Justice and Security Bill [Lords]

The Committee consisted of the following Members:

Chairs: Mr David Crausby  , † Mr James Gray 

Alexander, Heidi (Lewisham East) (Lab) 

Brazier, Mr Julian (Canterbury) (Con) 

Brokenshire, James (Parliamentary Under-Secretary of State for the Home Department)  

Crockart, Mike (Edinburgh West) (LD) 

Evans, Graham (Weaver Vale) (Con) 

Evennett, Mr David (Lord Commissioner of Her Majesty's Treasury)  

Gilmore, Sheila (Edinburgh East) (Lab) 

Hillier, Meg (Hackney South and Shoreditch) (Lab/Co-op) 

Huppert, Dr Julian (Cambridge) (LD) 

Johnson, Diana (Kingston upon Hull North) (Lab) 

Lewis, Dr Julian (New Forest East) (Con) 

Murphy, Paul (Torfaen) (Lab) 

Neill, Robert (Bromley and Chislehurst) (Con) 

Nokes, Caroline (Romsey and Southampton North) (Con) 

Paisley, Ian (North Antrim) (DUP) 

Phillipson, Bridget (Houghton and Sunderland South) (Lab) 

Scott, Mr Lee (Ilford North) (Con) 

Slaughter, Mr Andy (Hammersmith) (Lab) 

Wright, Jeremy (Parliamentary Under-Secretary of State for Justice)  

Steven Mark, Lloyd Owen, Committee Clerks

† attended the Committee

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Public Bill Committee 

Tuesday 5 February 2013  


[Mr James Gray in the Chair] 

Justice and Security Bill [Lords]

Clause 6 

Proceedings in which court permits closed material applications 

Amendment proposed (31 January): 55, in clause 6, page 4, line 21, leave out subsections (2) to (6) and insert— 

‘(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).

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(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”).’.—(James Brokenshire.)  

8.55 am 

Question again proposed, That the amendment be made. 

The Chair:  I remind the Committee that with this we are discussing the following: 

Amendment (a) to Government amendment 55, leave out ‘(6)’ and insert ‘(4)’. 

Amendment (d) to Government amendment 55, in new subsection (1B), leave out ‘two conditions are’ and insert ‘condition is’. 

Amendment (e) to Government amendment 55, in new subsection (1C), leave out ‘first’. 

Amendment (b) to Government amendment 55, leave out from ‘condition’ to ‘is’ in new subsection (1C). 

Amendment (f) to Government amendment 55, after ‘State’ in new subsection (1C), insert ‘or a party’. 

Amendment (g) to Government amendment 55, in new subsection (1C), leave out from ‘proceedings),’ to end of new subsection (1F) and insert— 

‘(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.’.

Amendment (c) to Government amendment 55, leave out new subsection (1D). 

Amendment 52, in clause 6, page 5, line 3, leave out ‘subsection (2)’ and insert ‘this section’. 

Amendment 68, in clause 6, page 5, line 3, leave out from ‘must’ to end of line 5 and insert— 

‘(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

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(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.’.

Government amendments 64, 66 and 67. 

Government new clause 5—Review and revocation of declaration under section 6.  

The Chair:  At the conclusion of the Committee’s business on Thursday, Mr Slaughter was on his feet. I think it only reasonable, if the Committee is agreeable, that he should complete what he was saying. 

Mr Andy Slaughter (Hammersmith) (Lab):  I am most grateful, Mr Gray, and I welcome you back to the Chair. You missed an interesting debate on Thursday afternoon. I will be as brief as I can in concluding my comments, but I need to make two or three important points. 

I have pointed out the problems with the new approach that the Government are taking with clause 6, and thereby with the proposed role for the closed material procedure in civil proceedings. Government amendment 55 is a wholesale rejection of the approach that the courts, the House of Lords, Committees of both Houses, the official Opposition, special advocates and leading non-governmental organisations have taken to CMPs. The amendment deletes safeguards proposed by the other place, or distorts them so that they do not have the professed effect. There is no equality of arms, no requirement to consider public interest immunity before entering into a CMP, and no restriction of the CMP to an option of last resort. 

The amendment introduces alien and untried concepts: the fair and effective administration of justice in the proceedings test; the idea that any material that would be required to be disclosed is sufficient to invoke a CMP, which looks like a revival of the proposals in the Bill when it entered the other place; and a new definition of “sensitive material”, which would engage CMPs whenever material that could, rather than would, damage national security was said to be relevant to the proceedings. 

The overall intent of the amendment is to make CMPs not the last resort but the almost inevitable recourse of the court, where they are put in issue. The cumulative impact of the amendment—what it deletes and what it adds—makes the Government’s one concession to the other place almost worthless. It moves the “may” in subsection 6(2) as close as possible to a “must” as interpretation will permit. 

I will make just three further short points about the group of amendments. My first point is that, having reflected since the Committee adjourned, we feel that the sensitive material provision appears to be aimed, in part at least, at preventing the use of confidentiality rings and using a CMP instead, even if there is no risk to national security in using such a ring. 

The Bill prevents a court from imposing a CMP in a case where a confidentiality ring could securely be used. That is because a CMP could be used only in relation to

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material the disclosure of which would be damaging to national security. If, therefore, a court ordered disclosure in confidence to, for example, a security-cleared lawyer, such a disclosure could not damage national security and there would be no power to order a CMP. Under the Government amendment, a CMP can be ordered in circumstances in which national-security-sensitive material would be disclosed to anyone, even a totally discreet security-cleared lawyer. 

The courts have recently ruled that confidentiality rings can be used in national security cases. That follows decades of practice in the chancery and commercial courts where their use is common in relation to trade secrets or sensitive pricing. In such cases, the information is disclosed to the party’s lawyers and/or experts only on their undertaking not to disclose it to their clients. 

The secret information is communicated through the judge, in private hearings, so that both sides’ lawyers are able fully to argue the case. Such a procedure is fair and does no violence to our traditional fair trial principles. A typical use of confidentiality rings is in cases where the evidence in question lies outside the knowledge of the lay client, and where he would have little or no comment to make on the evidence, even if he knew what it was. 

Secondly, I intervened on the Minister to ask what in the court’s inherent jurisdiction would prevent it from carrying out the process envisaged in new clause 5. The Minister’s response was that the new clause identified the point in proceedings post-disclosure. I do not find that particularly persuasive. The court could take that step in such a process, and it might be logical to do so, but we fear that the new test—the new buzz phrase of 

“the fair and effective administration of justice in the proceedings”— 

is being used as a catch-all, which we do not consider acceptable for reasons I have already given. 

9 am 

We are actually discussing a stalking horse for the Government’s likely opposition to our amendment 71 to clause 7, which looks at the Wiley balance in the proceedings. To be absolutely clear, new clause 5 simply allows something that is available to the court in any event, a complete review of the CMP at some point, but it is not in any way a review of evidence within the CMP process and goes nowhere near to conducting that balancing test in the public interest. For that reason, whether new clause 5 is a sop or a way of heading off future debate, we can see that it does little. 

The briefing by Liberty in response to amendment 55 included a memorable phrase about the Government’s proposals in amendment 55 and new clause 5, describing them as a “judicial fig leaf” attempting to add a veneer of procedural fairness to something fundamentally procedurally unfair. I fear that is what the Government are doing with new clause 5. 

Our amendment 68, which we will probably not have the opportunity to vote on because it comes some way down the line, was intended to be probing. It is important, however, because it shows our approach to CMP and how it differs from the Government’s. Far from wanting to jettison the provisions put in by the House of Lords, we think that their lordships were right to give clear guidance to the court. 

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If anything, such guidance could be clearer. The provisions proposed in amendment 68, therefore, maintain the pre-eminence of public interest immunity but also suggest to the judge that the special advocate should be engaged throughout; that open material should always be disclosed; that the fairness test, in the course of argument, should go beyond what is simply contained within PII; that the option of strike-out should be a real possibility, as per the Carnduff example, although it is rare; and, of course, that CMP should not be engaged simply because the PII process is thought to be inappropriate. 

That list is not exhaustive, but it shows what a good judge would do in any event in weighing up whether to enter a CMP. To have such measures in the Bill could do no harm, so we are suggesting a sensible course for the Government to go down. Having seen what they have done with amendment 55, I think it unlikely that they will do so. 

My final remarks on the politics involved, which underlie the reasons for the Government’s otherwise rather curious drafting strategy, may be an interesting precursor to the hon. Member for Cambridge, if he is to follow me and speak to his amendment. Why are the Government going to elaborate lengths to repeal the House of Lords safeguards, which is effectively what they are doing, while pretending not to do so? The response, published last week, to the second report of the Joint Committee on Human Rights, had an introduction, only four or five paragraphs long, by the Minister without Portfolio. It would be possible to spend a day textually analysing it; it could probably stand more than the first chapter of Genesis, so complicated an analysis is it of what should be a relatively simple matter. However, I shall refrain. 

I limit myself to considering the last but one sentence of the introduction, which includes the statement that 

“there is nothing between the Committee and the Government on the major principles at issue”. 

Well, there is. The Minister without Portfolio says in the response that the Government accept equality of arms, but after my detailed analysis on Thursday I think that they do not, and I believe that the amendment tabled by the hon. Member for Cambridge shows that he accepts that point. The report says that the Government accept the general judicial discretion; but my answer is that they do not. The Minister without Portfolio says, in terms, that he rejects the last resort approach and the use of PII first. 

Quite why the right hon. and learned Gentleman wants to pretend to associate himself with the views of the Joint Committee I do not know. That has certainly confused the media. On Monday last week, The Daily Telegraph gave some welcome publicity to the booklet by the hon. Member for Chichester (Mr Tyrie), under the headline, “Secret court hearings ‘will do more harm than good’, Tory MP says”. 

However, by the early hours of Tuesday morning, the Daily Mail, which has been a severe critic of the Government until now, was writing about “A welcome U-turn over secret courts”. By lunch time the same day, The Guardian was referring to a 

“highly complex list of amendments”. 

I think that that meant that the media were thinking about what was happening. By Wednesday morning at 7 o’clock, The Daily Telegraph headline was about the claim: “Climbdown on secret courts not as it seems”. 

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It took the astute gentlemen and ladies of the press less than 48 hours to work out what was going on. It is a pattern that has bedevilled the Bill process since the Green Paper was published in October 2011. The overwhelming horror—I do not think that that is too strong a word—of the reaction to that, along with the excellent job done on the first report of the Joint Committee on Human Rights, published in April 2012, and the evidence taken for it, made the Government think again. 

Another good example of that effect came when the Bill was published in the House of Lords in May 2012, a month after the Joint Committee reported. Again, the Minister without Portfolio said, “Yes, you have caught me out; I was trying something on that I should not have—but everything will be fine now.” There were three concessions, which are now seen as rather inadequate: national security only; inquests excluded; and the opportunity of judicial review. I notice with interest that, at the time, those changes, which are not so far proving to be really satisfactory to anyone but the Government, satisfied the hon. Member for Cambridge. He said he welcomed the victory for open justice, and of course claimed credit for the Liberal Democrats. 

The Minister without Portfolio apologised again to the Daily Mail, said that he would get things right this time, and pressed on with the Bill as amended. Then, in November, the second report of the Joint Committee was published. The Constitution Committee of the House of Lords reported, and there were debates, particularly on Report and Third Reading, in the House of Lords, that made it clear that it simply would not do. Then further concessions were made on Second Reading in this House, on 18 December, when much was made of equality of arms—something that, as we have seen, has now been reneged on. Yet the Government still purport to accept some of those amendments. 

I am not going to labour the point, but I wonder why the Government need to go through this process. I suspect that, unusually, it has something to do with what happened in September last year at the Liberal Democrat conference—not a body that anyone normally takes notice of, not even the Liberal Democrat leadership. A strong motion rejecting the whole of part 2, “Disclosure of sensitive material”, was passed. Instructions were given to Front-Bench spokesmen not to support it, and with the failure of the Front-Bench spokesmen not to go down that route— 

Dr Julian Huppert (Cambridge) (LD)  indicated dissent.  

Mike Crockart (Edinburgh West) (LD)  indicated dissent.  

Mr Slaughter:  The hon. Gentlemen are shaking their heads. I will read a couple of paragraphs of what was said. The motion said that the CMP 

“did not form part of either the Liberal Democrat or Conservative manifestos in 2010, nor the Coalition Agreement.” 

It also said: 

“Existing arrangements for handling secret information in court” 

that is, PII— 

“work well, with decisions about sensitive disclosures being made by a judge rather than an interested party”. 

It continued: 

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“These proposals risk further undermining the reputation of British Security Services” 

and called for the 

“Coalition Government to withdraw Part II of the Justice and Security Bill” 

and for all 

“Liberal Democrats in parliament to press the government to do this and in any event to press for the withdrawal or defeat of Part II of the Justice and Security Bill.” 

That did not happen, and I understand that there will be a motion at the spring conference— 

Dr Huppert:  I am sorry to intervene after so many hours of uninterrupted speech, but the hon. Gentleman is factually inaccurate in much of what he says. I will happily talk about the details of Liberal Democrat conference procedures if the occupant of the Chair wants me to, but I suspect that he does not. Now that the hon. Gentleman has finished reading the motion, will he make it clear whether he agrees or disagrees with it? 

Mr Slaughter:  After accusing me, usually on Twitter, perhaps the hon. Gentleman will put a little more concentration into what is said in the debate and do a little less fiddling with whatever device he has. I have made our position clear three or four times, and I suggest that he goes away and reads the transcript. He will then be more than clear; his policy certainly is not. I understand his embarrassment. He was the person put up by the leadership to move the motion that was defeated. 

Where are the Liberal Democrats on this Bill? I have heard at least four positions. The position of the noble Lord Wallace of Tankerness is effectively the Government’s. There is also the position of many Liberal Democrat peers in, to their credit, supporting the House of Lords amendments; the position of the Liberal Democrat conference to junk the whole thing; and the hon. Gentleman’s position—I believe that he will speak to that—which seems to be critical of some aspects of clauses 6 and 7. He is clearly critical of equality of arms and the Government’s provisions on gisting. 

If that is right and the hon. Gentleman accepts the logic, why is he limiting his criticisms and his agreement with the Joint Committee simply to those important but not central parts? Why is he not supporting last resort and PII first, and why is he not supporting those essential parts, including the widely balanced CMP, which their lordships, including some eminent jurists on the Liberal Democrat Benches, thought were a vital safeguard in the Bill? 

If the hon. Gentleman is of that mind, I suggest that he does not press his amendments, but supports our amendments to amendment 55, which would do no more—[ Laughter. ] The hon. Gentleman is laughing, and I suspect that he will be laughing at himself when he looks at the difference between his position, which seems unsustainable, and that of some of his colleagues in the other place, which is very clear. 

All we are asking for in our amendments to amendment 55 is that clause 6 should be put back to what it was before it left the other place. Either the Liberal Democrats have civil libertarian principles, or they simply wish to pay lip service to those principles

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and when it comes down to it they will back a reactionary Government in trying to restrict as far as possible the ability to conduct open and natural justice. 

9.15 am 

Dr Huppert:  It is a pleasure, Mr Gray, to have a chance to speak in this debate. I am speaking to amendment (a) in my name and that of my hon. Friend the Member for Edinburgh West. 

I apologise to the Committee, but I am not a trained lawyer. I used to be a scientist. When scientists publish a paper, they are not paid by the hour or the word. In fact, if they write something that is too long, they have to pay excess page charges. 

It is tempting to deal with some of the comments of the hon. Member for Hammersmith. He is factually wrong in much of what he says—I did not move the motion, for example—but I do not have time to go through every single thing, and in many ways his errors are irrelevant. 

Interestingly, though, the hon. Gentleman refused to answer my question. He referred to the overall position of the Liberal Democrats. It is the Labour party that wants to sound concerned about CMP but, as we heard in earlier exchanges, supports the principle of CMP while trying to present a different impression. I do not want to spend all my time on that, however, because I will be told off by you, Mr Gray. 

I wish to focus on the amendments and, in particular, amendment 55. It does a number of things: it changes a process, but it also omits some other steps, which I will deal with separately. I am interested in clarity, so I have a number of questions about the system and how it might work. I will try to make my questions clear, which I may have failed to do previously. The Minister can respond when he speaks, because I suspect it may take some time to get the correct answers from the officials. If I am ever not clear, the Minister should, please, intervene at any time, because I will be happy to clarify. 

All Liberal Democrats are instinctively uncomfortable with the concept of closed material proceedings. Instinctively, we feel that it is wrong for people not to be able to know the case against them. We have argued that on many occasions, when the previous Government made such provisions. If CMPs are to happen, they must be clearly controlled and regulated, and must be used as a last resort. They already exist in UK law—some parts of the press have suggested that they are a complete innovation, but that is not true. They were brought in by the Labour party to deal with control orders, which also allowed internal exile without trial; they continue, to my regret, in the new terrorism prevention and investigation measures; and they are used in employment tribunals and cases before the Special Immigration Appeals Commission. They are present in UK law—I may not like it, but that is a fact. 

Meg Hillier (Hackney South and Shoreditch) (Lab/Co-op):  The hon. Gentleman talks about not liking CMP but the alternative procedure has been to have no evidence in any environment, whether public or private. Can he move off the fence and be clear? Does he prefer the old regime or does he support the move to some sort of judicial process, even if in a secret environment? 

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Dr Huppert:  I was about to talk about exactly that requirement to balance. If we go down this route, we have to have the right balance to ensure safeguards. That is a balance that must be struck, and that is exactly what I was about to say. I hope that whoever first drafted CMP into law, for immigration cases, I think, considered carefully how to balance and control such proceedings and how to take something fundamentally exceptional—that someone does not know the case, in exceptional circumstances—and to get the right solution. 

How far should we go? Which cases should be covered? I am delighted—I think that the hon. Member for Hammersmith mentioned this—that inquests are no longer included. That is an important step forward. I am also grateful for the assurance I received at the time of the Green Paper, that no criminal cases were covered, nor indeed cases in which liberty may be at risk. That is an important point, because we would all agree that there are circumstances in which it is simply not right for people to be, for example, jailed without knowing the case against them. 

My first question for the Minister is about habeas corpus cases, in which liberty can be at risk. Can he confirm that CMP would not be used in such cases? 

The current PII system is by no means perfect. As the hon. Lady mentioned, I do not like the idea that evidence is simply silenced, but PII is tried and tested. It has been brought into balance, controlled and whittled down, and it is used only if necessary. 

The Minister said that no more information would go into closed courts under the new scheme than can currently be silenced by PII. That is important for those of us who want transparency in such areas. May I check, though, that that is right? Under PII, as I understand it, the judge is able, through common law rules of court, to require one side to redact information, produce relevant extracts and order a summary of the relevant parts, and to require partial disclosure. Will a judge have the power to do that for national security information once a CMP has commenced? 

I will try, as I said, to flag my questions up clearly, so my second question to the Minister is, will he confirm that in all circumstances only material that would be covered by PII would go into CMP and that nothing that would otherwise have been revealed would be concealed as a result of the process? 

To return to amendment 55 and my amendment, amendment (a), in particular, one of my big concerns about the Government amendment is that it omits all reference to PII in the process. The House of Lords carefully and deliberately put in clause 6(5) and (6) measures on PII, deliberately based on JCHR recommendations. I accept that perhaps they did not phrase the clauses perfectly. None of us wants exhaustive PII or a Minister tied up for a year exhaustively going through paperwork, if it were obvious to all concerned that it was not needed and there was no way that PII could lead to a case, but we need to do something. 

All the judges in the al-Rawi case agreed that cases should go through PII before looking at a CMP. The power should be with the judge specifically to consider whether PII could have been used. The provision should require the Secretary of State, or whoever the relevant party is, to have, at the very least, considered PII and given reasons why it was not possible to use it, before

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applying for a CMP. [ Interruption. ] It is a pleasure to have the support of the hon. Member for Hammersmith. It may be that the case is so saturated with PII that that is enough. Although the Lords amendments are not perfectly worded and could be clarified, I do not see why they should be deleted. 

The Minister implied that his intention was still to have PII going through, despite taking it out of the legislation. My third question is, will the Minister confirm that his intention is that CMP cases should be considered only after PII has been considered and rejected as an option? If so, how will he ensure that that is in the legislation so that it is clear for all to see? It is essential to be clear about whether the aim is for CMPs to be a last resort when nothing else will work, or for CMPs to become gradually standard practice whenever some sort of intelligence material is involved. 

My fourth question is, can the Minister be expressly clear that, regardless of the wording, his intention is that CMPs would always be a step of last resort, as in clause 6(2)(d)? If that is his intention, we can come on to the wording later. 

Heidi Alexander (Lewisham East) (Lab):  When we discussed that element of the Bill on Thursday, I believe that the Minister said that the requirement was implicit in amendment 55. If the Minister feels that it is implicit, would it not be better to make it explicit and put the requirement in the Bill? 

Dr Huppert:  I thank the hon. Lady for her comments. That is in essence what I am trying to do. My aim is to understand what the intention is and then to ensure that the legislation fits the intention. The requirement would be much clearer if it were explicit, and that is why we tabled amendments to that effect. 

Amendment (a) returns PII to its rightful place, keeping clause 6(5) and (6) as they came from the House of Lords and the JCHR. They could be improved and tweaked so that they worked better, but that is not what the Government amendment does. The Government amendment removes them completely. 

Amendments (b) and (c) deal with how CMPs can be triggered. The Minister and I discussed that earlier in the proceedings. He said that the Government’s intention is equality of arms, but the Government amendment is deficient in that regard. It does not allow claimants—the non-Government party—to apply for CMPs for material that they do not hold. The Minister accepts that that is the case and, if I have understood his position correctly, says that there would be a very high hurdle for such a person to reach, so they would find it very hard to make an application. Therefore, the court would be allowed to do it of its own motion. I have no problem with the idea that the court can do it of its own motion. I welcome it. It may help. 

There are two points. First, if the process of a court working on its own application works, why not have that as the sole route? The Secretary of State could go through the same process. If it is a process that works, it works for everybody. It would be a clearer example of equality of arms if it were the same for everybody. 

Secondly, the Minister may be right that it is a high hurdle. I came up with some cases where I think it will be achievable, but I accept that it will be tough. However,

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that is not an argument for specifically barring it, or having a complexly worded amendment, with two first conditions, one in new subsection (1C) and one in new subsection (1D), barring it while an alternative is provided. Equality of arms does not mean equipping one side with a sword and telling the other person that they are not very good with a sword, so they should use a trident. It might mean giving both sides a trident, or allowing them a choice of which weapon to use. I use the term trident in deference to the hon. Member for New Forest East. I was originally planning to use the term Morning Star. 

My fifth question is, other than the fact that it may be a hard process for a claimant to have the option of going through the same route as everybody else, what problems does the Minister see in allowing other parties to apply directly for a CMP, as well as having the option of going straight through the court? Let me return to amendment 55, which introduces a new test. It replaces the Wiley balancing, about which we have heard so much, which balances national security against the public interest and the fair and open administration of justice, with the new test of 

“the fair and effective administration of justice”. 

I am not a lawyer, so my question to the Minister is, what is the difference between those tests? My sixth question is, which test sets a higher bar? What will be required for a case to pass the old test, but fail the new test? Why does the Minister want to remove regard to open justice, which is a principle I think we all hold dear? 

My last point is something of a subtlety. I failed to spot this point on several readings, but I finally spotted it this morning. I am pleased that I did. I pay tribute to Jo Shaw—a Liberal Democrat colleague who moved the motion that was discussed at the Liberal Democrat conference—who pointed out this issue to me several times before I finally got it. Government amendment 55 introduces a very subtle change to the original wording in subsection (2). Subsection (2) states that the declaration applies when, 

“a party to the proceedings…would be required to disclose material”, 

and when 

“such a disclosure would be damaging to the interests of national security”. 

As the Bill stands, the disclosure itself must be damaging to national security. Amendment 55, however, relates to disclosure of information—it is the information that must be damaging to national security. That is very different. The hon. Member for Hammersmith mentioned confidentiality rings. A confidentiality ring, where the disclosure does not break national security, will be caught by the amendment, but not by the original text. The amendment applies to material that is damaging to national security, rather than disclosure. It is quite a subtle difference. 

Mr Slaughter:  This is a sneaked-in change, but a significant one, as the hon. Gentleman points out. I appreciate that his amendment deals with PII. Given what he enthusiastically said about last resort and Wiley balancing, does he, in addition to tabling and supporting his own amendments, support the Opposition amendments, in particular amendment (g), which would put Wiley balancing and last resort back in? 

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Dr Huppert:  I thank the hon. Gentleman for his comments. I will come back to confidentiality rings briefly. He will know that we tried hard to get our amendments in on time, assuming that the vote would happen on Thursday. That required getting them in on Monday, so I am not saying that they cover every single issue. I would like to hear the Minister’s answers to the questions I put. I hope the Minister will give clear and satisfactory answers to everything. If he cannot, we will have to see what happens. I look forward to exploring that with him. He will see the outcome when we get there. 

Dr Julian Lewis (New Forest East) (Con):  I think I understand the hon. Gentleman correctly. He is talking about something that bears on the control principle. I believe one of the motivations behind the Bill is that serious harm was done to the intelligence relationship between the United States and the United Kingdom by the fact that material owned by the United States was disclosed in the Binyam Mohamed case, not by the content of that material. Therefore, it is not just a question of being worried that information disclosed is valuable to a potential enemy; it is the fact of disclosure itself, which can harm an intelligence relationship. That is a legitimate matter for the Bill to address. 

9.30 am 

Dr Huppert:  I bow to the greater expertise of the hon. Member for New Forest East, on the details of the controlled release of intelligence. I think what he is talking about is the Norwich Pharmacal issues, which we will come to later. Part of the issue here is that this could include disclosure to somebody’s own lawyer. The test under the amendment is just, “Is this sensitive material?” in which case, they are speaking of whether any disclosure could happen as oppose to being concerned about who it is being disclosed to. That no longer plays any part in the process. Arguably, it would apply if somebody had information and was required to disclose it to the Secretary of State, which seems a bit odd given the process. 

The question I have for the Minister is whether this is an inadvertent change in the drafting that accidentally happened in the desire to give clarity—I have seen that happen with other legislation in my short time here—or whether it is the Minister’s intention that this should exclude things such as confidentiality agreements. I think that is very important, and that is my seventh question. 

I hope to get some clear answers to those seven questions. My first question is to ask the Minister to confirm that closed material proceedings could never be used in habeas corpus cases, in which liberty could be at risk; my second is to ask him to confirm that in all circumstances the only material that would have been covered by PII could go into CMP and that nothing that would otherwise be revealed would be concealed; my third is to ask him to confirm his intention that CMP cases should be considered only after PII has been considered and rejected as an option, and how he would put that in the legislation; my fourth is about whether it is the Minister’s intention for CMPs to be specifically a step of last resort, as in clause 6(2)(d); my fifth is about what problems the Minister sees in allowing other parties to apply directly for closed material proceedings other

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than it being a hard hurdle for them; my sixth is about which test sets the higher bar—the new or the old test—and what exactly the difference is; and my seventh is whether he intended to cover confidentiality agreements in the drafting, and whether they should be able to continue under this legislation, perhaps with the drafting corrected or not. Those are the seven questions. 

Meg Hillier:  The hon. Gentleman has given a very detailed exposition, and one could ask about angels dancing on pin heads in regard to some of the detail he has gone into. It is interesting, but I am a very simple woman and I would be very interested to know whether the Liberal Democrats are actually in favour of CMPs with proper judicial safeguards, as is the case for the official Opposition. It would be helpful for me in understanding the exact position of the Government Front Bench if he could be really clear on that. 

Dr Huppert:  I thank the hon. Lady for her comments. I understand that there are rules and that I cannot accuse her of misleading the House, but she is certainly not simple and she knows that perfectly well. 

The position of the Liberal Democrat party is as set out in our conference motion. We are in fact a democratic party— 

Meg Hillier:  I do not follow the Liberal Democrat conference as closely as the hon. Gentleman, so perhaps he could explain that in words of one syllable. 

Dr Huppert:  The hon. Lady is definitely missing out. We have a very clear democratic process whereby, for example, we do not exclude people under terrorism laws just for heckling. It is a wonderful process, and she should try a democratic system if she wishes to. 

Let me conclude on a positive note, and welcome new clause 5. 

Meg Hillier:  With respect, the hon. Gentleman has not answered my very direct and simple question. 

Dr Huppert:  I think the answer was very clear—it is as stated in the motion that the hon. Member for Hammersmith read out. I am sure he will be happy to pass her a copy of the entire motion, so that she can have a look at it. 

Let me finish on a positive note—and I am getting indications from the Chair that I ought to do so—and welcome new clause 5. New clause 5 is a clear step in the right direction because it allows the judge to change his mind as the case develops. That is welcome. It is a small step; I do not think it goes far enough, and I will be listening with great care to what the Minister says in response to my questions. 

We are all concerned about national security, and we also ought to be concerned that justice be fair and transparent. We face a challenge in balancing that. From what I have seen so far—I look forward to the Minister’s further comments—the Government amendments walk away from that balance in a way that would be simply unacceptable. If the Minister wants support for his

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proposals, he will have to answer my explicit questions and deal with those concerns, both in speech and in terms of what the legislation will say. 

Mr Slaughter:  Will the hon. Gentleman give way? 

Dr Huppert:  The hon. Gentleman has spoken for a while, but I will let him speak now. 

Mr Slaughter:  I think that the hon. Gentleman’s questions are good questions and I am quite keen to have the answers to them as well, but I am wondering why he has posed them if, as he has just said in response to what my hon. Friend the Member for Hackney South and Shoreditch said, he supports the motion that the coalition Government should withdraw part 2 of the Justice and Security Bill. Surely his position is therefore that clauses 6 to 13 should be deleted. That is what he has just said. I am genuinely confused. Is his position near ours, which is to support the position taken by the House of Lords on clause 6, or is it what he has just said, which is that CMPs are inappropriate and this part of the Bill should be deleted? 

Dr Huppert:  I realise that the hon. Gentleman, in his speech on this subject, covered a range of material. As I understand it, we are debating amendment 55, which does not have the flexibility to do exactly what the motion says. I was interested to see that he failed to answer my question earlier about whether he agreed with the motion. I think that it is clear that the Labour party is in favour of CMPs, which is a reasonable position to take—it is consistent with what it did while in government—but it is also in favour of making it look to the press as though it opposes them. That is a very interesting and complex position. I have been very clear. I look forward to hearing what the Minister has to say. 

Paul Murphy (Torfaen) (Lab):  I had not planned to speak at this stage, but the speech by the hon. Member for Cambridge woke me up this morning, so I would like to make a number of points, some of which will relate to what the Minister might say in his winding-up speech. 

I agree with much of what the hon. Member for Cambridge said. It coincides almost precisely with what my hon. Friend the Member for Hammersmith has been saying. However, I want also to emphasise what my hon. Friend said just now about where the Labour party stands on this. Our view, I am sure, is pretty clear. It is that we agree with CMPs so long as there are proper safeguards. The House of Lords put in very important and detailed safeguards relating partly to what the Joint Committee on Human Rights has said, but to other things as well. 

I am troubled by the fact that the Government do not seem to have wholeheartedly agreed with their lordships in these matters, so the question that I pose to the Minister, for answer when he winds up, is this. Why have the very sensible safeguards that were inserted in the House of Lords in effect been changed—quite dramatically, in some ways—and replaced by further amendments, which the Minister is to move? It seems to me that the Lords amendments were very sensible and reasonable. 

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I am puzzled by the points of view that the hon. Member for Cambridge has expressed. I am puzzled because, I suppose, I have not encountered a Committee like this for some years—one taking place when there is a coalition in government. It seems to me that the members of coalitions are supposed to work together. That is the idea, anyway—that they agree with each other on certain things, which are written down in a document at the beginning of a parliamentary Session. However, the hon. Member for Cambridge has on a number of occasions said “We”—“We are doing this” and “We are doing that”, by which I assume he means he and his hon. Friend the Member for Edinburgh West. The two of them are here, representing the Back Benchers of the Liberal Democrat party. 

However, I am told that there is a Liberal Democrat Minister among the Ministers in the Home Office—the hon. Member for Taunton Deane (Mr Browne). I assume that they talk as Ministers from time to time and, if they do, that the hon. Member for Taunton Deane, representing the Liberal Democrats in the Home Office team, would have been putting forward certain views on these issues—because they are very important—reflecting, I dare say, what the hon. Member for Cambridge would or would not like to be put in. 

Therefore it puzzles me, when we come to this point, that semi-official Liberal Democrat amendments appear to be being tabled against their own Government. Either these are Back-Bench amendments from the Liberal Democrats that have nothing at all to do with their coalition status or they are not. I suspect that, as the Committee’s scrutiny goes, that sort of puzzlement will continue. There is a conflict. The Liberal Democrats are in government, and they have to accept that. Sometimes it is hard: when I was in government, I did not agree with everything we did, but that is the nature of government—it is called collective responsibility. 

I wonder where the Liberal Democrats stand. If their official policy is that they do not like CMPs—they are agin them—as my hon. Friend the Member for Hammersmith said, that should presumably be reflected in the coalition agreement. It clearly is not. We are at a loss as to where we are in all this; the public will be as well. My party has made our position clear: we want to see CMPs, but with proper safeguards. 

Meg Hillier:  My right hon. Friend makes an important and serious point. We know that there is a very serious and real threat to this country from terrorism. If we believe in the civil liberties of the majority, we have—proportionately, carefully and thoughtfully—to make sure that we have safeguards in place. I would hope that the Liberal Democrats also believe that, and I am sure that, from what he is saying, my right hon. Friend would as well. I remain unclear about the Liberal Democrat position. 

Paul Murphy:  Indeed. Perhaps when the Minister winds up he will indicate whether he is speaking on behalf of the coalition Government, including the Liberal Democrat Members. 

No one wants CMPs. No one would have dreamt them up as a great theory or institution. They are there because of the dreadful times we now live in. The situation is a second best—of course it is—but we therefore have

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to put proper safeguards in, as well. The idea that we have to pay off people who cannot take civil action because such actions would reveal national intelligence secrets, and that we should pay out perhaps tens or even hundreds of thousands of pounds, is crazy. Therefore, it is important to have CMPs, but we also have to have the safeguards. 

I am completely unclear as to where the junior partner in the coalition stands on this issue. The Liberal Democrats cannot have it both ways: either they accept the coalition position on what they have to do, or they do not. That position is not very good at the moment in terms of what their lordships are doing, but at least the coalition Ministers say that they will accept these measures. However, from the point of view of the hon. Member for Cambridge, I really do not know where the Liberal Democrats stand. 

Mr Julian Brazier (Canterbury) (Con):  May I say, Mr Gray, what a pleasure it is to serve under your chairmanship? Given your specialist knowledge in constitutional issues, it is particularly appropriate that you should be chairing the Committee. It is a pleasure to follow the right hon. Member for Torfaen; I will come back in a moment to something that he said. May I also say, Mr Gray, that I hope you will indulge me if, following a conversation with Mr Crausby, I take my remarks a little wider than the scope of the amendment. I do not intend to try to catch your eye on clause stand part, as both the Government and the Opposition Front-Bench teams have made it clear that the amendments go to the very heart of clause 6. 

The Chair:  Order. On that issue, it is unlikely that we will have a clause stand part debate, because this debate has been fairly wide. I have indicated to the Minister that he may go slightly wider than the scope of the amendment under consideration. Marginally wider is all right. 

Mr Brazier:  Thank you, Mr Gray. If I may say so, that is very wise, because without the Government’s amendments, the Lords amendments to the Bill would hugely dilute the capability of this measure. If I may say so, some aspects of the Opposition amendments seem to be a bridge too far in terms of proportionality; I am thinking especially of new subsection (6A)(c), as proposed by amendment 68. 

I would like to declare an indirect interest. A very dear friend of mine was extremely badly wounded serving this country. He has recently recovered from an operation for his wounds. He has been decorated for gallantry. He has recently been accused in media, which I will not name because I do not want to identify him, of incidents of brutality. The accusations are wholly untrue. 

So far, the situation has not turned into a court case; should it do so, the nature of the extraordinarily brave and dangerous operations he took part in is such that, along with the organisation that he worked for, he will be faced with a choice between keeling over and paying out money to people who are lying and are undoubtedly enemies of this country, or disclosing material that it is not in the national interest to disclose. 

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9.45 am 

I went back to check the record on the exchange I had with the hon. Member for Hammersmith on Thursday. He said, 

“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.”––[Official Report, Justice and Security Public Bill Committee, 31 January 2013; c. 138.] 

I challenged him at the time to say whether he really believed that release of information was the only way in which national security could be damaged, and he said that it was not. 

The fact is that, at a time when this country’s enemies have an immensely powerful propaganda effort that has changed the minds of huge numbers of young people, damage to reputation is absolutely critical in national security. So, too, is the morale of members of our armed forces, our Security Service, our intelligence service and other groups who are engaged in the struggle—I hate it being called a war—against international terrorism. 

Mr Slaughter:  I respect utterly the spirit in which the hon. Gentleman makes his remarks. Reputation can be argued either way; earlier I began to quote—I stopped half way through—the Liberal Democrat policy, which we now know, which is that secret courts risk 

“undermining the reputation of British Security Services and damaging public trust and confidence in those Services due to judgments in the CMP handed down in secret, after a trial potentially held entirely behind closed doors from which parties to the litigation other than the Government are excluded.” 

I do not take that point, but that may be one that he will want to discuss with his coalition partners. My point was quite different; it was in relation to procedural fairness. That is the issue that should be under discussion. Matters of reputation and payment of damages are important issues, but they are absent liability; they do not go to the heart of whether this is a fair process. 

Mr Brazier:  I will come back to the hon. Gentleman’s wider points in a moment, but the key point I am trying to establish is that it is absurd to pretend that the only issue of national security is the release of information. That strand of argument goes one stage further: in the subsequent exchange that he had with the Minister and myself, he suggested that, with a PII system, damaging material could never be released. 

The Minister pointed out one exception to that: if the other party does not agree to settle and I pointed out that there is an equally, or arguably more, important case where such would be the damage to national standing if, for example, allegations of direct torture were made against our Security Services, we may have to choose—indeed, my friend may be in a position where a decision has to be taken—to release material that potentially puts people at risk in order to prevent the worse consequence of a very powerful lie being propagated all over the world. 

I would like to come back for a second to the profoundly important intervention that the right hon. Member for Torfaen made on the last group of amendments. He spoke only for a moment—perhaps other members of the Committee may benefit from the idea that brevity sometimes carries a point powerfully—but he said that when he was doing one of the most difficult jobs that

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exists in any form in this country, being Secretary of State for Northern Ireland, he found himself, almost on a daily basis, needing to balance the interests of justice and national security. I, for one, was not one of those Members of Parliament who cheered when, from time to time, we saw Labour Ministers—often Home Secretaries, but sometimes Secretaries of State for Northern Ireland—facing what I regarded, frankly, as deeply unwise rulings from the courts. 

We need to remind ourselves that clause 6 and the amendments thereto deal only with civil proceedings. We are not talking here about issues involving sending people to prison. Some of us feel that the Government—perhaps under pressure from another place—has in some ways given away too much. I tried very hard to listen to the contribution of the hon. Member for Hammersmith, although it was extremely long and he had to be held up for producing overlong quotes. Again and again we heard him give quotes from lawyers, from judges, from politicians, from the Joint Committee on Human Rights and from speeches in another place, but the key thing is that we did not once hear him quote the brave men and women whose lives are potentially at risk because of the material we are discussing here. With permission, I will now quote Baroness Eliza Manningham-Buller, who spent a lifetime working in this area. 

“At the moment there is no justice at all in civil cases where individuals sue the Government for compensation, claiming, say, mistreatment or complicity in torture. Because the secret material held by the authorities cannot be used in court, the Government is forced to settle without a judge examining the merits of the claim. This is immensely damaging to the reputation of the Government and the intelligence and security agencies which cannot defend themselves”. 

I have many commitments, as do all of us here, and I feel I have come to this a little late, but I have participated in some of the media activity around this. One of the things I found most upsetting in this debate was the suggestion by those on the other side of the argument that, unless one accepts certain principles of law as absolute, one is going against generations and centuries of legal tradition. 

However, as the right hon. Member for Torfaen hinted, in this country it was widely accepted until very recently that a balance must be struck between national security and principles of equality of arms and so on. I would like to quote Lord Denning, who was speaking on a case that took place in 1977. That case was outside this provision, because it involved a deportation order. We are not going for something as wide as this; as we all know, we are dealing purely with civil cases. Lord Denning added these words to the final judgment in 1977: 

“But this is no ordinary case. It is a case in which national security is involved, and our history shows that, when the state itself is endangered, our cherished freedoms may have to take second place. Even natural justice itself may suffer a set-back. Time after time Parliament has so enacted and the courts have loyally followed”. 

If you will allow me, Mr Gray, I will give another historical quote, going a little further back. During the second world war, Churchill and his Government—a coalition Government, of course—chose to intern a huge number of potential suspects. Given the importance of suppressing the German spy effort, initially there was no sifting or attempt at individual justice at all. In the famous Liversidge v Anderson case, the Law Lords

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voted four to one. I would like to quote from the minority finding by Lord Atkin, who stated in his dissenting speech that: 

“In England, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law”. 

In other words Lord Atkin took the view that legal principles were absolute, whatever the circumstances, and he has been quoted approvingly again and again. Had his view held sway, and had the Government chosen to accept the ruling of the House of Lords, we would probably have lost the battle of Britain, because in releasing all the many innocent Germans we had interned, there would have been a few spies among them and vital information on the weakness of our war effort would have reached German high command. 

Robert Neill (Bromley and Chislehurst) (Con):  I understand my hon. Friend’s point, but I respectfully draw his attention to this distinction, which is important. What Lord Atkin was saying was that if there were exceptional circumstances where the normal rules of the court should be overridden, effectively that has to be done by the legislature, because the legislature is democratically accountable. In a sense, that is what is being done with the system we are looking at here. So it does not seem to me that it falls foul either of his argument or of the principle that things shall be done in accordance with the rule of law, either as enacted by this House or by the courts acting within the framework of law. 

Mr Brazier:  I am happy to defer to my hon. Friend on that point. There was an issue of speed involved: “We could not wait,” is the argument. Either way, it makes my point. The truth is that until nine years ago when we had the Belmarsh case, it was accepted that Ministers and not the courts who took the ultimate view on what was and was not essential for national security. 

I do not wish to say much more, but simply end with these comments. What we have in clause 6 is a very limited attempt to put right an injustice whereby members of the intelligence services, members of the armed forces in certain circumstances and a number of others who put their lives at risk for their country are able to defend themselves under circumstances where currently, for reasons of national security, they are unable to do so. It does indeed involve some curbing of what would normally be the natural rules of justice, but in my view it is a price worth paying. The Government are right to press to partially amend what another place has done and I support the Minister’s amendments.

Mike Crockart:  I rise not as a member of the Joint Committee on Human Rights, but as a former member, in common with my hon. Friend the Member for Cambridge. But I was a member at the time of the inquiry and the report on this Bill. I also am not a lawyer; perhaps that partly explains why neither of us remains on the Joint Committee on Human Rights. In a previous occupation as a police officer, I was far more interested in removing personal liberties from individuals rather than safeguarding them. However, things change. 

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Sheila Gilmore (Edinburgh East) (Lab):  I am sure than the hon. Gentleman would not want to suggest that he would want to remove any individual liberties from citizens without due process. 

Mike Crockart:  I thank the hon. Lady for her intervention, but I point out I was making a joke. I apologise for the levity introduced into these proceedings. Before I turn to the details of the amendment, it is worthwhile to deal with one small, but essential, clarification. When the original proposals were published, they suffered from being rather too broadly drawn and were described by too many in rather too lax language. There was much talk of national security being at stake and apocalyptic coverage by some areas of the press. Putting aside the Norwich Pharmacal parts of the Bill where we can at least have a debate on whether it applies, can I be clear that after looking at this area in depth, the JCHR’s view was clearly that nothing in this Bill impacted upon national security? Perhaps the Minister will confirm that this is his understanding, because too often the debate on this subject seems to polarise into a competition between those who defend national security versus those who are defenders of open justice and fairness. That is simply not the real situation. Could the Minister therefore confirm that it is his understanding—as it is mine—that national security will not be directly impacted one bit, whether this part of the Bill regarding CMP passes or not, or is amended or not? 

10 am 

Dr Lewis:  May I remind the hon. Gentleman of the intervention I made on the spokesman for the Labour party on this very point? Although these are civil proceedings, and although it is true that information damaging to national security can in the end not be produced, the payment of large sums of money to people who may well be involved in terrorist organisations in fact gives resources to those organisations. That could therefore have a direct impact on national security. 

Mike Crockart:  Indeed; but in this Bill we are dealing with the process of law and the balance that needs to be struck on whether to allow CMPs to go forward. I do not feel that throwing out principles of law in order to safeguard morale, or to prevent money being paid out, is a reasonable balance to be struck. 

Robert Neill:  I understand my hon. Friend’s point, and usually I would be with him. However, further to the point raised by my hon. Friend the Member for New Forest East, can he not conceive that if the Government are obliged to settle against very disreputable people for significant sums of money, the headlines on any number of extremist websites in this country and beyond will be, “British Government admits and pays out £x for brutality,” and not that the British legal process is being upheld? That cannot be in the interests of this country. 

Mike Crockart:  I agree, up to a point. That may well be where we would end up. What we need to do, therefore, is to make the Bill, and this part of it in particular, proportionate to that risk. I will deal with that in greater detail later on in my remarks. However,

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this part of the Bill is not about national security. It is about making sensitive national security material available to a judge. The two are not the same. We must be careful in our deliberations because of that. 

As my hon. Friend the Member for Cambridge has already said, this is a matter of balance. In this part of the Bill we are attempting to balance the wish, mainly though not exclusively, of the Government to be able to lead sensitive evidence key to the case with the departure from the principles of fair and open justice. In deciding whether this balance is correct, there are two questions to be answered. First, has an effective case for change been made? Secondly, is the change proportionate?

I speak in support of all and any amendments that seek to achieve the aims of the Joint Committee on Human Rights. I am sure that the Government will try to make a case that their amendment does just this, and is merely a clearer re-write of these amendments. However, I am afraid I must disagree. When the Lords amendments were agreed, the Government initially seemed warm to the prospect of accepting them in their entirety, though perhaps with some tidying-up. I had hoped that the tidying-up might be subject to informal scrutiny by JCHR to ensure that the intention to achieve its aims was checked. It is disappointing that that did not happen.

It is equally disappointing that the Government amendments were tabled so late that it has effectively prevented JCHR from stating an opinion on them. They were tabled late on Monday last week, when JCHR had already set up its programme for Tuesday. It meets again this afternoon; but by the time it will have looked at this and stated an opinion, it is likely—unless I continue speaking for an inordinate amount of time—that we will have already voted on these amendments. Again, that is very disappointing.

Heidi Alexander:  I agree entirely with the point that the hon. Gentleman is making about the lateness with which the Government amendments to this clause were tabled, given the significance of the changes that could come about as a result. He is setting out his concerns about Government amendment 55, but will he be clear with the Committee and advise us on whether he will be voting against it given the problems that he has alluded to? 

Mike Crockart:  The difficulty in answering that question is that we will be voting on amendments to Government amendment 55 before we vote on Government amendment 55, so it rather depends. I am not sitting on the fence. It really does rather depend on what happens with the amendments that come before it. 

Heidi Alexander:  I should perhaps have made myself clearer. If the amendments to amendment 55 are not agreed to, will the hon. Gentleman vote against Government amendment 55? 

Mike Crockart:  All sorts of permutations and possibilities exist with regard to the large number of amendments to Government amendment 55. I will reserve judgment until I see what happens with those amendments, and until I hear what the Minister has to say. 

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Mr Slaughter:  Let me try to help. The hon. Gentleman voted for the Bill on Second Reading, but in the Independent on Sunday, on 27 January, he said: 

“The Government must not try to roll back the changes made in the Lords.” 

I think that that is his position here. If that is right, he must be supporting our amendments in preference, possibly, to his own amendments, because they do exactly that and no more. If those are passed, he will not have a problem with amendment 55. 

Mike Crockart:  I would never support Labour amendments in preference to Liberal Democrat amendments. Let us wait and see where we are when we vote on the amendments. 

There is much to welcome in the Government amendments, including the acceptance of the change from “must” to “may”, the continual review of whether a CMP should still apply in the court proceedings, and the acceptance of the narrowing of the scope of the type of information regarded as being sensitive. I will start with a positive comment. It is welcome that the Government have moved a long way on the issue of equality of arms. It has long been an established principle that two parties to litigation should have equal treatment under the law. The original position that a CMP was open only to the Secretary of State was clearly wrong. Both the Joint Committee on Human Rights and the House of Lords Constitution Committee made that point. I will not use lots of quotes in my speech but here is one. In evidence to the JCHR, the independent reviewer of terrorism legislation described the proposal as, “Profoundly wrong in principle”. I am glad that the Government have listened to that, at least in part. However, as has already been mentioned in the debate, there are still occasions where one party, but not the other, is in a position to apply for a CMP, and that is something that must be dealt with. 

Looking at the Government’s rewrite, there are, whether by accident or design, a couple of other omissions. Subsection (2)(c) states that 

“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”. 

That was a reaction to the original wording, which almost made agreement to hold a CMP a statutory duty to direct one. The amendment attempts to move the Bill to a place where a CMP is given as a tool in the bag of a judge. Once that move is made, which to a large extent has been done by allowing all parties to apply for CMP, the next question is how the judge will decide whether to allow such an application. Subsection (2)(c) is key in setting out what type of balancing would be expected of the judge. 

The second omission arising from amendment 55 would be existing subsection (2)(d), which states that 

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

In taking evidence in the JCHR, we heard of many occasions when the courts had worked well to get around difficult situations, using many different means to get to a fair determination, including PII, confidentiality rings and other innovations. The clause makes the point that, while we are dealing with a set of options, none

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of which is ideal, a CMP, where one party does not have an opportunity to refute evidence placed before a judge, must by its very nature be a last resort. 

I listened to the Minister’s point about there being an implicit need to have considered the PII process included in the Government amendments, but I prefer, as others have already said, to have an explicit condition in the Bill to ensure that a CMP is indeed a last resort. The test applied by the Supreme Court in the al-Rawi case was that 

“radical departures from fundamental common law principles or other human rights principles must be justified by clear evidence of their strict necessity.” 

That is a fairly clear statement of last resort and should be reflected in the Bill. 

In conclusion, this part of the Bill is all about balance, but if the balance is wrong, it will not have my support. 

Robert Neill:  I did not intend to speak, but I will do so briefly. I took on board the last point made by my hon. Friend the Member for Edinburgh West, and I urge him, and perhaps my hon. Friend the Member for Cambridge, to reflect on where the proper balance is— the question of balance and proportionality is important —and on the Government amendments’ significance, especially the judge’s duty continually to review. That move is important in ensuring proportionality, particularly given the history, in both civil and criminal jurisdictions, of judges showing a willingness to be quite proactive in how they approach such things. 

Mike Crockart:  I accept what the hon. Gentleman says—continual review is welcome—but should we not trust our judges to use CMP as a tool and as a last resort? Would that not be a better position for this part of the Bill? 

Robert Neill:  If the judge has the ability continually to review the situation in any event, there is adequate power for the judge to revisit something when he feels an injustice may occur. 

On a related point, my hon. Friend mentioned the concern about the use of material that cannot be challenged by the other party, and I understand that point. We would be wrong, however, to think that it is a wholly unique situation. Recalling my time in practice at the criminal bar, there are certain limited circumstances, as he will remember from his time in the police force, where evidence can be admitted but not cross-examined. There are certain circumstances where the statement either of a deceased person or, more recently, of a victim who for whatever reason cannot come before a court can be read to the jury. 

Dr Huppert:  The hon. Gentleman makes an interesting point that I am following carefully, but there is a difference between information that cannot be cross-examined and material that cannot be made available for somebody to look at. In the case of a statement by somebody deceased, both sides can at least have a look at what it says. 

Robert Neill:  I understand that. However, first, with CMP there is the procedure with the special advocate, which enables testing to be done. Secondly, as I indicated in an earlier intervention, if you couple the role of the special advocate in challenging with the duty on the judge

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continually to review, as the case develops the judge may recognise, which the party that has not seen the material may not, the tell-tale signs that something is actually triggering something that questions the evidence. His duty to review then kicks in. I have certainly seen that happen in criminal cases, so it does provide a proportionate safeguard. 

Thirdly, when it comes to the final decision making, that the evidence may not have been tested or that limits may have been placed on testing is something that the judge, as the tribunal of fact in a civil case—it would be the jury in a criminal case, but that rightly does not apply here—would have to bear that in mind when deciding how much weight to attach to the evidence. It would be perfectly legitimate, even in a case under the procedure, for a judge to say, “I note that this material comes before me via this procedure, and that the procedure has certain limitations”. It is up to the judges, and it might be for them to reflect on how much weight they attach to it as opposed to the other material. However, surely that is better than saying, as we do at the moment, that the material should not be considered by the judge at all. That is why I hope it will be agreed that the proposal is a proportionate way forward. 

The great advice is as my hon. Friend the Member for Canterbury suggested. If material cannot be considered at all, we are forced into a situation where the mistaken party might be obliged to settle a wholly unmeritorious civil claim. I can certainly recall—I am sure my hon. Friend the Member for Edinburgh West will think about such matters too—when I was working with police officers in much less stark circumstances than national security cases. Frankly, from time to time, there was a blow to the morale of police officers when we were dealing with organised crime. A case might have had to be dropped, because we could not reveal the identity of an informant. There were good reasons for our having to do that, but it was still a blow to the morale of those officers that someone whom they knew had done it, had walked free, but for the greater good of the system of criminal justice, they had to accept that decision. Just think how much greater that blow to morale is when dealing with issues of national security and how much greater the risks to society as a whole. 

10.15 am 

Mr Brazier:  I am most grateful to my hon. Friend for letting me interrupt his powerful speech. What I am about to say goes to the heart of the matter. As someone who has been very involved in parts of the Islamic world for many years, the struggle against international terrorism is essentially a struggle of ideas. It is almost impossible to understate the power of the sort of findings that he described if the British Government seem to be admitting to committing torture because they cannot defend a case. 

Robert Neill:  My hon. Friend makes a powerful point, and that is why I, as a lawyer with concern for due process, have come to the long-balanced view that what is proposed by the Government is a proportionate means of resolving a difficult and intractable problem. 

My final point comes not from my experience of a rather distant career as a lawyer, but from my more recent past as a Minister at the Department for Communities

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and Local Government. I want to concentrate on the communities aspect, because not only is there a risk to Britain’s reputation abroad through such settlements, which are used for propaganda by extremists, but a risk to community cohesion in this country. Those same extremist websites will be circulating in Bradford and Leeds, as much as they will be in Kabul and Karachi. There is a real risk of young people in this country being misinformed and their minds being poisoned against our pluralistic society. 

Meg Hillier:  The hon. Gentleman makes an important point. It is easy in our erudite setting to extrapolate only the simple principles, but we are talking about people, the safety of the British public, the radicalisation of young people and—I have visited the headquarters of the security services—the deaths of agents of whom we will never know the names. Their deaths are not even covered because of the secret nature of their work. We are talking about human life and liberty. 

Robert Neill:  I am really grateful to the hon. Lady. Given where our constituencies are, we know that there are communities within this very city in which that process takes place and where the inability of the Government to defend themselves against unjust claims is used to fuel that flame of radicalisation. For that reason, I hope that my hon. Friends will reflect on matters and consider that, although it is extremely difficult, if not perhaps impossible, to get an absolutely perfect solution to such matters within the balancing act that we have to undertake, what is proposed by the Government is a proportionate and sensible way forward. 

The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire):  We have had a well-informed and wide-ranging debate on this group of amendments and, more broadly, about the heart of clause 6. I will reflect on what right hon. and hon. Members have said in speeches and interventions, and the anxiety that is felt about closed material procedures not being perfect or optimum proceedings. Clearly, we all want to have justice in open court where that is possible, but the challenge is that that is not possible in some cases. It is important to state that a problem needs to be addressed. At times, speakers almost suggested that CMPs were inherently bad and should never happen. A more reflective view is that they are not of course the preferred option, but that they are sometimes required to ensure that evidence can be presented to the court. 

We believe that the Bill is proportionate and targeted at dealing with a specific issue—namely, the fact that, since the Supreme Court ruling in 2011, our courts have said that it is for Parliament to decide when CMPs should be available. Let us not forget what the position on CMPs and civil cases was before that ruling. That point has sometimes been overlooked in this debate, and I will say more about it. We are left with a situation in which the Government are having to seek to settle a number of civil damages cases. 

I certainly accept the point made by my hon. Friend the Member for Edinburgh West that the primary aim of the CMP provisions is to put material before the courts to ensure that cases that hinge on national security

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can be tried. However, it is important to highlight that we do not currently have a risk-free or simple solution in having to settle cases. There is an impact indirectly—sometimes, more directly—on national security, in that many of the civil damages cases are likely to involve individuals with links to extremism. Fundraising or access to funds remains central to the existence and capability of any extremist organisation and, as we have heard in this debate, there are risks that money paid out in settlements may go towards funding terrorism. Damagingly, the limitations of public interest immunity leave the public with no independent judgment on very serious allegations about Government actions. 

The fact that the Government settle cases is, in some quarters, sometimes used as an indication of guilt to incite terrorism and extremism as a recruitment tool. That sense of radicalism has already been alluded to, and I take on board the short intervention made on my hon. Friend the Member for Bromley and Chislehurst by the hon. Member for Hackney South and Shoreditch about lives really being at risk. Given the complexities and sensitivities of each case, intelligence officers with knowledge of the case—and, potentially, with a live intelligence picture—often have to be involved. That means that they have to be diverted away from current operational work, with the risk that agencies’ operational capacities are consequently reduced. It is a rich picture, albeit I accept the principle that, as has been said, there are associated complexities. 

In cases where people bring proceedings alleging UK complicity or involvement in detention and mistreatment, any Government defence is likely to focus on the nature of any involvement that requires the Government to breach their long-standing policy not to comment publicly on whether they had been involved in any particular operation; what the Government knew at the time, which might risk lives and the safety of sources; and what the Government had shared with their partners and what assurances had been sought or received, which might reveal the fact and nature of such relationships. All those would be central to any defence, and none of them could be put in the public domain without risking or jeopardising the safety of sources or the willingness of partners to work with the UK. 

In responding to this debate, it is important to set that context. There are difficulties. There are challenges. We are not in the realms of the perfect here. I do not think anyone suggests that we are. 

Dr Huppert:  I totally accept that this is a complex area. Does the Minister share my concern that one of the consequences of having CMPs is that the judgment may also be partly closed as well? That will mean that the Government cannot publicly vindicate themselves. There will always be those who would say that the Government won on a technicality or some other process. This will deny the Government the opportunity to say, “We had a trial and we won.” 

James Brokenshire:  The point at issue here is that evidence will be capable of being put into the trial and a determination can be reached based on all of that evidence. That does not happen at the moment. That is the fundamental point that we are seeking to debate here. The courts should be in a position to reach a conclusion whether someone is guilty or innocent of

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the civil claim that has been brought against them. That is in large measure what we are talking about here, a litigation claim brought against the Government, which the Government are unable to determine. Those who bring the claim will be familiar with the allegations that they are making. 

Again, that touches on a number of points relating to equality of arms and so on. A person who is suing the Government will know the basis on which they are suing and that a determination will be reached off the back of that, whether or not the Government can defend their case and say, “No, we are not liable for those claims.” That will be public. As the hon. Gentleman will know, in those situations where we have CMPs at the moment, that determination is publicly known and is reported on in the press. I know we will touch on that in other amendments. 

Dr Lewis:  I wonder whether this might be a suitable point to raise something which I do not think has been mentioned so far. If this change goes through and the Government settle a case, people who are genuinely aggrieved because one of the Government’s security agencies did actually do something wrong will be more justified in saying, “Well, we feel vindicated because the Government could have used a CMP and they didn’t. They saw fit to settle and that shows that wrongdoing was done.” At the moment if an agency unfortunately crossed a line that it should not have crossed, the Government can always say, “Ah well, we weren’t able to defend ourselves because we couldn’t rely on secret material.” In future, they will not be able to say that because they could have relied on secret material but chose not to do so. 

James Brokenshire:  My hon. Friend makes an important point. Clearly CMPs will allow evidence that is not currently adducible in court to be made available to assist the court in reaching that fair determination. Even with CMPs, however, because of some sensitivity in respect of a particular piece of intelligence, reaching a settlement may still be the most appropriate outcome.  

It is important again to highlight that the cases that demonstrate current and anticipated problems in this area are pending in the courts and so, almost by definition, cannot be the subject of specific public comment. However, a limited waiver of legal professional privilege was made for Government counsel to brief David Anderson QC, the independent reviewer of terrorism. He concluded that 

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

We need to establish that there is a problem. I have outlined the reasons why there is an existing problem but equally why CMP, “for all its inadequacies”, provides a solution. 

Mike Crockart:  I thank the Minister and the Department for agreeing to brief David Anderson and allowing him to look at the matter. It would have been useful, however, if they had also agreed to allow special advocates to look at those cases. If special advocates were convinced of the need for CMPs, we would find the proposals much more acceptable. 

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10.30 am 

James Brokenshire:  There are difficulties and limitations associated with bringing in special advocates, whose ability to act on the cases in future would be limited by the fact that the Government’s defence had been disclosed to them. There are limitations on what is appropriate. We felt that it was appropriate to bring in David Anderson as an independent reviewer to provide an external challenge, and I hope that the Joint Committee recognised the Government’s genuine attempt to provide some external input. I hear the point that the hon. Gentleman made, but there have been and continue to be real challenges and limitations, because of the nature of the special advocate’s role. 

Dr Huppert:  The Minister makes a fair point. If a special advocate were to see these cases, they might not be able to act on them in future. Does he agree that if a special advocate could be found who was willing to take that risk and to absent themselves in future, it would be appropriate for the Government to share the information with that special advocate, as indeed the special advocates have offered? 

James Brokenshire:  As an eminent QC, David Anderson can provide analysis that gives insight in the various cases, and he has given evidence about that. During the Committee’s previous sitting, the hon. Member for Hammersmith quoted from the Supreme Court judgment in the case of al-Rawi. He cited a number of passages, in particular from Lord Dyson, to support his argument, which seemed to be about the unfairness or undesirability of CMPs. 

There were moments when I almost thought that the official Opposition were taking a different stance on closed material procedures. I was reassured by the contributions from the hon. Member for Hackney South and Shoreditch and the right hon. Member for Torfaen that that is certainly not the case, and that the Opposition recognise the importance of CMPs, subject to appropriate safeguards, as the right hon. Gentleman put it. 

Mr Slaughter:  I suggest to the Minister, as I did to the hon. Member for Cambridge, that he goes away and reads the transcript of Thursday afternoon’s proceedings, where he will find our position clearly set out in some detail. I also suggest that he looks again at al-Rawi and addresses himself forcefully to the main issue of the case. There are a lot of surrounding circumstances, but the main issue is how one ensures procedural fairness in a CMP case. That is where the Minister is in difficulties. He can have an argument with his Liberal Democrat colleagues about whether CMPs are appropriate at all, but he must address the questions of procedural fairness and when and how CMPs should operate. 

James Brokenshire:  I read the hon. Gentleman’s comments, some of which I followed and some of which, I have to confess, I did not; they were somewhat impenetrable. I accept what he said about the official Opposition’s standpoint and I recognise that in government Labour Members were clear about the utility of closed material proceedings. Indeed, if our roles were reversed, I suspect that the hon. Gentleman would be making a number of the points that I am making now, but mercifully that pleasure is not yet upon us. 

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Meg Hillier:  Harmony may not be breaking out completely between the Government and the Opposition, but there are some grounds for agreement. Will the Minister answer the question that I asked the hon. Member for Cambridge? Is the Minister of State, Home Department, the hon. Member for Taunton Deane (Mr Browne) entirely in accord with the Minister’s views on the need for CMPs and safeguards? 

James Brokenshire:  As the hon. Lady knows, Ministers are all bound by collective ministerial responsibility and we have helpful, constructive discussions in the Government. I am pleased to be a Minister and to be part of that collective approach. 

To take the point about al-Rawi flagged up by the hon. Member for Hammersmith, the court said that it was for Parliament to legislate for any extension of closed material proceedings from the existing area where legislation permits, and that it was for Parliament to prescribe the circumstances in which CMPs could be adopted and the conditions governing their operation. That is why we are having this debate. Ultimately, it is for us as parliamentarians in both Houses to make that decision. 

Mr Slaughter  rose—  

James Brokenshire:  I will give way quickly, so I can make some progress. 

Mr Slaughter:  The court also said, through Lord Dyson, that there has to be a compelling case to do so. It said that PII works well enough. The Supreme Court was clear about the issues of natural and open justice. Of course it is appropriate for Parliament to legislate, but the Minister has a high hurdle to get over regarding procedural fairness. 

James Brokenshire:  The hon. Gentleman seems to be suggesting that there is no problem, and that PII is a perfect solution to settle such cases. It is not, which is why the Government have come forward with our proposals. 

Mr Brazier:  Surely it is the Government of the day, of whatever political complexion, who are ultimately answerable for national security, and that is right. That is why it is right for the Government to table legislation to Parliament to deal with the issue. 

James Brokenshire:  I absolutely agree. The Bingham Centre for the Rule of Law said: 

“Indeed, we consider that the prospect of claims alleging very serious wrongdoing on the part of state agencies (such as complicity in kidnapping, forced disappearances and torture—as have been made in several recent cases) being dismissed because key evidence inculpating state agencies is held to be immune from disclosure, to be a very concerning one from the perspective of the rule of law.” 

That is precisely what the Government are seeking to do with the Bill. Our amendments preserve the courts’ discretion and make it clear that the ultimate decision as to whether there should be a CMP in a particular case will be for the courts. 

It is important to underline the changes that have been made in the Lords, which altered where the decision would be made. Previously, it would have been for the

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Secretary of State to make the ultimate determination and for the court to assess whether it was reasonable, but that was altered in the other place. That is reflected in amendment 55, effectively underlining the change. 

The hon. Member for Hammersmith said that he did not understand what the Government’s proposed test under amendment 55 means. I thought I was clear in my opening remarks that our intention is that CMPs should be used only in a small number of cases where they are in the interest of fair and effective administration of justice in the proceedings. 

The Joint Committee on Human Rights sought to ensure that CMPs would be used only where necessary, but its amendment would require the courts to exhaust all alternatives, including PII, before ordering a CMP. That would mean going through a full PII exercise even where it was absolutely and demonstrably clear that it would be fruitless. We agree with David Anderson that a determination may be made without conducting a whole PII exercise. He said that 

“if the exercise is plainly going to be futile, I do not think legislation should require it to be performed.” 

The new clause reflects the amendment made in the other place to ensure that a judge has clear discretion about where CMPs should be used. In examining the question, the court will want to focus on what is fair and effective for resolving the issues in the case before it, including examining what alternatives are available. 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, which might include whether both parties would consent to a CMP; the importance of the sensitive material to the issues in the case; and the existence of material, such as intercept material, that the law requires can only be dealt with in closed proceedings. 

One of the issues highlighted by my hon. Friend the Member for Cambridge was about which material would or would not be included. Material enclosed will only include sensitive material that previously would have been protected from open disclosure by PII, which I think is the point he was making; the practical impact is that nothing that is currently open would cease to be open. It is important to understand that and make the point again, because there has been supposition that, “Ah! Stuff that’s already out there will now be hidden behind closed doors.” That is absolutely not what is intended by the proposals in the Bill. 

I turn to some of the points highlighted by my hon. Friend the Member for New Forest East and the hon. Member for Hammersmith, in particular, the Wiley balancing test. I can see that it might be superficially attractive to seek to import into the decision as to whether there should be a CMP the same test used in PII. However, our judgment is that the test is not right in this context for a number of reasons. First, PII is simply not working to enable these cases to be tried effectively; if it were, we would not have introduced the Bill. In his evidence to the Joint Committee on Human Rights, Sir Daniel Bethlehem, QC said that 

“the current PII framework is not adequate, in my view, to the task of achieving a proper balance between justice and security.” 

Secondly, the Wiley balancing test is used in a very different context. In PII, the judge is considering whether to exclude the material. It is appropriate for him to balance the damage that would be caused by disclosure

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against the public interest in disclosure. In a CMP, the judge is being asked a very different question, which is essentially whether a CMP would be a fairer or more effective way of trying the case—whether to include, rather than exclude, the material from the proceedings. That is why we think it is right to give the court the discretion to consider a wide range of relevant factors to decide the right way of trying the case. We are consistent with the JCHR; once the court has discretion it can take account of the competing interests. 

I want to address the point about open justice, which I think was made on both sides of the Committee. Open justice is one aspect of fairness, but not the only one. The court must decide how to try the case fairly in the difficult and limited cases where there is material so sensitive that it cannot be openly discussed without threatening national security. Parliament is establishing the issue of principle that CMPs are the right way to try cases that hinge on those very difficult circumstances. 

In the al-Rawi judgment, that decision on principle is exactly what the courts urged us, as legislators, to take. It is our view that the court should focus on the right way to try the issues in the case before them, and not be asked to rule in each case on whether CMPs are inherently fair or unfair. I think we have reached a broad consensus on the principle and can all agree that there may be circumstances when CMPs are necessary. Judges have said that whether they should be used is a matter for Parliament to decide. In a further, more recent case—AHK v. the Home Office—the judge highlighted the injustice that could be caused to a claimant if a CMP was not available, and called on Parliament to provide a statutory solution. 

It is important to get things into proportion. Until 2011, CMPs occurred in a number of claims. Indeed, there were a number of cases where they were used by consent of the parties, including the case of Maya Evans, which could not have taken place without a CMP. The Supreme Court decided that it was for Parliament, not the courts, to decide whether CMPs should be available. 

We have also seen the forced settlement of the civil damages case brought by former Guantanamo Bay detainees, which meant that the public were denied an independent judgment on whether the allegations of torture and mistreatment had merit. There are serious problems that certainly merit this proportionate change. It is Parliament’s job to try to decide the issues of principle, and for the courts to focus on the right way to try the case before them. I am confident that the careful and anxious scrutiny of parliamentarians in both Houses is capable of arriving at a proportionate and measured decision on that principle. 

10.45 am 

My hon. Friend the Member for Cambridge highlighted a couple of points about habeas corpus, which I will address. Cases about a person’s release from detention in the UK will generally be in the context of a criminal cause or matter. CMPs apply only in civil proceedings and not in criminal cases, which is an important point to flag up. If someone is denied their liberty, I can only think that that would be a criminal circumstance. 

Were it technically possible for a civil case in the UK to be in some way captured within the framework, we would face the challenge that if there was sensitive

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material, it would be completely excluded. There is an argument that we should work on the basis that a CMP, if it could be applied in a civil case, would bring evidence in front of the judge to make that type of decision. That is an important point to understand. 

Mr Slaughter:  Will the Minister give way? 

James Brokenshire:  I will, because I know this issue touches on the hon. Gentleman’s next set of amendments. 

Mr Slaughter:  It does, and the debate on amendment 69 may well be shortened as a result. If I understand the Minister correctly, he is repeating what Lord Wallace said in the other place: if the principle of habeas corpus applied to a civil case—a case example was given in the other place—the Government would want to see a CMP applied. That is what the Minister is saying, is it not? The Minister is saying that there will be no exemption. 

James Brokenshire:  The point I am trying to make is that, first, the circumstances in which this issue would arise are very unlikely. Were there a case in which sensitive information was relevant, it would be appropriate for it to be considered within a CMP structure, so that the individual concerned could defend their case. 

It is important that the issue is properly understood. I wonder whether the hon. Gentleman will assert in his next set of amendments that the provision is in some way about applying some sort of secret justice. That would be fundamentally untrue. The provision applies only in civil cases, so I struggle to see how it could extend in that way. We need to understand that there could be some relevant evidence that is pertinent to a particular case. 

Mike Crockart:  I realise this is stretching things a little, but if there were such a case and the evidence existed, that evidence would most likely be held by the Government. How would a third party request a CMP in those circumstances, given the amendments? 

James Brokenshire:  We come back to the debate that we had previously about the court being able of its own motion to make a determination that a CMP should apply. In those hypothetical circumstances, no doubt the Government would seek to exclude the evidence from the case completely. The court, recognising the context, sensitivity and import of what was at issue, would be able to take a CMP in that context. 

I suppose we are back to the debate we have had on a few occasions during the Bill. We believe that the provision provides the equality of arms that is important to us and to my hon. Friends the Members for Edinburgh West and for Cambridge. The court will be able to call the evidence in, rather than saying that it could not be adduced completely and would be taken out in its entirety. Again, I underline that CMPs are about civil cases, not criminal cases. The hon. Gentleman would acknowledge and accept that only in the most unlikely circumstances would the issues arise other than in a criminal case. 

I shall move on and address another point made by the hon. the Member for Hammersmith. The Master of the Rolls said in March 2011 that the general principle

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of open justice can be set aside in narrowly defined circumstances, because open justice is subject to what Lord Haldane described in Scott v. Scott as the 

“yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done.”. 

The absence of CMPs could mean that substantial amounts of material, either in support of the claimant’s case or in support of the Government’s defence, were excluded from the court room. That is the key issue that we are seeking to think through and address in the amendments. The case would therefore need to be decided, if it could be in the absence of the material, with disclosure that could damage national security, or left undecided, with the Government forced into a financial settlement. Neither of those can be considered a just outcome; we want our courts to be able to get to the truth when serious allegations are made. 

The Government amendments reflect key recommendations made by the Joint Committee on Human Rights, as well as views expressed in the House of Lords that judges should have greater discretion about when a CMP should take place. The amendments will empower judges to ensure that CMPs are available in cases where they are needed, but only in those cases. 

I do not think that any member of the Committee would seriously disagree that proceedings should be fair and effective or that the courts should be concerned about the administration of justice. That is fundamentally the question that we seek to address. The hon. Member for Hammersmith was concerned that the test has no statutory pedigree. However, it is open to us to create new tests for what is, after all, a process for such proceedings. 

The hon. Gentleman and my hon. Friend the Member for Cambridge also had concerns about equality of arms and its application. The Government have accepted the change that the court be able to order a CMP as an alternative to granting a PII application, for example. That deals with the concern that the Executive could choose between PII and CMPs as and when it suited them. We have therefore suggested comprehensive application obligations. As a consequence, it is not possible for a party to make a formal declaration application and satisfy the application obligation set out in clause 6 if they did not hold the material. 

In such 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 amendment allows claimants to sidestep that process and ask the court to order a CMP of its own motion. My hon. Friend the Member for Cambridge said that it should be up to the court’s own motion in all circumstances. That takes account of neither the knowledge that the Government would have of the material that they held nor the responsibility that the Government hold around national security. There is a need for the Government to be able to seek to apply to the court in this way. 

Our judgment is that the counterparty would not be adversely affected, precisely because of the safeguard of the court’s being able to use its right, through its own motion, to order a CMP when it judges that that would be appropriate. 

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Dr Huppert:  The Minister has got to the key issue. Why could he not allow that route? He says that it would be very hard for an applicant to apply directly. What would be the disadvantage of allowing that in addition to the process of the court’s doing it through its own application? 

James Brokenshire:  We did not want to set up a test that the individual would not be able to satisfy. We felt it appropriate to make a provision whereby the court could order a CMP through its own motion—in essence, because of the equality of arms issue. If we had not put that point in, my hon. Friend would have a fair point in saying, “If the Government could apply, why shouldn’t a counterparty be able to apply?” 

I have explained the route through which we seek to address the equality of arms point. Ultimately, the court will see the material and will be able to make a judgment about whether to grant a PII claim, for example, or to order a CMP instead, if it is in the interests of the fair and effective determination of justice. 

Confidentiality rings, another of my hon. Friend’s points, are already available to the courts. While they work well in some cases, and should continue to be available in those cases, they are not the solution for the type of civil damages cases that have prompted the Bill. It could endanger national security to disclose sensitive material to a person who might be a threat to the safety of this country. If the claimant’s lawyer, but not the claimant, saw the sensitive material, there would still be a risk of inadvertent disclosure that could cause damage, and this limitation would not be possible in all cases in any event.

However, I recognise that there continues to be a role for confidentiality rings. They have operated effectively in practice in a number of circumstances, and in those cases there is no reason why they should not continue. When we have the most sensitive material, however, it is very difficult to see how confidentiality rings would provide assurance around the potential disclosure of that highly sensitive material—perhaps about sources, literally about operational activity. That is the genuine challenge around the application of confidentiality rings.

Dr Huppert:  To clarify, is the Minister saying that the intention of his amendment is specifically to prevent confidentiality rings from being used in those cases? Is that implicit in the change in the amendment? 

James Brokenshire:  I will respond directly, but David Anderson and Lord Carlile have both said that confidentiality rings are unsuitable for cases with highly sensitive material. However, they will remain available when they work—largely in cases where the person is already aware of the sensitive material in detail and the confidentiality ring would prevent the damage caused by further disclosure. 

There is a genuine challenge with highly sensitive material on sources and operational activity. Even the disclosure to a non-vetted lawyer could raise significant issues of national security. That is the challenge around the operation of confidentiality rings.

Mr Slaughter:  Does the Minister accept, then, that this is a significant change, although it was not flagged in his opening, nor, indeed, in the response to the Joint Committee? That is to say, this is about disclosure to

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anyone, rather than a specific disclosure, and therefore it is very likely that a much larger number of cases will be caught by the CMP process? 

James Brokenshire:  No, I do not accept that. We have already said very clearly that this process of CMPs is only for a specific and limited cadre of cases, which are non-justiciable now. I have made that point several times. 

The hon. Gentleman challenged me to read his contribution from last week; if he reads mine, he will see that I specifically referenced confidentiality rings. I said that they would not be suitable on all occasions, with some of the limitations and challenges that arise. 

Dr Huppert:  I am hoping to get absolute clarity from the Minister. Regardless of the pros and cons of confidentiality rings that he has set out, is the intention of the amendment to change the rules surrounding confidentiality rings from what they were in the Bill before the Government amendment? In other words, does he believe that the change in language has led to any change at all in the use of confidentiality rings? 

James Brokenshire:  The only way in which I can respond to my hon. Friend is to say that amendment 55 provides the test that the court would need to examine whether a CMP was appropriate. That is the trigger that we are looking at as to whether something would operate a CMP. If there are circumstances where a confidentiality ring is already working, it is difficult to see why a CMP application would have been made. 

11 am 

As I have already said, in terms of amendment 55, the factors that the court would consider—the tests that need to be satisfied—are whether a CMP would be in the interests of the fair and effective administration of justice. With those factors, the court will consider the alternative options available as part of its process. 

I say to my hon. Friend that there are circumstances where confidentiality rings will remain important, as they are utilised today. Equally, in a specific and limited cadre of cases, which cannot be dealt with appropriately by confidentiality rings because of the sensitivity of the material, it is appropriate to seek a CMP, to ensure that that evidence can be appropriately considered. At the moment, that evidence would simply be withdrawn, given PII or the case would be settled because, owing to its nature, it would not be safe to use it in a confidentiality ring. There is nothing in the amendments’ language that changes the position on confidentiality rings where they are appropriate. 

It is important to flag up those points and to recognise the challenges and limitations that exist, so I am grateful to my hon. Friend for his question and to the hon. Member for Hammersmith for his probing. We need to understand that confidentiality rings can be used, but there are limits to their usefulness in certain circumstances. 

Last Thursday and today, I spoke at length about why we think that it is not necessary to exhaust PII when it is obvious that a case is saturated in sensitive material. In his evidence to the Joint Committee, David Anderson said: 

Column number: 194 

“I do not go so far as to say that the judge should be obliged in all cases to exhaust PII before he comes to the possibility of a CMP, but the judge should be trusted to make the relevant decision.” 

We clearly state in clause 11(2)(b) that the CMP provisions do not affect the common law rules as to the withholding, on grounds of public interest immunity, of any material in any proceedings. I also believe that the Government amendments address 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 stress that the amendments tabled by the Government are a package of changes. We have been urged to rethink our approach and we have listened. There is, I judge, nothing between the Government and the Joint Committee on the principle of the issues and the amendments tabled reflect a fresh approach that takes account of the Joint Committee’s views. They will empower judges to ensure that CMPs are available in those cases where they are needed, but they will not be overused. 

Mr Slaughter  rose—  

James Brokenshire:  I give way to the hon. Gentleman for one last time. 

Mr Slaughter:  It is my last time; I will have one last try. The Minister has fallen into error in two respects. First, he has taken CMPs from being a last resort as envisaged by the other place and put them centre stage, or at least on an equal footing with other remedies. Then he has compounded that by putting into the language of his amendment—it is effectively a new clause—so many hints and prods towards the fact that the CMP will be not the last resort but the first resort, that he has completely overturned what their lordships were doing. I ask him, even at this late stage, to consider that he may be in error. 

James Brokenshire:  I absolutely reject the hon. Gentleman’s assertion. The judge will be able to grant a CMP only if one is in the interests of the fair and effective administration of justice in the case and there will be explicit powers to revoke a CMP at any point. I know he has tried to diss and downgrade the impact of new clause 5, but I underline what I said last week: it is an important and significant safeguard. 

The judge will continue to review the proceedings and will have a point at which they will have to reassess that, to make sure that, having viewed all the evidence, their initial analysis still holds good and fast. That provides an important safeguard by ensuring that there is a continual challenge to see that a CMP remains appropriate. The court will be able to grant an application for a CMP from any party, not just the Government, and it will be able to order one of its own motion. 

I trust that the Committee will support amendment 55, and the consequential amendments tabled by the Government, and will also support our new clause on formal reassessment at the end of the disclosure. I trust that hon. Members will withdraw their amendments to the contrary. 

Mr Slaughter:  I want to state where we stand in relation to the amendments to Government amendment 55. I do not agree with the Minister’s comments, and if we

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have the opportunity when the appropriate time comes, we will press our amendments (d) and (g), which contain the substance and which, as I have indicated, would simply restore the position in the Bill, should that change, to what it is at present and what it was when it left the other place. 

Amendments (a), (b) and (c) to Government amendment 55 are encompassed within our amendment. They give two nods to what the other place did, first on equality of arms and secondly on PII. To that extent, we support them and will do so, reluctantly, if they are pressed to a vote. I say “reluctantly” not because we do not agree with them but because they go only a small part of the way and because if they are passed, which I hope they will be in default of an alternative, we would not have the opportunity to press our fuller amendments. 

Even at this late stage, the Liberal Democrats may wish to stop and think, particularly given that they are on the horns of a dilemma: they are saying, on the one hand, that their policy is still, as per the motion at their party conference, to junk CMPs altogether but, on the other hand, that their amendments will not go as far as those passed by the House of Lords. An acceptable middle way—I know they always look for one of those—would be to support our amendments; at least that would give some integrity and coherence to their position. 

Dr Huppert:  I will press our amendments to Government amendment 55 to a Division, starting with amendment (a) and going on through the others; I am slightly confused as to the exact order, but I dare say the Clerks will know that. 

I have listened carefully to what has been said, and am concerned that the Minister’s intentions are in many cases not reflected in the legislation. 

Meg Hillier:  Will the hon. Gentleman give way? 

Dr Huppert:  I will finish what I am trying to say. The Minister has placed a lot of emphasis on the idea that the Government have accepted the principle of what the Joint Committee on Human Rights has said. That Committee will no doubt be publishing a report, and I accept that the Minister’s case will be bolstered significantly if the Joint Committee on Human Rights agrees with what he is saying, but he should reflect carefully on what he will do if that Committee, having looked at the amendments he is proposing and the state of the Bill when that Committee publishes a report, disagrees with him. 

I will, further, support any other amendments that take us in the direction of improved safeguards and towards the direction of the Joint Committee on Human Rights, including Government new clause 5. However, I would like to test the Committee’s opinion on amendment (a) to Government amendment 55. 

Amendment proposed to amendment 55: (a), leave out ‘(6)’ and insert (4)’.—(Dr Huppert.)  

Question p ut , That the amendment be made. 

The Committee divided: Ayes 9, Noes 10. 

Column number: 196 

Division No. 3 ]  


Alexander, Heidi   

Crockart, Mike   

Gilmore, Sheila   

Hillier, Meg   

Huppert, Dr Julian   

Johnson, Diana   

Murphy, rh Paul   

Phillipson, Bridget   

Slaughter, Mr Andy   


Brazier, Mr Julian   

Brokenshire, James   

Evans, Graham   

Evennett, Mr David   

Lewis, Dr Julian   

Neill, Robert   

Nokes, Caroline   

Paisley, Ian   

Scott, Mr Lee   

Wright, Jeremy   

Question accordingly negatived.  

Amendment proposed to amendment 55: (d), in new subsection (1B), leave out ‘two conditions are’ and insert ‘condition is’.—(Mr Slaughter.)  

Question put, That the amendment be made. 

The Committee divided: Ayes 9, Noes 10. 

Division No. 4 ]  


Alexander, Heidi   

Crockart, Mike   

Gilmore, Sheila   

Hillier, Meg   

Huppert, Dr Julian   

Johnson, Diana   

Murphy, rh Paul   

Phillipson, Bridget   

Slaughter, Mr Andy   


Brazier, Mr Julian   

Brokenshire, James   

Evans, Graham   

Evennett, Mr David   

Lewis, Dr Julian   

Neill, Robert   

Nokes, Caroline   

Paisley, Ian   

Scott, Mr Lee   

Wright, Jeremy   

Question accordingly negatived.  

Amendment proposed to amendment 55: (b) to Government amendment 55, leave out from ‘condition’ to ‘is’ in new subsection (1C).—(Dr Huppert.)  

Question put, That the amendment be made. 

The Committee divided: Ayes 9, Noes 10. 

Division No. 5 ]  


Alexander, Heidi   

Crockart, Mike   

Gilmore, Sheila   

Hillier, Meg   

Huppert, Dr Julian   

Johnson, Diana   

Murphy, rh Paul   

Phillipson, Bridget   

Slaughter, Mr Andy   


Brazier, Mr Julian   

Brokenshire, James   

Evans, Graham   

Evennett, Mr David   

Lewis, Dr Julian   

Neill, Robert   

Nokes, Caroline   

Paisley, Ian   

Scott, Mr Lee   

Slaughter, Mr Andy   

Wright, Jeremy   

Question accordingly negatived.  

Column number: 197 

Question put, That amendment 55 be made. 

The Committee divided: Ayes 10, Noes 9. 

Division No. 6 ]  


Brazier, Mr Julian   

Brokenshire, James   

Evans, Graham   

Evennett, Mr David   

Lewis, Dr Julian   

Neill, Robert   

Nokes, Caroline   

Paisley, Ian   

Scott, Mr Lee   

Wright, Jeremy   


Alexander, Heidi   

Crockart, Mike   

Gilmore, Sheila   

Hillier, Meg   

Huppert, Dr Julian   

Johnson, Diana   

Murphy, rh Paul   

Phillipson, Bridget   

Slaughter, Mr Andy   

Question accordingly agreed to.  

Amendments made: 56, in clause 6, page 5, line 12, leave out ‘the Secretary of State’ and insert ‘a person’. 

Amendment 57, in clause 6, page 5, line 15, after ‘section’, insert ‘or proceedings for or about such a declaration’. 

Amendment 58, in clause 6, page 5, line 18, leave out ‘the Secretary of State’ and insert ‘a person’. 

Amendment 59, in clause 6, page 5, line 19, leave out ‘(1)’ and insert ‘(1A)(a)’. 

Amendment 60, in clause 6, page 5, line 19, leave out ‘Secretary of State’s’ and insert ‘person’s’. 

Amendment 61, in clause 6, page 5, line 20, leave out ‘all of the parties’ and insert ‘every other person entitled to make such an application in relation’. 

Amendment 62, in clause 6, page 5, line 22, leave out ‘Secretary of State’ and insert ‘applicant’. 

Amendment 63, in clause 6, page 5, line 22, leave out from ‘inform’ to first ‘of’ in line 23 and insert ‘every other such person’.—(James Brokenshire.)  

Mr Slaughter:  I beg to move amendment 69, in clause 6, page 5, line 32, at end add 

‘except for proceedings which arise in connection with the claimant’s loss of liberty.’. 

As it has been previewed, I can be brief. It is intended to be a probing amendment and to a large extent I think it has been probed and answered. It is a matter which was discussed in their lordships’ House and, as befits that august place, references were made not only to Magna Carta, but also to Edward I and the first and most ancient uses of habeas corpus. 

Robert Neill:  Richard III? 

Mr Slaughter:  I see there are some supporters of Richard III, which is to the great credit of the Plantagenets amongst us, I am sure. When was it that the Welsh took over? I cannot remember. 

Paul Murphy:  We didn’t like Edward I. 

Column number: 198 

11.15 am 

Mr Slaughter:  I am not going to repeat those arguments, but they were principally put forward by Lord Thomas of Gresford in order to indicate what a sacred and ancient principle habeas corpus has been. It was not our intention to start cherry-picking different themes, as it were, to absent from the CMP process. When the matter was put in their lordships’ House, other police matters and civil actions against the police were also dealt with, and they are not replicated in this amendment. 

We have had a long debate on how CMPs should operate as an entry point. We are going to have another debate, I suspect, in substance this afternoon in relation to how evidence should be dealt with within the CMP. It is not our objective to prolong the clause 6 debate. However, on habeas corpus and what I accept from the Minister may be relatively rare cases—an example was given of how habeas corpus is a relevant matter in civil action by Lord Lester of Herne Hill, for the avoidance of doubt—I think the Minister accepts that it could be an issue in civil proceedings, perhaps to illustrate, as in that case, whether torture had been used, or whether evidence used against one party had been obtained by torture of another party who were subject to alternative proceedings. 

Habeas corpus relates to the liberty of the subject and relief from detention. If those matters are engaged, even in civil proceedings, it seems to us that that should not be subject to the CMP process. I have heard what the Minister has said, and I am sure he is going to reply briefly to the points that I have made. However, I think it will be useful to hear a few more comments from him, specifically in relation to why, on this issue in particular, he believes that CMPs are, or could be, an appropriate course of action. 

Dr Huppert:  I will be brief on this one, as that is the tenor of these debates, but the issue is of concern, which is why I raised it earlier. The principle should be about liberty. We were talking earlier about consistent principle and I was looking at the exchange during the initial statement on the Green Paper, when I started off by saying: 

“I am instinctively uncomfortable about keeping evidence secret from those in court cases”.

I then concluded by raising concerns about cases 

“in which somebody’s liberty might be at risk.”—[Official Report, 19 October 2011; Vol. 533, c. 909.] 

I have said very much the same thing since October 2011 and I would be grateful to get clarity, because there is an issue in civil cases about money, and there is a particular issue in cases where somebody’s liberty is at risk. 

The Minister was talking about the circumstances in which one might have civil habeas corpus. I believe he is right that habeas corpus mostly arises in criminal cases, but there are civil habeas corpus cases; the Ministry of Justice has an entire website dedicated to explaining how they work and in what circumstances. Lawyers will know the exact circumstances in which that happens. 

I hope the Minister will reflect very carefully on habeas corpus cases, because although we will test the principle of CMPs shortly, there is a special case when somebody’s liberty is at risk. It seems to me that nobody

Column number: 199 
should be locked up or deprived of their liberty for a case that they were not able to see. I felt the same way about control orders. I hope that the Minister will reflect on the matter. 

James Brokenshire:  I will always consider and reflect on all the debates and discussions that we have in Committee. As I have already highlighted, CMPs are restricted to civil cases, and therefore it is unlikely that a habeas corpus issue will arise. However, in the context of a habeas corpus case, we have to say that it is vital that the court be in possession of any relevant material before making a decision to issue a writ. Without all the relevant information, the court may not be able to come to the right conclusion. 

The amendment as drafted would mean that CMPs could not be used in any action seeking a person’s release from detention. Where such cases involve information that cannot be disclosed for reasons of national security, the amendment would not allow judges to reach a judgment based on all the facts. Claims relating to national security should be capable of being heard, rather than having material excluded by PII. 

I note that the hon. Member for Hammersmith said that this is a probing amendment, but it would have the effect of preventing CMPs from being used in some of the civil damages cases that prompted the Bill. An element of many of those cases relates to the loss of liberty of the claimant at some point, usually overseas, and the alleged involvement of the UK Government. 

To accept the amendment would mean that CMPs could not be used in the very cases for which we are introducing them. The other place confirmed that there are cases in which CMPs are necessary, as we heard in the previous debate. I therefore do not believe that this House will want to remove the possibility of CMPs being used at all. The amendment would have that effect for some of the cases for which they are needed. I note the points that have been made, but it is equally a question of ensuring that all appropriate evidence is provided. With those comments, I hope that the hon. Gentleman will withdraw his amendment.

Column number: 200 

Mr Slaughter:  I hear what the Minister said, and I am grateful for his slightly fuller account—we had only a sentence from Lord Wallace on this matter. I do not agree with the Minister. This is an important principle. However, we have debated fully the central principles relating to this issue, so I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Amendment made: 64, in clause 6, page 5, line 32, at end add— 

‘“sensitive material” means material the disclosure of which would be damaging to the interests of national security.’.—(James Brokenshire.)

The Chair:  We shall not trouble ourselves with the stand part debate because the clause has already been widely debated. 

Question put, That the clause, as amended, stand part of the Bill. 

The Committee divided: Ayes 10, Noes 9. 

Division No. 7 ]  


Brazier, Mr Julian   

Brokenshire, James   

Evans, Graham   

Evennett, Mr David   

Lewis, Dr Julian   

Neill, Robert   

Nokes, Caroline   

Paisley, Ian   

Scott, Mr Lee   

Wright, Jeremy   


Alexander, Heidi   

Crockart, Mike   

Gilmore, Sheila   

Hillier, Meg   

Huppert, Dr Julian   

Johnson, Diana   

Murphy, rh Paul   

Phillipson, Bridget   

Slaughter, Mr Andy   

Question accordingly agreed to.  

Clause 6, as amended, ordered to stand part of the Bill.  

Ordered, That further consideration be now adjourned. —(Mr David Evennett.)  

11.23 am 

Adjourned till this day at Two o’clock.  

Prepared 6th February 2013