In the Guantanamo Bay cases, which provoked the need to address the law and bring forward this reform, the court would have had to consider about a quarter of a million documents before determining the PII application and moving to a CMP. It would have had to consider a

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quarter of a million documents before moving beyond a preliminary issue. When I was Home Secretary I certainly issued PII certificates for intelligence material. In the arms to Iraq inquiry, I am glad to say that the judge confirmed that I had done what I was supposed to do: I had read every document—they were brought to me in boxes and put on the floor and required a whole day to consider. The Guantanamo cases would have required a full-time Minister to do nothing but wade through the PII certificates for months and months before the application could be made and further progress could take place. In some cases, the delay of going through that process could have detrimental impacts on other people affected by the issues in the case awaiting judgment.

Equally, all parties might consent to a closed material procedure. If they consent, should the judge still be required to go through the time-consuming PII process? In the Maya Evans case, all parties consented to a closed material procedure as the only way to try the issues. The ruling in that judicial review case, which was with special advocates, changed Government policy on detentions in Afghanistan, directly affecting ongoing Government actions. Delays in that case to consider alternatives to closed material procedures could have meant that more individuals were exposed abroad to a policy that the court ultimately concluded was unlawful.

I will give an indication of why I will not give a blanket assurance that we will accept all the House of Lords amendments. I do not think that the problems were properly considered, and we will bring forward the products of our thinking in Committee. As I have said, we continue to debate the powers the judge should have once a closed material procedure has been granted. Under the Bill, the court will have strong powers to require gisting, redaction and summaries. In particular, the Bill sets out—it is probably unnecessary—that to ensure a fair trial under article 6 of the European convention on human rights, the court can order disclosure of material notwithstanding the damage that would be caused to national security. In that situation, in order to disclose, the Government would have the opportunity, as they currently do under PII, to seek to bring an end to proceedings, or an aspect of proceedings, in order to avoid damage to national security. If the Government do not disclose material or elect not to provide a summary of material, the court can order the Government not to rely on it or to make concession or such other steps as the court might require.

In brief, the Bill leaves it to the judge to decide what is necessary in any particular case, rather than seeking to impose disclosure requirements or to fetter the judge’s discretion in deciding whether to have a closed material procedure. I think that we should reflect on that in Committee. Let us not go into Committee with everyone saying, “What the Joint Committee on Human Rights has said is necessarily right and we will support the Bill so long as we sign up to that.” I think that some of the JCHR amendments raise serious issues that should be debated properly in this House and which the Government must be allowed to exercise their judgment on before reaching a final decision.

Guy Opperman (Hexham) (Con): I conducted in excess of a dozen PII trials as a criminal barrister. Does the Minister accept that there is a fundamental difference between what he is proposing and the procedures under PII?

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Mr Clarke: Yes, because we want a process whereby the judge can hear the evidence of the intelligence agencies in a closed—secret, if one likes—process, and that is not the purpose of PII. PII is a very old process that has developed over the years from simple beginnings, and I imagine that in the early cases—before my time—it was probably rather straightforward: if a Minister said he wanted public interest immunity, it was granted. The findings of Lord Justice Scott in the arms to Iraq inquiry —not at my expense, I am glad to say—rather upset that approach. PII is of course used flexibly in proper cases because judges and lawyers all want to hear evidence in open court whenever possible, but I think that we need to update all this. We are not abolishing public interest immunity, but I think that in many cases extending closed material procedures, which is what we are proposing, would be an altogether more sensible way of getting a proper judgment in the case.

Let me turn to the provisions of the Norwich Pharmacal jurisdiction.

Hazel Blears: I want to tease out the right hon. and learned Gentleman’s view on the balancing test, which is part of the House of Lords amendments. At the moment there is a test stating that the judge, when deciding whether closed material procedures can be applied for, has to balance the degree of harm to the interests of national security with the public interest in the fair and open administration of justice. Balancing tests are notoriously difficult. One of the main problems with the Chahal case, which led to significant issues for this country’s national security, was whether the balancing test was in the right place, and most of us felt that it was not. If we are to have a balancing test in the legislation, it is in the part about whether proceedings are suitable; it is not in the part about when an application can be made. We need some clarity on the Government’s position with regard to the balancing test, because clearly the interests of national security are not always equivalent to the interests of an open proceeding, and that is a difficult balance to strike.

Mr Clarke: The balance is indeed difficult to draw. We have debated the balancing test on various occasions and in the past I have rather resisted it because it gives rise to the possibility of the judge saying, “Oh yes, there is a risk to national security. What a pity, never mind. I wish open justice to be done, so let’s take a chance with national security.” That is probably a somewhat broad-brush piece of opposition, and we are reflecting on the issue. The proper response to the right hon. Lady’s entirely sensible and pertinent question is probably best given in Committee, when we will have had more time to decide the position.

The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire) indicated assent.

Mr Clarke: My hon. Friend is nodding; he will be presenting our reactions.

“Norwich Pharmacal” is the phrase used by lawyers to describe a process that grew up in the sphere of intellectual property law, in which someone is enabled to apply for the disclosure of evidence—documents, usually—relevant to a claim that they are making. It is used to force a third party who is mixed up, however

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innocently, in suspected wrongdoing, to disclose information that a claimant feels may be relevant to a case that they are bringing in some other jurisdiction, usually abroad.

In 2008, as a result of ingenious arguments, the Norwich Pharmacal principle was extended to national security law. The purpose of proceedings under the principle now is for people involved in a legal process of some kind, usually overseas, seeking to obtain disclosure of intelligence material in the hands of the British Government.

As the purpose of the proceedings is only disclosure—no other judgment is being sought—the Government do not have the option to withdraw from or settle proceedings; if the judge orders disclosure, there is no option but for the Government to release the secret intelligence. That has given rise to understandable fears that if a person shares information with the British Government’s agencies, British judges have the power to order the release of some of it and that person cannot be certain of being able to resist that.

There is no point in my setting out obvious platitudes about the nature of intelligence work. If intelligence agencies are not able to guarantee to their sources, be they friendly overseas Governments or agents, that they can keep secrets, people will not share so much information with them. Lives will literally be at risk in some cases as will international co-operation on such vital issues as torture prevention and human rights.

Mark Field (Cities of London and Westminster) (Con) rose—

Mr Clarke: I will give way and then seek to persuade the House that those fears are not fanciful or false; the problem is happening now.

Mark Field: I thank my right hon. and learned Friend for giving way. I entirely agree; he has admirably put forward the concerns about Norwich Pharmacal and the historical accident that has arisen as far as national security cases are concerned. Was he not tempted, therefore, simply to exclude Norwich Pharmacal matters from national security—in other words, make it absolutely clear through Parliament that the Norwich Pharmacal arrangements should be regarded narrowly as being available only in intellectual property cases and should not apply to national security matters? Is he not taking us down a rather more convoluted route in the Bill?

Mr Clarke: The practical effect of the Bill is exactly as my hon. Friend recommends, although it may have been drafted with a few too many provisos and provisions because of the deep suspicion with which these things are regarded. Essentially, however, we do not think that Norwich Pharmacal should apply to intelligence material provided in confidence to the British security services.

I will not take too long on this because the argument is perfectly straightforward, but I want to tell the House that these are not false fears. Over the past year, we have picked up concerns from human agents. They have always been concerned about the degree to which their relationships can be protected, of course, but they are now becoming really concerned about disclosure to the British courts. Sir Daniel Bethlehem, a former legal adviser to the Foreign Office, told the Joint Committee on Human Rights that the flow of intelligence from the

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United States was being limited. He said that he did not want to exaggerate, but the point was that the trust of the United States had been weakened and that trust needed to be restored.

[Official Report, 8 January 2013, Vol. 556, c. 3MC.]

Arguments tend to break out as to whether agents have any reason to be fearful, but that is not totally the point. As long as, as a result of hearing about the extraordinary process called Norwich Pharmacal, other intelligence agencies and our agents think that there is always a risk of disclosure by the British courts, the damage is done. To follow the point made by my hon. Friend the Member for Cities of London and Westminster (Mark Field), what on earth are we running that risk for?

Sir Malcolm Rifkind (Kensington) (Con): In support of what my right hon. and learned Friend has just said, I should say that the Intelligence and Security Committee has taken extensive evidence on the matter in both the United Kingdom and Washington in respect of the likelihood or actuality of damage to very important information that prevents or might prevent terrorist incidents in the United Kingdom. We are satisfied that my right hon. and learned Friend’s point is entirely valid and that the House should take it into account.

Mr Clarke: I close my case, as they say; there is no need for me to carry on addressing the House about Norwich Pharmacal. We wait to hear what points might be raised about it.

I move on to part 1 of the Bill, to which I think the House should have much more regard. It deals with the important issue of parliamentary oversight of our security and intelligence agencies. I suggest to both sides of the House that if we wish to be reassured about the accountability of our security services and really try to guarantee to ourselves that they are not misbehaving, we should look to stronger parliamentary oversight as well as to more accountability to the courts.

It is time to put the Intelligence and Security Committee, chaired by my right hon. and learned Friend, on a much stronger footing and to enhance its independence to strengthen the valuable work it has done so far. We have to give Parliament more effective oversight of the intelligence and security agencies.

The ISC operates within arrangements established by Parliament in 1994, but the nature of the Committee’s work has changed dramatically. In the past 18 years, particularly since 9/11, the public profile, budgets and operational demands on the agencies have all significantly increased, but there has been no change in the statutory arrangements for oversight. In the past, the ISC has overseen operational matters but has done so relatively infrequently and generally at the direct invitation of the Prime Minister. The ISC has no statutory powers to oversee such matters. Its statutory remit is also limited to oversight of the security and intelligence agencies, although it has long heard evidence from the wider intelligence community.

At the moment, the Prime Minister receives its report and appoints its members. Currently, the heads of the security and intelligence agencies are permitted, in certain circumstances, to withhold information from it. We can certainly improve on that. We need to give the ISC

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greater teeth to ensure that we can continue to have confidence in those who oversee the agencies on our behalf.

The Bill provides that the ISC will in future be able to oversee the agencies’ operations, within appropriate constraints. The Committee will also in future report to Parliament, as well as the Prime Minister. Its members will be appointed by Parliament, after nomination by the Prime Minister. The power to withhold information from the ISC will move from the agency heads to the Secretary of State responsible for that agency—a Minister accountable to the House. It will be a parliamentary Committee. We are greatly strengthening our powers to hold accountable those who do such vital work for our country.

Mr Tyrie: My right hon. and learned Friend said that the Intelligence and Security Committee will henceforth be accountable to Parliament. Will he be prepared to consider the proposals of the Wright Committee on parliamentary renewal—that the Chairman of the ISC should henceforth be elected by a secret ballot of the whole House, subject to a veto by the Prime Minister at the nomination stage? That was accepted unanimously by the Wright Committee and it has won widespread support. It would greatly enhance the credibility and sense of independence of the ISC Chairman.

Mr Clarke: I have the greatest respect for the Wright Committee and we will consider the matter further, although I am not instantly attracted by that proposal. We are moving to a situation in which the Chairman of the ISC will be elected by the Committee and the Committee itself will be elected by the whole House from a list approved first by the Prime Minister. On reflection, I think that the problem with a system whereby the House could elect whoever it liked, subject to a prime ministerial veto, is that it would be an Exocet that was hugely embarrassing to use. It is not impossible—I hope that it is not too fanciful—to envisage a case where the security services have satisfied the Prime Minister that there is some problem with a particular Member of this House of which the wider world is completely unaware. [Interruption.] That is not unknown; I am sure that it has happened in the experience of the right hon. Member for Blackburn (Mr Straw). The idea that the Prime Minister must suddenly issue a veto on the result of an election carried out in this House is probably a step too far, and I think that my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind), the Chairman of the ISC, agreed with me when we discussed this very matter not too long ago.

Sir Malcolm Rifkind indicated assent.

Mr Clarke: My right hon. and learned Friend nods his head in approval.

The arrangements that we are proposing for a stronger Committee will in some cases be underpinned by a memorandum of understanding between the Government and the Committee. The MOU will set out the arrangements at a level of detail far beyond that which need be put in this Bill. We have reached the stage of discussing the terms of that MOU with the Committee. I have had some extremely constructive discussions with my right

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hon. and learned Friend and other members of the Committee about the Bill. We will bring forward other amendments if necessary to make clear the ISC’s increased connection to Parliament and provide it with some statutory immunities to assist in this work.

I apologise for the length of time that I have taken in introducing the Bill, but I have given way generously. It is the kind of Bill where there should not be serious argument about the principle, but the details are extremely important in a country which has high regard to the rule of law and does not to want to risk abuse of process in any proper case. That is why I commend its Second Reading to the House. To reject it and stay with the status quo would be to continue a quite intolerable situation that is not only unacceptable to the agencies, which cannot defend their reputations, but should be unacceptable to the taxpayer, who has to pay for some of these settlements, and to any citizen who wants a judge to have the chance to make a judgment on the issues.

In my opinion, for all the reasons I have given, the Bill strengthens the accountability of our intelligence agencies and GCHQ to the courts and to this House. It supports our belief in justice, the rule of law and the liberal, democratic principles that underpin this country. I trust that the House will therefore be content to give it a Second Reading.

1.52 pm

Sadiq Khan (Tooting) (Lab): The Minister without Portfolio has spoken for exactly one hour. Everyone will be pleased to know that my contribution will be far shorter.

Before us is a Bill that is less bad than when the Government first published it. It is less bad because of the changes made to it by colleagues in the other place, which have started to restore some equilibrium in the great balancing act that we face between our nation’s security and the rights of individuals up and down the country. I want to make it clear, up front and in very simple terms, that Labour Members fully recognise the very important issues that the Government are seeking to grapple with in this Bill. The Minister called for a serious debate, and I hope that we get one this afternoon and in Committee.

Our intelligence agencies do untold amounts of good work in keeping the citizens of this country safe. I should like again to put on record our appreciation of this role. Our intelligence agencies are fighting to defend our democratic values, so it is only right that those same agencies should be subjected to those same democratic values, which include judicial and parliamentary scrutiny. That is why part 1 is so important. It outlines attempts progressively to reform the work of the Intelligence and Security Committee, giving it a formal statutory footing with improvements in how the membership and Chair are chosen. I agree with what the Minister said about this, and my hon. Friend the Member for Kingston upon Hull North (Diana Johnson) will say more on that at the conclusion of the debate.

The issue in part 2 is one of allowing justice to take its course, with those on the end of alleged true abuses of power and indiscretions allowed to seek full and proper recourse, and with the Government also in a position whereby they can defend themselves. I intend to focus my remarks on this part, especially given the

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changes made by colleagues in the other place. The Minister informed the House that he will accept some of them, albeit not yet all of them.

The marriage of justice and security in the Bill’s title hints at the difficult but not impossible balancing act that is required. It is simply wrong to argue that the achievement of one is to the detriment of the other. Those who take this view are failing to show sufficient respect for the nature of the issues. Openness and transparency of justice is a hugely important principle. Any deviation from this hundreds-of-years-long tradition should be considered only in the most extreme of circumstances and must be accompanied by transparent checks and balances. The Bill, as first published by the Government, failed in that respect.

At this point, I must turn my attention to the role of the Minister without Portfolio, who kept hold of the responsibility for this Bill after the reshuffle. The House will know that I have a huge amount of respect for him, and—dare I say it?—affection as well. He is a national treasure. It is worth considering the suspicion that many felt as to why the Prime Minister decided that he should retain control of the Bill. It is hard not to conclude that it was for his “liberal credentials”. The suspicion was that the Prime Minister thought that the right hon. and learned Gentleman would make a better sell of the proposals on secret courts than his successor as Lord Chancellor, the right hon. Member for Epsom and Ewell (Chris Grayling), who does not have quite the same “liberal credentials.”

That may well be the case. In any event, I am afraid that the Minister has made a hash of the Bill up until now. He has rushed headlong into legislation, despite guarantees to the contrary. He has failed to listen to the concerns of a very wide range of groups and experts. He has criticised those who have genuine concerns, as he did again today, building up straw men only to knock them down. I am afraid that on some occasions he has given the impression that he has failed to understand the details of his own Bill. I do not know about pushing at an open door, but he has now been on the receiving end of three humiliating defeats in the House of Lords and forced to concede further changes or face the prospect of even more defeats.

Part 2 includes clauses 6 to 13 on the introduction of closed material proceedings, or CMPs, into our civil justice system. CMPs will allow the Government to hold in secret parts of court hearings in which an individual is seeking recourse through our civil courts. These are civil actions for damages for claims ranging from allegations of rendition to allegations of complicity in torture and the most serious forms of tort there are.

Jeremy Corbyn: Will my right hon. Friend give way?

Sadiq Khan: Just this once. I want to make progress because many other Members want to get in.

Jeremy Corbyn: My right hon. Friend will be well aware that in cases of allegations of torture and extraordinary rendition it has been the devil’s own job to get any information, transparency or accountability, and this has gone on for a very long time. Does he not think that this Bill misses an opportunity to lift the cover on the whole miserable period since 2001 when we have had extraordinary rendition and Guantanamo Bay?

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Sadiq Khan: I will come to some of the huge improvements made in the other place.

The Government claim that they are unable to defend themselves in court because the nature of the evidence they would need to deploy is so bound up with sensitive intelligence as to make it impossible for it to be made public. As a result, they are having to settle cases and pay out-of-court compensation. By allowing CMPs in situations involving national security, the Government are seeking to avoid situations where cases are not seen through to their conclusion and avoid the premature payment of compensation.

Let us go right back to the very beginning of this legislative process. The original proposals that were published in the Green Paper involved huge issues. The Minister said at the time that after the consultation on the Green Paper, he expected a White Paper, followed by a Bill. We had serious problems with the Green Paper, but we were encouraged by the sensible pace at which he proposed to progress.

As I have said, the original Green Paper was roundly criticised by others for being too broadly drafted in its coverage of CMPs. After the consultation, the Government decided to jettison secret inquests, making a virtue, as has happened again today, of this concession. I pay tribute to the Royal British Legion and the non-governmental organisation, Inquest, for successfully fighting that barmy idea. Many suspect, however, that the inclusion of inquests in the first place was a wheeze—an idea that would be later binned and presented as a major concession. It is the oldest trick in the book.

The process then changed: there was no White Paper. Instead, we jumped straight from the Green Paper to a Bill, which, while including inquests, did not take on board the wide range of concerns that had been raised about the proposals. In many people’s eyes, the Bill’s process for deciding when there should be a CMP was worse than the process set out in the Green Paper. Even more power was concentrated in the hands of Ministers to decide what would stay secret, while judges had fewer powers to take a balanced view on whether it was in the national interest to keep something secret or whether it was in the public interest to disclose it.

It is on this point that the right hon. and learned Gentleman disagrees with many independent experts, including judges, about how the process will work. He insisted that the CMP process was a judge-led, balancing exercise and that it was not a Minister-led process. He repeated that several times, criticising those who dared to question his assertions, and he has done so again today. I and many others have picked him up on this, because the Bill as drafted was clear: it was not a judge-led process. In the old clause 6, there was no balancing exercise. It was a grab for power by Ministers. They would have decided what stayed secret and what did not. Judges were left with no option but to grant a CMP. The word used was “must”, not “may”. It was simply unacceptable. The power that that would have handed to the Executive to keep material secret was unacceptable and I am pleased that the right hon. and learned Gentleman has accepted the change made in the other place.

Mr Kenneth Clarke: Extraordinary assertions keep being made outside this House that the Bill allows Ministers to decide whether there should be closed

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material proceedings, but that is complete nonsense. The “must” to “may” amendment arises in circumstances where the judge who takes the decision decides that national security would be at issue. The original Bill said that once he finds that there is a risk to national security, he “must” have a closed material procedure. Such is the concern of all these critics that we have made it clear that we will accept a wider discretion, so even when the judge—not the Minister—is satisfied that national security is at risk, he “may” have a closed material procedure. I submit that people should think about the possibility that that leaves the judge with all the discretion in the world to think about all the other issues that might mean there is some compelling reason in a particular case not to allow a CMP, even when national security is threatened. I simply do not understand why the right hon. Gentleman—he is not the first; I am not singling him out—and others keep asserting that Ministers will decide on that when the Government gave up that position months ago.

Sadiq Khan: I know that the right hon. and learned Gentleman has not practised law for a while, but he is wrong. The old Bill clearly said that if a Minister decides that there is a threat to national security, the judge must order a CMP. The improvements made by the House of Lords changed that and I am glad that he has accepted them.

The right hon. and learned Gentleman has lashed out—he did it again today—at what he called the “reactionary” elements of the civil liberties community. He is sniggering, but he will recall that he was once a part of that community. Does he really believe that David Anderson QC, the Government’s independent reviewer of terrorism legislation, fits that description? I remind him of what Mr Anderson said about the Bill’s original proposal that Ministers would trigger a closed hearing:

“That proposal seems to me profoundly wrong in principle. The decision whether to order a CMP is properly for the court in the exercise of its case management functions.”

He also said that a CMP should be used only if

“the just resolution of a case cannot be obtained by other procedural means (including not only PII but other established means such as confidentiality rings and hearings in camera).”

It seems that it was not just me who got it wrong; according to the Minister without Portfolio, his own independent reviewer of terrorism legislation also got it wrong.

Advocates also appear to have got it wrong by not understanding the Bill as previously drafted. Many esteemed legal Members of the other place, such as Lord Pannick, Lord Macdonald and Lord Phillips, also got it wrong if the Minister without Portfolio is correct.

On 19 November, the day the other place considered the Bill on Report, an editorial in The Times—hardly a member of the “reactionary” civil liberties community—said:

“The Justice and Security Bill being considered in the House of Lords today cannot be allowed to stand in its current form”.

The Daily Mail, which is not historically known to be a “reactionary” element of the civil liberties community, either, has also consistently opposed the right hon. and learned Gentleman’s original proposals.

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I accept that some have argued strenuously against the whole principle of CMPs in our civil courts. Others have focused their energies on ensuring that the Bill has proper checks and balances in place.

Mr Kenneth Clarke rose—

Sadiq Khan: I will give way to the Minister without Portfolio. Clearly, one hour was not enough for him.

Mr Clarke: We are merely warming up. To refresh the right hon. Gentleman’s memory, I have a copy of the original Bill. I think he is talking about a debate that was last sensibly carried out when the Green Paper, in which we said that it would be for a Minister to decide on this matter, was considered. Clause 6(2) of the old Bill says:

“The court must, on an application under subsection (1), make such a declaration if the court considers that…(b) such a disclosure would be damaging to the interests of national security.”

We published the Bill on the basis that it was a judge’s decision. We are making the judge’s discretion wider. He does not have to have a CMP. Even if he is satisfied that national security is at risk, he “may” make a declaration, which is what has been proposed to us by the House of Lords.

Sadiq Khan: The right hon. and learned Gentleman can use the present or past tense, but the reality is that, previously, the judge would have had to order a CMP if the Minister said that there were national security issues. There was no balancing exercise. The changes made in the other place mean that the process is now judge-led and I am glad that the Minister without Portfolio welcomes them. I am glad that legal experts agree with me. We will have a chance to come back to the issue later.

The defeats inflicted on the Government in the other place were truly stunning—the Minister without Portfolio used the phrase, “Pushing at an open door”—with majorities of 100, 105 and 87. Those defeats mean that, as the Bill stands, there will be an equality of arms between the two parties in a civil action and a full judicial balancing of the competing public interest. Moreover, if CMPs are to be granted, it must be as a last resort—I know that the right hon. and learned Gentleman does not like that change made in the other place—and, importantly, there will now be judicial balancing within the CMP.

I have no doubt that there would have been more defeats had the Minister in the other place, Lord Wallace, not seen sense and conceded on other amendments. The scale of those Government defeats is testament to the enormous levels of unhappiness of distinguished legal experts and serious people with the Bill as originally published.

I pay tribute to the Joint Committee on Human Rights, particularly its Chair, my hon. Friend the Member for Aberavon (Dr Francis), for the work it has done. Its amendments—the Opposition supported the majority of them—were the basis of the victories in the House of Lords. We will seek to make other changes to the Bill in Committee, in order to ensure greater fairness. We will oppose any attempts to water down the improvements that have already been made.

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I want to touch briefly on clauses 14 and 15, which address the so-called Norwich Pharmacal cases. They prevent the disclosure of “sensitive information” that the Secretary of State certifies it would be contrary to the interests of national security or international relations to disclose. In those cases, a party seeks an order for the disclosure of evidence in order to pursue or defend a case against a third party, possibly outside the jurisdiction, as in the cases that have attracted attention in which the defendant—that is, the Government—is to some degree mixed up in events, perhaps by quite innocently coming into possession of some information.

Disclosure via Norwich Pharmacal is, we are told, already seriously undermining confidence among our most important partners, including the United States of America. That is an important matter for our intelligence agencies, which I have already paid tribute to, because they probably work more closely with their colleagues in the USA than those in any other country. We understand the importance of the control principle.

Although there may be an issue that needs to be addressed and a case for regularising the situation created by the Norwich Pharmacal cases, we question whether the Government’s approach is too broad. We will test that in Committee. The independent reviewer of terrorism legislation, David Anderson QC, agrees with our position and has publicly accepted that there is

“a case for restricting the novel application of the Norwich Pharmacal jurisdiction to national security information.”

He concluded, however, that what is now clause 14 was too broad in its application.

We do not intend to oppose the Bill on Second Reading. However, I hope that I have made it clear that we wish not only to hold on to the improvements that were made to the Bill in the other place, but to use the Committee stage to seek further improvements. How we vote on Report and Third Reading will be determined by the Government’s actions in Committee between now and then.

Several hon. Members rose

Mr Deputy Speaker (Mr Nigel Evans): Order. There is a 10-minute limit on contributions from now on, with the usual injury time for up to two interventions.

2.11 pm

Sir Malcolm Rifkind (Kensington) (Con): As Chairman of the Intelligence and Security Committee, I will concentrate my comments on the proposed reforms of the ISC in part 1 of the Bill.

It is easy for me and the Committee to welcome part 1, because 95% of it is exactly what we recommended to the Government many months ago. We pay tribute to them for being willing to accept such a radical change in the powers relating to independent oversight in the United Kingdom. The system has been imperfect since 1994, as has been commented on in the past. I can say with confidence that if the proposals in part 1 are implemented, the United Kingdom will have a system of independent intelligence oversight with the powers that are necessary to make it effective. It will be one of the most powerful systems of independent oversight in the western world.

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It is worth remembering for a moment why independent oversight is crucial in an open society. Our intelligence agencies have and need to have powers which, if used by other citizens, would be a breach of the criminal law. Given that situation, the agencies are the first to acknowledge that it is essential in a parliamentary democracy for there to be not only Government accountability, but accountability to Parliament and the public. The agencies use some £2 billion of resources. That is a lot of money and it has to be justified, particularly in difficult times.

From time to time, it will be necessary, as it has been in the past, to criticise the agencies when something foolish, unwise or unacceptable takes place. However, the agencies also appreciate that the power of genuine, independent oversight means that they can be defended if, as happens occasionally, they are unfairly criticised or attacked and cannot defend themselves. For obvious reasons, if the Government try to defend them, there is seen to be a potential conflict of interests. That does not apply in the case of genuine, independent oversight. For example, in the 7/7 bombings inquiry, the Intelligence and Security Committee was able to point to some of the unfair accusations that were being made.

What are the reforms that are crucial in transforming the role of independent oversight in the United Kingdom? First, until now—including as I speak—the Intelligence and Security Committee has been a committee of parliamentarians, but not a Committee of Parliament. That is going to change. For the first time, the last word on whether the proposed members of the Committee are acceptable will be with the House of Commons and the House of Lords. As has been said, the Chairman of the Committee will in future be appointed not by the Prime Minister, as I was, but by the Committee itself.

The Committee will report to Parliament. At the moment, it reports to the Prime Minister and only through the Prime Minister do its reports reach this place. Some redactions will, of course, be necessary. There will be occasions, as there have been in the past, when the ISC reports on such sensitive matters that it will, in practice, report only to the Prime Minister because the material overwhelmingly cannot come into the public domain. Nevertheless, for the first time, we will have a parliamentary Committee that is parliamentary in the sense of other Committees, except where the need for the respect of secret information continues to require some differences of treatment.

The second major change is in relation to operations. I will differ slightly from my right hon. and learned Friend the Minister without Portfolio in saying that the extent to which the Intelligence and Security Committee has already been involved, through agreement with the agencies, in looking at operations and sensitive material is not exceptional or occasional, but substantial. Nevertheless, there has been no statutory basis to it. That is crucial, because operations are what the agencies are about to a considerable degree and are where parliamentary and public concern can be most manifest. It is profoundly unsatisfactory that, until now, there has been no meaningful statutory role for the Committee in relation to operations.

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Sir Alan Beith: I point out to my right hon. and learned Friend that that situation means that refusal is possible and is too easy in circumstances where embarrassment is involved. I can think of at least one case in which I feel that that happened during my time on the Committee.

Sir Malcolm Rifkind: I agree with my right hon. Friend. There has to be an ultimate right for the Prime Minister to decline to allow the Committee to receive certain information. However, until now, the agencies have been able to exercise that power. To be fair to them, they have rarely, if ever, tried to do so.

On operations, the statutory basis is crucial. The Committee has accepted that our oversight of operations should be retrospective. We do not wish to interfere in ongoing operations. That would be unreasonable and would put an intolerable burden on the agencies. As long as the oversight is retrospective and there is a significant national interest—we will have debates over what that phrase means—I believe that there is a sound basis.

Thirdly, until now, the Intelligence and Security Committee has been able only to request information from the agencies, not require it. To be fair to the agencies, they have not, for all practical purposes, ever refused us information, but they have been in control of the information that has been provided. Real problems have emerged over the years. On some occasions, it has been found, subsequent to the publication of a report, that important documents had simply not been made available to the Committee. That may not have been done in bad faith, but the consequence was embarrassment for the agencies and for the system of independent oversight. That cannot be allowed to continue.

We have also found that when the agencies have responded to a requirement of the courts, the resources and the time that they have devoted to finding every relevant document have been slightly greater than for a Committee that can only request information and not require it. That is going to change. I pay tribute to the agencies for accepting the need to make this change. The Committee will now have the power to require information from the agencies, including information on operations, subject to one or two important safeguards.

I come now to the crucial difference. Until now, the problem has been that although the agencies hold vast amounts of information on any given subject, we do not expect them, when we request information, to fill several forklift trucks with information and dump it at our offices. That would be absurd, and we will not expect that when we require information in the future. However, until now, the agencies have done the editing themselves. Even if it is done entirely in good faith, that does not enable the Committee to be confident that it has seen all the information that it would wish to see before it brings forward its proposals.

We have proposed that we will appoint additional staff—assistants to the Committee, who will be our employees and be answerable to us—who will go to the agencies when we require information on a particular subject from them and discuss all the information, including the raw material, that they have in their files. I pay tribute again to the Government and the agencies for agreeing to that. I hope that there will be a process of agreement and discussion, but at the end of the day,

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it will be our staff who decide which parts of the available material the Committee is likely to want to see. We, Parliament and the public will therefore be able to have confidence that the decision will be taken by the Committee itself, not by the agencies, however much they would be trying to do their best in good faith.

That is an enormous culture change for MI6, MI5 and GCHQ to accept. For the first time in their history they will be not just providing information to people who are not employees of the agencies or part of the Government—we are not part of the Government, and in future we will be part of Parliament—but allowing them to come into their offices, see material and discuss what the ISC would like to evaluate. I pay tribute to the agencies for accepting that. Of course they have some reservations and concerns, and a memorandum of understanding is being discussed. It is referred to in the Bill and will be published in due course. It will explain in greater detail how the system will work on a day-to-day basis. We may have to review it in a year or two in the light of experience.

I pay tribute also to both Her Majesty’s Government and Her Majesty’s Opposition, because such a change is not just a potential rod for the back of the agencies but will occasionally create problems for the Government of the day. Both Front-Bench teams know that the Bill will mean that intelligence oversight will have the teeth that it has not had in the past, because it will be on a statutory basis and include the real powers that I have described. That is why I and the Committee feel confident in saying that we will have a tougher, more effective and more reliable system of oversight than we have ever had in our history or than can currently be found in almost any country in the western world or globally.

Hazel Blears: I pay tribute to the right hon. and learned Gentleman for his leadership of the Intelligence and Security Committee. I do not think we would have quite such robust proposals had it not been for his work.

May I remind the right hon. and learned Gentleman of one small point? As the Bill is drafted, it would prevent the Committee from examining ongoing operations. If the Government were to ask us to consider a matter that was ongoing and not retrospective, that would be forbidden. The Bill therefore needs to be amended on that point.

Sir Malcolm Rifkind: I must first reciprocate the right hon. Lady’s compliment. She has made an enormous and much-respected contribution to the Committee’s work.

The right hon. Lady raises an important point. Of course we accept that our oversight of operations must be retrospective and on matters of significant national interest. However, there have been circumstances in which the Prime Minister of the day has invited the Committee to examine an ongoing operation on some specific matter. In addition, there are sometimes occasions when, because of leaks and press awareness, an ongoing operation becomes a matter of public discussion and debate. There must be flexibility in the Bill to allow the Committee to examine such matters. The House should feel confident that, although we wish a number of improvements to be made in Committee, we are entering a new phase of intelligence oversight.

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I want to say a few words about part 2 of the Bill. A number of my right hon. and hon. Friends who serve on the Committee will undoubtedly wish to speak about it as well. It goes without saying that closed material proceedings are not very satisfactory, but in the imperfect world in which we live, the choice is sometimes between good solutions and bad solutions but more often between bad solutions and worse solutions. As has been said, public interest immunity is not a feasible alternative. The £2 million settlement that was made just a couple of weeks ago was a case to which intelligence material would have been central if it had gone to court. There could not have been PII, because that would have excluded all the material. That leaves us to introduce a system that, as the former Lord Chief Justice Lord Woolf has said, is certainly preferable to PII. I say to hon. Members who still have their doubts that the system is not perfect, but it is a lot better than the one we have at the moment. That is why it is in the national interest to support the Bill.

2.24 pm

Paul Goggins (Wythenshawe and Sale East) (Lab): It is a pleasure to follow the chairman of the Intelligence and Security Committee, the right hon. and learned Member for Kensington (Sir Malcolm Rifkind), and I echo the comments of my right hon. Friend the Member for Salford and Eccles (Hazel Blears) about his leadership on matters concerning the Bill and our general work. It has been a genuine pleasure to work with him over the past two years.

The debates that we have had on national security over the past decade have been among the most important exchanges in the House over that period. They have taken us to the heart of the balance between individual liberty, including the rights of those who are suspected of plotting terror, and our collective security, including the most fundamental human right of all, the right to life.

As we have responded to the new threats of global terror from al-Qaeda, it would have been a miracle if Governments had been able to get everything absolutely right first time. As I have said before in the House, I accept that the proposals for 90-day and 42-day pre-charge detention went too far, as an issue of practicality as well as one of principle, and Parliament was right to block them. Equally, the judges were right to deem detention without trial non-compliant with the rights of defendants. That, too, had to be replaced.

It remains to be seen whether the reforms of the past two years have gone too far in taking the balance away from public safety. I certainly do not accept the narrative that everything that has happened since 9/11—all the extra resources provided to the intelligence and security agencies and the stronger powers that Parliament has decided on to deal with suspects—are a victory for the securocrats, who hoodwink Ministers into illiberal measures to undermine our basic freedoms. The simple fact is that many thousands of lives have been saved because of the actions that Governments and Parliament have taken. At the same time, suspects have still been able to enforce their rights in the courts, and judges have increasingly ordered the disclosure of information that would have been held secret in the past.

The Bill deals specifically with the balance between greater scrutiny and the limits that ought to apply in a certain small number of civil cases. The Intelligence and

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Security Committee has played an important role in scrutinising the agencies, as its chairman said. That role far exceeds what was envisaged in 1994 and includes the close examination of some ongoing operations. However, the ISC will be in a stronger position when it is a Committee of Parliament and has greater powers and resources to ensure that it can get the information that it requires rather than simply trusting that the agencies are giving it what it has requested.

I place on record the tremendous debt that all members of the ISC, and therefore all Members of Parliament, owe the small, dedicated team of staff who work to support it in all its work. The chairman of the ISC alluded to a number of issues that still need to be ironed out. I suggest that the starting point for our deliberations in Committee should be that the Bill must not prevent the ISC from doing anything that it is already doing in practice.

As we have heard in the opening Front-Bench speeches, the most controversial part of the Bill relates to the closed material procedure. I do not intend to dwell on the background to it, because others have spoken about the importance of the control principle and the difficulties that the agencies currently face in defending themselves against civil claims. However, I want to make two points. The first is to confirm that the increasing reluctance of the United States intelligence community to share life-saving secrets with the United Kingdom is not a made-up scare story. I have seen and heard, in frank exchanges with colleagues in Washington when the Committee visited last year and earlier this year, that that is a substantial problem that simply has to be dealt with.

Secondly, the agencies’ desire to defend themselves is not about suppressing the truth, and it is not primarily about saving the taxpayer the millions of pounds that it is currently costing, although those are substantial sums. It is about being able to defend their reputation and the high standards of those who take risks every day to protect our freedoms. Clearly mistakes have been made and individuals have been mistreated, but I simply cannot accept the casual assertion that is often made, or at least implied, that the agencies are inevitably the bad guys while the claimants are always the blameless victims.

The comments of Lord Phillips and others during the consideration of the Bill in the other place, and the support that those independent-minded politicians gave for the closed material procedure, were very welcome. It is fair to say that the Bill has been improved in the other place. It is right that judges have discretion and decide whether the closed material procedure is appropriate. It is right that the courts must decide whether, on balance, the interests of national security are likely to outweigh the interests of fairness and open justice. The question of how that balance is to be struck, as the Minister without Portfolio said, is likely to be debated in detail in Committee. I was pleased to hear that he and the Under-Secretary of State for the Home Department, the hon. Member for Old Bexley and Sidcup (James Brokenshire) intend to promote discussion in relation to PII. Under the Bill, consideration of PII should always come first, before the closed material procedure. As the Minister without Portfolio said, that could produce

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long delays in the judicial process, even though the outcome could be staring the court in the face from the outset.

In the short time remaining, there are two more issues that I should like to raise. If I am feeling brave enough, I might even table some amendments about them in due course. In relation to the order-making power, which was in clause 11 but has now been dropped for reasons of political consideration—presumably to make sure that the Bill completes its passage and that the main provisions remain—the cause of the concerns that prompted that power, which would allow the closed material procedure in other proceedings, has not gone away.

There are two particular types of proceedings that are relevant. The first is inquests, as I have said to the Minister before. If there is secret intelligence that cannot be revealed because it would result in the disclosure of sources, methodologies and so on, but which explained the cause of death, the coroner at the inquest should be able to see it. It might be possible in most cases not to have a closed material procedure. Lady Justice Hallett did a fine job in making sure that intelligence could be considered at the 7/7 inquest without the need for a closed material procedure, but I would not rule it out in future. The order-making power originally included in clause 11 would have provided an opportunity for Ministers, as and when cases arose.

I am thinking in particular of more than 30 historic inquests that have still to be heard in Northern Ireland and where the deaths involved the police or Army. That is an issue that will not go away. I have raised it with the Minister, and with other Ministers, and I have yet to hear one disagree with my assertion that if it is right to have a closed material procedure in civil cases, it is right to have it in inquests. I am thinking, too, of proceedings in relation to the judicial review of decisions to revoke the licences of convicted terrorists who have been released from prison, but where there is intelligence that suggests that they are again engaging in terrorist activity.

Hazel Blears: My right hon. Friend has pursued the issue of inquests with huge tenacity, and he makes an almost irrefutable point: how are we to get a proper decision in an inquest unless the full information can be put before the coroner? Certainly in the case of the historic inquests in Northern Ireland, inevitably, by its very nature, that information will be private and secret information from the intelligence agencies. I have yet to hear an answer from the Government on that.

Paul Goggins: I do not make light of the issues. If intelligence were shared with a coroner, but not with the family of the deceased, that would be a massive step, but it is better that we should know the cause of death rather than the whole thing remain a mystery. I am therefore grateful to my right hon. Friend for her intervention.

Mark Durkan (Foyle) (SDLP): My right hon. Friend will not be surprised to hear that I beg to differ strongly on that point. The idea that we can make a contribution to resolving issues of the past in Northern Ireland and all these inquests that have not taken place by creating a closed material procedure simply will not wash, not least in the light of the implications of the de Silva report

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and the issues for many families, not just the Finucane family, in relation to some of the revelations, never mind the material that was not disclosed by de Silva.

Paul Goggins: As ever, I warmly welcome the intervention of my hon. Friend, even though for some years we have disagreed on that point. It is good to know that he continues to make the point and that we continue to debate the issue. He may be interested in my next point which relates to the judicial review of a decision to revoke the licence of a convicted terrorist who has been released from prison, and where there is intelligence to suggest that that individual is again engaged in terrorist activity.

I shall refer to my specific experience in Northern Ireland. In 2008, I revoked the licence of a leading member of the Real IRA who was a convicted terrorist and had been allowed out of prison. Intelligence given to me made it perfectly clear that he was again involved in organising terrorist activity. That intelligence came from the Security Service. He did not like the fact that I revoked his licence and he went back to prison, but he challenged me for more than 12 months on that decision. In the end, the case went all the way to the Supreme Court. The outcome was that he had to be released into the community, though he was due to be released a few months after that date in any event.

The court made it clear that I had behaved perfectly reasonably and lawfully throughout, but it demanded that more of the information on which I made my decision should be given to the individual than the Security Service could possibly have allowed, so he walked free. I simply say to the Minister—and it will be interesting to see whether the Under-Secretary will comment on this in his winding-up speech—that the issue will not go away, especially as an increasing number of convicted terrorists will come out of prison in the foreseeable future. I suggest that this is something that needs to be looked at.

Finally, I agree that the closed material procedure used by the Special Immigration Appeals Commission, and included in the Bill, is not a perfect procedure, but to work as best as it can it requires the co-operation and advocacy of the special advocates who represent claimants or defendants. I do not criticise special advocates because they express strong opinions, and I do not question their motives, but if Parliament decides that the provision of a closed material procedure is a proportionate response to the risks that we face, it is absolutely vital that special advocates, like the rest of us, do whatever they can to make the system work. I hope that the Under-Secretary will tell us that he is engaging in a new initiative with special advocates that will mean that they will strive to make sure that they can represent their clients in the best way possible. The Bill is an important further step. It was improved in the other place, and I am sure that it will be improved in Committee.


2.37 pm

Sir Alan Beith (Berwick-upon-Tweed) (LD): Having served on the Intelligence and Security Committee for more than a decade after it was first established, I warmly welcome the action of Ministers in introducing these new provisions. I have some slight reservations about improvements that are needed, but the measure is a good indication of the importance that the Government attach to the effective oversight of intelligence.

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Much of my time on the Committee was deeply rewarding, and gave me a great deal of respect for the people who work in our intelligence services or assist them. Sometimes, however, it was like drilling into hard rock, and the drill had not got through the rock by the time I left the Committee. There were still many areas where the Committee did not have the information that it ought to have had to make the right kinds of judgment.

The value of the Committee rests only partly on its reports, which it makes to the Prime Minister. In future, it will make reports to Parliament. There has been reference to an annual report: the Committee makes numerous reports on different matters, and occasionally it has to make a report exclusively to the Prime Minister because none of the content can be revealed, so provision is made for that. The Committee’s value also rests on the fact that it gives confidence to the House and to colleagues that there are people who have enough access to know whether there is likely to be incompetence, illegality or unacceptable behaviour going on. The Committee provides reassurance that if that were the case, it would challenge it. To do so, it needs depth of knowledge, which means being aware of what is going on operationally.

Some of the definitions in the Bill are capable of benign use, but could also be put to hostile use, and could be used to restrict information. I do not think that that is the intention, but they could be improved significantly. The right hon. Member for Salford and Eccles (Hazel Blears) made a point about ongoing operations, and I think that that is a limiting provision. When does an operation end? Many of our operations against terrorism are ongoing for as long as we think there is a threat, but we have to know what is happening. If we look back to the period leading up to the Finucane murder, for example, it would have been wrong, if the ISC had existed then, for it not to have had some understanding of the relationship between the Security Service and military units such as the force research unit and the basis on which information might be released by agencies and get into the hands of paramilitary organisations. The Committee needs that level of understanding to meet the test I described, so the wording needs to be adapted. It would be wrong, and a terrible mistake, if the Committee knew who was serving as agents and what handlers were finding in particular cases at particular times. That information should be kept as narrowly as possible, but allowing understanding of the operation, why it is being conducted and on what lines is significant.

Sir Malcolm Rifkind: My right hon. Friend may like to know that part of the intention of the reforms is to ensure that we receive regular—probably quarterly— reports on the spectrum of agency activity, including operations, subject to retrospection and significant national interest. That gives us a broader awareness of the totality of agencies’ activities than has been possible in the past.

Sir Alan Beith: That is very helpful. There is a success story here: the Committee is still building the relationships necessary to give the confidence I described earlier. I pay tribute to those who have been involved in this on the Committee side as well as on the Government side. There will be occasions, as there have been in the past, when the public fear that power within the intelligence

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sphere is being used inappropriately or, indeed, not effectively. A democratically elected body must therefore be able to provide reassurance that if something goes wrong it will know about it and try to do something about it.

The other part of the Bill deals with closed proceedings, which are also closely related to intelligence. I emphasise that we are discussing civil proceedings, not prosecutions. Closed material proceedings are unwelcome, but it is difficult to see an alternative. They are necessary to protect the operational effectiveness of intelligence services, including the secrecy of sources. The control principle of foreign intelligence is fundamental to intelligence operations: people do not give away their country’s intelligence unless they know it will not be misused.

That is not a one-way process—other nations sometimes forget the control principle. I recall a rendition case in which our US allies did not observe the principle. Indeed, the Committee reported on it because the intelligence was provided on the basis that action would not be taken, yet it was used to provide the basis for an action. That was an example of the control principle not being applied, but we must apply it; otherwise, we will not gather the intelligence we need to protect our citizens.

I pay tribute to the work of the Joint Committee on Human Rights, which the Justice Committee decided was doing the work and should be allowed to get on with it. Boundary lines between our two Committees are often drawn, but the Joint Committee’s excellent work contributed hugely to their lordships making the Bill more acceptable to those of us who come at it from a more liberal standpoint. Their lordships made it quite clear that although the Executive apply for closed material proceedings, the judge decides.

The original subsection (2) of clause 11, which would have allowed the extension of closed material proceedings into other areas, was removed by a welcome Government amendment. Their lordships passed an amendment on considering alternatives such as public interest immunity and a strict necessity test. The amendment appeared to be desirable, although my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) today indicated that it could lead to some cumbersome processes, so it will be appropriate for the Committee to look a little more closely at it.

A court will be required to balance national security with fairness, transparency and the need for open justice. The amendment that was unsuccessfully proposed to bring that process continuously into closed material proceedings was unrealistic—it is pretty difficult to satisfy foreign allies that we will apply the control principle if the question is being reopened in proceedings daily. The Government have indicated that they will accept the provision under which either side will be able to invoke closed material proceedings. I find it hard to envisage the circumstances in which a plaintiff would do so, but equality of arms requires that provision. I do not know why the Government resist the amendment proposing an annual report on the use of closed material proceedings—a fairly simple requirement—but perhaps such proceedings will not be so frequent and only a biennial report will be necessary.

As a result of proceedings in the other place we are now close to achieving a reasonably satisfactory balance

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in using difficult and unwelcome powers to ensure that information can be put before a court. None of us would want to have to use the process, but without it we will not be able to decide cases on the evidence available.

Another matter with which the Bill deals is the more general application of the Norwich Pharmacal principle to intelligence, on which the Government are right to act. I note the Intelligence and Security Committee’s suggestion, which the Justice Committee can look at, on how we limit its application so that we more specifically refer to foreign intelligence and the control principle or information that would impair the effectiveness of our security operations. The Government must act to defend our ability to acquire intelligence from elsewhere.

Further improvements might be possible to make it clear that a gisting process can work in cases where the special advocate realises that he cannot effectively challenge or assess evidence without more information that is in the possession of only the plaintiff. We must find some way of resolving that. We cannot allow the present position to continue, but we must get the Bill into the best state possible.

2.46 pm

Dr Hywel Francis (Aberavon) (Lab): I welcome the contribution of the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), who joined me last week in seeking—and, I think, securing—clarification from the Prime Minister of the Government’s intentions. May I say how pleased I am by the desire among Members on both Front Benches to improve the Bill in Committee?

The Joint Committee on Human Rights, which I chair, spent a long time scrutinising the proposal before the House today. We took the unusual step of holding an inquiry into the Green Paper that preceded the Bill because some of the proposals in the Green Paper constituted such a radical departure from the country’s constitutional tradition of open justice and fairness that we thought they deserved the most careful scrutiny.

Our examination of the Green Paper revealed serious human rights concerns about a number of the proposals. The Government accepted some of our recommendations on the Green Paper, and when the Bill was introduced in the other place they made some changes to the original proposals. The Government’s decision not to extend closed material procedures to inquests and the narrowing of the scope of the proposals to national security material were particularly welcome.

The Bill as introduced still represented a radical departure from our traditions of fair and open justice. Amendments made in the other place, based on some of the recommendations made by my Committee, have improved the Bill, but I want to explain why the Government still have a long way to go in improving this measure before they can plausibly claim that it is compatible with British traditions of fairness and openness, of which this House has been a proud defender.

Our starting point must be a recognition of how radical a departure from our common law constitution it is to extend closed material procedures to civil proceedings. During my Committee's scrutiny of the Bill the Government appeared to be in denial about this, but every other witness before our inquiry agreed about the enormity of what the Government propose. Let us not forget that in

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the case of Al-Rawi the Supreme Court refused to countenance such a radical change by judicial development of the common law.

Why does the Bill amount to such a radical departure? There are two main reasons. First, we in this country have always enjoyed a right to an adversarial trial of a civil claim. This includes the right to know the case against us and the evidence on which it is based, the opportunity to respond to evidence and arguments made by the other side, and the opportunity to call witnesses to support our case and to cross-examine opposing witnesses.

The second main reason why the Bill amounts to a radical departure from our constitutional traditions is that it derogates from the principle of open justice—the principle that litigation should be conducted in public and that judgments should be given in public, so that the media can report fully and accurately to the public on what the courts decide. One of the central questions for the House is this: have the Government demonstrated, by reference to sufficiently compelling evidence, the necessity for such a serious departure from the fundamental principles of open justice and fairness? My Committee subjected to careful scrutiny the evidence that the Government say demonstrates the necessity for making closed material procedures available in civil proceedings. We appreciated the Government’s difficulties in proving their case with reference to ongoing cases. We were anxious to give them a proper opportunity to prove their case and did so, but the Home Secretary refused to allow the special advocates to see the material that had been shown to the independent reviewer of terrorism legislation. The Government were unable to provide the Committee with a detailed breakdown of the civil damages claims pending against them in which sensitive national security information is centrally relevant to the case.

The Committee’s report on the Bill states that we remain unpersuaded that the Government have demonstrated by reference to evidence that there exists a significant and growing number of civil cases in which a closed material procedure is essential, in the sense that the issues in the case cannot be determined without a closed material procedure. I am sympathetic to the arguments made by many human rights organisations, including Liberty, Justice and Amnesty International. They argue that, because the Government have not made their case for introducing closed material procedures into civil proceedings, that part of the Bill should be removed altogether. Indeed, I note that a number of eminent lawyers in the other place voted to do just that.

My Committee’s judgment, however, is that the Bill is likely to pass in some form, and it is therefore better to seek to improve it with amendments than seek to make it compatible with the important traditions of open justice and fairness. I will therefore not vote against the Bill today, but the Government are on notice of the need to show us the evidence that demonstrates the necessity for extending closed material procedures into civil proceedings.

The amendments made to the Bill by the House of Lords made some of the necessary improvements, but I shall conclude by outlining four areas where the Committee and I believe improvements are required. First, we need provision for full judicial balancing of interests to take place within a closed material procedure. The House of Lords—by an overwhelming majority—amended the

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Bill to ensure that there is full judicial balancing of interests at the gateway stage, when the court decides whether a closed material procedure is appropriate. However, the amendment to ensure that the same judicial balancing takes place within the closed material procedure, when the court is deciding whether material should be closed or open, was defeated in the Lords late at night. Labour backed the amendment recommended by my Committee in the Lords, and I hope it will do so in this House. The amendment is essential to ensure that judges have the discretion they require to ensure that the Bill does not create unfairness.

Secondly, the House needs to listen to the expert views of the special advocates and act on their recommendation that the Bill must include what has become known as a gisting requirement, which has been referred to. My Committee recommended that such a requirement be included in the Terrorist Asset-Freezing etc. Act 2010, but the Government resisted, and the High Court last week held that such a requirement is necessary for the legislation to be compatible with human rights. The House should not leave it to the courts to correct the Government’s mistakes, so we should amend the Bill to give effect to the Committee’s recommendation.

Thirdly, the Bill needs to make provision for regular reporting to Parliament, as has been suggested. The Secretary of State should report regularly for independent review by the independent reviewer of terrorism legislation, and for annual renewal, to ensure a regular opportunity for Parliament to review the operation of the legislation and to debate its continuing necessity.

Fourthly and finally, the Bill needs to be amended to provide a more proportionate response to the problem of preventing courts ordering the disclosure of national-security sensitive information.

In conclusion, I look forward to the House, particularly in Committee, living up to its responsibility to ensure that the legislation we pass is compatible with the basic requirements of the rule of law, fairness and open justice.

2.55 pm

Mr David Davis (Haltemprice and Howden) (Con): It is a pleasure to follow the hon. Member for Aberavon (Dr Francis), whose Committee—the Joint Committee on Human Rights—produced the best guide to the Government’s proposals and their weaknesses, and to the threats they pose to our current civil liberties.

In recent months, the Prime Minister rightly received plaudits for how he handled the apology for the Bloody Sunday massacre and the Finucane murder. He did so with great openness and sensitivity. Both inquiries exposed unlawful killing, either directly or indirectly, by agents of the state, and subsequent cover-ups. Thankfully, that sort of thing is extraordinarily rare in the UK. One reason why it is rare is that such things are exposed and deterred by an open and transparent system of justice—the whole system of justice, including the criminal judicial system, the inquest system and the civil courts system.

Measures in the Bill create the power to take parts of that civil judicial system not just out of the public domain —that already happens in some ways—but completely out of the normal judicial testing procedure. Under the Bill, evidence can be presented by the Government that the other side and their defence lawyers cannot see.

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That evidence cannot be tested, and therefore may be wholly wrong and misleading, which undermines the very thing that makes our system work.

Mr George Howarth (Knowsley) (Lab): What role does the right hon. Gentleman imagine a defence lawyer would have in such proceedings?

Mr Davis: A defence lawyer has the role of challenging the evidence, but I will come back to the right hon. Gentleman’s point later.

The Bill is, in the words of Lord David Pannick, a leading barrister—indeed, he is the Government’s leading barrister of choice—“unnecessary, unfair and unbalanced”. He said it is unnecessary because we already have the public interest immunity system.

Sir Malcolm Rifkind: My right hon. Friend has chosen to quote Lord Pannick, but in the debate in the House of Lords on 11 July, he also said:

“I recognise that there may well be a need in some exceptional cases for a…closed material procedure, but…this should be a last rather than a first resort.”—[Official Report, HouseofLords, 11 July 2012; Vol. 738, c. 1176.]

Mr Davis: Exactly—or not exactly, in the context of this debate. Much depends on how the Government decide to respond to amendments made in the Lords.

Sir Malcolm Rifkind rose

Mr Davis: If my right hon. and learned Friend will forgive me, I have run out of injury time.

If a case involves sensitive information, the Secretary of State asks the judge’s permission to keep documents away from the court. The judge examines the evidence and makes a decision that balances national security with the interests of justice. Under the PII system, evidence can be shown in an edited form, and witnesses, whether spies or special forces or whoever, can speak from behind screens. Suspects can be given the gist of the case against them, and the court can sit in open session or in camera. All those operations are possible under the PII system, which has served British justice well for decades, not just against the current threat of terrorism, but against the Soviet threat, which in many ways was much more professional, and the previous Irish terrorist threat. The proof of the PII system is that no Government, including this one, can point to a single court judgment that has undermined national security—not one judgment.

Mr Straw: Will the right hon. Gentleman give way?

Mr Davis: I will, but only because it is to the right hon. Gentleman.

Mr Straw: The right hon. Gentleman is right that no one can say that PII has led to a disclosure of evidence, because PII excludes evidence—that is the whole point of it.

Mr Davis: I missed the right hon. Gentleman’s last words.

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Mr Straw: The whole point of PII is that it excludes evidence. Therefore, by definition, there can be no compromise of national security in PII, but there can be no evidence before a court either.

Mr Davis: PII balances the demands of national security and justice—that is exactly what it does. I do not want to be distracted for too long, but I discussed this at some length with Lord Pannick, whom my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind) mentioned, with a number of lawyers who operate in this system all the time—not just as an aside or even as criminal lawyers, but all the time—and with the special advocates. This is not just the view of some civil liberties extremists, as the Minister without Portfolio tries to imply. It is the view of the Joint Committee on Human Rights, which is unpersuaded —the word it used—that the existing law is not up to the task. It is the view of almost all the special advocates, the lawyers who make closed material procedures work and understand the procedure better than anyone else—indeed, I would argue that they are the only people who understand both the strengths and the weaknesses of the procedure they operate. It is the view of Lord Pannick, as I said, and the view of the former Director of Public Prosecutions, Lord Macdonald, who had a formidable record of prosecution in terrorist cases in his time as DPP.

The Government, the security agencies and their proxies say the opposite, just as they did—in fact, we had the reference earlier—when the 7/7 inquest was proposed. What did MI5 say? It said that holding the inquest in public would amount to “handing over the keys” to its headquarters. It said that if evidence was not heard in secret then it might have to release information from top secret intelligence files. No such thing happened. Instead, we learned a great deal about what happened on 7/7. We learned about failings in operations, data handling and management—all perfectly proper things for the British public to know, and not a single failure of security or intelligence. As the right hon. Member for Wythenshawe and Sale East (Paul Goggins) said, Dame Justice Hallett ran the inquest very well indeed, as we expect our security-experienced judges to do. That balance was managed nearly perfectly. There is no doubt that this sort of important information about the scrutiny of the state is far more likely to come out in an open court of law than by any other means. I even include in that the Intelligence and Security Committee, good job though it does; an open court is even more important than that.

Many of the Government misdemeanours I have just mentioned have been and gone—inquests held and claims settled. However, the problem of Governments using the rhetoric of national security as a shield for politically embarrassing information has not gone away. In recent years, we have seen allegations of Government complicity in torture and extraordinary rendition. We have seen Gaddafi’s political opponents seized and handed back to the Libyan dictator to face imprisonment and torture—the case that was settled last week. I suspect we will be involved in the use of drones, which have killed scores of innocent people, because of intelligence. This issue of exposure of state misdemeanour in the courts, therefore, is still very current indeed.

It is worth looking at an example of how the state currently uses closed material procedure when it is able. As luck would have it, we have a topical case right

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now—the case of Serdar Mohammed. Two weeks ago, a British court heard allegations that a suspected Taliban terrorist, captured by UK forces, was tortured by Afghan security services. A secret document was presented to the court in redacted form, the way it would have been in a closed material procedure. Indeed, the document was in the Maya Evans evidence case that my right hon. and learned Friend the Minister without Portfolio referred to earlier. The court did not allow the redaction of the secret UK eyes only document, so we now have both the redacted and unredacted copies in the public domain. We can, therefore, see what was redacted, supposedly for security reasons.

Paragraph 20 talks about a visit to this prisoner by British embassy staff and Royal Military Police. It states:

“The detainee showed the visit party...some of the injuries which he claimed were made as a result of being beaten several times with steel rods to the areas of his legs and feet which he claims left him unable to stand afterwards. Photographs of some of the alleged injuries are also annexed.”

Where the security interest of the British state is in redacting that, I do not know. It was absolutely material to the case in front of the court on Serdar Mohammed. The information posed no threat to any agents, no threat to any techniques, and no threat to any British national interest and yet that was one of the redactions. The only negative effect of showing it in court, of course, was the possible political embarrassment that we may not have met our duties under international law and under the rules of war in protecting a prisoner who was technically under our command. This is exactly the sort of public interest information that could be concealed if the Bill became law.

With closed material procedures enshrined in law, the intelligence agencies would inevitably be tempted to protest that any information relating to their activities was “sensitive”. We have seen that before in the Binyam Mohamed case. More cases would be heard in secret, with no defence lawyers, victims, press or public present to challenge or report what transpired. Evidence heard in secret cannot be easily challenged, and we need to address that. Inconsistencies cannot be spotted and witnesses cannot be properly cross-examined. Under these conditions, evidence may not be worth the paper it is written on.

Let me give the House another example of how this system can fail. A few years ago, there was a control order case, under the previous Government, where the suspect was accused of entering Britain at a specific date and time using a fake passport, which was part of the evidence. Shortly afterwards, exactly the same evidence, including the same fake passport, was used against a different suspect in another, totally unrelated case. They were both supposed to have used the same passport on the same day, which was clearly not possible. It was only by lucky coincidence that the same special advocate, out of approximately 70, was handling both cases. He recognised the evidence and was able to point out that this was false. I do not believe that it was an intentional misleading of the court by the agencies; I think it was simply a mistake. However, it is a matter of public record and the special advocate concerned is now a judge. That demonstrates how easily the CMP can fail miserably in critical issues of justice. That is why Supreme Court

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Justice Lord Kerr, former Government prosecutor in Northern Ireland during the troubles, subsequently Lord Chief Justice of Northern Ireland, said:

“It would be, at a stroke, the deliberate forfeiture of a fundamental right which has been established for more than three centuries.”

The Justice and Security Bill is being sold as a fair way to protect our national security and justice. It does neither.

3.7 pm

Hazel Blears (Salford and Eccles) (Lab): It is a pleasure to follow the right hon. Member for Haltemprice and Howden (Mr Davis). I am not entirely sure that we will see completely eye to eye in our contributions, but I hope that we will have the opportunity to debate the subject further.

As a member of the Intelligence and Security Committee, I welcome the proposals in Part 1 of the Bill. They will go a long way to ensuring that the scrutiny of our intelligence agencies is more robust and transparent. In turn, that will give the British public a greater degree of reassurance that the intelligence agencies are properly and fully scrutinised. That is important because they spend a great deal of public money—approximately £2 billion—and because they are involved in some of the most controversial and difficult areas of our national life and operations across the globe.

I commend to the Minister the amendments ably and deftly moved by my colleagues Lord Butler of Brockwell and the Marquess Lothian in the other place, particularly in relation to the issue about not limiting the Committee to dealing entirely with retrospective matters, but giving it some freedom to look at current issues if that is what the Government want us to do. I hope the amendments will be adopted.

I want to add my thanks to those from the Chair of the Committee and from my right hon. Friend the Member for Wythenshawe and Sale East (Paul Goggins) to our current secretariat. They are few in number, but the work they do is amazing. I do not think that the Committee would fulfil its role in the way that it does without their insight, intelligence and intellect, and I pay tribute to them.

If Part 1 of the Bill is relatively uncontentious, the same cannot be said of part 2. My hon. Friend the Member for Aberavon (Dr Francis), the Chairman of the Joint Committee on Human Rights, repeated the phrase that these proposals are a “radical departure” from our normal system of justice. That is also what Lord Pannick said in the other place and was the basis of all the evidence put before the Joint Committee. Yes, it is a radical departure. Under our normal system of justice, evidence is heard in open court and challenged by adversarial cross-examination, and the judge weighs the evidence and comes to a reasoned judgment at the end of the case.

Mr George Howarth: Does my right hon. Friend agree that, although these proposals are a radical departure, the circumstances in which they would be used are also a radical departure?

Hazel Blears: My right hon. Friend is absolutely right. Since the terrorist threat to the country has increased, particularly since 9/11, and remains a significant threat, clearly other measures have had to be taken.

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That is exactly the point: although everyone is saying that these proposals are a radical departure, actually we have trodden this path before. As the Minister responsible for taking the control order legislation through the House, I know only too well the depth of feeling among Members on both sides of the House—this is hugely controversial stuff about which people have very strong feelings. It is contentious among the legal profession, and there are many different views among judges and practitioners, but, as has been said, none of us wants to go down this path—it is not something that we relish doing—but, if we are to protect national security and to have a fair hearing of these issues, we have no other option.

Last night, I tried something that the judges will have to do, which was a little balancing act: I drew up a table of arguments for and against the proposals to highlight in my own mind where the balance in the Bill should lie. First, on the “for” side—the reasons I support the proposals for closed procedures—was the need to protect our international relationships and liaison with countries across the globe. Yes, that is about America, but it is not just about America; increasingly, many of the plots that threaten the UK have an international element and much more work now has to be done upstream—in the words of the security agencies—to disrupt terrorist training and plots that might manifest themselves in this country unless we can do work internationally as well as in this country. That means we have to have these relationships. They are fundamental to the success of our fight against terrorism.

Some people have asked whether the threat that America might not co-operate with us as much as it has in the past is real, or whether it is something that the security agencies are making up to force us down this path. As the Americans would say, “You bet it’s real”. When the Committee visited America last year, we were told in no uncertain terms by law officers, the CIA and a whole host of agencies that the damage done not so much by the information in the Binyam Mohamed case, but by the breaching of the control principle had shaken that relationship—I would not say to its foundations, because it is a very strong relationship, but it had shaken it—and resulted in a lack of information sharing.

Mr David Davis: The right hon. Lady might not be aware, but the greatest release of intelligence information in history prior to WikiLeaks came in the Pentagon papers. In that case, the American Government brought the control principle before their courts, and they were turned down and vast amounts of data provided by foreign countries were released into the public domain—and that was not the last time; it has happened several times since. Indeed, evidence to the Binyam Mohamed trial stated that the US understood the issues about control because the courts in the states were independent.

Hazel Blears: I think the right hon. Gentleman gets the balance wrong in that case. I think of the information that the US has provided us with to protect our security. I think of the bomb plot in April—the second underpants bomb plot—where the liaison between the US and this country was essential to preventing an incident that could have cost many lives. We have to strike a balance, but national security is our first responsibility to the country.

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Mark Durkan: My right hon. Friend referred to US concerns based on the Binyam Mohamed case. Does she not, and do they not, recognise that no disclosure of information was ordered by the courts here and that the disclosure actually happened in US proceedings, not here?

Hazel Blears: I think the Americans have a great deal of concern about many legal jurisdictions when it results in information subject to the control principle being disclosed in open court.

Mr Tyrie: Is the right hon. Lady aware that the American courts do not provide that absolute level of protection and that there is no reciprocation of the control principle in US courts, so it is perfectly possible, through the US court system, that information that we have handed to the Americans could, in principle, find its way into the public domain? That point has been made once or twice already. It is crucial that both countries have a sense of balance and put their courts back at the centre of making that judgment.

Hazel Blears: With respect to the hon. Gentleman, clearly the control principle relates to relationships between different intelligence services and liaison countries. Also, in America, they have the states secret privilege, under which they can say, “This matter is not justiciable at all, because it covers matters relating to national intelligence”, so in some respects it is a more draconian system than ours. We are seeking to find a balance, rather than having an Executive veto, and I think that that is the right way to go.

The second issue on my “for” list was about revealing capabilities, techniques and methods. As a member of the Intelligence and Security Committee, I am in a privileged position and have had an opportunity to look at the current cases lodged for damages in civil proceedings. I have looked at the grounds from the applicants and the defence grounds from the agencies, and it is startlingly clear that, were the defence to be pursued, it would reveal techniques, methods, capabilities and networks of agents, and that it would be impossible for the security agencies to pursue their defence in those contemporary cases. Some people think that these cases are historical and that once we have dealt with the ones from Guantanamo Bay, which we have, there will not be any more coming down the track, but that is not the case. Many have happened recently, and, as the Minister without Portfolio said, this jurisdiction is now becoming an attractive place to bring a claim, because the agencies are not in a position to defend themselves.

Thirdly and fundamentally, the system of closed procedures will allow all the evidence to be put before the judge. That is the foundation here. If we have public interest immunity, we exclude information from the judge, which is the opposite of what we are trying to achieve, and I do not believe that partial justice, in which information that could go to the heart of the proceedings is excluded, is proper justice.

The final point that I weighed in the balance was about safeguarding the reputation of our agencies. My right hon. Friend the Member for Wythenshawe and Sale East made the point very powerfully that these are people who, in some cases, put their lives on the line for our safety and that of those we represent, and when

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they have to settle cases, as they did last week in the claim by Mr al-Saadi, people will inevitably draw inferences. They will say, “There’s no smoke without fire. There must have been something in it, if the Government are prepared to pay £2 million”, and that puts the agencies in an invidious position. Men and women of integrity and honour who dedicate their lives to the protection of this country are smeared by the implication that they have been complicit in torture or mistreatment. It might have happened in some cases, but I would rather that all the information was before the judge, because at least then the services could get a proper decision, rather than have their integrity smeared, which I think is outrageous.

My final point is about taxpayers’ money. It is not our main issue, but many millions of pounds has been paid to people, some of whom might not have had legitimate claims had we been able to get them into court. If we are giving them millions of pounds, there is the prospect of some of it being used to fund further extremist or terrorist activity. That is totally unacceptable.

There are a number of outstanding questions, and I have no doubt that the Minister will explore them in fine detail in Committee. I look forward to the prospect of discussing them with him. I want to make a couple of final points now, however. The decisions to accept discretion and to move from “must” to “may” are welcome. If this is really to be a judge-led process, that is where we need to be. I also want to make a point to the right hon. Member for Haltemprice and Howden, who is no longer in his place. He talked about the court being able to look at each piece of information; that is exactly what the court will be able to do. The judge will be able to look at each piece of evidence and ask whether it goes to the heart of the issue and whether it should be kept secret or disclosed. If there were a redacted paragraph that had no national security implications, for example, the judge would be able to determine that it could be disclosed. PII would be available, and the matter would not even be before the court, so the right hon. Gentleman’s point really did not support his argument. On the PII issue, I have misgivings about the length of time involved and the cumbersome nature of the process in every case. I want to explore the balancing judgment to get this in the right place.

This is a necessary Bill. As I have said, this is not a move that any of us relishes making. We are democrats in this country, and we believe in the rule of law, but if we are to protect our national security and get the balance right, it is essential that we support it.


3.20 pm

Nicola Blackwood (Oxford West and Abingdon) (Con): It is a pleasure to follow the right hon. Member for Salford and Eccles (Hazel Blears). I am not a lawyer, a former Home Office Minister or a member of the Intelligence and Security Committee, so I will speak with humility. I would like to start by paying tribute to the members of the Joint Committee on Human Rights and the Members of the other place who have already done much to illuminate and improve the workings of the Bill.

The Bill clearly sits at the juxtaposition of justice and national security. As a result, it involves less than perfect solutions, in both directions. No one pursuing absolute

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principles of open justice or fairness would reach for the closed material procedure, public interest immunity certificates, confidentiality rings or in-camera hearings to try to achieve a measure of justice in the national security context. It is unarguable that extreme caution and extreme conservatism—with a small c—should be our starting point in approaching limits to those fundamentals of the rule of law of which we are so rightly proud here in the UK.

I have previously made it clear that I had significant reservations about the Bill. I accepted the principle that the closed material procedure might be appropriate in exceptional cases and as a last resort—that was also the position of David Anderson QC, who, unlike the majority of us here today, has been able to review some of the evidence that forms the Government’s case for the Bill—but I was not so happy with the details of the Bill in its original form.

I will restrict my remarks to part 2, which deals with the secret courts provisions. In particular, I found it difficult to accept the lack of discretion available to judges; the inequality of arms; the failure to ensure that CMP would be triggered as a last resort and only when strictly necessary; and the order-making power in clause 11. A Bill containing such provisions did not give the impression of limiting our traditions of open justice and fairness reluctantly, or of doing only the minimum to achieve the Government’s stated aims of preserving our vital intelligence links while enabling the Government to defend themselves against civil claims. I must be honest and say that I would have struggled to vote for such a Bill.

The Lords amendments have put a different Bill before us today, however; they have addressed every one of the points that I have just raised. They have strengthened the Government’s attempts to achieve their stated aims. I am pleased that the Government have accepted the amendment that will enable judges to exercise a measure of discretion. Replacing the word “must” with the word “may” might not seem like much to the casual observer, but to the non-state party in court, that will mark the difference between an obligation on the judiciary to grant CMP, on the one hand, and confidence in an independent decision made in the courts and not the Home Office, on the other. Our judiciary has so far shown itself to be trustworthy when it comes to protecting our national security interests, and decisions of the courts must clearly be theirs and not the Government’s, if the judiciary is to command respect here and abroad.

I was sorry to hear that the Minister without Portfolio was not convinced by arguments to allow judges to take into account whether alternative, existing procedural measures might be more appropriate in the first instance. Many of those measures provide more minimally invasive ways of excising national security material from the mass of evidence in a case and therefore keep more of the proceedings in the public eye. Put more clearly, rather than reaching for the total blackout of the CMP in the first instance, combining existing mechanisms such as PII certificates, confidentiality rings and in- camera hearings could well be more effective. That could achieve a more open justice, not compromise too greatly on fairness and still preserve the safety of intelligence for the majority of cases. It is important for us to know that that will be the default position, and that the CMP will not become the lazy or inappropriately risk-averse

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option rather than a necessity due to the nature of the evidence in specific cases or the desire of the applicant to rely on the sensitive information in their argument.

There will always be hard cases, such as that of al-Rawi, that prove that PII certificates might not be appropriate, perhaps due to the sheer volume of sensitive material involved, but such hard cases do not make good law and they prove nothing more than that there will be exceptional cases in which PII will not work and that this new alternative might be necessary. I think that we can trust the judiciary to work that one out. I also think that that course of action is sensible and the very least that can be done to reassure all parties to the litigation and the public that a decision to invoke CMP was strictly necessary and that all alternative solutions had been ruled out first.

I am pleased that the Government have also accepted the argument on equality of arms. It is worth remembering David Anderson QC’s evidence to the Joint Committee on Human Rights on this matter. He said:

“I am a little baffled by this. It is very much part of the Government’s justification for the Green Paper and the Bill that a closed material procedure can achieve fairness for individuals whose claims would otherwise have been struck out.”

It is illogical to exclude an application for CMP if the Government are arguing that the procedure would achieve fairness in such circumstances. I hope that the Government will continue to put forward that justification.

So far, I have made the case for the Government retaining amendments that have already been made, and I am grateful to them when they have done so. I would also like to discuss an issue that has affected many special advocates, who have made it clear that CMPs are “inherently unfair”. That is inevitable, given the circumstances, but the situation should be mitigated as much as possible. A major problem that special advocates have identified relates to their inability fully to represent clients when they are unable to disclose sufficient information to elicit effective instructions from the client. This obviously turns on how effectively and consistently the “AF No. 3 gisting obligation” is applied. Lord Carlile, in his evidence to the JCHR, explicitly acknowledged that that obligation should apply to all proceedings as a default. I am not yet convinced that the language in clause 7(l)(d), which states that the court need only “consider” providing a summary, matches that interpretation.

I hope that the Government will address that matter in Committee. Unless they demonstrate good faith in relation to open justice and state that disclosure will be the default position except in truly exceptional circumstances, it will be difficult to persuade a sceptical public that the measures proposed today are necessary and proportionate. I am afraid that I disagree with the right hon. Member for Wythenshawe and Sale East (Paul Goggins) about the removal of clause 11. His points on individual courts might be true, but an order-making power that does not define the courts involved should not be included in the Bill. It is appropriate that such extreme measures should be fully debated in the House.

Any measure that threatens the rule of law in the UK, or that sends a message that we do not uphold the highest standards of openness and fairness in our judicial

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system, is to be abhorred. However, when the choice is between no justice—due to national security material in evidence causing cases to collapse—and a measure of justice achieved by CMP, we have an uneasy choice to make. If we can hedge CMP around with sufficient protections for both parties—by keeping the amendments that will ensure sufficient judicial discretion and equality of arms and allow courts to ensure that CMP in civil courts is limited to truly exceptional cases as a last resort, and by ensuring that the gisting obligation is honoured—then and only then will the gains in fairness just about make up for the losses in openness. If those protections are not put in place, however, we will lose fairness and openness, and it will be extremely difficult to justify these changes.

3.28 pm

Mr Jack Straw (Blackburn) (Lab): Before I come to the merits of the Bill, I would like to draw the House’s attention to the fact that, along with Her Majesty’s Government, I have been a defendant in civil actions brought by two Libyan nationals and their families—Mr al-Saadi, who has already been mentioned, and Mr Belhaj. A settlement was made public last week in respect of Mr al-Saadi’s case without any admission of liability by any of the defendants. In the case of Mr Belhaj, proceedings are still active. In these circumstances, the House will, I am sure, understand how constrained I must be in respect of these matters at the present time. I hope to be able to say much more about these cases at an appropriate stage in the future. I should, however, make it clear that at all times, in all the positions of Secretary of State that I occupied, I was scrupulous in seeking to carry out my duties in accordance with the law.

On a lighter note, I apologise Mr Deputy Speaker, to you and to the House that I may have to leave if the winding-up speeches go past 6.15 pm, as I have to conduct an open air carol service beyond the House at 7 pm.

Let me move on to discuss the Bill. As Home Secretary and Foreign Secretary, I was responsible over a period of nine years for all three of the agencies—a distinction, I gather, I share only with the noble Lord Hurd in the other place. During those nine years, I came to have a very high regard indeed for the agencies, for their leadership and for all the staff who work for them. I also recognised that it is through improved methods and means of accountability that the quality and standing of those agencies can be improved and not undermined. I therefore greatly welcome the proposals in part 1 to strengthen the role and status of the Intelligence and Security Committee, and, indeed, to add to the powers of the Intelligence Services Commissioner.

The more controversial aspects of the Bill—on closed material proceedings—are contained in part 2. The starting-point for everyone in this House has to be that, in principle, justice must be open and has to be seen to be done. This House and our courts have rightly established a high bar for any modification of that principle. Sometimes, however, they have so modified that principle where it collides with other equally important principles. One of those concerns the safety of witnesses in criminal trials. Thus, in the Criminal Evidence (Witness Anonymity) Act 2008, following the Law Lords’ decision in the Davis case, I introduced—and both Houses quickly

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passed—a statutory scheme providing for witnesses who would otherwise be in grave danger, to give their evidence under the protection of anonymity. That evidence is still heard by the defendant and his counsel, as well as by the jury: it is the identity of the witness, not the evidence itself, that is kept confidential.

There is, then, the situation that this Bill seeks to address, where the clash with the principle of open justice is the greater. That is where in civil actions, not just the identity of the witness, but the evidence they give, is kept confidential from one of the parties and their counsel—typically in circumstances where the action is against the state.

My hon. Friend the Member for Aberavon (Dr Francis), who I regret is not in his place at the moment, talked about part 2 being a “radical departure” from accepted principles of the common law. The irony is that the first “radical departure” to establish closed material proceedings came as a result of the decision of the European Court of Human Rights in the Chahal case. As the Minister without Portfolio pointed out, closed material proceedings were established in response to those human rights concerns and at the behest of the same human rights lawyers who are now claiming that closed material proceedings represent some fundamental breach of human rights. If I may say so, they do not, and the Special Immigration Appeals Commission process has been found to be completely consistent with the European convention.

As we know, SIAC’s task is to determine whether a deportation order made against an individual on grounds of national security should be executed. The special advocates see all the evidence, and their duty—formally to the court and not to the client—is to have all the secret evidence tested as forensically as possible before the tribunal, but the deportee cannot know what the evidence is. As a result, there is an especial burden on the tribunal to test this evidence.

Those who are sceptical about SIAC, or any closed material proceedings, need to address themselves to SIAC’s record. I mentioned in an intervention on the Minister without Portfolio that of 37 substantive cases before SIAC since January 2007, in at least seven, SIAC has found against the Government—and the cases do not go there in the first place unless the evidence is quite strong.

SIAC could not operate without closed material proceedings at its heart. The question before the House today is whether such proceedings should be extended to civil actions. In the case of al-Rawi, the Supreme Court decided that if CMP were to be extended to civil actions, that must be a matter for Parliament rather than the courts. Its decision followed the approach of the Law Lords in R v. Davis.

I make no complaint about that. For all the talk about alleged excessive judicial activism, in both cases the Supreme Court and the Law Lords were simply saying “We cannot make the law here in order to extend the law; this is a matter for Parliament.” That seems to me entirely appropriate, and I take issue with the suggestion of my hon. Friend the Member for Aberavon that it was as big a “radical departure” as he and his Committee had claimed. The truth is that there was no necessity for any radical departure in respect of the accountability of the intelligence agencies until 15 years ago, because before then the agencies were not accountable at all. There was no way in the world in which any of these

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actions would have been entertained. Had they been tried, they would have been struck out by the judge because there was no evidence.

The hon. Member for Oxford West and Abingdon (Nicola Blackwood) is looking at me sceptically, but before 1989, the existence of the agencies was not even admitted publicly. The present situation is relatively new. It arises precisely because of the work done by successive Governments in the last 20 years to make the agencies accountable, and not for any other reason.

Jeremy Corbyn: Does my right hon. Friend really think that the work of an Intelligence and Security Committee all of whose members have been appointed by the Prime Minister amounts to open and democratic parliamentary scrutiny?

Mr Straw: That has been the charge against the ISC in the past, and I am glad that things are going to change. However, I can tell my hon. Friend that I have given evidence to the ISC on a number of occasions, and it is no patsy Committee. It is composed of senior parliamentarians from both Houses, and they do a proper and effective job. The challenge for my hon. Friend is to explain how, given the nature of its subject matter, that job could conceivably be done by means of open hearings. It is not possible. The choice is between an ISC that operates in the way that the Bill proposes, and the absence of any kind of parliamentary scrutiny. I know which I choose.

Let me now deal with the arguments that have been advanced against closed material proceedings. The most frequently used argument is that we should resort to public interest immunity certificates. I accept that, if possible, gisting should be used or the court should sit in camera, but in most cases those options are not possible. Public interest immunity certificates are used fairly often, but they work effectively only when the evidence that they seek to exclude is relatively peripheral to the proceedings. If they are used in relation to evidence that is central to the case, they make it impossible for a trial of the action to take place at all. They do not protect evidence and make it safely usable in court; they exclude it altogether.

Dr Julian Lewis (New Forest East) (Con): Does the right hon. Gentleman agree that the observation by my right hon. Friend the Member for Haltemprice and Howden (Mr Davis)—I am sorry that he is no longer in the Chamber—that PII certificates have not imperilled national security was obviously correct but utterly banal? As long as we are willing to drop all these cases and pay millions of pounds, national security will not be affected, but the Exchequer will be.

Mr Straw: Yes, and using PII certificates in respect of evidence that is central to a case is profoundly unjust to both sets of parties.

Dinah Rose is a leading critic of the proposals in the Bill. I have looked carefully at her response to the consultation document, which was published earlier this year.

She stated,

“PII is not perfect—it does result in some cases being tried without all evidence being available.”

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She also stated that in rare cases:

“PII may also result…in a situation in which a party is ordered to disclose a document which it is not prepared to disclose, leaving it no alternative but to settle the claim.”

She is being disingenuous, because in these national security cases we are talking about not a document—her word—but bundles of documents that are central to the adjudication of the action.

I, like the Minister, dealt with lots of PII cases and had to work through them very carefully. If there were thousands of documents, as there would be in these cases, a Minister would have to take a month or so off to operate that and, at the end, if the court accepted the PII application, there would be evidence that could not be used in the case.

Ms Rose concludes her summary by referring to the need for “potential misconduct” by the agencies to

“see the light of day”.

I absolutely agree with her sentiment. The problem is that in the absence of CMPs, there is no way of determining misconduct by members of the agencies in a civil action. The most that can happen is a settlement out of court with a payment into court but no admission of liability. That is profoundly unjust to both sides. It is unjust to the complainant, who might well have right on their side but who is denied the means to have the court find in their favour, and equally unjust to the agencies and their staff, who might also have right on their side but no means of making their defence.

In the other place, various amendments were made that were designed to strengthen the role of the courts in determining whether and, if so, how CMPs should be used. They will be examined upstairs and I look forward to the result of the Committee. I am in no doubt about the necessity of the Bill and if the sceptics want to make the agencies more accountable, they should have this Bill—

Madam Deputy Speaker (Dawn Primarolo): Order.

3.41 pm

Simon Hughes (Bermondsey and Old Southwark) (LD): It is pleasure to follow the right hon. Member for Blackburn (Mr Straw), the former Home Secretary, and the House will give due weight to his considered contribution. This Bill is clearly important. The world outside might not have realised that it is in three parts: the third is the ancillary part and is very small, the first appears almost to have consensus on both sides of the House, and the second is clearly still controversial.

Let me first say a word about part 1. Ever since I have been in this place, I have felt that it was right that the responsibility for intelligence and security matters should transfer from the Prime Minister to Parliament. It has been a gradual, careful and considered process, but it is right that we have now done that as all three major parties made a commitment that it should happen. I pay tribute to the current Committee and its predecessors, but it is clearly right that people elected by the people should hold our security and intelligence services to account. With some small further changes that colleagues have debated, we will be on the right track and I anticipate that the newly reconstituted Committee will soon be doing a very important job. I pay tribute to all colleagues who are members of the Committee.

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That leaves part 2, which is about the hugely important issue of how we deal with civil cases—I repeat, civil cases—in which there are intelligence issues that cannot easily be shared with the watching world. I say civil cases, but there is one question that was not entirely answered by my very good and noble Friend Lord Wallace of Tankerness, who spoke for the Liberal Democrats and the Government in the House of Lords, when he was asked about the application of habeas corpus, which is not necessarily a civil case in the full sense. He was not entirely clear whether closed material proceedings could apply in a habeas corpus application, and that will need to be specifically addressed as we have to know exactly where we stand as we deal with the Bill.

When the first proposals were published in the Green Paper, my Liberal Democrat colleagues and I were extremely nervous about them. We were concerned that they gave far too much power to the state and far too little power to the courts, and that they crossed the line between the open courts we have always accepted as the right principle and courts with a restricted process. The former Secretary of State for Justice and Lord Chancellor, the Minister without Portfolio, fairly said that the Government wanted to consult and they did, and they have listened to the responses to the Green Paper. There is an argument that there could have been a White Paper, but that is not a central argument for today. It is particularly helpful that not only at the beginning, but by the time the Bill came to the Lords, some changes had already been made. My right hon. Friend the Deputy Prime Minister and colleagues had argued for these changes and set out what, for us, were the bottom lines. In April that was made clear. One of them was that we should restrict the scope of the Bill to national security cases only: done. The second was that we should remove inquests: done, although I hear what the right hon. Member for Salford and Eccles (Hazel Blears) said. There is an inquest question and I do not want to be dismissive of that. The third was ensuring that closed material proceedings were triggered by an application to a judge, not by a decision by Ministers.

Those steps represented good progress. The Bill then went to the Lords, where it was the subject of long deliberation. It was also examined by the Joint Committee on Human Rights. I pay tribute to my hon. Friend the Member for Edinburgh West (Mike Crockart) who served on the Committee for almost its entire work on the Bill. I declare an interest: I joined the Committee at the very end of its proceedings on the Bill. Effectively the work had been done. There was unanimity on the Committee as to the changes that should be made.

I welcome the fact that the recommendations made by the Joint Committee have almost entirely been picked up by the House of Lords on Report and supported by a majority in the Lords—in many cases, large majorities—against the Government. They have made the Bill a better Bill, with many of the safeguards that we want. I hope the Minister without Portfolio and his colleagues in the Home Office will accept the principle of all the amendments that have come to us from the Lords. The Joint Committee wants that to happen and I would urge that, as would my party colleagues.

In between those two things we debated the Bill at our Liberal Democrat conference in Brighton, and it got a resounding thumbs-down from my colleagues as going far too far across the line to closed courts from

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open courts. I understand that, and I am sensitive to it as I make my remaining comments this afternoon.

John Hemming (Birmingham, Yardley) (LD): With reference to our party conference, there are those who, like me, would perhaps see closed material proceedings limited to the quantum and the consideration of the quantum rather than the substantive issue. Perhaps that would be an alternative that would attract more support from the party.

Simon Hughes: That is a point of view, but I am not sure. I have not discussed it with my hon. Friend. The point of view of our colleagues was that we have to be very careful when we move away from open justice. We have to accept the evidence of those who say it is not necessary. The Joint Committee heard from the special advocates that it was not necessary. They did not support the proposal and we should give that due weight.

The central issue is what the procedure will be in order to protect the security interests on the one hand, but make sure that we deliver a fair outcome to a reasonable case on the other. The existing system, the public interest immunity system, means that Ministers declare documents secret and therefore they cannot be used. It is a very simple system, although it can be time consuming. I accept the argument that that often means that a case cannot be carried through to a conclusion, so I am not here to defend the idea that the PII system is the solution to all our difficulties.

Happily, the Bill is now drafted in such a way that consideration has to be given to that option first, and to whether, if certain documents are withheld, the trial can none the less proceed fairly. But if that is not the answer entirely, we have to consider whether there is something else. I want to flag up the changes that have been made and the ones that I think might get us nearer to what my party colleagues would like to see, as would many people who have written to us.

First, it is right that we should stick to the idea that the discretion is with the judge, not with Ministers of the state as an alternative. That is why the change referred to by the hon. Member for Oxford West and Abingdon (Nicola Blackwood), that the judge “may” do things, rather than “must” do things, is the right change—small word but big implication in the context of clause 6. We have added the requirement to look at alternatives, such as the PII alternative. We have also added the requirement—a good one—that all parties to the proceedings can apply for closed material proceedings, or that could happen at the judge’s instigation, which is a good thing. We have also dealt with the inquests issue.

However, we have not dealt with the fundamentally important issue of how a defendant can see the evidence against them, and that is what gave the Joint Committee on Human Rights its biggest difficulty. The Committee made it absolutely clear in its report’s conclusions that, because we had not had the information that justified the case and had heard from the special advocates that they were not persuaded, even though the Government’s official reviewer said he was persuaded, the Committee was not persuaded either. That is set out in paragraphs 44 to 46. There was uncertainly about how many cases we were talking about. Paragraph 42 states:

“In the light of the lack of clarity about whether the number of pending claims is 27, 15, 6 or 3, and in the light of the Independent

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Reviewer’s evidence we wrote to the Minister in charge of the Bill on 23 October to ask how many civil damages claims were currently pending”.

Just after the Committee wrote the report, the Advocate-General for Scotland, my noble Friend Lord Wallace of Tankerness, replied to that:

“I can confirm that as of 31 October 2012, there are 20 such live civil damages claims (including those stayed and at pre-action stage). There are also a number of other live cases, including judicial review challenges.”

He went on to elaborate the detail of that figure. I think we have to accept that that is roughly the number of cases we are talking about, but some of them are very significant cases and cannot be dismissed.

We must therefore take seriously the challenge that the Government have brought us. My honest view is that we have to allow the defence better access to the information, either through special advocates or by another means. It is on the new word that has only recently come into our language—“gisting”, which means allowing the defence to see not every iota of evidence, but the gist of it—that we need to do the most work in Committee. I think that there must be a mandatory requirement that the information be given in summary to the defence and that the defence—they can be specially cleared defendant advocates or representatives—can see the evidence, respond and take instructions on it. If we are going to say that we will allow the courts to go into closed session, it seems to me that we need the security of knowing that the defendant will have the right to know the case against them and the right to challenge. I hope that the Committee will do some detailed work on that over the coming weeks.

I agree that we need to deal with the Norwich Pharmacal situation, because at the moment we are precluded from using intelligence from abroad because of the court’s overriding power to have that put into the public domain. That has to be dealt with, because it is clearly unsatisfactory. I agree that we need to have a reporting and reviewing process and allow the media to make representations, as recommended by the Joint Committee.

I have two final points. First, we must ensure the judicial balance of national security against the public interest takes place in the second stage of the closed material proceedings process, not just at the gateway. Secondly, we have to consider whether we can just sign off this legislation forever or whether we have to come back to it in a certain number of years. This is very unusual territory for us. Civil liberties are at risk. We have made progress, but we are not there yet.

3.53 pm

Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC): It is interesting to follow the right hon. Member for Bermondsey and Old Southwark (Simon Hughes). He said that there was a lack of evidence to support the need for change, which was reminiscent of where the proposal for 90-day pre-charge detention fell down. I believe that part 2 of the Bill threatens to undermine the principle of natural justice that demands that parties to an action should be given access to the case they confront. The Bill is deeply contentious, but some vital amendments have been made by the other place and I think that they must be upheld as a bare minimum, although I am sure that I am not alone in wishing that certain elements of the Bill should be removed entirely. On my reading, even as

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amended the Bill could result in members of the public losing their cases against the state without ever having been told why, in the Government’s being allowed to hide evidence of wrongdoing, and in officials being given the power to exclude the other party from court proceedings. As Reprieve points out, that effectively means that they could place themselves beyond challenge and hence above the law.

Last week, we heard about the Finucane case. We were all heartily disgusted at what went on—the collusion between the police service and the security services. God forbid, but if such a thing happened again, I believe that the Bill would make it easier for the state to prevent a family from suing in such circumstances. Have we thought about that?

Part 2 also sets out the Government’s intention to remove the courts’ power to order someone who has been involved in wrongdoing to disclose information—the Norwich Pharmacal jurisdiction, which needs to be considered in Committee.

I shall restrict my remarks to the proposed extension of closed material procedure—known as “secret courts” in outside parlance—to all civil proceedings in clauses 6 to 13. Responding to those provisions, the president of the Law Society and the chairman of the Bar wrote to the Minister without Portfolio saying:

“CMPs…undermine the principle that public justice should be dispensed in public and will weaken fair trial guarantees and the principle of equality of arms. These are both essential elements of the rule of law.”

I might also add, as others have, that they undermine the principle that justice must be seen to be done.

We have heard what the Joint Committee on Human Rights has said. It has been vocal in its criticism of the legislation and has drawn attention to the

“troubling lack of evidence of any actual cases demonstrating the problem which the”

Government “asserts to exist.” At no point have the Government produced any known case that could not be tried under the current public interest immunity system, which I have seen operate over many years as a legal practitioner myself.

The special advocates memorandum says

“CMPs are inherently unfair and contrary to the common law tradition...the Government would have to show the most compelling reasons to justify their introduction...no such reasons have been advanced; and...in our view, none exists.”

It speaks volumes that the special advocates memorandum was so scathing about what the legislation purports to do; special advocates, of course, are better qualified to comment than anyone else. Among their concerns was the fact that the Bill as originally drafted required a judge to allow the Government’s application for a CMP if there was any material at all that could damage national security, even if the judge considered that the case could be fairly tried under the existing PII. The memorandum also makes the point that the decision on whether to trigger a CMP should lie with a judge and not the Secretary of State—an amendment to that effect has been carried and is most welcome; I hope that it will remain in the Bill.

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Furthermore, under clause 6 as it originally stood, only the Government would have been able to apply for a CMP and not both parties. That is objectionable. The amendment on that is also welcome and I hope that it will be retained, although I am sure that the circumstances in which a plaintiff or claimant would apply would be limited.

I wish to refer to comments made by Lord Hodgson on Report in the other place. He said:

“I would like to see enshrined in the Bill a set of steps-hurdles…that the Government of the day will have to clear before they can resort to a CMP. The first is a requirement to go through the public interest immunity procedure, from which the judge can reach a balanced conclusion on whether the interests of national security require a closed court.”

In the same debate, Lord Pannick, a pre-eminent Queen’s Counsel, is recorded as arguing that