I beg to move amendment 74, in clause 8, page 6, line 28, leave out ‘may’ and insert ‘must’.

With this it will be convenient to discuss the following:

Amendment 70, in clause 8, page 6, line 40, at end insert—

‘(4A) Rules of court relating to any relevant civil proceedings in relation to which there is a declaration under section 6 proceedings must secure—

(a) that, where a party is excluded from such an application, his interests are represented by a special advocate appointed in advance of the court hearing such application and, if the application is granted, for the duration of the section 6 proceedings and related proceedings,

(b) that the special advocate is afforded the opportunity to take instructions from the party whose interests he is appointed to represent.’.

New clause 6—Access to special advocates: public interest immunity—

‘In any proceedings where a relevant person or the Secretary of State successfully claims public interest immunity over any material on the grounds that its disclosure would damage the interests of national security—

(a) any other party shall be entitled upon application to the court to have a special advocate appointed to inspect such material; and

(b) the special advocate shall be entitled to advise that party whether it would be in that party’s interests to apply for a declaration under this section.’.

The amendments deal with the appointment of the special advocate. New clause 6 is slightly different, and I was initially surprised to see it grouped here rather than under clause 6, but I can see why it was done.

The amendments are designed to provide the machinery whereby a party is given a statutory guarantee of a special advocate in CMP, who will be appointed in a timely fashion. We believe that is a minimum safeguard and that it should not be controversial.

By replacing “may” with “must”, amendment 74 would require an appropriate law officer to appoint a special advocate

“to represent the interests of a party in any section 6 proceedings from which the party (and any legal representative of the party) is excluded.”

As Lord Hodgson, a Conservative peer who nevertheless tabled several quite radical amendments, observed when speaking to the amendment in Committee in the other place,

“the reasons for that are self-evident and run parallel with the supporting arguments I have given for my natural justice amendment.”—[Official Report, House of Lords, 17 July 2012; Vol. 739, c. 145.]

Amendment 70 would secure that a special advocate must be appointed to represent the interests of a party before the hearing of an application, and that they should be afforded the opportunity to take instructions from that party. New clause 6 speaks for itself.

The amendments would provide the machinery to ensure that a citizen’s right to apply for a CMP is effective. If the Government successfully apply for PII over sensitive material, the judge cannot look at that material for the purposes of the trial, so it is entirely suppressed from consideration. As the legislation stands, the Government can cherry-pick. They can choose to apply for a CMP over material they consider helpful to their case and that they want the judge to see, but they can also apply for a PII to suppress from the trial judge material that they consider damaging to their case. That is totally unfair, and it is contrary to the Secretary of State’s repeated statements that the purpose of CMP is to ensure that the judge sees all the relevant material.

The amendments are designed to right that wrong. The special advocate would be entitled to inspect the suppressed PII material and decide whether it would help the excluded party’s case if it was put before the judge. If the special advocate thinks that it would help, he can advise the excluded party to apply for a CMP and he can pursue that application before the judge in closed proceedings. The Minister kept saying that a citizen would not have the evidence necessary to apply for a CMP over material held by the Government, which was why they were not given the right to make  such an application under the Government amendments to clause 6. The amendments and the new clause would remove that restriction on the citizen by allowing the special advocate to inspect the suppressed material and make an informed application on the citizen’s behalf.

I anticipate that the Government may resist the amendments, but in doing so, as I have just indicated, they would be effectively resisting their own line of argument. When the Minister talked about equality of arms earlier, in the debate on amendments tabled by the hon. Member for Cambridge, he was clear that the distinction between the rights of the excluded party and of the Secretary of State were there for a purpose. The effect of new clause 6 would be to enable that to happen. Under the provisions in new clause 6, the special advocate would have a more proactive role in considering and advising the excluded party so that, again, the procedural unfairness and inequality of arms would be redressed.

I do not know whether the Minister is persuaded by that argument. I hope that at the very least, he is persuaded by the argument about amendment 74, on the replacement of “may” with “must”. I anticipate that again, his answer might be, “That is a matter for the court’s discretion, and the court will ensure that the special advocate is there when they are needed.” I am not sure that is good enough. The role of the special advocate in relation to the excluded party and their duty to the court is such that he or she must be there at all times and in a position to make those representations. I think the amendments would find favour with special advocates; they found favour in the debate among their lordships, although I do not believe that they were pushed to a vote. I will listen to what the Minister says, and decide what to do thereafter.

I hope I can set out why I think that we already have the necessary provisions in the Bill to allow special advocates to operate as effectively as possible while safeguarding national security, and thus why the hon. Gentleman’s amendments are not needed.

Amendment 74 and the first part of amendment 70 would provide that a special advocate must be appointed in any section 6 proceedings. However, the Bill already makes adequate provision. It provides that the appropriate law officer may appoint a special advocate to represent the interests of the excluded party. It is difficult for me to conceive of circumstances in which the appropriate law officer would not appoint a special advocate where statute makes provision for it.

The current position means that the special advocate does not have to be appointed when an individual actively does not wish to be represented and refuses to engage with them. It also gives Law Officers the ability to consider the number of special advocates required for a particular case or set of cases. The format in the Bill mirrors the wording in existing legislation that provides for CMPs, such as the Terrorism Prevention and Investigation Measures Act 2011 and the Special Immigration Appeals Commission Act 1997, which to my knowledge have not caused any difficulty. I am interested to know whether the hon. Gentleman can point to any examples in support of his arguments that those provisions have proven problematic in practice and that concern has arisen on those grounds.

I do not believe that we would wish to create inconsistencies in the provisions or to remove the useful role that the Law Officers play in ensuring that appropriate special advocate resources are allocated to each case. To ensure that related proceedings are covered, Government amendment 13 will amend clause 10(4) to make it clear that proceedings on or relating to an application for a declaration or decision of the court for a declaration are to be treated as section 6 proceedings for the purposes of clause 8, and so will be covered.

The second part of amendment 70 provides that rules of the court must ensure

“that the special advocate is afforded the opportunity to take instructions from the party whose interests he is appointed to represent”.

Where special advocates are appointed, provision is already made for them to take instructions from the party they represent, subject to necessary restrictions on communication on national security concerns. Clause 10 ensures that a person making rules of court relating to section 6 proceedings must have regard to the need to ensure that disclosures are not made when they would damage national security. The rules on closed material procedures in existing contexts, on which the rules for CMPs in the Bill would be based, make it clear exactly with whom the special advocate may and may not communicate regarding any matter connected with the proceedings.

The special advocate can communicate freely with the excluded party prior to the receipt of the closed material. The restrictions on communications take effect only when the special advocate takes receipt of the closed material, and even then there are no restrictions on the written instructions that the special advocate can receive from the excluded party. Communications from the special advocate to the representative individual will require permission from the court on notice to the Secretary of State.

Special advocates’ knowledge of communication in relation to the substance of the closed material is likely to create difficulties and may often be impossible. The purpose of the restrictions on communication is to ensure that national security is protected by avoiding inadvertent disclosure. In instances where agents or sources are involved, this can be about protecting the right to life.

Furthermore, in the civil damages cases covered by the Bill, the individual is making allegations against the Government, and so is aware of the detail of the allegations he is making. I underline for the hon. Gentleman that we are certainly looking at ways in which instructions can be assisted to aid communications in a practical sense, but I think that the special advocates themselves acknowledge that it is difficult for them to make decisions about the sensitivity of a national security issue when they may not necessarily be fully appraised of all of the relevant background.

New clause 6 seeks to allow a party to have a special advocate to inspect the material excluded by any successful PII application on national security grounds and advise that party whether it would be in their interests to apply for a CMP declaration. It seems to be aimed at dealing with cases where there is material excluded that would support the other party’s case or undermine the Secretary  of State’s case. I will not re-rehearse or go back over the debates that we have already had, but we assert that that is unnecessary, because the court will have the discretion to decide whether a CMP is in the interests of justice in the proceedings and can make a declaration of its own motion, even if a party to the proceedings did not apply for one.

Our judgment is that the relevant provisions are unnecessary. As I have explained, we already have the necessary provisions in the Bill to allow special advocates to operate as effectively as possible while safeguarding national security in line with the provisions made for existing CMPs in statute. I therefore ask the hon. Gentleman to withdraw his amendment.

I have listened to what the Minister has said. He is a little complacent in relation to the appointment of the special advocate. What he proposes is a substantial potential extension of the CMP. He says, and I hope he is right, that the effect of the Bill, even as it is currently drafted, will apply in only a handful of cases a year. Certainly, the response to the Joint Committee report that was published last week indicates that there are about seven new civil cases a year. If the Minister is right about that, so be it.

The potential for extending CMPs into a substantial area of the civil law field could mean that over a period of time—none of us can foresee the future—there is substantial additional reliance on that. It would be sensible to define more closely the way in which the special advocates are appointed and work with both the court and the excluded party. That is what the amendments seek to do. They are probing amendments and I do not intend to divide the Committee. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 ordered to stand part of the Bill.

Clause 9 ordered to stand part of the Bill.