“a judge in an individual case should have a discretion, not a duty, to order a CMP.”—[Official Report, House of Lords, 21 November 2012; Vol. 740, c. 1812-14.]

I urge the Government to take heed of those arguments and to uphold the amendments carried in the other place.

Perhaps the most disturbing provision of all is in clause 7(1)(d), which provides that, if a CMP is triggered, a court is not required to give the excluded party a summary of the closed material. Rather, the Bill as drafted requires only that the court should “consider requiring” that such a summary be given. Clause 7(1)(e) provides that the court must ensure that where a summary is given it

“does not contain material the disclosure of which would be”


“the interests of national security.”

Mr Robert Buckland (South Swindon) (Con): I am listening very carefully to the right hon. Gentleman. Is not the problem with his argument on clause 7 that there will be cases, if only perhaps a very few, where gisting will not be possible without revealing the essence of what needs to be secret? Therefore, is it not essential to retain some discretion for the court to “consider”, and does that not give more power to the judges?

Mr Llwyd: The hon. Gentleman has obviously thought about this, and he may well be right, but at the moment we are all looking into a rather dark room as we do not know what we are actually facing. What he says is quite logical, and I accept it, but I remain concerned.

Steve Baker (Wycombe) (Con): I am tempted on the whole to agree with the thrust of the right hon. Gentleman’s argument, but I draw his attention to clause 7(3), which, if I understand it correctly, requires that the court would direct that the party would not be able to rely on such points unless they provided a summary. I am therefore not sure that his argument stands.

Mr Llwyd: I believe that it does.

Mike Crockart (Edinburgh West) (LD): Will the right hon. Gentleman give way?

Mr Llwyd: I would like to make some progress.

I have no time to deal with that at this stage. The hon. Member for Wycombe (Steve Baker) may be right; I do not know. I would like to discuss it with him on another occasion, perhaps in Committee.

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If clause 7 goes through unamended, there will be no requirement to give excluded parties sufficient information about the case. I have heard the arguments about gisting, but surely in 99.9% of cases the gisting procedure will be the answer, coupled with other safeguards, one hopes.

Nicholas Blake QC, in giving evidence to the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights, made the following comments on the situation that would arise after a judgment is given:

“If the special advocate thinks there is an error of law in the closed judgment, he gets permission to say, to pass the message out to the other team to say ‘I think that you should be appealing, I can’t tell you why’...So there is a sort of open appeal. ‘We think there is something wrong but we don’t know what it is.’ And then the court goes into closed session, so it is antithetical to every”


“of due process and open justice.”

The Joint Committee on Human Rights has urged the Government to ensure that if CMPs are to be extended, there must be a

“statutory requirement in all cases to provide the excluded party with a gist of the closed material that is sufficient to enable him to give effective instructions to his Special Advocate.”

That is entirely reasonable, while taking on board what the hon. Member for South Swindon (Mr Buckland) says about avoiding breaches of national security, and so on. The Constitution Committee said in its report on the Bill published in June this year:

“In our view, the court should be required, for example, to consider whether the material could be disclosed to parties’ legal representatives in confidence and whether the material could be disclosed in redacted form.”

A related point that must be raised is the knock-on effect that clause 7 may have on appeals in civil cases, which is something that we really need to think through.

The Law Society has pointed out that the extension of CMPs will have wider implications for civil litigation and the professional ethics of solicitors. Solicitors will be impaired in advising their clients on the merits of a case and the prospects of success if they are unable to see the evidence brought by the other party. They will also be unable to advise on any prospect of an appeal, so undermining the client’s right to legal assistance in the determination of their civil rights and the fair trial guarantees under article 6 of the European convention on human rights.

The provisions contained in part 2 of this Bill will mark a departure—I am not saying that it will be radical, but it will be a departure—from the principles of open justice, and it will possibly undermine confidence in our justice system. I sincerely hope that this House will follow the example of the other place in seeking to amend what appears to be an unbalanced Bill. Discretion as to whether a CMP should be used must ultimately lie, of course, with a judge and not the Secretary of State. Although courts should be required to balance the interests of national security against those of fairness, either party in proceedings should be able to apply for a CMP and, perhaps most importantly of all, there should be a statutory requirement in all cases to provide the excluded party with a summary of the material to enable him or her to give cogent instructions to the special advocate representing his or her interests in court.

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4.5 pm

Steve Baker (Wycombe) (Con): I am grateful that this Bill began its journey in the other place, so that people, such as myself, who are not learned could have the benefit of the thoughts of some of our most senior lawyers. I took two things in particular from their deliberations on Report: first, that many of our great legal minds support the Bill, and secondly, that they support it with their suggested amendments.

Lord Pannick has been quoted and counter-quoted, but, for the benefit for those of us who are not learned, he said that

“the proposals constitute a radical departure from the cornerstone of our legal system: the right of a party to know, and to challenge, his opponent’s case” ,


“The Government's proposals in themselves constitute a significant reputational risk to our system of justice.” —[Official Report, House of Lords, 21 November 2012; Vol. 740, c. 1817-18.]

I was particularly struck that Lord Phillips of Worth Matravers, who was the first President of the Supreme Court, supported the Bill.

When I consider the balance of liberty, justice and security, I am always inclined to go for liberty and justice, but it would be difficult for me to oppose the Bill as presented. I hope the Government will look extremely sympathetically at the amendments that have been made.

My right hon. and learned Friend the Minister without Portfolio said specifically that he did not expect any serious discussion about the principle behind the Bill. I was conscious of that when the hon. Member for Aberavon (Dr Francis) seemed to confess, if I understood him correctly, that his Committee thought it would be futile to stop the Bill, so it sought to make the best of it.

There seems to be enormous momentum behind the Bill, but no particular enthusiasm to carry it through. Why is there this sense of futility about what is a cornerstone of our judicial system? My right hon. Friend the Member for Haltemprice and Howden (Mr Davis) mentioned some of the instances that show that the state is not always to be trusted, so it is important that we ask ourselves why the particular set of circumstances under discussion should drive us forward.

There are two issues to consider. First, the highest principle of government today seems to be expediency rather than ultimate values. Secondly, security is the highest aim. We have come a very long way indeed since the time when a British Prime Minister might have said that necessity is the plea for every infringement of human liberty—I expect that colleagues will know the rest of that. Indeed, in the face of a Bill such as this and the lukewarm support it has received, those of us who think that liberty and justice are our best form of security have very little to add.

Finally—I will finish early—we should not be surprised if those outside the House who share my view that liberty and justice matter so much are extremely concerned. If we put this measure in the context of the draft Communications Data Bill, the Government’s plans to reduce access to judicial review and, indeed, measures for general anti-avoidance rules for taxation, we see that there is a significant rebalancing of power towards the state—and towards the administrative state at that. It is a disturbing path, but we seem unable to escape it.

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I hope that the Government will consider the amendments extremely carefully and that we will end up with a Bill in which we can take at least some pride.

4.8 pm

Mr George Howarth (Knowsley) (Lab): It is a pleasure to follow the hon. Member for Wycombe (Steve Baker), who set out neatly and succinctly the competing principles that we are dealing with, particularly with regard to clause 2.

I speak as someone who has had the privilege of sitting on the Intelligence and Security Committee since 2005. Without trying to amplify my own influence, that nevertheless gives me a certain insight into the matters under discussion. I will say a brief word about part 1 and then rather more about part 2.

As a member of the Intelligence and Security Committee, I welcome part 1 pretty much without reservation. Two issues have still not been fully addressed, but I think they can be resolved in Committee. The first relates to the oversight of operations, particularly when they are ongoing. We have had oversight of ongoing operations on occasion, and that ability, with the co-operation of the agencies, has been quite important. That issue has not been fully resolved in the Bill. I hope that it will be resolved through further amendments or the proposed memorandum of understanding, but we are not quite there yet.

Paul Goggins: Does my right hon. Friend agree that it is very important that the Bill does not prevent the Intelligence and Security Committee from undertaking the tasks and inquiries that it currently carries out?

Mr Howarth: My right hon. Friend’s assertion is right. I do not think it is anybody’s intention that that should happen, but we have concerns that the current wording might lead to that inadvertently.

The second issue, which has been referred to by several hon. Members and initially by the Chairman of the ISC, the right hon. and learned Member for Kensington (Sir Malcolm Rifkind), relates to the resources that it will take for the Committee to do the job that is envisaged in the Bill. I do not want to labour the point, but we are being asked to do a great deal more. I think that it is right to extend what we, as the representatives of this House in such matters, can do, but it will take more resources. As others have said, the secretariat of the Committee is working exceptionally long hours, often without any additional remuneration. People cannot be expected to do that indefinitely, especially when the amount of work that they have to do is increasing. I hope that the staffing issue can be put to bed before the Bill gets much further.

Dr Julian Lewis: In support of what the right hon. Gentleman, who is also my friend, has just said, the House should bear it in mind that it is not just a quantitative increase in resources that is required. If that increase is forthcoming, there will be a qualitative change because, as the Chairman of the ISC pointed out, the new people will act like investigators, going into the agencies and thus giving a realistic prospect of seriously close scrutiny.

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Mr Howarth: The hon. Gentleman is correct and I am glad that he has added to what I have said.

I will address my remarks on part 2 to closed material proceedings. Usually, if I find myself in agreement with the Minister without Portfolio and the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) on these matters, it means that I am in the wrong and I change my position. They tend to be far more liberal than me on these matters.

Mr Straw: Not difficult.

Mr Howarth: Indeed. However, I am reassured by the unholy alliance that has been formed between my hon. Friend the Member for Islington North (Jeremy Corbyn) and the right hon. Member for Haltemprice and Howden (Mr Davis). That has made me feel a little more secure about the extent to which I agree with those other Members. I rather think that I have brought on an intervention with that remark.

Jeremy Corbyn: An intervention has indeed been brought on. Will my right hon. Friend concede that during all the time we have been in Parliament, we have always disagreed on anti-terrorism laws? I continue with my position, because I believe in the power of the courts rather than in secrecy.

Mr Howarth: I am grateful to my hon. Friend. In fact, we have almost never agreed on anything, and as far as I am concerned, long may that continue.

I shall try to make it clear where I stand and what I think happened as the Bill progressed through the other place. I start with a proposition that almost everybody would agree with—perhaps everybody other than my hon. Friend. It is that the state has to be able to hold secrets. That is not a desirable state of affairs, but the reality of relationships around the world and the problems that we face even within our own country are such that the state sometimes has information that should remain uniquely its property.

If that is the case, the question arises of what should happen in court proceedings. Closed material proceedings relate to civil cases. I do not know whether anybody other than me, sad as I am, has read the history of the agencies involved, but this is not a new phenomenon. As far back as world war one, some cases simply did not go to court because the agencies concerned did not want their networks, individual agents and practices exposed in a court of law. That is not new. What is new is that we now have cases exported from abroad, as it were, and heard in our courts for civil reasons.

The right hon. Member for Haltemprice and Howden came to the debate, said a few words and went—he does not seem to have listened to anybody else’s argument, but that is a matter for him. He made two fundamental mistakes, and I will deal with them in turn. First, he gave an example of what must have been a Special Immigration Appeals Commission case in which a special advocate had been used and the case had been overturned as a result of his being privy to certain information. The right hon. Gentleman prayed that in aid as an argument against special advocates, but as far as I could tell it was an argument in exactly the opposite direction. His point was flawed in that respect.

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Secondly, the right hon. Gentleman seemed to misunderstand the control principle. It means that when agencies representing two nations share information, the originator of that information has control over what happens to it when it is shared. He cited the Binyam Mohamed case and was right that some of the evidence that emerged in a British civil court had previously been heard in a court of the United States’ jurisdiction. However, that does not alter the principle. The fact that that information could have been found by other means does not mean that the originator of the intelligence does not still own it. The problem was a breach of principle rather than the actual information that came out in the British court.

I echo what several Members have already said: I and many others have reason to know that there have been cases in which lives in this country have been saved because of shared information. To be blunt, if we cannot continue to share information with our counterparts, particularly in America, but not exclusively, lives will be lost. That is the tough, blunt reality of the choice that we have to make. I have no doubt that the balance of the argument lies with a system that many people say, from pure legal principles, is imperfect, but it is the best system that anyone has been able come up with to deal with the problem. I have no difficulty in supporting part 2, and I have no difficulty in supporting Second Reading if there is a Division.

Finally, we have to make a choice on closed material proceedings—the hon. Member for New Forest East (Dr Lewis) made a point about that in an intervention. We also have to make a choice about whether it is better not to defend civil cases because we know from the arguments that PII will not resolve the issue; it just means that nothing will be heard. Do we not defend those civil actions, many of which are probably founded on dubious grounds, and carry on paying out millions of pounds in compensation, even in cases where we know that the person concerned had bad intent to this country and its citizens? I think I know what my constituents think about that issue. I know where I stand: the answer is no, we should not carry on spending that money for that purpose.

4.21 pm

Mr Andrew Tyrie (Chichester) (Con): It has been an interesting debate, full of thoughtful interventions, and I have learned quite a bit.

I should like to make three initial points. First, I strongly support the work of the security services, which is essential for our safety. My concerns about the Bill need to be seen in that context. Secondly, I shall refer to the origins of the Bill, and thirdly, I shall deal with what might be at stake, even though we shall discuss it only to some extent this afternoon.

The Bill came about partly as a consequence of the recent exposure of Britain’s involvement in a programme of extraordinary rendition. Bringing all that into the public domain is a matter of deep concern to the Americans, particularly their security agencies. They are worried that our court proceedings could lead to the exposure of intelligence information handed to them by us. The Bill is a consequence, as we have just heard, of the cost and embarrassment of settling a number of civil actions brought by people who have alleged maltreatment. To deal

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with the first problem, the proposal is to close down the so-called Norwich Pharmacal jurisdiction and, to deal with the second problem, the Government have decided to replace public interest immunity certificates with closed material procedures in most national security cases. I shall come on to the case for those proposals in a moment.

I should like to discuss briefly what is at stake in a broader perspective. All these issues may appear to be abstruse and technical, but they are about the kind of society that we want to live in. It is worth saying a little more about the trigger for the Bill—the issue of extraordinary rendition. We now know that Britain facilitated extraordinary rendition—we do not know its extent—and the Bill may make it more difficult to find out the degree of Britain’s complicity. Senior British public officials have facilitated the kidnapping of people and their transfer to places where our Government knew they might be maltreated or tortured. Last week, Britain paid £2.2 million in compensation to someone who was apparently rendered—and tortured—along with his family, to the Gaddafi regime by British intelligence in 2004. Britain also facilitated the rendition of Binyam Mohamed to Morocco, and apparently he, too, was horrifically tortured. There are other cases, possibly many more: we do not know.

If we do not get to the bottom of our complicity in such disgusting practices, we surrender the moral high ground. We must be wary about extending secret court proceedings for the same reason. Secret courts are usually held to be the tools of dictators, not of democracies, and their prevalence is often a test of whether a society can be called “free”. I am deeply saddened that my country has become involved in kidnap and torture, and I do not want it to be accused—rightly or wrongly—of covering up such things. That, however, is exactly what Britain’s detractors abroad might claim—fairly or unfairly—about this Bill.

Dr Julian Lewis: I appreciate the serious point about getting to the bottom of a given rendition. Does my hon. Friend agree that if we are left with only PII, pay-offs will tend to be given and we will not get to the bottom of cases? However, if a pay-off is made when closed material procedure could have been used, one can deduce that something was amiss because although the Government could have used a more specific route, they chose not to do so.

Mr Tyrie: My hon. Friend makes an interesting point. The judge now has discretion on CMPs—at least, I hope that is where we will end up as a result of efforts in the other place—so we could arrive at a position where we have more justice and not less, which is the underlying principle we are discussing. With respect to Norwich Pharmacal, the case is unarguable. We would know less about rendition had the Norwich Pharmacal jurisdiction been closed down, because it was used to elicit information about the extent of Britain’s involvement.

The Government have argued that CMPs could deliver more justice because they will be able to introduce evidence that they cannot introduce at the moment for fear it will damage national security. How true is that? I do not know—very few Members present in the Chamber do. The special advocates, security-vetted lawyers who are responsible for making CMPs work, are the small

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group of people with access to the information required to know the answer. They have been unequivocal—the right hon. Member for Knowsley (Mr Howarth) quoted them a moment ago. They say that CMPs are not

“capable of delivering procedural fairness”

and that their introduction

“could only be justified by the most compelling reasons and, in our view, none exists.”

It is worth reading the report by the special advocates in full as it is pretty blistering.

I am grateful to the Minister, my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), for returning to the Chamber, as he also said that PII was deeply flawed. It is certainly not perfect but, again, the special advocates have expressed a view and said that

“there is as yet no example of a civil claim involving national security that has proved untriable using PII and the flexible use of ancillary procedures (such as confidentiality rings and “in private” hearings from which the public, but not the parties, are excluded).”

Stephen Phillips (Sleaford and North Hykeham) (Con): That statement may be accurate in so far as it goes, but one case—the Carnduff case—was stayed because it could not be properly tried, albeit that it was not directly in the national security arena. The Supreme Court has said that the principle exists, in which case there will be cases where there is no trial at all unless we use CMPs. Surely my hon. Friend will agree that it is better to go down that route than to have the possibility of no trial for very serious cases.

Mr Tyrie: I agree that a CMP could be of use in some cases. My point is that the special advocates, who are well placed to judge, have looked at the proposals and said that, so far, they have seen no cases in which PII could not do the job.

A cynic would argue that the special advocates have an interest in arguing for more legal work and more CMPs, but it is significant that they have spoken in the opposite direction—against the extension of CMPs. Their lordships shared the concerns of the special advocates, and by majorities or more than 100, shredded that part of the Bill.

The Lords amendments included two crucial safeguards that I consider to be essential. The first, which we have discussed, is that they gave the judge rather than the Minister discretion on whether to hold a CMP. The original Bill clearly gave the lion’s share of that discretion to the Minister, and it is not true, as the Minister said a moment ago, that he gave up that position “months ago”. If he gave it up “months ago”, why on earth did their lordships debate replacing the word “must” with the word “may” only a fortnight ago?

The second crucial Lords amendment was a measure—clause 6(6)—to ensure that a judge should be able to exhaust PII in his search for justice before considering CMPs. Unfortunately, my right hon. and learned Friend the Minister did not say that he would accept it. On the contrary, he used a number of phrases to suggest that he would do no more than consider it, and that he had not yet finished his consideration. I regret that and the fact that we are discussing the Bill so quickly. It needs

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further consideration and I agree with him on that. The debate should have taken place in January. That it is being rushed through just before Christmas adds to my concerns.

A third safeguard would be valuable. A review should be held after a period to see whether CMPs have led to more rather than less justice. To ensure that the review happens properly, it should be accompanied by a sunset clause—in perhaps seven, eight or 10 years. That proposal was a recommendation of the Joint Committee on Human Rights, the Chairman of which is not in the Chamber at the moment. I would like it included in the Bill.

Having said that, my concluding thought is this: we should remain deeply sceptical of the utility of holding a hearing in which one party is shut out of the case. This is what the former Director of Public Prosecutions has to say on that—I shall quote it in full, because it is so forceful. He said:

“I have spent many years in criminal courts watching evidence that at first sight seemed persuasive, truthful and accurate disintegrating under cross-examination conducted upon the instructions of one of the parties…That is the risk that we are facing, that we are introducing into civil justice—in the most sensitive and controversial cases, where deeply serious allegations are made against the Government and the security services—a process that expels the claimant and gives him a form of justice that is not better than nothing. It is worse than nothing because it may be justice that is based on entirely misleading evidence.”.—[Official Report, House of Lords, 21 November 2012; Vol. 740, c. 1989-1900.]

I accept that, in some very restricted circumstances, one can conceive of more justice being achieved with a CMP than without one, but I am clear in my mind that that must come only after all other existing routes to try to obtain justice, including PII, have been exhausted. The Minister has not accepted clause 6(6) as amended by the other place. For that reason, above all, I cannot accept the Bill.

4.33 pm

Jeremy Corbyn (Islington North) (Lab): It is a pleasure to follow the hon. Member for Chichester (Mr Tyrie). I want to put on record my thanks to, and admiration for, him for forming the all-party group on extraordinary rendition and his work on exposing the awfulness of extraordinary rendition and how many Governments, either willingly or unwillingly, were deceived into allowing it to take place through their jurisdictions. The House owes him a debt of gratitude for that.

The hon. Gentleman is also right about the speed with which we are considering the Bill. I suspect we will return to major human rights issues in the near future. The Commission on a Bill of Rights has just published its report, which makes excellent reading. I urge all parliamentarians who see their role as protecting civil liberties in our society to read the authoritative essay in the report by Baroness Helena Kennedy and Phillipe Sands QC. They make the point of building on the past rather than destroying the march towards an open society in which we have genuinely independent judicial systems.

I want the House to consider the Bill—particularly in Committee when we come to reform it—in the context of the power of the secret state: the very large power held by the security services in our society and how, in every western state, they have grown enormously since 2001 and the declaration of the war on terror.

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Guantanamo Bay is a product of that thinking. It is a most evil institution that has treated people abominably, denied them any right to justice or proper access to judicial process, and tortured them and kept them there for many years. Our country took part in the extraordinary rendition of people from Afghanistan to Guantanamo Bay. Indeed, rendition even took place through Diego Garcia, which is part of the British Indian Ocean Territory, by the use of the US base there.

Political opportunism led us from being an enemy of Colonel Gaddafi to being a friend of Colonel Gaddafi then an arms supplier to Colonel Gaddafi. We were apparently so involved in his operations that our security services were prepared to hijack one of his enemies from another jurisdiction and take him back to Libya, where he was subsequently tortured by Gaddafi’s henchmen. That information was uncovered only in the chaos and rubble of Tripoli. So far £2.2 million has been paid in compensation, which I assume avoids the embarrassment of an open court case with Sami al-Saadi. As my right hon. Friend the Member for Blackburn (Mr Straw) pointed out, the Belhaj case is still pending and cannot be discussed. There is a lesson here about our easy acceptance of the power of the secret state and the security services, which has led us to this appalling situation where that amount of money has to be paid because of clear transgressions of the rights and justice of an individual who was standing up for the society he believed in—something that we claim to want all around the world.

The Bill deals with two or three issues that I want to cover briefly in the short time available, the first of which is parliamentary oversight. When I first came into the House in 1983, there was no parliamentary oversight of security services at all. It was an article of faith in the Labour party at that time—my right hon. Friend the Member for Knowsley (Mr Howarth) and I may agree on this particular point—that there should have been some parliamentary oversight of the security services. There we have it—agreement on this occasion.

Mr George Howarth: I would not want my hon. Friend to take this too far, though.

Jeremy Corbyn: I am very cautious about claiming agreement and support at any stage, but I thank my right hon. Friend for that. I am sure that he would acknowledge that, despite the demand for parliamentary oversight and the subsequent considerable reforms of the House of Commons—achieved mainly by the former hon. Member for Cannock Chase Tony Wright—where we now have elected Select Committees and a much greater sense of openness in our business, the Intelligence and Security Committee seems to have avoided the reform process altogether. It is the only Select Committee where its members are appointed by the Prime Minister, in consultation with the Leader of the Opposition, and where the Chair is elected by the Committee rather than by a vote by party caucuses of the whole House. Its reports are published, yes, but one wonders how much is told to our colleagues on the Committee. I have no great ambitions or expectations of being appointed to it, but in an elected process all kinds of things could happen. Patronage is one of the great traditions of the British Parliament. It creates the illusion that the security services are accountable. I would have hoped that the Committee would have given the security services an

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extremely hard time over Sami al-Saadi, in whose case the British security services were clearly involved, over Guantanamo Bay, over Diego Garcia and over many other issues.

The second point I want to raise concerns the process that has led us to this pass of having a degree of secrecy in our courts. I opposed the establishment of the Special Immigration Appeals courts because they were anathema to everything we believe in: a special judge alone has access to the evidence; the defendant has no access to it; the defendant’s barrister has no access to evidence that he can share with his client; only the prosecutor has access to it. The whole issue is stacked against the defendant, and therein lies the potential for the most massive miscarriages of justice. Those of us who have spent much of our lives campaigning against miscarriages of justice will be well aware of past secrecy and the need for openness.

In opening, the Minister without Portfolio made much of the fact that the closed material procedure would be decided by a judge. Clause 6(2) states that

“a party to the proceedings (whether or not the Secretary of State) would be required to disclose material in the course of the proceedings to another person (whether or not another party to the proceedings)”,


“the degree of harm to the interests of national security if the material is disclosed would be likely to outweigh the public interest in the fair and open administration of justice, and”


“a fair determination of the proceedings is not possible by any other means.”

It seems to me that the Secretary of State would have considerable power in that situation.

I hope that the House understands the depth of feeling among many eminent people outside the House who have spent their lives campaigning for justice—against all the odds—and sometimes achieved it. Those who campaigned on Hillsborough eventually achieved justice, as did those who campaigned for the Birmingham Six and the Guildford Four. I do not want us to create yet another situation in which future miscarriages of justice can take place.

John McDonnell (Hayes and Harlington) (Lab): Like me, my hon. Friend was here when the Special Immigration Appeals Commission procedures were introduced, about which we expressed some concern. He has referred to cases about which concerns have been expressed. Would he also like to comment on clause 12 with regard to SIAC? The case of (AHK and Ors) v. Secretary of State, which concerned a refusal of British citizenships on grounds of character, summed up what can go wrong in these procedures. Justice Ouseley said that

“he has been told nothing other than that naturalisation has been refused on the grounds of character and that it would be contrary to the public interest to give reasons.”

He continued:

“It is not so much that the case is untriable…it is simply that the evidence means that the Claimant cannot win.”

Jeremy Corbyn: Having dealt with cases of constituents who have been refused naturalisation or British nationality on the basis of evidence that is unavailable, I understand exactly my hon. Friend’s point and the point made by Judge Ouseley.

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In its briefing on the Bill, Reprieve told us:

“The Bill, even as amended, would still mean that…Members of the public could lose their cases against the state without ever knowing why; or knowing what evidence was used against them”,

It also states that the

“Government would be able to cover up evidence of wrongdoing”,

and that

“Ministers and officials would be able to exclude the other side from court, effectively putting themselves beyond challenge and above the law.”

The Bill would allow Ministers to use secret courts in a wide range of cases, such as those of soldiers or their families bringing negligence claims against the Ministry of Defence over faulty equipment resulting in injury or death. Many colleagues have taken up cases of soldiers who have died in the most tragic circumstances and where, on the face of it, there is a case against the Government. It could also include victims of torture or rendition seeking redress in cases in which the Government have been involved and actions brought against the Government over corruption in arms deals, which was a point I raised with the Minister earlier.

Amnesty International has also expressed deep concern about the Bill. It is concerned that the move

“could potentially mean that individuals and their lawyers who are seeking to establish the extent of the involvement of UK officials in serious wrongdoing such as torture and enforced disappearances, will be prevented from seeing crucial documents on “national security” grounds. This secrecy could be maintained potentially indefinitely, even if there is an overwhelming public interest in disclosure.”

I appeal to the House to think carefully and seriously about what we are discussing and voting on here today.

A couple of months ago, I was in the High Court to hear the case being brought by the Mau Mau people from Kenya relating to the abominable way in which they had been tortured and ill-treated by the British armed forces in the 1950s. They finally won their case and were able to present their evidence to the court. That evidence had been hidden for 40 years. They had been denied access to it, and it was only their determination that brought it to light. It had been held using secrecy arguments, and I suspect that if legislation such as this had already been in operation, they would still not have been able to bring their case to court.

Before voting on the Bill, we must think seriously about the implications of creating an even stronger secret state and an even less accountable judicial system. We must also remember that our function as Members of Parliament is to represent people against power, so that they can get justice through an independent judicial system.

4.45 pm

Stephen Phillips (Sleaford and North Hykeham) (Con): It is a real pleasure to follow the hon. Member for Islington North (Jeremy Corbyn), who speaks consistently on this and other civil rights issues, even if he does not often agree with the right hon. Member for Knowsley (Mr Howarth). I suspect that, on this occasion, he is also unlikely to agree with me.

I have to confess that I hesitated before deciding to speak in this Second Reading debate, partly because I see a Bill Committee looming and the prospect of

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12 days in the spring with the hon. Member for Hammersmith (Mr Slaughter) is not particularly attractive to any of us, and partly because consensus seems to be emerging among the majority of Members that, unsatisfactory though the Bill might be, it is none the less a necessary measure.

There is little disagreement on the first part of the Bill, which will establish a regime for the oversight of the intelligence services that has long been called for. That is much to be welcomed. It is the second part of the Bill, which deals with the closed material proceedings—wrongly, in my view, called secret courts—that appears to cause controversy. I shall focus my remarks on that part of the Bill, although not at length as consensus is emerging and many of the points that I wanted to raise have already been discussed. The right hon. Member for Salford and Eccles (Hazel Blears), for example, identified many of the arguments that I would deploy in support of the Bill being given a Second Reading.

Many lawyers, myself included, regard the Bill as at best undesirable and possibly pernicious. The obvious reason for that is that the principle that has served us well for many years is that we do justice publicly. We also permit full access to the evidence for those against whom allegations are made—whether serious or not; in these cases, they usually are—and for those who make those allegations, in order that a fair adjudication can be openly and publicly be made of their complaint and of what has been said against the accused.

The Government need to persuade those who have expressed concerns that the mischief against which the Bill is said to be directed is so serious that, in the limited number of cases to which closed material proceedings would apply, we need to take a fundamentally different approach from the one that has traditionally applied to the administration of public justice. The Government have identified four problems, although they have not always been clearly articulated. It is worth identifying them, for the sake of those such as my hon. Friend the Member for Chichester (Mr Tyrie) who are troubled by the Bill, in order for me to explain why I think the Bill should be given a Second Reading.

The first is the continued necessity in the security climate in which we the United Kingdom and, indeed, the western world find ourselves to have access to very good intelligence material—material gathered not only from our sources and by our own agencies, but by the agencies and sources that are available to our allies overseas. The difficulty the Government face as regards those agencies capable of providing us with information that is essential for the defence and security of this country is that when something is secret and comes from a foreign intelligence agency and potentially a source of that intelligence agency that might be exposed or, if it is a live source, even threatened, the Government need to be able to give an absolute assurance that that material will remain closed and will remain secret. Without that assurance—this applies not only to the United States but to other intelligence agencies, too—the Government face real difficulties in ensuring that the intelligence necessary to protect all our constituents will be available in this country.

There is, of course, a related point—that the intelligence services here need to be able to recruit their own agents and need to be able to assure those agents from the very first that their identity and anything connected to anything

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that might reveal their identity will remain secret. That is the first issue that calls to be dealt with, and it supports the Government’s position on part 2.

The second problem, as I see it, is that undoubtedly in the past the Government—perhaps not only this Government but the preceding one—have been obliged to settle cases where they had legitimate defences to the accusations that were made against them, but in respect of which they felt, for the reasons I have already given, that those defences could not properly be advanced, usually for the simple reason that it would expose intelligence sources and, potentially, the way in which intelligence is gathered.

Those settlements are wrong for two reasons. First, there is never any adjudication whatever of the underlying merits of the case, and from the perspective of justice as a whole—and, I might add, from the perspective of claimants as well as that of the Government—that is totally unsatisfactory. Secondly, because the Government have been obliged to settle these cases—a point touched on by the right hon. Member for Salford and Eccles—large sums of taxpayers’ money have had to be paid out. In many cases, they might have been lost by the Government and perhaps the damages were justified, but we do not know where the money has gone in other cases and we do not know, for example, that it has not gone to fund activities that are, putting them at their very lowest, detrimental to the interests of this country. That is the second reason why the Bill, and particularly part 2, is deserving of a Second Reading.

There is a related third point—the reputational risk to this country. These cases are settled, albeit with no admission of liability, in circumstances where, as was said earlier, much of the world will say that there is no smoke without fire. People might say that the British Government would not settle these cases unless there was some truth in the allegations, which does this country enormous damage overseas. It also runs the risk—I say this particularly to my hon. Friend the Member for Chichester—of encouraging those who would see this country damaged by radicalising young Muslim men overseas who will believe that this country has no respect for the rights it is trying to push on the Islamic world.

Mr Tyrie: Does my hon. and learned Friend not also accept that the extension of what would be portrayed as secret courts—CMPs—could also damage Britain’s reputation abroad?

Stephen Phillips: I accept my hon. Friend’s point, but for my own part I do not think the risk is nearly as great, and I would go further than that. If we carry on calling CMPs “secret courts”, there might be that risk, but we are not talking about secret courts. We are talking about courts in which defendants and claimants are properly represented, where there is access to the information necessary to ensure as fair a resolution of the issues between the parties as possible and, indeed, where the proceedings are overseen by a judge. I shall come back to this in a moment, but the alternative in many of these cases is, as I said in an intervention on my hon. Friend, that there is no justice at all—either because they are struck out or because the Government have to settle them. That is totally unsatisfactory—much more so than the Government’s proposals in the Bill. I think it was the Independent Reviewer of Terrorism Legislation who said that we were in the world of second-best

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solutions, and indeed we are. No one wishes to see this legislation. I myself have described it as at best undesirable, and possibly pernicious. However, we are where we are. We face the threats that we face, and we have to deal with them.

My fourth reason for thinking that the Bill deserves a Second Reading is that, at present, justice is not done at all in many cases of this kind. As I said earlier, the Government, because they cannot disclose information, are obliged to settle some cases when a perfectly good defence is available to the security services. There are, potentially, other cases—and at least one, which I mentioned earlier, may have already arisen—in which a claimant has a legitimate cause of action which may or may not be capable of being sustained at trial, but owing to the success of a public interest immunity application, information that would otherwise have enabled the issues between the parties to be properly resolved is not available.

In a third group of cases, such as the Carnduff case, there is the possibility of a stay if the public interest immunity application fails, and those are the cases that trouble me particularly. Claimants are essentially being told, “You may have a perfectly good cause of action, but the public interest of protecting national security outweighs the public interest of doing justice in your case.” That seems to me much more undesirable than saying to a claimant, “You may press ahead, but part of the proceedings will take place in a forum that is no longer open to the public.”

The Bill may indeed be a second-best or an undesirable solution, and part 2, at least, may even constitute a pernicious piece of legislation. However, for the four reasons that I have given, I approve of the principle behind it. I believe that that principle has been generally accepted throughout this House, and was finally accepted by their lordships, subject to the amendments that they made. It is a principle from which I do not believe parliamentarians can legitimately distance themselves. It is the principle that we need to be here to protect our constituents, and it is the principle that no matter how unsatisfactory the Bill is, it is the right Bill, and, regrettably, a necessary measure.

4.57 pm

Mark Durkan (Foyle) (SDLP): Other Members have observed that there seems to be consensus on part 1 of the Bill, but I may be more of a doubting Thomas in that respect. I am not sure that part 1 will do all that it promises to do for the Intelligence and Security Committee, the House or the Bill itself.

I do not, of course, speak with experience of membership of the ISC, although I was offered membership a number of years ago, in bizarre circumstances. In fact, at one point my party was offered two seats on it, which seems bizarre even now. At that time we were negotiating the St Andrews agreement, and Tony Blair got it into his head that I might be prepared to accept annex E—which re-routed some of the Patten provisions relating to intelligence and national security—if I was offered a place on the ISC.

Hours later, I was advised that two places were on offer. I had said that it would be very difficult for a member of my party to sit on the Committee, supposedly to offer scrutiny and challenge, while being unable to

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tell anyone that he or she had done so or to say anything about it. The consolation was that we would have two members there, each of whom would vouch for the other in our secrecy. It was a bit like King Louie in “The Jungle Book”: “Have a banana; have two bananas.”

Members have said that the Bill is a significant advance on existing law, but I am not sure whether it is adequate or truly accountable. Part 2, obviously, has raised the more substantial issues and differences. I am at a bit of a loss, because I hear differing and confusing arguments. I hear those who commend part 2 saying that closed material procedures are not a particularly big departure because they are already used in cases of various types, and that the Bill merely codifies them in a particular area. I also hear the argument that PII is no good, that it cannot be used, that it stops cases being defended and that by its very nature it means that evidence cannot be brought. The reality is that PII can be dealt with on an evidence-by-evidence basis, and does not have to be done entirely wholesale. We have seen where it has worked in the past when the courts have granted immunity in relation to certain material, evidence and witnesses. They have protected their anonymity and secrecy and have protected material from being disclosed altogether. In other cases, they have protected material by due and measured redaction. The idea that PII is basically just a one-size-fits-all option is nonsense, as it can be used in a measured way.

I feel almost as though I am involved in some sort of closed material proceedings, because everyone else seems to be aware of why certain cases were settled as quickly as they were. I do not know why the al-Rawi case was settled in the way that it was. It had not even gone to the Supreme Court once appeal was allowed, yet settlement took place. Was it so compelling that the state had no other choice? Was there no way of having more measured terms? I do not know, but other people seem to. They seem to have been briefed and perhaps they are privy to such things, but I certainly am not and as a legislator I am not prepared to pass serious, significant legislation on spec based on somebody else’s hunch that the state would not have settled if it did not really have to.

I come from a part of the world where the state has done many things and failed to do many things. People attributed all sorts of reasons and pure motives to it, saying, “They wouldn’t have done that if they didn’t have to.” We know from last week’s revelations that that logic absolutely stinks. One of the worst things was that all down the years, when such things were happening, they were not sufficiently challenged by enough people in this Chamber and in other places.

When we receive such legislation, we must question it and ask what the compelling reason for it is. We must also look to those who know something about such things. Lord Justice Kerr has been widely quoted today on the subject of closed material proceedings, but he was not the only one to make significant statements in the al-Rawi judgment. Lord Dyson, giving the lead judgment, said that the introduction of closed proceedings in ordinary civil claims would involve

“an inroad into a fundamental common law right.”

He went on to say:

“The PII process is not perfect, but it works well enough. In some cases, it is cumbersome and costly to operate, but a closed material procedure would be no less so.”

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Other hon. Members have quoted Lord Kerr’s concluding judgment. An additional point he made was:

“This would not be a development of the common law”

as the Government

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

In those circumstances, I do not think that we should lightly pass the Bill on the basis that the other place has made a few amendments that make it good enough.

John McDonnell: The point has been made throughout the debate—I have not heard it all as I have been in a Westminster Hall debate—that in a piece of legislation that is actually flawed, we must ask whether the balance of interest lies in protecting the state or the individual. Clearly, the Bill protects the state rather than the individual.

Mark Durkan: That is exactly the nature of the Bill. It is a measure to ensure that the state will be protected in various litigations and that it will have an absolutely unequal power to use a procedure that will frustrate a case against it using a special secret procedure.

We are told—I have listened to other hon. Members say it—that the amendment to clause 6 in the other place that changed “must” to “may” now means that the proceedings are entirely a matter of judicial discretion and that we should therefore trust the courts. Of course, however, that is only in relation to clause 6. Once the national security case has been engaged by a judge under clause 6, clause 7 means that what happens is entirely in the hands of the state. That joker is played by the state and cannot be predicted. PII means that a judge can be selective and can scrutinise what evidence might compromise national security and what should or should not be admitted in balancing the interests of hearing the case and protecting national security, but that will no longer be the case. We are being sold a false argument about just how big a difference there is because of the change from “must” to “may”.

As well as listening to learned judges who have considered the matter, we should look to those who also have experience of closed material proceedings and such legislation—the special advocates. The Minister without Portfolio told us, in effect, that special advocates underestimate their own power—they do rather well under such provisions and have quite a good score rate. Let us listen to what the special advocates and other observers say. The late Lord Chief Justice, Lord Bingham, described the role of a special advocate as akin to

“taking blind shots at a hidden target”.

Special advocates themselves have described it as “shadow boxing” in circumstances where

“you are speaking into a black hole because you have no idea if your strategy and points are on the money or wide of the mark”.

So special advocates are frustrated by their own professional standards. They must be particularly frustrated in relation to the interests and rights of their clients.

Remember, that is what we are talking about—people who have reason, good or ill, for taking a case against the state. If, in doing so, they are speaking of actions that have fundamentally affected their human rights, that have done damage or harm to them which in other circumstances and at the hands of someone else would be deemed to be illegal, that is serious. We should not

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treat the issue as a matter of administrative convenience. The argument should not be that it takes Ministers too long to decide whether they want to look for public interest immunity certificates in respect of all the different pieces of information, that it could take them a whole day to do so, and that we have to come up with something quicker, so we go for closed material proceedings. That is not the way in which we should legislate for justice to be done.

Others have quoted the Government’s independent reviewer of terrorism legislation, David Anderson. On one occasion he attended a session with representatives of the Government and of all three intelligence services and counsel. He was talked through seven significant cases and left with a bundle of top-secret material in each case, including evidence and internal and external advice, which he had taken the opportunity to read. Three of those seven cases were civil damages cases. His conclusion was that

“there is a small but indeterminate category of national security-related claims . . . for civil damages, in respect of which it is preferable that the option of a CMP . . . should exist”—

only preferable that the option of a CMP should exist, but the Bill goes down an almost compulsive route in relation to that and legislates too far.

There is the irony that the very procedure that the independent reviewer engaged in was a closed material procedure. He looked at files that were presented by Government. He listened to the representatives of the intelligence agencies and their legal advisers, and he formed an assessment with no other view being given from special advocates or anybody else, yet it is his advice and his conclusions that we are told we should listen to.

5.8 pm

Simon Reevell (Dewsbury) (Con): One of the least attractive things I have seen in 20-odd years practising at the Bar is lawyers trying to persuade a judge that he should deal with evidence in private because the evidence had the potential to embarrass the then Government. It did have that potential. Employees of the Ministry of Defence on oath were giving evidence that six months before the invasion of Iraq, they had been told not just that it was going to happen, but the day on which it would take place, and that the British Army had been told that it could not commence its training because it would give away the fact that a decision had been made. A properly robust judge sent them away and told them in no uncertain terms that the functions of the court do not include preserving the modesty of the Government.

So I come to the proposals, proposals that for years and years no one in the world of civil litigation ever dreamt or thought were necessary. Suddenly we encounter a different sort of civil litigation in which the body most concerned is the state. Allegations are made that the state has been complicit in kidnap and torture—we call it rendition, but rendition simply means kidnap and torture—and that drone strikes have killed innocent families, and suddenly the civil rules that have been good enough for as long as anyone can remember are no longer good enough and there needs to be secrecy. It is, at best, an unfortunate coincidence that the need for secrecy coincides with litigation in which the state finds itself at the very heart.

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The effect of the proposals could be that a claimant who brings a case is suddenly and quite literally ushered out of court and told to take their lawyers with them. They will then have to sit and wait until they are invited to go back in, at which point they might be told, “Sorry, but you’ve lost.” The reason is that these proposals are not the same as PII, although there has been much talk of PII, and they are not simply a replacement for it.

The way litigation works means that parties to it must consider whether they possess material that might assist the other side. If they have such material but want to keep that secret, they can make a PII application. If they win they are allowed to keep that secret, and if they lose they have two options: they can hand the material over or they can settle the case. That is what PII is all about, but that is not what this proposal is about. This is about being able to use material aggressively against a case. It is about the state having material that it can use to defeat a claim and wanting to use it in secret.

At the moment, if the state wants to use that material it must do so in open court, but it is about the decision on how to fight the case; it is not about public interest immunity. That is why the Bill clearly goes through the PII phase before getting to the point where closed hearings are contemplated. For example, if I know something that might assist you when you sue me, Mr Deputy Speaker, I must either tell you or claim PII, but this proposal is about me wanting to use something against you to defeat your claim and you will never know what it is. You will not have the chance to question it, to say that it is not accurate or to say that it has been fabricated. You will know nothing about it. You will simply be told, “I’m sorry, but you’ve lost your case.”

When such a proposal is introduced on the back of litigation aimed at the state, making allegations of the worst sort of behaviour on the part of the state—I have referred already to kidnap, torture and killing—people are bound to be suspicious. Either it is just a coincidence, or someone somewhere wants to take on these claimants using information that no one will ever be able properly to test.

The House sat very quietly last week to listen to the Prime Minister deal with the report prepared in respect of Mr Finucane. He ended his observations by saying this:

“One thing this Government can do to help is to face up honestly when things have gone wrong in the past. If we as a country want to uphold democracy and the rule of law, we must be prepared to be judged by the highest standards.”—[Official Report, 12 December 2012; Vol. 555, c. 299.]

These proposals are not a very good start.

5.13 pm

Mr Robert Buckland (South Swindon) (Con): It is a pleasure to follow my hon. Friend, and professional colleague, the Member for Dewsbury (Simon Reevell). I accept with alacrity what he says on the differing functions of PII and closed material proceedings, but information will be dealt with in closed material proceedings that could equally support the claimant’s case, just as there will be information that might undermine it. That is why it is important to support the amendment made in the other place to allow not just the defendant, such as the Government, but other parties, including the claimant, to make an application for the use of closed material proceedings.

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Like my hon. Friend, I have spent many years in the criminal courts. I have, I suppose, been dealing with human rights; that was my stock in trade as a barrister prior to my election to this place. We did not really use the words “human rights”; every day we did a job of dealing with the liberty of the individual and the power of the state when it came to imprisoning and dealing with individuals who may have committed criminal offences. It was my life, my bread and butter, and my stock in trade.

It is difficult for me to accept any departure from the principles of open justice. I never liked being confronted with public interest immunity applications, whether I made them on behalf of the Crown or in relation to third party disclosure, or whether I found out about them later because I was not party to the application. These principles do not sit well with me. However, I learned a long time ago that politics has to start from the world as we find it, not necessarily the world as we would like it to be. No matter how idealistic I may be and how important certain principles are to me and many other Members, the realities of international politics and security will often conflict with some of the principles that I hold so dear.

The scenario that the Bill seeks to deal with represents one such conflict. In an ever-changing world, one certainty endures. We have more and more information sharing and the world is ever more interconnected, so greater and greater challenges to our national security are posed every day. We also live in an age when decisions of the state itself are rightly called into question. As a result of those proper questions being asked, we are seeing a rise in civil litigation mounted against the state by individuals who claim grievance.

All those factors mean that a challenge has arisen. Given the information provided by the Government and my understanding of the situation, the problem is not going away any time soon—in fact, it is going to get worse. The Government cannot hide behind inactivity when looking at that challenge; only last week, we saw a further settlement of a civil claim, in this case by the Libyan dissident Mr al-Saadi. That is but the latest manifestation of an issue that is causing real concern not only to the Government and security services but to those who risk their lives for this country and to the public at large who are rightly worried that millions of pounds of their money—our money—is paid over for reasons to which they and we will never be privy in any real sense.

Simon Reevell: Does my hon. Friend accept that a good way to avoid having to make payouts to Libyan dissidents would be not to be involved in kidnapping them and shipping them and their families back to Libya to be tortured?

Mr Buckland: We do not know that, and that is the problem with the current system. I would accept my hon. Friend’s argument if we had a system in which such issues could be properly tried, or at least tried in some second-best scenario; I accept that closed material proceedings are very much a second best to the principles of open justice in which my hon. Friend and I believe. However, we will never know—we will never be privy to

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whether the British state infringed principles of justice and international convention when it came to unlawful rendition.

Sir Malcolm Rifkind: I reassure my hon. Friend that once the current police inquiries are complete, the intention of the Intelligence and Security Committee is to continue our investigation, which we had already started, of the allegations about United Kingdom complicity in Libyan rendition and to publish our conclusions to the extent that we can.

Mr Buckland: I am grateful to my right hon. and learned Friend, and commend him and his Committee for their work in that area. It is something that I would like to know more about, as would many people in this House and outside. Sadly, the Gibson inquiry had to be terminated, or postponed, because of ongoing criminal proceedings. I very much believe that wrongdoing should be exposed, but, as has been pointed out, in the case of this civil proceeding we do not, and will not, know the precise merits or otherwise of the claim that was made against the British Government.

Much has been made of the views of Mr David Anderson QC, the Government’s independent reviewer on terrorism. I will spare his blushes. It is absolutely right to say that he, like me, is very much a reluctant convert to the limited use of closed material proceedings in certain cases where national security is very much at the heart of the claim. He makes the very important point that in referrals made by Her Majesty’s Government, we must put our trust in our judiciary to come to fair and balanced decisions on the material before them and to apply fairness not only to the Government but to claimants, because these questions apply equally to both parties in any such case.

Their lordships’ amendment to clause 6 opens up the limited discretion in the clause as originally drafted. I welcome that. It is wrong to say that there was no discretion before, but it was limited. They have expanded that discretion by the use of the word “may”. It is a much wider discretion than many of us in criminal practice have got used to. For example, in the sort of discretion that sentencing judges have in dealing with mandatory minimum terms of imprisonment, the word used is very bald. “May” cannot put it any more simply. The amendment is very significant, and the fact that the Government have rightly accepted it eases many of the concerns that I and others had about the extent of the power of Ministers, in effect, to limit the court’s ability to disagree with a reference from Ministers.

That is the trigger, but it does not end there. The hon. Member for Foyle (Mark Durkan) said that a blanket then comes down on the use of closed material proceedings. I have great respect for him, but I do not think he is right. It is not a question of a blanket coming down, because the judge has a duty to look at each individual piece of evidence to determine whether it should be the subject of open proceedings or closed material proceedings. The judge will retain that important check and balance in looking at the evidence.

We need to put firmly to bed the notion that closed material proceedings are a silver bullet that will allow the Government always to be able to win—to successfully defend—these cases, because they most certainly are not. The recent decision by SIAC which had the effect

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of allowing the release of Abu Qatada is a notable example of that. CMPs were used in that case. The result was perhaps not popular in many quarters, but it is an example of the court being able to cope with the second-best solution and to reach an outcome that was, on a neutral interpretation, a fair one. CMPs can be a way for claimants to ensure that all the issues they want to see raised are properly considered by the court as part of the case.

Public interest immunity has been prayed in aid as a substitute for the process, but it is not; its function is different. PII relates to the extent and quality of disclosure, which occurs at a different stage from the fact-finding process itself. Material that is successfully subject to a PII certificate remains undisclosed to the party seeking it. There is no gisting or anything else. Redaction of documents may well happen, but that still means that the material sought by the party who wishes to see it remains undisclosed. PII has a practical effect, whether it is on the continuation of a prosecution in a criminal context or, as in this context, the continuation of a defence in a civil case. The choice for those at the receiving end is either to disclose the material or to stop the case. That means, as we have already discussed, that cases in which genuine allegations of wrongdoing are made will never properly be dealt with by the court. It is the justice gap that has been spoken about not just in this place but by eminent Members of the other place, most notably Lord Woolf, Lord Mackay and Lady Manningham-Buller, who all support the use of closed material proceedings in restricted circumstances.

As other Members have said, there is nothing groundbreaking about the use of closed material proceedings in English law. They have been used for some years, in both SIAC and the regime of terrorism prevention and investigation measures, and in a way, as I have said, that cannot be regarded as resulting in manifest unfairness or injustice.

I would welcome clear and continued assurances from Ministers that, if future consideration is ever given to further extending the use of closed material procedures to other areas of law, it is this House that will deal with the issue and that there will be strong grounds to justify any further extension before we allow it to happen.

We live in an imperfect world. It is a troubled world where sometimes grim reality invades noble principle. This Bill is an exemplar of that, which is why I support its Second Reading.

5.26 pm

Mike Crockart (Edinburgh West) (LD): I am very pleased, as a former member of the Joint Committee on Human Rights, to have the opportunity to speak in this debate. Importantly, I was a member when its report on the Bill was written and published. We spent a large amount of time examining the Bill, which was a difficult thing to do as a non-lawyer, but it has been a worthwhile, though arduous, journey from the first time I asked what Norwich Pharmacal actually meant.

When the original justice and security Green Paper was introduced in October 2011, there was understandable and justifiable concern about the proposals. In their original form, it was clear that they were very broad in scope, and some in the Government talked up the need for the powers through rather apocalyptic speeches

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about the danger to national security—a danger that, once examined, clearly did not exist. There was, as has been said, a perception of a danger to national security—there is one that needs to be dealt with in relation to Norwich Pharmacal—but an actual danger did not exist.

Since then, it is welcome that the Minister without Portfolio has issued many reassurances about the intended narrowness of the Green Paper’s application. It is unfortunate that, whether as a result of lax drafting or conflicting views within the Department, the circumstances allowed confusion to develop about what the Government’s intentions were for closed material procedures.

It is clear that there is a theoretical need for change. One can imagine a situation—many such situations have been mentioned today—in which a fair trial of a civil claim cannot proceed because of the amount of material that cannot be disclosed on the grounds of public interest immunity. It has, however, been exceptionally difficult, even with access to many interested and experienced witnesses, to establish the likelihood of such a theoretical possibility actually materialising. The Bill is undoubtedly an extremely complex and difficult balancing act, but the judgment that must be made requires us to understand whether a problem exists and, if so, its scale, and whether this response is proportionate to the problem.

The Joint Committee was clear in its view that the proposed balance was not correct and, therefore, suggested amendments, which were tabled in the other place. I pay tribute to the excellent staff of the JCHR, who helped us to marshal the evidence and formulate the amendments to improve the Bill. In spite of those significant changes, the Bill’s proposals, particularly those in part 2 relating to closed material procedures, still constitute a radical departure from the UK’s constitutional tradition, which is one of open justice and fairness.

The JCHR report questioned whether the Government had

“persuasively demonstrated, by reference to sufficiently compelling evidence, the necessity for such a serious departure”

from those fundamental principles. Our conclusion was that the Government had

“failed to discharge that burden of justification”.

The Joint Committee suggested amendments to make the Bill compatible with the bedrocks of justice, openness and fairness, while recognising the national security concerns put forward by the Government. Our aim was to achieve a fair—or at least a fairer—balance. The Bill considered by the JCHR did not achieve the right balance. The Bill before us today is much closer to sitting within the parameters of natural justice and fairness protected by the common law, because of the excellent work in the other place. The amendments recommended by the JCHR and adopted to date are, as my noble Friend Lord Lester of Herne Hill said,

“designed to keep faith with the fundamental principles of justice and fairness in our common law system, within the rule of law, and national security protected by the independent judiciary.”—[Official Report, House of Lords, 21 November 2012; Vol. 740, c. 1822.]

I do not intend to go through the entire list of amendments suggested by the JCHR, but I will mention the most substantive amendments that have led to successful changes. First, a judge will decide whether a closed

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material procedure should be used in any given case and the decision will not be taken in form or substance by the Secretary of State. Secondly, a CMP will be available only as a procedure of last resort if fairness cannot be achieved by other means. That allows judicial discretion first to consider alternative methods, such as the public interest immunity system and requiring the court to consider whether a claim for PII could have been made. Thirdly, the court will be required to balance the interests of national security against the interests of fairness and open justice in deciding whether to agree to the use of a CMP at the outset. Finally, it will be open to either party to apply for a CMP and the court will also have the jurisdiction to consider the request on its own motion.

If the Bill had come to this House without some of those measures, the case for throwing out part 2 would be significantly stronger. CMPs are not perfect justice, but they may have a place. David Anderson, the independent reviewer of terrorism legislation who has been quoted extensively today, has said that there is

“a small but indeterminate category of national security-related claims, both for judicial review of executive decisions and for civil damages, in respect of which it is preferable that the option of a CMP—for all its inadequacies—should exist.”

A number of the JCHR’s recommendations have not been adopted at present. The first is the introduction of a sunset clause. The second is the compulsory reporting on and review of the use of CMPs by the independent reviewer of terrorism legislation. The third is an undertaking that any litigant who is excluded from the open hearing by the CMP will be given, at the very least, a summary and the gist of the closed material sufficient to enable them to give instructions to their legal representative and the special advocates, so far as is possible. The absence from the Bill of such a disclosure obligation seriously limits the opportunities for special advocates to mitigate the unfairness caused by the Bill’s departure from open and, more importantly, adversarial justice. I hope that those issues will be given further consideration by Members of this House in Committee. I am fairly confident that that will happen.

Had it not been possible to write effective safeguards into part 2, I would share the concerns that are still being raised by many organisations such as the Bar Council, the Law Society of England and Wales, Liberty and Justice. Their concerns demonstrate that there is still significant review work to be done by a Committee of this House. In as reasonable a way as I can, I caution the Government against any attempt to remove the improving amendments that have been made in the other place.

I support the Bill’s passage into Committee, but with the words of Judge Learned Hand in mind:

“Justice is the tolerable accommodation of the conflicting interests of society, and I don’t believe there is any royal road to attain such accommodation concretely.”

The administration of justice is undoubtedly a balance, but it is the most important balancing act that the state carries out. We should proceed carefully in changing that balance.

5.34 pm

Robert Neill (Bromley and Chislehurst) (Con): It is a pleasure to follow the hon. Member for Edinburgh West (Mike Crockart). I seem to remember studying some of

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the judgments of Justice Learned Hand myself when I was doing my jurisprudence course at the London School of Economics. I knew they would come in handy one day.

I was much impressed with the speech of my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips), and I agreed with him entirely. He put it more elegantly than I could—that is why he is a Queen’s counsel and I am not. I also rather agreed with my hon. Friend the Member for South Swindon (Mr Buckland).

I want to concentrate on part 2 of the Bill, because it relates to the area in which I have been interested as a lawyer. It seems to me that we should not allow the best to become the enemy of the good. The best, of course, is open hearings in court with the normal, full process. However, in a limited number of cases there are particular circumstances, which my hon. Friend the Member for South Swindon rehearsed well, in which it is necessary to have a different procedure.

With respect to my hon. Friend the Member for Dewsbury (Simon Reevell), who is not in his place at the moment, I do not accept the proposition that the Bill will be used to prevent people from bringing claims. Nothing that is currently available in open court will become secret as a consequence of it.

John McDonnell: Let me give the hon. Gentleman an example of how the argument about security is used—the Shrewsbury 24, the pickets who were imprisoned 40 years ago. When they sought the information upon which they were arrested and prosecuted by the Government, the letter sent back from the Secretary of State for Justice told them that a “security blanket” had been wrapped around that information, so the records would not be published on the grounds of national security. Is that the sort of issue that the Bill should cover?

Robert Neill: With respect, it seems to me that at the moment public interest immunity would be invoked in such a case, possibly by an ex parte application, without any notice to the claimant. I fail to see how that would assist people in such a situation. It is better at least to have the opportunity for any relevant and admissible material to be considered, albeit through the less than perfect closed material process.

In my 25 years at the Bar, I predominantly practised in the criminal jurisdiction, and it is right that the Government are not seeking to apply the closed material procedure to that jurisdiction. When I started, public interest immunity criminal cases were a little-developed area, and the jurisprudence grew as time went on to reflect, as other Members have said, the changing demands placed upon the courts system and the nature of how intelligence operations were conducted. The jurisprudence moved flexibly to reflect that, and the same is occurring in the Bill.

I know two things from my experience of the use of PII in criminal cases. First, the judges took extremely seriously their responsibilities in relation to PII applications, including their duty to review the material and their initial rulings. I have no reason whatever to doubt that the same judicial meticulousness will be applied to the closed material procedure in civil cases. It is right that there should be safeguards, which I think are broadly accepted and will be taken forward. I, too, am pleased

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that the discretion allowed for in clause 6 is widened by the use of the word “may”. I agree with my hon. Friend the Member for South Swindon that that is adequate, and I urge my hon. Friend the Minister to resist the temptation to refine the definition further by including certain factors in the Bill. The risk of that would be that jurisprudence would grow up around the definition of those factors, and case law would eventually erode the jurisdiction and make it worse than simply using the word “may”.

The second point that strikes me from my experience at the Bar is that, as has been observed, it is not always the individual who is the loser as the result of a PII application. I believe the same will apply to the closed material procedure. I remember, in a criminal case, invoking not PII but the court’s inherent jurisdiction to sit in camera. Part of the mitigation that I needed to advance on my client’s behalf related to his activities in relation to reputable freedom movements in the Soviet bloc. I could not advance that mitigation in open court, because the consul of the Communist-controlled country was represented in court and was sitting in the gallery, and there would have been serious consequences for my client and his family. Mr Justice Steyn—later Lord Steyn; a very eminent judge—acceded to the application, and important material in my client’s favour was put before the court. Again, the point is that the material could be ventilated, and it is better in a civil case that that is done through the closed material procedure than were it not ventilated at all. That is why we should not allow the best—an open procedure—to become the enemy of the good, or CMP, which is an improvement in civil cases on existing PII arrangements.

There is general consensus about the importance of removing the Norwich Pharmacal jurisdiction from such cases. We have to be realistic and concede that although many meritorious claims are brought against Government and Government agencies, many unmeritorious claims are brought in the courts. There is, as the right hon. Member for Salford and Eccles (Hazel Blears) suggested, a growing tendency for jurisdiction shopping in relation to the Norwich Pharmacal jurisdiction, which has moved away from its original purpose in intellectual property cases to cases of this kind. It is not right that we should allow that to be abused in these cases.

Similarly, it is not right that the British taxpayer should pay millions of pounds when it is not possible to resist a claim in cases where, if the material were considered by the judge under the closed material procedure, it might be discredited. In the criminal jurisdiction, the choice facing the prosecutor is either to disclose material if ordered to do so or not to continue with the case. We have a tradition in this country of respecting assurances that have to be given in the interests of furthering justice. We have discussed that in relation to the assurances that we give the security services of our allies abroad.

We already do so in a different way in criminal cases in relation to informers, and have done so on more than one occasion. It is distasteful but necessary that we sometimes employ informers so that wrongdoers can be brought to book, and it is important that they are given assurances by the police that their anonymity will be protected. In certain circumstances, rather than disclose someone’s identity, I and other prosecuting barristers would offer no evidence so as not to put the informer’s identity at risk. Otherwise not only are they at risk, and

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not only is an undertaking breached, but there is a risk that other people will be less willing to come forward and provide information that might be helpful. The same applies even more strongly to assurances given in relation to our national security. I do not think that we should worry about that, subject to the proper safeguards.

In conclusion, it is important to stress again that we are not discussing secret courts. Yes, it is a less than satisfactory process, but ultimately it is one part of the process: the rest is an open process, and the hearing of the claim, as my hon. Friend the Member for South Swindon set out, remains in the public domain. A number of hon. Members have cited Lord Kerr and the al-Rawi case, but to balance Lord Kerr’s judgment it is worth quoting the judgment of Lord Clarke, who took a different view:

“A closed procedure might also be necessary in a case in which…the non-state party…wishes to rely upon the material which would otherwise be subject to PII in order to defend itself in some way against the state. In such a case either party might seek an order for such a procedure based on necessity, namely that such a procedure would be necessary in order to permit a fair trial.”

That is a balanced statement on what is proposed in the Bill. I agree with Lord Clarke, and it seems to me that Mr Justice Ouseley, in the AHK case, made a similar proposition.

When he responds to the debate, I hope the Minister will take on board some of the legitimate concerns that have been raised. I shall support the Bill on Second Reading and we can examine the detail in Committee. We should not, however, allow ourselves to retreat from a necessary—albeit not always desirable—step in this class of case, and allow the best to become the enemy of the good. I therefore hope that the Bill will commend itself to the House.

5.44 pm

Mr William Bain (Glasgow North East) (Lab): It is a pleasure to follow the hon. Member for Bromley and Chislehurst (Robert Neill).

This debate has been about balance, and when the Minister responds I hope he will acknowledge the sense across the House that the Government are not yet in quite the right place regarding the balance between national security and the hard-won liberties of the individual. I hope that the Government will be open in Committee to amendments that make that balance more durable.

Justice systems across the United Kingdom have proven extremely adaptable to reforms such as the Human Rights Act 1998, which gave effect to the European convention on human rights in UK law. Such reforms provided what in some circumstances are universally applicable rights to people on UK territory, as well as recognising the growing importance of judicial review. Such proceedings can sometimes be inconvenient to Ministers and troublesome for the judiciary, but we should remember that the values of justice and fairness in our judicial system guarantee civil liberties and the rule of law.

The Bill deals with the conundrum of trying to strike a balance between the sometimes competing concerns and interests of the state and the individual, and it proposes the creation of closed material procedures in civil proceedings. As a national security measure that is

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reserved to Parliament under the devolution settlement, the Bill would apply to civil courts in Scotland. I know that the hon. Member for Perth and North Perthshire (Pete Wishart) read out some comments, and no doubt there will be discussions between this Government and the Scottish Government, but the Bill is clear that the measures would apply to civil courts in Scotland.

I welcome the amendments made in the other place that strengthen protection of the individual and, in the words of the noble Lord Pannick,

“help to ensure that, if we are to have CMPs, there are proper limits, proper controls, a proper balance and judicial discretion, and that CMPs are a last resort,”.—[Official Report, House of Lords, 21 November 2012; Vol. 740, c. 1816.]

The Bill as originally presented in the other place would have permitted one party—the Government—to decide whether to use CMPs. Critically, if CMPs are to be introduced, it must be for the courts and not the Government to determine whether they should be used in any given case, and only as a last resort. Questions of fairness and relevancy of evidence are for the courts, not the Government, to determine, because one of the parties to a CMP should not be able to determine such matters on its own. It is therefore welcome that the Minister without Portfolio indicated that the Government are minded to accept the relevant amendment.

Having opposed the amendments with such vigour in the other place, I hope that the Government will now accept in their entirety all amendments accepted by their lordships. Although clause 6 as presented to this House appears to contain greater balance than the measure originally presented to the other place, I am concerned that such balance does not extend sufficiently to clause 7. In particular, the Bill does not create a statutory obligation on the courts to provide the gist of the argument to the excluded party, which is vital to their being able to advise adequately their special advocate. That protection has been sought by the Law Society and is crucial to ensure a better balance between the rights of the individual and the interests of the state.

Natural justice is a key principle of civil law across the United Kingdom, and we have heard comments from Judge Learned Hand. Perhaps I may remind the House of the dictum of Lord Chief Justice Hewart from the 1924 case of R v. Sussex Justices, ex parte McCarthy:

“Justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

One key rule respected by that principle is the right to a fair hearing, which is underpinned in law by article 6(1) of the European convention on human rights.

John McDonnell: May I point my hon. Friend to information given by Nicholas Blake QC—he is a special advocate—on what happens after a judgment is given in a Special Immigration Appeals Commission case? He says:

“If the special advocate thinks there is an error in law in the closed judgment, he gets permission to say, to pass a message out to the other team to say ‘I think you should be appealing, I can’t tell you why’…So there is a sort of open appeal. ‘We think there is something wrong but we don’t know what it is.’ And then the court goes into closed session”

to consider the matter. That is farce, not justice.

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Mr Bain: My hon. Friend makes a powerful point. I will give a similar example later in my remarks that bears out the point that the Government must be careful on how their proposals tie with the common law right to natural justice.

Mr George Howarth: My hon. Friend referred to clause 7 and my hon. Friend the Member for Hayes and Harlington (John McDonnell) referred to a special advocate. To some extent, are those points not covered by clause 7(1)(d) and (e), which relate to the need to provide a summary? It is not quite the same as gisting, but a summary would give the sort of information my hon. Friend the Member for Hayes and Harlington implies does not exist.

Mr Bain: I respect my right hon. Friend’s point, but the Law Society and many constitutional lawyers are not completely taken that the Bill provides sufficient protection in terms of common law judgments. As the debate continues in Committee, I hope we can impress upon the Government the advantages of giving greater safeguards in clause 7 to individuals and their legal advisers.

A number of decisions have created the presumption that it is not enough for an individual to be informed of a hearing affecting his or her rights or freedoms. There is also an obligation to inform them of the gist of the case—that comes from common law. That principle is vital, not least in a society governed in accordance with the rule of law. I hope the Government therefore take the advice they have received from the Law Society and others, and that they are prepared to support an amendment in Committee if the Bill receives a Second Reading.

In the Minister’s opening speech, he cited Lord Phillips of Worth Matravers in support of the principle of CMPs in exceptional cases, but perhaps he might reflect on the fact that Lord Phillips has pointed out that, if a closed material procedure is brought into law, it would “undoubtedly be challenged” in both the Supreme Court and the European Court of Human Rights. The Government must therefore establish that any incursion into the fair trial rights that are protected by article 6(1) of the convention is the minimum necessary and subject to suitable available safeguards and protections. The Bill allows insufficient protection of the continued balancing of interest after a CMP has been granted—that was pointed out by the Joint Committee on Human Rights and in the Bingham Centre response to the Green Paper. In allowing insufficient protection, the Bill unsettles an element of Scots law that has existed since 1956. I hope that the Minister resolves that problem in Committee.

As Tom Hickman, of University college London wrote for the UK Constitutional Law Group’s website on 27 November, in the absence of

“such a balance, CMP operates like a black box from which no information of any use or interest emerges. All information of even marginal sensitivity is immune from disclosure even if this is overwhelmingly in the interests of justice for it to be disclosed.”

The point was made more clearly in the decision in an analogous control order case—the case of CC and CF—earlier this year. British authorities admitted that they were involved in the arrest, detention and deportation of the defendants, but the defendants were given no reasons why they lost in the case, nor were they provided with any detail on the Government’s arguments, because the judge said that that part of the judgment must remain

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closed—the other party was excluded from it. The Government, by accepting reasonable amendments, could surely avoid such cases in the civil courts, if the CMP is introduced, and avoid the outcome warned of by the Intelligence and Security Committee. The Committee recommended restricting the use of CMPs to: UK intelligence material that would, if disclosed publicly, reveal the identity of UK intelligence officers or their sources, and their capability, including techniques and methodology; and to foreign intelligence material provided by another country on a strict obligation of confidentiality.

Even Cabinet minutes are not excluded from disclosure in a case involving serious misconduct by a member of the Cabinet, so why are the Government adopting such a restrictive interpretation in relation to the public interest balance in clauses 6 and 7? I hope the Minister will answer two further questions in his response. If the system comes into operation, will the Government pledge to review it, as the Joint Committee on Human Rights advised, and place that commitment in the Bill? Secondly, will the Minister accept the amendment made in the other place to permit both parties to apply for CMP, not just the state?

The debate has been about balance. This has been a genuinely constructive and helpful debate, both for Opposition Members and Government Members. The Government have made some progress. I hope that in Committee considerably more progress is made, so that we can ensure that the interests of the state and national security are undoubtedly protected, but that we do not cast away the hard-won liberties of the individual.

5.56 pm

Ben Gummer (Ipswich) (Con): I echo the closing remarks of the hon. Member for Glasgow North East (Mr Bain). This has been a balanced and constructive debate, and it is good to see the right hon. Member for Wythenshawe and Sale East (Paul Goggins) return to his place. He and I sat through a similar debate on the Terrorism Prevention and Investigation Measures Bill a little over a year ago, as did my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips), my hon. Friend the Member for South Swindon (Mr Buckland) and the right hon. Member for Salford and Eccles (Hazel Blears). We all discussed issues of similar import concerning a similarly tiny number of people. For the TPIMs legislation, that number was nine people, and here we hear from the Government that there are 20 cases pending. While the sums of money involved are considerable, they are not significant in the grand scheme of Government spending. However, the issues of principle are of the highest order and it is entirely right that we have had such an interesting and well-informed debate after that in another place.

In introducing the debate, the Minister without Portfolio, my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) made a powerful case for why the current situation cannot continue and why the liberty of the litigant, sacrosanct in normal circumstances, to know the evidence that might demolish his or her case, should not be sacrosanct in these unordinary circumstances. They are not ordinary, because the evidence that might be presented could imperil—in many cases, would imperil—the lives not only of agents or officers, but citizens of this country.

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We cannot, therefore, continue with the situation we have at the moment, but I would like to add two other liberties that are offended by things as they stand. The first is the liberty of the individual agents and officers, who have not been mentioned so far. Although they are anonymous in most of these instances, in a civil action they are accused of the most appalling crimes—rendition, torture, or procuring murder—and yet, through the agency of their employer, they cannot defend themselves and say that these things did not happen. I hesitate to say that spies have feelings too, but it is clearly wrong to allow someone, just because it is easier for Her Majesty’s Government to raise their hand and pay up, to have it on their record for the rest of their life that they were part of a conspiracy or action of that magnitude. In not defending them in court, we do them a disservice that the Government have a duty of care to address.

A bigger liberty is at stake, however, and that is the liberty of the nation. It seems to me that learned and noble Members in another place have forgotten that the state also has a personality and seem to think that, because the state is not a person, it is perfectly acceptable for it to admit liability where it might have none and to pay damages when it might not need to. Yet the state does have a personality. The Crown has a personality—it is the vessel of our shared values and experience, it is our common interest as a nation—and, if the state admits liability when it should not, it impugns those values, it demeans us as a nation and, perhaps most importantly, it devalues an apology and admission of liability that might be made when it should be made.

In order to protect the liberty of the nation and individual officers, it is vital, in the interests of justice, that we enable the state to defend itself in these civil actions. Here, then, I part company slightly with my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind) when he says that this is an unsatisfactory solution, but one that is better than the current situation. I do not think we need apologise for the proposals, because actually they are a reaffirmation of justice in very difficult circumstances: we know that not to do so would be to deny the very values on which that justice is built, but, if the information were to be presented in open court, the evidence might imperil the lives of those whom all of us assembled here—both in what we do and in the legislation that we pass—seek to protect. We must give them the justice they deserve.

The current inequality might be having a bizarre result. It is possible, and we have no guarantee it has not happened, that a civil litigant who is known to the security services but whom, for whatever reasons they have not been able to prosecute—certain Opposition Members will know of such instances—could bring a civil claim and win damages for tens of millions of pounds, and that money could then be recycled back into terrorism and used to attack the very people who have defended, or not defended, their right to bring a case. That is a bizarre situation and a travesty of justice—it is grotesque—so it seems wrong that any of us seek to try to defend the status quo. It is everything that we should be seeking not to do.

Stephen Phillips: Does my hon. Friend agree that the real travesty is the Government having to settle cases and pay damages in circumstances where they might have a perfectly legitimate defence, but which cannot be

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deployed in court because it would reveal confidential information? It is when that money goes back into the hands of terrorists that we need to be particularly concerned, and that is one reason why the Bill needs a Second Reading.

Ben Gummer: Absolutely. I could not improve on my hon. and learned Friend’s words. It is wrong not only because the money might be recycled back into terrorism, but because it devalues the point when we have done something wrong and need to admit liability and learn from it. It turns everything on its head, and that is why we need the change.

I wish to make a slight political point. There have been some brave speeches from certain Opposition Members who know a great deal more about this matter than people sitting on the Front Bench of Her Majesty’s Opposition. It is odd to hear ill-informed remarks about the Bill being directed at those on the Government Front Bench, given that the Government have been open about what they want to achieve, and reasonable and generous in trying to accommodate the amendments from another place. In the spirit of that, it behoves Her Majesty’s Opposition not to use words such as “humiliating” or “climbdown”, but to acknowledge that the Government are listening carefully to, and accommodating, the arguments being made in both Houses. I hope that, at the end of the Committee stage, the Government will come back to the House with a Bill that will provide justice to the individual officers, to the intelligence agencies, to the nation and to the litigants. I hope that the Bill will do something that we in this place are supposed to do—namely, to ensure that the dispensation of justice is indeed just.

6.5 pm

Diana Johnson (Kingston upon Hull North) (Lab): The Bill has implications for liberty, security and justice. The fact that those are serious matters has been reflected in the number of reasoned and considered contributions that we have heard today. We have heard 22 speeches, in addition to those from the Front Benches, many of which have been informed by Members’ experience in government and on the Intelligence and Security Committee. The whole House welcomes those contributions. In particular, I would like to mention those made by the Chair of the Intelligence and Security Committee, the right hon. and learned Member for Kensington (Sir Malcolm Rifkind); the Chair of the Joint Committee on Human Rights, my hon. Friend the Member for Aberavon (Dr Francis); and the Chair of the Treasury Select Committee, the hon. Member for Chichester (Mr Tyrie), as well as those made by several former senior Ministers, including my right hon. Friends the Members for Wythenshawe and Sale East (Paul Goggins), for Salford and Eccles (Hazel Blears), for Blackburn (Mr Straw) and for Knowsley (Mr Howarth). The leader of the Welsh nationalists, the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), also made one of his usual considered contributions.

The Bill has already been the subject of considerable debate in the other place, where many Members were able to draw on their considerable experience to scrutinise it and suggest improvements. We in this House are

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grateful for their efforts and the improvements that have been made. In particular, I want to pay tribute to the work of my noble Friends Baroness Smith and Lord Beecham. I am also pleased that the Minister without Portfolio said today that the Government would not seek to overturn some of the amendments made during the Bill’s passage through the House of Lords, and I look forward to hearing further details from the Minister in Committee as to why they disagree with certain others.

The matters in the Bill are sensitive and complex, and the Opposition will work with the Government to reach consensus, wherever possible, based on the evidence available. The introduction of closed material proceedings is undoubtedly the most controversial part of this legislation, and the Opposition accept that there are rare occasions when their use will be necessary. We cannot continue to accept a situation in which the Government are forced to settle claims because they are unable to adduce evidence without compromising vital national security evidence.

In the other place, the noble Baroness Manningham-Buller spoke passionately about the need for the security services to be able to protect their standing in the eyes of the public and for dedicated security staff not to have their reputation traduced because there was no mechanism for challenging allegations. However, as my right hon. Friend the Member for Tooting (Sadiq Khan) explained earlier, we had serious concerns about the scope of closed material proceedings as proposed in the Green Paper and again in the Bill as it was first presented to the Lords. We are pleased that the Government have listened to the strength of feeling expressed in the other place and by the Opposition, and that they have now indicated they will not seek to overturn all the Lords amendments. As I said earlier, we look forward to the debate in Committee.

The Bill also introduces limits on the courts’ ability to demand the release of information, following on from the principles developed in the case of Norwich Pharmacal. That case established the principle that an innocent third party could be forced to disclose information to enable an action to be taken against another party. In the case of Binyam Mohamed, this principle was extended to cover issues of national security. We know that the then Foreign Secretary stated that the release of such information was likely to cause real damage to both national security and international relations. The Independent Reviewer of Terrorism, David Anderson, QC, has now presented several examples where evidence has not been freely given to the United Kingdom because of the danger of its being released into the public domain. Several members of the Intelligence and Security Committee have raised this and confirmed that it is a problem, too.

I think there is an acceptance on both sides of the House, although not by all Members on either side, that this situation is unacceptable. The Opposition accept there is a pressing need to reassert the control principle, to ensure that foreign Governments can be confident that any information passed to the UK Government will remain in the hands of the Executive. We will therefore support the Government in their attempts to prevent the disclosure of information under the Norwich Pharmacal principles where the information is sensitive, and where its release might compromise our relations

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with foreign allies. The Opposition have concerns, however, about the breadth of the current definition of sensitive information and we hope to persuade the Government in Committee that the control principle can be protected within a narrower definition.

Finally, let me return to part 1. Although it is perhaps not as controversial as part 2, it is equally important, strengthening both the oversight and the public standing of the security services—aims behind which the whole House can unite. In emphasising why public support is so important to the security agencies, I refer again to the noble Baroness Manningham-Buller who drew on her own considerable experience to say in the other place:

“The support of members of the public is necessary not only in terms of general support for the organ of government but because, to do their work the agencies require that support every day of the week. They need the public to join them as recruits…they need them as sources of information, and they need them to help in whatever way possible...Therefore, when we talk about public opinion, the services require the help of the public to do their job and, in my experience, they get it.”—[Official Report, House of Lords, 9 July 2012; Vol. 738, c. 932-33.]

Like the noble Baroness, the Opposition believe that public support for the security agencies will be enhanced by greater openness and scrutiny. For this reason, the Opposition support the Government in what they are attempting to do in strengthening the role of the Intelligence and Security Committee. Indeed, we would like to see the Government be far bolder in recasting the role of the ISC to improve public understanding and scrutiny.

Let me deal with two further issues. One is about the Bill’s wording in respect of ongoing oversight, and I am sure we will spend some time in Committee looking at whether that wording is correct. The second is the call for further resources to allow the ISC to take on these additional roles. We also hope that we will be able to work with the Government in Committee to extend the Bill’s provisions in three ways.

First, we would like to see annual public hearings with the head of each security agency. In the US, such hearings are a well-established part of the congressional oversight of the security agencies, and perform a vital role in educating the public about the work the intelligence services carry out. I do not see why the same role could not be performed in the UK.

Sir Malcolm Rifkind: The hon. Lady and the House may be interested to know that the ISC has decided—it has the agreement of both the Government and the agencies—to hold its first public hearing, probably some time in the early part of next year. If it is seen to be successful, it should indeed become a regular event.

Diana Johnson: I am grateful to the Chairman of the Intelligence and Security Committee for giving us that information. It seems very positive that the first item on our shopping list is going to happen.

Sir Malcolm Rifkind: What is the second item?

Diana Johnson: Ah! Secondly, we would like to see the ISC hold pre-appointment hearings for the agency heads. The Labour Government pioneered such hearings for other public appointments, including permanent secretaries, and we now feel it is right to extend these hearings to security agencies.

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Thirdly, we would like to see the ISC operate under the protection of parliamentary privilege and be able to take evidence under oath. The Opposition believe that the only way to guarantee parliamentary privilege is to make the ISC a Select Committee. To confer parliamentary privilege by means of an Act of Parliament would make it subject to legal challenge. That is unacceptable, particularly as witnesses might divulge sensitive information to the Committee, believing it to be subject to privilege, only for that to be overruled by the courts.

We accept that there would be practical problems in the creation of the ISC as a Select Committee, and that foremost among them is the need for its members to be vetted and approved. We hope to work with the Government to find a solution to that problem during the Bill’s Committee stage.

In the other place, the Government’s further reasons for opposing the creation of the Select Committee were unconvincing. Lord Taylor’s arguments seemed to focus on the difference between statute and Standing Orders. If the ISC were recast as a Select Committee, the rules and procedures needed to safeguard the special nature of its proceedings would be determined by Standing Order. If it were created as a new type of quasi-parliamentary entity, its rules would be enshrined in statute. The Minister said that that extra protection was essential, as a Standing Order could be amended by a single vote in the House. The implication seemed to be that that would enable the rules to be altered on a whim.

I think that it does Parliament a great disservice to suggest that either House might make such a serious decision without proper consideration. On the basis of my experience of pushing for the modernisation of Parliament and for reform of its sitting hours, I can say that I have found it extremely reluctant to alter any of its Standing Orders without very good reason and evidence; and I hope that the Minister has been convinced by the serious nature of today’s debate, and the series of debates in the other place, that it cannot possibly be said that Parliament does not afford these matters the full seriousness that they deserve.

Let me finally reiterate the Opposition’s support for the aims that the Government are pursuing. We think that the Bill is far better as a result of the amendments made in the other place. In Committee, we will work to extend the provisions of part 1 to protect the amendments to part 2 that were made in the other place, and to restrict the definition of sensitive information. I look forward to working with the Minister. I know how seriously he takes the views of other Members, and I hope that we shall be able to reach a consensus on the best way to proceed.

6.17 pm

The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire): I am grateful for the range of contributions that have been made today, including those made by informed members of the Intelligence and Security Committee, the Joint Committee on Human Rights, and the Justice Committee. This is an important Bill, and it is right for it to be the subject of such vigorous and thorough debate in the House.

As is plain from the quality of the debate since the introduction of the Bill, these are challenging matters, and I respect the concern that we should get the balance

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between justice and security right. The changes in the global landscape present us with a number of complex problems that we cannot ignore. The concepts of justice, the rule of law and human rights are fundamental principles of which our nation has a rich heritage.

Having carefully examined our options, we believe that the Bill will enable us to tackle the problems that we face both justly and securely, but I accept what has been said by a number of Members today about some of those difficulties. The Chairman of the ISC, my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind), said that the Bill was not perfect, but was a great deal better than what we have at present. My hon. Friend the Member for South Swindon (Mr Buckland) said that we must start with the world in which we find ourselves, rather than the world that we might like it to be.

Those themes were underlined during the debate, along with other challenges that were mentioned by Members. I was struck by what was said by my hon. Friend the Member for Oxford West and Abingdon (Nicola Blackwood) about the changes that had been made in the Lords, and the impact that they had had on her impressions of the Bill. I was also struck by the comments made by my hon. Friend the Member for Wycombe (Steve Baker) about the need to ensure that liberty and justice were appropriately balanced. I can say to him very clearly that this is not about expediency but about how we can ensure that the difficult challenges of providing safety and security while reflecting justice are properly reflected in the changes made to the Bill. The same applies to the comments made by my hon. Friend the Member for Edinburgh West (Mike Crockart) and my right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes).

I recognise that some Members in the Chamber this afternoon are fundamentally opposed to the Bill in principle and do not accept that the provisions are balanced in the way that I have characterised them. The speeches from the hon. Member for Islington North (Jeremy Corbyn), my hon. Friend the Member for Dewsbury (Simon Reevell) and my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) underlined some of those themes. The situation we are in at the moment is not right, however, and does not meet many of the objections they proffered against the Bill. We believe that it will make an important improvement to the situation by ensuring that difficult cases, which cannot be heard at all because the evidence does not come within the ambit of the court or the public view, are put before a judge so that justice can be done.

The points made by the right hon. Member for Salford and Eccles (Hazel Blears), which were reflected in the speeches made by my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) and the right hon. Member for Blackburn (Mr Straw), underlined that if there is no adjudication, that is unsatisfactory for justice, particularly in the context of the cases that are settled in which there is a defence for the Government but the moneys have to be paid out. We judge the reputational risk that poses for the Government and, as my hon. Friend the Member for Ipswich (Ben Gummer) highlighted, for those individuals concerned in those particular cases to be significant.

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We have seen significant changes over the past few decades in the evolving threat from terrorism. The UK faces a global terrorist threat from beyond our shores and our intelligence services are heavily committed to protecting our national security by tackling those threats. We are also now in a more litigious society and the combined effect has seen an increase in numbers of civil claims against the Government. The problem is that in these cases, the material the Government need to defend their case is often classified and cannot be disclosed to the court without compromising operations or risking the sensitive sources and techniques on which we rely to keep the people of this country safe. As the former Lord Chief Justice, Lord Woolf, said in Committee in the Lords,

“PII has the very unfortunate effect that you cannot rely on the material that is in issue, whereas both the claimant and the Government may want to rely on that material.”—[Official Report, House of Lords, 11 July 2012; Vol. 738, c. 1189.]

The result is that at present the courts cannot rule in those cases, so the Government might be left with no option but to settle. That is why the Bill seeks to introduce the use of closed material procedures in a small number of cases that hinge on sensitive national security material.

Some hon. Members have suggested that the public interest immunity system is perfectly adequate to deal with national security matters. Let me be clear that the Government are not trying to abolish PII through this Bill: it will continue to exist and be used in certain contexts. Without the possibility of a closed material procedure, however, a very small number of cases that hinge on national security-sensitive information will not be able to reach a conclusion. When the very material that would determine a case would be excluded from PII, the case cannot be fairly concluded without a forum for it to be heard in. If it is central to the Government’s case, the case cannot proceed and the Government may have to settle. Vast sums of taxpayers’ money could be paid out as a result.

Some have argued that PII leads to more information being disclosed than would be the case under a CMP, but we do not accept that that is the case. The court can order the disclosure of material, notwithstanding the damage that would be caused to national security. But the Government then have the choice not to rely on that material, to make admissions or to seek to settle the case entirely. That means that such a damaging disclosure is never made. So, in practice, we believe that no evidence that can currently be heard in open court will be put into closed proceedings in future. Only evidence that would otherwise not see the light of day will be heard by a judge in closed proceedings.

There have been concerns that the claimant will be kept in the dark about accusations against them, though I hope it has been made clear through a number of contributions to today’s debate that that is not the case. It does no harm to restate that the Bill will introduce closed material procedures only in civil cases, not criminal cases, where the Government are the defendant, and claimants will have full knowledge of the allegations that they are making.

CMPs will allow the Government to defend their case and the claimant will have a special advocate working on their behalf, fighting their case. Moreover, it could well be that information that could be considered in a

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closed material procedure is of benefit to the claimant, and having the case heard using a closed material procedure does not guarantee that the Government will win.

Mark Durkan: Will the Minister address the implications of schedule 2 part 2 as it applies to Northern Ireland? That provides that where the court is of the opinion that there are or that there will be section 6 proceedings, a jury can be dismissed. If there is a jury trial, the jury can be dismissed, so it is not just a matter of select proceedings. The provision fundamentally alters the nature of the trial. What reputational damage does that do to the due character of the devolved justice system?

James Brokenshire: I am clear that, as we have said throughout the debate, the measure does not relate to criminal matters. It relates only to civil proceedings. If there are concerns, I look forward to robust scrutiny, debate and discussion in Committee. I know that hon. Members on both sides will make their points clearly. As right hon. and hon. Members who have previously served on Bill Committees with me know, I welcome all those contributions and we will respond to them.

The Lords indicated that closed material procedures are absolutely necessary and strongly rejected an amendment to remove the CMP clauses altogether. It is worth noting that the amendment was defeated by 164 votes to 24. Fair points have been made. The right hon. Member for Wythenshawe and Sale East (Paul Goggins) highlighted the issue of special advocates. We are working with the special advocates to establish where there may be further training needs, and on ways of dealing with some of the administrative issues and the processes involved. There are detailed points that we can return to in Committee. The right hon. Gentleman also highlighted the issue of inquests, a point that was touched on also by my right hon. Friend the Member for Haltemprice and Howden (Mr Davis). We have considered this, but believe that the current arrangements, with an inquiry being established, are still the appropriate way forward, but I look forward to further discussion on those matters.

I heard the points made from the Front Bench and more generally in relation to the part 1 provisions on oversight. We believe that the changes proposed in the Bill strengthen oversight. A good point was made that our intelligence agencies are better for the oversight. That view is reflected in all parts of the House, respecting and acknowledging the excellent work that they do for all of us in keeping our country safe. I look forward to further detailed discussions on those topics and on the memorandum of understanding that is being worked through with the Intelligence and Security Committee.

In relation to Norwich Pharmacal, I think that there is broad agreement across the House that the issue needs to be dealt with. Essentially, we are the only country that has this type of arrangement, which was created through jurisprudence established to deal with intellectual property cases, rather than national security cases, in which there is the ability to obtain information in that way, and that impacts on the willingness of our international partners to share intelligence information with us in respect of the control principle. Again, I look forward to discussing the matter further in Committee.

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In conclusion, we strongly believe that the Bill is needed. Yes, there are difficult issues that need to be addressed, but when we look at justice and security we believe that justice is better served by ensuring that more cases are heard than are not heard. Essentially, the part 2 provisions are the fundamental issue at stake. Although I respect a number of important points that have been made this afternoon, that is the core of the issue. We believe that justice and security will be established through the Bill. Therefore, I commend the Bill to the House.

Question put, That the Bill be now read a Second time.

The House divided:

Ayes 262, Noes 18.

Division No. 125]


6.31 pm


Adams, Nigel

Afriyie, Adam

Aldous, Peter

Amess, Mr David

Andrew, Stuart

Bacon, Mr Richard

Baldry, Sir Tony

Baldwin, Harriett

Barclay, Stephen

Baron, Mr John

Barwell, Gavin

Beith, rh Sir Alan

Bellingham, Mr Henry

Beresford, Sir Paul

Bingham, Andrew

Birtwistle, Gordon

Blackman, Bob

Blears, rh Hazel

Blunt, Mr Crispin

Boles, Nick

Bottomley, Sir Peter

Brake, rh Tom

Bray, Angie

Brazier, Mr Julian

Bridgen, Andrew

Brine, Steve

Brokenshire, James

Brooke, Annette

Bruce, rh Sir Malcolm

Burley, Mr Aidan

Burns, Conor

Burns, rh Mr Simon

Burrowes, Mr David

Burstow, rh Paul

Burt, Alistair

Burt, Lorely

Cable, rh Vince

Campbell, rh Sir Menzies

Carmichael, rh Mr Alistair

Carmichael, Neil

Carswell, Mr Douglas

Chishti, Rehman

Chope, Mr Christopher

Clarke, rh Mr Kenneth

Clifton-Brown, Geoffrey

Coffey, Dr Thérèse

Collins, Damian

Colvile, Oliver

Cox, Mr Geoffrey

Crockart, Mike

Crouch, Tracey

Davey, rh Mr Edward

Davies, David T. C.


Davies, Philip

Djanogly, Mr Jonathan

Donaldson, rh Mr Jeffrey M.

Dorrell, rh Mr Stephen

Dorries, Nadine

Doyle-Price, Jackie

Duddridge, James

Duncan, rh Mr Alan

Duncan Smith, rh Mr Iain

Dunne, Mr Philip

Ellis, Michael

Ellwood, Mr Tobias

Elphicke, Charlie

Evans, Jonathan

Evennett, Mr David

Fabricant, Michael

Fallon, rh Michael

Foster, rh Mr Don

Francois, rh Mr Mark

Freeman, George

Freer, Mike

Fuller, Richard

Garnier, Sir Edward

Garnier, Mark

George, Andrew

Gibb, Mr Nick

Gilbert, Stephen

Glen, John

Goggins, rh Paul

Goodwill, Mr Robert

Graham, Richard

Grant, Mrs Helen

Grayling, rh Chris

Green, rh Damian

Grieve, rh Mr Dominic

Griffiths, Andrew

Gummer, Ben

Hague, rh Mr William

Hames, Duncan

Hammond, rh Mr Philip

Hammond, Stephen

Hands, Greg

Harper, Mr Mark

Harrington, Richard

Harris, Rebecca

Harvey, Sir Nick

Haselhurst, rh Sir Alan

Hayes, Mr John

Heald, Oliver

Heaton-Harris, Chris

Henderson, Gordon

Hendry, Charles

Herbert, rh Nick

Hinds, Damian

Hoban, Mr Mark

Hollingbery, George

Hollobone, Mr Philip

Hopkins, Kris

Howarth, rh Mr George

Howarth, Sir Gerald

Howell, John

Hughes, rh Simon

Huhne, rh Chris

Hunter, Mark

Hurd, Mr Nick

Jackson, Mr Stewart

James, Margot

Javid, Sajid

Johnson, Joseph

Jones, Andrew

Jones, rh Mr David

Jones, Mr Marcus

Kawczynski, Daniel

Kelly, Chris

Knight, rh Mr Greg

Laing, Mrs Eleanor

Lamb, Norman

Lancaster, Mark

Lansley, rh Mr Andrew

Laws, rh Mr David

Leadsom, Andrea

Lee, Jessica

Lee, Dr Phillip

Leech, Mr John

Lefroy, Jeremy

Leslie, Charlotte

Letwin, rh Mr Oliver

Lewis, Brandon

Lewis, Dr Julian

Liddell-Grainger, Mr Ian

Lidington, rh Mr David

Lilley, rh Mr Peter

Lloyd, Stephen

Lopresti, Jack

Lord, Jonathan

Loughton, Tim

Luff, Peter

Lumley, Karen

Macleod, Mary

Main, Mrs Anne

Maude, rh Mr Francis

May, rh Mrs Theresa

Maynard, Paul

McCartney, Jason

McIntosh, Miss Anne

McLoughlin, rh Mr Patrick

McVey, Esther

Menzies, Mark

Mercer, Patrick

Metcalfe, Stephen

Miller, rh Maria

Mills, Nigel

Moore, rh Michael

Morgan, Nicky

Morris, Anne Marie

Morris, David

Morris, James

Mosley, Stephen

Mundell, rh David

Munt, Tessa

Murrison, Dr Andrew

Neill, Robert

Newmark, Mr Brooks

Nokes, Caroline

Nuttall, Mr David

O'Brien, Mr Stephen

Ollerenshaw, Eric

Opperman, Guy

Ottaway, Richard

Paice, rh Sir James

Parish, Neil

Pawsey, Mark

Penrose, John

Percy, Andrew

Phillips, Stephen

Pincher, Christopher

Pritchard, Mark

Pugh, John

Raab, Mr Dominic

Reckless, Mark

Rees-Mogg, Jacob

Rifkind, rh Sir Malcolm

Robathan, rh Mr Andrew

Robertson, rh Hugh

Robertson, Mr Laurence

Rogerson, Dan

Rosindell, Andrew

Rudd, Amber

Ruffley, Mr David

Russell, Sir Bob

Rutley, David

Sanders, Mr Adrian

Sandys, Laura

Scott, Mr Lee

Shannon, Jim

Shapps, rh Grant

Sharma, Alok

Simpson, Mr Keith

Skidmore, Chris

Smith, Miss Chloe

Smith, Henry

Smith, Julian

Smith, Sir Robert

Spelman, rh Mrs Caroline

Spencer, Mr Mark

Stanley, rh Sir John

Stephenson, Andrew

Stewart, Bob

Stewart, Iain

Stewart, Rory

Streeter, Mr Gary

Stride, Mel

Stuart, Mr Graham

Stunell, rh Andrew

Sturdy, Julian

Swales, Ian

Swayne, rh Mr Desmond

Swinson, Jo

Swire, rh Mr Hugo

Syms, Mr Robert

Thurso, John

Tomlinson, Justin

Turner, Mr Andrew

Uppal, Paul

Vaizey, Mr Edward

Vara, Mr Shailesh

Vickers, Martin

Walker, Mr Robin

Wallace, Mr Ben

Walter, Mr Robert

Watkinson, Angela

Weatherley, Mike

Wharton, James

White, Chris

Whittaker, Craig

Wiggin, Bill

Willetts, rh Mr David

Williams, Mr Mark

Williams, Roger

Williams, Stephen

Williamson, Gavin

Willott, Jenny

Wilson, Mr Rob

Wollaston, Dr Sarah

Wright, Jeremy

Wright, Simon

Yeo, Mr Tim

Young, rh Sir George

Zahawi, Nadhim

Tellers for the Ayes:

Anne Milton


Karen Bradley


Davis, rh Mr David

Durkan, Mark

Edwards, Jonathan

Hemming, John

Hopkins, Kelvin

Leigh, Mr Edward

Llwyd, rh Mr Elfyn

Lucas, Caroline

MacNeil, Mr Angus Brendan

McDonnell, John

Reevell, Simon

Skinner, Mr Dennis

Tyrie, Mr Andrew

Weir, Mr Mike

Whiteford, Dr Eilidh

Williams, Hywel

Winnick, Mr David

Wood, Mike

Tellers for the Noes:

Jeremy Corbyn


Pete Wishart

Question accordingly agreed to.