Lord Marks of Henley-on-Thames:

Moved by Lord Marks of Henley-on-Thames

74: Clause 36, page 26, line 5, leave out “in the interests of national security” and insert “for the administration of justice, having regard to the risk to national security”Member's explanatory statementThis amendment is based on a recommendation from the JCHR. It ensures this Clause better complies with the right to a fair trial and the administration of justice.

My Lords, I move Amendment 74 on behalf of my noble friend Lady Ludford. It is a very simple amendment which relates to Clause 36 and the power to exclude the public from proceedings. At the moment, the clause reads:

“If it is necessary in the interests of national security, a court may exclude the public from … any part of proceedings … under this Part, or … any part of proceedings relating to section 69A of the Sentencing Act 2020”,

which relates to the aggravating factors in sentencing so that we are concerned only with criminal proceedings under the Bill. The JCHR has recommended that the interests of justice take primacy over the interests of national security by substituting

“in the interests of national security” with

“for the administration of justice, having regard to the risk to national security”.

The justification for that is that, when one is considering the exclusion of the public—which the JCHR has recognised as being of great importance—the interests of justice should take primacy. Of course, if the interests of national security are in conflict with what might normally be seen as the interests of justice, it is likely that the interests of justice will be served by giving way to the interests of national security. However, it is entirely wrong that the interests of national security should be the only interests mentioned in Clause 36, and this was the view taken by the JCHR—that the interests of justice should be mentioned first.

May I say a word or two about the Government’s approach to the recommendations of the Joint Committee on Human Rights? We sometimes feel on this side of the House—and I suspect in a great many quarters—that the recommendations of this objective, well-informed and impartial committee, which is appointed to consider the compliance of proposed legislation with human rights law and principles of human rights, is given far too little shrift by government. We would be very pleased to see a change in that approach, so that recommendations which are very carefully drawn up and researched, and usually in very modest terms, are properly respected. There is a fear that they are routinely disrespected on the basis that the Joint Committee is seen as an arm of the so-called human rights lobby, and treated with something like the Rice-Davies approach of, “Well, they would say that, wouldn’t they?”

That is frankly inappropriate. It is a criticism that is being felt more and more strongly and one that is surprising in light of the fact that many on the Government’s side of this House and the other place are broadly opposed to the continuation of our adherence to all the points of the European Convention on Human Rights. They justify that opposition by reference to the view that the common law and Parliament will always be there to defend human rights, but if the Joint Committee’s recommendations are given such short shrift, there can be little confidence in that assurance.

I accept that that is a digression, but it is an important digression, because my noble friend Lady Ludford’s amendments are directed to the recommendations of the Joint Committee on Human Rights and it is something I hope Ministers will bear in mind. I beg to move.

My Lords, I was not planning to speak on this fairly narrow amendment. The noble Lord, Lord Marks, made all the points relative to the amendment itself. However, it is worth just endorsing his closing comments about the view of the Opposition and Liberal Democrat Benches that the Government are paying too little attention to the recommendations of the JCHR. It appears to be a hurdle to overcome to get over those recommendations. This is a good example; many of the recommendations made are very minor. I just wanted to endorse the point the noble Lord made about the importance of this committee’s work.

I thank the noble Lords, Lord Marks and Lord Ponsonby, for their remarks. Turning first to the subsidiary point in respect of the importance of the reports of the JCHR, I can certainly assure all in the House that the JCHR reports are taken very seriously by the Government and all the recommendations are appropriately considered. I can say that, as a human rights lawyer myself, I fully appreciate the importance of the human rights considerations and the very valuable work done by the committee. I hope my remarks go some way to assuage the concerns that were outlined.

I turn now to the substantive amendment tabled by the noble Baroness, Lady Ludford. This clause replaces Section 8(4) of the Official Secrets Act 1920 and in so doing makes it more explicit that the exclusion of the public from proceedings must be necessary in the interests of national security. The Government consider that the approach taken in the drafting is appropriate given the highly sensitive nature of the material that may be required to be considered during court proceedings in relation to offences under the Bill. It is important to note that the decision to exclude the public from proceedings is taken by the court on application by the Executive, who are well placed to set out the risk to the courts. We consider that the judiciary is already well placed to assess the impact of any such decision on the administration of justice.

The words that this amendment seeks to add are, with respect, unnecessary. In England and Wales, for example, the Criminal Procedure Rules 2020 would apply in such proceedings which already have as their overriding objective that criminal cases are dealt with justly. Therefore, those rules require a court to have regard to the importance of dealing with criminal cases in public and the overriding interests of the administration of justice when determining whether to exclude the public from any part of proceedings. It is clearly right that this clause notes and provides the court with a clear basis upon which to exclude the public on grounds of national security, and that is all that this clause does. For those reasons, the Government cannot therefore accept the proposed amendment and I therefore invite the noble Lord to withdraw it.

My Lords, I shall look carefully at the Minister’s response. For the time being I will certainly seek leave to withdraw the amendment. There may be room for further discussion—there may not. I accept that the overriding objective applies to criminal cases and to dealing with cases justly, but as regards whether it is not sensible that that should take primacy by a special mention in the Bill I am unconvinced at the moment. However, I will read what the noble Lord had to say. I therefore beg leave to withdraw the amendment.

Amendment 74 withdrawn.

Clause 36 agreed.

My Lords, I propose that the Committee adjourn for 10 minutes until 9 pm to accommodate a technical issue.

Sitting suspended.