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.
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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.