Justice and Security Bill [HL] — Report (2nd Day)
Moved by Lord Hodgson of Astley Abbotts
31: Before Clause 6, insert the following new Clause-
"Application for public interest immunity
(1) In any relevant civil proceedings in which the Secretary of State considers that-
(a) a party to the proceedings, whether or not the Secretary of State, would be required to disclose material in the course of the proceedings;
(b) such disclosure would be damaging to the interests of national security; and
(c) the interests of national security outweigh the public interest in the fair and open administration of justice,
the Secretary of State must make an application for public interest immunity under this section.
(2) An application for public interest immunity under this section must be made by the Secretary of State issuing a certificate relating to the individual documents in question and giving reasons why, in the Secretary of State's view, disclosure of each relevant document would be damaging to the interests of national security.
(3) The court must, when deciding whether the material attracts public interest immunity on application under subsection (1), weigh the degree of harm to the interests of national security if the relevant material is disclosed against the public interests in the fair and open administration of justice.
(4) The court shall, in conducting the balancing exercise required under subsection (3), consider whether any of the following procedures may mitigate any harm claimed to the interests of national security so as to enable disclosure or partial disclosure of material subject to an application under this section-
(b) orders for anonymity;
(c) disclosure subject to confidentiality undertakings;
(d) hearings in camera;
(e) restrictions on reporting;
(f) restrictions on access;
(g) restrictions on the use of the material.
(5) If, after conducting the process set out in subsections (3) and (4), the court concludes that the balance of the public interest lies in excluding any material, the court must uphold the application for public interest immunity made by the Secretary of State in relation to that material.
(6) Where any claim by the Secretary of State for public interest immunity is upheld the court must appoint a special advocate pursuant to section 8."
Lord Hodgson of Astley Abbotts (Conservative)
My Lords, I shall speak also to Amendments 32 and 44. I am grateful to the noble Lord, Lord Dubs, for putting his name to these amendments.
We come now to Part 2 of the Bill, which is concerned with closed material procedures. They are a new development in UK civil courts and the proposal has not proved to be uncontroversial. We discussed the challenges of CMPs extensively in Committee in July. I am aware that noble Lords have tabled a number of amendments in this group, which will enable a wider discussion of this important issue, so I will cut to the chase. If in cutting to the chase as a non-lawyer I trespass on some legal niceties, I apologise in advance.
My concerns about closed material procedures can be grouped under two main, broad headings. The first is the issue of fairness. Can a trial in which the accused does not have an untrammelled ability to test fully the evidence against him, interacting as appropriate with the best legal advice, ever be fair? The issue of fairness is one that I shall return to and consider in more detail when we examine the role and duties of the special advocate and consider the rules of court.
My second general concern is what might be described as the danger of mission creep. It is on this that Amendments 31, 32 and 44 focus. Having heard from my noble and learned friend on the Front Bench, and having listened carefully to the powerful and informed speeches of the noble Baroness, Lady Manningham-Buller, I accept that there may be cases where a closed material procedure is required. However, on all the evidence that I have read, it would be a rare event indeed. I have no doubt that my noble and learned friend on the Front Bench and the Government believe that the procedure would be used only very occasionally. However, times change, Ministers change, Governments change and, above all, circumstances change, and with those changes may come-not necessarily will come-new approaches. My concern is the risk that what begins as a rare event will over time morph into the default option.
I would like to see enshrined in the Bill a set of steps-hurdles, if you like-that the Government of the day will have to clear before they can resort to a CMP. The first is a requirement to go through the public interest immunity procedure, from which the judge can reach a balanced conclusion on whether the interests of national security require a closed court. Amendment 31 would insert a new clause at the beginning of Part 2 requiring a PII application to be made in any case where a CMP is envisaged. It would set up a series of requirements for making such an application. Amendment 32 lays down a further series of tests to be met in associated court proceedings. Amendment 44 would prohibit the use of CMPs where a claimant's loss of liberty may result.
I will briefly outline one or two of the key provisions in the amendments. Subsection (1) in Amendment 31 would require the Secretary of State to make a PII application in any case where he considered that evidence would be disclosed that would damage national security, and where that concern outweighed the key public interest in open and natural justice being done. Subsection (2) would ensure that the Minister had to certify why disclosure of each document was withheld; it states that each certification will have to be considered individually by the court. This would enable the judge to balance the competing interests of national security and open justice-what I am told is called the Wiley balance.
Subsection (3) would give the judge a crucial judgmental role and is in contrast to what some have called the judicial straitjacket in Clause 6. As highlighted in our debate in July, the PII system does not enable a judge to rely on material that is seen by one party and not another. As a general rule, it does not take place in secret. In this way, national security can be protected while ensuring fairness, transparency and equality of arms. It is worth remembering also that, unlike CMPs, PII is not an all-or-nothing process. A wide range of tools is available to judges, including the use of redactions and in camera hearings, to ensure that justice can be done while national security-sensitive information, such as the names of agents or their operating techniques, is excluded. My noble and learned friend on the Front Bench said that a first-stage PII process would be costly and illogical. However, we have been reassured by the special advocates that this is not right and that it is CMPs that are likely to prove costly and time-consuming-in addition to their other, controversial qualities.
Finally on Amendment 31, subsection (6) proposes the appointment of a special advocate as soon as the court has determined the PII procedures. It is linked to Amendment 32, which would enable either party to apply for a CMP. For this right to have any meaningful effect, a claimant must surely be advised by an advocate acting for him whether or not it is in his interests to apply for a CMP. If this is not permitted and no one from his side has seen the excluded material, he would indeed be in a blind spot when deciding whether to exercise his right or not.
Amendment 32 makes additional provisions regarding court proceedings and covers much of the same ground in another form. In essence, it seeks to increase judicial discretion, ensure as far as possible the right of challenge and achieve a proper balance of competing interests of open justice and national security. However, it opens up the possibility of any party applying for a CMP. At present, only the Secretary of State can apply. Why should that be so? If I were to believe that my case would be strengthened by disclosure of material that could be heard only in a closed court, why should I not be able to apply for a CMP to enable it to be heard?
"Does Part 2 of the Bill contain the sorts of conditions that you had in mind to ensure that a CMP is resorted to only in cases of strict necessity?"
"No, it does not".
Martin Chamberlain of the special advocates said:
"The one respect in which I think the Bill is problematic, even if, contrary to the view that we have expressed, you think it is a good idea to have Closed Material Procedures in civil litigation, is that the safeguards that it had been reported were present in this Bill are, on close analysis, in fact not present".
I am not a lawyer and my career has been in finance and the City. In the City, when considering how to proceed in a particular transaction, many of us-sadly, evidentially, not enough of us-place a good deal of reliance on what I call the smell test. Behind the technical requirements, the fine words and the policy pronouncements, does what is proposed smell right? For me, in its present form, the Bill fails that smell test. I am far from alone in that view. On Monday, the Times leader stated:
"If this Bill were to become an Act in its current form, those feeling that they had suffered a grave injustice at the hands of the Government would feel they had suffered another at the hands of the courts. That is an even more serious proposition. They would be told that their case had been rejected but not why, that allegations had been made against them but not what, that a case had been made on their behalf but not how. This is simply not acceptable. If the Government feels that there really is no other way of winning compensation cases than this proposal then it is better that it loses the cases, even to those who do not deserve to win them. There is no point in being naive. Rejecting closed courts could sacrifice money to very bad people unjustly. But it is better that than to sacrifice the founding principles of liberty".
I beg to move.
Lord Pannick (Crossbench)
My Lords, Amendments 36 to 38, 40 and 47 to 49 are in my name and the names of the noble Lords, Lord Lester of Herne Hill and Lord Beecham, and the noble Baroness, Lady Berridge. Amendment 50 has the same signatories save that the noble Baroness, Lady Kennedy of The Shaws, is a substitute for the noble Lord, Lord Beecham, for reasons that I should explain. The amendments, like all the amendments to Part 2 in my name, seek to implement the report published last week by the Joint Committee on Human Rights, a committee on which the noble Lord, Lord Lester, and the noble Baroness, Lady Berridge, serve as members. The amendments also seek to implement similar conclusions of your Lordships' Constitution Committee, of which I am a member.
Noble Lords will know very well that strong views are held on all sides of the House about whether closed material procedures should be introduced. This is a difficult and sensitive issue. The amendments in my name do not-I repeat, do not-seek to resolve the dispute as to whether noble Lords should approve the introduction of closed material procedures. We will address that issue when we come to Amendment 45, in the name of the noble Lord, Lord Dubs, and other noble Lords. The amendments in my name-particularly the amendments in this group-seek to ensure that if CMPs are to become part of our law, careful controls are needed to limit their application to ensure balance and fairness. In particular, they seek to ensure that a judge in an individual case should have a discretion, not a duty, to order a CMP. The judge should ask himself or herself whether or not a CMP is needed in a particular case as a last resort if there is no other effective means of ensuring both justice and security.
There are three reasons why your Lordships' House should adopt the approach that this should be a last resort with judicial control and discretion. First, CMPs are a radical departure from common law principles, which we all respect and approve, that a party to a case has a right to see the evidence against him and has a chance to answer it. This is a departure-it may be a necessary departure-from the principle of transparent justice. The Joint Committee addressed this issue at paragraph 16 of its report. It said:
"All of the evidence that we have received, apart from that of the Government, regards the proposals in the Bill which extend closed material procedures into civil proceedings generally as a radical departure from the United Kingdom's constitutional tradition of open justice and fairness. We agree".
The second reason why we should be very careful and impose controls on CMPs is that a CMP is inherently damaging to the integrity of the judicial process. Judicial decisions are respected precisely because all the evidence is heard in open court and can be reported, subject to exceptions, and judges give a reasoned judgment that explains their decision.
The third reason why a fair balance involving judicial discretion is so important is that the Government's own rationale for introducing CMPs is not the protection of national security. It is very important to be clear about this. The law already has effective means of ensuring that any information the disclosure of which would damage national security does not have to be revealed in open court. Those are the rules of public interest immunity. The Government say that CMPs are needed not to protect national security but to ensure fairness to them as defendants and to ensure that as much evidence as possible can be heard by the judge. There may or may not be strength in that argument-these amendments do not address that issue-but if the Government's own case for CMPs is promoting the fairness and efficiency of civil proceedings, then this House should ensure that the CMP provisions are fair and balanced.
To turn to the specific amendments, Amendment 37 provides that the judge should order a CMP only if satisfied that fairness cannot be achieved by any other means. If there is another solution, such as supplying the gist of the evidence to the claimant, using anonymity orders, or security witnesses giving evidence from behind screens, all of which happens now, and if those methods enable the evidence, or as much of it as possible, to be disclosed to the claimant, it is surely wrong in principle for the law to require the judge to move into a secret hearing. This was the view expressed to the Joint Committee by Mr David Anderson QC, who is the independent reviewer of terrorism legislation. The Joint Committee quoted his views in paragraphs 66 and 67 of its report. Perhaps I may remind the House of what Mr Anderson said:
"I said that I thought that a CMP could be tolerable in these sorts of cases-but only if certain conditions were satisfied. One was that a CMP should be a last resort to avoid cases being untriable".
At paragraph 67 the Joint Committee adds:
"The Independent Reviewer in his more recent evidence indicated that he would be supportive of building into clause 6 of the Bill a requirement that a CMP only be permitted as a last resort: as he put it, a CMP should be available only if 'there is no other fair way of determining the case'".
That was the recommendation of the Joint Committee.
Amendments 38 and 40 have a similar objective. They would allow the judge, when he or she considers whether to impose a CMP, to have regard to the possibility that another solution is available through public interest immunity. Public interest immunity is the doctrine of law that keeps out of open court material the disclosure of which would be damaging to national security. But public interest immunity is not an all-or-nothing matter. As I have said, it may enable some of the material to be disclosed-the gist or essence of the case-and documents can be redacted to preserve what is genuinely confidential. I suggest that the existence of PII needs to be taken into account by the judge in deciding whether to move into secret session. I know that the noble Lord, Lord Marks, is concerned about Amendment 38, but it is important to remove Clause 6(3)(a) so that the judge can consider other means of addressing the problem. Amendments 38 and 40 were recommended by the Joint Committee at paragraph 62 of the report. I will not spend time on it, but again this was a recommendation from the independent reviewer, Mr Anderson. All these amendments are necessary if CMPs are not to be imposed unnecessarily and disproportionately.
Amendments 48, 49 and 50 would ensure that the litigant excluded from the open hearing by the CMP was always given at the very least a summary and the gist of the closed material sufficient to enable him to give instructions to his legal representatives and the special advocates. Again, that was recommended by the Joint Committee, which referred to the supporting evidence on that issue from the former reviewer of terrorism legislation, the noble Lord, Lord Carlile of Berriew, and to the views of the current reviewer, Mr Anderson.
Amendments 36 and 47 seek to ensure that, before ordering a CMP, the judge should ask whether the degree of harm to the interests of national security if the material is disclosed outweighs the public interest in the fair and open administration of justice. The Joint Committee stated in its report, at paragraphs 69 to 72, that the Bill as currently drafted wrongly precludes any balancing at all, however limited the national security interest may be, however substantial the damage to fairness if a CMP is ordered and, indeed, however peripheral the national security evidence may be to the issues in the case. That cannot be right; we need some degree of balancing here. I emphasise that the effect of these amendments, if approved, would not be that any evidence touching on national security would have to be disclosed-PII would prevent that-but simply that the judge could not order a closed hearing unless this balance is satisfied and the Government would therefore be unable to rely on the evidence.
I know that the noble Lord, Lord Beecham, is not persuaded yet by Amendment 50 and that the noble Lord, Lord Marks, is also concerned about it. It might be better if, in due course, I do not move Amendment 50 today but consider with others, in the light of the amendments, if any, that are approved by the House today, whether it is appropriate on Third Reading next week to look again at what is now Amendment 50 for the purposes of tidying up the legislation. I hope that that approach-on Amendment 50-commends itself to the House.
Each of the amendments in this group in my name will help to ensure that, if we are to have CMPs, there are proper limits, proper controls, a proper balance and judicial discretion, and that CMPs are a last resort in what I suspect will be the very small category of cases where there is no other fair solution that maintains national security. At the appropriate time, and unless the Government are prepared, as I hope they will be, to make concessions even at this late stage on these matters, I intend to test the opinion of the House on the amendments in my name.
Lord Beecham (Labour)
My Lords, I thought it might help the House to take the unusual step of speaking early in the debate on behalf of the Opposition in order to make our position clear in relation to the amendments in this group, in particular those that emanate from the report of the Joint Committee on Human Rights. I note, incidentally, that yesterday the Deputy Prime Minister endorsed many of its recommendations. In answer to a question from my right honourable friend Sadiq Khan, he said:
"I am very sympathetic to a lot of what the Committee says, and the Government are considering its amendments with an open and, in many respects, sympathetic mind. I hope that we will be able to amend the Bill to allay those concerns in line with many of the recommendations made by the Joint Committee on Human Rights".-[Hansard, Commons, 20/11/12; col. 428.]
I do not know whether the noble and learned Lord would be able, later in the debate, to indicate whether and when those expectations that the Deputy Prime Minister encouragingly aroused yesterday will be fulfilled. We already have some amendments that would not quite meet the Deputy Prime Minister's intentions as expressed yesterday.
During Second Reading, I referred to the difficulty that we and Parliament as a whole face in calibrating the balance between the two principles embodied in the Bill's title of "Justice" and "Security". It has become increasingly clear that completely reconciling those competing desiderata is effectively impossible. We of course accept that the Government have genuine concerns about national security, even though, perhaps understandably, the Bill does not define the term, as was pointed out by a number of Members of your Lordships' House, including the noble Lords, Lord Hodgson and Lord Deben, and the noble Earl, Lord Errol, during Second Reading. The noble Marquess, Lord Lothian, took the view then about national security that, "You know it when you see it". That might be thought to be uncomfortably close to implying that security is in the eye of the beholder; in this case, a government beholder. It is impossible to provide a comprehensive statutory definition of what constitutes national security, but some guidance during parliamentary debates, of which later judicial notice might be taken, would be helpful in at least indicating areas that would fall outside the definition.
The Government's other main concern, of course, is the difficulties that they face in presenting their case without the protection of closed proceedings, coupled with the cost-both reputational and financial-of having to settle cases in order to avoid disclosure. However, as we have heard repeatedly during the passage of this Bill through the House, the proposals constitute a radical departure from the cornerstone of our legal system: the right of a party to know, and to challenge, his opponent's case. This right has been emphasised in the clearest terms in a number of judgments to which reference was made earlier in these proceedings, such as those of Lord Kerr and Lord Neuberger. Moreover, although the Government do not accept the point, they also appear to clash with the provisions of Article 6 of the European Convention on Human Rights, as powerfully argued by John Howell QC in his opinion for the Equality and Human Rights Commission. I understand that the Government are not prepared to disclose the legal advice that they have obtained on this point, effectively invoking their own closed material procedure on the issue.
The Government's proposals in themselves constitute a significant reputational risk to our system of justice. In passing, it is interesting that, just as we are debating this Bill, the Government are announcing serious changes to the system of judicial review that are designed to make it much more difficult for their decisions in a whole variety of areas to be challenged. Your Lordships might think that a disturbing pattern seems to be emerging.
We are told, in relation to CMPs, that a number of claims are now pending. However, interestingly, the special advocates were denied access by the Home Secretary to any of the files, despite the independent reviewer of terrorism legislation, Mr David Anderson QC, upon whom the Government seem selectively to rely, supporting that request. We have recently seen in the Daily Mail an attempt to imply that the Government were facing the prospect of paying out millions to settle cases involving suspected terrorists, although even the Daily Mail, editorially, seems to be opposed to the Government's proposals. But of course the procedures need not involve claimants of that description. They could apply to all civil claims where a national security justification might be advanced. So claims by a member of the Armed Forces or security services, or an innocent victim of what is euphemistically called "collateral damage" arising from military action, would also be caught by this procedure.
There is also the paradox that the procedures would not apply to inquests, so that justice will be seen to be done only where there has, sadly, been a fatality. Yet as my right honourable friend Sadiq Khan pointed out in his letter to Mr Clarke, the 7/7 inquests were conducted along lines very similar to those advocated by the Joint Committee and reflected in the amendments that we are now debating, without any damage ensuing.
The interests of national security can be protected by means other than simply relying upon closed material procedures. The Opposition support most of the suite of amendments effectively emanating from the Joint Committee report, seven of which we have subscribed to. The thrust of these amendments is to vest greater discretion in the judges, who are not quick to reject the Government's case, and to facilitate a balancing of the public interest in justice and the interests of national security in a way that, despite the Government's rather airy protestations, the Bill as drafted does not.
Amendment 33 extends the possibility of an application for CMP to either party and on the court's own motion. Amendment 40 refers to the possibility of utilising the public interest immunity procedure under which, as we have heard from the noble Lords, Lord Hodgson and Lord Pannick, a variety of workable steps can be taken-gisting, redaction, confidentiality rings, closed hearings-to protect material that should not be made public, before recourse is had to closed material procedures as a last resort. Incidentally, Mr Clarke's statement on Monday's "Today" programme that the judge should not have the discretion to have, in public, evidence that puts at risk the lives of agents or intelligence services, was grossly misleading in implying that this would be a consequence of accepting amendments of this kind. The measures I have just mentioned would prevent that happening.
Amendments 35 to 38, 40 and 47 enshrine both the judicial discretion which many have criticised in the course of debates and the balancing principle which is at the heart of the Joint Committee's proposals. Taken together, these amendments place the judge firmly in control of the process, with the means to balance the interests of justice and security, protecting from disclosure what is essential not to be made public. Despite the protestations of Ministers, the Bill in its current form does not meet these critical objectives.
We have some difficulties, as the noble Lord, Lord Pannick, has referred to, with Amendments 48 to 50, particularly the insertion of the phrase, in Amendment 50,
"so far as it is possible to do so",
in the proposed requirement to ensure that a summary of material, disclosure of which the court does not authorise, does not itself contain material damaging to national security. I for one am not sure what the words import or how far they would extend. We would wish to explore this issue further, perhaps at Third Reading, as the noble Lord indicated, or even later when the Bill is considered in the House of Commons.
In his letter of
Outside the Government, there appears precious little support for the sweeping changes the Government propose. Civil liberties organisations-as one might expect, perhaps-the Law Society, the Bar Council, even Monday's editorial in the Times, which has been quoted, and some leading Conservative Members of Parliament such as David Davis and Andrew Tyrie, unite in expressing profound concern at the changes that this Bill would bring about in our system of justice.
Like many other Members of this House, I travel to and from it by the Underground, where passengers are regularly enjoined to "mind the closing doors". I hope we bear that injunction in mind today. We must ensure that the doors of justice are not closed in the way this Bill seeks to do, however genuine may be the reasons that prompt it.
We learnt a few days ago the identity of the next Archbishop of Canterbury, the right reverend Prelate the Bishop of Durham, whom all Members of your Lordships' House, of all faiths and none, will join in congratulating and wishing well. The announcement put me in mind of another archbishop, Thomas à Becket, whose life and death were the subject of TS Eliot's Murder in the Cathedral, in which the following lines occur:
"The last temptation is the greatest treason:To do the right deed for the wrong reason".
I urge the House to support the amendments backed by the Opposition, moved by the noble Lord, Lord Pannick, and in so doing not to succumb to the alternative temptation of doing the wrong deed for the right reason.
Lord Lester of Herne Hill (Liberal Democrat)
My Lords, I speak as a member of the Joint Committee on Human Rights. I intend to make only one speech, if I can get away with that, and to make it as brief as I can.
The issues raised in this debate are of profound importance to the rule of law in a parliamentary democracy. Part 2 of the Bill has aroused huge and justifiable controversy. It was condemned root and branch by my party at its annual conference. Many Liberal Democrats would ditch Part 2 in its entirety as illiberal, with or without procedural safeguards. In her letter to the Times last week, the noble Baroness, Lady Manningham-Buller, explained that she remains of the view that inviting the court to look at all the relevant secret material and letting it decide what, if any, weight to put on it is an advance over where we are today. I agree with her.
The purpose of these amendments, recommended unanimously by the Joint Committee on Human Rights, is to achieve that result and to make Part 2 comply with the fundamental principles of justice and fairness protected by the common law. We hope that the Minister and the House will agree that our report was thorough, fair and balanced, and that our recommendations are put forward to improve, not to wreck, Part 2.
I shall not delay and weary the House by reading the relevant parts of the JCHR report into the record. The noble Lord, Lord Pannick, has already referred to the relevant parts. The report speaks for itself, and I would suppose that anyone who takes part in this debate will have read the report in its entirety.
Our constitutional system depends upon the wise exercise of the powers of both Houses of Parliament to ensure that the laws that it enacts do not undermine the basic civil rights and liberties of the individual and the cherished principles of justice protected by the common law. The chairman of the Bar Council, Michael Todd QC, and the president of the Law Society of England and Wales have written to the Government describing secret trials and withholding evidence as reminiscent of,
"repressive regimes and undemocratic societies".
Their letter states:
"While HM government rightly takes a strong stance in respect of the importance of the rule of law globally ... this bill will adversely affect the UK's international reputation for fair justice".
The letter continues:
"We believe that the plans for secret courts erode core principles of our civil justice system and will fatally undermine the courtroom as an independent and objective forum in which allegations of wrongdoing can be fairly tested and where the government and others can be transparently held to account".
I agree with those strong views, unless we are able to write really effective safeguards into Part 2 as recommended by the JCHR.
Many human rights bodies have urged us to vote to ditch Part 2 of the Bill, and that view is supported by the JCHR's reference to the absence of sufficient evidence to justify the measure. Some of them advocated the introduction of CMPs in the 1990s. The JCHR has recommended that the wiser course is to hedge rather than to ditch; that is, to amend the Bill to make it compatible with the principles of natural justice and fairness and the rule of law.
That is our common purpose in moving these amendments today, with support from all sides of the House. If we failed to achieve those changes, the case for ditching Part 2 would become very much stronger, but we hope that it will not be necessary to wield that blunt instrument of removal of Clauses 6 and 7. If the JCHR amendments are accepted by the House, I will be unable to support the amendment of the noble Lord, Lord Dubs, because it would nullify the amendments that we would have made to Clauses 6 and 7.
Closed material procedure is of course less than perfect justice. It came into our law as a result of the Strasbourg court judgments and the arguments presented to the court. In Chahal, the court explained in its judgment that it attached significance to the fact that, as the interveners pointed out, in Canada,
"a more effective form of judicial control has been developed in cases of this type. This example illustrates that there are techniques which can be deployed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice".
The interveners in Chahal included Liberty and Justice, the AIRE Centre and Amnesty International. They were in that case advocating a Canadian-style closed material procedure, because judicial review did not constitute an effective remedy in cases involving national security.
In Tinnelly and McElduff, in which I represented the applicants, the Strasbourg court noted that in other contexts it had been found possible to modify judicial procedures in such a way as to safeguard national security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice.
This is what led to the SIAC Act of 1997, which I supported in this House and which my noble friend Lord Thomas of Gresford opposed, as he does today. CMP involves less-than-perfect justice, but it is vastly better than the previous situation where judicial review was unable to provide effective judicial control in national security cases, and it is a procedure supported at the time by civil society organisations.
As the noble Lord, Lord Reid of Cardowan, the noble and learned Lords, Lord Mackay and Lord Woolf, the noble Lord, Lord Carlile of Berriew, the noble Baroness, Lady Neville-Jones, and the noble Lords, Lord West of Spithead and Lord Faulks, observe in their letter to the Times today, CMPs are not ideal, but they are a better option where the alternative is no justice at all. I agree. However, it is unacceptable to extend that procedure to civil claims against the state without adequate safeguards of fairness and civil justice administered by the courts.
It is well known that the driving force behind that part of the Bill emanates from the United States Government and the Central Intelligence Agency, who misunderstand the fine record of our courts in protecting national security within the rule of law. As someone who learnt the value of the American Constitution and Bill of Rights half a century ago at Harvard Law School, I hope and believe that our debate today on Part 2 will not harm our special relationship or the vital co-operation between our intelligence and security services. I should like the Minister to confirm that in his reply.
Reference has already been made to the right honourable Kenneth Clarke's interview on the "Today" programme on Monday, when he described our amendments as legalistic. That is an odd criticism for the former Justice Secretary and Lord Chancellor to have made. The amendments are designed to keep faith with the fundamental principles of justice and fairness in our common law system, within the rule of law, and national security protected by the independent judiciary. Ken Clarke also emphasised the importance of saving taxpayers' money from being spent on settling claims against the state that could be saved if the claims were determined by the CMP procedure. Quite apart from the unfair advantage that the scheme as it stands would give to the Executive and their agents, the central question is not whether CMP is objectionable, but how it can be made to operate fairly, entrusting full discretion to the judge in charge of the case.
We are faced with a choice of evils. The JCHR approach is an attempt to achieve a fair balance. I hope that there will be support for our amendments across the House.
Lord Dubs (Labour)
My Lords, briefly, I support the amendments. I make one specific comment. Having listened to the speeches of my noble friend Lord Beecham and the noble Lord, Lord Pannick, I say simply that there is a very thin line between their arguments in support of the amendments and Amendment 45 and the other group, which seek the removal of CMPs. The line is so thin that I believe that I could use the case of the noble Lord, Lord Pannick, in particular, which he put so eloquently, to come to a different conclusion: to support our amendments. That is an argument for later. In the mean time, I hope that the House will support the key amendments when we come to votes.
Baroness Berridge (Conservative)
My Lords, I speak as a member of the Joint Committee on Human Rights and as the fourth name on this group of amendments. Normally, I take very seriously the advice given by our Government -so much so that I took the advice of the Government's Chief Medical Officer early last week not to seek antibiotics for a cough and cold, so I apologise. I am living to regret following that advice and I apologise for any resultant disturbance to your Lordships' proceedings this afternoon.
It is the judge's court, not the Government's, so it should be the judge's decision or discretion as to the fairest way to proceed with the case before him or her-whether that is by using public interest immunity with all its flexibility, as outlined by the noble Lord, Lord Pannick, or by using a closed material procedure.
It is so important that this House stands firm on that principle, not only to protect the credibility of the judicial process but to safeguard the interests of the other party to that litigation. The Government, who are one party to the litigation that we are considering, usually have control over the other place, so it is only this Chamber that can protect the other party to the litigation and keep the important procedural powers in the hands of the judge by your Lordships accepting this group of amendments.
These amendments, particularly Amendment 37, reflect the view of David Anderson, the independent reviewer of terrorism legislation when he stated to the joint committee that this ensures that cases are not tried in closed material procedure that could otherwise be done under public interest immunity, nor will cases be struck out that can be tried in a closed material procedure. The judge must retain a wide procedural discretion, which, if these amendments are accepted, I accept may mean that our judiciary will begin a new balancing act: balancing the unfairness of the exclusionary nature of PII against the unfairness of the closed material procedure, which leads to the claimant and his or her lawyer being absent. I believe it is very important to retain this judicial discretion and to leave these matters in the hands of our judiciary, who have shown that they can be entrusted with such fine balancing acts. My name is therefore on these amendments.
Lord Morgan (Labour)
Thank you. I am very anxious to hear the noble and learned Lord, Lord Lloyd, too. I will not speak for very long. I am not a lawyer and I sit on the Back Benches, as I always have, where one is required to vote but not necessarily to think. Yet occasional flickers of thought agitate our minds. This clause is deeply unfair and the amendments are profoundly right. It seems characteristic of what has happened to liberty in this country over many years with, I am sorry to say, the endorsement of all three major parties: the tilting of the balance away from the free individual-the citizen-towards the state, reinforcing raison d'état contrary to the common law. The element of secrecy adds something new that we have not had since the time of the Tudors. It was specifically condemned in the Petition of Right in 1628, which is quite a long time ago.
This clause has caused outrage among lawyers, as we have heard, and civil liberties groups. It has been strongly criticised by the Joint Committee on Human Rights. Why? Because it is totally one-sided. It is a closed court, with the litigants, lawyers and the press excluded. Only the lawyers representing the Crown can communicate in private with the judge. The litigants are not aware of the content, tone or substance of those conversations. They are protected inadequately by special advocates, because their powers are limited, and the interests of litigants in civil cases are not properly defended as, if I may say, people accused of criminal activity under the criminal legal system are protected. Public interest is cited: a term defined so broadly almost as to lose all meaning. It shows that the normal judicial process is a fair, balanced and adversarial system when both sides can present their case. These aspects are being marginalised and sidelined. As previous speakers have said, this is a process that has now been launched and is very likely to increase and multiply.
These amendments should go further-I would like to see the whole clause disappear-but will undoubtedly improve these otherwise dismal procedures. This reflects a welcome tilt towards libertarianism, including from my own party, which has not been notable in that sphere in recent years. I am very glad to welcome that under its present leadership. The Secretary of State would be compelled to present a case for a public immunity initiative; the court would be able to consider it dispassionately and calmly without being steam-rollered by the Government, as would otherwise happen; the litigants could have proper legal discussions with their advocates.
At the moment, there would be no real authority accorded to judges, whose hands would be tied by the terms of the Bill. They would have little choice other than to accept the submissions of the Government, so these amendments are deeply valuable-not simply to those involved with the law but to any citizen of this country. This would enable the courts to consider and to estimate the comparative balance between the rights of a free individual as against the damage to national security, which might have to be more carefully defined. To that extent, these amendments make an odious Bill somewhat less repulsive. The Minister is a very fair-minded man who has the respect of all Members of the House. He has listened to strong arguments against this clause from all sections of the House, and I am sure he will consider them fairly and courteously.
Lord Lloyd of Berwick (Crossbench)
I fear that I may disappoint the noble Lord, Lord Morgan-but I hope not. I have no difficulty at all with Amendments 37 and 40, which were tabled by the noble Lord, Lord Pannick, but I have some difficulties with Amendments 34 and 35, which we are going to come to in a later group. Those are the amendments that would substitute the word "may" for "must". They are the basic amendments that would give the judge a discretion rather than imposing on him a duty in certain circumstances.
Amendment 36, which has been spoken to by the noble Lord, Lord Pannick, spells out how that discretion is to be exercised. It states that the judge must balance,
"the degree of harm to the interests of national security",
on the one hand, against,
"the public interest in the fair and open administration of justice".
It is now many years since I heard a PII application. It was never an easy balancing operation, but at least with a PII application one was balancing a particular piece of evidence and how much harm it would do to the national interest, on the one side, and how much good it would do to the case of one party or the other, on the other side. It was difficult but it was a fairly specific balancing operation. I find much greater difficulty with the judge being required to take account of,
"the public interest in the fair and open administration of justice".
I cannot see how he can possibly evaluate that in the abstract. In one sense, it might be said to overwhelm everything else, of course; but on the other hand, how much weight can be given to that? Amendment 36 is very different from the operation that one used to, and still does, carry out in an ordinary PII application. I am not happy with Amendment 36 and that sort of discretion being given to a judge.
Baroness Neville-Jones (Conservative)
My Lords, the focus of the Bill is to enable this country to find a means of dispensing justice while protecting national security. National security has not had much of a hearing so far this afternoon. I shall explain why I do not think that public interest immunity is any longer an adequate safeguard in respect of national security. Indeed, I would go so far as to say that, at the moment, the PII regime prevents justice being dispensed consistent with security. Pace the noble Lord, Lord Beecham, I do not think that this is an impossible goal.
When national security-sensitive evidence which may be important to the claimant's case-we all agree about that-is excluded from the courtroom by a PII certificate and the judge may not take it into account in coming to a judgment, there are two consequences: the claimant is unable to prove his case and the Government cannot defend themselves properly. To protect national security evidence from disclosure in open court the Government are being forced to agree substantial settlements, with unjustified reputational damage ensuing. The inability of our legal system to provide adequate recourse to parties in civil dispute brings no credit to it and we need to do something to mend it.
Amendment 40 would insert PII as a first stage in the legal process. This would undoubtedly greatly increase the length of proceedings and costs without necessarily guaranteeing that evidence would be heard. I cannot help feeling that this is pointless. Moreover-and this is a real problem-PII impinges adversely on the claimant's rights and, contrary to the assertion of the noble Lord, Lord Pannick, since the case concerning Binyam Mohamed, PII has also proved to be a less than total protection for national security sensitive information. We do not now have a safeguard in PII to protect national security. It has really changed the ground. In that case, the court ordering disclosure of American material despite the Government's PII certificate has damaged our intelligence relationship with the allies, especially, although not only, with the United States. We have this judgment from the independent reviewer of terrorism, David Anderson QC, who I know has been quoted by other noble Lords. However, I know that, on this point, he is right. It is a very serious matter if our allies can no longer trust our ability to keep secret intelligence passed to us secret.
The fact that we have not had a major terrorist incident in this country since 7/7 is not the result of the conversion of the enemy but of the successful diligence of our intelligence and security services in protecting us. They depend on vital-and I mean vital-sharing of intelligence with allies. The effect of recent cases in civil courts, and the numbers of these are growing, has now spread into the core security interests of the UK. Some noble Lords talked about the core security interests of this country in justice, and I entirely agree. However, we also have another interest to protect which is important to us. We are now damaging the core security interests of the UK. If we do not find a way, as part of a responsible national security policy, of restoring credibility to our promise to protect information given to us, we will find our intelligence relationships further eroded over time and our national security eroded with them.
It is not just the control principle that is at issue, it is UK national security. This cannot be subjected to balancing tests of the kind set out in Amendment 47 -and Amendment 46, for that matter-as if it were somehow exchangeable with other goods. Lives are not at stake in civil proceedings but they are-they can be-in national security.
Closed material proceedings are of course second-best to completely open court proceedings. There is nothing that divides anybody in this House on that point; we all agree. The problem, however, is that we are not in an ideal world. Only the court can decide to allow closed material proceedings under the Bill, and presumably the judge would not permit that if they did not think that there was a substantial national security interest to be protected and they had not been convinced by the submission of the Secretary of State. In that case, this issue would not arise. However, if it does arise and the court agrees that there should be CMP, it will permit a full testing of the claimant's case. The Government will be able to defend themselves in a manner that protects sensitive national security information.
The Bill also provides for gisting to the claimant. This is much better than the absence of justice and the potential prejudice to national security at the same time. Amendments 48, 49 and 50 would destroy the balance that the Bill would bring about.
Much has been made already of the Government's proposals being "a radical departure" from our traditional norms. However, the closed material procedure is drawn from the procedure created by the previous Labour Government for the special immigration appeals courts which, I might say, Liberty was very influential in setting up, and which have been tested and accepted as compatible with the European Convention on Human Rights. The reality of justice there is demonstrated by the fact that the Government lose cases. Amendment 44 would bring some SIAC procedures into question, as well as rendering this Bill null and void.
I hope that this House will accept that this Bill is a balanced response to a difficult issue. I take seriously, along with other Lords, the need for safeguards, but I believe that many of the proposals on the Marshalled List go too far. I hope that this House will reject amendments which, far from improving the Bill, either remove or render ineffectual the purpose of closed material proceedings. To use the words of the noble Lord, Lord Hodgson, I believe that this Bill passes the smell test.
Lord Wigley (Plaid Cymru)
I want to speak very briefly to Amendment 48, which has been grouped with these amendments. I do not accept that this tips the balance, as the noble Baroness suggested just a moment ago.
One of the most unsettling provisions of this Bill is contained in Clause 7, which provides that if a Closed Material Procedure is triggered, a court is not required to give the excluded party a summary of the closed material. Rather, the legislation, as drafted, requires only that the court should consider requiring such a summary to be given. In any case, Clause 7(1)(e) provides that the court must ensure that, where a summary is given, it does not contain material, the disclosure of which would be against the interests of national security.
If this clause goes through unamended, there will be no requirement to give excluded parties sufficient information about the case against them so that they can give instructions to their special advocate. Surely this is wrong, otherwise people could lose cases without being told any of the reasons why, which is an unacceptable situation in circumstances where the national security is not at stake.
Lord Marks of Henley-on-Thames (Liberal Democrat)
My Lords, I start by paying tribute to the Joint Committee on Human Rights for the very important work it puts into producing the thorough and excellent report that gave rise to the amendments in the name of the noble Lord, Lord Pannick, and others.
The first question to be addressed in considering the introduction of CMPs to ordinary civil proceedings is whether the Government have in any way made out a case for their necessity. That is a matter upon which, as the noble Lord, Lord Pannick, pointed out, the Joint Committee found itself unpersuaded. However, if there are 20 such cases now, as figures recently released by my noble and learned friend the Advocate General for Scotland state, as well as the obvious prospect of an increasing number in the future, as the fact that the Government is a soft target for such cases becomes well-known, that is a significant number, if a small one. In such cases, because the evidence has to be withheld altogether for the protection of national security-and it is worth reminding ourselves that that is what PII does-there can at present be no determination at all, and therefore no justice. That lack of justice has to be weighed against the damage that would be done to our civil justice system by the extension of CMPs to certain civil claims. CMPs are, as has been said, inherently unfair. They represent a serious departure from open justice, because the evidence cannot be tested by cross-examination in the ordinary way: by advocates acting on the instructions of their clients, who themselves have a full opportunity to know and meet the case against them. CMPs, therefore, represent a justice that is flawed. For my part, I think that to choose to have no determination at all in these cases, and to prefer no justice to flawed justice, would be the better choice, unless the safeguards for CMPs proposed by the Joint Committee are in place.
The first essential safeguard is that there must be full judicial control and discretion. It must be for a judge to conduct the vital exercise of balancing the interests of national security against the public interest in open justice. While I have heard what the noble and learned Lord, Lord Lloyd, said about the difficulty facing judges in conducting that delicate exercise, I suggest that they are the best placed in this country to conduct that exercise. It should not be an exercise for government.
It cannot be right for the Secretary of State to form a view as to where the public interest lies, then to make an application, and for the statute to preclude the judge from saying that the Secretary of State is wrong in any case where it is established that there is some security-sensitive material, no matter how little or how central or peripheral to the case that material may be. In answer to the noble Baroness, Lady Neville-Jones, neither I nor my noble friend Lord Lester know of any case where a United Kingdom judge has prejudiced the interests of national security by ordering disclosure of material that should not have been disclosed.
It has been claimed by some members of the Government that the Bill allows the judge a reasonable discretion in Clause 7. I suggest that that is not the case. Without taking your Lordships through a detailed analysis, such an analysis shows that all that the judge can do is tinker with the detail once a Clause 6 declaration is made. That discretion is far too little and it comes far too late in the process. It does not give the judge any control over the decision of principle as to whether a CMP is warranted in a particular case.
The second safeguard, as Amendment 33 proposes, is that there must be equality of arms so that claimants may also benefit from CMPs, where taking into account security-sensitive material would help their cases. It is easy to envisage cases where the state might, genuinely in the national interest, wish to withhold from a claimant security material which might help prove his case; for example, because it would disclose details of activity by agents of the security services which are consistent with the claimant's account of what had happened to him. In such cases, the special advocate should be able to advise the claimant, without jeopardising national security, that on the basis of material that the special advocate has seen, the claimant should apply for the material to be heard in a CMP. That is equality of arms.
Thirdly, it must be absolutely clear that the use of CMPs is available only as a last resort-as my noble friend Lady Berridge said, when all alternative procedures have been considered and rejected-where no determination of the case would otherwise be possible. Fourthly, summaries of the closed material should be sufficient to enable the excluded party to know as much as possible and to be able to give instructions to the special advocate to enable that special advocate to represent his interest as effectively as possible.
Fifthly, in every case the court, not the Secretary of State, should be bound to consider whether a claim to PII could have been made successfully to exclude the security-sensitive material. The noble Lords, Lord Hodgson and Lord Dubs, as the noble Lord, Lord Hodgson, has explained, favour a rule that PII always has to be granted before any CMP application can be made. It may be that in the generality of the cases, that is the proper order. In that, I differ from the noble Baroness, Lady Neville-Jones. But the JCHR preferred to avoid this straitjacket approach, which might in some cases be impractical: the Al Rawi Guantanamo Bay case was said by the Government in the Supreme Court to be one such case because of the sheer weight and complexity of the documents involved. I accept the JCHR's position on that point.
Finally, to ensure that the public has as much information as practical, the media must be told what they can be told about the working of the system and the issues and material in relevant cases as soon as the secrecy surrounding them has gone. All these safeguards are provided by the JCHR amendments, and I shall be voting for them today-and I hope that other noble Lords on these Benches will do the same. I take comfort from what my right honourable friend the Deputy Prime Minister said in the House of Commons yesterday, as the noble Lord, Lord Beecham, pointed out, to the effect that the Government will approach these amendments sympathetically.
I have just two caveats, to which the noble Lord, Lord Pannick, referred. The first concerns Amendment 38, which on its face appears to remove an important qualification in deciding whether material is disclosable for the purpose of Section 6(2). If, as the amendment suggests, you omit Clause 6(3)(a), the judge does not ignore the fact that the material that he is considering under Clause 6(2)(a) would not be disclosable if it were subject to PII. I am sorry that this is a technical point, but the effect is that he cannot then decide whether that material is within Clause 6(2)(a) if it would be subject to PII. If that analysis is right, that is the opposite of what I take the JCHR to have intended. In his reply to me, the noble Lord, Lord Pannick, indicated that there may be some ambiguity-and, if there is such ambiguity, perhaps my noble and learned friend the Lord Advocate could take it back and consider it.
The second concern, which I share with the noble Lord, Lord Beecham, concerns Amendment 50, which requires full summaries as would be required by Amendment 49, even where it is impossible to give such summaries without disclosing material damaging to national security. I agree with the noble Lord, Lord Pannick, that the best course might be not to move that amendment today but to take it away and bring it back at Third Reading. I hope that the Government might come back with an amendment that balances the need for summaries with the need to withhold such material as is damaging to national security. The amendment as it stands might jeopardise national security when other considerations favoured a CMP with summaries that are as full as possible.
In conclusion, it seems to me that with the amendments proposed by the joint committee, on balance the flawed justice represented by CMPs but safeguarded is better than no justice at all. Accordingly, if the JCHR amendments succeed, I will vote against Amendment 45.
Lord Phillips of Worth Matravers (Judge)
My Lords, I find myself in familiar territory, as I sat in a judicial capacity on a number of appeals dealing with closed material, including Al-Rawi. Closed material is anathema to any court, and the Supreme Court always managed to deal with issues relating to closed material without looking at the material itself. I am, however, reluctantly persuaded of the need, in the interests of justice, for a closed material procedure in exceptional cases where the Government would otherwise have no alternative but to submit to a civil claim for damages because to defend it would necessarily involve putting into the public domain material that would cause disproportionate harm to national security. It is for that reason that I support the batch of amendments tabled by the noble Lord, Lord Pannick, and other noble Lords in relation to Clauses 6 and 7.
I would expect the Government and those supporting Clauses 6 and 7 to welcome these amendments. Let me explain why. I draw attention to Clause 11(5)(c), which provides that,
"Nothing in sections 6 to 10 ... is to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the Human Rights Convention".
That is a very significant provision. It means that a judge will be precluded from acceding to a closed material application unless satisfied that to do so will be compatible with the Article 6 right to a fair trial.
The use of closed material in civil litigation will undoubtedly be challenged as a matter of principle. That challenge will surely reach the Supreme Court and, if it fails, will be renewed before the Strasbourg Court. If it reaches that court, its decision is likely to be critical. If it holds that the use of closed material in civil proceedings is incompatible with Article 6, the English judges are likely to follow that ruling; and Clauses 6 and 7 will become a dead letter.
The Bill as it stands makes no provision for the application of a test of proportionality. The test is simply: would disclosure be damaging to the interests of national security? If the answer is yes, the court is mandated to accede to the application that the material in question be not disclosed. Clause 7 then leaves it in the discretion of the court as to the extent to which, if at all, the closed material can be deployed in support of the Government's case. The amendments proposed by the noble Lord, Lord Pannick, and other noble Lords introduce a test of proportionality. They also make it plain that a closed material order can be made only as a last resort when there is no other way of having a trial that is fair to both parties. The amendments also require a gist of the closed material to be given to the other party.
These amendments will, it seems to me, significantly increase the chances that the provisions in relation to closed material are held to be compatible with Article 6 by the Strasbourg Court. That court has made it plain that it considered that gisting was an essential feature of a closed material procedure in the context of control orders, and the court is likely to take the same view in relation to civil litigation. If and when this issue reaches Strasbourg, it is important to appreciate that the court is not likely to have access to the closed material that has weighed with the courts of this country, nor to the closed judgments relating to that material. It seems to me likely that the Strasbourg Court will require to be persuaded that the English courts have applied a test of proportionality before allowing closed material to influence their decisions, that a gist of the closed material which is sufficiently specific to enable the other party to meet the case made against him has been provided to him, and that closed material has been admitted because there was no other way of procuring a fair trial. That is what these amendments set out to achieve.
If these amendments are made, it does not mean that the Government are going to be forced on occasion to disclose material that they consider to be adverse to the interests of national security. It means that where the court does not consider that the use of closed material will be proportionate, the Government may have to litigate without the benefit of that material if they remain unprepared to disclose it, or even to settle the claim made against them. The same will be true if the Government are not prepared to gist the closed material. As the noble Lord, Lord Pannick, has observed, the debate on Clauses 6 and 7 is not concerned with the protection of national security; it is concerned with the requirements of a fair trial.
It is for these reasons that I support the amendments in question.
Lord Judd (Labour)
My Lords, I should like to add a word of tribute to the Joint Committee on Human Rights for the thoroughness and courage of its work, and I pay tribute to those who put these amendments forward.
I am not a lawyer, but what concerns me in all this is what lies behind the issues we are discussing-we are trying to protect a society that is worth having. Central to the society that is worth protecting in the United Kingdom, as I understand it, has been the evolution of the cause of justice and fairness in our legal system. That has been the central pillar of what has made Britain a country in which it is good to live. Alongside this, of course, has been the independence of the judiciary; and the judge has a key role-not a role that is perceived by just those in the know, but one that can be widely seen as the key role-in ensuring that this happens.
The first thing I will say is that I find myself troubled by the fact that if we compare ourselves now with how we were 20 years ago, the quality of justice in our society is not as good; there has been an erosion. Of course I understand the acute and sinister pressures behind this trend. We are up against sinister, ruthless techniques and people. I worry that we are giving them the victory and legislating to underpin that victory by taking steps that may diminish the quality of our justice.
Let us look for a moment at the kind of issues that are being considered in the cases about which we are worried. They include torture and human rights, which are sensitive and emotive matters. If it becomes a growing concern in society that things are not as they should be in the administration of justice in these areas, and if it should be thought that the Government and Executive want to conceal things that happened which should not have happened, that will play into the hands of the extremists who are trying to build anxiety, doubt and instability into our society.
This is the very time that we must stand steadfast. Of course I am not suggesting-it would be madness to do so-that there are no matters that simply cannot be revealed in a court case. However, we must not regard this as something that on balance is right. If we are going to diminish the normal standards that we expect and see as central to our justice system, it must be an absolute last resort because we have to do it, and it should be confined to the narrowest possible areas of control. The amendments in this group are a step towards resisting a further erosion of our system of justice.
Lord Phillips of Sudbury (Liberal Democrat)
My Lords, I accept that my noble friend the Minister has an acutely difficult task in dealing with this part of the Bill and with these amendments. I do not think that anybody in this House pretends otherwise. Balancing national security against individual liberty and due process is judgment-of-Solomon stuff. However, I concur with the virtually unanimous voice of those who have said that there is a want of balance and proportionality in the arrangements in this part of the Bill.
In particular, I support Amendment 36. I will not repeat what others said very well, but I will draw the attention of the House-and perhaps of some beyond the House-to a very plangent example of the failure of the Bill to balance as it should the two competing issues. As was explained, Clause 6 requires a judge-it is not discretionary-to grant an application for a closed material procedure if,
"disclosure would be damaging to the interests of national security".
There is no qualification of "damaging". There is no talk of "substantial" or "significant" damage. As it stands, a judge would have to grant such an application if the damage were marginal or even trivial. That is why it is essential to agree Amendment 36-and Amendment 37 with it-and some other amendments in the group that would ensure that no judge was put in the difficult, highly undesirable circumstance of having to grant a closed material proceedings application in circumstances that, on any common-sense basis, would not be warrantable.
Lord Glentoran (Conservative)
My Lords, I will step out of the courtroom and into the street. Most of my life I have lived close to terrorism or among it. I have lived close to those in the secret services and many in the police. One thing that we must not vote for tonight is a reduction in the abilities of the public prosecution services, lawyers and, more importantly, police, who to my personal knowledge are extremely frustrated, certainly in Northern Ireland and in other areas that I know of, that they cannot get convictions when they know that people are guilty. They cannot get the evidence into court because they are protecting our secret services-our police and undercover agents. Throughout the problems in Northern Ireland which I have known, and throughout some of the other ones which I have known in my lifetime, those people have done a wonderful, brave job. They must not be put at risk on account of the human rights requirements.
Lord Owen (Crossbench)
My Lords, although I did not intend to intervene, I urge the Minister, when he comes to reply, to develop any serious reservations he may have about Amendment 48. Perhaps the noble Lord, Lord Pannick, would consider doing for Amendment 48 what he is doing for Amendment 50. I do not hold the alarmist view of these amendments that is held by some members of the intelligence services; they are necessary and correct and I have no difficulty with any of them. However, I can imagine circumstances in which, under Amendment 48, it would be difficult to change "consider requiring" to "require". That is particularly true if one considers that Amendment 49 states,
"sufficient to enable the party to whom the summary is provided to give effective instructions on the undisclosed material to their legal representatives and special advocates".
That seems a pretty fair summary of what should be required, but it rings a certain alarm bell that there might be circumstances under which it would be necessary to try to persuade the courts, even in this difficult situation, that the pressures, particularly coming from people who have made available this intelligence, are so great that it would jeopardise the relationship of sharing information if we accepted Amendment 48. It would remove all discretion from the court.
In this debate those who have been justifying the amendments have often said that it is to avoid restricting the court and to give more power to the court's judgments. This amendment would go in the opposite direction. I would like a little more explanation as to whether it is really necessary to change "consider requiring" to "require".
Lord Macdonald of River Glaven (Liberal Democrat)
My Lords, I can be very brief. Following the publication of the Green Paper, the Government indicated a concession that the Green Paper's proposals were drawn far too widely and that the legislation that they would bring forward for consideration would be far tighter. In particular, they indicated that a judge rather than a Minister would have the final say and that closed material procedures would be available only in the most exceptional circumstances.
In fact, the Bill did not provide for either of those undertakings. It is only these amendments that are capable of securing them. The amendments finally give the judge the appropriate discretion to balance national security with the interests of justice, which is an essential tool for the judge if he is to control the fairness of the procedures in his own court, which is a critical aspect of the rule of law.
Secondly, the amendments secure a situation in which a closed material procedure would genuinely be a measure of last resort because they will require every other option to be considered first. My conclusion is that the amendments provide what the Government promised but did not secure in the Bill. For that reason, I shall support them.
Lord Woolf (Crossbench)
My Lords, may I just add a few words to the very able speeches that have already been made? I preface them by saying that I am a hedger, not a ditcher. I hope that I will be forgiven for putting my words in the context of my own experience in this case because it is particularly relevant. For five years I was what was known as a Treasury devil or a Treasury junior, whose task, without having any political allegiance, was to be its representative in the courts in cases which would otherwise cause difficulty when being heard. One went to the court with the advantage that you were instructed by the Treasury solicitor. You were the general counsel of the Government in civil cases but when you were dealing with cases of the kind we are here considering you appeared in a completely neutral capacity.
As a result of that experience, I found that within the procedure then available-in which evidence which damaged national security would have to be excluded-there were all kinds of things that the courts and advocates could do to avoid the decision being made that the evidence could not be looked at in the court because of public interest immunity. As has been pointed out, that does not help the interests of justice because the court is blindfolded for some evidence which would otherwise be relevant. However, by using the tools available-which included members of the Bar on different sides accepting that they could rely absolutely on the integrity of the Treasury devil counsel-you could, in the great majority of cases, get evidence before the court in a way which achieved justice.
However, there was a very small minority of cases where that could not be done. One then had the unfortunate situation where there was relevant evidence that could influence the outcome which not even the judge could take into account, either for a claimant or a defendant. I suspect that no one in this House would like that situation to arise-certainly the judge did not like it-and that is why the kinds of efforts that I have indicated were taken regularly to avoid it happening. I emphasise also that, even where that happened, only a small portion of the case would not be investigated; other parts of the case could be investigated.
In generality, the proposals contained in the Bill have a great advantage over the existing process of public interest immunity: they allow the judge to have the material in a way which ensures that the interests of national security are protected. The European Convention on Human Rights does not intend or require a court system of any country to act in a way which is inconsistent with the interests of national security. It requires that the court, if it is going to take action which is not normally appropriate, should take all the steps which are open to it to minimise the effects of so doing. That is why, so far as proceedings in this country are concerned, the European Court of Justice in Strasbourg proposed the use of the special advocate. That was one step that could be taken to further the interests of justice which hitherto we had not taken. The noble Lord, Lord Lester, in his powerful speech, explained the history of how that form of action had its source in Canada, was praised by the European court, and when appropriate was adopted in this country. The procedure did not cure the disadvantages of evidence not being given in the ordinary way, but it did provide a way of getting closer to doing justice than was possible without it.
We want, first of all, to protect national security, but secondly we want to do it in a minimal way-here I think I am reflecting what the noble Lord, Lord Judd, was saying when I say that that is what we should be trying to do-because we do not want to do any more than is really necessary. We should take advantage of the general proposals of my noble friend Lord Pannick without examining them in detail, which would take far too long for me at the present time, so as to find a means of squaring the circle as far as that is possible. At the centre of what my noble friend Lord Pannick said in his speech-I hope that I have not misunderstood him-is that the weakness in what has been proposed by the Government can be summarised by saying that it diminishes the role of the judge in relation to the closed procedure. It is true that the closed procedure will not apply to a whole case but only to what the judge considers, under the provisions of the Act, to those areas where it is appropriate. The closed procedure will enable him to take advantage of the evidence, which may or may not be favourable to the Government; indeed, it may be to the advantage of the claimant.
The whole of our court process is under the control of a judge. The present public interest immunity procedure is under the control of a judge. The Government have the important role, one that I sometimes played, of intervening in proceedings by saying that part of the evidence should be excluded from consideration because it is damaging to national security. In those circumstances, the judge has to be satisfied that the contention being advanced is meritorious. To do that he might read things that are only going to be read by him-which he will do in chambers, so the procedure is closed to that extent-in order to come to a conclusion about the merits of the claim for public interest immunity. I would suggest that, just as he performs that role, he is the natural and indeed the only person, consistent with doing justice generally, who can deal with the matters which my noble friend Lord Pannick, under the guidance of the conclusions of the Joint Committee, feels it is appropriate to put before the House for consideration. If we approach the matter in that way, we will retain our standards of general justice.
Of course justice should always be open whenever that is possible, but Article 6 of the European convention deals with the doing of justice in a wholly different way from that which it deals with the question of forbidding torture. The provision there is absolute. The provision relating to a fair trial does not lay down that certain things can never be done, but gives the standards that should be generally applied. Strasbourg, as the noble and learned Lord, Lord Phillips, has pointed out, would expect that this legislation will take a course that will enable justice to be done in the conventional way in a case, so far as is possible. However, it will recognise that, if there is a matter of national security that cannot be dealt with otherwise, it is appropriate and proper for there to be a new and additional ability for the court, where national security issues arise, that allows the judge to deal with the matter in a special way, with a closed procedure, so far as that is necessary to do justice in that case and where it could not be done otherwise.
Lord Faulks (Conservative)
My Lords, I will be very brief as all the arguments have been well rehearsed. I share the concern of all other noble Lords about these provisions and the agonising balance that has to be struck. I particularly agree of course that either party should have the right to go to these proceedings, very much as a last resort. However, I have one particular anxiety and I hope that the noble Lord, Lord Pannick, will be able to satisfy me and other Members of the House when he comes to sum up at the end. The various amendments that the noble Lord, Lord Hodgson, proposes include a number of hurdles-a Grand National of hurdles in fact-while the JCHR amendments provide a slightly fewer number of hurdles. If those amendments become part of the Bill, there will be circumstances in which we are left in precisely the same situation that we are in now; namely, that a judge does not accept the Government's view about national security in operating the balancing act and the Government will then be left with the choice of doing exactly as they are now, and either settling the case or giving up.
Although I entirely applaud all the sentiments behind these amendments, I worry about how they are going to work in practice and whether they have a danger of defeating the Bill as a whole.
Lord Carswell (Crossbench)
My Lords, the issues in this Bill can be fairly described as a clash of rights. They could also be described as a clash of wrongs. It is wrong-terribly wrong-that people's safety and lives should be put at risk by the disclosure in the public domain of evidence that could, in some way, be withheld without irretrievably compromising the interests of justice. It is wrong, as the Government have said, that they should have to expend enormous sums of taxpayers' money to settle claims because that evidence might put at risk the lives of people or the intelligence interests and co-operation of our allies. It is also terribly wrong that litigants be left in a Kafkaesque limbo, where they cannot know the case that is being made against them or the evidence that is being produced, or cannot be allowed full consultation with their advocates to ensure that they are able to put forward their own case, if they have one, as effectively as possible.
The balancing of interests and considerations has been traditionally not just a principle but a very strong instinct running through our law. It is far, far better if we can incorporate compliance with that instinct into the present issue rather than impose certain rigid requirements that are incapable of being observed without the risk of considerable and great injustice. I pay tribute to the Joint Committee on Human Rights for the quality of the argument and expression of its report.
There is a range of means in practically every case for reaching a proper solution that acknowledges and gives effect to the different considerations. I give an analogy that is not from the present issues, not from civil law but from criminal law: the protection of witnesses who would fear for their own safety if they were to give evidence in public. This is something of which I have had fairly considerable experience over the years, sitting as a trial judge when many witnesses, quite understandably, were extremely fearful for their lives and safety if they gave evidence.
There was a graduated list of possible ways of dealing with this and one had to consider that in any given case. It started at the lowest end, allowing the witness to give his or her name and address on paper to the judge only, but otherwise giving evidence in the normal way in open court and subject to ordinary cross-examination. At the other end of the scale, the witness was hidden behind a curtain or a screen and his or her voice was distorted so that the persons in the court could have no idea, unless they were clairvoyant, who was giving this evidence. It could have its humorous side. I remember a group of Army witnesses sitting in court-they all had dark glasses on and the most curious wigs, and they looked an amazing sight. But we applied that list as best we could and I suggest that this approach exemplifies the way in which Parliament should deal with this problem. For that reason I support the amendments.
This will not be an easy task for the judges who have to shoulder it. One has to acknowledge that it may not always be discharged perfectly, and certainly it will not always be discharged in a way that pleases the Government of the day. But undertaking that sort of burden is part of the function of a judge and we must trust them to take it on and to discharge it to the best of their ability. We must bear it in mind that in any given case the judge will have expert argument-and the noble Lord, Lord Pannick, has said how effective and persuasive that can be-setting out the issues, giving the judge the opportunity and the time to weigh them up and attempt to come to the best possible solution. I submit that it is far better to run the risk of justice being imperfectly administered than to put the judges into a straitjacket at the Government's behest. I support the amendments.
Lord Elton (Conservative)
My Lords, many noble Lords have said that striking a balance between justice and public security is a very difficult task, and that is exactly what this House is now being asked to do. Your Lordships who are learned, or learned in the law, will no doubt have made up your minds by now, but as a Member of the House who is a layman in these matters I rise simply to make a plea to my noble friend. He has brought a Bill to the House asking for more powers to be given to the Government to protect their agents working in the public interest. History is full of such appeals, and the duty of Parliament is to look at them with grave suspicion, particularly, as my noble friend Lady Berridge says, at a time when a Government have achieved so much preponderance in the other place. I am therefore very anxious to have clear statements, in one voice, from the Government who are putting this case, as to the individual merits of the different amendments.
It seems to me that there are not two simple, discrete packages, but that there are individual bits that are appealing and others that are not. Each will have a price. That price will be paid either in cash, by not going forward with the case, or in security, by risking exposure. We need to know that price as we make up our minds on each individual case. I speak as a layman, and I believe that there are many who need this guidance.
Lord King of Bridgwater (Conservative)
My Lords, I hesitate to intervene in such a distinguished judicial gathering. In my time, I have had some involvement with intelligence matters. I recognise, as has been very well recognised by a number of noble Lords, how extraordinarily difficult these issues are and the challenges that they will pose for a judge when exercising his responsibilities.
The noble and learned Lord, Lord Woolf, made the point very well that what we should be concerned about is national security. We should also be concerned with public respect for the system of justice. If there were to be, as we are told, an increasing number of cases that cannot be defended by the Government, in which perhaps substantial payments have to be made to what may appear to be thoroughly undeserving claimants, the public outrage and the damage that will do to respect for justice in this country will be extremely grave. I have been very impressed by what I think is a general consensus emerging that this is not a measure that should be abandoned by voting against Clause 6 but that this is a measure of last resort, provided that there are proper protections in place.
It cannot be emphasised too strongly that we depend for our defence in this country not just on the very able capabilities of our own intelligence and security services but on the vital liaison that we have with a number of key allies. Those allies are now spread much more widely than people may realise. A number of them are extremely sensitive about whether the security of the intelligence that they provide under the tightest restrictions, which is held most closely in their own countries, is going to be maintained in whatever arrangements we introduce into the justice system in this country.
The noble Lord, Lord Marks, was querying whether there had been any such case. Of course, we are familiar with the issues that arose in the Binyam Mohamed case, when the Divisional Court ultimately rejected the Foreign Secretary's third PII certificate. David Anderson QC, who has been referred to on a number of occasions, said that on the basis of what he was shown,
"there are signs that we are currently on probation and that there has already, in some respects, been a diminution in intelligence sharing".
That is a very serious concern and certainly not a judgment that I would challenge. In my own experience, I was very conscious of the sensitivity in these matters and the importance of maintaining the most open channels.
Lord Lester of Herne Hill (Liberal Democrat)
I am sorry to interrupt my noble friend, but does he accept that in the Binyam Mohamed case, neither the Divisional Court nor the Court of Appeal presided over by the noble and learned Lord, Lord Neuberger, revealed any information that in any way prejudiced national security, even though it is true that some of the affidavit evidence of the Foreign Secretary and of Hillary Clinton was questioned at the Divisional Court level?
Lord King of Bridgwater (Conservative)
I do not think I have ever quoted Donald Rumsfeld, but when my noble friend very firmly asserts that there was no risk to national security, my worry always is the,
"things we don't know we don't know"
in these issues as to what sensitivities there may be. That is the worry that emerges out of this.
Let us be quite frank, there is not always a huge enthusiasm to share intelligence. There are plenty of people in the intelligence agencies of other countries who are very secretive indeed about the intelligence that they have and deeply distrustful of any other country that they do not believe will properly protect it, so any excuse that they can have-which they will argue internally in their own organisations-not to share intelligence in this way is something that we have to be extremely careful about.
It is against that background that I look with great interest to the reply of my noble friend the Minister. I have listened with great respect to the points that have been made. Some very good points have been made about the importance of ensuring judicial discretion in these matters. I got the impression that the Government have already moved quite significantly in that direction, which I wait to hear. However, in respect of my noble friend's Amendment 31, I think that CMPs definitely have an advantage over PIIs. I do not support Amendment 31. I support the noble Lord, Lord Owen, in what he said about Amendment 48. I believe that Amendment 50 is also one that people have reservations about and I hope that that will not be pressed either.
Baroness Manningham-Buller (Crossbench)
My Lords, I well understand the concern coming from all angles of this House on this legislation, and it is entirely right that these issues are fully scrutinised and judged by us. I think that everybody accepts that what is proposed is not ideal, but the question is: what is the best answer? There is the central dilemma of how to deploy into court a wealth of secret information that can be judged and weighed by the court without compromising it.
I am sorry to repeat this, but I think that I have to: the dangers of compromising secret information are several. The first is the obvious risk to the officers who are concerned with it and, as the noble and learned Lord, Lord Carswell, made clear, to the sources of it. The second is the technologies that are available but are fragile and can no longer be used. We are trying to deal with those two things.
If the House will indulge me, I want to say something pretty personal. It is deeply distressing to me and to my former colleagues to be accused of really wicked iniquities in the case of torture and maltreatment. We have not been able to defend ourselves. The closed material procedure gives the opportunity for this material, which may or may not reflect badly on the security and intelligence services-I naturally think that it would not, but others may judge differently-to be looked at. We have been judged by many to have been engaged in criminal activity. But there has been no prosecution; there has been, concerning my service, one police investigation and the CPS found no case to answer. There are other police inquiries going on at the moment and, because I believe in and respect the rule of law, I cannot comment on them; we will see what the outcome is. However, I believe that closed material procedures are a way in which the judiciary can make a judgment on the validity of those claims. We need CMPs for a range of reasons, and I am glad that it seems that, with some exceptions, the need for them is accepted by this House.
When we get on to the next part of the Bill, we will talk about intelligence sharing and Norwich Pharmacal. I may wish to comment at that stage; I do not now.
PII, apart from keeping out of court material that we wish the judge to look at, will be impractical in some cases. I believe-this is information from my former colleagues because I had retired by then-that around a quarter of a million documents were involved in some of the claims that have already been settled. Going through those line by line would be a mammoth and very long task.
Finally, perhaps I may pick up the point made by the noble Lord, Lord Faulks. We should hope to avoid reaching a stage where, because of the need for the open practice of justice and because the balancing act rules out the use of secret intelligence, the Government will have to withdraw and settle and we might get back to where we started, with these cases not being heard. That is a risk that we will probably have to cope with, but I hope that the House will support the central value of having some proceedings to hear these cases in the absence of any at the moment.
Lord Wallace of Tankerness (Liberal Democrat)
My Lords, I thank all noble Lords who have taken part in this debate. By any account, it has been a very well informed debate, with people speaking from some rich experience. The contributions from those who claim to have no legal background are equally important in bringing the perspective of those who do not deal day-in and day-out with legal issues. As my noble friend Lord Elton said, we are dealing with the difficult issues of trying to achieve a proper balance between liberty, justice and security.
I was encouraged by my noble friend Lord Elton to look at the amendments in turn, but perhaps I may make some introductory remarks. It has been some time since we last considered Part 2, although much has been said about it in the mean time. It is important to remind the House why the Government have brought forward the clauses introducing closed material procedures into civil proceedings where sensitive national security material is relevant. As my noble friend Lord Marks indicated, in a letter which is available in the Printed Paper Office, which I sent to the chair of the Joint Committee on Human Rights, we believe, having done a cross-departmental trawl, that there are about 20 current civil damages cases where material relating to national security would be central. There have been seven new cases during the 12 months leading up to
Intelligence operations depend, inevitably, on surveillance, investigation and, most critically, information -sharing between agencies, their sources and their liaison partners, as was said by my noble friends Lord King and Lady Neville-Jones. Underlying those arrangements are two principles. The United Kingdom does not confirm its involvement or the involvement of its liaison partners and sources, as to do so would result in a loss of trust and information-sharing would dry up. We rely on others to keep our information safe; and our partners rely on us to do the same. Although much reference has been made to the United States, I recall from our deliberations in Committee that it was made clear that there is a number of other countries whose information we also depend and rely on.
In cases where people are bringing proceedings alleging that the Government were involved in detention, rendition or torture, the Government's defence would be likely to include: the nature of any involvement, which would require the Government to breach their long-standing policy not to comment publicly on whether or not they had been involved in any particular operation; what the Government knew at the time, potentially risking the lives and safety of sources; what the Government had shared with its partners, potentially revealing the fact of, and nature of, relationships with partners; and any assurances sought and/or received about an operation, again, potentially revealing the fact of, and nature of, those relationships. All those things could be central to any defence and none of them could be put in the public domain without the risk of jeopardising the safety of sources or the willingness of partners to work with the United Kingdom.
"In two and a half years' time, it could be me in that seat making that tough decision. So it is very important for ministers to have the opportunity to protect sources, to protect delicate operations and all the rest of it. They shouldn't be jeopardised by a civil action".
At present, as has been said in our debate, the only way to prevent the disclosure of such highly sensitive national security material when civil litigation arises is through public interest immunity. Although the system of PII works well in most cases, it is not working in a small number of cases that hinge on sensitive national security material. That point was clearly and eloquently made by the noble and learned Lord, Lord Woolf. He said during our deliberations in Committee:
"PII has the very unfortunate effect that you cannot rely on the material that is in issue, whereas both the claimant and the Government may want to rely on that material".-(Hansard, 11/7/12; col. 1189.)
PII requires the court to balance, on the one hand, the damage that would be caused to the public interest with, on the other hand, the public interest in the administration of justice. That includes the impact excluding the material will have on the claimant's and defendant's cases, as well as the general public interest in open and transparent proceedings-the so-called Wiley balance.
I will pause to make it clear what that means. In most cases, the judge will decide that the national security of the United Kingdom outweighs the damage to the administration of justice from excluding the material. In that case, the judge will exclude the material from the court's consideration, no matter how relevant it is. The judge also has the power to look at material and agree that it would damage national security if revealed in open court but, nevertheless, decide it must be disclosed anyway. I think many of us, if we were agents, would feel that that might be a somewhat frightening theoretical prospect. Where the Government's case rests wholly or substantially on sensitive national security material, there is clearly a real problem. That has been identified by a number of contributors to the debate.
The noble Lords' amendments raise important issues in this Bill on the relative benefits of and interaction between closed material proceedings and public interest immunity. Perhaps your Lordships can identify three distinct packages within this group. Amendment 31, moved by my noble friend Lord Hodgson, would, with Amendments 32 and 44, put PII on the statute book where national security is concerned, require the Secretary of State to go through this process for every document before a CMP declaration can be made and prevent CMPs being used in claims,
"which arise in connection with the claimant's loss of liberty".
Amendments 36, 37, 38 and 40, proposed by the noble Lord, Lord Pannick, but emanating from the report of the Joint Committee on Human Rights, deal with stage one of the CMP, in which the Secretary of State makes an application to the court for there to be a CMP in principle.
Amendments 47, 48, 49 and 50, also tabled by members of the Joint Committee, are a separate group, introducing balancing and additional gisting requirements at stage two, within the CMP itself. As I think the noble Lord, Lord Owen, indicated, and as the noble Lord, Lord Pannick, indicated in regard to Amendment 50, Amendments 48 to 50 may be a subset of these amendments. I will refer to those later in my remarks.
Perhaps I may start by dealing with the amendments spoken to by my noble friend Lord Hodgson. I have made general remarks about the problems with PII in this context. Amendment 31 would introduce a system of statutory PII for national security material only. My reading of the amendment is that it would go beyond the purposes of this Bill. Indeed, where there is national security material it would put PII on a statutory basis generally in civil proceedings. There is no such procedure currently set out in legislation. PII is a common law principle that the courts have developed to deal with the handling of sensitive material over the years. A wide and flexible range of public interests fall within its umbrella.
Over recent weeks, it may not surprise your Lordships to know that I have had to engage with a number of groups and individuals who were very concerned on these issues and who have been advancing the importance of PII. I am sometimes somewhat surprised that there has been a love affair with PII that was not always apparent some 10, 15 or 20 years ago, but the point made regularly to me was its importance because it has grown out of and been developed by the common law, thus allowing the flexibility that the common law brings to changing circumstances.
In our Justice and Security Green Paper, we ruled out statutory PII because we believe that it does little to advance on the current system in providing clarity on applicable principles and stability and certainty for the UK Government. In Committee, the noble and learned Lord, Lord Woolf, said:
"I would urge that flexibility is very important here. PII has been developed as a common law principle, and if it is accepted on all sides, as I believe it is, that PII in the present proceedings should remain, I question whether we need to reduce into statute that which the common law has developed. Of course, if the common law has developed it, it can continue to develop according to new circumstances that we may not anticipate in the course of the argument taking place in this debate".-[Hansard, 11/7/12; col. 1188.]
The Government would strongly endorse this view.
Amendment 32 would require PII to be exhausted first. The test the court must apply when considering an application for a CMP would therefore be much tighter. The Government do not agree that PII must be exhausted before applying for a closed material proceeding; nor do some notable commentators. Mr David Anderson QC, who probably gets the prize for the most quoted person in these debates, said that,
"if the exercise is plainly going to be futile, I do not think legislation should require it to be performed."
I note that the report on the Bill by the Constitution Committee of your Lordships' House did not go so far as to recommend that the Bill should require PII to be exhausted before a CMP declaration should be sought from the court. That report stated:
"We can see force in the argument that it will sometimes be otiose to push the PII process to its completion before turning to CMP".
My noble friend Lord Hodgson claimed that PII would not be time-consuming. I think it was my noble friend Lord Marks who mentioned the Guantanamo civil litigation. It was settled because the Prime Minister wanted to draw a line under detainee issues and to illustrate the potential scale of the problem. There were around 250,000 relevant, sensitive documents in that case. It would have taken several years to complete PII, requiring a full-time Minister who barely did anything else. If PII had been successfully asserted, the Government would have had excluded a large part of their defence.
My noble friend Lord Hodgson referred to the toolkit on PII, but there is a toolkit in Clause 7 on the different ways in which the judge in closed material proceedings can deal with individual items and pieces of information. I know my noble friend Lord Marks does not think that goes far enough, but we should not lose sight of the fact that there is within the Bill the opportunity for the judge to consider each individual piece of evidence once the gateway has been passed with regard to the principle of closed material proceedings in any one case.
Amendment 44 was spoken to by my noble friend and prevents CMPs being used in claims which,
"arise in connection with the claimant's loss of liberty".
Claims relating to issues of liberty might be thought more routinely to arise in the United Kingdom in the context of criminal proceedings. Although I think all noble Lords have acknowledged it, I emphasise that the provisions in the Bill do not relate to criminal proceedings. Noble Lords may be thinking of a recent case in the civil courts, the case of Rahmatullah. In that case, proceedings were brought in the UK in relation to a person in US custody. There was no relevant national sensitive security material in that case and no claim for PII was made. The UK Supreme Court and the courts below were able to determine the issues without a CMP.
I have emphasised a number of times that the use of a CMP is designed to include more material in determining the case rather than excluding it. This ensures that the claim can proceed on the basis of all the relevant material. We would wish to see as much material as possible, and we cannot understand why noble Lords who tabled these amendments would wish to produce a situation in which material relevant to a case could not be taken into account by a judge. I therefore ask my noble friend to withdraw Amendment 31 and not to move Amendments 32 and 44.
Moving now to the second set of amendments within this group-Amendments 36, 37, 38 and 40-I preface my remarks by expressing gratitude to the members of the Joint Committee on Human Rights for their thorough and detailed report on this Bill, which was published last week. My noble friend Lord Hodgson mentioned concern about the thin end of the wedge, which is what the members of the Joint Committee on Human Rights perhaps sought to do in their views about how to address the procedural aspects of the Bill. I welcome the committee's acknowledgement of the changes that have already been made from the proposals originally put forward in the Green Paper. I welcome the contributions by two distinguished members of the committee, my noble friends Lord Lester and Lady Berridge. My noble friend Lord Lester gave a very clear indication of how we got into closed material proceedings at all, which goes back some 15 years to cases in which he was involved and which evolved from a decision in a case before the European Court of Human Rights. As we have heard, the report contains a number of clear and detailed recommendations, which are reflected in the amendments we are considering this evening. For example, the recommendation to remove from the Bill the order-making power to extend CMPs is one that we have already been able to agree and we will debate it later. The issues raised by some of the other recommendations are complex, and one would expect the Government to give them the careful consideration that they merit. We will respond fully to the Joint Committee's report in due course.
One recommendation was picked up by the noble Lord, Lord Beecham. He said that it is difficult to define national security. That is accepted. Twenty years ago, no one would have thought of cybersecurity. He acknowledged that you could be stuck with a definition, but he asked whether we could say what is not included. The Joint Committee recommended that the Government confirm to Parliament that Clauses 6 to 11 of the Bill are not intended to cover material the disclosure of which would be damaging to international relations, such as diplomatic exchanges. I confirm to the House that "national security" is deliberately a very narrow definition, and a term well understood by the judiciary. It excludes other aspects of the public interest, such as international relations or the prevention or detection of crime, which will still be dealt with under the PII regime.
By way of comparison, the Special Immigration Appeals Commission must uphold the Secretary of State's view that material should be closed material where disclosure of that material would be contrary to the public interest. As I have said, in this case it is limited, as a response to the previous report of the Joint Committee on Human Rights, to national security.
Amendment 36 would introduce full judicial balancing into the court's decision to grant an application for closed material proceedings. The Government agree that judicial discretion is vitally important. Quite properly and thankfully, no one in your Lordships' House suggested that CMPs might be used to deal with issues and inquiries arising from the Hillsborough tragedy, although I have had to deal in other forums with that allegation being made. Quite clearly, a judge seeing that coming up would readily identify that it was not a matter of national security, and deal with it appropriately.
The Government believe that such elements of judicial discretion must be provided for in the right way and at the right stage of the process. If it is to be meaningful, it must have regard to the Government's responsibility for matters of national security. We believe that the duty on the Secretary of State to consider PII first and the flexibility that the judge has at the second stage of the process to which I have already referred, which critically includes the duty to ensure Article 6 rights are guaranteed, is both meaningful and appropriate. As my noble friend Lord Faulks said in Committee:
"It should be emphasised that CMPs are not of themselves a novelty and exist in a number of different contexts".-[Hansard, 19/6/2012; col. 1740.]
In none of these contexts do they begin with a balancing test or a PII exercise.
Other amendments in this group would give the court discretion to grant an application if the potential damage to national security outweighed the public interest in the fair and open administration of justice and if it considers that a closed material procedure is the only way fairly to determine the issues. These amendments would require the test the court must apply when considering an application for a CMP to be much narrower, not only making a CMP an absolute last resort but making it available to dispose of the issues only in the situation where a fair determination of the proceedings is not available by any other means.
I will indicate why I am not persuaded that this is the right approach. It leads to two questions. First, what other way might the issues be determined? Secondly, how far should the judge have to go to attempt these routes? The noble and learned Lord, Lord Lloyd, from his experience, expressed some concern about the test here. He said that the difficulty with Amendment 66 was balancing harm with public interest in the fair and open administration of justice. I can understand that it would be somewhat uncertain. As I have said, it is vital that we produce clear legislation that signals what Parliament intends. One of the aims of this Bill is to provide clarity on these issues and when these procedures should operate. The noble and learned Lord, Lord Phillips, indicated that he presided over the court in the Al Rawi decision where the court passed the baton to Parliament to determine the procedure and the circumstances in which closed material proceedings should apply in civil proceedings. The court indicated that Parliament should legislate and make it clear in what circumstances CMPs should be available. I somewhat fear that the test here does not give the clarity which ought to apply. This particular phraseology is used at the second stage-the Clause 7 stage-through Amendment 47.
One route sometimes pointed to is in-camera hearings and confidentiality rings but, where national security-and potentially individuals' lives-are at stake, these mechanisms cannot give the required degree of assurance. There may be no way to manage or contain the harmful impact of making sensitive information public. David Anderson has said,
"I would suggest that a confidentiality ring ... is not the answer to everything. It drives a barrier between counsel and client, which can be very difficult to maintain".
My noble friend Lord Carlile of Berriew asked the JCHR,
"not to be too enthusiastic about confidentiality rings in this range of cases. They are not right in principle here."
The only other option, therefore, which would appear to be available is PII, but going through the whole PII exercise may well be an irresponsible waste of the court's time in cases where, quite clearly, at the outset, material would be excluded.
Fundamentally, none of the options-settling, using PII, offering no defence to serious allegations or having the court strike a case out as untriable-enables the courts to get to the truth of what happened. The noble Lord, Lord Beecham, pointed out that I had said that in some cases the court could strike it out, and he felt that that would safeguard national security. It would certainly do that if no information was ever made available before a judge, even under closed proceedings. PII also achieves that to some extent at the moment, when some material is excluded, but that does mean that relevant information may not come before a judge. Perhaps some people look at it from the perspective of the Government and agencies that were not allowed to put a defence forward, but equally, if a claimant puts forward a valid claim, they may not be able to get judgment, to have that claim properly vindicated, if a case has to settle because material was necessarily excluded from the court. That is why I take on the point made by my noble friend Lord Faulks.
It still could be the situation, even under the proposals that the Government have made. Under the test that would apply under Clauses 7, 72 and 73, if the Government do not feel able to bring forward information if the court requires it, and feel able to disclose it, they would not be allowed to use that information. In these circumstances, even under proposals here, it might still be necessary to settle. We are seeking to try to reduce as much as we can the cases where settlement is the option. We would much prefer cases where relevant information could be brought before a court for a determination.
Settling is sometimes portrayed as an easy option, but it is far from certain. For a start, it relies on the other party being willing to settle. If they are not, the Government are left with the same problem of seeking to exclude their own defence by means of PII, facing potentially damaging disclosure of sensitive material, or offering no defence and losing by default. They would not even be able to put any evidence before the court that might determine the quantum of damages, which opens up the Government potentially to even greater cost.
Settling is not without serious consequences. Although cases are settled without admission of liability, people assume that the UK is only settling because somewhere there has been some wrongdoing. As the noble Baroness, Lady Manningham-Buller, has said, that has huge reputational damage, and can be used to legitimise extremism or terrorism against the UK. In Committee the noble Baroness said that,
"public confidence in the security and intelligence community is not helped by the fact that, in many cases, we have been unable to defend ourselves".-[Hansard, 11/7/12; col. 1228.]
She believes, as I do, that inviting the court to look at all the relevant secret material-and it will decide what, if any, weight is to be put on it-is an advance over where we are today.
As I have indicated, the claim that balancing in PII leads to more disclosure of national security material ignores what happens in practice. I will briefly pick up the point made by the noble Lord, Lord Marks, about Amendment 38. There is a technical issue here. Amendment 38 goes to the leg of the admission to closed material proceedings, that there must be a requirement to disclose. If PII has been successfully invoked there would be no requirement to disclose, and that would almost be self-defeating. However, I accept how the noble Lord, Lord Pannick, put it, that it was all part of a wider package. As it stands on its own-and we had this debate in Committee-it is there not in any sinister way to exclude PII, but rather to not find a position where the judge can say "I can't allow this, because you could have excluded it with PII".
Under the new arrangements, where the court declares that the case is one where a closed material procedure may be used, this does not mean that all material in those proceedings is automatically heard in closed proceedings. Only material that is damaging to the interests of national security will be considered in closed session, and as with PII, there will be a painstaking exercise to ensure that as much of the evidence as possible is heard in open court. I certainly recognise the point that the noble and learned Lord, Lord Phillips, made, about the Strasbourg court's views on these provisions. If the Strasbourg court were to say that CMPs could never be compatible with the ECHR, then we might be in some trouble.
However, the court has not made such a finding, and in fact, it has found that CMPs can occur compatibly; for example, the case of Kennedy. As the noble and learned Lord, Lord Woolf, indicated, the provisions of the convention do not put a stoppage on Governments taking measures through their judicial proceedings to consider national security. However, as it is indeed the case, there is an express requirement on the court in Clause 11(5)(c) to have proper regard and to bear in mind the provisions and requirements of Article 6, and if Article 6 requires disclosure, then the court must order it.
Lord Lester of Herne Hill (Liberal Democrat)
I am sorry to interrupt my noble and learned friend. Does he accept the Joint Committee's point that, instead of relying on Article 6, to weaken the common law, one should approach the convention through our legal system, including common law guarantees of fairness? Does he also accept that we should not use Article 6, which is a compromise, for mainly civil countries' standards, but that we should be looking at our own common law, as explained by the Supreme Court in the Al Rawi case?
Lord Wallace of Tankerness (Liberal Democrat)
My Lords, Article 6 has been a very good safeguard for many claimants, or people appearing before the courts, of securing a fair trial. The fact that the courts are expressly enjoined to have regard to it does mean that in particular cases, if the requirements of a fair trial lead to requirements of disclosure, when one comes to that second stage of the CMP process the court would be obliged to order disclosure. However, as I have already indicated, it may well be that in these circumstances the Government take the view that even then, disclosure could be damaging to national security, but they must bear the consequences, as set out in Clause 7(3), if they feel unable to disclose.
I finally come to Amendments 47 to 50. They relate to the second stage of the process-and I indicated before that Amendment 47 has the same considerations that I expressed with regard to Amendment 36. The aim of the provisions is to put more material before the court-not the same amount-so that cases that currently cannot be tried because they hinge on highly sensitive national security material can be heard, leading to real findings on important allegations about government action.
Where the consequences are the inclusion of the material in the case, there is no precedent for including Wiley balancing. Other CMPs that already exist and do not use it have been upheld by the courts as being fair and compliant with Article 6. The position of Government is therefore that there is no case to include balancing of the sort that is implicit in these particular amendments.
The noble Lord, Lord Owen, expressed concern about the requirement, as opposed to an obligation to consider to require, in terms of disclosure. As a Government we share that concern about this set of amendments. Amendment 49 also goes even further and provides for disclosure under the AF no. 3 principle, meaning that material can be disclosed, even if it is damaging to national security, if that is necessary for the individual to be able to instruct their special advocate. This amendment does not take full account of the judgment of the Supreme Court in Tariq-and I will stand corrected by the noble and learned Lord, Lord Phillips, if I get this wrong-which held that Article 6 does not provide a uniform gisting requirement in all circumstances.
The noble and learned Lord, Lord Mance, said at paragraph 27 that,
"the balancing exercise called for in paragraph 217 of the European Court's judgment in A v United Kingdom depends on the nature and weight of the circumstances on each side, and cases where the state is seeking to impose on the individual actual or virtual imprisonment are in a different category to the present"-
the present being an employment tribunal-
"where an individual is seeking to pursue a civil claim for discrimination against the state which is seeking to defend itself."
The noble and learned Lord, Lord Hope, went on to say at paragraph 72:
"The context will always be crucial to a resolution of questions as to where and how this balance is to be struck".
I could not help but think of the point that the noble Lord, Lord Owen, made, that when so much has been said about judicial discretion, this is perhaps an area where there ought to be proper judicial discretion, and where an absolute requirement on the judges should not be made. Wherever it is possible to provide gists and summaries of national security-sensitive material without causing damage, they will be supplied. In those cases where Article 6 requires gisting of this type, as I have already indicated, Clause 11(5)(c) means that the court will order it.
Finally, Amendment 50, which the noble Lord, Lord Pannick, indicated that he may not move, would instruct the court to ensure that any summaries only do no damage to the interests of national security,
"so far as it is possible to do so".
I am afraid that that is a risk that the Government cannot take. We cannot say to our international partners that we will protect their information,
"so far as it is possible to do so".
Perhaps above all, we cannot say to sources who are risking their lives for us, "We will protect your identity and, accordingly, your life and safety as far as it is possible to do so". We do not believe that that is a risk that the Government should take and we believe that we should be categorical about it.
This set of amendments puts at risk our national security in order to hear compensation claims that can be fairly dealt with by the model set out in this regard in the Bill. The Government's duty is to protect national security and it is not an optional duty. It is fundamental and some may say that it is our very first duty. Against that background, I very much hope that the noble Lord will withdraw his amendment.
Lord Pannick (Crossbench)
Before the noble Lord, Lord Hodgson, replies, it may be of assistance to the House if I seek to respond to a specific question put to me by the noble Lord, Lord Owen. I am very grateful for the general support around the House for the concept of judicial discretion in this area and that CMPs should be a last resort, if they are to exist at all.
The noble Lord, Lord Owen, asked me to address Amendments 48 and 49, to which the Minister referred. I am grateful to the Minister for the very careful way in which he went through the amendments. The noble Lord, Lord Owen, was concerned that Amendments 48 and 49 would introduce a duty to provide a summary or a gist of the material if the closed material proceeding is to be ordered. The answer is that disclosure of the summary or the gist would be required only if the Government wish to proceed with a CMP. If they do not wish to disclose the gist or the summary, which is a matter entirely for them, they do not have to do so under the amendment. There simply would be no closed material proceeding. I suggest that that is entirely appropriate if we are to have a fair balance of the interests in open justice and other competing interests. I am grateful to the House.
Lord Hodgson of Astley Abbotts (Conservative)
I am extremely grateful to my noble and learned friend for the courteous and extensive way in which he has replied to Amendment 31, on which this debate has hung. Perhaps I may make clear to my noble friend Lady Neville-Jones that this was not to end CMPs: it was merely to narrow the gateway to CMPs by requiring a PII process first. The noble Lord, Lord Pannick, has discussed a number of amendments that give effect to the recommendations of the Joint Select Committee. If I was going to be irreverent, I might say that I regard those as offering 80% of the loaf, as opposed to 100% of the loaf that I was seeking.
However, I have to recognise that the Joint Select Committee has spent a great deal of time on this, a great deal more time than I have. Speaking as it does for both Houses of Parliament, it speaks with great authority. I also practically recognise that 80% of a loaf is better than no loaf at all. I shall seek, with the leave of the House, to withdraw my amendment and then give my support to the noble Lord if he chooses to move his amendments to give effect to the Joint Select Committee's proposals. I beg leave to withdraw the amendment.
Amendment 31 withdrawn.
Clause 6 : Proceedings in which court permits closed material applications
Amendment 32 not moved.
Moved by Lord Pannick
33:Clause 6, page 4, line 18, leave out from first "The" to first "a" in line 19 and insert "court seised of relevant civil proceedings may, on application of either party or of its own motion, make"
Lord Pannick (Crossbench)
My Lords, I can be very brief because I can see that your Lordships are keen to move to vote on this matter. Amendment 33 addresses a specific aspect of fair balance. Under the Bill, a CMP may be ordered only on the application of the state. Amendment 33 would provide that the judge is able to order a CMP also on the application of another party to the proceedings or on the court's own motion. That may be a practical matter for the reason given by the noble Lord, Lord Marks. The claimant, on the advice of the special advocate, may prefer the case to be heard by means of a CMP or at least part of it, rather than to have the evidence excluded altogether, given that the evidence may assist the claimant. I beg to move.
Lord Wallace of Tankerness (Liberal Democrat)
My Lords, consistent with the spirit of the way in which the noble Lord moved his amendment, I shall try to be brief, but I think that it is only fair that I explain why the Government are not accepting this amendment.
It is part of the principle behind our system of government that the Executive are the guardian of the United Kingdom's national security interest. Courts have frequently stated that the Government's function to protect national security by claiming PII is a duty rather than an option. Correspondingly, we believe that it should be the responsibility of the Secretary of State to apply for a declaration that a closed material procedure may be used. The courts play an essential role in scrutinising the Government's exercise of these functions, but the question of whether to claim PII, and accordingly whether to make an application for a declaration that a closed material procedure may be used, should be a question for the Government.
In practice, it is the Secretary of State who holds national security-sensitive material and is in the best position to judge the scope and nature of that material, with advice from the security and intelligence agencies. Other parties may not even be aware that the national security information exists. It will remain open to a third party to approach the Secretary of State and request an application for a CMP if they do have reason to want one. If the Secretary of State refuses, that decision could be judicially reviewed.
I accept there is an underlying concern that the Government could inappropriately use this power because there is a feeling the courts are powerless to prevent the Government claiming PII to hide something, and conversely claiming a CMP when it is to the Government's advantage to have material before the court. I do not think this is a concern that is ever likely to be raised in practice. In the first instance, it is for the Secretary of State to instigate the CMP application or PII claim, and the power to order a CMP or to accept a PII application rest solely with the judge. The judge would be alert to any unfairness to the non-government party, and within the CMP would have the case management powers to be able to ensure that the claim is fairly heard.
That is, in summary, why we would resist the amendment, and I invite the noble Lord to withdraw.
Lord Pannick (Crossbench)
I am very grateful to the noble and learned Lord. If we are to have CMPs there must be equality of arms and there must be fairness, and it must be open to the applicant to apply to the judge for a CMP to be ordered. I wish to test the opinion of the House.
Lord Wallace of Tankerness (Liberal Democrat)
My Lords, I am not quite sure that I can say that we do not support the amendment and just leave it at that, as that would not be courteous to the House.
Very briefly, the Bill states that the judge must order a CMP if he considers that a party to the proceedings would be required to disclose material and that such a disclosure would be damaging to the interests of national security. The amendment would change the "must" to "may", introducing greater judicial discretion. However, the Government do not consider that this is a necessary amendment given the narrow criteria that are set out for triggering a CMP and the other safeguards in the process.
When the Secretary of State makes an application whereby a CMP might be used, the judge needs to be satisfied of two things: first, that there is material that a party would normally be required to disclose; and, secondly and significantly, that disclosure of that material would damage national security. That is not a fig leaf, as some have described it. The judge will have the final say about whether or not those conditions are satisfied. The Secretary of State has to demonstrate that genuine damage to national security, not embarrassment, would be caused by the material being disclosed publicly; and if the judge disagrees with that assessment, he could refuse to order a CMP. Equally, if he considered that the material was not relevant to the facts of the case and the Secretary of State was therefore seeking a CMP where one was not necessary to protect material that was relevant to the case, he could refuse to order one on that basis, too. This is a significant role for the judge.
It is also important to remember that the process does not end with the court's declaration that a CMP may be used. It is, as has been described in our previous debates, a gateway. Stage 2, set out in Clause 7, is a process whereby the special advocate can then challenge individual documents as to whether they should go into open or closed proceedings, and this is done successfully.
In those circumstances, I encourage the noble Lord to withdraw his amendment, although I suspect that he is not going to do so.
Lord Pannick (Crossbench)
The noble and learned Lord is very wise. If we are going to have CMPs, it should be at the discretion of the judge rather than as a matter of duty. I wish to test the opinion of the House.
Lord Wallace of Tankerness (Liberal Democrat)
My Lords, it may be for the convenience of the House if I indicate that, while the Government do not accept Amendments 37, 38 and 40, we do not propose to resist them at this time. There will obviously be an opportunity to reflect on them.
Amendment 37 agreed.
Moved by Lord Pannick
38: Clause 6, page 4, line 30, leave out paragraph (a)
Amendment 38 agreed.
Moved by Lord Wallace of Tankerness
39: Clause 6, page 4, line 35, at end insert "and any other enactment which would prevent the party from disclosing the material but would not do so if the proceedings were proceedings in relation to which there was a declaration under this section."
Lord Wallace of Tankerness (Liberal Democrat)
My Lords, in Committee, my noble friend Lord Thomas of Gresford tabled an amendment seeking to amend the effect of the disclosure gateway provisions in the Security Service Act 1989 and the Intelligence Services Act 1994. The amendment was based on a suggestion that emanated from the Bingham Centre for the Rule of Law. At that time the Government resisted the amendment on the grounds that it was not necessary to secure the agencies' compliance with their disclosure obligations and that it was wider than appropriate because it would mean the courts could order disclosure into civil proceedings regardless of the connection between those proceedings and the agencies' functions.
However, following the Committee stage, Professor Sir Jeffrey Jowell from the Bingham Centre wrote to me urging the Government to reconsider the issues raised by the amendment. After careful consideration and consultation with experts on this complex area of law, the Government have concluded that a similar amendment would be necessary. This is a technical area of law and it may help if I briefly explain why the change is needed.
Under Clause 6, the court must, on an application from the Secretary of State, make a declaration that the proceedings are ones in which a closed material application may be made if the court considers that a party would be required to disclose material in the course of proceedings and disclosure would be damaging to the interests of national security. The problem with the Bill as drafted is that it does not make it clear that statutory bars to disclosure into open court should not prevent there being disclosure into closed material procedures.
I assure the House that the Liberty analysis of this amendment is wrong. In an e-mail to parliamentarians its policy director described the amendment as being able to expand the categories of secret information on which the application for a CMP declaration can be based. That is not the case. The amendment makes it clear that the court should ignore any statutory provision that would prevent the disclosure of relevant material into open court but not into closed material procedures when the court is deciding the question of whether a party to proceedings would be required to disclose material. In other words, we do not want to be in the unfortunate position where we are unable to use a CMP as a result of these Acts covering the Security and Intelligence Agencies. These Acts are in part designed to ensure that highly sensitive information is not made public in the interests of our national security. The closed material procedures, however, have been assessed to be secure enough to allow highly sensitive information into a courtroom to be considered by a judge. The Government and agencies want the chance for a judge to come to an independent judgment. We do not want silence on these important matters.
Once again, I am grateful to my noble friend Lord Thomas for having raised this issue in Committee. While we may not have agreed on every point today, I am always grateful for his tireless work in holding the Government to account and for his detailed contribution. I am particularly grateful to the Bingham centre for taking time to scrutinise the Bill and for writing to me and asking the Government to rethink. The centre is an important legal research institute and the Government welcome its contribution to make sure that the Bill is suitably drafted. I beg to move.
Lord Thomas of Gresford (Liberal Democrat)
My Lords, have I not always said that this is a listening Government? I am grateful to my noble and learned friend for taking on board what I said on the last occasion, which I confess I have now totally forgotten. However, clearly it was very persuasive and I thank the noble and learned Lord for the amendment.
Amendment 39 agreed.
Moved by Lord Pannick
40: Clause 6, page 4, line 42, at end insert-
"( ) Before making a declaration under subsection (2), the court must consider whether a claim for public interest immunity could have been made in relation to the material."
Amendment 40 agreed.
Moved by Baroness Stowell of Beeston
41: Clause 6, page 5, line 10, at end insert-
"( ) Rules of court must make provision-
(a) requiring the Secretary of State, before making an application under subsection (1), to give notice of the Secretary of State's intention to make an application to all of the parties to the relevant civil proceedings,
(b) requiring the Secretary of State to inform all of the parties to the relevant civil proceedings of the outcome of the application."
Baroness Stowell of Beeston (Conservative)
My Lords, I shall speak to Amendment 41 now but I hope it will assist the House if I do not speak to the other amendments in this group until after they have been debated. I shall therefore respond at the end of the debate to both this amendment and the other amendments in the group which have been tabled by other noble Lords.
When I was responding to a debate on a topic which falls within this group, I boldly announced that I am not a lawyer. In the course of my remarks I said something which provoked a strong response from some of the lawyers who were involved in the debate that day and it is therefore a pleasure to move a government amendment that addresses the concerns raised in debate at that time. The point at issue then was the provision of notice by the Secretary of State to the other parties in a case in which a CMP is to be applied for. The Government committed to considering the issue. We gave it more detailed consideration over the Summer Recess and wrote to the noble and learned Lord, Lord Falconer, together with a number of other noble Lords who raised questions at the time of the debate.
In that letter, the Government explained that on further consideration it was clear to us that there were difficulties of both principle and practice with having CMPs without notice. We made it clear that closed judgments would exist without anyone other than the judge and the Secretary of State being aware of their existence if we were not to give notice, and that special advocates would also be unable to take instructions from the individuals whose interests they represent or to communicate with them at all. It was our view that this problem could be sorted out in the detailed rules of court for CMPs. However, the Government have considered this further and believe that it should be safeguarded in the Bill. The amendment provides for two procedures: the Secretary of State must give notice of his or her intention to apply for a CMP to the other parties in the case, and he or she must also inform the other parties of the outcome of the application.
I hope noble Lords will agree that this enhances the safeguards available under the Bill to ensure that the maximum amount of information that can be provided to the open representatives in the case is provided. I hope noble Lords will also agree that this amendment materially advances the continued efforts of the Government to ensure as much openness and transparency as possible, and to ensure that nothing is kept secret that does not need to be for genuine national security reasons. I beg to move.
Lord Pannick (Crossbench)
My Lords, I shall speak to Amendment 56 in this group, which has been proposed by the Joint Committee. It would ensure that rules of court make provision for the media to be notified of any application for a closed material procedure so that they can make representations on the issue to the judge. The amendment would also ensure that a party to a closed judgment may apply for it to be made open at a later stage. It is not sufficient for the Secretary of State to give notice of an application for a CMP to the parties to the case. The reason for that is that a CMP will severely impede the ability of the press to report legal proceedings. It may be that it is only the media who are concerned about a proposal to introduce a CMP in a particular case; the other parties may not be focusing on the matter or may not object.
It is also essential for rules of court to provide a mechanism by which judgments that are closed can be reopened and published after the passage of time if there is no longer any reason for secrecy. These provisions were recommended by the Joint Committee, and perhaps I may quote what was said yesterday in a lecture by the president of the Supreme Court, the noble and learned Lord, Lord Neuberger:
"Without judgement there would be no justice. And without Judgments there would be no justice, because judicial decisions, at least in civil and family law, without reasons are certainly not justice: indeed, they are scarcely decisions at all. It is therefore an absolute necessity that Judgments are readily accessible".
I accept entirely that if there is a CMP, of course that part of the judgment will be closed, but it is essential that rules of court allow for the possibility of a later application to open up that which no longer needs to be secret.
Baroness Kennedy of The Shaws (Labour)
My Lords, I support the comments of the noble Lord, Lord Pannick. I serve on the Joint Committee on Human Rights and we were concerned that confidence in the judiciary is absolutely vital in our society. The press coverage of matters and their entitlement to come to a court and to make applications is an important element of democracy and open justice. We would encourage the Government to accept this amendment.
Lord Phillips of Sudbury (Liberal Democrat)
My Lords, Amendment 56A in this group is tabled in my name. I am afraid that it is a manuscript amendment and I hope that noble Lords have got it, but for those who were not given a copy when they came in, it is an addition to Clause 10 which is about the general provisions under Section 6 proceedings. It requires that the:
"Rules of court under subsection (2) shall only diverge from rules of court pertaining to proceedings outside the scope of this Act to the extent necessary to prevent disclosures of information damaging to the interests of national security".
The whole point of the amendment is to put some constraint on the otherwise unacceptable breadth of the provisions in Clause 10(2) which allow rules of court to be made. Perhaps I may briefly give noble Lords a gist of the breadth of this provision-making power. The first set out in paragraph (a) is,
"about the mode of proof and about evidence in the proceedings".
There are no qualifications, there is no limitation, guidance or definition, so they can just make rules about the mode of proof and evidence in the proceedings; paragraph (b) concerns whether the proceedings shall have a hearing attached to them at all; paragraph (c) concerns whether there shall be legal representations in the proceedings; and paragraph (d) concerns whether the person against whom the proceedings are launched shall have full particulars of the reasons for the decision reached in those proceedings, and so on.
I do not understand why the Government have produced a rule-making power relating to a highly sensitive and important clause with no constraint, limitation or definition. All my amendment seeks to do is to put a lasso around what I believe are unduly wide powers. It would provide that, in effect, the only use of these powers shall be,
"to prevent disclosures of information damaging to the interests of national security",
which is what this part of the Bill is principally all about. I have put the amendment forward in the hope that the Government will accept it or, if the wording is not to their liking, that they will undertake to bring new wording back at Third Reading.
Lord Beecham (Labour)
My Lords, for the avoidance of doubt, I should say that the Opposition support Amendment 56. My noble friend Lady Kennedy beat me to the Public Bill Office in putting her name to it. As she and the noble Lord, Lord Pannick, have said, it is important that the press and the media generally should have notification of applications of this kind. It complements a later amendment that will require the regular reporting of the number of applications that have been made, so to some degree the two things flow together.
The manuscript amendment tabled by the noble Lord, Lord Phillips, has arrived very late in the day and, given the other excitements we have been enjoying, I confess that I personally have not given it sufficient attention. I will be interested to hear the views of the Minister if she is replying to that particular amendment in due course. I would also be interested to learn the views of the noble Lord, Lord Pannick, on it, if he is able to give them. On the face of it, the amendment seems fairly persuasive, but it has been brought forward so late that I am finding it difficult to come to a decision, although other noble Lords may find it easier to do so. But certainly so far as Amendment 56 is concerned, and indeed the original amendment in this group, the Opposition are fully supportive.
Baroness Stowell of Beeston (Conservative)
My Lords, I am grateful to all noble Lords for their remarks. I will speak generally and respond to the noble Lord, Lord Phillips. The noble Lord, Lord Hodgson, has not said anything about his amendments in this group but what I will say applies to those as well.
The Bill does not seek to change the rules in relation to civil proceedings, save where this is necessary to have a closed material procedure; we are not otherwise changing the ordinary rules in civil procedures relating to disclosure of evidence. The noble Lord, Lord Phillips, in speaking to his manuscript amendment, talked about adding a lasso. We believe that the Bill already provides a lasso. We agree with the thrust of the points he makes but do not think it is necessary to accept his amendment, because the Bill provides for the essence of this point in Clause 9, where it says that, subject to securing closed material procedures, the ordinary rules of disclosure must otherwise apply. The way that his amendment is worded may also be a potential source of confusion in that it is unclear what is meant by the word "necessary" in the amendment in a particular case. More specifically, we are already providing for the concerns that he has raised.
Lord Phillips of Sudbury (Liberal Democrat)
I apologise again to my noble friend and to the House for the lateness of this amendment. I think her argument was that Clause 9 makes my amendment redundant, but am I right in thinking that Clause 9 relates to rules of disclosure whereas Clause 10(2) relates to rules across a much wider plain, governing standards of proof, evidence, whether or not there is a hearing, legal representation and so on?
Baroness Stowell of Beeston (Conservative)
I will address that point by saying that we are not seeking to change any of the ordinary rules for civil proceedings in this Bill. The normal rules for civil proceedings apply in the same way here except for where it is necessary to change them in order for us to meet the requirements of a closed material proceeding.
Lord Phillips of Sudbury (Liberal Democrat)
The noble Baroness says that the normal rules of civil procedure apply but Clause 10(2) gives extraordinarily wide powers to make new and different rules. That is my point and that is my concern.
Baroness Stowell of Beeston (Conservative)
It is probably easier if I turn to the other points that have been made in this debate. In the course of doing so, maybe I will receive some assistance that will allow me to answer the noble Lord's question in greater detail. As if by magic, I have been handed a note. Clause 10(2) gives powers to make rules but these are in consequence of CMPs.
I move on to the question of media reporting and the points raised by the noble Lord, Lord Pannick, and the noble Baroness, Lady Kennedy. The amendment that I have moved, which hopefully the House will accept, means that the parties to CMPs will be notified when an application has been made. In essence, the point was that this is not sufficient in terms of notifying the media. It is obviously a matter for the parties to the claim to decide whether to inform the media. This amendment will ensure that the judge notifies the parties, such that this will be disclosed in the normal proceedings of disclosure that courts make. The noble Lord is looking at me quizzically. He will know more about this than I do, but when the judge notifies the parties that there has been an application, unless it is necessary for him not to do so in the interests of national security, that will be in the public record that exists in the court, which presumably the media are monitoring at all times. This is not about withholding information from the media.
Furthermore, if the media had the right to intervene in this process, it would be necessary for them to have access to all the material so that they could judge or come to a view as to whether it should be a matter for a closed hearing or not. That would be contrary to the whole point of a closed material procedure.
Lord Pannick (Crossbench)
I am not of course suggesting that the media should have access to the closed material, any more than the claimant does. The claimant is notified but does not see the secret material. The point is that the media should also simply be notified, so that they can object to a closed procedure.
Baroness Stowell of Beeston (Conservative)
They will be notified, if not directly, by the process of the court notifying both parties to the claim. If the parties wish to notify the media, they can. The media will also be aware through the court disclosing its business in the normal way. The media will also be aware if the claimant wishes to tell them-as I am sure many will-about accusations that they wish to bring against the Government and the reason for them bringing the case in the first place. It is quite unlikely that the media will not be made aware of the application that has been made for a closed material procedure.
I would also add the point I made in Committee, that the media are not an institution with formal responsibilities to represent the public interest. Once they are notified formally in this way, it seems sensible or logical to me that they would then feel that they need to know more about the case-one limb of the amendment covers this-in order for them to have some kind of useful contribution to make about whether this should be a closed hearing or not.
Baroness Kennedy of The Shaws (Labour)
In what way is this really significantly different from the many circumstances in which the press are excluded, or are advised not to print matters that are taking place in a court, such as the names of individuals, and a notice is posted to ensure that that is not done? We are really asking for a process of posting. The Minister is, of course, absolutely right that the rumour mill is likely to lead to people knowing and to the press finding out, but this is about making sure that there are formal processes rather than relying on the press being informed by lawyers, the parties or persons who would want the press to become interested. I would have thought that this is much better done through a formal process. I wonder why it is so different from other cases.
Baroness Stowell of Beeston (Conservative)
The amendment means that the judge will notify the claimant that the Secretary of State has made an application. Following normal practice, the judge's decision will be part of the public record and so the media will be informed of that in the normal way.
Obviously, the press will have access to all the open elements of the case in the same way as they have access now. The sort of scenario that the noble Baroness describes would be a normal open court hearing within which there are aspects that the judge has decided to put some rules around. This is a specific issue about an application for a CMP and is therefore slightly different but, in terms of the direct analogy with the open part of the hearing, it would be exactly the same.
Lord Lester of Herne Hill (Liberal Democrat)
My Lords, I apologise for the fact that I missed the very beginning of this and it may be that in doing so I am about to say something stupid. However, am I right in taking from what the Minister is saying that the Government oppose Amendment 56 even though the Joint Committee attached enormous importance to this as a way of securing open justice without in any way damaging national security? In other words, in accepting Amendment 41, are the Government saying that Amendment 41 is instead of Amendment 56?
Baroness Stowell of Beeston (Conservative)
The point that I am trying to make, and I have made it several times, is that in the amendment that the Government are moving we are ensuring that it is now going to be part of the formal process of the courts to alert those who may be interested of the judge's decision. As far as the media are concerned, we do not feel that it is necessary for there to be a specific notification to the media of the fact that the CMP has been applied for and consequently has been agreed or not agreed. There is nothing in that that is about withholding information.
The media report on other cases that use CMPs, in particular they are able to report on a finding on the issues. Indeed on other CMPs there does not seem to be a problem at all with the way that this works. In terms of the media being able to intervene in individual cases, which is another aspect to this amendment, civil damages cases that would be heard under this legislation are private law claims and it could be inappropriate for third party interventions to be made in such claims. The claimant may not want the media to intervene in the proceedings. I think that the most important point is that the outcome of all CMP cases will be reportable, increasing the opportunities for the media to report on these kinds of cases, as at present the Government are obviously having to settle rather than a claim being seen through to its conclusion.
I will turn to the other point that the noble Lord, Lord Pannick, raised about closed judgments, which is also covered in the JCHR amendments. It may be helpful for noble Lords if I briefly give some background on how closed judgments already work. There is a judicial safeguard on the use of closed judgments. In a case involving sensitive material, the judge must be satisfied that any material in the closed, rather than open, judgment would be damaging to national security and so could not be released. Special advocates can also make submissions to the judge about moving material from the closed judgment to the open judgment. If the court is persuaded that there would be no harm to national security, the material can then be moved to the open judgment.
The Government believe that it is important that those that are entitled to access closed judgments are able to do so. For this reason, the Government have created a searchable database containing summaries of closed judgments that will allow special advocates and HMG counsel to identify potentially relevant closed judgments. It is worth making the point that this new initiative has been put in place following the various stages of the passage of this Bill, both in terms of hearings and of discussion at JCHR. I am grateful to all noble Lords who have led to that new database being available.
The amendments also propose a review mechanism. Although I welcome this suggestion, the Government do not think that this particular proposal would work in practice. As drafted, it could mean that a person could attempt to subvert the disclosure process built into closed material proceedings by applying for the information immediately after the court had decided what information should be contained within the open and closed judgment, and then at regular intervals thereafter. A person could also abuse the process and put in an application each day. This would place a serious resource burden on the courts and agencies.
Having listened to the debate today and the findings from the JCHR report, the Government recognise that the review of closed judgments is an important issue and needs further thinking. The Government therefore request that Ministers have more time to look into the issues and report our findings to Parliament during the passage of this Bill. Obviously this may be something that would be looked at in the other place. To conclude, I ask noble Lords to accept the government amendment not to have CMPs without notice. I hope from the course of this debate that the noble Lords who have amendments in this group feel able to withdraw them at this time.
Lord Beecham (Labour)
Before the noble Baroness sits down, in relation to the amendment of the noble Lord, Lord Phillips, would it be a way forward for her to take that back so that it might be raised, if necessary, at Third Reading? It is very late and the Minister is in difficulty-I think that we are all in difficulty-in terms of understanding the implications of the amendment, so this may be a way through the dilemma.
Lord Phillips of Sudbury (Liberal Democrat)
I am grateful for that suggestion. I do not want to keep apologising, but I do think, if the Minister agrees, that that is the way to deal with this.
Baroness Stowell of Beeston (Conservative)
I cannot commit to anything at this stage, but what I can do is to consider the amendment outside the Chamber and certainly to have a further discussion with the noble Lord.
Amendment 41 agreed.
Moved by Lord Wallace of Tankerness
42: Clause 6, page 5, line 17, leave out "or"
Lord Wallace of Tankerness (Liberal Democrat)
My Lords, I will also speak to Amendment 43, the effect of which would be to add the Supreme Court to the High Court, the Court of Appeal and the Court of Session as the courts that would be covered by closed material proceedings in the context of this Bill.
I think that it is important that there is consistency within the hierarchy of courts covered by these provisions. As I have indicated, this amendment would add civil proceedings before the Supreme Court of the United Kingdom to the list of courts in the Bill in which closed material procedures under Clauses 6 to 11 may be used. At present, the only courts for which this is available are the High Court, the Court of Appeal and the Court of Session.
I understand that there might be some concerns about adding to the list. The reason for adding the reference to the Supreme Court is to seek to put beyond doubt that the Supreme Court is empowered to apply closed material procedures. It was felt that the Supreme Court was likely to be considering points of law only and the Supreme Court already has some of its own bespoke procedures where it can exceptionally exclude parties from proceedings if in the public interest. However, after the Bill was introduced, the Government became concerned that omitting the Supreme Court might be a gap in the legislation. The lower courts would be able to rely on the procedures set out in the Bill but the Supreme Court-the supervisory court for those courts-would have either no exceptional procedure or a different one.
I do not think that the Government are naive. I think that we are realistic enough to realise that once we enact this Bill, the early uses of the procedure in the High Court almost certainly will be appealed in some form or another, and it seems quite likely that at least some of these appeals will make their way to the Supreme Court. This amendment will put beyond doubt the Government's intention that the Supreme Court should continue to have the ability to consider sensitive material and ensure that we are not left in the very unusual situation of the highest court in the land not being able to adopt the same procedures used in the lower courts.
For completeness, I should add that noble Lords may have noted that the first set of rules of court under the Bill for the High Court and the Court of Appeal in England and Wales and Northern Ireland are to be made by the Lord Chancellor. This is simply a matter of ensuring that the implementation of the CMP provisions of the Bill can occur swiftly. We do not think that the same rationale applies for the Supreme Court. The first set of rules are to be made by the president of the Supreme Court, as now.
I very much hope that the reasons for adding the Supreme Court will satisfy your Lordships' House. We are not talking about the horizontal scope of the Bill but the vertical reach, namely the courts in the hierarchy that may hear such claims.
Concern was also expressed in Committee that in the future the reference to "relevant civil proceedings" to which there could be an extension by order could include inquests and fatal accident inquiries. That was not the Government's policy, as we made clear in our response to the Green Paper consultation. We had brought forward a Bill we believed would not allow any Government to add inquests to the definition of relevant civil proceedings now or in the future, but we were grateful to the Delegated Powers Committee's consideration and we took on board its comments.
Likewise, the report by the Joint Committee on Human Rights also made comments regarding this order. I understand that the remaining concerns are to ensure that closed material proceedings should be used only when absolutely necessary and in a narrow and targeted context. It is for this reason that the Government have tabled an amendment to remove the order-making power completely; in other words, removing Clause 11(2) to 11(4).
I can assure your Lordships that this decision has not been taken lightly. Parliament has legislated for CMPs no fewer than 14 times over the past 10 years. It is conceivable that national security material may become relevant in contexts other than the narrow ones listed in the Bill. The impact of cases not being heard is felt by not only the Government but claimants, whose cases can be severely delayed. Nevertheless, the Government understand the importance of the issue. This amendment will set to rest any fears raised by the Joint Committee that the order-making power could have been misused or that this clause would open the door to commonplace use of CMPs. It will also put beyond any doubt that inquests are beyond the scope of the Bill.
My noble friend the Duke of Montrose has tabled an amendment to require the consent of the Scottish Government and the Northern Ireland Executive for the Secretary of State to make an order to amend the definition of civil proceedings. The Government are committed to properly respecting the devolution settlements, but if the amendments to delete the order-making power altogether are carried, my noble friend's amendment would not be necessary. I hope that this also satisfies the amendment tabled by the noble Lord, Lord Pannick, and others that takes forward the recommendation of the Joint Committee on Human Rights. I beg to move.
Lord Pannick (Crossbench)
I have a concern about Amendment 43, which includes the Supreme Court in the list of courts that will have power to make a CMP. Given the role of the Supreme Court as the final court of appeal in this jurisdiction, it is highly undesirable that it should decide points of law of public importance in judgments that the public and lawyers generally cannot see.
I do not intend to divide the House on Amendment 43. Given the amendments supported by the House earlier this evening, I would understand that the Supreme Court would have ample discretion to decide whether or not it is appropriate for it as the final court of appeal to order a CMP, and no doubt it would wish to take into account the undesirability, if so perceived, of the Supreme Court issuing judgments that, at least in part, the public and lawyers generally would not be able to see. However, I raise that concern.
The Duke of Montrose (Conservative)
My Lords, I thank my noble and learned friend for the way in which he presented his amendments. As he notified the House earlier, if his Amendment 59 is approved, my Amendment 60 will become superfluous. I raise the point that without Amendment 59, there would be a very real danger that anything that the Secretary of State had decided to amend by order in the Scottish courts would be seen as meddling in the affairs of the Scottish legal system. At present, there is nothing more likely to inflame the amour propre of the Scots than actions such as this.
The possibility of this problem was drawn to my attention by the Law Society of Scotland. If Amendment 59 is adopted, we will have a much clearer and more workable piece of legislation than one that is likely to cause controversy. If by any chance it is not carried, I will still wish to bring my amendment forward.
The Bill appears to be walking a fine line on what might be termed issues that might require a legislative consent Motion in the Scottish Parliament and those that would not. Even now, Clause 6(7)(c) of the Bill gives powers to the Court of Session. I understand that early in Committee it was briefly drawn to the attention of the Justice Committee in Edinburgh. Can my noble and learned friend tell the House whether this question of a legislative consent Motion has finally and satisfactorily been resolved?
Lord Wallace of Tankerness (Liberal Democrat)
My Lords, as I indicated, the intention is that the Supreme Court should not have available to it powers that are available in the lower courts, but the noble Lord, Lord Pannick, makes an important point with regard to judgments.
With regard to my noble friend's concerns, it probably would have been the case that had we had a power that involved Scottish Ministers, a legislative consent Motion would have been required. Although the Bill refers to the Court of Session, it has become abundantly clear in our deliberations that the substance of these matters relates to national security, and national security is very clearly reserved to the United Kingdom Parliament and therefore a legislative consent Motion would not arise.
Amendment 42 agreed.
Moved by Lord Wallace of Tankerness
43: Clause 6, page 5, line 18, at end insert ", or
( ) the Supreme Court"
Amendment 43 agreed.
Amendment 44 not moved.
Baroness Stowell of Beeston (Conservative)
My Lords, I beg to move that further consideration on Report be now adjourned. In doing so, it is worth noting that the dinner break business this evening is not time-limited. Without prejudging the debate, it is possible that we may be able to return to the Bill in less than an hour. Following discussions in the usual channels, I suggest that Report will not resume for 45 minutes, so not before 8.31 pm.
Consideration on Report adjourned.