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Lord Hodgson of Astley Abbotts: My Lords, in moving Amendment 55 I shall speak also to Amendments 56, 63, 64, 65, 66 and 67. This group of seven amendments spans Clauses 7 and 8. Their underlying purpose is to improve the relationship between the special advocate and his client—if that is the right word—and the special advocate’s ability to carry out his duties effectively. The group breaks down into three subgroups.

First, Amendment 55 concerns Clause 7(1)(b), under which the rules of court require,

“that such an application is always considered in the absence of every other party to the proceedings (and every other party’s legal representative)”.

This is the point that I made in the debate on a previous group of amendments. My amendment seeks to replace “is always” with “may be”. I accept that some, perhaps most, matters will be considered with national security in mind and so will have to be heard in a closed court. However, I wonder whether there will never be any matter that could be argued with a special advocate and other legal representation present. Obviously, one question is: what constitutes national security? We have had a debate about the looseness of that term. At the moment we have no definition of it. Then there are other sorts of information, such as that provided by the police and generated within the UK, which might come up and would not be within the closed material proceedings. I suppose the principle behind this is to increase judicial discretion and therefore fairness—an issue on which the Government have placed great stress. My last point on this amendment is that requiring a judge to hear CMP applications in the presence of only one side under all circumstances does not seem to fulfil the principles of natural justice.

The second group consists of Amendments 56, 64 and 65. This group is about the nature of the appointment of a special advocate and ensuring it is made in a timely fashion. Amendment 56 inserts a new paragraph after Clause 7(1)(b):

“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 procedure and trial”.

The important words here are “in advance” and “for the duration of”. In other words, the special advocate needs to be given time for preparation and for consultation. My noble and learned friend may say that this will happen anyway but I am told—I stand to be corrected—that there is no statutory requirement at present and it seems to me that in these special circumstances it might be worth while to consider that.

Amendment 64 covers the same points in Clause 8. Clause 8(1) states:

“The appropriate law officer may appoint a person to represent the interests of a party”.

For me, the critical word is “may”. My amendment seeks to replace “may” with “must”. Again, the reasons for that are self-evident and run parallel with the supporting arguments I have given for my natural justice amendment.

Amendment 65 amends the same clause by removing the words,

“in any section 6”

and replacing them with,

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“as soon as practicable following”

an application. Applications should not go unchallenged. Therefore it needs to be certain that the claimant is represented at the time of his application and during the proceedings.

The last group, Amendments 63, 66 and 67, is intended to try to strengthen the relationship between the special advocate and the claimant. Amendment 63 takes us back to Clause 7 and inserts two new paragraphs regarding what the rules of court must provide where the proceedings are in connection with a Section 6 declaration. They make it clear,

“that the special advocate is afforded the opportunity to take instructions from the party whose interests he is appointed to represent, and … that the special advocate is at liberty to apply to the court at any time if he considers that any relevant material should be disclosed”,

if he feels that is opportune.

Amendment 66 goes back again to Clause 8. Clause 8(4) states:

“A person appointed as a special advocate is not responsible to the party”.

That seems to me to be strangely indifferent and distant. I understand the nature of the relationship implied by “represent” and that is why my amendment does not propose that but it replaces “not responsible to” with the slightly warmer and more positive phrase,

“responsible for representing the interests of”.

That understands the positive nature of it but does not imply the normal professional duty and relationship.

Finally, Amendment 67 adds four new subsections. The proposed Clause 8(6) requires the special advocate to provide gists of material. We shall come to that in the next set of amendments. The proposed Clause 8(7) permits the special advocate to withdraw if,

“he considers that he is prevented or otherwise unable to properly represent the interests of the excluded party”.

I hate the split infinitive “to properly represent” but it provides a quite important albeit rather nuclear approach regarding the special advocate in the sense that he could draw attention to how the case was being run by withdrawing if he felt that his position had become untenable.

On proposed new subsection (8) in Amendment 67, the requirement for the special advocate to make a report to the ISC about each case for which he is responsible is intended to be an additional element of control. Proposed new subsection (9) would impose a duty and responsibility on him to preserve the confidentiality of closed material, except for the gist to which I referred under proposed new subsection (6), and except where material may lead to a crime that should be referred to the CPS. I have said before about that that I am the treasurer of the All-Party Parliamentary Group on Extraordinary Rendition. Some of the things that I believe have gone on in a rather shadowy way around that rather nasty practice could usefully be given some light. This would be a way in which that light could be shed.

To conclude, this group of seven amendments is intended to try to improve the quality of justice and the equality of arms by giving the special advocate a more defined role in Section 6 proceedings; ensuring

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that the special advocate attends proceedings where the issue is outside national security; ensuring that the special advocate is appointed in a timely fashion, before a Section 6 application is made; strengthening the ability of the special advocate to represent the claimant by ensuring proper access; and enabling the special advocate to resign if he feels that he cannot do his job properly.

The special advocates have circulated a paper to which I have already referred. I was particularly impressed by paragraph 17, where they list eight reasons why CMPs lack fairness and effectiveness. Three of their reasons seem to have relevance to this group of amendments. The special advocates think they are unfair because of the,

“prohibition on any direct communication with open representatives, other than through the Court and relevant Government body, after the SA has received the closed material”.

That is the first reason. The fifth reason refers to:

“A systemic problem with prejudicially late disclosure by the Government”.

The seventh reason refers to:

“The increasing practice of serving redacted closed documents on the Special Advocates, and resisting requests by the SAs for production of documents to them (i.e. as closed documents) on the basis of the Government’s unilateral view of relevance”.

These amendments are designed to tackle some of those problems. Some of the others in the list have importance, but those are the three most relevant. I beg to move.

Baroness Williams of Crosby: I mention again that I am not a lawyer, but I have the greatest respect for the noble Lord, Lord Hodgson of Astley Abbotts, who has done a very great service to this country in the excellent work that he and others have done in the All-Party Parliamentary Group on Extraordinary Rendition.

I want to underline what the noble Lord said about Amendment 66 and to ask my noble and learned friend on the Front Bench whether the wording could not be less sweeping than that in the Bill. Clause 8(4) states that,

“a special advocate is not responsible to the party to the proceedings whose interests the person is appointed to represent”.

I understand some of the problems and appreciate that there are difficulties here, but I ask my noble and learned friend to look again at the wording of the Bill. In particular, my understanding is that a special advocate is responsible for everything short of something that might put at risk national security; it does not mean that the special advocate has a way out of in any serious sense representing the interests of the person whom he has been appointed to represent. I think that that is the meaning of the wording of the Bill. Will my noble and learned friend consider wording that is less likely to raise any questions about the obligations of a special advocate for the people before them who have no other way to get across their case? I suggest that some wording that more precisely defines a special advocate’s duty and where it begins and ends would be much better than the wording currently in the Bill.

5.30 pm

Baroness Berridge: My Lords, I support two particular aspects of this group of amendments. Following the comments of my noble friend Lady Williams, I, too,

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agree with the wording in the Bill in relation to the duties and responsibilities of the special advocates. In fact, while the Joint Committee on Human Rights was taking evidence, with the special advocates and lawyers in front of us, questions kept coming up about what their professional duties were to their client, with whom they could not communicate. It seemed to me, as a former lawyer, that it was perhaps one of the safest areas in many respects to have a client because there was no way that you could be sued for negligence when you could not communicate with the person whom you were supposed to be representing. It is a very unusual situation to put a professional in. We asked whether the Bar Council had given any guidance to advocates in this situation. I, too, found it very harsh for the Bill to say that the advocate is not responsible for the interests of the person whom they represent and I think that some more positive duty in the Bill would assist.

I also support proposed subsection (7) in Amendment 67, although it is not clear because it is an extension of the professional duties. Normally it is very clear to lawyers that they can withdraw from a case in certain situations, which are outlined in professional guidance. It is not clear whether a special advocate would have the same ability to withdraw from proceedings. I was always amazed that you could often be faced with two lever-arch files of A4 paper that contained the case papers, and when you got to trial, the trial boiled down to one or two key issues. In a particular case the issues may boil down to information as to where the claimant was on a particular day, and that becomes central to the case. So there may be one or two determining facts in a case. An advocate might be faced with information from the police and security services putting a connotation on certain facts, and be unable to turn to their client and say, “Where were you in August?”. In those circumstances the advocate might feel professionally that they could not represent the client’s interests properly. It is a corollary, I believe, of the situation that I raised in relation to previous amendments. In certain cases the judge may be in that situation as well, where one or two facts are so key to a case that, without hearing the claimant’s explanation of those facts, the case cannot be determined fairly. So this subsection gives the special advocate clarity that they can, in those circumstances, withdraw from the case. Therefore I support my noble friend’s amendments.

Lord Pannick: My Lords, my answer to the point made by the noble Baroness, Lady Williams of Crosby, is that regrettably Clause 8(4) is wholly accurate because the nature of the special advocates and the task that they are required to perform is that they are not responsible to the individual in whose case they are appearing. They are not responsible because they cannot tell the person concerned the information that is known to them, as the lawyer in the case. They cannot ask the individual to comment on that information or to give instructions to them on that information. If they speak to the individual concerned, what the individual tells them—the special advocate—may be wholly irrelevant to the case, unknown to the client.

Although the special advocate system is made available as being better than no representation at all, it is inherently and fundamentally unfair in that the individual

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concerned does not know the nature of the case against them; and nothing that the special advocate does, however competent and industrious they are, can affect that. I therefore think that there is no advantage in seeking to supply in the Bill what would be a fig leaf to conceal the reality of the situation; and the reality of the situation is precisely as it is put in Clause 8(4).

Lord Thomas of Gresford: My Lords, it also raises a very interesting question about which all lawyers will be concerned: who pays? When the special advocate is appointed in civil proceedings, does the losing party pay? Does the person who made the application—namely, the state—pay, win or lose? Where do costs lie in an event like that? When you have a provision in the Bill such as Clause 8(4) here, which states that the,

“special advocate is not responsible”,

to the claimant, how can the claimant possibly be responsible for his costs?

Lord Faulks: My Lords, the whole role of the special advocate is inherently unsatisfactory and is an exception to what we understand to be a normal way of proceeding in accordance with general notions of fairness. However, it is a practice that has become well established; it has evolved. There are a number of special advocates who have performed their roles with distinction and effectiveness, as the noble and learned Lord, Lord Woolf, said in a much-quoted judgment. Many of their concerns, referred to earlier in the debate, were directed towards the way in which material was disclosed and the lateness and inadequacy of such disclosure. There may be much in those criticisms. They are fairly familiar incantations from advocates, whether the proceedings are closed or open. They do not reflect well on anyone who is responsible for late disclosure in a case.

We should bear in mind that judges have shown themselves particularly astute at protecting parties whose cases are heard in a closed session. If there is unsatisfactory practice on the part of the Government in terms of late disclosure or not giving special advocates fair access to material that will enable them to do their task, that is not going to improve the Government’s prospects and will be reflected, I suggest, in the way in which the judge approaches the case altogether.

While I have considerable sympathy for what lies behind these amendments, I would respectfully suggest that the position of the special advocates is quite correctly set out in Clause 8(4). It is not an ideal situation but it is a situation that has developed, and I trust the judges to respond appropriately to the demands that this particular procedure presents.

Lord Gold: My Lords, I am concerned that, if the special advocate is made responsible, there is a greater risk that he will rely on this amendment and withdraw from the proceedings. Although this is not a perfect situation, it is better that the advocate is there and does not withdraw; otherwise there is no representation or no points made independently at all.

Baroness Manningham-Buller: My Lords, I want to comment on one of the amendments in this group. Looking at the first part of Amendment 67, I understand

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what this amendment is trying to do, which is to improve the relationship—or, indeed, to create the relationship. However, the special advocate is not able to judge the damage that would be caused by a summary. It is the relevant person who is defined in the Bill who prepares any summaries of material. I do not think that this is workable because the special advocate, however briefed he is, will not understand necessarily the sensitivities behind the intelligence and the damage that would be caused.

Lord Lester of Herne Hill: My Lords, I would just point out that Amendment 62, which has not been included with this group of amendments, will deal with a particular way of trying to alleviate the problems about the special advocate. We will come to that in the next group.

Lord Marks of Henley-on-Thames: My Lords, I had not intended to intervene in this debate, but having heard the noble Lord, Lord Pannick, and my noble friend Lord Faulks describe—accurately, one has to concede—the role of the special advocate and the limited responsibility that he has to the person whose interest he is appointed to represent, one is bound to come back to the amendments proposed by my noble friend Lord Hodgson and ask whether there is not a field that my noble and learned friend the Minister ought to consider—namely the degree to which we might fairly increase permitted disclosure to the person whom the special advocate is appointed to represent. There ought to be a guiding principle, consistent with what the noble Baroness, Lady Manningham-Buller, said, that there should be as much communication as is consistent with the interests of justice, short of disclosing material to the party from whom some disclosure that is prejudicial to national security is withheld. The special advocate’s position could be effectively carried out without compromising national security if some movement in that direction were to be conceded. It may be that my noble friend’s amendments do not achieve precisely that balance, but at the moment we have a system that is so restrictive of communication that it destroys the public confidence in the special advocate system that there might be.

Lord Beecham: My Lords, this is an important group of amendments, as are the amendments to follow which deal with the position of special advocates. The Constitution Committee, in its report of 15 June, made reference to the earlier report of the Joint Committee on Human Rights and stated:

“The use of Special Advocates has proven to be highly controversial”.

The report then quoted the 2010 report of the Joint Committee on Human Rights which stated that, even with the use of special advocates, the closed material procedure,

“is not capable of ensuring the substantial measure of procedural justice that is required”.

The Constitution Committee report continued:

“The Special Advocates themselves have voiced grave concerns as to the limitations inherent in their role. They submitted a … response to the Green Paper”,

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which stated:

“Our experience as Special Advocates … leaves us in no doubt that CMPs are inherently unfair; they do not work effectively; nor do they deliver real procedural fairness”.

The Constitution Committee report added that even the Court of Appeal—which commended the special advocate system and said that it,

“enjoys a high degree of confidence among the judiciary”—

pointed out that the system is,

“‘inherently imperfect’ and that the system ‘cannot be guaranteed to ensure procedural justice’”.

Those are significant criticisms, even allowing for the efforts made by the distinguished body of men and women who serve as special advocates. I refer again to the evidence to the Select Committee about the special advocates, particularly the evidence of Mr McCullough, who was clear about the problems they faced. He said that the best they can do is,

“very limited indeed, particularly given the nature of intelligence material, which, very often, requires inferences to be drawn from circumstances that may have a sinister explanation … We, as the Special Advocates, are in great difficulties in displacing the sinister explanation if we cannot take instructions from the person who is in a position to provide the innocent explanation. So that is a fundamental difficulty”,

that they find themselves in under the Bill. In answer to a question from my noble friend Lady Lister in the same evidence session, he said that the legislative form of words that could be devised,

“would simply be that there is an obligation to give a minimum level of disclosure, which would enable the affected person to give effective instructions to their own representatives or to their Special Advocate. It would not be difficult to draft”.

That rather follows the line of the noble Lord, Lord Marks, in commending a procedure that would safeguard the element of national security but allow instructions—potentially, at least—to be given.

5.45 pm

A few weeks ago I listened to a radio programme, “File on 4”, which dealt with some of the Bill’s aspects that we are debating. It was striking that there was reference in that discussion to the roughly equivalent position occupied by advocates here compared with those acting for detainees at Guantanamo Bay under the American system. A British advocate had experience of both systems. It was remarkable that far fewer restrictions were imposed even on those whom the Americans were holding in Guantanamo Bay, in conditions which many of us would find repugnant, than apply here. Admittedly, there could be criminal proceedings and the rules will not apply to criminal cases in this country, as the noble and learned Lord reminded us. However, it struck me rather forcefully that the American system which many of us criticise provides better support for people in this position than will apparently be the case under these provisions. In response, the Lord Chancellor rather airily dismissed this comparison and implied that all is well. He tends to paint with a broad brush, of course, but in matters of this kind a rather more pointillist approach would be better. Considering the detailed objections to the current process would be a better approach than simply assuring the world at large that all is well.

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I have a great deal of sympathy with most of the amendments moved and spoken to by the noble Lord, Lord Hodgson. Indeed, my noble friend Lady Smith and I have subscribed to Amendment 64, dealing with the appointment of special advocates. We envisage not quite a lawyer-client relationship, but something closer to that than the rather anomalous and, as it were, free-floating position that the present status appears to involve. We feel that the special advocates—all of whom are vetted and very experienced—should have a greater role in the proceedings in order to test the applications that will be made.

It would be interesting to know a little more about the experience of special advocates in the other context in which they operate. I understand that the result of the intervention of special advocates in control order cases is often the disclosure of more material than was originally envisaged. I know that the noble and learned Lord will be unable to supply an answer this afternoon, but I wonder whether there is a record of the number of occasions that special advocates succeeded in securing the disclosure of more material. That would indicate that their role really needs to be reinforced and endorsed in the context of the Bill.

It is also the view of the Opposition that the application should be heard in the presence of a special advocate and that the special advocate should be empowered to apply for more material to be uncovered. In particular, the two proposed subsections in Amendment 63 are worthy of the Government’s consideration. I remind your Lordships that Amendment 63 would, first, provide that the special advocate has the opportunity to take instructions from the party whose interests he is appointed to represent; and, secondly, that he should be at liberty to apply to the court that any relevant material should be disclosed. It may be that the Minister would not go so far in respect of the second limb as the amendment suggests. I hope that he would. However, if he would not, would he consider at least providing the special advocate with the capacity to take instructions before seeing the secret material that is disclosed? It would be better if the special advocate had knowledge of what was in that category, but at the very least he should be able to take instructions on the generality of the case, so far as it is apparent at the time of his being instructed. That does not seem to be envisaged within the Bill’s current arrangements. That would not be even a halfway house, but it would at least be an improvement if that were a possibility.

This group of amendments is clearly designed to strengthen the special advocate’s role. It would therefore allow some redressing of the balance in favour of those whose rights as a party are inhibited by the Bill’s provisions. It is an area which I hope the Government will think very carefully about. These are quite draconian measures in terms of the party’s capacity to have a case properly presented. Given the high level of security already involved in the employment of special advocates, and their integrity, it seems necessary to ensure that they have the wherewithal to provide a proper service to the parties and, indeed, to the court.

The noble Lord, Lord Thomas, makes a valid point in raising the question of who should pay. Special advocates could, in a sense, be regarded as acting as amicus curiae. Therefore, perhaps the state should pay.

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Given the limited role which the Bill envisages, it would be strange if the party whose interests they are seeking to represent were required to pay. The party would be getting less than the normal service which the noble and learned Lord would be offering, if he were instructed on their behalf. It seems proper—I assume that it will the case, but perhaps the noble and learned Lord could confirm it—that the state should fund the relevant costs. However, the more important question is the role that the special advocates are able to pursue. In the view of the noble Lords who have spoken, and indeed in the view of the Opposition, the Bill does not currently confer sufficient discretion to enable them to do their job, not only on behalf of the parties but also in the interests of justice and to assist the court.

Lord Wallace of Tankerness: My Lords, this has been a very important debate on the role of the special advocates in the proceedings which are proposed in this part of the Bill. I am particularly grateful to my noble friend Lord Hodgson of Astley Abbotts for the way in which he introduced his amendments, in which he gave a very clear and concise indication of the purpose of each amendment and what the effect would be. That helped to set the tone for a very useful debate, and I appreciate the contributions from colleagues across the Committee.

Amendment 55 raises an important procedural point on how the application process for closed procedures would work in practice. My noble friend and I agree that it is essential that we balance fairness and national security. I hope I can set out why the balance has been struck in the way that it has and that the proposals put forward in the Bill are indeed fair.

Clause 7 means that an application for closed proceedings is always considered without any other party to the proceedings or their legal representatives being present. The amendment tabled by my noble friend would allow the court the discretion to allow another party into the application stage of the proceedings. Perhaps I can reassure my noble friend that special advocates are not excluded from the process of determining whether material should go into open or closed proceedings. Clause 7(1)(b) does not have that effect. Rather, it is to be read in the light of Clause 7(1)(a), which involves the application for material to be shown to the courts, special advocates and the Government only. Where Clause 7(1)(b) says,

“in the absence of any other party”,

it is not meant to exclude those referred to in Clause 7(1)(a). I hope that gives reassurance.

I indicated in an earlier debate that, by virtue of a later clause in the Bill, the role of the special advocates is there at the application—the original gateway stage, as we have come to call it—as well. At stage 2 of the CMP process there is a detailed document-by-document consideration during which special advocates can challenge each piece of sensitive material and make representations to the judge about why it should go into the open or be summarised, as well as make representations on the weight given to that material. This is what special advocates have done and do under current CMP cases very effectively indeed.

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The noble Lord, Lord Beecham, asked how many times more information was made available. I am not sure whether that information is available. If it is, I will certainly share it, not only with the noble Lord but also with the Committee. However, in every case under the current statutory closed material proceedings, and indeed, I rather suspect, under those before the Al Rawi judgment where sometimes closed material proceedings were held with the concurrence of both parties, there have been incidents where specific pieces of evidence or specific documents have been admitted, allowed to be disclosed or ordered to be disclosed, so it may not be possible to give the full details in every case.

It is worth pointing out that there have been cases where, as a result of the work of the special advocates, the case for the excluded party has been successful. The noble and learned Lord, Lord Woolf, in M v Secretary of State for the Home Department has been quoted on a number of occasions in your Lordships’ House during these debates and clearly makes the point about the effectiveness with which the special advocates go about their work.

It is important to emphasise again that the judge will have a similar level of flexibility available to him or her under PII. For example, the judge will have the power to refuse non-disclosure, to permit non-disclosure of only parts of a document—in other words, redaction —to require summaries or gists, or to require a party to take action for refusal to disclose or summarise, for example, not to take certain points, or indeed to make concessions.

Where Article 6 so requires, the judge will always approach decisions about whether individual pieces of material are to be heard in closed proceedings from the perspective of the need to ensure that the proceedings are fair. Judges will refuse applications for material to be heard in closed proceedings where this is required by Article 6 fairness, and can order the Secretary of State not to rely on a particular argument if the Secretary of State is not willing to disclose material relevant to that point.

It is important to note that the application for a closed procedure could have open and closed parts. Only sensitive information which would damage national security would result in a proceeding taking place without the other parties, and I hope this explanation sets out the balance we have sought to strike.

Amendments 56, 63, 64, 65, 66 and 67 tabled by my noble friend concern the special advocates, and from the debate there is clearly concern in your Lordships’ House about the role of special advocates. These amendments highlight the important issues of how they are appointed and how they carry out their functions. I will endeavour to set out why I believe we have the necessary provisions in the Bill to allow the special advocates to operate as effectively as possible while at the same time safeguarding national security.

6 pm

We wish to ensure that the special advocate system works as fairly and as effectively as possible, while avoiding damaging disclosure. I believe that special advocates are extremely effective, particularly in arguing

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for the disclosure of material from closed into open, or for summaries of that material to be disclosed. As the courts have recognised, special advocates provide an effective measure of procedural justice where a closed material proceeding is used.

My noble friend Lord Hodgson expressed concern about late service of closed material. The Government reject the allegation that there is a systemic problem. The Government’s position is that we would seek to ensure that all material, including closed material, is served according to the directions set by the court wherever possible. The court sets the timetable and can take action, including adjourning proceedings, if any real prejudice has been caused to the individual.

My noble friend also raised the practice of serving redacted documents. In all civil proceedings the Government review the documents that they hold and assess their relevance. In making their assessment, the Government are bound by the duty of candour and legislative disclosure obligations and are inevitably advised in this regard by counsel who also have a duty to the court, just like any other defendant in civil proceedings.

Redactions on the grounds of relevance to closed documents are sometimes necessary. However, we are not aware of a widespread or increasing practice of redacting information. Special advocates can challenge redactions about which they have concerns during litigation. If the court disagreed with the Government on redactions, then it would rule accordingly. Similarly, if special advocates sought disclosure of specific documents, the court would rule on their relevance if the Government resisted such disclosure.

My noble friend Lord Thomas of Gresford, on a point picked up by the noble Lord, Lord Beecham, asked about who pays for the special advocates. The Government pay for them. Decisions with regard to the costs of a case overall are determined by the judge in the normal way, but the Government always meet the costs of the special advocates because it is the Government who wish to see the closed material proceedings.

Amendments 56 and 65 would provide that a special advocate be appointed at the beginning of proceedings in which the Secretary of State has made an application under Clause 6(1). There is, however, already sufficient provision in the Bill on the appointment of special advocates. The Bill already provides that the appropriate law officer may appoint a special advocate to represent the interests of the excluded party. The rules of court under the Bill will, like the rules of procedure which exist for other statutory CMPs, then deal with the precise mechanics. There is thus already sufficient provision for the law officer to be informed and to act to appoint a special advocate. In a moment, I shall return to the point raised by my noble friend about “must” and “may”. The format in the Bill follows what is already the case for existing CMPs, such as in the Terrorism Prevention and Investigation Measures Act 2011 and the Special Immigration Appeals Commission Act 1997.

Amendment 63 introduces the opportunity for special advocates to take instructions from the party they are representing. There are already provisions for

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communication between special advocates and the excluded party according to set procedures. The detail of these procedures would be set out in the rules of court, which would reflect those in Part 80 of the Civil Procedure Rules for TPIMs.

The noble Lord, Lord Beecham, asked about communication prior to the service on a special advocate of the closed material. The position is that under the procedures before receipt of the closed material, the special advocate is free to speak to the excluded person and his open legal representatives without restriction and to take instructions from the excluded person. I hope that gives some reassurance on that point.

It is following receipt of the closed material that the special advocate may communicate with the excluded person only with the permission of the relevant court or tribunal which is then required to notify the Secretary of State or the party whose security-sensitive material has been adduced in closed proceedings. This requirement is designed solely to guard against the risk of inadvertent disclosure of security-sensitive material. Even then, there are no restrictions on the written communications that a special advocate can receive at any time from the excluded party.

In the context of these proceedings, it is important to make the point, as the noble and learned Lord, Lord Woolf, did in our debates on the second day in Committee, that in these circumstances we are dealing with situations where the state is likely to be the defendant. I think the noble Lord, Lord Pannick, talked about the case against it. Mostly in these situations, we are dealing with cases against the Government, and it is likely that the state will be the defendant and the person who is the claimant will have full knowledge of the case that he or she wishes to present. The noble and learned Lord, Lord Woolf, expressed that in a very clear and compelling way earlier in our proceedings.

The special advocates acknowledge that communication to the excluded party in relation to the substance of the closed material may well be impossible. That picks up a point made by my noble friend Lord Marks who said how this could be extended. We are certainly aware that special advocates have raised these matters. The purpose of the restrictions on communication is to ensure that national security is protected by avoiding inadvertent disclosure. That is something that the special advocates are also determined to avoid. In instances where agents or sources are involved, this can be about protecting life itself. The agencies have reaffirmed their willingness to continue assisting with queries and rephrasing questions on the closed material, something which at the moment occurs in cases on an informal basis.

There has also been some suggestion about unfettered communication on procedural matters. If there is a problem, a communication about administrative or procedural matters might appear innocuous but could inadvertently reveal something of the nature of a closed case. Every case has different circumstances, different contexts and different sensitivities which a special advocate may well not be aware of and may not be expected to be aware of. What might appear to be a safe question in most contexts may carry a risk in

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relation to one case. We believe that only agencies are in a position to make that judgment and fully determine the potential harm to the national interest.

My noble friend proposes, also in Amendment 63, to introduce a provision for the special advocate to apply to a court if he considers that any material should be disclosed in open court. The default position in any proceedings in which the court has declared that a CMP may be used is that material will be in open court. If the Government want material to be heard in closed procedure, they would have to apply for that to happen. In this application, a key part of the special advocates’ role would be to challenge whether closed material should in fact be disclosed to the excluded individual; they have had a number of successes in arguing this in various cases. Therefore I believe that Amendment 63 misunderstands the way in which Clause 7 would work in practice.

My noble friend’s Amendment 64 would introduce an obligation on the appropriate law officer, rather than a discretion on an officer, to appoint a special advocate. I can readily see why my noble friend has tabled this amendment because he may well see that there is a possible let out here from a special advocate being appointed. The current discretionary power allows for the fact that an excluded person may not wish to appoint or provide instructions to a special advocate for whatever reason, in which case it is likely to be impossible for a special advocate to represent the excluded person. However, in practice, it is difficult to conceive of circumstances in which the appropriate law officer would not appoint a special advocate where statute makes provision for a special advocate to be appointed and the excluded party wants a special advocate to represent their interests. The word “may” is used in the corresponding provision of the TPIM Act at paragraph 10 of Schedule 4.

Lord Beecham: I wonder whether the noble and learned Lord could deal with this matter by accepting a slight modification to the wording so that there “must” be an appointment of a special advocate unless the party declines to accept the appointment.

Lord Wallace of Tankerness: That is a helpful suggestion. I am always wary of saying that, as it might cast doubt on what has been put in an earlier statute which is intended to do the same thing. An absolute requirement may lead to a special advocate being appointed in circumstances where it would be almost impossible for the person to function. I hope that the noble Lord is reassured that it is our intention that whenever an excluded person wants a special advocate, a special advocate will be appointed. I note what he says. Without wanting to cast doubt on what is in other statutes, we shall certainly have regard to what he says.

Lord Lester of Herne Hill: I appreciate that there is always the danger of what Lord Wilberforce once described as the “austerity of tabulated legalism”. I ask my noble and learned friend whether it is absolutely clear that, in exercising the rule-making power under

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Clause 7, nothing will be done to disturb the overriding objective, which is to enable the court to decide the case justly? That is a fundamental principle which must not be overridden, whatever the technical detail may be.

Lord Wallace of Tankerness: I would want to reflect on what the “austerity of tabulated legalism” actually means. We have had exchanges in earlier debates and we have set out why an express reference to Article 6 of the European Convention on Human Rights is incorporated into the Bill. I hope that my noble friend is assured by that. I am about to get to the point made by my noble friend Lady Williams. I will get there eventually.

Baroness Berridge: Following on from the point made by my noble friend Lord Lester about the overriding objective to act justly, if there is not a special advocate in the closed material proceedings, our courts will be hearing only one side in a completely unchallenged format. Therefore, is it not better to have the mandatory requirement? Even having a special advocate there who we know does not have an ordinary relationship with the client enables a more judicial decision to be made. Confidence in our courts will be more likely to be upheld if there is somebody probing potentially at the truth and not just acting on behalf of the claimant. One-sided proceedings could damage confidence in our judicial decisions.

Lord Wallace of Tankerness: The point I was making to my noble friend is that we are dealing with a rare and exceptional circumstance where an excluded person has indicated that they do not wish to appoint or provide instructions to a special advocate. Before acceding to my noble friend’s point, one would have to consider the almost impossible position that would put a special advocate in. It would be very difficult, if not impossible. That is why this is phrased as it is. It is very unlikely that that would happen. I am not aware that it has happened, but no doubt others who have practised will be aware. The noble Lord, Lord Pannick, is shaking his head. He is not aware of circumstances where that has happened. The great likelihood is that the excluded person will want a special advocate appointed to do the very kind of job that my noble friend rightly articulates.

My noble friend Lady Williams referred to the particular provisions in Clause 8 and to Amendment 66, which would remove the fact that a special advocate is not responsible to the party whose interests they are representing. The noble Lord, Lord Pannick, expressed very clearly why that provision is there in the form in which it is. The Bill makes clear that while the excluded party is not the client of the special advocate, the special advocate is specifically appointed to represent the interests of the excluded person. We believe that it is not possible to go further and to permit the special advocate and the excluded party to have a lawyer-client relationship. I fully understand my noble friend’s point but I think that the subsection is a product of the way in which the role of special advocate has developed. The concept of a party’s legal representatives being

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privy to information which is not disclosed to the client raises serious ethical and professional problems. That is why the provision is there. I think I am right in saying that it is reflected in some of the other statutory provisions where there are closed material proceedings.

Amendment 67 introduces a responsibility on the special advocate to provide a summary of closed material to the excluded party. There are two important aspects to that. First, the question of whether a summary should be provided is and should continue to be in the hands of the judge. It is the judge who will determine whether a summary of the evidence should be made available to the other party, whether this can be done without harming national security or whether it is deemed necessary for the proceedings to be fair, even where damaging to national security. Secondly, the special advocate, as I have indicated, is not in a position to determine harm to national security by deciding what information can be passed on to the excluded party. Rather, it is for the security and intelligence agencies to undertake this assessment. Special advocates have accepted that communication to the individual regarding the substance of closed material presents difficulties and may well not be possible without the involvement of the court and, in particular, the Government, to avoid the risk that inadvertently damaging disclosures are made. Mr Nick Blake, who is now a High Court Judge, gave evidence to the Joint Committee on Human Rights in 2007 while still a special advocate. In that evidence session he acknowledged that changing the rules to allow communication after service of closed material would put enormous responsibilities on special advocates not to disclose information inadvertently. We know that special advocates take that responsibility very seriously indeed. That is why we do not believe that it would be appropriate for the special advocates to determine the summary of the evidence to be made available.

6.15 pm

Amendment 67 aims to confer a right on the special advocate to withdraw from proceedings. That point was made by my noble friend Lord Hodgson in moving the amendment and also by my noble friend Lady Berridge. We believe that it is not necessary to make provision for a special advocate to withdraw. The special advocate may already do so. In these circumstances, the appropriate law officer would appoint another special advocate of the excluded party’s choice.

Amendment 67 also proposes that special advocates write to the ISC after closed proceedings. The ISC is a parliamentary body with a specific role regarding the work of the agencies and the wider intelligence community. It would not be appropriate for it to take on a role of judicial scrutiny over the workings of a court proceeding. On the point of introducing a duty on a special advocate to maintain confidentiality as regards the proceedings, special advocates are security cleared and already bound by this duty. The rules of procedure for closed material proceedings make it clear exactly with whom the special advocate may or may not communicate regarding any matter connected with the proceedings. The exception of requiring a special advocate to refer something to the Crown Prosecution Service would put him or her in an extremely difficult position.

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However, I recognise the point made by my noble friend and believe that in these circumstances it would be more appropriate for the special advocate to raise such a concern with the judge; in which case they would be fully able to do so.

It is important that we have discussed these different issues. I hope I have shown that the provisions in the Bill and the rules of court which will be made under these provisions will enable special advocates, in dealing with closed material proceedings, fully to deploy the skills in which they have already been shown to be more than competent. I ask my noble friend to withdraw his amendment.

Lord Hodgson of Astley Abbotts: My Lords, this was a menu of issues that I felt we ought to discuss today. I am exceptionally grateful to my noble friends Lady Williams and Lady Berridge for their support on Amendments 66 and 67. The noble Lord, Lord Pannick, did us non-lawyers a favour by revealing the full neutrality—or less than neutrality—of the special advocate. Describing my amendment as a “fig leaf” may have been a bit brutal, but it was at least clear. We now know where we stand, even if we are not reassured by it. I say to my noble friend Lord Gold that, whatever the rights and wrongs of the explanation given by my noble and learned friend on the Front Bench, to say that a special advocate has to stay because it is better that he stays, even if he does not like doing the job, than for the case not to be able to carry on, seems to be a strange way of following justice. My noble friend Lord Faulks seemed to be dangerously close to saying, “This is as good as it is going to get. Let’s trust the judges”. If we are not careful, we will put too much weight on the judges and on their judgment. We need to provide some buttress and support to them in their difficult choice and the difficult task that they carry out.

I am grateful to my noble and learned friend on the Front Bench for his extensive summing up. I am convinced by the arguments on Amendments 55 and 63. On Amendment 64, my noble and learned friend said that a claimant may not want to have a special advocate. Given what the noble Lord, Lord Pannick, said about the nature of the relationship, it seems that the claimant has virtually no interest in this at all. On “must” be appointed, it would be a good idea if he were appointed, because at least it would be better than nothing happening at all. That is an important issue and it is made more important by the way that the noble Lord, Lord Pannick, has illuminated the nature of the relationship or non-relationship.

With regard to Amendment 67, I am not suggesting that the ISC should have judicial scrutiny. I am trying to find a mechanism that will enable some body in which the Government, Parliament and society can have confidence to cast an eye over the way this procedure is working and ensure that the very important delicate balance, which we all know exists between national security and individual liberty, is maintained.

The speaking notes that officials prepared for my noble and learned friend did not get to the heart of what I was driving at. However, a lot of useful information was given by my noble and learned friend. I am

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extremely grateful to him and to all other noble Lords. I am sure that there are bits that we will want to come back to, but for the time being, I beg leave to withdraw the amendment.

Amendment 55 withdrawn.

Amendment 56 not moved.

Amendment 57

Moved by Lord Hodgson of Astley Abbotts

57: Clause 7, page 5, line 31, leave out paragraph (c)

Lord Hodgson of Astley Abbotts: My Lords, I am afraid that I have another group of amendments. In moving Amendment 57, I will also speak to Amendments 60, 61 and 68. Other amendments in this group, Amendments 58 and 59, will be spoken to by noble Lords more experienced in the law than I am. Again I await with some relief the arrival of the heavy artillery.

The purpose of this group of amendments is to encourage the use of gisting as a means of ensuring equality of justice. I accept that the amendments are quite challenging in the form that they have been put down, but I ask my noble and learned friend to see that they are balanced by the duty of confidentiality that was imposed on special advocates in my Amendment 67, which was in the group that we were just discussing.

Simply put, Amendment 57 omits Clause 7(1)(c), which imposes a duty on the court not to allow gisting. That strikes at the root of what this group of amendments is trying to achieve.

Amendment 60 takes Clause 7(1)(d) and replaces the words “consider requiring” with the word “require”, so that,

“if permission is given by the court not to disclose material, it must consider requiring the relevant person to provide a summary”,

would read,

“it must require the relevant person to provide a summary”.

As I said, the aim is to widen the use of gisting. Amendment 61 would omit Clause 7(1)(e) because it is again dependent on the national security definition and has in part been covered, as I said in my introductory remarks, by the duty of non-disclosure imposed by Amendment 67.

Finally, Amendment 68 would omit Clause 10(1) because I am not quite clear what it means. It seems to repeat Clause 7(1)(c) and I would be grateful if my noble and learned friend could explain why we need it.

In Committee, all our debates have had a pre-eminent underlying theme: how to balance the liberty of the subject with the need for national security and the judicial process. Gisting is one way to help that balance. I beg to move.

The Deputy Chairman of Committees (Viscount Ullswater): My Lords, I must advise your Lordships that if this amendment is agreed to, I will not be able to call Amendments 58 and 59 because of pre-emption.

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Lord Thomas of Gresford: I speak to Amendment 58 in my name and that of my noble friend Lady Hamwee. Clause 7(1) contains five paragraphs of which (a), (b), (d) and (e) are largely procedural. But paragraph (c), which 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”,

goes to the heart of the issue. Does the judge have any function when he is considering an application? Can he carry out a balancing exercise in which he can weigh the interests of not disclosing material against the interests of justice?

My amendment is simple. I note that my noble friend Lord Lester and the noble Lord, Lord Pannick, have a similar one to follow. I will not weary your Lordships with the argument for any length of time. It introduces the instruction to the judge that he must balance his decision and not simply follow a rubric that is laid out for him by the statute as currently drafted.

Lord Pannick: My Lords, I am certainly not the heavy artillery to which the noble Lord, Lord Hodgson, referred, but I will offer him some small arms fire in support. Amendment 59 is in my name and that of the noble Lord, Lord Lester of Herne Hill. As with all the amendments in this group, and as indicated by the noble Lord, Lord Hodgson, it is a further attempt to address the core problem with which the Committee has been concerned in relation to Part 2 of the Bill: that is, the need to ensure that the court is given power to order a CMP in the exceptional cases in which such a need arises, but only where there is no other fair and proper means of balancing justice and security.

Amendment 59, as the noble Lord, Lord Thomas of Gresford, said, is in similar terms to his Amendment 58. It would ensure that the rules of court would require the judge to ask whether the damage that the disclosure would do to national security would outweigh the public interest in the fair and open administration of justice. The Bill as drafted, as I understand it, would enable a CMP to be imposed even if the judge concludes that the damage done by not moving to a CMP was minimal, and even if the damage to fairness by denying open justice was substantial on the facts of the individual case. That cannot be right, especially when, as we have previously debated, a decision by a judge not to adopt a CMP would impose no obligation on the Secretary of State to disclose the material, because they would have the option of not continuing to defend the proceedings.

Amendment 59 is designed to implement the objective that was stated by the independent reviewer of terrorism, Mr David Anderson QC, in his oral evidence of 19 June to the Joint Committee on Human Rights. He said:

“The closed material procedure is a weapon that could usefully be added to a judge’s armoury, but it should be for the judge to decide on the fairest way to dispose of a case”.

At present, Clause 7 prevents that desirable objective from being achieved.

I will speak also to Amendments 60 and 62 in the group, to which I have added my name. Amendment 60 would require the judge, if ordering a CMP, not just to

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“consider requiring” a summary of the closed material to be provided to the other parties—it would require that such a summary of the closed material be provided.

Amendment 62 would require the court to ensure that the summary of the closed material contained sufficient information to enable the excluded party to give effective instructions to his legal representatives and to the special advocate. It would require the summary to satisfy that test even if it would impinge on national security. The reasoning behind Amendment 62 is that it sets out the bare minimum necessary to ensure a fair hearing. It is based on the criteria that were stated by the Appellate Committee of this House in the AF case in 2009 in relation to control order cases. Sufficient information was required by the Appellate Committee in a control order case to enable the subject to give effective instructions, even if such disclosure would have damaged national security. I declare an interest: I was counsel to AF in that case.

6.30 pm

To deny the litigant—whether he is a claimant or defendant—at least a statement of the gist of the case against him so that he has an opportunity to respond is unfair and whatever other procedures we put in place, it would remain unfair. The Appellate Committee accepted—and it was surely correct to do so—that disclosure of the gist of a case is required because the special advocate, however competent or industrious, cannot secure fairness for the litigant whose case is decided through a closed material procedure. The special advocate, as we heard this afternoon, cannot take instructions from the litigant in relation to the closed material, and cannot put the litigant’s case to the witnesses. That is what Mr Angus McCullough, a distinguished counsel and one of the special advocates, said in his evidence to the Joint Committee on 26 June. It has been quoted already this afternoon, but I remind the Committee of what he said:

“The best that we can do … is very limited indeed … We, as the Special Advocates, are in great difficulties in displacing the sinister explanation if we cannot take instructions from the person who is in a position to provide the innocent explanation”.

The role of the special advocate will not prevent the litigant from almost inevitably feeling a deep sense of injustice when the case is decided against him for reasons of which he is not informed, and after a procedure in which he has played very little part. This point was made with some clarity in oral evidence to the Joint Committee on 26 June by counsel very experienced in this field, Mr Ben Jaffey, who practises from Blackstone Chambers, as do I. He told the Joint Committee that he would,

“encourage anyone who finds the idea of a Closed Material Procedure more attractive than the alternatives to come and watch one from the perspective of an individual before deciding that it is a better way of approaching things … I have accompanied quite a lot of people who have sat behind me in court and they have undergone this process of slight realisation over the course of a day or so … The realisation happens when an individual asks the judge or asks the counsel for the Secretary of State exactly what they are meant to have done wrong, and the judge says, ‘I am very sorry but I can’t tell you that’, and then receives the judgment and asks me, ‘I don’t understand why I’ve lost’, and I am afraid I have to say, ‘Well, I don’t either’. Sometimes that process of realisation is quite quick but sometimes it happens much more slowly, and the realisation happens as the person who

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is watching one of these cases realises, ‘I’m in a court. There are barristers with wigs on, there are judges, there are formal legal procedures, but there is actually something missing’, and what is missing is the testing of evidence on both sides, which is the basis of our adversarial system. It has many flaws but, in practice, it has tended to work quite well”.

Mr Jaffey concluded:

“That is why I have concerns about extending Closed Material Procedures to civil trials”.

This demonstrates with clarity the inherent unfairness and the reasons why it is absolutely vital to ensure a semblance of fairness in this procedure, whereby the individual concerned is told at least the gist of the case against them.

It is not just that the litigant will inevitably feel a deep sense of injustice when they lose the case and are not told why. Judgments that are reached through a procedure in which at least a summary is not provided to the litigant will inevitably fail to command the confidence of the communities from which the disappointed litigants come. That was a point made earlier this afternoon by the noble Lords, Lord Dubs and Lord Marks of Henley-on-Thames. To adopt this procedure would run the very serious risk of undermining the respect in which the law is held by law-abiding citizens. Those who have no respect for the law may fail to pass on information that the security services require in order to do their job. That, too, would pose dangers for national security. For all those reasons I suggest that we are dealing here with fundamental issues, and that it is vital that the Bill contain the minimum safeguard that the individual concerned should be told at the very least the gist of the case against them.

Lord Lester of Herne Hill: My Lords, my name appears on some of these amendments, and I will briefly make a couple of points. I say first to my noble friend Lord Hodgson that he makes a mistake if he refers to me as heavy artillery, since I was the most inefficient gunner officer during the Suez invasion. I lost an entire water-carrying convoy, and laid a smokescreen with 100-metre gaps in it. I do not regard myself as heavy except in a physical sense. Further, the noble Lord, Lord Pannick, referred to Blackstone Chambers, which is my chambers as well. However, I make it absolutely clear than under the cab rank principle, many members of my chambers have appeared on the other side in these cases. Certainly, although I listened to Ben Jaffey, I regard the fact that I am in his in chambers as immaterial.

The noble Lord, Lord Pannick, said almost everything that needs to be said, except that the Joint Committee on Human Rights itself recommended what is now Amendment 62. In paragraph 106 of its report, it recommends that,

“the obligation to disclose sufficient material to enable effective instructions to be given to an individual’s special advocate should always apply in any proceedings in which closed material procedures are used”.

In the previous paragraph, the report quotes my noble friend Lord Carlile as saying that AF standards—that is, these disclosure standards—,

“should apply to all proceedings in any event. I can see no respectable argument against gisting in any circumstances”.

The JCHR report concludes: “We agree”.

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My other point is that although I am keen on the European Human Rights Convention setting minimum international standards, in this kind of area it is the common law standards and the standards of Parliament that really set fairness in this country. I sometimes worry that reliance on Article 6 of the convention, in a system where the civil law is very strong, may actually diminish the strength of the common-law system. So I hope that the fact that these amendments have the blessing of the all-party Joint Committee on Human Rights, of the special advocates and of my noble friend Lord Carlile, the former independent reviewer of terrorist legislation, as well as of those who spoke in this debate, will carry great weight with the Government.

Baroness Kennedy of The Shaws: My Lords, I agree with my legal colleagues in this House about the need for gisting as a step towards creating greater fairness. In my view, there has to be an obligation to disclose because the detainees in these cases—I have acted in them—are deeply disadvantaged. The noble Lord, Lord Pannick, has described powerfully the bewilderment and disappointment in detainees when an order is made against them, but they have not understood the case against them. I shall give an example because sometimes that helps us to root our understanding of why something might matter.

I took a case where a young man was to be deported on the grounds of concerns about national security. The gist of the case against him suggested that he had been present at a meeting in a house he shared with many other students at which discussions were held that were of concern to the authorities. Because the gist of the case was offered to us, it was possible to show that at the time the meeting took place the young man had been using a computer that was linked to the university in order to work on his thesis. The interactivity showed that he had been involved in quite complex, difficult work on his computer, which meant that he could not have been participating in and party to the meeting taking place in the house. That was one of the features of the case that made a real difference, but we would not have known about it if the gist had not been given to us. The force of something can only be brought home to those not involved in these cases by the use of a real example. The noble Lord, Lord Pannick, described people sitting in the court and being mystified by the process. That drives home just how unacceptable it can be.

I strongly urge that we do this least thing in trying to address the concerns about the whole business of closed material proceedings.

Lord Carlile of Berriew: My Lords, perhaps I may take a few moments to make four short points in support of Amendment 62, tabled in the name of my noble friend and the noble Lord, Lord Pannick. Gisting presents great advantages, above all of which, in a headline, is the advantage of fairness. First, it compels the Government’s advocates to focus on the real reasons for pursuing their particular point. Using the very good example cited by the noble Baroness, it enables them to see where they are wrong because an answer can be given if the gisting occurs. Secondly, it shortens

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the proceedings. If the gist is given, there have been quite a number of cases where the individual has seen that it is not worth opposing the application because he knows perfectly well where he was or what activity he was engaged in at a particular time. Thirdly, it is a fair process, or at least it is as close to a fair process as we are going to be able to achieve when dealing with national security. My fourth reason for supporting Amendment 62 relates to the other words in it which do not deal with gisting of itself. It concerns the ability,

“to enable the excluded party to give effective instructions to his legal representative and special advocate”.

I know that this is going to arise a little later too. To improve the procedure for arrangements to be made under the rules of court, it is absolutely essential for the individual to be able to give instructions to special advocates just as they can give instructions to their own counsel.

I think that this three-line amendment covers a multiplicity of issues and should be supported. I hope that my noble and learned friend on the Front Bench will see the sense of it.

6.45 pm

Lord Judd: My Lords, perhaps it is an appropriate moment for someone who is not a lawyer to add a layman’s word. We debated these issues very fully at Second Reading and I believe that the helpful amendments before us are a good attempt to try to meet some of the anxieties that were expressed then. Speaking as a layman, what has always been important to me is the principle which has emerged from the history of our judicial system: someone who is accused of an offence should know the case against them so that they can defend themselves. The noble Lord, Lord Pannick, talked about how there is an element of unfairness in what is happening. That is true, but I think it is more fundamental than that. It is not just about unfairness; it is that we are breaching the principles of justice as they have emerged. That is what has happened because of the dreadful and appalling security issues which have arisen. As these procedures are applied, every possible effort should be made to keep the priority of justice at the forefront. Anything that can be done to achieve this should be pursued.

I am fearful that a certain sort of tendency could develop, but it should not be assumed that this is a change of gear which can easily be made in the process of a case. There must be a real and specific reason for doing it, and it should be limited to the fewest possible occasions. Even then, it is terribly important that we are certain that the principle of justice has been very much in the forefront of the minds of the judge and of everybody else before we pursue the technique.

We know that in the cause of combating terrorism and the extremism that leads to terrorism is crucial not to give ammunition to the cynical extremists who seek to exploit the impressionable with plausible argument. I cannot think of anything that has the potential to give more ammunition to an extremist wanting to recruit an impressionable person than for him to be able to say, “Look, there has not been proper justice in this case”. From that standpoint, the arguments we

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are putting forward are central to the issue of anti-terrorist and security policy itself. I am absolutely convinced of that. The people who have put forward these amendments are doing us a good service in terms of upholding the principles of justice and avoiding the terrible pitfalls of counterproductivity in the fight against extremism and terrorism.

Baroness Williams of Crosby: My Lords, I should like to follow the noble Lord, Lord Judd, in what one might call a very short interval for non-lawyers to speak. He has pointed to some crucial considerations that need to be borne in mind. I will turn for a moment to Amendments 58 and 59, which are crucial to a fair outcome of this complicated debate. In doing so let me say that I strongly agree with those who have argued for gisting as a way of moving a bit closer towards a just outcome for those who cannot be openly represented and, indeed, cannot instruct their representatives how to behave. It helps the people concerned feel that some sort of justice has been done.

We heard in the words of the noble Lord, Lord Hodgson of Astley Abbotts, the attempt to define national security in a way that would narrow down the implications to what was really of crucial importance to the nation. The response from my noble and learned friend on the Front Bench showed how difficult it is to make a definition of that kind. However hard we try there are always ways in which it is, as he said, either too narrow or too broad.

In Amendment 58, tabled by my noble friends Lord Thomas and Lady Hamwee, and Amendment 59, tabled by the noble Lord, Lord Pannick, and my noble friend Lord Lester, we have a way of getting back to a balance between what is represented by the need for security and what is represented by, in the words of the noble Lord, Lord Judd, the principle of justice upon which the whole of the British legal tradition has been based. That is exactly right. We have heard a paean of praise to our judges, saying that they are very capable of making difficult balanced judgments of this kind. The attempt to give back to them the decision about what that balance is is one that we can reasonably feel is in competent hands, where justice is likely to be the outcome.

What happens if one does not have Amendments 58 and 59 in this Bill? We have neglected this, or perhaps we had an earlier brief discussion about this at the beginning of the day’s proceedings but we have moved a long way since. What happens if one regards national security as having such a primary place that one forgets the interests of justice almost altogether? An example of it is the attitude of the general public, where they believe themselves to be put in a position of extreme difficulty and inconvenience because of a ludicrous pursuit of security. The noble Lord, Lord Deben, gave us an example of that.

Let me give another one, the way in which the concepts of health and safety are now held in almost universal ridicule by the population of this country. They were an attempt to go too far, to intervene too much, to interfere all the way through, in the ordinary rights and liberties of citizens. When you are told that you have to cut down a chestnut tree for fear of a conker falling on somebody’s head, or when you are

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told that you cannot allow young boys to try climbing a tree, you get to the point where the general public feel that this is a ludicrous overstatement of so-called security and safety, and they become disinclined to take any notice. That is a trivial example.

There are more serious examples. My political memory goes back quite a long way. In our history we have cases all too often forgotten, where security has trumped fairness and justice and left behind a real weakness in our democracy. Perhaps the supreme example of that was the decision to introduce the principle of internment into Northern Ireland’s politics. Just before this I was the Minister of State for Northern Ireland. It meant two things quite quickly. The first was a strong sense of a breach with what has been a long tradition of this country, at least as far as its internal justice is concerned. Secondly—and I will never forget the words used—this became a recruiting sergeant for terrorism. Even Lord Whitelaw, at that time Secretary of State, noticed how counterproductive internment was and how it led to more and more young Irish men and women letting themselves be recruited—signing up—for the production of terrorism. Internment was brought in in 1971 and was eventually dropped. Only after it was dropped was the path open to the Good Friday settlement and to what today is, if not a perfect, at least a much better outcome of the situation in Northern Ireland.

Lord Ashdown of Norton-sub-Hamdon: I have not been here today as much as I might have been and I am grateful to my noble friend for agreeing that I might intervene, but I want to reinforce her point. I was a young soldier on the streets of Belfast in 1970. When we marched into Belfast and into the Ardoyne we were welcomed by the Catholics with butties, as they called them, and mugs of tea. A mere year later, as a result of internment and other matters which followed swiftly around the time of Bloody Sunday, we were the enemy. It took us the best part of two decades to recover that trust among the Irish population, directly as a result of events that she has described.

Baroness Williams of Crosby: I am grateful to my noble friend. Nobody knows more directly and more at first hand than he exactly of what he is speaking, given his long and distinguished service in Northern Ireland in several capacities.

A second example that I know about, because I was living there at the time, was that the dreadful atrocity of 9/11 produced a great wave of attempts to introduce more security legislation in the United States. After a while this included a certain disregard for some of the crucial rights of human beings there. American citizens found time and again, understandably given the terrible effects of 9/11, that their fundamental rights began to be disregarded in the interests of security. It was an extraordinarily difficult balance that to this day United States jurists feel strongly has gone against the basic liberties of the human being.

The third example is ourselves. The noble Lord, Lord Deben, spoke movingly about his son and the dog across the street from No. 10 Downing Street. I might add that the Olympics are getting almost completely

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out of hand in the interests of what one might describe as an obsessive view about security. We go back to rather a trivial example. Yesterday I was in Trafalgar Square with my grandson. We went to see the famous Olympic clock that shows how many hours, minutes and seconds are left before the opening of the Olympic proceedings. However, in order to see the clock, which was approximately 40 yards into the square on a gloomy, wet evening, we had to pass no fewer than six security guards, and no fewer than three detailed and closely networked railings, which were impossible to pass, so we had to go round them in several directions to get anywhere. It took us about 20 minutes to cross Trafalgar Square, being asked all the way whether we had passports, what we were doing there and why, and other things like that. I am a great believer in creating job opportunities for young people, but I cannot help thinking that maybe a job working on, let us say, the refurbishment of older housing might be more constructive than sitting in Trafalgar Square stopping ordinary citizens like me from crossing it.

I am sorry to put it so strongly, but we are becoming obsessive on this issue. We are getting the balance badly wrong. This Bill is critical for the future of our liberties in this country and for the attitudes to justice of ordinary people whose support for that justice is critical in a democracy; there is no substitute for civic support for the rule of law. I plead with my noble friends on the Front Bench that they look closely at Amendments 58 and 59, which at least enable the judges in this country to restore a reasonable balance to the clear needs of national security, which I do not deny and which the noble Baroness, Lady Manningham-Buller, has put extremely well in this debate, recognising that there are two things to be balanced and not one thing to sweep away. I plead with my noble friend to consider accepting these amendments, because they are a crucial safeguard for the liberties of this country and which this Bill ought to include.

Lord Faulks: My Lords, it is a great privilege to follow the noble Baroness and I am sorry to bring an end to this welcome interval from lawyers and to return briefly to the dry legalities of the Bill. The question in this Bill of who decides national security has troubled me. Clause 6 seems to suggest that the judge has some role in deciding it. Amendment 59 suggests that an exercise should be performed by the judge in which he or she can assess, by balancing the various processes—presumably roughly in accordance with the ex parte Wiley approach—which should come first, the interests of justice or national security.

7 pm

It seems to me that the noble and learned Lord, Lord Hoffmann, was right, in the well known case of the Secretary of State for the Home Department v Rehman, when he said that,

“the question of whether something is ‘in the interests’ of national security is not a question of law, it is a matter of judgment and policy. Under the constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision, they are entrusted to the executive”.

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Under Clause 7, if there was a frivolous invocation of national security, a judge could simply reject it. This amendment suggests that a judge can substitute his own view. As I understand it, were the Government to take the view that the judge had got it wrong and had overlooked what the Government considered to be the interests of national security, the Government would then be in precisely the position they are in—that is, having to settle a case—which is the very rationale behind the Bill.

Of course, gisting is a fundamental part of the very difficult role the special advocate has to perform. I agree with my noble friend Lord Lester that it is perhaps slightly clumsy to incorporate Article 6 into the Bill. As a matter of law, the Human Rights Act provides that the convention is read into the Bill, and there is a declaration of compatibility on the face of the Bill. But many leading cases have referred to Article 6 in reviewing the various provisions giving rise to the interference by the Executive in the liberty of a subject, and this seems to be a safeguard that the Government have thought appropriate to put in the Bill. Gisting is considered perhaps to be part of the general approach to fairness.

I entirely agree that gisting is desirable. I suppose the Minister may rely on what the noble and learned Lord, Lord Hope, said in Tariq v the Home Office, that,

“there cannot … be an absolute rule that gisting must always be resorted to whatever the circumstances”.

Sometimes it must be almost impossible to provide by way of a gist that which a special advocate would naturally want to know but would be a potential breach of national security; a gist simply is not practical. Therefore, while acknowledging the force of the arguments in favour of gisting, we should hesitate a little before providing that there should be an absolute hard and fast requirement.

I share with all noble Lords a desire for fairness and for safeguards to be inserted, but I respectfully submit that we must not be too dismissive of national security, although equally it should not be lightly invoked.

Baroness Berridge: My Lords, I will speak briefly in support of Amendment 62. My noble and learned friend the Minister has outlined that this is a balance of security and fairness. In a closed material procedure, I do not think it is wrong to say that the national security issue is a higher priority for the Government who are party to the proceedings, and fairness is higher up the priority list for a claimant who has been excluded.

Let us take the example of a claimant who has been excluded from the hearing and is sitting in the corridor whiling away the hours while the proceedings go on, and turns to the rules of court that have been drafted and looks at Clause 7, as we have it, unamended. How is the claimant not going to conclude, when looking at those rules, that almost the sole interest the court is required to take into account is national security? According to paragraphs (c), (d) and (e), the court has to consider giving a summary, but this is not required. To preserve the integrity of the court, Clause 7 is too constrained around the requirements of national security

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and does not bring in the need for fairness of the claimant, who will be sitting there wanting to know as much as possible about the evidence and, if possible, to know the gist of the case. Bringing in some consideration of the need for the claimant to have enough information to provide instructions is incredibly important. There must be some requirement given to the court to consider the issues of fairness under the rules.

Secondly, although I take full notice of the views of the noble Baroness, Lady Manningham-Buller, that the special advocates who are there on behalf of the excluded party cannot be the sole judge of whether national security is breached if a particular summary of the case is given, what would be the objection to including the special advocate in the process of deciding what the summary is? Perhaps they could be involved with the relevant party because, as the legislation is drafted, the duty of not revealing national security has in any event been given to the court, so why not have a process where at least the claimant would know that the special advocate is able to partake in that process to determine the summary and the court is the final gateway to ensuring that national security is not breached? Therefore, I support Amendment 62.

Lord Beecham: My Lords, the noble Baroness, Lady Berridge, has identified and emphasised the crucial nature of Clause 7. It is the fundamental problem with the Bill that, despite the protestations of the Lord Chancellor, it gives little discretion ultimately to the judge as to whether the closed material procedure should be invoked. Clause 7(1)(c) requires the court to give permission if,

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

It seems clear that any disclosure of matters affecting national security would suffice to preclude the material being made available. Therefore, we come back to the position that the noble Lord, Lord Faulks, referred to, as enunciated by the noble and learned Lord, Lord Hoffmann.

It is almost exactly 50 years since I first became acquainted with the noble and learned Lord, Lord Hoffmann, as a new student at University College, Oxford—where I was succeeded in due course, several years later, by the noble Lord, Lord Marks—and I have a great admiration for noble and learned Lord, who was a distinguished opponent of the South African regime. I find it rather surprising that he came to the conclusion that matters of this kind are a matter for the Executive and not the judiciary. It is not a view that can be recommended to your Lordships’ House. It strikes a dagger at the heart of our system, and the amendments before us provide the right approach to procuring a level of fairness that allows the judge to make a decision on the basis of a balancing exercise.

I entirely agree with the noble Baroness, Lady Berridge, and others who have laid an emphasis on the need to have that balancing exercise carried out. The amendments in the names of the noble Lords, Lord Thomas, Lord Pannick and Lord Lester, clearly are directed at securing that important balance and fulfilling the—unjustified—claims made for the Bill that ultimately it will be the judge who actually takes the decision; otherwise the

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decision is effectively made for him by the Secretary of State, and that is extremely undesirable. It follows that the amendments in relation to gisting, which the noble Lord, Lord Pannick, described as a minimum requirement, also have their place in a system which is fair to the parties.

The noble and learned Lord referred to the application of the European Court of Human Rights. Although I am sure that he is clear in his own mind that there is no real conflict with the human rights legislation, there is, perhaps, a question about that. Clause 7(1)(e), to which other noble Lords have referred, makes it clear, in relation to gisting, for example, that a summary does not contain material the disclosure of which would be damaging to the interests of national security. However, it is apparently the position that the European Court has previously struck down decisions made under the existing closed materials procedure on the basis that they were incompatible with the right to a fair hearing which, of course, Article 6 prescribes.

The case law suggests—I am referring now to a briefing from Justice, the organisation concerned with civil liberties and matters of this kind—that,

“a person must be given as much disclosure—whether through the provision of documents, evidence or a summary—as is needed to secure a fair trial”.

It refers in its briefing to the case of A v United Kingdom, in which,

“the Grand Chamber concluded that where insufficient material had been disclosed to an individual subject to a control order”—

of course, we are not talking about control orders here but about a civil claim—

“this rendered the hearing unfair and incompatible with the Convention”.

The briefing also refers to the case of AF, to which the noble Lord, Lord Pannick, referred. There must be a question as to whether the assurance of the noble and learned Lord, obviously given in good faith, that Clause 11(5) resolves these matters—because it emphasises the duties of the court under the Human Rights Act, such that,

“Nothing … is to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the Human Rights Convention”—

amounts to very much. On the face of it, it would appear that the provisions of the Bill, as drafted, would lead to conflict with Article 6.

Lord Lester of Herne Hill: Is the noble Lord aware of a case I once did, Tinnelly and McElduff v UK, where there was a conclusive certificate of national security under our law which prevented these Northern Irish Catholics from having the merits of their religious discrimination claim heard at all when they were blacklisted? The Strasbourg court said that that was clearly contrary to the convention and therefore the national security certificate that had been cleared by the Minister and by the Northern Ireland courts, which said they had no alternative, was held to be in violation of the convention.

Lord Beecham: I am grateful to the noble Lord, who brings another example of precisely the same point made in the briefing that I referred to and

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underlines the apparent discrepancy between the evident intentions of Clause 11(5) and the reality which would appear to be applicable. In looking at these amendments I think that your Lordships’ House may wish, when we come to Report—because we will not be voting today—to support the thrust of these amendments, which seek to import into what is patently an unsatisfactory procedure at the moment evidence of balance and fairness which would leave the decision where it ought to be, in the hands of the judge who is dealing with these matters, assisted, we hope, by the special advocate presenting a case on behalf of the other party to the case.

As matters stand, it does not look as though the Bill adequately reflects these requirements or, indeed, the requirements of Article 6. I hope that the Government will look again at the implications of the situation as it is now presented, bearing in mind the widespread concerns expressed around all these issues by eminent Members of your Lordships’ House, particularly the noble Lord, Lord Carlile, who was very clear that the Bill, as currently drafted, does not adequately deal with the need for fairness through a proper existing procedure. I thought that he made that case very effectively—as indeed did other noble Lords, legally qualified and not legally qualified—raising deep concerns about how the Bill will operate in practice, bearing in mind, again, that many of us still have to be persuaded that there is a substantial issue here, given that we have yet to be shown cases in which damage has been done by the system which has prevailed hitherto.

Of course, when it comes to disclosure the Government still have the last resort of not proceeding with the case. That has a financial cost and it may have other costs, but it preserves the rationale for the Bill’s provisions in that it preserves the interests of national security. If the Government feel that national security has to be protected, they can effectively stop the case by settling it or, perhaps, striking it out.

7.15 pm

Lord Butler of Brockwell: Does the noble Lord think that it is a demonstration of damage being done that the Government have been unable to defend themselves in such cases and have had to settle?

Lord Beecham: There cannot be two winners in these situations. It is certainly less than satisfactory that a case does not proceed to a final adjudication, and it may be that the Government are therefore, to some degree, a loser. However, the question is whether that consideration should take precedence over the rights of the individual, the other party to the case, to have a proper hearing and to put his side of the case. We have to make a choice, and the choice should be, “By all means let us preserve national security, if that is the ultimate requirement, but not at the expense of the other party, whose right to access to justice will have been obstructed”. That is the decision that we have to make. We have to do a balancing process ourselves, as legislators, and I hope that that is the line that we take.

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Lord Wallace of Tankerness: My Lords, I am grateful both to my noble friends and other noble Lords who brought these amendments forward and to all noble Lords who contributed to this debate. The amendments raise important issues concerning the Bill and it is therefore important that the House has had a thorough and well informed debate. I am acutely aware that noble Lords are concerned about the way in which the Bill draws the balance between the interests of national security and the role of the judge in providing fairness for parties in proceedings.

My noble friend Lady Williams is right to remind us—I do not know whether she used the words, but the sense of what she was saying was—that the price of liberty is eternal vigilance and that it is important, whenever there are issues such as this, that we give considerable scrutiny to the way our laws are framed.

Amendments 57, 58, 59 and 68 would, if accepted, remove the obligation on the court not to allow information to be disclosed if it would damage the interests of national security. Instead, the court would have to balance the damage done to national security with the public interest in fair and open justice.

On a slightly technical point, my noble friend Lord Hodgson asked why we need Clause 10(1), which he thought was perhaps repetitious. The answer is that Clause 10(1) refers to the Section 6 proceedings as a whole, whereas Clause 7(1)(c) deals only with the document-by-document process at stage 2, which determines whether individual pieces of material will be heard in open court or in a CMP.

The Wiley balancing exercise has been referred to in this debate and I believe it underlies Amendments 57, 58, 59 and 68. It may help in presenting the case to set out some of the background to this, although I am acutely aware that a number of your Lordships who have taken part in the debate are well aware of it. However, the pertinent and pressing questions are often asked in the contributions from the non-lawyers and it is therefore important to set the response in context. The traditional method of protecting sensitive material in civil proceedings is for the Secretary of State to claim public interest immunity. Under PII, which is a common law regime, the Secretary of State certifies that disclosure of the evidence in question would be contrary to the public interest and that the interests of justice in favour of disclosure are outweighed by that of the public interest. The public interest could include the interests of national security, good international relations, the detection and prevention of crime, or any other aspect of the public interest.

In deciding whether to permit non-disclosure, a court will consider whether the Secretary of State has struck the right balance. The court will consider those aspects of the public interest that favour non-disclosure against those that favour disclosure: for example, the public interest in trials being fair, in justice being open and in cases being able to be fully reported. This is sometimes called the Wiley balancing test after an important case on PII.

Normally, a claim for PII will be supported by a ministerial certificate and will be considered by the trial judge. Unless the fact of a PII claim being made is itself too sensitive to be disclosed to the other party,

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for example because it might risk revealing the existence or identity of an agent, the other party will be able to attend the hearing. This will be with a view to persuading the court that, in carrying out the public interest balancing exercise, it should order disclosure of the documents in question, for example because of their likely high degree of relevance to the case. If the court refuses a PII claim, the Government will need to consider whether to settle the proceedings rather than disclose the damaging material.

The question that these amendments pose to the Government is why the court should not be able to consider whether there are overriding public interests that point to disclosure. In short, the Government consider that the approach in the Bill is the right one because it is in the national security context. The only ground on which a court may permit material to be heard in closed session is on the narrow one that disclosure of material would damage the interests of national security. Aside from the important countervailing fair trial issues, which, as we have heard and as I will return to, are explicitly dealt with in the Bill, the Government consider that it would be truly exceptional for a different aspect of the public interest to outweigh the public interest in preventing damage to the interests of national security.

The Government have considered this issue carefully and have introduced safeguards that we believe ensure that there is justice for claimants and that the judge will have a crucial role in the process. The Government are committed to putting as much information as they can into the public domain and to complying with our obligations under Article 6 of the ECHR. I think it is important to set out in detail how the Government have balanced the judicial role to ensure that as much information as possible is given to the claimant and made public.

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. The first test, which I think we went over during the previous day in Committee, is on application by the Secretary of State to the judge for a closed material procedure on the basis that a party would be required to disclose material in the course of the proceedings, the disclosure of which would damage the interests of national security. The judge will grant the application if he or she agrees with the Secretary of State’s assessment and make a declaration that a CMP can be used. I think my noble friend Lord Faulks said it would certainly not allow a flippant use or a flippant claim of national security. Indeed, I believe it would not allow one where the real motivation was not about national security interests being damaged at all but covering up or concealing embarrassment.

There is then the second stage, at which the judge considers the treatment of each individual piece of material, in particular whether it should be heard in open or closed proceedings. The judge has a number of important tools with which to ensure that the proceedings are held fairly. The sole ground on which

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material may be heard in a closed hearing is where the court accepts that disclosure would damage the interests of our national security. Where the court permits the material to be heard in closed procedure, the court must consider ordering summaries to be given to the claimant or permitting only parts of documents to be heard in closed proceedings—in other words, redaction. If the court refuses the application for material to be heard in closed proceedings, the relevant person, usually the Secretary of State or a government agency, is required either to disclose the material, or the judge can direct the relevant person to not rely on that material—in which case it will be excluded from the proceedings—to make concessions or to take such other steps as the court may specify. This is a similar level of flexibility to that which is available to the judge under PII and ensures that, in practice, the amount of material heard in open session where a CMP is available will not be less than had a PII exercise occurred instead. At all stages, the court will make the necessary orders to ensure that the proceedings are conducted in a manner which complies with Article 6 of the European Convention on Human Rights.

The Government consider that the approach in the Bill is the right one in the national security context. It is used in other current CMPs such as TPIMs and SIAC. In any case, in practice, under current arrangements, if on the basis of its balancing test the court rejects a PII claim, in whole or in part, the Government use every tool available to them to ensure that that material remains protected—including, if necessary, withdrawing from the proceedings or settling.

Amendments 60 and 61 would require the court to order a summary of the closed material to be provided to the excluded parties and, in doing so, would remove the obligation to ensure that a summary of the closed material did not contain material the disclosure of which would be damaging to national security. There is already a provision for a judge to require disclosure where necessary for Article 6 to be enforced.

My noble friend Lady Berridge asked for special advocates to be involved in determining what that summary should contain in terms of Clause 7(1)(d). I can assure my noble friend that the special advocates are very much involved in that process. No doubt we will be arguing—and, as we have in past cases, arguing effectively—for as much information to be included as possible. We agree that information should be summarised if it can be. However, if these amendments were to be accepted, and the Government were unable to provide a summary due to the sensitivity of the information, the risk is that the Government would be forced to withdraw or settle. That would effectively mean that the problem we are trying to solve would still exist. Again, there would be silence on very important matters, there would be no final judgment for a judge and none of the questions posed by the claimant would be answered.

No one has sought to pretend that closed material procedures are better or as good as open proceedings, but we have said that second-best justice is better than no justice at all. The intervention of the noble Lord, Lord Butler, indicated that we are dealing with circumstances where there is arguably a defence but

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one that under present arrangements cannot be advanced because to do so would damage the interests of national security. We are seeking to allow that defence to be put forward, albeit by means of a closed material procedure.

I appreciate the concerns about the claimant getting as much information as possible and the process being fair. My noble and learned friend Lord Mackay indicated at Second Reading that we have to look not just at Clause 7(1) but Clause 7(2) as it interacts with Clause 7(3)—if a party is unable to provide a summary, then the court can order that party to make concessions or to not rely on that material. These are very real safeguards.

Amendment 62, which my noble friend Lord Lester and the noble Lord, Lord Pannick, have spoken to, and which was supported by my noble friend Lord Carlile of Berriew and by other noble Lords, suggests that the best way of ensuring compatibility with our European convention obligations is by adding to the Bill words that give effect to the judgment of your Lordships’ Judicial Committee in June 2009, in what I think is commonly known as case AF (No. 3). In that case, their Lordships ruled that for the stringent control orders before them, in order for the control order proceedings to be compatible with Article 6, the controlled person must be given sufficient information about the allegations against him or her to enable them to give effective instructions to the special advocate in relation to these allegations. I hope I have summarised fairly what the Judicial Committee of the House determined.

7.30 pm

This means that even where disclosure would be against the public interest, for example if disclosure could put the life of an informant at risk, the disclosure obligations set out in AF (No. 3) would apply in such a context. By contrast, in the case of Tariq v Home Office, the Supreme Court did not consider that the requirements of Article 6 required AF (No. 3)-type disclosure to be provided in an unlawful discrimination claim against the Home Office, brought by an immigration officer whose security clearance had been withdrawn. I can assure the Committee that the Government share the desire of all those who have contributed to the debate and those who have not to ensure that, wherever closed proceedings are used, they are compatible with Article 6. However, I will seek to assure your Lordships that the provisions in the Bill achieve this. That was a specific assurance that the noble Lord, Lord Beecham, sought.

The proposals have been guided by fundamental rights to justice and fairness, including those in the European Convention on Human Rights. The convention itself recognises that it may sometimes be necessary to restrict openness in court proceedings where national security requires it. I have made a statement of compatibility under the Human Rights Act 1998 in relation to this Bill. As we have frequently reflected in our deliberations, there are specific provisions in Clause 11(5)(c) which emphasise that nothing in Clauses 6 to 10 are to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the European Convention on Human Rights. That is specifically the point of reassurance sought by the

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noble Lord, Lord Beecham. Clause 11(5)(c), as it were, trumps anything in Clauses 6 to 10. Perhaps that is where the noble Lord saw a weakness. I hope that reassures him about the purpose of including that.

Lord Lester of Herne Hill: My difficulty with my noble and learned friend’s reply is that he keeps saying: “I hope that Members of the House will be reassured”, but we need reassurance in the legislation itself. The problem is that there are no controlling principles. We do not have a written constitutional charter of rights, the nearest we have is the European convention, which is pretty vague and not tailored to these particular needs. When we come to Amendment 90 at night-time on Monday, where the noble Lord, Lord Pannick, and I have tried to put in some constitutional standards, it will be interesting to see whether at least that is accepted. Does my noble and learned friend follow that what we seek to do is put some controlling criteria, other than ministerial assurances, in the Bill to make it constitutionally appropriate?

Lord Wallace of Tankerness: I understand the point being made by my noble friend, but what is in the Bill goes beyond a ministerial assurance. What is in the Bill is that nothing in Clauses 6 to 11 or in any provision made by virtue of them is to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the European Convention on Human Rights. I will come to this more specifically in a moment, but these will be matters that will be determined by the court; it is not a matter of ministerial assurance. As we saw in the case of AF (No 3), the courts asserted what was required to make the proceedings consistent with the requirements of Article 6. What is required to achieve fairness in accordance with Article 6 is a matter to be determined by the courts in the context of each individual case. The AF (No 3) disclosure requirement will, of course, be applied by the court when it considers that the requirements of Article 6 so demand to ensure that fair trial requirements are met. However, this does not mean that the AF (No 3) formulation would or should apply in all cases that use these closed procedures. We submit that we must allow the judges to assess the level of disclosure required in each case to meet Article 6.

My noble friend Lord Faulks said that he anticipated that I might refer to what the noble and learned Lord, Lord Hope, said in the case of Tariq. I fully intended to do so. The deputy president of the Supreme Court said in that case:

“There cannot, after all, be an absolute rule that gisting must always be resorted to whatever the circumstances. There are no hard edged rules in this area of the law”.

Reference has already been made in this debate to Mr David Anderson QC, who is in favour of gisting. In January this year, in evidence to the Joint Committee on Human Rights, reflecting on what the noble and learned Lord, Lord Hope, said, he said:

“The courts have … said that it is not a hard-edged area of law. In other words, it is one for them to decide on rather than for Parliament”.

Later he said,

“it is not an area where certainty can sensibly be provided by legislation ... I do not think I would like the legislation very much if it came out”.

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Let me also remind your Lordships that the Justice and Security Green Paper suggested that we might consider legislating to clarify the context in which the AF (No 3) gisting requirement does not apply. The Government listened to the consultation responses, which held a majority view that situations in which the AF (No 3) disclosure requirement applied needed to be considered on a case-by-case basis in the courts. The Bingham Centre said:

“Establishing a statutory presumption as to the circumstances in which the AF (No 3) disclosure requirement applies would not avoid the need for the precise parameters of the principle being worked out in the courts. This issue cannot be resolved by domestic legislation alone but requires careful and detailed reference to ECHR and EU law. The content of UK legislation could not have any appreciable influence on the CJEU or ECtHR. Therefore we see no value in this suggestion. If anything, a legislative presumption would only complicate the law and lead to more rather than less litigation”.

I do not think there is any distance between us in trying to ensure fairness. I recognise the importance and significance of all the amendments, not least Amendment 62, but our position is that this would put hard edges into law where it is not desirable and where the courts themselves have indicated that they should be determined on a case-by-case basis. As I have also indicated, if in a particular set of circumstances the court’s view was that the gisting level required in AF (No 3) was the one required in that case, the regard the courts must have to Article 6 of the European Convention on Human Rights allows them to require that. The common law is as much part of our legal system as statute law, and I believe that the courts will continue to be the guardians of individual rights to a fair trial and that further legislation on this provision is not only unnecessary but may even be counterproductive.

Lord Judd: The noble and learned Lord in his full reply referred to the special advocates being on board and being involved in the process. Does he agree they are involved in the process with one and a half hands tied behind their back, because they will have had no opportunity to discuss the really crucial issues with their client, who might well have something relevant to contribute to the deliberations going on? When we talk about it being better to have an imperfect system of justice than no system at all, what concerns some of us is that this is an exceptional process and the Government should look seriously at a belt and braces approach to make sure that it is exceptional. Otherwise there is a tendency over time for it to become just an alternative.

Lord Wallace of Tankerness: I fully accept—and it was said from this Dispatch Box in earlier debates—that it is very much seen as an exceptional procedure. It is not intended to be run-of-the-mill, and nor would we wish it to be seen as “creep”. It is meant to apply in only a very limited number of cases where the Government believe that they have a proper defence to cases made against them, but where at the present time it is not possible to deploy that defence because it would mean disclosing material which would be damaging to the national interest.

As for the earlier point, it has been said on a number of occasions that the role of the special advocates is crucial. It will be crucial in arguing over and determining

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which pieces of material should be disclosed and which should not and in making representations as to what should or should not be in any gist. However, as I indicated in an earlier debate, it is important to remember, too, that we are dealing with civil proceedings in which the defendant will almost certainly be the state and the claimant will be the person who has been excluded. Therefore, they will know full well what their case is as it is their own case that they will be advancing. Before the closed material is made available to the special advocate, there will be an opportunity for the person who knows what his or her case is to discuss it with the special advocate.

Finally, many judges have gone on record as praising the very valuable work that special advocates do in these cases. It would be wrong to suggest otherwise. Perhaps the noble Lord is not suggesting that, but it would be wrong to give the impression that special advocates are totally hamstrung. They have a very good track record, as has been recognised by a number of senior judges.

Lord Hodgson of Astley Abbotts: My Lords, the length of the debate and the breadth and depth of contributions have indicated how important gisting is. My noble friend Lord Carlile spoke about fairness, the noble Lord, Lord Beecham, about balance, and my noble friend Lord Faulks about the dangers of not giving sufficient weight to the demands of national security. One of the problems with not practising law is that you do not have real-life examples, such as those produced by several noble Lords this evening, to back up the impact and give bite to their particular recommendations.

I shall briefly repeat what I said at Second Reading: my experience of working with, speaking to and meeting young Muslim men and women as part of the Speaker’s outreach programme in Birmingham and the West Midlands shows that they have a keen interest in how our justice system works and whether it delivers fairness and balance to all sections of our community. While these are probing amendments, I am sure that this is an issue to which we will come back. Now that my noble and learned friend has given us a lot of helpful information and a careful explanation of the procedure to be gone through, we will have time over the summer to reflect on this. We shall see where we come out, but I am sure we will want to have a further crack at this to make sure that our society and the communities within it do not feel that the justice system does not deliver fair, open and transparent justice to them. In the mean time, I beg leave to withdraw the amendment.

Amendment 57 withdrawn.

Amendments 58 to 63 not moved.

Clause 7 agreed.

Clause 8 : Appointment of special advocate

Amendments 64 to 67 not moved.

Clause 8 agreed.

House resumed. Committee to begin again not before 8.28 pm.

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Education (Exemption from School Inspection) (England) Regulations 2012

Motion of Regret

7.45 pm

Moved By Baroness Hughes of Stretford

That this House regrets that the Education (Exemption from School Inspection) (England) Regulations 2012 (SI 2012/1293) are both unnecessary and counterproductive as they would undermine the principle of all public services being inspected on a regular basis; undermine the professional oversight that is an essential part of good school governance; and run the risk of damaging children in cases where schools that have not been inspected then go into decline.

Baroness Hughes of Stretford: My Lords, the background to this Motion of Regret is the regulations that determine the framework for inspection of schools in England by Ofsted. Section 5 of the Education Act 2005 sets out the duty of the chief inspector to inspect schools at such intervals as are prescribed in regulations. The 2005 regulations made under Section 5 provide that the maximum interval between school inspections should be five years. However, the Education Act 2011, the passage of which we debated last year, now enables the Government to exempt specific categories of school from the chief inspector’s duty to inspect.

This is the first set of regulations to be made under the new power and has the effect of exempting from any further routine inspection any school that receives the highest Ofsted grading, which, as we know, is currently “outstanding”. Thus, in future, every school that is rated outstanding will not be routinely inspected further by Ofsted unless the school itself requests an inspection, in which case it will have to pay for it. The Government resisted amendments in Committee that would allow parents or local authorities to trigger an inspection.

The Government’s arguments in support of the change appear to be twofold. First, they say that exempting outstanding schools from future inspections will reduce, in the Government’s parlance, the “burdens” on such schools. Secondly, they say that it will enable Ofsted to target resources on less successful schools and so will have a cost benefit. Both arguments have some credence. However, for many years now, under successive Governments, Ofsted has moved towards a risk-based, proportionate approach to determining the frequency and intensity of inspection of particular schools. Successful schools can already expect to be inspected only once every five years. Therefore, risk assessments already enable Ofsted to target its resources effectively. However, to exempt schools from routine inspection entirely, and for schools to know that they henceforth they will be exempt, is not simply an extension of these developments. It is a significant qualitative change of a completely different order. It is wrong in principle and will have all sorts of adverse consequences in practice. I shall touch on both concerns—the principle and the practical implications.

The issue of principle derives from questions about the role of government in the delivery of our major public services. I would argue that the Government of

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the day have a duty both to the public generally, whose taxes pay for those services, and to the citizens who use the services. Surely the Government should be the guardians of both value for money and the quality of the public services provided. It is largely through regulatory and inspection regimes that the Government discharge their duty to service users and the wider public. That is why we have inspection of hospitals, GPs, police services, children’s homes and care homes. All major public services, whether provided directly by public bodies or indirectly through private, voluntary or independent organisations, are subject to inspection regimes to protect users and taxpayers. I know of no other services in which categories of provider are exempt. I would be grateful if the Minister could identify any for us, because I could not find any.

Because, for these very good reasons, this principle is so deeply embedded in the way we deliver public services; because many of these services are critical to people’s well-being; and because the people using them are often vulnerable in one way or another, it would be unthinkable for, say, excellent hospitals or care homes to be allowed to be completely exempt from future inspections. We can all predict the reaction if this were to be the case, so there are crucial questions that the Minister—with respect—has to answer, because they were not answered in this or the other place during the passage of the Education Act 2011. Why do the Government think exemption is acceptable for schools but not for hospitals, care homes and constabularies? Is this not an abdication of the Government’s duty to the public?

In striking the balance between the demands of inspection and the so-called freedom for schools, which the Government are promoting, have they not fallen too far on the side of the professionals and not sufficiently on the need to protect all pupils? The Minister may well say that the Government believe that they can trust schools to do the best for their pupils. We can for the most part, although not entirely, as experience tells us. However, that does not answer the point that it is wrong in principle for the provider of a service to be the sole arbiter of standards without any independent evaluation.

In addition to this fundamental issue of principle, there are a number of practical consequences to the exemption that I believe may have adverse effects on children and schools. I will mention three—other noble Lords will have other points—that are of particular concern to me. First, an outstanding rating at one inspection is not a guarantee of continuing excellence in standards of achievement. Outstanding schools decline. The 2010-11 Ofsted annual report reveals that 40% of the previously judged outstanding schools had declined at their subsequent inspection and three had plummeted to a rating of inadequate. For this reason, both the current chief inspector, Michael Wilshaw, and the former chief inspector, Christine Gilbert, have publicly expressed concerns about the proposal to exempt, as did the Education Select Committee.

Secondly, it is quite obvious that inspectors need regularly to see the full range of performance during their inspections in order satisfactorily to benchmark individual schools. If excellent schools are progressively excluded from the inspection regime

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there is a real danger that inspectors’ expectations will drift downwards over time as they lose touch with the very best practice.

Finally, inspections cover much more than the quality of teaching and learning. They have an important, and I would argue vital, role in telling us how well schools are addressing the wider well-being of pupils and preparing them for life challenges. Exam results alone cannot tell us how well, or even if, a school is teaching personal, social and health education, for example; how extensive the extra-curricular activities are; or, most importantly, how effectively a school is implementing good safeguarding policy and practice.

I know that if this exemption goes through—as I am sure it will—Ofsted has said that it will desktop assess outstanding schools regularly. However, that desktop analysis cannot possibly find out what is going on underneath exam results, and clarify and highlight whether there are any areas of concern, particularly in safeguarding and similar aspects of school life. For these reasons, and others that I suspect will be raised this evening, I believe that exempting any schools entirely from the inspection regime is a failure to children and parents. I beg to move the Motion.

Baroness Perry of Southwark: My Lords, I congratulate the noble Baroness on setting out her concerns. We know that she speaks from a very deep concern for the welfare of children and has a wish to see excellence in education, an aspiration which we all share. I know too that she has real concerns about the possibility of a school degenerating from outstanding to something less.

I want to take both aspects she mentioned, the practical and the principle, and to say a few words on why I believe that this set of regulations exempting some schools in this way is the right move. First, on the practical, I think the noble Baroness rather overemphasised the picture of schools that were never inspected. This is not what is going to happen. They will still be included in national surveys, with subjects and aspects of education, so her concerns that the people in Ofsted will no longer have the opportunity to see excellence is more than answered by the fact that they will still be able to see excellence across specific subject areas and specific aspects of education.

Secondly, the chief inspector’s risk assessment will be annual. It will be regular and look at more than simply exam results. It will look at any concerns raised about the outstanding schools which are exempt and will then, if necessary, trigger an inspection. The noble Baroness shares my concern that there is always a danger of a change in a school’s performance when a new head comes in—either for the better or for the worse. The regulations cover that eventuality. The chief inspector’s risk assessment will be speeded up after there is a change of leadership in the school. There again, any anxieties one might have have been addressed in the regulations.

There is a pathetic faith in the value of inspection. I say that as one who spent 18 years as an inspector. In the 20 years or so that Ofsted has been pursuing its inspections, this country’s young people have moved in their performance from being in the top five, six or

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seven by comparison with other countries to being down in 25th, 27th and 28th place in different subject areas. Although Ofsted, I am sure, has been pursuing its aims with the best of intentions, and no doubt the Government’s very tight regulations, particularly the previous Government’s regulations, for how Ofsted should go about its business, were all done with the best of intentions, it simply did not work in the way that it was hoped it would. The standards of performance in our schools have degenerated quite disastrously in comparison with the standards of performance of other countries over the period of Ofsted’s work. We need to start inquiring very deeply, rather than have a mantra of “inspection is good”, as to exactly what really does achieve quality in schools and education.

There is plenty of evidence that people perform at their best, whether professionally or in other areas, when they are trusted and feel valued. My very strong experience of talking to teachers and heads over the past decade or so is that they have lost that feeling of trust. They feel they are bound by an overweening inspection regime which has breathed down their necks. They are watching their backs and feel that the Government are permanently on their backs telling them things. That has been part of the Ofsted culture. I am happy to see that that is now being changed under the coalition Government. Ofsted is being changed very radically and made much more professional and much more limited in its inquisitorial role. That is a good thing. Nevertheless, for most teachers and schools, there is still a sense of being watched rather than being trusted. I believe passionately, as well as having seen the research evidence, that trust and value enable professional people and others to perform at their peak.

There must be accountability to balance autonomy. The more freedom that we give to exempt schools, the more it is essential that we decide what their autonomy should be. I would very briefly say that I think that there are three levels of autonomy that we should trust. The first is the professional code, to which teachers themselves rightly aspire. The conscience of the teacher in wanting to give his or her absolute best is the first level of accountability. That is what we must foster, help and encourage by giving them more freedom to do that, because it is the real guarantee of quality. It is only when teachers really feel that they are responsible for their own performance and that they are required to give the best to their pupils that the quality can really be guaranteed. The second level is that the head of the school and other senior people in the school are responsible for the quality of education in that school. We must foster that. Instead of their thinking that somebody is going to come from outside and judge them, they should take responsibility for themselves and be prepared to make those judgments and deal with any underperformance.

Finally, we have forgotten the role of governors here. The last port of call, rightly, is and ought to be the responsibility of the governors over the quality of what goes on in the school. If things start to go wrong, it is the governors who should blow the whistle and start taking action by changing the head or the other staff of the school. It is a matter of absolute principle that we should stop thinking that the Government are

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always the best judge of things and people. I love the phrase in the department’s Explanatory Memorandum to the regulations where it says:

“The intention is to give the best schools the power to manage their own performance and to be more accountable locally to their communities, rather than to central government”.

That is what I believe should happen.

8 pm

Baroness Walmsley: My Lords, I do not have a “pathetic faith” in inspections, as my noble friend Lady Perry of Southwark, put it, as may become clear as I progress through my comments. The Explanatory Memorandum is very interesting and raises a number of issues. I am not against exempting outstanding schools and giving them more autonomy, as long as the risk assessment described in the memorandum is rigorous and properly applied. Paragraph 7.1, which my noble friend has just quoted, states that the policy intention,

“is to give the best schools the power to manage their own performance and to be more accountable locally to their communities, rather than to central government”.

Does this mean that the Government plan to restore the link between academies and their local authorities, allowing local authorities to monitor the performance of those schools and giving them the levers to ensure they are serving the community well? If not, that sentence is meaningless.

There is some detail about the risk assessment in the notes. It mentions that inspection will recommence if performance deteriorates significantly. How will that be judged? What is meant by “significantly”? Annexe A is even more interesting. It suggests that the changes will lead to higher quality inspections. Well, we would all like to see that, especially those of us who heard “File on 4” on Radio 4 on 1 July. We are told that Ofsted expects to save around £2.5 million per year through inspecting fewer schools. Can Ofsted plough back the money to improve the standard of inspection and inspectors, or does it have to be returned to the Treasury? In the latter case, how is Ofsted expected to improve the quality of inspections without any money?

Of course, Minsters always say that the quality of schools depends on the quality of teachers and school leadership. That is, of course, quite correct. In the same way, good inspections depend on the quality of the inspectors. There were some very worrying cases in the programme. Broughton Hall school in Liverpool is a case in point. It sends many pupils to Oxbridge and 97% of its pupils get five grade A to C GCSEs, even though it is located in a deprived area. The school was threatened by an Ofsted inspector with special measures, even though it had an award-winning outstanding head. There were 27 errors in the report. Ofsted refused to correct them all but gave the school a “satisfactory” rating. But we all know that, come September, “satisfactory” becomes “unsatisfactory”, so the stakes are getting higher. All the more reason therefore, why we are entitled to ask about the quality and fairness of the inspections.

In the programme Sir Michael Wilshaw, Her Majesty’s Chief Inspector of Schools, said:

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“Schools have a right for the inspection to be rigorous, to be fair. If not they have a right to write in and their complaint will be looked at”.

But, “Where is the redress?”, said a head in the programme. He went on to say:

“If I get it wrong I will be held to account. Who holds Ofsted to account?”.

The problem is that Ofsted is not obliged to correct its mistakes. The adjudicator can look only at the way the original complaint was handled, not at the substance of the original judgment. Who does that? It relies on people going to judicial review, and we all know what that means.

All other regulators are held to account for the quality of their regulation by the Legislative and Regulatory Reform Act 2006. It was clearly the previous Government’s intention that Ofsted, too, should be held to account under this Act. The response to the consultation shows that very clearly. Does Ofsted fall under the LRRA 2006 or not—and, if not, why not? If it does, it should follow the Hampton principles, including transparency. After all, there is evidence that the number of complaints against Ofsted is rising. The department itself admits to one in 12 inspected schools. That is a lot. There is not enough information about the qualifications of those who inspect schools and about whether they are qualified teachers or have recent experience in school leadership or in the specialist subjects on which they are passing judgment. My noble friend Lady Perry, who is uniquely qualified to ask questions on these issues, asked a Written Question about how many were even qualified teachers, but did not get a straight answer. It is not even known how many HMIs have secondary leadership experience, let alone all the freelancers employed by agencies.

In the light of “raising the bar” for schools, will the Government start to collect this data and raise the bar for Ofsted? We all want to bring about improvement in our schools, but we need to have confidence in those who make judgments about school standards. Currently that is in question. It strikes me that the saving implied by the reduction in the number of inspections brought about by these regulations gives us a great opportunity. We need to start asking a lot more questions about the quality of Ofsted inspectors and inspections if they are to concentrate on core areas, as they are, and if the consequences for schools of the judgments that they make are to become more serious, which they are. That is only fair.

Lord Hunt of Kings Heath: My Lords, I congratulate my noble friend for allowing us to debate this important issue. I declare an interest; my wife is training to be an Ofsted inspector. I expect to learn much more about the process in the years ahead. I was surprised that the suggestion was made that the Committee stage of the Bill would resume at 8.30 pm. This debate is not time limited and I hope that we will not allow ourselves to be restricted in the Minister’s winding-up speech.

I accept what the noble Baroness, Lady Perry, said. Ofsted inspections are not everything. I also understand the criticisms that the noble Baroness, Lady Walmsley, made about specific Ofsted inspections. However, for parents and children Ofsted none the less provides a

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key safeguard if things go wrong in an individual school. That is why I am very much opposed to this statutory instrument; why, as noble Lords will recall, we had a vote on this at Report; and why many noble Lords remain concerned about the decision.

If ever one wanted to a reason to put forward to your Lordships’ House for needing this safeguard, it was the quite extraordinary decision of the Minister’s department this week to allow a free school to be opened by a group of creationists. The group behind the plans, known as the Exemplar Newark Business Academy, put forward a revised bid by basically the same people who proposed the Everyday Champions Academy last year, which was formally backed by the Everyday Champions Church. That bid was rejected explicitly because of concerns surrounding the teaching of creationism. In February 2011, while promoting the Everyday Champions Academy bid, the Everyday Champions Church leader, Gareth Morgan, said:

“Creationism will be taught as the belief of the leadership of the school. It will not be taught exclusively in the sciences, for example. At the same time, evolution will be taught as a theory”.

That bid was rejected, but it has resurrected itself—if I may use the term in relation to creationism and that belief. This is now going to be a bid by the Exemplar Academy without the formal backing of the church, but the website for the new academy was initially part of the Everyday Champions Church website, and the plans were launched at the Everyday Champions Church, described as a resubmission of a previous bid.

I use this, first, as an occasion to strongly protest against the decision of the Minister’s department on this matter. I find it outrageous—outrageous—that a school that clearly is going to be tempted down the creationism route has been authorised by the noble Lord. What safeguards are there apart from potential interventions by Ofsted if we find that creationism is being taught? What happens if Ofsted, first time round, makes it an outstanding school? For many parents there will be no recourse whatever. That is why one objects so much to the Government’s decision in this regard.

I recognise that exempt schools may still be subject to inspections as part of the chief inspector’s surveys of general subjects and thematic reviews. I noted what the noble Baroness, Lady Perry, said. However, what I find quite extraordinary is that this flies in the face of all the other regulatory regimes that are present in relation to public services, as my noble friend said. I thought that the Explanatory Memorandum was disingenuous—to put it kindly—when it stated in paragraph 7.3:

“Of the schools judged outstanding and inspected more than once since 2005, over 90% have remained either outstanding or good at their latest inspection”.

The reality at that time, as we discussed last year, was that, out of 1,155 schools that had been judged outstanding in that period, on subsequent inspection more than 30% had a reduced grading, including 58 that went from grade 1 to grade 3. What we see quite clearly is that outstanding schools do not remain outstanding. That is why this policy is so fatally flawed. I also refer the noble Lord to the college sector. I understand that in the inspections undertaken between January 2012 and May 2012, two outstanding colleges

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fell by one grade, two fell by two grades and one fell by three grades. Indeed, my understanding is that none maintained the outstanding grade.

I have seen no coherent, intellectual argument that would justify exemption for outstanding schools. There is no evidence that all outstanding schools remain outstanding. We hear about the risk assessment approach —the desktop approach—but I do not believe that there is confidence that that approach can get in to the school and actually see what is happening.

I will ask a number of questions of the Minister. First, we have heard that Ofsted will pay particular attention to a school or college where a new head teacher has been appointed. What about a considerable change in the leadership team? I also note that the consultation in March 2011—this order has not been consulted on but the original policy was consulted on—showed 60% of respondents supported a risk-based approach to determining which school should be inspected. Can the Minister tell me whether parents were brought into this consultation? If parents knew that this was going to happen, I doubt very much that they would have supported the policy.

8.15 pm

Can the Minister tell me whether there is a guarantee that every outstanding school will be reinspected before the new system is brought in? In other words, given the new criteria that the chief inspector has announced, can we be assured that only schools that have gone through that process will be given the exemption? An institution that I know in Birmingham was last inspected, I think, more than six years ago and was graded outstanding. It has had a change of leadership—not the governing body that the noble Baroness, Lady Perry, looked for—and it has not had another Ofsted inspection. However, because it was graded outstanding six years ago, it seems that Ofsted has bypassed it.

It might be an institution where the parents are not the sort of people to complain. A large number of them might be members of ethnic minority communities who are not used to raising issues and concerns. Who is going to protect the students? What about the issue that the noble Baroness, Lady Walmsley, raised about the grades the schools achieve for their students? What happens if there is a change in intake? Is Ofsted going to look at this through a desktop process? Clearly, despite all the nonsense that we hear from Mr Gove about education, we know of the big impact that intake has on the performance of a school. It is very easy to disguise the actual performance of the school simply by raising the bar for the students you take into your institution. Will the desktop approach take account of that? I very much doubt it.

I ask the Minister to contrast this with what he and his colleagues are doing in relation to other sectors. I know the National Health Service best, and I refer the House to my interest in it. Last summer, the health regulator, the Care Quality Commission, announced that it was replacing its light-touch style with an annual inspection of each NHS and independent-sector provider. As the CQC said at the time, when people’s lives and well-being are at stake, the public do not want to hear about light-touch regulation. We are supposed to have a Government who favour cohesion.

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Why on earth are we having a different approach in relation to health and social care regulation as opposed to education? I would hazard an educated guess that in October the report of the Francis inquiry will ask for much tighter regulation of the health service. Why should schools and educational institutions be different?

One should look at what is happening. The noble Baroness, Lady Perry, said that we should trust the schools. I am prepared to do so up to a point. I only wish that Mr Gove would trust the governors. The noble Baroness mentioned them. I should also like take this opportunity to absolutely deplore Mr Gove’s remarks in relation to governors. Talk about trusting schools and institutions. He is not prepared to trust schools that do not want to become academies. Those school governors are bullied and harassed for their schools to become academies. There is not much trust there. Thousands of governors give devoted duty, and being a governor today is much harder work than it was 20 or 30 years ago. What a remark. Is the big society over? Surely, if you were looking for an example of devoted voluntary service to the public, it would be school governors.

We are being asked to take this policy on trust. The argument is that by freeing up institutions, letting them have their head and allowing them in many ways to go down the selective route—which is, of course, the reality—we do not need to have inspection because we can trust the people to do the right thing. I am afraid that in education one cannot always trust people to do the right thing. I should have thought that the safeguard for the public is that if you are truly letting go and allowing institutions to stand or fall on their own two feet, the counterbalance should be to have a proper regulatory regime that involves all schools, not just those that are not classified at any moment in time as being outstanding.

I do not know what my noble friend is going to do when it comes to deciding whether to press the Motion to a vote, but I feel very strongly about this.

Baroness Morris of Yardley: My Lords, I am surprised that this measure has come back as a statutory instrument, given our debate during the passage of the Bill. It is an ill advised piece of legislation. Like my noble friend who moved the Motion, I want to look at it on the strategic level and on points of detail.

The noble Baroness, Lady Perry, made a significant contribution because there has been agreement over the 30 years since her colleagues’ 1988 education Act that inspection constitutes an essential part of the infrastructure of education policy and it was the first time that I had heard any senior politician from any of the parties be so critical of inspection per se as part of the framework. If I follow the logic of what the noble Baroness said, I am left wondering why we are letting Ofsted into any school in the country. If Ofsted is so weak and if we should now start to question its role in the education service, it cannot be just for outstanding schools; it must be in respect of the schools for which we worry far more, which are the satisfactory and less-than-satisfactory schools in our education system. There was no logic in that.

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I, for one, still believe that inspection has been an essential part of basic education policy for the past 30 years. Successive Governments have abided by this. The narrative goes something like: “We want to give more freedom to schools, to encourage them to innovate and take on local character, to trust them more and more, and we are more confident in doing that if there is an accountability mechanism at its core. The better the inspection framework and the better our testing and the publication of that data, the more successive Governments have felt that they could free up so much more of the education system”. I still abide by that. It has been a shared concern across the parties and I am really worried if Members on the Government Back Benches—and perhaps the Front Bench, from whom we will hear—begin to challenge that shared understanding that we have had for a number of years.

The noble Baroness, Lady Perry, talked about a fall in standards in our schools over the past few years. I fundamentally disagree with her. That is not what I have seen, and I do not believe it describes what is going on in our schools. However, I do remember—because I taught in it—the school system before we had any inspection at all. I would not want to go back to that. The standard of education, the quality of teaching and the number of children being let down was far greater before we had this accountability framework, including inspection, than it ever has been since. That is my first point. Strategically, the Government are pushing freedom for individual schools. Logically, they have every reason to care more about the inspection framework and the accountability framework, rather than less. They are throwing it away.

My second strategic point, or point of policy and substance, is that if you read the Explanatory Memorandum—which I think was disingenuous in many ways—it says that allowing outstanding schools not to be inspected by Ofsted is a reward for good performance. We have spent years trying to persuade schools that being inspected by Ofsted is not a punishment. It is something that is good for schools and good for teaching, which they should accept. If being exempt from inspection is a reward for good performance, what does it say about those schools that we are asking Ofsted to go into more frequently? It must be that it is a punishment for underperformance.

If struggling schools see Ofsted inspections as a punishment, rather than as something that can be an essential step in improving their performance, that absolutely takes away all the progress that has been made over the past 20 years in trying to get a new generation of teachers to view Ofsted in a completely different light.

The second point the Explanatory Memorandum makes is about freeing up staff time. Ofsted inspection should not be taking up lots of classroom time. That is why we have moved to shorter notice for inspection and to inspectors being able to come in with two or three days’ notice. It is an admission by government that having Ofsted in your school wastes the time of teachers. Frankly, if we want to free up time, it ought to be for teachers who are teaching in schools that still have a long way to go, rather than in those that are outstanding.

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The last point, of course, is saving money. If this is a money-saving measure, say so. Let it be. Let us talk about that, but let us not pretend that it is a decent educational measure.

In terms of local accountability, one of the things about Ofsted is that it gives a national framework for inspection, and it does not actually rely on local accountability. I want a system where the schools in the poorest areas are compared with the schools in the richest areas; the south with the north; the east with the west; the poor with the rich; the ethnic minorities with the affluent white. Unless we have a national inspection framework, we will never get that.

On details of policy, most of these points have been made, but I will make one more. The panoply of bureaucracy that is being built up as part of the risk assessment will take away any extra time or money that might have come Ofsted’s way. As the years go by, there will hopefully be more schools that receive outstanding Ofsted reports, go into that category and will have to be risk-assessed every year. We are assured that there is no trigger or tick box, so careful judgments about all these schools will have to be taken into account.

I will finish with two or three questions, some of which build on those which have already been asked. First, I want to pursue one of the questions outlined by my noble friend Lord Hunt. He asked whether schools will be reinspected. If in future Ofsted criteria change, will schools be inspected again or will they be allowed to be free for life from inspection against a set of criteria that is no longer being used?

Secondly, why are special schools not in this group? If we are going to exempt outstanding schools, then why are we not going to exempt special schools?

Thirdly, the Explanatory Memorandum talks about, I think, 60% of people who were in favour of a risk-based approach to inspection. I am in favour of a risk-based approach to inspection, but I am not in favour of this. Will the Minister let us know what the consultation report said about the number of people who were in favour of this particular recommendation?

The Earl of Listowel: My Lords, I am most grateful to the noble Baroness for raising this very important subject. I share many of her concerns, particularly the concerns raised by several noble Lords about the rapid changes in school quality and how we can be sure we get on top of that in good time and do not allow some of these children’s education, and their time in school, to be wasted.

In one particular aspect of our education, which is faith schools—we have heard about creationism—there has been a lot of concern in debates on education Bills in this House about how they work in practice. Many faith schools deliver great education to children, but they are a special complexity for this country, and there is therefore concern about how this regulation may be implemented in that regard.

I have sympathy with the Government’s position. I listened with great interest to what the noble Baroness, Lady Perry of Southwark, said. I was reminded of the experience in Finland, where there is no school inspection system. Finland's Minister of Education says:

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“Teachers in Finland can choose their own teaching methods and materials. They are experts of their own work, and they test their own pupils. I think this is also one of the reasons why teaching is such an attractive profession in Finland because teachers are working like academic experts with their own pupils in schools”.

8.30 pm

I am reminded of visiting a children's home many years ago and meeting probably the best children’s home manager that I have come across. She was an immigrant from the highlands of Ethiopia who was wonderful at setting good boundaries for the children. She did not allow them to eat sloppily at the table and she kept good order, but she was compassionate and a rock for the staff in the children’s home. She would say, “Who are these inspectors who do not know much about my particular area and tell me how to run my home?”. She was proud of what she had achieved, and that was a good example of how a poor inspection can undermine the confidence, the work and the morale of the people on the frontline.

This is a complex issue. I want to concentrate on vulnerable children—those on free school meals and looked-after children—and explore what the consequences of these regulations might be for them. With Ofsted not monitoring these outstanding schools in the future, one has to worry that those pupils’ outcomes might be allowed to drift. What is measured tends to be academic outcomes. I was very encouraged by a recent framework for Ofsted, from which I wish to draw an example. It paid particular attention to the emotional, spiritual and other aspects of the development of children and looked at the progress of children with disabilities. Schools knew that they would be measured against that. I have a couple of quotations from recent reports of primary schools in County Durham. One says,

“Excellent partnership working with the Place2Be ensures that excellent care and support are provided for those pupils who are potentially vulnerable, to remove barriers to learning”.

That refers to Seaham Trinity Primary School.

“All pupils, including the most vulnerable, are very appreciative of the excellent help and guidance they receive from staff who know them very well. Some spoke particularly warmly of the support they receive from the counselling service ‘Place2Be’ which had helped them overcome personal difficulties and allowed them to achieve well”.

That refers to Cotsford Junior School in County Durham.

I am worried that those soft outcomes, those harder-to-measure things, may be lost and may not be captured by the annual overview assessments. I would appreciate reassurance from the Minister that the focus on these children, the softer information, the experience with vulnerable children in schools will not be lost because inspectors no longer go into those schools and see things for themselves. I know that the Minister will have data on the progress of looked-after children and on children on free school meals but there could be a lag between acquiring information about school performance and the actual experience of a child. By the time you have that information a child may have been let down for some years. I would like reassurance on that point.