My Lords, in rising to support this Bill I confess to a particular interest in the legislation. Many years ago—although not quite as long ago as the noble and learned Lord, Lord Woolf—as Treasury Counsel I was required to advise and act for the Government in national security, public interest immunity cases. For six years after the passage of the Regulation of Investigatory Powers Act 2000, I was the Intelligence Services Commissioner responsible for retrospective judicial oversight over the various intelligence agencies. For considerably more years than that, I have been involved, as a member of the court, in most of the national security cases that came before us, including the control order cases and the expulsion cases like that which sought to return Abu Qatada to Jordan, on which the litigation still continues. The Al Rawi case relating to Guantanamo Bay, although it was settled before it came to us, came on the issue of principle which was whether, as a
matter of common law, the courts could order a closed material procedure. The majority of us held not. We held that only Parliament could sanction so fundamental a departure from the principle of open justice. Hence Clause 6 is now before us.
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The principle of open justice is, as we all acknowledge, of the highest constitutional importance. It is rightly regarded as lying at the very heart of the object of fair trials. Ordinarily, closed procedures—or, as colloquially known, secret hearings—are simply not to be countenanced. There are those who argue that nothing—no countervailing interest whatever—can ever justify any encroachment upon that prized, sacrosanct principle. The noble Baroness, Lady Kennedy of the Shaws, said this on Report. Dinah Rose and Philippe Sands, both distinguished Silks, said it recently when they resigned from the Liberal Democrats at their spring conference. Shami Chakrabarti, the director of Liberty, said it three weeks ago at Lincoln’s Inn in a debate with Ken Clarke, which I attended. I have the greatest respect for all of these, but I am convinced that in the tiny minority of cases which have been identified by David Anderson, the independent reviewer of terrorism legislation, as cases to which this legislation will apply such an absolutist approach is wrong. The apparent purity of this approach must yield to the imperative needs of national security. The absolutists contend that, where national security precludes the Crown from disclosing the documents that are needed for the defence, the Crown must simply pay up. In a judgment in a case called Tariq, which we heard together with the Al Rawi Guantanamo cases, I described that contention as “wholly preposterous”. I stand by that and that is now the view of the majority of both Houses.
The remaining question is just when this proposed new statutory power to hold closed hearings should be permitted and, more particularly, what safeguards should be included in the legislation to ensure that it is used only in this tiny handful of cases where a closed hearing is absolutely essential for justice to be done. I agree that this Bill has, happily, been hugely improved from when it was last before the House. It has clearly been conceded that the decision in these cases is for the judge and not the Minister. Consistent with this, the legislation now gives the judge a clear discretion: the original word “must” is now “may”. In these circumstances, the Government now suggest that no more is needed. I readily recognise and acknowledge that that view could be taken but in my judgment it should not be and I join with those who urge the contrary.
This legislation involves so radical a departure from the cardinal principle of open justice in civil proceedings, so sensitive an aspect of the court’s processes, that everything that can possibly help minimise the number of occasions when the power is used should be recognised and should appear in the legislation itself. These two amendments each serve an important purpose. The first—what is called the last resort amendment—reminds the judge that there may be other possible, less objectionable ways of meeting the needs of those, generally the Crown but sometimes the claimant, who
seek to rely on evidence, whether oral or written, which in the vital interests of national security cannot be adduced in open court. I am not referring here, principally, to public interest immunity claims. I am no great enthusiast for public interest immunity. Generally, a successful PII claim precludes the material being used at all, which surely is an even worse option than a closed material procedure. In any event, as has been pointed out, the PII exercise can itself on occasions be quite ridiculously laborious.
In our judgments in Al Rawi we recorded, as the Minister observed, that the claims there were said to involve up to 250,000 potentially relevant documents, of which up to 140,000 might give rise to national security considerations, so that a conventional PII process could take 60 lawyers dedicated to working on the documents upwards of three years to complete. I am certainly not advocating that judges should ordinarily or routinely require the Secretary of State to go down that route—plainly not. Sometimes, no doubt, public interest immunity might be appropriate but I am mainly considering here the judge’s powers to order as necessary other, lesser solutions to the problem: the redaction of parts of documents; the gisting of material; the summarising of evidence; or, with regard to oral evidence, the witnesses appearing from behind screens or perhaps anonymously—things of that sort.
Amendment 6B would ensure that the judge strikes a balance. There may be occasions when, although national security is judged to be at risk, it is nevertheless better to take that risk than to allow a secret hearing. National security, everybody agrees, cannot be defined but by its nature the risks to national security can vary, and considerably. Sometimes they may be truly grave and simply insupportable; at other times, realistically not. Sometimes the danger may threaten the lives of thousands, perhaps with a real likelihood of the risk developing were the material to be allowed to go into the public domain. At other times, the risk may in fact be comparatively small; perhaps the revelation of a minor detail of some little used capability of an intelligence agency. Quite possibly, it will be something of which terrorist organisations already know. Remember, there is a real public interest in the fair and open administration of justice, and a real downside to going into closed session.
As we noted in Al Rawi, the dismissal of a claim after a closed hearing may prove something of a Pyrrhic victory for the Crown. It may at the same time fail to vindicate the Crown’s reputation yet damage significantly the reputation of the court itself. The judge may therefore decide, although I recognise only very rarely, that a small risk to national security is a less bad option than a departure from open justice.
To conclude, closed hearings are of course a price worth paying in a tiny handful of cases that cannot otherwise be fairly tried at all—cases where either the Crown or the taxpayer simply pays up—or where, in an equally unpalatable option, the claim must be struck out as not fairly triable at all, but those cases must be kept to an absolute minimum. It may be doubted whether any particular case will in fact be decided differently, whether or not these amendments pass. However, on this highly sensitive issue—one
which rightly exercises innumerable people up and down the land—these amendments would send out important salutary messages. They would demonstrate to the wider world that the House is truly alive to the critical importance of open justice as a guiding principle of our law. We ought not too readily to give our approval to secret hearings and if, as I hope, the House divides, I for one shall vote for these amendments.