House of Lords
Tuesday, 19 June 2012.
Prayers—read by the Lord Bishop of Exeter.
To ask Her Majesty’s Government whether they will meet representatives of non-governmental organisations, the tobacco industry and retailers to discuss tobacco control issues, publishing the minutes of such meetings, in line with both the requirements of Article 5.3 of the World Health Organisation Framework Convention on Tobacco Control and the practice of the European Commission and other member states.
My Lords, Health Ministers consider all meeting requests carefully. Article 5.3 of the Framework Convention on Tobacco Control requires the Government to protect the development of public health policies from the vested and commercial interests of the tobacco industry. The tobacco industry is welcome to share its views on tobacco control issues with us in writing at any time.
My Lords, that is a depressing Answer. How is it possible that in a country that believes in freedom of speech, a highly regulated and legitimate industry employing thousands of people and providing millions of pounds of revenue for Her Majesty's Government can be treated quite so shabbily when the Government are developing new regulations affecting plain packaging, which affects intellectual property, and are involved in consumer safety? I ask my noble friend to think again and to receive representations. The Government may not want to agree with those representations, but surely it is the legitimate right of every elector and every employer in this country to make their representations in person to Her Majesty’s Government.
My Lords, we welcome the views of tobacco companies, retailers and all those with an interest in tobacco-related policy. Ministers in other departments may have legitimate reasons to meet the tobacco industry—I understand that, from time to time, they do—but Health Ministers and Department of Health officials would have a good reason to meet tobacco companies only if a specific matter, as opposed to general issues to do with tobacco control, demanded that. We would have to think carefully whether there was a good reason.
My Lords, I refer the House to my health interests in the register, in particular as president of the Royal Society for Public Health. I ask the noble Earl to continue his efforts to keep those companies at some distance from him and the Department of Health. Will he confirm that it is the view of the Government, as it was of the previous Government, that the tobacco industry promotes a product that has been described by the WHO as being proven scientifically to be addictive and to cause disease and death, and that we should have very little to do with those companies?
My Lords, I can only agree with the noble Lord, Lord Hunt, that tobacco is extremely damaging to public health. There is no safe level of smoking, and as a party to the Framework Convention on Tobacco Control, the UK has an obligation to take its undertakings very seriously—which means to develop public health policy free from influence from the vested commercial interests of a very powerful industry. However, that does not mean that we close our ears to what the tobacco industry may have to say: we are very happy to hear from it in writing. That promotes transparency, which I think assists everybody in a freedom of information context.
But is it not hypocritical of a Government—not only this one but previous Governments—to refuse to meet the tobacco industry, which is their tax-gatherer to the extent of £10.5 billion a year? If they had any honour and really believed that tobacco is such a bad commodity they would ban it. If they believe that, why do they not?
My Lords, across government we recognise the need for Ministers or officials from other government departments to meet the tobacco industry within the parameters set under the framework convention. There may be legitimate operational reasons why such meetings might be necessary—for example, Her Majesty’s Revenue and Customs sometimes meets the tobacco industry to discuss measures to reduce the illicit trade in tobacco. So it is not as if all government departments have closed their doors, but there is a very specific issue to do with Health Ministers and health officials.
My Lords, I declare my interest as an unpaid director of Action on Smoking and Health. Does the Minister recognise that any dealings he has with the tobacco industry will be with an industry that is responsible for the deaths of around 300 of its own consumers every day in this country alone, and that any claims that that industry makes must be treated with very great scepticism given its knowledge over many years of the connection between smoking and lung cancer and the addictive properties of nicotine—facts which it well knew but denied for many decades?
My Lords, my noble friend makes some very powerful points and he is right. Smoking is the biggest preventable cause of death in England. It causes more than 80,000 premature deaths every year. Tobacco use is a significant cause of health inequalities in the UK. One in two long-term smokers will die as a result of smoking. That demands that we take this issue very seriously indeed.
My Lords, is the Minister aware that his answers this afternoon will give a great deal of satisfaction to those of us who care about public health and the pernicious effect of the tobacco industry in its attempt to subvert it? As other questioners have said, this is a unique product: it is the only legal product that kills if it is used as the manufacturers intend. Does he share the views of his Secretary of State, who told the Times last month that he wanted the tobacco companies to have “no business” in the United Kingdom? If he does, he can be assured that he will certainly have the support of many Members of this House.
My Lords, if we are successful in our strategy to reduce smoking rates significantly, an inevitable consequence will be that, over time, less and less tobacco will be sold. It is smoking that we aim to reduce, which will have consequences for the sale of tobacco products. For the good of public health we are trying to arrive at a point where there is no smoking in this country, and that would mean no retail sales of smoking tobacco. Hence I fully support the remarks of my right honourable friend the Secretary of State.
My Lords, I am grateful to my noble friend for acknowledging the harm and damage that smoking does. Can he assure the House that the Government are equally determined to ensure that smoking will not have an adverse effect on children and children’s health in the future?
The need to reduce and, we hope, eliminate the uptake of smoking by young people is one of our top priorities. I would like to thank my noble friend for his Private Member’s Bill, which will certainly enable this issue to benefit from a wide airing. We would all like to see smoking in cars with children eradicated—the health of people can be harmed by second-hand smoke. The key question for us at the moment is what is the most appropriate and workable way of protecting children from second-hand smoking. No doubt we will debate that matter when we come to my noble friend’s Bill.
Does the noble Earl ever speak to one of the best Ministers of Health that his party ever had—and, indeed, probably the best leader that they were never intelligent enough to elect—namely Kenneth Clarke, who they tell me used to get £150,000 a year from British American Tobacco? Perhaps I may just add that Rothmans was one of the best employers that I ever encountered. It was good with the employees, good with the trade unions and good with the community. It was just that its product happened to kill people—like arms dealers’.
Defence: Trident Replacement Programme
My Lords, first, I am sure that the whole House will wish to join me in offering sincere condolences to the families and friends of Captain Stephen Healey of the 1st Battalion The Royal Welsh; Corporal Michael Thacker of the 1st Battalion The Royal Welsh; Private Gregg Stone of the 3rd Battalion The Yorkshire Regiment; Lance Corporal James Ashworth of the 1st Battalion Grenadier Guards; and Corporal Alex Guy of the 1st Battalion The Royal Anglian Regiment, who were killed on operations in Afghanistan recently. My thoughts are also with the wounded and I pay tribute to the courage and fortitude with which they face their rehabilitation.
I turn to the Question. The nuclear non-proliferation treaty, the NPT, does not require unilateral disarmament. Maintaining the UK’s nuclear deterrent beyond the life of the current system is fully consistent with our obligations. There is also no evidence or likelihood that others would follow the UK down a unilateralist disarmament route. We will achieve sustainable global nuclear disarmament only through a multilateral process, and the NPT represents the best means currently available for pursuing this.
My Lords, on the very sad news from Afghanistan, I am sure that everyone on this side of the House will wish to endorse the sentiments expressed by the Minister and his condolences to the five families concerned. The premise of my Question is multilateral, not unilateral. It is the Government who are, in practice, trying to ride both horses. Recent researches for the Trident Commission show that the nuclear powers will be spending $1 trillion—$1,000 billion —over the next 10 years. How does the Minister expect the non-nuclear states who have signed the non-proliferation treaty to stick to their side of the deal—the grand bargain—unless the likes of us stick to it too? Secondly, the very well-informed defence correspondent of the Evening Standard reported yesterday a “decision by stealth” to go for full Trident replacement. Why are the people of this country not entitled to a national conversation about the pros and cons of where we should be heading as we approach the so-called “main gate” decision in 2016?
My Lords, we are committed to retaining the minimum credible nuclear deterrent capability necessary to provide effective deterrents, and we keep that under constant review. At the same time, we are working multilaterally for nuclear disarmament and to counter nuclear proliferation. We believe that this is the right balance between our commitment to long-term disarmament and our responsibilities to ensure our national security. I do not accept the noble Lord’s point about stealth. So far as concerns a public debate, a main gate is not expected until about 2016. A decision about how best to consult will be made nearer that time.
My Lords, I join these Benches in the earlier tribute. How seriously is my noble friend’s department studying an alternative to Trident? Where is that study up to? Does he not find it rather strange that the Secretary of State for Defence never seems to refer to that study? In this context, would he like to comment on the recent article in Der Spiegel which indicated that Israel was arming its submarine Cruise capability with nuclear capacity?
My Lords, the purpose of the study is to help the Liberal Democrats to make the case for an alternative to the Trident system, as agreed in the coalition programme for government. I understand that the Cabinet Office is leading the review and it is being overseen by the Minister for the Armed Forces. It will report by the end of the year to the Prime Minister and the Deputy Prime Minister. The Secretary of State did mention it in his UQ in the other place yesterday; it was mentioned several times. On the point about Israel, we are aware of the widespread assumption that Israel possesses nuclear weapons but note that the Israeli Government have refused to confirm this.
My Lords, I do not want to be drawn into an argument with my colleagues but I can say that the first duty of any Government is to ensure the security of their people. The nuclear deterrent provides the ultimate guarantee of our national security, and for the past 42 years the Royal Navy has successfully operated continuous deterrent patrols to ensure that. I pay tribute to the crews and support staff who ensure the continued success of deterrent operations and to the families of all those personnel, many of whom are regularly away from home for long periods.
My Lords, what consideration are the Government giving, during the clearly lengthy period between now and the main gate decision on Trident, to making the nuclear dimension of our security posture less prominent than it was during the Cold War and to pursuing measures to reduce both our alert status and those of other nuclear weapon states?
My Lords, this will be one of the issues that the alternative study overseen by my colleague, the Armed Forces Minister, will be looking at. As I said earlier, the study will report to the Prime Minister and Deputy Prime Minister by the end of this year.
My Lords, from the opposition Front Bench I extend sincere condolences from this side to the families and friends of the five brave members of our Armed Forces who lost their lives in Afghanistan recently in the service of our country. We support retaining our independent nuclear deterrent and are strong advocates of the nuclear non-proliferation treaty. We believe that multilateral disarmament is the route to securing the collective goal of a world free of nuclear weapons. As has been said, the Government set up a Liberal Democrat review on alternatives to the replacement of the Vanguard class strategic submarines carrying the Trident missile. The Minister has indicated when he expects the review to be published, but can he also confirm that the cost of delaying the final decision on the renewal of the Trident programme until after the next general election, purely for internal coalition government political reasons, has already cost the nation’s taxpayers £1.4 billion?
My Lords, I am grateful to the noble Lord for the shared consensus that the nation’s security should be above party politics. So far as concerns the costs of any delayed decision, there are no costs at all, as the main gate decision will not be taken until 2016.
To ask Her Majesty’s Government what progress is being made to ensure that regulation is coherent and regulatory powers are efficiently exercised in accordance with objective assessments of need, risk, proportionality and cost benefits and with regard to the impact on businesses and individuals.
My Lords, the Government are meeting their aim of not increasing the cost to business from domestic regulation. Through the Red Tape Challenge we have begun to remove or simplify ineffective, unnecessary or obsolete regulation. We recognise that how regulation is delivered is as important as the regulations themselves, which is why we have established the Better Regulation Delivery Office in Birmingham, to improve regulatory delivery and to ensure that the business voice is heard.
I thank the Minister for that reply, and I applaud the Government’s intentions with regard to the reduction of red tape. However, does he agree that not a week goes by without some fresh example of regulatory excess occurring, of burdensome and thoughtless use of non-recourse powers by both government agencies and other bodies? Does he further agree, first, that there should be a national protocol or code that governs the way in which regulations are formulated and applied, and secondly, that some person or body should be vested with legal power to intervene in cases of excessive or inappropriate use of regulatory powers?
My Lords, we all understand that there is a constant tug-of-war between those who want more regulation and those who want less. For example, what I do should be entirely unregulated because I can be trusted, what you do should be carefully controlled, and what he does should be stopped.
Is my noble friend aware of pilot studies that have recently been carried out in Solihull and Leicester, where local regulators have sought to reduce burdens on small businesses by streamlining the amount of information they collect, co-ordinating inspection visits and sharing data? Can he say whether the evaluation has been carried out, and when we can expect to see the results?
I thank the noble Baroness for that question. Yes, that is exactly the sort of thing that the Better Regulation Delivery Office is concerned about. Eighty per cent of regulatory inspection and enforcement is carried out by local authorities, so that the experiment being conducted with these authorities is intended to feed very much into improving the quality of local regulation.
My Lords, is the Minister aware that the lack of regulation of certain businesses in relation to cooling towers in Edinburgh has resulted in a fatal outbreak of legionella, in which two people have died and many others have been seriously injured? Surely the Health and Safety Executive should be doing more to find out the cause of this, and to make sure that it does not happen again. Will the Minister undertake to raise this with the prosecuting authorities in Scotland, to ask why there is no fatal accident inquiry or other kind of inquiry into something that has killed two people and caused so much injury, and why we do not yet know what the cause of it is?
My Lords, I congratulate the noble Earl, Lord Lytton, on the brilliant wording of his Question. He asked the Government whether they are making progress against the test of coherence, efficiently exercised regulations, and objective assessments of need, risk, proportionality and cost benefits. Will the Minister affirm that these are the criteria that the Government are using in the better regulation exercise? Will he further affirm that where removing regulations from consumers, customers and the general public is being considered, the same tests, particularly the objective assessment of need, risk, proportionality and cost benefit, will be considered before any protections are removed?
My Lords, I can confirm that. These are close to the five principles of good regulation as set out by Christopher Haskins in 1998 under the authority of the then Cabinet Office Minister, David Clark. We are continuing very much on a course set by previous Governments. There is a constant pull and push between demands for further regulation and the constant need to make clear whether the regulations are still needed. I was very pleased to see that one of the Red Tape Challenge repeals has included the trading with the enemy regulation, which is felt not to be so relevant today as it was perhaps 60 years ago.
UK Border Agency: Visa Applications
My Lords, we take the chief inspector’s recommendations seriously. We have accepted them all and have a team working to ensure that they are implemented so that we provide a high quality service for genuine applicants while ensuring that those who do not meet the immigration rules are prevented from entering the United Kingdom.
I thank the Minister for his Answer. This is an excellent report by Mr Vine and his team, but it contains some disturbing evidence and very disappointing conclusions. It refers to the disappointing quality of decision-making, the lack of an audit trail, an inconsistent approach to the retention of documents, the manipulation of performance to meet targets, bad value judgments, the use of inappropriate language, and checks that were not performed. If this was an African country, Members of this House would be standing up asking for aid to be withdrawn. The Government need to act more quickly on these recommendations, and I would welcome an assurance from the Minister that they will act more quickly than they have in response to Mr Vine’s previous reports and recommendations.
My Lords, I join the noble Lord in paying tribute to John Vine for the work that he does and for his report. I think that he has slightly overegged the pudding—if I can put it in those terms—in his criticism. The chief inspector found some very good practice in three out of four sections that he visited. He found that they were good on timelines, although I accept the criticism that there was possibly an attempt to push things forward purely to meet targets. There was obviously some criticism about accuracy.
We will obviously move forward as fast as we can on producing responses to this, but, as the noble Lord will be aware, there have been quite a number of reports from the chief inspector’s office and we are still processing some of the others. Some of the facts that he deals with in his report relate back to as early as February or even to last year. Things have moved on since then, but I can assure the noble Lord that we are treating this matter with urgency.
My Lords, neither entry clearance manager reviews nor complaints procedures are of sufficiently high quality and cannot be relied on. Will my noble kinsman say how family visitors who are to be denied a right of appeal in the future will be able to get redress without an appeal mechanism? Bearing in mind that the ability to apply the law correctly is poor, how will the Government ensure that the errors detected in this report will not happen when decisions are made under the new rules on family immigration?
My noble kinsman is right to draw attention to the changes we are making, which we discussed at Second Reading of the Crime and Courts Bill. We will have further discussions on this in due course when we get to the appropriate stage of that Bill in Committee. However, I can say, and I think I said it at Second Reading, that someone who has been refused a visit visa can reapply and address the reasons why they were refused. A decision will be received more quickly as a result. Typically, that will take 15 days compared with going through an appeal, which can take eight months. On top of that, the application fee is cheaper when reapplying than when pursuing an appeal.
Is the Minister aware of an anxiety from the churches at the present time about African Christians responding to invitations to enter this country? It seems that a new economic test is being applied to them. Able, well qualified Africans are being invited to conferences in this country and endorsed even by bishops and the Archbishop of Canterbury, but are being turned down because their personal income is low. As most African clergy live on sacrificial stipends that are intermittently paid, we are wondering whether we can ever invite anyone again from Tanzania.
My Lords, I will look very carefully at this. I cannot believe that someone who is being endorsed by the Archbishop of Canterbury or, for that matter, by any right reverend Prelate, could be turned away. I would want to look at that and at the particular circumstances to which the right reverend Prelate has referred. Certainly, we would not want that to be the case.
My Lords, as the Minister has accepted in his responses to my noble friend Lord McConnell and the noble Lord, Lord Avebury, the findings in this report impact on the Government’s proposals on family visa applications and appeals in the Crime and Courts Bill. What concerns me most about the report is when John Vine says that despite his previous recommendations to help improve the agency, he has seen little progress in a number of areas. He says:
“This is especially frustrating considering the agency has adopted the recommendations, and yet I continue to identify the same issues”.
The quality of decision-making appears to be a key issue. The Minister says he wants to act as fast as he can, but have the Government identified the reason why so little action has been taken to correct problems found in the past? Is the problem a lack of will or a lack of resources?
My Lords, it is neither a lack of will nor of resources, and we are still trying to push these things on as fast as we can. The noble Baroness quite rightly refers to the Crime and Courts Bill; we are in the middle of its Committee stage and we will discuss those provisions when we get to them some time in July. However, it is right to make the point that we think we will be able to provide a better service to a number of people by withdrawing those appeal procedures as a result of them then being able to apply again.
I want to make clear, as I made clear in my original response to the noble Lord, Lord McConnell is that we take these findings very seriously indeed and we will continue to push them forward. However, the chief inspector produces four or five different reports a year and it takes time to push them forward. He is talking about issues that he looked at back in February, obviously changes have occurred since then and we hope things are better as a result of actions we took following his report. Obviously some things have moved on since then.
The point that I was trying to get over to the noble Lord, Lord McConnell—and I think the noble Lord, Lord Tomlinson, knows this—is that he was overemphasising all the criticisms in the report without underlining the fact that Her Majesty’s inspector on these matters had pointed out that three out of the four sections he visited were performing pretty well and that he found good practice. There obviously were criticisms and, quite rightly, noble Lords opposite and the Government will focus on those criticisms. I just want to say that it was not all that bad.
Trusts (Capital and Income) Bill [HL]
That, as proposed by the Committee of Selection, the following Lords be appointed to the Special Public Bill Committee on the Trusts (Capital and Income) Bill [HL];
L Beecham, L Davies of Stamford, B Drake, L Faulks, V Hanworth, L Higgins, L Hodgson of Astley Abbotts, L Lloyd of Berwick (Chairman), L McNally, B Northover, B Wheatcroft;
That the Committee have power to send for persons, papers and records;
That the evidence taken by the Committee shall, if the Committee so wishes, be published.
Gambling Act 2005 (Amendment of Schedule 6) Order 2012
Motion to Approve
Justice and Security Bill [HL]
My Lords, the United Kingdom’s security and intelligence services do superb work in keeping us safe. But if we are to be true to the democratic values that they fight to defend, it is right that their actions should be subject to proper judicial and parliamentary scrutiny.
Every Government must find a way to resolve the competing demands of liberty and security. It is one of the most important challenges to government, and one of its key responsibilities. We need to consider with great care how we strike that balance. I can assure your Lordships that in bringing forward the Bill, Ministers have sought to exercise the care required to strike that balance.
It is because the Government are not satisfied that our system is delivering this scrutiny as well as it should be that we are bringing forward the Justice and Security Bill. The Bill seeks to address three widely recognised problems. First, a number of civil cases cannot be heard by a judge because they hinge on national security-sensitive evidence that cannot be disclosed openly. At present the Government’s only options are to ask the courts to strike out such cases as untriable or to try to settle them, often for large sums of money, even where they believe that a case has no merit. Secondly, a remedy in intellectual property law has recently been extended to allow someone bringing a claim outside the United Kingdom to apply to a court in London to force disclosure of intelligence information held by the British, including information provided by our allies. This is already seriously undermining confidence among our most important partners, including the United States. Thirdly, oversight of the intelligence community lacks independence from the Executive and has too limited a remit to ensure full and effective accountability.
The response to these problems that I am outlining today has its origin in the Justice and Security Green Paper published last year and noble Lords will be aware that the proposals it contained were the subject of extensive debate by the public, stakeholders and the media. The Government listened carefully to the views received during that consultation. While many respondents acknowledged the underlying problems that our proposals were trying to sort out, there was also considerable concern that our plans for closed material procedures—so-called CMPs—were excessively broad in scope and risked undermining this country’s proud tradition of civil liberties.
The Government’s position has always been that protecting the public should not come at the expense of our freedoms. We have therefore extensively revised our proposals by narrowing their scope and strengthening safeguards. The case I want to make today is that the plans in the Bill are sensible, proportionate and targeted at a genuine and serious problem.
I take it that the noble and learned Lord is aware of the severe criticisms launched by Mr Andrew Tyrie, the Member of Parliament for Chichester. He has come to the conclusion that the proposals in the Bill,
“offend the principle of open justice”.
When the noble and learned Lord says that these issues have been ventilated, has he taken into account the views that have been expressed?
My Lords, I can assure the House that we are aware of the concerns expressed not just by Mr Tyrie but by a range of people during the consultation and subsequently. We have sought to wrestle with those concerns. I indicated that it is the age-old challenge between trying to balance the interests of security and liberty. I can assure the House that in presenting the Bill we have sought to wrestle with these issues and to come forward with a set of proposals that are sensible, proportionate and targeted at a genuine and serious problem.
I begin with the important matter of improved parliamentary and independent oversight of the security and intelligence agencies. The Intelligence and Security Committee does an excellent job of overseeing the administration, expenditure and policies of the agencies. I know that members of the committee are present here today and have put down their names to speak in the debate. However, the ISC operates within arrangements that were established by Parliament in 1994. In the past 18 years, and particularly since 9/11, the public profile and budgets of, and indeed operational demands on, the agencies have significantly increased, but there has been no change to the statutory arrangements in place for oversight.
Although in the past the ISC has overseen operational matters, it has done so relatively infrequently. The ISC has no explicit statutory locus 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. The ISC currently reports only to the Prime Minister, who appoints its membership, and there are some limitations to the way it works. The heads of the security and intelligence agencies can, in certain circumstances, withhold information from it. The ISC is wrongly perceived by some to be a creature of the Executive, not least as it is funded and staffed by the Cabinet Office. We believe it is time to put the ISC on a much stronger footing and enhance its independence to strengthen the very valuable work it has done so far and give Parliament more effective oversight of the intelligence and security agencies.
Part 1 of the Bill extends the ISC’s statutory remit, clarifying that it will in future be able to oversee the agencies’ operations. It will also in future report to Parliament as well as to the Prime Minister. Its members will be appointed by Parliament, after nomination by the Prime Minister. In parallel, the Government intend to press ahead with the Green Paper proposals that the ISC is funded by Parliament, accommodated on the Parliamentary Estate and that its staff will have the status of parliamentary staff. Finally, the power to withhold information from the ISC moves to the Secretary of State responsible for that agency; in other words, to a democratically accountable representative. These may sound like technical changes but together they will help to ensure that we have effective, credible and genuinely independent oversight of the activities of the security and intelligence agencies, renewing public confidence that someone is watching the watchers on their behalf.
The provisions of the Bill that have to date probably prompted the most comment are in Part 2, including the use of closed material procedures. The Government are strongly committed to open and transparent justice. However, the courts have long accepted that sensitive intelligence material—for example, the names of security agents or information about techniques used by intelligence agencies—cannot be disclosed in open court. In the famous case in the last century of Scott v Scott, Viscount Haldane in the House of Lords acknowledged that exceptions to that principle of open and transparent justice,
“are themselves the outcome of a yet more fundamental principle that the chief object of courts of justice must be to secure that justice is done ... As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield”.
Under current rules, the only available way of protecting sensitive intelligence material which would otherwise be disclosed, and which would damage the public interest if disclosed in open court, is to apply for public interest immunity. If such an application is successful, the result is the exclusion of that material from the court room. An example of the difficulties which may arise is where a case is so saturated in this type of sensitive material that the PII procedure removes the evidence that one side, either defendant or claimant, requires in order to make its case. The options, then, are not attractive. In judicial reviews, the Government may find themselves unable to defend an executive action taken to protect the public—for example, the exclusion from the United Kingdom of a suspected terrorist or gang lord—simply because they cannot explain their decision when defending it. Equally, claimants may find themselves unable to contest a decision taken against them. This is what Mr Justice Ouseley observed in the recent case of AHK and others where claimants were challenging decisions to refuse naturalisation. His Lordship noted that if the alternative to a CMP is,
“that the claimant is bound to lose, no matter how weak the grounds against him, there is obvious scope for unfairness towards the claimant”.
In claims for civil damages, typically against the Government, the defendant is either forced to seek to settle the case by paying out compensation, assuming the other side is willing to agree to settle, or it has to ask the court to strike out the case as untriable. The result is that these cases are not heard before a court at all. There is no independent judgment on very serious allegations about government actions. The recent settlement of the civil damages claims brought by the former Guantanamo Bay detainees underlines this point. The evidence on which the Government needed to rely in order to defend themselves was highly secret intelligence material, which could not be released in open court.
I am grateful to the noble and learned Lord. The use of public interest applications is familiar to many of us, even in quite ordinary run-of-the-mill cases brought before a recorder. What is the best estimate the noble and learned Lord can give of the volume of applications where something more is required such as the closed material procedures now proposed?
My Lords, I am cautious about hazarding the estimate that the noble and learned Lord asks of me. In the Green Paper, we indicated that the kind of cases that we were looking at were 27 current claims. The most recent figures that I have, as of yesterday, show that the numbers have fluctuated somewhat since October 2011 at the publication of the Green Paper. Currently, there are estimated to be 29 live cases, which were of the type cited in the Green Paper. To give an estimate of the number of cases where sensitive information was central to the case, based on current cases handled by the Treasury Solicitor, there are 29 live cases but they exclude a number of appeals against executive actions that are currently stayed. There are 15 civil damages claims; three asset-freeze judicial reviews; seven exclusion judicial reviews; four lead naturalisation judicial reviews; and around 60 further naturalisation judicial reviews stayed behind these cases. I hope that gives the noble and learned Lord and the House an idea of the kind of figures that we are dealing with where we believe that sensitive information is central to the case, based on the estimate of the Treasury Solicitor at this time.
The recent settlement of the civil damages claims brought by the Guantanamo Bay detainees underlines the point that I was making. The evidence which the Government needed to rely on in order to defend themselves was highly secret intelligence material, which could not be released in open court. One option open to the Government would have been to claim PII over that material. If the PII claim had been successful, the Government would have succeeded in excluding a very large quantity of material, but material that they would have wanted to rely on to defend their position. The only practical option was to settle the claims for significant sums without admitting liability.
Although the numbers of these cases are small, they often contain extremely significant allegations about the actions of the Government and the security and intelligence agencies. There is a real public interest in being able to get to the truth of such allegations. Indeed, I think it is arguable to say that the rule of law is supported by courts being able to reach determinations on such matters. Although such settlements are often made without any admission of liability being made, as we all know, mud sticks. Allegations have been made in public that have never been examined or rebutted, and many people choose to believe that they are true. The damage to the reputation of this country can be immense and those unrebutted allegations can be used by individuals seeking to garner support for terrorism in retaliation for perceived wrongdoing by this country.
This is the backdrop against which our plans to allow material to be heard in court via CMPs should be seen.
Perhaps my noble and learned friend would explain how the public would be more informed and the allegations of wrongdoing on the part of the Government would be exploded by the use of CMP procedures when, by definition, it would all remain secret.
My Lords, the point I was seeking to make is that if one goes down the route of PII, the issues will never be tested at all. It may be that so much material has to be withheld that it is not possible for a determination to be made and the Government may be forced to settle. I do not believe that that enhances the confidence of the public in the security services.
It is an irony somewhat overshadowed by the controversy over CMPs that, before recent developments in case law, courts were themselves successfully using this approach in civil cases where sensitive evidence was involved to ensure it could be heard but also considered and tested. For example, a peace campaigner called Maya Evans sought to challenge United Kingdom policy in relation to the transfer to the Afghan authorities of suspected insurgents detained by UK Armed Forces in the course of operations in Afghanistan.
I take the noble and learned Lord’s argument and I accept the need for having the closed material procedures in relation to information of sufficient sensitivity, but why would equivalent information of the same sensitivity not require the same protection in an inquest?
My Lords, as my noble friend knows, these issues were canvassed in the course of the consultation. A considerable number of representations were received indicating that this would not be appropriate in the context of inquests and, of course, PII would apply and would be available. The Government listened to those representations and responded to them by not having inquests covered within the ambit and scope of the Bill.
I was explaining the question on that particular case. An allegation was made that people transferred into Afghan custody were and continue to be at real risk of torture or serious mistreatment and that the practice of transfer was therefore unlawful. There was a CMP for part of the proceedings, with the consent of all parties. After examining all the relevant evidence, the judge concluded that transfers into Afghan custody at two sites could continue only provided that a number of additional safeguards were observed, and that a moratorium on transfers to another site should continue until there were clear improvements that would reduce the risks of mistreatment. In his judgment, Lord Justice Richards paid tribute to the way that the case had ultimately been conducted by all concerned and the Secretary of State’s conscientious approach to disclosure.
I have indicated that there was a consultation. There was strong representation that it would not be appropriate to have this kind of procedure in inquests. My main line of defence is that we listened to the consultation and responded to it. I believe that the right judgment was made.
I draw the attention of noble Lords to the Companion which says that,
“frequent interventions should not be made, even with the consent of the member speaking”.
This has the taste of a House of Commons debate about it. The convention of this House is not for frequent interventions.
Is not the answer to those noble Lords who have asked these questions quite simply that the right to life under the European convention requires particular requirements of openness and transparency, and therefore there is a strong case for separating inquests anyway?
There is a strong case, and having heeded the representations, we took that particular route.
I was trying to explain that CMPs have been part of our legal system sometimes by agreement in civil cases and that is compatible with the interests of justice, so why bring forward the Bill? The reason is that the Supreme Court last year, in a case called Al Rawi, held that a court is not entitled to adopt a closed material procedure in ordinary civil claims for damages. The court held that it was for Parliament, not the courts, to decide where closed material procedures should be available. The consequence has been that we are no longer able to rely on the ability of the courts to find their own way through this difficult issue of disclosure.
Hence the provisions in Part 2 of the Bill, which seek to respond to this challenge in a proportionate and targeted manner. It makes CMPs available in narrow circumstances—namely, in civil proceedings in the High Court, Court of Appeal and Court of Session, where material is relevant to those proceedings, disclosure of which would damage the interests of national security. Importantly, it will be only after the Secretary of State has considered whether a claim for public interest immunity should be made. In line with a recommendation of the Joint Committee on Human Rights, Part 2 also allows for the transfer of judicial reviews of exclusion, naturalisation and citizenship decisions to the Special Immigration Appeals Commission, which has well established closed procedures.
Under the plans, where the Secretary of State applies for a CMP in civil cases, it will be for a judge to declare whether a CMP may be used. The judge will make this declaration on the basis only of national security considerations, not crime or international relations. Inquests, as we have indicated, have been excluded, and we were never intending to make CMPs available in the criminal courts.
Let me stress the safeguards that will apply. The Secretary of State will first have to consider whether the material can be dealt with by making a claim for public interest immunity. This will be a legally binding obligation and failure to comply can be judicially reviewed in the courts. The Secretary of State will then apply to a judge, and that judge will declare whether in principle a CMP may be used. That judge is the decision-maker. He or she must be satisfied that there was material relevant to the case, the disclosure of which would damage national security.
Once the judge has taken a decision in principle that a CMP may be used, a second exercise will take place in relation to the individual pieces of evidence which he decides are national security sensitive, following representations by a special advocate whose job is to act in the interests of the claimant. The judge will determine the treatment of each piece, whether redacting individual names or sentences would allow the evidence to be heard in open, or whether a summary of the evidence withheld must be made available to the other party and so on. The Bill does not upset the established position that it is for Ministers to decide whether to claim PII. Consequently, it should be the responsibility of the Secretary of State to apply for a declaration to the court that a closed material procedure may be used.
Some suggest that the Government may choose between claiming PII and applying for a closed material procedure opportunistically. Some say that the Government would apply for a closed material procedure where the material was helpful to the Government on the basis that the material could be considered by the court and that the Government would claim PII where the material was unhelpful so that, if successful, the PII claim would exclude that material from consideration.
It is not a realistic concern. The intention behind the closed material procedure proposals is precisely so that allegations made against the Government are investigated and scrutinised by the courts. The intention is that all relevant material—helpful or unhelpful—will be before the courts. It is hard to see that a judge assessing a PII claim would conclude that material should be excluded if the Government were seeking cynically to use PII to exclude material that undermined its case when a closed material procedure was available as an alternative.
The Bill makes absolutely clear that the court must act in accordance with the obligations under Article 6 of the European Convention on Human Rights—the right to a fair trial. The overall effect will be that in practice all evidence currently heard in open court will in consequence of the CMP provisions continue to be heard in open court, including allegations against the state. In reality, claimants will receive as much information where there is a CMP as they would following a PII exercise.
A number of respondents to the consultation made the points that CMPs are a departure from the tried and tested fundamentals of open justice. I agree. No Government propose measures in this area lightly. However, as we have seen, CMPs are already used in our justice system, and have been endorsed by both domestic and international courts for the good reason that they provide a fairer outcome when the alternative is simply silence—no judgment at all and no questions answered.
Briefly, I move on to the final set of provisions in the Bill—namely, ensuring the protection of our intelligence-sharing relationships and our domestically generated intelligence through reform of an area of law that is known as the Norwich Pharmacal jurisdiction. The Norwich Pharmacal jurisdiction grew up in the sphere of intellectual property law, where it is used to force a third party who—however innocently—is mixed up in suspected wrongdoing, to disclose information that a claimant feels may be relevant to a case that they are bringing elsewhere.
However, in 2008 a particularly innovative group of lawyers sought, in the case of Binyam Mohamed, to extend this jurisdiction to argue disclosure of sensitive intelligence information held by the British, including that provided in confidence by our allies. A specific right to the disclosure of intelligence services information has been ruled out by Parliament in the Freedom of Information Act and the Official Secrets Act. Yet, since Binyam Mohamed, there have been no fewer than nine attempts to use this jurisdiction in relation to sensitive information, including secret intelligence.
What is particularly troubling about this area of law is that, as the purpose of the proceedings is solely to gain disclosure of material, the Government do not have the option to withdraw from or settle the proceedings. If a judge orders disclosure, there is no option but for the Government to release the secret intelligence. Those who cannot keep secrets soon stop being told secrets. We expect our allies to protect intelligence material that we share with them from disclosure, and they expect the same from us. It is a regrettable fact that uncertainty about our ability to properly protect classified information provided by foreign Governments has undermined confidence among key allies, including the United States. In some cases, measures have already been put in place to regulate or restrict intelligence exchanges.
This is not just about material from overseas partners. We also need to protect from disclosure United Kingdom-generated sensitive material, which, if disclosed, could reveal the identity of United Kingdom officers or their sources and capabilities. To give but one example, not only could disclosure of sensitive intelligence derived from a UK human source jeopardise an ongoing intelligence dividend from that source, it could also blow the source’s cover, putting his or her life at risk. Our intelligence agencies cannot operate effectively if they cannot offer their sources protection. Norwich Pharmacal is the wrong tool for national security cases. The Government must regain the discretion to decide what the best way of assisting someone should be. Unless we address this situation robustly, the UK will continue to be seen as a soft touch by those wanting to get access to sensitive information. Our allies will—
Yes, me of all people, but I am entitled to seek information. The noble and learned Lord mentioned the Freedom of Information Act and people seeking access through that Act. Is it the case that someone living abroad can make an application under the Freedom of Information Act to information officers over here, including those in Parliament? I hope that I have been brief enough for the noble and learned Lord.
I cannot give an immediate answer to that question, but I suspect that it may be the case. The important point in this context, as I have just indicated, is that Parliament has decided that, under the Freedom of Information Act, a specific right to the disclosure of intelligence services information has been ruled out, irrespective of where the applicant comes from.
That is why the Government intend to legislate to exempt from disclosures under a Norwich Pharmacal application material held by, originating from or relating to an intelligence service defined as including the intelligence agencies and those parts of Her Majesty’s Armed Forces or the Ministry of Defence that engage in intelligence activities, or if the Minister has certified that it would cause damage to national security or international relations if it were disclosed. I seek to reassure the House that these measures will have no impact on claims that the Government or the security and intelligence agencies have been directly involved in wrongdoing; nor do they prevent someone enforcing their convention rights, and nor do they exempt the agencies from their disclosure obligations in other civil cases. We are not seeking to abolish an ancient right. The Norwich Pharmacal jurisdiction has existed only since the 1970s and it has been found to apply in national security cases only since 2008. Our reforms will affect the jurisdiction only in so far as it applies to national security and international relations.
In conclusion, the Bill seeks to reshape the way we scrutinise the actions of our security and intelligence agencies both inside and outside the courts. The Bill raises significant issues about how we can best achieve that scrutiny, and what should be the respective roles of Government, Parliament and the courts. As I have said, the Green Paper that preceded this Bill prompted much public debate. The Government listened carefully to that debate and have responded by amending their proposals, including taking up a number of suggestions made in a useful report published by the Joint Committee on Human Rights, a number of whose members I am sure will contribute to this debate. There has also been an important report from the Constitution Committee, to which we intend to respond soon.
I think that the provisions in this Bill are a measured and proportionate response to the challenges I described earlier. We need to ensure that the courts can secure that justice is done. We must maintain the rule of law and ensure that proceedings are fair for all parties to the case. We must protect information that is shared with us in confidence, particularly if it would inhibit the ability of our security and intelligence agencies to keep us all safe if there is a risk that it could be disclosed, and we must make sure that those we trust to oversee the work of the agencies on our behalf have the powers to do an effective job and are able to command public confidence.
I look forward to what I am sure will be a thorough and instructive debate both today and as we proceed into Committee on how we meet those challenges and seek to balance the age-old tension between liberty and security. I commend the Bill to the House and I beg to move.
My Lords, the House will join me in congratulating the noble and learned Lord on a typically lucid exposition of a very complex Bill. In his closing speech at the end of the Second Reading debate on the Crime and Courts Bill, the noble Lord, Lord McNally, made a gracious but utterly misguided reference to me as a “distinguished lawyer”. I have no pretensions whatever to such a description. Fortunately, particularly having regard to the Bill we are debating today, this House is not lacking in expertise of the highest order, including as it does eminent legal practitioners, former senior members of the judiciary and others with ministerial, political or professional experience of the intelligence and security world. The latter category embraces, among others, six Members who have served on the Joint Committee on Human Rights, whose report on the Government’s Green Paper is required reading, especially for those who, like myself, are seeking to get to grips with this hitherto unfamiliar world.
The very Title of the Bill, juxtaposing as it does two desiderata, justice and security, reflects the dualism with which the legislature has to contend, calibrating as we must the balance between two principles which are potentially in conflict. By its nature, this is a topic in which, as the Government proclaimed at the outset, consensus is highly desirable, if not essential. The Joint Committee managed to achieve just such a consensus on the Government’s original proposals, as did the Constitution Committee. It is perhaps unfortunate that the Government chose to proceed from the Green Paper straight to a Bill without first seeking to achieve that broad consensus they had adumbrated, but we are where we are.
I pay tribute to the Government for responding to some of the concerns raised by the Joint Committee and others, notably in relation to restricting closed material procedures to matters of national security and to abandoning proposals for secret inquests, although that may not be universally approved. However, the question for the House to consider is whether the Government have gone far enough—in particular, in relation to making the case for the proposed extension of closed material procedures to further categories.
The process appears to bear the hallmark of the Lord Chancellor, a larger-than-life figure whom his party, many of us think, twice mistakenly rejected as its leader. He is what one might describe as a practitioner of the John Lewis-style of politics—never knowingly understated—and is perhaps inclined to be a little cavalier. Let us consider paragraphs 26 and 27 of the Joint Committee report, in which the committee commented on the Government’s initial refusal to publish the responses they received to the Green Paper—perhaps an ironic echo of the closed material procedure, which is one of the most controversial parts of the Bill. On the claim that “improved executive accountability” would be advanced by the Government’s proposals, the committee comments in paragraph 212:
“With the exception of the ministers, not a single witness in our inquiry suggested that the proposals in the Green Paper will improve the accountability of the executive”.
Let us consider further the initial refusal to disclose to the independent reviewer of terrorism legislation papers relating to the 20 cases on which the Government purported to rely in support of their proposals.
My noble friend Lady Smith will deal with Part 1 of the Bill when she winds up for the Opposition. In relation to that part, therefore, I confine myself to asking whether the changes proposed in relation to the Intelligence and Security Committee, some of which are welcome, do enough to strengthen parliamentary oversight of intelligence and security activities and, in particular, whether the membership criteria should not perhaps reduce the role of former Ministers and provide for limited terms of office so as to underline the committee’s independence of both the Executive and the relevant services, and to allow some refreshment of that membership from time to time. In raising those questions, I of course pay tribute to present and past members of the committee who have sought—and seek—conscientiously to fulfil their role.
I now turn to the most difficult parts of the Bill; first, those dealing with closed material procedures—or applications, in the first instance—under which the Secretary of State may apply to the court for an order in any civil case excluding the disclosure of evidence to a party except to a special advocate, if such disclosure would be damaging to national security. There is a broad view that this effectively will tie the hands of the trial judge.
The second area relates to the so-called Norwich Pharmacal cases, about which the noble and learned Lord closed his opening address. As he indicated, these prevent the disclosure of “sensitive information” which 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 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 thus far, where the defendant—that is, the Government—is to some degree mixed up in events; perhaps quite innocently they have come into possession of information. We certainly agree that there is an issue here that needs to be addressed and a case for regularising the situation created by the Norwich Pharmacal cases. The question, of course, is whether the Government’s approach is proportionate.
In that connection, Clause 13(3)(a) and (d) appear to go much further than would, on the face of it, be desirable, barring as they do disclosure of any information held by or relating to the intelligence service. That is a very broad definition. Again, it is surely necessary for the role of the judge in deciding on an application not to be more apparent than real so as to ensure a strong judicial check on the information to be exempt.
Of course, it is natural and reasonable for the intelligence and security services to operate in these matters on the precautionary principle. However, it is surely a step too far to accept that their view must be unchallengeable in all circumstances. After all, elements within the service, although not the service itself, have occasionally demonstrated a capacity to follow their own inclinations, sometimes of a political nature, whether of the left or right. One has only to think of the generation of Soviet agents recruited from Cambridge—I am relieved to say—in the 1930s, or the Zinoviev letter of the 1920s and the campaign waged against Harold Wilson by elements within the Security Service.
Even more important are the questions about the definition of national security and of sensitive information —obvious enough in military cases, but what else might the terms encompass? Should concern for international relations prevent the disclosure of information tending to show unlawful conduct—for example, the use of torture by a foreign power? How are the interests of justice to be preserved and, moreover, to be seen to be preserved? This is an area to which the Joint Committee report drew attention in its closing section. It referred to:
“The impact on media freedom and democratic accountability”,
and drew particular and highly critical attention to the Government’s position, to which the Government’s response was, frankly, extremely weak and unconvincing.
The Joint Committee rightly called for legislation to facilitate the admissibility of intercept evidence to be brought forward urgently. However, its main thrust was to criticise the approach to closed material procedures and the Norwich Pharmacal cases. It makes a strong case that the need to extend closed material procedures beyond the very limited categories to which it applies at present—for example, as the noble and learned Lord reminded us, the Special Immigration Appeals Commission, and there some other areas too—is not based on robust evidence. Further, it argues that the Government are wrong to discount the public interest immunity procedure, under which, as the noble and learned Lord indicated, the Government can always decide not to disclose their arguments, albeit potentially at the cost of having to settle or lose their case.
It is surely not good enough for the Government to plead in their response to the committee that the public would prefer the Government to be able to defend themselves and allow cases to continue to judgment, rather than be settled at greater expense to the public purse. That is to place too heavy a weight on financial considerations, your Lordships might think. In any event, the committee found a,
“troubling lack of evidence of any actual cases demonstrating the problem”,
which the Government seek to solve. It was also concerned by the vagueness of the evidence on which they rely.
In relation to the closed material procedure, the whole process conflicts with the words of the noble and learned Lord, Lord Kerr. He said:
“The central fallacy of the argument, however, 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 go further. Evidence which has been insulated from challenge may positively mislead. It is precisely because of this that the right to know the case that one’s opponent makes and to have the opportunity to challenge it occupies such a central place in the concept of a fair trial”.
The committee clearly leans towards a modified public interest immunity procedure as an alternative, perhaps including redactions, confidentiality, restricted publicity and “in private” hearings. I commend further consideration of that approach.
In relation to the Norwich Pharmacal cases, the committee rejects the proposed effective ouster, as some would see it, of the court’s jurisdiction to authorise disclosure. Its preferred option is for the public interest immunity procedure to be applied where issues of national security arise in cases where a party seeks disclosure of evidence material to his case in another jurisdiction. In paragraph 192 of its report, the committee sets out how this might be achieved. It suggests, as an alternative to other proposals, a rebuttable presumption against disclosure of national security-sensitive information, a test for when the presumption can be rebutted and an agreed list of factors which the court should take into account in determining whether the presumption is to be rebutted.
As I have indicated, there is certainly here an issue which needs to be addressed and a case for regularising the Norwich Pharmacal situation. Again, the question is whether the Government’s approach is proportionate and whether the evidence on which they base it is robust. There is a case for qualified exemptions to the residual disclosure jurisdiction, but the House will wish carefully to scrutinise the detail of the Government’s proposals and, again, so far as it can, the evidence on which they are based.
In respect of closed material procedures, the question is whether under the Bill as it stands we would end up with a major incursion into the right to a fair trial of issues before the courts, impacting on civil justice rather than preventing damage to national security, which can be and has been achieved in other ways. The Bill’s provisions, after all, represent a fundamental change to our system of civil justice and to the rights of parties. Even the parliamentary website headlines today’s debate as being about “secret hearings”—a somewhat Kafkaesque description which may nevertheless strike a chord with Members of your Lordships’ House.
We must also take note of the independent reviewer’s statement that he,
“deprecated the tendency of Ministers to characterise their CMP proposals as justified by national security … as a scare tactic in order to achieve its unrelated proposals on secret civil trials”.
Crucially, he added:
“Existing PII procedures do not risk compromising foreign intelligence. The secret trial proposals must stand or fall by their ability to produce just outcomes”.
Although Mr Anderson was eventually allowed limited access to some case material and concluded that there is a case for extending CMP, again crucially, he remains convinced that the decision is one for the judge and not the Executive—a point made forcefully by Mr Andrew Tyrie, to whom my noble friend Lord Clinton-Davis made reference, in his analysis of what he described as,
“the inadequacy of the Government’s concessions”.
In conclusion, in the week in which we welcome Aung San Suu Kyi to address both Houses, I very much look forward to listening to the diverse arguments and opinions of Members of this House as we debate these complex and difficult issues of jurisprudence and public policy. I know that in the noble and learned Lord, Lord Wallace, we have a thoughtful and sensitive interlocutor, and I hope that, collectively, we might reach a satisfactory conclusion. So far, about the only substantial consensus appears to be a consensus of the concerned, ranging across the political divide—as exemplified by articles in this week’s House Magazine from the noble Lord, Lord Lester, and the noble Baroness, Lady Berridge, and a powerful critique from Mr Tyrie—to civil liberties organisations, the Law Society and nearly all the special advocates. It is now for the legislature to seek to build a consensus around such change as can be justified as being essential to protect the public, for which the evidential bar is necessarily high and in which the rights of the citizen or claimant are adequately protected. In that process, your Lordships’ House is perhaps uniquely well placed to lead the debate.
My Lords, I disagree with the noble Lord, Lord Beecham, about whether his qualifications entitle him to address this House. He is an extremely experienced member of the legal profession who has considerable experience at the heart of the legal profession.
The Bill deals with justice and security. It deals with those two in the opposite order to the title. Although I had the responsibility of introducing the first Bill to Parliament to regulate the security services, I do not propose to get involved in that part of the Bill, but rather in the parts that deal with justice—in particular, Clauses 6 and 13.
I can claim some experience, a long time ago, in the area of public interest immunity. I had the responsibility of informing this House in 1996 that the Government had decided to depart from the old distinction between class cases and content cases in relation to public interest immunity and to concentrate on only one type of public interest immunity: where the specified documents could damage the public interest if disclosed. I am humbled by the remembrance that the junior in one of the cases on public immunity I took before the Appellate Committee of this House has just retired as a member of the Supreme Court. That shows that that was not yesterday.
The doctrine of public interest immunity is a doctrine of substantive law which has a long history and was recognised by Parliament more than once, but particularly in the Crown Proceedings Act. The way the system operates is that the Secretary of State asks for a public interest immunity certificate to be issued in respect of material which would otherwise be disclosed or matters which would be answered orally. He has to decide whether, in his judgment, on the facts of the particular case, those disclosures would damage the public interest.
For a while, it was thought that those certificates should be conclusive, but in a landmark case, Conway v Rimmer, in this jurisdiction, and very much earlier in the northern jurisdiction, it was decided that the certificate would not necessarily be conclusive if the area in question was such as to be central to the determination of the case. The method of dealing with that devised in Conway v Rimmer was that the judge or judges concerned with the case looked at the documents apart from any other party to the case except the person who had responsibility for production and the Secretary of State who had claimed the immunity, so that a degree of secret trial, if you like, has been long established in relation to public interest immunity.
If a public interest immunity certificate was granted in respect of the disclosure of particular information and it was held that it should succeed—in other words, that the balancing exercise of justice to the particular claimant came down in favour of the Secretary of State—that evidence was excluded altogether from the case. That is of itself a type of damage to a completely fair trial, because normally one is entitled to use all the relevant evidence in determining the issues, but a public interest immunity certificate, long established in law, has the effect of completely excluding that evidence, whether it helps or hinders the case of the Government or any other party. So one starts in this area with a system under which a very serious innovation is made to the ordinary rules that in civil cases all relevant evidence is available.
In my view, Clause 6 brings in a new system that is generally available in relation to national security only. It does not bring in any such system in relation to public interest immunity generally. It is only in relation to damage to national security that this arises. The obligations are that when a document is thought by the Secretary of State to be damaging to national security, he can apply to the court in any civil proceedings for a declaration that the case is one in which closed procedure should be allowed. The decision on that point is one for the judge as to whether the disclosure which is required to be made will damage the public interest. A judge of course has a jurisdiction in relation to the nature of the disclosure that has to be made, because it is fundamental to this whole thing that there is an obligation to disclose on the part of what is called the relevant person.
Reference has been made to Mr Andrew Tyrie in the course of the deliberations. I had the privilege of a very full conversation with Mr Andrew Tyrie on the telephone this morning, after receiving a number of communications from him. He rang me up because I had told him in rather brief terms what I was proposing to say about it. I had a full discussion with him, the result of which causes me to emphasise that it is important that the judge in the case has a jurisdiction to decide what has to be disclosed. For example, if it is possible to remove the difficulty by redaction or some other procedure of that kind then the whole difficulty disappears and closed procedure would not be necessary. It is only when there is a residue of material that the judge considers is required to be disclosed and considers that the necessary disclosure would be damaging to national security that this procedure is available. When it is available, it is of course a closed procedure in the sense that it has only the party producing the documents—the Secretary of State—and no other, the other party being represented by a special advocate. The special advocates have made observations about this, which I shall mention in a moment. There is quite elaborate provision for what this procedure is. I want to draw attention to that because it is quite important that we do not lose sight of this matter as it is set out in Clause 7.
Clause 7 contains provisions arising out of the closed procedure and its subsections (3)(a) and (3)(b) are of great importance. I should say that these provisions are to be introduced by rules of court; I will have a word to say about that at the end of my observations. Clause 7(3) says that the court “must be authorised” by rules of court,
“(a) if it considers that the material or anything that is required to be summarised might adversely affect the relevant person’s case or support the case of another party to the proceedings, to direct that the relevant person—
(i) is not to rely on such points in that person’s case, or
(ii) is to make such concessions or take such other steps as the court may specify”.
Now, the court hears this evidence in the absence of the other party, but let us say that the court is satisfied that in the course of this work by government agencies something is wrong. The court could insist that the Government could no longer maintain a case that there was nothing wrong. These are very powerful inferences from the evidence to be heard. They are very much better than the evidence being excluded altogether. I know of one case where, if the evidence had been excluded altogether, the case for the Government might have gone ahead, whereas when it was, in fact, not excluded, the Government’s case collapsed. That is what this allows the court to do, by order. So there are two branches to subsection (3)(a).
Subsection (3)(b) says,
“in any other case, to ensure that the relevant person does not rely on the material or (as the case may be) on that which is required to be summarised”.
The court is therefore able to decide that the person in question—that is, the relevant person with the documentation—does not rely on the evidence which is being heard in the closed procedure.
I have only summarised these provisions. They are a great improvement in the case to which they reply to the present situation, where the relevant evidence is excluded altogether, and no inference one way or the other can be drawn from it. My submission to your Lordships is that this closed procedure is an advantage over the present situation and is subject to a good deal of safeguard in the fact that it is the judge who decides what the disclosures have to be and whether they will in fact damage national security. In my discussions with Andrew Tyrie this morning, he was concerned that I should emphasise these points. I think that he had the impression that they may not have been sufficiently emphasised already.
I turn to Clause 13 and the Norwich Pharmacal jurisdiction which was recognised as an authority in 1974 in a case of that name which went to the House of Lords. It was a simple case in a way. Norwich Pharmacal had a patent and discovered that patented material was being imported into the United Kingdom. It could not find out who the importer was, and thought, “It must come through Customs and Excise, and so Customs and Excise must have a note of who the importers are”. It applied to the Court and to the House of Lords. Lord Reid, a distinguished Scottish judge, Lord Kilbrandon, another distinguished Scottish judge, and others, decided that Customs and Excise should reveal to Norwich Pharmacal the name of the importer, so that it could take the necessary proceedings.
That seems to be a very straightforward principle. The Explanatory Memorandum says that it does not apply in Scotland. I am not sure why that statement was made, but anyway, it does not matter very much, because the cases that are the subject of the Green Paper and the like have all taken place in this jurisdiction.
Clause 13 describes the jurisdiction, I hope, in accordance with what I have just said:
“This section applies where, by way of civil proceedings, a person (‘A’) seeks the disclosure of information by another person (‘B’) on the grounds that … wrongdoing by another person (‘C’) has, or may have, occurred … B was involved with the carrying out of the wrongdoing (whether innocently or not)”—
the Customs and Excise people were concerned at the import of this, that B was not involved in wrongdoing but was merely carrying out their own responsibility—
“and … the disclosure is reasonably necessary to enable redress to be obtained or a defence to be relied on in connection with the wrongdoing”.
It goes on to say:
“A court may not, in exercise of its residual disclosure jurisdiction, order the disclosure of information sought … if the information is sensitive information”.
I agree with the noble Lord, Lord Beecham, that the description of “sensitive information” seems extremely wide, and I have questioned whether it is necessary to have it anything like so wide. Clause 13(3)(a) to (d), as the noble Lord said, relate to various aspects of the Security Services, while (e) is for a specified certificate in which the Secretary of State has to consider that it would be contrary to the public interest for the information to be disclosed because of the interests of national security or—and here is the extra—the interests of the international relations of the UK. We know that it is the relationships particularly with the United States, though not only those, that are the issue here. For my part, subject to anything that my noble friend or others may say, I cannot see why the provision needs to go beyond the certification procedure of Clause 13(3)(e).
I have one other rather technical point. This provision is restricted to the residual disclosure jurisdiction of the courts, which means,
“any jurisdiction to order the disclosure of information which is not specifically conferred as such a jurisdiction by or under an enactment”.
That, I think, is intended to describe the Norwich Pharmacal jurisdiction. I question whether it is effective for that purpose, because the Norwich Pharmacal jurisdiction was established and quite clearly recognised in 1974. In the Supreme Court Act 1981, the Court was specifically empowered to exercise all the powers that it previously had. Norwich Pharmacal is included in that for the Court of Appeal and the High Court. I question whether this is an effective description of the jurisdiction. There is of course provision for judicial review of the certificates, which are regarded as quite important.
My final point is that in Part 2 of Schedule 3, on the closed material procedure, paragraph 3(1) provides that the Lord Chancellor may make the first rules of court himself. For my part, I would prefer that the rules of court were made by the court authorities that make rules of court ordinarily. I gather that the reason for this is possibly that Parliament might like to see a draft of these rules before the Bill is finalised, and that the committees of the court might not be willing to provide such a draft. I would have thought, though, that on the whole it would be wiser if the ordinary procedures for rules of court were used. I entirely trust these methods. Of course I entirely trust the Lord Chancellor, but in this case it would be better to use the established methods.
My Lords, I declare an interest as a practising barrister. Indeed, I think I was involved in the first case in which public interest immunity procedures were developed following the case of Johnson in January 1993. I was then instructed by the CPS and the security services to prosecute a number of letter bombers who had distributed letter bombs to important and prominent people in north Wales.
I welcome the proposed reforms of the Intelligence and Security Committee, subject to the pertinent criticisms that I know my noble friend Lord Macdonald will advance and which we hope will lead to improvements in the provisions. I intend to confine myself to the second part of the Bill, which deals with CMPs. In a criminal trial, the judge does not decide the facts; he does not decide what happened. The jury hears the evidence presented to it, almost always in open court, and it must be both admissible and relevant.
If either the prosecution or the defence questions the admissibility or relevance of any evidence that the other seeks to adduce, there is an argument in the absence of the jury, and the judge gives a ruling. The judge in a criminal trial may be, and usually is, in possession of information, such as the previous convictions of the accused or evidence that he has ruled to be inadmissible or irrelevant, that the jury—the judges of the facts—never hear and which therefore play no part in its decision. The judge may also know of secret matters, which are never released, even to the defence, because the prosecution successfully claims public interest immunity from disclosure. In a criminal trial, the judge carries out a balancing test between the interests of justice and the interests of national security or other public interest. Crucially, in a criminal case the secret material plays no part in the jury’s decision because it does not know about it.
In the vast majority of civil trials, on the other hand, there is no jury. The judge decides the facts, and in applying the law gives a reasoned judgment in favour of one side or the other. Very often he will hear evidence that is prejudicial to one side or another which he deems to be inadmissible or irrelevant, and in these very common circumstances he is trained to ignore such evidence and to put it out of his mind altogether in coming to his conclusions. Invariably, in the course of giving a ruling or a judgment, he will openly and transparently say so.
Part 2 of this Bill is primarily concerned with actions brought by an individual against the state for damages for human rights violations such as torture or other cruel, inhuman or degrading treatment, false imprisonment, illegal renditions, or complicity in such violations in other jurisdictions. This Bill proposes that the judge should hear secret material from one party, the state, which is withheld altogether from the other party, the claimant. In complete distinction from public interest immunity applications, whether in criminal or civil procedures at present, and rulings on inadmissible or irrelevant evidence, the secret material proposed in this Bill is not to be disregarded or put out of the judge’s mind. On the contrary, the state claims that the secret material should play a part, perhaps even a crucial and central part, in the judge’s ultimate decision on the case before him. Your Lordships will appreciate that this is therefore a very considerable step.
There is an obvious unfairness to the claimant, who cannot answer or test any allegations that may be contained in the secret material. In addition, it is against the public interest generally that the state should hide its case behind a cloak of secrecy and therefore potentially hide its misdeeds, or give the appearance that it is so doing.
It is argued, however, that the claimant can be protected through the closed material procedures that have been developed whereby the state brings an individual before the Special Immigration Appeals Commission in immigration and in other naturalisation and extradition matters. I must tell your Lordships that I opposed these procedures in June 1997, at the Second Reading of the SIAC Bill, on the basis that it was a straightforward breach of natural justice that proceedings should be held in the absence of the appellant or of any legal representative who is instructed by him. I questioned whether a special advocate appointed by the Attorney-General would ever be able to take the appellant’s instructions, to have confidentiality with his client, or to have the benefit of legal professional privilege. The model later adopted was that he most certainly would not have those standard requirements of a lawyer, which is repeated in this Bill.
The body of special advocates, security cleared and appointed by the law officers, and now with 15 years’ collective experience of the system in action, have unanimously opposed the extension of CMPs to civil proceedings of this nature. They rejected the argument set out in the Green Paper that:
“A judgment based on the full facts is more likely to secure justice than a judgment based only on a proportion of relevant material”.
It was rejected on the grounds on which the noble and learned Lord, Lord Kerr, in the Supreme Court in al-Rawi rejected it. The noble Lord, Lord Beecham, quoted his judgment, but I will not repeat it.
The noble and learned Lord, Lord Kerr, pointed out that the right to know and the right to challenge the other side’s evidence is essential to the concept of a fair trial. The special advocates said that his reasoning reflected their experience as special advocates operating in existing CMPs. They added this important point:
“Our knowledge of the nature of closed material makes us doubt that most of it could be admissible as truth of its contents in civil proceedings, on an application of established rules of admissibility. Such documentary evidence”,
which they have seen,
“routinely contains information which may be second or third hand, and of which the primary source will usually be unidentified (and may be unknown) … It scarcely seems worth applying CMPs to civil proceedings if the evidence concerned will be largely inadmissible as evidence of the truth of its contents (or to which no weight can be attached)”.
In addition to the argument on principle, there is a practical side to this issue. Ninety-five per cent of civil litigation settles. When the pleadings that set out the issues clearly between the parties have been completed and all the documents have been disclosed, as there is an obligation to disclose all the documents relevant to a case, the lawyers on both sides will assess the risks of the litigation and generally can and do come to a compromise based on their assessment of risk in 95% of civil litigation. Settlement may not give both sides all that they want, but sometimes it arrives at satisfactory solutions that are beyond the scope of the trial judge, who can award only the remedies pleaded in the pleadings. One very relevant example of that is that a confidentiality agreement can be entered into on a settlement.
I am most grateful for that intervention. Perhaps I may add my welcome and that of these Benches to all visitors, whatever they may be, who come to listen to our proceedings.
Settlement in civil proceedings, which generally happens, is threatened by these procedures. It is ironic that the motivation behind this Bill is that the Government dislike settlements. They demand a judgment, so they say, to clear the air and to banish suspicions of nefarious conduct on the part of government agencies. I reject the reputational damage argument advanced by my noble and learned friend Lord Wallace. That is why I interrupted and pointed out that you cannot say that allegations of torture have been answered when the judge delivers a judgment and says, “Well, I find against you but I can’t tell you why”. I cannot imagine what that does to clear the air.
What will the Government do in the pleadings? What will they say their case is? How do they propose to alter the disclosure rules to hold back documents which they are duty bound to disclose? How can the claimant’s lawyers begin to assess risk in order to consider proposals for settlement that may be advanced by the Government, or to make proposals themselves when that lawyer does not know whether or what secret material is before the judge? When the Government’s lawyers go behind the claimant’s back into the judge’s chambers, they are seeking judgment in their favour on their untested allegations against the claimant. What is more, by this means they can keep secret any embarrassments or nefarious conduct of their own. How does the claimant’s lawyer, in practice, advise his client to settle the case? You put settlements out when you adopt a procedure such as that suggested in Part 2 of this Bill. What then should be done?
The experience of the Diplock courts in Northern Ireland provides an acceptable answer. It became impossible, your Lordships will recall, to hold normal jury trials in terrorist cases in that jurisdiction due to intimidation and prejudice arising out of sectarian divisions in the Province. In Diplock trials, the judge sat alone and in criminal cases became the judge of fact as well as of law. He decided what had happened. Accordingly, a separate judge, a disclosure judge, heard applications, for example for the exclusion of inadmissible evidence and applications for public interest immunity. The noble and learned Lord, Lord Kerr, then Lord Chief Justice, in the case of McKeown in the Northern Irish Court of Appeal in 2004 described this different model of procedure in the Diplock system. He said:
“The system of non jury trial, involving as it does the judge as the tribunal of fact as well as the arbiter on legal issues, clearly calls for a different model than that which is suitable for trial by judge and jury … Since it is a non-jury trial, it would be plainly unsuitable for the judge who must decide on the accused’s guilt to see material that might be adverse to him. A ‘disclosure judge’ had to be assigned to examine the subject of the material that should be made available to the defence. The level of intervention by the disclosure judge depended on the nature of the issues that arose on the trial”.
So there, in Northern Ireland, we have experience of where, in criminal matters, the judge was the judge of fact and a separate judge dealt with disclosure and with the sensitive matters of public interest immunity. In my view, it is directly analogous and I shall be putting down amendments to the effect that applications to withhold sensitive material should be made to a designated judge, a disclosure judge, who will be quite separate from the trial judge. The disclosure judge would first of all carry out a public interest immunity exercise so as to identify what material, if any, would assist the claimant’s case or damage the Government’s case. In my view it is an utterly unsatisfactory feature of this Bill that the Secretary of State only has to “consider” whether he should make a PII application before launching into a CMP application. We shall endeavour to ensure that there shall be no CMP application unless it is preceded by a PII hearing. It should be for the court to consider whether the Government’s concerns could be met by the public interest immunity application without recourse to this very much more serious dent in principle of CMP procedures.
The disclosure judge carrying out a public interest immunity application would look at the sensitive material and hear submissions from both sides, including any special advocate appointed for the claimant. He might even, in proscribed circumstances and subject to safeguards, give permission to the special advocate to speak to the claimant. In his ruling on disclosure, the disclosure judge would exclude irrelevant and inadmissible evidence, such as hearsay, opinion and intercept. He could determine what should be disclosed and the form in which the disclosed evidence should be received in open trial before the trial judge who is to decide the facts of the case. He could use redacted documents or precautions to preserve the anonymity of the sources and secret techniques of the security services, and the other precautions that are currently available in PII cases. The point is that the claimant or another interested party, and the public, can be reassured that in the generality of cases, the trial judge—the judge of fact; the judge who produces the final judgment—has not seen anything more in secret from the Government than the claimant has seen and has not been prejudiced thereby. I stress “the public” because public confidence in justice and fairness underpins the whole justice system.
What would happen if the Government were unwilling to disclose secret material that the disclosure judge on a public interest immunity application ordered should be disclosed? In a criminal case at present, the prosecution ordered to disclose something may refuse to do so and may drop the case. In civil cases, as the Government complain, they may decide to settle the case and pay damages to the claimant without admission of liability. It is only in this situation, where the Government still seek to rely on secret material after the public interest immunity application has been heard and the PII possibilities have been explored, that CMP procedures would have any part to play. I concede that in rare and extreme instances, where the interests of justice are overwhelming, the disclosure judge should have the power to convey to the trial judge some fact or circumstance relevant to his determination of the case heard that could not be disclosed to the claimant. Although it is contrary to the principle for which I argue, I can conceive that, sparingly used, such a power would be a safeguard—a safety valve—that should satisfy the Government’s concerns. I bear in mind that matters that the Government wish to conceal might not necessarily be in their interests and might reveal facts that would assist the claimant, even though he does not know about them. I also bear in mind the safeguards in Clause 7(3), to which the noble and learned Lord, Lord Mackay, has spoken.
Your Lordships will be pleased to hear that I do not have time to comment on the Norwich Pharmacal issues, which will be developed by my noble friend Lord Lester. I agree with him and the Joint Committee on Human Rights that it is essential that the jurisdiction of the court should not be ousted in these cases, and that any ministerial certificate should be reviewable—not simply on procedural grounds but on the balance of the public interest.
My Lords, for the benefit of the whole House, and before the noble Lord, Lord Butler, contributes to the debate, noble Lords might find it helpful if I remind them of what the Companion says about speeches in debates where there are no formal time limits. It states that,
“members opening or winding up, from either side, are expected to keep within 20 minutes. Other speakers are expected to keep within 15 minutes. These are only guidelines and, on occasion, a speech of outstanding importance, or a ministerial speech winding up an exceptionally long debate, may exceed these limits”.
My Lords, I shall do my best to comply with the noble Baroness’s exhortation.
The Bill before the House is important, although its purposes are limited. It is also urgent because the Intelligence and Security Committee—I have the honour to be one of its members from your Lordships’ House—has seen direct evidence that uncertainty over the matters covered in Part 2 of the Bill is already affecting co-operation with our intelligence allies on matters of national security. I do not want to exaggerate the effect of that but the House should be aware that our proceedings are being watched with more than usual attention by our allies, particularly our United States allies.
The Bill has been the subject of consultation through a government Green Paper, and that consultation has been valuable. It has not only enabled the provisions of the Bill to be widely understood but caused the Government to modify their original proposals in significant ways. As previous speakers have explained, the Bill essentially has two purposes. One is to modernise parliamentary oversight of the United Kingdom intelligence community. The other is to address the problem which has arisen in relation to the disclosure of intelligence in certain civil proceedings. As one of the two Members of your Lordships’ House in the Intelligence and Security Committee, which otherwise consists of members of another place, it may appear a little self-centred if I deal first with the Bill’s provisions relating to the committee. However, in doing so, I follow the order of the provisions in the Bill.
Like the noble and learned Lord, Lord Mackay, I can claim a certain parental interest in the Intelligence and Security Committee, because as Cabinet Secretary and a counting officer for the secret vote, I was involved in the discussions inside government which led to the establishment of the committee through the Intelligence Services Act 1994.
In the early 1990s, when the main British intelligence agencies—the Security Service, the Secret Intelligence Service and GCHQ—had been publicly avowed, it was recognised that Parliament should have more oversight of the services than the very limited and secret supervision of the agencies which the Public Accounts Committee had previously had. There was a good deal of nervousness within the Government, and particularly within the agencies, about giving parliamentarians access to their work. This was not because the agencies were defensive or embarrassed about their activities. On the contrary, they felt that the scrupulousness with which they carried out their duties could stand up to scrutiny perfectly well. Their anxieties understandably related to the necessary secrecy of their work and about the admission to their secret world of parliamentarians who necessarily conducted their lives in public. So the method of appointment and the range of activities of the committee were very tightly controlled in the 1994 Act. The committee, though comprising Members of Parliament, was appointed by the Prime Minister. The range of supervision of the committee omitted intelligence operations and was confined to expenditure, policy, and administration; and it was restricted to the three agencies rather than to the intelligence community as a whole.
It is greatly to the credit of successive committees and their chairmen, many of whom are Members of your Lordships' House, that the fears of the intelligence agencies have proved unfounded. The members of the committee, admitted within the ring of secrecy, have recognised and observed the obligations of discretion which that access has required. Over the years the intelligence community has developed confidence in the committee as independent friends, sometimes critical but invariably trustworthy and conscious of the importance of the agencies' work.
Consequently, the work of the committee has progressed beyond the confines of the original legislation. It continues to scrutinise expenditure, administration and policy, but it has been useful to the Government as well as to Parliament that it should sometimes look retrospectively at operations, especially when those operations are controversial or there are lessons to be learnt from them. It is sensible that the opportunity should be taken through this Bill to bring the legislation in line with how the committee now operates in practice. However, the tight restrictions on the way the committee was established have one major disadvantage. The fact that the committee is appointed by the Prime Minister and reports to the Prime Minister can, and does, suggest that the committee is the creature of the Prime Minister and the Government. This has on occasion reduced the confidence of the public and Parliament in the committee's independence.
Some restrictions on the committee continue to be necessary. It is right that the committee should be able to report unrestrictedly to the Prime Minister, but the coverage of its published reports needs to be restricted so that secrets are not disclosed. The record of the committee in the 18 years of its existence demonstrates that it can be freed of some of the shackles originally imposed upon it.
It is now time for the committee to come of age and for legislation to catch up with the extensions of coverage and freedom of action which have, in practice, been extended to the committee as confidence in it has grown. In consequence, the committee will become more useful to Parliament and the public as its independence is more manifestly demonstrated.
I turn now to the more controversial provisions of the Bill, which have been the subject of earlier speeches: those relating to closed procedures. It is important to emphasise—it has been clear from the speeches that this is well recognised—that the provisions in the Bill relate only to civil proceedings. In criminal cases, it has always been the case that when material is so sensitive that it cannot be disclosed to the defendant and yet the prosecution cannot proceed without it, the case cannot proceed. Defendants cannot be convicted in criminal cases on the basis of material of which they cannot be made aware and do not have the opportunity to contest. Criminal cases are brought only by the Crown. The Crown is the prosecutor and members of the public are the defendants. The difference in civil cases is that the Crown may be the defendant. The new development in this area is that the events following 9/11 and detention in Guantanamo Bay and elsewhere have given rise to a spate of civil cases against our Government and others. In the case of our own Government, some of those cases can be defended only by the deployment of intelligence belonging either to our country or to other countries. In the case of action against other Governments, application can be made under a procedure known as the Norwich Pharmacal procedure for disclosure of information held by our Government even though there may be no suggestion that our Government were involved in any wrongdoing.
In such cases, there are only three possible courses. One is the disclosure of the intelligence. The second is conceding the action because material necessary to defend it cannot be used. The third is to institute a procedure such as the closed hearings provided for in the Bill. The seriousness of disclosing intelligence, particularly but not only intelligence supplied by allies, cannot be stressed too strongly. The potential breach of the principle that intelligence provided by allied countries must be restricted to our Government and used only for the purposes for which it was given—a principle known as the control principle—would have very serious consequences. It has already had serious consequences in the one case in which it has occurred.
The second alternative of having to assert public interest immunity and perhaps to concede the action because it cannot be effectively defended means, in my submission, that justice cannot be done. The Government may have to concede large sums in settlement in cases in which the use of intelligence might have enabled the Government to defend themselves and, as has been recognised, that has already happened in some cases. I submit that taxpayers are also entitled to justice.
The third alternative is a closed procedure in which special advocates are given access to the information on behalf of their clients and that is proposed in the Bill. The noble Lord, Lord Thomas of Gresford, in his extremely well informed speech, proposed an alternative procedure which may well be worthy of consideration. However, I think we are all agreed that some way must be found of enabling justice to be done, while information essential to national security is protected. We all agree on the importance of protecting such information.
These closed procedures are an exception to the principle that all relevant information should be freely available to all parties in litigation. It should be clearly limited to cases where it is absolutely necessary. It is therefore welcome that the Government have already reduced the scope of their original proposals from sensitive material to material prejudicial to national security. It is also welcome that the judge should be given the final decision on the application of such procedures.
But I have no doubt that, for example, intelligence provided by foreign partners who do not consent to its disclosure, must be protected. If a judge ruled that its disclosure was essential to the resolution of a case, the Government would have to withdraw their defence. But that is better than the Government having to withdraw their defence in all such cases.
No one pretends that closed proceedings are ideal, but they seem to me to be the least worst option in these cases. It may be that we can make improvements in the special advocate procedure along the lines, for example, of the recommendations in the excellent report of your Lordships’ Constitution Committee or those of other countries which, in similar circumstances, have introduced closed proceedings legislation. But a procedure on these lines is preferable to the public interest immunity procedure in the United States where Binyam Mohamed was unable to bring any action at all because the Government asserted state secrets privilege.
There are aspects of the Bill with which the Intelligence and Security Committee is not yet fully satisfied and which will need clarification and perhaps amendment as the Bill proceeds. But I think that I speak on behalf of my colleagues on the committee when I say that we welcome the general thrust of the Bill and agree with the importance and urgency that the Government attach to it.
My Lords, it is with pleasure that I follow the noble Lord, Lord Butler of Brockwell—with whom I have the honour to serve on the Intelligence and Security Committee—not least because, after his comprehensive speech, I can keep my own comments relatively brief. I will try not to cover the same ground as he has, although that may not be possible in all instances.
I was first appointed to the ISC when I was a Member of the other place in January 2006. I am therefore reasonably well aware of the current weaknesses of the committee as well as its undoubted strengths—many of which, by the nature of the committee, by necessity go unsung.
The committee has long been criticised for lacking independence, mainly because it is appointed by and reports primarily to the Prime Minister. In fact, all my colleagues on the committee take our independence very seriously. Looking round the House I see others who have served on the committee. I am sure that they, too, would emphasise that they saw their independence as an important part of their function. However, that is not the public perception—and as they used to say to me in Northern Ireland, “It’s the perception that matters”. This Bill therefore provides that the committee will in future be appointed by Parliament on the nomination of the Prime Minister, after due consultation with the Leader of the Opposition, and will in future publish its main reports direct to Parliament.
Whereas in the past the committee could only request information from the intelligence agencies, in future it will be able to require it and will have enhanced resources with which to obtain it. The committee will also be able to exercise retrospective oversight of the operational activities of the agencies on matters of significant national interest. It has in practice done so for many years past but will now do so on a much wider scale, more regularly and within a legislative framework.
At a time when oversight of the agencies becomes increasingly important, this Bill will enable the ISC to perform its task more effectively on Parliament’s and the public's behalf. From being a committee of parliamentarians appointed by the Prime Minister, it will now become effectively—in practice if not in name—a committee of Parliament. There are some details to which I will return at later stages of the legislative process, but by and large the first part of the Bill is a substantial move in the right direction.
The second part of the Bill, on closed material procedures in civil actions, is indeed more contentious. Anything that seeks on the face of it—and once again, perceptions matter—to offend against the principles of open justice is bound to give rise to concern, not least in the media. However, I believe that the Bill, if it is studied carefully, meets nearly all those concerns. The Minister dealt with much of this, and indeed my noble and learned friend Lord Mackay of Clashfern—at whose feet I sat many years ago as a very junior member of the Scottish Bar—gave us a full explanation and justification of the procedure and the ways in which it will be used.
I therefore just want to make a number of general points. My first is that the use of the procedure refers only to where disclosure of the material in question would be damaging to national security—and I emphasise the words “national security”. Those two words are vital because they are rightly far more restrictive than the original proposal in the Green Paper of damage to the “public interest”. The test of the level of sensitivity that could damage national security must be a narrow one. I too have some doubts as to whether the Bill has created a sufficiently narrow definition. We cannot have a situation where intelligence information is excluded because it was marked “secret” and could embarrass the Government or the intelligence agencies. It has to be shown that it risks the security of this country and its citizens. Secondly, it is important in this respect that it is a judge and not a Minister who will ultimately determine whether the procedure should be used.
There are two such categories of intelligence information which it covers. First, there is the United Kingdom intelligence material, disclosure of which could endanger and undermine our intelligence officers and the vital work that they carry out on our behalf. I hope that we would all agree that that particular definition meets the test of sensitivity. Secondly, there is foreign intelligence material shared with us on the strict understanding of confidentiality—the so-called control principle to which the noble Lord, Lord Butler, referred. Such intelligence, which is essential to us in meeting the threat of international terrorism, does not belong to us; it belongs to those who share it with us. We have no right to disclose it without their consent. This principle is sacrosanct, and it works both ways.
There are those who still question whether breach of the principle would really have serious repercussions in terms of intelligence sharing in the future. I say as categorically as I can that I am in no doubt of this. The noble Lord, Lord Butler, and I have talked to people in the intelligence agencies in the United States and elsewhere and what they have said to me leaves me in no doubt that that would be the case. The truth is that we need their intelligence, and anything that puts that at risk puts at risk our national security and that of our citizens too. Therefore I welcome the changes to the Norwich Pharmacal principle envisaged in the Bill.
My other point is that the CMP is the procedure most likely in the circumstances to achieve justice while protecting—necessarily protecting—the information in question. At present, where such genuinely sensitive material is at issue, there are effectively two options for protecting it. The first is to withdraw the defence, however sound that defence may be, and face massive compensation claims—which, as the noble Lord, Lord Butler, made clear, are met in the end by the taxpayer. The second is to apply for public interest immunity certificates which prevent, as the noble and learned Lord, Lord Mackay of Clashfern, said, the material being seen or heard at all in that it will be totally excluded from the legal proceedings. In my view—as someone, I have to say, who has not practised the law for a very long time—neither of those options is conducive to justice. At least the closed material procedure means that the judge and the special advocates can see and question the material, and in the judge’s mind it can then form part of his or her judgment.
I want to make one other point. National security is not just about the general safety of our nation—which of course is paramount—it is also about protecting the lives of innocent citizens threatened by terrorism. Frequently that protection is achieved through secret intelligence from both home and abroad, intelligence which must be protected; and therefore sometimes the price of that protection is a curtailment of long-standing rights. I have long believed that the freedom of the individual, enshrined within these rights, is paramount. However, the greatest of these rights is the right to life itself. Protecting life from existential threat must be the priority, even at the cost of some restriction on other rights. I have seen for myself the carnage of terrorist outrages. No rights can take precedence over the means that can prevent them. In the end it is a question of a delicate balance, and in my view, this Bill gets it just about right.
My Lords, it is a particular pleasure to follow such distinguished members of the current ISC as the two noble Lords who have spoken before me in this debate. The ISC is a committee on which I have twice had the pleasure of serving in the past. I welcome the Bill which, although not long, deals with rather a large number of important issues that have been in need of being addressed for some time. At later stages I will consider whether amendments might be desirable, but at this Second Reading, I would just like to seek assurances from the Government on some points.
Part 1 of the Bill, on the oversight of intelligence and security activities, deals almost wholly with the Intelligence and Security Committee. The ISC came into being through the Intelligence Services Act 1994 for which the then Prime Minister, John Major, deserves considerable credit. Although the intelligence community had long desired such a development—especially the SIS, which until then was not officially avowed—previous Governments had been reluctant to go down that route. The excellent work of the ISC since its inception has demonstrated the correctness of Prime Minister Major’s decision at the time.
Nearly all the proposals, as far as I can see, regularise what in fact has come to be the practice of the ISC, as the noble Lord, Lord Butler, indicated. For example, it looks at intelligence activities outwith the three main agencies and examines in retrospect operations of particularly significant national interest. I would just comment here that there has been a feeling for some time that, as a Joint Committee, consideration should be given to increasing the number of members from your Lordships’ House on the ISC. It should be acknowledged here that the present Government have increased that representation from one to two members, but I think a further increase should be considered.
However, there is one point in the Bill on which I would urge caution and seek reassurance; that is, that the ISC should have powers to require information from the agencies subject to a veto from the Secretary of State rather than, as now, the head of an agency. As a general comment, I would advise the Government to be careful of eroding the authority of the heads of the agencies. I was concerned to discover that there had been changes in recent years in the writing of annual confidential reports on the three agency heads, so that where the Secretary of State had featured in the past, the first National Security Adviser was considered to be the “line manager” of the three agency heads. I understand that there has been a change with the change of National Security Adviser. I must make clear here that I have absolutely no idea what the three agency heads felt or feel about this, but that is not the point. This has nothing to do with personalities or personal feelings; to my mind, it is a matter of constitutional propriety.
I do not consider it appropriate that the three heads of agencies should be simply slotted into senior Civil Service rankings. In a democracy, it is essential that the security and intelligence services should be independent, answering to a Secretary of State and directly to the Prime Minister. Of course, in practice it will probably make little difference to refer to a Secretary of State for release of refused information, because it would be a very brave—in the Sir Humphrey usage of that word—Secretary of State who would overrule a director-general of the Security Service, a chief of SIS or a director of GCHQ on the wisdom of releasing sensitive material, and of course much fuller detailed reasoning can be given to Secretaries of State about the sensitivity of sources than can be revealed to the ISC.
However, I urge the Government to proceed with great caution here. Of course the agencies have to be accountable but their independence is crucial. That independence has to be from political or—dare I say it?—Civil Service operational interference. I would appreciate hearing the Minister’s comments on this point and would like to be reassured that there is no slippage about safeguarding the operational independence of the agencies.
Part 2 of the Bill, which deals with the disclosure of sensitive material in courts, is of course long overdue but the delay has been caused by having to wrestle with some hugely difficult problems of how to use sensitive intelligence material in our legal system without taking unacceptable risks of damaging sources, both human and technical. This set of proposals seems to tackle these problems rather well. I would just like to make two comments from my own past professional experience—one of revealing information from a liaison service and the other on the use of intercept material as evidence. Both these issues are much more complex, sensitive and difficult than they appear at first glance or to the uninitiated. I have spoken before in this House at some length on both of them, and today at Second Reading I will be very brief.
On the first point, it is a rule—in my day it was called the “third party rule”—engraved on the heart of every intelligence officer, however junior or senior, that material from any liaison service cannot and must not ever be passed on or revealed to a third party without the express permission of the originator. If that rule is violated, the intelligence flow is endangered. We, the British, would enforce this rule absolutely on our own material, so it is to be expected that liaison services would do the same to us, which in some cases would result in very serious adverse consequences and loss of intelligence, as the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian, have made very clear in their speeches today.
Secondly, the question of using intercept as evidence has occupied this House at great length on many occasions over the years, as well as the whole of Whitehall, and I will not rehearse the detailed arguments again here. In spite of the ardent desire of successive Secretaries of State and law officers to achieve this, and the best legal brains in Whitehall wrestling with it, no solution has been found—perhaps until now. It has never been a question of principle but rather one of sheer practicality. A team of distinguished privy counsellors produced a report after lengthy consideration of all the evidence, and an implementation unit was set up in the Home Office to test various possible solutions in conjunction with the privy counsellors, one of whom was my much admired and now sadly missed noble and learned friend Lord Archer of Sandwell. How does all this relate to Clause 6(3)(b) of the Bill, which states that the court must ignore Section 17(1) of the Regulation of Investigatory Powers Act 2000, which deals with the exclusion of intercept material?
I would be grateful if the Minister could elucidate and explain how the Bill’s provisions satisfy the requirements of the report of the privy counsellors. I hope that I can be reassured on this and the other points I have raised. On receiving such assurances, I would very happily support this Bill.
My Lords, the Joint Committee on Human Rights is obtaining evidence about this Bill. We intend to report to Parliament before Report stage and to table amendments in the mean time. It is a highly controversial Bill and we welcome the Minister’s assurance that there will be sufficient time to scrutinise and improve it during its passage in this House. Like the noble Lord, Lord Beecham, whose speech I found particularly impressive, I think we should strive across the House to achieve consensus where we can.
There are welcome ways, identified by the Minister and others, in which the Bill improves on the overly-broad proposals in the Green Paper, in accordance with the recommendations of the JCHR and others. However, the Government have not accepted our criticisms or recommendations, or those of the independent reviewer of terrorism legislation, the special advocates and civil society, about the lack of sufficient judicial control of the closed material procedure, the judicial balancing role of public interest immunity, as described by the noble and learned Lord, Lord Mackay of Clashfern, and the use of the Norwich Pharmacal disclosure jurisdiction post the Binyam Mohamed decision of the Court of Appeal. I regret to say that the Bill betrays an unjustified lack of confidence in our fine system of civil justice and the capacity of our courts to protect state secrets.
The Select Committee on the Constitution has published its very significant report on the Bill, rightly noting that exceptions to the constitutional principles of open justice and natural justice should be accepted only where demonstrated on the basis of clear evidence to be necessary. The JCHR considers that the Government have not demonstrated by reference to evidence that the fairness concern on which they rely is in fact a real and practical problem.
That said, I must now plead guilty. It is to some extent because of my role at the Bar that the closed material procedure was first introduced. It happened as a result of litigation in both European courts. In the first example, Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary, a Minister had certified that national security prevented part-time reservists in the RUC having the merits of their sex discrimination cases heard at all in Northern Ireland. I had to go through Luxembourg for them to get that conclusive ministerial certificate set aside so that we were able to hold a merits hearing before a tribunal in Northern Ireland, partly in camera, and I am glad to say that the women won.
The second example is the Tinnelly and McElduff cases, where Northern Irish complainants said they had been black-balled from getting government contracts because of their religion, and the Government said otherwise. Again, the puzzle was how to do justice to them when the Government said there were national security considerations affecting their cases. I plead guilty to having suggested, as had many NGOs, that the answer was a closed material procedure. That is what was developed in SIAC. I do not, therefore, start off with a root-and-branch opposition to the closed material procedure. Where properly controlled, it is in my view a proper compromise.
The Constitution Committee rightly decided that the scheme contains three basic flaws. I agree with that but I am not going to talk about it, because the committee did not look at Norwich Pharmacal. I am simply going to concentrate the remainder of my remarks on the ouster in Clause 13. This refers to the court’s ability to order the disclosure of any information held by or originating from the intelligence services in civil proceedings where the claimant alleges that wrongdoing by someone else has, or may have, occurred; that our intelligence services were involved in the carrying out of wrongdoing, innocently or not; and that the disclosure is reasonably necessary to enable redress to be obtained or a defence to be relied on in connection with the wrongdoing.
As it stands, Clause 13 would deprive the courts of the ability to make such an order in any circumstance. It is a complete and absolute ouster clause. What would this mean in practice? I will illustrate this in the real world. Shaker Aamer is a Saudi Arabian citizen and the last remaining former British resident detained in Guantanamo. Following his capture in Afghanistan in December 2001, he was detained by US military authorities in Afghanistan, and since February 2002, in Guantanamo. Despite repeated requests by the United Kingdom Government, he has still not been released from Guantanamo.
Shaker Aamer maintains that, during his detention by the US military authorities, he has been subjected to torture and cruel, inhuman and degrading treatment. In English proceedings, he sought disclosure of material alleged to be in the Foreign Secretary’s possession supporting his case before the Guantanamo review task force that any confessions that he may have made during his detention were induced by torture or ill-treatment. The basis of his application is the Norwich Pharmacal jurisdiction, as developed in the Binyam Mohamed case.
The Divisional Court gave judgment on 15 December 2009 granting his application subject to hearing further argument on statutory prohibitions and public interest immunity. The judgment records his allegations of ill-treatment during his detention at Bagram air force base, where his interrogators included a member of the UK Security Service, and his interrogation at Kandahar air force base by two members of the UK Security Service. The Divisional Court held that, to the extent that the information held by the Secretary of State supported that claim, it was essential to the presentation of the claimant’s case before the task force. Without the information sought, and without the ability to make submissions on the basis of that information, the claimant’s case could not be fairly considered by the task force of the review panel.
The current Norwich Pharmacal cases are also those of Omar and Njoroge, both of which are death-penalty cases pending in Uganda. Their substantive claims have been heard in the Divisional Court and judgment is still awaited. Both men claim that the Foreign Secretary holds information, in the possession of the intelligence service, that will prove that they were rendered and tortured and that this was part of a plan. I shall not say any more about those cases because they are pending, but those men are on trial for their lives in Uganda.
If the powers of our courts to order disclosure in those cases in the interests of justice are abrogated by Clause 13, these men and other alleged victims of torture and serious ill-treatment who are on trial for their lives, and their security-cleared lawyers if they have them, will be denied access to crucial information. It is not appropriate to describe cases of this kind as “legal tourism”. They have real and close connections with this country and British intelligence actions here and overseas, and they are properly brought in British courts, just as they could be in other common law countries, including the United States, and civil law countries. Given that it has been suggested that this is some novel English jurisdiction, I have summarised the comparative position on a website, www.odysseus trust.org, where one can find the comparative position across the common law world, the civil law world and the United States.
The motivation driving the Bill is the political need to reassure the United States Government and the CIA, and our own intelligence services, that sensitive information imparted in confidence will remain secret. The working relationships between the intelligence services of the UK and the US are subject to an understanding of confidentiality described as the control principle, which is very important.
In the landmark judgment in Binyam Mohamed, the Lord Chief Justice, the noble and learned Lord, Lord Judge, referred to,
“the painstaking care with which the Divisional Court addressed the public interest arguments advanced by the Foreign Secretary. The approach of the Divisional Court ... represented an exemplary model of judicial patience … If for any reason the court is required to address the question whether the control principle, as understood by the intelligence services, should be disapplied, the decision depends on well understood PII principles. As the executive, not the judiciary, is responsible for national security and public protection and safety from terrorist activity, the judiciary defers to it on these issues, unless it is acting unlawfully, or in the context of litigation the court concludes that the claim by the executive for public interest immunity is not justified. Self evidently that is not a decision to be taken lightly”.
I know of no case in which a British court has failed to respect the intelligence relationship between the UK and United States or the need to protect state secrets and national security, including the case of Binyam Mohamed, where the only information ever revealed by a court was information revealed by Judge Kessler in the district court for the District of Columbia in a federal habeas corpus case. When my friend, the noble Lord, Lord Butler, refers to the damage done by that case, he may not appreciate that the only information ever revealed was public and had been revealed in the United States by the federal district court. That, in truncated form, was all that was ever revealed.
My Lords, I am well aware of that, but the fact is that that was a breach of the control principle. I assure the noble Lord that the United States authorities regarded that as a breach of a sacrosanct understanding between them and the United Kingdom.
Yes, surely, just as the previous Government thought that even though in Spycatcher, information had been available throughout the United States, it should be stopped in this country. I do not question the sincerity of the belief, simply its rationality.
I hope that the Minister will be able to confirm in winding up this debate that he agrees with the assessment that the British courts have invariably protected state secrets from harmful public disclosure. It is important that that be on public record for the benefit of our American cousins. The Lord Chief Justice also noted in Binyam Mohamed that it had been accepted by and on behalf of the Foreign Secretary, the right honourable David Miliband, in the litigation that,
“in our country, which is governed by the rule of law, upheld by an independent judiciary, the confidentiality principle is indeed subject to the clear limitation that the Government and the intelligence services can never provide the country which provides intelligence with an unconditional guarantee that the confidentiality principle will never be set aside if the courts conclude that the interests of justice make it necessary and appropriate to do so. The acknowledgement”—
that is, by the right honourable David Miliband—
“that the control principle is qualified in this way is plainly correct, and it appears to be accepted that the same limitation on the control principle would apply in the USA. Presumably therefore our intelligence services accept that although the control principle applies to any information which they disclose to their colleagues in the USA, the ultimate decision on disclosure would depend on the courts in the USA, and not the intelligence services, or for that matter the executive”.
Indeed, in his first PII certificate, the right honourable David Miliband MP fairly recognised that he,
“may well have been inclined to reach a different conclusion on the balance of the public interest were the US authorities not to have made the commitments to make the documents available”
to Mr Mohamed’s US counsel. In other words, the previous Government rightly recognised that the control principle was not absolute. Clause 13 would reverse that.
The Government’s briefing describes the Binyam Mohamed case as controversial. It certainly is, and that remains the view of our ally. Even though the previous British Government sought to provide information about his torture and ill-treatment to security-cleared lawyers so that he could have a fair trial for offences carrying the death penalty, the US Government refused to do so. Even after the federal court had published the information in detail, the British Government persisted in seeking to persuade the English Court of Appeal not to publish for fear of offending our American allies who, according to the Government, have lost confidence in our ability to protect their intelligence, and as a result have put measures in place to regulate or restrict our intelligence exchanges. President Obama deserves better informed advice about our courts. The American Supreme Court has itself said:
“Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers”.
Finally, in his evidence in the Binyam Mohamed case, Morton Halperin, a senior expert on security issues, gave extensive evidence explaining how both Governments understand that in both countries the right to order the disclosure of information has to be in accordance with law and subject to the judiciary. Surely the US Government understand our parliamentary system of government under the rule of law by the independent judiciary and would accept a decision by our Parliament that the absolute ouster of the courts’ jurisdiction in Clause 13 is disproportionate and unfair. My noble and learned friend the Minister said that Clause 13 will not affect convention rights, but the Government’s handout on the human rights memorandum says that there are no convention rights that would obtain so that is not an appropriate safeguard. I very much hope that limitations can be written in to ensure that Clause 13 will no longer continue as an absolute ouster clause.
My Lords, your Lordships’ Constitution Committee, of which I am a member, has published a report which emphasises the constitutional significance of Part 2 of the Bill. The closed material procedure would create broad exceptions to two vital principles of our law: the principle of open justice, that evidence must be given in public; and the principle of natural justice, that each of the disputing parties must have the opportunity to respond to the evidence on which the other relies.
These departures from fundamental constitutional principles arise in the context of the point made in the Supreme Court last year by the noble and learned Lord, Lord Kerr of Tonaghmore, which the noble Lord, Lord Beecham, has already quoted:
“Evidence which has been insulated from challenge may positively mislead”.
These constitutional principles are not sacrosanct—I entirely accept the point made by the noble Marquess, Lord Lothian—but there are two central questions which the House will wish to consider in Committee and on Report. The first is whether the Government can show that the CMP provisions are truly necessary, so as to justify the breach of fundamental principles. The second question is whether the detailed provisions in the Bill allow for a fair balance between competing interests. I was very pleased that, in opening this debate, the noble and learned Lord the Lord Advocate said that he recognised that the Government were aiming for a fair balance between competing interests: security on the one hand and liberty on the other.
As your Lordships have already heard this afternoon, the courts have very long experience in seeking to ensure the confidentiality of information the publication of which would damage the public interest, whether it is national security or any other interest. The law on public interest immunity—PII—has been developed for that purpose. I declare an interest as a practising barrister who has appeared in cases concerned with PII. As the report of your Lordships’ Constitution Committee explains, the Minister produces a certificate and explains that items of relevant evidence cannot be disclosed to the other parties because of national security or some other public interest consideration. The judge then makes an assessment of whether disclosure would harm the public interest and, if so, the judge weighs such harm against the interests of administration of justice and the need to disclose the documents. Because the task of the judge is to balance competing interests, the judge vitally considers whether there are means of preserving confidentiality other than excluding the material from disclosure and other than saying that the evidence cannot be adduced at trial. For example, the court may sit in private. The court may say that there is to be no publication of the names of witnesses such as serving security agents. Disclosure may be restricted to named legal representatives. Most important of all, the judge may decide that the material can be disclosed but only in a redacted form, and that the court will have regard to the redacted form of the material which is seen by all the parties in the case.
The courts have been applying these principles and developing them in PII cases since the decision of the Appellate Committee in Conway v Rimmer in 1968, and indeed before then in Scotland, as the noble and learned Lord the Lord Advocate mentioned—or perhaps it was the noble and learned Lord, Lord Mackay of Clashfern, although both of them have knowledge. I accept, of course, that in some respects the law in Scotland leads the law in England, and this is one of them.
The point is this, and I say it with genuine respect for the noble and learned Lord the Lord Advocate. He wrongly presents PII as a mechanism which, when it applies, necessarily means that the material is excluded from the trial. It is on that premise—a wrong premise, with respect—that he suggests that a CMP is preferable because it will not reduce the amount of information which the other party will receive and it enables the judge to have more information available. The reality, as I have sought to indicate, is that the court has an ability applying PII to devise means by which security and fairness can be reconciled by the use of the mechanisms that I have mentioned. The provisions of this Bill are a long, long way from striking a fair balance between security and liberty or between security and the fair administration of justice, which is the goal stated by the noble and learned Lord the Lord Advocate.
Clause 6(2) obliges the judge to order closed proceedings in relation to material if the judge is persuaded that disclosure of that material would be damaging to the interests of national security. The judge is obliged to order a closed material procedure even if the judge thinks that the case could and should be fairly tried under PII rules and so there is no need for a closed material procedure. The judge may come to that view, if he were allowed to do so, because there are other means of protecting the confidentiality of the material, such as redacting the truly confidential part of it; or perhaps because the material that we are concerned about is of very limited significance in the proceedings, as the judge can see; or because the damage to the public interest by the disclosure of this material might be found by the judge to be absolutely minimal and the damage to the fairness of the proceedings by denying the other party access to it might be substantial.
I suggest that it is quite extraordinary that none of this fair balance is included and that Clause 6(3) requires the judge, when deciding whether to order a closed material procedure, to ignore the possibility of resolving the issues through a public interest immunity certificate. How can that be said to be sensible and proportionate—again, the criteria stated by the noble and learned Lord the Lord Advocate in opening the debate today? If, as I doubt, CMPs are required at all, given the availability of a flexible public interest immunity procedure, the judge surely must have a discretion over whether to impose a CMP, which discretion the judge should exercise only if that is the best available means of securing fairness in the light of confidentiality concerns and having regard to the availability of public interest immunity.
I am also concerned about Clauses 13 and 14—that is, the Norwich Pharmacal provisions. I agree with everything that has been said on that subject by the noble Lord, Lord Lester of Herne Hill. Let us be clear what this involves: those clauses would remove the jurisdiction of our courts to order the disclosure of information to an individual who has a properly arguable case that the representatives of this country are involved in wrongdoing. As pointed out in the powerful memorandum from 50 of the special advocates, these cases may involve the gravest of allegations of wrongdoing —allegations of torture or death abroad in which the authorities in this country are said to be implicated. Surely, in such a context, the House will want to be very careful indeed to ensure that any restrictions on the disclosure of information are strictly necessary.
The Bill would prevent the disclosure of any “sensitive information”—an unjustifiably broad concept, as pointed out today by the noble and learned Lord, Lord Mackay of Clashfern. Disclosure of most of the specified categories of sensitive information under the Bill would be prevented, whether or not it would harm the public interest. The judge makes no such assessment, nor an assessment of whether there is a balance between any harm to the public interest and the detriment to the individual, or indeed the detriment to the public interest by the concealment of this information. Again, I ask the Minister how that can satisfy the attractive criterion that he stated when he opened this debate:
“protecting the public should not come at the expense of our freedoms”.
Why are these provisions being brought forward? It is primarily because of the experience in the Binyam Mohamed case in 2010. The Government’s concern, which I understand, is that the courts should not require the disclosure of information supplied in confidence to the security services of this country by the security services of our allies. There are two points here. The first is that the provisions that we will be debating in Committee, Clauses 13 and 14, are not confined to information supplied in confidence by a foreign intelligence service when disclosure would damage our relations with that service. The second and perhaps more fundamental point is that there is absolutely no material—the noble Lord, Lord Lester, made this point—to suggest that courts allow or order the disclosure of confidential information that has been supplied to the security services of this country by our allies. The courts have a record of recognising, rightly, the vital importance of protecting national security and the sources of information that go towards it.
It is vital to recollect that in the Binyam Mohamed case the Court of Appeal, the final court that heard the matter, made it clear that the only reason why it was ordering publication of the relevant information was that that very information had already been publicly disclosed by reason of an order made by a court in the United States. The three judges in the Court of Appeal—Lord Judge, the Lord Chief Justice; Lord Neuberger, the Master of the Rolls; and Sir Anthony May, the president of the Queen’s Bench Division—stated expressly that they would not have ordered publication in defiance of the statement made by the United States authorities that disclosure of the information would damage national security there and a statement by Ministers here that disclosure would damage our national security because of the need to maintain a relationship of trust with the United States, even though the court was highly sceptical of those claims, but for the fact that that very material had been published by reason of a court order in the United States. If this is the basis of the concern of the security services, which presumably are responsible for asking the Government to bring forward these measures, they simply have not learnt the basic lessons from the Spycatcher case.
The Minister sought to assure and reassure the House that Clauses 13 and 14 would not prevent claims by litigants who allege that they have been the victims of serious wrongdoing. What he ignores for that purpose, though, is that without the disclosure of the information such claims cannot in practice be pursued. That is precisely why in 1973 the Appellate Committee created the Norwich Pharmacal jurisdiction that is the subject of Clauses 13 and 14.
On the case made so far by the Government, the provisions of Part 2 of the Bill regarding both CMPs and Norwich Pharmacal orders are, I suggest, unnecessary and unfair, and will undoubtedly damage the ability of the courts to give judgments that are fair and are seen to be fair.
Before the noble Lord sits down, he has referred several times to my noble and learned friend as the Lord Advocate. The Lord Advocate is now an officer in Scotland; my noble and learned friend is the Advocate-General. I understand perfectly what the noble Lord said, but I just wanted to get it right for the record.
Civil Service Reform
My Lords, with the leave of the House, I will repeat a Statement on the Civil Service.
“The British Civil Service plays a crucial role in modern British life. It is there to implement the policies of the Government of the day, whatever their political complexion, and its permanence and political impartiality enables exceptionally rapid transitions between Governments.
Most civil servants are dedicated and hard-working, with a deep-seated public service ethos, but like all organisations, the Civil Service needs continuous improvement. I want today to set out the first stage in a programme of practical actions for reform.
In 2010 we inherited one of the largest budget deficits in the developed world, and, despite success in improving Britain’s financial standing, we still face significant financial and economic challenges, as well as rapid and continuing social, technological and demographic changes. The Government have embarked upon a programme of radical reform of public services to improve quality and responsiveness for users and value for the taxpayer.
In order to succeed we need a Civil Service that is faster, more flexible, more innovative and more accountable. Our Civil Service is smaller today than at any time since the Second World War, and this has highlighted where there are weaknesses and strengthened the need to tackle them.
We need to build capabilities and skills where they are missing. We need to embrace new ways of delivering services. We need to be digital by default. We need to tie policy and implementation seamlessly together. We need greater accountability, and to require much better data and management information to drive decisions more closely. We need to transform performance management and career development.
Today Sir Bob Kerslake, the head of the Civil Service, and I are publishing a Civil Service reform plan, which clearly sets out a series of specific, practical actions to address long-standing weaknesses and build on existing strengths. Taken together, and properly implemented, these actions will deliver real change. They should be seen as the first step on a programme of continuing reform for the Civil Service.
This is not an attack on the Civil Service, and nor have civil servants been rigidly resistant to change. The demand for change does not come just from the public and from Ministers but from civil servants themselves, many of whom are deeply frustrated by a culture that is overly bureaucratic, hierarchical and focused on process rather than outcomes. This was revealed in the responses to our ‘Tell us How’ website, which aims to get fresh ideas from staff about how they could do their jobs better. Civil servants bemoaned a risk-averse culture, rampant gradism and poor performance management.
This action plan is based heavily on feedback from civil servants, drawing on what frustrates and motivates them, while many of the most substantive ideas in this paper have come out of work led by Permanent Secretaries themselves. Reform of the Civil Service never works if it feels like it is being imposed on civil servants by Ministers, and neither would it succeed if the Civil Service was simply left to reform itself. Because we want this to be change that lasts, we have discussed these proposals widely, including with former Ministers in the last Government to draw on their experiences and ideas.
The Civil Service of the future will be smaller, pacier, flatter, more digital, more accountable for effective implementation, more capable, and more unified, consistent and corporate. It must also be more satisfying to work for. These actions, therefore, must help to achieve this.
Under published plans, the Civil Service will shrink from around 500,000 to around 380,000 by 2015. It is already the smallest since World War II. Sharing services between departments will become the norm. This has been discussed for years—it is now time to make it happen.
Productivity also needs to improve. For too long, public sector productivity was at best static, while in the private services sector it improved by nearly 30%. Consumer expectations are rising, and there is, as we have been told, no money. The public increasingly expect to be able to access services quickly and conveniently, at times and in ways that suit them.
We are conducting a review with departments to decide which transactional and operational services can be delivered through alternative models. Services that can be delivered online should be delivered only online. Digital by default will become a reality, not just a buzz phrase.
We should no longer be the prisoner of the old binary choice between monolithic in-house provision and full-scale privatisation. We are now pursuing new models: joint ventures, employee-owned mutuals, and new partnerships with the private sector. MyCSP, which manages the Civil Service Pension Scheme, became the first joint venture mutual to spin out of government recently, and provides a model for future reforms.
The Civil Service culture can be slow-moving, hierarchical and focused on process rather than outcomes. Changing this would be very hard in any organisation. We can make a start by cutting the number of management layers. There should only exceptionally be more than eight layers between the top and the front line, and frequently many fewer. This helps to speed up decisions and empower those at more junior levels. Better performance management needs to change the emphasis in appraisals emphatically towards delivery outcomes, and to reward sensible initiative and innovation. We also need to sharpen accountability, which is closely linked to more effective delivery.
Management information in government is poor, as the NAO and the PAC, the Institute for Government and departmental non-executive board members have all vigorously pointed out. By October this year, therefore, we will put in place a robust and consistent cross-governmental management information system that will enable departments to be held to account by their boards, Parliament, the public and the centre of government.
We will make clearer the responsibilities of accounting officers for delivering major projects and programmes, including the expectation that former accounting officers can be called back to give evidence to the Public Accounts Committee.
The current arrangements, whereby Ministers answer to Parliament for the performance of their departments and for the implementation of their policy priorities, will not change. However, given this direct accountability to Parliament, we believe that Ministers should have a stronger role in the recruitment of a Permanent Secretary.
We will therefore consult the Civil Service Commission on how the role of the Secretary of State can be strengthened in the recruitment process of Permanent Secretaries. The current system allows the selection panel to submit only a single name to the Secretary of State. At other levels, appointments will normally be made from within the permanent Civil Service or by open recruitment. However, as now, where the expertise does not exist in the department, and it is not practicable to run a full open competition, we are making it clear that Ministers can ask their Permanent Secretaries to appoint a very limited number of senior officials for specified and time-limited executive and management roles.
By common agreement both inside and outside the Civil Service, there are some serious deficiencies in capability. Staff consistently say in surveys that their managers are not strong enough in leading and managing change. In future many more civil servants will need commercial and contracting skills as services move further towards the commissioning model. While finance departments have significantly improved their capabilities, many more civil servants need a higher level of financial knowledge. As set out elsewhere in the plan, the Civil Service needs to improve its policy skills, and to fill the serious gaps in digital and project management capability.
By autumn we will have for the first time a cross-Civil Service capabilities plan that identifies what skills are missing and how gaps will be filled. For the first time, therefore, leadership and potential leadership talent will be developed and deployed corporately.
In 1968, the Fulton commission identified that policy skills were consistently rated more highly than skills in operational delivery. This is still the case today. We will establish the expectation that Permanent Secretaries appointed to the five main delivery departments will have had at least two years’ experience in a commercial or operational role. We will move over time towards a more equal balance between those departmental Permanent Secretaries who have had a career primarily in operational management and those whose career has been primarily in policy advice and development.
A frequent complaint of civil servants themselves concerns performance management. They feel that exceptional performance is too often ignored and poor performance is not rigorously addressed. In the future, performance management will be strengthened by a Senior Civil Service appraisal system that identifies the top 25% and the bottom 10%, who will need to show real improvement if they are to remain in the service. Departments are already introducing similar appraisal systems for grades below the Senior Civil Service.
The Government are committed to ensuring that the Civil Service will be a good, modern employer and continues to be among the best employers in the country. Departments will undertake a review of terms and conditions to identify those that go beyond what a good, modern employer would provide. We will also ensure that staff get the IT and security they have been asking for so that they can do their jobs properly.
Another key goal is to improve and open up policy-making so that there is a clear focus on designing policies that can be implemented in practice. Too often in the past, policy has come from a narrow range of views. Whitehall does not have a monopoly on policy-making expertise and in the future open policy-making will become the default. We will create a central fund to pilot policy development commissioned from outside Whitehall.
I repeat that this plan is just the first stage in a programme of reform and continuous improvement. It responds to concerns expressed by Parliament, Ministers and former Ministers but, most importantly, civil servants themselves. None of the actions in the plan is in itself dramatic and none will matter unless it is properly implemented. But together, when implemented, they will represent real change. I will oversee the implementation of this plan. As the paper sets out, Sir Bob Kerslake, the head of the Civil Service, and Sir Jeremy Heywood, the Cabinet Secretary, will be accountable for its delivery through the Civil Service Board.
Change is essential if the Civil Service is to meet the challenges of a fast-moving country in a fast-changing world. I commend the plan to the House”.
My Lords, that concludes the Statement.
My Lords, first, I thank the Minister for repeating the Statement and therefore giving us the opportunity to comment on it. The Civil Service is key to the provision of public services. Thus, whether we are ensuring the country’s security, educating its children, raising taxes, paying benefits or safeguarding the vulnerable, plans for how to achieve high-quality services and their delivery rely enormously on the staff who create and deliver these. The structures, recruitment, training and management of this cadre of staff are a vital part of our delivery of services to the citizenry. The more effective we are in developing and implementing polices, the more we can achieve in improving the lives of all. That means getting value for money out of every pound spent, whether it is on staff, IT or delivery services. That is important because it leaves more for the end user. The more effective the civil servant, the more resources are released to reach that end user of whatever initiative we have in mind.
For that reason, we welcome the Statement, much of which we should be able to endorse, particularly the aim of focusing on outcomes rather than process, a less hierarchical structure, a pacier—I like that word—regime, speeding up decisions, empowering those working at more junior levels and an emphasis on managing change. All these, and other parts, are to be welcomed, but perhaps the Minister will answer just a few questions on the Statement.
First, while welcoming taking advice from a wider section of stakeholders, experts and academics than there may be in Whitehall, how does that sit alongside the Conservatives’ endless attacks on our similar use of consultants when we were the Government and used them for exactly this purpose? Secondly, does the Minister accept that amending policy as it is implemented—learning from mistakes, in the wise words of Sir Terry Leahy in today’s Guardian—is also vital to any project? That is much harder if there is any split between the external blue-sky thinking and the implementation process. We can see that with the introduction of universal credit where there is a horde of little devils who dwell in the detail. We see it in the Dilnot commission where its hard policy thinking now needs robust resource and policy advice to combine ideas with practical politics. We will look carefully at the suggestion of piloting policy development outside Whitehall.
Thirdly, given that the public service is about delivery—whether collecting taxes, paying out pensions, running courts, staffing our national borders or overseeing financial services or the Insolvency Service—does the Minister acknowledge that this often means sufficient staffing, whether at Heathrow or GCHQ? Will he reassure the House that the cut in numbers will not leave empty seats just where they are most needed?
Fourthly, will the Minister outline the discussions he has held with stakeholders, trade unions and others on these proposals? Is it to be a top-down initiative or a genuine collaborative effort to improve the quality and value for money that we get from this public resource? We know that morale is low, with 30% of the top echelons having left. Will these plans promote or reduce the staff’s confidence in their own profession and, in the words of the Statement, make the service “more satisfying to work for”?
Fifthly, are there proposals within this to ensure a more diverse Civil Service, particularly in extending well beyond Oxbridge and the south-east, and increasing gender and ethnic diversity? Sixthly, while applauding the proposals for training and developing “leadership talent”, this costs money, especially as the Government have closed the National School of Government. Will the Minister tell us what budget has been set aside for this implementation and what impact assessment has been made of the proposals? Seventhly, what will success look like with these reforms? How will the Minister measure whether the plans achieve their ends?
Finally, public servants serve us all. Sometimes they can do that best when they say, “No, Minister”. Will the Minister assure us that nothing in these proposals will undermine the ability of senior civil servants—say, fear of dismissal or loss of income—to advise a Minister that a brilliant-sounding scheme might be hare-brained? The impartiality of our Civil Service will be in jeopardy if the people at the top of our policy advice and implementation profession only say, “Yes, Minister”.
We look forward to examining the detail of these proposals. Where the Government get it right in the need to modernise and improve our Civil Service, we will stand by with our advice and support. We look forward to further discussions on this.
I thank the noble Baroness very much for her cross-party welcome for these proposals. Indeed, much in them builds on and extends the experience of the previous Government. As she will know from watching the exchanges in the Commons, a number of former Ministers also welcome the proposals and regretted that in one or two respects they did not go further. I shall do my best to answer her questions. The search for an effective and efficient Civil Service is constant, and one has to return to it every few years. The demands on the Civil Service are rapidly changing. The digital revolution is an enormous challenge for the Civil Service and for all of us. Those changes are part of what is driving this whole process.
Perhaps I may say as a former academic and think-tanker that outside advice from academics and think tanks comes far cheaper than management consultants. I say that partly with bitter regret at how cheaply I sold myself on occasions to government. However, that is part of what is intended. As the plan sets out, there is a preliminary budget of £1 million for piloting this access for outside advice. I assure the noble Baroness that we are thinking not so much about going back to the consultants who provided their extremely expensive advice but about drawing on outside think tanks and the wealth of academic advice that we have in this country and elsewhere. Again, the previous Government did a certain amount of this; indeed, in the Cabinet Office only yesterday I met an academic whom I know very well and who I know was actively engaged in advising the previous Government.
In terms of ideas and implementation, we are already piloting some delivery models and this is very much a process that we will be pursuing. Those following this will know that the idea of mutuals is being tested. There is already some evidence that it improves the morale and therefore the effectiveness of those involved, and it will be taken further if it proves successful.
Something that we are also always looking at is whether we are sufficiently staffed in the right places. Sometimes you find that you have too many staff in one area and not enough in another. Those of us familiar with the BSE scandal will remember that part of the problem was that not enough staff were left in place for the contingencies that took place. It is a constant problem.
On consultations, I simply repeat that there were very wide consultations inside the Civil Service. Some of us were a little frustrated that more civil servants appeared to have seen earlier drafts of this paper than we had. The extent to which senior and relatively junior civil servants had their views taken into account was very wide. That has very positive implications for morale because, if you are carried along with proposals for change, you feel that you are part of it.
As far as the diversity of the Civil Service is concerned, I think that our predecessors, the Labour Government, did extremely well with this, particularly regarding the number of highly talented women in the Civil Service. The departments that I am aware of also have a much higher number of people from different ethnic minorities. I asked a rather senior ethnic minority civil servant what he would say to a young woman of Chinese origin in the Civil Service—a former student of mine—who asked me whether there were any barriers to getting to the top. He said he had not noticed any. I compliment our predecessors on how far they moved on that and assure them that we are continuing very much along that line.
In terms of the budget for implementation, this plan builds in the promise that there will be at least five days of training per year for officials. Civil Service Learning is setting out how this will be done using a range of different providers inside and outside the Civil Service.
We are constantly looking for metrics and measures of success. Management information systems are of course best for measuring the achievement of success, and improving management information systems is a vital part of this.
Finally, I turn to the independence of and challenge for senior civil servants. I can only quote what a senior civil servant who is a very good friend of mine said to me many years ago. He said that at a certain level a competent senior civil servant should always have at the back of his mind that he could move before telling Ministers his thoughts. That was under the previous Government. I think that a number of senior civil servants would say the same but we are always looking for robust and independently minded civil servants who will express their thoughts to Ministers. Of course, the other side of that is that Ministers need to accept that their relationship with officials has to be on that basis.
My Lords, it so happens that this evening the Public and Commercial Services Union is holding its annual parliamentary reception in the Strangers’ Dining Room, so I went along to talk to its members. I found that they were very concerned because they believe there is the possibility of hundreds of redundancies and they do not seem to have had very much consultation or negotiation. I promised them that I would faithfully represent them as far as consultation is concerned.
Criticism in certain areas of public work has indicated a lack of public acceptance, but members pointed out that, rather than fewer public servants, in many instances there is a case for having more. They pointed out, for example, that at airports there were very long queues because there simply were not enough staff. That is true in many areas of public service where the union believes there should be more public servants rather than fewer.
Public service is very necessary to ordinary people. If you are very rich, you do not rely on public services, but if you are not very rich you do. Therefore, an effective public service is something that we expect the Government to provide. From what the officials of this union told me—and one must remember that they represent 280,000 public servants—it is quite clear that they do not feel they have been consulted or had the opportunity to negotiate on what is a very substantial plan. Is the Minister making arrangements for this union and other unions in the sector to be properly consulted and properly involved before we proceed with what seems to be a very large upheaval within the provision of public services?
My Lords, I can promise the noble Baroness that there is a constant dialogue with all the unions. I am sorry that the PCS feels it has not been consulted sufficiently but I am well aware that the dialogue goes on. I am also well aware that people in all sectors of society have contact with the public service. If the noble Baroness has read the Times today she will know that there are some rich people who prefer not to hear from HMRC, but HMRC is indeed determined that they should hear from it.
My Lords, it is true that managing change and driving though radical policies can prove difficult. It is also true that there are areas where the private sector can and does deliver good-quality public services at competitive costs. We should not be opposed to moving the boundaries between public and private sector delivery of public services where it can be justified or in testing payment by results as a way of promoting greater efficiency and value for money for the taxpayer. However, for the past 140 years we have benefited from a public service selected on merit and political neutrality. As someone who stood down from government last month, I can say that I found civil servants civil, hard-working and helpful. Does the Minister agree that we should not approach public sector reform with a mindset of “public sector bad, private sector good”?
I do not think there is evidence that the public sector yet has in place the kind of legal, contractual and commissioning expertise to make sure that the taxpayer is going to be properly protected or the quality of service required guaranteed. Does the Minister agree that it is essential that the reforms have built into them full and proper systems of parliamentary accountability? We must ensure that, in commissioning externally sourced policy-making, we do not fall into the habit of commissioning external consultancy almost as an alternative to ministerial decision-making.
My Lords, as we all know, a number of processes are under way. This Government are also committed to decentralisation as far as possible, and one reason why the central Civil Service will shrink is that more decisions and areas of policy delivery are being put down to the local level. Some of this will be carried out through local authorities; some of it will be carried out through mutual and other agencies. The division between the public and private sectors is not entirely a binary one; there is also, as we all know, the third sector or voluntary sector. I think we all agree that, together with the decentralisation of the delivery of public services, some services are better delivered as a partnership between the public sector and the third or voluntary sector. All those processes are under way. Put together with the technological revolution that is pushing us towards a much greater dependence on digital services, this is part of the revolution we are facing.
On the question of parliamentary accountability, there is less in this plan on the details of accountability than there might otherwise be because there has been a deliberate decision to await the study of the House of Lords Constitution Committee on that very area. That will feed into further consultations on how we strengthen accountability to Parliament. However, noble Lords will be aware that the role of Commons parliamentary committees in particular in relation to the Civil Service has strengthened over the years. I was reading the Osmotherley Rules earlier today and began to look at how they may need to change further as part of this. That is the sort of thing that the Constitution Committee will be considering.
My Lords, the Statement paid lip service to the quality of the Civil Service but it sounded to me—as, I am afraid, it will sound to many civil servants—like a litany of criticisms. Will the Minister accept from me that, while proposals for improved performance by the Civil Service are always necessary and welcome, it is essential to their success that the Civil Service should be led and not just driven—as the Statement said—and should not be reviled and unattributably dumped on when Ministers’ policies run into difficulties?
My Lords, I strongly agree with that. I am very conscious—again, I make a non-partisan remark—that there have been occasions under successive Governments over the past 50 years or more when some Ministers have occasionally wished to blame their civil servants for things not happening. I would be extremely upset if the noble Lord interpreted this plan as being an attack on the Civil Service. We have emphasised very strongly that that is not the case and that it has come out of a partnership between Ministers and the senior Civil Service with extensive consultation. We value the quality of leadership within the Civil Service. I am one of the many within government who have serving and former civil servants as close members of their family. It matters very much for the quality of our society, our public services and our country as a whole that we have the best-quality Civil Service working for government and the state as a whole. We very much hope that this plan strengthens that.
My Lords, I very much support much of what the noble Lord, Lord Butler, said. Although it is perhaps not a series of attacks, the Statement rather dodges along a line that opens it to that sort of criticism. With the Government talking as they are, perhaps I may repeat the phrase, “There are no bad men, only bad officers”. The need for leadership in the Civil Service is absolutely critical, and I very much support many of the practical measures in the Statement. The devil will be in the detail, but the figure that hits very hard is that there will be a 25% reduction in Civil Service numbers over the next three years. This has happened before and, in some cases, it has been achieved simply by transferring people to independent agencies and moving them out of the Civil Service. Can my noble friend give some indication of how those figures are to be achieved and to what extent it will be a case of smoke and mirrors or of a genuine reduction in Civil Service numbers? If local government is to take up some of the strain in areas that have been covered by the central Civil Service, will that involve an increase in numbers in local government?
My Lords, I merely repeat that this is not intended in any sense as an attack on the Civil Service and we very much value its quality. A certain amount will be achieved by putting more on to the digital level, and this is well under way. Members of this House may remember our discussions about universal benefits and the extent to which that scheme will enable us to provide those sorts of payments and services more efficiently with fewer staff. That is the sort of reduction that we see coming through. We plan for more services to be provided in partnership with local authorities and through third-sector organisations. We are already experimenting with that sort of model.
My Lords, perhaps I should remind the House that in a former life, quite a long time ago, I was the general secretary of the First Division Association, which represents senior civil servants.
In the Statement, the Minister said, “We need a Civil Service that is faster, more flexible, more innovative and more accountable”. No one could argue with that as a general statement, but the whole issue is about how that is to be achieved. I do not think that the Minister properly answered the question of the noble Lord, Lord King, about how you achieve a reduction of 120,000 civil servants in less than three years—only two and a half years. Is there going to be a system of compulsory redundancy and, if so, has that been costed? To what extent will there be a charge on the public purse for compulsory redundancies? Those are crucial questions when we are arguing about something that ought to be costing less money.
The real point at issue in the Statement arises in relation to the future appointment of senior civil servants. It stresses the importance of political impartiality but we are told that the role of Secretaries of State will be strengthened in the recruitment of Permanent Secretaries. It is the duty of civil servants to maintain the confidence in their impartiality not only of Ministers but of those who may become Ministers after a general election. How does the noble Lord reconcile the appointment process, which includes politically appointed Ministers, whereby politically impartial civil servants can pass over to a new set of Ministers? Will there be a requirement for Permanent Secretaries appointed in that way to resign at the time of an election? It is an important point about the confidence of the Opposition.
It was also said in the Statement that it may not be practical to run “full and open” competitions. When will it not be practical to do so? How will the diversity of the Civil Service and the opportunity for women and people from ethnic minorities to break into the Civil Service ranks be maintained in those circumstances? At the moment, they come in through open competition.
Lastly, the Statement says that, “Ministers can ask their Permanent Secretaries to appoint a very limited number of senior officials, for specified and time-limited executive and management roles”. This is an important point. There was such a fuss in 1997 when two politically appointed people were, under Privy Council terms, given executive and management roles. I have to say that the Conservative Party going into opposition went ballistic about it. What will be done about this? Will it be done under Privy Council terms, and will those contracts be terminated on a change of Government? Those are very specific questions.
My Lords, as the plan states, the proposals on the role of Secretaries of State in very senior appointments are to be discussed with the Civil Service Commission. The proposals have been discussed with former Labour Ministers, and there have been criticisms from former Labour Ministers in the other place that these proposals do not go far enough. We have not committed ourselves fully on this, and there is therefore a dialogue to be had about the future relationship between the appointment of permanent secretaries and the role of Secretaries of State. Jack Straw said in the other place that he did not find our proposals terribly surprising because on three occasions he had insisted on having an active role in the appointment of permanent secretaries. So although we are not entirely moving from one world to another, we are discussing how much further we should move along a continuum.
On the scale of reduction under way, departments are already engaged in processes which will reduce numbers without compulsory redundancies. I will write to the noble Baroness if substantial compulsory redundancies are on the way. However, seven out of 10 civil servants are involved in the big five delivery departments: the Ministry of Justice, the Home Office, HMRC, the Ministry of Defence and the UK Border Agency. Many of them turn over at a rate which I anticipate enables us to avoid very substantial compulsory redundancies, but if I am incorrectly briefed on this I will write to the noble Baroness afterwards.
I attended many courses at the National School of Government over the years, and I always reminded it that it was the best in the world. However, I recognise in the report today the need for change within the Civil Service, and I welcome it. Having had 15 years out of Government I returned last year to ministerial office, and I recognise some of the needs here, particularly in changing the culture. However, in making the changes that are needed, particularly in terms of management within the Civil Service and the skills needed by Ministers—because ultimately the buck stops at the Minister’s desk—it is very important to ensure that we do not confuse management systems that deliver competent management and those that lack the leadership skills that make the difference in culture. It is quite possible to be a competent manager at any level, but if you do not have the leadership skills you will get a culture as described in this document today—and again that applies as much to Ministers as it does to the Civil Service. I hope my noble friend will ensure that we do not miss out on what is a very important part of making these important changes.
My Lords, my noble friend is right to point out that a number of things fit together here. Extending the role of Parliament in holding the Government and the Civil Service to account, which is part of what the Constitutional Committee will be discussing, will be continuing with what has evolved over the last 20 years with the relevant Commons committees. The question of the management skills of Ministers is very much a cross-party thing that we all need to discuss a great deal more. We do not currently train Ministers. We also need to discuss the changing role of the Civil Service itself. One point I did not answer for the noble Baroness, Lady Symons, was the question of the impact of these proposals for ethnic minorities and women. I remind the noble Baroness that for the first time, some six months ago, we reached the point at which there were more women than men at the level of Permanent Secretary. That is a real breakthrough. We have also had our first ethnic minority Permanent Secretary. Having a close female relative rising up the Civil Service, I hope this is a trend which will go further.
I welcome parts of the Statement, and I welcome the conversion of the Minister who made the Statement in the other place. He was the man who was in charge of the Next Steps programme in the 1990s, which broke the Civil Service down into smaller pieces and split it up. He is now happily seeing the errors that were made, and bringing parts of it back together again.
I am concerned about the way in which we keep moving forward with changes in public service operations without actually speaking to the customers or the taxpayers. This is another example where the default position will be open policy making, where in fact the taxpayers and the citizens have not been involved one iota in this exercise. If they had been, we would have heard more complaints. I have a former connection with the Inland Revenue as I was the general secretary of the Inland Revenue Staff Federation. If you go online now, you do not necessarily get answers to internet inquiries; if you go on the telephone, as was recently published, you wait longer for a reply from the Revenue than you did two years ago; and if you come into the country, you queue longer at one and two o’clock in the morning. In so many areas of the departments the Minister has just mentioned the Civil Service is falling down. Now we are faced with a cut from 500,000 down to 380,000 civil servants within the space of three years, on top of the other changes already taking place. I think an awful lot of taxpayers are going to be very unhappy indeed with the services that they will get in the next few years, unless there can be a quite different approach to that which we have adopted so far.
I hope there will be a way in which we can look at how we measure efficiency. Take two building societies, A and B, and put them together. Get a new computer system, cut the number of staff employed, and you can say that you have increased the company’s efficiency. Invariably, in practice you find that the customer suffers and waits longer for services from that combined building society. We have tried to bring the same principles to bear within the Civil Service. I hope we can have a clearer definition of what efficiency means. I am not against changes, or reductions in numbers, provided that ultimately the service will be better. However, there is nothing in this statement to prove that it will be.
My Lords, I accept that challenge. The effectiveness of these proposals will indeed need to be challenged precisely in terms of how they impact on the quality, effectiveness and speed of delivery, and the satisfaction of the citizens who are receiving those services. Before we close, I remark that this is also part of a long process of change in the Civil Service. The proposals in the plan for bringing together some core services across Whitehall—the management of major projects, human resources, digitisation—are also part of trying to make a more economical and unified Civil Service. As I have observed in the five departments I have worked across since I joined the Government, there are real cultural differences between a number of departments across Whitehall, and we will benefit from bringing departments together, rather more into a single corps. We have also been looking at the estate of the Civil Service, and making a number of changes which make for more effective use of that estate. This will also provide a number of efficiencies and savings. However, I accept the challenge that a number of noble Lords around the House have made, which is that the impact of all of this will be seen in the quality of the services that are provided, we hope, with much greater productivity, efficiency and effectiveness in three to five years’ time.
Justice and Security Bill [HL]
Second Reading (Continued)
My Lords, as we continue the Second Reading debate on the Justice and Security Bill, and at the risk of sounding boring, I feel duty-bound to remind noble Lords that speeches from Back-Benchers are expected to be kept within 15 minutes. When I remarked on this earlier, I should have stressed that exceptions to those guidelines are made on occasion, rather than frequently.
My Lords, as we return to the debate on this very important second reading, I need to begin by saying I am not a human rights lawyer. I am not a lawyer at all. I have had no contact or involvement with the intelligence or security services, so I tread rather warily and carefully into this specialist area for fear that the ground may open and swallow me up.
My interest in this area comes about because I am the treasurer of the All-Party Group on Extraordinary Rendition. I am also a trustee of Fair Trials International. Therefore in my rather amateurish and non-legalistic remarks, I want to focus on what seem to me as a layman some of the dangers and challenges of Part 2 of the Bill. My experience in those two particular roles is that the processes of international justice, or perhaps I should say, justice with an international aspect, do not always proceed as smoothly or as even-handedly as we all would wish.
The issue of partial access to information and the inability to check its veracity causes me concern because of what happens at Fair Trials International. The average FTI case usually involves someone of modest means being somehow swept up in the proceedings. By definition, the proceedings are normally abroad and the partial sharing of information and the inability to challenge their veracity comes about because the defendant does not understand what he is being accused of because it is in a foreign language, which means that he cannot test the truth of the case against him. All too often, once the full facts are laid out and once everyone knows what is being complained of, the defence is able to ensure that the case falls away. I want to ensure that in the Bill we are not creating circumstances in which these sorts of events become prevalent.
My second general concern stems from the fact that in my professional life I have worked in the City and I have spent some time as a regulator. The regulator of financial services has to create a balance, not on the époque-like matters that we are discussing this afternoon, but on the level of regulation. Too much regulation will be very expensive in money or management-time terms, will discourage innovation and will diminish the reputation of the financial community of this country over a period of time. On the other hand, too little regulation, with a free for all, no standards of behaviour and lower market confidence, will have the same effect. So I quite understand that a balance has to be struck.
However, the danger in real life is that regulators are, by their very nature, risk averse. An innovation that never happens reflects no discredit on a regulator but a failure does: it is public, it is controversial and it damages reputation. There is an inevitable tendency to raise the bar. In effect, there is always a danger of what we call regulatory capture. As we go through the Committee stage of the Bill, I want to be convinced that there is not an equivalent of regulatory capture taking place in this area.
My third general point, which is more specific to this Bill, is that I am currently undertaking a review of the Charities Act for the Government and there have been strong suggestions from certain quarters that charities in the United Kingdom are raising considerable sums of money which are to go overseas for purposes that are less than charitable. That is a serious accusation. The fact that donations in this country, no doubt enhanced by gift aid, should end up in the hands of al-Shabaab or the Taliban, is indeed worthy of investigation. When one looks into it in detail and asks for even minor facts to be produced, there is very little. There are a few wisps of smoke perhaps but certainly no fire. The Charity Commission has been called on to investigate only a handful of cases. That sort of broad statement about our intelligence and security, which is long on assertion but which turns out to be very short on fact, makes me concerned about whether we have the balance of the Bill right and whether what we may be surrendering in our civil liberties is yet justified.
As a result of this Bill, if I read it correctly, we are going to surrender, or certainly substantially amend, the right of citizens to hear and to challenge all the evidence presented by the state against them in the High Court and substantially amend the right of victims of kidnap, rendition, torture and other unlawful abuse to obtain evidence from the state to help to prove their case. That right applies only where the state has been involved in, or has facilitated, the commission of the wrongdoing.
If we are to surrender those two substantial matters, why are existing processes for the public interest immunity certificates suddenly inadequate? I understand that the system of PII has been operating for more than 50 years without significant government complaint. As the noble Lord, Lord Pannick, said, in applying the PII system, the courts have a raft of weapons that they can deploy to keep confidential the sensitive features of government evidence while permitting the essentially relevant parts to be disclosed. These include hearing parts of a case in camera with both parties represented; the use of confidentiality rings; redacting the sensitive parts of documents to which the noble Lord referred; allowing evidence to be gisted; and directing informers or secret agents to give evidence anonymously behind screens. My noble and learned friend Lord Mackay in his remarks earlier said that there were residual issues which were not covered by these provisions. I understand that and I obviously will stand corrected by him. I look forward to having a chance to discuss what those residual issues are. The report from the special advocates, who I assume know a bit about this area and certainly a great deal more than I do, says in paragraph (7):
“There is no fundamental difficulty with the existing principles of public interest immunity … which have been developed by the courts over more than half a century and which enable the courts to strike an appropriate balance between the need to protect national security (and other important public interests) and the need to ensure fairness. Nor is there any sufficient evidence that the application of these principles has caused insuperable logistical difficulties in any particular cases”.
That is my first broad concern.
My second broad concern is the assertion that CMPs are being used. A judge will still be able to weigh up the strength of the evidence before deciding whether a CMP may be used. I understand from what my noble friend was saying earlier from the Front Bench that it is a procedure which could be described as PII light. When I see the use of the words “must” and “must ignore” in Clause 6, it seems to me that the judge will have relatively little discretion. Reviewing evidence and making an assessment seems to me to be one thing—that is the PII procedure—but presumably the Secretary of State will turn up at the court and make a strong assertion that national security is involved, otherwise why would you have a CMP application? I leave it to those of your Lordships' House who are involved in the legal profession to tell me whether or not a court is likely to rebut such an assertion involving national security. My view is that it seems unlikely but I have no direct evidence.
My concerns on this point are further increased by the lack of transparency about CMP procedures and the extent to which they will be used. I can find no provision for closed judgments to be opened up at a later date, when secrecy is no longer required, so that the public can see how they worked; I see no requirement for notice to be given by the Government that a CMP will be sought; and I see no requirement for any reporting of the number of requests for and granting of CMPs. These are the pieces of information which should at least shed some light on this difficult area and go some way to reassuring us and the general public.
My third and final point is to repeat what has been said by other noble Lords about the Norwich Pharmacal case in Clause 13, where I believe that subsection (3), which defines “sensitive information”, is extremely broad and frankly could be used to cover almost any sort of information that the Government of the day might find it helpful to include.
I want to reassure my noble friend that I am not nihilistic about the Bill, nor am I naive about it. I do not think that the world is an entirely sunny place. Nor do I think that it is filled exclusively with friendly people of a sunny disposition. Further, I certainly do not wish to belittle, demean or hinder the activities of our security services. I am profoundly grateful to those men and women who are prepared to devote their careers and sometimes their lives to keeping me, my family and the country safe. Those men and women also have civil liberties that need protecting, which is why I still remain to be convinced that the balance of the Bill is right.
My Lords, I am not a lawyer and I have searched my mind about whether I have ever seen an official secret in my life. The answer is that I do not think that I have. In Northern Ireland, we had Cabinet minutes which were heavily redacted and the contents had appeared in the papers before I read them anyway. I do not count that as having seen any official secrets, so perhaps I am disqualified from contributing to this debate.
I recall that in the past, not that many years ago, the name of the director of MI5 or MI6 was an official secret. We were not even to know that such people existed. That has moved on now and it is much more possible to have some element of knowledge and scrutiny of the security services. Of course, the threats in the intervening years have become more international and more serious, and to deal with them has required more international co-operation. I say that in the context of how anybody would look at the Bill.
I regret that the noble Baroness, Lady Manningham-Buller, will speak after me because I would have liked to have known what she had to say before I contributed, although I had a little chat with her a few minutes ago so I have some idea. I remember vividly the contribution that she made when we debated 42-day detention. She knocked the Labour Government for six with a short maiden speech, which many of us who were present will remember vividly and almost word for word. I regret that I cannot listen to her before making my contribution.
I want to talk mainly about Part 2 of the Bill. This is not a specialist issue just for lawyers: it is central to our country and to the way that the rule of justice operates. It is constitutionally a significant change. It undermines the principles of open justice and natural justice. I welcome the concessions that the Government have made between the Green Paper and the Bill, but I contend that there are still weaknesses.
I served on the Joint Committee on Human Rights. I was rotated off about three weeks ago, so I am not as up-to-date as I would like to be, but I recall that when we published our report on the Green Paper it was embargoed. The Deputy Prime Minister made a passionate statement criticising the Green Paper. I assumed that he had somehow got hold of a copy of the embargoed report because the timing was too close to be coincidental, but be that as it may. I also welcome the report of the House of Lords Constitution Committee.
Clearly, there must be concern about the anxieties in the United States and other countries that we might reveal information given to us in confidence. On the other hand, we have had examples where the Americans themselves have not been that good at keeping secrets. Indeed, there was one instance in addition to the one quoted. In the Yemen case, the Americans leaked or revealed the fact that one of our people had given valuable information from Yemen. That endangered the safety of that individual. I say that only to demonstrate that the Americans themselves are not always as good at keeping to the principles that we are told are the basis for this legislation.
I welcome the fact that inquests will be excluded. I welcome the fact that the Bill will confine itself to national security material and that SIAC’s jurisdiction will include the possibility of JRs regarding citizenship and exclusion from the UK. However, there is something I do not understand. If someone has lived in this country for some years and then applies for citizenship, why is that aspect covered by the secrecy implicit in the Bill? Surely, if a person has been here for years, we know that he or she is here and we are onto them. Indeed, there is an argument that we should keep quiet and see what else we can learn from them. If we start challenging their entitlement to citizenship, albeit in a secret court, we are actually giving the game away. I do not understand the argument there. Perhaps the Minister can reveal it.
The key issue is the secret hearings and the CMP material inherent in Part 2 of the Bill. Of course, the problem is that the Government may use and rely on closed material even though other parties are not allowed to see it. To quote again from the noble and learned Lord, Lord Kerr, who has been quoted before:
“Evidence which has been insulated from challenge may positively mislead”.
That surely has to be the theme for those of us who are concerned about the Bill.
I understand that the courts traditionally are reluctant to challenge the Government on national security matters and if the Government say that it is a national security matter, the courts will normally accept that. The effect of the Bill will be largely to replace PII with CMP where the Government want that to happen. In truth, the Bill preserves the PII process in cases involving national security where in the Government's words it is more appropriate. But as the Bill stands, it is the right of the Secretary of State—his exclusive discretion —to decide which way to go. I think that that is more power than should be the case. I do not believe that the Government have fully demonstrated the case against PII.
I understand that the key benefit of the PII procedure is that there can be balance. The courts can balance one consideration against another. That is surely its particular strength. If we are throwing that out, that is a retrograde step. Do we have to have the alternative of the Secretary of State saying either that PII is okay or we have to have CMP? I wonder whether there might not be a way in which the strength of PII and the benefits of CMP as alleged could be put in such a way that the court itself could decide which of the two methods to use. I am not sure how well that would stand up, but I put it forward to the Minister as a possibility that might get the Government off the hook.
As for Norwich Pharmacal, I share the concerns that have been expressed by others. In particular, Clause 13(5) refers to disclosure that would be damaging,
“to the interests of national security, or … to the interests of the international relations of the United Kingdom”.
That seems to be very wide indeed. I understand national security, although it is vaguely defined. But if we are talking about damage to the international relations of the United Kingdom, all sorts of things damage our international relations, even a leak about something that a British embassy is doing. I wonder whether that is going too far and if we dropped that the Norwich Pharmacal jurisdiction approach would still apply more happily.
I turn briefly to Northern Ireland. While it is good that inquests have been excluded from the Bill as a whole, there is still a range of civil proceedings in Northern Ireland dealing with the legacy of the conflict that will be affected by the introduction of CMPs. I give three examples. There are possible challenges to the PSNI, possible concerns about decisions by the historical enquiries team and possible miscarriages of justice. Some of the issues in Northern Ireland are very serious. We have already had difficulties with the Finucane case with too much secrecy causing lack of confidence in the system. I wonder whether we are not getting into rather difficult terrain by applying this approach to some of the sensitive issues in Northern Ireland. I noted with interest the suggestion of the noble Lord, Lord Thomas of Gresford, that there should be a disclosure judge as well as a Diplock judge. I do not know enough about that, but that is another option worth considering.
I notice that the Government for the first time retain the right to use intercept evidence in CMP cases. Given all the arguments that we have had about intercept evidence, I still believe that we should find a way, where appropriate, of occasionally using intercept evidence in our courts as a way of bringing people to justice. Every time the Joint Committee on Human Rights had a meeting with Home Office officials we were told that it was all being considered, but nothing seemed to come out at the other end. It is interesting that the Government have in a small way conceded the case by saying that intercept evidence may be used in CMPs. I hope that that is a sign that the use of intercept evidence in a wider sense is still on the Government’s agenda.
My Lords, I am happy to join the noble Lords, Lord Hodgson of Astley Abbotts and Lord Dubs, in being one of the outsiders contributing to this debate. It has such an important nature that it is important that those who are not lawyers as well as those who are take a substantial part in it.
In many ways, what has happened to the Bill is a great credit to some of the recent changes that have been made in Parliament. The fact that we have had a brilliant and succinct report from the Constitution Committee and a very full, factually based and sensible report from the Joint Committee on Human Rights says a great deal about the way in which committees are now beginning to complement and in many ways strengthen what has been something of a weakness in the House of Commons: its ability to scrutinise legislation going through Parliament. These two committees have served us extraordinarily well and I think it would be appropriate on this occasion for me to pay a passing tribute to the shade of the late Lord St John-Stevas for having made such a major and significant contribution to our constitutional development.
The Deputy Prime Minister deserves a word of praise. Having intervened fairly early in the process of considering the Bill, he was able almost immediately to challenge two elements of the Green Paper that were particularly disturbing: one of those aspects being the particular right of Ministers to decide whether a court should be held in closed session; and the second being, in my view at least, the attempt to include inquests within the scope of the CMP. I think he deserves recognition for having intervened and drawn attention to these two particularly extreme and in many ways odious provisions of the Green Paper.
Having said all that, I am also delighted with the strengthening of the position of the Intelligence and Security Select Committee—on this I think I share the view of the noble Lord, Lord Butler of Brockwell. The decisions that it should choose its own chairman and that it should be accountable to Parliament rather than just to the Prime Minister are significant steps in gaining much greater accountability over the whole area of intelligence. For reasons that I will come to a little later, that is vital.
On the Bill itself, I have to admit that the state of the judiciary, as well as the care taken by the Select Committees of Parliament, has been impressive. I share the view of my noble friend Lord Lester of Herne Hill that the judiciary has consistently behaved with extraordinary integrity and real commitment to the concept of human rights and the individual liberties of our citizens, and at the same time has been sensitive and aware, all the way through, of the national security requirement. We are extraordinarily lucky in the judiciary that we in this country enjoy and we need to do everything that we can to sustain it.
One aspect that is perhaps particularly important is the limitation of the introduction of the CMP into civilian proceedings. As has already been mentioned in the debate, it is quite striking that the special advocates could not have been clearer in their views that any further extension of the CMP into civilian proceedings would be unacceptable and would contribute very little to the quality of judicial statement and conclusion in our country. Given the pressures on them, it seems quite remarkable that they achieve near unanimity in a bold and strong statement about their position on the Bill. We have to pay careful attention to this because, as we know, virtually every currently practising lawyer who has had direct experience of the CMP in his or her own proceedings was deeply clear that it was a very unfair procedure and that steps to make it fairer were very difficult to attain. Also very clearly indicated was their view that a much stronger case needs to be made even in the field of national security and certainly beyond it in looking very hard at the CMP proposal.
In many ways the special advocates also regarded public interest immunity as a more satisfactory safeguard for the claims of those who came before the courts. Such cases became particularly difficult—this was mentioned in debate—where claimants invoked the Norwich Pharmacal precedent whereby information had to be disclosed, as my noble and learned friend Lord Wallace pointed out, originally with regard to intellectual property. However, as it was extended from intellectual property and ingeniously used as a way to get access to sensitive security matters, it obviously presented the Government with a very serious difficulty. Under present practice, it meant the Government withdrawing cases altogether rather than risking disclosure. This could lead to an unjust outcome. The former Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern, is clearly particularly exercised about the possibility of injustice here. I wonder whether he would agree that judges must be consulted on the balance of interest in deciding whether a court should accept the CMP and whether he could be asked to explain openly their reasons for giving such a decision.
The Government’s response to the Green Paper was far too cavalier on the essential principles of natural and open justice. Even in the redrafted Bill, Clause 13 defines “sensitive information”, which I know has now been somewhat changed to “national security information”, far too loosely and ranges far too wide. What my noble friend Lord Lester had to say about this was absolutely right. It therefore provides for unacceptable and unaccountable executive power by including within the definition a certificate by the Secretary of State if he or she considers that disclosure might damage the interests of national security or the international relations of the United Kingdom. This latter condition—I share this worry with the noble Lord, Lord Dubs—is usually interpreted by the media as being damaging to our relations with the United States, but it might also of course include damaging our relations with other countries that lack any commitment to the rule of law or to refuse the use of torture as something that can be presented in evidence.
I therefore ask my noble and learned friend Lord Wallace of Tankerness whether the Government are absolutely sure that other countries, not including the United States, could not object, for example, to there being a decision to allow this material to be used if they found it offensive to their view of themselves regardless of whether they had a commitment to the human rights of other human beings and whether they had a proper commitment to laws that establish the freedom and independence of courts. There are a large number of countries—I could mention some but for reasons of diplomacy I will not—that are very close allies of the United Kingdom and that have virtually no commitment to the rule of law. What, therefore, is the position meant to be if they then use this part of the Bill to claim that they should not have been forced or compelled to make any revelations at all.
I turn briefly to the concept of security itself, which has become an autonomous noun—a self-justifying concept. Security may be understood as securing the health and safety of innocent citizens. The noble Marquess, Lord Lothian, made this his central definition of security, but I find it very difficult to do that. The concept of security should also be understood as securing the liberties and freedoms of a democratic society, not in principle contradicting them. I find it very hard to believe that security is strongly established if it is set in contradiction to these basic values. There is a worrying inclination to move in that direction: to treat security, as I said, as an autonomous noun—as something that has a right to itself other than that fundamental right of protecting individual liberty and safety and the basic values of a democratic society.
After 9/11—I should probably now declare a rather modest interest as a member of the governing committee of the Belfer Center for Science and International Affairs at Harvard—some measures were taken that gave security precedence over any other values and rights. Among some of those precedent measures were measures that went quite directly contrary to what most of us would regard as the fundamental principles of being a law-abiding society. I am a little disturbed by our debate having paid so little attention to what I have to say is one of the shaming dimensions of intelligence: the whole story that has emerged about extraordinary rendition and the misuse of intelligence to bring about results and ends that are simply not compatible with those basic values.
I strongly argue that one of the great concerns that we ought to share is the continuation of the existence of Guantanamo Bay, despite the general intentions of President Obama to get rid of it when he was first elected in 2008. We should also be disturbed by the appalling story of extraordinary rendition by the CIA, which, deeply regrettably, some British intelligence was involved in and which has not yet fully emerged into the light of day.
I shall say this very carefully: an American President under increasing pressure from Congress, particularly a Congress of somewhat extreme views about how civil liberties should be subordinated in every possible instance where there is a clash with so-called security, could use Clause 13 as a way to demand the wider use of the CMP in the British judicial and political system. I for one would find that deeply regrettable.
I conclude by saying that it is rather ironic that the Government have not proposed the use of security-cleared lawyers in such cases. In this the United States has shown strength by insisting that such security-cleared lawyers can be trusted in the recent habeas cases of two people who are being retained at Guantanamo Bay. The US has been willing to accept, as we have not, that security clearance is a sufficient and substantial safeguard. We seem disinclined even to look at the possibility, but I would add it to the list of options referred to by the noble Lord, Lord Dubs, as one of the various alternatives. This is one that we might want to look at.
Another might well be the one proposed by my noble friend Lord Thomas of Gresford, which draws on the Diplock court principle and priority, with the idea of a separate judge having particular responsibility for the levels of disclosure. The judge would have to satisfy him or herself that there had been no failure to disclose where necessary, but equally whether there should be any insistence on disclosure that runs contrary to natural justice and natural law. Finally, one other prospect might be looked at carefully. It was mentioned earlier by the noble Lord, Lord Pannick—the more extensive use of various forms of redaction as a way of dealing with the problem.
There are several options before the Government, all of which should be carefully considered because one or more of them are preferable to the direction that we are moving in under Clauses 6 and 13. I hope that the Government will give serious and detailed consideration to these proposals because, with amendment, the Bill will make a useful contribution. Without amendment, it will stand as something that should not be allowed to pass into law.
My Lords, I am a member of the Joint Committee on Human Rights. When we were considering the Green Paper and now the Bill, I seemed always to have had in mind the statue of Lady Justice at the top of the Old Bailey, but when seeking to balance the various injustices in these situations I have come to conclude that her scales need at least seven pans.
First, the Government assert that they are not able to defend themselves and are forced into the settlement of claims. I agree with the Lord Chancellor that that is “extremely unsatisfactory”. Secondly, the Bill would have the claimant and the lawyers in the corridor of the court and evidence seen fully by only one party. Thirdly, in civil proceedings there can be an appeal on the facts, but if, as the Government assert, these cases are so saturated in intelligence information that most of the judgments are secret, people will be less able to appeal and correct decisions.
Fourthly, there is the exclusionary nature of PII where the evidence is not considered by either side. Fifthly, there are apparently strike-outs of meritorious claims, but currently the only example is the case of Carnduff and Rock. Sixthly, how do we ensure the continued development of the balancing of public interest immunity in national security cases? Seventhly, is there information that has previously been disclosed in court proceedings, and thus available to the general public and the press, that would now remain secret? Some of the injustices do not relate to individual cases as the Bill will change the judicial system. It is a fine balancing exercise that, I would add, gives you a headache, and inevitably people will come to different conclusions about the least bad solution.
However, Lady Justice is usually blindfold, which is apt in this situation as your Lordships cannot observe a CMP in full. That is, the hearing has one party excluded. I trooped down to the Royal Courts of Justice in the February Recess to watch a control order case. I spent nine years as a civil advocate and I can spot a court case when I see one, but this did not feel like a court case: namely, a case in which parties try evidence before a judge. It was more like manoeuvrings, with the open advocate, the special advocate and the judge trying to assist to ensure that enough of the allegations were known before the whole thing—the trial of the allegations and most of the evidence—was held in secret behind what I discovered are literally the locked doors of the court. The controlled person was not even there. When I queried that, I was told that it is not unusual because, “there is not really much point”. What I saw worried me and convinced me that the best people to determine this issue were those who have actually done these hearings, which will not necessarily be the most experienced practitioners, judges or academics.
That leaves three groups: those I will call the CMP judges, whose views are not known to Parliament; David Anderson, the independent reviewer; and of course the special advocates. David Anderson QC accepts that CMPs have the capacity to operate unfairly, especially if there is no gisting of the evidence. The last group are the most experienced, and they are not at all convinced. In fact, “inherently unfair” has been their consistent criticism of CMPs. Again, I agree with the Lord Chancellor when he said that the,
“evidence of the special advocates most unsettled me”.
It has been suggested that the special advocates underestimate the effectiveness of CMPs, but that is unusual for any group of lawyers, especially one that includes 22 QCs, not because they are arrogant but because they are really excellent at what they do; QC is a top brand. I would like to see the Government gain the support of these independent advocates before being prepared to support such a fundamental change to our judicial process. I might add that these lawyers, the special advocates, will secure more work if we have more CMPs, and that is a rarity in my experience.
On the injustice of evidence excluded under PII, I join the noble and learned Lord, Lord Morris, but I would be grateful if my noble and learned friend the Minister could set out the statistics of how many cases in the past have led to the successful exclusion of all material, and how many have led to the partial admission of material in open court, such as that achieved so ably in the 7/7 inquest. Further, was this technique used in the Guantanamo Bay litigation which the Government have relied on so heavily? Were exclusionary PII applications made in those proceedings? Also, I am perplexed that the Government apparently settled the al-Rawi case before knowing whether they could have a closed material procedure. When questioned by the Joint Committee, the Lord Chancellor maintained that the Government could have defended the claim if they had had a closed material procedure, but if the Supreme Court had decided in their favour, no proceedings would be left to try. I am perplexed about this.
Moving on, it is hard to see how to ensure the future development of PII in national security cases when under this Bill the judge would be required to accede to an application if there is any national security information relevant to the case, even if he considers that the case could be tried using the existing PII rules. I suspect that we will find amendments tabled during Committee on the Bill. Will less information be available in the public domain than there should be? I think there is a danger that closed material procedures will restrict it.
As I understand the Bill, the difference between closed material procedures and public interest immunity is illustrated using an extension of the example cited in the Constitution Committee’s report of an aircraft accident where the family ended up suing the Government. Let us imagine that we have gone into a closed material procedure and it becomes clear for the first time, behind closed doors, that cockpit video footage exists. That footage is played behind the closed doors. It is akin to the footage that many noble Lords will have seen from a recent inquest into a friendly fire incident that was leaked to the Sun newspaper. Is there any way in which the judge, in a closed material procedure, can balance the interests and pierce the wall of the closed material procedure to put that video into the public domain, given the level of intense interest both in the press and among the public since they know of its existence? As I understand the Bill, that would not be possible. Of course, the claimant may win the claim and the judge may use the powers under Clause 7 to enforce concessions on the claimant, but the public and the claimant will never see that video.
Civil claims are not always about winning or money but about knowing the evidence that establishes the allegation. The same is true for the press, as Ian Cobain, the Guardian journalist who gave evidence to the committee, said. His allegations were viewed as conspiracy theories by the Government, but documents disclosed in court proceedings have sadly proved otherwise. As I understand the Bill, CMP applications are ex parte, so there will never be cases in which the press should be represented to argue the open justice issue. Also, apparently meritorious claims are struck out as the intelligence is so central that it cannot be tried. As I understand the Bill, a claimant is not helped as only the Secretary of State can apply for closed material procedures.
What of confidence in Lady Justice herself? I rely here on the words of the noble Marquess, Lord Lothian, that it is perception that matters. We do not legislate in a vacuum and there is concern about the level of trust that the public have in institutions—except, I think, in the monarchy and the judiciary. On “Thought for the Day” this very morning, the right reverend Prelate the Bishop of Norwich helpfully summed this up for me when he said that confidence in our institutions is dependent on our trust in the individuals in them. Do the public have such confidence in the groups that will give evidence behind closed doors in a closed material procedure?
Before I am accused of being a fantasist, I pray in aid evidence from the Deputy Assistant Commissioner of the Metropolitan Police, Sue Akers. Her witness statement to the Leveson inquiry is as follows:
“Alleged payments by journalists to public officials have been identified in the following categories: Police; Military; Health; Government; Prison and others. The evidence suggests that such payments were being made to public officials across all areas of public life. The current assessment of the evidence is that it reveals a network of corrupted officials”.
Your Lordships will remember better than I the West Midlands serious crime squad. I am not a doomsday merchant, but one has to think about what happens if this system goes wrong. Who will do the public inquiry? Not, I think, a judge—not because they lack the integrity but because what is being asked of them is beyond the capacity of any human being if both sides are not there to bring forward the evidence and to rebut one another’s claims. Human beings are fallible. Home Office officials have been known to use the power to redact documents to cover up Home Office mistakes. MI6 was found to be incompetent at checking where its seconded staff were for over a week. How will all this not be less challengeable if behind closed doors?
Finally, I ask the Government to consider very carefully the implications of the following scenario. What will be the position under this Bill of the trial in which the right honourable Jack Straw MP is currently sought to be added to proceedings in his personal capacity over allegations from a Libyan military official that he authorised his rendition to Libya? The Government are an existing party to these proceedings and a CMP would be eminently possible. Is Mr Straw going to sit in the corridor outside a locked court? Imagine that Mr Straw loses the claim and has to pay £500,000 damages, and all that is done behind closed doors. He has also previously had security clearance, so he will potentially have knowledge to rebut these allegations from his direct experience, which he will not be able to use.
I welcome that correction from the noble Baroness, but I think that the majority of the point still stands. Do your Lordships trust the Twittersphere to carry this information properly without muddying the waters with potentially inaccurate party political accusations? “The Conservative and Liberal Democrat Government changed the law and Jack Straw, the former Labour Foreign Secretary, had to pay damages”—is that fewer than 140 characters? Will this enhance confidence in our judicial process?
Civil justice, with its disclosure provisions, is often the only avenue open to individuals to get the details of what has happened. This should not be underestimated. It is an old adage that justice must not only be done but be seen to be done. Could this Bill actually make matters worse for the security services and the Government? Can no one knowing the truth actually be better than, “We know but we cannot tell you why.”?
My Lords, the House owes a very deep debt of gratitude to the noble Baroness for an extremely courageous and hard-hitting speech. With her background, we would all do well to listen very carefully to what she has to say. I also put on record my own admiration for the continued work of the Joint Committee on Human Rights. As a former member, I know just how much time and hard work is involved in that committee, and the whole House should be grateful to its members for all they do. I wish there was more evidence that the Government gave higher priority to dealing with the arguments put forward by the Joint Committee on Human Rights when participating in debates of this kind—this is not a party point because, frankly, it was also true of the previous Government.
The relationship between democracy, security, human rights and law is always very complex and intricate. Secrets are inevitable if we are taking security operations seriously. The crucial issue in a democratic society is who decides what should be the secrets and where the ring-fences should be placed. There will be checks and balances—they are inevitably needed—but this is a crucial issue that needs very careful scrutiny. I get worried by talk of trade-offs. I do not think that “trade-offs” is the right term. Human rights and certain fundamental principles of law are non-negotiable. There may be exceptions, but that is not a trade-off. The moment you start talking about trade-offs, you are suggesting that certain human rights and principles of law are not absolute. They should be absolute.
I am glad to see the remit of the Intelligence and Security Committee being extended. I am also cautiously optimistic about greater accountability to Parliament. Of course, ideally that committee should be accountable to Parliament. If, as we examine them, the terms of the legislation suggest that parliamentary accountability is being strengthened, this will be important.
Obviously, I am not a lawyer. My background is totally different. Therefore, I hope that the House will forgive me if I flat-footedly walk around as a lay man in the debate, but sometimes the lay men should be heard. For me, the starting point is: what kind of United Kingdom do we want to live in? I think all of us here would agree that the quality of justice was very central to the kind of United Kingdom in which we want to live. We would like to have a model with which we are happy and which can be a model for the world. When we prattle and preach about the responsibility of other nations to implement the rule of law, it starts with our own demonstrable commitment to upholding those principles.
What are those principles? Habeas corpus is obviously central—no person ever being detained without knowing for what reasons they are being detained and what is being alleged against them; that is absolutely crucial. Justice being seen to be done—not in corners or in secret clubs or secret arrangements, but manifestly, publicly seen to be done—is essential. Justice being open is another of those principles—our adversarial system is very important. When I was on the Joint Committee on Human Rights, we went to look and were perhaps a little tempted by and flirted a bit with some of the investigatory traditions of other systems of justice in Europe. I think that most of us came back absolutely convinced about our own. It is through honest, adversarial procedures in court that the truth can be established. It is about a constant search for truth. I would add that compassion—the compassion that comes only from those who are strong and self-confident—is of course an important element in the administration of the law.
It has been a hard struggle to move forward on those principles. We only have to think, in this anniversary year of Dickens, of what was happening in Britain in the 19th century. We have come a long way since the 19th century, and we are the trustees of the outcome of that struggle. It could all too easily be thrown away.
We must also be aware of the issue of counterproductivity—this is something we must never forget. We live in a complex society. I use the word complex again, but complexity is central to life in my own estimation. It is so easy inadvertently to strengthen the wrong elements in society by alienating important sections of the community which become subject to the manipulation of extremists and others. We must fall over backwards not to make that mistake. I believe—and I am somebody who was nurtured in the Second World War, when we stood very firm on these principles —that the more acute the nature and size of the challenge, the more important it is to stand firm by the principles of the society we are defending. That is the hallmark of confidence and real strength.
I am afraid—and I must say it—that too often I see evidence of retreat and erosion in the face of terrorism and extremism. Each retreat represents a victory for the extremist, and we must never forget it. It also creates corrosive precedents. What should always be exceptional can too easily become convenient. We should strive always to deal with offences, however grave, within the normal judicial system and the normal procedures of our penal system. It would be disastrous if it became established over time that in this country we had first-class law available to some people and second-class law available to others.
I am afraid that sometimes we are rather good in Britain at refusing to face up to the harsh realities of what we may be generating. If we have special courts and special advocates, and if there are powers to withhold information—in effect on government say-so—when does the detainee become a political prisoner? What is the absolute dividing line between a detainee and a political prisoner? We very often use language about political prisoners in reference to other societies, but we must ask some very honest questions here about ourselves. We ought to listen to the special advocates on this. I remember that when I was on the Joint Committee on Human Rights the special advocates gave evidence to us. It was very powerful to see how unhappy they were about their lot and how they felt that they were being expected to perform in a way that was absolutely alien to their training as lawyers in this country—the principle of defending somebody with whom you are not allowed to discuss the real substance of what it is all about.
I have listened with fascination in this debate to those who are pre-eminently well qualified to comment on what is before us. It seems to me essential that all the time we are considering the Bill and putting it under scrutiny, we should have four questions in mind. First, does it regenerate and uphold a resolve and unshakeable commitment to open justice? Secondly, does it strengthen the means to deal convincingly and effectively with allegations of serious state wrongdoing? Here of course I have in mind torture and rendition in particular. Torture is an abomination. It is cruel to the people tortured, it is damaging to the people doing the torturing, and it is a total contradiction of everything we say that our civilised values are about. It is easy to say that, but are we taking the action that is demanded if we are serious in that judgment? Thirdly, does the Bill convincingly counter the dangers of manipulation of court proceedings by government, especially when government action goes against the considered wisdom of the judge? Fourthly, does the Bill effectively reverse what I believe to be a disturbing and accelerating trend towards curbing the ability of the public to hold the Government and their agencies to account through the courts? Here I cannot help making a comparison with another Bill that has just gone through this House: I am still dismayed by the way in which we have limited the availability of legal aid in our society. What are we doing to the quality of justice in the United Kingdom?
Let me conclude simply by saying that it is arguable that the 20th century saw a high point in the development of quality UK justice in the context of democracy. It will be a tragedy if the 21st century becomes one in which, by a weak and sad reversal of those considerable achievements, we produce an inferior system of justice. We must not let the extremists and the terrorists win.
My Lords, I declare an interest as chair of Reprieve, an NGO campaigning against the death penalty and secret prisons around the world. It was involved in the Binyam Mohamed case. I start by acknowledging two things. First, the Bill is a significant improvement on the Green Paper that preceded it, and a very welcome improvement. Secondly, there may be a very limited category and number of civil cases in which closed proceedings may be necessary to ensure that justice can be done in circumstances where, if there were no closed proceedings, material critical to the fair resolution of an issue would be excluded from the court’s consideration. This, of course, could include fair resolution in favour of the claimant as well as in favour of the defendant. I would expect this to be a very small—exceedingly small—number of cases.
My question for the House is whether the Bill as currently drafted achieves an appropriate balance between delivering justice in that very small category of cases and the wider public interest in enjoying a justice system that is open and public. Will the Bill deliver that very small—exceedingly small—number of cases, or might it deliver rather more; indeed, too many? My view is that, despite the obvious improvements, there is still a way to go. I want to focus on two areas: public interest immunity and the Norwich Pharmacal jurisdiction.
Public interest immunity has served us very well over many years and judges are very experienced in the exercise of this jurisdiction. It enables a party to the proceedings to invite a judge to conclude that any given material, while relevant to an issue in the case, should be withheld from that case on public interest grounds. Naturally, those public interest grounds can include national security grounds. In conducting this exercise, the judge is required to balance the public interest in protecting sensitive material from disclosure against the private litigant’s legitimate interest in seeing material that may assist his case or undermine the case of his opponent.
I am not aware that it has ever credibly been suggested that judges in our courts are inclined to get this balance wrong. My own experience over many years, including during the five years that I served as Director of Public Prosecutions, is that our judges do not get this balance wrong, despite what American intelligence agencies may quite erroneously believe. Some aspects of the Bill appear to have been included because of what almost everybody accepts is a misapprehension on the part of a foreign intelligence agency.
At present, the Bill requires the Secretary of State merely to consider public interest immunity and presumably to reject it as a suitable mechanism before going on to apply for a close material procedure. This is not enough. I urge the Government to take the opportunity represented by this legislation to strengthen, rather than undermine, our PII jurisdiction. As the Joint Committee on Human Rights has said, it should be placed on a statutory footing to strengthen confidence and to increase clarity. Such a reform could include, among other things, the test to be applied when national security material is the subject of a PII application.
I also believe that it would strengthen the integrity of any CMP were it to be invoked only following a full PII process. In other words, the judge would be invited to rule, in accordance with traditional PII principles, that the relevant material sought to be withheld could properly be withheld on public interest grounds. Having made that ruling, the court would then go on to consider, again on conventional PII principles, the extent to which a redacted form of the material, or a summary, could safely be disclosed consistent with the public interest.
Finally, if at the conclusion of this conventional PII process a party wished to go on to apply that the court should go into closed session to hear any remaining material permitted to be withheld under PII, only then would the court be empowered to accede to that application to the extent that it felt a fair trial would be impossible in the absence of factoring that material into its consideration of the issues in the case.
The scheme would be: first, consider the relevance of the material to issues in the case—normal PII; secondly, consider the extent to which its disclosure might damage national security—normal PII; thirdly, consider the extent to which redaction or summary can cure the problem—normal PII; fourthly, in appropriate cases after that process, rule that the material may be withheld on grounds of public interest; and only then, fifthly, upon an application by one of the parties, rule that the material withheld can be considered by a court in closed session because, in the view of the court, a failure to do so would render the proceedings as a whole unfair. It would be a strong PII system as we understand it today, with the possibility in a small number of cases, once that process had been exhausted, for the court to go into closed session. Such a scheme would encourage a focus throughout the process on the important principles to be decided. It would very strongly discourage abuse or inappropriate, overhasty recourse to the CMP procedure, which is, I fear, a real danger under the current proposals.
I turn to the Norwich Pharmacal jurisdiction and Clauses 13 and 14. These are far too widely drawn for the following reasons. Clause l3 relates to “sensitive material”. The listing of this category of material as deserving of special protection is an unfortunate throwback to the excesses of the Green Paper. Worse, whole swathes of material are deemed to warrant, without any further consideration, the tag of “sensitive”, so that they are automatically and absolutely excluded from disclosure. This includes any material emanating from the intelligence services in the widest sense.
Of course, some material emanating from the intelligence services, though certainly not all of it, may be “sensitive”, but that is the wrong test. It has been abandoned in the rest of the Bill and it should be absent from Clause 13. The test should be the extent to which a disclosure would be damaging to national security, as it is elsewhere. Even then, there should be no automatic carve-out. The power to withhold this material should be subject to a judge’s ruling on the merits, as it is in the case of an application for a CMP. It should be the same test.
Even worse, Clause 13(3)(e) allows the Secretary of State to specify that any other material may be excluded if its disclosure in his judgment could damage national security or damage the interests of our international relations. The exercise of this exceedingly broad executive power is reviewable by a judge, but not on its merits and only on JR principles; that is, the judge can reject the Secretary of State’s certification only if he finds its exercise to have been “irrational”. This test does not provide adequate supervision over such a sensitive exercise of ministerial power, undermining, as it must be, of important principles of open justice.
The Norwich Pharmacal jurisdiction can sound a dry and technical subject, but, as my noble friend Lord Lester of Herne Hill has pointed out, it exists in cases where a great deal may be at stake, including the very life of the complainant who may, for example, be residing in a foreign prison and potentially facing sentence of death, as was the case with a number of Guantanamo Bay inmates. As things stand, the courts will make a Norwich Pharmacal order only where the party against whom it is sought has become mixed up in wrongdoing and where the interests of justice require it. Are we now to say that, however mixed up in wrongdoing the party against whom disclosure is sought may have been, and however strongly the interests of justice may demand disclosure, the behaviour of the wrongdoer, if it is an intelligence agency, shall be afforded total and automatic protection in all third-party applications of this sort? I do not believe that we should say that and this proposal goes too far. It causes deep offence to conventional legal principles because it ousts the effective supervisory role of the court in a way that is almost calculated to lead to injustice, even on a heroic scale.
I accept that, in cases in which national security issues are genuinely engaged, some adjustment to the Norwich Pharmacal jurisdiction may be appropriate, but the solution is emphatically not entirely to exclude certain bodies from its range. The solution may be, as I think the JCHR indicated, a presumption against disclosure in national security cases in the Norwich Pharmacal jurisdiction, overturnable by the judge if, in his or her view, serious injustice is likely to occur in the event of non-disclosure.
Even in the field of national security, I do not believe that it is in the broader public interest to move to a scheme where the interests of justice are entirely exiled from the equation so that they cease to exist as a check against the abuse of state power.
My Lords, having had some experience of matters relating to national security involving many of the considerations inherent in this Bill, I absolutely recognise the importance of protecting intelligence sources, intelligence methodologies and those agents who have the complex and often difficult task of running the sources who are often engaged in the very issues on which they provide intelligence.
Such activity is of course regulated but much of it occurs in real time and in situations in which the Security Service necessarily exercises a degree of discretion —for example, about the involvement of sources in crime or terrorism. The noble Baroness, Lady Berridge, referred to where things go wrong. In Northern Ireland, there is a body of evidence about such circumstances. Examples are sources being funded to make trips to other places to buy arms and munitions for the purposes of terrorism, and sources who admit to murder not being prosecuted for those murders because the important thing is to retain their services as sources, the consequence being a lengthy career in serious crime, which could have been prevented. A balancing of the public interest, or even the administration of justice, with their ongoing activities might have led to different state action from that which occurred.
I mention that because it is important that, as far as possible, there should be no provision that enables the Government to withhold intelligence or other sensitive information relating to national security in a manner that prevents a litigant asserting and proving his case if our current situation with regard to the operation of government and the rule of law is to be maintained and, hence, our national security is to continue to be protected. Introducing further limitations to judicial oversight and involvement, as proposed in the Bill, cannot be welcomed where alternative measures can be taken that will better serve the interests of both openness and justice. In that context, it might be useful to consider the references of the noble Lord, Lord Grenfell, to the disclosure judges and their activities in Northern Ireland.
There are mechanisms for the accountability of the Security Service and anti-terrorist policing, to which we have reference in the Bill, but I think that, with respect, the current arrangements cannot inspire great confidence because of the very limited resources and opportunities for access afforded to those who are charged with the responsibility. Great atrocities, both here and in the United States, have led to calls for examination of what happened—for example, with the Omagh bomb 14 years ago or with 9/11. The reality is that the intelligence services do not operate alone; they operate with the police and other statutory agencies. Sometimes there has to be a public inquiry, and we have seen several in Northern Ireland. In such circumstances, there will be consequential disclosure and such inquiries may well be in the interests of national security, so we cannot start with the assumption that everything has to be protected.
I welcome the exclusion of inquests from the Bill. However, I should like the Government to explain why inquests should be excluded but civil actions for damages against the Government taken by the loved ones of those who have died should be subject to the possibility of a CMP. The response cannot simply be that Article 2 does not apply to civil actions. The perception is that the effect of that provision is that the Government might be influenced in their decision to withhold information because to disclose information would be very costly in terms of the damages that they might have to pay. Of course, the claimant may not know the extent of wrongdoing which may have led to death or serious injury and may therefore be inclined to settle for a sum which does not reflect the extent of wrongdoing. I heard the Minister say that without CMPs the Government would have to settle cases which they could otherwise defend because they must protect national security. It is possible that the perception outside your Lordships’ House will be that the Government are creating, perhaps unwittingly, a damage limitation mechanism exercised by virtue of this provision.
It is important in dealings with other Governments that our Government should not become complicit by omission or commission in any wrongdoing by those Governments. The removal of people to places where torture and inhuman treatment is likely on the basis of security intelligence is risky, to say the least. I have referred previously in this House to the case of Maher Arar, who was transferred by the Americans to Syria on the basis of intelligence obtained by torture. Mr Arar spent a year in Syria tortured by the Syrian authorities before he was released to return to his homeland of Canada—the Syrian Government and the Canadian Government both acknowledging that he had had no involvement at all in al-Qaeda. There are lessons for us in such cases.
We must have proper arrangements for the transmission of intelligence between countries in the interests of each country’s national security, but we must also acknowledge that countries have a wide moral responsibility to share intelligence to protect life. It is important that the United Kingdom does not bow to threats of non-sharing but, rather, asserts clearly the integrity of the judiciary in the United Kingdom and the fact that there has been no breach of security and that our legal processes are competent to deal with such matters without the introduction of blanket bans such as might emerge from the application of Article 13.
Central to the rule of law in the United Kingdom are presumptions of openness and fairness. It is, in part, confidence in the rule of law which allows us governance. The Select Committee on the Constitution said in its third report:
“This is a constitutionally significant reform, challenging two principles of the rule of law: open justice and natural justice”.
Those basic principles should not be diminished—and that is what the Bill will do—unless it is absolutely necessary. The Supreme Court in Al Rawi concluded that such measures would require “compelling evidence”. The necessity and proportionality of the measures in the Bill must be considered if your Lordships are to decide whether to approve the Bill or its individual clauses.
If we look at the response of those with significant experience in the area, we see that the Joint Committee on Human Rights, of which I am now a member, states that, even with special advocates, CMP,
“is not capable of ensuring the substantial measure of procedural justice that is required”.
It does not accept that replacing PII with CMP is justified. Special advocates have said that CMPs are inherently unfair: they do not work effectively and they do not deliver procedural fairness. The Court of Appeal, commenting on the special advocates procedure, said that even it is “inherently imperfect” and,
“cannot be guaranteed to ensure procedural justice”.
Justice has observed:
“There is nothing in the Bill to address unfairness”.
If we examine the proposed CMP, we see that much of the judge’s discretion and authority, which currently exists under the PII procedure, is negated by the CMP. The power all lies in the hands of the Secretary of State, who can apply for a declaration and then make the applications. The court must grant the application. The court may not even consider whether a PII procedure would be a better alternative. Once that is done, there will be consideration of individual pieces of evidential intelligence, but the reality is that the special advocate procedure does not permit full challenge of the material presented. Once the special advocate has seen the material, he can have no further discussion with the litigant; he has no responsibility to the litigant. That would be fine were it not for the complexity inherent in the assessment and examination of intelligence. The noble and learned Lord, Lord Kerr, stated most compellingly in Al Rawi—this has been referred to repeatedly—
“To be truly valuable, evidence must be capable of withstanding challenge … evidence which has been insulated from challenge may positively mislead”,
a court. Can the Minister confirm how the Government propose to ensure the necessary and full examination of national security material in the absence of such great judicial involvement in scrutiny?
Nothing in the CMP procedure would equate to any attempt to carry out the balancing of interests in the administration of justice exercise, which was developed in the Wiley judgment. The Constitution Committee stated that it is,
“difficult to see the justification for removing the Wiley balancing exercise”.
Will the Minister consider the introduction of some provision to mitigate the inherent unfairness of the Bill, whether by way of disclosure of material to legal representatives or in redacted form, as suggested?
I support the remarks of the noble Lords, Lord Pannick and Lord Lester, about the effect of the Bill on the Norwich Pharmical procedure. There continues to be no definition of national security—something which alternatively mystifies and occasionally benefits those who are required to make decisions in the interests of national security. It is also important to bear in mind that nothing is absolute. Even the identity of sources may be revealed, as was clearly demonstrated in the comments of Lord Chief Justice Carswell in the Northern Ireland case of Scappaticci. He stated, in the context of the “neither confirm nor deny” policy, that the Minister,
“can depart from the NCND policy … if there is good reason to do so to meet the individual circumstances of the Applicant’s case.
He continued—this is profoundly important for us in our law-making function—
“A decision maker exercising public functions who is entrusted with a discretion may not, by the adoption of a fixed rule of policy, disable himself from exercising his discretion in individual cases”.
We must accept the reality that there are cases in which the general rules about non-disclosure of intelligence material will have to be disregarded. It happens now, for example, if somebody is murdered and a source can give vital evidence about the murder but revealing the source would compromise him as a source. This will happen and he will then be repatriated to a new existence—something which he may not find particularly palatable, but it deals with the problem and with the requirements of justice. It is also the case that intelligence-gathering methodology has evolved. What might have been required to be protected even in 2006 may no longer require protection in 2012. It may be that the Minister will assure me that such consideration will always be part of the making of decisions about whether to apply for a CMP or whether simply not to make an application.
I seek assurances from the Minister on the provision in Clause 13 that,
“disclosure is contrary to the public interest if it would cause damage … to the interests of … international relations”.
There is no definition of what this damage might consist of, or of what objective criteria should be used to determine whether disclosure would cause such damage. There is a very clear proportionality and human rights issue here. Issues of the protection of national security are not new. We have long been engaged in battles to preserve and protect our national security, and I use that term in its widest sense. Procedures for dealing with the problem have evolved in a very measured way and the PII system is probably a very good example in this context.
Finally, why did the Government choose not to put PII procedures on a statutory basis, as many have recommended, in an enhanced form but, rather, to move towards the extension of the CMP, which has been described in such negative terms by so many of great distinction who have served this country so well? At this point, I endorse the suggestions made by the noble Lord, Lord Macdonald, regarding the introduction of a statutory PII process with the possibility of, in very exceptional circumstances, a closed material process. This would surely meet the objectives.
My Lords, I do not intend to detain your Lordships long as I have just one central point to make, but as it relates in part to the media I must first declare my interest as director of the Telegraph Media Group and draw attention to my other media interests in the register. I slightly wonder whether I should follow the example of the noble Lord, Lord Judd, and declare that I, too, am a flat-footed layman, somewhat intimidated by the assembly of the great legal minds that have graced this debate.
As we have heard in many eloquent speeches, the Bill goes to the heart of some fundamental constitutional principles and, indeed, human rights: the duty of government to safeguard the state and its citizens and, consequently, their right to life; the right of defendants to a fair trial, based on information on which they have had a chance to comment; and the demands in a free society for open justice, fully and fairly reported on, and indeed scrutinised, by an independent and robust media.
In the debate on the gracious Speech, I raised some concerns that, based on the Green Paper which foreshadowed the Bill, this legislation would end up undermining some of those vital principles and expressed a great anxiety, which was echoed in the report of the Joint Committee on Human Rights, at,
“its failure to consider the impact of such a radical departure from long established principles of open justice on the media’s ability to report matters of public interest”.—[Official Report, 15/5/12; col. 361.]
It is to their great credit that the Government listened to the widespread concerns expressed by the media and many others about the Green Paper’s proposals and likely impact in this area and have acted so decisively to deal with them in the Bill before us. That is warmly to be welcomed and it shows quite how important consultation is in such legislation. I think that the noble Lord, Lord Butler of Brockwell, made that point earlier.
I am particularly grateful to my noble friend the Minister of State for his courtesy in writing to me after the debate on the gracious Speech to reaffirm the Government’s strong commitment to open and transparent justice and to outline, as we have heard a number of times today, how their proposals relating to CMP with significantly strengthened judicial control would provide much needed safeguards. I understand that his most helpful letter, dated 11 June, about the media aspects of this legislation is in the Library of the House. Those safeguards will go a long way to protecting the integrity of media reporting, with claims and allegations—and indeed the outcomes of cases—continuing to be made and reported on in open court, with material remaining closed only where it is compatible with Article 6 rights under the European convention. It is also extremely welcome news that the Government have decided that inquests should not be held in secret. A number of noble Lords have referred to that.
I still have some areas of concern, such as the power under Clause 11 allowing the Secretary of State to make an order that would extend CMPs to any court or tribunal, with, as I understand it, important procedural provisions contained in rules of court not subject to the same detailed scrutiny as primary legislation debated in this House. It is crucial that such a move, entailing a substantial departure from our tradition of open justice, will be permissible only in the rarest of cases. I am sure that is what the Government intend and it would be helpful to have confirmation of that.
That said, this is, in the scheme of things, an issue more of subsidiary concern on which I hope we will be able to get reassurances. I ask my noble friend the Minister to continue the Government’s constructive dialogue, particularly with the media, that has to date been so effective and to discuss any further suggestions that may come forward for additional improvements intended to safeguard public oversight in this area.
This important Bill is a complex balancing act, as we have heard in so many contributions, between open and fair justice and the security of the citizen. Achieving such a balance between security and liberty, like trying to mesh together Hobbes and JS Mill—not a task I would wish to undertake—is fiendishly complicated. We have heard many concerns today and I have certainly listened to thought-provoking comments. I was struck by the speech of my noble friend Lady Berridge. However, from my vantage point, the Government are to be congratulated on listening to legitimate concerns and striking the balance with care. As a leading article in the Daily Telegraph on 30 May put it:
“We are facing a continuing threat from terrorists whose methods are ever more sophisticated, and the manner in which we counter those threats must be protected. This measure reinforces the rule of law without giving ground to those who would do us harm”.
Those are sentiments with which I concur. At the start of this debate, the noble and learned Lord said that we should test this legislation by whether it is a sensible and proportionate response to the threats that our society faces. In my view, it passes that test.
My Lords, I will confine my remarks to Part 1 of the Bill and the Intelligence and Security Committee’s operations. I listened to the very reassuring remarks made by the noble Lord, Lord Butler of Brockwell, who poured praise on the committee on the basis of his experience not only as a member but as one of those who engineered the construction of the committee. He was also able to watch that committee’s operation in the early days, when people such as me from the awkward squad in the House of Commons were put on it in an attempt to reassure the public.
I was a member of the committee between 1997 and 2001, under the excellent chairmanship of the noble Lord, Lord King of Bridgwater. In 1998, I set out in a paper to the then Prime Minister, Mr Blair, my provisional views on reform of the committee. Sadly, at that stage my views were rejected; they were a minority view that I had been pushing inside the committee. I wanted a committee of Parliament—not of parliamentarians—under a modified Select Committee structure, especially adapted to deal with the handling of national security issues. I should report that in the late 1990s there had been much discussion in the committee in private on whether we should go down the Select Committee route. I recall one particular day when we were discussing the amendment to the annual report from our committee, where we were hassling over the wording so as not to lead the public to believe that we were going to go down that route but to inform them that there was at least an argument going on within the committee on that matter—and that is 14 years ago.
The debate has now moved on. I hope to deal in Committee with some of the recommendations that I made at the time. However, the heart of my case today is that the model the Government are adopting is wrong. Some of the changes I welcome; but I regard the changes that are being made as essentially cosmetic. They will not meet the concerns of Members of the other House, or the expectation of the public, where they have an interest in these matters. Furthermore, the reforms might perhaps be counterproductive. Let us take the process of appointment. Under Clause 1(3) and (4), the Bill proposes that a person is not eligible for membership unless nominated by the Prime Minister. A member is then appointed by Parliament, effectively under a resolution of the House. At the moment a person is appointed by the Prime Minister on a recommendation of the Whips. I know that over the years members of the committee have tried to convince the public that they are appointed by the Prime Minister; the reality is that all members of that committee were appointed on the basis of Whips’ recommendations, certainly in the House of Commons. The only difference under the Bill is that the House will have to approve, on a resolution—a rubber stamp—the Prime Minister’s recommendations, which means a payroll vote, supported by the opposition Front Bench, backed up with an informal Whip, with bi-party guidance in support. It might even on occasions be a fully whipped vote.
As one of the Commons awkward squad, I was involved in challenging a Select Committee nomination, which very rarely happens in the House of Commons, certainly on only a few occasions over my 21 years there. One never has the support of the Whips, as a challenge is seen as an assault on the workings of the usual channels. What I am arguing, therefore, is that that is no great change.
On the wider issue of ISC operations, there are effectively no changes. On the block on ministerial membership, the length of service, the dissolution of the Commons, the resignation arrangements, quorum and membership cap, determination of procedures, reports, approval by the Prime Minister, and agreements on the remit between the agencies and committee, there is very little change. There is certainly little change on areas which will be set out from the Front Bench by my noble friend Lady Smith of Basildon. The only real areas of change are the arrangements on access to operational material and arrangements for the selection of the chairman, both of which I oppose.
Let us take access to operational material. Under present arrangements:
“The position for the present ISC is that the Director-General of the Security Service, the Chief of the Intelligence Service or the Director of the Government Communications Headquarters (as well as the relevant Secretary of State), is able to decline to disclose information because it is sensitive information which, in their opinion, should not be made available. Paragraph 3 removes this ability for the Agency heads to withhold information. The ability to decide that information is to be withheld will instead rest (solely) with the relevant Secretary of State (for the Agencies) or Minister of the Crown (for other government departments)”.
I am quoting from the Explanatory Memorandum. Well: Secretaries of State; ministerial responsibilities. I regret to say that my then right honourable friend Robin Cook is not here to defend his case today; but I was on the committee where Robin Cook had responsibilities in these areas. When he gave evidence to us on one occasion—it has never been made public before, but I am not breaching national security by saying what happened—we were appalled by how defensive he was towards the services. He was most unwilling to provide for us information which the committee felt that it was entitled to hear. That was the view of all members of the committee, including the chairman, at the time. Let us take the position of Michael Heseltine, for whom I have very great regard, in the early 1980s, when he was in pursuit of CND. Are we saying that people like that should be able effectively to veto information being given to the committee when the law provides that the committee has access to operational material? In other words, they would be able to say, “This material cannot be given to the committee”. I have far more faith in the heads of service long before I am prepared to trust Ministers to take particular decisions as to whether the flow of information should be vetoed. To put it more bluntly, I have more faith in the Stephen Landers or the Baroness Manningham-Bullers of this world and in their decisions on these matters than ever I would have in the decision of a Minister of the Crown. Ministers of the Crown on occasions will make thoroughly political decisions; sometimes even their personal credibility might influence the judgments that they make. I think that it is an error of judgment to go down that route.
Under the question of access to operational material, let us take the definition of “sensitive” that might apply to the provision of information to the committee. I quote again from the Explanatory Memorandum on the Bill. Under the present arrangement:
“The position for the present ISC is that information is considered sensitive information, if (among other reasons) it might lead to the identification of, or provide details of, sources of information … or operational methods available to the Agencies; or if it is information about particular operations which had been, were being or were proposed to be undertaken in pursuance of any of the functions of the Agencies. Paragraph 4 extends these parts of the definition of sensitive information … to cover also equivalent information relating to any part of a Government department, or any part of Her Majesty’s forces, which is engaged in intelligence or security activities”.
I read that as meaning that under sub-paragraph (5)(a) and (b) of paragraph 3 of Schedule 1 to the Bill, we are giving a power perhaps to a junior Minister, perhaps even to a Parliamentary Secretary, to block access to operational material in any department if that Minister, adequate or inadequate, wise or unwise, perhaps even being manipulated, decides that the issue is either national security-sensitive or is not reportable to a departmental Select Committee. That is not a reform; it is a fudge.
Then we have the arrangements for the selection and appointment of the chairman. Under Clause 1(6):
“A member of the ISC is to be the Chair of the ISC chosen by its members”.
In other words, at the beginning of a Parliament, perhaps on a change of government, new members of the committee, without any knowledge whatever of the internal dynamics of the committee which are important, of individual member relationships with the agencies, or of the kind of work to be undertaken, are to be asked to appoint a committee chairman. I regard that proposition as ludicrous. When I was first appointed to that committee in 1997, I would not have supported Tom King as chairman. As far as I was concerned, having just come through 17 years in Opposition, to me he appeared to be an abrasive former Cabinet Minister. However, within a matter of months, I realised that he was absolutely ideal for the job; he was perfect in the chair and I would have supported him all the way; but not at the time, after the general election in 1997. Yet under this arrangement, new members will go into that committee and they will be required to vote for a new chairman of the committee. That proposition is quite ludicrous.
The model is wrong. What is my alternative? For a start, it should be a committee of Parliament, not of parliamentarians. We are going partly down that route. The committee should be a creature of Parliament, not of the Executive. I still believe that it is a creature of the Executive because of the ministerial veto. It is not a Select Committee and yet the Labour Party has supported full Select Committee status right through since the debates of 1988, almost 24 years ago. My noble friend Lord Richard made an important contribution to the debate in this House and my noble friend Lord Hattersley, as the shadow Secretary of State at the time, made a similar contribution in the House of Commons, supporting the Select Committee structure. So why are we still arguing the toss after some 24 years? It is widely known that committee members wanted some change, but I do not know what change or even whether this is what they really want. Is real reform being blocked in Cabinet, or perhaps by some boys in short trousers in Downing Street, or is there some legal reason? What is the reason for the fudge?
I believe that the committee should be a Select Committee, meeting on the Parliamentary Estate, established under a modified Select Committee structure, approved by a special resolution of Parliament, with procedures specifically adapted to deal with the handling of issues of national security. It would have the protection of parliamentary privilege, which could be fully considered by the Joint Committee currently being established to deal with the issue of privilege. It could hold those who deliberately misled it in contempt, which is currently the position with Select Committees. It could take evidence under oath and publish reports with the right of the agencies to request redaction, subject to appeal from agency or committee to the Prime Minister, which I call the security override. It should have the power to refer material to other Select Committees, again subject to the override, and have the power to call for persons and papers under similar arrangements. It would be a credible mechanism for the issuing of statements on issues of national security where the agencies might be in the dock in public opinion, as against the present position of a nod and a wink to sympathetic journalists.
I turn to the issue of the handling of operational information and of sensitive material more generally. As I have said, I completely reject the idea that Ministers should effectively have a veto on the flow of such information to the committee. The chairman of the committee should have open, unrestricted access to all post-operational security material, described in the Explanatory Memorandum as,
“retrospective oversight of the operational activities”.
It would be for the chairman in consultation with the agencies, not for Ministers, to decide on whether any operational information should be withheld from the committee for reasons of national security; or for the chairman in consultation with Ministers more widely where other Select Committee considerations were in mind. The chairman would decide. The chairmanship of the committee would then be crucial. Noble Lords will now see why I do not want it to be elected.
This model would change the entire dynamics of the operation of the committee. For a start, you could not elect its chairman. It would subtly change the nature and form of accountability. That appointment would have to be on the agreement of the Prime Minister and the Leader of the Opposition and would be an appointment of trust. Malcolm Rifkind, the noble Lord, Lord King of Bridgwater, my noble friend Lady Taylor of Bolton and others who followed could have done that job and been fully trusted by the agencies to be given access to that material. They would then be responsible for deciding what information the committee was given where issues of the veto arose.
I could go further, although I am still turning it over in my mind. I could argue that there are circumstances in which such a chairman could be given access to pre-operational material on the basis that it could not in any circumstances be disclosed to the committee. Post-operation, of course, it could then fall under the general heading of retrospective oversight and the chairman would then have the discretion, following consultation with the agencies. Noble Lords will note that I have excluded Ministers from the process. The discussions that regularly take place between the Government and the agencies would have no bearing on accountability to the committee. I am proposing a very different model, and I hope that the Government are listening.
My Lords, I am in a small but growing minority in this debate in that I am neither a distinguished lawyer nor a member, not even a former member, of the ISC.
When compared with many other countries, it is remarkable how much the British people hold the courts in high regard and respect their decisions. This is partly because our judges are seen as incorruptible, independent and wise, but the main reason is that court decisions are the result of a process that is fair and transparent. By “fair” I mean that the court will give no privileges to either side, even when one side is the state. This principle is known in European jurisprudence as “equality of arms” and is a very British concept. An important aspect of equality of arms is that each side has an opportunity to see the other side’s evidence, to challenge it and test it, and to call evidence of their own to rebut it. The decision that is made after that process has been respected as one that we have good reason to respect.
What does transparency mean in this context? The principle of transparency entails that proceedings should be open to the public unless there is a very good reason why not. The court should make plain the reason for its decision. No matter how high our regard for the judge, it is very hard to trust his or her decision if you do not know how and why it has been reached.
Closed material proceedings are a big departure from the principles of transparency and fairness. The Government are proposing that, in civil cases where they are the defendant and are being accused of wrongdoing, they should be able to stack the proceedings in their favour on what is probably the deciding issue in the case. CMP is not just a secret hearing with the press excluded; the litigants and their lawyer are also locked out. The Government’s lawyer would have a private meeting with the judge who will decide the case and give him or her so-called evidence that their opponent cannot see. I say “so-called evidence” because it will simply be assertions that have not been tested or challenged. It may be mistaken or could even be complete fiction. Even so, the Bill requires the judge to take this highly dubious information into account when reaching a verdict—a very one-sided arrangement that cannot in any way be described as fair.
What led to the creation of CMPs in the first place? They were introduced for Special Immigration Appeals Commission hearings involving foreigners for whom a national security deportation was being considered. Previously such appeals were held in total secrecy and, by comparison, CMPs were a bit less bad. We are now being invited to extend CMPs from this highly specialised application to civil cases, where the Government are the defendant and are being accused of wrongdoing.
However, that is not the end of this mission creep. Buried in the Bill, in Clause 11(2), is the power for the Secretary of State to amend the definition of “relevant civil proceedings” by statutory order, into who knows what areas of our justice system.
Of course, we have a good idea of how far the Government would really like to go in extending the scope of CMPs. The Green Paper sought to apply CMPs to all civil proceedings involving the Executive. Secret and unfair hearings, therefore, could have been invoked by a hospital trust fighting a medical negligence claim, or a local authority defending itself against a claim for maladministration. For now, the Lord Chancellor has rowed back on that ambition in the face of a mountain of protest, but he has shown us the ominous and dangerous road that he wants to take us down.
What of the safeguards that the Government have trumpeted? We are told that the case judge will decide whether CMPs will be invoked, not the Minister. However, there is a disconnect between what the Government are saying on this and what is actually on the Bill. According to the Bill at present, judges will have their hands tied, with no discretion to consider the competing interests of disclosure in the interests of justice and national security. This, therefore, will effectively be a ministerial decision, with no effective judicial oversight.
What, then, is the problem that this Bill seeks to solve? The current system of PII certificates works well. It allows a balance to be struck between the requirements of justice and national security. If a Minister believes that disclosure could harm the public interest, he or she signs a certificate to that effect. The court then considers the issue, and the judge has a number of ways to handle the information in question. He can withhold it, release it, redact it before he releases it, protect the identity of the witness, and he has a number of other nuanced solutions. The PII system works well, and the Government have failed to bring forward a single example of where the PII system has led to a disclosure that has been damaging to our national security.
In fact, the Bill requires a Minister to “consider” the PII route before applying for a CMP, but the wording of this provision is so weak and easy to evade that, in effect, Ministers can and will demand CMPs without giving any serious consideration to the much fairer PII route. If this Bill is to proceed, before the Minister can ask for a CMP he should have to demonstrate to the court that for some reason a PII certificate will not do the job.
What do others think of this Bill? The House could do worse than listen to the views of the special advocates, specially vetted lawyers who are appointed to serve the court in CMPs. If anyone knows about the grimy details of this part of the justice system, they do. In a memorandum signed by 50 special advisers—which is basically all of them—they say that,
“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 … in our view, none exist”.
There you have it from the horse’s mouth. No reason has been advanced and none exists for making part of our civil justice system inherently unfair. That is the opinion of the specialist lawyers with deep knowledge of this type of proceedings and with no axe to grind at all.
What, then, is behind this solution without a problem? Over the past few months we have been offered a series of spurious justifications for this draconian Bill, all of them without any evidence to support them that stands up to scrutiny. I put it to the House that this Bill has nothing to do with protecting national security or preventing the CIA from withholding intelligence from our agencies because they do not trust our courts, or with saving the Government from having to settle civil cases for large sums because they cannot use sensitive data to defend themselves. All these reasons and others have been advanced at various times with little or no evidence to support them.
I put it to noble Lords that the real problem that this Bill is designed to solve is the justified embarrassment that the security agencies suffered when a recent civil case exposed their involvement in rendition and torture. In that case, the previous Government sought to conceal from the courts seven paragraphs that admitted what the Americans did to the litigant while he was in their custody.
The judge’s view was that:
“Of itself, the treatment to which”,
“was subjected could never properly be described in a democracy as ‘a secret’ or an ‘intelligence secret’ or a ‘summary of classified intelligence’”.
This Bill might have prevented the exposure of this wrongdoing and it may do so in the future if we pass it without major amendments.
I am sorry to interrupt my noble friend but that is not quite right. The previous Government attempted to provide that information to the United States Military Commissions, but were thwarted from doing so by the American intelligence authorities. What the British Government sought to do was entirely honourable and they did not seek to conceal it from our own court. I thought I should just place that on the record.
I thank my noble friend for that. The Lord Chancellor has indulged in plenty of comforting rhetoric in an attempt to assuage the serious concerns that many people wiser than I have about this Bill. The problem is that there is a yawning chasm between his words and those in the Bill. For example, he assures us that the judge will decide whether CMP will be used but the Bill as currently worded makes clear that the judge’s hands will be tied and will have little option but to grant the Minister’s request for CMP, even if he or she believes that the case could best be tried using PII rules. The judge will not be able to adjudicate between the competing arguments of justice and national security.
As it currently stands, this Bill is a toolkit for cover-ups. As such it is a threat to our democracy and we have a lot of work to do to fix its serious shortcomings. I hope that my noble and learned friend the Minister will listen to the strong misgivings about this Bill around the House, among civil liberties campaigners and, particularly, the special advocates who have a much more balanced and independent view of these matters than the politicians and the security agencies.
I will listen carefully to the Minister’s response today and in Committee. I hope that he is able to give me comfort to support a much-improved version of the Bill in the future but there is a long way to go.
My Lords, this Bill was always likely to be controversial and contributions so far have shown that that is the case. Part 2 has been a particular focus of attention. It is concerned with restricting the disclosure of sensitive material in court proceedings. A number of noble Lords have spoken who are not lawyers, and I entirely agree that the issues that this Bill throws up are not solely the possession of lawyers. I am, however, an advocate and as such am instinctively opposed to any erosion of the principle of natural or open justice. Evidence should be heard and read by litigants and their representatives, and their comments and reactions to it are a fundamental part of what we recognise to be a fair trial, whether that trial is in criminal or civil proceedings.
The Bill involves the extension of CMPs to include civil proceedings. It should be emphasised that CMPs are not of themselves a novelty and exist in a number of different contexts, as the Minister has described. The extension was presaged by the Green Paper, and the Government’s proposals have been much commented on in the media and by various interested parties. The Government have acknowledged the contribution of those who commented on the proposals, not least the JCHR, of which I am now a member, although I claim no credit for that contribution as I was not a member at the material time. I am conscious of some of my distinguished predecessors on that committee. Contributors to the debate even included the Daily Mail, a newspaper that normally causes the party opposite to reach for their collective smelling salts.
In response to representations, the Government have made some important modifications to their original proposals. The most important seems to be that the CMPs will be appropriate only in the disclosure of evidence that would be,
“damaging to the interests of national security”,
rather than in criminal proceedings or disclosure that might damage international relations. I share with the noble Marquess, Lord Lothian, some little confusion as to why inquests fall into a separate category. As the noble Lord, Lord Lester, has said, this may be to do with the jurisprudence in Strasbourg about Article 2 and its expanded approach. The questioning in inquests may be rather different than in civil proceedings or judicial review proceedings, or the Government, as a reasonable matter of political expediency, may have responded to public disquiet.
Be that as it may, there appear to me to be certain relevant questions about what remains of CMPs. Have the Government made their case for an extension of CMPs, and if so are there sufficient safeguards in the Bill to minimise any risk to justice? The problem with the current system is that the Government are between a rock and a hard place. They may take the view that in disclosing material that will damage the interests of national security, but using PII if the application is successful, they may not be able to defend proceedings without what may be crucial evidence in their favour. The result may be that there is an inappropriate compromise of a civil claim.
The noble Lord, Lord Thomas, says that the Government are apparently in favour of the settlement of proceedings. This is not what I detect from the anxiety behind this Bill; they are in fact against inappropriate settlements where evidence has not been adduced. On the other hand, if the PII application is unsuccessful and the judge in performing the relevant balancing exercise decides to order the disclosure of material, the Government, consistent with their assessment of the potential damage in disclosure, will be placed in a position where they may have to settle a claim, to which there is if not an actual then at least a potential answer. This cannot be satisfactory and is of itself damaging to the interests of justice. The Government are entitled to justice, too.
The noble Lord, Lord Pannick, says quite rightly that in the course of looking at the doctrine of PII, judges have developed a range of responses to mitigate the stark choice that is sometimes presented to the Government. The ingenuity of judges includes the redaction of material and anonymisation and other procedures, but sometimes—this has been the case in the past and will be so again—the Government are left with that stark choice, which I understand is the philosophy behind this part of the Bill.
I am naturally concerned by the comments about CMPs that have been made by the special advocates, some of whom I know well. Many of their points seem valid; in particular, I am unsure how a satisfactory assessment of prospects of success can be made in the absence of critical evidence. How, too, can cases settle on the basis of a proper assessment of likely outcome—and here I acknowledge the point made appropriately by the noble Lord, Lord Thomas? How is Part 36 of the Civil Procedure Rules to operate? I am also very sympathetic to their very understandable regard for their clients’ interests, which they feel may be compromised by the lack of a free flow of communication between the special advocates and open advocates and by the risk that some relevant piece of information may remain unchallenged because of this lack of communication.
I am much less convinced, however, by the suggestion that PII is working well. I am entirely sure, as the noble Lord, Lord Macdonald, pointed out, that judges are performing the balancing exercises wisely, but for the reasons I have given the operation of PII may on occasion simply fail to deliver a just decision.
The use of CMPs will inevitably be what has been described by the independent reviewer as a second-best solution. However, it is significant that David Anderson QC, in the course of his providing memoranda to the JCHR, was convinced that there was a need to have a CMP available as an option in civil cases, albeit that it might not need to be exercised anything other than very occasionally, and I agree.
Special advocates, whatever their reservations about these procedures, are known to be tenacious in the defence of their clients and in challenging evidence adduced in CMPs. It must be recorded that a number of distinguished judges, not least the noble and learned Lord, Lord Woolf, who is not in his place, have said that CMPs are capable of producing justice and are consistent with it. Other judges, such as the much quoted noble and learned Lord, Lord Kerr, have observed that the lack of informed challenge, based on instructions, may leave the judge with a significant disadvantage in assessing the cogency of relevant evidence.
While in theory that is undoubtedly right, experience of our judiciary tells me that if evidence is adduced under CMPs, judges are likely to be particular rigorous in assessing its value. For example, if what is adduced amounts to double hearsay from a dubious source, that evidence, which could be unchallenged, is unlikely to be of much persuasive value. I simply do not recognise the scenario described by the noble Lord, Lord Strasburger, whereby little bits and fragments of assertion are put forward and expected to be relied upon by judges. It seems to me that if the Secretary of State elects to invoke CMPs, he or she is likely to do so only when the evidence is of real cogency. Let us not forget that the Government have lost cases after CMPs.
It is also worth observing that the extension of CMPs relates to civil proceedings involving claims for damages or judicial review, rather than to criminal proceedings, as we were reminded by the noble Lord, Lord Butler of Brockwell. While all cases should be subject to a full and preferably open hearing, the extension provided by this legislation is not concerned with criminal charges with a potential for loss of liberty.
The relative roles of the judge and the Secretary of State were much discussed in the responses to the Green Paper. It is for the Secretary of State to make the application, and the court must then make an appropriate declaration. However, I agree with the noble and learned Lord, Lord Mackay of Clashfern, that under Clause 6(2) one would expect the judge to try and devise strategies and to be interventionist in order to have a mode of trial that can, if possible, avoid CMPs, which are perhaps a last resort—but a necessary last resort.
It is said that Clause 6(5), which provides that the Secretary of State must first consider making a claim for PII, is of very little force. However, I would expect the Secretary of State to need to satisfy a judge that there had been at least consideration of such an option, and an explanation provided as to why PII was not used. The rules of court that are to be made pursuant to Clause 7 require a judge to consider providing a summary or gist of the material that is not damaging, within the definition of the Bill. Presumably, it would enable the claimant to provide some comments on the relevant evidence. This would need to be carefully done, but it would provide a potentially important safeguard.
The role of the Human Rights Act is also of importance. Article 6—the right to a fair trial—is specifically referred to in the Bill and provides another safeguard. In fact, we had well established principles of fair and open justice long before the Human Rights Act came into force. However, if one is to view these provisions in Human Rights Act terms, it should be remembered that Article 2 of the convention places an obligation on the Government, as a public authority, to protect the life of their citizens. In focusing on litigants, we should not forget the rest of the population, whose well-being may well be jeopardised by the disclosure of sensitive material.
Such concerns also colour my approach to the removal of the Norwich Pharmacal remedy in relation to sensitive material. It is vital that we protect the sources of our intelligence and that we maintain the confidence of our allies who provide us with that intelligence. If there was any doubt about that, it was confirmed by the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian. This remedy is concerned with cases in which foreign litigants want to see material that we hold innocently and does not affect cases where the Government are alleged to have been involved in wrongdoing, although I do not particularly like the expression “legal tourism” in this context. While I understand why the Government have chosen a wide definition of sensitive material, I invite the Minister to explain why the definition needs to be quite as wide as it is in the Bill. I do not suppose that it is intended to deny access to what most people might regard as non-sensitive material, but the Bill at least has the potential to allow such an approach.
We have heard a lucid analysis of the Binyam Mohamed case by the noble Lord, Lord Lester; and other noble Lords, including the noble Lord, Lord Pannick, referred to it. It can be seen from an examination of that case law that the courts in fact showed a considerable degree of deference to the security services, and some of the concerns expressed by other countries may be rather lacking in justification. However, it has to be remembered that the Norwich Pharmacal power is unqualified. The Government do not have the choice that they have in relation to the CMPs, and if ordered to produce this material they have to comply with the order.
Whether or not the fears of the United States and other countries are unfounded, it is critical for the safety of our country in these dangerous times that we do not jeopardise that relationship. I appreciate that the Government are placed in a very delicate dilemma, and it seems that we should have profound sympathy with their response, albeit that modifications may be made in the rigour of that test, which will more satisfactorily balance the respective interests.
This Bill will be thoroughly scrutinised by your Lordships’ House—
My noble friend may not be aware of the fact that in the Binyam Mohamed case, after the Norwich Pharmacal order was made, the court reserved the question of public interest immunity, but it never had to be decided because he was then released. It would not have been all or nothing. It is quite clear from the judgments that there would have been something. The courts, having decided Norwich Pharmacal, could then have decided on PII. I am not sure whether that is appreciated.
I entirely appreciate that. It is one reason why I suggest that there may be some modification to the test that we may ultimately arrive at, after having considered this matter in Committee. This Bill will be thoroughly scrutinised in Committee by your Lordships’ House, and it is clearly right that it should be. I hope and trust that we can avoid hackneyed references to Kafka and the Star Chamber. I am sorry that in an otherwise lucid speech by the noble Lord, Lord Beecham, he did not resist that temptation. The Government have a duty to protect us. This Bill is situated at the junction between that duty and the need to protect civil liberties and the integrity of the trial process. Please let us not forget the people of this country and those in the security services who labour silently on our behalf to protect them, in the course of our zeal to trumpet our commitment to the rights of litigants.
My Lords, it is not unusual at this stage of a debate to think that everything has been said and that everyone has said it. Indeed, on this occasion the people who have said it are those who know about the subject. There is one exception, because there is one Back-Bench contribution still to be made. I am sure that what I have said will apply to that contribution as well. Your Lordships are too polite to say, “Well sit down then”. However, like some of us, I acknowledge that I speak from a degree of ignorance and, some might say, naivety. The noble Lord, Lord Hodgson, described his feelings as apprehension. I would say that apprehension does not begin to describe it.
Part 1, which deals with the oversight of intelligence and security activities, had been eclipsed by Part 2 in the comments that we received before this debate. It is interesting, and encouraging, that more attention has been given to Part 1 than I expected. It is very significant, not least because we want to avoid the litigation which may be the subject of Part 2. However, just as the question about Part 2 is whether the Bill has drawn back enough from what was floated in the Green Paper, on Part 1 the question is whether the provisions go far enough to meet concerns to achieve all that could be achieved, or are we in danger of missing an opportunity? That would be a pity given the calls, to which reference has been made, for strengthening the powers of the Intelligence and Security Committee and for making changes to its composition, its staffing and its remit to support that strengthening.
There are a lot of related terms for the functions of such a committee: oversight, examination, supervision and scrutiny. “Oversight” is in the heading of Part 1. I wonder whether that is the right word. The functions described are essentially retrospective, and the ability to put material in the public domain—which, to me, is fundamental and possibly the main part needing scrutiny—is constrained. Indeed, the committee itself may not always be able to access key information. However, to be positive, I note that the functions under Clause 2 adding the operational function, which are new in comparison with the 1994 Act, are there and that is welcome.
Operational matters which are not current are of significant national interest. We might want to unpack what that means later. They also have to be consistent with the memorandum of understanding which Clause 2 provides for. I ask the Minister whether we are able to see a draft of the memorandum of understanding so that we can debate it in context, or perhaps a draft or framework or some clues about the principles referred to in Clause 2.
The new status of the committee is important but, given that its reporting function is subject to prime ministerial edit—other noble Lords have said much the same thing—it still reads as a creature of the Executive. Perceptions are important and it is important to demonstrate independence. I note that what is defined as sensitive information, subject to restrictions on disclosure, is to cover not only the three agencies but also,
“any part of a government department, or any part of Her Majesty’s forces, which is engaged in intelligence or security activities”.
I accept, as the noble Marquess, Lord Lothian, pointed out, that national security is narrower than public interest.
The role played by government departments in the intelligence landscape is an issue and I do not think that that is an irrelevant comment. For some time, I have been wondering whether the Home Office, for instance, would have a different culture if the Office for Security and Counter-Terrorism were not embedded in it; they are in the same building. Perhaps I may indulge in a small flight of fancy: if the Home Office building were used, for instance, by civil liberties campaign groups, there would be a very different sort of conversation around the water cooler.
One of the difficulties is that, by definition, intelligence is not evidence, as has been said by many noble Lords. The ISC cannot substitute for the judicial process. We have the Investigatory Powers Tribunal investigating individual complaints. Is that worth exploring? I want this committee to be quite ambitious, so is it worth exploring whether it should have some sort of role in dealing with complaints and perhaps even with inspections? I also wonder aloud whether the committee might have a role—perhaps I am about to be struck by a thunderbolt—in confirmatory hearings of senior appointments.
We need to find out how to do these things without jeopardising what is sensitive within the definition. We know that the intelligence services are understandably sensitive about sensitive material. Even if there is too much such material to make redaction practicable, some such role might provide some reassurances.
In summary, I am searching for ways for the ISC to use procedures, not to be hamstrung by them. Others have spoken in detail on Part 2 and I acknowledge how far the Bill is from the Green Paper—and it was a Green Paper. If it is possible for something to enter one’s DNA during one’s late teens and early 20s, the fact that a lawyer should be able to take full instructions from his client worked its way into my DNA as I learnt my profession. It is not a matter of a client giving a monologue, but there has to be a dialogue with questions to the client and a discussion of what will or might be said against him. The noble Lord, Lord Judd, said that the special advocates made it clear that the procedures were alien to their training. Evidence is not evidence unless it is the subject of test and challenge. Almost all speakers have referred to that. I use the term “unease” as a description for my response to what is proposed now. I suspect that no one in this Chamber or who has been involved with the Bill is complacent about it.
Is it possible to loosen restrictions on special advocates to security-clear “normal” lawyers, if there is such a thing? I think that my noble friend Lady Williams suggested that. My noble friend Lord Thomas of Gresford shared ideas about changes in the process. I share a concern that closed material procedure will become the default mechanism—it will become normalised. Like my noble friend Lord Macdonald, I acknowledge that there is a small number of cases where some such procedure may be required to achieve justice. Some call CMP “secret justice”, but that is not a term that I like, because we and the public need to be convinced that it is justice as well as secret.
I noted the comments that the judiciary is deferential to the Government on security matters. I suspect that the Government may not see it that way, given some of the comments that we have heard about the judiciary over the years. The noble Lord, Lord Faulks, referred to a particular case. I do not share that reading of deference. Instead, I hope that I see the integrity to which my noble friend Lady Williams referred.
Because of that element of my DNA, I was keen during the passage of the recent Protection of Freedoms Bill to pick up an issue that was highlighted by the Bar Council, and I will mention it briefly today because I hope to return to it in Committee. I refer to the issue of legal professional privilege, which ought to sit easily within the Bill. I hope to use the Committee stage to pursue how to prevent the use of RIPA powers of surveillance, covert human intelligence sources, interception of communication and the acquisition of communications data to target legally privileged information while permitting it to be accessed when a lawyer/client relationship is abused for criminal purposes. One cannot do one’s best for a client if he does not have confidence that what he says is privileged and he edits his story. The noble Lord, Lord Henley, who is to respond to the debate, will be familiar with that. He was very helpful in meeting the Bar Council during the Protection of Freedoms Bill and I will trouble him again.
Last week, I had the privilege of judging some awards for good scrutiny. There are many dedicated and imaginative scrutineers out in the rest of the world. It reminded me that some words are not jargon. They are very important terms and they will never go out of fashion. Justice is obviously one and so, too, are transparency and accountability.
My Lords, I declare an interest. I spent 33 years in the Security Service, but I also have a strong interest in the rule of law. I retired more than five years ago and the difficulties of intelligence and the civil courts, which is what we are talking about rather than the criminal courts, and the problem of Norwich Pharmacal have largely arisen since I retired.
Some important points have been made in today’s Second Reading, with many of which I sympathise. When we come to Committee, no doubt there will be a number of amendments that will seek to refine and improve the Bill. At this stage, I want to talk about the three main themes of the Bill in the order in which they come. I start with the Intelligence and Security Committee.
In the 1980s, although the noble Lord, Lord Butler, said that the intelligence and security agencies were anxious about such scrutiny, I can remember many in my service arguing for it. We felt that some parliamentary oversight—what those words mean, I agree with the noble Baroness, Lady Hamwee, is not entirely clear—was necessary. We thought that there was a democratic deficit. We found little support from the Prime Minister of the day or from the Government for that sort of committee. Not until many years later, in 1994, did it come into existence.
As the noble Lord, Lord Campbell-Savours, says, what we are seeing here is evolutionary not radical change. It is worth saying that my predecessors, I believe my successor and I have over the years ignored the narrow rubric of the Act, which says that the committee should confine itself to looking at matters of “policy, expenditure and administration”. This was always risible because all of those things are intimately connected with the operations of the service. Although we did not do so to begin with, because confidence needed to build up, certainly over the years we have sought to be very open with the committee and, looking for example at the 7/7 report that has extensive details of operations, we have been so.
I never refused to answer a question of the committee. That may have been because the committee itself was quite sensitive in not asking me, for example, the identity of my most important agent in the IRA or al-Qaeda because the committee itself understood that, in order to fulfil its function, it did not need this sort of really sensitive intelligence. The committee will evolve further. From my own view, I do not see a problem with it becoming a Select Committee. I am very interested and flattered that the noble Lord, Lord Campbell-Savours, thinks that he would get more truth from the head of the committee than the Ministers, on which I could not possibly comment. I end this bit by saying that it is very much in the interests of the security and intelligence agencies that parliamentary oversight is as thorough and convincing as possible. This is why, when my name was put forward to be on the committee, I said I could not possibly do it because the committee would be looking at things when I was director general.
This brings me on to the closed material proceedings. I understand the very real concern expressed in this House and outside that what the Government are proposing in resorting to secret justice—probably itself a contradiction in terms—is to conceal wrongdoing and to protect what should rightly be exposed. From my reading of it—and I accept that a number of bits need amendment—the Bill tries to address serious dilemma in very few cases, though we can argue in Committee how well.
I am interested that the noble Lord, Lord Macdonald, and the noble Baronesses, Lady O’Loan and Lady Hamwee—and probably many others earlier in the debate, I cannot remember—acknowledge that there may be some small, narrow band of cases where the dilemma on how to deliver justice is to bring highly relevant but sensitive material that would be excluded by PII into court and not keep it out. It is surely fair to claimants and to defendants in civil cases that such material is put in. The judge will decide whether it will be a CMP procedure.
Currently, a number of serious distortions in small cases seem to occur. Allegations become facts because they cannot be defended. Settlements presume guilt, even when the Government admit no liability. Perhaps almost more importantly, claimants may get financial satisfaction, but only that. Whether through these proposals or others, we need a way that is safe to test the allegations, some of which, as the noble Lord, Lord Pannick, said, are extremely serious and of the gravest nature against the Government and agencies like my own. These need to be properly investigated by the court and a determination made, which, I suggest, cannot happen without secret material.
This brings me to Norwich Pharmacal, which is new to me. I am interested to hear from present members of the parliamentary committee that it is already seriously damaging the exchange of intelligence, perhaps from a false perception of what the High Court determined.
The control principle is a pretty fundamental one. If we threaten and undermine it, we will be the losers. There is an exchange of intelligence around the world, not just with the Americans. All our European friends produce hundreds of pieces of information a day. It comes from Australia, New Zealand and Belgium—not much from Belgium, but a bit. We receive lots from France, from Germany, from Spain and from friends in the Middle East. We receive intelligence from countries and states that are not friends, and whose intelligence exchange has to be carefully handled. There is an enormous amount of intelligence.
The sources of foreign intelligence, just the same as those of our intelligence, are often fragile. Human sources can be exposed and killed. They have Article 1 rights to life just the same as other people. Technical sources can be quickly compromised and rendered useless. Other countries will not share with us if doing so jeopardises, or they judge it to jeopardise, their sources of intelligence. Who can blame them? We would do the same. We will not always or, indeed, even usually know or be able to judge the risk to their sources. Of course they make a judgment before handing us the intelligence, but if the judgment is that that would risk exposure, they will not hand it over. We need that intelligence when faced with a globalised threat.
I had further points I wanted to make in my speech, but many of them have already been covered by other speakers. I shall therefore end by saying that I have heard a lot in the debate about the conflict between liberty and security. Fundamentally, I feel that these are not concepts that should be in conflict. Security underpins liberty and, as I said in my Reith lectures, without security there is no liberty. I should say that I agree strongly with the comments of the noble Baroness, Lady Williams of Crosby, on that. When we reach the Committee stage, I hope that it is within our capability to pass an Act that damages neither liberty nor security and delivers justice that, while it is not open and therefore definitely second best, is better than the absence of justice in a very narrow range of cases where the use of highly sensitive material in court is necessary.
My Lords, we have had an interesting and informative debate and I hope that the Minister is grateful for the detailed and useful comments that have been made. They are an indication of the kind of debate we will have in Committee, which I think will be very constructive. Not only has this debate been worthwhile and informative, but I was struck by where the areas of agreement are, where the areas of disagreement and concern are, and where there is broad agreement on those areas of disagreement and concern, if the noble Lord follows my logic.
I suppose that I have to declare a non-interest in that I am one of those who the noble Lord, Lord, Lord Hodgson, referred to as an “outsider” and who my noble friend Lord Judd called a “flat-footed layman”. However, I should say that in the debate today the majority of speakers were non-lawyers—only narrowly, but we made the majority. I would argue that while it is a legal debate and there are strong legal implications or stages, it is not just a legal debate. As the Minister said when he introduced the debate, these are complex issues that go to the heart of our democracy and our security, so the Government have to find a correct balance that takes into account our national security while not losing sight of individual rights. As many noble Lords indicated, there are times when finding that correct balance is challenging.
I was interested in the analogy drawn by the noble Baroness, Lady Berridge, of the statue of Lady Justice and her seven scales. I know she meant it to be an amusing comment, but there is a lot in it which reflects how complex and difficult these things are. She made quite a serious point in that regard. What is clear is that the level of expertise available in your Lordships’ House to contribute to this debate will try to seek the consensus that the Government originally referred to. It might be that one of the reasons the Government started the Bill in your Lordships’ House was to make use of that knowledge, experience and expertise.
If I may digress slightly, noble Lords may recall that in making the case for an elected House with 15-year terms, the Deputy Prime Minister Nick Clegg described your Lordships’ House as having a “veneer of expertise”. That is hardly the case today. We have not seen a veneer of expertise; we have seen very strong expertise, not just from the lawyers that I have mentioned and senior members of the Bar and the judiciary, but members and former members of the Intelligence and Security Committee and the Constitution Committee, those with professional experience of security agencies, those with experience of government, former Ministers, journalists and those with a record of standing up for the protection of civil liberties and human rights. I think that the Deputy Prime Minister also said that the knowledge in the Lords was 40 years out of date. The collective knowledge in this House goes back well beyond 40 years but it is also up-to-date, and that will be very valuable as we progress to Committee.
I do not want to dwell in any detail on the Ministry of Justice issues that my noble friend Lord Beecham has already referred to, but will focus mainly—although not exclusively—on Part 1 of the Bill regarding the oversight of intelligence and security activities. The noble Lord, Lord Butler of Brockwell, referred to the “modernisation” of the committee. I always baulk slightly at the word modernisation because it often means technology and doing things differently for the sake of it. But I think he went on to describe the kind of progress that he was seeking and perhaps the words “progressive reform” might be a better way of looking at this.
The Bill seeks to reform the ISC by giving it the formal statutory function of overseeing the wider intelligence community, not just the agencies but including counterterrorism and the Home Office. It provides for retrospective oversight of operational activities, as happened once before with the 7/7 report that we have heard about. It also provides the power to require information from agency heads, with a veto only by the Secretary of State—or Minister if it is the Cabinet Office—and that Parliament will elect the ISC from a list put forward by the PM after consultation with the Leader of the Opposition. The proposal is that the chair should be chosen by members of the ISC, not the Prime Minister.
In the main, we support what are sensible proposals to strengthen the ISC’s power of scrutiny, which stem, I understand, from the ISC’s own report, published last summer. There is widespread support for improved oversight and scrutiny, but a number of noble Lords, including my noble friend Lord Campbell-Savours and the noble Baroness, Lady Manningham-Buller, asked whether these proposals go far enough and whether there was scope to strengthen them further. It would be helpful to consider a number of additional items to improve the scrutiny and oversight; for example, for the ISC or its chair to have a greater ability to view individual cases, such as control orders, or for the chair to be a senior opposition MP.
The Government should also consider authorising, where appropriate, some of the committee’s hearings to be held in public in order to strengthen public confidence in the committee. In the same vein, we believe it would be helpful and would benefit public accountability for the agency heads to come before the committee in public once a year, just as they do in the US Congress. Furthermore, we want to give further scrutiny in Committee to the ministerial veto over the release of information. Specifically, we want to probe the Government’s definition of “sensitive information”. I will come back to that because it was raised by several noble Lords, but we want to probe what the Government mean by the definition in sub-paragraph (3)(b) of paragraph 3 of Schedule 1, which refers to,
“information of such a nature that, if the Minister were requested to produce it before a Departmental Select Committee of the House of Commons, the Minister would consider (on grounds which were not limited to national security) it proper not to do so”.
I am not clear why this is necessary over and above the test of national security and sensitive information.
As the Bill progresses, we would also be interested to hear the justification for Clause 3(4). It allows the Prime Minister to order the exclusion of part of the committee’s report to Parliament if the Prime Minister considers, after consultation with the ISC, that it is prejudicial to the discharge of the functions of any of the agencies.
I move on to Part 2. Clauses 13 and 14 relate to the Norwich Pharmacal jurisdiction. This has been referred to today by a number of noble Lords. In discussing its implications, there are two issues: first, whether the Government have correctly identified the problem and, secondly, whether they have correctly identified the solution. As we have heard, the Norwich Pharmacal case was an intellectual property rights case in 1974. It set the precedent of residual disclosure jurisdiction, whereby the courts can order disclosure of information by a third party—neither the plaintiff nor the defendant—if the following conditions pertain: the information is required in order to bring action against an alleged wrongdoer; the third party against whom the order is sought is “mixed up”, however innocently, in the wrongdoing; and the third party is in a position to provide the information sought.
Clearly, in 1974, no-one envisaged the extension of this case to intelligence—that was never the intention—but the Binyam Mohamed case in 2010, mentioned already, highlighted the possibility of application of the principle to the disclosure of foreign intelligence. I understand that there were other cases as well. According to the Government’s independent reviewer of terrorism legislation, David Anderson QC, this case also prompted concerns among our intelligence partners that the UK Government could no longer guarantee the control principle, which is that intelligence shared with us would not be published by our courts. There is an interesting quote from David Anderson QC, who says:
“The realisation that secret US material could in principle be ordered to be disclosed by an English court, notwithstanding the control principle, and that the Government had no power to prevent this from happening, appears to have come as a genuine shock to many influential people in America”.
I must say that until the noble Baroness, Lady Manningham-Buller, spoke, I was quite disappointed that so much of the debate centred around intelligence sharing and our relationship with the Americans. As the noble Baroness pointed out, there are many other countries with which we share information and which are valued intelligence partners.
We appreciate that the control principle is a central understanding of our intelligence-sharing relationships with other countries and it is therefore essential to provide the necessary assurances to our international partners that this will be safeguarded. We must also recognise that there are profound implications of Norwich Pharmacal in terms of jeopardising foreign intelligence sharing, and the evidence seen by David Anderson QC appears to justify these concerns. Therefore, any solution must provide adequate guarantees to our foreign intelligence partners that intelligence shared will not be forcibly disclosed.
However, as has been rightly indicated by several noble Lords in the course of this debate, the key question here is whether the Government’s proposals to resolve this problem, in the words of David Anderson QC again, provide “proportionate limitations” to the Norwich Pharmacal precedent. We can support the direction of the Government’s policy, but we want to work with them to get the detailed definition of the clauses right. We will wish to probe some of our concerns around, for example, the Government’s definition of sensitive information, and specifically how tightly this definition is drawn. The first point of principle is whether it does the job that the Government say it does—that is, whether it provides the necessary assurances for our foreign intelligence partners. However, equally important is whether it is drawn more widely than is necessary for the specific purpose of safeguarding that control principle. The noble and learned Lord, Lord Mackay of Clashfern, and the noble Lord, Lord Pannick, both queried the extent of the definition of sensitive information, as did the noble Lord, Lord Macdonald. We want to probe the Government further on exactly what they mean in their definition of sensitive information. We also want to know what they mean by,
“information relating to an intelligence service”,
and the justification for that inclusion as part of the definition of sensitive material.
In relation to the public interest test under Clause 13(3)(e) of the definition, we will want to probe further what the Government mean in Clause 13(5)(b) by the interests of international relations. The noble Lords, Lord Dubs and Lord Macdonald, also referred to this. The clause refers to the damage,
“to the interest of the international relations of the United Kingdom”.
I can certainly understand the need to act in the interests of national security and appreciate the importance of international relations, but we will need to be assured that this will be in the public interest as defined by the Bill and not for reasons of political expediency on the part of any Government. As the noble Marquess, Lord Lothian, said, something cannot be excluded merely because it is embarrassing to government.
I do not recall mention in today’s debate of the fact that the proposals seem to extend wider than simply information derived from foreign agencies but also cover information originating from our own agencies that relates to foreign countries. The justification for that cannot be on the basis of preserving the control principle, because it does not relate to information shared with us by our foreign partners. Therefore, we would be interested to hear the Government’s explanation and justification for their intention to extend the scope of the Bill in this way.
The noble Lord, Lord Pannick, referred to open, natural justice being a constitutional principle but not sacrosanct, but he made it clear, taking up the point made by my noble friend Lord Beecham in his introduction, that we need far more information from the Government on whether this is justified. Like the noble Lord, Lord Lester of Herne Hill, we are not in principle against closed material procedures, but their use here would require a very high bar. The Government have yet to provide sufficient information to reach that bar. The noble Lords, Lord Pannick and Lord Macdonald, said that the case had not yet been made and both gave very interesting examples of how PII could be used in some enhanced form to create what the Government are seeking. If the case for CMPs relies on the 27 cases that the Government have spoken about, it is clear that a greater examination of those cases is necessary. That will require a far longer, more in-depth study by the independent reviewer or the ISC, because far more information on those cases is needed.
This has been a useful and interesting debate which has given us good material for the next stage of the Bill. If the objective of your Lordships’ House is to improve the legislation, the experience that was on offer in today’s debate and the information gained from it will enable us to do that.
My Lords, this has been an interesting and long debate. It seems quite a while since we started at 3 pm. We have got through some 22 speakers and I find myself being the 23rd. It is a short Bill, of some 16 clauses, but it raises some pretty big issues and has attracted a very distinguished congregation—if I may put it in those terms—to speak on it.
There has been some comment about the number of lawyers here today, and I was very grateful to the noble Lord, Lord Dubs, for being the first to point out—echoed by others—that this is not just a legal Bill and not just for the lawyers. I was glad that the noble Baroness, Lady Smith, having done a quick count, pointed out that the non-lawyers are in the majority in this debate, which is probably as it should be. However, as the noble Baroness said, it has attracted a lot of other distinguished speakers. We are very grateful for the presence of all those who are members of the JCHR and the Constitution Committee; all those who, like my noble friend Lord Lothian and the noble Lord, Lord Butler, are currently members of the Intelligence and Security Committee; and former members, self-described as part of the awkward squad, in the form of the noble Lord, Lord Campbell-Savours.
We are grateful for all that, and I hope that, as part of this debate and a fairly lengthy Committee stage and other stages, we will be able to go some way towards achieving the consensus that the noble Lord, Lord Lester, was looking for. It will not be possible to get consensus on every item, because I think that there are some fairly deeply held views that cannot be brought together, but I am sure that there are many things on which we will be able to get agreement. I am sure, too, that we will make every effort to ensure that the best possible Bill leaves this House to go on to another place. As my noble friend Lord Faulks, stressed, we need a very thorough Committee and later stages.
As I said, it is a short Bill that raises some extremely big issues. My noble and learned friend Lord Wallace took it in its proper order. He dealt first with Part 1 and then with Part 2 on the restrictions on the disclosure of sensitive material. If noble Lords will bear with me, I prefer to take it the other way round, because there has been far more talk in the debate about Part 2 than Part 1, but I will get to Part 1 in due course. I must also say in my opening remarks that it will obviously be very difficult for me to answer all the points put this afternoon in the necessarily shortish speech that I have to make, but I shall try to cover some of the broad themes. I hope that my noble and learned friend and I will be able to write to noble Lords and copy those letters to others as appropriate after the debate and ensure that we get those letters out before Committee, which, I understand, will be in the week commencing 9 July, so we have a little time to do that.
I begin with Part 2, with CMPs and Norwich Pharmacal. That has obviously excited most of the debate. Like my noble and learned friend the Advocate-General, I believe that the case is made to change how we deal with sensitive information in our courts. The novel application of Norwich Pharmacal jurisdiction to national security information has had consequences with key allies, as many noble Lords mentioned—I think the first was the noble Lord, Lord Butler. It is not just America, as some have implied, it is all our key allies. However, the provisions in the Bill are not driven solely by our intelligence partners. Secret intelligence generated by the UK’s own security and intelligence agencies could be liable to be disclosed as well. Parliament has recognised that the work of the security and intelligence agencies is of a special type. Information is core to their work and special arrangements already cover how they use and disclose it.
Although we all aspire to be able to hear every court case in open court with all relevant information disclosed to all parties in the case, I think that most noble Lords have accepted that there will be times when some of that information cannot be disclosed without damaging the public interest. The question we must put to ourselves—this will take some time in the course of our debate in Committee—is how we deal with that situation. Settling cases or asking the court to strike them out as untriable, may mean that claims, often making extremely serious allegations, can go unexamined and we are unable to get to the truth of what happened. I do not believe that that is justice.
PII has been another approach. It enables cases to go ahead with fully open proceedings but at the expense of excluding relevant and sensitive material from the case. That can work in some cases, but there are times when it does not—for example, where a case is saturated in sensitive material, as David Anderson QC put it. A successful PII application can render a case untriable or leave the Government unable to defend themselves without damaging national security. That can be unfair for claimants or for the Government.
CMPs have been the solution to that problem and they have worked successfully in a number of contexts. The noble Lord, Lord Butler, said that they were the least worst option. My noble friend Lord Lothian described them as being, on balance, about right. Openness is sacrificed for part of the proceedings, and this enables all relevant material, including national security sensitive material, to be taken into account by the court, but it is done in such a way that the proceedings are fair and the interests of any party excluded are properly represented. The Supreme Court has stated that it is for Parliament to decide what the procedures should be for dealing with such cases. The Government produced the Green Paper and we listened to the views. Again, many noble Lords, I think particularly my noble friends on the Liberal Democrat Benches, have accepted that we listened to the views and have moved forward a great deal from what was in the Green Paper and put forward for public consultation. We have brought forward the amended proposals in this Bill.
Noble Lords have highlighted a number of key issues in this debate and those discussions that we will have during subsequent stages of the Bill will obviously let us explore whether the Government have the balance right in these important matters. Perhaps I might deal with one or two of the points that have been raised that deserve some response at this stage, if I can find the right bits of paper—they are all here but in a strange order.
First, I wanted to cover the points made about special advocates and the recent paper that they put to the Joint Committee on Human Rights. I have seen their evidence, which I believe was published last week. The special advocates are reiterating arguments which they have made and, in effect, have had rejected by the courts. To some extent, special advocates do themselves a disservice. They are extremely effective, particularly in arguing in court that more information should be disclosed, and have helped to win cases by challenging closed evidence on occasions. The best way of dealing with this would be to quote what the noble and learned Lord, Lord Woolf, said in M v Secretary of State for the Home Department. He stated:
“Having read the transcripts, we are impressed by the openness and fairness with which the issues in the closed session were dealt with by those who were responsible for the evidence given before SIAC … We feel the case has additional importance because it does clearly demonstrate that, while the procedures which SIAC have to adopt are not ideal, it is possible by using special advocates to ensure that those detained can achieve justice and it is wrong therefore to undervalue the SIAC appeal process”.
I commend that to the special advocates and would suggest that they reflect on it.
I turn to the Binyam Mohamed case, which the noble Lord, Lord Lester, raised and has dealt with. He probably knows more about it than anyone else. On the information revealed in that case and whether it was in the public domain, my understanding is that the Court of Appeal ordered that seven paragraphs redacted from the Divisional Court’s judgment, which contained a summary of US intelligence reporting, should be restored to the judgment despite the existence of a PII certificate from the Foreign Secretary. The judge in the US did not put the contents, or a summary of the contents of the US intelligence reporting provided to the UK, into the public domain. The court made findings of fact based on allegations about Binyam Mohamed’s treatment that were not challenged by the United States Government.
I turn from that to the questions raised by the noble Baroness, Lady Ramsay, about the Bill’s provisions on intercept and how the evidence to support the conclusions of the Privy Council’s report on intercept would be used in criminal cases. The amendment contained in this Bill to Section 18 of RIPA lifts the prohibition in Section 17 of that Act so that intercept material can also be discussed in a CMP. This is in line both with other, existing statutory CMPs and with our desire to take account of all relevant information in CMPs.
As the noble Baroness knows, the Government are separately conducting an extensive and detailed review in order to assess the benefits, costs and risks of introducing intercept as evidence in criminal proceedings. This work continued under the guidance of the cross-party group of Privy Counsellors that she referred to. It will report in due course. I appreciate—I answered a question on this a few months ago—that we have been using that expression “in due course” for some time. However, I think that it underlines the very great difficulty of coming to a reasonable solution in this matter. I myself have changed my views this way, that way and again, and I know other far more distinguished people than me who have looked at this in much greater detail than I have who have also found it very difficult to come to a final decision. However, the process will continue. I was grateful that the noble Baroness referred to the work being done by the distinguished body of Privy Counsellors that is dealing with that.
The noble Lords, Lord Dubs and Lord Pannick, and other noble Lords, dealt with the whole question of whether it was for the courts to decide between PII or closed material proceedings. We are not convinced that the question of whether there should be a PII claim or a CMP should be left to the courts. It is a very important constitutional point that the Executive in the end have to be the guardian of the United Kingdom’s national security interests. Obviously, the courts will play an essential role in scrutinising the Government’s exercise of these functions. However, we believe that the question of whether to claim PII, and, accordingly, a CMP, should be left to the Home Secretary.
Similarly, the noble Lord, Lord Macdonald, suggested that a CMP should be held only after a full PII exercise, but we believe that it would be costly and illogical to go through a potentially lengthy PII process first. It may be obvious at the beginning, for example, that too much will be excluded. We understand that the Lords Constitution Committee did see the need for full PII; the report says that we can see force in the argument that it will sometimes be otiose to push the PII process to its completion before turning to a CMP.
That is a point that we will consider at much greater detail when the noble Lord puts down his amendments, which I am sure will appear. We will discuss that in Committee and no doubt at later stages. The point is that at the moment I am making our case and want to clear the arguments in detail. That is why I was rather loath to take too many interventions in this winding-up speech. I appreciate that my noble and learned friend took some seven interventions in opening, but on this occasion I am going to resist most of them, because the important point is that we discuss these matters in Committee, when we can deal with them in greater detail. The noble Lord will then be allowed to intervene to his heart’s content.
I see that my time is beginning to run up, and I want to get on. However, I shall say one more thing on this. I will deal with the question on sensitive information in Norwich Pharmacal clauses, which a number of noble Lords—my noble and learned friend, Lord Mackay, and the noble Lords, Lord Pannick and Lord Dubs, for example—all seemed to think was somewhat too wide. I must stress that this is the definition in the Norwich Pharmacal clauses; I appreciate that the noble Baroness also raised the definition of sensitive information for the Intelligence and Security Committee in Schedule 1, but that is obviously a different matter.
The fact is that virtually all material sought by Norwich Pharmacal applicants from the security and intelligence agencies is material the public disclosure of which would damage the public interest in safeguarding national security. Applicants do not seek open-source information or other unclassified material from agencies; they seek information specific to them that would be held by an agency and available only from that agency. If it was information necessarily derived from sensitive sources or from techniques or capabilities from a foreign intelligence department, all or any of that could be damaging to the public interest if disclosed. The approach taken in the clause in the Bill mirrors the protection of such information found, for example, in the Freedom of Information Act.
I turn to the less controversial part of the Bill, Part 1—if I can find the right part of my notes—which deals with oversight. This part had somewhat less coverage than the rest of it, but, after the speech from the noble Lord, Lord Campbell-Savours, and the interventions from the noble Baroness, Lady Smith, I am beginning to understand that it might generate just a bit of controversy and I might have some work to do, unlike my noble and learned friends, as I do that part of the Bill in Committee. I did not want to overlook the important changes that we are making to this and it is right that we should periodically re-examine the way in which we scrutinise that work. Again, I pay tribute to the current members of the Intelligence and Security Committee.
We are grateful to the noble Lord, Lord Butler, and my noble friend Lord Lothian for sharing the benefit of their experience of sitting on that committee. I am also grateful for the views that we heard from the noble Baroness, Lady Manningham-Buller, particularly what she said about trusting the head of the security services far more than she would trust Ministers. I will take that on the chin. I think she was echoing what the noble Lord, Lord Campbell-Savours, said, but she echoed it with approbation.
I recognise the experience that the noble Lord, Lord Campbell-Savours, has, and I am pleased that we will have an interesting time in Committee on that aspect of the Bill. The noble Baroness, Lady Ramsay, was concerned about the membership and thought that there was scope in the Bill for more Members of this House. I do not believe that there is any detail in the Bill about how many there can be, but I think the current rules are that at least one must come from each House, so it would be possible to have eight Peers and one Member of the Commons, or it could be the other way around. It will be for the Committee to decide what the appropriate number should be. That is something that we can discuss.
Again, my Lords, I was interested in the noble Lord’s suggestion. I do not think that it is necessarily the right path to go down, but that is the sort of point that we need to argue about and try to reach some agreement on in Committee. I am sure that the noble Lord will put down amendments and that we will have the opportunity to discuss them. I look forward to hearing the views of his Front Bench and other Members of this House.
I have more or less used up my time and have answered a mere tithe of the very good points that have been raised. As I said, we are going to have a detailed Committee stage in due course, when we will get to a lot of these detailed points. I look forward to that process, as does my noble and learned friend. Both of us will write a number of letters over the coming weeks that we hope will at least make it easier to deal with these matters. With that, I commend the Bill to the House.
Bill read a second time and committed to a Committee of the Whole House.
House adjourned at 9.39 pm.