Amendment made:65, in clause 10, page 7, line 31, leave out subsections (4) and (5) and insert—

‘(4) The following proceedings are to be treated as section 6 proceedings for the purposes of sections 7 to 9, this section and section 11—

(a) proceedings on, or in relation to, an application for a declaration under section 6;

(b) proceedings on, or in relation to, a decision of the court to make a declaration under that section of its own motion.

(5) In proceedings treated as section 6 proceedings by virtue of subsection (4), a relevant person, for the purposes of sections 7 to 9, this section and section 11, is a person who would be required to disclose sensitive material in the course of the proceedings.’.—(James Brokenshire.)

I beg to move amendment 77, in clause 10, page 7, line 36, at end add—

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

(a) to ensure that the burden of proof in section 6 proceedings shall be on the relevant person and, where a party, the Secretary of State,

(b) to ensure that, upon the Secretary of State making an application under section 6(1), he shall be obliged to make full and frank unredacted disclosure to the court and special advocate of all material and information relevant to—

(i) the issues in the action,

(ii) the admissability of any evidence in section 6 proceedings,

(iii) the reliability of any such evidence,

(iv) the existence of witnesses or lines of inquiry leading to the discovery of relevant material, or

(v) the appropriate court procedure for determining the issues in the claim,

(c) to ensure that any material which the special advocate represents may have been procured by torture or by cruel, inhumane or degrading treatment is ruled inadmissible unless the contrary is proved to a high degree of conviction,

(d) to ensure that opinion evidence is ruled inadmissible unless provided by an independent expert,

(e) to ensure that the court shall not without the consent of the special advocate admit any statement constituting hearsay evidence without—

(i) the source being identified to the court’s satisfaction,

(ii) the court being satisfied that it is impracticable for the source to provide live evidence to the court by oral evidence or video-link and to be available for cross-examination, and

(iii) the court being satisfied that the words of the source are reported or recorded accurately and there is no risk of significant misquotation through multiple hearsay or otherwise,

(f) to ensure that the costs of all the parties to any proceedings in which a declaration under section 6 is made shall be paid by the Secretary of State in any event,

(g) to ensure that any judgement or decision of the court in any proceedings in which a section 6 declaration is sought shall be deemed to be an interlocutory judgement and any party excluded from such proceedings may at any time apply to the court to set aside such judgement or decision on the basis of relevant evidence not reasonably available to that party at the time of the section 6 proceedings.’.

With this it will be convenient to discuss new clause 10—Further provision about section 6 proceedings—

‘The judge at trial of the relevant civil proceedings may not take into account in determining the issues between the parties any material placed before him in section 6 proceedings which would not be relevant and admissible evidence in an open hearing.’.

It is a pleasure to see you back in the Chair, Mr Crausby, for what may be the last day of our deliberations, but who can tell? It is wrong to tempt fate. I have just noticed that this paper that I am holding is quite thick. The Government Whip should not be alarmed: it is not as much as it looks.

It is common ground that closed material procedures are unfair, in that they deny an excluded party the normal opportunities to challenge the reliability of evidence. The amendment and new clause, which address the rules of court under clause 10, propose ways to avoid unfairness that is avoidable within a CMP. I shall deal first with amendment 77 and briefly explain the purpose of each of the proposed new paragraphs.

Proposed new subsection (6)(a) would place the burden of proof on to the person seeking to use the CMP. It would be for the relevant person—usually the Secretary of State—to disprove the claimant’s case. Proposed new subsection (6)(b) would place on the party making the application for a CMP the usual duty when making an ex parte application—an application where the other party is not present—which is the obligation of full and frank disclosure.

Common law has long recognised that the court must have the full picture if it is to hear from only one side or on an equal basis for only one side. In a normal hearing where a party is absent, the absent party is protected by the obligation to make the full and frank disclosure that is on the party that is there. Consistent with that, the party must make full disclosure of the issues in the action, the admissibility of any evidence in section 6 proceedings, the reliability of any such evidence, the existence of witnesses or lines of inquiry leading to the discovery of relevant material, or the appropriate court procedure for determining the issues in the claim. When that material is provided within the CMP, it should be the full and unabridged version.

I shall read out a short quote from Lord Dubs, who made the point in the other place. He sought to prohibit

“the Secretary of State from redacting parts of documents disclosed to the special advocate. After all, special advocates are already security cleared. There can be no justification based on security risk or privacy to suppress parts of otherwise relevant documents from those within the security ring or circle. If part of the document is relevant, the entire document should surely be seen so that everything can be read in its context. Quotations out of context may not be meaningful.”—[Official Report, House of Lords, 23 July 2012; Vol. 739, c. 488.]

That refers in many ways to the question posed by Lord Kerr in the case of al-Rawi. The point is that hearing from one side or hearing from both sides where one is disadvantaged may not give a clearer picture than not hearing the evidence at all, but may give a distorted picture. In the circumstances of a CMP, what I have described will be all the more important, as such a disclosure is a minimum requirement to allow the special advocate to conduct his investigation.

Proposed new subsection (6)(c) is important. It deals with torture evidence. There will be cases in which there may be a risk that evidence adduced has come from torture or other prohibited procedures. I do not need to convince the Committee of the ethical and practical necessity of excluding such evidence; the law is clear that such evidence is banned. The amendment provides a mechanism to ensure that torture evidence will not be adduced. It is appropriate that entry into the procedure should be triggered by representations of the special advocate regarding the material, and we would anticipate that open counsel, the judge and any other party would take a similar initiative. It is consistent with the approach taken in criminal proceedings that the burden of disproving that the evidence is not tainted by torture falls on the party relying on that evidence.

Typically, it will only be Government who have access to how information was obtained; a typical example may be information from prisoners held overseas. Excluded parties cannot hope to access information on the sources of information. The burden of proof must therefore be on the Government to prove that such statements may be used in evidence.

New subsection (6)(d) is directed at inexpert opinion evidence. It is particularly important in circumstances involving intelligence reports, which may rehash opinions rather than data, and are necessarily and notoriously speculative, to ensure that they do not gain weight beyond their worth in the proceedings. Hard data from such sources are useful; speculation is not. In circumstances where informed challenge of inexpert opinion is made almost impossible by the restrictions on communication placed on special advocates, inexpert evidence should not be relied upon.

New subsection (6)(e) is directed to the necessity of taking care when dealing with hearsay evidence. In circumstances where a party cannot hear or comment on hearsay evidence, the court must be especially careful. An excluded party cannot effectively challenge such information in the usual way. That is why the amendment directs the court’s approach and requires it properly to identify the source of hearsay and to provide the means to ensure the best possible evidence.

I anticipate that the Minister may make the same arguments that were made by Baroness Manningham-Buller, who said in the House of Lords that such  a measure would inhibit sources from co-operating with the security services. Her opinion must be given due weight, and I quote:

“when individuals agree to provide that information in confidence, they seek reassurance that their lives will be protected, and anonymity is key to that. If they were identified, I am afraid that not only would they need to be resettled but very few more would be willing to work for the Government.” —[Official Report, House of Lords, 23 July 2012; Vol. 739, c. 495.]

Such concerns are weighty, but the new subsection need not have the effect that concerns the Baroness. First, nothing in that provision could lead to the revealing of sources in the public domain. Instead, the review would be in closed proceedings, only to those special advocates given the highest security clearance. Secondly, in a case where the information as to the source appears so sensitive that it cannot be revealed, such information need not be relied on. It would be a great deviation from the standards of natural justice to admit that evidential weight might be given to hearsay information, where the court cannot even be satisfied as to the source. It would discredit the CMP, which is already unfair, and render it yet more vulnerable to criticism.

New subsection (6)(f) ensures that the costs of CMPs are met by the Secretary of State. Where recourse is had to exceptional and secret courts, it is appropriate that the costs of preparing for those proceedings, and proper representation, are made available to the parties in question. Provision for effective legal assistance is a necessary step to ensuring that proceedings run fairly and are seen to do so. The proceedings are necessarily complex and special, and good lawyers are needed. It is important for public confidence in the system that the disadvantages for parties inherent in the CMP cannot be said to be exacerbated by inadequate legal assistance. I realise that runs contrary to the current views of the Secretary of State for Justice, who believes that we can get justice on the cheap, but there will be additional costs, particularly in relation to secret courts. It is a truism to say that there are additional lawyers involved in the procedure, there are different additional applications and there are additional complexities. I think the Minister would agree that we wish to see the highest standards upheld, but that will inevitably cost more, and it seems unfair that the party who is already discriminated against through the process should have to bear the cost of that process.

New subsection (6)(g) would make CMPs interlocutory. The reason is self-evident: new evidence might emerge at a later stage, evidence that was said to be secret might come out in another way and be in the public arena, or it might no longer be necessary for the evidence to remain secret. It would, therefore, seem right to revisit the process in a way that was nearer to the ordinary standards of justice.

My amendment is a probing one, but it is also analytical in relation to how the Government see CMPs working, if they become part of civil procedure, so I would value the Minister’s response to each of my points. Do the Government accept my proposals, and if not, why not?

The intent of new clause 10 is to avoid consideration in CMPs of evidence of a type that would otherwise be excluded in open court. In particular, it seeks to prevent otherwise prohibited consideration of intercept evidence. Lord Thomas of Gresford in the other place said:

“It would be quite unacceptable for the trial judge to take into consideration, in determining the issues between the parties, anything that not only is never disclosed to the claimant but that  would not be admissible in evidence if it were disclosed. The claimant would be doubly prejudiced: there would be evidence given against him in secret that was not admissible, if the judge were to take it into account.”

Lord Pannick then said, and I agree with him, that

“as a matter of principle it is surely one thing for the Bill to allow the judge in a secret procedure to look at material that is admissible in court but which the state is unwilling to have looked at in open court because of its sensitivity. One understands the purpose of those provisions. It is quite another thing for the state to be allowed to rely in the closed hearing on material that is, in any event, inadmissible in open court.”

The Government’s defence of the closed material procedure is that the state should not be in a worse position because the evidence on which it wishes to rely cannot be adduced in open court. As Lord Pannick went on to say:

“To allow the state to rely on intercept evidence in the closed procedure—evidence that is inadmissible in open court—would put the state in a better position”.—[Official Report, House of Lords, 23 July 2012; Vol. 739, c. 490.]

The debate in the other place largely revolved around intercept evidence, and I am sure that the Minister will refer to that directly, but mine is a more general point, and that is why the new clause is phrased as it is. It is another equality of arms matter: the way in which the procedure works, given its initial inherent unfairness and what we have said previously about equality of arms, should not be used to front-load the Government’s case with additional advantages, and new clause 10 simply sets out to ensure that that does not happen.

I welcome you to the Chair again this morning, Mr Crausby.

I note that the hon. Gentleman’s amendment and new clause are of a probing nature and that they develop a number of themes that were advanced in the other place, so I think he will know that to an extent my response will be reflective of some of the comments that were made in the House of Lords. Equally, I recognise the fair points that he advances to challenge, and to seek to ensure that the processes that we intend to adopt for closed material proceedings are appropriately thought through and applied in practice.

The starting point that I would highlight is that the Bill does not seek to change the civil proceedings rules, save where that is necessary in order to have a closed material procedure. We are not otherwise changing the ordinary rules in a civil procedure relating to disclosure or evidence.

Amendment 77 introduces changes that we judge to be simply inappropriate and unnecessary. In places, it seeks to change the ordinary rules and employ safeguards beyond those that would ordinarily apply in civil proceedings and in other closed material proceedings. We do not accept that any such changes are necessary. They introduce inconsistency and the potential for confusion. Civil procedure rules will otherwise apply as normal and we believe that they are adequate to achieve fairness and deliver justice, notwithstanding the closed nature of the proceedings.

The hon. Gentleman asked me to respond to each of the individual points, and I will do so. Proposed new paragraph (a) of the amendment calls for the burden of proof in section 6 proceedings to be

“on the relevant person and, where a party, the Secretary of State”.

It is not clear how that would work. In that context, “section 6 proceedings” could mean the application for a declaration, the application for a CMP or the full CMP itself. Different issues will be determined in each. Furthermore, the Secretary of State may be a party to the section 6(1) proceedings, but not to the main action. The present position, and the correct line, is that the burden of proof in a matter lies on the party asserting that matter and that will of course apply under the Bill in its current form. It is for the court to decide whether the application is justified.

Proposed new paragraph (b) imposes a number of requirements that are potentially incredibly onerous. The provision applies only to the Secretary of State, whereas under the terms of the Bill any party is entitled to make an application under section 6(1). That seems inequitable and unfair. Further, the Secretary of State may not be a party to the main proceedings and therefore would not necessarily know all the issues in the case or be in a position to satisfy the requirements set out in proposed new paragraph (b).

In section 6 proceedings, ordinary rules on disclosure will apply, subject to the CMP provisions, and that is sufficient to ensure that the court is able to reach a view on whether specific pieces of evidence should be disclosable in a CMP. Proposed new paragraph (c) specifies that “any material” or information

“which the special advocate represents may have been procured by torture or” other

“cruel, inhumane or degrading treatment…unless the contrary is proved to a high degree of conviction” should be ruled as inadmissible.

May I be absolutely clear? The Government stand firmly against torture and cruel, inhuman and degrading treatment or punishment. Where the UK Government know or believe that evidence has been obtained through the use of torture, they will not and cannot rely on it in judicial proceedings.

The rule against admissibility of evidence obtained by torture stems from article 15 of the United Nations convention against torture and other cruel, inhuman or degrading treatment or punishment, which provides:

“Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”

That very clearly states the position.

Proposed new paragraph (d) of the amendment would be inconsistent with general rules on opinion evidence, and proposed new paragraph (e) imposes an unnecessary restriction on hearsay evidence. I will explain that point; there are already rules that provide adequate safeguards for the use of hearsay evidence.

The Minister is as generous as ever in giving way. Regarding proposed new paragraph (d), there have been problems with equivalent processes in the US and how to ensure that  experts are within the closed material procedure, which can be important if there is evidence that the advocates are simply not qualified to look at or understand. Will he at least look at the problems in the US and try to ensure that there is a way to resolve them sensibly in the UK?

As I made clear, the Government will not and cannot rely on torture evidence—

Paragraph (d).

Sorry, I see. If there is an issue with the operation of the special advocate, I am happy to reflect on the point made by the hon. Gentleman and if there is further clarity I can offer him, I will certainly seek to do so. I will examine the points and see if there is anything on which I could come back to the hon. Gentleman.

I was coming to the issue of hearsay evidence, because it touches on some of the themes that the hon. Gentleman pointed to. Section 4 of the Civil Evidence Act 1995 provides that the court is to decide what weight, if any, to give hearsay evidence. A judge can include a number of considerations, including whether it was reasonable to call a witness, or if there was any motive to conceal or misrepresent. It is a matter for the judge to assess what weight to give to particular types of evidence deployed in the case, and not court rules. The court and the special advocate test the evidence.

The judiciary and the special advocates are rightly independent, and if a piece of evidence is remote hearsay, and unsupported by other material in the case, the court may decide to discount it. The important fact is that the decision rests with the court. It might be helpful to briefly highlight what Lord Hope of Craighead said on this point in the case of A and others:

“The circumstances in which the information was first obtained may be incapable of being detected at all or at least of being determined without a long and difficult inquiry which would not be practicable. So it would be unrealistic to expect SIAC”— obviously a parallel CMP-type arrangement—

“to demand that each piece of information be traced back to its ultimate source”.

The identity of an agent cannot be revealed for article 2 reasons except in the most exceptional circumstances. In most cases identification of an agent to even a handful of people would potentially put that person’s life in danger, as was pointed out by Baroness Manningham-Buller in the other place. It would not be safe for the Secretary of State to call such a witness, even in a closed hearing. If it were to happen, it would have, in our judgment, a hugely chilling effect on agent recruitment and retention as it would lead to doubt that an identity could be protected. I assure the Committee that in current CMPs the agent’s reporting will in many cases be corroborated by intelligence material from other sources; for example, intercept, eavesdropping or surveillance. It is often the case that the relevant security and intelligence agency will provide an assessment, in closed, of the agent’s reliability and of the reliability of the reporting, in order to assist the High Court—or the Special Immigration Appeals Commission as the case may be—in determining how much weight to give the evidence, based on the agent’s reporting.

New paragraph (f) of the amendment would require that rules of court should provide for the Secretary of State to pay all costs of all the parties in any proceedings in which a declaration is made under section 6. Proceedings in which a declaration is made indicate that the application process for a CMP declaration from the court has been successful. Obviously that is the initial stage, when the judge decides whether CMP is in the interests of the fair and effective administration of justice in the proceedings. It is highly likely that it would involve special advocates. Under the amendment, it is unclear who would pay if the application was unsuccessful. We think it should be for the judge and their discretion to decide how to apportion costs.

Lastly, new paragraph (g) would allow for an excluded party to appeal the judgment at any time, on the basis of evidence not available at the time of the section 6 proceedings. The effects of treating it as an interlocutory judgment are not clear. If parties were regularly to raise such appeals it could cause a significant resource burden on the courts. We believe it is unnecessary in any case, given that a party can appeal anyway, or ask the court to review or revoke a declaration. Obviously, the court has the power to revoke a CMP at any time, and as we have previously discussed they are also obliged to consider whether a CMP is still in the interests of the fair and effective administration of justice in the proceedings at the end of the stage 2 disclosure exercise.

New clause 10 limits the material that can be taken into court in a CMP to only that which would be relevant and admissible in an open hearing. The very purpose of a CMP is to allow material to be disclosed that is too sensitive to be disclosed in open court. From my reading of the new clause, that will likely include material from the agencies or intercept that it would not be lawful to disclose in open court. Limiting the admissibility of evidence in that way, therefore, would often render CMPs effectively unusable. The exceptions to allow such material to be included were provided for by proposed new clauses 6(1C) and 6(1D), in amendment 55, which was debated earlier. They include intercept material. Hon. Members have agreed on the need for CMPs in a small number of circumstances and, therefore, on the need for a process that takes such material into account.

The Bill does not seek to change the rules on civil proceedings, save where that is necessary to have a CMP. The proposals would be likely to introduce confusion, as well as inconsistency. On that basis, I ask the hon. Gentleman not to press them.

The Minister, in replying to my submissions on amendment 77, relied extensively on judicial discretion—it is nice to see it come up in the Government’s proposals at last. The purpose of rules of court is to give guidance where that is thought necessary. As the Minister will understand from the comments I have made throughout these proceedings, I am a great supporter of judicial discretion. However, where a wholly new and alien procedure, such as CMPs, is introduced in civil proceedings, we need to be rather more cautious.

I will not ask the Committee to vote on amendment 77. My comments are on the record, and there are clear concerns. I am not particularly persuaded by the Minister’s answers, but so be it. I wish he had said a little more about the intercept evidence point in new clause 10,  because that is the subject of the debate. Again, however, it is for him to respond as he wishes, so there we are. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10, as amended, ordered to stand part of the Bill.