Justice and Security Bill [HL] — Report (2nd Day)

Part of the debate – in the House of Lords at 5:00 pm on 21 November 2012.

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Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat 5:00, 21 November 2012

My Lords, I accept that my noble friend the Minister has an acutely difficult task in dealing with this part of the Bill and with these amendments. I do not think that anybody in this House pretends otherwise. Balancing national security against individual liberty and due process is judgment-of-Solomon stuff. However, I concur with the virtually unanimous voice of those who have said that there is a want of balance and proportionality in the arrangements in this part of the Bill.

In particular, I support Amendment 36. I will not repeat what others said very well, but I will draw the attention of the House-and perhaps of some beyond the House-to a very plangent example of the failure of the Bill to balance as it should the two competing issues. As was explained, Clause 6 requires a judge-it is not discretionary-to grant an application for a closed material procedure if,

"disclosure would be damaging to the interests of national security".

There is no qualification of "damaging". There is no talk of "substantial" or "significant" damage. As it stands, a judge would have to grant such an application if the damage were marginal or even trivial. That is why it is essential to agree Amendment 36-and Amendment 37 with it-and some other amendments in the group that would ensure that no judge was put in the difficult, highly undesirable circumstance of having to grant a closed material proceedings application in circumstances that, on any common-sense basis, would not be warrantable.