases many of the concerns that I and others had about the extent of the power of Ministers, in effect, to limit the court’s ability to disagree with a reference from Ministers.
That is the trigger, but it does not end there. The hon. Member for Foyle (Mark Durkan) said that a blanket then comes down on the use of closed material proceedings. I have great respect for him, but I do not think he is right. It is not a question of a blanket coming down, because the judge has a duty to look at each individual piece of evidence to determine whether it should be the subject of open proceedings or closed material proceedings. The judge will retain that important check and balance in looking at the evidence.
We need to put firmly to bed the notion that closed material proceedings are a silver bullet that will allow the Government always to be able to win—to successfully defend—these cases, because they most certainly are not. The recent decision by SIAC which had the effect of allowing the release of Abu Qatada is a notable example of that. CMPs were used in that case. The result was perhaps not popular in many quarters, but it is an example of the court being able to cope with the second-best solution and to reach an outcome that was, on a neutral interpretation, a fair one. CMPs can be a way for claimants to ensure that all the issues they want to see raised are properly considered by the court as part of the case.
Public interest immunity has been prayed in aid as a substitute for the process, but it is not; its function is different. PII relates to the extent and quality of disclosure, which occurs at a different stage from the fact-finding process itself. Material that is successfully subject to a PII certificate remains undisclosed to the party seeking it. There is no gisting or anything else. Redaction of documents may well happen, but that still means that the material sought by the party who wishes to see it remains undisclosed. PII has a practical effect, whether it is on the continuation of a prosecution in a criminal context or, as in this context, the continuation of a defence in a civil case. The choice for those at the receiving end is either to disclose the material or to stop the case. That means, as we have already discussed, that cases in which genuine allegations of wrongdoing are made will never properly be dealt with by the court. It is the justice gap that has been spoken about not just in this place but by eminent Members of the other place, most notably Lord Woolf, Lord Mackay and Lady Manningham-Buller, who all support the use of closed material proceedings in restricted circumstances.
As other Members have said, there is nothing groundbreaking about the use of closed material proceedings in English law. They have been used for some years, in both SIAC and the regime of terrorism prevention and investigation measures, and in a way, as I have said, that cannot be regarded as resulting in manifest unfairness or injustice.
I would welcome clear and continued assurances from Ministers that, if future consideration is ever given to further extending the use of closed material procedures to other areas of law, it is this House that will deal with the issue and that there will be strong grounds to justify any further extension before we allow it to happen.
We live in an imperfect world. It is a troubled world where sometimes grim reality invades noble principle. This Bill is an exemplar of that, which is why I support its Second Reading.
I am very pleased, as a former member of the Joint Committee on Human Rights, to have the opportunity to speak in this debate. Importantly, I was a member when its report on the Bill was written and published. We spent a large amount of time examining the Bill, which was a difficult thing to do as a non-lawyer, but it has been a worthwhile, though arduous, journey from the first time I asked what Norwich Pharmacal actually meant.
When the original justice and security Green Paper was introduced in October 2011, there was understandable and justifiable concern about the proposals. In their original form, it was clear that they were very broad in scope, and some in the Government talked up the need for the powers through rather apocalyptic speeches about the danger to national security—a danger that, once examined, clearly did not exist. There was, as has been said, a perception of a danger to national security—there is one that needs to be dealt with in relation to Norwich Pharmacal—but an actual danger did not exist.
Since then, it is welcome that the Minister without Portfolio has issued many reassurances about the intended narrowness of the Green Paper’s application. It is unfortunate that, whether as a result of lax drafting or conflicting views within the Department, the circumstances allowed confusion to develop about what the Government’s intentions were for closed material procedures.
It is clear that there is a theoretical need for change. One can imagine a situation—many such situations have been mentioned today—in which a fair trial of a civil claim cannot proceed because of the amount of material that cannot be disclosed on the grounds of public interest immunity. It has, however, been exceptionally difficult, even with access to many interested and experienced witnesses, to establish the likelihood of such a theoretical possibility actually materialising. The Bill is undoubtedly an extremely complex and difficult balancing act, but the judgment that must be made requires us to understand whether a problem exists and, if so, its scale, and whether this response is proportionate to the problem.
The Joint Committee was clear in its view that the proposed balance was not correct and, therefore, suggested amendments, which were tabled in the other place. I pay tribute to the excellent staff of the JCHR, who helped us to marshal the evidence and formulate the amendments to improve the Bill. In spite of those significant changes, the Bill’s proposals, particularly those in part 2 relating to closed material procedures, still constitute a radical departure from the UK’s constitutional tradition, which is one of open justice and fairness.
The JCHR report questioned whether the Government had
“persuasively demonstrated, by reference to sufficiently compelling evidence, the necessity for such a serious departure”
from those fundamental principles. Our conclusion was that the Government had
“failed to discharge that burden of justification”.
The Joint Committee suggested amendments to make the Bill compatible with the bedrocks of justice, openness and fairness, while recognising the national security concerns put forward by the Government. Our aim was to achieve a fair—or at least a fairer—balance. The Bill considered by the JCHR did not achieve the right balance. The Bill before us today is much closer to sitting within the parameters of natural justice and fairness protected by the common law, because of the excellent work in the other place. The amendments recommended by the JCHR and adopted to date are, as my noble Friend Lord Lester of Herne Hill said,
“designed to keep faith with the fundamental principles of justice and fairness in our common law system, within the rule of law, and national security protected by the independent judiciary.”—[Official Report, House of Lords, 21 November 2012; Vol. 740, c. 1822.]
I do not intend to go through the entire list of amendments suggested by the JCHR, but I will mention the most substantive amendments that have led to successful changes. First, a judge will decide whether a closed material procedure should be used in any given case and the decision will not be taken in form or substance by the Secretary of State. Secondly, a CMP will be available only as a procedure of last resort if fairness cannot be achieved by other means. That allows judicial discretion first to consider alternative methods, such as the public interest immunity system and requiring the court to consider whether a claim for PII could have been made. Thirdly, the court will be required to balance the interests of national security against the interests of fairness and open justice in deciding whether to agree to the use of a CMP at the outset. Finally, it will be open to either party to apply for a CMP and the court will also have the jurisdiction to consider the request on its own motion.
If the Bill had come to this House without some of those measures, the case for throwing out part 2 would be significantly stronger. CMPs are not perfect justice, but they may have a place. David Anderson, the independent reviewer of terrorism legislation who has been quoted extensively today, has said that there is
“a small but indeterminate category of national security-related claims, both for judicial review of executive decisions and for civil damages, in respect of which it is preferable that the option of a CMP—for all its inadequacies—should exist.”
A number of the JCHR’s recommendations have not been adopted at present. The first is the introduction of a sunset clause. The second is the compulsory reporting on and review of the use of CMPs by the independent reviewer of terrorism legislation. The third is an undertaking that any litigant who is excluded from the open hearing by the CMP will be given, at the very least, a summary and the gist of the closed material sufficient to enable them to give instructions to their legal representative and the special advocates, so far as is possible. The absence from the Bill of such a disclosure obligation seriously limits the opportunities for special advocates to mitigate the unfairness caused by the Bill’s departure from open and, more importantly, adversarial justice. I hope that those issues will be given further consideration by Members of this House in Committee. I am fairly confident that that will happen.
Had it not been possible to write effective safeguards into part 2, I would share the concerns that are still being raised by many organisations such as the Bar Council, the Law Society of England and Wales, Liberty and Justice. Their concerns demonstrate that there is still significant review work to be done by a Committee of this House. In as reasonable a way as I can, I caution the Government against any attempt to remove the improving amendments that have been made in the other place.
I support the Bill’s passage into Committee, but with the words of Judge Learned Hand in mind:
“Justice is the tolerable accommodation of the conflicting interests of society, and I don’t believe there is any royal road to attain such accommodation concretely.”
The administration of justice is undoubtedly a balance, but it is the most important balancing act that the state carries out. We should proceed carefully in changing that balance.
It is a pleasure to follow the hon. Member for Edinburgh West (Mike Crockart). I seem to remember studying some of the judgments of Justice Learned Hand myself when I was doing my jurisprudence course at the London School of Economics. I knew they would come in handy one day.
I was much impressed with the speech of my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips), and I agreed with him entirely. He put it more elegantly than I could—that is why he is a Queen’s counsel and I am not. I also rather agreed with my hon. Friend the Member for South Swindon (Mr Buckland).
I want to concentrate on part 2 of the Bill, because it relates to the area in which I have been interested as a lawyer. It seems to me that we should not allow the best to become the enemy of the good. The best, of course, is open hearings in court with the normal, full process. However, in a limited number of cases there are particular circumstances, which my hon. Friend the Member for South Swindon rehearsed well, in which it is necessary to have a different procedure.
With respect to my hon. Friend the Member for Dewsbury (Simon Reevell), who is not in his place at the moment, I do not accept the proposition that the Bill will be used to prevent people from bringing claims. Nothing that is currently available in open court will become secret as a consequence of it.
Let me give the hon. Gentleman an example of how the argument about security is used—the Shrewsbury 24, the pickets who were imprisoned 40 years ago. When they sought the information upon which they were arrested and prosecuted by the Government, the letter sent back from the Secretary of State for Justice told them that a “security blanket” had been wrapped around that information, so the records would not be published on the grounds of national security. Is that the sort of issue that the Bill should cover?
With respect, it seems to me that at the moment public interest immunity would be invoked in such a case, possibly by an ex parte application, without any notice to the claimant. I fail to see how that would assist people in such a situation. It is better at least to have the opportunity for any relevant and admissible material to be considered, albeit through the less than perfect closed material process.
In my 25 years at the Bar, I predominantly practised in the criminal jurisdiction, and it is right that the Government are not seeking to apply the closed material procedure to that jurisdiction. When I started, public interest immunity criminal cases were a little-developed area, and the jurisprudence grew as time went on to reflect, as other Members have said, the changing demands placed upon the courts system and the nature of how intelligence operations were conducted. The jurisprudence moved flexibly to reflect that, and the same is occurring in the Bill.
I know two things from my experience of the use of PII in criminal cases. First, the judges took extremely seriously their responsibilities in relation to PII applications, including their duty to review the material and their initial rulings. I have no reason whatever to doubt that the same judicial meticulousness will be applied to the closed material procedure in civil cases. It is right that there should be safeguards, which I think are broadly accepted and will be taken forward. I, too, am pleased that the discretion allowed for in clause 6 is widened by the use of the word “may”. I agree with my hon. Friend the Member for South Swindon that that is adequate, and I urge my hon. Friend the Minister to resist the temptation to refine the definition further by including certain factors in the Bill. The risk of that would be that jurisprudence would grow up around the definition of those factors, and case law would eventually erode the jurisdiction and make it worse than simply using the word “may”.
The second point that strikes me from my experience at the Bar is that, as has been observed, it is not always the individual who is the loser as the result of a PII application. I believe the same will apply to the closed material procedure. I remember, in a criminal case, invoking not PII but the court’s inherent jurisdiction to sit in camera. Part of the mitigation that I needed to advance on my client’s behalf related to his activities in relation to reputable freedom movements in the Soviet bloc. I could not advance that mitigation in open court, because the consul of the Communist-controlled country was represented in court and was sitting in the gallery, and there would have been serious consequences for my client and his family. Mr Justice Steyn—later Lord Steyn; a very eminent judge—acceded to the application, and important material in my client’s favour was put before the court. Again, the point is that the material could be ventilated, and it is better in a civil case that that is done through the closed material procedure than were it not ventilated at all. That is why we should not allow the best—an open procedure—to become the enemy of the good, or CMP, which is an improvement in civil cases on existing PII arrangements.
There is general consensus about the importance of removing the Norwich Pharmacal jurisdiction from such cases. We have to be realistic and concede that although many meritorious claims are brought against Government and Government agencies, many unmeritorious claims are brought in the courts. There is, as the right hon. Member for Salford and Eccles (Hazel Blears) suggested, a growing tendency for jurisdiction shopping in relation to the Norwich Pharmacal jurisdiction, which has moved away from its original purpose in intellectual property cases to cases of this kind. It is not right that we should allow that to be abused in these cases.
Similarly, it is not right that the British taxpayer should pay millions of pounds when it is not possible to resist a claim in cases where, if the material were considered by the judge under the closed material procedure, it might be discredited. In the criminal jurisdiction, the choice facing the prosecutor is either to disclose material if ordered to do so or not to continue with the case. We have a tradition in this country of respecting assurances that have to be given in the interests of furthering justice. We have discussed that in relation to the assurances that we give the security services of our allies abroad.
We already do so in a different way in criminal cases in relation to informers, and have done so on more than one occasion. It is distasteful but necessary that we sometimes employ informers so that wrongdoers can be brought to book, and it is important that they are given assurances by the police that their anonymity will be protected. In certain circumstances, rather than disclose someone’s identity, I and other prosecuting barristers would offer no evidence so as not to put the informer’s identity at risk. Otherwise not only are they at risk, and not only is an undertaking breached, but there is a risk that other people will be less willing to come forward and provide information that might be helpful. The same applies even more strongly to assurances given in relation to our national security. I do not think that we should worry about that, subject to the proper safeguards.
In conclusion, it is important to stress again that we are not discussing secret courts. Yes, it is a less than satisfactory process, but ultimately it is one part of the process: the rest is an open process, and the hearing of the claim, as my hon. Friend the Member for South Swindon set out, remains in the public domain. A number of hon. Members have cited Lord Kerr and the al-Rawi case, but to balance Lord Kerr’s judgment it is worth quoting the judgment of Lord Clarke, who took a different view:
“A closed procedure might also be necessary in a case in which…the non-state party…wishes to rely upon the material which would otherwise be subject to PII in order to defend itself in some way against the state. In such a case either party might seek an order for such a procedure based on necessity, namely that such a procedure would be necessary in order to permit a fair trial.”
That is a balanced statement on what is proposed in the Bill. I agree with Lord Clarke, and it seems to me that Mr Justice Ouseley, in the AHK case, made a similar proposition.
When he responds to the debate, I hope the Minister will take on board some of the legitimate concerns that have been raised. I shall support the Bill on Second Reading and we can examine the detail in Committee. We should not, however, allow ourselves to retreat from a necessary—albeit not always desirable—step in this class of case, and allow the best to become the enemy of the good. I therefore hope that the Bill will commend itself to the House.
It is a pleasure to follow the hon. Member for Bromley and Chislehurst (Robert Neill).
This debate has been about balance, and when the Minister responds I hope he will acknowledge the sense across the House that the Government are not yet in quite the right place regarding the balance between national security and the hard-won liberties of the individual. I hope that the Government will be open in Committee to amendments that make that balance more durable.
Justice systems across the United Kingdom have proven extremely adaptable to reforms such as the Human Rights Act 1998, which gave effect to the European convention on human rights in UK law. Such reforms provided what in some circumstances are universally applicable rights to people on UK territory, as well as recognising the growing importance of judicial review. Such proceedings can sometimes be inconvenient to Ministers and troublesome for the judiciary, but we should remember that the values of justice and fairness in our judicial system guarantee civil liberties and the rule of law.
The Bill deals with the conundrum of trying to strike a balance between the sometimes competing concerns and interests of the state and the individual, and it proposes the creation of closed material procedures in civil proceedings. As a national security measure that is reserved to Parliament under the devolution settlement, the Bill would apply to civil courts in Scotland. I know that the hon. Member for Perth and North Perthshire (Pete Wishart) read out some comments, and no doubt there will be discussions between this Government and the Scottish Government, but the Bill is clear that the measures would apply to civil courts in Scotland.
I welcome the amendments made in the other place that strengthen protection of the individual and, in the words of the noble Lord Pannick,
“help to ensure that, if we are to have CMPs, there are proper limits, proper controls, a proper balance and judicial discretion, and that CMPs are a last resort,”.—[Official Report, House of Lords, 21 November 2012; Vol. 740, c. 1816.]
The Bill as originally presented in the other place would have permitted one party—the Government—to decide whether to use CMPs. Critically, if CMPs are to be introduced, it must be for the courts and not the Government to determine whether they should be used in any given case, and only as a last resort. Questions of fairness and relevancy of evidence are for the courts, not the Government, to determine, because one of the parties to a CMP should not be able to determine such matters on its own. It is therefore welcome that the Minister without Portfolio indicated that the Government are minded to accept the relevant amendment.
Having opposed the amendments with such vigour in the other place, I hope that the Government will now accept in their entirety all amendments accepted by their lordships. Although clause 6 as presented to this House appears to contain greater balance than the measure originally presented to the other place, I am concerned that such balance does not extend sufficiently to clause 7. In particular, the Bill does not create a statutory obligation on the courts to provide the gist of the argument to the excluded party, which is vital to their being able to advise adequately their special advocate. That protection has been sought by the Law Society and is crucial to ensure a better balance between the rights of the individual and the interests of the state.
Natural justice is a key principle of civil law across the United Kingdom, and we have heard comments from Judge Learned Hand. Perhaps I may remind the House of the dictum of Lord Chief Justice Hewart from the 1924 case of R v. Sussex Justices, ex parte McCarthy:
“Justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
One key rule respected by that principle is the right to a fair hearing, which is underpinned in law by article 6(1) of the European convention on human rights.
May I point my hon. Friend to information given by Nicholas Blake QC—he is a special advocate—on what happens after a judgment is given in a Special Immigration Appeals Commission case? He says:
“If the special advocate thinks there is an error in law in the closed judgment, he gets permission to say, to pass a message out to the other team to say ‘I think you should be appealing, I can’t tell you why’…So there is a sort of open appeal. ‘We think there is something wrong but we don’t know what it is.’ And then the court goes into closed session”
to consider the matter. That is farce, not justice.
My hon. Friend makes a powerful point. I will give a similar example later in my remarks that bears out the point that the Government must be careful on how their proposals tie with the common law right to natural justice.
My hon. Friend referred to clause 7 and my hon. Friend the Member for Hayes and Harlington (John McDonnell) referred to a special advocate. To some extent, are those points not covered by clause 7(1)(d) and (e), which relate to the need to provide a summary? It is not quite the same as gisting, but a summary would give the sort of information my hon. Friend the Member for Hayes and Harlington implies does not exist.
I respect my right hon. Friend’s point, but the Law Society and many constitutional lawyers are not completely taken that the Bill provides sufficient protection in terms of common law judgments. As the debate continues in Committee, I hope we can impress upon the Government the advantages of giving greater safeguards in clause 7 to individuals and their legal advisers.
A number of decisions have created the presumption that it is not enough for an individual to be informed of a hearing affecting his or her rights or freedoms. There is also an obligation to inform them of the gist of the case—that comes from common law. That principle is vital, not least in a society governed in accordance with the rule of law. I hope the Government therefore take the advice they have received from the Law Society and others, and that they are prepared to support an amendment in Committee if the Bill receives a Second Reading.
In the Minister’s opening speech, he cited Lord Phillips of Worth Matravers in support of the principle of CMPs in exceptional cases, but perhaps he might reflect on the fact that Lord Phillips has pointed out that, if a closed material procedure is brought into law, it would “undoubtedly be challenged” in both the Supreme Court and the European Court of Human Rights. The Government must therefore establish that any incursion into the fair trial rights that are protected by article 6(1) of the convention is the minimum necessary and subject to suitable available safeguards and protections. The Bill allows insufficient protection of the continued balancing of interest after a CMP has been granted—that was pointed out by the Joint Committee on Human Rights and in the Bingham Centre response to the Green Paper. In allowing insufficient protection, the Bill unsettles an element of Scots law that has existed since 1956. I hope that the Minister resolves that problem in Committee.
As Tom Hickman, of University college London wrote for the UK Constitutional Law Group’s website on 27 November, in the absence of
“such a balance, CMP operates like a black box from which no information of any use or interest emerges. All information of even marginal sensitivity is immune from disclosure even if this is overwhelmingly in the interests of justice for it to be disclosed.”
The point was made more clearly in the decision in an analogous control order case—the case of CC and CF—earlier this year. British authorities admitted that they were involved in the arrest, detention and deportation of the defendants, but the defendants were given no reasons why they lost in the case, nor were they provided with any detail on the Government’s arguments, because the judge said that that part of the judgment must remain closed—the other party was excluded from it. The Government, by accepting reasonable amendments, could surely avoid such cases in the civil courts, if the CMP is introduced, and avoid the outcome warned of by the Intelligence and Security Committee. The Committee recommended restricting the use of CMPs to: UK intelligence material that would, if disclosed publicly, reveal the identity of UK intelligence officers or their sources, and their capability, including techniques and methodology; and to foreign intelligence material provided by another country on a strict obligation of confidentiality.
Even Cabinet minutes are not excluded from disclosure in a case involving serious misconduct by a member of the Cabinet, so why are the Government adopting such a restrictive interpretation in relation to the public interest balance in clauses 6 and 7? I hope the Minister will answer two further questions in his response. If the system comes into operation, will the Government pledge to review it, as the Joint Committee on Human Rights advised, and place that commitment in the Bill? Secondly, will the Minister accept the amendment made in the other place to permit both parties to apply for CMP, not just the state?
The debate has been about balance. This has been a genuinely constructive and helpful debate, both for Opposition Members and Government Members. The Government have made some progress. I hope that in Committee considerably more progress is made, so that we can ensure that the interests of the state and national security are undoubtedly protected, but that we do not cast away the hard-won liberties of the individual.
I echo the closing remarks of the hon. Member for Glasgow North East (Mr Bain). This has been a balanced and constructive debate, and it is good to see the right hon. Member for Wythenshawe and Sale East (Paul Goggins) return to his place. He and I sat through a similar debate on the Terrorism Prevention and Investigation Measures Bill a little over a year ago, as did my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips), my hon. Friend the Member for South Swindon (Mr Buckland) and the right hon. Member for Salford and Eccles (Hazel Blears). We all discussed issues of similar import concerning a similarly tiny number of people. For the TPIMs legislation, that number was nine people, and here we hear from the Government that there are 20 cases pending. While the sums of money involved are considerable, they are not significant in the grand scheme of Government spending. However, the issues of principle are of the highest order and it is entirely right that we have had such an interesting and well-informed debate after that in another place.
In introducing the debate, the Minister without Portfolio, my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) made a powerful case for why the current situation cannot continue and why the liberty of the litigant, sacrosanct in normal circumstances, to know the evidence that might demolish his or her case, should not be sacrosanct in these unordinary circumstances. They are not ordinary, because the evidence that might be presented could imperil—in many cases, would imperil—the lives not only of agents or officers, but citizens of this country.
We cannot, therefore, continue with the situation we have at the moment, but I would like to add two other liberties that are offended by things as they stand. The first is the liberty of the individual agents and officers, who have not been mentioned so far. Although they are anonymous in most of these instances, in a civil action they are accused of the most appalling crimes—rendition, torture, or procuring murder—and yet, through the agency of their employer, they cannot defend themselves and say that these things did not happen. I hesitate to say that spies have feelings too, but it is clearly wrong to allow someone, just because it is easier for Her Majesty’s Government to raise their hand and pay up, to have it on their record for the rest of their life that they were part of a conspiracy or action of that magnitude. In not defending them in court, we do them a disservice that the Government have a duty of care to address.
A bigger liberty is at stake, however, and that is the liberty of the nation. It seems to me that learned and noble Members in another place have forgotten that the state also has a personality and seem to think that, because the state is not a person, it is perfectly acceptable for it to admit liability where it might have none and to pay damages when it might not need to. Yet the state does have a personality. The Crown has a personality—it is the vessel of our shared values and experience, it is our common interest as a nation—and, if the state admits liability when it should not, it impugns those values, it demeans us as a nation and, perhaps most importantly, it devalues an apology and admission of liability that might be made when it should be made.
In order to protect the liberty of the nation and individual officers, it is vital, in the interests of justice, that we enable the state to defend itself in these civil actions. Here, then, I part company slightly with my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind) when he says that this is an unsatisfactory solution, but one that is better than the current situation. I do not think we need apologise for the proposals, because actually they are a reaffirmation of justice in very difficult circumstances: we know that not to do so would be to deny the very values on which that justice is built, but, if the information were to be presented in open court, the evidence might imperil the lives of those whom all of us assembled here—both in what we do and in the legislation that we pass—seek to protect. We must give them the justice they deserve.
The current inequality might be having a bizarre result. It is possible, and we have no guarantee it has not happened, that a civil litigant who is known to the security services but whom, for whatever reasons they have not been able to prosecute—certain Opposition Members will know of such instances—could bring a civil claim and win damages for tens of millions of pounds, and that money could then be recycled back into terrorism and used to attack the very people who have defended, or not defended, their right to bring a case. That is a bizarre situation and a travesty of justice—it is grotesque—so it seems wrong that any of us seek to try to defend the status quo. It is everything that we should be seeking not to do.
Does my hon. Friend agree that the real travesty is the Government having to settle cases and pay damages in circumstances where they might have a perfectly legitimate defence, but which cannot be deployed in court because it would reveal confidential information? It is when that money goes back into the hands of terrorists that we need to be particularly concerned, and that is one reason why the Bill needs a Second Reading.
Absolutely. I could not improve on my hon. and learned Friend’s words. It is wrong not only because the money might be recycled back into terrorism, but because it devalues the point when we have done something wrong and need to admit liability and learn from it. It turns everything on its head, and that is why we need the change.
I wish to make a slight political point. There have been some brave speeches from certain Opposition Members who know a great deal more about this matter than people sitting on the Front Bench of Her Majesty’s Opposition. It is odd to hear ill-informed remarks about the Bill being directed at those on the Government Front Bench, given that the Government have been open about what they want to achieve, and reasonable and generous in trying to accommodate the amendments from another place. In the spirit of that, it behoves Her Majesty’s Opposition not to use words such as “humiliating” or “climbdown”, but to acknowledge that the Government are listening carefully to, and accommodating, the arguments being made in both Houses. I hope that, at the end of the Committee stage, the Government will come back to the House with a Bill that will provide justice to the individual officers, to the intelligence agencies, to the nation and to the litigants. I hope that the Bill will do something that we in this place are supposed to do—namely, to ensure that the dispensation of justice is indeed just.
The Bill has implications for liberty, security and justice. The fact that those are serious matters has been reflected in the number of reasoned and considered contributions that we have heard today. We have heard 22 speeches, in addition to those from the Front Benches, many of which have been informed by Members’ experience in government and on the Intelligence and Security Committee. The whole House welcomes those contributions. In particular, I would like to mention those made by the Chair of the Intelligence and Security Committee, the right hon. and learned Member for Kensington (Sir Malcolm Rifkind); the Chair of the Joint Committee on Human Rights, my hon. Friend the Member for Aberavon (Dr Francis); and the Chair of the Treasury Select Committee, the hon. Member for Chichester (Mr Tyrie), as well as those made by several former senior Ministers, including my right hon. Friends the Members for Wythenshawe and Sale East (Paul Goggins), for Salford and Eccles (Hazel Blears), for Blackburn (Mr Straw) and for Knowsley (Mr Howarth). The leader of the Welsh nationalists, the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), also made one of his usual considered contributions.
The Bill has already been the subject of considerable debate in the other place, where many Members were able to draw on their considerable experience to scrutinise it and suggest improvements. We in this House are grateful for their efforts and the improvements that have been made. In particular, I want to pay tribute to the work of my noble Friends Baroness Smith and Lord Beecham. I am also pleased that the Minister without Portfolio said today that the Government would not seek to overturn some of the amendments made during the Bill’s passage through the House of Lords, and I look forward to hearing further details from the Minister in Committee as to why they disagree with certain others.
The matters in the Bill are sensitive and complex, and the Opposition will work with the Government to reach consensus, wherever possible, based on the evidence available. The introduction of closed material proceedings is undoubtedly the most controversial part of this legislation, and the Opposition accept that there are rare occasions when their use will be necessary. We cannot continue to accept a situation in which the Government are forced to settle claims because they are unable to adduce evidence without compromising vital national security evidence.
In the other place, the noble Baroness Manningham-Buller spoke passionately about the need for the security services to be able to protect their standing in the eyes of the public and for dedicated security staff not to have their reputation traduced because there was no mechanism for challenging allegations. However, as my right hon. Friend the Member for Tooting (Sadiq Khan) explained earlier, we had serious concerns about the scope of closed material proceedings as proposed in the Green Paper and again in the Bill as it was first presented to the Lords. We are pleased that the Government have listened to the strength of feeling expressed in the other place and by the Opposition, and that they have now indicated they will not seek to overturn all the Lords amendments. As I said earlier, we look forward to the debate in Committee.
The Bill also introduces limits on the courts’ ability to demand the release of information, following on from the principles developed in the case of Norwich Pharmacal. That case established the principle that an innocent third party could be forced to disclose information to enable an action to be taken against another party. In the case of Binyam Mohamed, this principle was extended to cover issues of national security. We know that the then Foreign Secretary stated that the release of such information was likely to cause real damage to both national security and international relations. The Independent Reviewer of Terrorism, David Anderson, QC, has now presented several examples where evidence has not been freely given to the United Kingdom because of the danger of its being released into the public domain. Several members of the Intelligence and Security Committee have raised this and confirmed that it is a problem, too.
I think there is an acceptance on both sides of the House, although not by all Members on either side, that this situation is unacceptable. The Opposition accept there is a pressing need to reassert the control principle, to ensure that foreign Governments can be confident that any information passed to the UK Government will remain in the hands of the Executive. We will therefore support the Government in their attempts to prevent the disclosure of information under the Norwich Pharmacal principles where the information is sensitive, and where its release might compromise our relations with foreign allies. The Opposition have concerns, however, about the breadth of the current definition of sensitive information and we hope to persuade the Government in Committee that the control principle can be protected within a narrower definition.
Finally, let me return to part 1. Although it is perhaps not as controversial as part 2, it is equally important, strengthening both the oversight and the public standing of the security services—aims behind which the whole House can unite. In emphasising why public support is so important to the security agencies, I refer again to the noble Baroness Manningham-Buller who drew on her own considerable experience to say in the other place:
“The support of members of the public is necessary not only in terms of general support for the organ of government but because, to do their work the agencies require that support every day of the week. They need the public to join them as recruits…they need them as sources of information, and they need them to help in whatever way possible...Therefore, when we talk about public opinion, the services require the help of the public to do their job and, in my experience, they get it.”—[Official Report, House of Lords, 9 July 2012; Vol. 738, c. 932-33.]
Like the noble Baroness, the Opposition believe that public support for the security agencies will be enhanced by greater