Report (2nd Day) (Continued)
45: Clause 6, leave out Clause 6
My Lords, in the earlier debates this evening, we discussed the CMPs at great length. As I said in passing, many of the arguments against or seeking to modify the CMPs could easily have ended with a move to abolish them altogether. So in one sense, the case has already been made, except that I have to go back over it briefly. We are talking about probably the most fundamental aspect of the Bill: whether or not we should have anything like CMPs on our statute book at all.
CMPs represent, as was said earlier, an absolutely fundamental change in our judicial system—more fundamental than, perhaps, was fully appreciated. For the things that will fall under CMPs, it is the end of our adversarial system, when judges will no longer have to hear both sides of an argument in order to come to conclusions. It has been said by people who are more expert than I that if you take away one side, then injustice is virtually guaranteed. Our adversarial system depends upon two sides: two parties. Without that, our system can hardly be assured of providing justice. Indeed, it may well not do that at all.
We are, after all, talking about 350 years of applying a principle and doing this in practice. If we depart from such a fundamental principle, we are damaging our basic freedoms. It means that citizens can no longer challenge the powers that be in court and be heard openly in doing so. It takes away one of the most fundamental rights of the British citizen: that they can go to court, that they can challenge authority and the powers that be. That will no longer be possible.
Indeed, this will tarnish the reputation of British justice. I understand that at least one newspaper in Russia has already commented—approvingly or not, I do not know—that these proposals will provide secret courts. Maybe the Russian paper thought that that would be a good idea, or was seeking to justify something in that country. Certainly, however, if other countries are already commenting before we have even passed the legislation, we ought to be pretty careful about it.
Of course, as has been said before, the system will work on whispers. The Minister or the Government will whisper to judges and the decisions will be made accordingly. Indeed, David Anderson QC, the independent reviewer of terrorism, who has often been quoted this evening, has said that these measures cannot be justified on security grounds. He had other reasons for justifying them in terms of cost or not paying people money, but, on security grounds, he did not think that they could be justified.
One of the concerns, which has been expressed quite frequently, is that if you give a Government powers, even on a limited basis, they will inevitably start using them more widely. This is no disrespect to any Minister—it is simply the way the system works. We can all visualise a civil servant saying to a Minister, “Well, Minister, you know you do have the powers to do this, and they’re on the statute book”, and the Minister will say “Hmm, I forgot that”, and then “Can I get away with it?”, or “Will Parliament notice?”, or words to that effect. This is how Governments of all colours work. We therefore have to be careful that when we give powers that are intended to be limited, they will inevitably be used more widely. The special advocates themselves—all those consulted in a survey, which was almost all of them—said, I believe, that this whole idea was “incurably unfair”.
I want to give one example. I have lots of them, but I do not want to trespass on the time of the House too much. I have a document here which was in fact produced by the Ministry of Defence in court, so I am not giving away any secrets, though it was headed “Confidential” before it went into court. It is produced by an organisation called the United Kingdom Detention Oversight Team, or UKDOT. Its job is to visit detainees in Afghanistan who are held by the Afghan authorities. I will quote from this document, because it came out in court because we did not have CMPs. If we had had CMPs, it is almost certain that none of this would have been known. The document is headed “Electric Flex-Redux”.
“The team arrived. On arrival we interrupted an interview (we conduct our interviews in one of the two interview rooms) which caused the interrogator and prisoner to vacate the room in haste to accommodate the UKDOT. In the interview room we found on the floor behind the interviewer’s desk the same UK socket electric flex the UKDOT had seen on a previous visit”—
It refers to the visit in September and then continues:
“We took a photograph of the flex (see photograph) and after a few minutes a guard appeared and, in an uncomfortable silence, removed the flex: no explanation was offered and, for fear of causing a scene, none was asked for”.
I have here a photograph of the flex lying on a carpet. There may be an innocent reason for this, and this is not an investigation of how this operated. The point is, this would never have come out if we had had the legislation that the Government wanted. Therefore, I argue that the CMPs would help cover up things that we ought to know about. It would not have come to light if the CMP had been in use at the time.
I will conclude with the following. I was a member of the JCHR some time ago, when we produced the first report on these proposals, although I was not a member when it produced a second report. However, both reports have a number of things in common, one of which is that they said that the Government had produced no evidence to substantiate the use of CMPs. In the end, that is the most crucial argument. We are stumbling along, setting a very dangerous precedent, as far as our judicial system is concerned, and we are doing it without the evidence that would justify such a dramatic and drastic change. All we have is the say-so that there are a number of cases in the pipeline—and I do not doubt the Minister’s good will—which might or might not come under this system, and which might or might not contain something important that would be revealed if we did not have CMPs. No evidence produced by Government could justify this major piece of legislation. I beg to move.
My Lords, when I spoke to your Lordships’ House on Second Reading, I highlighted how the injection of closed material procedures into our civil justice system would infect it with unfairness and corrupt it with secrecy. Currently, the British people hold their courts in high regard, and respect their decisions. This is partly because our judges are seen as incorruptible, independent and wise, but the main reason is that court decisions are the result of a fair and transparent process. In an adversarial system such as the English one, the right to know and challenge the opposing case is not merely a feature of the system—it is the system.
Judges do not have the resources or power to investigate the merits of the case themselves. They depend upon the process in which both sides assemble and present their evidence, and then challenge each other’s cases. They then judge which case is the stronger in the light of those mutual challenges.
The Government have stated that,
“protecting the public should not come at the expense of our freedoms”.—[Official Report, 19/6/12; col. 1660.]
This seems to be precisely the cost that the Government wish to exact in the name of greater security. In fact, the Bill does very little to provide the public with greater security, while giving an unacceptably high level of protection to the security services from exposure of their alleged wrongdoings by the civil courts.
The Government would need to advance the most persuasive reasons to justify such serious damage to our civil justice system. They have completely failed to do so. That is the conclusion that the Joint Committee on Human Rights came to. It stated:
“We remain unpersuaded that the Government has demonstrated by reference to evidence that there exists a significant and growing number of civil cases in which a closed material procedure is ‘essential’”.
Listen to the clear opinion of the special advocates, the government-appointed lawyers who spend much of their time working at the coalface in this dark and murky part of our legal system. A memorandum about the Bill, which was signed by 59 out of 67 of them, states that,
“the Government would have to show the most compelling reasons to justify their introduction”,
referring to the CMPs. It went on to say,
“that no such reasons have been advanced; and that, in our view, none exists”.
The Government have completely ignored this highly authoritative condemnation of the need for the Bill. The only comments that I can recall are an admission by the former Lord Chancellor that,
“the evidence of the special advocates most unsettled me”.
But he has done nothing to correct his unsettled condition and I presume that he is still unsettled, as I am.
The Minister has not responded to the special advocates’ strong evidence but instead has showered them with praise for the work that they do. I say to my noble and learned friend that if he respects the special advocates so much, listen to them, stop ignoring them and drop CMPs from this Bill. In case that idea falls on deaf ears, I will carry on.
What are the Government’s justifications for all the damage that they want to do to our civil justice system? Many justifications have been and gone. However, one keeps coming back but without any evidence to support it. It is this: the Government argue that the Bill is necessary because otherwise they will be forced to settle claims and to pay damages, even when they have a good defence, because they cannot use secret evidence without risking harm to national security. That sounds very beguiling and plausible, does it not? However, it is flawed as a matter of principle and is factually incorrect.
The Government usually point to the Guantanamo litigation as their example of a case which had to be settled because they could not defend themselves without a closed material procedure. I am not aware of any other identified case that they have put forward. As a matter of principle, it is no answer to the claim that the system is unfair to the Government to introduce a procedure which means that they can use the secret material, but that the other side cannot see it and is therefore unable to rebut it. All that has been achieved is to substitute one form of unfairness for another, and the new unfairness is much worse.
Under the existing PII system, which works very well, the inability to use a document affects both sides equally. But a closed material procedure will always give the Government an unfair advantage. It destroys the fundamental principle of equality of arms, as well as one of the pillars of natural justice.
In any case, defendants and claimants settle claims every day of the week because they do not wish to disclose confidential, damaging or embarrassing documents, or do not want particular evidence to be given in court and reported publicly. There is no good reason why the Government should be uniquely entitled to bypass this normal and salutary part of the pressure of civil litigation by having at their disposal a procedure that enables them to fight their case in secret and in the absence of the other side
The Government’s reliance on the Guantanamo litigation as an example of a weak claim against them—that they were forced to settle because they could not use a closed material procedure—is disingenuous for two reasons. The Government settled the Guantanamo claims, by mediation, before the Supreme Court had ruled that closed material procedures were not permissible. The Government can hardly assert that they had to settle because they could not invoke CMPs. The decision on whether a CMP was permissible or not had not been taken when the Government chose to settle.
Furthermore, a significant quantity of evidence had already been disclosed in the case and it was apparent that the Government did not have a good defence to the claims. In fact, they were very far from having a good defence to the claims. That is likely to have been the real reason for the settlement, together with the desire to avoid the public embarrassment that would have followed exposure of the fact that, while publicly condemning rendition and Guantanamo in Parliament, the Government were actively involved in interrogating prisoners and assisting the USA in its torture and rendition programme. Therefore, the Government’s star case—in fact, their only case—to support the assertion that they are having to settle cases that they could have won with CMPs just does not stand up and is discredited.
So where are all these cases on which the Government rely? The JCHR was told that the Government had a number of other cases that were “posing difficulties”. This number was at different times put at 27, 15, six and three—and, since the JCHR reported last week, it has become 20. I do not know what noble Lords think, but to me this sounds more like parliamentary bingo than rational law-making. In any event, the Home Secretary declined two requests from the JCHR to let the special advocates evaluate these cases. We should remember that the special advocates are government-appointed security-cleared lawyers. The Home Secretary refused to see whether any of them supported the Government’s contention.
The special advocates’ response to the JCHR was as follows:
“There is as yet no example of a civil claim involving national security that has proved untriable using PII and flexible and imaginative use of ancillary procedure”.
That is coming from the special advocates, who are the people who really know what they are talking about, and really understand these cases. And still the Government keep repeating their claim that there are cases where PII cannot cope and which need CMP, as if saying it often enough will make it come true. It is not true; there is no evidence to support it, and there is no evidence to support this claimed justification.
As to the JCHR amendments, they address the regime around CMPs, tighten it up and will reduce the frequency with which the Government can use CMPs—and I voted for all those amendments. But with all those JCHR amendments, we still end up with CMPs inserted into our civil justice system, where they have no place. They are still unfair, still secret and still incompatible with our adversarial common-law system. Only one set of amendments tonight deals with the unfairness and secrecy of CMPs—only one that ejects them from this Bill. That is the one led by Amendment 45, and I commend it to the House.
My Lords, I should say immediately that I am a member of the Joint Committee on Human Rights, and I supported the amendments that have just gone through this House. But in fact my position is quite a clear one; I do not approve of the closed material procedure at all. I was prepared to make concessions and vote for the amendments that have just gone through, but really I do not think that it is needed at all.
This country is just emerging from a very dark period in our history in which there is compelling evidence that in the aftermath of 9/11 our intelligence services departed from the standards that we would expect of them and became too closely connected with those who torture. There has been evidence of involvement in rendition, and allegations of being too closely proximate to places where torture has been taking place, providing questions and information to interrogators who have used horrifying procedures to extract answers from people who are detained. Unfortunately, our desire to be a supportive ally to the United States of America often led us into activities that are unacceptable but should not have been covered up by secrecy—and nor should they be in future. It is important for the good standing of our country in the world, but also for the standards that we normally set ourselves, that that history is placed before the public, and that we know that it happened so that it cannot happen again.
I accept that there are matters of national security that should not be in the public domain, but national security cannot be used to cover up conduct that is criminal and which debases our standing in the world. Over many years of practice in the courts I have done many cases involving national security, and I am sensitive to the issues involved. The prohibition of torture is one of the few absolutes in the law of human rights. The United States of America forgot that in the Bush era, despite being a signatory to the conventions, as indeed we are. It insisted on calling its methods, “enhanced interrogation procedures”—anything more than waterboarding being outsourced to other countries that were not quite as squeamish.
I support the amendment because the flag of national security is too often a flag of convenience to prevent shameful or embarrassing conduct being exposed. We have well established procedures in our courts and our system to deal with issues that need the cover of secrecy. I have been involved in many cases where PII has been used, where witnesses appear behind screens, or where there is non-disclosure of names or anything that could be identifying material. There are methods and ways in which material that is sensitive to national security can be received without putting our security in jeopardy or, indeed, not received at all.
Let us be clear. This piece of legislation arises at the behest of the United States of America, and we should not behave like a lapdog. One of the reasons is because the USA is also unhappy about being revealed as having participated in many of these shameful activities. However, this legislation has arisen in particular because of the exposure of the terrible facts in the case of Binyam Mohamed. I keep hearing people saying, “But of course these were people suspected of terrorism”. I heard the young American colonel who came to this country who did not choose to represent Binyam Mohamed, but eventually, when it was said that there had to be representation of people in Guantanamo Bay, she acted for him. I heard her presenting to a gathering of lawyers evidence of the extent to which he had been tortured and rendered from Pakistan to north Africa, and eventually to Guantanamo, where his genitals were subjected to insult and attack, and where he was tortured. There is no doubt that he experienced terrible events. It does not matter whether you are talking about someone who is a suspect of terrorism or not; such conduct is unacceptable.
Torture is one of the most egregious of crimes and we are trying to stamp it out in the world. That will be done only if we set ourselves the highest standards, take the lead in doing that and do not succumb to the entreaties of even our closest ally to enter into court processes that might make it more difficult for people who want redress for any role that we might have played in their torture. When they seek redress and come to our courts, they should be able to expect not to be spurned by the courts, which is, in the end, what this piece of legislation will allow to happen.
I remind this House that not long ago in Libya, papers were found after the events in that country and its liberation from Gaddafi, which disclosed that we, Britain, had played a part in the rendition of a man who now sits in government in Libya—a man who was an opponent of Gaddafi. However, at the request of Gaddafi, we had participated in his rendition back to that country.
I want also to raise another issue that is of profound moral and ethical importance to us if we are to care about such issues—the use of drones. There is evidence that our intelligence services are providing locational intelligence to the Americans in order that a CIA operative, sitting in Oregon, can direct a drone even into Pakistan, and sometimes find that large numbers of civilians, including children, are at the receiving end of the bombing. It may have the success of taking out people considered to be enemies, but it has the horrifying additional outcome of killing innocent people.
The closed material procedure will make it impossible for us to reach into these dark parts of conduct that may be taking place in our name. It would be shameful to allow this to go through our House without calling it to account. It is not a piece of legislation to which we should put our names. I regret that the Labour Benches are empty. Perhaps it is because a lot of this might have happened on a Labour Government’s watch.
There is a case going through the courts. A British resident called Noor Khan is seeking a judicial review. He wants a declaration of unlawfulness made because his father—a civilian, not a terrorist—was killed in northern Waziristan in an American drone attack. This was not in the conflict area of Afghanistan but in Pakistan, and the victim was a civilian casualty. I am told that a number of cases that concern people are linked to the use of drones in Afghanistan, Pakistan and elsewhere. People in Britain will call into question certain legalities because our domestic law covers the behaviour of people who are not in a war zone, and who therefore are subject to domestic law. The noble Lord, Lord Lester, will know that that does not mean that international humanitarian law gives them any protection.
I am sorry to press the noble Baroness, but I still do not understand what she is saying. It must be my fault. I would like to know how, in a judicial review of that kind about drone policy, what is in the Bill will change the matter in a way that will not allow the applicant for judicial review to secure justice. How will the process be different from what we have now? That is what I am trying to understand.
I am interested to hear the noble Lord, Lord Lester, the great human rights lawyer, defending secret processes of this kind. There is no doubt that applications will be made for closed material proceedings in those sorts of cases because the state will not want to divulge the circumstances in which locational intelligence was given. What we as members of the public would want to know would be whether we are playing the role of providing that kind of intelligence, which may in turn lead to the deaths of many civilians, particularly in places that are not covered by war.
I call upon the moral impulses of the House. Do noble Lords think that this is a proper way of dealing with activities that may be covered by national security, when national security is being used as an excuse to cover unacceptable behaviour? It may mean that we will never be able to find out the truth about rendition and the use of torture, and about any role that British operatives played. That would be a very unhappy state of affairs, and a departure from a very proud part of our common-law history and principles. It is a source of regret that so many people are prepared to go down this road.
My Lords, it is always a pleasure to follow the noble Baroness. I am sorry to start by correcting her, but the Labour Benches are not empty, nor bereft of any representative of the previous Government. As a former Home Secretary, I am one such representative. Unfortunately, the other Home Secretaries—Mr Clarke, Mr Straw, Mr Blunkett and Ms Smith—cannot be here because they are not Members of this House, which may account for their absence.
I may be a lone voice among the speakers, who all seem to have come from the Joint Committee on Human Rights, but I will say two things. First, on the moral question, I deprecate torture as much as anyone in this House. I deprecate it in the case of that have been mentioned. I also deprecate it in the case of the 62 British citizens who were tortured by being burnt to death in the Twin Towers and the 50-odd British citizens who were tortured to death by being blown up in the subway and on the buses in London. They had human rights as well, and the primary human right is the right to life. There is a moral obligation on government to take that into consideration.
I find that one of the astonishing things about these debates is that there is never any context about the nature of national security. It is paraded camouflaged in words such as murky, corrupt, and lapdog—the disparaging avalanche of comments against our security services. Politicians can take it. We are used to it from the Opposition, from people outside and from some of our errant Back-Benchers, but the intelligence services do not deserve that. Were it not for them, I can tell you, thousands of British citizens would have had their basic human right of life removed from them. In one incident in August 2006, 2,500 people would have been blown out of the skies over the Atlantic were it not for our intelligence services and, yes, their colleagues in the American intelligence services.
So let me just say a word to balance the quite proper legal points that have been made about national security. We have come through a dark time. I regret to say that we still live in a dark time, not just here but throughout the world—anyone who thinks that areas of Pakistan are not a conflict zone does not begin to understand that. There are two elements to the threat to the British people, as there always are in any threat. The first is intention and the second is capability. The real question that we should be asking is not whether this proposal arrives from the Government because they are corrupt, because they have been seduced by civil servants or because they are lapdogs of the Americans. We should be asking what particular set of circumstances regarding the threat to national security brings a measure like this on to the agenda. We should then analyse the two elements of threat: intention and capability. Let me to say a word on both. The intention of those who wish to inflict terrorism on the citizens of this country is now unconstrained. It is not limited, as it was with the IRA in terms of tactical questions. It is not limited by their concern for what the public might think. It is not limited in terms of the numbers that they wish to kill. Anyone who tried to kill 10,000 people in the Twin Towers would be happy to kill 10 million people. Indeed, not only are they not constrained in their intent by politics or ideology, they are driven in their ideological premise towards a massive massacre of people.
That on its own would be bad enough to weigh in the minds of today's Home Secretaries if it were not for the fact that the other element of threat, which is the ability to carry out the intent, is now unfortunately unconstrained as well. Those in the past who had a genocidal intent, such as the Nazis, were constrained by the technical ability to achieve their intention—in the Nazis case either by carbon monoxide or Zyklon B canisters. Biological, chemical and radiological weapons now mean that we live in a world where unconstrained intent to do damage is allied with the potential for unconstrained capability. That is the burden that sits on the shoulders of government Ministers nowadays, not whether they will fall out with the Americans or anyone else. It is in that context that we have to consider the unique circumstances that we have never had to face before because the means of mass destruction have not been available to small groups of non-state actors and, by and large, non-state actors have not had an unconstrained intent to murder in a wholesale fashion. It is those circumstances that make the protection of intelligence all the more important. Had it not been for that exchange of intelligence—in one case, across 29 countries—we would not have achieved the protection of our British citizens and their fundamental right to life.
I am sure the noble Lord is not suggesting that those of us who oppose these clauses are in favour of terrorism. He must appreciate that we are not concerned with proposals that will make security information available to the public. All we are concerned about is, what is the response to an action that is brought by a claimant against the security services or any other government department? I appreciate the noble Lord’s sincerity but is he not a little off the point?
There are three points there. First, of course I was not suggesting that there was any intent on the part of the noble Lord. However, I was explaining that there is a law of unintended consequences. You do not need an intention to make it easier for terrorists in order to embark on a course of action that ends up assisting in that. The second point relates to the Government’s response. As I understand it, the Government are saying that we currently have a system that does not give us justice because the requirement to protect national security information is such that they cannot take it to court, and therefore, whether or not it is just, someone is in receipt of benefits.
Let me finish with the questions that I have been asked and then I will happily come back to the noble Lord.
The third question is whether I am off the point. I do not see how this issue can be discussed without a deeper understanding of the security—I truly do not—and yet in this Chamber I hear speech after speech about law but no one sets out the circumstances in which we have to face these threats. We might as well try to exist in a vacuum. Of course we can turn our eyes and act blind to the world outside but we have at least to try and understand the circumstances that give rise to what the Government are doing, or alternatively we will be forced to say that they are either mad, bad, corrupt with power, lapdogs, murky, conspirators or acting at the behest of evil civil servants.
The noble Lord is presenting a parody of the argument that I have made, and I refute it. I understand—as does everyone in this House because we have debated it so often—the incredible context of having to deal with terrorism. Sensibly, however, most of us accept that you do not sacrifice the high standards of legal procedure that we have developed in this country to the terrorists. When the British state does that, it descends to the level of the people who bomb, kill and do all the things that the noble Lord has described so powerfully. If there is any question that our security services have in any way fallen from grace—and no one is suggesting that they have tortured—in the standards that we expect and which they normally set store by themselves, it is important that that should be explored so that we can put right any of the wrongs that have taken place. That is the issue.
Perhaps I may respond and then I will give way to the noble Baroness, Lady Manningham-Buller. I was not trying to parody or even respond to the argument of the noble Baroness, Lady Kennedy, with the exception of her incorrect statement that there is no one from Labour here and her reference to Pakistan. The rest of it actually applied to the generality of the arguments that I have heard since I came in. I have made my position known on torture, but I have also made my position known on the obligations of government to protect the rights of the British citizen, including the basic one of the right to life.
That is rather a Catch-22 question, is it not? The reason they have not is that they have settled out of court. That is the point that we are trying to make. The noble Lord is asking for evidence that cannot be adduced. The very purpose of bringing forward this provision is precisely to meet a situation which has arisen because they cannot.
My Lords, I feel I have to rise to speak because of the presumption of guilt suggested by some people on the part of my organisation in the past. I should say first that torture is a crime in our law and in international law. It is morally wrong, ethically wrong and it is never justified—even when, as the Americans would claim, you get the truth from it. That is irrelevant. It is not what a civilised country does and it is illegal. For my colleagues to be accused of it is to accuse us of a crime.
I can now talk about the Binyam Mohamed case. We interviewed him in Pakistan in 2002, where he was in American custody. Later that year we sent questions to the Americans to put to him. There were two things that we did not know in 2002. We did not know that our closest intelligence ally was resorting to waterboarding; that is, torturing people. We did not know that in 2002. Additionally, we did not know that Binyam Mohamed had been rendited by the Americans to Morocco. Had we known that, we would have been more careful about the questions we had put, as I said to the parliamentary committee in 2006 and as it was recorded in its report. Certainly we regretted that.
Because torture is a crime, the person who interviewed Binyam Mohamed in Pakistan was extensively investigated by the police. A report went to the Crown Prosecution Service and it was decided that there was no case to answer. If any of my colleagues had been involved in criminality, the criminal courts—we are not talking about civil proceedings here—the police and the Crown Prosecution Service would have been involved. We are absolutely subject to the criminal law, and so we should be. But I find it pretty difficult to accept a presumption of guilt without it being proved in a court.
I shall put a caveat on that, picking up the comment of the noble Baroness, Lady Kennedy. I cannot talk about matters to do with Libya because those are the subject of current civil proceedings, as I understand it, and criminal investigations. It would be inappropriate for me to comment at this stage.
I must ask the noble Baroness if she was listening when I made my speech. I made it very clear that there was no suggestion of British officers being directly involved in torture. I spelt out clearly and precisely what the noble Baroness has just described—being in places where people were being detained, providing questions and information that was ultimately used in interrogations where horrifying procedures were used. We know that happened in Binyam Mohamed’s case, and I made the suggestion that there was compelling evidence that it had happened in other cases. I would ask this question of the noble Baroness: does she accept that Britain played any role at all in rendition?
My Lords, perhaps I may remind the House that the Companion sets out that, at Report stage, a speaker other than the mover of an amendment, a Minister or the noble Lord in charge of the Bill can speak twice only if granted the leave of the House, and then to explain a material point of his own speech that may have been misunderstood or misquoted.
I will give way but I was not quite finished. I have heard of being overtaken by events but I think that I was overtaken by Baronesses in the middle of my speech. I did give way to the noble Baroness, Lady Manningham-Buller.
I have said what I wanted to say, which was mainly to try to give to the debate a balance which I think is, perhaps wrongly, missing. We are discussing a justice and security Bill generally, and the actual analysis of the security elements of that seemed to be somewhat missing from our deliberations, both in this group of amendments and previously.
I hope the fact that, with Roy Jenkins, I helped produce the first anti-terrorism Bill, which became the Prevention of Terrorism (Temporary Provisions) Act 1974, illustrates that I take national security at least as seriously as the noble Lord, Lord Reid—if not perhaps quite as seriously, because no one could take it as seriously as he does.
Neither the noble Baroness, Lady Kennedy, nor my noble friend Lord Thomas of Gresford were present when I explained earlier today that the origin of the closed material procedure, which they both deplore, comes from suggestions made by civil society—that is to say organisations such as Justice, Liberty, the AIRE Centre and Amnesty International—both in the Chahal case and later, through me, in the Tinnelly case. They both deplore the procedure as criminal lawyers, and I quite understand that as a criminal lawyer you regard everything in terms of the context of criminal trials and that the CMP is seen to be totally incompatible with their concept of justice. I understand and respect that. However, they have to face the fact that the procedure came in because the Strasbourg court could not find any other way of weighing the needs of national security with the interests of justice. It had regard to the Canadian procedure, because that is what Liberty, Justice and the AIRE Centre—and perhaps also Amnesty, although it denies it—suggested to the Strasbourg court.
When Lord Williams of Mostyn was responsible for the SIAC Bill in 1997 I was one of those who spoke in favour, because although it is imperfect justice, I could not think of a better way of weighing the needs of national security against the interests of justice. I believe that it has worked pretty well in the context of SIAC, and we, as the Joint Committee on Human Rights, have recommended that SIAC’s jurisdiction be extended. I do not think that the noble Baroness, Lady Kennedy, as a party to the report, will disagree with that. I do not think that she has so far.
The short answer to the supporters of this amendment is that we have today incorporated into Clauses 6 and 7 almost all the safeguards that the Joint Committee on Human Rights advocated. We did so in order to strike a better balance between fairness and national security. If the supporters of this amendment succeed, they would remove Clauses 6 and Clause 7 altogether. That would mean that the Bill would go to the House of Commons with no safeguards. The Prime Minister, the Foreign Secretary, the Home Secretary and others would have little difficulty in ridiculing what we had done. They would find that, having spent the period before the dinner hour putting in the safeguards, we had spent the period after it removing them. I can be accused of being over-logical, but it seems to me that to walk upon your head is a very strange thing to do. It makes me realise the wisdom of the noble Lord, Lord Campbell of Alloway, when he once rebuked me for making a serious point after the dinner hour. I now realise that all the serious points were made before the dinner hour and what we now have is a kind of tragic comedy. I very much hope that we do not as a House approve amendments that will have the effect of undoing all that we have been doing since 3.30 pm.
I am going to be fairly brief. I hope that the noble Lord, Lord Reid, will accept that I have an abiding interest in national security. I was Director of Public Prosecutions and chief prosecutor for some of the period that he was Home Secretary, and during the worst of those years that he has been referring to, between 2003 and 2008. We had the London bombings on 7 July, the attempted bombings on 21 July, the airline plot, the dirty bomb plot, the fertiliser plot, and a conspiracy to plant bombs in the Bluewater shopping centre—deliberately at half term, so that there would be women and children present.
I understand all those issues. I should like to say to the noble Baroness that my presumption is that members of the security services do not go to work to commit crimes and that they work tirelessly in the national interest and to protect public safety. That is my view about national security and about the security services. I think that the debate that we are having here is slightly different from that and I do not believe that anything that is proposed in this amendment would damage national security in any way or needs to be in effect an insult to members of the security services. It is a question about the sort of legal system that we want, and therefore questions of law are bound to intrude. But I accept the national security context.
I understand that.
What I want to do is to return, I am afraid, to the legal context. I will be fairly brief. I want to address three questions in the context of closed material procedures: one is public confidence; one is fairness; and I think the most important one is the delivery of justice, as this has been a large part of the Government’s argument. To what extent can closed material procedures deliver justice where no justice is presently available?
The first issue is public confidence. How is public confidence in the justice system achieved? My own view is essentially that it is won through securing the trust of the public. This is achieved in a number of ways, particularly I think through openness and—that overused word—transparency, especially in terms of the judgments given. It is particularly important that judgments in cases are given in public and so the judgment itself is open to public scrutiny. If a judgment is not open to public scrutiny, that judgment will struggle to win the trust of the public. Why should the public believe that something is so simply because a judge says that it is so? The ability to scrutinise a judgment is absolutely critical.
Not least of the damaging effects that closed material procedures may have—I think will have—will be to damage public confidence in our judiciary. Who is to trust a judgment against him made upon the basis of material that he has never seen? What litigant would trust the judge who makes the judgment based upon material that that litigant has never seen? The question of public confidence is not simply a question of public confidence in the system, it is a question of public confidence in perhaps the most important people who populate the system, the judges.
This brings me to my second point, fairness. I think that everyone accepts, as they must, that closed material procedures are unfair. In one profound sense, and I do not need to labour this point, they are not fair because they are not balanced. As the noble Lords have been told, special advocates are very eminent lawyers instructed by the Government to secure fairness in these proceedings. It is well known that the special advocates themselves oppose the creation of closed material procedures precisely on the grounds that they believe that the process is unfair. I remind the noble Lords again of something that the noble Lord, Lord Strasburger, said. These special advocates, who have been in all these cases, have said that they have not seen a single case in which the issues could not properly be litigated safely using PII and other ancillary procedures, securing justice without revealing the slightest hint of national security secrets.
The final and perhaps most important point of all—it has been made persuasively by the noble Lord, Lord Lester, and others—is the delivery of justice. This has been a common theme in this debate, including contributions from very distinguished former judges. The argument is that closed material procedures will provide some justice where none is presently available, in the absence of material that would otherwise be excluded under PII; in other words, the courts will now be able to consider material that they could not consider before, and that is a better form of justice.
I take issue with this argument, perhaps because I am a criminal lawyer and I have spent many years in criminal courts watching evidence that at first sight seemed persuasive, truthful and accurate disintegrating under cross-examination conducted upon the instructions of one of the parties—my client or someone else’s client. Perhaps the key task facing a judge in evaluating evidence is to determine accuracy and reliability. This determination is the product of a process of testing, usually by cross-examination. That is how the judge comes to the determination as to whether evidence is accurate, reliable and honest. It is the questioning of the witness that gives the judge the clue as to whether the witness is mistaken, confused or, indeed, telling lies. I have seen this happen countless times: evidence that seemed strong and persuasive disintegrating and the case collapsing.
Of course, the danger of a closed material procedure is that this essential process is compromised, disastrously in my view, precisely because one party, the very party who wishes to engage in this process of challenge to defeat the Government, is expelled—that is not too strong a word—from the proceedings and must fall silent. He must rely on an advocate he is forbidden to speak to—he is represented by a lawyer who is forbidden to speak to him and to whom he is forbidden to speak. That lawyer then goes into the closed room with the judge and the government lawyer and is expected to test the evidence on behalf of the claimant. Again, the special advocates themselves have attested to the limits and the precariousness of their position in this situation.
To the argument that some evidence is better than no evidence, I am with the noble and learned Lord, Lord Kerr, of the Supreme Court, who said in a recent case that the whole point of untested evidence is not just that it may be unreliable but that it can “positively mislead”. That is the risk that we are facing, that we are introducing into civil justice—in the most sensitive and controversial cases, where deeply serious allegations are made against the Government and the security services—a process that expels the claimant and gives him a form of justice that is not better than nothing. It is worse than nothing because it may be justice that is based on entirely misleading evidence.
In its outstanding report, the JCHR was careful to give its considered assessment of the case the Government have made for the insertion of this quite extraordinary procedure into our criminal justice system. It was very frank. It said that the Government have not made a convincing case. For my part, I would not introduce these processes into our system without the most compelling evidence to justify this extraordinary change, and I do not see it.
My Lords, the noble Lord has spoken very powerfully about the importance of public trust and how the amendments before us are emphasising the means by which that trust can be secured. But when we divert from the practices of justice as we have come to understand and appreciate them, we must do so only in the most extreme and exceptional circumstances, and there must be no opportunity for a drift towards this process becoming a matter of convenience. I may be overegging it slightly but that is a fear one must have in mind.
The noble Lord also spoke about the importance of public confidence in the law and the administration of the law. I want to take that argument a little further. My noble friend Lord Reid, in a very powerful intervention that I am sure we all took extremely seriously, underlined the danger of small numbers of people with modern technology and devices at their disposal.
That is why the whole case for maximum, transparent justice in the process of law is so important. Many of the issues behind the cases involved will be extremely controversial and elicit a lot of passion in particular sections of the community. If it can ever be argued or demonstrated that we are not applying a commitment to justice in the way it can be achieved, but are finding that because of the terrorist element we are deserting that position, that will play straight into the hands of the extremists who want to exploit frustration, alienation and the rest. We are giving ammunition to the enemy—if you like me to put it as bluntly as that—and I find that unforgivable. Why give ammunition to an extremist who is determined to undermine our society by failing to stand by the principles of what we know justice is about, unless it is a most exceptional, extreme case where special circumstances have to apply?
My Lords, the Justice and Security Bill demands justice and security. We have been quite rightly reminded by, among others, the noble Lord, Lord Reid, how important it is to consider security. In human rights terms, Article 2 of the convention places a responsibility on the Government to protect life and to take all steps appropriate to ensure that the human rights of citizens generally are protected, so that human rights are not just for the litigants involved in these proceedings but for all of us. However, justice is to be done by this Bill and there is undoubtedly a justice gap. I thought that, during Committee stage, we had moved towards a consensus that CMPs, although not a desirable option, were nevertheless a necessary evil in order that justice should be done.
Contrary to what my noble friend Lord Strasburger has said, the JCHR, of which I have the good fortune to be a member, acknowledged, relying in part on the evidence of David Anderson, that there were a limited number of cases in which justice could not be done in the current situation. That is why the Bill has been brought before your Lordships’ House. As to the possibility of justice being done under these provisions, the noble and learned Lord, Lord Woolf, who has experience of these things, said in Committee that the special advocates were underestimating their capacity to represent those clients. Nobody suggests that it is an optimal position, but my own experience of judges tells me that they customarily do everything they can to remedy any disadvantage that a litigant might have—and of course they will have a disadvantage in CMPs. The suggestion that the Government’s case will simply be accepted by a judge without challenge or question is wholly unwarranted. Within the Bill as it is at the moment, judges have considerable powers; now that these amendments have become part of it, they will have considerably more powers.
I therefore suggest that the Bill presents an opportunity for security and justice, as the name suggests. The amendment proposed will wreck that opportunity and justice will be denied.
My Lords, I have had experience of a torture case, the Baha Mousa case, which involved the death of a hotel owner in British custody in Basra. Your Lordships will recall that there was a long trial in which what had happened in the stinking hellhole of a derelict guardhouse was investigated. Men had been held in stressed positions with their hands tied behind their backs and hoods over their heads, and Baha Mousa, after a night during which passing soldiers from other regiments were called in to have a pop at the prisoners in that position, died with some 90 injuries to his body. What happened as a result of that? There was the trial and then a long inquiry, chaired by Lord Justice Gage, which lasted more than two years. His report has brought significant publicity and changes to what goes on. The noble Lord, Lord Judd, was talking about transparency. There is something that was brought out into the open. I do not think that any commanding officer in the British Army will not have regard to the treatment of prisoners by troops under his command hereafter. That is what transparency and publicity do. I was very interested to hear the noble Lord, Lord Dubs, cite an interrogation that had taken place in Afghanistan more recently when, no doubt, proper safeguards for the prisoners were in place.
Reputational damage? Of course there was reputational damage to the soldiers, the officers, the regiment and the British Army, but that is the price that has to be paid to put things right. I am not particularly moved by the argument that settling cases causes reputational damage to the security services. Of the civil cases brought in this country, 95% are settled, often without any admission of liability. I have never heard it suggested that there is reputational damage from a settlement from such circumstances. Nor have I heard it suggested anywhere that because the security services have settled cases brought against them, they have suffered reputational damage in any meaningful sense. When one reads what happened in the Binyam Mohamed case, one feels that there should be more transparency about what happens within the security services. Perhaps then, the suspicions with which the noble Baroness is so concerned would go away.
Everything that can be said on the issue of principle has been said, even if not by me, so I do not propose to go back to that. I just want to raise one or two practical points. The first is this. A lot has been said about fairness to the security services—that it is not fair that they should settle. What about fairness to the claimant? Suppose, for example, that a claimant wishes to sue the security services for exposing him to torture or to unlawful rendition. Let us assume that his claim is entirely genuine. Let us not start with the assumption that one hears in certain quarters that of course he is lying. Let us assume that it is a genuine case. There is no legal aid. He cannot find a lawyer to act for him on a no-win, no-fee basis because it will be impossible for a lawyer to assess his chances of success. How can any lawyer take on a case when it is possible for the defendant to go behind the scenes, talk to the judge and disclose evidence which the claimant never sees? How can you take on a case on that basis?
Of course, the special advocate is allowed to see the secret evidence, but can he go back to find out whether there is any possibility of challenging that evidence? How can he go back to his client to talk to him? He is not permitted to under the system. He cannot take proper instructions and, as my noble friend said, use the ordinary method of ascertaining the truth in the British courts of justice for centuries: by cross-examination, by challenging and testing the evidence and the credibility of the person who is giving that evidence. It is just not possible, so nobody is going to take the case on. That is the first problem to get through. We talk as if practical considerations such as that do not count. The claimant never gets his case going, or if he does he loses and never knows why.
Let us take another case and get away from terrorism. Take a highly decorated NCO who has his leg blown off in Afghanistan while using faulty equipment. He sues the Ministry of Defence for negligence. It claims that the design and safety record of the equipment is national security sensitive: “This is material that we could not possibly disclose because it might assist those who are preparing bombs in the areas where we operate”. The Ministry of Defence discloses that information to the judge. The special advocate also sees it but can he go outside and instruct an independent expert on the evidence that the Ministry of Defence put before the judge, so that that evidence on the capability of the particular equipment can be tested? Of course he cannot, so the claimant loses and never knows why.
Let us take another case: an ordinary citizen sues the police for wrongful assault, false imprisonment and malicious prosecution and the police, in their defence, ask for CMPs to show the judge secretly that they have obtained some national security sensitive intelligence from MI5, which gave them a reasonable cause for the arrest. The citizen is suing them for wrongful arrest; he does not know what the judge knows and has no chance of challenging it. What happens? He loses and is never told why. It does not appear in the judgment. Nothing is made public.
We could have a situation where a person is interned in a special camp without trial. It has happened here in this country, particularly with IRA suspects. He seeks a writ of habeas corpus, that absolutely fundamental right that exists for the citizen to challenge detention, and the Government may deploy closed material procedures to keep him interned for reasons that he neither knows nor can challenge. Is that beyond comprehension? At Second Reading the noble and learned Lord, Lord Wallace, conceded that CMPs could be used in habeas corpus proceedings. We are not just talking about terrorists wrongly challenging the security services. We are dealing with any issue where national security may be involved.
This is another important practical point for those of us who have practised in the courts for far too long. You try to settle cases, if you can, but if a claimant can find a lawyer to act for him that lawyer cannot assess the strength of his claim. The cards are all in the hand of the government department. The authorities hold the cards and can conceal wrongdoing. They can say to the representative of the claimant, “We will give you £100 and an apology to go away”—a derisory settlement. They may hint that they will use closed material procedures if an offer is not accepted or they can play the long game. They can exhaust whatever funding that claimant may have obtained, from a charity that is prepared to support him in these proceedings: “Play it long. Make him spend all his money so that nobody will now represent him”. Or they can drive him to trial when, of course, at that point, the trump card is taken out of the hand of cards that the government department has, and it is played. The case is lost, and the claimant never knows why. This cannot be justice. We cannot approach this issue on the basis that we must be fair to the security services and to the Government. There is fairness to the claimant also to be considered. That is the reason that we, as lawyers, appreciate this very much.
The noble Lord, Lord Lester, pointed out that he supported the introduction of special advocates back in 1997—we discussed it earlier—and I opposed it, so nothing much has changed. Suppose it were a criminal trial, and the judge were to say to the defendant, “You go down to the cells”, and to the defendant’s lawyers, “Get out of the court”, and then the prosecution were to introduce before the members of the jury—who are the decision-makers, just as the judge is the decision-maker in the civil case—evidence that was decisive against the defendant who was in the cells. Could you call that justice? This is the same sort of thing applied in a civil context. That is why I oppose Clauses 6 and 7.
My Lords, I begin by paying tribute to my noble friend Lord Dubs, who has spent a lifetime in the indefatigable support of human and civil rights. I certainly listened very carefully to what he said today.
I confess to some disappointment that during this debate we have heard little evidence of the Deputy Prime Minister’s references to sympathy for the report of the Joint Committee on Human Rights and still less of the amendments that he said the Government would sympathetically consider. I do not know at what stage, if at all, this House will have an opportunity of considering such amendments. We have Third Reading next week, and there is no indication from the Minister that that would be an occasion when such amendments might come forward.
However, I would welcome the recognition of reality on the part of the Government Benches on three of the amendments that were moved earlier this evening. If those amendments had not been carried, we on the Opposition Benches would have voted for the amendment moved by my noble friend and supported by a number of your Lordships tonight, but we conclude that it would be better to send to the House of Commons the considered views and the amendments passed by very large majorities in this House than to send the Bill without those amendments, and simply leaving it that the provisions that caused most of us considerable anxiety were deleted from the Bill. In my judgment, and that of many of us in this House, that would leave us in possibly the worst of all possible worlds.
In terms of the practical politics of the situation, we might conceivably end up with a worse Bill returning to us than the one that, if this amendment is rejected, would be leaving us. For that reason, I am inviting my colleagues on these Benches not to support the amendment, but equally not to vote with the Government against it. My recommendation to my colleagues is that we should not vote on this amendment but should abstain. We look forward to the amendments that the Deputy Prime Minister spoke of yesterday which, presumably, would go further than those which this House approved with such substantial majorities this afternoon and this evening.
My Lords, this has clearly been an important debate with passions expressed on both sides of the argument. Following the votes that we have already had —on amendments which my right honourable friend the Deputy Prime Minister was talking about; the House has had an opportunity to consider the amendments emanating from the JCHR report—the Bill looks very different from that which arrived on Report. The CMP process has now altered with the wishes already expressed by this House. I therefore urge noble Lords not to remove these clauses altogether after such time has been taken to scrutinise and amend them. My noble friend Lord Lester summed it up very well: there is no point in spending a long time before the Dinner Break putting these safeguards, as he described them, into the Bill, only to simply take them all out after the Dinner Break.
This is the Bill as the House has now passed it. The House has accepted that CMPs are needed. The Government will and should properly reflect on the steer that this House has provided as the Bill moves to the other place. Crucially, we believe that closed material proceedings are absolutely necessary and are, indeed, a significant improvement on the current system.
I am not going to rehearse all the arguments that we have been through on a number of occasions. I will just pick up one or two points that were made in debate. The noble Lord, Lord Dubs, talked about a system of “whispers”. The closed part of the proceedings will not be a cosy chat between the judge and the government lawyers. The non-Government parties will be excluded from the proceedings, as will members of the public, but the interests of the excluded parties will be represented by special advocates, about which I will say a word in a moment. In other words, the closed proceedings will look much like open proceedings in that they will have counsel for the Government and counsel who are special advocates representing the interests of the excluded party and making submissions to the judge.
I understand the concerns that are expressed about the special advocate, but it is also fair to say that the special advocates themselves sometimes underplay their own abilities. The noble and learned Lord, Lord Woolf, said that he has read the transcripts in the case of M v Secretary of State for the Home Department, and had been impressed with the openness and fairness with which the issues in closed session were dealt with by those who were responsible for the evidence in that case before the SAIC. He went on to say that while the procedures that the SAIC adopts are not ideal—no one is pretending that this is a perfection of justice or making that argument—
“it is possible by using special advocates to ensure that those detained can achieve justice and it is wrong therefore to undervalue the SIAC appeal process”.
The noble Lord, Lord Dubs, also referred to what he said were “cover ups”. This was echoed by a number of contributors to the debate. This completely misunderstands the whole purpose of closed-material proceedings. I share the view of those who have expressed in these debates that they abhor torture. The Government abhor torture. The Government do not condone it, and nor do they seek others to conduct torture on their part.
My noble friend Lord Thomas said that we should assume a case where there has been malfeasance on the part of someone acting on behalf of the British Government. The point is that if there were such as case, it is important that these issues are properly considered and investigated. The point under the present situation, with public interest immunity certificates, is that if public interest immunity is successfully asserted, none of that evidence will actually be before a judge. It is important that that evidence should be before a judge. It is important that there is fairness for the claimant, and there is not necessarily fairness for the claimant if the claimant has to settle because important information cannot be considered in open court and we have not allowed them the opportunity of closed material proceedings. While there may be some satisfaction in getting a financial settlement, it might not be a satisfaction if you have indeed been wronged and do not have a court judgment to confirm that. It is not only the security services, on which we have perhaps focused our debates, for which the present system can act unfairly. It is unfair, too, on someone with a just claim who cannot get it properly vindicated in the courts because evidence cannot be brought before them. That makes the point that that is also, as has been said, unfair to those who believe that they have a proper defence and cannot deploy it. In our first group of amendments today the noble Baroness, Lady Manningham-Buller, indicated that that has the effect of lowering morale in cases where people believe that they have done no wrong and they have a proper defence but cannot deploy it.
Settling is not always as simple as it seems but, equally, people have talked about the damage that it might do to the justice system. As my noble friend Lord King said in our first debate, increasingly I believe that if payments are given out but no case has been proven, that, too, can be damaging to the justice system. As the much-quoted David Anderson QC said in evidence to the Joint Committee on Human Rights about settling:
“It seems to me that it is corrosive if not of national security then at least of justice, and that there is a public interest in these very sensitive national security cases being fairly resolved. If Government has to settle a vast and high-profile series of damages claims … while feeling that it has perfectly good evidence on which to defend the case, that is corrosive of trust in the security services; it is corrosive of trust in the authorities; it is corrosive of trust in the legal system”.
There is, therefore, corrosion of trust, if indeed there is a whole series of cases that are settled without any proof having been made.
My noble friend said something about reputational damage, and perhaps felt that that was not so important. Other people have settled cases without reputational damage. The real concern comes when a case is settled without admission of liability, and there has been a very serious allegation—for example, of torture or of rendition, which indeed is wrong. There will never have been an opportunity to go before a court, even if in the less satisfactory situation of closed proceedings, and that opportunity will have been denied because such proceedings are not available.
If there has been a settlement, then people can go to recruit those who may wish to take action against this country. They will be able to say, “This person claimed that the United Kingdom Government tortured them, and the United Kingdom paid out sums of money to them”, and you can bet your life that the small print saying “without liability” will never be mentioned. However, that is more than reputational damage; it is potentially damaging to our national security as well.
No one has pretended that closed material proceedings are in fact as good as the open proceedings that have been the hallmark of our justice system. It has been said many times in these debates that imperfect justice is better than no justice at all. I therefore urge the House to reject the amendment in the name of the noble Lord, Lord Dubs.
My Lords, we have been over these issues a number of times this evening, so I shall confine myself to making some very brief points. Of course, everyone is against torture. It is abhorrent and criminal. We are all opposed to terrorism and will do nothing to weaken the security of our country. Had I not left my London residence late and had left at the usual time, I would have been going through Edgware Road on the day of the bombings. I therefore felt fairly close to that, although I was a quarter of a mile away at the time. I certainly would do nothing that would weaken our safety and security.
I do not think that there are widespread cover-ups in our society but there have been a number. We have had a number of inquiries which were intended to reveal to people what actually happened when there had been a suspicion of a cover-up and what happened when there had been a cover-up. Hillsborough is only one example and there are several. The argument is not so much that we are hiding cover-ups but that we should be open and transparent. People should see that there are no cover-ups. I fear that the CMP will make people feel suspicious about the integrity of our justice system.
I would like to use many arguments to rebut what the Minister said but the hour is late. I wish to test the opinion of the House.
Clause 7 : Determination by court of applications in section 6 proceedings
Amendment 46 not moved.
47: Clause 7, page 5, line 33, at end insert “and that damage outweighs the public interest in the fair and open administration of justice”
Amendments 48 to 51 not moved.
Clause 8 : Appointment of special advocate
Amendments 52 to 54 not moved.
Clause 9 : Saving for normal disclosure rules
Amendment 55 not moved.
Clause 10 : General provision about section 6 proceedings
Amendments 56 and 57 not moved.
Clause 11 : Sections 6 to 10: interpretation
Amendment 58 not moved.
59: Clause 11, page 8, line 1, leave out subsections (2) to (4)
Amendment 59 agreed.
Amendments 60 and 61 not moved.
62: After Clause 11, insert the following new Clause—
(1) The powers under sections 6 to 11 of this Act expire at the end of the period of 5 years beginning with the day on which this Act is passed.
(2) The Secretary of State must before the end of the period of 5 years propose to Parliament that a Parliamentary select committee be established to conduct a review.”
My Lords, sunset clauses are never popular with governments and I suspect not too popular with Members of the House at this time of night either. I will accordingly not detain the House for long on this, and I do not intend to put the amendment to the vote. However, I ask the Government seriously to consider it given the magnitude of the change under whatever form this Bill now takes. Whether it rests with the amendments agreed today by your Lordships’ House or it comes back to us from the House of Commons in a somewhat different form, it is in any view still a major change in our system of justice. It is one that should be monitored as it takes effect over a period.
I hope, therefore, that the Government will, in principle, if not explicitly tonight, consider and ultimately accept that in these exceptional circumstances it would be proper to have a sunset clause to ensure careful scrutiny of the operation of these new provisions along the lines suggested in the amendment. The amendment embodies not only a period of five years, which is long enough to allow the workings of the new legislation, in whatever form it emerges, to be adequately assessed, but also requires that the process should be conducted by a parliamentary Select Committee established for that purpose.
It is not necessary for me to take up your Lordships’ time by rehearsing all the arguments that we have heard over these weeks, and particularly in the impassioned but reasoned debates that we have had today, to emphasise the concern that is widely shared within and outside this House about the operation of these new provisions. It would give some comfort to those who are genuinely concerned about the implications of the measures to know that scrutiny and monitoring would be required if ultimately a sunset clause were to be applied in the way suggested in the amendment.
I do not intend to test the opinion of the House tonight but I hope the Government will consider the amendment in the spirit of the Deputy Prime Minister’s remarks yesterday because it would complement the approach he adumbrated, the effect of which we await with interest. I beg to move.
I thank the noble Lord, Lord Beecham, for moving the amendment, which I say at the outset we are not in a position to accept. However, let me give an indication as to why sunset clauses are not necessarily appropriate here. Apart from anything else, I am trying to get my head around the idea of a sunset clause for litigation which could go over a period of time and it is difficult to think that you might have to sunset something. A case might start under a particular form of procedure and, if the sunset clause was effective, that procedure could be reverted in midstream.
There are also other considerations because this goes beyond what is proposed for the closed material proceedings we have been discussing. In relation to the case of Norwich Pharmacal, one of the primary concerns we are seeking to address is how we provide reassurance to those who give us important intelligence information so that we can protect information shared with us in confidence. A time-limited protection would undermine any reassurance we were able to give.
I apologise. Other amendments are grouped with it which I suspect have not been spoken to. None the less, the point I was making earlier applies to Clauses 6 to 11. If there was a procedure in train and the provisions were to sunset, I am not sure how that would rest.
However, I may be able to give some reassurance. The Constitution Committee did not recommend a sunset clause but said that the House may wish to consider the Bill being independently reviewed five years after it comes into force. Of course, Bills are subject to review normally some three to five years after Royal Assent, and it might be appropriate to do that should the Select Committee with responsibility decide that it wished to conduct a fuller post-legislative inquiry into the Act.
I recognise what the noble Lord, Lord Beecham, has said and it is self-evident from the debates that we have had that this is a material change. However, it is right and proper that we should leave it to the Select Committee to decide the form that the independent post-legislative scrutiny should take. That is a proper way in which this matter might be addressed.
Amendment 62 withdrawn.
63: After Clause 12, insert the following new Clause—
“Use of intercept evidence in employment cases involving national security
(1) Section 18 of the Regulation of Investigatory Powers Act 2000 (exclusion of intercepted communications etc. from legal proceedings: exceptions) is amended as follows.
(2) In subsection (1), after paragraph (d) insert—
“(dza) any proceedings before an employment tribunal, or (in Northern Ireland) an industrial tribunal, where the applicant or the applicant’s representatives are excluded for all or part of the proceedings pursuant to—(i) a direction to the tribunal by virtue of section 10(5)(b) or (c) of the Employment Tribunals Act 1996 or (as the case may be) Article 12(5)(b) or (c) of the Industrial Tribunals (Northern Ireland) Order 1996 (S.I. 1996/1921 (N.I. 18)) (exclusion from Crown employment proceedings by direction of Minister in interests of national security), or(ii) a determination of the tribunal by virtue of section 10(6) of that Act or (as the case may be) Article 12(6) of that Order (determination by tribunal in interests of national security),or any proceedings arising out of such proceedings;(dzb) any proceedings on an appeal under Article 80(2) of the Fair Employment and Treatment (Northern Ireland) Order 1998 (S.I. 1998/3162 (N.I. 21)) where—(i) the appeal relates to a claim of discrimination in contravention of Part 3 of that Order (employment cases) and to a certificate of the Secretary of State that the act concerned was justified for the purpose of safeguarding national security, and(ii) a party to the appeal or the party’s representatives are excluded for all or part of the proceedings by virtue of section 91(4)(b) of the Northern Ireland Act 1998, or any proceedings arising out of such proceedings;”.(3) In subsection (2)—
(a) in the opening words, for “(db)” substitute “(dza)”, (b) after “anything—” insert—“(zza) in the case of proceedings falling within paragraph (dza), to—(i) the person who is or was the applicant in the proceedings before the employment or industrial tribunal, or(ii) any person who for the purposes of proceedings so falling (but otherwise than by virtue of appointment as a special advocate) represents that person;(zzb) in the case of proceedings falling within paragraph (dzb), to—(i) any person who is or was excluded from all or part of the proceedings on appeal under Article 80(2) of the Fair Employment and Treatment (Northern Ireland) Order 1998, or(ii) any person who for the purposes of proceedings so falling (but otherwise than by virtue of appointment as a special advocate) represents that person;”.”
My Lords, I have a speaking note for this amendment and I will not take the risk of moving it formally because it adds a new clause to the Bill. I hope noble Lords will forgive me if I explain this quite lengthy and complex clause, although it is simple enough in its intention. It would allow intercept material to be adduced in closed material procedures in national security cases in employment tribunals.
Intercept material is excluded from legal proceedings under Section 17 of the Regulation of Investigatory Powers Act 2000, but an exception already applies in limited circumstances by virtue of Section 18 of that Act. The section lists those specialised proceedings, including the Special Immigration Appeals Commission and cases relating to terrorism prevention and investigation measures proceedings, where intercept material can be used in the closed part of the proceedings. It is the Government’s objective to find a practical way to allow the use of intercept evidence in court. Section 18 does not currently include employment tribunals, and the amendment seeks to change this. The change would enhance the effectiveness and fairness of employment tribunals, it would be consistent with the objectives of this Bill and wider government policy, and it will help protect national security. Perhaps I may take these issues in turn.
The first is consistency with the Bill and its effectiveness. By allowing intercept material to be adduced in a limited number of cases where such material may be available, the amendment would enable employers to defend claims, for example, for unfair dismissal with a broader set of evidence than is currently available. The ability to adduce intercept material in CMPs is consistent with the wider provisions of this Bill, in particular paragraph 9 of Schedule 2, which includes a provision for an amendment to Section 18 of the Regulation of Investigatory Powers Act to allow for intercept material to be admitted in any Clause 6 proceedings. This further amendment would bring employment tribunals in line with the small number of specialised civil proceedings in which the disclosure of intercept product is already permissible.
Perhaps I can now address the question of operational necessity. This amendment does not represent an academic exercise. There will be cases before employment tribunals where an employer is not properly equipped to defend its actions as it is unable to adduce the full breadth of material available. For example, there will be cases where the Government are defending a claim for unfair dismissal following the removal of a former employee’s vetting clearance. Currently, if the vetting is based on intercept material, it would not be possible to adduce that material in support of the vetting decision. The national security vetting system is designed to provide an assurance that those with access to sensitive information do not pose a security risk. It is very important that an assessment of the risk is made on the basis of all the relevant material, regardless of the source.
Where a decision is made to withdraw vetting clearance it is important to the integrity of the system that the decision can be maintained and is capable of being defended from legal challenge. Where intercept product or intelligence based on intercept is integral to the decision, its unavailability in employment tribunal findings could result in employers wrongly losing their case and an adverse impact on the national vetting system. Furthermore, departments may become reluctant to rely on information provided by the security and intelligence agencies for fear of not being able to defend decisions taken. It is also important that those bringing proceedings in employment tribunals can be confident that the tribunal has access to all the information on which a decision was made so that decisions can be properly examined.
I believe that the widening of the number of settings for a very small number of important cases in which intercept material can be considered should be welcome. I hope that noble Lords will see fit to support this important amendment. I beg to move.
My Lords, I do not dissent from the Minister’s reasoning, and indeed am grateful to him for explaining the issue. However, he has opened the door to a much wider issue that I want to touch on but not debate, because the hour is too late and this is not the Bill on which to do it.
The Minister will be aware that many noble Lords, including those of us on the Joint Committee on Human Rights, have for a long time been arguing that intercept evidence should be permissible in criminal cases as a way of bringing people to justice who otherwise cannot be brought to justice and have to be dealt with in other, less sensible ways, such as control orders, TPIMs and things like that. If the Government are so anxious to justify the use of intercept evidence in these instances, I wonder why we cannot take a step further and consider very seriously the use of intercept evidence in criminal cases where we would have a proper system of justice and where people who are guilty of offences, or thought to be guilty, could actually be brought to trial as opposed to being dealt with in the way that they are. This is a bit of a thin end of the wedge, but it is important and I would like to feel that the Government will think hard about it.
On the Joint Committee on Human Rights, we were on two occasions able to meet civil servants dealing with this, who always said to us that they were looking at it but that it was difficult. I can see it is difficult, because it is hard enough in this case and even harder in criminal cases. Will the Government consider looking seriously into the use of intercept evidence in criminal cases now that they have this as a very useful precedent?
My Lords, I will follow that by asking whether the Government are satisfied that the objections that they have told us there are to the use of intercept evidence in other cases do not apply in the case of employment tribunals. I have been listening to the introduction of this amendment, wondering whether I am in favour of it because I am in favour of the use of intercept evidence or against it because, presumably, the intercept evidence could be treated as closed material. I am rather torn on this, but the question that the noble Lord, Lord Dubs, raises is a very important one.
My Lords, I endorse my noble friend’s remarks. I touched on a similar point during Second Reading and I think other Members of your Lordships’ House have also expressed an interest in this matter. We obviously do not expect the Minister to confirm that the principle will be adopted forthwith, but it would be helpful if an indication could be given as to when the Government might respond to the interest in this that has been evident in various of our debates as this Bill has made progress through the House.
I am grateful to noble Lords for extending the scope of our debate somewhat, outside the frame of the particular Bill that we are dealing with. It raises some very interesting issues and both the noble Lord, Lord Dubs, and my noble friend Lady Hamwee got to the nub of the issue. I take the advice of the noble Lord, Lord Beecham, to perhaps not make a commitment on this issue. However, I can describe the parameters, because Article 6 of the European Convention on Human Rights, the right to a fair trial, differs between civil and criminal proceedings. In particular, the exacting standards imposed by the criminal limb of Article 6, which is at the heart of the legal difficulties for a workable IAE regime, do not apply in the context of civil proceedings.
Furthermore, the nature of CMPs—which may well be involved of course, because of the nature of the intelligence—means that legitimate national security interests, such as the need to protect sensitive techniques or capabilities, can be more certainly protected than in criminal proceedings. I think all noble Lords would understand that. The proposals in the Bill demonstrate our commitment to making progress wherever it is possible. We continue to engage with the cross-party advisory group of privy counsellors in this work.
Amendment 63 agreed.
Clause 13 : Disclosure proceedings
64: Clause 13, page 9, line 40, at end insert—
“( ) Section (Application for public interest immunity) applies in disclosure proceedings to which this section applies.”
I will be very brief. We now come to the Norwich Pharmacal issues: applications for public interest immunity. In this group there are two points to which I would like to draw the attention of the House. First, there is subsection (4) in Amendment 65, where we would exempt from open disclosure any matters that are the basis of,
“any agreement with foreign intelligence services that intelligence is shared confidentially and cannot be disclosed without the consent of the intelligence service which provided the intelligence”.
That is accepted in this amendment.
However, the amendment really seeks to say that there are certain domestic and international wrongs that should not be kept quiet or confidential. They are listed. They are matters of the utmost seriousness: genocide; murder; torture; slavery; cruel, inhuman or degrading treatment; child abuse; or,
“serious breaches of the Geneva Conventions”.
It is my contention that these matters are so serious that they ought not to be protected with confidentiality under the Norwich Pharmacal procedures, but that they should be made open and publicly known. If they are to be made open and publicly known, of course that fact in itself will possibly deter people from being involved in such criminal activities. I think that this is a worthwhile amendment. I beg to move.
I, too, feel strongly that this is an issue of some importance and I thank my noble friend Lord Dubs for raising it. I know that it is too late an hour for us to consider voting but, when these matters are taken up in the other place, I would really like this to be considered. In any consideration, one wants a judge to recognise that there are some things that basically cannot be covered even by national security or by any control principle that operates between intelligence services.
If we were to discover that there had been crimes of such an egregious nature, such as genocide, murder, torture, slavery, and all the most horrifying of crimes that we can document, and that those crimes would be covered by some kind of secrecy, that would be a source of great shame to us. That must be something that is taken into consideration when looking at ways of introducing new procedures into our courts. In the end, any consideration of such serious human rights abuses has to trump even issues of national security.
I also support this important amendment. We know that some countries that are considered to be relatively close allies of the United Kingdom have human rights records that are indescribably bad. It would be a tragedy to have a situation where we cannot take seriously these human rights violations because of the limits that are placed in the language of this Bill.
We are increasingly seeing human rights becoming a new, very important structure of international law, which perhaps encouraged such movements as the Arab spring, and which undoubtedly helped to release many people from the acts of coercion by their own governments. We have close relations, as does the United States and our other allies, with some countries with poor human rights records. When those poor human rights records enter into the area of international criminal action, of the kind described by the noble Lord, Lord Dubs, I hope that we recognise that we have an obligation as a country with a very strong record of supporting human rights to maintain that standard and record. Indeed we are basically the founder of the original European Convention on Human Rights legislation, which binds us all today. We therefore will expect the Government to look very closely at the wording of this part of the Bill before we get to Third Reading to ensure that it will not mean that such major acts of criminality will be disregarded because of our legislation.
My Lords, I thank the noble Lord, Lord Dubs, for moving this amendment. We now move on to the Norwich Pharmacal part of this Bill. I thank the noble Baroness, Lady Kennedy, and my noble friend Lady Williams for their important contribution on an issue that, going by the earlier debate, is of considerable importance with regard to human rights and serious breaches of human rights.
The noble Lord, Lord Dubs, highlighted two points: one relating to serious breaches involving, for example, torture; and the other part of his amendment that relates to the control principle. To put this in context, the approach taken by this Bill is consistent with other legislation that has been passed by Parliament. For example, in the Freedom of information Act 2000, Parliament explicitly ruled out a right to access intelligence material; and the Evidence (Proceedings in Other Jurisdictions) Act 1975 and the Crime (International Co-operation) Act 2003 provide for exemptions from disclosure of evidence into overseas proceedings where such disclosure would prejudice the United Kingdom’s national security.
First, I will indicate why limiting the protection offered by legislation to the control principle, which I think is what the noble Lord was seeking to do, does not go far enough. We appreciate that it is important that this is recognised and, of course, as has been said numerous times in our debates, it is essential that the originator of the material remains in control of its handling and dissemination. However, it is often the fact as well as the content of the sharing arrangements that needs to be protected. Certifying information as subject to a control principle agreement could reveal the fact that such a highly sensitive relationship exists. Countries may not thank us for revealing that fact, and might come under pressure to end co-operation with us.
Moreover, there are also some considerable difficulties in identifying what qualifies as control principle material, and these difficulties could lead to further uncertainty and litigation. Perhaps I might be allowed, even at this time of night, to indicate again evidence given by Mr David Anderson QC in June to the Joint Committee on Human Rights, when he discussed these practical difficulties. There may be correspondence between the intelligence services commenting on control principle material, or assessments based on a mix of domestic and foreign material, and it would often be very difficult to distinguish between them.
It is important that we respect human rights and that we take seriously human rights violations, and that we take measures to ensure that there are effective remedies available. I spoke at some length in Committee about what the Government do, both in the United Kingdom and overseas, to promote and uphold human rights. It bears repeating that the United Kingdom Government stand firmly against torture and cruel, inhuman or degrading treatment or punishment. As I indicated in a previous debate, we do not condone it, nor do we ask others to do it on our behalf.
We work on human rights around the world through bilateral contacts, membership of international organisations and development aid and assistance, and in partnership with civil society. Our efforts worldwide on combating torture are guided by the Foreign and Commonwealth Office Prevention of Torture Strategy 2011-2015. The United Kingdom is working to strengthen legal frameworks to prevent and prohibit torture, develop the will and capacity of states to prevent and prohibit torture, and help organisations on the ground to get the expertise and training they need to prevent and prohibit torture.
In recent months the United Kingdom has made its position on torture clear in public statements on countries of concern, lobbied to strengthen adherence to the convention against torture and the ICCPR, and delivered in-country training to officials of other countries on handling complaints of torture in places of detention. In addition, the Government devote significant resources overseas to combating torture. This work is often done behind the scenes, but there is also much work in providing consular assistance as well as in lobbying and capacity-building projects.
In the Norwich Pharmacal context, however, the Government believe that such disclosure is not the most effective solution to the problem. Disclosure in a single case can have far-reaching long-term effects on the United Kingdom’s national security and international relations, making it harder for the United Kingdom to act as a positive influence on human rights world wide. It is not in any way the case that we do not take these matters seriously. I hope I have indicated that there is a very extensive programme of work and commitment on the part of the United Kingdom Government to tackle torture, but we do not believe that using the Norwich Pharmacal procedure is the way in which to do that. In these circumstances, I invite the noble Lord to withdraw his amendment.
Amendment 64 withdrawn.
Amendment 65 not moved.
66: Clause 13, page 10, line 7, after “is” insert “certified”
My Lords, one of the main concerns with Norwich Pharmacal provisions is the breadth of the definition of “sensitive information” contained in Clause 13(3). Amendment 73 would confine the scope of the relevant information to that which needs to be protected. I entirely accept that it may be appropriate to expand the drafting of Amendment 73, but I am quite sure that what we have at the moment in Clause 13(3) is far too broad. I hope that the Government will be able before the Bill is enacted to consider this matter again; I hope that the other place will give specific consideration to this issue. I beg to move.
My Lords, I shall speak to our amendments on this clause, Amendments 69, 70, 71, 72 and 76. I do not wish to detain the House and I shall not press our amendments to a vote at this late stage, but there are some important issues of principle that I want to put on the record and to which I seek a response from the Minister. I hope that he can take some of the points away and consider the issues.
The purpose behind the amendments is to suggest an alternative definition for the “sensitive information” ouster of the court’s jurisdiction. The reality is that less information is being shared with the UK as a result of fears that the Norwich Pharmacal jurisdiction might mean that the UK Government were forced to disclose intelligence shared with us, thereby breaching the control principle. We have heard that from the reviewer of terrorism legislation, David Anderson, to whom the Minister referred, as well as from members of the ISC and the Government. I know that we have assurances from the US that we will never be denied life-saving intelligence, but I refer the House to the comments made on this issue in Committee by the noble Baroness, Lady Manningham-Buller, who said that that was no consolation to her, given the position that she has held. She went on:
“The nature of intelligence work is putting together information from perhaps five or six different countries and 20 different organisations—little bits and pieces of a jigsaw that, together, might save lives”.—[Official Report, 23/7/12; col. 553.]
The question of whether a UK court would ever in practice authorise the disclosure of such information has been widely debated. I do not intend to go into that tonight, because I do not believe that that is the question now facing this House.
Rightly or wrongly, the flow of intelligence to the UK has been restricted—we understand and accept that. The two questions for the House are: should the UK respond in order to deal with the concerns of our intelligence partners and, if so, what is a proportionate response? The Opposition’s response to the first question is emphatically yes; it is on the second question that I think we would have a difference with the Government; namely, whether it is a proportionate response. We take the view that any restriction of intelligence to the UK is a serious problem and we would agree with David Anderson QC who said of Clause 13 that there was “an element of overkill”. The ouster proposed by the Government reaches far wider than simply the control principle. While we recognise—there is no question about this at all—that there is a need to ensure the absolute protection of information related to our national security, this clause goes wider.
We therefore propose to restrict the definition of “sensitive information” to cover material whose publication would represent a clear breach of the control principle. We would amend Clause 13(3)(b) and (c) to refer only to “foreign” intelligence and to where that intelligence is such that it would jeopardise our national security or strategic national interests.
When we proposed similar amendments in Committee, the Minister described the practicalities, as he did just a moment ago, as being “challenging” and referred to the difficulties of being able to define and separate the two. We took note of what the Minister had to say and, as a consequence, the limitations that we propose in these amendments would retain the ouster for all the examples to which he referred.
Correspondence commenting on control principle material would presumably be covered by amended paragraph (c), which would remain an ouster for information derived in whole or in part from information obtained from or held on behalf of foreign intelligence services. That would allow for either the part of the correspondence that referred to foreign intelligence to be prevented from disclosure, or the entire correspondence, if it solely referred to that intelligence and would represent a disclosure of that information. As I understand it, that is much the same way as the original PII for certain redacted paragraphs in the court’s judgment on the Mohamed case argued.
I have read widely on this, but as far as I can see, the Government have not put forward any specific justification for an example where paragraph (d), which states,
“relating to an intelligence service”,
would be specifically required to protect the control principle information. That is a very wide definition. I suggest to the Minister that there is a clear difference between descriptive information about foreign intelligence services and the intelligence supplied by them. It is the second, not the first, that the control principle relates to and which our foreign partners are concerned could be disclosed.
We recognise that there is a need to ensure the protection of information related to our national security or strategic national interest. We would therefore retain the certification procedure by the Secretary of State where information does not qualify under paragraphs (a) to (c). In addition, we believe that there should be an absolute exemption where certification does not provide for information related to our national security or strategic national interest that is held by our intelligence service, regardless of whether it is derived from foreign or domestic sources. Our amendments therefore retain amended paragraph (a), which states that information held by a security service will not be disclosed if it is national security-sensitive in nature.
However, we propose to delete the reason for certification on the basis of subsection (5)(b), for the,
“interests of the international relations of the United Kingdom”.
We do not think that including such broad criteria can be justified on the basis of the control principle. We believe that the proposed alternative definition of sensitive information is a more proportionate response to the dilemma that the Government face. It acknowledges the clear need for cast-iron assurance to our foreign partners that the intelligence that they share with us will not be publicly disclosed and that, similarly, there should be no risk that information could be published that could in any way damage or harm our national security or strategic or national interests. It would also tighten the ouster provided in the Bill, which is drawn far wider than justifiably necessary.
I end on what I hope is a relatively humorous but serious note that David Anderson put in his evidence to the JCHR. I think that the Minister already recognises the quote that I am going to use. He said that,
“it applies to all information within the possession of the intelligence agencies. Presumably that includes the bill from Tesco for their sandwiches, to which no security importance whatever attaches”.
It is very difficult to see how that could be proportionate. As I said, we do not intend to press the amendment to a vote, but I hope that the Minister can take away some of those points for further consideration and come back with a response.
I am very grateful to the noble Lord, Lord Pannick, for moving his amendment and the noble Baroness, Lady Smith, for speaking to her amendments. There is recognition on both their parts and across the Chamber of the importance to us of information which we receive from other intelligence agencies. It is often crucial, and it is important that we can reassure them of its confidentiality. We have been trying—I acknowledge that this is the spirit in which the amendments have been moved—to ensure that there is a proportionate response to ensure that the information is protected.
There is the fundamental problem that the novel application of the Norwich Pharmacal jurisdiction, which has its origins in the intellectual property sphere of law, into the national security context has potentially been damaging to the United Kingdom's national security and international relations. As I have said, its very existence can erode the confidence of our agents and our intelligence-sharing partners that we can protect the secrets they share with us. Moreover, in the case of human agents—because it is not just information that we receive from other intelligence agencies; it is important to remember our own agents—there are real concerns of threat to life if there is a requirement to disclose. Each case that goes through the court has potential to cause damage, not just through the disclosure of sensitive information but by highlighting the risk that it could be disclosed.
In addressing the amendments moved and spoken to by the noble Lord, Lord Pannick, I will indicate that in this sphere we believe there is a need to provide certainty and to reduce the scope for litigation. The noble Lord’s suggestion of moving to a certification model, with a narrowed definition of what qualifies as sensitive information, would allow the uncertainty and damage to remain. If we do not legislate in a way which provides sufficient clarity, we could again have the difficulty that our intelligence-sharing relationships stand at risk of deteriorating.
A certificate-only approach would only partially address the concerns of our intelligence partners and of our own agents that sensitive information is at risk of disclosure under the Norwich Pharmacal jurisdiction. It might leave them with the fear that a certificate might not be upheld and that their material might ultimately have to be disclosed. That in itself could have a chilling effect on the activities of our intelligence services and our intelligence-sharing relationships. An absolute exemption therefore provides a clearer and neater protection for this material and more certainty for our partners and our own intelligence services.
I turn to the restriction of the statutory protection to identity, which seeks to define what might be the intelligence with national security concerns. The noble Lord, Lord Pannick, illustrated this by the identity of intelligence officers, their sources and capability and to control principle material alone. We believe that is insufficient, as there is sensitive information falling outside of these two categories that also requires statutory protection. That picks up the point made by the noble Baroness, Lady Manningham-Buller, that this is far too narrowly defined.
Given that the work of the intelligence services is covert, a considerable amount of material would not fall into the category of identities and capabilities but the disclosure of which could nevertheless still be very damaging. Such information includes information about operations and investigations, as well as threat assessments in relation to sabotage, espionage and terrorism, assessments of vulnerabilities of critical national infrastructure or systems, military plans, weapons systems and information on the development or proliferation of nuclear weapons overseas. It may also include operational planning and intelligence reporting, as well as material relating to national security policy and intelligence policy issues and funding, and so on. I hope that giving these examples shows that it is a much broader sphere of activity than is proposed in the amendment.
Likewise, that narrow definition can also create scope for litigation about what does and does not fall within the definition—what, for example, would be meant by the “capability” of intelligence officers? These issues alone could result in lengthy litigation, all of which would divert intelligence officers from front-line duty. The model proposed by the noble Lord, Lord Pannick, also allows no statutory protection for sensitive information whose disclosure could cause damage to the interests of the international relations of the United Kingdom. This point was also picked up on one of the latter amendments in the group by the noble Baroness, Lady Smith. The Government need to offer protection to this category of material to ensure that our international partners remain willing to talk to us in a frank way, so that we can protect and further the United Kingdom’s interests. The mere embarrassment that would be caused from disclosure of diplomatic material would be no basis to certify. Only if material would cause damage to international relations would we be able to certify.
Diplomacy does not work if diplomats cannot talk in confidence and no Government would, or should, sacrifice the benefits which effective diplomacy can offer. As an example, vital work that is done in promoting human rights is not always done in public. Talking to international partners in confidence about their human rights record is an important part of how we seek to influence that agenda. The possibility that such discussions could be made public could have serious consequences for our ability to influence. Clearly, if international partners do not trust the United Kingdom to keep advice and assessments confidential, this could have a serious impact on the United Kingdom’s interests in the fields of human rights co-operation—as well as on consular assistance, trade and investment, and jobs, to name just a few other implications.
The noble Baroness, Lady Smith, proposes adding after,
“held by an intelligence service”,
“where that information relates to national security or the interests of the United Kingdom”.
We do not believe that that is the right approach. The Freedom of Information Act, which I referred to earlier, does not try to exclude those agencies from the operation of the Act only in so far as they hold information relating to national security. Rather, it excludes them from the Act as a whole in recognition of the fact that, as far as the agencies are concerned, their entire function and raison d’être is to do with national security and necessarily the information they hold is connected with that. The Security Service Act 1989 and the Intelligence Services Act 1994 both make express provision that the heads of those organisations are to make arrangements to ensure that no information is obtained by their agency,
“except so far as is necessary for the proper discharge of its functions”.
I am concerned that adding the wording suggested might only confuse the matter and give further opportunity for unnecessary litigation. We have heard about the canteen menu, and I think the noble and learned Lord, Lord Falconer, referred to someone who had slipped on the floor and wanted to sue the cleaners. I do not think those examples have so far been used in Norwich Pharmacal to get information out of the security services. If that were the issue, there are many other ways that that information could be sought. We are talking about far more serious information, and I do not think that is being challenged.
The noble Baroness said that she could not find anywhere where the Government had said what they might mean by,
“relating to an intelligence service”.
The Opposition propose removing the clauses that protect information relating to an intelligence service and information obtained from or held on behalf of one of our own intelligence services, as opposed to a foreign intelligence service, or information derived from such material. Sensitive information that would not be afforded statutory protection under these amendments includes sensitive intelligence material held by, say, the Home Office, that has been passed to it by the Security Service in support of executive action, for example, deportation on national security grounds or a TPIM notice. It would also include intelligence the Security Service shared with the police in counterterrorism operations, the disclosure of which would readily compromise those operations in either preventing a terrorist attack or bringing terrorists to justice. Work done in other government departments on national security policy and intelligence policy, which relates to the intelligence services, would not be protected if the “relating to an intelligence service” clause were removed.
The Government have reflected on the constructive analysis and considered comment in the legislative period to date. Picking up the point made by the noble Lord, Lord Pannick, I have no doubt that it will be considered further when this Bill goes to another place, but we have concluded, so far, that in the Norwich Pharmacal context, we need to provide absolute exemption for intelligence services information and certification for other sensitive information, the disclosure of which would be damaging to national security or international relations. Only by this can we provide the clarity required to enable the UK to protect its sensitive information in cases of third-party wrongdoing and to restore the confidence of our intelligence-sharing partners and our own security and intelligence services.
I have tried to outline some of the responses to what I appreciate are constructive approaches to what we all agree is a difficult issue. I hope I have explained why the Government resist these amendments, and I hope the noble Lord will withdraw his amendment.
I am very grateful to the noble and learned Lord. I recognise the difficulty of defining with precision what information should be covered. I maintain the position that Clause 13(3) does not do a very good job of it. I suggest that the Minister and the Bill team would benefit considerably by having a word with the noble Baroness, Lady Manningham-Buller—although not tonight. At some stage, perhaps they could discuss a way of improving what is a very unsatisfactory Clause 13(3), but for the moment, I beg leave to withdraw the amendment.
Amendment 66 withdrawn.
Amendments 67 to 76 not moved.
Clause 14 : Review of certification
Amendments 77 to 82 not moved.
Amendments 83 to 86 not moved.
Schedule 3 : Transitional provision
87: Schedule 3, page 19, line 33, at end insert—
“( ) Sub-paragraph (1) does not apply to rules of court in relation to proceedings before the Supreme Court.”
Amendment 87 agreed.
88: Schedule 3, page 20, line 25, at end insert—
“3A (1) An order under section 15(2) may, in particular, make provision about the application of section 12, and paragraphs 7, 8 and 10 of Schedule 2, to any direction or decision of the Secretary of State which—
(a) is of a kind falling within section 2C(1)(a) and (b) or (as the case may be) 2D(1)(a) of the Special Immigration Appeals Commission Act 1997, and(b) was made before the section 12 commencement day.(2) Provision of the kind mentioned in sub-paragraph (1) may, in particular, provide for—
(a) the Secretary of State to certify under section 2C(1)(c) or (as the case may be) 2D(1)(b) of the Special Immigration Appeals Commission Act 1997, on or after the section 12 commencement day, any direction or decision falling within sub-paragraph (1),(b) the termination of any judicial review proceedings, or proceedings on appeal from such proceedings, which relate to a direction or decision which is so certified (whether such proceedings began before, on or after the section 12 commencement day).(3) In this paragraph “the section 12 commencement day” means the day on which section 12 comes into force.”
My Lords, noble Lords will know by now that Clause 12 of the Justice and Security Bill amends the Special Immigration Appeals Commission Act so that the commission—SIAC—is able to consider applications to set aside exclusion or naturalisation decisions, which have been made on the basis of sensitive material.
Currently, we have a rather unsatisfactory arrangement whereby the only course of action open to an individual who wishes to challenge the decision to exclude them from the United Kingdom, or refuse to allow them to naturalise as a British citizen, is to seek judicial review. The problem is that our High Court does not have the capacity for closed proceedings. Where the decision in question has been made by the Secretary of State on the strength of sensitive evidence, the court cannot consider it. The JR claim is therefore stymied, to the satisfaction of neither party, nor to the interests of justice.
In the case of AHK, the High Court called upon Parliament to remedy this situation through legislation; hence, Clause 12. The Joint Committee on Human Rights has also supported this approach. The amendments before the House are intended to ensure a tidy transition from the old arrangements, towards the new arrangement in which SIAC will consider the application to review decisions such as these.
First, there is a jurisdictional matter relating to the United Kingdom’s Crown dependencies. Officials in the Isle of Man and Channel Islands have requested the power to extend the provisions in Clause 12 to their own territories by way of permissive extent. Accordingly, we should allow for these sections of the Bill to be so extended, with or without modification. The Government and our friends in the Crown dependencies are quite sure that we would not want inadvertently to create a loophole on the Isle of Man or Channel Islands whereby justice is done differently from the UK mainland.
These amendments also propose that the Bill’s rule-making power shall include provision for “transitional” exclusion and naturalisation cases. The Government are keen to allow for a seamless and fair transition from old arrangements to new. It would not do to have a two-tier system in operation, in which judicial review proceedings already before the courts would continue to be heard in the imperfect setting of the High Court, while decisions made after the commencement of Clause 12 would benefit from being heard in SIAC. There are a number of JRs already on the books of the High Court, with judges unable to consider key evidence on which the Secretary of State’s decision was based. Accordingly, it seems right and proper that, in these cases, the claimant be given an opportunity to apply to have their case heard afresh in SIAC, where a decision can be made that takes into account all of the relevant evidence.
There will also be a number of cases in which, for instance, a decision has been made to exclude someone shortly before the commencement of Clause 12, leaving them a window of opportunity for applying for a JR which runs over into the new arrangements. It would be untidy to allow these claims to be considered in the High Court, and would create a two-tier system. It would be preferable for the Secretary of State to be able to certify material as sensitive on or after commencement, thereby transferring the venue of redress to SIAC. I should add that the amendments will allow for the rule-making power to take effect—commence—from the day that the Bill receives Royal Assent. This is consistent with the rule-making power already set out in the Bill.
These amendments, while not altering the fundamental purpose of Clause 12, will ensure that we are fair when offering individuals a suitable avenue of redress in respect of decisions that have been made against them, and will eliminate the possibility of inconsistency as to how we go about that. I beg to move.
Amendment 88 agreed.
Clause 16 : Commencement, extent and short title
89: Clause 16, page 12, line 4, leave out from beginning to “come” and insert “The following provisions—
(a) section 1 and Schedule 1, (b) sections 2 to 14,(c) section 15(1) (except so far as relating to paragraph 3A of Schedule 3),(d) Schedule 2, and(e) Schedule 3 (other than paragraph 3A of that Schedule),”
Amendment 89 agreed.
Amendment 89A not moved.
Amendments 90 to 92
90: Clause 16, page 12, line 7, at beginning insert “The following provisions—
(a) section 15(1) so far as relating to paragraph 3A of Schedule 3,(b) paragraph 3A of Schedule 3,(c) ”
91: Clause 16, page 12, line 9, leave out “subsection (4)” and insert “subsections (4) to (4B)”
92: Clause 16, page 12, line 17, at end insert—
“(4A) Her Majesty may by Order in Council provide for section 12 and paragraph 7 of Schedule 2 to extend, with or without modifications, to any of the Channel Islands or to the Isle of Man.
(4B) An Order under subsection (4A) may, in particular, include (with or without modifications) transitional provision of the kind permitted by paragraph 3A of Schedule 3.”
Amendments 90 to 92 agreed.
In the Title
93: In the Title, line 3, leave out “provide for” and insert “make provision about”
Amendment 93 agreed.
House adjourned at 11.21 pm.