Schedule 4 - Proceedings relating to terrorism prevention and investigation measures

Terrorism Prevention and Investigation Measures Bill – in a Public Bill Committee at 2:00 pm on 30 June 2011.

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Question proposed, That the schedule be the Fourth schedule to the Bill.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

I am tempted to embark on a long explanation of why I have fundamental problems with the whole approach to special advocates. Problems are introduced into our legal system when an advocate knows information but cannot adequately discuss it with the person they represent. The situation raises issues about whether there is an adequate brief and an adequate right to law.

In the interests of time, however, I will truncate my comments—I made similar ones on Second Reading, and Members will be familiar with my concerns. I accept that there has to be some mechanism to deal with such intelligence, but I am very concerned about this one. I do not want to reopen the entire row, however, so it will be helpful if we can move on from it.

I continue to be concerned about the system, and we also heard such concerns from special advocates. I will not read all their evidence back into the record, but they made a few specific suggestions. In the briefings we received, there were interesting points about having a bit more flexibility on their ability to communicate with their client about such things as the timing of meetings. Even if the Minister will not suddenly change the Government’s entire line on special advocates, I hope that he will look carefully at their suggestions and see if any can be accepted. The Home Office report stated that there would be a review of such evidence, and I believe that a Green Paper is coming. It will be helpful if the Minister can tell us where we are so that we can take a measured step away from the use of special advocates and secret evidence, whenever we can avoid using them.

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department

I am conscious that I did not address a point highlighted about clause 18 by my hon. and learned Friend the Member for Sleaford and North Hykeham. Section 6 of the Human Rights Act 1998 provides that public authorities must act in a way that is compatible with the European convention on human rights. That law is generally applicable, so there is no need to make additional provisions to that effect in the Bill. Indeed, the advice that I have received suggests that unnecessarily repeating provisions in such a way is “poor drafting practice”.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

I might regret making this intervention, but I note that such a provision is written into schedule 4, although I hope that will not be taken out due to poor drafting practice.

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department

I hesitate to question in any way the approach taken by parliamentary counsel, but I hear my hon. Friend’s point.

My hon. Friend tries to draw together the separate points of special advocates and closed evidence. Focus has, quite reasonably, been attached to the issue. The Government are carefully considering how closed or secret evidence may apply. As my hon. Friend is aware, the case of AF (No. 3) related to what was considered to  be a stringent control order. In such circumstances, controlled individuals must be given sufficient information about the case against them so that they may give effective instructions to their special advocate. That, in effect, means that such individuals must be given the gist of the key allegations against them. The High Court judge reviewing each case will decide on the disclosure required to allow a fair trial in such circumstances. The rules will provide that it is the court, not the Government, that decides whether material may be withheld.

If the judge concludes that certain material must be disclosed to allow a fair trial, even if that disclosure would be damaging to the public interest, the Secretary of State must either disclose it, or withdraw it from the case, meaning that the material could not be relied on. It is true that that would not necessarily involve the individual knowing the detail or the sources of the evidence that forms the basis of the allegations against them. The Law Lords ruled that that was not necessary to meet the requirements of a fair trial in such cases.

There are clear reasons why it would not be in the public interest to disclose all information, such as if the information came from an informant who might be put at risk, or if it was obtained using an investigative ability that might be compromised. The Law Lords, however, were equally clear that the requirements of a fair trial would not be satisfied if the case was based solely or mostly on closed material while the open material consisted purely of general assertions.

Paragraph 5 of schedule 4 expressly provides that nothing in this rule-making provision, or in the rules of the court made under this provision, is to be interpreted as requiring the court to act in a way that is inconsistent with article 6, so that reflects the case law that has developed with control orders.

Broader issues are being examined in the context of the Green Paper, because this is a sensitive area that requires careful and close consideration. A Green Paper will be brought forward shortly. It will no doubt have further focus and attention attached to it. I hear the points that my hon. Friend makes, but this requires careful and close consideration.

Photo of Paul Goggins Paul Goggins Labour, Wythenshawe and Sale East

The casual reader of our proceedings might see that this part of our consideration was a fairly short exchange between the Minister and one of his colleagues, but in fact, as the Minister has just underlined, this is one of the most important issues on control orders and much else besides. His confirmation that work continues on the Green Paper is welcome. It should be understood that Opposition Members recognise the importance of that and the need for all parties to work together to seek a solution to a difficult issue.

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department

I appreciate that comment, because I know that the right hon. Gentleman and the right hon. Member for Salford and Eccles are seized of the issue. They understand, and are knowledgeable of, some of the challenges that arise with the use of the closed material. That is why careful consideration is being applied around the operation of these matters, and it is why the Government will be bringing forward a Green  Paper to consider them further and to set out more thoughts and approaches on this sensitive issue. Following on from my previous comments in the context of the AF (No. 3) case, a number of challenges and issues arise—

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department

I give way to the right hon. Lady because I am sure that she has an important point to make.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

I am grateful to the Minister for giving way and for putting on record the effort that is being made across the Government to reach the right settlement for the protection of secret information. This is another occasion when we all wish that we do not have to be in this territory. We all want evidence to be tested in open court so that a jury is able to hear it and reach a verdict in our conventional legal system. Unfortunately, in some circumstances, we must have a special advocate procedure.

The Minister will have talked to ministerial colleagues in Europe and other jurisdictions who are struggling with exactly the same problems, so it is not the case that we have a particularly illiberal system for secret and closed information. I say to all Government Members that these are very difficult issues. No one wants to be in the realms of closed sessions without defendants knowing what is being put against them, but we have to balance with that the protection of not only our own intelligence, but that from other sources, on which we rely enormously to try and keep our country safe. I am grateful for the Minister’s comments.

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department

I reciprocate by thanking the right hon. Lady for her comments. She is right that none of us wants to deal with the very delicate issues that have arisen in connection with closed material. That is why great care is being taken and careful consideration is being given to these matters.

Given that such consideration is ongoing, I hope that Committee members understand that it is difficult for me to give them a more substantive reply. I am sure that the Green Paper will provide further context and detail so that the debate and discussion that has started in Committee today can continue. I welcome and greatly appreciate the Opposition’s wish to work constructively on these matters.

The issue is complex and it raises a number of connected matters on which we must take a balanced view. When the Green Paper is published, I hope that we can engage in further consideration of these sensitive, significant and wide-ranging issues that we have discussed in the context of schedule 4.

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

In the light of the Minister’s comments, I wish to ask him a specific question. Why, in the context of paragraph 3(1), is it contemplated that the Secretary of State must make only standard disclosure? Why is there no provision to suggest that, at least on application, wider disclosure might be appropriate? Perhaps the Minister cannot answer that question now and will inform us in the future, but the point may need to be addressed.

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department

I suspect that the question that my hon. and learned Friend understandably asks is wrapped up in the broader debate on the use of evidence. He will understand that the concept of the duty of candour also applies. Some broad and sensitive issues arise, so we will take those forward in the context of the Green Paper that will be published shortly.

Question put and agreed to.

Schedule 4 accordingly agreed to.