House of Lords
Wednesday, 11 July 2012.
Prayers—read by the Lord Bishop of Chester.
Farming Regulation Task Force
My Lords, in February, we published our response to the Farming Regulation Task Force recommendations. This set out how we will address each recommendation. We are making good progress on meeting our priority commitments, which include reducing the burden of inspections and paperwork, and we have appointed an independent-led group to hold us to account in delivering them. However, this work cannot be rushed. It is important that standards in the farming industry continue to be maintained.
My Lords, on a day when over 1,500 dairy farmers are coming to London because of the crisis in their sector, should not more progress have been made by now on the implementation of the excellent Macdonald report? How can that best be achieved? Does the Minister agree that a culture of partnership and proportionate regulation is far more productive than a regime of excessive regulation?
I totally agree with my noble friend. It is a partnership arrangement. We can deregulate only in partnership with the farming industry. The dairy industry is no exception. However, it has a particular problem at this time. At Parliamentary Questions today, my right honourable friend the Prime Minister announced £5 million from the rural economy grant scheme to support innovation in the dairy industry for dairy farmers at this particular time. We understand their concerns and anxieties, and we need to strengthen their position in the marketplace.
My Lords, will that cover the cost of milk in the retail market? Why do some supermarkets appear to be happy to keep prices as they are while others put prices up? Surely this is the time for some form of regulation about milk prices, particularly in view of the extra costs to dairy farmers in other directions concerning their cattle.
I understand my noble friend’s question, but we are talking about deregulation rather than trying to regulate the market. The key thing, if I may say so, is to strengthen the role of the dairy producer in the dairy market, and that is where the Government’s efforts are going. I hope that my noble friend will understand that I want to stick to the principal theme of this Question, which is about deregulation.
My Lords, will the money which I understand the Prime Minister has been offering get quickly to the farmers? This is extremely urgent at the moment. One of the problems is, of course, that the wet weather means that the cattle are indoors and the food for the winter is being used now.
I have to emphasise that this is not direct income support and therefore it is designed to strengthen the productive capacity of the dairy industry. The scheme will be launched in the autumn, so this is not immediate relief and I do not want to mislead the House by pretending that it is. I understand the difficulties that a lot of dairy farmers are facing with the very poor weather that we have had this summer.
My Lords, while Defra has accepted the majority of recommendations that outline the new partnership approach between government and industry, we ignore the far more important matter of relationships in the supply chain between sections of the industry. Today, as we have heard, we see turmoil in the dairy sector. Surely regulation must have the objective of improving the workings of the industry. Regulatory proposals must make a difference to those on the ground. How will the Minister and his department measure and evaluate their success?
I hope that we can measure success by having a prosperous and successful agriculture in this country that is capable of expanding its market. There are huge opportunities for our high-quality agricultural products within the European Union and I hope that we can encourage the industry to look in that direction.
My Lords, given the price cuts, which mean that many farmers are losing 4p per litre, can the Minister outline the progress in securing a voluntary code of practice to secure fair milk contracts, which the Government agreed to in their response to the Farming Regulation Task Force?
My noble friend is quite right; part of our strategy is to agree a voluntary code of practice with the dairy and the retail industry and to work with them to ensure stability within the market. Having said that, there is no market control or price control; the market is based on voluntary contracts between producers and the industry.
My Lords, will the Minister ensure that his department takes great care when deregulating agriculture? Does he not recall, as many in this House do, that the changes to regulation in heating food for pigs were one of the factors that were identified as a great risk for foot and mouth disease? Will his department ensure that it never again deregulates at the expense of the consumer?
My Lords, what advice will the Minister give to the thousands of dairy producers who are leaving the industry? When I was a young man working for the farmers there were 6,000 milk producers in Carmarthenshire alone. Now there are probably fewer than 3,000 in the whole of Wales. He talks about strengthening the industry. How will the industry be strengthened, as opposed to the buyers?
The fundamental problem is currently that the productive capacity of the dairy herd has greatly increased. Until the industry is capable of expanding its market beyond the liquid milk market, which in itself is fairly inelastic, to use an economic term, we will not actually solve this problem. I hope that the answers that I have given today have given the House an indication of my view that the solution lies in creating new markets for processed milk and the infrastructure to provide that.
British Time Harmonisation
My Lords, the Government have no current plans to harmonise British time with that of the majority of the United Kingdom’s main European trading partners. Nevertheless, following a debate on a Private Member’s Bill in the other place in the previous Session, the Government have commissioned an evidence-scoping study on advancing the clocks by one hour, to inform debate. However, the Government would not propose any change without UK-wide consensus.
Yes, my Lords. A change of the sort proposed would create lighter evenings during the winter months and could therefore increase the opportunities for sport and outdoor recreation—although of course some people prefer to exercise in the mornings rather than in the evenings. Some research suggests that the adoption of daylight saving could also lead to a reduction in road traffic accidents, resulting in fewer deaths and serious injuries. However, evidence is needed, including evidence concerning the potential psychological effects involved. There are concerns, for example, that the impact of prolonged darker mornings during the winter may potentially see an increase in cases of seasonal affective disorder.
My Lords, does the Minister recall that this experiment was tried out around 40 years ago and proved so massively unpopular, not only in Scotland but right across the north of England and elsewhere, that it was terminated and thrown out by a vote in another place? Does he agree that it was a mistake then and it would be a mistake now?
My Lords, there are arguments in both directions. Not only, as my noble friend said, did this country try it in the 1960s and then change back again three years later, but Portugal tried it in the 1990s and changed back again too. These are complex matters. The Prime Minister has said that there needs to be consensus before any change.
I think that I would, my Lords. On the subject of trade, it seems likely that there could be benefits for some businesses that trade with European states particularly that are not in our time zone, and indeed with other parts of the world further east. There could also be some losers from the trade perspective. One of our most important EU trading partners, the Republic of Ireland, shares our time zone, of course, so a rigorous analysis of all the overall impacts would be needed before any conclusions could be formed.
Does the Minister agree that the people who trade with Europe could get up an hour earlier, and that this would spread the load on the transport infrastructure and create less congestion on the trains and the road network? The more that we can spread start times at work, the better it will be. There is a lot of merit in that.
Will the Minister please comment on the fact that everything should be done, in this House and the other place, to ensure that at this time business has every single break to allow us to create jobs and make profit to pay tax? Will he reflect on the fact that, at the end of the day, if we are going to be internationally competitive, we have to be internationally attractive? That would mean that we could get the reward from the infrastructure investment in high-speed rail and in Eurotunnel. For once, let us sink a little bit of nationalism into the better cause of actually making money for the country.
My Lords, will the Minister develop his idea on how consensus will be achieved? I reflect on the fact that, in theory, we are in summer time at the moment; perhaps we ought to change its name after the current spate. Seriously, can he give us some indication of the positive impact for business if we made this change? My recollection of the change 40 years ago is not quite that there was such an overwhelming rejection. It might have been less welcome the farther north you went, but it would still have some benefits.
We have already had a bit of a discussion about the effects on trade and I do not think that I have a great deal to add. However, if I detect a sense of hesitancy in the noble Lord about going for a change, I can quote to him what the Prime Minister said:
“I want us to have a united time zone. It's up to those who want to make the change to make the argument to try to convince people right across the country that it's a good thing”.
My Lords, I recollect the experiment 40 years ago, which was voted for overwhelmingly in another place as an experiment and then voted against overwhelmingly at the end of it. Bearing in mind what was said just now about industry, will the Minister recall the damaging effect on the construction industry, with late starts in the morning?
Does my noble friend agree that there is a great danger of introducing permanent summer time without total agreement? The outstanding example is China, which has imposed a uniform time zone across the whole country, with the net effect that the western end of China has to quote both in Chinese time and in western time. There is a chance of everybody getting totally confused.
Carers: In Sickness and in Health
My Lords, we welcome the report and its focus on important health issues for carers. This echoes the priority that the Government attach to supporting carers to remain physically and mentally well, as set out in the coalition Government’s carers’ strategy, Recognised, Valued and Supported: Next Steps for the Carers Strategy. The department published its draft mandate to the NHS Commissioning Board for consultation on 4 July. It includes an objective about improving the support that carers receive from the NHS.
I thank the Minister for that Answer. In view of the shocking statistics in the report—that more than 80% of carers have found their health, both physical and mental, adversely affected by caring—does the Minister consider that there is perhaps an increasing risk of carers simply ceasing to care and the cost therefore falling on social care services or resulting in increased emergency hospital admissions? How will the announcement that the noble Earl is about to make ensure that the prospects are better for the health of carers and for the continued willingness of families to go on providing the vast majority of social care?
I shall have to ask the noble Baroness to be patient for a few more minutes regarding the Statement I am about to make. However, I can tell her that the White Paper and the draft Bill will make a reality of our vision for transforming care and support both for carers and for the people they look after. As for the noble Baroness’s first point, she is absolutely right to flag this up as a concern. In the last financial year, we provided funding of almost £1 million to the Royal College of General Practitioners, Carers UK and the Carers Trust to take forward a range of initiatives, of which I am sure she will be aware, to increase awareness in primary healthcare of carers of all ages, including better training for GPs, and also to look at how we can build on that for the future with the medical colleges and nursing organisations and in hospitals and community health services. The NHS Health Check programme could be a very important ingredient in making sure that the health of carers is monitored and taken fully into account.
The Minister is aware of the great debt that we all owe to carers, particularly family carers. Can he assure me that respite care for those people, or those for whom they are caring, will be possible and will continue? It makes a very big difference if people can have even a small respite break.
My noble friend is quite right. My department has allocated an additional £400 million to the NHS over four years, 2011 to 2015, to provide carers with breaks from their caring responsibilities. The 2012-13 NHS operating framework makes it clear that PCTs, local councils and local voluntary organisations should work together on plans to support carers. Those plans have to be published by 30 September at the latest. They must make clear the amount of money to be made available to support carers and separately identify the amount to be made available for carers’ breaks.
My Lords, have the Government developed any plans to support carers after the person for whom they are caring dies? Many carers spend up to 20 years doing the caring job. Once the person for whom they are caring dies, they are stranded. They have no job to go back to. They have lost most of their friends and are totally isolated. They suffer bereavement in a different way from the rest of us and need long-term support. Are there any plans to deal with this problem?
As ever, the noble Baroness makes a really important point, and it is one that we fully recognise. In our plans to roll out psychological therapies, carers are very much within the scope of our thinking. As the noble Baroness will know, last year we published a four-year plan of action. We are investing around £400 million—the same sum of money that I referred to but additional to the other sum—in talking therapies: the Improving Access to Psychological Therapies programme. I am sure the noble Baroness will be glad to know that that investment is already making marked improvements, and there is a substantial increase in the number of people receiving the benefit of IAPT.
My Lords, in view of the Government’s stated intention to increase personalisation, can the Minister tell the House what happens when the expressed wishes and needs of somebody being cared for are in conflict with the expressed wishes and needs of a carer? Whose needs take precedence in that case, and how is the conflict resolved?
My Lords, the Minister will be aware that in Grand Committee we are currently discussing the Local Government Finance Bill, which will reduce council tax benefit for a wide range of people, including carers. Given that he is concerned about financial support for carers, will the Minister talk to his colleagues in the DCLG to ensure that the same support which we hope will be extended to disabled people will also be extended to their carers?
My Lords, in recognising the purpose of this report in relation to the health of carers, I ask the Government what action they are going to take, particularly with regard to the welfare and health of young people who may not formally be regarded as carers but who nevertheless undertake a vital role.
The right reverend Prelate refers to an often unseen aspect of caring. My department and the Department for Education are encouraging children’s and adult services to work much more closely together to adopt whole-family approaches to identifying and supporting young carers. We are investing in the identification and sharing of tools, resources and good practice, and we have worked with key stakeholders to develop online training modules on young carers for GPs and school staff in particular.
NHS: Private Finance Initiative Costs
My Lords, a lot has been done. All PFI schemes are having their contracts reviewed for potential savings, following a Treasury-led pilot exercise last year. We are providing the seven trusts worst affected by PFI schemes access to a £1.5 billion support fund over a period of 25 years, which will be available from 2012-13 directly from the department. We have worked with another 16 to address their long-term sustainability.
I thank the Minister for his reply and I am glad to hear about the support fund. Is it not the case that the contracts at this time of national financial crisis need to be renegotiated in order to bring them more in line with the austerity being suffered by the rest of the nation? Not only are they being required to pay 14% or 15% interest, they are having to pay maintenance charges such as those quoted to me of £500 to put in a new lock and £80 to change a light bulb. As the Minister knows, there are now 20 healthcare trusts responsible for 60 hospitals in serious financial trouble.
The noble and right reverend Lord is right. We believe that a number of the PFI schemes from the previous Administration were not soundly based in terms of their sustainability. As part of the work that we are doing on the Foundation Trust Pipeline, we have had to work on long-term sustainability solutions to help NHS trusts with PFI schemes, hence the direct financial support that I have referred to.
We have also organised PFI trust forums to disseminate the lessons learnt and to share experiences. We have earmarked resources to support the front line in ways to secure savings and we are currently in negotiation with people who have experience in the NHS and private sector to form a new team to support existing contract managers and, where necessary, to support negotiations with private sector PFI companies.
Will the noble Earl agree that in addition to the detriment suffered financially by PFI hospitals, as the noble and right reverend Lord Harries described, they suffer from a stranglehold as regards the movement of services, which means that they have to hold services back? Is not such power to stop the increased movement of services preventing trusts modernising and developing?
The noble Baroness makes an important point and it is one that I was aware of some years ago when I visited a PFI-funded hospital. She is right; it does sometimes depend on the relationship established between the contractor and the hospital management but many of these contracts do result in exactly the kind of sclerosis that she has described. It is a lesson that we need to learn for future PFI schemes.
My Lords, I am not aware that we are doing that particular thing, although I understand my noble friend’s concern. There are contracts in place which are legally binding. Nevertheless, within the framework of those contracts there is often scope for looking creatively and flexibly at their provisions. We are endeavouring to do this in order to help the trusts work their way through their problems.
My Lords, what role is the Treasury playing in trying to mitigate the effects of some of those PFI contracts, given the part that it played in particular at its official level in agreeing and signing them off under the previous Administration? Indeed, many are still in place in the Treasury today.
My Lords, the Treasury has been very helpful in advising my department on the kinds of flexibility that we may have in these difficult situations. It has also been helpful in refining the current PFI model so that, as and when we use PFI again, we have a tighter structure which strikes a better balance between risk and reward to the private sector.
My Lords, LIFT is one tool that we have in financing capital schemes in the community, many of which have been successful. Such schemes promote integrated services, which I know my noble friend will welcome. All LIFT schemes have been and will be assessed for affordability and value for money. It is not a universal prescription by any means, but we look constructively at LIFT as one way of delivering capital schemes.
My Lords, I refer noble Lords to my health interests in the register. Will the Minister confirm that, under PFI, more than 100 new hospitals were built by the previous Administration? Will he also confirm that the annual expenditure on those schemes is less than 1%? In fact, does he agree that the real financial problem of the NHS is the £20 billion that his Government are taking out of it in a four-year period?
We are not taking £20 billion out of the NHS; we are redeploying an increasing budget so that we get better value for money for the taxpayer. I say in answer to the noble Lord’s first point, which I think was more serious than his second, that we have confirmed that we remain committed to public/private partnerships. We think that they can continue to play an important role in delivering the country’s future infrastructure. However, it must be on the right basis, with tighter conditions attached.
National Minimum Wage (Amendment) Regulations 2012
Community Interest Company (Amendment) Regulations 2012
Tribunals, Courts and Enforcement Act 2007 (Consequential Amendments) Order 2012
Motions to Refer to Grand Committee
Groceries Code Adjudicator Bill [HL]
Order of Consideration Motion
Care and Support
My Lords, with the leave of the House, I shall now repeat a Statement made earlier in another place by my right honourable friend the Secretary of State for Health on the care and support White Paper, the draft Bill and the progress report on funding reform for social care. The Statement is as follows:
“With permission, Mr Speaker, I would like to make a Statement on the future of care and support for adults in England. The coalition programme said that reform is needed urgently. We inherited a system that too often lets people down and is unfair, a system which was complex and confusing and which responded to a crisis but too rarely prevented it.
For many years, people have called for a system fitted around the needs of care users, not the preferences of the service—one that puts people at the heart of the service and delivers high-quality care with dignity and respect. We knew two years ago that we had to offer urgent support to social care. In the spending review 2010, we provided an additional £7.2 billion for social care over the course of this Parliament, including nearly £3 billion from the NHS to deliver more integrated care. This gives the current system resource backing, but not reform. We need also to build a better service for the long term.
The White Paper I am publishing today represents the greatest transformation of the system since 1948. The practical effect will be to give service users, their carers and their families more peace of mind. Services will be organised around each individual’s care and support needs, their goals and aspirations. Intervention will be earlier, promoting independence and well-being.
The White Paper will support people to remain active in their own communities, connected to their families, friends and support networks. We shall invest an additional £200 million over five years in the development of specialised housing for older and disabled people, so that people can stay independent in their own homes for as long as possible.
The role of carers is critical, so we will transform how the system views and treats carers. We will extend rights for carers to have an assessment and for the first time provide a clear entitlement to the support they need to maintain their own health and well-being.
The measures in the White Paper will make it easier for people to understand how care and support services work, and what their entitlements and responsibilities are. To give people greater consistency of access, we will introduce a national minimum eligibility threshold, as the Dilnot commission suggested. We will require councils to start supporting people as soon as they move into a new area, so that it is easier for people to choose to move home to be nearer to their relatives. Local authorities will be under a duty to ensure continuity of care and that care users are able to take their assessments with them if they move area.
We will establish a single website to provide clear and reliable information about all care and support services for self-funders and local authority-supported users and carers. As well as these improvements to national information, we will invest £32.5 million to ensure that there is better information about the range of local care and support services available in each area.
We want people to be confident that the care and support they receive is delivered by a compassionate and caring workforce. We will place dignity and respect for care users at the heart of a new code of conduct and minimum training standards for care workers. Alongside the new minimum standards, we will train more care workers, with 50,000 more apprenticeships by 2017.
A key requirement is for people to be confident that they will be treated with dignity and respect and that providers deliver high-quality care at all times. We will rule out the crude practice known as “contracting by the minute”, which can so undermine people’s dignity and choice. We should contract for quality and service, not by the clock. We will call on local Healthwatch organisations to make active use of their power of entry, allowing them to visit care services in their local area and make recommendations to the providers and local authority commissioners.
People should also be entitled to expect that services will be maintained if a provider fails. Working with local government and the care sector, we successfully handled the consequences of the Southern Cross crisis, but we also learnt lessons. So we will consult on how we can anticipate and act to ensure continuity of care if a provider goes out of business. Care itself, not the provider of care, is the most important factor.
A key theme of the White Paper is that those receiving care and support know what is best for them. It is right that they must be in control of their care and support. We will make sure that everyone is entitled to a personal budget, so they can be in control of their own care. We will offer all who want it a personal budget and, by 2015, a legal right to request this as a direct payment.
To make it easier for people to get the care they want, we will ensure that they have better access to independent advice. We will make it easier for people to see whether a care provider is good or not, so that they can make real choices through an online quality profile for each provider. We will work with a range of organisations to develop comparison websites so that people can give feedback and compare the quality of care for themselves.
Integrated care is important for everyone, regardless of age or the reason they need care and support. However, getting integration right is particularly important for people when they may be moving from one service to another. That is why we are transferring an additional £100 million in 2013-14 and £200 million in 2014-15, beyond previous plans, from the NHS to social care, to support social care services that benefit people’s health and well-being, and promote better integrated care.
The White Paper will help people get better joined-up care at key points in their lives. We will legislate to give adult social care services a power to assess young people under the age of 18 and we will ensure protection so that no young person goes without care while waiting for adult support to start.
We want people to receive the best possible care at the end of their lives, including a choice over where they die. The palliative care funding review recommended that all health and social care should be funded by the state once someone reaches the end of life and are entered onto the end-of-life care locality register. We think that there is much merit in this and will be using the eight palliative care funding pilot sites to collect the data and experience that we need to assess the proposal.
Alongside the White Paper, I am today publishing the draft care and support Bill. Many of the White Paper reforms need new legislation to make them work and the draft Bill is a major reform in its own right. The law for adult social care is complex and outdated. All those involved know how it has made the system harder to work in. The draft Bill sets out a single, modern statute for adult care and support. It brings together and simplifies provisions from at least a dozen Acts of Parliament, reflecting the recommendations of the Law Commission. It builds the law around the well-being, needs and outcomes of real people—clear principles, clearly set out in law.
I am also today publishing a progress report on funding reform. In July 2010, I asked Andrew Dilnot to review the funding of the system of care and support in England. I can confirm today the Government’s support for the principles of the Dilnot commission’s report as the right basis for any new funding model; that is, financial protection through capped costs and an extended means test.
It would, as Andrew Dilnot himself said, enable people to plan and prepare, so that they are not so vulnerable to the arbitrary impact of catastrophic care costs. The progress report sets out a detailed analysis of this funding model, giving us a better basis for making decisions about how these changes can be funded. Of course, any proposal which includes extra public spending needs to be considered alongside other spending priorities, which include the demographic pressures on the social care service itself. The right, the necessary, place to do this is at the next spending review. Our talks with the Labour Party were constructive, but no plan for funding Dilnot was agreed, or, indeed, proposed by either side.
A decision at the next spending review will allow time for continuing discussions with stakeholders and between the parties, and we can undertake open engagement on detailed implementation issues and options. These discussions will include the level of the cap, whether a voluntary or opt-in approach is a viable option in addition to the universal options and whether legislative provision is required.
However, as the report makes clear, we are also taking definitive steps now by accepting a number of the Dilnot commission’s recommendations. Most notably, we will introduce a universal deferred payments scheme. This will mean that no one will be forced to sell their home in their lifetime to pay for care. Provisions for this are included in the draft Bill.
The White Paper, the draft care and support Bill and the progress report on funding together set out our commitment to a modern system of care and support—one designed around the needs of individual people; one with dignity and respect at its heart; and one that brings care and support into the 21st century.
These reforms are the product of immensely helpful reviews by the Law Commission and the Dilnot commission and come from a positive and wide-ranging engagement with the care sector and the public, helping us to design the kind of care services and support that all of us would like to see for ourselves and our families. We are determined to secure these reforms—to achieve in this Parliament that which our predecessors failed to achieve in over 13 years. I intend to continue and develop this open co-operative approach to developing these reforms. I commend this Statement to the House”.
My Lords, that concludes the Statement.
My Lords, I thank the noble Earl for the Statement. I am sure the House will agree that we have all waited a long time for this spring White Paper, and now the Government have finally managed to publish it by the skin of their teeth, with just 10 days to go before the Recess. Notwithstanding what is actually in it, we can at least take comfort that the White Paper’s publication at last fires the starter gun for the nationwide debate on the future funding of social care that we on these Benches and key stakeholders in the public, voluntary and independent provider sectors, as well as care professionals and service users—many of them forming part of the excellent Care and Support Alliance—have all been calling for.
The stakeholders know only too well the scale of the problems that have to be faced and the solutions that are needed on the full package of social care law and current and future funding. However, there is also an urgent need for social care to be pushed to the forefront of public debate and understanding as one of the biggest challenges facing Britain today. This public debate could and should have started much earlier if the Government’s stated momentum behind pushing the Dilnot commission into doing its work in six months had been maintained, and if the Government had put more energy and commitment into the cross-party talks and had seriously tried to address the critical funding issues. After all the delays, prevarication and speculation, those of us who were hoping against hope for some sense of an overall strategy, vision and action in the White Paper for dealing with the current and growing crisis in social care are sadly disappointed and let down. There is no vision of how a reformed system will work in practice or how it is to be sustained in the future in the face of growing demand and need.
At the minimum, we hoped for an outline programme and process for making key decisions on funding, including timescales and milestones for moving forward on addressing the full package of reforms that are needed. Instead, we have further consultation on issues, many of which have already been consulted on and on which there is already broad consensus. We have the failure to address the funding crisis, the prospect of the proposed care and support Bill not coming into effect until probably April 2015, and any implementation of the Dilnot options effectively long-grassed until after the next election.
The White Paper shows that the Government are completely out of touch with the scale and urgency of the care crisis. Across the country, elderly and disabled people are failing to qualify for basic personal care in their homes, or their package of care has been cut back to home visits of less than 15 minutes, or they have faced home care charges rising by 11% in some local authorities. We know, too, that the cost of residential home care is rising substantially in excess of what local authorities can pay, and people are spending their lifelong savings to pay for long-term care. The funding issues need to be faced and addressed now.
Of course we welcome the implementation of a large number of the much-needed changes to social care law proposed in the Law Commission’s excellent report of 2010. Social care law is in urgent need of reform, which is why the Labour Government set up the review in 2008. We welcome the proposals and consultation on reforming and simplifying the legal framework and ensuring that patient-centred services are better fitted to people’s lives and fit in with their need for choice and control. We strongly support new laws which help to make clear what people are and are not entitled to, and which help them to plan for the future.
In the time available, I have managed only a quick look through the documents, but it is worth pointing out to the House that an overwhelming number of the proposals were contained in Labour’s own White Paper on care, published before the last general election. Naturally, we welcome their reappearance, but it begs the question: why it has taken the Government nearly two years to regurgitate our proposals into their new draft Bill?
I stress that we also support proposals in the White Paper that take forward Labour’s personalisation of care agenda—again, as set out in our care White Paper. We support legislation to ensure the portability of social care packages, and we of course support proposals to extend carers’ respite breaks and their legal entitlements, as well as the extension of key information and advice services which we introduced through our landmark National Carers Strategy.
However, from these Benches we have repeatedly stressed that, unless these new social care laws are reformed in the context of also addressing the current and future funding problems, they will be ineffective and inoperable, and will lead to even greater unmet demand and suffering. Local authorities facing £1 billion of cuts will just not be able to afford to respond to laws designed to make care provision and eligibility consistent and more accessible across the country.
It is deeply disappointing and frustrating that the White Paper does not take the key step of recognising that there is not enough money in the system now. Not only is Dilnot implementation pushed into a further consultation and engagement process—despite the much-hyped promises of accepting Dilnot “in principle”—but the proposed transfer of funds of £300 million from the NHS to social care over a two-year period in 2013 and 2014 continues to support this fallacy: in other words, that it is all down to local authorities needing to better manage their finances and get their priorities right. Those councils are desperate for a new settlement on funding for social care, but the White Paper holds out little prospect of this happening and provides no answers to the funding crisis currently engulfing them. I cannot see any reference in the White Paper to how the Government propose to help councils to fund what seems to be their flagship proposal: to provide loans to older people so that their care costs can be paid for after they die. I should be grateful if the Minister could flesh out any of the details on this.
On long-term funding, the Alzheimer’s Society best summed it up when it said that accepting a cap on the funding contribution “in principle” is just an “empty promise”. People want to know what the contribution cap will be, when it will come in and how it will be funded. It is downright cruel to dangle in front of people the prospect of raising the savings threshold from £23,250 to £100,000 without a positive commitment and date for implementation when those people are currently struggling to self-fund their care, or part of it, and are seeing their life savings disappear now.
Labour has always been in earnest about the need for meaningful cross-party talks and entered into these last year in good faith. We meant business when we made the offer last year, and we mean it now. I ask the Minister whether his understanding of meaningful cross-party talks involves joint, two-way discussions on strategy, policy and options, and regular meetings, discussions and negotiations to reach a consensus, or whether it means irregular meetings, the last one of which was cancelled by the Government, who instead offered the Opposition a briefing just a few days before the White Paper was due to be published on what they intended to do—or not do, in this case. We know that that is what happened, although I welcome the behind-the-scenes signs over the past couple of days that the Government regret not putting more effort into making cross-party progress. For our part, Andy Burnham has pledged that if the Government offer a genuine, two-way discussion on the funding of care, with honesty about existing pressures and the difficult options, Labour will play its part.
I ask the Minister the following further questions. First, why was it not possible to reallocate to pay for social care a major part of this year’s £1.7 billion NHS underspend, which was clawed back by the Treasury? Would this not at least have been a start, providing real money behind the White Paper’s reform proposals? Secondly, will the Government be involving Andrew Dilnot himself in the implementation discussions once the consultation is completed? Does the Minister recognise that Mr Dilnot’s involvement would go some way towards building confidence among key stakeholders that the whole issue has not been long-grassed? Thirdly, can the Minister tell the House when the Government will publish an impact assessment of the cost of the overall changes proposed, and how they plan to implement the changes with no extra money and council budgets being slashed? Finally, in today’s Daily Telegraph NHS managers are warning that the NHS is at risk of collapse as cuts to social care budgets are leading to a huge rise in the number of admissions to hospital of older people who could be treated at home but cannot afford to pay for care. How do the Government propose to deal with this, and how will the White Paper proposals help to alleviate this alarming trend?
The White Paper reflects a positive sign of consensus on many of the key issues facing social care today, and some good promises about how social care should change. However, until these promises are backed by a recognition of the current scale of the crisis and proposals on how Dilnot can be implemented in the future—with firm commitments, timescales and milestones—schemes such as deferred payments and loans and pilots for end-of-life care can in effect be only interim, stopgap measures. They do not address the overall need for fairness, transparency, more resources across the whole system and long-term sustainability. Implementation of Dilnot must be the basis for that.
As a carer myself, I hope that the House will forgive me if I end by quoting the carer husband of a woman suffering from dementia who was movingly interviewed on Radio 4 this morning about his life as a 24-hour carer and the impact of social care cuts. He said:
“It’s the unknown that really gets to me … in the back of my mind is the constant feeling of uncertainty”.
In-principle decisions for implementation at some unspecified date in the future are no solution and offer no comfort, solace or relief to people who need help, care and support today.
The Government promised that they would legislate on a new legal and financial framework for social care in this parliamentary Session. The noble Earl promised that the Government would not shy away from or duck the funding issues—but I am afraid that that is exactly what they have done.
My Lords, I thank the noble Baroness for her comments and questions. While she levelled a number of criticisms at the Government, I was glad to hear her positive comments—although I would characterise her speech as a glass half empty speech rather than the opposite. Nevertheless, I am grateful to her for recognising that this package of proposals represents progress. In many areas it is progress that her party and mine fully sign up to. However, she said at the start of her remarks that there was a lack of vision and strategy in these proposals. I was sorry about that because I do not share her view. The White Paper and the draft care and support Bill undoubtedly form the most comprehensive overhaul of care and support since 1948. They respond directly to the concerns that people have raised with us time and again.
I hope that when the noble Baroness reads the White Paper she will agree that the whole flavour is about creating a system that keeps people independent and well. There are many major commitments in the White Paper, including more support and equality for carers, housing investment, better information and personal budgets. Those things all combine to set out a new vision that tailors care around people’s well-being, rather than expecting people to conform to a system, which is what we have at the moment.
The noble Baroness criticised the Government for delay. I gently point out that more than 13 years ago there was a royal commission chaired by the noble Lord, Lord Sutherland. The previous Administration had 13 years to respond to it but did not do so. Nevertheless, progress was made in certain areas. We have gladly picked up on some of the areas of progress that the previous Administration put in place, not least in the area of carers. However, it is not true that since the present Government came to office we have seen no action. One of the first decisions that we made was to protect care and support in the spending review through an additional £7.2 billion over four years. That was an explicit recognition of the strains that local authorities were expected to come under. I announced through the Statement today further funding in recognition of those strains at local level.
It is true that some of the changes will take longer than others, but progress will be made within 12 months. It will include introducing quality profiles for every provider so that people have comparative information on the quality of different organisations, investing £200 million over the next five years to develop specialised housing, publishing a code of conduct and minimum training standards for care workers, and launching a new national information website at nhs.uk. I hope that the noble Baroness will welcome those innovations.
On the deferred payment scheme, there is a lot of discussion to be had. Our proposals are that deferred payments will be available in all local authorities. Currently they are available in some but not all. As the noble Baroness knows, the social care means test requires people to use their housing wealth when they go into residential care. We are announcing that we will allow people to pay later, giving them more time to sell their home at their convenience or even for it to be sold after their death. We are not confirming now exactly who will be eligible or the rate of interest that will be attached, but we have said we will consult on these issues with the care sector.
As regards the cross-party talks, I should like to put it on the record that we fully intend to continue to engage with Her Majesty’s Opposition and with the sector on options for implementing the Dilnot model as well as with Mr Dilnot himself. At this stage, we are open-minded as to what form that engagement should take. As has been the case to date, discussions on funding reform will be led by the Department of Health on behalf of wider government. We wish to continue what I believe has been a very constructive series of discussions, with the Opposition in particular. The disagreements and criticisms that blew up over the weekend were regrettable and we wish to draw a line under that. I hope the noble Baroness will appreciate from the correspondence that has flowed between our two lead spokesmen that that is indeed the intent.
The noble Baroness is not correct as regards the NHS underspend. It was not lost to the NHS. The overall year-end surplus of £1.6 billion for PCTs and SHAs last year will be carried forward and made available in 2012-13. That represents a 3% increase in funding available to the NHS relative to last year. As I mentioned earlier, we are allocating further funding on top of the £7.2 billion that we previously announced in support of local authorities.
There are many questions to answer in this package. I do not hide from that, but it is right that we take time to work through this, including engaging with all stakeholders to ensure that any reform is sustainable and fair.
My Lords, before we get into the session where all Peers can contribute, I remind noble Lords that the Companion states that ministerial Statements are made for the information of the House and that, although brief comments and questions are allowed, Statements should not be made the occasion for immediate debate. Perhaps I may emphasise brevity and therefore the courtesy of allowing as many noble Lords as possible to contribute.
My Lords, I must briefly declare an interest. I am a 24-hour social care service user, and long may it last. Temporarily ignoring the social care funding elephant in the room, I feel there is much to welcome in this White Paper, which concentrates on independent living, empowerment strategies, and supporting people to stay at home and contribute to their communities instead of the current safety-net crisis interventions. That has been my life’s work.
I am also pleased to see that the Government are obviously keen to incorporate my Private Member’s Bill on social care portability. Naturally, I must ask the Minister whether the Government intend portability to offer an “equivalence of support” outcome so that disabled people feel confident that they can continue with their chosen occupations, responsibilities and lifestyle wherever they go, because this will put an end to the postcode lottery.
My Lords, I pay tribute to the noble Baroness for all the work that she has done in this area, particularly on portability. This is a good news story. We are committing in the White Paper to breaking down the major barrier to portability: that people’s care is disrupted when they move local authority area. The draft Bill contains a clause that puts a duty on to local authorities to ensure that when a person—and their carer, if applicable—moves local authority area, their needs continue to be met until they are reassessed by that local authority. The clause also sets out that local authorities are under a duty to share information, and the receiving local authority has the power to assess the individual—and carer, if applicable—before they move. This seeks to ensure that the move is as seamless as possible. I do not doubt that this is an area that we shall debate over the coming months.
My Lords, I emphasise the extraordinary importance of all-party consensus on this matter. Without that, older people and their families will not know what to plan for in the long term, and indeed insurance companies that could help out will not be able to design policies to help them do so. Will the noble Earl deplore the leaking of the documents in front of us this afternoon? The leaks greatly exaggerated the benefits that the actual policies announced will deliver, and have derailed the all-party talks. These policies should have been floated with the Opposition before they reached the public domain. I am not saying that he did it, but will he apologise as a way of getting those all-party talks back on an even footing?
My Lords, I fully agree with the noble Lord about the need for cross-party consensus. If we are to have a long-term sustainable solution for the funding of social care, we must have that political consensus. Indeed, that was the intent behind the cross-party talks. I very much regret the leaks. These were not our doing, but they did create an impression of bad faith. Again, I regret that. No bad faith was intended from our quarter or indeed from any other quarter in government. I think there was an element of misunderstanding about our intentions, but I agree with the noble Lord that the cross-party bonhomie has been disrupted. We very much wish to put the whole process back on track, and I hope that his party will respond accordingly.
My Lords, I am a glass half-full sort of person, so I heartily welcome the White Paper and the draft Bill on care and support, and note the progress report on funding reform. We are certainly looking forward to pre-legislative scrutiny. Can the Minister give the House some indication of the timetable and the process? Will he also tell the House what the Government’s view is on including enabling clauses in the draft Bill to allow the Dilnot-based scheme to be implemented?
My Lords, my provisional understanding —and I stress that—is that pre-legislative scrutiny will begin in the autumn, probably in November. Between now and then, plans will be put in place to decide the composition of the pre-legislative scrutiny committee so that the process will conclude by the end of this Session of Parliament. In principle, there is no reason why enabling clauses should not be inserted into the legislation. As I have emphasised before, it would be preferable if they were clauses on which we could all agree.
My Lords, I declare an interest as chairman of Help the Hospices. I welcome both the extra money that the Government are making available for the palliative care pilot projects and the Government’s acceptance in principle that end of life care should be free at the point of delivery. Can my noble friend give the House some indication of the timetable by which this very desirable objective might be achieved?
My Lords, the short answer to my noble friend is that we need to look in detail at the funding implications. At this stage all I can say is that our intent is to introduce this at the earliest opportunity. However, I am afraid I have not been given the green light to give him chapter and verse at this stage. As soon as I am able to do that, I will gladly do so.
My Lords, may I ask the Minister two quick questions about domiciliary care? First, do the Government accept that during the past decade, there has been a marked deterioration in the availability and quality of community care? It has deteriorated so much that, as the Minister said, it now often seems to be measured in minutes, depriving very vulnerable people of dignity both in feeding and in toileting. Secondly, if that is the case, what mechanism are the Government going to employ across 150 local authorities to make sure that they deliver the standard of domiciliary care about which he spoke?
The noble Lord is quite right; there is huge concern about the sometimes tick-box attitude to domiciliary care, very often resulting in nugatory time spent by care workers with those they look after, which one is tempted to say is hardly worth while in some cases. We are very aware of this. Part of the answer lies in our plans for personal budgets, which should give service users much greater scope to define what they want and what their needs are. The service should then work around those needs and requirements. However, we are also talking about the workforce here.
We are clear that the minimum standards for health support workers and adult social care workers in England that are being developed by Skills for Care and Skills for Health will set a clear national benchmark for the training of support workers and their conduct when delivering care. We expect that the standards produced will inform proposals for a voluntary register for adult social care workers in England, which could be in place by next year. This will allow unregulated workers to demonstrate that they meet a set of minimum standards and are committed to a code of conduct.
All those things combined should move us away from the kind of culture that in some places, although not in all, is degrading the quality of care that is delivered.
My Lords, I congratulate the Minister, and pass these congratulations on to his right honourable friend, on making progress on the Dilnot commission recommendations, as well as on the other measures in the White Paper. I declare my interest as a member of the Dilnot commission.
I also congratulate the Minister and his right honourable friend on extracting his documents from the dead hand of the Treasury. In that connection, I ask him to confirm two things. First, it will, I believe, be impossible to deliver a deferred payment scheme by April 2015 without a clear decision on the cap that will be required to underpin it, and the extended means test. Can he confirm that decisions will have to be taken on these two issues in order for a deferred payment scheme to go ahead?
Secondly, his right honourable friend rightly said that he was in the market for open cross-party discussions on the way forward. Does this mean that the Treasury will participate in these and will not blackball politically contentious proposals that may be found for funding and sustaining the implementation of Dilnot, even where those proposals may recoup some money from the very population groups that are going to benefit from a better adult social care system?
First, I thank the noble Lord for all that he did as a member of the triumvirate of the Dilnot commission. There is no doubt that we owe him and his fellow commissioners an enormous debt. I am grateful to him for his kind remarks about this set of announcements. We propose to introduce deferred payment without the cap necessarily being in place. We believe that that can be done. I understand the direction from which the noble Lord comes, but a system that obliges local authorities to offer deferred payment where certain eligibility criteria—yet to be defined, admittedly—are met is deliverable in the absence of a cap. That is not to say that we do not wish to work hard to define what that cap should be.
On the noble Lord’s second question about the dead hand of the Treasury, I would not characterise my esteemed colleagues in that venerable department as dead hands. However, I acknowledge his central point about affordability. That is why we have felt it necessary to defer final decisions on how the funding of the Dilnot principles will be worked through until the next spending review. That inevitably means that my colleagues in the Treasury will have a direct interest in the result; it would be strange were it otherwise. Nevertheless, that does not preclude creative and constructive discussions between our two parties.
I welcome my noble friend’s Statement, but does he accept that there is still a significant challenge in providing appropriate packages of care, particularly for elderly people, on discharge from hospital following an emergency admission? This relates to the type of care required when there is a significant change in needs and people are unable to return to their home, or sometimes even to a residential home. There is a transition, but some of those people could make more progress in their recovery. I am thinking of stroke patients in particular. I hope the Minister will be able to reassure me that these changes will include looking again at this group.
I agree with my noble friend. Only last week, I talked to people at the Norwich and Norfolk University Hospital who emphasised that very point. Very often, the absence of packages of care that are tailored to the needs of the individual results in delayed discharge from hospital and often a deterioration in the condition of the patient. That helps no one. There is therefore a burning need for commissioners, providers and those providing care in the community to work together to define appropriate packages. I fully agree with my noble friend that those who have had strokes are particularly in need of the kind of packages that can best assist them when they move back into their own homes. This is an area that is crying out for further work. We hope that it will flow from the creation of clinical commissioning groups and health and well-being boards at a local level.
My Lords, I am very happy to welcome the ministerial Statement as one of the first distant tweets of a swallow, perhaps announcing some hope of spring. However, as we all know this year, summer does not inevitably follow spring. I do not take the view that the glass is half-empty; I take the view that it is currently about 20% full. The real question is about how you put the other 80% in. That has to do with money—there are no two ways about it. Until that is confronted, I will not be convinced that the Government or—even more so—the Treasury understand the scale of the issues facing us. Demography has been announcing them for 15 or 20 years and they will get more and more urgent. There is a requirement not just for an incremental change but for a reassessment of priorities, as the Statement suggested.
One suggestion in the Statement is the importance of the integration of care. I thoroughly agree with that but have a question for the Minister. Can he reassure us that it will at least be considered that the integration of care be followed by the integration of budgets between health and social care? Many of us believe that that is one element that has to be put in place. I would not want it ruled out as an issue.
I am grateful to the noble Lord and thank him for all his work in this area over the years. However, I am sorry that he regards the glass as only being 20% full. I would regard it as much more full than that, bearing in mind the contents of the White Paper that I outlined earlier. No, we are under no illusions about the scale of the issue, its importance or the need to get it right if the NHS is not to bear the brunt of serious strain within social care. It is an urgent matter. We are determined to fill the glass to its fullest at the earliest opportunity.
On integration, as I am sure the noble Lord knows, we have options open to us already to ensure that budgets can be pooled at a local level. This is happening in many areas. It is a very useful device to enable the NHS and social care to share responsibility for delivering care to patients and service users, who after all do not mind very much whether the service is delivered by the NHS or by social care as long as the right service is delivered. We need to work much harder on that area, too.
Can I draw the Minister’s attention to the characteristics of the very old? Time speeds up when you are old. Christmas comes round more regularly and the years pass faster. Coupled with that is increased anxiety about what those years will bring. The timescale of these matters that concern funding have a particular poignancy for people who have only a few years of life left. I urge the Minister to persuade his colleagues that the nature of defining these sums of money will give a lot of ageing people who are worried peace of mind—a phrase used in the White Paper.
I pay tribute to the noble Baroness for all her work on behalf of the elderly. Of course she is right in her perception of the way that the elderly view time passing. We have yet to sort out the precise funding mechanism for Dilnot. However, in the mean time, as I have emphasised, we are channelling significant extra funds to local authorities to tide them over. We believe that that will be of help in the short term. Also, the deferred payment scheme should deliver considerable peace of mind to many elderly people who find that they need to move into residential care and, for whatever reason, do not wish to sell their houses. I hope that that proposal will find favour with her.
Justice and Security Bill [HL]
Committee (2nd Day)
Relevant documents: 3rd and 4th Reports from the Constitution Committee, 5th Report from the Delegated Powers Committee.
Clause 3 : Reports of the ISC
35: Clause 3, page 2, line 32, leave out subsection (3)
My Lords, I beg to move Amendment 35 and will speak to Amendment 38, standing in the names of my colleague the noble Marquess, Lord Lothian, and myself, and to which the noble Baroness, Lady Smith, and the noble Lord, Lord Beecham, have added their names. These two amendments invite the Government to look again at the drafting of Clause 3(3) and (7).
Subsection (3) says that the committee must send a draft of its report to the Government. This may reflect the old, rather patriarchal attitude, if I may describe it as such, that the Government took towards the committee. The committee submits its report; it is independent. It does not submit a draft report to the Prime Minister; the report is the report is the report. It submits its report and then the Prime Minister may insist on redactions: that is how the procedure works, so the reference to a draft report is technically incorrect, and impugns the independence of the committee.
Subsection (7) refers to matters that would be excluded from the ISC’s report to Parliament when it reports to the Prime Minister. Again, the words “the ISC considers” that they would be excluded under subsection (4) are necessary because, at the time the committee makes its report to the Prime Minister, he has not seen the report; he cannot decide what would be redacted in a report submitted to Parliament. So, again, the committee would submit a full report to the Prime Minister and when it comes to excluding things it would have to be the ISC which considers it, rather than anybody else.
These are two drafting amendments which would make the position clear.
I shall add to what the noble Lord, Lord Butler of Brockwell, has said on these two amendments, to which my name is also attached. On the second one he makes the short point that it is for the committee to decide whether the report should be published to Parliament or to the Prime Minister. He makes it clear that it is only the committee that can make that decision. There is an additional factor, in that until the report is completed, only the committee knows that that report is being drafted, so no decision could be made before the committee had finished drafting its report. That is one reason why it is a necessary amendment.
With respect to the noble Lord, Lord Butler of Brockwell, I think that Amendment 35 is more than a drafting amendment. It is asking to remove subsection (3), the only drafting element of which is the word “draft”. It is an incorrect statement as it stands, because it suggests that the committee submit a report to the Prime Minister which is capable of alteration or amendment—that is the definition of a draft. In fact, it is the opposite that occurs. The report that is made to the Prime Minister can only be changed in respect of inserting asterisks—by redactions where there are matters which should not be seen in the public report submitted to Parliament, but of necessity are in the report that is sent to the Prime Minister. I suggest that, rather than being a drafting amendment, the removal of the subsection is the answer. The reason I say that is because, if the Government accept that this is not a draft, the whole subsection becomes otiose because the following subsection makes it clear that the report goes to the Prime Minister before redactions are made. I hope that, on this occasion, the Minister will feel able to consider very seriously the points we are making in this amendment.
I agree with my noble friend Lord Lothian. I do not have it in front of me, but I do not recall that “draft” ever appeared in the original 1994 Act that set up the Intelligence and Security Committee. For some reason it has crept into the drafting; he is absolutely right. It seems to me that subsection (7) then becomes redundant.
My Lords, we support the amendments tabled by the noble Lord, Lord Butler of Brockwell. Frankly, I cannot add anything to the points that have been made in support of them. The wording in the Bill does not do a great deal to show a degree of independence for the Intelligence and Security Committee from the Executive. That independence would be enhanced if the Government accepted the amendments.
Amendment 36 is basically a probing amendment. Its purpose is to seek to change the definition of the basis on which the Prime Minister may redact information from an ISC report. The Bill states that the Prime Minister may do so if the information is,
“prejudicial to the continued discharge of the functions of the Security Service”
and the other organisations mentioned. The amendment would provide that information should not be disclosed in the interests of national security or on the basis that the ISC report contained sensitive information as defined in Schedule 1(4). The reference in Schedule 1(4) to “sensitive information” refers to the basis on which a Minister of the Crown may decide under paragraph (1)(b) or (2)(b) that information should not be disclosed if the Minister considers that it is sensitive information, which is then as defined in Schedule 1(4), or information that, in the interests of national security, should not be disclosed to the Intelligence and Security Committee.
The criterion proposed in the Bill is either the same or basically the same as in the Intelligence Services Act 1994. The reason why this is a probing amendment is to try to find out why it is felt necessary to have what appears to be a fairly wide definition and not in fact to have a definition that would bring it in line with the criteria permitting the Government to veto the disclosure of certain information to the Intelligence and Security Committee, as set out in Schedule 1(4), which defines sensitive information that is referred to in Schedule 1(3)(a) and relates to the circumstances under which a Minister of the Crown may decide that information should not be disclosed.
Why does the definition need to be broader for the reports to Parliament from the Intelligence and Security Committee than it does for the disclosure of information to the Intelligence and Security Committee? It is not clear why there is that difference or indeed what its significance is. What, for example, would my amendment not include that would be included in the wording in the Bill? As I say, that appears to be a wider definition, and I am hopeful that the Minister will be able to explain why there is that difference in definitions and whether, in the Government’s view, what they are proposing in Clause 3(4) is wider than the definition of sensitive information that appears in Schedule 1(4) and relates to the definition that would be applied and that a Minister of the Crown would have to take into consideration if he was going to decline to agree that information should be released to the Intelligence and Security Committee.
In the amendment there is a further addition beyond the sensitive information; namely, that information should not be disclosed in the interests of national security.
My Lords, this amendment should be of great interest to present and former members of the committee because there is a problem in the legislation which they should be well aware of. As I read it, Clause 3(4) is a catch-all, whereby if one cannot block the provision of information to the committee under paragraph 3(4) of Schedule 1, one can block the information under the catch-all provision of it being,
“prejudicial to the continued discharge of the functions”,
of the services. This is a catch-all provision whereby the Prime Minister might want to block certain information which does not necessarily meet the criterion set down under sensitive information in paragraph 4 of Schedule 1. To my mind, the only defence for the committee under such arbitrary arrangements is the extent to which the committee is consulted. Clause 3(4) states:
“The ISC must exclude any matter from any report to Parliament if the Prime Minister, after consultation with the ISC”.
What form would that consultation take in the event that he wished to exercise a veto on the provision of that information under what I call this catch-all provision? I suppose that, in theory, it could be looked at the other way. The Prime Minister might, in certain circumstances, not wish to be tied down to the detailed criterion in the sensitive information provisions of Schedule 1. He might want to release information that was sensitive but would not be prejudicial to the services carrying out their functions. It will be interesting to see what the Minister says in response.
Before the noble Lord sits down, I would like to raise a question with him. He has been a member of this committee and I have been on it since 2006. My understanding is that once the report is complete there are matters, such as the amounts of money spent on various parts of the services, which have to be in the report, but which should not be in the published version and therefore are redacted. That is the difference between those two types of information and it is quite right that they are redacted.
I am sure the noble Lord remembers that the process of redaction is that the full report goes to the Prime Minister and comes back with suggestions for redactions. The committee then goes through them with a great deal of care and independence. Certainly, in my recollection, we have never had a redaction without the committee having consented to it.
Yes, but the thrust of the amendment moved by my noble friend Lord Rosser is that for some reason, which I cannot understand and he clearly does not understand either, the Government have picked another set of criteria for refusing to provide information to the committee, instead of simply using the provisions set out under Schedule 1. Again, I shall be interested in the Minister’s response.
My Lords, the reason why I am sympathetic to Amendment 36 has already been explained. My difficulty with the Bill as it stands is that its wording is very subjective with regard to the Prime Minister. I like the way in which Amendment 36 seeks to spell out some criteria which are echoed in the Bill itself rather than leaving the matter entirely at large.
When I spoke last time in Committee, I briefly mentioned Humpty Dumpty to the Minister. I am not sure whether he got the import of what I was saying. I was referring to Liversidge v Anderson, the famous case in which the late Lord Atkin referred to Humpty Dumpty. The emergency legislation said, “If the Minister thinks”. The late Lord Atkin said, in dissenting in Liversidge, that that was similar to Lewis Carroll’s Humpty Dumpty. I, on the whole, prefer criteria to be spelt out in the Bill and I like the way in which that has been done in Amendment 36, unless there is some very good reason for the contrary.
My Lords, I will deal first with Amendments 35 and 38 standing in the name of the noble Lord, Lord Butler, and my noble friend Lord Lothian, supported by noble Lords on the Front Bench opposite. The noble Lord, Lord Butler, described these amendments as purely drafting amendments. My noble friend, a self-described simple Scottish lawyer, thought that they went beyond that. I take his point in that one of the points of the noble Lord, Lord Butler, is that using “draft” in Clause 3(3) could be seen to impugn the independence of the committee. I give some assurance that we will look at that in due course and whether “draft” is necessary. However, it might be worth my setting out the current arrangements and then the arrangements in the Bill
Under the current reporting arrangements, I think that I can give my noble friend Lord King an assurance that “draft” does not appear in the Intelligence Services Act 1994.
It does appear in it. Well, I got that wrong. Under the existing Intelligence Services Act, the ISC makes an annual report on the discharge of its functions to the Prime Minister. The Prime Minister lays before each House of Parliament a copy of that report, together with a statement as to whether anything has been excluded from it by the Prime Minister on the grounds of its sensitivity. Under the Bill, the ISC will for the most part report to Parliament but will still be able to report to the Prime Minister on matters that would be excluded from any report. It would remain for the Prime Minister to decide whether grounds exist for excluding matters from the report after, of course, consulting. That is the important thing: the consultation with the ISC. That will continue to happen.
If, as I said, the word “draft” is not appropriate, I am sure that we can make arrangements. I am obviously not a draftsman. One way of doing that would be just to delete subsection (3) from Clause 3. We will have a look at it. We have, as we know, any amount of time because we have a long summer ahead of us with other matters to deal with.
The second amendment in this group of three, Amendment 36, spoken to by the noble Lord, Lord Rosser, changes the criteria—or definition, as the noble Lord, Lord Rosser, put it—whereby the Prime Minister might exclude any matter, if that report without that matter excluded would contain sensitive information as defined in Schedule 1, or information which should not be disclosed in the interests of national security.
The ISC must be able to report candidly to the Prime Minister on sensitive matters. Inevitably, the full contents of its reports cannot always be published because of the nature of the material contained within them. We are all agreed on that; it is quite clear. It follows, therefore, that there must be an ability to redact information before the ISC reports can be published or laid before Parliament. I must make it clear that the test in the Bill is modelled on the one in the 1994 Act. That has worked well and it is well understood by both the committee and by the Government. It has allowed material to be excluded where it should be excluded but it has also allowed the Government and the ISC to ensure that as much of the ISC’s reports that can be published are published. I do not believe that it is overly restrictive but it does cover certain categories of information which would not be covered were the Bill to be amended as is suggested in the noble Lord’s amendment.
The noble Lord, Lord Campbell-Savours, from a sedentary position, and the noble Lord, Lord Rosser, have put this point. They want to know why the criteria are different. If the noble Lord will allow me, I will explain that in due course. There is no need for him to make an intervention as he has already asked that point. The ISC needs to know what can be published and there are two different tests—one for publication and one for disclosure to the ISC. The tests therefore should be different. Tests for withholding from the ISC should be at a much higher threshold.
As both noble Lords will be aware, the functions of the agency are not solely exercisable in the interests of national security. It also has functions exercisable in the interests of economic well-being, United Kingdom fraud protection or prevention of serious crime. For those instances where including a matter in an ISC report to Parliament could cause prejudice to those functions of the agency but not to its functions in relation to national security, the existing Clause 3(4) would give the Prime Minister the power to require that that matter should be excluded from the ISC’s report whereas, unless the information in question fell within the definition of sensitive information under paragraph 4 of Schedule 1, the formulation of the clause proposed by this amendment would not.
With that, the noble Lord’s amendment is not necessary and in fact would not take us much further. I hope therefore that he will consider not moving it when it is called. I trust that my assurance that we will consider Amendments 35 and 38 in the names of the noble Lord, Lord Butler, and my noble friend Lord Lothian will enable the noble Lord to withdraw his amendment.
I am grateful for the Minister’s assurance that the drafting points raised in Clauses 35 and 38—or a little more than drafting points, as my noble friend Lord Lothian said—will be looked at. With that assurance, I am happy to withdraw the amendment.
Amendment 35 withdrawn.
Amendment 36 not moved.
37: Clause 3, page 2, line 41, at end insert—
“( ) The ISC shall consider any request from a Select Committee of Parliament to the ISC to make a report on any particular issue related to national security and shall report to Parliament whether it has agreed to make such a report.
( ) The ISC shall consider any request from a Select Committee of Parliament for the transfer of information which that Select Committee of Parliament has stated it needs to carry out its functions as a select committee.”
Amendment 37 derives directly from conversations I had with the former MP Chris Mullin, a good pal of mine, while he was chairman of the Home Affairs Select Committee in the House of Commons and also conversations with members of the Defence Select Committee in the Commons. They were denied access to the agencies for reasons that at that time I was able to accept. But there were occasions when they felt that we could secure on their behalf access to material which, following discussion with the agencies, could under certain conditions possibly be made available by the ISC to those parliamentary Select Committees. It was their way of trying to ensure that questions would be asked of agencies where they were unable to ask those same questions themselves. It was not that they always sought to have access to the material, but that they wanted to be assured that the ISC was prepared to ask the questions.
I recognise that in the past 11 years since I was a member of the committee the relationship between the Select Committees and the agencies has changed, although the noble Lord, Lord Lester of Herne Hill, in his two interesting interventions on Monday, raised difficulties that his committee had experienced with the Joint Committee on Human Rights—no doubt he will wish to speak during this debate.
My amendment is only a modest attempt to clarify the relationship. There are two parts to it. The first part would place a requirement on the ISC to consider a request from a Select Committee for it to make a report to Parliament. It would not require publication of that report or its transmission to the Select Committee which had made the original request. The only requirement would be for the ISC, if it had complied with the request, to report to Parliament that it had made such a report—in other words, that it had carried out an inquiry.
The second part of Amendment 37 would place a requirement on the ISC to consider a request from a Select Committee for information to be given to that committee where it could show that it needed the information to carry out its functions as a Select Committee. Both parts of the amendment have been carefully crafted—although I am an amateur in these matters—so as to avoid either intentional or inadvertent breaches of national security. I beg to move.
My Lords, I support the amendment for the reason indicated by the noble Lord, Lord Campbell-Savours; that is, it seems to be a very practical way of solving the problem that I raised when we last discussed the Bill. It treats the ISC quite properly as within the inner ring of confidence and the best judge at that stage of the relationship between Parliament through its committees and the Intelligence and Security Service. I find the amendment attractive because it would mean, for example, that if the Joint Committee on Human Rights wished to be helped by the Intelligence and Security Service it could go to the ISC with a request instead of the awkwardness of writing and seeking direct help. The ISC could then act as the intermediary, decide what was appropriate and then come back to that committee. That seems a practical way of dealing with what would otherwise be an awkward situation. I am glad that the Minister has indicated that he will anyhow reflect on the points that I raise before Report, but the amendment seems an ingenious way of producing a practical answer which should not damage the work of the ISC, the Security and Intelligence Service or the public interest.
My Lords, I assure my noble friend that I will always reflect on all points that are put to me in the course of these debates between now and Report. I appreciate the intention behind the amendments of the noble Lord, Lord Campbell-Savours, which is simply to create stronger links between the ISC and other committees. I appreciate that he has discussed this matter with former chairmen of the Home Affairs Select Committee such as Chris Mullin, whose diaries I have recently been reading and greatly enjoyed, as I imagine all of us have.
It is certainly our intention that the ISC should be a strong and effective committee and cover in its work matters of public and parliamentary interest and national importance relating to the agencies. Equally, an important feature of the committee is that it is party, as I have said on many occasions, to the most sensitive material and will scrutinise matters that are secret, some of which Parliament and the public will not have sight of for very good reasons.
While on the face of it the proposed changes seem helpful, I have some concerns about them. At the moment, obviously it is open to any Select Committee to write to the ISC and request that it focuses its work on a particular area. There is nothing in the new arrangements to prevent it from doing so and I am sure that the ISC will continue to take any such requests seriously, particularly if the noble Lord, Lord Campbell-Savours, was a member of the ISC, although I imagine it would be equally true with any other membership of that committee.
My concern is really about the idea of creating a formal statutory mechanism for making and considering these requests, with a requirement on the ISC to report on its decision-making process, which is what the noble Lord is seeking to do. I will give three very brief reasons why I do not think it is necessary to create a formal process, although, as I say, we shall take this away and consider it. First, I am concerned that the ISC could become overwhelmed with the number of requests to report on particular matters. If it acceded to all requests, its programme of work could be overwhelmed with matters that are of interest to other committees, taking its focus away from its core work of scrutinising matters that it alone should identify itself with.
Secondly, there is the question of what the ISC would be able to say in response to those requests, given the highly sensitive nature of the agencies’ work. Thirdly, if the ISC did not accede to all requests from Select Committees, tensions could develop between the ISC and those committees. That could undermine and damage the ISC’s reputation when the reality is that the ISC is carrying out important scrutiny, determining the priorities for that scrutiny in the light of its expertise and access to the relevant information in line with its remit.
With my assurance that other committees are welcome to make requests to the ISC, along with my explanation as to why I do not think it is necessary to make this into a statutory obligation and the fact that I have concerns about setting it down in that way, I hope that the noble Lord will be more than happy to withdraw his amendment. However, as I said at the beginning in response to my noble friend, we are always prepared to reflect on such points.
I quite understand the Minister not wishing this amendment to be in statutory form, but would it be beyond the wit of man or woman to embody the idea behind these amendments in a protocol, a memorandum of understanding or something of that kind? I have in mind just such an agreement between the Law and Institutions Sub-Committee of the European Union Select Committee and the Joint Committee on Human Rights as to how one deals with overlaps and so on. Could the Minister perhaps reflect on whether there are other ways of achieving this aim that are not simply an assurance from him but something short of statute?
My Lords, I have served on one of the two committees that the noble Lord refers to—and felt considerably out of my depth—but not on the other. I note what he says about the memorandum of understanding between them. This might be something that the ISC and other committees could reflect upon between themselves and decide how they want to proceed. Again, however, I do not think that this is best set out in statute, although obviously we will reflect on these matters. That is the point of this House and why we are going through a Committee process. I have set out why I do not think that this is the best way of going about it, but I shall listen to the noble Lord, Lord Campbell-Savours, and trust that he will feel able to withdraw his amendment at this stage.
In some ways, that may be a helpful response. Following the intervention of the noble Lord, Lord Lester, and his reference to the memorandum of understanding, and on the basis of what the Minister said the other day—that there would be an ongoing process over the next few months during which this memorandum of understanding was to be drawn up—
It is one thing if we are talking about a memorandum of understanding between the Government and the ISC. I think my noble friend was referring to a memorandum of understanding between the ISC and other Select Committees. That, obviously, would not be a matter for the Government.
It might not be a matter directly for the Government but it could well be incorporated into the document. The memorandum of understanding might deal with the whole question of the principle of the relationship that should or might exist between this halfway-house committee and Parliament.
I am grateful to the noble Lord, Lord Lester, for his intervention. I listened to the three reasons that he gave and I am not altogether sure that, apart from the last one, the first two would really register with members of the ISC. There may be some argument for the last one. On the basis of further consideration of these matters, I beg leave to withdraw this amendment.
Amendment 37 withdrawn.
Amendment 38 not moved.
Clause 3 agreed.
Clauses 4 and 5 agreed.
39: Before Clause 6, insert the following new Clause—
“Statutory PII for national security sensitive material
(1) In any relevant civil proceedings in which the Secretary of State considers that—
(a) a party to the proceedings (whether or not the Secretary of State) would be required to disclose material in the course of the proceedings to another person (whether or not another party to the proceedings), and(b) such a disclosure would be damaging to the interests of national security,the Secretary of State must make a claim for public interest immunity in relation to that material under this section.(2) A claim for public interest immunity under this section must be made by the Secretary of State issuing a certificate relating to the individual documents in question and giving reasons why, in the Secretary of State’s view, disclosure would be damaging to the interests of national security.
(3) When deciding whether the material attracts PII under this section, the court must weigh, on the one hand, the degree of harm to the interests of national security if the material is disclosed against the public interest in the fair and open administration of justice on the other.
(4) When conducting the balancing exercise under subsection (3), the court shall—
(a) apply a presumption against disclosure of national security sensitive material held by, derived from or relating to an intelligence service, rebuttable only by compelling reasons, and(b) pay due regard to—(i) fair trial principles,(ii) the principle of open justice,(iii) the right to an effective remedy for violations of human rights,(iv) the ability of the media to report matters in the public interest, and(v) the need for state accountability for human rights violations.(5) If, after conducting the balancing exercise under subsection (3), the court considers that the balance of the public interest lies in non-disclosure, it must consider whether sufficient disclosure to enable a fair trial of the issues is possible by other means short of full disclosure, such as—
(a) redaction;(b) provision of a summary of the material;(c) disclosure subject to confidentiality undertakings;(d) hearings in private;(e) restrictions on reporting;(f) restrictions on access;(g) restrictions on the use of the material.(6) If, after conducting the process set out in subsection (3) to (5), the court concludes that the balance of the public interest lies in non-disclosure, the court must rule that the material shall not be disclosed.”
My Lords, in moving Amendment 39, I shall also speak to Amendment 40. These amendments are in the names of my noble friends Lord Lester of Herne Hill and Lord Macdonald of River Glaven, the noble Lord, Lord Pannick, and me. My noble friend Lord Lester and I are members of the Joint Committee on Human Rights. My noble friend Lord Macdonald, who unfortunately is in the British Virgin Islands at the moment and sends his apologies, and the noble Lord, Lord Pannick, are members of the Constitution Committee of your Lordships’ House.
We are now moving on to Part 2. These amendments would provide for the insertion before Clause 6 of the public interest immunity procedure to be reduced into statutory form, and would provide that, following PII, either party to civil proceedings could move on to closed material proceedings. A judge may at that juncture grant permission if the court considers that, first, the CMP is the only way forward and, secondly, that the public interest is served in having issues determined by the CMP, which outweighs the unfairness of either the claim or the defence being struck out.
At the moment, PII operates on the basis of common law. It is well understood and all the evidence suggests that judges are getting decisions in individual cases right. However, the Government’s complaint is that, despite the prime facie satisfactory way in which PII operates, there is a justice gap. Certain cases are effectively untriable. They have to be settled or even struck out. The provisions of Clauses 6 to 12 represent the Government’s solution.
The concerns expressed by many noble Lords at Second Reading suggest that there may well be considerable room for improvement in these provisions. I do not claim to speak for my co-signatories or for other noble Lords who have put forward similar amendments in this group, but I can be confident that all are concerned to understand quite how these complex provisions will work in practice. For example, Clause 6(5) states:
“Before making an application under subsection (1), the Secretary of State must consider whether to make, or advise another person to make, a claim for public interest immunity in relation to the material on which the application would be based”.
Many noble Lords and commentators have said that this is a meaningless obligation and that it runs the risk of merely being a tick-box process.
At Second Reading, I said that I would expect judges to require some convincing that the Secretary of State had gone through this process. I suppose there could, in theory at least, be a freestanding judicial review application in relation to that provision. Can the Minister reassure the House that the provision represents a real safeguard and explain how it works, or should work, in practice? Why not, as the amendment proposes, place the PII procedure in the Bill and make it an essential precursor to an application for a CMP?
Another concern expressed by many has been the fact that CMPs are open only to the Secretary of State and not to other parties to the litigation—that is, claimants. It is not immediately obvious what the circumstances are in which a claimant would want or have the ability to invoke a PII procedure and then move on to the CMP, but it surely does not help to make this legislation seem fair and proportionate if the recourse to so-called secret justice is available only to one side.
In the debate on the Bill, much has been made of the memoranda and evidence of the special advocates involved in these closed and open hearings. I share with many other noble Lords a respect for this body of highly qualified men and women, and I identify with many of their concerns. Their view is that PII is working well and that CMPs are an offence to open and natural justice. I do not go that far. These amendments do not attempt to remove the right to proceed by way of CMPs. It may be a form of justice that is very much one of last resort, but I am satisfied that the Government have made their case for the availability of CMPs in civil proceedings, just as CMPs operate in other fields. I am reinforced in this conclusion by the observations of the highly respected Independent Reviewer of Terrorism Legislation, David Anderson QC.
It may help if I take the Committee briefly through the amendment, which is on a, “Statutory PII for national security sensitive material”. It provides that the Secretary of State must make a claim for PII and issue a certificate giving reasons. The court must then weigh the balance between the degree of harm as against the fair and open administration of justice, and the amendment sets out the balancing exercise that the court should perform, including,
“a presumption against disclosure of national security sensitive material”.
Subsection (4)(b) of the amendment states that the court should,
“pay due regard to … fair trial principles … the principle of open justice … the right to an effective remedy for violations of human rights … the ability of the media to report … and … the need for state accountability for human rights violations”.
The amendment continues:
“If, after conducting the balancing exercise … the court considers that the balance … lies in non-disclosure, it must consider whether sufficient disclosure to enable a fair trial of the issues is possible by other means”.
The amendment then sets out a menu of other means that have been discovered over the years by judges as a way of mitigating any hardship by means of partial disclosure, and concludes by stating:
“If, after conducting the process … the court concludes that the balance of the public interest lies in non-disclosure, the court must rule that the material shall not be disclosed”.
This process gives the judge the balancing exercise for which he or she is well qualified, but leaves in the hands of the Secretary of State consideration of whether the disclosure of material would damage the interests of national security.
I confess to a little uncertainty about how Clause 6, as drafted, will operate in one important respect. Is it open to the judge to decide that in his view disclosure of the relevant material is not damaging to the interests of national security? In other words, can he second-guess the Secretary of State? In the helpful letter sent by Ministers following Second Reading, with the accompanying algorithm, that seemed to be the contention. If that is right, does it not mean that the CMP could be sidestepped altogether? My reading of the inclusion of “must” in Clause 6 does not sit easily with that construction.
When responding to these amendments, I also invite the Minister to say a little more about Clause 7 and the rules of court. In asking Parliament to approve what to many is a form of justice that is foreign to our system, it is important that the process and relevant safeguards are well understood. My own experience of the judicial response to any proceedings that involve less than full transparency is that judges are rigorous in the extreme in acting in a way that ensures so far as possible that damage cannot be done. On the judge’s powers as set out in the Bill, I would be particularly glad if the Minister could comment on the observations made by the noble and learned Lord, Lord Mackay of Clashfern, about Clause 7(3): just how much judicial power can be exercised in accordance with these provisions? This is particularly important because, on one view of the Bill, a judge may well take the view that the Secretary of State’s evidence is of very limited significance, and yet he could not refuse to have a CMP.
I hope that it is not necessary to say very much about Amendment 40, which would give the judge the power to commit CMPs if he is satisfied that it is the only way forward. In case the Minister fears that judges would be reluctant to reach such a conclusion, I remind the House that a number of judges, including the noble and learned Lord, Lord Woolf, who is in his place today, have accepted that in certain circumstances CMPs are capable of achieving justice and being consistent with a fair trial.
I do not anticipate a frequent recourse to CMPs. I expect advocates and judges to be vigilant in ensuring fairness, whether pursuant to Article 6 of the European convention, or otherwise. However, I accept that there may be rare occasions on which recourse to CMPs is necessary. Before such an exceptional process is undertaken, I suggest to the House that the PII procedure, which is well understood, should proceed as a CMP. Courts have shown flexibility in trying to devise methods to protect—
The PII proceedings, which we attempt to define in this amendment, would not normally be secret. The process contains a number of different options for a judge in dealing with an application. It is conceivable that in the course of responding to the particular facts of a case a judge might decide that a certain part of the hearing, even under PII, might have to be under a CMP. However, the purpose of the amendment is not to impose a straightjacket on the procedure but to ensure that the PII procedure is gone through—with all its inherent safeguards—before moving on to CMPs, which are by definition closed material proceedings and therefore do not involve access to the litigants or to the open advocate.
Is not an answer to the question posed by the noble Lord, Lord Carlile, that the PII applications are heard in just as much secrecy as the closed material procedures? The difference is that in PII applications the judge’s decision over what is to be disclosed and what is not to be disclosed is discarded from consideration, whereas with closed material procedures he is supposed to consider it and take it into account. In terms of secrecy, there is no difference.
I am grateful for the clarification—that is indeed helpful. In dealing with whether or not it is appropriate to go through the PII process first, the Minister in his response to this suggestion at Second Reading said, at col. 1756, that do so would be “costly and illogical”. I do not expect any judge to spend much time and expense undertaking a process that has an inevitable outcome; nor would I expect advocates to insist on it. However, as I said earlier, the obligation to go through the PII process is an important portal. In this context, I would also expect judges to be very conscious of wasted costs. I cannot for the moment see why it would be illogical to go through the process.
The amendments in this group, which include a statutory definition of PII—for which I give credit to the legal adviser to the JCHR—represent an attempt to preserve the option of CMPs while ensuring that the resort to closed proceedings should be undertaken with extreme care and in a way that minimises the risk of injustice. I beg to move.
I am grateful to my noble friend for the way in which he introduced the amendments. It makes my task brief and rather less sophisticated. I will make a number of points. First, the report of the Joint Committee on Human Rights on the Green Paper summarised, in paragraph 97 onwards, the main differences between PII and CMP. It pointed out in paragraph 103:
“The Government’s position in the Al Rawi litigation”—
in which I appeared for a third party—
“was that it should be for the courts to make the determination and the Green Paper does not explain what has changed the Government’s position since that case”.
The Joint Committee emphasised the importance of a judge rather than a Minister making the determination. The germ of the idea of putting the horse before the cart rather than the cart before the horse—that is, putting the balancing of PII first and CMP second—came from Mr David Anderson QC in his evidence to the committee.
It is my impression that our allies in the United States are much more concerned about the Norwich Pharmacal point than they are about the closed material point. The closed material point is very much a matter of procedure in which it is not suggested that Wiley balancing, as it is known, would in any way jeopardise national security if it were considered to be the first step in that procedure.
The advantages of considering PII first are that it makes it less likely that there will be an unnecessary resort to CMP. I am agnostic—even though I am a party to our amendment—about the way in which this can be expressed. The noble Lord, Lord Hodgson, has another way of doing so, and no doubt it would be easy for the Government to find a way of doing so. I am concerned with the principle, which is that it should be for the judge and not the Minister to determine at the outset of a case whether to rush into the CMP procedure or to ask whether PII is desirable.
Perhaps I should put this question to the noble Lord, Lord Faulks. I very much applaud the efforts made to produce the amendment, for which I have considerable sympathy, but I am confused by one proposition. As I understand it, under the amendments tabled by the noble Lords, Lord Hodgson, Lord Faulks and Lord Lester, the court has to say, “We are not going to disclose under PII before we get to the possibility of a closed hearing”. In reaching that conclusion, the court has to exclude the possibility of a CMP hearing: it will approach the case on an ordinary PII basis. I can easily envisage a situation where a judge says, “It is a finely balanced case, but I have decided to order disclosure because a fair trial would be so damaged, even though significant damage will be done to national security”. Under the amendment of the noble Lords, Lord Lester and Lord Faulks, that fine balance would have to be struck before getting to CMP. It seems an odd conclusion. Am I right in my analysis of the amendment? If so, why is it put like that?
I did not understand it to impose that degree of rigidity. If it does, then I respectfully agree that some modification of the wording is necessary. I want to deal briefly with one or two other points.
The noble Lord, Lord Pannick, may want to say something himself about the Government’s response to the Constitution Committee’s report, which analysed the three flaws, as the committee saw it, in the existing scheme. I read and reread this government document and it gave me a headache because I simply did not understand what it was saying. It seems to be saying that there is very little difference between PII and a CMP, that there would be the same flexibility in a CMP as in PII, and that, having gone through a CMP, the judge can in any case go back to PII. It must be my fault but I simply do not understand what the Government’s settled position in that document really is. The Government say that the judge would have a number of important tools in a CMP to ensure that it was conducted fairly. They say that there is a similar level of flexibility to that available to the judge under PII. They say that it should be exceptional to use a CMP. All these points are certainly interesting but my basic point is on Wiley balancing. The noble and learned Lord, Lord Woolf, was responsible in his judgment in Wiley for articulating that Wiley balancing should be open to the judge first and that a CMP should be an exceptional procedure following it and that at all stages national security and other vital public interests should be preserved.
I have just one question for the Minister. Does he agree that there is no case in which an English or Scottish judge has breached national security or not shown the appropriate degree of deference to the executive branch of the security and intelligence services in his or her final adjudication? I ask that because I am very concerned that across the Atlantic there seems to have arisen a complete misunderstanding that our judges cannot be trusted with state secrets and national security. I do not know how that came about. My guess is that it arose in dialogue during the Binyam Mohamed case, especially at the Divisional Court level. However, it seems to me vital, as a matter of public record, that the Government make it absolutely clear that our judges can be trusted and have a fine record of trust of that kind.
My Lords, I have added my name to Amendments 39 and 40. I am very grateful to the noble Lord, Lord Faulks, for introducing the amendment. I recognise that there may well be a need in some exceptional cases for a CMP or closed material procedure, but it seems to me that this should be a last rather than a first resort. My answer to the question put by the noble Lord, Lord Carlile, is that PII certainly maintains secrecy just as effectively as a closed material procedure. If it did not, then it would not be a satisfactory alternative. The advantage of PII is that it does not enable the judge in determining the substance of the case—a point made by the noble Lord, Lord Thomas of Gresford—to rely on material that is seen by only one party and not by the other party. The evidence that is admitted is seen by both sides in the case. My answer to the question posed by the noble and learned Lord, Lord Falconer of Thoroton, is this. If, as a result of the PII—
I apologise for intervening again but this seems to be a very important point. I am not sure that the noble Lord, despite all his great distinction, is right in the answer he has just given.
In criminal cases, when a PII application is made, generally the defence knows absolutely nothing about that application and has seen absolutely no documentation underlying it. I have relevant professional experience in criminal cases; I do not have any relevant experience in civil cases so this in a spirit of genuine inquiry. Is the noble Lord saying that in civil cases where a PII application is made, the claimant will have seen the document for which the PII application has been made? If not, we have a problem, do we not?
The noble Lord is absolutely correct. In my experience of both civil and criminal cases, the relevant material is presented to the judge by the public authority that has possession of it. The claimant does not see the material. The judge will determine the PII application either by reference to a general description of what it contains or, in appropriate cases, the judge will privately see the material and determine the PII application. Therefore, the noble Lord is absolutely right. Other than in wholly exceptional cases, the claimant will not see it. The point, however, is that it is only if the judge decides that the information may be seen by the claimant—or the defendant in a criminal case—that the material is taken into account by the judge in determining the substantive issues in the case.
That is the advantage of PII: it avoids the case being determined on its substance by reference to material that only one side has seen. If the judge says that PII excludes this material, it is not made public, but equally it is not taken into account by the judge when he determines the case. The whole point of this amendment—as far as I am concerned; I cannot speak for my co-signatories—is that surely the law should seek to ensure that the PII process is gone through in order to identify whether it can provide a satisfactory solution, as it very often will, before we go to the wholly unsatisfactory in principle procedure of the judge deciding the case on its substance by reference to material that only one side has seen.
PII can ensure that even the most sensitive material can be seen by both sides in the case through this means. PII is often used in practice to ensure the redaction of sensitive material so that what is— properly—disclosed to the claimant is not the whole of the document but a redacted version; for example, the names of security agents are removed, or only the gist of the material is disclosed and the judge decides the substance of the case by reference to that document rather than the sensitive material. The amendment seeks to ensure that that process is gone through before there is any question of a closed material procedure.
The noble and learned Lord, Lord Falconer of Thoroton, says that in PII there is supposed to be a balancing process and the judge might decide that this is very sensitive material but the public interest outweighs the sensitivity, which would leave us in the same difficulty. There are two answers to this. The first answer is that as given by the noble Lord, Lord Lester of Herne Hill. Nobody can point to any case where the judge deciding a PII application has decided to reveal something that the security services or the public authorities in general regard as sensitive. Judges do this job with enormous sensitivity and with very considerable knowledge of what is required by the public interest.
We know that because there is absolutely no evidence of which I am aware of public authorities appealing against PII decisions and saying that it is unacceptable, because sensitive material or any other public information is going to be revealed by the judge.
However, there is a second answer to the noble Lord, which is that under a PII application, even if the public authorities take the view that the judge has balanced matters and decided to reveal that which is sensitive, the public authority has no obligation to reveal it. It can decide that it would rather lose the case than disclose this information. That is why we need a procedure for CMPs, because there may be cases where PII does not produce a satisfactory result for public authorities. I am prepared to accept this, not least because David Anderson QC, the independent reviewer, has concluded that there ought to be such a procedure. My point is that it ought to be a last resort, rather than a first resort. My fundamental objection—
The noble Lord, Lord Pannick, has much more experience than I have in the uses of PII. Subsection (5) of the proposed new clause lists the different matters which the judge should regard when making his decision. Am I right in thinking that these are matters to which the judge has regard to in a PII case? Are those the kind of considerations that the judge will look at carefully in order to tailor the needs of national security and justice?
The noble Lord is absolutely right. The purpose of the new clause before Clause 6, and the detail that is set out in Amendment 39, is that it is an attempt—with the very considerable assistance, as the noble Lord, Lord Faulks, said, of the legal advisers to the Joint Committee—to set out in statutory form the common law position. That is its purpose; but I emphasise that PII is not a procedure that requires disclosure. It is distinct, as the noble and learned Lord, Lord Lester, says, from the issues that we will be discussing on Norwich Pharmacal where the concern is that if the judge makes an order, there must be disclosure.
My fundamental objection to Clause 6, and the reason I support these amendments, is that under subsection (5) the Secretary of State, before he decides whether to make an application for a closed material procedure, must first consider whether to make a claim for PII. So the obligation is on the Minister to consider whether to apply for PII or not. That is all to the good. However, if a closed material procedure application is made by the Secretary of State—or indeed by anybody else—Clause 6(3) provides that,
“the court must ignore … the fact that that there would be no requirement to disclose if … the material were withheld on grounds of public interest immunity”.
As I understand Clause 6, the judge is obliged to ignore the possibility of PII. I take the view that, just as the Minister ought to consider whether PII provides a satisfactory means of resolving the conflict between security and fairness before he applies for a closed material procedure, equally, the judge should have to consider that.
The noble Lord made the same point at Second Reading. Perhaps I might explain how subsections (2) and (3) interact. I understand the point that he is making but it is not as fundamental as he represents it. If I have got that wrong, I apologise. He will realise that under subsection (3) the court has to decide,
“whether a party to the proceedings would be required to disclose material”.
That relates back to the first leg of the two conditions that must be satisfied in subsection (2)—namely, that in paragraph (a). The point is that the judge cannot say, “You wouldn’t have been required to disclose this because it could have been dealt with by PII”. This provision tries to ensure that, if you did not have PII, there would nevertheless be an obligation to disclose evidence under, I think, Part 31 of the Civil Procedure Rules. I hope that explains why this is not a matter of principle but one that indicates what might otherwise be required to be disclosed.
I am very grateful to the noble and learned Lord, who is characteristically very helpful on these matters. However, I hope he will accept that it is absolutely vital, in a matter of such importance and sensitivity, that we make it very clear in the legislation that the judge, when asked to decide whether to go into a closed material procedure—in which he will decide the case by reference to evidence that has not been seen by one side—will do so only if he is satisfied that there is no other lawful, proper means of resolving the question. If the Minister is telling me that the Government’s intention is that the judge should first ask himself whether the problem can be resolved by, for example, gisting or redacting the material or by some other means, or that the judge has a power to say to himself, “This material is really not very important in determining the case. Therefore, I do not need to go into a closed material procedure”, I would be very relieved and satisfied.
I ask the noble and learned Lord to reflect on this point. The issue is not really about the proper interpretation of the very difficult words in Clause 2. The question is one of principle, about what we seek to achieve. For the reasons that I have sought to identify, I hope that the Committee and the noble and learned Lord will agree that we should end up in a position whereby the clause states unambiguously that—given the disadvantages that it inevitably involves and the unsatisfactory nature of such a procedure—a closed material procedure, although it may be needed in exceptional cases, should be adopted only if there is no other fair and proper procedure that can be adopted, and if that is the view of the judge who is hearing the case.
My Lords, I have amendments in this group that refer to the inability of parties other than the Secretary of State to access CMPs. Amendment 41 and consequential Amendment 50 would omit “The Secretary of State” from the first line of Clause 6(1) and replace it with:
“Any party to relevant proceedings”.
I propose this on the grounds of fairness. Throughout the briefing and our debates so far, the Government have stressed the importance of fairness. In my view, the present drafting of the clause represents an unacceptable inequality of arms. A party who is suing the Government has no right to apply for a CMP, yet one of the justifications for CMPs in the Green Paper was unfairness to claimants. The Green Paper claimed that some claimants might find their cases being struck out because a fair trial was impossible due to the fact that the issues were so steeped in secret, undisclosable material that the Government would be unable to defend themselves. The Government claimed CMPs would be necessary to protect the claimants from that eventuality.
In the Government’s briefing, which they circulated ahead of the proceedings on this Bill, they said:
“It is also clear that in some cases, the absence of CMPs is particularly unfair on the claimant. In a recent naturalisation case (AHK and Others) the judge ruled that without any means by which sensitive intelligence could be heard in court, ‘the Claimant is bound to lose, no matter how weak the grounds against him, there is obvious scope for unfairness towards a Claimant’”.
If it is advantageous to any party to use closed material proceedings, why should they not be able to so?
I will speak to Amendments 42 and 47, which are grouped with the other amendments that have been spoken to. I acknowledge the assistance of the Bingham Centre for the Rule of Law in drafting my amendments.
The approach in the amendments introduced by the noble Lord, Lord Faulks, is to create a special, statutory public interest immunity procedure, limited to material sensitive to national security, which must be followed by the Secretary of State as a precursor to a closed material application. I consider that to be preferable to the clause as drafted but it is a bit of a straitjacket, as the noble and learned Lord, Lord Falconer, pointed out. It means that the judge would have to go through a series of hoops set out in Amendments 39 and 40 before he could proceed. I hope to suggest a different model that runs more with the grain of the Government’s proposals and is more flexible but achieves the safeguards that I am sure all noble Lords—except possibly my noble and learned friend the Minister—consider necessary.
The present position, as outlined already by other noble Lords, is that public interest immunity springs from a common-law basis, with its principles derived from a number of cases. I need not go into that. The Government’s approach in the Bill is to leave public interest immunity to the common law and not introduce a statutory procedure, but as an alternative to introduce statutory closed material procedures at the Secretary of State’s discretion for the protection of material sensitive to national security. All the Secretary of State need do is consider whether to make a PII application under Clause 6(5)—but he does not have to make such an application.
It is necessary to restate and hold in the forefront of our minds whenever we discuss this topic the essential distinction between the two applications. In a PII application, the judge weighs the material on Wiley principles and orders disclosure or partial disclosure where he determines that the public interest in the administration of justice outweighs the public interest in non-disclosure. But material that is not disclosed under PII—being, in the judge’s judgment, too sensitive —is not admissible and therefore plays no part in his determination of the case. Under CMPs, closed material is admissible even if it is not disclosed. Indeed, the Secretary of State may wish the secret information to be central to the judge’s determination. I am sorry to restate what has been said over and again but it is important to bear that in mind because it impacts on the amendments I am putting forward.
Therefore, if sensitive material in the hands of Secretary of State undermines his case or supports the the claimant’s case, it is in the Secretary of State’s interest to make a PII application and to persuade the judge not to disclose it or have it form any part of his determination. If, on the other hand, the Secretary of State is in possession of sensitive material which he wishes to rely on and which he wishes to be admissible—which he wishes the judge to take into account—it is in his interest to make application for closed material procedures. Remember, under the Bill it is entirely for the Secretary of State to determine which sort of application he makes.
The choice given to the Secretary of State by Clause 6(5) as to which procedure to follow gives him a significant litigation advantage over the claimant in two respects. First, it may deny to the claimant access to material in his favour when a PII application is made. Secondly, by the use of closed material procedures, if that choice is taken, it puts unchallengeable but admissible evidence in the Secretary of State’s favour before the judge for his determination of the issues. This consequence of Clause 6 is in direct conflict with the motivation of the Bill, as stated publicly by the Lord Chancellor—repeated in speeches and in the documentation that has been supplied to us—that this proposal in the Bill is not to protect secrets, because PII and closed material procedures equally protect secrets, but to make litigation fairer. Yet the proposal to make litigation fairer gives, as I say, a litigation advantage to the Secretary of State.
This brings me to Amendment 42. An astute litigator on behalf of the claimant should suspect that if the Secretary of State makes an application for public interest immunity, the chances are that the sensitive material which is withheld is in the claimant’s favour. The purpose of the amendment, like Amendment 41, is to permit any party to the proceedings to make a closed material application if he has reason to believe it would be in his interest to do so. That would go some way towards equality of arms.
The noble Lord, Lord Carlile, pointed out that in criminal proceedings, with which he and I are particularly familiar, very often a defendant will not know that an application has been made at all. Nothing may be said. I think, but I may be subject to correction, that in civil proceedings a claimant would know that a Secretary of State’s certificate had been issued to claim public interest immunity.
We heard from the noble Lord, Lord Pannick, that in civil proceedings, as in criminal proceedings, there are certain circumstances in which one might know—there are categories set out in judicial decisions—but there are certainly cases in which one might not know, whether in civil or criminal proceedings. I am sure that that is right.
I am impressed by what has been said about the opportunistic opportunities that this gives. At the moment I am bewildered by what it is suggested the claimant would want to use closed material proceedings for. I can see the point about the appearance of equality of arms, but it strikes one initially as being a slightly odd conclusion to reach. I am sympathetic to the idea that the courts should make sure, as the noble Lord, Lord Pannick, is saying, that every other option has been tried, but I would be grateful if the noble Lord, Lord Thomas, would explain what are the circumstances in which the claimant—a man such as Binyam Mohamed in an ordinary civil litigation—would want to keep things secret. The noble Lord, Lord Lester, is going to answer.
I wonder whether this is helpful. In the case of Binyam Mohamed there was a parallel case in the district court of Columbia by another Guantanamo detainee facing a capital charge. This was a habeas corpus case and the question was whether Binyam Mohamed’s evidence, which had pointed to this man as an evil rogue, could be relied upon. The applicant in the habeas corpus case wished to show that Binyam Mohamed had been tortured, so the federal court had to decide that question. It was very much in the interests of the applicant for habeas corpus that that “closed”, secret material be placed before the court to exonerate him. In the end, Judge Kessler came to the conclusion, since it was not contested by the American Government, that he had been subjected to gross ill treatment and that this other man should be granted habeas corpus because Binyam Mohamed’s evidence was unreliable by being induced by torture. That is a real-life example in the context of habeas corpus in which it was in the interests of the applicant to rely upon that material.
As a matter of principle, the claimant may believe that the secret material would exonerate him. PII would prevent the secret material from being disclosed to him because it concerns security information, but he is confident that he has done nothing wrong—there is no reason why he should not be given naturalisation or some other benefit. He just wants the judge to be able to look at it. The claimant might prefer the judge looking at it without the claimant seeing it to the judge not seeing it at all.
It is more than the judge merely looking at it, though; the claimant might want the judge to take it into account through closed material procedures. That is the point. If I were acting for a claimant, knowing that the Secretary of State had a discretion over whether to go for a PII application that would exclude material or a closed material procedure that would include material, make it admissible and allow the judge to take into account, and the Secretary of State chose PII, I would think—and I am not a very suspicious person—that the Government were seeking to conceal something that the judge should have in mind in my favour. I might very well advise my client to take the risk.
In, I think, the case of Gillan the court suggested to the litigant, having looked at the material, that perhaps closed material procedures would assist him, but his counsel did not take the risk and he was stuck with that. So even though the material apparently assisted him, because he would not ask the closed material procedures —unfamiliar territory to most of us—that material, which might have been in his favour, could not be taken into account by the judge. The judge might know about it but he has to cast it to one side under PII.
That is why I say there is such litigation advantage in the way that the Bill is framed. PII applications can exclude stuff that might be favourable to the applicant. I hope that that answers the question that the noble and learned Lord, Lord Falconer, raised.
I suggest that Amendment 47 is a neater way than Amendments 39 and 40 of incorporating further safeguards. It would provide that the judge must not make the declaration that a closed material application be made to the court unless he considered that the material was inadmissible on the existing common-law public interest immunity principles and that it was strictly necessary in the interests of justice. These simple amendments of course infer, first, that the judge has considered the question of public interest immunity. It may not be necessary for him to go through the whole process; one recalls that in the Guantanamo case there were some 9,000 documents, so it was likely to take months for a judge to carry out the public interest immunity exercise if he had to do it first. He could look at the nature of the documents and realise that at least some of them would be inadmissible. However, it is the judge and not the Secretary of State who decides whether closed material procedures should be introduced, after the judge has considered whether PII would be a better approach. Secondly, it requires the judge to consider whether it is strictly necessary in the interest of justice. That amendment puts the judge firmly in control of case management. As the Bill is drafted, the Secretary of State not only has the litigation advantage to which I have already referred but actually controls the procedure to be followed.
Constitutionally that is not the role of a Minister. Furthermore, my amendments narrow the material which may be subject to closed material procedures to the irreducible minimum. I hope that the noble and learned Lord, Lord Lloyd of Berwick, will regard it as a desirable policy end to have only the irreducible minimum of material subject to closed material procedures; and that the Government are not skewed by influences that may be around, so that the adversarial nature of British law becomes so much in favour of the Government as to make any semblance of a fair trial impossible. I believe that the amendments I am proposing with the assistance of the Bingham Centre for the Rule of Law are simpler, more flexible and yet contain the same safeguards as Amendments 39 and 40.
My Lords, there are a few brave souls who are not lawyers still left in your Lordships’ House after 55 minutes of this debate. There are three to my right and I suspect that they are the ones who can recognise that there is quite a small pin with some lawyers dancing the rumba of closed material procedures on it and others doing the cha-cha-cha of PII. We owe it to them to give a comprehensible explanation of the difference and of how a proper outcome of this debate is reached. Given that, I suppose I can be forgiven for confusing the matter further by using two Latin phrases, as old lawyers like me tend to do. The first arises from hearing during this debate from the formidable duo of my noble friend Lord Lester and the noble Lord, Lord Pannick. I am not sure which way round they appear on the spine of the book on my bookshelf—whether it is Pannick and Lester or Lester and Pannick on human rights—but I suspect that age probably comes before beauty. I see the noble Lord, Lord Pannick, nodding in agreement. There is a danger of argumentum ad maiorem on any issue of this kind. Oh, dear. I give way to the older of the two.
I remind my noble friend that we are in the presence of the noble and learned Lord, Lord Woolf, who has banned Latin from use in courts. On this occasion it would be desirable if my noble friend spoke English and not some archaic antique language.
The writ of the noble and learned Lord, Lord Woolf, certainly ran through the courts in those days, but I am not sure that the use of Latin has yet been banned in your Lordships’ House. I want to use what I regard as a very meaningful Latin phrase, which I read in the first administrative law textbook that I studied, de Smith’s Administrative Law, before Lester and Pannick reached the shelves. It was a seminal work and I remember the phrase “audi alteram partem” being an important part of what I learnt from that book. I am pleased to see the noble and learned Lord, Lord Woolf, nodding at least in recollection if nothing else.
Audi alteram partem is extremely important because it depicts that both sides should be heard wherever possible and it is presumed that both sides should be heard in a legal dispute. For those reasons, in shorthand, I support the succinctly moved amendment of my noble friend Lord Hodgson. For the reasons that he and my noble friend Lord Thomas of Gresford gave, it seems that there may be cases in which it is a perfectly legitimate tactic and it may be proved to be right in substance for a party other than the Government to apply for a closed material procedure—if CMPs are to survive this legislation.
I hope I am right in saying—and it was certainly evident from the way in which the amendment was moved by my noble friend Lord Faulks—that we are all trying to achieve the same thing with this group of amendments. I firmly believe that the draft legislation shows that the Government and my noble and learned friend on the Front Bench, the Advocate-General, are trying to achieve the same aim. The overriding objective, as we call it, is that civil proceedings should be decided justly and fairly for both sides. I therefore agree with the principle that for the overriding objective to be achieved the proceedings should be as transparent as possible and that hearings in secret in which both sides are not heard should be as rare as possible. I certainly agree with that part of what my wise and successful successor as independent reviewer of terrorism legislation, David Anderson QC, has said. I am a little puzzled as to why so many people seem to believe that PII is fairer than closed material procedures. My experience of PII is limited to criminal proceedings, but it is instructive.
In one case in which I was instructed—a lengthy police corruption case—it turned out that, unknown to me as leading counsel for a defendant, there had been a number of PII applications. Some two to three months into the case, the High Court judge trying it came into court and said: “I wish to hold a further PII hearing in relation to some documentation that I have seen to determine whether it should be disclosed to the defence”. He then retired into chambers with leading counsel for the prosecution, his two juniors and a solicitor from the Crown Prosecution Service. After a lengthy hiatus in which we drank a large number of cups of Nottingham Crown Court’s best coffee, the judge emerged in court and two redacted pieces of paper were revealed. They were rather important and my junior and I wondered why we had not been given these documents at the beginning of the trial. We felt that we should have been but, already many weeks into the trial, the prospects of the jury being discharged and the trial starting again were realistically zero. The same would apply in civil proceedings, where, as the noble Lord, Lord Pannick, has confirmed from his experience, which is different from mine, the same processes are followed. The public authority in question makes its application for PII, usually in secret, the other side—the claimant in civil proceedings—knows absolutely nothing about it, and a few weeks into the trial the judge may decide that he or she should review PII.
What the Government are offering through closed material procedures is not for both sides to be heard but, given the provision in this Bill for the appointment of special advocates, in reality it would become the norm for a special advocate to be appointed. Although not instructed by or on behalf of the claimant, the special advocate would represent the interests of the claimant. Having read a very large number of control order case transcripts, including a lot of closed transcripts, I happen to believe that special advocates have sold themselves rather short and that they were extremely successful, as results have shown, in a large number of control order cases. I was interested and encouraged to hear the noble and learned Lord, Lord Woolf, saying “Hear, hear!” as I made that statement.
Although one would not have a wholly transparent process, one would have a process in which highly skilled advocates, often leading counsel, would represent the interests of the litigants concerned. That looks to me much more like a transparent legal procedure. I do not think for one moment that these procedures, whichever we adopt, should become the norm. They should remain rare. I firmly believe that, although it is inevitable that in almost all cases a public authority will make the application, the decision that determines how the case progresses, if at all, should be made by a judge, having weighed up all the arguments placed before him or her. It is of course inevitable that the issue will be raised in 99 cases out of 100 by the public authority because the public authority is the custodian of national security and of secret material.
Although I can see grounds for amending the legislation, I remain unpersuaded that the cha-cha-cha is a more attractive dance than the rumba here. My noble friend wants to do a waltz, I think.
I am sympathetic to any amendment which will improve the justice of decisions made. I am broadly sympathetic to Amendment 62. When I was independent reviewer of terrorism legislation, I frequently expressed the view that there should be stronger discussion between special advocates and those whose interests they represent. I remain of the view that the security services are over-sensitive, if not hyper-sensitive, about such communications. The short answer to my noble friend is yes.
I therefore invite the Minister to assist this Committee, particularly the non-lawyers here, by answering the fundamental question as to whether the Government have chosen a fairer procedure. Surely that is all we are trying to achieve. I say “that is all” but, if we achieve it, it will be a noble achievement indeed.
They have spoken for themselves and I have read what they have said. The answer is that I do not know. I simply do not agree with them. Each special advocate represents his or her own experience. No special advocate does more than one case at a time. If I have an advantage in this, it is one of observation over a period of years of the work of the body of special advocates.
I say to the noble Lord, Lord Pannick, that there are considerable improvements that can be made in the way in which special advocates receive and carry out their instructions. However, there is no doubt that they have been more effective than they diffidently appear to accept.
My Lords, I should perhaps begin by making certain disclosures. First, I have to confess that, together with the director of the Bingham Centre for the Rule of Law, I am among the editors of De Smith, which was referred to in argument as a book that deals with some subjects that are dealt with so admirably by the other book that has been referred to. Secondly, and perhaps more significantly, I should indicate not only that I was a judge who had to deal, as I did from time to time, with PII applications in both criminal and civil proceedings, but that for five years I was what was known as the Treasury Devil, one of whose tasks was normally to appear on behalf of the Government in cases where PII was being sought because of national security. I therefore have a certain degree of practical experience of the position as it arises, alive, within the court system.
The position in criminal proceedings is different from that in civil proceedings, because the issues in criminal proceedings are different from those in civil proceedings. In criminal proceedings, the state is bringing the prosecution. It has the burden of producing the evidence that is to be relied upon. One of the criticisms that have understandably concerned special advocates is that, if the defendant in criminal proceedings does not know the case that is being made against him, it is very difficult for him to give instructions that may be highly relevant and which the special advocate would wish to have in order to do what he is obliged to do: represent the defendant.
In civil proceedings, on the other hand, the probabilities are that the claims for PII or closed proceedings will arise on the grounds of national security where the state is the defendant as opposed to the equivalent of a claimant in civil proceedings, and the person who is the claimant will have full knowledge of the case that he wants to present so as to get the relief that he is seeking. There may be civil proceedings—I put it only as “may be”—in which a special advocate who represents the interests of the claimant can do that more successfully than is possible in criminal proceedings. There may not necessarily be the same inherent unfairness that is always involved in the use of special advocates in criminal proceedings.
While I still stress that the claimant may be under a real disadvantage, and the proceedings may be inherently unfair in that respect, special advocates are certainly better than nothing so far as the party who is being represented by them is concerned. I apprehend that if one were to question special advocates, they would always concede that what they could do was better than their not being there. It is a contribution that must not be ignored, although obviously if one does not need to have secret proceedings and if one is able to disclose all the evidence, the best possible way for that to be done is for it to be done in public, as it should be done in normal civil or criminal proceedings. However, as I say, a special advocate being there is better than nothing.
That brings me to the approach that we are adopting in this legislation. I would say that it has been accepted that there is a need for a procedure that enables in the very few cases that involve national security for material not to be placed before the court in circumstances in which the judge can rely on it. That can be important to the claimant and to the Government because, if the evidence and material are not placed before the court in that situation, the judge may be aware of the material but cannot rely on it in coming to his conclusions, because it is part of his responsibility to determine cases on the evidence that is placed before him in court, whether it is placed before him in the normal way or in the special way that we are considering here.
Only in a small minority of cases is it necessary to resort to the special procedures that we are debating in the course of these proceedings. Certainly on the basis of my experience, usually you can find ways of squaring the circle—ways in which the evidence can be put forward so that it is valuable to the judge without having to risk causing damage to such interests as national security. Justice is done through the advocates involved co-operating, through agreements that certain things are to be redacted, and through the trust that usually exists between the advocates appearing in the proceedings on behalf of the Crown in matters of these sorts and the advocates appearing on behalf of the other parties.
As has been said in argument and as appears in the overriding principle set out in Part 1 of the CPR, the court is seeking to achieve justice, and that should always be the criterion that has to be applied. I would urge that flexibility is very important here. PII has been developed as a common law principle, and if it is accepted on all sides, as I believe it is, that PII in the present proceedings should remain, I question whether we need to reduce into statute that which the common law has developed. Of course, if the common law has developed it, it can continue to develop according to new circumstances that we may not anticipate in the course of the argument taking place in this debate.
I would also urge that it is highly undesirable that we should put the seeking of a PII and a closed hearing into separate watertight containers. If the judge hearing the matter is going to do justice, it is important that he should have before him the knowledge that PII is still available and he can say whether the best way to deal with the matter is through PII or the alternative—through a closed hearing.
The hearing itself might have to be conducted in an unusual way, or might have to be closed, to discuss these matters. However, on this sort of issue the special advocate can be of great assistance to the judge as to the best way of going about it. The advocate on behalf of the Crown will be before the judge and the special advocate can be before the judge, and the judge will take care to ensure that the best way of achieving justice in the situation before him is the one that is adopted.
Many of the amendments here set out principles that I find wholly admirable on the procedure to be adopted on PII. They could have been contained in a text-book; they do not have to be in a statute. So long as it is absolutely clear, as I believe it always has been, that PII is still available, I suggest that that is sufficient for legislation.
I respectfully agree with everything that the noble and learned Lord has said. Does he appreciate that the reason for this variety of amendments is to achieve precisely the position that he would advocate, and that to get rid of straitjackets seems to be present in the Bill as it stands?
I agree that there are dangers, in the way the Bill is drafted at present, of it being thought that there is a straitjacket, but there would be an equal danger of a straitjacket if we adopted either of the alternative forms of amendment that have been proposed so far, although I am bound to say that I prefer the option of the noble Lord, Lord Thomas, and the reasons he explained, to the reason previously put forward by the noble Lord, Lord Lester, and others. If you come second in line in putting forward amendments, you can usually do things marginally better than the previous attempt, and I think that has applied here.
As the noble Lord, Lord Pannick, rightly pointed out, the Bill as it is at present is not as clear as it should be. It is very difficult to express it in a more satisfactory way than has been expressed already, but it could be done and I am sure that if the matter is reconsidered it will be possible to make the situation clear beyond peradventure. I would urge that this approach is adopted.
I should also make it clear that I think that the noble Lord, Lord Carlile, is right in saying that in most situations that are covered by the Bill the result will be preferable to both sides if the closed hearing procedure is adopted rather than PII, because PII has the very unfortunate effect that you cannot rely on the material that is in issue, whereas both the claimant and the Government may want to rely on that material. That is a good reason for having the closed-hearing procedure.
My Lords, I had planned to speak to Amendments 39 and 40 but what I am about to say relates to what is now being described as the overriding objective of this group of amendments. Whichever it is, it is important that the name “public interest immunity” is retained as, even when we are dealing with national security-sensitive information, it is not government immunity, although it is often claimed by the Government as a party. When it is, it is done on behalf of and for the benefit of the public and not the Government.
Amendment 39, which proposes statutory PII rather than the closed material procedure, represents the conclusion reached by the Joint Committee on Human Rights, of which I am a member. The evidence base required for the fundamental change to closed material procedures in civil proceedings was not fully established before the committee. In fact, the incremental, judge-led development of PII was praised as flexible and creative, and, crucially, as balancing the public interest in the administration of justice against the public interest of non-disclosure if national security was at issue. In particular, the case of Al Rawi in my view does not provide evidence, as the Government maintain, as to justify changing our court procedures.
This amendment would require the Secretary of State to make a claim for public interest immunity in cases of national security-sensitive information. It would also assist the Government in ensuring that, as they state,
“nothing in these proposals will enable evidence which is heard in open court under present arrangements to be heard in secret in future”.
I presume that “open court under present arrangements” includes cases where the balancing exercise for public interest immunity is currently used, with both parties, crucially, remaining in the hearing.
It was clear neither to the witnesses to the Joint Committee nor perhaps to the Constitution Committee of your Lordships’ House—or it might just be me—that closed material procedures as envisaged by this legislation would be used only for residual excluded material. This point was first drawn out at Second Reading by the noble and learned Lord, Lord Mackay, whom I can do no better than to quote. He said that,
“the result of which”—
he was referring to discussions with Andrew Tyrie MP—
“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”.—[Official Report, 19/6/12; col. 1674.]
Will my noble friend the Minister outline whether the Government accept that analysis of the Bill; that is, that there would still be done first a disclosure-balancing exercise—involving redaction, for instance—which would leave the court with a residue of material? If the Government accept that analysis, it needs to be clearer in the Bill, which is what Amendment 39 would achieve. What procedure other than PII as in Amendment 39 is better at determining this category of excluded material?
I note from the very helpful and comprehensive letter from the noble Lord, Lord Henley, and the noble and learned Lord, Lord Wallace, that Clause 11 retains the common law rules on PII. I do not believe that that is contentious, as public interest immunity applies to many other areas of public interest besides that of national security. The letter also helpfully outlines what the Government maintain is the two-stage process involved in reaching the final decision to have a closed material procedure. First, the Government consider making an application for public interest immunity and then ask for a closed material procedure. At the second stage, each piece of evidence is considered for either open or closed session. However, the noble and learned Lord, Lord Mackay, described a different process, with a judge having a jurisdiction to decide first what is to be disclosed.
It may be that the disclosure-balancing exercise referred to by the noble and learned Lord, Lord Mackay, remains under the judge’s duties under CPR 31 or under any inherent jurisdiction to ensure a fair trial. Will the Minister further clarify whether the process begins with disclosure, as outlined by the noble and learned Lord, Lord Mackay, or with the consideration of the PII application as per the Minister’s letter?
Without the amendment, I fear that PII in national security cases will end up being very rarely used. In evidence to the Joint Committee on Human Rights on 26 June, Martin Chamberlain QC, a practitioner in this area, stated:
“What I … had expected when we heard that it was to be a judge who would decide whether to trigger a Closed Material Procedure is that the judge would be empowered to say whether the case in front of him or her was one that fell into that 90% that can be perfectly fairly tried using existing procedures or that 10% or 5% or 1% or whatever it is that cannot. But the Bill does not provide for that; the Bill says that, if there is any document at all whose disclosure would be damaging to national security, the judge must accede to the application to order a Closed Material Procedure”.
I share that reading of the Bill.
I believe that the Government’s assertion that the decision in principle to have a CMP is a judicial one is uncontroversial. However, unless the Government are required to apply first for PII, as the amendment provides, the judge cannot choose between PII and CMP and thereby the method which he or she judges would result in a fair trial. In the legislation as it stands, that choice is open only to the Government, which limits the tools at the judge’s discretion. I support the amendment because it would provide the best mechanism for establishing what residual excluded material is and retain as far as possible the flexible judicial tools needed to ensure a fair trial.
The Government rely heavily on the Guantanamo case of Al Rawi. It is clear from the Minister’s letter that no PII application was made in that case. I find the wording in the letter rather interesting. It states:
“The only option would have been to claim PII for the material. This process could have taken up to three years to complete, but it would have made no difference: if it was successful the very material the government had in its possession which was relevant to the determination of the claims would have been excluded”.
I find it odd that the Government should decide conclusively that obtaining a judicial decision on a matter would have made no difference. In fact, it would have made an important difference, as the judge might not have agreed with the Government that all the material needed excluding and could have used the balancing tools to bring some of that material into the trial. The Government, not the court, decided that PII was inadequate in that case. I would have felt more at ease if we had had a judicial exercise of PII in that case, with huge amounts of evidence having been excluded. The Government might even have made an application to strike out the case because so much evidence had been excluded.
The letter also states:
“The government’s only option was therefore to settle the claims without admitting liability”.
I do not understand this being the Government’s only option and nor did the Government, as they applied in that case for a closed material procedure. It is because of the Supreme Court case in Al Rawi that the matter has been passed to Parliament. An adequate explanation has not been given as to why the Government settled that litigation before the conclusion of the proceedings that would have determined whether a closed material procedure could have been used.
I hope that the Minister will be able to provide in his response further clarification of the 63 PII certificates signed by Home office Ministers which were helpfully outlined in the letter. How many of those cases led to the complete exclusion of the documents covered in the certificate and how many led to a balancing exercise and certain of the material being brought into the case?
I expect the Government to oppose the amendment, but I hope that a more satisfactory explanation of that issue and the issues that I have outlined in relation to Al Rawi will be provided before Report. Amendment 39 would ensure the curtailment of CMPs only to material currently not heard by the court, thereby achieving, ironically, the Government’s own objectives. Without the amendment, the Bill leaves open the possibility of the Government picking and choosing either a CMP or PII on the basis of whichever they favour. If the Government thought that it had the best chance of succeeding if the whole document were excluded, they would be tempted to apply for PII, otherwise they could ask for a CMP if they wanted it to be considered. What crucially distinguishes PII is that both parties are there, and the absence in CMP of one of the parties, where they are excluded, needs to be given greater weight.
Amendment 40 would provide a vital caveat when a court was allowed to consider, as a last resort, using a CMP. First, it must be the only way in which the issues in the case can be determined. It is imperative to be so stringent when one party is being excluded from the hearing of their claim. Also, importantly, as other noble Lords have outlined, Amendment 40 would give any party to the proceedings the opportunity to make an application for a CMP, rather than just the Secretary of State. The Government generously state in the letter I have outlined:
“It will remain open to a third party to approach the Secretary of State and request an application for a CMP should they require one”.
I was amused by this assertion and would be grateful to know of any other situations in which one party to the proceedings has to go and ask another party to the proceedings to make an application for them. Amendment 40 quite properly gives both parties equality of arms.
Finally, I raise a small but important point. Amendment 40 outlines that the matter “can be determined”. This is important as it is conceivable—and we have heard a lot in Joint Committee about what is conceivable when dealing with national security— that there may be cases where the judge is satisfied that disclosure would be damaging to the interests of national security but even a CMP cannot determine them. For instance, the sensitive material may be so central to the issue in the case that the judge, who is not an omniscient being, believes he or she cannot make a judgment on it without questions being put to the claimant or, at the very least, the special advocate being able to take instructions. I believe and hope that this situation is addressed by the wording of Amendment 40. I support these amendments.
My Lords, I hesitate to rise in this very interesting debate, which has been monopolised by noble and learned Lords. I am not learned, so the point I would like to make is a practical one and very short. As the independent reviewer of terrorism has noted, there are a very few cases that are so saturated with extensive roomfuls of highly sensitive material that talking about the odd document and the residue will not work. I make that point because I think there are these very few cases where the whole case is substantially based upon highly sensitive material, and we need to be aware of that.
It has been an excellent debate. I would like to single out for special mention the noble Lord, Lord Hodgson of Astley Abbotts, and the noble Baroness, Lady Manningham-Buller, the only two non-lawyers who participated. It is important that we put this debate into a non-legal context because normally the legal answer that follows comes from the facts.
In the next two days of Committee we shall deal with two completely different problems. The problem we are dealing with here is not ultimately the protection of national security; it is how there can be fairness in a trial brought by a claimant for damages when he alleges things against the Government to which they may well have an answer which if disclosed to the claimant would damage national security. I say that national security is not in play in this first group of issues is because ultimately the state can refuse to disclose that material in litigation. They can protect national security that way, and indeed they will, but at the cost, as they would see it, of unfairness to them in not being able to deploy their full case.
In this first group of amendments—those to Clauses 6 and 7—we are dealing with fairness in the context of a claim for damages or judicial review being brought against the state. Just picking up what the noble Baroness, Lady Manningham-Buller, said, which seems absolutely right, it is easy to envisage a situation where a Minister or government department has come to a conclusion based entirely on intelligence material which would in this hypothetical case reveal the reason they came to it, but they cannot disclose a word of it because it would damage national security. That is the situation that the first section of this debate is dealing with—fairness.
The second group of amendments—which we shall come to, perhaps, in five years’ time at the rate we are going at the moment, having had an hour and 38 minutes on this absolutely fascinating topic—is not ultimately to do with fairness but with national security. The amendments touch upon Norwich Pharmacal orders, where the court can order disclosure of information or documents to a claimant and the defendant is not able to say, “OK, we leave the pitch here and we do not agree to any of that”. They must, under the current arrangements, disclose things, and that has two potential affects—
I am just wondering whether it is right for the noble and learned Lord to put these issues into such neat boxes. Let us take the case of Binyam Mohamed and assume that there was closed material procedure so that the Government would not have had to pay a lot of money to settle the case. That would be a case saturated with national security on both sides. I am not speaking with any personal knowledge of the case, but Judge Kessler in the United States would have looked at the material showing serious ill-treatment. He would have wanted that material to be put forward. No doubt there would have been material within the intelligence and security service showing that Mr Binyam Mohamed was not an ideal citizen. Both sides would have been reliant upon heavily saturated material from the intelligence and security service. Therefore, I suggest national security would be involved in the first category as well as the Norwich Pharmacal one.
I have read the eight judgments in the Binyam Mohamed case and, although it was dressed up as a judicial review application at one stage, the case was essentially an application for a disclosure of documents and is therefore a Norwich Pharmacal case.
Yes, indeed, and in relation to that the Government would be free to withdraw their defence—indeed this is the route that was taken, as I understand it—at which point national security would be protected. It is that situation that we are dealing with first. As I was saying in relation to Norwich Pharmacal, which we shall deal with at a later stage in proceedings, the Government do not have the option of withdrawing from the case. The consequence of this is that they may be forced to disclose information that any reasonable person would think damaging to national security. Equally significantly, those foreign intelligence agencies that provide us with information might consider that it is no longer politick or sensible to do so.
This evening, however, we are dealing with the category of fairness in the context of civil proceedings, rather than danger to national security. The change proposed by this Bill is significant. Very helpfully, in answer to one of the many reports that Parliament has produced on this issue, the Government have set out the list of circumstances in which closed proceedings are possible at the moment. Generally, they are terrorist-related and not usually in relation to resolving a dispute between two civil claimants; it is about whether the state is going to do something not good as far as the individual is concerned. Therefore, this would be a significant change.
Issue number one for the Government is to establish that there is a sufficient problem—unfairness to the state—to demand this quite significant change. Here in the Chamber we are all aware that in the Al Rawi case the Supreme Court said closed proceedings generally are not fair. That does not mean this is not the answer because it may be the best that can be done. However, we need to pause before introducing a system where, as the noble and learned Lord, Lord Kerr of Tonaghmore, said—and everybody agreed with this—closed proceedings could lead to a situation where a judge is looking at material that is not only not cross-examined but might be misleading.
What is the case for the change? The Joint Committee on Human Rights, on which the noble Lords, Lord Faulks and Lord Lester, and the noble Baroness, Lady Berridge, sit, had quite detailed hearings about this. To start with, it did not get any evidence. After it closed its witness sessions, it got evidence from Mr David Anderson QC who said that there may be “a small but indeterminate” number of cases,
“both for judicial review … and for civil damages, in respect of which it is preferable that the option of a CMP … should exist”.
In relation to those cases, it was his view that,
“there was material of central relevance … that it seemed highly unlikely could ever be deployed”,
except in closed proceedings.
David Anderson QC divided his two sets of cases into judicial review and ordinary civil damages claims. The judicial review proceedings were all in respect of refusing naturalisation or excluding an undesirable from this country. Those judicial review proceedings are now dealt with under Clause 12, so we put them to one side. He said that three civil damages claims were the foundation of his case that there was this small group of cases in respect of which CMP might be useful.
In response to what David Anderson QC said, a number of special advocates put in evidence in which they questioned his conclusion that the evidence referred to could be deployed only in closed session. They referred to the fact that in every case in which they had been involved, which slightly reflects what the noble and learned Lord, Lord Woolf, said, there always proved to be a way, whether by redactions, gisting or some other means, in which the material was deployed in some way without damage to national security. That is where the evidence rests at the moment.
I should say that I was Solicitor-General for a period of time. One of the things that the Solicitor-General does is look at PII certification. There were some difficult problems that were getting worse when I left the post. I suspect that they got worse after I left because the situation in the world changed. I should also say that David Anderson gave very sensible advice and was highly respected. We are in a position where the only person who has seen the detail of the cases is David Anderson QC for whom I have great respect. We are also in a situation where it is perfectly possible—the noble Baroness, Lady Manningham-Buller has said this—to envisage cases where intelligence is completely the defence on which the Government would legitimately rely but could not disclose. As the Joint Committee on Human Rights has said, the Government have slightly damaged themselves by the strange way in which they have deployed their case. We are willing to be persuaded, but we need to be persuaded.
There is a slight update on the position of the Joint Committee on Human Rights. As a result of Mr David Anderson QC seeing those cases, he came back to give evidence to us. The suggestion was put to him that the special advocates look at those three cases. After he saw those cases and said what the noble and learned Lord has outlined, we received representations saying, “That is not a correct procedure. We need to go in as well to see those cases and to see whether they cannot be dealt with”. At the moment, I believe that the special advocates with security clearance have been invited to go in and look at those cases, so that we can have two views on whether those cases can be determined under the present system.
I was aware of that. The Joint Committee on Human Rights said:
“The flexible and imaginative use of ancillary procedures (such as confidentiality rings and ‘in private’ hearings) has meant that to date there is no example of a civil claim involving national security that has proved untriable”.
So the committee is saying that there may be ways around that. I find it difficult to imagine that the key point about the closed material procedure is that the claimant does not see the documents. From what has been said—this may well be right—the claimant is the person you do not want to see the material. How does a confidentiality ring or an in-private hearing deal with that fundamental point about closed material proceedings? From this side of the House, we understand what is being said but query whether the case is yet proved.
On the second issue, let us assume that you need something because the case is to be treated as proved in relation to these three cases, which is what is relied on. Is what the Government are proposing the right answer? Remembering that the point here is fairness and not the protection of national security, in our respectful submission, the solution is obviously flawed. There are two problems with it. First, it says that where a Minister certifies or contends that national security would be damaged—no balancing exercise: end of story—closed material proceedings are allowed. No balancing would be allowed.
There is a little bit of movement on the other side in relation to that. I say that because Clause 6(1) states:
“The Secretary of State may apply to the court seised of relevant civil proceedings for a declaration that the proceedings are proceedings in which a closed material application may be made to the court … The court must, on an application under subsection (1), make such a declaration if the court considers that … such a disclosure would be damaging to the interests of national security”.
There is no balancing of any sort before you get to the declaration of Clause 6(1).
Clause 7(1)(c) makes provision for rules of court and states that,
“the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security”.
Once even the most minor damage to national security is established, the door comes down and you do not disclose.
I cannot believe that that is what the Government intend in relation to this. They do not even include in the provision anything along the lines of “Before you do that, think very carefully about whether the problem can be avoided by any one of the many means currently used”. My two big worries about the Bill in this respect would be, first, that there is no balancing exercise and, secondly, that there is no requirement for there to be thinking about whether there are means by which it could be avoided in other ways.
The noble Lord, Lord Thomas, and the noble and learned Lord, Lord Woolf, came together in an unusual combination in relation to this. They said that maximum flexibility is the answer and I agree. This is not a maximum flexibility situation. For the two reasons that I have given, I would respectfully submit that the Government have got it wrong in relation to this.
What is the answer? For the reasons I have given, I think that what the noble Lords, Lord Faulks, Lord Lester and Lord Pannick, have proposed does not quite get there. I cannot understand why the obvious answer, at the moment, is that you give a judge the power to rule that it is PII and is not disclosed; or that it is disclosed in full; or that, in exceptional circumstances, it should be heard in a closed material proceeding. With the amendment in the names of the noble Lords, Lord Faulks, Lord Lester and Lord Pannick, you end up in a situation where only if you say no to disclosure can there then be a closed material procedure. However, there must be cases where it is a finely balanced thing. If the court was forced to choose between disclosure and non-disclosure, it would choose disclosure, but if it also had the option of a closed material procedure, it would take that. The amendment does not allow for that flexibility.
The spirit of liberty is the spirit that is not too sure that it is right, but I tried to indicate agnosticism about the precise way of approaching it. I entirely agree with the noble and learned Lord, with the noble and learned Lord, Lord Woolf, and with my noble friend Lord Thomas of Gresford that flexibility is key and that if we can achieve that, we do not want to put it into a straitjacket. We simply produced a form of words that were an attempt to be formal but were not intended to be the last word at all.
I hope that the noble and learned Lord, Lord Wallace of Tankerness, takes the same view of this Bill. I am grateful for what the noble Lord, Lord Lester, said and one can recognise that view around the House. I am not yet persuaded of the need for it, but it could be that the noble and learned Lord will persuade me. If there is a need for it, the question is then: what is the right course? In my respectful submission, neither the Government’s proposals nor the amendment quite get there.
With the greatest respect to the noble and learned Lord, Lord Woolf, who I agree with in relation to flexibility, in the light of the decision in the Al Rawi case I do not think it is possible simply to leave the position for the common law to develop. As I understand the Al Rawi decision, it is effectively saying, “You cannot have a closed material procedure unless the parties agree; and even then we are not sure”.
That was my fault. More generally, I have two further points. First, I now understand the point made by the noble Lords, Lord Hodgson and Lord Thomas. I did not understand it previously. I thought that they were talking about the claimant keeping material back, but I now understand that they were saying that it should be possible for the claimant to say that he has not seen the material, but that the judge should see it, even if the claimant does not. I can see force in relation to that. Even though it appears to give equality of arms to the claimant, it is in fact a very unequal equality because the claimant has not seen the material and the defendant has seen it. The tactical decision that the claimant will make in litigation is quite tricky.
Yes, and indeed my noble and learned friend—although I should not refer to him as learned, but he is learned in every other respect—Lord Beecham is saying that that is exactly the point that the noble Lord, Lord Thomas, made. There is agreement all round on that.
Where we come out in relation to this is: prove your case. If you do that, then having no balancing or requirement to go through steps beforehand is an inadequate response. We favour more the amendments tabled. We particularly like the idea of flexibility that the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Thomas, have advanced. We hope that the Government will, having heard the debate, produce a reformed approach that will reflect a pretty unanimous view around the House on how best to deal with this issue.
My Lords, I join the noble and learned Lord, Lord Falconer of Thoroton, in congratulating all who have taken part in the debate. It has been very helpful. I certainly welcome the spirit in which various proposals were put forward.
Perhaps I may deal first with the noble and learned Lord, Lord Falconer, who said that he remains to be convinced. I noted that most other contributors to the debate thought that there were cases, albeit a small number, where closed material proceedings would be required. He quoted David Anderson QC, who has had access to some of the material and has been satisfied. There is only a small number of cases. No one is claiming that there is a huge number, and I will come on to that in a moment. There is the experience of people such as the noble Baroness, Lady Manningham -Buller, who have seen the kind of cases where this issue could arise. I generally agree with the analysis where the noble and learned Lord, Lord Falconer, indicated at the outset of his speech that there were two different issues here—fairness in civil proceedings that by their nature are not of the Government’s instance, and other cases that we will consider later in Committee with regard to Norwich Pharmacal.
We are trying to secure fairness. The Bingham Centre for the Rule of Law, which has been quoted and referred to in this debate, said, in its response to the public consultation that,
“we consider that the prospect of claims alleging very serious wrongdoing on the part of state agencies (such as complicity in kidnapping, forced disappearances and torture—as have been made in several recent cases) being dismissed because key evidence inculpating state agencies is held to be immune from disclosure, to be a very concerning one from the perspective of the rule of law”.
We are seeking to ensure that there is material there and, if so, that it can be placed before a judge, obviously subject to safeguards, and that if national security issues are involved they would not be prejudiced by the material coming into the public domain.
I detected in the debate a sharing of that objective. It is perhaps worth reminding the Committee that in the Green Paper that the Government published last year, we made it clear in paragraph 2.4 that:
“CMPs should only be available in exceptional circumstances, and where used, every effort is and should continue to be made to have as much material considered in open court as possible. But in the small number of cases where sensitive material is crucial to the outcome, it is better that the court should be able to decide the case, despite the additional complexities a CMP might create, than—in a worst case—that the case should not be tried at all”.
We also said in paragraph 2.5:
“An appropriate mechanism for triggering the CMPs will help to ensure that they are only used where it is absolutely necessary to enable the case to proceed in the interests of justice. The principle of open justice is an extremely important one, and any departure from it should be no more than is strictly necessary to achieve a proper administration of justice”.
I hope that that provides reassurance to a number of my noble friends; the noble and learned Lord, Lord Woolf, emphasised the importance of it—as did the noble and learned Lord, Lord Falconer.
Perhaps I may first address the amendment of my noble friend Lord Faulks. It would introduce a system of statutory public interest immunity for national security material only. I fully recognise that the purpose of the amendment is, as it were, as a precursor to Amendment 40. As the noble and learned Lord, Lord Woolf, indicated, nevertheless it would represent a change from a situation where public interest immunity has proceeded on a common-law basis. Putting it on a statutory footing would be a significant change. We obviously need to put closed material proceedings in civil cases on to a statutory footing, because in Al Rawi the Supreme Court indicated that there was no common-law basis for them. We are dealing with two different things in that respect.
PII is a principle that the courts have developed over a number of years to deal with the handling of sensitive material, and a wide and flexible range of public interests falls within its ambit. However, I have concerns that to change all these things may lead to more difficulties than the problem the change was intended to resolve. The Government ruled out a statutory PII in the Green Paper because it would offer little advance on the current system in providing clarity on the applicable principles, stability and certainty. If you start to create a statutory presumption in relation to national security when PII is asserted, it would start to raise questions when PII is claimed and sought in respect of some other grounds.
However, I accept that the primary purpose of the amendment was to prepare the way for Amendments 40 and 47, on which my noble friends Lord Faulks and Lord Thomas raised important issues about the relative benefits and interaction of closed material proceedings and public interest immunity.
My noble friend Lord Faulks asked whether Clause 6(5) was a tick-box exercise. It is important to emphasise that it is a statutory duty. The Secretary of State would consider whether a claim for PII should be made before applying for a CMP on the basis that it is a statutory duty and a legally binding obligation. Were someone to apply for judicial review of that exercise, the Secretary of State would in practice need to show the court that he or she had in fact properly considered PII as an alternative to a CMP application. That entails giving the matter serious consideration, taking into account all relevant considerations, ignoring irrelevant ones, and coming to a rational conclusion on the facts of a particular case.
The statutory duty would mean that, were PII successfully claimed, for example, the Secretary of State would consider factors such as what this would mean in terms of exclusion of materials which CMPs would otherwise allow the court to take into account. It may relate to the volume of national security material, or only one piece of evidence in the case might be relevant. Why go through the requirement for PII if indeed there is only one piece of evidence or—at the other extreme, and this is the term that has been used—if it is saturated? It may also relate to how relevant or sensitive the national security material is to a particular case. However, it is not a tick-box exercise.
My Lords, I come on to why I do not agree that the PII ought to be exhausted first, and that that should be the test of what should apply with regard to an application. I have indicated why it would not be advisable, and I totally accept what my noble friend said: he is agnostic as to the terms of this. We are just trying to find a way of reaching proceedings that are acceptable.
Just to clarify, I am not talking about which comes first. I do not understand why it is sensible to say that a Minister makes the decision, and then it can be judicially reviewed. Why is that a more practical and sensible approach than leaving the flexibility to the judge from the very beginning?
Of course, it has been Ministers who have asserted PII, and I think that is what we expect the Minister to do: to give consideration to whether that would be appropriate in this particular case before considering an application for closed material procedures.
We do not find an exhaustive proceeding of PII satisfactory because, where it is obvious from the outset that the Government would be claiming PII, and national security counts for the overwhelming majority of relevant material, why go through the PII exercise before applying to the court for a declaration that closed material procedure can be used? That may be the kind of case that the noble Baroness, Lady Manningham-Buller, was talking about. As I have indicated, the Government’s proceedings specifically include a duty to consider it. However, Mr David Anderson QC in his evidence to the Joint Committee on Human Rights said that the termination could be made without conducting a whole PII. He said that,
“if the exercise is plainly going to be futile, I do not think legislation should require it to be performed”.
I ask the noble and learned Lord whether he agrees with the evidence that Mr Anderson gave in answer to a question from the noble Baroness, Lady Berridge, when he said:
“The closed material procedure is a weapon that could usefully be added to a judge’s armoury, but it should be for the judge to decide on the fairest way to dispose of a case”.
The noble and learned Lord, Lord Woolf, talked about trying to square the circle. By the time I come to the end of my remarks, I will perhaps suggest that the circle is not as far from being squared as may appear from some of the comments that have been made. The noble Lord, Lord Pannick, is a member of the Constitution Committee of your Lordships’ House, and its report did not go so far as to recommend that the Bill require PII to be exhausted before a CMP declaration is sought from the court. The report stated:
“We can see force in the argument that it will sometimes be otiose to push the PII process to its completion before turning to CMP”.
Therefore, the idea that we should exhaust PII beforehand has some practical difficulties. Amendment 47 of my noble friend Lord Thomas of Gresford may try and avoid that, but I am not sure that it would because it still appears to require an exhaustive process. My noble friend referred to the Guantanamo civil damages claims, where there were 250,000 potentially relevant documents for which PII might have to be considered. We are talking about having to go through all that.
I come on to the two stages of the closed material procedures, an important part of what I wish to say to your Lordships. There is what might be described as the gateway application—basically covered by Clause 7—and then there is detailed consideration of the documents once a CMP has been granted. Of course, on the detailed consideration of the documents, not quite the same test would apply, and we would have to go through all these documents again to see if a CMP should apply to each one individually. That could take considerable time and cause delay to the claimant, which is of quite considerable importance as well.
My noble friend Lady Berridge asked if the court should have gone through PII in the Al Rawi case because it could have resulted in a balancing act and things might have gone into open court. The point is that if the court had overturned the PII certificates on Wiley grounds, the result would not necessarily have been disclosure of the material in open court, if disclosure would have damaged national security. The Government would have to seek to have the material removed from the litigation by making concessions or by seeking to settle. Indeed, that is one of the issues that we are trying to address with these proposals.
Some have suggested that under public interest immunity more material would be heard in open court than in a CMP. We do not believe this to be the case. Nothing heard in open court now should be heard in secret in consequence of these provisions. In practice—and for the very reason I have just given to my noble friend Lady Berridge—claimants will have access to the same level of information, because, where the court declares that the case is one where closed material procedure may be used, this does not mean that all material in those proceedings is automatically heard in closed proceedings. As with PII, there will be a painstaking exercise to ensure that as much of the evidence as possible is heard in open court.
This painstaking exercise has sometimes been overlooked. The noble and learned Lord, Lord Falconer, said that the Clause 6(3) test is passed and the door closes. That is not the case. The Clause 6(3) test is only that the CMP may be used in principle, and there is then a detailed assessment at stage 2 with regard to the provisions that are available, with the rules of court to be promulgated under Clause 7. I hope this addresses some concerns. The noble Lord, Lord Pannick, and my noble friend Lady Berridge made a point about the second stage of the process. The decision to go into closed material procedures is an in-principle decision, and there is no equivalent with regards to PII. That is stage 1.
In stage 2, in Clause 7, the court considers what might then be done with the material. It may be on a document-by-document basis. It could lead to redaction, and it could lead to gisting. It would be quite possible for every piece of material relevant to proceedings to be partially disclosed, redacted or gisted, If this could be done without damaging national security. I hope that that gives reassurance that there is a stage which, although not exactly the same, is a very similar test and process to PII. As we said in the Green Paper, we wish to be in open court as much as possible, and we believe that that can be facilitated by going through a stage 2 process.
My noble friend Lord Faulks asked about the points made by our noble and learned friend Lord Mackay of Clashfern on Second Reading with regard to Clause 7(3). The importance of Clause 7(3) is that it follows Clause 7(2)—obviously—and covers circumstances where if the court refuses permission for particular evidence to be heard in closed proceedings, and the Government elect not to disclose that material, the court has the power to direct that that material should not be relied on and should be excluded from the proceedings, or to give directions that concessions must be made. These are very important safeguards.
My understanding of the point made by the noble Lord, Lord Thomas, is that the Government can choose to go for PII and get the material out completely or, if it helps them, to say, “Let’s have it in secret without the other side seeing it”. The Government can make that choice and nothing in the Bill would make it wrongful for them to make their choice by reference to what would give them the best prospect in litigation.
Certainly I am aware of that concern. It was perfectly legitimate for the noble and learned Lord to raise it, because it motivated the amendments tabled by my noble friends Lord Thomas and Lord Hodgson.
For the sake of completeness, I will indicate that it is important to remember that the court will need to be satisfied that disclosure of that material would damage the interests of national security, and that any obligations under Article 6 of the European Convention on Human Rights are met. Of course the court will have the assistance of special advocates representing the interests of excluded parties in testing whether these conditions are met. I endorse what was said by the noble and learned Lord, Lord Woolf, and my noble friend Lord Carlile, that perhaps special advocates have sometimes undersold themselves. I think it was in the case of M v Home Office that the noble and learned Lord, Lord Woolf, indicated that he had been very impressed by what the special advocates had done in challenging evidence.
I move on to the point about the Secretary of State and the important amendment spoken to by my noble friend Lord Hodgson. It raises an important issue that the Constitution Committee flagged up with very seductive arguments that we should consider. I am aware that there is concern about the potential unfairness of the Secretary of State being the only party to proceedings who can make an application. However, I will explain to the Committee that we heard that the motivation behind the amendment was concern that there would be too much control in the hands of the Government, and that were they to apply for PII to exclude material from the case, the other party would not be able to request a CMP so that the information would be put before a court. As I indicated, this matter was picked up by the Constitution Committee.
There is an important constitutional point here. Under our system of government, the Executive are the guardian of the United Kingdom’s national security interests. The courts have frequently stated that the Government’s function to protect national security by claiming PII is a duty rather than an option. Correspondingly, we believe that it should be the responsibility of the Secretary of State to apply for a declaration that a closed material procedure may be used when the sole criterion is that of national security. There would have been stronger arguments if some of the other grounds that were floated in the Green Paper had been included—but we confined this purely to national security. We believe that the courts can play an essential role.
I entirely accept what the noble and learned Lord said about the relative roles of the judge and the Secretary of State. Perhaps this might give him an opportunity to deal with the response in the Second Reading debate. It was suggested in the algorithm that the judge could decide what was in the interests of national security.
It was helpful of my noble friend to raise that. Clause 6(2) states that there are two ways in which a judge must be satisfied before he must grant an application for closed material proceedings. The first is that the party to the proceedings would be required to disclose material to another person in the course of the proceedings. That would normally come under Rule 31 of the Civil Procedure Rules. Again, I say to the noble Lord, Lord Pannick, that Clause 6(3)(a)(i) is there because there could be circumstances in which a judge could take the view that you would not be required to disclose something because you could assert public interest immunity, and that argument would succeed. Apart from the fact that there might be public interest immunity, if disclosure would be required under normal rules in civil proceedings, that would be the first test that the judge has to apply.
The second test is that it would be damaging to the interests of national security. It was said by a number of noble Lords, including my noble friend Lord Lester of Herne Hill, that the courts over many years have been very respectful of the government position on that. The Bill makes it very clear that the application would be one in which special advocates would be involved. They could assert to the judge that the case had nothing to do with national security and that the Government were trying to cover up some embarrassment. That is why the second test is there. The two conditions must be fulfilled: first, there must be a requirement to disclose; and, secondly, disclosure would be damaging to the interests of national security.
In practical terms, the Secretary of State would be in the best position to judge the scope and nature of national security-sensitive material. Despite the fact that the absence of a CMP might be detrimental to their interests, other parties will not even be aware that relevant national security information exists, and would not be able fully to judge what damage there might be if the information were released. It is therefore clear that the argument for the Secretary of State making the application is a strong one. Nevertheless, it can remain open to a third party to approach the Secretary of State and request an application for a CMP should they require one. One example of this might be if the police were party to proceedings involving national security-sensitive material, for example in relation to counterterrorism. The Secretary of State would assess the risk of damage and make an application for a CMP on their behalf.
If the public interest were more widely drawn than national security, there would be a stronger case for other parties to the proceedings to be able to apply for a CMP. However, as my noble friends Lord Thomas of Gresford and Lady Berridge made clear—I was asked about this by the noble and learned Lord, Lord Falconer—one concern is that the Government might want to have their cake and eat it, and might choose between claiming PII and applying for a closed material procedure opportunistically—opting for PII to exclude material and cover up wrongdoing and CMP where closed material would help their case. We do not believe that this is a realistic concern.
I assure noble Lords that the intention behind the CMP proposals is precisely that allegations against the Government are fully investigated and scrutinised by the courts. The intention is that all relevant material, helpful or unhelpful, will be put before the courts. Although it is in the first instance for the Secretary of State to instigate the CMP application, or to make a claim for PII, the power to order CMP or accept a PII certificate will rest with the judge, who will be alert to any unfairness to the non-government party, and with the CMP would have the case-management powers under Clause 7 to ensure that individual pieces of evidence are treated fairly through requiring disclosure or exclusion. It is inconceivable that a judge assessing the PII claim would conclude that the public interest in excluding material outweighed the public interest in its disclosure if the Government were cynically seeking to use PII to exclude material that undermined their case or assisted another party to the proceedings, especially where the court would know that the possibility existed of making an application for the use of a closed material procedure.
This is where the point made by the noble and learned Lord, Lord Woolf, is relevant. He said that these matters could be looked at in the round and should not be put in silos. That is what we anticipate happening. The concern is perfectly legitimate and I fully understand it. However, we do not believe in reality that that would happen, and that the judge who was asked to grant a closed material proceeding or a public interest immunity certificate would allow such cynical ploys to succeed.
That sounds like one of the great lies. “I am from the Government and I am here to help you”. The noble and learned Lord is saying that a Minister faced with a claim against him is inevitably going to be like a judge and not weigh one thing against another. If he can win his case by going for PII instead of closed material procedures, which I suggest he can, why would he not choose to go for PII? That is why I say my suspicions would be aroused if the Minister who had that choice went for PII, knowing that excluded material could not form part of the judgment. That is the problem. For the past five minutes the noble and learned Lord has been emphasising that the judge has this decision; he has this discretion; he looks at this material; he makes up his mind. The Bill is a straitjacket whereby the Minister controls which procedures are to be followed as well as what material is to be disclosed. So I hope the noble and learned Lord will reflect on what he has been saying.
My Lords, I do not accept that it is a straitjacket. I have sought to indicate that at the second stage proceedings each individual piece of material will be looked at. If disclosure subject to redaction is needed, that is what will be ordered. If gisting is needed, the power will be there for the court to do that. I do not believe there is terribly much between anyone as to what we seek to achieve. I have made it clear that it is not the intention of the Government that uncomfortable, unhelpful evidence should be held back. Indeed, I have just said that it is our intention that all relevant material should be before the court. If your Lordships do not think that the wording achieves that, it would be only proper, given the quality of the debate we have had, for me to reflect on the points that have been made. We are all grappling with how we get the procedure that achieves an objective which is widely shared.
I hope noble Lords will also consider the points that I have made. Some of the comments made suggested that it had not been fully understood what the nature and extent of the second stage procedure would be with regard to individual documentation and evidence once the gateway had been opened and the principle of closed material proceedings had been accepted. I hope noble Lords will reflect that that procedure is available. I am more than willing to engage with the Opposition, with my noble friends and with Cross-Benchers to see if we can address the objective in a way which does not defeat the object of this but ensures that in cases where justice and fairness demand that material should be made available, material which would be damaging to national security were it to go into the public domain, that that can be achieved. I have no doubt that when I invite my noble friend to withdraw his amendment he will indicate that we will come back to it at the Report stage. I sincerely hope that over the summer months we can have some consideration of it and perhaps the agnostics might become believers.
Just to be clear, is the Minister saying that he accepts that the judge at the first stage should have complete discretion in deciding on case management and whether it should be dealt with first by PII or not? If not, why is that such a bad idea?
My Lords, that is not what I said. I did say, however, that the judge at the first stage has to be satisfied that two tests are met before he even opens the gateway to closed material proceedings. There has perhaps been some misunderstanding that when you pass through the gateway, everything suddenly becomes subject to closed material proceedings. That is not the case. It is at that stage that individual pieces of evidence are looked at. That is a materially different position from the one which has sometimes been suggested that the gateway is the be-all and end-all and once you go through the gateway the doors and the shutters came down. That is not what is proposed but obviously if noble Lords do not believe that is properly reflected in the drafting, I am more than happy to try to find a way in which we can proceed.
My Lords, I am grateful for that constructive indication. I would co-operate fully in trying to draft an answer that reflects what the noble and learned Lord is saying. I understand him to be saying that if a PII application were made, the judge would be able to say, “You cannot keep all this secret. You should deal with it in a CMP”. That is what I understand the noble and learned Lord to be saying. I think he is nodding, although it may be an involuntary twitch. Assuming that he is nodding, there seems to me to be a problem in the drafting because it gives the court the power to make a CMP order only where there is an application by the Secretary of State. I would be more than happy if the solution reached was to apply to the judge who has the power to decide, balancing all the factors, whether this should be PII, complete disclosure or a CMP. That is not what the Bill says now but that is broadly what I understand the noble Lord, Lord Thomas, to be arguing for—the noble Lord, Lord Lester, is nodding—and the noble and learned Lord, Lord Wallace, to be saying. I am more than happy to sit down with everybody and draft that but that is not the current position.
Perhaps I may add that my Amendment 45, which we have not come to, is designed to replace the word “must” in Clause 6(2) with “may”—in other words, a discretion for the judge to decide whether to make a declaration based on the criteria that he must apply.
My Lords, again we are falling into the trap of jumping to stage 2 and thinking that the application immediately rules everything as closed material, which is not the case. If there is a body of evidence which can be presented to the judge showing that interests of national security are absolutely pertinent to the determination of this case, it is “must”; there must be closed material proceedings. But, as I have indicated, that does not mean that every piece of evidence is to be excluded and is not to be disclosed. If the Secretary of State cynically applies for PII when a CMP is available, the judge may not be disposed to grant PII. What I understood from the noble and learned Lord, Lord Woolf, is that the reality, particularly if you have special advocates arguing the case, is that unless the Secretary of State seeks a CMP for this kind of material he will have less of a chance of getting his PII accepted. Even if a CMP application was not made by the Secretary of State and a request was made to him for a CMP which he refused, that in itself would be judicially reviewable. If that refusal was seen to be unfounded and irrational, or the only rationality was to hide malfeasance, then clearly that would weigh heavily with the Secretary of State. I have indicated what we intend to achieve by this. I repeat: the intention is that all relevant material, helpful or unhelpful, will be before the courts. I think we can have a worthwhile discussion as to how that could be brought about.
My Lords, this has been a lengthy but helpful debate. I am grateful to all noble Lords for taking part and for the very constructive comments that the noble and learned Lord, Lord Wallace, has made. It seems to me that we are moving, if not dancing as the noble and learned Lord would have it, towards some sort of consensus here. The question is whether we have found the right route to CMPs—an option which should be exercised only in the last resort. As the noble and learned Lord, Lord Woolf, said, it is certainly better than nothing. It is hoped that there will not be many cases that need CMPs. Like the noble Lord, Lord Lester, I do not wish to be competitive about which amendment is preferable. The amendments are intended to probe the somewhat complex provisions. There has been a great deal of clarification from the noble and learned Lord, Lord Wallace, for which I am grateful. It is still not entirely clear to me how some of the various parts of the procedure are going to work with each other. I think it is accepted that there is room for some improvement in that regard.
The noble and learned Lord, Lord Falconer, asked for the evidence that PII is actually working. Apart from the anecdotal evidence and the absence of appeals, there is some substantial evidence from the special advocates themselves, who say that not only is it working but it is enough, and they do not support the possibility of CMPs at all.
I accept that there is always a danger in putting in statutory form something that is in common law; it could perhaps remove the possibility of growth. None the less, PII is a mature form of the common law and the definition of PII contains a great many checks and balances, as this statutory interpretation has set out. Taking Amendments 39 and 40 together, it looks a rather complex procedure, formulaic or even a straitjacket. In practice, all it is doing is summarising what is well established, and there will indeed be a great deal of flexibility even if one were to follow the terms of the amendment.
Flexibility is clearly desirable, but I would reiterate that it is most important—as the Government acknowledge in Clause 6(5)—that the question of PII should be properly considered, and potentially judicially reviewable. This amendment puts in the Bill an obligation to go through the process before going to CMPs. I suggest that, with modifications, that represents a positive safeguard on what I hope will be a rarely resorted to but undoubtedly necessary procedure. In the light of what has helpfully been said, I am happy to withdraw the amendment.
Amendment 39 withdrawn.
Clause 6 : Proceedings in which court permits closed material applications
Amendments 40 to 42 not moved.
My Lords, before I resume the House, I take this opportunity to offer some assistance to noble Lords who will be participating in the next debate in the name of my noble friend Lord Astor. As is obvious from the list of speakers, there is great interest in this debate, which has led us to have to limit speaking times to three minutes, with the exception of my noble friend Lord Astor and my noble friend the Minister. I know that noble Lords are familiar with the way that the clock operates and will want to work with my noble friend the Whip on duty tonight to ensure that we finish the debate in the hour to which it is limited.
House resumed. Committee to begin again not before 8.42 pm.
Railways: High Speed 2
Question for Short Debate
My Lords, HS2 is a controversial proposal designed to operate a high-speed rail link between London and Birmingham, and eventually onwards to Leeds and Manchester. It is controversial for a number of reasons.
The first is the route: a new line cutting through some of the most unspoilt countryside in England, where there are already two existing lines, one operated by Virgin Trains and the other by Chiltern Railways. Either line could be upgraded or the new line could follow one of the existing motorway routes—an option suggested by the Transport Select Committee—which would cause minimal disruption compared with HS2.
However, I want to concentrate on cost. The question is whether the cost of £33 billion is worth the benefits that might accrue. We all want better services from north to south, but I challenge the assumption that HS2 is the answer. The Government’s case rests on the assumption that rail travel is destined to grow at the rate projected by the Department for Transport, but one has to say that the department’s record in projecting future passenger numbers is not good.
In the words of the National Audit Office, the department used “hugely optimistic assumptions” about passenger numbers on HS1. Passenger numbers from 2007 to 2011 were only one-third of the original 1995 forecast and two-thirds of the 1998 forecast. The NAO went on to say that the costs had exceeded the savings from shorter journey times, and the Public Accounts Committee said that costs would eventually rise to £10 billion.
I am sure that the Minister will quote the support of the All-Party Parliamentary Group for High Speed Rail. However, it is a group set up specifically to support high-speed rail, so I would remind him of another report by the Public Accounts Committee, which came to the opposite conclusion and recommended:
“The Department must revisit its assumptions on HS2 and develop a full understanding of the benefits and costs of high speed travel compared to the alternatives”,
and that it should consider the alternatives, such as investment in more local train routes.
The department claims to have improved its forecasting, with better computer modelling and more computer power, but of course wrong assumptions in produces wrong statistics out, whatever the rise in computer power. What it has failed to take into account is that the projected benefits are largely dependent on business use, and business use is changing.
Why travel so often when Skype and internet conferencing are becoming the norm? Reductions to already short journey times are largely irrelevant to business efficiency as carriages are now linked to the internet and provide a good working environment. To assume that all time spent on trains is wasted is simply not credible. The department’s own report Productive Use of Rail Travel Time and the Valuation of Travel Time Savings for Rail Business Travellers asserts that a reduction of 10 minutes in journey time increases the amount of working time by only 0.75 of a minute.
HS2 does not deliver a step change in journey times. It connects to the centre of Birmingham but there is no onward connectivity and a change is required; nor does it connect to Heathrow, as promised in the Conservative Party manifesto. This connection is offered as a possibility, some time after phase 2, in 2033. What is more, a route via Heathrow would cause the least damage to the Chilterns, crossing through its narrowest part. HS2 will cut the journey time from London to the centre of Birmingham but only by barely half an hour, and much less if you want to make an onward connection.
By the Government’s own admission, the benefit-cost ratio for phase 1 declined from 2.4 in March 2010 to 1.4 in January 2012, and to just 1.2 in April 2012. However, even this overestimates the true position, as the DfT also admits that its assumptions are based on out-of-date gross domestic product figures. If one takes into account the latest GDP forecast and uses the later rail demand model, the benefit-cost ratio dips below 1—well below the Government’s own ratio for acceptable capital expenditure benefits.
In an earlier statement to the Transport Select Committee, the then Transport Secretary Philip Hammond agreed that below 1.5 he would need to seriously review the viability of the project. A full Y route to Manchester and Leeds produces only a modest increase to 1.4 in the benefit-cost ratio. It seems to me that the department is going to have to review the project.
We know that peak-time services from Euston in the evenings are only 56% full and that Manchester services are 45% full. We know that total journeys per person by all transport modes are declining, not increasing, so to justify the projected increases by 2032 there would have to be a large shift from road to rail. Looking ahead to 2032, we know that most cars will be electric and therefore very fuel-efficient. The Government accept that HS2 does not reduce CO2 emissions. There is no evidence that HS2 is going to cut road usage. By 2032, electric cars could easily be driving themselves on the main routes, as has already been tested in America.
What will increase in the future, as I think everybody agrees, is commuter use of the rail network, but HS2 does not solve that issue. I believe that the answer is an upgrade of the existing line, more frequent services, more carriages and longer platforms—which could all be achieved at a fraction of the cost for the same result.
The recent growth following the upgrade of the west coast main line led to huge improvements in service frequencies and journey times and shows what can be done by improvements to existing services. Upgrading is estimated to cost about £2 billion and the department says that it produces a benefit-cost ratio of over 5.0. That is real value for money. This would cater for all the future demand predicted by the department and provide the capacity much sooner so that any crowding problems were addressed much faster. It would also cause significantly less disruption to the existing network than what is proposed.
We are also told that 1 million jobs will be created, but the evidence to support this claim is questionable. Various comparisons are made concerning Europe and the TGV, but a close analysis of what has happened in Europe shows a very local movement in jobs and not necessarily a total increase in jobs in the wider area. Just 1,500 permanent jobs will be created by HS2, but the department admits that seven out of 10 jobs attributed to phase 1 will benefit London, not the regions. We could create a lot more jobs in the north by supporting industry there with direct investment, grants, help with bank finance and better local services.
We need to spend money upgrading our entire rail network. We need infrastructure spending that links the rail network to airports and then to city centres. Those in the north have been pressing for a northern hub that connects key northern cities by rail. East Anglia, for example, is desperate for better services and connections. The concern is that HS2 will inevitably drain funding away from the rest of the network and that desperately needed improvements will not get funding.
The commendable House of Commons Transport Committee report called for a proper transport strategy before HS2 phase 1 and phase 2 proceed. It also called for an explanation of how HS2 fits within an overall transport strategy and for the summary and assumptions of the financial case so they can be properly examined.
We need a rail strategy that will bring real benefits to northern businesses rather than just marginally faster journey times to London. The planned HS2 does not connect to HS1, which is not much help to passengers arriving from Europe. They will still have to get the Tube or the bus across London.
HS2 fails on the four key principles that even HS1 managed to pass: it does not follow existing noisy transport corridors; it does not follow the shortest route through areas of outstanding natural beauty; it is not proposed to be tunnelled through the most sensitive areas; and it does not provide benefits for local communities affected by the route or by access to the service.
I have done a quick canter through this about as fast as a train will go, because time is limited. I have given notice to the Minister of the questions I have asked this evening. I am sure he will be able to address the issues of cost and benefit and try to prove the Government’s case for HS2.
My Lords, the international rule of high-speed rail is that everyone wants the stations but no one wants the line. England is no exception, and the noble Viscount, Lord Astor, has been honest enough to admit that he certainly does not want the line anywhere near him. He wrote in the Spectator recently:
“I admit I am biased ... I have walked and ridden over the Chilterns all my life”.
I was not biased as the Secretary of State for Transport. The previous Government proposed HS2, and the present Government are carrying it through because it is the best decision for the infrastructure of the country. This is for two reasons. First, it is false to suggest that there is a choice between building HS2 or saving billions of pounds by not doing so. I fear that that is wishful thinking. The real choice is whether to build HS2, to treble inter-city capacity between London, Birmingham, Manchester, Sheffield and Leeds, or instead to carry out successive patch-and-mend upgrades of the four existing main lines from London to the north, ultimately spending more money for less capacity. The cost-benefit analyses show a strong business case for HS2. But it is equally important to consider the alternative. What would need to happen if there were no HS2? On this, Network Rail's assessment is clear:
“Even modest demand growth causes problems and significant rail enhancement is needed … train lengthening beyond 12-cars would have major implications for terminal stations and signalling systems. Further incremental enhancements at key locations may provide some capacity but not enough to be sustainable for the long-term and not where it is most needed”.
There is no need to gaze into the crystal ball. It is only four years since the last upgrade of the west coast main line referred to by the noble Viscount was completed. It cost £10 billion, and that £10 billion did not price the cost of a decade of chronic disruption to passengers as open heart surgery was performed on a Victorian railway operating at capacity.
There is a second compelling argument for HS2. By using 21st century technology, rather than trying to squeeze yet more out of what by the 2030s will be a 200 year-old railway, you get a transformation of capacity, speed, reliability and passenger service all in one. That is why most advanced European and Asian countries, with an economic and physical geography similar to ours, have already built high-speed lines to link their major cities. The claim that London to Birmingham, Manchester and Glasgow are distances too short for high-speed rail is quite unfounded. The world's most successful high-speed lines are between Paris and Lyons, Frankfurt and Hamburg, Tokyo and Osaka, Rome and Milan, distances comparable to those between Britain's major conurbations. Britain is right to be following suit.
The noble Lord, Lord Adonis, will remember when I came over with his noble friend, Lord Berkeley, to contest the use of COBA, the system for cost-benefit analysis which is used. This was invented in 1960—at least it entered transport in 1960—and it was used to create a case for the Treasury about the building of the Victoria line. It is based on the theory that one can add up all the small time savings of everybody, multiply them, and then end up with a big sum of money. However, it is not real money, it is imaginary money. I ask the Minister to go back to the department again and challenge the use of COBA, because it is wrong. It is a great industry among the consultants and the department, but it does not lay a single piece of track and it does not properly justify itself.
There is a very strong case that the noble Lord, Lord Adonis, has just referred to, for providing more capacity. However, in the figures he has quoted, the noble Viscount has ignored the fact that the freight industry will double or treble its demand in the timescale of the building of HS2. In so doing, it will wipe out any extra capacity, together with the better train services which will be available at most of the intermediate stations on the west coast main line. I was talking to a newly elected MP from Kent. I asked him how many complaints he received about the HS1 which runs through his constituency, and he said, “None”. He said that people have accepted it, that it is quiet and efficient, and that it does not have any of the things that clutter up motorways like lights and places for people to rest. The noble Viscount, Lord Astor, should take some of his friends to Kent and see the actual effect, because many people are talking up the effects in the hope of compensation.
Lastly, there are huge cost reductions available for HS2. I believe that it should run from Old Oak Common through to HS1 and probably connect at Ebbsfleet. Old Oak Common should be developed in a way in which it becomes the main terminus. We should try not to inflict more people on Euston, which is already full.
My Lords, I am grateful to my noble friend Lord Astor for bringing this highly important, and for some of us, hypersensitive matter before the House this evening. First, I wish to declare my interest as the President of the Kenilworth and Southam Conservative Association. The constituency lies in the heart of magnificent rolling country of fields, trees and hedges. It comprises glorious productive farming land where at present the residents live with the constant threat of monstrous wind turbines. Now a blight has been added to their fears, with the further threat of high-speed trains ripping through their homes and farms.
I know that many of your Lordships have studied the project in detail. I am not in that category but, as a commuter who has heard innumerable local views, I feel I should express my position. If the fearsome amount of £33 billion has been identified, it should be used for the maximum benefit of us all, not for the few rich northern commuters who would save minutes from a journey at the expense of the long-suffering travelling public and the whole network.
Turning to the chosen route of HS2 Ltd, I am saddened that the company has refused to meet community forums. It has also refused to allow bilateral meetings at which specific counterproposals would have been suggested, which denies local people the chance to give their views. I can imagine that when HS2 Ltd finalises the route in November, there will be consider