Conclusions and recommendations
Background
1. We find it unsatisfactory that there may not be an opportunity for this Committee to be able to inform proper parliamentary scrutiny of Government amendments that are asserted to give effect to recommendations that we have made. We recommend that where the Government amends a Bill in response to specific recommendations from a parliamentary committee, that committee be given a reasonable opportunity to scrutinise the Government's amendments and report their views to Parliament before the amendments are debated.
(Paragraph 10)
The scope of the Bill
2. We welcome the Government's amendment of the Bill to remove the power to extend the scope of the Act by order.
(Paragraph 17)
3. We welcome the Government's clarification that the CMP provisions in the Bill apply only to material the disclosure of which would be damaging to national security. We are satisfied that this lays to rest any uncertainty about whether the scope of the Bill's provisions on CMPs extends to damage to international relations.
(Paragraph 20)
4. We would prefer to see the Bill amended to include an express reference to the type of material that the Intelligence and Security Committee considers would be really damaging to the interests of national security if disclosed. We recommend that the definition of "sensitive information" in clause 6(11) of the Bill be amended to confine it to the wording suggested by the ISC.
(Paragraph 23)
5. We accept in principle that, if CMPs are to be available in civil proceedings before lower courts, they ought also to be available before the Supreme Court. However, we would envisage that a CMP would only be very rarely used in the Supreme Court in proceedings where a CMP was used below and where it is absolutely necessary for the determination of the issues in the appeal. We recommend that the Government make clear the sorts of circumstances in which a CMP may be appropriate in civil proceedings before the Supreme Court
(Paragraph 28)
Extension of CMPs to all civil proceedings
6. We welcome the Government's acceptance of the importance of ensuring that the decision as to whether there should be a CMP is made by an independent court and not the Government. It represents both an important change from what was proposed in the Green Paper and a significant improvement to the Bill as introduced. We also welcome the express provision of an opportunity for the court to revisit its decision to allow a CMP at the point when it has seen all the material, open and closed, before the trial of the issues begins.
(Paragraph 35)
7. In our view the Government's amendment enabling all parties to proceedings to apply for a CMP does not provide for equality of arms in litigation because it would unfairly favour the Secretary of State.
(Paragraph 49)
8. Victims of torture or rendition whose claims may turn on sensitive material in the possession of the Secretary of State might prefer the option of a CMP to the exclusion of that material under PII. Under the Bill as it stands, such claimants may never know that material which assists their case has been excluded from the proceedings under PII. In this important respect, the Bill as currently drafted fails both key tests by which the Minister is content for it to be judged: it neither enhances the accountability of the security and intelligence agencies, nor does it enhance fairness in litigation. We recommend that the Bill be amended to restore equality of arms in the ability to apply for a CMP.
(Paragraph 50)
9. We note that the Minister promised to reflect further on this issue, and we recommend that he consider these practical proposals as a way of ensuring equality of arms between the Government and other parties to civil proceedings in their ability to apply for a CMP.
(Paragraph 53)
10. The purpose of our recommended amendment inserting the Wiley balance into the Bill was to ensure that the court considers the public interest in the fair and open administration of justice when deciding whether to order a CMP. In our view, that purpose is not served if the Bill does not contain any express requirement that the court conduct such a balancing exercise before deciding whether to allow a CMP to be used. We recommend that the Bill be amended to delete the Government's new condition that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration and to reinstate the Wiley balance as a precondition of a CMP.
(Paragraph 65)
11. We do not accept the Government's reasons for removing the "last resort" amendments made to the Bill by the House of Lords, which are based on a misunderstanding of the effect of the provisions. We welcome the Government's commitment to ensuring that CMPs are only available in those cases where they are necessary. To give effect to that intention we recommend that the Bill be amended so as to reinstate the condition that the court is satisfied that a fair determination of the issues in the proceedings is not possible by any other means and the requirement that the court "consider" whether a claim for PII could have been made, both of which have been removed by the Government's revised clause.
(Paragraph 77)
12. We welcome the Minister's unequivocal reassurance that the Bill as it stands makes no difference to confidentiality rings, which will remain available under the Bill as they are now, and that the Government has no intention of taking away the possibility of such arrangements as an alternative to CMPs. Under the last resort condition recommended above, the court will be required to consider whether the case is suitable for a confidentiality ring rather than a CMP, as part of the court's consideration of whether a fair determination of the proceedings is not possible by any other means.
(Paragraph 79)
13. We also welcome the express provision in the Bill of an opportunity for the court to revisit its decision to allow a CMP at the point when it has seen all the material, open and closed, before the trial of the issues begins, as this should make it less likely that a CMP will be used when it is not necessary.
(Paragraph 80)
14. The
provision allowing the Court to revisit its decision to allow
a CMP is no substitute for a "last resort" condition
such as that inserted by the Lords, because the test to be applied
by the court on the review is whether a CMP is in the interests
of the fair and effective administration of justice in the proceedings—the
condition that we have recommended should be deleted from the
Bill. We recommend that the Government's new clause providing
for review and revocation of a CMP declaration be amended so as
to provide for revocation if the court considers that any of the
preconditions for a CMP are no longer met. (Paragraph 81)
15. We recommend that the Bill be amended to ensure that a full judicial balancing of interests always takes place within the CMP, weighing the public interest in the fair and open administration of justice against the likely degree of harm to the interests of national security when deciding which material should be heard in closed session and which in open session.
(Paragraph 87)
16. We also look forward to a draft of the rules of court to be made under the Bill being made available for scrutiny by both Houses.
(Paragraph 0)
17. We agree with the Special Advocates that if there is to be a power to hold a CMP in civil proceedings, there should be an express statutory requirement in all cases to provide the excluded party with a gist of the closed material that is sufficient to enable him to give effective instructions to his Special Advocate. We recommend that the Bill be amended to impose a gisting obligation in all cases in which a CMP is to be held under the provisions of the Bill.
(Paragraph 96)
18. The
amendments we have recommended do not risk disclosures damaging
to national security and preserve the Secretary of State's right
to elect between providing a summary of material and ceasing to
rely on it in the case, as is already the case where the Article
6 ECHR gisting obligation applies. (Paragraph 98)
19. We also reiterate the recommendation in our first Report that the Bill provide for annual renewal, in view of the significance of what is being provided for and its radical departure from fundamental common law traditions.
(Paragraph 99)
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