Justice and Security Bill [Lords]
The Committee consisted of the following Members:
Steven Mark, Lloyd Owen, Committee Clerks
† attended the Committee
James Brokenshire: May I welcome Committee members back after the lunch break? I also welcome the hon. Member for Hammersmith, as he will be responding on behalf of the Opposition to the provisions on closed material procedures.
The Government continue to believe that closed material procedures are the right way to treat cases involving national security material that the courts recognise as too sensitive to disclose. In those cases, the alternative is silence—no final judgment from a judge, none of the questions posed by the claimant answered.
The Government have listened to the views, expressed during the passage of the Bill so far, about judicial discretion and in particular about who may apply for a closed material procedure. I note the contributions made by the Joint Committee on Human Rights as well as the amendments discussed in the other place.
The Minister without Portfolio announced on Second Reading that the Government accepted the principle behind the amendment tabled in the other place by members of the Joint Committee on Human Rights—that either party can apply for a closed material procedure and that the court, of its own motion, can also trigger the CMP process.
The Government have accepted that it may be particularly important for the court to be able to order a CMP as an alternative to granting a public interest immunity application, for example. That deals with the concern that the Executive could choose between PII and CMP as and when it suited them.
In addition, there may be circumstances in which a party to the proceedings holds national security material and wishes to apply for a CMP; they may, for instance, have been working with the Government and have been given the material during the course of their work. They should equally have the ability to defend themselves in
The group of amendments, therefore, makes only minor technical changes to the amendment carried in the other place. It does so in two ways. It enables “any” party rather than just “either” party to apply for a closed material procedure. That is important in cases where there are more than two parties, to ensure that any of them can make such an application. It allows the Secretary of State to apply to the court for a CMP on behalf of another party, even when he or she is not a party to the case. Consistent with that, the amendments enable him or her to be joined as a party in the case, so that he or she can be included in the CMP process.
The Government need the ability to apply for a CMP on another party’s behalf in exceptional circumstances. Other parties may not be aware that the release of the information they hold in open court would damage national security, or they may prefer the Secretary of State to make the application, to make it clear who is requiring national security to be protected.
The amendments allow for the following permutations of applications for a CMP. First, the Secretary of State, as a party to the proceedings, applies for a CMP. Secondly, the Secretary of State, as a party, applies for a CMP on behalf of another party. Thirdly, the Secretary of State, as a non-party, applies for a CMP on behalf of another party. Fourthly, a party to proceedings other than the Secretary of State applies for a CMP to protect himself or herself from having to disclose sensitive material. Finally, the court makes a declaration for a CMP of its own motion to prevent disclosure of sensitive material.
Dr Julian Huppert (Cambridge) (LD): My intervention is about the comments, made immediately before the suspension, in which the Minister went through the list of cases. There was much symmetry, and many of them fell into the same approach.
One case stood out as being different, however—when a party, who is not the Secretary of State or the Government, wants to apply for a CMP on information that is held not by themselves but by the Government. That is precisely what the Joint Committee on Human Rights wanted to address and precisely the case that has been left out of what the Minister was saying.
James Brokenshire: If my hon. Friend will allow me, I will continue and explain how that issue may be addressed. If what I say is not helpful or if he wants further clarification, he can come back to me.
On occasions when the Secretary of State is not a party to the proceedings, it is important that he or she can be joined as a party and be part of the CMP, given
There may be concern that a particular circumstance is not covered by the amendments—I think that is what my hon. Friend highlighted—and a party to proceedings other than the Secretary of State wants to apply for a declaration to require another party to disclose material into a CMP. That is because it would not be possible for a party to make a formal declaration application, and satisfy the application obligations set out in clause 6, if they did not hold the material. How would they know there was material that would damage national security if they had not seen it? How would they know that its inclusion in a CMP would be in the interests of the fair and effective determination of justice in the proceedings if they had not seen the material?
In those circumstances, it would be wholly unfair to require claimants to apply for a CMP via a process whose requirements they would never be able to satisfy. That is why the Government’s amendments allow claimants to sidestep that process and ask the court to order a CMP of its own motion.
James Brokenshire: I rise to my feet, but I am not sure how much time I have, given the recent votes in the House. When the sitting was suspended, I was about to give my hon. Friend the Member for Cambridge an example of the scenario that he was highlighting, where another party seeks to use a closed material procedure in respect of information held by that other party. A party to the proceedings may be aware, for example, that the Secretary of State has made a PII application. They might think that it relates to national security material and would prefer to have a CMP. In terms of how that would be triggered, there would have to be civil litigation.
In other words, for the Secretary of State to be involved, someone would in essence be likely to be suing the Secretary of State, and in the process the Secretary of State would seek to make a PII application in respect of a particular part of the evidence, for example. The other party will not have seen the material, because they would have been excluded from its detailed consideration during the PII process, albeit they would have been made aware of it and would be able to say to the court, as part of the PII process, that the relevance of the
The party would be able to make submissions to the court during the course of the open PII hearing and the court will make a declaration on its own motion if it decides that that is the appropriate way to proceed. The court will have seen the material and would be in a position to make a judgment about whether to grant the PII claim or whether to order a CMP instead if it is in the interests of the fair and effective determination of justice in the proceedings. That will therefore provide a mechanism to deal with the equality of arms issue. I do not think there is an issue of principle between me and my hon. Friend. That is the mechanism to trigger that and to achieve that end result. He may have another example that he wants to highlight.
Dr Huppert: The Minister is being very considerate, given the little gaps that we have to debate some of these things. He says that there will always be a PII process first. Can he remind me where exactly in the Bill it is made clear that we will always be going through PII first, particularly given some of the amendments coming up later? As a matter of principle, I think it is possible that the party applying could have seen the information, but have not been able to divulge it, because of the Official Secrets Act or some other process, so there are some tweaks there.
If the Minister is arguing that the process of going through PII and then the court making its own application—we trust the courts in this context—is fair for the party applying, surely it would also be fair for the Government to go through exactly the same route. We could simplify the amendment by simply leaving paragraph (b) in and not (a).
James Brokenshire: We think not, because the other party will not necessarily have sight of the information, so that would create a hurdle for them that they would not be able to cross. I will come on to the substantive issues in relation to the operation of the court trigger when we discuss the next group of amendments. Although I understand my hon. Friend’s desire to have simplicity in how things would operate for both parties, it may create a hurdle that the other party would not be able to get over, because they would not have had sight of the relevant material. If my hon. Friend wants to reflect on that issue in either his contribution or the debate on the next group of amendments, it might be appropriate to raise it again so we can consider it further.
I hope the Committee will agree to the amendments in my name. We believe that they advance the Government’s intention to ensure that CMPs are used appropriately. I hope that they will reassure the Committee, the public and the courts more generally that the courts, and not the Executive, have the power to control the process.
Mr Andy Slaughter (Hammersmith) (Lab): It is a great pleasure to serve under your chairmanship, Mr Crausby, and to debate this important clause. Between Canterbury city council and the intervention of the hon. Member for Cambridge, we are making hesitant progress.
Mr Slaughter: Indeed. The Whips always have a different timetable to the rest of us. We shall see how we go. I intend to make some more general comments about our approach during the debate on the next group of amendments, which address the essence of clause 6, and the essence of this part of the Bill, in many ways. We have already stumbled into controversy over the issue of equality of arms, even in this narrow group of amendments. We regard equality of arms to be one of the important aspects of natural and open justice that the Bill raises. Other aspects will be addressed later in the debate. It is one of the issues on which the Government are seeking to erode the important safeguards in the Bill that were introduced by the House of Lords. I will address equality of arms now, although not the entirety of the issue. When we get on to the next group of amendments, we will see how much further the Government want to go in undermining equality of arms.
I wish to make two short points about these amendments. First, equality of arms means a great deal more than just being in a position to apply for a CMP. Secondly, to the extent that being in a position to apply for a CMP leads to greater equality of arms, that equality is only as good as the ability to make that application meaningful. That is the point to which the hon. Member for Cambridge alluded.
I flag for a later debate the accompanying Government amendments, which came through two days ago. If passed, they will roll back the limited equality of arms eked out by the Lords and the JCHR. They will undermine almost completely the intended effect of the equality of arms amendments that are the subject of this debate. As I say, I will come back to that point.
The Government provided their response to the latest JCHR report only two days ago. It was available in hard copy only today, although we got a photocopy two days ago—that was very generous of the Government. The Government say they have acceded to the section of the JCHR report calling for equality of arms. The JCHR’s recommendation was:
“We recommend that the Bill be amended so that the court has the power to make a declaration, whether on the application of either party or of its own motion, that the proceedings are proceedings in which a closed material application may be made to the court. Such an amendment is necessary in order to make the Bill compatible with the requirement of equality of arms, and to make it consistent with the Government's own justification for extending CMPs in civil proceedings, which is to increase the fairness of such proceedings for both parties.”
“The Government accepts this recommendation. We have been persuaded by the arguments put forward that all parties should be able to apply for a CMP, and that the court should be able to order one of its own motion. We will bring forward technical amendments to ensure that any party (rather than either party) can apply for a CMP, and to deal with circumstances where the Secretary of State is not a party to proceedings but may want to apply for a CMP declaration nonetheless.”
The amendments that we are discussing are those technical amendments that the Government referred to. That does not mean that the Government, in substance, have achieved what the House of Lords and the JCHR set out to do when they sought equality of arms.
Let us be clear about the background. CMPs will never meet the need of equality of arms as the common law understands it. Lord Dyson in the Supreme Court set out where CMPs fail to meet equality of arms. He summarised the case law and set out the problem thus:
“The closed material procedure excludes a party from the closed part of the trial. He cannot see the witnesses who speak in that part of the trial; nor can he see closed documents; he cannot hear or read the closed evidence or the submissions made in the closed hearing; and finally he cannot see the judge delivering the closed judgment nor can he read it.”
“No doubt, special advocates can mitigate the weaknesses to some extent and in some cases the litigant may be able to add little or nothing to what the special advocate can do. For example, this will be the case where the litigant has no knowledge of the matters to which the closed material relates and can give no instructions which will enable the special advocate to perform his function more effectively.”
“in many cases, the special advocate will be hampered by not being able to take instructions from his client on the closed material. A further problem is that it may not always be possible for the judge (even with the benefit of assistance from the special advocate) to decide whether the special advocate will be hampered in this way.”
He said that the conclusions of the Joint Committee on Human Rights, in an earlier report, threw some light on the limitations of the special advocates system. He set out the Committee’s stark conclusion:
“After listening to the evidence of the Special Advocates, we found it hard not to reach for well worn descriptions of it as ‘Kafkaesque’ or like the Star Chamber. The Special Advocates agreed when it was put to them that, in the light of the concerns they had raised, ‘the public should be left in absolutely no doubt that what is happening…has absolutely nothing to do with the traditions of adversarial justice as we have come to understand them in the British legal system.’ Indeed, we were left with the very strong feeling that this is a process which is not just offensive to the basic principles of adversarial justice in which lawyers are steeped, but it is very much against the basic notions of fair play as the lay public would understand them.”
James Brokenshire: I wonder whether the hon. Gentleman would accept that closed material proceedings, which are already used in a number of different circumstances, have been upheld under article 6 of the European convention on human rights as providing a fair trial, as that term is understood within the provisions of that article.
Robert Neill (Bromley and Chislehurst) (Con): I understand the point that the hon. Gentleman is making, but among the arms available at the moment the alternative would perhaps be a PII application. In some of the Strasbourg jurisdiction, it has been held that the CMP procedure can be fairer than the PII one because it enables an investigation of the basis for the decision making, so is that not surely a step in the right direction?
Mr Slaughter: Again, I want to avoid being drawn into that whole argument at this point, because I think that we will have it under the next group of amendments, but the issue of procedural fairness is what the Government rely on. To be fair to the Government, there are arguments on both sides, and I will, I hope, reflect on them, but possibly not now.
As far as equality of arms is concerned, in the evidence to the Joint Committee there was an interchange between Baroness Kennedy and the independent reviewer David Anderson QC. They each, from their eminent position as a QC, exchanged their experiences. I will read this briefly, because it is interesting to give examples. Baroness Kennedy said:
“On the equality of arms issue, there is a problem. I have done these cases. There is the difficulty that the special advocate is presented with a problem, for example of intercept material. I have done cases where the intercept material on the face of it seems incriminating. Then when you know facts about the material that are presented to you by your client, you discover that a very different interpretation can be placed on it that would not be available to a special advocate who did not have the opportunity of discussion with the defendant. I will give a good example. I represented somebody who was acquitted but who had been considered to be present during very incriminating conversations. It was only because of his contention that he was not in the room that we had the tapes listened to. You could hear the door opening and closing, which showed that he had left the room. That is the sort of thing that would not be possible to test—so from practical experience one’s concerns about fairness are very alive.”
“I would agree. I never sought to describe special advocate procedures as perfectly fair. I think that few people who have participated in them would do so. For my last report on control orders—a sort of epitaph for control orders that was published in March—I had found another example by chance in the law reports. It was of somebody who had not been present first time around, not because it was a closed material procedure but because he was not a party to the case. Evidence was given that this person was seen holding a gun in a photograph. The judge said that the photograph was from 2004. It was said to be compelling evidence of this person’s involvement in terrorism. Subsequently the person was put on criminal trial. He had the opportunity to look at the photograph and explain that it had been taken in 2002, on a family holiday.”
“The jury was directed that this had nothing…to do with terrorism and was indeed a holiday photograph taken two years earlier. That is another example of what you say, which is that without the ability to comment on every detail of…the evidence, you cannot guarantee a completely fair trial. That is what Lord Kerr said in Al Rawi.”
Special advocates are hugely problematic and raise as many problems as they answer. They do not answer the problem of equality of arms, least of all in a CMP. Lord Dyson, in al-Rawi, made it clear that the CMP is less fair than public interest immunity, and a key reason for that is inequality of arms:
“The PII procedure respects the common law principles to which I have referred. If documents are disclosed as a result of the process, they are available to both parties and to the court. If they are not disclosed, they are available neither to the other parties nor to the court. Both parties are entitled to full participation in all aspects of the litigation. There is no unfairness or inequality of arms. The effect of a closed material procedure is that closed documents are only available to the party which possesses them, the other side’s special advocate and the court. I have already referred to the limits of the special advocate system.”
So we must be careful about the language of equality of arms. Simply being in a position to apply for CMP does not mean there is equality of arms in the procedure. In particular, it means Government claims to have conceded aspects of equality of arms should be anxiously scrutinised.
So the Lords inserted the ability for either party to apply for a CMP. The amendment was tabled by Lord Pannick, Lord Lester of Herne Hill, Baroness Berridge and Lord Beecham. The Division was won by exactly 100 votes: 273 to 173. The wording is consistent with what the JCHR and many others have recommended and with what the Lords intended. The amendment means that any party to the proceedings may avail itself of CMP under the same conditions. The amendment does not mean complete equality of arms, but it does mean a party may apply for a CMP in the same way as the Secretary of State.
To the extent that some equality of arms is to be provided by permitting any party to proceedings to apply for a CMP, it was always on the understanding that that is to make the procedure fairer. The concessions on the Bill, as amended by the House of Lords, were intended to give effect to the equality of arms principle, in so far as it was addressed by equal access to the CMP application between parties. So Government amendments 53 and 54 follow that intention. Amendments 56 and 63, I take as consequential amendments. I shall ask a question about amendment 65 in a moment. Until two days ago, the Bill, as amended by the Lords, allowed limited concession by permitting both parties to apply using the same procedure. This was part and parcel of the move towards equality of arms, as intended.
We note the effect of new section (1A)(a)(i) of clause 6, as in amendment 54, which is that the Secretary of State may make an application where he is not a party in a case. We do not object, and anticipate that this adds little to contents and measures elsewhere in the Bill in which provision is made for the Secretary of State to become a party. I cannot think that there will be many cases—perhaps the Minister will intervene—where the Secretary of State does not want to become a party if he wishes to make such an application.
In so far as the amendments give effect to the intent of the House of Lords, the JCHR and others, we support them. To the extent that they are technical, that is the Government’s description. But there is a major caveat. I am not speaking to the content of amendment 55, which will be the subject of a later debate. I am saying that no concession to equality of arms is made by these amendments, if the procedure downstream is, as I believe it is, likely to stand to deny them the content of that right to reply.
I look forward to the debate that we are about to have, particularly about the effect of new sections (1C) and (1D) in clause 6, as in amendment 55. The Government amendments, in that regard, do not respect the principle of equality of arms. Although both parties may make an application for CMP, the amendments propose dramatically different opportunities for entering the CMP and would undo most of the benefit of the amendments that we are discussing. Until the later amendments are determined, no concession to equality of arms can be claimed from these amendments.
We do not oppose the set amendments under consideration, with the caveats that I have mentioned. However, I have a question that shows the limits of my knowledge. I read amendment 65 and cannot see—I hope the Minister will tell me—how the new wording differs from the old wording that it replaces. If he cannot identify that now, I should be grateful if he wrote to me.
I look forward to debating the principle of closed material proceedings, which is the core of what we are talking about it. Two important key issues arise from some comments and recommendations made by the Joint Committee on Human Rights which were then passed in the House of Lords. I should make it clear that my hon. Friend the Member for Edinburgh West and I have both been members of the JCHR, so we have an interest in it, although neither of us are members, hence my having time to attend here.
I will not speak at great length. The hon. Member for Hammersmith has cited many of the quotes and the details that I would have mentioned. In this group of amendments, we are dealing with who can apply for closed material proceedings and who makes that first gateway decision. It is striking that, preserved in the amendment, is a huge change made in the other place on the recommendation of the JCHR: the change from the court “must” make such a declaration, to “may”. It
It is important that, if there are to be closed material procedures and the process, the judge must make that decision in the first place and must have discretion in balancing and deciding how to do it.
Dr Huppert: The Minister nods. I hope that we agree completely on the principles in this regard. It cannot just be a Minister who starts the process. As long as we agree that the principle of what the JCHR was trying to achieve is included, and what the House of Lords said is included, we do not have a problem with the amendment, but it is worth flagging the fact that the amendment preserves that important change.
There is significant improvement to the Bill, and we will discuss later where it goes past various thresholds. It is supported by people such as the independent reviewer of terrorism legislation, David Anderson, QC.
The other issue touched on is equality of arms, which is also a key principle. That assurance of intent is important. I want the Minister to clarify that his intent is to have something that provides complete equality of arms—I hope the Minister will correct me if what I say is not the intention, because we are partly debating whether the Government have managed to deliver that. As the hon. Member for Hammersmith said, that was clearly the aim not only from the perspective of the Select Committee but of the other place, where the Lords voted 273 to 173 in favour—not quite the largest number of votes there, but a big number none the less.
There is, however, a key difference. In general, the process that someone who is not the Government would have to go through is different. The Minister, when we had an exchange earlier, argued that, because a case will go through the PII process, the courts could make it work of its own application. That is an interesting approach, but it raises a number of questions and I will be grateful if the Minister can be absolutely clear about some of them. First, the implication is that there will, necessarily, always be a PII process before the process we are discussing can be embarked on, otherwise the logic does not apply, because the other party would not be allowed to make its point at the PII process. Can the Minister confirm the role of PII, because some of the later amendments remove all references to PII in the process, except in a few legal, technical spaces? They remove any reference to the concept of having to look at the PII, so I am concerned that his route would not work.
The Minister highlighted concerns that the barrier would exist because the other party may not be aware of the information were highlighted. I can understand why that was said. There are of course a number of cases in which another party may be aware of such information. I mentioned someone knowing something that was covered by the Official Secrets Act, so it could not be used in a court, but we have to be clear that there must be a process to ensure that if someone knows something, there would be a way for the court to be allowed to hear it. Otherwise, it would seem deeply unjust for someone who knew that this information existed not to be able to
My key concern is that, if the Minister is correct about trusting the court’s application to pick up the case, and I do not doubt that that is his intention, and if it is the case that allowing the court to make the application to the CMP will work correctly with one party, I simply do not understand why it would not work correctly with another party. If we trust the court to make its declarations, of its own motion, in all the sensible circumstances, we would not need paragraph (a) of the amendment. We could allow the court to make that application because the case would be made by the Secretary of State or any other party in the PII hearings—as the Minister outlined.
The group of amendments does not change substantially the earlier drafting, but clarifies it; however, some important issues are raised. The Minister needs to be clear on both the intention—I have no doubt that he intends what he outlined, but complete clarity will be helpful—and the practice to deliver the equality of arms that the whole Committee passionately believes there should be.
Paul Murphy (Torfaen) (Lab): The issue is never an easy one. The conflict between the national interest in security terms and the protection of civil liberties is real. In the three years that I was Secretary of State for Northern Ireland, every single day such issues came in front of me. I had to be involved in PIIs, with the Attorney-General, and to deal each day with the interception of telephone calls and with other issues. Every time I did that, I realised that I was infringing on somebody’s liberty. I am very much in favour of using, for example, intercept evidence in courts. That should happen, but that is not an easy issue and nor is the issue we are discussing now.
I agree with the amendments proposed by the Government, but, in principle, it is better to have a case than no case at all. To that extent, it is right to have them, but my hon. Friend the Member for Hammersmith is right in saying that if we are to go down this road, we must get it right. It strikes me that, in the House of Lords, a number of important amendments were agreed to and I hope that, in this debate and those to follow, the Government will take great notice of what their lordships said because, like us, they want to protect individual liberty while ensuring that our national security is also protected.
James Brokenshire: The point that the right hon. Gentleman just made is important. I note the quotes that his hon. Friend the hon. Member for Hammersmith highlighted, but, while not seeking to trade quotes, the
“We are in a world of second-best solutions, but it does not seem to me that the level of injustice inherent in the use of a closed material procedure in a case of this nature necessarily exceeds either the injustice to the claimant of a case being struck out, or the moral hazard and reputational damage to the intelligence agencies that is caused by settling a case which, had it been possible to adduce all the evidence, would have been fought.”
Mr Slaughter: We are all in danger of selectively quoting from people such as David Anderson who have given a lot of evidence and who have said a great deal that is worth hearing on this matter. The Minister will, no doubt, reflect on the fact that David Anderson is of the view that CMPs is to be used as a matter of last resort.
James Brokenshire: We will come on to that, because that touches on a point that we will come on to in the next debate as well: whether PII should be used in particular circumstances. It is interesting that, in this debate, PII has been held up almost as a perfect situation, whereas right hon. and hon. Members throughout the House will understand its severe limitations: actually, it takes evidence out of consideration. Therefore, while it is sometimes proffered as the preferred solution, on occasion I find it strange that it is advanced in that way. To me, taking evidence out from consideration altogether does not seem to be a perfect solution.
There may be cases that are so infused with intelligence material that going through a PII process would not take you that much further forward. That point has been raised during evidence to the Select Committee as well, but I am sure that we will come on to that broader issue in the next debate as I am straying on to the next set of amendments rather than staying on the specifics of this group.
Mr Slaughter: I suspect that we are all champing at the bit to get on with the next debate, so perhaps we should do that. He will recall that I read the quote from the Master of the Rolls, as he is now, who pointed out that the PII procedure respects the common law principles—there is no unfairness or inequality of arms in that—and he contrasted that with the closed material procedure.
James Brokenshire: Perhaps I should take us back to these amendments rather than straying on to the next group. I have already said that we acknowledge the point made on the inequality of arms and I heard clearly the points made by my hon. Friend the Member for Cambridge. In this group of amendments we seek to address the technical issues of who would apply, in what circumstances and, most importantly, the ability for the court of its own motion to be able to determine that a closed material proceeding could operate.
Robert Neill: My hon. Friend is making his point very well. Is not the problem with the point made by the hon. Member for Hammersmith in his last intervention that although PII respects the procedure of common law, it does so at a price, and sometimes that price is unacceptable because exclusion of the evidence means that there cannot be determination of the case?
James Brokenshire: My hon. Friend is absolutely right, and that is at the core of the debate on closed material proceedings. We are able to have a mechanism, even though it may not be perfect, and I am not suggesting that it is. This is the point that David Anderson made in his original quote to which I referred. It provides the opportunity for evidence to be considered by a judge, and in the Government’s judgment that is an appropriate way forward. However, I am straying into the next debate.
Dr Huppert: Can the Minister confirm—he has access to better research services than I do—that in the al-Rawi case, which in some ways is the seminal one that led us to this place, every single judge said that the PII process must take place before going on to a CMP case?
“I do not think legislation should require it to be performed. It is reasonable to entrust the court with an element of predictive power, and if the judge reasonably takes the view that just resolution is not possible via PII, I think the court should be able to back its judgment, subject of course to appeal.”
Mr Slaughter: It is possible that the independent reviewer, the Master of the Rolls and the hon. Member for Bromley and Chislehurst, eminent jurists all, are all right, and that there may be circumstances—we will come to those later—in which PII is not an appropriate process. They may be a small number of cases, but none the less, the fact is that the PII, which is a tried and tested process and obeys the rules that the Master of the Rolls says it obeys, is a very good reason for testing that first before considering CMP.
James Brokenshire: We will come to that debate on the next group of amendments, which is where it sits more happily than in this narrower group, so I will not extend the debate too much on this aspect now. I know that the hon. Gentleman, my hon. Friend the Member for Cambridge and other right hon. and hon. Members will want to return to the issue. The point is that the court will have discretion in the provisions that we will come to on the next group of amendments to determine what is in the fair interests of justice in amendment 55. That is perhaps a better context in which to have the debate.
On the equality of arms point that hon. and right hon. Members have highlighted, the point that we are seeking to advance in amendment 54 is to respect the different levels of application and whether the Secretary of State or a party holds information. Again, to take on board the point that my hon. Friend the Member for Cambridge highlighted, we are likely to be in a situation
We are now having the debate almost the other way round. My hon. Friend is suggesting that there should be a CMP because that would be procedurally fairer than the Government having complete discretion to pick and choose whether to use PII or a CMP in those circumstances. We have extant litigation against the Government and they decide there is evidence that they would otherwise have to disclose but which would be damaging to national security. In those circumstances, the Government judge that PII is the most appropriate mechanism, and therefore apply to court for it.
In those circumstances, the individual may not necessarily know what the information is, and they can make representations to the court that it should of its own motion apply and adopt a CMP rather than acceding to a PII. The court would have the ability to analyse that information and draw its own judgment.
In answer to my hon. Friend the Member for Cambridge, I acknowledge the point about equality of arms, but I am simply saying that we are addressing it in a different way through that mechanism. I am sure that he will reflect on that; indeed, I see that he wants to catch my eye again, so I will, of course, give way in my customary manner.
Dr Huppert: I will try not to abuse the Minister’s politeness. He has outlined a route by which another party could get into CMP, if that were in their interests. The fundamental concern is that the Government may be able to have their choice of the PII or CMP, whereas the other party would be forced to follow one process. I have not followed for what reason the Secretary of State and the Government could not follow the same route of applying to the court for an application under its own motion. What would be the fundamental problem of having perfect symmetry in terms of who makes that application?
James Brokenshire: The answer is that the Government would know what was sensitive material, and the other party would not. Therefore, in terms of triggering the process and the requirements that would be set, one would then establish a disequality of arms in the other way, in the sense that the Government would know the extent and nature of the sensitive material, while the other party, by nature, necessarily could not, or would not know. By means of the introduction of the mechanism of the court of its own motion, we are trying to address that. Rather than not acceding to the concept of equality of arms, we are trying to address it through that mechanism, because we recognise that one party will be more fully informed than the other from the outset, because, naturally, they will have seen the information.
James Brokenshire: That important point about the review process will be considered when we come to discuss Government new clause 5. That important additional safeguard has been included in the package of Government amendments to reflect the issues that have been raised by the Joint Committee on Human Rights. I recognise its important work, and the Government have made important changes to this legislation as a consequence. I pay tribute to its work, and acknowledge the points made in the other place. This group of amendments is quite narrow in its scope, and is intended to allow the different permutations of people being able to apply for a PII to be properly reflected, respecting the amendments from the other place, and the recommendations of the JCHR.
James Brokenshire: The hon. Gentleman will see that amendment 65 is, again, a technical amendment that reflects the changes we seek to make in amendment 54. Amendment 65 ensures that the provisions in clause 10 are consistent with amendment 54.
‘(1A) The court may make such a declaration—
(a) on the application of—
(i) the Secretary of State (whether or not the Secretary of State is a party to the proceedings), or
(ii) any party to the proceedings, or
(b) of its own motion.’.—(James Brokenshire.)
‘(1B) The court may make such a declaration if it considers that the following two conditions are met.
(1C) The first condition, in a case where the court is considering whether to make a declaration on the application of the Secretary of State or of its own motion, is that—
(a) a party to the proceedings (whether or not the Secretary of State) would be required to disclose sensitive material in the course of the proceedings to another person (whether or not another party to the proceedings), or
(b) a party to the proceedings (whether or not the Secretary of State) would be required to make such a disclosure were it not for one or more of the following—
(i) the possibility of a claim for public interest immunity in relation to the material,
(ii) the fact that there would be no requirement to disclose if the person concerned chose not to rely on the material,
(iii) section 17(1) of the Regulation of Investigatory Powers Act 2000 (exclusion for intercept material),
(iv) any other enactment that would prevent the party from disclosing the material but would not do so if the proceedings were proceedings in relation to which there was a declaration under this section.
(1D) The first condition, in a case where the court is considering whether to make a declaration on the application of a party to the proceedings (other than the Secretary of State), is that—
(a) the applicant would be required to disclose sensitive material in the course of the proceedings to another person (whether or not another party to the proceedings), or
(b) the applicant would be required to make such a disclosure were it not for one or more of the following—
(i) the possibility of a claim for public interest immunity in relation to the material,
(ii) the fact that there would be no requirement to disclose if the applicant chose not to rely on the material,
(iii) section 17(1) of the Regulation of Investigatory Powers Act 2000 (exclusion for intercept material),
(iv) any other enactment that would prevent the applicant from disclosing the material but would not do so if the proceedings were proceedings in relation to which there was a declaration under this section.
(1E) The second condition is that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration.
(1F) The two conditions are met if the court considers that they are met in relation to any material that would be required to be disclosed in the course of the proceedings (and an application under subsection (1A)(a) need not be based on all of the material that might meet the conditions).
(1G) A declaration under this section must identify the party or parties to the proceedings who would be required to disclose the sensitive material (“a relevant person”).’.
‘(b) such a disclosure would be damaging to the interests of national security,
(c) 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
(d) a fair determination of the proceedings is not possible by any other means.
‘(1C) In deciding whether a party to the proceedings would be required to disclose material, the court must ignore—
(a) section 17(1) of the Regulation of Investigatory Powers Act 2000 (exclusion for intercept material), and
(b) any other enactment that would prevent the applicant from disclosing the material but would not do so if the proceedings were proceedings in relation to which there was a declaration under this section.
(1D) Before making an application under subsection (1), the Secretary of State must consider whether to make, or advise another person to make, a claim for public interest immunity in relation to the material on which the application would be based.
(1E) Before making a declaration under subsection (1), the court must consider whether a claim for public interest immunity could have been made in relation to the material.’.
‘(a) ensure that the material is disclosed to a special advocate,
(b) determine whether a claim for public interest immunity could have been made in relation to any part of the material, and
(c) order disclosure of any part of the material to which public interest immunity would not apply.
‘(6A) In making a determination pursuant to subsection 2(d), the court—
(a) must not make such a determination solely by reason of the fact that such material would be excluded by the operation of the doctrine of public interest immunity; and
(b) must only make such a determination if otherwise the proceedings would be struck out pursuant to any rule of law; and
(c) must only make such a determination if the court is satisfied that the unfairness to the relevant person or the Secretary of State by not making a declaration under this section would be substantially greater than the unfairness to the other parties by making such a declaration.’.
It may be helpful to Members if I explain the procedure for this debate. As usual, any Member who is called during the debate is free to speak to any of the amendments
Dr Huppert: On a point of order, Mr Crausby. This is the first time I have moved an amendment to a Government amendment, so I apologise if I am wrong, but it appears to me that it is in fact amendment (b) that the other amendments to the amendment would be dependent upon. Amendment (a) would reinstate two subsections into the Bill. It does not seem to me to clash with the other amendments to the Government amendment. I would be grateful for your guidance.
Mr Slaughter: Further to that point of order, Mr Crausby. I am grateful to the hon. Member for Cambridge, because I think he is trying to salvage my amendment from an early bath, if that is not a mixed metaphor. I raised this point with the Clerk, and I am happy to accept your and his advice. I think that the issue here is duplication. Amendment (a) would retain subsections (5) and (6), but those provisions are also put back by our later amendment (g). Effectively, once the clause is amended by amendments (a), (b) and (c), that amendment would no longer be considered worthy of its place in the Bill.
James Brokenshire: In the previous debate, we touched on a number of issues pertinent to this debate, and I think we identified that this group of amendments perhaps lies at the heart of our discussions of the operation of closed material procedures. I am therefore sure that many Members will wish to participate in this important debate.
First, I want to underline that the aim of the CMP provisions is quite straightforward. It is to allow some justice into an area of public life from which it is currently absent, and in doing so to ensure that civil proceedings brought against the Government are actually heard and resolved, rather than simply settled without the matters at play being considered.
The Government have listened carefully to the concerns expressed and amendments made in the other place, and brought forward a new package of measures.
The amendment includes language endorsed by the other place on the recommendation of the Joint Committee on Human Rights, which requires the court to consider whether a CMP would be in the interests of the fair and effective administration of justice in the proceedings. That change has been made as the Government recognise the strength of feeling that the judge should have clear discretion about where CMPs should be used. In the vast majority of civil claims, CMPs have no part to play whatsoever. However, in the tiny number of cases that hinge on sensitive national security material, it is inevitable that without a CMP the case cannot be heard. Our intention is that CMPs should be used only in the small number of cases where they are in the interests of the fair and effective administration of justice in the proceedings.
In examining that question, the court will want to focus on what is necessary for resolving the issues in the case before it. In particular, it should focus on the relevance of the sensitive material to the issues in the case, but it will also want to take into account other factors. These might include whether both parties would consent to a CMP, the importance of the issues in the case, and the existence of material—such as intercept material—that could be dealt with only in closed proceedings.
Mr Slaughter: The Minister was correct to say that the House of Lords amendment that changed “must” to “may” was welcome, because that opens the door to judicial discretion. Does the Minister agree that how far, or in what way, that door is opened depends on how it is qualified by the rest of the clause? If it is qualified by the new wording—for example,
James Brokenshire: Clearly, and I am sure that the hon. Gentleman will set out, as I will, the whole basis of the clause. Indeed, I will discuss the new clause that sits alongside this, which is on the ability of the court to review and consider whether a CMP remains appropriate. Although it is the lead amendment, I will not only speak to amendment 55; new clause 5 is also very relevant to our consideration of how this will work overall in practice. Perhaps I will come on to that point, as I have flagged it.
The second part of the Government package puts a power in the Bill for the court to revoke a declaration through new clause 5. That measure provides the explicit power to revoke a CMP declaration at any point if the judge does not believe its continuation to be in the interests of a fair and effective administration of justice in the proceedings. The court will also need to undertake a formal review of its decision to grant a CMP at the end of the detailed document disclosure phase, which takes place before the trial of the actual issues in the case. At that point, the court will have had the benefit of scrutinising in detail all the relevant sensitive material, as well as all the relevant open material, and, with the assistance of special advocates, deciding what should be disclosed, whether a summary of any closed material not damaging to national security should be provided, and what is necessary for the proceedings to comply with article 6 of the European convention on human rights, even if it is damaging.
The judge would be required to revoke the CMP declaration if he or she considers that it would no longer be in the interests of the fair and effective administration of justice in the proceedings. That should ensure that closed material proceedings are not over-used, which I well recognise is one of the principal concerns of many right hon. Members and hon. Members. I think that that addresses the concerns raised by the hon. Member for Hammersmith in amendment (g), that the judge should be able to grant a CMP only where a fair determination is not possible any other way. I am sure that the hon. Gentleman will speak to that amendment in due course. If the court decided to revoke, the parties would then have to consider other options for handling the proceedings.
Dr Huppert: On new clause 5, that is a welcome step; that on its own is definitely helpful. A lot of this hangs on the exact legal interpretation of words, so could the Minister give me some advice? As I have said, I am not a lawyer. How does something being in the interests of the fair and effective administration of justice stack up to the wording in the Bill as it is? For example, the Bill requires balancing the degree of harm to the interests of national security against the public interest in the fair and open administration of justice. Would that ensure that this would take place only where a fair determination of proceedings was not possible by any other means? Could the Minister give me a sense of the different thresholds for all of those, and how they all stick together?
James Brokenshire: Clearly, as my hon. Friend has already highlighted, these issues of wording are important in seeking to provide as much clarity as we are able to in the Bill, and on how these cases would be determined. Obviously, if a closed material procedure is being sought, that by its nature inevitably means that something will be dealt with in part in closed proceedings, and in part in open. Therefore we believe that ensuring that we are dealing with the fair and effective disposal of justice is the clearest language we can offer, in the analysis and examination of the evidence that the court will need to consider in deciding whether to grant a closed material procedure.
Obviously, my hon. Friend will note the different conditions and the triggers that are applicable and how we are limiting this to national security. We will come
Mr Slaughter: I say, slightly flippantly, that the main difference between the two forms of wording is that everybody knows what the Bill as it stands at the moment means, because it is the wording from Wiley, it has been around for 18 years, and it has been a product of judicial development. Nobody knows what the Minister’s wording means, because as far as I can see it has been invented for the purposes of the Bill. I hope that he will say a little more than he said to his hon. Friend the Member for Cambridge on where that terminology comes from. I actually rose to ask the Minister this question: he has addressed new clause 5—he may return to it—but does he agree that it does no more than the court could do through its inherent discretion?
James Brokenshire: I think it provides an important protection in that it requires the court to examine the original decision that would have been made to trigger a CMP prior to the consideration of the case’s substance. In other words, once the court has had the opportunity to review all the evidence and what is proposed to go into open and what is proposed into closed, it can consider the context of that information, as a further milestone in the court process. It is important to put that in the Bill and to provide assurance that there will be a formal point when further consideration of the significance is applied. I do not agree with the hon. Gentleman.
We will no doubt come to the Wiley balancing test, which the hon. Gentleman referred to, because in essence that test is about the decision making on taking material out of consideration. We judge that using that test, or that language, does not necessarily reflect the changed circumstance, because we are talking about whether to consider material. While I note the hon. Gentleman’s point, the Government take the view that that language does not sit happily with the idea of considering material for the disposal of a trial, rather than considering taking it out altogether and not allowing it to be considered.
The amendment is technical and maintains the position in the Bill that only information that damages national security can be heard in a closed material proceeding. If there was information that would damage international relations or the prevention or detection of crime, the
The Joint Committee on Human Rights recognised that a statutory definition of “national security” would be without precedent, and might be unhelpful where that term is used in other statutory contexts. It therefore did not recommend that the Bill be amended to define the interests of national security in this context, and we agree.
It has been the considered policy of successive Governments and the practice of Parliament not to define the term “national security”. That is in order to retain the flexibility needed to ensure that the term can adapt to changing circumstances, and I underline that point. The courts will be the ultimate arbiters of whether a persuasive case has been made that disclosure would damage the interests of “national security”, and it is best left to their interpretation. As an indication, the types of material sensitive to national security that may be heard in closed session could include information from a sensitive source whose life or safety would be put in danger if it were openly disclosed, information relating to current covert operations that would be compromised if they were made public, national security intelligence material shared with the UK by foreign intelligence agencies, and the content of telephone calls or e-mails intercepted by the intelligence agencies, which would not be admissible in open civil proceedings.
My hon. Friends the Members for Cambridge and for Edinburgh West tabled amendments (a) to (c) to Government amendment 55. In addition, the hon. Member for Hammersmith tabled amendments (d) to (g). There is an overlap in what the two sets of amendments are intended to achieve, but I may be able to deal with some of the relevant concerns.
Mr Slaughter: The Minister will be delighted to know that I agree with what he says about defining national security in the Bill. That was debated eruditely in the other place. Will he explain, however, how new subsection (1C)(a)—
James Brokenshire: The hon. Gentleman needs to consider the overall package, and the consequences of tabling new clause 5. The language is different from what was set out in the House of Lords, but we believe it provides a clearer and more effective structure to the clause, to make it more effective. It gives intent to a number of the amendments from the other place.
After careful analysis, the Government concluded that the amendments passed in the House of Lords to clause 6 would require the court to exhaust every other option for trying the case before granting a CMP declaration. In particular, they would require a full PII exercise to be conducted first in every case. We do not think that is the best way of achieving what the Government, and, indeed, the Joint Committee on Human Rights, intend, as it reduces the discretion of the judges to decide whether a CMP would be in the interest of the fair and effective administration of justice in the proceedings. The Government agree with David Anderson that that determination can sometimes be made without necessarily requiring a whole PII exercise in every case. As I mentioned earlier, he said:
Dr Huppert: Certainly we should try not to legislate for a futile exercise, but does the Minister accept that the removal from clause 6 of subsections (5) and (6) removes all mention of the PII process at that point? The Minister is correct; we do not want a futile and exhaustive process, but there is nothing to say that the Secretary of State must explain to the court why they chose not to have PII or that they must have considered it. No thought is given to whether one should go through PII at all. There may be good reasons why it would not be a correct solution. It is certainly not perfect; but the Minister’s amendments remove thoughts of PII from the process completely.
James Brokenshire: It is also worth highlighting the history of the original clause; it is relevant to my hon. Friend’s point. Let us not forget that in the original Bill it was to be the Secretary of State who would in essence provide the trigger. The court would then consider whether the decision of the Secretary of State was reasonable. The provision was framed in a different way.
That clause structure, with the emphasis more on the decision of the Secretary of State, necessarily lent itself to that sense of assurance with respect to the consideration that the Secretary of State had given before reaching the point of determination. Now we are in a different situation; the court is to decide whether a CMP should be granted in the interests of justice in seeking to resolve the case. It is important to understand that point first.
The second point is that in some cases there is one crucial document that cannot be disclosed in open conditions, but without which the case cannot be fairly resolved. Or the case may be one that, in David Anderson’s words, is “so saturated” in national security material that if a PII were to be successful the Government would be left with no material to put their case forward. The delay caused by going through a full PII process in every case, particularly in cases involving large numbers of documents, could also have extremely detrimental impacts on claimants and other people affected by the issues in the case. That is not in the interests of the fair and effective determination of justice.
Let me be clear. There may be cases that are better tried by using PII, such as those where the sensitive material is peripheral to the case. Clause 11(2)(b) makes it clear that PII will remain available as a tool. A relevant consideration for the court will be the availability
It should be enough if the Secretary of State can give good and persuasive reasons why PII is not appropriate in that case and why a CMP would be a fair and effective way to find a sensible conclusion to the case. Such reasons could include relevant material such as intercept that can only be dealt with in a CMP, sensitive material that is so central to the issues in the case that it would be difficult effectively to try the case without it, a volume of sensitive material that renders PII impractical, or the consent of the other parties to a CMP.
Dr Huppert: I apologise if I have not been clear. We have no problems with a lot of the ideas. We do not want exhaustive PII where it is simply futile. I agree very much with what the Minister has just said, but I cannot see where it says in the legislation that that is the case; I cannot see anything that allows the court to require the Secretary of State to give an explanation as to why PII would not be appropriate. He gives perfectly good reasons as to why it might not be, and I think that a court might well accept them, but there is nothing to allow the court to require the Secretary of State to do that. There is nothing that says that the Secretary of State has to have even thought about it earlier in the process. While I agree with what the Minister is saying, it does not seem to fit with the legislation.
James Brokenshire: It is implicit in the drafting in terms of the conditions that are contemplated by the operation of amendment 55. In so much of this debate, we have been discussing the opportunity for flexibility and for discretion of the court. What is being advanced may be a fettering of the discretion of the judge to make that determination. [Interruption.] I think it is important. In cases where there may be relevant material, such as the one I outlined, I do not think that the judge should necessarily be straitjacketed into PII. To be fair to my hon. Friend, I do not think that that is what he or my hon. Friend the Member for Edinburgh West, who sat on the Joint Committee on Human Rights, are saying. I hope my hon. Friend the Member for Cambridge agrees that the judge should have the freedom to make the appropriate decision on whether a CMP should go ahead without fear of having his decision appealed because he had failed to adhere to some requirement set out in statute. Of course, if the court decides against a CMP, a PII application could still be made in that case, and the court would be free to suggest it in refusing the CMP. That is very much reflected in, and part of, the amendment.
Similarly, confidentiality rings will not be appropriate in every case. Private hearings and confidentiality rings exist and operate effectively for less sensitive material or where someone is aware of its contents. The concern is to avoid the damage that would be caused by further disclosure. However, where national security is at stake, these mechanisms cannot give the required degree of assurance in every case and there may be no reliable way to manage or contain the harmful impact of making sensitive information public. In some instances, the claimant may be someone the Government has reason to think has been or is involved in terrorism, and giving
The Government are committed to ensuring that CMPs are only available in cases where they are necessary. They acknowledge and respect a number of the concerns that have been expressed by the JCHR and in the other place. We believe that the proposal in this and subsequent amendments gives effect to that.
Ian Paisley (North Antrim) (DUP): I support what the Minister says, especially where—he put his finger on it—national security is at stake. That is the critical argument. Can the Minister confirm that the estimated number of cases involved is so small and limited that the measure will only have an impact on the difficult national security sensitive cases?
James Brokenshire: We have certainly indicated that the number of litigation claims against the Government that would fall into this category, as of October of last year, is about 20. That figure has been put on the record previously, but I want to restate it. Concerns have been expressed about the expansive nature of the proposals, but the measures are intended for the small cadre of cases that could not otherwise be dealt with and would effectively lead to the Government having to settle the litigation to ensure that sensitive material was protected.
The introduction of much clearer discretion for the judge that CMPs should only be used where they are in the interests of the fair and effective administration of justice in the proceedings will go a long way towards achieving the aim endorsed by the other place on the recommendations of the Joint Committee.
Amendments (b) and (c) together would remove the restriction on a non-Secretary of State party being able to apply for a declaration based on another party’s disclosure. I believe the reasoning behind the amendments is based on concern about equality of arms, which we touched on in the preceding debate. We have looked into the issue carefully to see whether it would be possible for any party to seek a declaration for a CMP in respect of another party’s disclosure as well as their own, but we concluded that the problem is that it would not be possible for a non-Secretary of State party to satisfy the declaration obligations if they did not hold the material. In the preceding debate, we touched on the hurdles that would need to be overcome.
As an alternative, where another party is aware that the Secretary of State has made a PII application and would prefer to have a CMP, they can make that submission to the court during the open course of the open PII hearing, and the court can use its power to make a CMP declaration of its own motion under the amendments we debated and agreed in the previous group.
Dr Huppert: The Minister is right: the amendments he refers to are about non-state parties. He said that he could see few cases where such a party could know that the state held information about them. The question is whether it is few cases or no cases. If there is any case at all where such a person could know that there was
James Brokenshire: My hon. Friend fastens on an important aspect: the issue of the hurdle and whether there is a mechanism through which the hurdle could be addressed in the scenario he highlighted. I return to the point about the court of its own motion. The court itself in those circumstances would be able to see all the information—its relevance and significance—to assess whether a CMP was appropriate. Where the other party is not even aware that it is relevant, the court could still make a declaration of its own motion.
All I am saying to my hon. Friend is that I recognise and understand his point, but the appropriate way to deal with the issue is through the individual, in essence, seeking that relief from the court, because they will not be able to satisfy the conditions or know the significance and relevance. That is the appropriate way to deal with the hurdle issue and to address the equality of arms arguments we touched on earlier.
Dr Huppert: I think the Minister is correct to say that the application of the court is a helpful process and may well be used, but he is still closing off another route that may or may not be useful. It may turn out that there are no such cases, so applications being allowed will not make any difference to the Government’s position, but there could be cases where an applicant may wish to make use of that route. We could provide far better equality of arms by simply allowing both options.
James Brokenshire: My hon. Friend will have noted that the amendments envisage that if, for example, an employee holds information and a claim is being made against them, they can trigger a CMP for information that they hold in order to defend themselves against such action. The point that he highlights is the case where someone does not hold the information, or they think that there is some information that may be being separated away through PII to exclude it altogether. The problem that we are wrestling with is whether that evidence can be considered within a court hearing, albeit in closed session rather than open session.
It is not a question of our trying to block things off; we are trying to find a mechanism that we believe works through this process. We do not want to set up a bar that cannot be crossed—this point was made by either my hon. Friend or the hon. Member for Hammersmith. We believe that the option of the court acting on its own motion provides the mechanism and the potential for relief, and ensures that we do not set in legislation a test that an individual cannot satisfy.
Mr Slaughter: I take the Minister back to a point that he made a moment ago: that he was trying, in his amendment, to meet the concerns of the JCHR and the other place. Why does he think that his amendments,
James Brokenshire: The point I would make is twofold. First, we want to reflect the fact that the original Bill was drafted and predicated on a different basis from where it started. We want to ensure that the consistency of approach as to where the consideration of approval for a CMP now lies is properly reflected in the revised drafting. Secondly, the hon. Gentleman fastens on the Wiley balance point and the different language that we use on that, but that is because it is predicated on the basis of excluding something, rather than including something. We think that that is an important and significant difference between the operation of a CMP and the operation of public interest immunity, which is about taking information out of the court.
Amendments (b) and (c) would remove the restriction on a non-Secretary of State party being able to apply for a declaration based on another party’s disclosure. The reasoning behind the amendment is, I believe, based on a concern about equality of arms. We have looked at that closely for the reasons that we have discussed, which I will not repeat.
Amendment 68, tabled by the hon. Member for Hammersmith, has three aspects, if I have understood it correctly: first, full disclosure of the material to the special advocate or, where appropriate, into open court; secondly, the need to consider PII; and finally, to ensure that CMPs are used only where absolutely necessary. I understand that the amendment is motivated by a desire to preserve the public trust and confidence in the courts.
Regarding disclosure, the Bill does not seek to change the rules in relation to civil proceedings, save where this is necessary to have a closed material procedure. We are not otherwise changing the ordinary rules in civil process relating to disclosure or evidence. The amendment would also, in places, change the ordinary rules and impose safeguards over and above those that would ordinarily apply in civil proceedings. We do not accept that any such changes are necessary. Civil procedure rules will otherwise apply as normal and are adequate to achieve fairness and deliver justice, notwithstanding the closed nature of the proceedings.
Although the Government agree with the thrust of that point, the Bill already provides for the essence of it in clause 9, which states that subject to securing closed material procedures, the ordinary rules of disclosure must otherwise apply. I have outlined why we do not think it is necessary to exhaust PII when it is obvious that a case is saturated in sensitive material, but it is important to note that the Bill explicitly preserves public interest immunity. Clause 11(2)(b) states that the CMP provisions do not affect
I believe that the Government amendment addresses the hon. Gentleman’s concerns. The overall aim of our package is to ask the court to consider whether a CMP would be in the interests of the fair and effective administration of justice in the proceedings. I doubt that any Member here, notwithstanding the points that have been raised, would object to that aim, and it is wholly consistent with the JCHR’s recommendations.
To conclude, the Government are strongly committed to open and transparent justice and believe that, ideally, all cases should be dealt with in open court. However, the alternative to CMPs in some cases is simply silence. There was resounding support in the House of Lords for closed material procedures to be available when cases hinge on sensitive national security evidence. The difference of opinion focused on how a CMP was triggered and the powers of the court. I hope that the Committee will agree that the Government amendments advance the continued efforts to ensure that CMPs are used appropriately and that the courts, not the Executive, have the power to control the process.
Mr Slaughter: I am grateful to the Minister for what he has said, but I do not think he has gone far enough in explaining the substantial amendments that he wants to make to clause 6. I will start from where he left off.
I believe that the principles of open and natural justice, which need to be engaged in the debate on closed material procedures, are infringed by the Government amendments. The extent to which the House of Lords succeeded in limiting the application of CMPs improved the Bill, and I will explain why shortly. The Government amendments are a recent move. Some people seem to have had more notice of them than I did, because the Liberal Democrats had tabled their amendments to the Government amendments by the time the amendment paper was produced. I do not take issue with that, and I am grateful to the Chair for accepting our starred amendments.
Dr Huppert: I find the Public Bill Office extremely helpful in discussing such matters. It is possible to go in during the day rather than tabling things right at the last minute, although I agree that if the Government table their amendments sooner, that makes it easier.
Our amendments are designed to undo some of the damage done by the Government amendments to the important principles that the Lords inserted into the Bill. I will read the well known quote from Lord Kerr, which may not be familiar to everyone, because it sets the scene well for the amendments. In the case of al-Rawi and others v. The Security Service and others, Lord Kerr said:
“second argument proceeds on the premise that placing before a judge all relevant material is, in every instance, preferable to having to withhold potentially pivotal evidence. This proposition
“We do not agree with the Government's claim in its Green Paper that the extension of closed material procedures will enhance procedural fairness. We agree with the evidence of the special advocates that closed material procedures are inherently unfair. We also agree with Lord Kerr in Al Rawi, that evidence which has been insulated from challenge may positively mislead the court.”
I have mentioned the areas that I wish to go through in detail. A further preliminary but important point is the risk to national security. I will be brief on that, because the position is clear. The only reason the issue continues to be raised is that, frankly, Government Members keep raising it in an inappropriate way. I am sure that nobody in this Committee or in the House would say that national security is not of the utmost importance. It is the most important thing that we as legislators or as members of the Government need to uphold. I can give an example of that. Shepherd’s Bush is part of my constituency, and Osman Hussain, one of the 21/7 bombers, detonated—I use the word “detonated” because were it not for the instability of the explosive, it would have detonated, and certainly the detonators went off—one of the four bombs on that day at the Hammersmith and City line tube station at Shepherd’s Bush. Had it gone off, it would undoubtedly have killed many of my constituents, and many other people. We take such matters with the utmost seriousness.
However, the discussion that we are having, as I am sure the Minister will agree, is not about the risk of inadvertently or in any other way, including through the exercise of judicial discretion, disclosing information about national security. I will quote what the Joint Committee said in relation to that. Having heard the then Lord Chancellor and Secretary of State for Justice, the right hon. and learned Member for Rushcliffe (Mr Clarke), say that
“We found this a somewhat surprising shift in the Government’s justification for the proposal to extend CMPs because, as the Independent Reviewer pointed out in his evidence, the Government’s case for making CMPs more widely available in civil proceedings is not based on national security arguments, since, other than in Norwich Pharmacal proceedings,”—
“My view is that a system founded on PII does not threaten national security. The reason for that is that, if the Government feels its hand has been forced and the court is requiring it to disclose something that is confidential, it can pull the prosecution if it is a criminal case—and of course it sometimes does. If it is a civil case, it can settle the case, and I am quite sure that in routine cases against the police and so on that is a course that is sometimes taken.”
Mr Julian Brazier (Canterbury) (Con): Is the hon. Gentleman suggesting that the only way that national security and, in particular, our intelligence services, which are so crucial in maintaining it, can be damaged is through the leak of secure information?
Mr Slaughter: No. I am not going to address the clauses in the Bill that deal with Norwich Pharmacal, because my hon. Friend the Member for Kingston upon Hull North will deal with those matters in due course. I am speaking to the clauses that deal with closed material procedures, and I am saying exactly what the independent reviewer said in relation to those matters, which is that a system founded on PII—in other words, the system that pertains at present—does not threaten national security.
Mr Brazier: The hon. Gentleman is courteous in giving way a second time. Is he suggesting that no damage is done to national security if a court case is simply abandoned by the Government and a large sum of money is handed over to people who are believed to be terrorists, because to pursue the court case under the existing arrangements would entail the release of sensitive material?
Mr Slaughter: I know that that is not what the hon. Gentleman asked. I will go on, within the context of the debate, to talk about not only the question of payment of damages, but procedural fairness, because the Government’s case is that sometimes CMPs could be procedurally fairer than the alternatives. To have those matters within the ambit of the debate is totally reasonable, but if the hon. Gentleman saying that, as a consequence of the current procedures of the court—principally PII, but other matters as well—there is a real danger of matters of national security being released publicly, I would like him to give me an example of that happening.
Mr Brazier: I shall wait until I make my speech, but I will say briefly that my concern is that the intelligence services do, as both sides of the Committee agree, an essential job. Under the current arrangements, they are
It may help to clarify the point that I think the hon. Gentleman is making if I try to give an example based on what he just said about an explosion on a tube train. Let us suppose that the intelligence services got wind from a human source that somebody abroad and was planning to come back and blow up a tube train, and the human source obviously could never be produced in court. The only way to prevent the attack from happening might be for the person to be arrested abroad, but it could then be claimed that he had been ill-treated in that country’s jails. When eventually the person is released and comes back to the United Kingdom, he could say, “I was mistreated and I want to sue the Government.” I suppose the hon. Gentleman is saying that, because the Government can always throw in the towel and say, “We will pay this man £5 million, because we cannot produce the human source that led us, quite rightly, to make sure that he did not blow up the train,” there is no risk to intelligence, because the Government can always just pay the money, however unjustly, and therefore not put the human source at risk. In that narrow sense, the hon. Gentleman is right, but it is not a situation that many people in this country regard as just or tolerable.
I have a transcript of the interview that the Minister without Portfolio, the right hon. and learned Member for Rushcliffe, gave on the “Today” programme on 19 November. On the point about how the House of Lords was then dealing with amendments, particularly those moved by the noble Lord Pannick, the right hon. and learned Gentleman’s opening line was:
We can talk about cases, which is exactly what I am going on to do—it could be money or it could be other methods—but let us not think that the issue is about the disclosure of information. I am afraid the Government have strayed. The Minister would not say such a thing, but the Cabinet Minister with responsibility for the Bill—I am not sure that he is this Minister’s boss—is subject to flights of fancy from time to time.
Dr Lewis: With respect, the issue is about the disclosure of information—or, in fact, the non-disclosure of information. The Government know perfectly well that such a case would be chucked out if they could only produce their human intelligence source, but they cannot do so without putting that person at risk. Basically, it would be to write a blank cheque to any terrorist who alleges that they have been ill treated; such a matter could be settled, if brought to court, in favour of the Government, but, because the source could not be disclosed, the Government would have to give in and pay inordinate sums of money. That is what the issue is all about and why the Bill has been introduced.
Mr Slaughter: I am with the hon. Gentleman if we are talking about the issue in the context of the alternatives to the CMP process, and will the Minister therefore—this is the real beef that I have with him—define the terms on which a CMP is appropriate? That is the issue. If we can get the Minister to do that, we will have made some progress. I am simply trying to define those terms.
Civil cases are materially different from, say, Special Immigration Appeals Commission cases. SIAC cases deal with potentially dangerous individuals—their presence in the country or other activities, as opposed to civil claims for damages or cases in which the state is the claimant. There is a distinction, which I am sure the hon. Gentleman understands, although he may not be with me by the end of my argument.
Dr Lewis: I intervene for the last time. When, unjustifiably, we pay large sums to people who may be terrorists, because we cannot produce evidence, those large sums might well go to terrorist organisations to be used to improve their ability to attack us. The distinction is not as clear as the hon. Gentleman thinks.
Ian Paisley: I want to emphasise that the issue is closely linked to national security. Whenever we undermine the morale of the security services or of a human intelligence source—someone who has bravely, for whatever reason, given the state information and then seen the person whom his information could have put behind bars getting vast sums of compensation—that has a corrosive effect not only on their morale but on that of the state itself. It sends out the message that we can never have justice where such terrorists abound. This goes right to the heart of ensuring that the argument is about national intelligence.
Police or military intelligence officers might find that, because a sum of money has been handed over, their character within the organisation for which they work is blemished, because people say, “Well, there’s no smoke
James Brokenshire: I am starting to get a little confused as to whether the official Opposition are now saying that they do not support CMPs in principle in respect of these civil litigation cases. Does the hon. Gentleman agree with the comment made by his right hon. Friend, the right hon. Member for Wythenshawe and Sale East (Paul Goggins)—that the agencies’ desire to defend themselves is not about suppressing the truth and not primarily about saving the taxpayer the millions of pounds that it is currently costing, although the sums are substantial, but about being able to defend their reputation and the high standards of those who take risks every day to protect our freedoms?
Mr Slaughter: The Minister makes a perfectly fair point about the reputational damage, the cost to the taxpayer and whether CMPs may in some cases be a fairer process than PII or the alternative—all these matters must be debated. The only point that I am making, and it seems to have animated Committee members, is that what is not at risk—I ask again, and the Minister can answer this question as well if he wants to—is the disclosure in a current process, a PII process, of information that is harmful to national security. That is important in terms of going into the debate.
James Brokenshire: The hon. Gentleman is right that settlement may be a means of addressing and stopping sensitive information from being disclosed, but, equally, does he accept that settlement requires the consent of both parties and that, at times, even where there may be a need to seek to prevent disclosure, if the other party does not consent to a settlement, that could risk—through a disclosure mechanism—some quite challenging issues?
Mr Slaughter: The Minister has not answered my question; I take it that he is not going to. The question is: where is there an opportunity under the PII process for national security information to be put into the public realm against the wishes of the Security Service? That is an important point to bear in mind. However, I will move on.
To answer the Minister’s other question, no—the official Opposition have made it very clear that we have concerns, and I think the Government have concerns, about the use of CMPs. We do not rule them out. What we want to do is have a robust process to ensure that, if they are to be used, they will be used appropriately. That is why we have to frame the terms of the debate, and that is why I have started with these preliminary matters.
However, having dealt with those preliminary matters, I will now go on to say what I think should be the course that the Minister should follow. I hope that—either in an intervention or in response—he will clarify the Government’s position, because I have to say that there are some gaping holes in relation to what the Government intend through their new drafting.
In the other place, a major issue was whether CMPs and civil proceedings should be opposed in their entirety. Many in the Lords who have real concerns about these procedures felt that to vote down those clauses that would bring in CMPs was a missed chance to improve the Bill; the chances were that it would be retabled in this House intact. So the effort was made to improve and temper the Bill.
The House of Lords overwhelmingly chose to reject broad Government drafting, and by its amendment brought CMPs closer in line to the rule of law and the essential principles of open justice and natural justice. So I say again, for the avoidance of doubt, that we support the amendments that the House of Lords made to clause 6, which are important amendments, whether they were made by substantial winning margins of 100 or more votes or whether they were matters that the Government assented to, essentially for the purpose of not losing further votes, although reserving their position as to whether to continue to oppose them.
The principles inserted into draft clause 6 by the House of Lords sought to accommodate and limit, to an extent, the real conflicts that exist regarding CMPs and civil trials. The House of Lords sought to make them somewhat fairer, although they can never be said to be truly fair, giving equal rights to apply for access to CMPs between the parties. The Lords amendments sought to limit the use of CMPs only to the extreme cases that the Government claimed were the subject of the Bill, by making them a last resort. In doing so, the amendments sought to retain as normal the evolving tradition of responding fairly within civil justice to the problems encountered when considering dangerous information in open courts.
In particular, the doctrine of public interest immunity has proved adaptive to the flexible disposal of cases. PII does not challenge the principles of natural law in the same way that CMPs do. The Lords amendments sought to ensure reliance on such techniques without unnecessary recourse to CMPs.
The Government’s group of amendments is complex, and it centres on amendment 55, which will undo the necessary safeguards that the House of Lords voted overwhelmingly to include in the Bill. Under the amendment, CMPs in civil proceedings will no longer be the last resort. It will remove the requirement that the judge should balance the interests of national security with the public’s interest in the fair and open administration of justice. It will no longer require that the judge should
The amendment will also increase the unfairness of CMPs in civil proceedings, and undermine almost entirely the limited steps to equality of arms achieved by the Lords, by imposing different rules for the Government and all other parties. It will fetter judicial discretion by imposing the test of whether the CMP is in the interests of the fair and effective administration of justice in the proceedings, and will not mandate the judge to look at wider public interests in the open administration of justice.
Our amendments would restore equality of arms to the position achieved by the Lords, by giving the same rights to all parties to make an application. They would make any CMP a last resort by requiring the judge to consider that a fair determination of the proceedings would not be possible by any other means, and explicitly require the Secretary of State and the court to consider whether a claim for public interest immunity could have been made in relation to the material.
The amendments would return the requirement that the degree of harm to national security interests if the material is disclosed would be likely to outweigh the public interest in the fair and open administration of justice, and the requirement that before ordering a CMP, the judge must be satisfied that the disclosure would damage national security interests. They would delete the Government’s new and narrow test for the interests of the fair and effective administration of justice in the proceedings.
To understand why our argument is important, it is important to review why CMPs pose such difficulties. The starting point can be found in the leading case of al-Rawi, to which I have already referred. The Supreme Court found that CMPs are foreign to our system of adversarial civil common law. The proposed introduction of CMPs into civil law proceedings will implicate the principles of open justice and natural justice.
Ian Paisley: Does the hon. Gentleman accept that that is not that unusual? In practice, we have voir dire—a trial within a trial. A judge can sit alone and hear evidence on his own, and then make a judgment on a specific aspect of a case on trial and refer it back. That occurred frequently in Northern Ireland and was supported by both Labour and Conservative Governments. Surely it is not that unusual?
Mr Slaughter: I have two points on that. First, voir dire occurs in criminal proceedings, but we are talking about civil proceedings. Secondly, although the jury may be excluded, counsel for both parties would be present. I think the hon. Gentleman actually makes the opposite point than the one he thinks he is making: the CMP procedure will not have equality of arms.
I want to be clear about the two principles I mentioned, because that is where the Government have got it wrong. The nature and importance of both principles were considered by Lord Dyson in al-Rawi. I would rather quote from leading judicial sources than simply make assertions; I think the Minister was making some assertions. Lord Dyson said:
“There are certain features of a common law trial which are fundamental to our system of justice (both criminal and civil). First, subject to certain established and limited exceptions, trials should be conducted and judgments given in public. The importance of the open justice principle has been emphasised many times. The open justice principle is not a mere procedural rule. It is a fundamental common law principle. In Scott v Scott…Lord Shaw of Dunfermline…criticised the decision of the lower court to hold a hearing in camera as constituting ‘a violation of that publicity in the administration of justice which is one of the surest guarantees of our liberties, and an attack upon the very foundations of public and private security’. [Lord Chancellor] Viscount Haldane said that any judge faced with a demand to depart from the general rule must treat the question ‘as one of principle, and as turning, not on convenience, but on necessity’.
Secondly, trials are conducted on the basis of the principle of natural justice. There are a number of strands to this. A party has a right to know the case against him and the evidence on which it is based. He is entitled to have the opportunity to respond to any such evidence and to any submissions made by the other side. The other side may not advance contentions or adduce evidence of which he is kept in ignorance.
The Privy Council said in the civil case of Kanda v Government of Malaya in 1962… ‘If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them.’
Another aspect of the principle of natural justice is that the parties should be given an opportunity to call their own witnesses and to cross-examine the opposing witnesses. As was said by the High Court of Australia in Lee v The Queen… ‘Confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial.’”
James Brokenshire: The hon. Gentleman is quoting various cases at length. What does he say in respect of the case of Tariq and the judgment of Lord Mance, upholding that CMPs were fair in the context of employment law?
Mr Slaughter: I will deal with Tariq. I do not agree that I am quoting cases at length, by the way. The matters I have just spoken about, on open justice and natural justice, are put succinctly and clearly, and are important principles to put on the record. I will come back to Tariq.
I am setting out the limitations of CMPs and saying that we should be extremely wary of them for the reasons already given and others I will give. That does not mean that they will never be appropriate.
Robert Neill: I understand and we all accept that there are limitations on CMPs. The Government understand that; that is why they are to be used very sparingly. However, the cases the hon. Gentleman quoted from, particularly the last two or three, could be taken almost
That cannot be the case, because we have already established procedures for special advocates of one kind or another, where the testing is done—albeit by someone who is not, I accept, directly instructed by the other party. That is an acceptable procedure that the hon. Gentleman’s own Government signed up to. It is difficult to see how the cases he cited actually advance his argument.
Mr Slaughter: I do not think for once that I am having a row with the hon. Gentleman. He used to have the next room to me, so of course we did not row at all. I think we are having a reasonably civilised debate. [Interruption.] Yes, of course. It was the previous Labour Government that approved CMPs in SIAC cases. If it is accepted, as it is by all parties here, that they may be appropriate in certain cases, and if it is also accepted that one should be wary of extending those cases, when that proposal is put forward—and here is a significant and major extension into a variety of civil cases—we should examine that closely, as we are doing, and be careful about that extension and its limitations. That, really, is what I am doing. To be clear, CMPs raise problems that PII does not. As Lord Dyson also said:
“I do not believe that any of this is controversial, but it needs to be emphasised because, unlike the law relating to PII, a closed material procedure involves a departure from both the open justice and the natural justice principles.”
As my right hon. Friend the Member for Tooting (Sadiq Khan), the shadow Lord Chancellor, said on Second Reading, justice does not need to be at odds with security, and I am sure that the full title of the Bill is the Government’s objective. He said:
“The marriage of justice and security in the Bill's title hints at the difficult but not impossible balancing act that is required. It is simply wrong to argue that the achievement of one is to the detriment of the other. Those who take this view are failing to show sufficient respect for the nature of the issues. Openness and transparency of justice is a hugely important principle. Any deviation from this hundreds-of-years-long tradition should be considered only in the most extreme of circumstances and must be accompanied by transparent checks and balances. The Bill, as first published by the Government, failed in that respect.”
Even the Minister without Portfolio, the right hon. and learned Member for Rushcliffe, in the same debate, commenting on the need for justice in civil cases, the rule of law and the accountability of intelligence agencies, said:
“The Government are just as committed as any other Member of either House of Parliament to the principles of justice being done in civil cases, the rule of law and the accountability of our intelligence agencies both to the courts and to Parliament. I believe that accountability will be improved by the Bill.”—[Official Report, 18 December 2012; Vol. 555, c. 730,713.]
There are also legitimate concerns regarding the damage that CMPs might do to the perception and reality of our civil justice system, and there are wider concerns about accountability. This means that use of the CMP
“The common law principles to which I have referred are extremely important and should not be eroded unless there is a compelling case for doing so. If this is to be done at all, it is better done by Parliament after full consultation and proper consideration of the sensitive issues involved. It is not surprising that Parliament has seen fit to make provision for a closed material procedure in certain carefully defined situations and has required the making of detailed procedural rules to give effect to the legislation.
It is true that, if a closed material procedure were introduced, it might not be necessary to strike out a claim such as Carnduff v Rock…Looked at in isolation, that would be a good thing. But the problem cannot be looked at so narrowly and in any event it seems that cases such as Carnduff v Rock are a rarity. They do not pose a problem on a scale which provides any justification (let alone any compelling justification) for making a fundamental change to the way in which litigation is conducted in our jurisdiction with all the attendant uncertainties and difficulties that I have mentioned.
As Lord Clarke … has emphasised, the common law is flexible. It develops over time in response to changing circumstances. Sometimes, it takes giant steps forward. More often, it evolves gradually and cautiously. But any change must be justified, otherwise the law becomes unstable. This is particularly important where a change involves an inroad into a fundamental common law right. The introduction of a closed material procedure in ordinary civil claims (including claims for judicial review) would do just that. Mr Crow suggests that the court should have the power to replace the PII process with a closed material procedure in exceptional circumstances where this is in the interests of justice. Lord Clarke … suggests that the court should be able to supplement the PII process with such a procedure in exceptional circumstances. For the reasons that I have given, there is no compelling reason for change. 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.”
That seems to me to set out the case extremely well. It was the judgment given in al-Rawi which has led to this Bill, but the guidance from the Supreme Court was yes, CMPs can form part of civil law, and yes, that would require Parliament to legislate, but there has to be a compelling case for doing so.
Ian Paisley: Does the hon. Gentleman accept that a compelling case for not allowing someone to know who their accuser is, or the details of what they are accused of, is that that protects human intelligence source material in particular? It must weigh heavily on a person’s mind to give that material over; we have had instances where specific material was held in relation to fuel theft or cigarette smuggling where senior people in criminal gangs, or those involved in fraud and other issues, gave evidence because they were at the top of that organisation, but they knew that they would not be handed over, nor would details be given that would indicate whom they might be.
Mr Slaughter: We are dealing here with issues of national security and I think that that is agreed by both sides, but of course we could all list types of evidence—be they disclosure of identities or operational matters—and there is no disagreement between the parties here that those matters must be protected. What we are talking about here is the manner in which they are protected,
If it is shown that CMPs are a necessary option of last resort, and all other options have been exhausted, CMPs might, cautiously, be of use in some narrow class of civil proceedings. Such cautious welcome is necessarily bound by the need to limit CMPs to the greatest extent possible; at a bare minimum, that means that the amendments made by the other place should stand. There are other matters that we will come on to on subsequent clauses. While on Report their lordships did not have time to address some other clauses in the way that they wished to, they did have time to make changes to clause 6, and they have done so admirably.
Meg Hillier (Hackney South and Shoreditch) (Lab/Co-op): We have heard, from the Government side, suggestions that the Opposition are not in favour of CMPs. For the avoidance of doubt, I am sure that my hon. Friend will be glad to clarify that we think that there is a role for CMPs and, while we seek assurances about judicial oversight, we have no objection in principle.
Mr Slaughter: That is exactly it. Actually, there seems to be little ground between some parties here; I wait to see where the hon. Member for Cambridge stands on this matter. I had the pleasure of reading the admirable tome, “Neither Just nor Secure”—I think we have all received copies and I am sure that everybody has read it thoroughly—which is an excellent introductory guide, written by Anthony Peto, QC, and the hon. Member for Chichester (Mr Tyrie).
There will be differences, but, in essence, my hon. Friend has described exactly where most of us are. I am happy to clarify again—I think that I have already clarified this four times—how we define the use of CMPs in civil proceedings. The Government have been extraordinarily unhelpful throughout this process and particularly unhelpful in the last two days in tearing up what the other place did and producing their ramshackle new amendment, which, even after a longish speech from the Minister, we still do not know what on earth it means. But we may know what it means after the end of an even longer speech from me.
James Brokenshire: I am sure that parliamentary counsel will have not necessarily appreciated their clause being described as ramshackle, but I ask the hon. Gentleman how he would respond to his right hon. Friend the Member for Blackburn (Mr Straw), who said that,
Mr Slaughter: I am always in agreement with my right hon. Friend the Member for Blackburn and I noticed that, wearing one of my other hats, he is still today pursuing his case against claims management companies who we now find are paying money to the police in relation to accidents. On that issue, he is as doughty a campaigner as he was a Cabinet Minister
In relation to the point the Minister makes, PII is not a perfect instrument; I just read a passage from Lord Dyson’s judgment that said exactly that. Nevertheless, it
Government amendment 55 effectively replaces amendments made in the other place, and the Opposition oppose it. It goes with Government amendment 64, which defines sensitive material—I have something to say about that, but we do not oppose it—and the consequential Government amendments 66 and 67. We then have our response to that—I will not deal with that now, but will explain our intention in due course. Let us go back point by point, and deal first with the new points the Government raise on equality of arms.
The Government amendments do not respect the principle of equality of arms. I will not repeat what I said in my speech on the earlier group of amendments, but we must remember that the House of Lords amended the Bill, by a majority of 100, to allow for both parties to apply for a CMP. That meant that any party could apply for a CMP in the same way as the Secretary of State could. In Government amendment 55, the situation changes dramatically, and although both parties may make an application for a CMP, very different opportunities for entry are proposed. Proposed new subsection (1C) provides that on application by the Secretary of State or the court’s own motion the first condition for a CMP declaration is met when any party to the proceedings would be required to disclose or withhold information under proposed new subsection (1C)(a) and (b). By contrast, from any other party’s perspective, proposed new subsection (1D) provides that for any party that is not the Secretary of State the first condition for a CMP declaration is met where the applicant, only, would be required to disclose or withhold. That is to say, a citizen cannot apply for a CMP in relation to materials held by the Secretary of State or other party.
“The Government has suggested that Amendment 55 achieves the aim of the House of Lords to ensure fairness between the parties and ensure judicial control over all applications for CMP. Unfortunately, Justice considers that this is misleading.
The House of Lords amendment would allow any party to make an application for a CMP, and for the Court to consider an application on its own motion, without limitation as to the circumstances when an application could be made.
The Government now proposes that two distinct schemes should apply to applications by the Secretary of State and all other applications (contrast proposed clauses 1(C) and 1(D)). It should be open to the Minister to make applications for CMP in any case (proposed 1(C)). Other parties could only ask for closed proceedings in circumstances where information they hold creates a national security risk (proposed clause 1(D)). This could mean that in relation to national security information held by the State; it would be in the gift of the Minister alone to ask for CMP as opposed to seeking non-disclosure of the information following PII. In these circumstances the Minister would remain free to pick and choose the procedure which best suited his litigation strategy, unless the Court chose to act of its own volition to impose CMP. Again, the Government retains a litigation advantage under the Bill.”
The effect of the imbalance is not trivial. Where a party that is not the Secretary of State believes that the Secretary of State holds information that would assist their case, they cannot effectively apply to have that material considered in a CMP. That is because they cannot succeed in an application that relates to material that they themselves do not hold. Instead, the Secretary of State may, absent an application from the court, have such information disregarded for any of the reasons in proposed new subsections (1D) and (lC). Under the Government’s amendment, a torture victim cannot effectively apply to have sensitive materials held by the Secretary of State considered by the court in closed procedures.
“This could mean that in relation to national security information held by the State; it would be in the gift of the Minister alone to ask for CMP as opposed to seeking nondisclosure of the information following PII. In these circumstances the Minister would remain free to pick and choose the procedure which best suited his…strategy.”—
The amendment provides, absent court initiative, that the Government may shelter behind PII when they want information to be excluded and enter CMPs when they anticipate that they will win the case, but an innocent co-defendant or torture victim cannot force consideration of material that they know is in the possession of the Government. Put another way, if the amendment is made, CMPs can easily be painted as a shield against unwarranted claims, but do not assist claims that may have merit. Those points are dealt with in the book I just referred to.
We know that the Joint Committee on Human Rights correctly did not regard equality of arms simply as a matter of being able to make an application in form alone. The Committee identified that the original Bill set out that only the Secretary of State could apply for a CMP. It also highlighted the problem, pointed out by the special advocates, in the Government alone being in a position to reply: the Government may choose not to enter a CMP should they want to avoid certain consequences.
The Joint Committee then pointed out that the independent reviewer agreed that it was troubling that both parties could not apply, and it set out in full his florid language on the issue—I shall not quote the passage in full, Mr Crausby, but it makes good reading. The JCHR pointed to the House of Lords Constitution Committee’s report, which identified a crucial issue: that the inequality lies in the fact that one party does not have the same power to make the application as the other has.
I am sure that the Minister has been listening attentively, but my point is that every party that has considered the measure, from the JCHR and the Constitution Committee to the special advocates themselves and the courts, has found that the principle of equality of arms is not sustained by the approach the Government wish to take.
Despite the fairness rationale, providing equal rights to apply for a CMP does not necessarily lead to the meaningful access to the content of that right. As Lord Bingham said in Roberts, even a special advocate with access to material is effectively
At the least, the imbalance I have identified will lead to the perception that à la carte PII or CMP selection is adopted for cover-ups, especially as there is no mechanism whereby a complainant can force consideration of their claim. Paragraph 51 of the second JCHR report makes clear the imperative to increase the fairness of proceedings for both parties:
“We recommend that the Bill be amended so that the court has the power to make a declaration, whether on the application of either party or of its own motion, that the proceedings are proceedings in which a closed material application may be made to the court. Such an amendment is necessary in order to make the Bill compatible with the requirement of equality of arms, and to make it consistent with the Government’s own justification for extending CMPs in civil proceedings, which is to increase the fairness of such proceedings for both parties.”
James Brokenshire: I think the hon. Gentleman is suggesting that the whole approach is in some way to cover things up—I think those were his words. Let me be absolutely clear: in practice, nothing in these proposals will enable evidence that is heard in open court under the present arrangements to be heard in secret in the future. That means that the claimant will continue to have access to at least the same level of information as is given under PII. In what way does he think that that is not correct?
The point I made about the previous group of amendments was that even if one has equality of arms in access to the CMP, there is an inherent unfairness. In the newly drafted amendment, the Minister has not only weighted the matter in favour of one party, the Government, but given the Government the opportunity—I do not say that they would take it—to manipulate the system if they want to. Even if the Government would never do that, as they would not under his guidance, I am sure, the perceived procedural unfairness remains.
Let me move on to other important problems with the differences between the clause and the Government amendment. [ Interruption. ] If hon. Members do not want to hear about the discrepancies, they should not at this late stage have introduced a wholesale rewriting of the clause, which needs proper analysis to determine its effect.
Our amendment (g) returns the clause to how their lordships drafted it, keeping CMPs as a last resort. The Government propose replacing those safeguards with the test in amendment 55, and that is what I wish to spend a little time on. Amendment 55 states:
“The second condition is that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration…The two conditions are met if the court considers that they are met in relation to any material that would be required to be disclosed in the course of the proceedings (and an application under subsection (1A)(a) need not be based on all of the material that might meet the conditions).”
By way of background, CMPs must be a last resort, not only to preserve open and natural justice to the greatest extent possible, but because of the negative effect on our national reputation should they become the norm. The amendments we have proposed to Government amendment 55 must be considered with that in mind.
The hon. Member for Chichester, in his new book, issued this week by the Centre for Policy Studies—an organisation for which I am sure Government Members have a great deal of time and respect—points to the reputational risk associated with CMPs at page 54. I am not going to read it out, but I recommend that other Members read it between now and the resumption of our proceedings next Tuesday.
I now want to go on to disclosure being damaging to the interests of national security. As a preliminary to our discussion, we seek formal clarification from the Government on the meanings of their proposed new subsections (1C)(a) and (1D)(a) in Government amendment 55 and of the definition of “sensitive material” in Government amendment 64.
“The court may make such a declaration if the court considers 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)…such a disclosure would be damaging to the interests of national security”.
“if it considers that one of the parties to the proceedings would be required to disclose material during the proceedings and that the disclosure would be damaging to the interests of national security.”
The unamended Bill unambiguously requires that to satisfy that part of the test, the court must consider that a party would be required to disclose material during the proceedings and that the disclosure would be damaging to the interests of national security.
The confirmation that we seek relates to an ambiguity as to whether the amendment adequately carries the requirement in clause 6(2)(b). The issue lies in the manner in which the court may approach the test in proposed subsections (1C) and (1D) in Government amendment 55, and the definition in Government amendment 64. Will the Minister assure the Committee that the following interpretation is the correct way to construct the amended clauses? That is important if he is saying there is no change between what was meant in the previous draft and what is meant in the current draft.
“a party to the proceedings (whether or not the Secretary of State) would be required to disclose sensitive material in the course of the proceedings to another person (whether or not another party to the proceedings) and such a disclosure would be damaging to the interests of national security”?
“the applicant would be required to disclose sensitive material in the course of the proceedings to another person (whether or not another party to the proceedings) and such a disclosure would be damaging to the interests of national security”?
I will now address situations where the degree of harm to the interests of national security, were material to be disclosed, is likely to outweigh public interest in the fair and open administration of justice. That is the Wiley test, which is an essential ingredient of PII. I will also address situations where there is fair determination that proceedings are not possible through other means, which is known as last resort.
“As we pointed out in our Report on the Green Paper, one of the options for reform was that put forward by the Independent Reviewer… He was in favour of adding CMPs to the procedural armoury of the civil courts, provided strict conditions of necessity were satisfied. This included the requirement that ‘the court’s power to order a CMP should be exercisable only if, for reasons of national security connected with disclosure, the just resolution of a case cannot be obtained by other procedural means (including not only PII but other established means such as confidentiality rings and hearings in camera).’ In other words, CMPs should be available in civil proceedings, but only as a very last resort to enable the resolution of claims which would otherwise be untriable.”
“The Independent Reviewer in his more recent evidence indicated that he would be supportive of building into clause 6 of the Bill a requirement that a CMP only be permitted as a last resort: as he put it, a CMP should be available only if ‘there is no other fair way of determining the case.’
We recommend that the Bill be amended so as to ensure that a CMP is only ever permitted as a last resort, by making it a precondition of a declaration that the court is satisfied that a fair determination of the issues in the proceedings is not possible by any other means.”
There is a risk to the development of PII, because the mere potential for a CMP would inhibit its deployment. In its report on the Green Paper, the JCHR considered the argument that it would be necessary to exhaust PII before making a decision about a CMP. The first report of the JCHR comes to the conclusion that the potential availability of CMPs will drive cases that would otherwise have gone to trial into the CMP process. The question is whether the Government’s new test adequately replaces the existing scheme.
To recap, the safeguards we propose to reintroduce in our amendments, which would amend the Government’s amendment, are: damage to national security; the Wiley balance; the consideration of PII first; and fair determination of not being possible by any other means. The Government propose replacing all those safeguards with their new test of fair and effective administration of justice.
The first, unfortunate point is that the Government, whose stated intention is to ensure that any CMP is fair and who are resolved that they have found the elusive formula that satisfies all the interests at stake, were only in a position to provide their new test two days ago. They intend to show that these few words, which have none of the heritage of the tests that we propose, having no previous history of use, will protect the essential ingredients that have been identified as relevant to the debate. The Government’s toying with the system of civil courts by experimenting with words is no small matter. They came to their formula so late either deliberately or in haste; I do not know which.
The wording of the new test makes it clear that the test is intended to mean something other than the similar-sounding but entirely different section of the Wiley test that is the counterweight to national security within PII. The Wiley test, as we know, was formulated in ex parte Wiley in 1995. It is currently expressed in terms in the Bill.
I have identified five distinctions between what the Government propose and the Wiley test they seek to replace. First, and most obviously, there is no requirement in the Government test to weigh the interest of justice against the interest of national security. Secondly, there is no requirement in the Government test to consider the public interest in the open administration of justice. In fact, the court seems to be denied a wide range of inquiry.
Thirdly, the Government test appears limited in the scope of inquiry expected from the judge. That is because he is required to consider the administration of justice “in the proceedings”, in contrast with the administration of justice overall, which is the foundation of the Wiley test. Fourthly, the Government replaces “open” with the—as far as I can tell—unprecedented “effective”. Fifthly, the Government’s test has no history. It may therefore be less constrained by the common law decisions that apply to the tested formulas of PII.
is intended to have a different legal effect from the usual fair and open administration of justice. Certainly, as I have set out, it means something very different. It is perhaps too early to understand fully why, because this unusual clause, which is an integral part of the Government’s package for CMPs, was tabled only two days ago.
We can glean from the Government’s response to the latest JCHR report, which was also provided only two days ago, that the Government have settled on the phrase. It appears six times. Each time, the phrase is complete with its rider, that the interests of justice will be considered in the proceedings. A limitation must be intended—a fettering of discretion, beyond that imposed by PII. At no point does the phrase imply a return to the standard of open justice. Once only is the phrase preceded by the use of the word “necessary”. It is in the statement:
“Our intention in legislating is that CMPs would only be used in the small number of cases where they are necessary in the interests of the fair and effective administration of justice in the proceedings.”
Certainly, the word “necessary” does not appear in this context in the Bill. If the Government’s intention was to import a last resort criteria to this test, they have not achieved it in a comprehensible way. If that is not their intention, they may be confused. The Government say that the fair and effective test is one that was endorsed by their lordships, on the recommendation of the JCHR. That is what they say in response to the latest report of the JCHR:
“The Government has given careful and detailed thought to clause 6 of the Bill and has tabled a revised clause. This includes language endorsed by the House of Lords on the recommendation of the Committee—require the court to consider whether or not a CMP would be in the interests of the fair and effective administration of justice in the proceedings. The Government has also introduced additional discretion for the court at another stage by enabling it to revoke the CMP declaration at any point. This will, in particular, allow the court to reconsider its declaration, and therefore whether a CMP is in the interests of the fair and effective administration of justice in the proceedings, after it has examined the relevant material in the case.”
When the House of Lords voted down the Government’s draft of the Bill and imposed a test, they did not opt for “fair and effective” in the proceedings, but for the Wiley balancing test. The Lords voted to insert that test, so when the Minister responds, will he explain what he means when he says that the test comes from the proceedings in their lordships’ House?
The Lords could not have been more emphatic. The amendment moved by Lord Pannick, Lord Lester, Baroness Berridge and Lord Beecham was accepted by 247 votes to 160, and was supported by no fewer than 54 Liberal Democrat peers. The amendment passed by the Lords sought to change CMPs for the better, and to make them somewhat fairer, although they can never be truly called fair. The Lords amendment sought to limit the use of CMP to extreme cases only, which the Government have claimed are the subject of the Bill.
To conclude, I have set out, I hope, the principles of open and natural justice; that the amendments from the House of Lords are necessary improvement; and that the Government amendments infringe and seem to negate the principles of open justice and seem ill-founded and flawed. Our amendments to Government amendment 55 are a minimal starting point, to get the debate back on track.
I said that I would conclude on that point; however, I have other matters that I wish to raise about new