I beg to move amendment 75, in clause 10, page 7, line 16, leave out subsection (2) (b).

This is a simple and straightforward amendment, which would delete a paragraph stating that clause 6 may make provision

“enabling or requiring the proceedings to be determined without a hearing”.

Lord Hodgson of Astley Abbotts identified the concern behind the amendment in Committee in the House of Lords.

In summary, carried to extreme, clause 10 would deprive the special advocate and/or the claimant of any opportunity to engage to any extent in proceedings. The inclusion of the word “requiring” as an alternative to “enabling” is curious, and it is not clear whether the court is to choose between the two. If the rules of the court are to make provision requiring proceedings to be determined without a hearing, it is by no means clear that all such hearings would not be determined in secret.

There is a strong interest in transparency and open justice. Lord Hodgson challenged the Government to explain why the interests of transparency and open justice do not command the idea that some hearings, however formulaic or brief, would be appropriate. Of course there may be circumstances, even within CMPs, where brief formal administrative hearings could take place, but what informs most of the amendments we have tabled on the later clauses of part 2 is that, where there is any doubt in a CMP, the benefit should go to the fullest disclosure of debate. Certainly matters should be done not on paper but with opportunity for representations to be made. That is the effect of the amendment.

I hope we will be able to dispose of this amendment quickly, and I hope I will be able to provide some reassurance that there is no sinister intent behind the provision.

The intention of the Bill is that civil proceedings in which closed material proceedings are required will continue as regular civil proceedings, save only for the sensitive material elements that will be considered in closed session. The intention is emphatically not that the whole proceedings pass through a gateway to being closed proceedings in their entirety. However, it is important that the Bill does not interfere in any way with the court’s ability to exercise its normal case management powers, where decisions can be made on paper without a hearing, particularly where the parties agree to such a course of action.

The provision is well precedented in other CMP contexts, most recently in paragraph 2(2)(b) of schedule 4 to the Terrorism Prevention and Investigation Measures Act 2011. The rules made under that paragraph provide for certain matters to require a hearing, with exceptions where a hearing is not required, such as agreement of the parties or where the matter has already been determined. Requiring a hearing in such circumstances would waste court time and resources. Again, I emphasise that the Bill’s intention is for proceedings to continue as regular civil proceedings as far as possible. The purpose of CMPs is to ensure that all relevant material can be fully considered by the courts when coming to a judgment without damaging national security interests. It follows that the disclosure of sensitive material to the court and special advocate will be full and open precisely because it is not disclosed more widely.

I hope that gives some reassurance on the nature of what the Bill sets out to achieve in procedural terms and explains why the Government consider the amendment to be unnecessary, because it seems to reduce judicial discretion.

On that basis, I hope the hon. Gentleman will see fit to withdraw his amendment.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment 76, in clause 10, page 7, line 27, at end insert—

‘(2A) Rules of court relating to section 6 proceedings must make provision—

(a) requiring the court concerned to notify relevant representatives of the media of proceedings in which an application for a declaration under section 6 has been made,

(b) providing for any person notified under paragraph (a) to intervene in the proceedings,

(c) providing for a stay or sist of relevant civil proceedings to enable anyone notified under paragraph (a) to consider whether to intervene in the proceedings,

(d) enabling any party to the proceedings or any intervener to apply to the court concerned for a determination of whether there continues to be justification for not giving full particulars of the reasons for decisions in the proceedings, and

(e) requiring the court concerned, on an application under paragraph (d), to publish such of the reasons for decision as the court determines can no longer be justifiably withheld.’.

With this it will be convenient to discuss the following:

New clause 7—Open statements for closed judgements—

‘Closed judgements must be accompanied by an open statement from the court, which shall include—

(a) the reasons for the closed material procedure;

(b) any factors which would be particularly relevant in determining whether all or part of the closed judgement could be made open at a later date;

(c) the duration of open hearings and closed hearings;

(d) the number of witnesses heard in closed proceedings, and the nature of those witnesses;

(e) the length of a closed judgement;

(f) whether national security was an issue in the proceedings; and

(g) the date at which the closed status of the judgement should be reviewed, which must be no later than five years from the date of the judgement.’.

New clause 8—Recording of data relating to closed proceedings—

‘Rules of court relating to closed material proceedings under this Act, and applications for them, must make provision—

(a) ensuring that key data is centrally recorded for all proceedings, including:

(i) the duration of open and closed proceedings,

(ii) the number of witnesses heard in closed proceedings and the nature of those witnesses,

(iii) the length of a closed judgement,

(iv) whether the claimant, defendant and/or intervener applied for closed material proceedings, and

(v) whether the claimant, defendant and/or intervener contested the application for closed proceedings.

(b) ensuring that centrally recorded data is available to the independent person appointed by the Secretary of State to review the operation of the provisions of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2006, and

(c) ensuring that centrally recorded data is subject to the provisions of the Freedom of Information Act 2000.’.

These are interesting amendments, so I will spend a little more time on them. They essentially address the ways in which, even where the CMP process is in train, one can ensure open justice. The media has a role in that. Such matters were discussed, in part at least, in the other place, but we could spend a little time on them.

I will read amendment 76, because each paragraph of it is quite pertinent:

“Rules of court relating to section 6 proceedings must make provision…requiring the court concerned to notify relevant representatives of the media of proceedings in which an application for a declaration under section 6 has been made”—

I suppose I do not entirely agree with the JCHR on that amendment. The question is about the distinction between media and, increasingly, we have citizen journalists—lots of people who are generally interested. I fail to see how we would interpret such a provision. Who counts as someone who might be interested? There are some incredibly serious bloggers who research some cases in great detail—when would they count and when not? I thought about tabling the amendment, but I decided that I did not agree with it.

I take what the hon. Gentleman said, that he does not agree with the amendment because the métier in which he moves—the twittering, blogging sphere—should be somehow excluded. I can reassure him, however, because I happen to know that the Ministry of Justice has an effective press office, otherwise we would not have the most trivial matters puffed up into front-page stories every week, such as the announcements on prison regimes on the front of The Mail on Sunday. He is splitting hairs. If his bloggers, twitterers and the like are as assiduous as he says that they are, I am sure that they will pick up matters from the wires, from the Press Association, from Ministry websites and so on and so forth. Even for me, to talk about how matters will be promulgated is getting into too much detail—we are talking about the principle, which is how to ensure the maximum sunlight, transparency and scrutiny on what is by definition a secret process.

Before the hon. Gentleman continues, I think he was intending to read out the amendment. The Committee will probably agree that that is not necessary, because we have it on the amendment paper before us. Perhaps we might skip that bit.

I am conscious of the time, but I think I am keeping to my pledge, thus far.

I hope you do not think that I am being tough; I am being tough.

There is a surprisingly amicable mood between the Whips, which we hope extends to the rest of the Committee.

My submission is that media are an important ingredient, however they may be defined, but the provision does not concern the media alone. It provides for any person notified to intervene in the proceedings; it provides for a stay, if necessary, to enable that to happen; and it requires a court to publish reasons for decisions.

How will it work in practice? The court would have to inform the media that an application for a CMP is under way; the rules of court would enable the media to intervene; and a stay would allow time to enable the intervening procedure to work. The second part of the amendment enables the media to apply to the court to  determine whether there still exists a justification for not giving full particulars of the reasons for decisions in the proceedings. It also requires the court to provide any reasons for its decision that need not be withheld.

As discussed previously, there is a strong interest in open justice, and the Bill denies that in many fundamental ways. In amendment 76, we seek to provide for access to the proceedings for the media, on the basis that such access is an essential means to ensure scrutiny of the proceedings. Access to the proceedings by the media should also serve to reassure the public as to the fair conduct of the proceedings. Decisions of the court that need not be withheld, should not be.

I refer the Committee—again, without reading, obviously—to the evidence provided by Dr Lawrence McNamara. Not only has he sent to us independently, but his evidence has been submitted formally to the Committee and is therefore a matter of public record. Openness and transparency are his speciality and, indeed, I cannot but claim that some of the clauses in this part of the Bill are cribbed from him. They are none the worse for that—indeed, they are substantially better. I say that because in a previous sitting, I was criticised for alluding to briefings. I have been careful not to do so, although we have had some excellent ones from some of the non-governmental organisations in this matter. They are probably not actually in agreement with any of the parties here, but nevertheless they are well-informed sources.

If one picks out the bits that one wants, one can appear to be much more erudite than one is. So I am happy not to rely on them, though I will mention Liberty, Reprieve, Justice and Amnesty, who have all been quite assiduous in briefing throughout the process. Even those who find that they rarely have much in common with those organisations certainly value the expertise that they bring. I wanted to put that on record.

New clause 7 is again about pushing—if one wants to put it that way—at the bounds of closed judgments, by saying that they must be accompanied by an open statement from the court. Legal academics, including Dr McNamara, have called for these amendments for the following reasons There are problems with the collection of data on the use of proceedings, because there does not appear to be any systematically compiled evidence of the scale of use of secret evidence and the areas where it is currently used. There does not appear to be any publicly acceptable formal or informal recording of the total overall use of CMPs, or the total use within different contexts identified by the Government. Finally, there is no indication that such evidence exists in the public eye.

Access to such information as exists has proven problematic. This is because where records have been requested, the Executive are largely unable or unwilling to provide them. Even Parliament has had trouble with such information. Parliamentary questions, both in this House and the other place, have revealed that a paucity of information is available on the current use of CMPs. This issue was noted in particular by the House of Lords Constitution Committee in its recent report.

In May last year, Dr McNamara wrote an analysis of questions in the Commons and said:

“As it stands, the Bill sets a very, very low threshold of openness for judgments under Clauses 6 and 7. Moreover, there is presently no central recording of how often CMPs are used in any courts, nor any centrally recorded information about them”.

This new clause would provide essential data on reasons for CMPs, the availability of judgments, the duration and nature of hearings, the length and nature of judgments and the review periods for judgments. I suspect that all members of the Committee might agree that such information could usefully have produced essential data that could have better informed this debate. My referring to the seven cases and abstracting that from a paragraph of a Government report is one of the few facts about the number of CMPs that are currently issued. It is essential for Parliament, the media and academia that coherent and reliable data be produced in order that proceedings may be scrutinised, and that the efficacy or deleterious effect of CMPs can be forensically examined.

New clause 8 is similar, but goes some way further in relation to the information that would be provided about closed judgments. I simply say that I have given the reasons previously in relation to the other new clause and amendments. It must be the case that data is retained so that debate and scrutiny on the use of CMPs can be adequately informed. I remind the Committee about the real problems that the Government have encountered in making their case that CMPs were necessary, which was a challenge laid down by the Supreme Court in Al Rawi and repeated by the JCHR. That test might better have been met—to the extent that it has been so far—if proper and accessible data were made available.

I hope the amendments are helpful. Both for justice to be seen to be done and for the Government’s own purposes, it is important that proper records are kept; that in so far as it is possible, where decisions are being taken and judgments are being made behind closed doors, as much as possible is said in the public realm about those decisions and judgments; and, to go back to amendment 76, that those who have both an interest and a duty in reporting such matters are properly engaged in the process.

It is not often that one hears praise for the Daily Mail from Opposition Members, but the way that that newspaper—along with most other national newspapers—has conducted itself since the Bill was first envisaged in the Green Paper has been excellent. It has challenged the Government all the way along the line in exactly the sort of way that we would expect from a free press. Amendment 76 aims to assist our free press in that task. I hope that I have persuaded the Minister to go along with that, along with our new clauses.

I take on board the hon. Gentleman’s comments on providing as much assurance and transparency as is practicable, but I would say to him—I will come on to this point in relation to the new clauses—that it is important to note that the rules of court are about the operation of the court, not about recording data about what happens in court. I will come back to his point about information more generally.

There was considerable debate in the other place about whether the media should be notified every time a CMP is applied for. Amendment 76 would place a provision to that end in the Bill. The Government have  considered the JCHR recommendations, but we are not sure how the amendment would work in practice, and I noted what the hon. Member for Cambridge said in his intervention.

The Government have amended the Bill to make it clear that all parties to the case must be informed that an application for a CMP has been made and of the outcome of that application. Those facts will generally be a matter of public record, as is the case for other court decisions, and the media will be able to report on them, as they can in any other case. The media may report on other cases that use CMPs and, in particular, they are able to report a finding on the issues. That is an improvement on the present position where cases may never be determined because they hinge on sensitive material that simply cannot be disclosed.

With regard to the media being able to intervene in individual cases, we think there are two problems. Civil damages cases that will be heard under this legislation are private law claims, and it may be inappropriate for third-party interventions to be made in such claims. The claimant may not want the media to intervene in the proceedings. In judicial review cases, the court will retain its current discretion to grant permission for a third party to file evidence or make submissions at the open hearing. The Government do not believe that the media would have sufficient standing to make representations about whether there should be a CMP in a case unless they are a direct party to the proceedings.

Although the media play a vital role in informing the public about current affairs, including important litigation, we do not think they should be given a position equivalent to that of the parties in the proceedings, and nor do we think that the views of the press should necessarily take precedence over those of the parties in the litigation itself. The outcomes of those cases will be reportable, subject to ensuring that information is not disclosed that would be damaging to national security. CMPs will provide the media with the opportunity to report on important issues, rather than reducing that opportunity.

New clauses 7 and 8 raise an important procedural point about how closed judgments would work in practice. Closed judgments contain material that, in the interests of national security, should not be disclosed, and that is the only basis on which the judgment can be classified as closed. As is the practice in existing statutory regimes providing for CMPs, such as TPIM and SIAC cases, judges will hand down an open judgment, in tandem with the closed judgment, and that open judgment will contain the parts of the judgment that can be disclosed without causing damage to national security. Judges will put as much of their reasoning in the open as possible, including statements of legal principle that are most likely to have cross-case relevance. It is the role of special advocates to make submissions about what material can properly go into an open judgment. If the court were persuaded that it would not harm national security, material will be included in an open judgment rather than a closed judgment.

It will not be possible to provide in the open statement the information as described under the new clauses. For example, revealing the length of a closed hearing, the number of witnesses and the nature of those witnesses could be damaging to national security. If a summary  said that the closed judgment was five pages long but that that in another case was 50 pages long, that would give two people who wished the UK harm an indication of how much information we hold on them.

The Government believe that it is important to ensure that those who are entitled to access closed judgments can do so efficiently and effectively. For that reason, we have created a searchable database containing summaries of closed judgments that will allow special advocates and HMG counsel to identify potentially relevant closed judgments.

New clause 8 would require that certain information was collected for review by the independent reviewer of terrorism legislation. We will debate reporting and review later in our considerations, including the hon. Gentleman’s proposal to give the reviewer a role in relation to CMPs under the Bill, but it does not seem appropriate that rules of court should deal with such matters. A CMP cannot be applied for without notice to the other party, and that will be a matter of public record, so a requirement in the court rules to collect information on whether a claimant, defendant or intervener applied for a CMP is not necessary.

In addition, the new clause would put in place a commitment that all centrally recorded data would be subject to the provisions of the Freedom of Information Act 2000, but that would not be necessary. Government-held information is already subject to that Act. However, it is highly likely that the information requested under the new clause would be subject to section 23 of the Act, which protects information supplied by or related to bodies that deal with security matters, as well as section 24, which deals with national security.

The new clause would also require the judge to declare whether national security was an issue in proceedings. Again, we believe that that is unnecessary. The Bill makes it clear that the only reason why a court could go into closed session would be if the disclosure of some material relevant to the case would damage national security. We shall come to issues relating to the independent reviewer at a later stage, at which time perhaps we will perhaps reflect further in that context.

I hope that my explanation has provided some reassurance as to the nature of what the court rules are meant to achieve in procedural terms and set out why the Government consider that the proposals are not, in fact, necessary. I therefore respectfully ask the hon. Gentleman to withdraw the amendment.

I shall not press these probing measures to a Division. The Minister has given a technical response about whether the new clauses address proper rules of court, but I hope that he will at least take on board the spirit of their intention. He is going into unknown territory. If CMPs are extended to civil proceedings, a body of cases will build up. They will not be reported in the ordinary way or dealt with in the same way, so there will be a deficiency in respect of precedent and the experience of handling such cases, and that will need to be dealt with. There will need to be proper recordkeeping, and insisting on openness, when possible, is a way around that. If such proposals are not to be included in the Bill, I hope at the very least that the Government will make provision for such a process.

I take on board the hon. Gentleman’s point and the need for openness where that is possible. Although we judge that such provisions are not required in the Bill, I will certainly reflect on his important point.

I am grateful to the Minister, and I renew my commitment not to press the measures to a Division.

In relation to the media, which are an important factor, I now understand what the hon. Member for Cambridge meant in his earlier intervention. I did not before, but between that intervention and now, I have read his Twitter feed from this morning, which includes this gem:

“Four votes - two Lib dem amendments to a gov't amendment, one labour to it, and the gov't amendment. We lost 9-10 each time.”

He said:

“Now calling a division on the principle of secret courts. Lib Dems voting no!”

He also said:

“Barracked heavily by labour MPs, who highlight that they are in favour of secret courts!”

Who knows what is going on in this very room while we sit here in silent contemplation? I can only assume the hon. Member for Cambridge lives in a fantasy world if that was what he thought happened here this morning, or perhaps those comments are for his fan club. I do not want such people to be engaged in this process, so I think I am happy that I left it at the media.

I am fascinated that the hon. Gentleman thinks that citizen journalists should be specifically excluded. I assume that he meant that as a joke, rather than as an official position. Of the things that he read out, which does he think is factually not right?

I might defer to the Government Whip, but it is the “we”, is it not? I take on board the point that my right hon. Friend the Member for Torfaen made earlier, because the hon. Gentleman is having a bit of an identity crisis in Committee. Who is he and who does he represent here? There ought to be a seat on the Committee for the Twitter party—he could take that up. He knows exactly what our position is, but I am not going to restate it, as we are getting close to adjourning.

The Government will be very interested in what my hon. Friend has read out, but does he agree that Liberal Democrat members of the Committee have to make up their minds about whether they are in opposition or in government with regard to amendment 76 and new clauses 7 and 8?

Order. The right hon. Gentleman has been here many years more than I have, but we must focus on amendment 76.

Had you not, with your authority, Mr Gray, said that, I would have said to my right hon. Friend that that is clearly not a matter for us, but it might become a matter on Report and Third Reading.

Order. I think that we will stick to amendment 76.

Indeed. I have concluded my comments, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Ordered, That further consideration be now adjourned. —(Mr Evennett.)

Adjourned till Thursday 7 February at half-past Eleven o’clock.