Justice and Security Bill [Lords]
The Committee consisted of the following Members:
Steven Mark, Lloyd Owen, Committee Clerks
† attended the Committee
‘and that damage outweighs the public interest in the fair and open administration of justice,’.
I am sure all eyes will be on what is happening in Committee this afternoon. We had an interesting debate this morning. There were some interesting developments. Consequently, I had to go away and think about our approach to clause 7 over the short adjournment.
I had a naughty thought about whether the hon. Members for Cambridge and for Edinburgh West would have been quite so keen to vote in the way that they did this morning had the minor parties nominated an alternative to the Committee. I had the very great pleasure of serving with the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) on the Legal Aid, Sentencing and Punishment of Offenders Bill Committee. I know that he has an interest in this area and I was hoping at one stage to see him on the Committee. It is pure conjecture on my part, but he might have come to a different conclusion to the hon. Member for North Antrim.
Mr Slaughter: I quickly put that thought out of my mind. Because of the way the vote went this morning and with the Bill as it is, we are sadly left with the defective entry to CMPs and therefore more onus rests on what happens once a CMP is activated. Amendment 71 is short. It adds to clause 7(1)(c):
I believe that all parties agree on paper that if there must be recourse to CMPs, only the material that is necessary for reasons of national security should remain secret and within the closed part of the proceedings. All parties would also state the corollary, which is that material should be permitted the greatest exposure to open scrutiny consistent with maintaining national security. I think that that is the position of all hon. Members. It is certainly the position of those on the Front Benches. I will be corrected if I am wrong.
“It is also important to remember that the process does not end with the court's declaration that a CMP may be used. It is, as has been described in our previous debates, a gateway. Stage 2, set out in Clause 7, is a process whereby the special advocate can then challenge individual documents as to whether they should go into open or closed proceedings, and this is done successfully.”—[Official Report, House of Lords, 21 November 2012; Vol. 740, c. 1855.]
I set out in the previous debate the Wiley test, which is what this is, and the flexibility that PII has shown over time when confronting the need to balance national security and the public interest in the fair and open administration of justice. The amendment re-inserts the Wiley test into proceedings.
The House of Lords overwhelmingly supported the Wiley test as a gateway to entry into CMPs. In a sitting of the full House, the Wiley test—as endorsed by the Joint Committee on Human Rights—was approved as an essential criterion for entry to CMPs, in a vote in which the Government were defeated by 247 votes to 160. The proposal was supported by no fewer than 54 Liberal Democrat peers. The fact that a vote on inserting exactly the same words into clause 7 did not succeed might be explained by the sitting hours and the habits of their Lordships, because a much reduced House took that vote. My point, as Lord Pannick said when he moved the amendment, is that if one accepts the Wiley balance in relation to entry into CMP, it is entirely logical that one should accept it within the CMP. Such anomalies sometimes occur in democratic proceedings.
“The Wiley balance used in PII claims is for a specific purpose in a specific context. The result of a PII claim is that relevant material is excluded from the court and from consideration completely. A decision to do that must therefore carefully balance national security against the public interest in the fair and open administration of justice.
A balance of fairness and open justice on one side and national security on the other works in PII where the question is about excluding material entirely, and the impact that could have on the proceedings. But CMPs are different—the material within the CMP is fully taken into account: the interests of the individual are represented by Special Advocates, with the judge overseeing the process to ensure proceedings are fair in Article 6 terms.”
If that is the Government’s position, why should we have the Wiley test in clause 7? I will keep this quote short, but I see no point in rendering into my own
“Amendments 36 and 47 seek to ensure that, before ordering a CMP, the judge should ask whether the degree of harm to the interests of national security if the material is disclosed outweighs the public interest in the fair and open administration of justice. The Joint Committee stated in its report, at paragraphs 69 to 72, that the Bill as currently drafted wrongly precludes any balancing at all, however limited the national security interest may be, however substantial the damage to fairness if a CMP is ordered and, indeed, however peripheral the national security evidence may be to the issues in the case. That cannot be right; we need some degree of balancing here. I emphasise that the effect of these amendments, if approved, would not be that any evidence touching on national security would have to be disclosed—PII would prevent that—but simply that the judge could not order a closed hearing unless this balance is satisfied and the Government would therefore be unable to rely on the evidence.”
I expect that we will have a debate similar to the one we have already had about whether excluding evidence is fairer than relying on evidence in closed material procedures, but I will not anticipate the Minister’s comments. The important thing to recognise is that clause 7(1)(c) significantly inhibits a judge’s powers. It states that rules of court must secure
It does not take into account any variation in the relative strength of national security interests and other interests that are at stake. It is a considerable restriction on the usual power of the court under PII, in that disclosure may be ordered where the interests of justice outweigh those of national security. In the Committee debate, Lord Falconer made the same point. He said:
“Clause 7(1)(c) makes provision for rules of court and states that, ‘the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security’. Once even the most minor damage to national security is established, the door comes down and you do not disclose.
I cannot believe that that is what the Government intend in relation to this. They do not even include in the provision anything along the lines of ‘Before you do that, think very carefully about whether the problem can be avoided by any one of the many means currently used.’”—[Official Report, House of Lords, 11 July 2012; Vol. 738, c. 1196.]
“There may be cases that are better tried by using PII, such as those where the sensitive material is peripheral to the case. Clause 11(2)(b) makes it clear that PII will remain available as a tool.”––[Official Report, Justice and Security Public Bill Committee, 31 January 2013; c. 131.]
PII remaining available as a tool is not, in essence, what the Wiley balance is about. In fact, the effect of clause 7(1)(c), if amended, will be to deny the opportunity to use PII as a tool. Once the procedure has been entered, and the threshold is low as we have discussed, PII is not available as the court is not permitted to undertake the Wiley balancing exercise.
Against that background, there are five points to make. I will take this reasonably slowly, but I give comfort to the Committee that this will be the last very substantive amendment that we wish to debate; there are matters on other parts of clause 7 to do with gisting, which I know that the hon. Member for Cambridge wishes to raise, as do I, but we will begin to find the burden lightening somewhat as we go through. This, however, is a crucial amendment. Although it was not passed in the House of Lords, it should have been, and it would have been, I fondly believe, if it had been taken at another time of day. I am sure that the hon. Member for Edinburgh West will agree that it is part of that package that his Committee, the Joint Committee on Human Rights, looked at when deciding on the necessary safeguards to CMP processes.
As I said, I have five points. First, the Wiley test provides an opportunity for the court to consider the public interest in the fair and open administration of justice in a way that the Bill, as drafted, fails to do. The Government’s current version of the Bill relies on the untested and narrow fair and effective administration of justice and proceedings test for both entry into the CMP in clause 6 and exit from it in new clause 5. I set out previously several reasons why the Government’s proposed fair and effective administration of justice and proceedings test is inadequate and I do not think that, with all due respect to the Minister, when they question was put to him again by the hon. Member for Cambridge this morning, he did any better at satisfying our concerns on that; he clearly did not and the vote records that.
For those purposes, the problem with the test, untested though it is, is that it appears to narrow consideration of the important issues in question so that, first, the interests of justice hold no weight against any consideration of national security, notwithstanding that the PII procedure poses no risk to national security. Secondly, the public’s interest in open justice is not taken into account; it seems that the judge is, instead, required to consider efficacy of proceedings in place of openness. Thirdly, the scope of the judge’s inquiry is into the fairness of proceedings, rather than justice in the round.
There is a central fallacy in the Government’s assertion that their new test adequately replaces the necessity for the safeguards of the Wiley test. That is because they rely on the fact that the material within the CMP is fully taken into account; the interests of the individual are represented by special advocates, with the judge overseeing the process to ensure that proceedings are fair in article 6 terms. That is not the case; previously, I spoke at length regarding the flaws inherent in the special advocate system and I point the Committee again to paragraph 36 of Lord Dyson’s judgment in al-Rawi. Indeed, when we come to clause 8, we will look at why the current procedures, in relation to special advocates, are inadequate.
Secondly, the Wiley test narrows the potential use of CMPs once the proceeding has started. I have explained that the Government’s new amendment would widen the application of CMPs considerably, in a way that has not transparently been acknowledged, to circumstances where their use is not as a last resort. I might come back to that. The use of the balancing exercise within the procedure is all the more important where the Government propose to create a low barrier to entry in that procedure.
Thirdly, the Wiley test allows the court to respond flexibly within the CMP to the material before it. In doing so, it unfetters the judge, who, once within the CMP, would otherwise be required by clause 7(1)(c), unamended, to permit the withholding of any national security material, no matter how trivial or what other important interests were at stake. Courts are well-versed in the Wiley balance and it has a proven track record of safety. Indeed, the Government said that they anticipated that the Bill’s previous incarnation would preserve the flexibility inherent in PII. On page 3 of their July 2012 response to the Lords Constitution Committee, the Government stated that entry to the CMP is tight. They further said that within the CMP, the judge can adapt the case in the same way as under PII. They said:
“It is important to emphasise that, in reality, the Bill contemplates a two-stage test to any application for a CMP. The result is that CMPs are available in tightly defined circumstances in which the judge is given the final say over the use of a CMP and a similar level of flexibility to that available to a judge under PII.”—[Official Report, House of Lords, 17 July 2012; Vol. 739, c. 175.]
Robert Neill (Bromley and Chislehurst) (Con): I have been following the hon. Gentleman’s argument closely. I agree with him that judges are well versed in the application of the Wiley test, but is not the effect of his amendment, in seeking to import the test into this particular set of circumstances, to make judges do something that they have previously not had to do, which is, in effect, to come to an assessment of national security? How else can they work out what degree of national security might be damaged so as to offset that against the other interests in the case? Is that not essentially something that we regard as the responsibility of Government, and is it realistic or sensible? By what mechanism, realistically, can a judge make that sort of assessment?
Mr Slaughter: That is exactly what judges do when they apply the Wiley test now, which is why I began last Thursday by posing a question to hon. Members, which was effectively posed again by the hon. Member for Edinburgh West: can anybody think of an example of where judicial discretion has been used to put national security material into the public arena? Nobody could. Judges make that assessment. We rely on our judiciary to act fairly, considering matters in the round, by invoking their inherent discretion. I suspect that some people, although not I, would say that our judges are quite deferential towards the security services and the Government, and tend to give them the benefit of the doubt. A better way of putting that might be that they uphold national security. They not only can adjudicate; they can exactly summate what the role of national security should be.
Robert Neill: I am grateful to the hon. Gentleman; he is being very courteous. Perhaps I did not make it as clear as I could have done. Is it not the reality that here, because there is a second-stage test, as he said, the judge will have responsibility to ensure that article 6 rights under the convention are guaranteed? There are important protections there. It is an important guarantee, and there is a duty to keep the matter under review. What is added in those circumstances that could not be achieved by the Government’s current formulation?
Mr Slaughter: Quite a lot. First, article 6 rights might not go far enough, as we discussed last week in relation to what common law requires. Secondly, given the state of the Bill at the moment—this is a point of contention rather than agreement—we have broad access to the CMP process, and therefore, I submit, it is more important that there be balance within the CMP.
My third point is on—I think I am coming on to the hon. Gentleman’s question, so I will read on and, if I have not answered it, I will come back at the end—the difference between the actual exercise of discretion that the Wiley balance gives in the CMP and the faux exercise of discretion that new clause 5 gives. I will come back to that in a moment. [ Interruption. ] The Minister is sighing deeply, but I am not sure how that is recorded by Hansard.
My fourth point is that the insertion of the Wiley test in clause 7 may even give effect to some of the Government’s stated aims for the Bill. The way that that can be achieved is by providing that the measures are a last resort and that the judge is not fettered in his discretion. In that regard, it is notable that the Government’s new clause 5 provides only for the continuation or termination of the CMP on review by the judge. The Wiley balancing exercise provides an opportunity to treat each document flexibly in the appropriate way. That is essentially the point that I am making.
“There may be cases that are better tried by using PII, such as those where the sensitive material is peripheral to the case. Clause 11(2)(b) makes it clear that PII will remain available as a tool.”––[Official Report, Justice and Security Public Bill Committee, 31 January 2013; c. 131.]
The effect of an amended clause 7(1)(c) is, however, that once a declaration is made, any material cannot be processed using the usual PII tool. The inclusion of the Wiley balance with the CMP permits the ongoing processing of such documentation. It seems that the effect of clause 7(1)(c) is to deny the use of PII in ongoing CMP cases where it may be a better way of trying the case.
Finally, let me be clear again that the inclusion of the Wiley test in clause 7 in no way implicates a risk to national security through the release of any of the materials in question. The Bill provides the mechanism under which material may be treated and neither the Bill nor PII prevents a risk of dangerous disclosure of such information. The JCHR recommended that the Wiley balance form an integral part of any CMP procedure:
“In our view, whether or not closed material procedures are introduced into civil proceedings, there should always be full judicial balancing of the public interests in play, both when deciding the appropriate procedure and when deciding whether a particular piece of evidence should or should not be disclosed.”
As set out above, the inclusion of the Wiley balancing exercise within any CMP improves opportunities for genuine judicial discretion, permits flexibility, moderates the weakness of the current entry test into CMPs, which incorporates an unusual test in place of the last resort and Wiley balancing exercise endorsed by the other place, retains elements of PII as a useful tool and poses no risk to national security. Without the amendment, the court would be obliged to see the material in a CMP and block any disclosure to the other party. There would be no discretion. That would be the case even if the damage to national security by disclosure would be tiny and the public interest in disclosure was utterly overwhelming.
The amendments to clause 6 that the Committee has approved, with our dissent, would give the Bill a very inflexible attitude within the CMP. There is in existing clause 7(1)(c) no room for mitigation. It states that
There is no balancing test. As I said when we debated clause 6, I am sure in my own mind that new clause 5 has been introduced to act as a fig leaf in relation to what would otherwise be a draconian process.
What is lost by agreeing with the recommendation of the JCHR that the Wiley balance should apply within the CMP? The Minister, through his redrafting of clause 6, has what he wants in terms of the CMP coming into effect. As the case goes forward and evidence is presented, the judge may proactively use the Wiley balance to assess whether pieces of information should remain within the CMP. If the Government believe their own rhetoric that CMPs are not desirable and where possible need not be used, that applies not only to cases as a whole, but within a case.
Points were made this morning about reputational damage. Such damage goes both ways. Yes, matters that are embarrassing to the security services or the Government may come out if CMPs are not imposed, but if matters are kept secret when that is not necessary, the reputation not only of our security services and Government but our courts, which are held in the highest esteem, will quickly suffer.
Dr Huppert: It is a pleasure, Mr Gray, to speak briefly on this important proposal, which had the tragedy of being the only one of the Joint Committee on Human Rights amendments put to a vote in the Lords that was lost, by 123 votes to 87. As the hon. Gentleman said, it was a great shame that so many Labour peers went home instead of voting on it. I hope that if the matter goes back to the House of Lords, they will stay and vote on it. It is good to hear agreement, and the Liberal Democrats were the largest block of votes in favour of the amendment in the other place. We were consistent with our principles. I am pleased that Labour Members supported the calls of my hon. Friend the Member for Edinburgh West and me for a vote on clause 6 stand part, which they did not do in the other place.
I shall return to amendment 71 before I am told off. It is an important principle that we need consideration as we go through, because otherwise the Minister’s aim and intention could be at risk. He said that he does not want anything that would currently be open to be closed, but if a process in PII involving redaction and so
I will support the proposal, but there is an interesting side point. Now that we have agreed, on a previous clause, a different test, the test should, for consistency, probably be the same. I agree with the hon. Member for Hammersmith that the Wiley balancing test is better understood, but I did not quite follow the details of the Minister’s response about the exact differences between his proposed new test and the test in the clause. I support the proposed test on the basis that it is the one that I would like to see, but I suspect that if we do not make progress on clause 6, some adjustment may be necessary. However, I am pleased that we will try again to make the case that within the CMP we still need judicial balancing. I hope that the Minister will accept that, and make a move towards greater judicial balancing throughout the process.
Paul Murphy (Torfaen) (Lab): I do not know who went home from the House of Lords that night. All I know is that this is a coalition Government. I assume—but I could be wrong; perhaps I am old-fashioned in these views—that Liberal Democrat and Conservative peers would have stayed in order to support their Government. Perhaps I am wrong in all that; perhaps things have changed over the years. I am not a lawyer, even though this morning the hon. Member for Canterbury gave me the status of QC. I am an old-fashioned Welsh history teacher, but even a history teacher can look at amendments and realise that they are not always about the law. Even though we are making the law, we are nevertheless a body of politicians.
The amendment moved by my hon. Friend is a very sensible one. It says that at the end of clause 7(1)(c), after the words
It strikes me that the Minister would have been advised by his advisers, as I used to be by mine, that this is a redundant addition. In terms of parliamentary counsel, and in strict legal terms, it probably is not necessary, because it would be argued that the mention of national security is sufficient in itself to define what that is. Sometimes, however, we have to give reassurance. People who do not like the Bill have put forward the problem that Government—not always, but sometimes—in their definition of what national security is, effectively try to be benign, or over-cautious, while being malign in not having discussed the political considerations in the public domain, using “national interest” as the cover.
In the Intelligence and Security Committee, where we were dealing with what should or should not be redacted in reports the Committee puts into the public domain, the debate always centred on the national security issue. Will what is printed on the page damage our national
The purpose of the amendment is to ensure that that does not occur; that what goes before special procedures in the courts is genuinely in the national security interest, and not in the political interest. Inevitably, Government advisers and the security services are cautious. That is a good thing, but sometimes that caution can be seen by people outside as a cover-up and that is what we are trying to avoid with the amendment. Even though technically it may be a superfluous and redundant addition to the clause, when the Minister answers he has to persuade us why, if it is not to be accepted, national security in the strictest sense is all that is required.
I am doubtful. I think that the amendment would give people reassurance. Even though it may not be technically and legally perfect, it gives the political message outside that national security means exactly what it is.
The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire): First, I underline what I said earlier today. The practical impact of the Bill is that nothing that is currently in open proceedings will move to closed proceedings. We have a number of different situations where closed material proceedings already operate. I know that a number of those have been enunciated in this Committee already. To my knowledge, none of them has this type of balancing test applied as part of the detailed analysis of individual pieces of evidence, as to whether they should go into open or closed. What happens is that the special advocates do an extremely effective job, challenging, cross-examining and ensuring that items that should be enclosed are there, but that those that should not are put into open. They will push for summaries of the closed material to be provided, for material to redacted and for material to be disclosed if necessary for the proceedings to comply with article 6.
There has been some commentary during the debate that effectively would talk down the impact of special advocates and what I regard as the important and effective work that they do. I give one quote from Lord Wolff, in the case of M v. SSHD, where Lord Wolff said:
“Having read the transcripts, we are impressed by the openness and fairness with which the issues in the closed session were dealt with by those who were responsible for the evidence given before SIAC…We feel the case has additional importance because it does clearly demonstrate that, while the procedures which SIAC have to adopt are not ideal, it is possible by using special advocates to ensure that those detained can achieve justice and it is wrong therefore to undervalue the SIAC appeal process.”
Checks and balances clearly exist in the CMP procedures that are already in effect, so I find it quite interesting to hear the official Opposition, who were no doubt strong proponents of the whole approach and structure of CMPs to date, taking a markedly different approach from the one they took only a short time ago on how to ensure that CMPs operate effectively and appropriately, and in the interests of justice as upheld by the courts.
Mr Slaughter: I agree with everything the Minister has said about special advocates, and I do not know anybody on either side of the argument who has not said that they do a very good job. However, I remind him of the Lord Bingham quote that even a special advocate with access to material is effectively:
It is not the capacity or quality of the special advocate—on the contrary, we know they are the most excellent lawyers in their field—it is the procedure. The Minister cannot get round his problems by relying on the competence of special advocates.
James Brokenshire: The point that I make to the hon. Gentleman is that the whole CMP process in different arenas has been upheld as fair, and that the contributions that the special advocates bring to the process put information from closed into open. There are plenty of examples where that has been the case, and effectiveness has been provided through that mechanism.
Again, it is interesting that none of these issues was raised by the Opposition when they were considering the detail of their proposals in relation to CMPs; yet we are here today and they are taking a contrary view to the consistent approach that they have taken previously. It is interesting that they voted against CMPs being available for civil cases under the Bill by their vote before the luncheon break. It is interesting to hear how the Opposition are changing their position in respect of CMPs.
Paul Murphy: I do not think that there is anything hugely dramatic about this. The Minister is saying that the current process is satisfactory, and I do not disagree, but he must accept that opposition to the current Bill is based on the fact that people do not have sufficient assurance that national security itself is the only issue that has to be taken into account. That is the whole purpose, as my hon. Friend the Member for Hammersmith said. What is to be lost by accepting the amendment?
James Brokenshire: The point that I would make to the right hon. Gentleman is that as part of the reforms to clause 6 that the Committee voted for this morning, that focus on national security has been provided, through the judge and through the initial gateway. We then move on through clause 7, which is consistent with CMP-type processes in other spheres that some might argue are more intrusive and of significant import, in terms of whether someone should be deported through the Special Immigration Appeals Commission. They do not have the balancing test, yet they have been held up by the courts as providing a fair process, where information can be transferred from closed to open if the special advocates make that case and argue it before the court.
There are additional safeguards. The hon. Member for Hammersmith said that PII cannot apply once we have gone through the gateway and, in essence, clause 7(1)(c)—as I think he was highlighting—said that in some way, PII was therefore not applicable and not available at that point. That is not the case, as we have highlighted through a reference to the residual position under clause 11 of PII remaining available. I appreciate that the hon. Gentleman does not place value on the following point, but I think others in the Committee do, and I recognise that he tabled the amendment without sight of new clause 5: the judge, having gone through the process of assessing what should go into open and into closed, with the assistance of the special advocates, has the opportunity to consider whether a CMP remains appropriate in the circumstances. That is very important, notwithstanding the chiding from the hon. Gentleman.
Equally, the application of the Wiley balancing test is for a specific purpose in a specific context. The result of a PII claim is that material is excluded from the court and from consideration completely. A decision to do that must, therefore, carefully balance national security against public interest in the fair and open administration of justice. If the hon. Gentleman is saying that somehow more information that is national security-sensitive would be disclosed, in those circumstances, either the Government or the party that relies on the information would effectively withdraw the evidence and seek to withdraw their case, or they may even settle the case. Saying that PII is the solution to all our problems is almost an attempt to go back to our previous debate, when I think the Committee agreed that it is not. Although I appreciate the desire to try to interject PII approaches back into this stage of the procedure, I am not simply saying that the proposals are unnecessary; there are additional checks, balances and safeguards that are well understood from existing CMP processes. A structure has been tried and tested, and as part of the provisions under the Bill, there is an additional step and check before we move on to considering the relative merits and arguments of the case, by virtue of the proposal in new clause 5.
The amendment is counter-productive and it is not necessary. There is discretion is in the existing structures and process, and through the mechanisms in relation to new clause 5. I recognise and appreciate the desire of my hon. Friends and the Joint Committee; I respect that, and I do not want to suggest otherwise, but the structure of the clauses, including new clause 5, provides safeguards. With the approach on the trigger being court-based, rather than as before, from the Secretary of State—as we debated previously—a different structure is now in place. I recognise the changes that have been made as a consequence of the input from Liberal Democrat Members, the Joint Committee, and the words of the Lords in the other place. Changes have been made to the Bill to give that assurance and deal with some of the points the right hon. Member for Torfaen rightly highlighted about how powers will be used under the Bill.
A package and a structure have been created, and although I recognise the motivation behind the proposal, it was defeated in the other place, and that was the right decision. I urge the Committee to reflect on the decision taken in the other place, acknowledging the fair points that have been made. The Bill gives assurance, so I urge the hon. Member for Hammersmith to withdraw the amendment.
Mr Slaughter: With your forbearance, Mr Gray, I would like to press the amendment to a vote. Before I do, I should like to take a few more moments to try, for the last time, to persuade the Minister that he is wrong in his approach. I know that he has decided and that he is on the tramlines in relation to how he approaches CMP through clause 6. The effect of that, plus clause 7 as currently drafted, is so fettering of judicial discretion as not to honour the promises made by the Minister without Portfolio on Second Reading. I want to look again at the effect of importing the Wiley balance into clause 7.
It was the considered opinion of the JCHR that the Bill should be amended to ensure that a CMP is only permitted as a last resort; we really are talking about last resorts here. That amendment, in the names of Lord Pannick, Lord Lester, Baroness Berridge and Lord Beecham, was not resisted by the Government. I appreciate that that was following large defeats.
The Government seem to be saying many of the right things on last resort and natural justice, but their rhetoric does not match the terms of the Bill, particularly in relation to this clause, which leaves no leeway. The Government have stated on a number of occasions that the Bill is intended as a back-stop only where cases would otherwise fail.
“In the limited number of cases where there is highly relevant material which it would be damaging to national security to hear in open court, the choice is not between open justice or closed justice. It is a choice between justice through a closed material procedure or no justice at all.”
“The first test is upon application by the Secretary of State to the judge for a CMP based on the existence of material, the disclosure of which would damage the interests of national security. The only circumstance in which the judge can grant this application is where disclosure into open session of material relevant to the case would damage those interests.”
“When the Secretary of State makes an application whereby a CMP might be used, the judge needs to be satisfied of two things: first, that there is material that a party would normally be required to disclose; and, secondly and significantly, that disclosure of that material would damage national security. That is not a fig leaf, as some have described it. The judge will have the final say about whether or not those conditions are satisfied. The Secretary of State has to demonstrate that genuine damage to national security, not embarrassment, would be caused by the material being disclosed publicly; and if the judge disagrees with that assessment, he could refuse to order a CMP. Equally, if he considered that the material was not relevant to the facts of the case and the Secretary of State was therefore seeking a CMP where one was not necessary to protect material that was relevant to the case, he could refuse to order one on that basis, too. This is a significant role for the judge.”—[Official Report, House of Lords, 21 November 2012; Vol. 740, c. 1855.]
“The Government has never claimed that Closed Material Procedures are ideal, but in very difficult and exceptional circumstances where national security is at stake, they offer a means to deliver justice where otherwise there would be none.”
“In the vast majority of civil claims, CMPs have no part to play whatsoever. However, in the tiny number of cases that hinge on sensitive national security material, it is inevitable that without a CMP the case cannot be heard. Our intention is that CMPs should be used only in the small number of cases where they are in the interests of the fair and effective administration of justice in the proceedings.”
Finally, in last week’s Government document in response to the JCHR recommendation that CMP should be a last resort only when the court is satisfied that a fair determination of the issues in the proceedings is not possible by other means, the Government said:
“The Government recognises the strength of feeling regarding the wish to ensure that CMPs in civil cases are a last resort. It is our position that in the vast majority of civil claims CMPs have no part to play whatsoever. In the tiny number of cases that hinge on sensitive national security material it is, however, inevitable that without a CMP the case cannot be heard. Our intention in legislating is that CMPs would only be used in the small number of cases where they are necessary in the interests of the fair and effective administration of justice in the proceedings…We are committed to ensuring CMPs are only available in those cases where they are necessary. The introduction of a much clearer discretion for the judge that CMPs should only be used when they are in the interests of the fair and effective administration of justice in the proceedings will go a long way towards achieving that aim.”
It might be reasonable to summarise from those statements, made throughout the Bill’s consideration, that its intention is to provide for CMPs as a last resort only when realising that other options threaten national security. After the acceptance of the Government’s amendment 55, would the Bill limit CMPs to only a tiny number of cases, when the risk to national security is such that there are no alternatives?
Unfortunately, the answer is, “No, it would not.” That is not just because the Government rejected the Wiley balance test for entering the procedure nor was it only because they would not adopt the last resort test in relation to clause 6. Both tests were endorsed by the law and were established by an important role limiting the use of procedure to “necessary only” issues.
The Chair: Order. “Erskine May” enjoins us to use as few quotes as we possibly can. The hon. Gentleman has used a fairly extensive selection of them, so it might be sensible if he moved towards winding up his speech and saying whether he wished to press the amendment to a Division, rather than quoting further.
Mr Slaughter: I will, Mr Gray. The purpose of those short quotes was to establish what the Government have said consistently over time and with which we have relatively little to disagree. However, they have now fettered the courts’ hands in relation to clause 6. We are now asking for there not to be a similar—in fact, more onerous—process in relation to fettering under clause 7.
There are many ways to examine material in the CMP, and they will be known to the Minister. They will not just be confidentiality agreements. They might be holding part of the hearing in camera; requiring an express undertaking in confidentiality from those to whom documents are disclosed; restricting the number of copies of a document that could be taken for the circumstances in which documents could be inspected; or requiring the unique numbering of any copy of the sensitive document. Those are matters to which both the noble Lord Pannick and the independent reviewer of terrorism turned their minds.
We will shortly discuss gisting, a principal such measure. Having a review process within the CMP opens the door to all the alternative routes whereby the Government, while maintaining the CMP, can go outside the CMP when it is possible to do so.
If the quotations that I have cited truly reflect the Government’s view that they wish to restrict the CMPs as far as possible because they do not see them as ideal or fair, notwithstanding their approach to clause 6, they have the opportunity by accepting the amendment to fulfil that obligation under clause 7. That would be both a token of good faith by the Government that they really do intend that CMPs are used only when necessary and it would deal effectively with the points that have been made about reputational damage, because the Government will say at all stages that they are doing everything they can to put matters into the open or to use alternatives to the unfair processes of CMPs.
James Brokenshire: I want to confirm to the hon. Gentleman that, to take on board the comment of his right hon. Friend the Member for Torfaen, national security is the only thing at stake. CMPs can take place only within relevant civil proceedings—where there is the potential for disclosure of sensitive material. As the hon. Gentleman will know from our previous debate, our focus with regard to that is very heavily on national security. That is part of the process. Although we may disagree about the import of this measure, I hope he will at least acknowledge that it is tied in that way, and that there has been a change in that regard since the Bill started off in the House of Lords.
Mr Slaughter: Absolutely. I am responding to what the hon. Member for Canterbury said this morning. He asked why the Opposition—he could have asked the same question about the Liberal Democrats—were talking about the law and then talking about limitations.
I cannot speak for the Liberal Democrats after our debate this morning, but I can speak for the Opposition: having accepted the principle of CMPs, but only in a very narrow and confined space, of course we are going to spend our time defining how narrow that space should be. That does not apply only to CMPs being actioned in the first place; it applies to how they are dealt with.
For the life of me, I cannot see why the Minister is so resistant to having a process of review—not the one in his new clause 5, which is both otiose and clumsy, but a proper process of review that the courts understand and follow through.
When my right hon. Friend the Member for Torfaen rose to question the hon. Member for Cambridge a moment ago, I thought he was going to make again the point he made before. I believe that the point at issue was whether the Opposition have been consistent on this issue. Yes, we have, and Members can follow what we have said throughout this process. I would point out two inconsistencies—first, between what the Government say and what they do, and secondly between the two parties in the Government. How are we supposed to deal with the messages coming from the Government in that way?
I appreciate that we will have to wait until, perhaps, Report and Third Reading to see whether the intention of the Liberal Democrats is carried through in a forum where they might actually win a vote, but that is an issue for another day. For the present, I ask the Minister to look very carefully at amendment 71 and to accede to it, as at least a nod towards the process that the Government claim they wish to uphold.
‘sufficient to enable the party to whom the summary is provided to give effective instructions on the undisclosed material to their legal representatives and special advocates.’.
‘so far as it is possible to do so’.
Dr Huppert: It is a pleasure to get on to these amendments, which were tabled some time before Christmas. I am sure that the Government have had considerable time to consider them; we believe in trying to provide information about what we are trying to do. The amendments deal entirely with gisting.
We have now reached the stage where we are in a CMP, and the question is, how much information should one party to the proceedings be given? The amendments
The gisting obligation is agreed with generally. The former reviewer of terrorism legislation, Lord Carlile of Berriew, with whom I do not always agree on every single issue, expressly agreed in oral evidence that the disclosure obligation should apply to all proceedings and that there was no respectable argument against it in any circumstance. The noble Lord generally believes that any argument that disagrees with him is not respectable, but on this occasion I agree with him. I agree, further, with the current independent reviewer, who also talked about its great importance:
The JCHR, which was looking at all that, agreed with the recommendation, if there is to be a power to hold CMP. That is where we are in our debate. There should be a statutory requirement in all cases to provide the excluded party with the gist of the closed material, sufficient to enable them to give effective instructions to the special advocate. Without the obligation, there are issues about unfairness and whether someone can realistically provide the information for the special advocate to do the correct testing within a CMP process.
Those are the arguments. The current draft of the Bill does not have the requirement, merely permission: the courts may require the gisting. Amendment 1, therefore, would change that so that the court has to require gisting. At the simplest level, it is stating that there should be no circumstance in which absolutely no information about the CMP is provided. I had an interesting conversation with the Minister without Portfolio, who is in charge of the Bill, looking for cases where, in the interests of national security, no information whatever could be given. We were unable to come up with any case about which nothing could be said, bearing in mind, of course, that any party knows a CMP is in process—they would know that there was some intelligence information—and it is hard to see how not a single word could be said to the party. That is the intent of the lead amendment.
The second amendment is a step further, the next step down the chain, which is to say that not only must there be some information but, as required by the Supreme Court in AF (No. 3), it has to be enough so that effective instruction can be given to the special advocate. The provision would not involve the special advocate divulging any national security information—the process has been tried and tested in other cases—but it would
Meg Hillier (Hackney South and Shoreditch) (Lab/Co-op): The hon. Gentleman makes a fair point if we were talking about the issue in the normal course of the law. In this case, however, how can we define what information could be given to the defendant to instruct the special advocate that would not also release security information? The difficulty of defining that is a huge challenge. The hon. Gentleman is, as ever, erudite in his ambition, but we are dealing with the practical reality of the law in security-sensitive situations. Can he answer that point?
Dr Huppert: Absolutely. That is exactly what I addressed. My position is supported explicitly by the special advocates and the current and former reviewers of terrorism legislation, who all work specifically on such cases, and was upheld by the judgment in AF (No. 3), which dealt with a similar area. It is not something that I and my hon. Friend the Member for Edinburgh West have come up with. I would not be in a position to say exactly how that test could be interpreted in all cases, but it is an established legal principle as the standard disclosure obligation that has been determined. I am sure that the hon. Lady could ask the hon. Member for Hammersmith to read out all the exact quotes that led to it.
There is already a clear established concept in law about what material would be needed for those effective instructions. I cannot dictate it, any more than I can with any of the other tests, such as the balancing test. Wiley balancing is an established principle that I assume the hon. Lady supports, but I could not say exactly how we would do it in every case.
Meg Hillier: I thank the hon. Gentleman for giving away again so generously. The established principle in law is not something that any Committee member would disagree with, but we are dealing with an extraordinary and, as my right hon. Friend the Member for Torfaen said, imperfect situation. We have to deal with an imperfect world; in an ideal world, we would not introduce CMPs, but we have to do so, because of the situation that we face in the real world. How do the principle and the reality match up? The hon. Gentleman cannot dodge that point, if he is pushing the amendments. My question is: what is his definition?
Dr Huppert: I am not sure that I can add to what I have already said. The principle was established in terrorism cases for control order processes. These cases are not exactly the same as control orders ones, but they are very similar. I do not know exactly which items may be covered—I am not a lawyer or a special advocate—but
I also know that both the current and the former independent reviewers of terrorism legislation—they have looked at these precise issues, and know far more about them than I do now or, I suspect, ever will—believe that it is essential to have gisting and that the disclosure obligation should apply to all proceedings. That was determined in the AF (No. 3) case, in which senior judges decided that that was the appropriate terminology to use, as it has been, in other cases.
Dr Julian Lewis (New Forest East) (Con): I have no specialist knowledge of this area, but I incline towards the view that the judge should have some discretion in such matters. For example, let us consider a case in which secret intelligence was available that would negate the claim made by someone bringing this sort of proceeding. The very minimum that the gist would have to contain is whether the information had been made available through technical interception or human intelligence. I do not see how much less than that could be given to someone under those circumstances, and if that were given, it might well be damaging from the point of view of the future collection of information by technical means or through the exposure of a human source to sanctions.
That is precisely why there are three amendments with different levels: the Committee might accept only amendment 1, it could accept amendments 1 and 2 or it could accept amendments 1, 2 and 3, so there is space there. Amendment 1 would require only some gisting. I would have hoped that the hon. Member for New Forest East, given his concerns, might have gone as far as amendment 1. Bear in mind that the party will have to know that there is a CMP. If only amendment 1 were agreed, the gist in his example might be that we have intelligence that someone was in fact in such a place, and we would not necessarily have to say what sort of gist it was. If amendment 2 were also agreed, more information would have to be provided, according to the existing AF (No. 3) balancing, so there would be a separate question about how far we could go.
Dr Huppert: I will, Mr Gray. Amendment 3 would take us a step further in how we push that balance. I agree with the special advocates and the people we discussed earlier that one should take all three of them, but even taking only amendment 1 or only amendments
What we are debating is simply how to ensure that the process is fair for those involved. There is the opportunity for a party to say, “An error has been made. There has been a recording of information, but actually I was not there. I had left that room.” They might be able to get some level of information. They would be able to give that instruction to the special advocate.
I hope that the Committee will accept the case that was put by the Joint Committee on Human Rights, which can be read in far greater detail, and agree with the expert opinion that we have from special advocates, terrorism reviewers and the most senior judges, that this is the right way to go. This sort of gisting ensures that one can protect national security but still provide a fair trial, with the ability for people to know a little bit of what is going on behind the closed veil.
Mr Slaughter: These are interesting amendments, and we might even support some of them. I will start by saying a little on what the clause says about gisting, as it is relevant to our set of amendments. The court is invited to go through an interesting process in clause 7(1)(d):
“if permission is given by the court not to disclose material, it must consider requiring the relevant person to provide a summary of the material to every other party to the proceedings (and every other party’s legal representative)”.
I appreciate it is not the fault of the hon. Member for Cambridge; if anything, it is the fault of the Joint Committee on Human Rights. However, the wording seems vague at that point. It is not Wiley balancing; it is not a form of words that gives me the comfort of other amendments we have supported. We will look in a moment at what happens at the next stage. I think the hon. Gentleman is right that a gist should be required. I earlier described gisting as important but not central and that is probably right.
I am still puzzled why the Liberal Democrats put down the amendments they did and not the Wiley balancing and last resort and what I call the central amendment. However, they have put down this proposal. It is an important way to overcome the inherent unfairness of one of the parties to an action not knowing the case against them. In circumstances, with a CMP, where it is not possible for them to be shown the evidence, at least they can be shown the gist. Therefore, it does seem reasonable. That is something that does happen. It is also sufficient and so on, as the hon. Gentleman set out.
If we are not to go back on the basic principle that I think we all agree on, that national security must always
It goes on to say that the court must be authorised to order the party not to rely on that material. So, at the end of the road, there will always be that assurance that material that could be damaging to national security, be it in the gist or not, will not be revealed in that way.
I am not going to trespass on the Chair’s patience by quoting at length, but I would recommend that Members read the debate in the other place on these matters, because it was quite full and clear in relation to the proposals. I would also refer Members particularly to the evidence given by the special advocates and Mr Ben Jaffey, who have real life experience of this and show the way that matters can work. I hope to get away with one quote, because it is important. Lord Phillips of Worth Matravers said:
“I sat in a judicial capacity on a number of appeals dealing with closed material, including Al-Rawi. Closed material is anathema to any court, and the Supreme Court always managed to deal with issues relating to closed material without looking at the material itself. I am, however, reluctantly persuaded of the need, in the interests of justice, for a closed material procedure in exceptional cases where the Government would otherwise have no alternative but to submit to a civil claim for damages because to defend it would necessarily involve putting into the public domain material that would cause disproportionate harm to national security. It is for that reason that I support the batch of amendments tabled by the noble Lord, Lord Pannick, and other noble Lords in relation to Clauses 6 and 7.
“The Bill as it stands makes no provision for the application of a test of proportionality. The test is simply: would disclosure be damaging to the interests of national security? If the answer is yes, the court is mandated to accede to the application that the material in question be not disclosed. Clause 7 then leaves it in the discretion of the court as to the extent to which, if at all, the closed material can be deployed in support of the Government’s case.”—[Official Report, House of Lords, 21 November 2012; Vol. 740, c. 1830.]
In other words, if we take the Government’s case and look at the way that they say CMPs should be dealt with, proportionality must be built into the system. Gisting is one of the ways that that can be done. I would therefore be interested to know whether the Government resistance to these amendments is coming from another part of the Government. If so, what are the reasons for that? The Government cannot object on principle or because of the substantial redrafting needed for a new form of words and tests; gisting is gisting in this context. It is in the Bill, and my amendments would simply make it a little tighter, so if these amendments are pressed to a
James Brokenshire: The amendments relate to the second stage of the process that we have been considering in respect of clause 7. Part of that process will involve ensuring that the party excluded from closed proceedings has as much information as possible without damaging national security. I will go through the hon. Gentleman’s amendments to explain why it may be worth while for him to consider why they would not quite work in the way that he thinks and why, in our judgment, they are problematic. I will be as clear as possible.
Amendment 1 would require the judge to require a summary of every piece of sensitive material—everything—whether or not it is actually relied upon. Amendment 2 provides for the standard of disclosure required by the AF (No. 3) principle to apply in every case. In AF (No. 3), the court found that for article 6 to be satisfied, a person must know enough about the closed case to give instructions to the special advocate representing their interests.
I recognise that the amendments are genuinely intended to improve the process. At first glance, they might look appealing. I hope I can set out several important reasons why they are neither desirable nor practical in some circumstances. First, they would remove the judge’s ability to manage the case in a way that is fair and effective. Secondly, they would cause massive and unnecessary delays in important cases. Thirdly, they would introduce inconsistency with other CMP contexts. Fourthly, they ignore relevant case law, including a recent judgment of the Supreme Court.
If a court gives permission for material not to be disclosed, it must be agreed that it is damaging to national security. Where it is possible to give gists and summaries of national security-sensitive material without causing damage, they will be supplied. There is no doubt that a court would require a non-damaging summary where one is necessary in the interests of justice. Quite often, however, it may simply not be possible to supply a gist without causing the damage to national security that the consideration of sensitive material in the closed part of proceedings seeks to prevent. The very existence of a document may, in itself, be sensitive.
James Brokenshire: I suppose the point we come to is about the operation of clause 7 itself, and whether national security will be impacted. The hon. Gentleman is highlighting that some sensitive evidence will trigger the national security requirements and the points covered by clause 7(2), but is so sensitive, reflecting the drafting, that it cannot be disclosed. A judge would determine that a fair trial could not be provided as a consequence of that. In other words, it would not trigger the AF (No. 3) requirements or the article 6 requirements.
The point about AF (No. 3) and subsequent case law relating to CMPs is that it has been upheld by courts that a gist may not apply in every single case. I will explain that further. The amendments may mean that a gist or a summary has to be provided for all material that falls within the sensitive category, even if it is not inculpatory or exculpatory—if it is just disclosed material. The amendments would require a summary of each item of material, and would take the discretion away from the judge to be able to say, “Actually, as a judge, I can see that information is not relevant.” The amendments would impose an additional burden on the court process that is not there if judges can assess what is appropriate for the best handling of the case.
I will move on. No doubt the hon. Gentleman will wish to come back at me in further interventions. I recognise his point about justice, but I would argue that the provisions on established case law that have been upheld in relation to article 6 show that CMPs can be operated as currently constructed, without the addition of the wording that he seeks. I can draw an immediate parallel to legislation that has passed through this House. The hon. Member for Kingston upon Hull North will remember the days of joy that we spent in Committee debating the Terrorism Prevention and Investigation Measures Act 2011. We had a very good, well-informed, debate from both sides of the Committee. The hon. Lady was not in her current position at that point. I think she became involved later on.
The provisions in this Bill are substantially the same as those in schedule 4(4) of the 2011 Act. The measures we have in this Bill are more tightly framed, inasmuch as they are focused on national security rather than the public interest. So what we have in this Bill is actually narrower than what is contained within the TPIMS Act.
Dr Huppert: I remember with strong emotions the TPIMS Act. The Minister may recall that I tabled a series of amendments there to try to avoid very much the same process as this. It did not get support from either side of the House. At least there is consistency and I may attract more support this time.
James Brokenshire: We will see, but the point I make to the hon. Gentleman is that there is a need for consistency as part of the procedures that operate in relation to closed material proceedings. I do not think he is suggesting—maybe he is suggesting; I do not know—that in some way information is not being disclosed, in a way that would not allow a fair trial to take place. Indeed, the court has upheld the importance of a fair trial. If I may develop that further, I was highlighting the fact that the very existence of a document may be sensitive and it may even be clear from the information that it could only have come from one source, with any gist or summary thereby putting the life or safety of that source at risk. Yet even in those circumstances, the court can direct a summary to be provided—even if it is damaging to national security—if one is necessary to satisfy the article 6 right to a fair trial.
Article 6 requires gisting of the form required in the AF (No.3) case. Clause 11(2)(c) means that the court must order it. So there are already provisions that require the judge to consider what fairness requires in the case. When deciding on the individual treatment of
There have been criticisms that the judge’s hands were being tied in the trigger for a CMP yet, if I understand correctly, that is exactly what these amendments would do when it comes to considering the disclosure issues themselves, saying that the judge has to treat it in a particular way. Another aspect of the judge’s discretion concerns the practical and effective management of the case. These amendments would potentially require a summary for each of hundreds of thousands of documents, even when the judge considers it neither necessary for fairness nor workable in practice.
The practical consequences mean that the disclosure phase might be considerably prolonged, inevitably deferring the start of the substantive trial, possibly for a number of years, unnecessarily. There is a practical point about the hon. Gentleman’s amendment 1, which, I am advised, would lead to that very approach having to be taken if it were upheld. These amendments also ignore the judgment of the Supreme Court in Tariq, which held in a security vetting case in the employment tribunal that a gist was not required to be provided and that article 6 does not provide for a uniform gisting requirement in all circumstances. Lord Mance said, at paragraph 27 of the judgment in the case, that
“the balancing exercise called for in para 217 of the European Court’s judgment in A v United Kingdom depends on the nature and weight of the circumstances on each side, and cases where the state is seeking to impose on the individual actual or virtual imprisonment are in a different category to the present, where an individual is seeking to pursue a civil claim for discrimination against the state which is seeking to defend itself”.
So all I would say to the hon. Gentleman is that there is case law that has been established to guide the judges on their application and interpretation of what is appropriate in the context of this phase of disclosure. Lord Hope went on to say at paragraph 72 of his remarks:
The Supreme Court found that what fairness requires will inevitably vary from case to case, and in my submission judges are clearly best placed to decide what it requires on a case-by-case basis. We do not believe that Parliament should seek to apply an absolute requirement that AF (No. 3)—gisting—apply in all cases at this time and, if the law on disclosure changes, nothing in the Bill will prevent the courts from applying any new standards, if case law or other practice develops.
Imposing such an obligation with no regard to the judge’s view on what is required for fairness, would also introduce an inconsistency with existing legislation for most CMPs, where gisting is not set down as a requirement.
It is worth making it clear that in the context of the Bill, and of civil damages cases specifically, individual claimants are making allegations against the state and are therefore aware of the details of the allegations. Mr Justice Ouseley made some relevant remarks in his recent judgment in the AHK case, which is a judicial review of a naturalisation decision. He said:
“I do not think, and I am not alone in this among the judges who hear these types of cases, that the views of the Special Advocates…are a true reflection of the effectiveness they bring. Nor do they properly reflect the ability of an individual to explain what he has been doing and saying…even without specific details of allegations against him.”
He made those remarks in a case in which the Home Secretary had refused someone citizenship on the basis of sensitive material. The cases that the provisions we are discussing relate to are different. They are civil proceedings, including civil damage cases, in which an individual makes detailed allegations about the conduct of the state.
Amendment 3 instructs the court to ensure that any summaries do not damage the interests of national security only so far as it is possible to do so, and that is a risk that the Government cannot take. I note the comments made by the hon. Member for Hammersmith about his reticence regarding the amendment. We cannot say to the sources who are risking their lives for us, “We will protect your identity, and therefore your life and safety, as far as it is possible to do so.” We cannot say to our international partners, “We will protect your information as far as it is possible to do so.” We need to be clear about that.
“significantly increase the chances that the provisions in relation to closed material are held to be compatible with Article 6 by the Strasbourg Court. That court has made it plain that it considered that gisting was an essential feature of a closed material procedure in the context of control orders, and the court is likely to take the same view in relation to civil litigation…It seems to me likely that the Strasbourg Court will require…that a gist of the closed material which is sufficiently specific to enable the other party to meet the case made against him has been provided to him, and that closed material”—[Official Report, House of Lords, 21 November 2012; Vol. 740, c. 1830-1831.]
James Brokenshire: In the case of Tariq, the court took a different view. It said that there was not the requirement to have a uniform approach to AF (No. 3). There is related case law and jurisprudence to which the court can point in determining and considering what is and is not appropriate. The hon. Gentleman says that
There is the requirement under article 6 for a fair trial to be held, and the court must have regard to that. Even though, as I have already said, the court might look to the clause 7 provisions and decide that there is something that would be damaging to the interests of national security, article 6 would mean that whatever that was would still need to be disclosed. I say to the hon. Gentleman that there is no level playing field. The AF (No. 3) case highlighted the requirement for gisting in certain circumstances of that control order case, but the courts have not said that that is a uniform standard that is applied. For the various reasons that I have explained from Tariq and the case law that has been developed, it should be for the courts to determine how best they manage this phase of the disclosure of information. In our judgment, that is the most appropriate way to deal with this.
I genuinely respect the point that the hon. Member for Cambridge is making, but I say to him calmly that this is about the practicalities, the case law and the consistency. I encourage him to reflect further on that and urge him to withdraw his amendment. Obviously, I am happy to discuss his points with him. None the less, the case law sets out the provisions quite clearly, and in our judgment, we should let the judges decide. That is the point that has been highlighted on a number of occasions in this Committee. I would not normally quote Lord Owen of all people, but he did make some comments on gisting in the other place. He said:
“In this debate those who have been justifying the amendments have often said that it is to avoid restricting the court and to give more power to the court's judgments. This amendment would go in the opposite direction.”—[Official Report, House of Lords, 21 November 2012; Vol. 740, c. 1833.]
Dr Huppert: I very much enjoyed hearing those two contributions, and it is interesting to see where we are. The Government have had well over a month to consider their response and to come up with amendments to resolve the problems. I do not have many quotes to back my case, but in the case of the al-Rawi judgment, Lord Kerr said:
That is exactly the mischief that we need to avoid. I have heard what the Minister has said. He talked about the difference between cases involving liberty and civil cases such as the one we are discussing here, but then earlier today he accepted that habeas corpus would be included in this, so that clear distinction, on which the Minister
The Minister talked about a uniform standard for closed material procedure. I agree, but I should like to see that uniform standard better than the current one; that is a fundamental point of disagreement. It is important to have this process. The Minister might be right that in pushing towards greater gisting, which is what we are trying to achieve, there might be a nicer way of achieving that—leaving out documents which is the saturation problem. I would accept it if the Government had come up with something that captured the intent of this, with some tweaks to it to deal with unusual cases. Despite the fact that the Government have had significantly over a month—they have had the whole Christmas break and the entirety of January—and despite conversations with the Minister without Portfolio who is in charge of the Bill, the Government have not made any progress. I respect what the Minister is saying, but I should like to test the position of the Committee. I want to see whether the Government can come up with something more productive by Report stage that takes us closer to where most of us would like to be.
A relevant person, when confronted with a requirement to provide material or a summary containing information that they do not consider should be disclosed, can simply choose not to provide that material or summary. Clause 2 provides for protection against disclosure of such material or summary. The Bill makes it clear that the Government may elect not to disclose material that the court considers should be provided at clause 7(2)(a), and not to provide the summary at 7(2)(b). At no point is the judge empowered to overturn the Government’s decision to withhold materials or the summary, nor can he provide any such materials to the parties or others without the Government’s consent, nor is there a risk that the drafting of the court rules will allow that. Indeed, clause 10(1) states:
“A person making rules of court relating to section 6 proceedings must have regard to the need to secure that disclosures of information are not made where they would be damaging to the interests of national security.”
The effect of “electing not to provide” the summary or materials is set out in clause 7(3)(a) and (b), which provides that the judge may direct that the Government cannot rely on such points or that the Government should take concessions or steps as the court may specify. Such provisions relate to procedural fairness between the parties, and do not raise any risk of disclosure of information relating to national security. The amendment suggests an alteration to the court’s discretion to disregard materials that are withheld by Government.
The effect of “electing not to provide” the summary or materials is set out in clause 7(3)(a) and (b). Where the Government have chosen not to provide relevant materials or summaries, the clause authorises the judge to direct that the Government cannot rely on such points or to order that the Government make concessions as specified by the court.
Amendments 72 and 73 would strengthen the clauses. Where the Government have chosen not to provide relevant materials or summaries, the amended clause would require the judge to direct that the Government
An anticipated impact of the amended clause would be to produce within the court and in those to whom the gisting obligation falls, an incentive to seek methods to provide the gist or to seek other ways to satisfy the court. There is no risk of disclosure of any materials or summaries that the Government deem they should not disclose, so the proposal poses no national security concerns and it is in line with the evidence on the conduct of PII.
In short, the intended effect of the amendments is to indicate the importance of the gisting requirement. Gisting provides an essential means by which a person can meaningfully instruct their counsel, and in so doing, provides some opportunity to moderate those aspects of the CMPs that are inimical to natural justice. The amendments seek to deter default from the gisting standards, by penalising default.
The amendments are consistent with the approach taken in PII. I anticipate that the Minister will disagree on the basis that he says that there should be full judicial discretion in relation to gisting. There is wide judicial discretion in gisting already in the clause, and I went through it when speaking on the previous group of amendments.
The amendments would strengthen the requirement, but would not in any way jeopardise matters of national security that may come into the public arena. They are therefore wholly consistent with the aim of ensuring that a level playing field is preserved where possible—that is, that the court is under instruction and encouragement to provide the gist wherever possible. The gist may not be provided in some cases still. In some cases, it will be ordered, but the Government, or Secretary of State as it will no doubt be, will decline to provide it. That is as far as we need to take the matter.
I will not press the amendment to a Division, but I would like the Government to say a little more than they did in response to the hon. Member for Cambridge about the importance of gisting in such cases, which is pretty fundamental for parties in the CMP process, who are hampered in all sorts of ways. Perhaps later this afternoon, we will look at how difficult the relationship between the excluded party and the special advocate can be. Gisting is a clear and simple way of ensuring procedural fairness and that a person knows the case against them. The amendments, like the previous group, are an attempt to ensure that that happens.
James Brokenshire: I will set out some important reasons about why the amendments are neither desirable nor practical. To continue our debate on the previous group of amendments, this group would remove the discretion available to the judge that is already available under existing CMP practice, as is reflected in the drafting of the clause.
The hon. Gentleman invited me to underline the importance of gisting, summaries and the disclosure of material. I recognise and understand that, as I hope is well understood from my previous contribution. The court has examined processes and procedures in detail to ensure that appropriate information is provided and that the necessary balance regarding the requirement to satisfy article 6 in respect of a fair trial is well understood and pursued by the courts.
Amendments 72 and 73, however, would impose a requirement on the judge to order concessions, such as ordering a party not to rely on material should a party elect not to disclose material when the court has not given permission or required a summary. The judge already has explicit authorisation in the Bill to do that. It may not be necessary to require such steps in every circumstance when a party chooses not to disclose material. One document alone might be sensitive, but there may be others relevant to the same issues that render such steps unnecessary, perhaps because they cover the same ground in a different way. We therefore believe that the amendments are unnecessary as they would actively remove judges’ discretion in deciding the fair and sensible management of the CMP.
The addition of the word “and” in amendment 73, if I read it correctly, would effectively mean that in such circumstances, the relevant person is not to rely on such points in that person’s case and is to make such concessions or to take other steps as the court may specify. I think the word “or” rather than “and” gives the judge the flexibility, if there is no disclosure, to say that concessions would have to be made, or that the relevant person may not rely on specific points. I do not think it is both—I think it is either/or—and that is part of giving the judge the appropriate discretion.
I fully recognise the hon. Gentleman’s points about the relevance of gisting and the import of the situation if the relevant party, for whatever reason, does not disclose the material in question. I also fully recognise his saying that the judge should have appropriate sanctions and measures to deal with that. We would argue that that is reflected in clause 7. We should have confidence that judges will make the right decisions in the interests of justice and according to their existing obligations to ensure an individual’s right to a fair trial under article 6.
I am grateful for the Minister’s comments. We are not going to agree any further on the basic issue. However, I did say that I was not going to press the amendment to a Division, so I will not, and I beg to ask leave to withdraw the amendment.
‘(1) The jurisdiction of the court in section 6 proceedings shall be exercised by a judge designated by the Lord Chief Justice for such purposes.
(2) A judge so designated shall be referred to as the “disclosure judge”.
(3) The disclosure judge shall not be the trial judge of the relevant civil proceedings.’.
Obviously it is important that the clause ensures that information that should not be disclosed in the interests of national security is protected during a case. As we have heard, the clause allows for rules to be made setting out the applicable procedure with a number of integral procedural safeguards, which I think we have already touched on. I will therefore not develop further the broader arguments on the clause now.
New clause 9 would introduce a separate judge who would make decisions about closed material proceedings. This so-called disclosure judge would decide whether to make a declaration that a CMP may be used, as well as what we might characterise as the stage two questions of whether to grant an application that material may be heard in closed proceedings and, if it is, whether that material can be gisted. There would then be a separate judge for the trial. The rationale for this appears to be to avoid contamination of the judge’s mind in relation to material that he or she has seen but which is not shared with the parties. The example of that that is given concerns criminal trials on indictment without a jury in Northern Ireland, where PII applications are decided by a separate judge to the trial judge.
The Government carefully considered this proposal in the other place, so it will be useful for me to explain why neither the Government nor the other place were persuaded of its merits. First, the Government think it is better from the point of view of the administration of justice and judicial case management that the judge trying a civil case should be the one who determines whether a CMP should be allowed, and what material should be heard in closed proceedings. It is that judge who will have a direct interest in ensuring that he or she oversees a fair trial process.
In earlier debates, it was put to the Government that we have supplied insufficient room for judicial discretion. It seems to us that a single judge in charge of the entire process is more likely to guarantee judicial discretion than if the roles of disclosure and trial are compartmentalised. That point is even stronger in light of Government amendments to include a power to revoke the CMP at any stage in the case’s progression. This will be a more meaningful power when exercised by a single judge throughout the case progression. In addition, the whole point of the CMP provisions is to ensure that relevant, very sensitive evidence that would otherwise be excluded from proceedings under PII is considered by the judge. The issue is about allowing the judge to know the full facts, even in circumstances when they cannot be fully shared with the claimant. There will usually be no question of the judge’s mind being swayed by evidence of which no account ought to be taken. That is entirely different from the position in Northern Ireland, where the purpose of the disclosure judge is to insulate the trial judge from material that has not been shared with the accused and will not be taken into account when deciding guilt or innocence.
In any event, judges in civil cases are well accustomed to considering material for the purpose of making evidential and disclosure decisions. It is normal for judges at all levels to decide whether evidence is admissible and, if it is not, for them to put it out of their minds when reaching a judgment—interestingly, including when dealing with PII claims. That is the case in all existing contexts when CMPs are available by statute, such as in SIAC and TPIM proceedings. It is true even when the judge is also the decision maker on the facts, such as in civil courts when PII claims are made. Again, that is a question of information being excluded completely, so I can see that the hon. Member for Hammersmith could make a stronger argument in that context, but here we are saying that the information is included and is being considered.
A separate judge in civil cases would make the review of disclosure decisions as the case progresses cumbersome, not least because the disclosure judge would need to follow the progress of the whole case to understand the potential implications for the fairness of proceedings before he or she is able to rule on disclosure issues. It would cause delay and could be costly.
We have heard much—I am sure that we will continue to hear much—about the example of Northern Ireland. The practice there is to have a separate disclosure judge, but in a very specific context, because a criminal trial of serious terrorist offences proceeds in a climate with a real risk of paramilitary and community-based pressures on jurors. The reasons that made a two-judge system a valuable safeguard in that context were peculiar to that criminal jurisdiction and they do not apply to CMPs in civil cases.
The Government do not accept that two judges are necessary to ensure a fair civil trial under common law or, indeed, article 6 of the European convention on human rights. While I am sure that the hon. Gentleman will wish to press his case, I ask him to not to move the new clause, and I hope that the Committee will agree to clause 7.
Mr Slaughter: Like the Minister, I shall not dwell on clause stand part because we have had a substantial debate on the clause; certainly, as far as the Opposition are concerned, amendment 71 was the key amendment we wanted to look at and we had a good debate on it. Nor, to put the Minister out of his fear, will I dwell greatly on new clause 9. I will keep the promise I made earlier: in relation to the remaining clauses, I will be as succinct as possible. That is partly because a number of the clauses had substantial debate in the other place and I do not think I can improve on that debate—I am certainly not going to quote from it, Mr Gray.
Mr Slaughter: So there it is. If I had made a long speech, I would not have dwelled greatly on Diplock courts in Northern Ireland—the Minister second-guessed me wrongly on that; it is more the general principle of having a separate judge or to decontaminate, if that is not too pejorative a word, the decision-making judge from materials and evidence that he may hear. Of course,
Far from the Minister’s contention that the practice is unnecessary, unwieldy or uncommon, it is, on the contrary, very common. I would further argue that perhaps it is more needed in relation to closed material procedures where there is a need not just for procedural fairness, but for procedural fairness to be seen. It needs to be the case, and it will be of some comfort both to the excluded party and the general public, that the judge who makes those decisions, some of which will not be reported—never mind the argument and proceedings, but the judgment itself will not be reported—is as inured as possible from matters that may influence him in a way that they should not.
The process would not be difficult to institute. In the other place, there was a very interesting debate with strong views on both sides and, curiously, some of those who were lukewarm towards the idea thought that it might throw up more procedural difficulties than it would resolve. I respect that opinion, because there were eminent practitioners on both sides of the argument.
Like some later amendments, the proposal comes into the bracket of improving a process that we believe is dearly in need of improvement, and is already severely thwarted by the Government’s amendments made to the House of Lords’ work. It will not, however, change things materially and I accept that. On that basis, I beg to ask leave to withdraw the motion.
‘(4A) Rules of court relating to any relevant civil proceedings in relation to which there is a declaration under section 6 proceedings must secure—
(a) that, where a party is excluded from such an application, his interests are represented by a special advocate appointed in advance of the court hearing such application and, if the application is granted, for the duration of the section 6 proceedings and related proceedings,
(b) that the special advocate is afforded the opportunity to take instructions from the party whose interests he is appointed to represent.’.
‘In any proceedings where a relevant person or the Secretary of State successfully claims public interest immunity over any material on the grounds that its disclosure would damage the interests of national security—
(a) any other party shall be entitled upon application to the court to have a special advocate appointed to inspect such material; and
(b) the special advocate shall be entitled to advise that party whether it would be in that party’s interests to apply for a declaration under this section.’.
Mr Slaughter: The amendments deal with the appointment of the special advocate. New clause 6 is slightly different, and I was initially surprised to see it grouped here rather than under clause 6, but I can see why it was done.
The amendments are designed to provide the machinery whereby a party is given a statutory guarantee of a special advocate in CMP, who will be appointed in a timely fashion. We believe that is a minimum safeguard and that it should not be controversial.
“the reasons for that are self-evident and run parallel with the supporting arguments I have given for my natural justice amendment.”—[Official Report, House of Lords, 17 July 2012; Vol. 739, c. 145.]
Amendment 70 would secure that a special advocate must be appointed to represent the interests of a party before the hearing of an application, and that they should be afforded the opportunity to take instructions from that party. New clause 6 speaks for itself.
The amendments would provide the machinery to ensure that a citizen’s right to apply for a CMP is effective. If the Government successfully apply for PII over sensitive material, the judge cannot look at that material for the purposes of the trial, so it is entirely suppressed from consideration. As the legislation stands, the Government can cherry-pick. They can choose to apply for a CMP over material they consider helpful to their case and that they want the judge to see, but they can also apply for a PII to suppress from the trial judge material that they consider damaging to their case. That is totally unfair, and it is contrary to the Secretary of State’s repeated statements that the purpose of CMP is to ensure that the judge sees all the relevant material.
The amendments are designed to right that wrong. The special advocate would be entitled to inspect the suppressed PII material and decide whether it would help the excluded party’s case if it was put before the judge. If the special advocate thinks that it would help, he can advise the excluded party to apply for a CMP and he can pursue that application before the judge in closed proceedings. The Minister kept saying that a citizen would not have the evidence necessary to apply for a CMP over material held by the Government, which was why they were not given the right to make
I anticipate that the Government may resist the amendments, but in doing so, as I have just indicated, they would be effectively resisting their own line of argument. When the Minister talked about equality of arms earlier, in the debate on amendments tabled by the hon. Member for Cambridge, he was clear that the distinction between the rights of the excluded party and of the Secretary of State were there for a purpose. The effect of new clause 6 would be to enable that to happen. Under the provisions in new clause 6, the special advocate would have a more proactive role in considering and advising the excluded party so that, again, the procedural unfairness and inequality of arms would be redressed.
I do not know whether the Minister is persuaded by that argument. I hope that at the very least, he is persuaded by the argument about amendment 74, on the replacement of “may” with “must”. I anticipate that again, his answer might be, “That is a matter for the court’s discretion, and the court will ensure that the special advocate is there when they are needed.” I am not sure that is good enough. The role of the special advocate in relation to the excluded party and their duty to the court is such that he or she must be there at all times and in a position to make those representations. I think the amendments would find favour with special advocates; they found favour in the debate among their lordships, although I do not believe that they were pushed to a vote. I will listen to what the Minister says, and decide what to do thereafter.
James Brokenshire: I hope I can set out why I think that we already have the necessary provisions in the Bill to allow special advocates to operate as effectively as possible while safeguarding national security, and thus why the hon. Gentleman’s amendments are not needed.
Amendment 74 and the first part of amendment 70 would provide that a special advocate must be appointed in any section 6 proceedings. However, the Bill already makes adequate provision. It provides that the appropriate law officer may appoint a special advocate to represent the interests of the excluded party. It is difficult for me to conceive of circumstances in which the appropriate law officer would not appoint a special advocate where statute makes provision for it.
The current position means that the special advocate does not have to be appointed when an individual actively does not wish to be represented and refuses to engage with them. It also gives Law Officers the ability to consider the number of special advocates required for a particular case or set of cases. The format in the Bill mirrors the wording in existing legislation that provides for CMPs, such as the Terrorism Prevention and Investigation Measures Act 2011 and the Special Immigration Appeals Commission Act 1997, which to my knowledge have not caused any difficulty. I am interested to know whether the hon. Gentleman can point to any examples in support of his arguments that those provisions have proven problematic in practice and that concern has arisen on those grounds.
I do not believe that we would wish to create inconsistencies in the provisions or to remove the useful role that the Law Officers play in ensuring that appropriate special advocate resources are allocated to each case. To ensure that related proceedings are covered, Government amendment 13 will amend clause 10(4) to make it clear that proceedings on or relating to an application for a declaration or decision of the court for a declaration are to be treated as section 6 proceedings for the purposes of clause 8, and so will be covered.
Where special advocates are appointed, provision is already made for them to take instructions from the party they represent, subject to necessary restrictions on communication on national security concerns. Clause 10 ensures that a person making rules of court relating to section 6 proceedings must have regard to the need to ensure that disclosures are not made when they would damage national security. The rules on closed material procedures in existing contexts, on which the rules for CMPs in the Bill would be based, make it clear exactly with whom the special advocate may and may not communicate regarding any matter connected with the proceedings.
The special advocate can communicate freely with the excluded party prior to the receipt of the closed material. The restrictions on communications take effect only when the special advocate takes receipt of the closed material, and even then there are no restrictions on the written instructions that the special advocate can receive from the excluded party. Communications from the special advocate to the representative individual will require permission from the court on notice to the Secretary of State.
Special advocates’ knowledge of communication in relation to the substance of the closed material is likely to create difficulties and may often be impossible. The purpose of the restrictions on communication is to ensure that national security is protected by avoiding inadvertent disclosure. In instances where agents or sources are involved, this can be about protecting the right to life.
Furthermore, in the civil damages cases covered by the Bill, the individual is making allegations against the Government, and so is aware of the detail of the allegations he is making. I underline for the hon. Gentleman that we are certainly looking at ways in which instructions can be assisted to aid communications in a practical sense, but I think that the special advocates themselves acknowledge that it is difficult for them to make decisions about the sensitivity of a national security issue when they may not necessarily be fully appraised of all of the relevant background.
New clause 6 seeks to allow a party to have a special advocate to inspect the material excluded by any successful PII application on national security grounds and advise that party whether it would be in their interests to apply for a CMP declaration. It seems to be aimed at dealing with cases where there is material excluded that would support the other party’s case or undermine the Secretary
Our judgment is that the relevant provisions are unnecessary. As I have explained, we already have the necessary provisions in the Bill to allow special advocates to operate as effectively as possible while safeguarding national security in line with the provisions made for existing CMPs in statute. I therefore ask the hon. Gentleman to withdraw his amendment.
Mr Slaughter: I have listened to what the Minister has said. He is a little complacent in relation to the appointment of the special advocate. What he proposes is a substantial potential extension of the CMP. He says, and I hope he is right, that the effect of the Bill, even as it is currently drafted, will apply in only a handful of cases a year. Certainly, the response to the Joint Committee report that was published last week indicates that there are about seven new civil cases a year. If the Minister is right about that, so be it.
The potential for extending CMPs into a substantial area of the civil law field could mean that over a period of time—none of us can foresee the future—there is substantial additional reliance on that. It would be sensible to define more closely the way in which the special advocates are appointed and work with both the court and the excluded party. That is what the amendments seek to do. They are probing amendments and I do not intend to divide the Committee. I beg to ask leave to withdraw the amendment.
In summary, carried to extreme, clause 10 would deprive the special advocate and/or the claimant of any opportunity to engage to any extent in proceedings. The inclusion of the word “requiring” as an alternative to “enabling” is curious, and it is not clear whether the court is to choose between the two. If the rules of the court are to make provision requiring proceedings to be determined without a hearing, it is by no means clear that all such hearings would not be determined in secret.
There is a strong interest in transparency and open justice. Lord Hodgson challenged the Government to explain why the interests of transparency and open justice do not command the idea that some hearings, however formulaic or brief, would be appropriate. Of course there may be circumstances, even within CMPs, where brief formal administrative hearings could take place, but what informs most of the amendments we have tabled on the later clauses of part 2 is that, where there is any doubt in a CMP, the benefit should go to the fullest disclosure of debate. Certainly matters should be done not on paper but with opportunity for representations to be made. That is the effect of the amendment.
The intention of the Bill is that civil proceedings in which closed material proceedings are required will continue as regular civil proceedings, save only for the sensitive material elements that will be considered in closed session. The intention is emphatically not that the whole proceedings pass through a gateway to being closed proceedings in their entirety. However, it is important that the Bill does not interfere in any way with the court’s ability to exercise its normal case management powers, where decisions can be made on paper without a hearing, particularly where the parties agree to such a course of action.
The provision is well precedented in other CMP contexts, most recently in paragraph 2(2)(b) of schedule 4 to the Terrorism Prevention and Investigation Measures Act 2011. The rules made under that paragraph provide for certain matters to require a hearing, with exceptions where a hearing is not required, such as agreement of the parties or where the matter has already been determined. Requiring a hearing in such circumstances would waste court time and resources. Again, I emphasise that the Bill’s intention is for proceedings to continue as regular civil proceedings as far as possible. The purpose of CMPs is to ensure that all relevant material can be fully considered by the courts when coming to a judgment without damaging national security interests. It follows that the disclosure of sensitive material to the court and special advocate will be full and open precisely because it is not disclosed more widely.
I hope that gives some reassurance on the nature of what the Bill sets out to achieve in procedural terms and explains why the Government consider the amendment to be unnecessary, because it seems to reduce judicial discretion.
‘(2A) Rules of court relating to section 6 proceedings must make provision—
(a) requiring the court concerned to notify relevant representatives of the media of proceedings in which an application for a declaration under section 6 has been made,
(b) providing for any person notified under paragraph (a) to intervene in the proceedings,
(c) providing for a stay or sist of relevant civil proceedings to enable anyone notified under paragraph (a) to consider whether to intervene in the proceedings,
(d) enabling any party to the proceedings or any intervener to apply to the court concerned for a determination of whether there continues to be justification for not giving full particulars of the reasons for decisions in the proceedings, and
(e) requiring the court concerned, on an application under paragraph (d), to publish such of the reasons for decision as the court determines can no longer be justifiably withheld.’.
‘Closed judgements must be accompanied by an open statement from the court, which shall include—
(a) the reasons for the closed material procedure;
(b) any factors which would be particularly relevant in determining whether all or part of the closed judgement could be made open at a later date;
(c) the duration of open hearings and closed hearings;
(d) the number of witnesses heard in closed proceedings, and the nature of those witnesses;
(e) the length of a closed judgement;
(f) whether national security was an issue in the proceedings; and
(g) the date at which the closed status of the judgement should be reviewed, which must be no later than five years from the date of the judgement.’.
‘Rules of court relating to closed material proceedings under this Act, and applications for them, must make provision—
(a) ensuring that key data is centrally recorded for all proceedings, including:
(i) the duration of open and closed proceedings,
(ii) the number of witnesses heard in closed proceedings and the nature of those witnesses,
(iii) the length of a closed judgement,
(iv) whether the claimant, defendant and/or intervener applied for closed material proceedings, and
(v) whether the claimant, defendant and/or intervener contested the application for closed proceedings.
(b) ensuring that centrally recorded data is available to the independent person appointed by the Secretary of State to review the operation of the provisions of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2006, and
(c) ensuring that centrally recorded data is subject to the provisions of the Freedom of Information Act 2000.’.
Mr Slaughter: These are interesting amendments, so I will spend a little more time on them. They essentially address the ways in which, even where the CMP process is in train, one can ensure open justice. The media has a role in that. Such matters were discussed, in part at least, in the other place, but we could spend a little time on them.
“Rules of court relating to section 6 proceedings must make provision…requiring the court concerned to notify relevant representatives of the media of proceedings in which an application for a declaration under section 6 has been made”—
Dr Huppert: I suppose I do not entirely agree with the JCHR on that amendment. The question is about the distinction between media and, increasingly, we have citizen journalists—lots of people who are generally interested. I fail to see how we would interpret such a provision. Who counts as someone who might be interested? There are some incredibly serious bloggers who research some cases in great detail—when would they count and when not? I thought about tabling the amendment, but I decided that I did not agree with it.
Mr Slaughter: I take what the hon. Gentleman said, that he does not agree with the amendment because the métier in which he moves—the twittering, blogging sphere—should be somehow excluded. I can reassure him, however, because I happen to know that the Ministry of Justice has an effective press office, otherwise we would not have the most trivial matters puffed up into front-page stories every week, such as the announcements on prison regimes on the front of The Mail on Sunday. He is splitting hairs. If his bloggers, twitterers and the like are as assiduous as he says that they are, I am sure that they will pick up matters from the wires, from the Press Association, from Ministry websites and so on and so forth. Even for me, to talk about how matters will be promulgated is getting into too much detail—we are talking about the principle, which is how to ensure the maximum sunlight, transparency and scrutiny on what is by definition a secret process.
The Chair: Before the hon. Gentleman continues, I think he was intending to read out the amendment. The Committee will probably agree that that is not necessary, because we have it on the amendment paper before us. Perhaps we might skip that bit.
My submission is that media are an important ingredient, however they may be defined, but the provision does not concern the media alone. It provides for any person notified to intervene in the proceedings; it provides for a stay, if necessary, to enable that to happen; and it requires a court to publish reasons for decisions.
How will it work in practice? The court would have to inform the media that an application for a CMP is under way; the rules of court would enable the media to intervene; and a stay would allow time to enable the intervening procedure to work. The second part of the amendment enables the media to apply to the court to
As discussed previously, there is a strong interest in open justice, and the Bill denies that in many fundamental ways. In amendment 76, we seek to provide for access to the proceedings for the media, on the basis that such access is an essential means to ensure scrutiny of the proceedings. Access to the proceedings by the media should also serve to reassure the public as to the fair conduct of the proceedings. Decisions of the court that need not be withheld, should not be.
I refer the Committee—again, without reading, obviously—to the evidence provided by Dr Lawrence McNamara. Not only has he sent to us independently, but his evidence has been submitted formally to the Committee and is therefore a matter of public record. Openness and transparency are his speciality and, indeed, I cannot but claim that some of the clauses in this part of the Bill are cribbed from him. They are none the worse for that—indeed, they are substantially better. I say that because in a previous sitting, I was criticised for alluding to briefings. I have been careful not to do so, although we have had some excellent ones from some of the non-governmental organisations in this matter. They are probably not actually in agreement with any of the parties here, but nevertheless they are well-informed sources.
If one picks out the bits that one wants, one can appear to be much more erudite than one is. So I am happy not to rely on them, though I will mention Liberty, Reprieve, Justice and Amnesty, who have all been quite assiduous in briefing throughout the process. Even those who find that they rarely have much in common with those organisations certainly value the expertise that they bring. I wanted to put that on record.
New clause 7 is again about pushing—if one wants to put it that way—at the bounds of closed judgments, by saying that they must be accompanied by an open statement from the court. Legal academics, including Dr McNamara, have called for these amendments for the following reasons There are problems with the collection of data on the use of proceedings, because there does not appear to be any systematically compiled evidence of the scale of use of secret evidence and the areas where it is currently used. There does not appear to be any publicly acceptable formal or informal recording of the total overall use of CMPs, or the total use within different contexts identified by the Government. Finally, there is no indication that such evidence exists in the public eye.
Access to such information as exists has proven problematic. This is because where records have been requested, the Executive are largely unable or unwilling to provide them. Even Parliament has had trouble with such information. Parliamentary questions, both in this House and the other place, have revealed that a paucity of information is available on the current use of CMPs. This issue was noted in particular by the House of Lords Constitution Committee in its recent report.
In May last year, Dr McNamara wrote an analysis of questions in the Commons and said:
“As it stands, the Bill sets a very, very low threshold of openness for judgments under Clauses 6 and 7. Moreover, there is presently no central recording of how often CMPs are used in any courts, nor any centrally recorded information about them”.
This new clause would provide essential data on reasons for CMPs, the availability of judgments, the duration and nature of hearings, the length and nature of judgments and the review periods for judgments. I suspect that all members of the Committee might agree that such information could usefully have produced essential data that could have better informed this debate. My referring to the seven cases and abstracting that from a paragraph of a Government report is one of the few facts about the number of CMPs that are currently issued. It is essential for Parliament, the media and academia that coherent and reliable data be produced in order that proceedings may be scrutinised, and that the efficacy or deleterious effect of CMPs can be forensically examined.
New clause 8 is similar, but goes some way further in relation to the information that would be provided about closed judgments. I simply say that I have given the reasons previously in relation to the other new clause and amendments. It must be the case that data is retained so that debate and scrutiny on the use of CMPs can be adequately informed. I remind the Committee about the real problems that the Government have encountered in making their case that CMPs were necessary, which was a challenge laid down by the Supreme Court in Al Rawi and repeated by the JCHR. That test might better have been met—to the extent that it has been so far—if proper and accessible data were made available.
I hope the amendments are helpful. Both for justice to be seen to be done and for the Government’s own purposes, it is important that proper records are kept; that in so far as it is possible, where decisions are being taken and judgments are being made behind closed doors, as much as possible is said in the public realm about those decisions and judgments; and, to go back to amendment 76, that those who have both an interest and a duty in reporting such matters are properly engaged in the process.
It is not often that one hears praise for the Daily Mail from Opposition Members, but the way that that newspaper—along with most other national newspapers—has conducted itself since the Bill was first envisaged in the Green Paper has been excellent. It has challenged the Government all the way along the line in exactly the sort of way that we would expect from a free press. Amendment 76 aims to assist our free press in that task. I hope that I have persuaded the Minister to go along with that, along with our new clauses.
James Brokenshire: I take on board the hon. Gentleman’s comments on providing as much assurance and transparency as is practicable, but I would say to him—I will come on to this point in relation to the new clauses—that it is important to note that the rules of court are about the operation of the court, not about recording data about what happens in court. I will come back to his point about information more generally.
There was considerable debate in the other place about whether the media should be notified every time a CMP is applied for. Amendment 76 would place a provision to that end in the Bill. The Government have
The Government have amended the Bill to make it clear that all parties to the case must be informed that an application for a CMP has been made and of the outcome of that application. Those facts will generally be a matter of public record, as is the case for other court decisions, and the media will be able to report on them, as they can in any other case. The media may report on other cases that use CMPs and, in particular, they are able to report a finding on the issues. That is an improvement on the present position where cases may never be determined because they hinge on sensitive material that simply cannot be disclosed.
With regard to the media being able to intervene in individual cases, we think there are two problems. Civil damages cases that will be heard under this legislation are private law claims, and it may be inappropriate for third-party interventions to be made in such claims. The claimant may not want the media to intervene in the proceedings. In judicial review cases, the court will retain its current discretion to grant permission for a third party to file evidence or make submissions at the open hearing. The Government do not believe that the media would have sufficient standing to make representations about whether there should be a CMP in a case unless they are a direct party to the proceedings.
Although the media play a vital role in informing the public about current affairs, including important litigation, we do not think they should be given a position equivalent to that of the parties in the proceedings, and nor do we think that the views of the press should necessarily take precedence over those of the parties in the litigation itself. The outcomes of those cases will be reportable, subject to ensuring that information is not disclosed that would be damaging to national security. CMPs will provide the media with the opportunity to report on important issues, rather than reducing that opportunity.
New clauses 7 and 8 raise an important procedural point about how closed judgments would work in practice. Closed judgments contain material that, in the interests of national security, should not be disclosed, and that is the only basis on which the judgment can be classified as closed. As is the practice in existing statutory regimes providing for CMPs, such as TPIM and SIAC cases, judges will hand down an open judgment, in tandem with the closed judgment, and that open judgment will contain the parts of the judgment that can be disclosed without causing damage to national security. Judges will put as much of their reasoning in the open as possible, including statements of legal principle that are most likely to have cross-case relevance. It is the role of special advocates to make submissions about what material can properly go into an open judgment. If the court were persuaded that it would not harm national security, material will be included in an open judgment rather than a closed judgment.
It will not be possible to provide in the open statement the information as described under the new clauses. For example, revealing the length of a closed hearing, the number of witnesses and the nature of those witnesses could be damaging to national security. If a summary
The Government believe that it is important to ensure that those who are entitled to access closed judgments can do so efficiently and effectively. For that reason, we have created a searchable database containing summaries of closed judgments that will allow special advocates and HMG counsel to identify potentially relevant closed judgments.
New clause 8 would require that certain information was collected for review by the independent reviewer of terrorism legislation. We will debate reporting and review later in our considerations, including the hon. Gentleman’s proposal to give the reviewer a role in relation to CMPs under the Bill, but it does not seem appropriate that rules of court should deal with such matters. A CMP cannot be applied for without notice to the other party, and that will be a matter of public record, so a requirement in the court rules to collect information on whether a claimant, defendant or intervener applied for a CMP is not necessary.
In addition, the new clause would put in place a commitment that all centrally recorded data would be subject to the provisions of the Freedom of Information Act 2000, but that would not be necessary. Government-held information is already subject to that Act. However, it is highly likely that the information requested under the new clause would be subject to section 23 of the Act, which protects information supplied by or related to bodies that deal with security matters, as well as section 24, which deals with national security.
The new clause would also require the judge to declare whether national security was an issue in proceedings. Again, we believe that that is unnecessary. The Bill makes it clear that the only reason why a court could go into closed session would be if the disclosure of some material relevant to the case would damage national security. We shall come to issues relating to the independent reviewer at a later stage, at which time perhaps we will perhaps reflect further in that context.
I hope that my explanation has provided some reassurance as to the nature of what the court rules are meant to achieve in procedural terms and set out why the Government consider that the proposals are not, in fact, necessary. I therefore respectfully ask the hon. Gentleman to withdraw the amendment.
Mr Slaughter: I shall not press these probing measures to a Division. The Minister has given a technical response about whether the new clauses address proper rules of court, but I hope that he will at least take on board the spirit of their intention. He is going into unknown territory. If CMPs are extended to civil proceedings, a body of cases will build up. They will not be reported in the ordinary way or dealt with in the same way, so there will be a deficiency in respect of precedent and the experience of handling such cases, and that will need to be dealt with. There will need to be proper recordkeeping, and insisting on openness, when possible, is a way around that. If such proposals are not to be included in the Bill, I hope at the very least that the Government will make provision for such a process.
James Brokenshire: I take on board the hon. Gentleman’s point and the need for openness where that is possible. Although we judge that such provisions are not required in the Bill, I will certainly reflect on his important point.
In relation to the media, which are an important factor, I now understand what the hon. Member for Cambridge meant in his earlier intervention. I did not before, but between that intervention and now, I have read his Twitter feed from this morning, which includes this gem:
Who knows what is going on in this very room while we sit here in silent contemplation? I can only assume the hon. Member for Cambridge lives in a fantasy world if that was what he thought happened here this morning, or perhaps those comments are for his fan club. I do not want such people to be engaged in this process, so I think I am happy that I left it at the media.
Dr Huppert: I am fascinated that the hon. Gentleman thinks that citizen journalists should be specifically excluded. I assume that he meant that as a joke, rather than as an official position. Of the things that he read out, which does he think is factually not right?
Mr Slaughter: I might defer to the Government Whip, but it is the “we”, is it not? I take on board the point that my right hon. Friend the Member for Torfaen made earlier, because the hon. Gentleman is having a bit of an identity crisis in Committee. Who is he and who does he represent here? There ought to be a seat on the Committee for the Twitter party—he could take that up. He knows exactly what our position is, but I am not going to restate it, as we are getting close to adjourning.
Paul Murphy: The Government will be very interested in what my hon. Friend has read out, but does he agree that Liberal Democrat members of the Committee have to make up their minds about whether they are in opposition or in government with regard to amendment 76 and new clauses 7 and 8?
Mr Slaughter: Had you not, with your authority, Mr Gray, said that, I would have said to my right hon. Friend that that is clearly not a matter for us, but it might become a matter on Report and Third Reading.