[1st Allocated Day]
[Relevant document: The Eighth Report from the Joint Committee on Human Rights of Session 2012-13, Legislative Scrutiny: Justice and Security Bill (Second Report), HC 1014.]
Consideration of Bill, as amended in the Public Bill Committee.
Declaration permitting closed material applications in proceedings
I beg to move amendment 26, page 4, line 39, leave out ‘two’ and insert ‘three’.
With this it will be convenient to discuss the following:
Government amendments 27 and 42.
Amendment 28, page 5, line 4, after ‘proceedings)’, insert
‘and such disclosure would be damaging to the interests of national security’.
Government amendments 43, 44 and 29.
Amendment 30, page 5, line 36, leave out from ‘that’ to end of line 37 and insert
‘the degree of harm to the interests of national security if the material is disclosed would be likely to outweigh the public interest in the fair and open administration of justice.’.
Amendment 31, page 5, line 37, at end insert—
‘(6A) The third condition is that a fair determination of the proceedings is not possible by any other means.’.
Amendment 32, page 5, line 38, leave out ‘two’ and insert ‘three’.
Amendment 33, page 5, line 40, leave out from ‘proceedings’ to end of line 41.
Government amendments 46 and 47
Amendment 34, page 5, line 41, at end insert—
‘(7A) 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 70, page 6, line 22, at end insert—
‘or proceedings at an inquest conducted by the Chief Coroner or a High Court judge.’.
New clause 2—Proceedings in which section 6 proceedings are not applicable—
‘(1) Section 6 proceedings will not be applicable in proceedings where the outcome could result in, contribute to, or impede efforts to challenge the—
(a) imprisonment; or
(b) continued detention
of a party, whether in the UK or overseas.
(2) Section 6 proceedings will not be applicable in proceedings—
(a) relating to conduct which may amount to commission of the following domestic and international wrongs—
(v) cruel, inhuman or degrading treatment;
(vi) child abuse; or
(vii) other matters that the court regards as breaches of the Geneva Conventions.
(b) where there is a real risk that non-disclosure of that material or information may result in the wrongful imprisonment of an individual in the UK or overseas or the death of an individual overseas.’.
Amendment 1, page 4, line 29, leave out clause 6.
Amendment 2, page 6, line 25, leave out clause 7.
Amendment 3, page 7, line 4, leave out clause 8.
Amendment 4, page 8, line 1, leave out clause 9.
Amendment 5, page 8, line 25, leave out clause 10.
Amendment 6, page 8, line 30, leave out clause 11.
Amendment 7, page 9, line 16, leave out clause 12.
Amendment 22, page 10, line 4, leave out clause 13.
Amendment 23, page 11, line 17, leave out clause 14.
New clause 7—Notifying the media of CMP applications and media rights to make submissions—
‘(1) 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.’.
New clause 8—Ensuring closed judgments can become open when secrecy is no longer required—
‘(1) Rules of court relating to sections 6 and 7 proceedings must make provision—
(a) 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
(b) requiring the court concerned, on an application under paragraph (a), to publish such of the reasons for decision as the court determines can no longer be justifiably withheld;
(c) ensuring applications under paragraph (a) are not granted more than once in any 12 month period;
(d) enabling the court to deny a paragraph (a) application if the court views it as an abuse of process; and
(e) ensuring that all closed judgments undergo a paragraph (a) determination every five years, even in the absence of an application under paragraph (a).’.
Amendment 35, in clause 7, page 6, line 29, leave out from ‘that’ to end of line 30 and insert—
‘any of the conditions in subsections (4) to (6A) of section 6 is no longer met.’.
Amendment 36, page 6, line 33, leave out from ‘that’ to end of line 34 and insert
‘any of the conditions in subsections (4) to (6A) of section 6 is no longer met.’.
Amendment 37, page 6, line 41, leave out from ‘whether’ to second ‘the’ in line 43 and insert
‘any of the conditions in subsections (4) to (6A) of section 6 is no longer met.’.
Government amendment 48.
Amendment 38, in clause 8, page 7, line 18, at end add
‘and that damage outweighs the public interest in the fair and open administration of justice’.
Amendment 39, page 7, line 20, leave out ‘consider requiring’ and insert ‘require’.
Amendment 40, page 7, line 22, at end insert
‘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.’.
Government amendments 50 and 65.
Let me begin by making it absolutely clear to the House where the Opposition stand on the issue of closed material procedures in civil proceedings. We accept that there may be rare examples where it is preferable for a CMP to be used because there is no other way a particular case can be heard. Our position has been influenced to a large extent by the views of the independent reviewer of terrorism legislation, Mr David Anderson QC. He has written two memorandums on the proposals in the Bill and has given evidence to the Joint Committee on Human Rights. He has said that
“there is a small but indeterminate category of national security-related claims, both for judicial review of executive decisions and for civil damages, in respect of which it is preferable that the option of a CMP—for all its inadequacies—should exist.”
We are persuaded.
There may be rare examples where it is preferable for a CMP to be used because existing tools used by the court—for example, public interest immunity, redaction, confidentiality rings and in-camera hearings—may not be sufficient to allow sensitive intelligence material to be disclosed in court, meaning there may be no other way a case can be heard. However, we do not give unqualified support and shortly I will deal with some of the conditions we consider must be attached to the extension of CMPs, conditions which David Anderson said were important.
I apologise for intervening so early in the right hon. Gentleman’s speech. David Anderson used the word “small” in those comments, but the Government’s impact assessment indicated that there will be about 15 of these cases a year. We should therefore not underestimate exactly what we are talking about.
I believe that one of the impact assessments gave a figure of seven, whereas the press reports I read over the weekend mentioned one of 15. For those reasons, it is important to attach great weight to the conditions to which David Anderson refers. We would not wish, inadvertently, to see more cases than the Government say they expect to be reaching a CMP.
It seems to me that we do not know how many of these cases there will be, because we do not know what effect the new process will have. This is becoming a popular jurisdiction and the number of cases is slowly climbing, because no defence is offered to people’s claims and they are being awarded quite large sums of money. Once it is possible for the Government to defend themselves, people will, presumably, think more clearly about the substance of their allegations before bringing claims, and we just do not know how many we will have.
May I adopt the Minister’s arguments in support of our sunset clause, which we will be debating later? He cannot predict the number of cases, which is why we think a sunset clause is appropriate.
Will the right hon. Gentleman give way?
Briefly, because I actually want to start my speech.
Does the right hon. Gentleman mean a sunset clause or does he mean a renewal order, which is a different thing?
I mean the latter, and we will discuss that after the votes at 8 pm, when my colleague will be dealing with those things. However, the right hon. Gentleman is right to remind the House of the difference between the two measures.
Our conditions are set out in the amendments standing in my name and those of my hon. Friend the Member for Hammersmith (Mr Slaughter), the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) and the hon. Member for Moray (Angus Robertson). Labour’s position has been consistent on this matter since the publication of the draft Bill. We said that the legislation was drafted in such a way that there were too few safeguards in place on the use of CMPs. Safeguards are crucial because CMPs are alien to our tradition of open and fair justice, where justice is not only done, but is seen to be done. Any proceedings held in secret are a major departure from that. Given the exceptional and aberrant nature of CMPs, their use should be clearly constrained. That has been our position and remains so now: consistent and clear, balanced and proportionate. The Lords delivered a strong and clear verdict on the Bill last November.
My right hon. Friend sets up a choice between open proceedings and CMPs, but is not the real choice between public interest immunity, where nothing ever gets heard by anybody, and CMPs?
Public interest immunity is a device by which we can exclude evidence, but it can also lead to hearings with some anonymity of witnesses, to the redaction of documents and to confidentiality rings. The choice is not simply between the exclusion of material or its admissibility—evidence can become admissible through certain devices, which I shall come on to shortly if my right hon. Friend gives me time to develop my argument.
Labour, Liberal Democrat, Conservative and Cross-Bench peers agreed that the original Bill was poorly drafted and gave too much power to Ministers to decide what did or did not stay secret in court proceedings. Amendments were passed by substantial margins to put in place what we considered to be appropriate checks and balances. No longer would the decision on whether a proceeding was held in secret be in reality taken by a Minister with the façade of a judge’s rubber-stamping it. Instead, it would be truly taken by a judge, who would be empowered to balance the public interest of holding proceedings in the open against the public interest of holding proceedings behind closed doors due to the harm done to our national security. The Lords amendments would also have ensured that the use of a CMP remained a last resort, as befits something that is anathema to open and fair justice and that, as all sides accept, should be used only in exceptional circumstances.
Will the right hon. Gentleman give way?
I will, but then I must make progress or we will reach the knife before I have finished my speech.
The shadow Secretary of State is very kind to give way. Does he not recognise that if CMPs are available, even if in theory they are a last resort, that very fact will mean that they will be used? Huge numbers in the legal profession want to get rid of secret courts in civil law altogether, which is what my amendments would achieve.
If the hon. Lady reads the Supreme Court judgment in al-Rawi, she will see that one of the court’s concerns was about not having in its toolkit the ability to have a CMP in an appropriate case. Its point was that it is for Parliament to add the option of a CMP to the armoury in the toolkit to be used after all the other options have been exhausted. Our amendments seek to do that. CMPs will not be the first choice made by a judge, but as a last resort judges might decide to use one if all the other tools in their toolkit are inadequate.
Further amendments were also made that permitted all parties to seek the use of a CMP and not just the Government, and to ensure that the judicial balancing of public interest and national security also took place once proceedings were being held in secret. There was a degree of contentment on Second Reading in the Commons that because of the improvements made by the Lords, the worst excesses of the proposals had been ameliorated. The former leader of the Liberal Democrats, who is also a member of the Intelligence and Security Committee, the right hon. and learned Member for North East Fife (Sir Menzies Campbell), said that
“the amendments made in the House of Lords have been regarded by many people as being entirely favourable and reasonable.”—[Official Report, 18 December 2012; Vol. 555, c. 713.]
We agree. He not only wanted the Government to accept the amendments but wanted to persuade them to accept further amendments with the purpose of extending the discretion of the court, and we also agree with that.
The pity is that the Government shredded the Lords amendments as the Bill progressed through Committee. I must also, at this point, put on record how disappointing it was that the Government tabled its amendments at such late stages on repeated occasions—they did so at the latest stages possible, both in Committee and now on Report. It is unacceptable that the Bill had its Second Reading in the House of Lords on 19 June and yet the Government were still tabling amendments as late as last Thursday, thereby depriving us, interested parties and experts a chance properly to analyse those late amendments. That is not befitting of such a sensitive and complex issue.
Let me turn my attention briefly to the Liberal Democrats. If we are to be successful in our attempts to improve the Bill today, we will need their support. During the passage of this Bill, the Liberal Democrats have had a number of different positions, often at the same time. The grass-roots party voted to ditch part 2 in its entirety, but a Liberal Democrat Minister, the noble Lord Wallace of Tankerness, steered it through its Lords stages and resisted any changes or improvements. Liberal Democrat Back-Bench peers, to their credit, supported the amendments made to the Bill. More than 80% of the Liberal Democrat peers in the House of Lords voted with us to amend the Bill to incorporate the concerns of the Joint Committee on Human Rights and the independent reviewer of terrorism legislation. In Committee, the hon. Members for Cambridge (Dr Huppert) and for Edinburgh West (Mike Crockart) sided with Labour in our amendments to restore the improvements made to the Bill by the House of Lords.
I thank the right hon. Gentleman for his comments and he is right that a number of Labour Members voted with us on a series of our amendments. I was grateful for that support and I hope that it can continue in other areas. Is he also concerned about the number of Labour peers who went home rather than vote, as many Liberal Democrat peers did, on issues such as Wiley balancing in the second stage and the principle of closed material procedures?
That is a curious intervention. I am trying to be nice to the hon. Gentleman because I want his vote, so I will not respond in the way his intervention deserves. Instead, I will remind him and the House of what he said in Committee. In response to what was then Government amendment 55, which undid some of the House of Lords improvements, he said:
“I accept that the Minister’s case will be bolstered significantly if the Joint Committee on Human Rights agrees with what he is saying, but”—
this was his advice to the Minister—
“he should reflect carefully on what he will do if that Committee, having looked at the amendments he is proposing and the state of the Bill when that Committee publishes a report, disagrees with him.”
He went on to say:
“I will, further, support any other amendments that take us in the direction of improved safeguards and towards the direction of the Joint Committee on Human Rights”.––[Official Report, Justice and Security Public Bill Committee, 5 February 2013; c. 195.]
I hope the hon. Gentleman and his colleagues will support us and have the courage to vote for our amendments, which reflect the positions taken by Liberal Democrat MPs in Committee and Liberal Democrat peers in the House of Lords. Any other position would be a tragic betrayal of their liberal instincts.
I want to make it clear to the right hon. Gentleman that my predecessor on the Joint Committee on Human Rights, my hon. Friend the Member for Edinburgh West (Mike Crockart), and I have worked to make a case to push the Government forward. I will support, on all issues, exactly the position taken by the Joint Committee, which says that the Government have moved forward, made progress and improved the Bill, but that more work is to be done.
I thank the right hon. Gentleman for that clarity, which shows the advantages of being nice to Liberal Democrats. In case any of his colleagues have any doubt about the advice given, I have the report with me and will remind them of what the Joint Committee said just last week on the Government’s manoeuvres upstairs in Committee.
Given that in Committee the Minister unpicked the Lords changes to the Bill, amendments 26 to 40 are designed to emulate the same improvements as were made in the other place. Our amendments seek to put in place appropriate checks and balances on the use of CMPs. We do not underestimate the difficulties in reconciling the issues of justice and security as contained in the Bill’s title, but this is difficult and not impossible. By putting appropriate measures in place, we believe that the use of CMPs could be made proportionate to the scale of the problem they are intended to address. As has been said, our position is backed by the Joint Committee on Human Rights, whose most recent report systematically goes through the changes made in Committee by the Government and is consistent with the Government’s independent reviewer of terrorism legislation and with the views of the House of Lords.
So here we are once again, trying at a late stage in proceedings to bring some balance to the proposals in front of us. Our amendments address four main areas: judicial balancing both outside and inside proceedings, the use of CMPs as a last resort and equality of arms. I shall deal first with judicial balancing.
We have consistently agreed with David Anderson when he said that
“the decision to trigger a CMP must be for the court, not the Government.”
The original bill, as published, included no substantial role for the judge. I accept that this has been moved on since then, but some of the progress made in the other place has now been undone. Despite claims to the contrary, the Bill does not give a judge the proper discretion to decide between whether to hold proceedings in the open or to move proceedings behind closed doors. The Government chose to remove the Lords amendments that put in place a proper judicial balancing of these competing interests—the so-called Wiley balance.
Last week’s report from the Joint Committee on Human Rights is very powerful on this issue. I pay tribute to the Chair of the Committee, my hon. Friend the Member for Aberavon (Dr Francis), for all its hard work on this. In its report—Liberal Democrat colleagues will be keen to hear this—the Committee says that
“there is nothing in the Government’s revised clause 6 which replaces it with anything requiring the court to 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 on the other.”
I must have misheard the right hon. Gentleman. He seems to think his amendment widens the discretion of the judge. It actually narrows it. The Bill as it stands says that the judge may hold a closed session after the three conditions are satisfied, which are mainly the fair and effective administration of justice. We have now reached the situation where critics are so nervous about what the judge may do that they want to lay down additional tests that the judge must put to himself before he makes a judgment one way or another. Lord Woolf, the former Lord Chief Justice, this morning made it clear that the judge now has complete discretion to decide what to do, and it is the critics who are so worried that there might be closed material proceedings that they are trying to put in extra tests to try to put the judge off. As the right hon. Gentleman’s amendments narrow the judge’s discretion, he might at least put his case the right way round. As the Bill stands, the judge has a pretty unfettered discretion.
On at least four occasions over the past 18 months the Minister has told the public, the media, MPs and Members of the House of Lords that judges had full discretion, notwithstanding the four changes that he has agreed to make over the past 18 months. He cannot be right on all four occasions. Let me tell him what the House of Lords did, pursuant to the report of the Joint Committee on Human Rights. It put on the face of the Bill the balancing exercise that a judge should undertake, balancing on the one hand the public interest in the open and fair administration of justice and the public interest in making sure that there was no damage to our national security as a consequence of material being disclosed. In Committee the right hon. and learned Gentleman tried to tie the hands of that balancing exercise. In a new report last week from which I quoted, the Joint Committee said that he tried to do the very same thing. He is again arguing today why he is right and all the members of the Joint Committee are wrong.
I will give way to the Chair of the Intelligence and Security Committee, then I will make some progress.
Does the right hon. Gentleman not appreciate that the bald choice that he is trying to make between national security and the administration of justice certainly applies when one is considering a public interest immunity certificate, because that removes the evidence completely from the consideration of the courts in the interests of national security? But the Wiley test that he referred to just does not apply when one is dealing with closed material procedures because there is a perfectly good argument—the right hon. Gentleman may not accept it—that the administration of justice is better served by at least the judge hearing all the evidence than the evidence being completely withdrawn and not being able to be taken into account at all.
That is exactly what the Supreme Court said in the al-Rawi case: that a judge has at his—I am afraid it mostly is “his”—disposal a number of tools to deal with issues that are sensitive and would create problems for national security. If an application for public interest immunity is made and the certificate is signed by a Minister, the judge will go through a number of loops. He will consider on an application ex parte whether, for example, it is possible to have a fair hearing using anonymity. He will decide whether it is possible to have a fair hearing with confidentiality rings. Imperfect as it is, it is one of the ways in which he will reach a conclusion after balancing the public interest in holding an open and fair administration of justice and the public interest and harm to our national security from disclosure. He does that anyway.
The problem that the Supreme Court recognised in its finding on al-Rawi is that at present the judge does not have the option of a CMP unless we give him that option. That is what the Bill seeks to do. We have explicitly stated in the Bill that there should be a balancing exercise by the judge. In Committee the Ministers tried to limit that. There is no balancing now. All a judge has to consider is whether the procedure is fair and effective, rather than a balance of what is in the public interest.
I am quoting what the Joint Committee said in its report last week, which the Minister finds so objectionable. After his amendments in Committee were defeated by one vote—the Lib Dems voted with Labour—the Joint Committee said that
“there is nothing in the Government’s revised clause 6”—
[Interruption]. The Minister might mutter, but the Committee said that
“there is nothing in the Government’s revised clause 6 which replaces it with anything requiring the court to 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 on the other.”
For us, this is a failing. The test applied at the gateway is very important.
Will my right hon. Friend give way?
I keep saying that I will give way for the last time. This really is the last time.
For the sake of clarity, will my right hon. Friend confirm that there will be circumstances in which it would be appropriate, in the interests of the fair administration of justice, for there to be a closed material proceeding hearing? If there are allegations that the security services have acted improperly, that information ought to be before the court rather than having the option of settling the case and the information never being subjected to judicial scrutiny?
I agree with my right hon. Friend. She basically paraphrases the words of David Anderson, who said that there are a small number of cases where it is preferable for there to be closed material proceedings, imperfect as that is. She is right to remind the House of what David Anderson said, albeit in her own words, and I agree.
The Wiley balance is a tried and tested legal mechanism by which courts can balance these competing interests, and there is considerable case law history to back that up. It was supported by the House of Lords, as I said, including by Lord Phillips, the former president of the Supreme Court. The Government’s changes remove from the Bill all reference to open justice. The fear is that by not taking open justice into account, the likelihood of a CMP taking place will increase to more than the exceptional that the Government have talked about. As I have said, the Government also tabled amendment 55 in Committee, which replaced “open” with “effective”. It is our view, shared by the JCHR and the special advocates, that this is a retrograde step. As I said, the Supreme Court in al-Rawi confirmed that both natural justice and open justice are important but separate fundamental principles, hence our amendment seeks to reintroduce to the Bill the Wiley test of fair and open justice.
Will my right hon. Friend give way?
I want to make some progress then I will give way.
Paving amendment 26 brings us to amendment 31, which would ensure that the use of CMPs became an option of last resort. Amendment 34 would mean that the court must consider—I emphasise the word “consider” —using public interest immunity before opting for closed proceedings. We believe that those amendments are important for two key reasons. First, deviation from open and fair justice should be considered in only the most extreme of circumstances, and I think there is general agreement there. As the Government have said, CMPs should be used only in exceptional cases. Let me remind the House that on Second Reading the Minister said:
“I agree that we should be talking about a small number of cases where any other process is impossible and it is necessary for it to be handled in this way.”—[Official Report, 18 December 2012; Vol. 55, c. 721.]
By placing in the Bill a provision that states as such, this should help ensure that the use of a CMP does indeed remain exceptional, as we all intend. Secondly, because it also allows the consideration of other measures, such as public interest immunity, redaction, in camera hearings, confidentiality rings and anonymity, all of these would protect the precious open and fair nature of our justice system, which must be one of our priorities.
My right hon. Friend has moved on from the point I was going to make, but I will return him to it. He has explained how the Wiley test works effectively with public interest immunity cases, but he seems to assume that that test will work equally well in closed material proceedings. I fail to understand how he can justify that statement on the basis of what he has already said.
The Wiley balancing exercise has been applied for many years, and there is a rich history of precedent. The Minister plucks from the air “fair and effective”, but that was plucked from the air at the eleventh hour, at the last minute that an amendment could be tabled in Committee. What we, the Joint Committee, the special advocates and the House of Lords are saying is that if there is to be a gateway test before the decision about whether a hearing should be open or under a CMP, or about which material within a CMP should be open or closed, the judge should carry out a balancing exercise. He should weigh the public interest in having an open and fair hearing against the harm done by the revealing of information that would breach national security. That is the test that judges use now and what the Supreme Court judges in al-Rawi would like to have used had they had the option of a CMP, which this Bill would give them.
The right hon. Gentleman is being generous, although it sounds as if he needs to be nicer to some of his own party’s Back Benchers to get their support on some of these issues. He is making an interesting point about the last resort, and I have some sympathy with that. He will be aware that closed material proceedings were introduced by the previous Government in respect of a number of other cases in British law—in special immigration cases, control orders and employment tribunals. Will he remind the House whether there was a last resort provision for all those? I simply cannot remember—perhaps he can.
As the hon. Gentleman will know, this is an extension into civil actions. He is talking about special immigration appeals hearings, but I am talking about something very different: when one party is suing the Executive—the Government—for damages. Historically, the Government could press the “eject” button, but for the reasons given by the Minister and my right hon. Friend the Member for Salford and Eccles (Hazel Blears), we do not want damages to be paid where a case could be exhausted and there could be a resolution of the disputes. That context is very different from one in which somebody’s immigration status is being considered.
My question is also to do with the right hon. Gentleman’s concept of the last resort. I think he would accept that one of the reasons why we are enacting this Bill is to avoid an unpalatable situation. People who we might know from secret sources, which we cannot expose in public, to be closely involved in terrorism have been able to sue and walk away with £500,000, £1 million or more. That is what is behind the provision.
It will always be open to the Government to pay the money and thus avoid the action. Will the right hon. Gentleman’s criterion of the last resort mean that we can go for a closed material procedure to avoid having to pay out the money unjustifiably or that we will have to carry on doing what we are doing at the moment—rather than exposing secret sources or techniques, paying out a lot of money to potentially very dangerous people?
Order. I ask hon. Members to make shorter interventions, although I know it is important to get things on the record.
Thank you, Mr Deputy Speaker. Six interventions ago, I said that I would take my last one; I keep being too generous.
The hon. Gentleman’s point would be good if I was suggesting that we remove CMPs altogether. I am saying that a judge should consider—a word that I shall explain in a moment—all other options, including public interest immunity, before going to a CMP. The Government amendment requires the Minister to consider PII; if it is good enough for the Minister, why is it not good enough for the judge?
We are not saying that there should not be CMPs, but that it is exceptional, for the reasons the Government have given. It should happen very infrequently; people have mentioned figures of seven or 15. The Under-Secretary has said from the Front Bench that he is not sure how many, which is why he will be supporting our sunset clause. What I am saying is that asking the judge to consider all the other options would make explicit the intention of Parliament and the Government.
Will the right hon. Gentleman give way?
I really must make progress; there will be time for hon. Members to contribute after I have finished.
David Anderson, the Government’s independent reviewer of terrorism legislation, has himself said that
“the court’s power to order a CMP should be exercisable only if, for reasons of national security connected with disclosure, the just resolution of a case cannot be obtained by other procedural means (including not only PII but other established means such as confidentiality rings and hearings in camera).”
We should not legislate in a way that means that CMPs will replace tried and tested methods for dealing with sensitive material in open proceedings if those methods will do the job. Only if it is deemed, after consideration by a judge, that those tried and tested measures cannot be employed in a way that would allow important evidence to be used in a public court, would the option of a CMP be considered. The Bill as it stands does not allow for this. Our amendments would not, as some have argued, including the Minister on Second Reading, mean that a full and lengthy PII exercise had to be undertaken before a CMP could even be considered. On the contrary, the key word in all this is “considered”. Our amendments would deliver this. I hope that the House will support that as part of our efforts to maintain as much as possible of the precious traditions of openness in our justice system.
Some have interpreted the Government amendments tabled at the eleventh hour last week as delivering what we and others have asked for. They will lead to a Minister—in other words, one of the parties in the civil action or judicial review—considering the use of PII and the judge having to take their conclusion into consideration when deciding whether to grant a CMP. In our view, this is not an appropriate check and balance, and we will therefore look to amend the Bill accordingly.
Amendment 38 deals with the Wiley judicial balance within the CMP. The Government’s argument for resisting this is the same as their reason for resisting full judicial balancing on the decision on whether to order a closed proceeding in the first place. We are not persuaded of their arguments in that circumstance. We believe that this is another key component of judicial balancing and a crucial check and balance.
Our amendments also deal with the equality of arms. On Second Reading, the Minister said:
“We will also accept that any party, not just the Government, should be able to ask for a closed material procedure.”—[Official Report, 18 December 2012; Vol. 555, c. 722.]
We welcomed that statement. After all, equality of arms is backed by the JCHR and the independent reviewer of terrorism legislation, David Anderson QC. However, following the changes that the Government made in Committee, we now know that their idea of equality of arms is very different from everyone else’s. The JCHR report published last week is highly critical of what was done to the Bill in Committee. It says:
“in our view the Government’s amendment enabling all parties to proceedings to apply for a CMP does not provide for equality of arms in litigation because it would unfairly favour the Secretary of State”.
In short, it is a two-tier equality of arms—or, in the real world, an inequality of arms. Our amendment would restore proper equality of arms. I am pleased that the Government have decided to support us and have signed our amendment.
Some have said that the debates at this late stage are nothing more than angels dancing on the head of a pin. I disagree. There remain some fundamental differences, chiefly about judicial balancing and last resort, about which we are still concerned. I hope that colleagues in all parts of the House will support, in particular, amendments 30 and 31. We will first need to vote on amendment 26, which is a paving amendment that would ensure that the Bill contained the proper checks and balances that it needs without having to rely on the other place—with Lib Dem support, I hasten to add—to make sure that there is equilibrium in the great balancing act that we face between our national security and the rights of individuals.
I rise early in the debate because I want to speak to the Government amendments that stand in my name. I have already added my name to two Opposition amendments. As we do not have a great deal of time to discuss some quite complex issues, it will be helpful to set out what those issues are so that we do not have so many interventions when the person who is being intervened on is agreeing with the person making the intervention, as happened several times to the Opposition spokesman.
I think that an ordinary, intelligent person from the outside world who is listening to this debate would be rather baffled as to what is causing us so much concern. It has seemed to me for some time that we are in complete agreement on policy and there is no disagreement between us on the principles of the very great need to protect national security and the equally great need to protect the rule of law, the principles of British justice and all the values that we seek to uphold. We have spent the entire time trying to work out a process for reconciling those principles.
The Opposition spokesman entirely agreed with the interventions by the right hon. Member for Salford and Eccles (Hazel Blears) and my hon. Friend the Member for New Forest East (Dr Lewis), who both put forward the principle that we must find some way of trying these cases properly so that everybody knows that there is justice and that a judge has been able to reach a conclusion on the merits or otherwise of the allegations made. Nobody has yet got up to say otherwise. The real critics of this Bill—I do not think that they are Members of this House—say that, somehow, it is a lesser evil to keep paying out millions of pounds in order to not extend the principle of closed proceedings further than it already exists in British law. The idea seems to be, “What a pity. We hope that none of the millions will go to bad causes,” although I do not think that that argument has an advocate in this place.
What we are doing—we have been having this debate for months—is discussing amendments that would underline the fact that this is a judge-made decision, made with proper discretion and taking the right things into account, and that closed material proceedings will be used only in a very small number of cases that would give rise to issues of national security if they were held in open court.
I shall start giving way in a moment and will do so at least as frequently as my opponent, the right hon. Member for Tooting (Sadiq Khan).
I will not use my own words to make the general case for the measure. I think I am in agreement with the Labour party, the Liberal Democrats and, I hope, my own party, or at least the bulk of it—that is sometimes the least certain proposition one can make in British politics these days. A collection of people whom I admire wrote to The Times a few months ago:
“In national security matters our legal system relies upon a procedure known as public interest immunity. Under PII, evidence which is deemed to be national security sensitive is excluded from the courtroom. The judge may not take it into account when coming to his or her judgment.
This procedure is resulting in a damaging gap in the rule of law. To protect national security evidence from open disclosure the Government is forced to try to agree substantial settlements with claimants who have not had the opportunity to prove their case. Civil damages claims made against the security services are not therefore being scrutinised by a judge in a court.
It was to resolve a similar problem that previous Governments introduced Closed Material Procedures (CMPs) in immigration and control order cases, and courts have ordered them by consent in the past.
CMPs are not ideal, but they are a better option where the alternative is no justice at all. The Special Advocates who operate within them are more effective than they admit…and the Government loses cases in these hearings.
We believe the Government is right therefore to extend the availability of CMPs to other civil courts. This will ensure that the security and intelligence agencies can defend themselves against allegations made against them, that claimants are given the greatest opportunity to prove their case, and that concerned citizens will have the benefit of a final judgment on whether serious allegations have foundation.”
That puts the general case impeccably. One of the signatories was Lord Reid, the former Home Secretary, which is not too surprising given that most Opposition Members who are former Ministers with experience of dealing with these matters are pretty supportive of the Government and have been throughout, particularly those who are still up to date because they are on the Intelligence and Security Committee. Another signatory was Lord Mackay of Clashfern, who was a Conservative Lord Chancellor many years ago, but who was the most independent Lord Chancellor I can recall. He is an impeccable lawyer and a man whom no one could accuse of not having regard to the rule of law.
I stress that the former Lord Chief Justice, Lord Woolf, whose name has entered the fray again today, is a great defender of personal liberties who invented, I think, the whole concept of judicial review by which Governments are now held to account better by the courts for ministerial decisions. I have great respect for his opinion and today—this is my final quote before I start to give way—he has written:
“What is important is that the operation of…CMPs should be under the complete control of a judge. That the Government has now given him that control is to be welcomed. The Bill now ensures that we will retain our standards of general justice, while also putting an end to the blindfolding of judges in this small number of cases.”
I think that we all agree. There may be some rare exceptions from the ultra-liberal end of the left or the right, but by and large practically everybody in this House agrees with that case. What we are arguing about now is the fact that every time we table an amendment, further amendments are tabled in order to make it more practically difficult ever to have a CMP. The lawyers who are persuading various groups to table those amendments and who are drafting them for them actually think that the law as it stands is perfectly satisfactory, but they keep trying to invent fresh conditions, tests and processes to get in the way of CMPs.
The Litvinenko inquest is proceeding under the old law. I gave in to all the lobbyists who said that none of this should ever apply to inquests. In inquests, secrecy must therefore remain the order of the day so far as the coroner, the family and everyone else is concerned once a PII has been applied for and granted. I do not think that that should apply to civil claims, but people will no doubt try to persuade me that it should.
I thank the Minister for giving way and for the way in which he is trying to present a not very strong case. If we have a Security Service, it must be accountable, and if we have a criminal law process, it must be open. The process that is being introduced and previous processes end up, in effect, with people being criminalised in secret without knowing the full case against them. Does he not accept that there is a danger in the process that he is presenting?
The Bill most emphatically does not apply to the criminal process. I would be against any evidence of which the offender was not aware being given in a criminal case. That gets us into the control order problem, which is that sometimes there is no evidence in a case, but responsible people are terrified of the prospect of the person being left at liberty because we cannot prosecute. However, that is for another day. I do not believe that there can be a criminal case with secret evidence. I quite agree about that.
In civil cases, I would prefer there to be open evidence all the time. I particularly agree with the hon. Member for Islington North (Jeremy Corbyn) that the security services must be accountable to the courts and to Parliament wherever possible. At the moment, they are not accountable to the courts, because all the material that the Government want to bring in their defence cannot be given in open court. By definition, this is not evidence about our being involved in torture, rendition or anything like that. We deny that we are and most of the allegations are not that we have done such things, but that we have been complicit in another agency doing them. The evidence that we are talking about is evidence that the security services and their lawyers believe would enable them to defend the action and refute the allegations. At the moment, because we cannot hear such evidence in closed proceedings and because it cannot be heard in open court, it is not heard at all. We just offer no defence and pay out. If we have this procedure, it will make the services more accountable to the courts.
The other half of the Bill greatly strengthens the work of the Intelligence and Security Committee, which I approve of, by making it a proper Committee of this House and by strengthening its powers. I agree with the hon. Member for Islington North that we must reassure the public that we are defending our values by the most reputable methods and that we are respecting human rights. There must therefore be accountability to the courts and to Parliament.
I will give shorter answers if I can. I will give way to a Member on my side of the House.
My right hon. and learned Friend has come against the rock of the special advocates. They have looked at this business and rejected it universally. They are the ones who are supposed to carry these court cases through and they do not like the proposal. I do not like it and, as this debate progresses, I think we will find that many more Members of this House do not like it either.
I thought we were doing all right with this Bill until the special advocates came out with their remarkable evidence to the Joint Committee on Human Rights. I agree that that got me into a lot of trouble. I do not understand why they take that ferocious view. As I have demonstrated before with plenty of quotations, they do win cases. One would think that they are powerless, but they do succeed. The judges accord to special advocates much more power of persuasion than they seem to accord to themselves, because judges want to have a special advocate to help them test the evidence when they are reaching their conclusion.
Of course, special advocates act on behalf of the claimants, as do most of the people who make these objections. I am not accusing them, because their motives are the highest and most honourable, but they have got into a frame of mind where they think that anything that is not advantageous to the claimant must be bad. Even at the height of my enthusiasm for human rights and the rule of law, I cannot get myself into that position. Claimants should be obliged to prove their case and I believe that special advocates are the most effective means that we have of testing the Government’s case on behalf of claimants.
The Minister made the excellent point that none of this would apply to criminal cases in which somebody’s liberty could be at risk, which is important. It is clear that there will not be closed information in such cases. Will he confirm whether civil habeas corpus cases will be covered? Could there be closed proceedings in such cases, which could affect somebody’s liberty?
My off-the-cuff reaction is to say no, but I confess that it is an uninformed one, so I think I ought to check that and return to it later.
I will give way once or twice more, then I must resume my speech, otherwise this will turn into a question-and-answer session. I must finish my speech, as the right hon. Member for Tooting did with great difficulty.
May I reiterate what the hon. Member for Aldridge-Brownhills (Sir Richard Shepherd) said? If special advocates, who are independent people and fully aware of cases such as those in question, are expressing reservations and think the provision is wrong, should the Government not take notice of that?
We have taken notice of it, but I do not understand why special advocates seem to be taking up the arguments of people who say that we should never allow anybody to consider the evidence in question. I never thought that PIIs were a perfect process, but the critics have suddenly decided they are now that we have brought forward CMPs. If there is a PII, the judge cannot take account of such evidence, claimants and the defence cannot use it, and the lawyers do not know about it. That is held up to me as a superior position to the one we are putting forward, which will mean that the judge can consider that evidence.
Will the Minister tell us in broad terms what concessions he has made since the Bill was conceived, and whether there are any further concessions that he can make to address any concerns?
I was about to move on to that point, having made the general case. Every time I make concessions, they are pocketed and there is a fresh set of demands. I have known that to happen before, but never on the same scale as with this Bill. I will try to explain that when I get on to the matter.
I see that the Minister is about to get some advice from behind him on habeas corpus cases. The advice we have received is that they are regarded as civil actions, and that habeas corpus could therefore be at risk in future.
The Minister should not get carried away with the idea that everybody supports the change. Some parties, such as the Green party, do not. That will not surprise him, but the Liberal Democrat conference did not support it, either. It talked about it as a serious risk to public trust and confidence. Many people out there do not support the change or think it is necessary, and I have yet to hear any real argument as to why it is.
I respect the hon. Lady’s sincerity, and she represents those who are against the whole policy. I have met such people outside—to use a flippant phrase, some of my best friends are human rights lawyers, and I have met people who say that the whole idea of CMPs is so bad that it is a lesser evil to keep paying money to the ever-mounting number of people coming forward. That is a judgment for the House to make, but the three political parties do not contain many members who agree with that, and I do not think the public agree with it. I would prefer to see a judge test the evidence and come to a conclusion.
I will move on, but I will remember who I have not given way to.
I have been given advice on civil habeas corpus cases, and I will read it to the House. It says, “We can’t envisage any such cases.” I find that inconclusive, so I will make further inquiries. The question bowled me middle-stump, so I have some sympathy with the unfortunate lawyer in the Box who has had to decide what on earth we can say, and I think we ought to be allowed to go away and consider the matter.
On the point that my hon. Friend the Member for Penrith and The Border (Rory Stewart) made, Lord Woolf mentioned in his letter this morning that before the Committee stage, and again last week, the Government have tabled a lot of significant amendments that, in our opinion, meet every practical objection that has been made by the Joint Committee on Human Rights, the Opposition, my colleagues in the Liberal Democrats and my noble Friends, who defeated us several times. We accepted quite a lot of those defeats, which were improvements to the Bill.
I have tabled four more amendments today and added my name to two Opposition amendments. I considered the point about equality of arms; I think it is slightly overdone but Government Members have added their names to two Opposition amendments so that any party to the proceedings can apply for a declaration that there should be closed material procedure.
Let me remind hon. Members where we have got to. There has been enormous movement since the Green Paper, and quite a big movement while the Bill has proceeded through the House. The court may grant such an application and order a CMP if it—
Let me remind hon. Members of the position we have reached and then I will give way.
The court must be satisfied that the Secretary of State has considered whether to make, or advise another person to make, a PII claim for the material on which the application is based. Therefore, the Secretary of State must have considered that PII claim. We are not in favour—I will come back to this point—of the Secretary of State being put under an obligation to go through the whole PII process, which in some cases can take months, if it is obvious from a sample of the material that the case is likely to involve a CMP.
Now that the Bill has been amended, the tests the judge must apply before going into closed proceedings are clear. The judge must be satisfied that the material is relevant to the case and bears on issues that the judge is being asked to decide on. Secondly, the judge must be satisfied that the material could damage the interests of national security. A case cannot be contemplated for closed proceedings until the judge is satisfied on that point. Thirdly, the judge must be satisfied that a CMP would be in the interests of the fair and effective administration of justice—the proper way a British judge should try the case.
Those three conditions are pretty wide and they have to be satisfied. If the judge, exercising the widest possible consideration, is satisfied that those three conditions have been met, he may allow a CMP. We have removed the wording that he “must” allow a CMP, so the idea that this decision is not under the control of the judge strikes me as totally fanciful. If a CMP is being considered, the only way it will be workable is if a judge looks at a sample of the material to see whether those three conditions are satisfied. He may then order a CMP.
In a CMP a judge will hear all the material, which can amount to thousands of documents. During that time, when the special advocate is challenging and going through the case, the court is obliged to keep the CMP under review. Again, we have given the judge the power to revoke the CMP at any time. Indeed, the court has a duty to revoke a CMP following the pre-disclosure exercise if it feels that the CMP is no longer in the interests of the fair and effective administration of justice. As Lord Woolf has said, the changes the Government have made put the judge in complete control of whether a CMP can be granted and whether it will continue or be revoked—I could add more but I will not because I have started to give way again. The judge also decides how much of the case will go into open proceedings, how much of a gist can be given to the defendants, and how much can go into open proceedings as long as certain documents are redacted. Of course, the judge will have been informed by evidence and heard it challenged, and will then continue to the rest of the proceedings.
If we started like that, Lord knows where we would be now given the amendments we were facing—I cannot imagine. Some of this is unnecessary because I think a British judge would want to hold open proceedings. People will have difficulty persuading a British judge that it is sensible to go to closed proceedings. The idea that we need a whole lot of amendments that put fresh conditions on the judge, fresh questions for them to ask, and fresh, expensive and long processes to go through, is just an attempt to thwart CMPs. The Bill contains every protection because we have amended it yet again after consideration by the Joint Committee on Human Rights and the Intelligence and Security Committee.
I welcome my right hon. and learned Friend’s comments. Will he tell the House whether there is a clear and understood definition of the term “national security”?
There is no definition, because all attempts to define it have got one into worse difficulties.
It is possible to exclude evidence from a case altogether under the existing public interest immunity procedure; the Bill does not touch that. The present PII law will be completely unaffected by the Bill, so people could still go for a PII. One is obviously being actively sought at the moment in the Litvinenko inquest, although I know that only from what I read in the press. That kind of exclusion could be claimed on the ground of damage to international relations, if the Government of some third-party state would be upset if certain evidence were to be published. That goes beyond questions of national security and into total secrecy, allowing the Minister to withdraw the whole blasted thing from the proceedings and not letting even the judge use it. That measure goes much wider. Such exclusions on wider grounds happened under the previous Government.
We are sticking to national security, however, and judges, using the completely unfettered discretion that we are now giving them, will no doubt have regard to what I say. What we have in mind are things that would cause damage to national security, by which we mean the safety of our citizens, our attempts to counter terrorism, and threats to international order among the wider public. I can assure the House that I am not in favour of excluding ministerial pigs’ ears. I am sure that the previous Government made more of them than we did, but I do not believe that that sort of thing should be put away in closed proceedings under any Government.
Is not national security rather like reasonable doubt—two well understood English words, as a judge advised the jury in a trial the other week?
Amendments have been tabled to Bills of this kind to try to define the concept, but that leads to more trouble than it is worth. I entirely agree with the right hon. Gentleman that reasonable doubt is a very good comparison.
Will my right hon. and learned Friend give way?
I will in just a second. I am sorry not to give way to the Chairman of the Committee at the moment, but I will before I finish.
I think I have made my point that people are grasping at the straws that keen human rights lawyers have presented to the critics of CMP, and trying to bring in a process to prevent them from happening. That would be the effect of most of the amendments. We have accepted the spirit of the JCHR’s amendments, and we have addressed the questions on unintended consequences.
Let us consider amendment 30 and the Wiley balance. I have just mentioned the unfettered discretion that we are giving to judges. Should we add to that discretion a confinement so that a judge would have to apply what is known as the Wiley balance, which is used in PII? I will not repeat the arguments used by my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind), the Chairman of the Intelligence and Security Committee and, I think, the right hon. Member for Salford and Eccles. PII is not the same.
The amendment that the Opposition have been persuaded to table is not actually about the Wiley balance. Whoever drafted it has realised that that would not be quite good enough for their purposes, so they have altered it by adding the words “fair” and “open”. I do not understand how, having decided that national security would be at risk and that that would be relevant to the issues, and that such a measure would be necessary for the fair administration of justice, someone might then decide that they preferred open justice and that the evidence should be given in public anyway. That is a complete non sequitur, in a way. It would be slightly absurd to do that. It would be like saying to the judge, “If you agreed with the Green party and were against the policies in the Bill in the first place, you can now throw everything out anyway because you need to consider whether you would prefer open justice, after those three conditions have been satisfied.” That would be a slight non sequitur, and it is also a bit deceptive—not deliberately; I am not accusing anyone of acting improperly—to describe this proposal as the Wiley balance. It is the Wiley balance with bits added, which some ingenious lawyer has come up with to try to put a spoke in the wheels.
I am very grateful indeed, in the circumstances, to the Minister for giving way. Did I hear him correctly? Perhaps I will give him the opportunity to correct the suggestion, which I think he pretty much made a moment ago, that the remaining opposition to the Bill has been got up by a few human rights lawyers. Will he explain, which he has still failed to do, why the only people who really understand the system—the people who have experience both of PII and CMPs; that is, the special advocates—have concluded absolutely clearly and unequivocally:
“The introduction of such a sweeping power could only be justified by the most compelling reasons and, in our view, none exists.”?
I do not think that I would conceivably use the language that my hon. Friend tries to attribute to me. Human rights Members are fervently opposed to the whole idea of CMP. They are extremely able lawyers and draftsmen. I am left in wonder and admiration at their ingenuity in producing an endless procession of amendments, so that every time their principles are adopted by the Government in amendments at various stages, a fresh set of amendments is tabled introducing new concepts that are designed to elaborate on the process. That is enough praise for my opponents, but it is ingenious.
We are not putting in the Wiley test, because we have three perfectly effective tests and complete discretion for the judge anyway. The Wiley test is used for PII, which is a quite different process that tries to exclude the evidence entirely from the judge, the claimant, the lawyers and everybody. PII is an application for total silence. We do not need to put the test in for that.
Amendment 31 is more difficult, as it requires that a CMP may be used only as a last resort. The circumstances I have described are getting pretty near to the last resort. We expect only a handful of cases, because we do not think our intelligence agencies will be sued very often. They are strictly enjoined to follow the principles of human rights, and not to connive at torture and everything else, but we do not know, and the conditions we have applied make it clear that we will only ever have CMPs in national security cases, unless a future Government try to relax them.
The trouble is that the last resort argument will undoubtedly be used for going through the whole PII process before starting on CMPs, and there are some people who want to do that. They say that they do not like the fact that the Secretary of State has to consider an application for PII. They want the Secretary of State to go through the whole process. They do not like the fact that the court has other tests for going to a CMP. They want the court to go through the whole PII process before it gets there. Why? Because it could take months or years. The Guantanamo Bay cases had hundreds of thousands of documents—it is a very elaborate process.
Will my right hon. and learned Friend give way?
I will in just a second.
There is a serious risk, in our opinion and in the opinion of those who have considered the drafting, that it will introduce a huge, expensive and discouraging process. David Anderson, the independent reviewer of terrorism legislation, has described this sort of clause as requiring the court to bang its head against a brick wall. I think the Lords Constitution Committee also said that it did not want full PII. The hon. Member for Hammersmith (Mr Slaughter), who led for the Opposition, said this:
“None of us wants exhaustive PII or a Minister tied up for a year exhaustively going through paperwork, if it were obvious to all concerned that it was not needed”.––[Official Report, Justice and Security (Lords) Public Bill Committee, 5 February 2013; c. 167.]
We are resisting amendment 31 because we think ingenious lawyers will use the argument that we have to settle down to a few years of process and paperwork to satisfy the requirement exhaustively to consider every other possible way of trying the case.
Does the Minister accept that good judges will throw out frivolous applications by ingenious lawyers? If he is concerned about judges spending too much time considering documents, why does Government amendment 47 put the same obligation on the Secretary of State to consider PII, which we are seeking to put on the judge? All we are asking is that the judge considers PII, and the Government amendment requires the Secretary of State to consider it. Rather than the defendant in a claim having to consider, why not the judge?
Let us not make this a competition about which of us most trusts British judges to make reasonably sensible decisions. I have just described how we have put the whole thing in the hands of the judge, and I think that the right hon. Gentleman agrees that a British judge will instinctively want an open hearing and will have to be persuaded to go closed, and he will only do so as a last resort—to use a colloquial term—because his or her preference will be for open justice. There would have to be a very compelling reason for going closed.
That is the trouble with the amendments. I do not say they are all wicked, but they are designed, I think, to enable people to argue that it is not good enough just for the judge to decide that the tests are settled. They could argue that the judge has to go through an exhaustive procedure and consider every other possible alternative before going ahead. I do not see what on earth that would add. It would insert into the Bill what is almost a colloquial phrase. Whoever drafted it thought, “It’s worth a shot. Perhaps we can get the full process gone through before entering the closed process.”
On a wider point, has my right hon. and learned Friend thought how much comfort this will give to their cause, in the world of propaganda, when CMPs are used against terrorists?
I have, but with the greatest respect to my hon. Friend’s expertise in this area, I must say that one of the things that most troubles me, as the Minister enthusiastically in charge of the Bill, is not just the need to save the money or the irritation of being unable to defend claims, but the considerable damage done to the reputation of our security services because they are unable to defend themselves. The House always insists on being persuaded that the security forces abide by human rights and do not go in for malpractice or unlawful rendition and so on, but their inability to defend themselves against allegations that they have done so is undoubtedly used by our enemies against our security services, and they are very conscious of it—as are our allies and those with whom we co-operate in the security field.
In order to avoid losing the thread—as far as there is one—of the Opposition’s amendment, I will make some progress.
Amendment 38 would allow the court to order the disclosure of sensitive material, notwithstanding the damage that would be caused to national security, even if the CMP would have been fair without the disclosure. That would make the Bill completely ineffective from the point of view of the main policy, on which we are all agreed, and would give the courts the sort of power that prompted our allies’ concerns following the Binyam Mohamed case. It would seem to allow the judge to look at some material, determine that it was national security-sensitive but then say that there were wider considerations and disclose it anyway. Of course, if such a disclosure was ordered, the Government would have to withdraw from the case and seek to avoid further disclosure in claims for damages.
I must conclude. I apologise to those distinguished Members to whom I have not given way.
I remind Members of the extraordinarily important objectives that we have for the Bill and which the Government’s amendments support. I do not think that the Opposition wish to destroy the policy of the Bill, but they have tabled amendments that would have that effect. The Bill will ensure that the increasing number of civil claims brought against the Government alleging British involvement in kidnap and torture are for the first time fully examined by the courts and that the agencies are better held to account for their actions both by Parliament, through the Intelligence and Security Committee, and in the courts.
The Bill will enable us to reassure the Heads of State of our closest intelligence-sharing partners that we will keep their secrets. The fact that we cannot do this at the moment has already led to the US putting measures in place restricting intelligence exchange and has seriously undermined confidence among our key allies. As I have already mentioned, the Bill will also stop us having to make unnecessary payouts to people who have not proved their case and reduce the risk of British taxpayers’ money being used to finance terrorism.
We have revised the Bill as far as we can. We all agree on the rule of law and with the principles of justice in this country, but I invite the House to apply a modicum of common sense and a sense of national security to its considerations. We have debated this endlessly. Never can a Government have been quite so responsive to the points put to them, and I fear that I must resist the further pressure.
It is a pleasure, and it is certainly a challenge, to follow the Minister without Portfolio.
On Second Reading, I welcomed the improvements that had been made by the House of Lords, but expressed the view that more significant improvements were required. I hoped that the Bill would be amended in Committee to make it compatible with the basic requirements of the rule of law, fairness and open justice, which, of course, the whole House would wish to endorse. Regrettably, however, the amendments made by the Government in Committee have removed or watered down many of the improvements made in the other place.
In an earlier report on the Bill, the Joint Committee on Human Rights, which I have the honour of chairing, considered carefully whether the Government’s amendments gave effect to its recommendations. In its second report, published last week, it reached the clear conclusion that they did not, and recommended further amendments. The day after we agreed our report, the Government tabled further amendments. I think—I choose my words carefully—that that was regrettable. We would have liked to scrutinise those amendments properly. The Minister, however, told the Daily Mail that the Government had now met every sensible legal objection that there could be to the Bill. I welcome some of the latest Government amendments, as does my Committee, but I must add that they meet only one of the seven main concerns expressed by the Committee in the report published last week.
Let me deal first with equality of arms in the ability to apply for a CMP. We welcome and support the Government’s amendment, which is the only one that gives effect to a recommendation in last week’s report. If we are to have CMPs in civil proceedings, it is vital for individuals such as torture victims who are bringing cases against the Government to have the same opportunity as the Government to apply for them, but how does the Minister propose to ensure that such claimants are aware that a CMP might help their case? Can he reassure us that special advocates will be appointed whenever the Government apply for sensitive national security material to be excluded from a case on grounds of public interest immunity, and also that those advocates will be able to communicate to excluded parties the fact that a CMP might help their case? I think that those are both very important questions.
Let me now deal with judicial balancing at the “gateway”—the so-called Wiley balance, which has already been discussed a great deal today. I support the amendment proposed by the shadow Justice Secretary, my right hon. Friend the Member for Tooting (Sadiq Khan). In fact, I shall be supporting quite a few of his amendments, not because of any party loyalty but because he is supporting my Committee’s recommendations.
The Government’s amendments removed from the Bill the Wiley balance between the degree of harm to national security on the one hand and the public interest in the fair and open administration of justice on the other. That important safeguard had been inserted by the House of Lords, following a recommendation from my Committee. As the Committee explained in its report, the purpose of our recommended amendment inserting the Wiley balance was to ensure that the court considered the public interest in the fair and open administration of justice.
May I ask whether the Joint Committee also considered the human rights of society more widely, including the right not to see millions of pounds of taxpayers’ money given to undesirable elements and individuals because cases must be settled immediately rather than explored properly, evidentially, through the courts?
I welcome the hon. Gentleman’s point. These are very important issues, and the Committee was cognisant of them.
To return to the point I was making, that purpose is not served if the Bill does not contain any express requirement that the court conduct such a balancing exercise before deciding whether to allow a CMP to be used. By deleting the Government’s new condition that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration and reinstating the Wiley balance as a precondition for a CMP, the amendment would restore a crucial safeguard for open justice.
On last resort, I support the amendment tabled by the shadow Secretary of State for Justice, which would give effect to my Committee’s recommendation. The Committee, in its report last week, explained why it does not accept the Government’s reasons for removing the “last resort” amendments made by the House of Lords, which are based on a misunderstanding of the effect of the provisions. The Government’s commitment to ensuring that CMPs are available only in those cases where they are necessary is most welcome. However, in order to give effect to that intention the Bill must be amended so as to reinstate the condition that the court is satisfied that a fair determination of the issues in the proceedings is not possible by any other means.
The requirement that the court consider whether a claim for PII could have been made must also be reinstated. The Government’s latest amendment, which requires the court to consider whether the party applying for a CMP considered applying for PII, does not go far enough, because it does not require the court itself to consider whether PII is a suitable alternative to a CMP.
As I have already argued, that sounds as though it is demanding that both the Secretary of State and the court go through the full process of PII before even getting on to applying for a CMP. From what the hon. Gentleman is saying, it sounds as though that is exactly what the Committee is contemplating, but how can that be justifiable when all the people concerned in some of these cases will rapidly come to the conclusion that they are wasting time, money and effort on a totally unnecessary exercise and it would obviously be more sensible to go into a CMP and consider the nature of the evidence?
I am sure that—
On that point, will my hon. Friend give way?
I think that the Minister without Portfolio is in danger of not understanding his own Bill or the amendments. The amendment would simply require the court to “consider” whether a claim for PII could have been made in relation to the material. That is the same word used in Government amendment 47, which proposed that the Secretary of State must consider whether PII should be used.
My right hon. Friend has explained that better than I could.
I have a question for the Minister, if he will listen to it, about the effect of the Bill on arrangements known as confidentiality rings. Will he repeat to the House the unequivocal reassurance he gave my Committee that the Bill, as it stands, makes no difference to confidentiality rings, that they will remain available under the Bill as they are now, and that the Government have no intention of taking away the possibility of such arrangements being used as an alternative to CMPs? I am not sure whether he was listening to that, but no doubt his supporters and officials can assist him later.
On the question of judicial balancing in the CMP, I again support the amendment tabled by the shadow Secretary of State. It would give effect to my Committee’s recommendation that the Bill be amended to ensure that a full judicial balancing of interests always takes place within the CMP, weighing the public interest in the fair and open administration of justice against the likely degree of harm to the interests of national security when deciding which material should be heard in closed session and which in open session. My Committee’s report explains why express provision for judicial balancing of interests needs to take place within a CMP. It is essential to ensure that the judges have the discretion they require to ensure that the Bill does not create unfairness.
Finally, on the question of gisting, I support the shadow Justice Secretary’s amendment, which, once again, would give effect to my Committee’s recommendation that this crucial safeguard be included in the legislation. On Second Reading, I said that the House needs to listen to the expert views of the special advocates and act on their recommendation that the Bill must include what has become known as a gisting requirement: a requirement that the party excluded from the courtroom must be given a summary of the closed material that is sufficient to enable him to give effective instructions to his lawyers and the special advocate who represents him in his absence. The special advocates have forcefully repeated that view in their most recent submission to my Committee. The courts have held that such a requirement is necessary in order for the legislation to be compatible with the right to a fair hearing, and the House should make it absolutely clear that that is what it intends, by writing this safeguard into the Bill.
I hope to be called later this evening to make a speech on annual renewal. On behalf of the Joint Committee on Human Rights, I thank everyone who has been contributing to this debate, because this is a crucial matter and we must all take it very seriously. I, for one, am grateful to have the opportunity to speak this evening.
It is rare that I find myself agreeing with the lion’s share of what Opposition Members are saying and not agreeing with much that I have heard from my Front-Bench team. This is particularly unusual because of who has been speaking from the Dispatch Box. I normally agree with a great deal of what my right hon. and learned Friend the Minister without Portfolio says, but I cannot agree with him tonight.
The amendments on closed material procedures may look technical but they are really about the kind of society we want to live in: they are about whether people can get to hear the case that is being made against them; they are about whether we can keep legal safeguards that we have had for generations; they are about whether we are committed to finding out how much Britain has facilitated the United States’ programme of rendition—kidnap and, in some cases, torture; and, above all, they are about what values this country is seeking to espouse and export.
Amendments 30, 31 and 34 would take us some way in the right direction, and I will be voting for them. Amendments 31 and 34 would ensure that CMP is used at the discretion of a judge only as a last resort and only if obtaining justice is impossible by other means. For the sake of clarity, let me say that that is certainly not what the Government originally intended. Clause 6(5) of their original Bill required only that
“the Secretary of State must consider whether to make…a claim for public interest immunity”
before making an application for a CMP. A moment’s thought can tell us that that was almost worthless, as I believe the Government knew right from the start; all the Secretary of State would have to do would be to think about this matter, and he could do that in the bath if he so chose.
The House of Lords rescued matters, adding another provision requiring the judge to consider whether a PII “could have been made”. That meant that the court would be required to see whether a fair trial would be possible using PII, and so it would be up to the judge, not the Secretary of State, to decide whether PII should apply. We need to be mindful—this point has not been raised today—that the Executive, in general, and Secretaries of State, in particular, advised by officials, have interests of their own to serve. Foolishly, the Government scrapped that sensible House of Lords provision in Committee and they even scrapped the then clause 6(5), which would have required a Secretary of State at least to consider a PII.
The Government now intend to replace all that with their amendment 47, about which there has just been an exchange. It will provide that before making an order for a CMP the judge must be “satisfied” that the Secretary of State has “considered” making a CMP application. How, in a secret area, consideration by the Secretary of State would really be demonstrated is still unclear. Earlier the Minister said that we do not know exactly what effect this new process will have. No doubt officials will be able to provide suitable documentation to the Secretary of State in order for him to make that judgment, but I am not yet convinced that he will not be able to consider that in the bath as well. In other words, the discretion and control will lie fully not with the judge, as Lord Woolf wrongly supposes it will in his letter in The Times, but to a significant extent with the Secretary of State.
We have been told several times, and I have also been told in correspondence with the Minister, that this is a crucial area of the Bill on which further concessions would damage the interests of both justice and security. It is worth pointing out that on this crucial issue the Government have already held three incompatible positions: first, that the Secretary of State must think about PII; then, after Committee, that the Secretary of State should not even think about PII; and now, if amendment 47 is accepted, that the Secretary of State must tell the judge that he has thought very carefully about PII. Frankly, if this were not so serious an issue, all this chopping and changing would look slightly comical.
Amendment 30 is equally important. It would enable the judge to exercise the discretion he or she has now to balance the interests of justice against those of national security in determining what evidence should be disclosed. That is what is known as the Wiley balancing test, which has been discussed and is supported by the JCHR and a large proportion of the legal profession. It is important to be clear that that should not mean that judges will permit disclosure of information that would prejudice our security. I have asked for, but have not yet been told of, any case in which a judge has made that mistake under PII so far. Judges might not be perfect, but so far they have done a very good job of protecting our security and balancing security with justice.
Will my hon. Friend give way?
I am concluding, if my hon. Friend will forgive me.
For those reasons, I shall support amendments 30, 31 and 34. In my view, they give the minimum necessary judicial discretion to the court.
I, too, intend to speak briefly as I know that a range of Members want to contribute.
My speech follows that of the hon. Member for Chichester (Mr Tyrie) and I have the greatest respect for his point of view on this issue, for the depth of his knowledge and for how he has studied these matters. The sense in the House is that people hold varying views which, in many cases, cross party lines. People feel strongly about trying to strike the right balance between liberty and security, which has been the subject of many of our previous debates.
It is right that these matters should be controversial, because they go to the heart of our legal system, protecting the rights of applicants and respondents, ensuring that the role of the state is in the proper place to hold the balance between parties, and trying to ensure that our justice system retains its respect and integrity across the world. That balance is difficult to draw and is never easy to achieve, and I say that as the Minister with responsibility for counter-terrorism who took the controversial legislation on control orders through the House. We debated them until 5 am in one of our very rare all-night sittings, which was for me evidence of how strongly people felt about these issues and how much they wanted to protect the integrity of our legal system. I share that desire.
The Bill has been debated at length and the issues have been debated in great depth. It is perhaps almost otiose to be debating them again, but a few points need to be made.
We must not forget why we are debating the Bill. If we did not need to debate it, none of us would want to introduce it. Everybody in this House and in the country believes in the British system of open justice, an adversarial system in which evidence is brought into open court and tested by the parties, allowing the judge to deliberate on the evidence and make a judgment.
We are in this position for two reasons. First, legitimate concerns have been expressed by our intelligence liaison partners, particularly in the United States of America, about the breach of the control principle for intelligence, which has put sources, techniques and capabilities at risk. That is the issue of national security, which is very much about the assets that are at risk. I am delighted that the Norwich Pharmacal provisions have gone through with agreement on both sides, which has been extremely positive, but concerns nevertheless remain about the possibility of information being disclosed in open court proceedings that could damage our intelligence relationships. That is the first reason why we are debating this issue.
The second reason is that we have seen an increasing number of claims of unlawful detention and allegations of mistreatment or torture by the security services against people who have been held in a range of different circumstances. Those allegations amount to more than 20 outstanding cases and the number is likely to increase if there is a jurisdiction within which such claims can be ventilated freely. The position has been that many of those claims have had to be settled because the evidence necessary to prove the case either way impinges on national security. That is why we have seen payments made to some claimants without having the opportunity to decide whether their claims were well founded as the evidence has not been put into a judicial setting.
I feel particularly strongly about this matter. If the security agencies have been conducting operations in a way that falls outside our framework of human rights, I want those issues to be put before a court and to be litigated. The fact that they cannot be goes to the heart of the reputation of our intelligence services. People will always say, “Well, you are settling that case because something in it was well founded. That is why you are prepared to pay £2 million, £3 million or £4 million to avoid litigation in our courts.” I want that information; I want to know what happened. Equally, if these claims are unfounded and unfair allegations are being brought against our security services, I want them to be able to defend themselves and the good name and integrity of our intelligence agencies.
Will my right hon. Friend take it from me that using the concept of national security as something to hide behind is not right either? This has been used by states all too often. We know from our history that things can be hidden behind national security issues and the truth does not come out.
My hon. Friend makes my case for me. If she wanted the information about these matters to be put before a court for a judge to decide, she would support the idea that, in a small number of cases, closed material procedures are necessary. I am afraid that I must tell her that in some circumstances if the secrets we hold, the capabilities, the agents and the capacities we have were to be put in open court, the security of our nation would be threatened. If she does not accept that—I genuinely say this with respect—she has no appreciation of the importance of those secrets to our national security.
That is completely wrong. As one who has spent many years prosecuting, dealing with issues such as PII, making applications in front of judges relating to informers, issuing evidence for public interest immunity applications and being sensitive to issues on behalf of victims, I can assure my right hon. Friend that the suggestion that we do not appreciate these things is not right. I am saying that it is possible to have these discussions and to find out what is happening. Special advocates, for example, who are experts and independent people belonging neither to the defence nor to the prosecution, have said that these particular procedures in civil cases are completely inappropriate. A criminal trial is a different matter, but these procedures are not right in civil cases.
It may well be that some people take a principled position that paying out millions of pounds is a price worth paying if they do not want to have closed proceedings. That is a perfectly legitimate place to be, but it does not happen to be a situation with which I agree. My hon. Friend talks, as many Members do, about PII, which is about excluding information; I want to be in a position where we maximise the inclusion of information and bring it before the judge.
The right hon. Lady and a number of others have fallen into the same trap as did the Advocate-General in the House of Lords, and the point was decisively knocked down by Lord Pannick when he said that the Advocate-General
“wrongly presents PII as a mechanism which, when it applies, necessarily means that the material is excluded from the trial. It is on that premise—a wrong premise…that he suggests a CMP is preferable…The reality…is that the court has an ability applying PII to devise means by which security and fairness can be reconciled”—[Official Report, House of Lords, 19 June 2012; Vol. 737, c. 1694.]—
by the use of other mechanisms. He then listed what they were. Because I am making an intervention, I will not list them, but they are obviously to do with redaction, the anonymising of witnesses and the use of confidentiality rings. There has been a serious misrepresentation of the effects of PII.
I am sure the hon. Gentleman would make an amazingly creative lawyer, if he is not already one. By any interpretation that was a list of the items that could be included. I am probably in good company if I am in agreement with the Advocate-General. There is fairly overwhelming evidence that the list that the hon. Gentleman tried not to give would not be suitable for some cases where a huge amount of the information impinges on national security.
Does the right hon. Lady accept that if sensitive material is redacted under PII, that may be the very sensitive material—the secret source, the secret technique or whatever—which is the thing that proves the Government’s case? Therefore it is not good enough to say that PII could be used with redactions, because the redactions themselves may be the key component of the evidence that the Government need to present.
As ever, my colleague on the Intelligence and Security Committee makes the point in straightforward, direct and proper terms. My understanding is that the Opposition accept that in a small number of cases it will be necessary to have closed material proceedings and that PII does not meet the case in every set of circumstances.
On the point that the right hon. Lady was making in respect of balance, there is another element that is not often discussed but which is surely central to our system of justice—the openness of it and the confidence, therefore, that the general public can have in due process. That is what this debate obscures. I grew up with Matrix Churchill, and I think the right hon. Lady’s time in Parliament coincided with that. Those are the worries that inform part of the anxiety about the Bill.
The hon. Gentleman, as ever, speaks with passion on these issues and I respect his point of view. I was a lawyer a long time ago and I understand how important it is to have open justice, but it is also important to get the balance right.
Amendment 30 is about the Wiley balance. I have some difficulty with the amendment because I feel that the Wiley balance is perfectly appropriate for PII, because it is used to decide whether to include or exclude material and whether or not there should be an open hearing. It strikes me that in relation to closed material proceedings there is a more complex and nuanced decision to make which contains different factors. I am keen that we get a balance and that we get the balance right, but I am convinced that the Wiley balance is one that we can simply transpose into the new legislation and that it will be effective.
Amendments 34 and 37 are about whether every other method has to be exhausted before we can get to a closed material proceeding. I am disappointed that there is not more agreement across the House on this. We all want to see whether cases can be dealt with in another way, because closed material proceedings should be the absolute minimum—an irreducible core, as I put it, of cases. I wonder whether the determination could be made by the Secretary of State, having considered whether PII would be suitable, and whether there could be some mechanism for the court to exercise a scrutiny function on whether the Secretary of State’s consideration had been more than cursory.
There will be concerns if the Secretary of State just ticks a box and says, “I’ve considered PII, in my bath”—as the hon. Member for Chichester said—rather than going through a proper process. I would like to see, whether or not we end up in ping-pong with the Lords, something in the Bill that says that the court has to take a proper look at the Secretary of State’s consideration of PII. That would not be exhaustive, but would have some substance to it. I ask the Minister to consider taking that into account.
The judge will have to be satisfied that the Secretary of State has considered the matter. He will not take that as just having thought about it in the bath; that is not how the judge will test whether the Secretary of State has seriously considered it. The judge has such a wide discretion that he could decide that in the fair and effective administration of justice, for some peculiar reason the case should be PII; he should not be listening to a CMP application. That would be one reason for using his discretion. Having listened to the two principal advocates of these further tests, I think they are advocating that the court and the Secretary of State should go through the whole process of PII first. That is not what the Opposition intend, but that is what their amendments would do. The Government have met the right hon. Lady’s case perfectly satisfactorily in the Bill.
I hear what the right hon. and learned Gentleman says. He has been very inventive and creative in trying to table amendments, and it would not be beyond him to put something in the Bill that reassured people that there was a proper check on whether the Secretary of State had properly considered whether other methods could be used. I leave him to reflect on that.
Amendment 70 seeks to add inquests to the Bill. It originates from my right hon. Friend the Member for Wythenshawe and Sale East (Paul Goggins) and he will speak to it with his depth of knowledge, experience and appreciation of the issue, and I simply say that I will support him on it 100%.
It is important in a justice system for people to have sufficient notification of the circumstance to be able to give instructions, but at the moment the bar is set a little high, because there may well be circumstances in which the gisting goes right to the heart of national security. Therefore, by giving a gist that is wide enough to enable instructions to be given, the national security case is given away. Again I wonder whether something could be included about there being a presumption in favour of gisting that could be subject to rebuttal in circumstances that merited it. I would feel more reassured if there were something along those lines. The process adopted so far has been an attempt to try to get some agreement and consensus on these issues. It is difficult to do so, but the issues at stake are so important, both for our national security and for the integrity of our justice system, that we need to keep trying to see whether, on a couple of those issues, even at this stage, there is room for a little more movement to get us to a better place.
It is a particular pleasure to follow the right hon. Member for Salford and Eccles (Hazel Blears). Her speech was well thought through and persuasive. We do not always agree on these issues, but on one aspect she persuaded me, and I shall say in a minute what that was. In this area of argument, which goes right to the heart of what makes British justice special and right to the heart of our national security, we are all inclined sometimes to put things rather too heavily in black and white. I have every sympathy with the agencies that are trying to preserve their own security. They have plenty of threats: past agencies, the David Shaylers, the Richard Tomlinsons, leaking their information, even Ministers—I remember that Ted Rowlands once in the House gave away some Crown jewels—and most ironically of all, Washington. Given the genesis of the Bill, some of the biggest leaks relate to our biggest ally, whether it is Pentagon papers four years ago or, only two months ago, what sounds from the British papers to be the putting at risk of the life of an Anglo-Saudi agent whom it used in one of its operations and then talked about afterwards. Nobody, certainly not I, would challenge the right of the agencies to preserve their own proper security—I stress “proper security”.
My right hon. Friend mentions how things have changed over 40 years and how things have happened. It is clear from this debate how things have moved on. The clandestine community is very different from what it was in the past. It is now scrutinised in a way that has never been done before. We can now mention John Sawyer and Jonathan Evans, names that could never even be mentioned in the Chamber, let alone in MI5 or MI6. Will he concede that we are now having to look at a new level of scrutiny, and that that is why these CMPs have to be put in place. Forty years ago, we could not even discuss the matter.
As one of the two junior Ministers who took the Secret Intelligence Service Bill through the House and asked the then head of MI6 whether he really meant this, I can take his point. But the simple truth is that we have to live up to those standards of accountability, and that means open justice wherever we can have it.
One of the interesting divides that has taken place in all this is almost a generational one. We have had closed material procedures only since—
Yes, 1997; for only a decade or two. A generation of special advocates have taken a strong stance on this, and they have taken a different stance from everybody else because they have experienced both sorts of procedure. Nearly all of them have personally understood the closed material procedure and the PII procedure, and most of them know both procedures inside out. One of the things they argue—a point made by my hon. Friend the Member for Chichester (Mr Tyrie) in his brilliant speech, every word of which I agreed with—is that PII has been misrepresented. Any special advocate will say that PII is a much more complex, judge-created, judge-evolved process than is being represented. Of course there can be simple blocking; of course, in addition, there can be redaction; of course there can be circles of confidentiality; of course there can be in-camera hearings. The Minister without Portfolio rather dismissively said that this is the system that gave us arms to Iraq. Even in that process, which involved at least one ex-Minister and one Minister in the House today, early on in the development of PII we saw one category of certificate refused, one category accepted and one category heavily redacted. That gave the court enough information to make Alan Clark face the interrogation in which he came out with those famous words “economical with the actualité”, which collapsed the case because the prosecution recommended an acquittal on the basis of the evidence.
Just to continue to emphasise the PII point that the right hon. Gentleman makes, he will be aware that at this moment and for many years in our country, covert operations have been carried out evidence from which has been used to convict people, yet the methodology used, where the operatives were and the locations were always kept secret, and that was part of the PII application. PII is not about excluding evidence, it is about including evidence, but not letting the other side know what is adduced. The majority of people seem to be working on the totally wrong basis of what a PII is.
The hon. Lady is of course right, but let me come to the point that I was driving towards, which is that none of the systems that we are talking about is perfect. PII clearly has weaknesses. Everyone who has spoken has said something to that effect, and the hon. Lady was particularly correct about that; there are weaknesses to PII. We should not accept that that is the perfect outcome either.
My right hon. Friend rightly says that in PII, because people do not like excluding all the evidence, there is a perfectly legitimate argument about how much we can gist and how much can be redacted, and then it can be put into the open court. But everything that does not get there is entirely left out; it is not available to claimant, judge, lawyers or anybody else. In a CMP, exactly the same thing can be done, because the judge will be required to consider how much we can gist, how much we can redact, and what can be shared with the defendant. The only difference is that in a CMP, the evidence, including, as my right hon. Friend said, some things that might be absolutely key to the case that cannot unfortunately be disclosed, can be considered by the judge. PII shuts out all that which is not possible to gist. With a CMP, there can be all the gisting and redaction that one wants, but all the evidence is considered.
I give way to my right hon. and learned Friend.
As a Minister who signed a PII certificate in the Matrix Churchill case and was vindicated by the Scott inquiry for having done so, may I say, yes, of course, some things can be permitted through PII? As my right hon. and learned Friend the Minister said, the real issues that would damage national security cannot be considered either by the judge or by anyone else. My right hon. and learned Friend perhaps does not appreciate that even when closed procedures may be approved by the court, once special advocates have been appointed, if the special advocates, having had access to the secret material, put forward a convincing case to the judge that some of that need not continue to be held under closed procedures but can be held in open court, the judge, if so persuaded, is perfectly free to do so. The special advocates themselves, unlike their clients, can put forward that argument, and have done so in immigration cases, and that point has not been mentioned in this debate so far.
I do not dispute any of that; that is where I am coming to with respect to the attitude of the special advocates. Clearly, of the two they do not like CMPs, for reasons on which I am about to elaborate. That means not that CMPs should be impossible to use, but that restriction should be the order of the day.
The best outline of the weakness of closed material procedures came from Lord Justice Kerr, who effectively said—I am now desperately paraphrasing—that unchallenged evidence can be “misleading”, which was the word he used. That came up any number of times during the Lords debate from a number of lawyers. Helena Kennedy, for example, cited a case in which a tape recording of a conversation that appeared to incriminate a defendant was played in court. When the defendant heard it, he said, “I’m sorry, but I left after about five minutes.” People listened carefully and could hear the door opening and closing as he went. So a piece of evidence that appeared to be incredibly incriminating became not incriminating at all. David Anderson put a similar point to the Lords Committee when he was giving evidence.
The issue of challenge is important; it is critical to our judicial process—completely different from any other judicial process around the world. The challenge is vital. Without it, the judicial process is not operating properly. That is why we have to take on board what the special advocates say and effectively build it into the structure of the Bill—to create, as it were, a hierarchy. We have to go through that thought process.
I am cognisant of the point made by the Minister without Portfolio. We do not want a Minister to be pinned down for a year working on one PII. I am sure—indeed, I know from experience—that some of the Guantanamo cases are incredibly complicated and involve very many documents. I do not think it is beyond the ken of the House to achieve that.
I will support the Opposition’s amendment today, although I am open to argument if we can find better wording to get what we are trying for. I am talking about a hierarchy, a priority—first, open hearings; then the PII process, if that is appropriate; if it is not, CMPs in the final analysis. I agree with my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind) that the process should be more open than it currently is.
The right hon. Gentleman is making a characteristically interesting speech. He has referred several times to a hierarchy in relation to openness, in which he places PII above closed material procedure. I am sure that the House would be interested to know his rationale.
All right, let me give the right hon. Gentleman an example. The question is whether or not there can be a challenge; if the evidence can be in court, it should be capable of being challenged. There is an example that goes back to 2006 relating to the current CMPs used in the Special Immigration Appeals Commission. I shall read from the Press Association release:
“A judge in a secret hearing has criticised the Home Office over contradictory MI5 intelligence in the trial of two terrorism suspects. The intelligence only came to light because—by chance—the same barrister was acting in both cases.
Mr Justice Newman said the ‘administration of justice’ had been put at risk in the trial of Algerian Abu Doha and a suspect known as MK…Both sets of contradictory evidence had come from MI5.”
There had been a false passport that was claimed to have been used by two different people in two different places at the same moment on the same day—clearly impossible. That became apparent only because the same barrister was acting as a special advocate in each case. The problem is that there was no process of challenge; if there had been, the contention would have been denied and struck out. As it was, both cases were struck down because they were clearly implausible. The process of challenge is vital.
For that reason, I am entirely with what the Joint Committee on Human Rights wants—gisting, if it is possible.
Forgive me, but I am just coming to an end.
The right hon. Member for Salford and Eccles was persuasive in arguing that if there is to be some sort of opt-out on gisting if things are really serious, only the judge should decide that. I take that point, and it is a good argument. There should be proper, explicit judicial balance in the decision to go to a CMP that takes into account all the interests of justice, and not just national security. There should be the argument of strict necessity; that is what I mean by the hierarchy. On that basis, the House could come to a conclusion in which we effectively have the best of all worlds.
I begin by drawing the House’s attention to the fact that, along with Her Majesty’s Government and an official, I have been a defendant in civil actions brought by two Libyan nationals and their families— Mr al-Saadi, whose case was settled just before Christmas, and Mr Belhaj. In the case of Mr Belhaj, proceedings are still active; in the circumstances, I am sure the House will understand how constrained I have to be in respect of those matters at present. I hope to be able to say much more about the cases at an appropriate stage in future. However, I should make it clear that at all times, in all the positions that I occupied as a Secretary of State, I was scrupulous in seeking to carry out my duties in accordance with the law.
My purpose in rising to speak now is to explain why I believe that the Government’s formulation for the conditions for a closed material proceeding are to be preferred to those of the Opposition. However, I want to make two more general points to begin with.
First, the freedoms that we in this country take for granted are built on our system of justice, which is among the very best in the world. It is independent, fair and fearless—and it is transparent, for the very obvious but crucial reason that justice must not only be done, but be seen to be done. It follows that we should permit departures from that principle of openness only in the most exceptional circumstances.
Whenever Parliament has been asked to agree to having part of a court’s proceedings in camera or to having the identity of witnesses, or most seriously the evidence itself, withheld from one of the parties to the proceedings, it has scrutinised the legislation with the greatest care. It has nonetheless been convinced that, in some cases, the interests of justice do require such special procedures.
Thus in 2008, Parliament agreed, in the Criminal Evidence (Witness Anonymity) Act, new statutory procedures for the taking of anonymised evidence in criminal trials. That evidence has to be heard by the defendant and the jury, but its origin—the names involved and often the exact circumstances in which it came to be produced—is kept secret and away from the defendant.
More relevantly to today’s proceedings, in 1997 Parliament decided on a cross-party basis to establish the first arrangements for closed material proceedings in respect of persons whose deportation had been ordered on grounds of national security but where the evidence against them could not safely be disclosed to the deportee or their representatives.
I note what the special advocates have said, because we are all reluctant to see such a system operate, although it has to because it is better than any alternative. In the intervening period, that system has worked for the Special Immigration Appeals Commission, and worked reasonably well. The senior judges who preside at these proceedings, in SIAC, have shown themselves to be robustly independent. Of 37 substantive cases before SIAC since 2007, the tribunal—a senior judge with colleagues—has found against the Government in at least seven. The procedures in the Bill build on the 15 years’ experience of SIAC.
Secondly, I commend my right hon. Friend the Member for Tooting (Sadiq Khan) and his colleagues for the constructive approach that they have adopted towards the Bill. I spent 18 years on the Opposition Benches between 1979 and 1997 and then witnessed the Conservative Opposition during their 13 years on these Benches. The temptations on Oppositions to oppose in a destructive way are considerable, and so too are the pressures from outside on them to operate in that way. We in my party succumbed to those pressures too often in 1980s, and, I am afraid, so did the Conservative party on many occasions, including on Bills like this, during part of its 13 years in opposition.
By contrast, my right hon. Friend and his colleagues, from the outset of the publication of the Green Paper—I well remember his response to that a year and a half ago—have accepted, as he said in his opening remarks, that there may be circumstances in which closed material procedures have to be applied in civil cases, but argued that there should be greater safeguards in the Bill and, crucially, that the court, not the Secretary of State, should decide whether a CMP should operate in any particular case. As a result, the Bill has been significantly improved, and my right hon. Friend and his team can rightly claim considerable credit for that.
Let me turn to the key amendments 30 and 31 and the amendments to which they are linked. The amendments seek to reword clause 6(6) and to add a third condition. Thus the Government propose,
“The second condition is that it is the interests of fair and effective administration of justice”
to use a CMP, while the Opposition instead propose that the second condition should be a relative one—that
“the degree of harm to the interests of national security if the material is disclosed would be likely to outweigh the public interest in the fair and open administration of justice.”
They also propose to add:
“The third condition is that a fair determination of the proceedings is not possible by any other means.”
As the Minister said, this is colloquially called the Wiley balance test. However, when I looked at the definition of the Wiley test I noted that the Joint Committee on Human Rights has turned it into something else. It is a test, but it should not be adorned with the phrase, “the Wiley test”, because it goes considerably further. I do not dispute anybody’s motives in dealing with this incredibly difficult issue. However, shifting the test, even if it were the accurate Wiley test in respect of PIIs, to CMPs has the defect of arguing by analogy. It is appropriate in PII cases but not in this regard.
We have had a great deal of elucidation. I commend—but do not, with respect, agree with—what the hon. Member for Chichester (Mr Tyrie) said about the uses of PIIs. I also accept the comments of the right hon. Member for Haltemprice and Howden (Mr Davis). During the nine years for which I was responsible for the various agencies, I quite frequently had to make applications to a court for a PII. Even in respect of marginal evidence, PIIs are hugely time-consuming. It is not like dealing with a letter to a Member of Parliament on an issue that one knows backwards where one can virtually top and tail it in one’s sleep. One has to read every single piece of evidence that one is certifying ought to be—in one’s own view, although it is a matter for the court—excluded on grounds of national security, or whatever the grounds may be. I accept the burden of what the right hon. Member for Haltemprice and Howden and the hon. Member for Chichester said. Yes, it is true—this was brought out by the court’s judgment in al-Rawi—that when the court receives an application for PII it is able not only to accept or reject it but to take a middle way—a third way, as it were—of gisting, confidentiality rings, and so on.
However, the profound difference in this regard is that ultimately, if the respondent party, which in civil cases is inevitably the Government—it is completely different in criminal cases, but this is not about criminal cases—do not like the decision that the court has come to, they have to decide not to contest the case at all. That is why there is a lacuna in the current arrangements, and that is the mother and father of this Bill. That does not apply in respect of CMPs, where the Government will not be able to use PIIs to exclude evidence as they can now, because the judge will say, “Hang on a second. Why are you applying to exclude evidence which is absolutely central to the case? You need to put it in, and I will decide, thank you very much, whether it should be kept completely secret or there ought to be some kind of gisting or summary of that evidence.” The right that accords to the state in respect of PII does not accord to it in respect of CMPs.
PIIs have taken on a life of their own, with some people having suddenly decided that they are a touchstone of British justice. They are being presented as though they are a better alternative than CMPs. I signed all the PIIs that I dealt with, as others in this House have had to, with a great burden on me and while looking at the evidence. Like anybody else, I did not just do what I was asked to do. Rule No. 1 to anybody in a ministerial position who wishes to survive is every day never to do that which they are asked to do but to make their own decisions. That is what I did, and I am still here. At the heart of PIIs is the application by the relevant Secretary of State to exclude evidence. The paradox is that the more sensitive and secret the evidence, and the more crucial it is to a case, the more likely a judge is to exclude it altogether rather than allow it to be gisted or summarised, and so the interests of justice are not served.
Interestingly, unless things have changed since I made PII applications, special advocates have no role in the PII process. Nobody challenges what the Secretary of State has done apart from the poor old judge, whereas in respect of applications for CMPs there will be special advocates acting like terriers, as we have seen from SIAC. As the right hon. and learned Member for Kensington (Sir Malcolm Rifkind) said, if at any stage the special advocate believes that the CMP should not continue, he or she will make an application to the judge.
The right hon. Gentleman said that he is still here, and I think that the House very much appreciates that given what he is offering to the debate with his experience. Does he agree that, as my hon. Friend the Member for New Forest East (Dr Lewis) said, PIIs offer an opportunity for judges to redact information that could otherwise be used in the processes proposed for CMPs, or for that argument to be put forward?
Of course. Those of us with experience of SIAC will know that it too could be seen as a parody of a secret court. In SIAC cases, the chairman of the tribunal, who will be an experienced senior judge, issues a closed judgment with all the argument in it and a redacted judgment with a very great deal of evidence in it. The idea that it is—fortunately nobody in the Chamber has used the term, “a parody”—a secret court worthy of Kafka’s “The Trial” is, frankly, utter nonsense.
It is helpful for those of us who are amateurs with regard to these issues to benefit from the right hon. Gentleman’s judgment. He has referred a couple of times to the administration of SIAC. My understanding of and opposition to CMPs results from the case of a constituent who was subject to the restrictions of SIAC. His understanding of, and the way in which he was treated by, the criminal justice system and the impact of that form of justice on his physical and mental well-being are some of the reasons why I am emboldened to oppose the Government’s measures. Now that the right hon. Gentleman is no longer in office, has he had the opportunity to meet people who have been subject to CMPs in order to understand the implications that SIAC has had for their lives?
Let us be clear that SIAC does not deal with criminal cases. There is no procedure in our system, north or south of the border—and nor should there ever be—whereby, in any criminal trial, somebody can be tried and lose their liberty without being able to hear all the evidence.
I recommend that the hon. Gentleman not test me on the details of the Criminal Evidence (Witness Anonymity) Act 2008, because I know every part of it and why we had to go through with it.
I cannot resist the temptation. To amplify the point that was just made by the hon. Member for Bedford (Richard Fuller), does the right hon. Gentleman agree that in SIAC cases, as happened in control order cases, people’s liberty could be significantly curtailed without them knowing the evidence against them?
Of course I do, and that was going to be my next point. No one is suggesting that SIAC deals with trivial matters. It deals with whether an individual should be deported on national security grounds, while the control order tribunals deal with restrictions of individuals’ liberty.
I have met one individual who was subject to a control order and will tell the hon. Member for Bedford (Richard Fuller) about the circumstances outside the Chamber. The heart of the issue is about protecting our national security. That has been discussed in abstract terms today, but what we are actually debating is how to protect the sources of information on which intelligence depends. These individuals are developed by our intelligence and security agencies and they place themselves at considerable risk. In essence, they provide information to the United Kingdom—as they would to a foreign intelligence agency—that they are not supposed to provide. Sometimes they betray their own Government or country. They are, by definition, giving away confidences and they do so for a variety of motives: some say that they are doing it for the highest of motives, which are that they fundamentally disagree with the system in which they are operating; some do it for the lowest of motives, because they have committed a criminal act and want some form of escape; and some are somewhere in between, in that they have high motives but they also want some money.
In every case, that information would simply dry up if the identity of that individual, or information leading to their identification, was compromised. That is the fundamental dilemma, and there is no way out of it unless we want to abandon our intelligence and security agencies. Let us remind ourselves—this is not scare- mongering; it happens to be true—that, had we abandoned those agencies, scores of serious atrocities would have killed our constituents and many others. If we had explained how we had ended up in such a situation by saying that information had to be provided in its entirety in open court in all circumstances, people would have said, “Thanks very much, but my relative, wife or child has just died.” That is the dilemma and it is not abstract—it is absolutely real.
Will my right hon. Friend give way?
I hope that my hon. Friend will allow me to make progress, because I have already used up a lot of time.
This leads me back—I will finish shortly—to the reason why, with great regret, I cannot support the endeavours of my hon. Friends on the Front Bench to set a relative test that
“the degree of harm to the interests of national security if the material is disclosed would be likely to outweigh the public interest in the fair and open administration of justice.”
That could lead, inadvertently and unintentionally, to a situation in which a judge might decide that the identity of an agent or other crucial information about the work of our intelligence agencies needed to be disclosed in the interests of open justice. We have to accept that the justice under discussion is, by definition, not open. It cannot be—we cannot have it both ways. There is no dubiety about that. I understand why the test has been proposed, but it does not work.
Finally, many Members have reputations as liberals, including the Minister without Portfolio, the hon. Member for Chichester and many on the Liberal Benches. I have never sought that reputation, and nor has it been offered to me, but Lord Woolf, the former Lord Chief Justice, is someone of impeccable liberal credentials—he even lives in Barnes. He wrote in a letter to The Times that the Bill as drafted
“now ensures that we will retain our standards of general justice, while also putting an end to the blindfolding of judges in this small number of cases.”
To be frank, if it is good enough for the liberal Lord Woolf, it ought to be good enough for this House.
Order. I ask Members to show some time restraint, because, as they can see, a lot of Members want to speak to the amendment.
It is a pleasure to follow the right hon. Member for Blackburn (Mr Straw). Although I am not sure that we agree on everything, I think we do on some things. There have been some interesting discussions between Front and Back Benchers.
I want to focus on some of the amendments. I am pleased to see the recommendations of the Joint Committee on Human Rights, which I used to have the pleasure of serving on. I pushed a number of those proposals during the Bill’s Committee stage and we had interesting debates and votes on a range of things. I do not plan to go through every single aspect, because we rehearsed them thoroughly. I am delighted to see that a number of the amendments that I tabled and supported in Committee have come back.
I hope that the Minister will clarify the position on habeas corpus. Indeed, I would be happy to take an intervention from him, because it is a very important issue. I was happy with his clear answer of no. If he can stick to that, it would be fantastic; if not, we should be clear.
I welcome some of the Government’s good amendments. One that has not really been mentioned—it was tabled in the Lords and accepted by the Government—is that which changes “must” to “may”, allowing discretion to the judge, rather than the Minister. That is very welcome and has made a significant improvement. I am pleased that the Government have stuck to it.
I am also pleased that the Government have agreed to amendments on equality of arms to achieve true symmetry. They were recommended by the JCHR and I spoke to them at great length in the Bill Committee. We lost the vote, but I am glad that the Government have now come around to them. Symmetry is important, because one can think of a number of examples where an ex-employee of MI6 may not be able to raise publicly a document that is important to a case that they may wish to bring. In such circumstances, they may wish to have a CMP themselves so that the document can be debated without putting other things at risk. Such cases may be relatively rare, but ensuring pure symmetrical equality is absolutely the right thing to do.
I am also pleased to see reinstated, at least in the text of the Bill, the role of public interest immunity. There is a debate about whether it goes far enough and about what it does, but including it in the Bill is extremely good. I share the view of those who think that PII is not a perfect process. I do not like the secrecy involved, and there is certainly not a great case for it—we have seen, for example, some of the concerns in the Litvinenko case.
There is an issue with regard to last resort. I would like to see closed proceedings as a last resort. I do not think that this is entirely about openness; it is also about fairness and the principle that both sides should have the chance to see the same evidence. I think that it would be accepted everywhere that a CMP can never quite get to that point, because one person is not able to see everything. That is not a great situation.
May I reinforce the point that has been made to the Minister without Portfolio by Members from across the House? The Joint Committee on Human Rights did not argue for an exhaustive exploration of PII, but for an assessment by the court of whether PII would be a realistic and sensible option and, if not, for the court to move on and look at other things. The Minister has said that that would be reasonable, so I do not think that there is much between him and those of us who take the position of the Joint Committee. I hope that we can reach agreement on that, even if it does not happen tonight, because the Joint Committee was clear that what we are arguing for is not an extreme position, but a moderate, modest, sensible and pragmatic one.
None of us wants to see Ministers’ time sucked up for a year reading documents and signing them. That would not be in anybody’s interests.
Why do we believe in the concept of last resort? The Government have an advantage in these cases because they know what the evidence is and the other party does not. That is why we want more balanced processes to be tried first. That changes slightly if the other party has applied for the CMP. To take the case that I advanced earlier of an ex-employee who knows of a document, we should probably say that a CMP would be the preferred option for them, rather than allowing the Government to keep something away. We want a slight bias away from the Government—not a huge bias, but a slight one—to make up for their advantage of being able to see all the documents.
On the hon. Gentleman’s point about the last resort, I am grateful that both the Labour party spokesman and the Liberals who have spoken so far have agreed with what we have said. We do not want a statutory provision that requires people to go through immense procedures to eliminate every other way of dealing with a case. Unfortunately, there are later Opposition amendments that would have that effect. It is very late in the day. In conversational terms, we are all agreed that closed proceedings are a last resort. We want closed proceedings only when national safety is in danger and where there is no other sensible way of trying the case. I will go away and consider the matter, but we are rather late in the proceedings. Of course, the rules of the court still have to be made and it may be possible to address the matter there. In practice, there is not much between us, because judges and lawyers will not want to go into closed proceedings other than as a last resort. What we do not want is to introduce a process that involves months of time and vast sums of money, the intention of which is really to stop anybody taking on a closed procedure at all.
I thank the Minister for saying that he will look more carefully at the matter. However late in the day it is, we would be grateful for any changes he could make that might take us in the direction of what has been suggested by the JCHR and others.
While the Minister is in the mood for looking at other issues, can he be absolutely clear about confidentiality rings? This matter was raised earlier, so I will not go into it. As was discussed in Committee, there is a change in the wording that has led to the impression that the test is about the material rather than the disclosure. I hope that it will be made very clear that there is no sense in which that would apply to confidentiality rings. I believe that Opposition amendment 28 is intended to explore that issue.
I look forward to supporting any of the amendments that would take us towards the proposals of the JCHR. I look forward to amendment 1 being debated and for any opportunity to test the will of the House on that issue.
I was surprised to see amendment 70 and I look forward to the explanation from the right hon. Members for Wythenshawe and Sale East (Paul Goggins) and for Salford and Eccles (Hazel Blears). I am pleased that, owing to the influence of the Liberal Democrats, inquests were taken out of scope after being included in the original proposals. It is important, particularly at an inquest, that the family knows the grounds for the conclusion. It would be very unsatisfactory for people who had lost a loved one to be told, “We cannot tell you why it happened.” I am pleased that inquests are not included. I am surprised that there is a move to put them back in. I had hoped to ask the shadow Secretary of State whether he supported that move, but I suspect that I can guess the answer.
Amendments 39 and 40 relate to gisting. My hon. Friend the Member for Edinburgh West (Mike Crockart) and I tabled similar proposals in Committee. I find it hard to see why there would be many cases in which a judge would not want a gist to be made available. We want that to happen. I understand that there may be cases in extremis where no gist would be possible. It would be helpful if the Minister made it clear that it is the intention that judges should always gist to the maximum extent possible. As long as that is said in this place, I think that we will be able to make progress.
The hon. Gentleman makes a good point about gisting. In an exchange with him in Committee, the Under-Secretary of State for the Home Department, the hon. Member for Old Bexley and Sidcup (James Brokenshire), gave a verbal assurance that gisting would be an acceptable way of proceeding. If that assurance was repeated today, and then taken with what the hon. Gentleman has just said, it would give a good indication of Parliament’s intention and would probably satisfy the point.
I dare say that it would. We will have to see what happens.
To return to the principle, I talked earlier to the right hon. Member for Blackburn about the range of civil proceedings into which the previous Government introduced close material proceedings. I find many of those far more objectionable than civil cases. I do not like the introduction of closed material proceedings into civil cases and find the principle very difficult. However, I find it worse when people’s liberty is at risk. That is the case with control orders, terrorism prevention and investigation measures, and SIAC.
I know something of the case referred to by the hon. Member for Bedford (Richard Fuller) because we have discussed it in the past. The gentleman referred to has had his liberty seriously infringed. It is not a simple question of whether he is allowed to stay in the country or not. He has been detained for a considerable time now, given that it is two years since we last spoke about the case in great detail, based on evidence that he does not have the chance to see. That strikes me as deeply alarming. I am sure that the whole House would hold the position that criminal sanctions should not be allowed. We are edging very close to that if we are detaining somebody for years.
None of us likes the idea of closed proceedings or proceedings in which the evidence is kept from one of the parties. However, on the assumption that the court has decided that the evidence cannot be made available in open court because another individual, perhaps an informant or an agent, could be killed—I am not joking—what is the hon. Gentleman’s answer to this dilemma? Is it to leave the person at liberty or to do what used to happen in the past, which was that the Home Secretary would make such decisions without any proceedings? What is his alternative?
I think that it is the same as the right hon. Gentleman’s alternative would be in a criminal case for which the evidence needed to convict somebody could not be gathered. If one cannot gain that evidence, one cannot proceed. It is important that that applies when people are being deprived of their liberty. I made the same argument when we were getting rid of control orders. One must try to provide the evidence that is needed to convict people. Failing that, I do not like the idea that people are simply held for many years, with very little freedom. I believe that control orders had 23-hour curfews. That is an extreme infringement of liberty. I know that we are not discussing criminal issues principally, but there are many cases in the criminal system in which the police are sure that somebody is guilty, but they cannot find evidence that may be used in court. None of us would want to see such cases proceed and the same should apply to any other serious deprivation of liberty.
I look forward to the votes. It is not clear to me exactly which matters we will have the opportunity to vote on. I will stand by all the votes that I cast in Committee, where we came very close to changing the Bill, but never quite close enough. I think that we won one vote on a new clause being read a Second time, but the decision was reversed immediately afterwards by the Chairman’s casting vote. I hope that we will change the provisions either so that we do not have these proceedings, which would be my ideal, or we at least move them closer to the proposals of the JCHR. I accept that we should not keep every word of what the Joint Committee suggested and that tweaks could be made. I hope that the Minister will consider that at the point at which he confirms the position on habeas corpus and my other questions.
I may have misheard, but the hon. Gentleman is not rejecting closed material proceedings altogether, is he? He would be the first person in the debate who has gone that far if that is what he is saying. He suggests that he might vote against clause 6. Two Members from smaller parties have tabled an amendment that would delete that clause. That would take us right back to square one after we have spent the last three hours agreeing that there are cases in which national security requires there to be closed proceedings.
I am sure that the Minister will be aware that I and my hon. Friend the Member for Edinburgh West did press for a vote in Committee to remove clause 6. Sadly, it was defeated.
I look forward to hearing the Minister’s responses on habeas corpus and the other points that I have made because what he says may well affect what happens, and liberty is a very important principle.
Order. May I re-emphasise the time constraint?
I am pleased to speak in favour of my amendments 1 to 7, and I hope to press amendment 1 to the vote. As colleagues will know, they are designed to get rid of part 2 in its entirety. That part would allow Ministers to use secret courts in a wide range of cases, for example any in which they could claim that national security was involved.
Let us look at some examples of when secret courts could be used, such as the cases of the bereaved families of soldiers bringing negligence claims against the Ministry of Defence. Debi Allbutt, whose husband was killed in a so-called friendly fire hit on his Challenger tank in Iraq, has said:
“I really don’t think people in the country realise how dangerous this new law will be for justice. I think anyone in my position deserves to know the truth about how their husband, a brave soldier fighting for his country, lost his life.”
Let us think of cases involving victims of torture or rendition in which the Government have been involved, who are seeking redress. They would also be affected, including such people as Khadija al-Saadi, who was 12 years old when she was rendered by MI6 to Gaddafi’s Libya along with her mother, three younger siblings and Gaddafi-opposing father. In a letter published by the prisoners’ human rights group Reprieve, she has said:
“I wrote to Ken Clarke when I heard about the secret courts plan, but he would not say that he would not seek to try my case in secret. I still feel this would have been unnecessary, unfair, and unworthy of the UK. I hope the inquiry will be as open and as fair as the phone hacking inquiry.
Secret courts could also be used in actions against the Government over corruption in arms deals. On Second Reading, Ministers refused to rule out the possibility of that in some cases:
“if there was embarrassment over arms sales to a particular country, where those sold arms had been used to deny the human rights of many others, against the policies and wishes of this country, and there was a desire not to make that too public”.—[Official Report, 18 December 2012; Vol. 555, c. 722.]
A case of corruption in arms deals is therefore another that would not be held in open court.
Habeas corpus claims are at risk, too. Claims under the centuries-old safeguard against illegal detention, which forces the authorities either to charge or release a prisoner, are generally considered civil actions, so secret courts could mean people being imprisoned without knowing why. That was exactly what the Under-Secretary of State for the Home Department, the hon. Member for Old Bexley and Sidcup (James Brokenshire), said in the Public Bill Committee—that the Bill would cover habeas corpus claims. My new clause 2 would address that.
The question this evening is whether we really want to allow the Government to ensure that everything from state involvement in torture to the neglect of British soldiers could be hidden from public view. After a decade that has seen our intelligence agencies become involved in unprecedented complicity in wrongdoing, we should ask how we can prevent that from ever happening again, not how to remove the safeguards that allow us to hold the state and its agencies to account. That is especially true when, as the high-profile case of Binyam Mohamed has amply illustrated, the security agencies have shown that they are prepared to mislead the judiciary, and given that judges tend to defer to Ministers when faced with arguments about national security.
I take it that the hon. Lady’s case is that better than a closed material procedure is public interest immunity, in which case nobody ever gets to hear anything about what happened and what evidence exists.
Like the special advocates and many others in the legal profession, I believe that PII is a safer way forward than having hearings in closed courts, and I stand by that.
On a related point, the Government are currently obliged to settle cases, with none of the evidence ever being disclosed and no hearing at all. They never go before a judge. How would deleting clause 6 assist in ensuring that there is justice in such cases? At the moment, there is no trial at all.
I would argue, and a huge amount of legal opinion argues with me, that secret courts are a worse option. We would not choose either option, but I strongly believe that closed courts are a step too far for British justice.
I agree with the thrust of the hon. Lady’s speech. Does she accept that one problem with the secret courts process is that it would create a culture of impunity among the security services and allow them to develop relationships with other security services knowing that they would be protected and would be unlikely ever to have to face anybody’s wrath?
Indeed, and I pointed out earlier the complicity of the intelligence services. Such arguments are mounting up, and they explain why opponents are lining up to denounce the Government’s proposals for closed material procedures. The special advocates have called them “fundamentally unfair”, and the former Director of Public Prosecutions, Ken Macdonald, has warned that secret courts will
“damage public confidence in our judiciary”
“not fair because they are not balanced”.
The Law Society and the Bar Council have warned:
“Secret trials and non-disclosure of evidence are potential characteristics of repressive regimes and undemocratic societies.”
The Equality and Human Rights Commission has published expert legal advice finding that secret courts are
“incompatible with the common law right to a fair trial”
“incompatible with article 6 of the European Convention on Human Rights”.
On that point, is the hon. Lady aware that closed material procedures are already used by, for example, the Special Immigration Appeals Commission, and have been held not to be incompatible with the European convention? Is she not waving her shroud a little too strongly?
As somebody who has a constituent who has been subject to SIAC, I can assure the hon. Gentleman that I am not waving my shroud nearly strongly enough. The SIAC process is inhumane. We can discuss later whether it falls foul of article 6, but the idea that because we already have CMPs in that example it is somehow appropriate to export them to civil cases is misguided.
The hon. Lady is making a strong point about the continuation in a new area of a procedure that applies in certain areas. What does she feel will be the implications for how British justice is perceived around the world, in countries where we would like the standards of our justice system to be adopted, if we proceed with the proposal in the Bill?
That is a good question. We like to hold our justice system up as an example to the world, yet if we go down this route, we will fundamentally undermine some of the principles of British justice that we have rightly been proud of for many years, and people around the world will look on with genuine shock.
Last week, more than 700 figures from the legal profession, including 40 QCs, had a letter published in the Daily Mail—not a newspaper that I have often quoted in the Chamber—stating that the proposals in the Bill to allow a huge extension of court hearings behind closed doors would
“erode core principles of our civil justice system”.
They argued that if the Government’s changes were allowed to go ahead, they would
“fatally undermine the court room as an independent and objective forum in which allegations of wrongdoing can be fairly tested and where the Government can be transparently held to account.”
The proposals, they concluded, were “dangerous and unnecessary”.
The Scottish Cabinet Secretary for Justice also has serious concerns about the Bill’s provisions relating to closed material procedures in certain civil proceedings, and the Scottish Government have concluded that they are
“unable to support any extension—under any circumstances—of the Bill into devolved areas.”
I understand the thrust of the hon. Lady’s argument and the position that her party takes, but does she recognise that the House’s first obligation is the protection of the nation? One way in which we thwart many potential attacks against this nation is through our work with intelligence services from other countries. If we go down the route that she suggests, that relationship will break down. No other country will trust us with information if it is then exposed in court, which will make our country even more vulnerable to attack.
Is the hon. Gentleman seriously suggesting that, right now, other countries are not sharing their information with us because of the current situation?
Yes, that is exactly what happened.
I disagree with the hon. Gentleman. No one is suggesting that PII will not still be available so that we can have measures such as redactions.
It is generous of the hon. Lady to give way to me a second time.
As a member of the Intelligence and Security Committee, I have spoken to members of the Obama Administration and the American agencies, and they are quite emphatic that they are now giving us less information than before the Binyam Mohamed case.
Well, all right. I stand corrected by the right hon. Gentleman, but if he is suggesting that we go down the route that the US has been going down over the past few years with the invasion of Iraq and everything that has gone with it, that is up to him. It is not the road that I want to go down.
I have received a huge number of e-mails and letters from constituents who argue that although our legal system is not flawless, the new measures are an attack on its founding principles. Any Liberal Democrat Ministers and MPs who back part 2 of the Bill do not have the support of their party members who voted at the party conference last September to oppose secret courts. I therefore remind Liberal Democrat colleagues that party members have reaffirmed their opposition to secret courts as well as their commitment to the rule of law, open justice and holding the Government to account, the right to a fair trial and the protection of civil liberties. They have called on Liberal Democrat MPs to vote against part 2 of the Bill, and I hope that colleagues will bear that in mind when we come to vote.
Will the hon. Lady give way?
I will make a little more progress.
The TUC has taken a similar line and passed a motion that condemns secret courts as posing a significant threat to public security and accountability. Such widespread opposition stems not just from principles, because there is a complete lack of evidence to back up the proposals in part 2 of the Bill. The Bill is about security yet the Government do not claim that closed material procedures would do anything to promote national security. Indeed, they accept that the existing process of public interest immunity already provides effective safeguards for that process.
The Government have been unable to demonstrate that the courts cannot resolve issues fairly because they lack recourse to secret courts. They refer to 20 or 30 cases that they say require closed material procedures, yet they have refused so far to allow any proper access to the details of those cases so that their claims can be evaluated for accuracy, for example by the special advocates. As the Joint Committee on Human Rights stated, the Government have not demonstrated with evidence that there is a real and practical problem. Until they can prove that public interest immunity is not sufficient, there can be no justification for the introduction of closed material procedures. Even then we would need guarantees that the basic rights and principles of justice are not being undermined.
There have been attempts to amend part 2 of the Bill; indeed, I have tabled a new clause to limit the circumstances in which closed material procedures can be used. Let me be clear, however, that that is a last resort and the best option by far remains to scrap part 2 of the Bill. The amendments that have been tabled by the House of Lords only slightly modify the process by which a secret court is imposed on a case. Even if closed material procedures are considered a last resort after public interest immunity is exhausted, simply having such a measure on the statute book is likely to lead to its increased use.
Hon. Members will be aware that the Government are seeking to undo many of the changes made by the House of Lords, claiming to have listened to widespread and grave concerns about the Bill. They effectively want to reinsert the original test for triggering closed material procedures, thereby scrapping the requirement that such procedures are a last resort once a judge has decided that a fair determination of proceedings is not possible any other way. That removes the only real bar on secret courts becoming routine in civil cases, and negates the move to introduce judicial discretion. In common with the Government’s recent amendments that require the Secretary of State to report annually to Parliament on closed material procedures and keep their use under independent review, such measures are frankly just tweaks that leave intact the core of the Bill. Secret courts will still be available across the civil justice system, and will still be fundamentally unfair. The only way to safeguard Britain’s system of fair justice is by removing from the Bill clauses 6 to 11 that provide for secret courts.
Closed material procedures would allow Ministers to exclude their opponents from the courtroom, along with the press and the public, and provide a one-sided case to the judge, free of effective challenge.
I do not challenge the hon. Lady’s sincerity for a moment, but I hope she will accept that when it comes to voting on matters of such important principle, every Liberal Democrat MP is obliged to use his or her judgment. She speaks as if Ministers were in a position to resolve these matters. Ministers are entitled, through barristers or advocates, to make application to a court on which the judge has to decide. Ministers may wish to bring about such an objective, but unless a judge is satisfied that that is in the interests of national security, they will not be successful.
I thank the right hon. and learned Gentleman for that intervention but I am afraid that that response does not give me the comfort it obviously gives him.
In conclusion let me say a few words about new clause 2. Although I judge that the House is not with me on amendments 1 to 7, new clause 2—which will be taken as part of the same group—looks at how we can try to restrict the number of cases where CMPs are used. Proposed subsection (1) concerns circumstances in which the liberty of the individual is at stake. Ministers have confirmed recently to the Bill Committee that CMPs could be used in habeas corpus cases where an individual seeks to challenge their detention by the state. Although such cases may not be common, the current Bill would leave us in a position whereby an individual losing their habeas corpus claim could, as a result of a CMP, remain imprisoned without knowing why. Subsection (1) of new clause 2 seeks to rule out such a possibility by ensuring that a CMP will not be available
“where the outcome could result in, contribute to, or impede efforts to challenge the imprisonment; or continued detention of a party, whether in the UK or overseas.”
Subsection (2)(a) of new clause 2 aims to ensure that a CMP cannot be used by the Government to cover up some of the most serious international crimes—for example where genocide or torture are at issue. That is fairly straightforward, as there is clear public interest in those proceedings taking place in as open and even-handed way as possible, and the use of a CMP would be entirely at odds with that aim.
Finally, subsection (2)(b) aims to ensure that material will not be withheld in a CMP where doing so may result in the wrongful imprisonment or death of an individual, whether in the UK or overseas. For example, that could apply where an individual potentially faces capital charges on the basis of “evidence” extracted under torture, as with Binyam Mohamed.
I will now conclude my speech, but let me say that an awful lot of people are watching the House tonight. Although I accept that my words are the minority view in this Chamber, huge numbers of people are deeply concerned about the direction in which closed material proceedings would take us. I hope that hon. Members will be mindful of that when the matter is put to a vote.
The hon. Member for Brighton, Pavilion (Caroline Lucas) does no service to the causes in which she believes by the extraordinary exaggeration of her remarks, although she is not the only one. I noticed, for example, that Shami Chakrabarti—who really ought to know better—referred to:
“Government arguments for morphing British courts into shadowy Soviet-style commissions”,
and that Amnesty International said that the system could come
“straight from the pages of a Kafka novel”.
The hon. Lady must try to rely on facts and not on rhetoric. For example, we have the constant use of the phrase “secret courts” but there are to be no secret courts. We are talking about cases in which the vast majority of evidence will be heard in open session. If closed material procedures do apply, they will apply usually to a very modest part of the total evidence. Thousands of civil cases are brought each year and estimates for how many cases would be affected by CMPs are somewhere between seven and 15 a year. The idea that we are transforming our society into one in which civil liberties are not recognised does not bear credence.
I have been somewhat amused by the extraordinary affection that has grown over the past 15 years for public interest immunity certificates. As I mentioned earlier, I signed one of those and I remember hearing howls of execration from the Labour Benches at the time and from the whole civil liberties movement. We were told that public interest immunity certificates were going to send innocent people to jail and do all sorts of terrible things that were incompatible with a free society. Well, we have moved on. Those who denigrated PIIs now see them as a way of preserving our liberties against evil Governments, intelligence agencies and the like.
Let us consider the views of those who have had greatest involvement in such matters, and remind the House what has been said by two people when comparing PIIs with closed material procedures. Lord Carlile, formerly a Liberal Democrat Member of this House and independent reviewer of terrorism legislation, said:
“CMP hearings, with special advocates representing the interests of the individual litigant concerned, are fairer and more searching than the significantly more secretive PII hearings process.”
Lord Justice Woolf, in addition to other remarks that have been cited, said he thought Lord Carlile was right and that
“in most situations that are covered by the Bill the result will be preferable to both sides”—
that is crucial; it will be preferable not just to the Government or the defendants, but to the plaintiff as well—
“if the closed hearing procedure is adopted rather than PII, because PII has the very unfortunate effect that you cannot rely on the material that is in issue, whereas both the claimant and the Government”—
not just the Government; the claimant as well—
“may want to rely on that material. That is a good reason for having the closed-hearing procedure.”—[Official Report, House of Lords, 11 July 2012; Vol. 738, c. 1189.]
Will the right hon. and learned Gentleman clarify whether that is the same Lord Carlile who argued endlessly in defence and justification of 90-days pre-charge detention?
I have no idea whether it is the same one or not; that will be a matter for Lord Carlile to deal with. He has served this country extremely well in these sensitive areas, and the hon. Gentleman should take account of that.
The whole problem is that the critics of these measures fail to take into account two things. First, although there can of course be qualifications under PII, including redactions and witnesses giving their evidence behind a screen, the core of the secret material cannot be revealed to the plaintiff without it being revealed to the whole world. It is not just a question of the plaintiff hearing it. Those of us who are privileged to serve on the Intelligence and Security Committee have seen examples of the intelligence material that would have had to be revealed if certain cases had not been settled at huge cost to the taxpayer.
In response to a comment by the right hon. Member for Blackburn (Mr Straw), I must point out that this is not just a question of the identity of an individual agent or officer being revealed. It goes far beyond that, because that person could be protected by a screen or by being given anonymity in court in some other way. It is also a question of evidence involving operating methods, for example. The material could reveal how the intelligence agencies quite lawfully obtain their evidence.
It is worth reminding those who are going to vote against the Government how thankful we are that there have been no further terrorist outrages in this country since the 7/7 bombings. In every year since then, major terrorist plots have been prevented by the work of the intelligence agencies, and much of that work relied on obtaining highly sensitive information, sometimes from individuals who were not intelligence officers but who came from the very organisations and communities in which the plots were being hatched. If the methods by which such information is obtained cannot be kept secret, no one should come to the House saying how much they regret some future terrorist incident if that incident has taken place because the agencies have been prevented from getting the support and co-operation that they need.
Will the right hon. and learned Gentleman give way?
I want to make one other point, if I may.
The other element that critics of the Bill do not take into account is that much of the information we are talking about can relate to misunderstandings on the part of the terrorists or criminals, who sometimes do not realise when their conversations are being listened to or when their property has been entered under lawful warrants and information obtained. They do not realise how stupid some of the precautions are that they take to protect their evil plans. That kind of information cannot be released in court. The plaintiff might be an innocent person, but if the information is released in court, it becomes available to the whole world, including the terrorist organisations and criminals themselves.
I am moved by the impassioned nature of my right hon. and learned Friend’s response to this matter. He is quite right; this is a serious matter and no one doubts that. Is it not strange, however, that some of the information that we are accused of passing on comes from the American court system? We have been held accountable by American intelligence for that as though it were a fault on our part. If the Americans are able to maintain their tradition of an open court system, why should we not do so?
I know the case that my hon. Friend is referring to, but that is not really the point at issue. The point is that when intelligence agencies, including the British ones, share information with their friends and allies from other countries, they do so on the strict condition that that information will not enter the public domain without their permission. This is not so much a question of whether the information in a particular document might be harmful; it is a principle, and that principle must not be breached.
I am conscious of the time, and I want to make a few more points, if my hon. Friend will forgive me.
This point goes to the heart of what Lord Woolf, the former Lord Chief Justice, has said. The plaintiffs themselves will sometimes benefit from the arrangements, as well as the Government who are defending the case. I can think of current cases, some of which are controversial, in which information given to the judge about the activities of the intelligence agencies some years ago could well help the plaintiff as well as the Government.
Furthermore, if it was suggested that a particular closed material procedure had been drawn too widely to include information that did not need to be protected, the benefit of the special advocate system is that if the advocate was doing their job properly, they would raise the matter with the judge. If the judge was satisfied that the breadth of the closed material procedure needed to be reduced, the evidence in question could be heard in open court.
My right hon. and learned Friend makes a powerful point regarding the interests of the plaintiff. If a PII certificate were to be utilised in such circumstances, the plaintiff would have no chance of taking advantage of any conduct on the part of the intelligence agencies and others that could result in his action being successful.
My right hon. and learned Friend is right.
That leads me to my final point, which goes to the heart of the Opposition’s amendment. It concerns the so-called Wiley balancing act, in which a judgment must be made on whether national security is more important than the administration of justice. Of course that is relevant for PII, because that is the absolute choice that has to be made in those circumstances, but the whole point of closed material procedures—unlike PII—is that the evidence will be available to the judge. The administration of justice cannot but be helped if the judge has access to all the relevant information. So the Wiley balancing act is simply not relevant in such cases. The judge must be satisfied that there is a risk to national security, and he will have the last word on that. At that point, a closed material procedure will be granted, and that is the least bad option. We do not argue that CMPs are a good option, that they are desirable or that they are ideal. They are far from that, but they are better than the alternatives and, sometimes in this imperfect world, this is the only responsible way to behave.
I shall try to be brief, as I know that other Members wish to speak. It is a pleasure to follow my colleague, the Chair of the Intelligence and Security Committee, the right hon. and learned Member for Kensington (Sir Malcolm Rifkind). I am sure that it was music to the Minister’s ears to hear a speech from his own Benches in support of the Bill. I know that he welcomes the fact that there have been a number of speeches from the Opposition Benches, of which this is another, that are broadly in support of the Bill.
There are two fundamental arguments in favour of the direction that the Government are taking. The first is the need to deal with the present inability of the security and intelligence agencies to defend themselves against civil claims. That point has been debated over the past few hours. My right hon. Friend the Member for Blackburn (Mr Straw) did the House a great service by reminding us that we are talking not about bits of paper, but about human sources of intelligence. We are talking about human beings, and the agencies have a fundamental responsibility to protect the lives of those people. Even in the course of protecting their own interests, they can do nothing to undermine the safety and security of those people. Those are vital obligations to human beings, not to scraps of paper with information written on them. The idea that any serious judge would grant closed material proceedings in relation to intelligence that might prove embarrassing or slightly awkward for an agency is preposterous. This is all about highly sensitive intelligence, about sources and about methods.
The second element that makes the legislation imperative is the need to make the agencies themselves more accountable. I do not want to see a PII one-way street that allows an agency to hide material completely or to settle out of court. If intelligence exists that there has been wrongdoing in the agencies, I want that evidence to be considered by the judge and to be weighed in the balance when conclusions are reached.
Reflecting on the debates on these matters, I believe that it should be possible to close the gap between the Front Benches on the ability of the judge to choose the appropriate route to take. I think I heard the Minister say earlier that, even at this late stage, he was prepared to go away and give further consideration to that issue. If there are further opportunities to do so, I hope that he and my right hon. Friend the Member for Tooting (Sadiq Khan) will reach consensus on this point. The Minister has come some way towards that by tabling amendment 47, and that is helpful. The court must now be satisfied that the Secretary of State has considered whether to make an application for PII, and that goes some way in the right direction. I encourage him and my right hon. Friend to try to close what remains of the gap between them. As far as I am concerned, the last resort should be the PII. I cannot agree with the hierarchy set out by the right hon. Member for Haltemprice and Howden (Mr Davis). I want less secrecy and there is less secrecy through closed material proceedings.
On the Wiley test and the substantive difference that clearly still exists between the two Front Benches, I urge further and fresh consideration, if that is possible. I am not a lawyer, as may be evident to anyone who has ever heard me speak on these matters, but if the decision is whether the material should be in or out, then a test of open justice is a fair test, and that is the test that applies in PII. However, if the decision is about closed material proceedings, then, frankly, that is a decision about whether the material is fully in or not fully in. If a judge can see it but others cannot, and if the merits of a particular piece of intelligence can be weighed by the judge, clearly that is a more difficult and complex judgment. It therefore does not surprise me, as a non-lawyer, to know that a different test from the Wiley test may need to be applied.
Amendment 30, tabled by my right hon. Friend the Member for Tooting, sets the bar too high, but I encourage further consideration wherever possible. There are various stages to the closed material procedure. There has to be consideration on whether to enter the process in the first place, and on whether the process should end. Therefore, there has to be an appropriate test and further thought on it, but I think that my right hon. Friend sets the bar too high.
My right hon. Friend talked about a consensus in this House. I hope there will be the maximum amount of opposition to the proposals. Does he dismiss out of hand the number of people—distinguished lawyers who cannot be lumped together as hopeless liberals and so on—who believe that the proposals, which will no doubt be carried, erode the rule of law? We should be very concerned about what is happening.
My hon. Friend knows me well enough to know that I do not dismiss critics of the Bill. I listen to them carefully; I just happen to disagree with them. The same applies to my hon. Friend: I listen carefully to what he says on this issue. Sometimes we agree and sometimes we disagree, and I sense that we will disagree on this. I am making a plea for further attempts to achieve consensus, but I am making it clear that if there is no consensus then I think that my right hon. Friend the Member for Tooting is setting the bar too high.
On inquests, I am sorry that the Minister did not take an intervention from me earlier. I would be delighted to take an intervention from him at any stage in the next couple of minutes. I am grateful to Members who supported my amendment 70, which would make closed material proceedings available for inquests as well as civil proceedings. We just need an explanation from the Minister on why the Bill proposes CMPs for civil cases, but does not propose them for inquests. That was in the original plan. He knows that senior members of the Government and senior judges think it is nonsense and inconsistent to have one and not the other.
I think we have had this exchange before. The explanation is simple. The Government were faced, in Parliament and from all the lobbies, with overwhelming opposition to extending CMPs to inquests. We have said throughout today’s proceedings that we have been trying to concede as far as possible, and that if people did not want to trust coroners with these powers and the ability to take into account this information, we decided it was impossible to maintain it, particularly after recent controversy regarding coroners and inquests. All kinds of unlikely organisations were seen to be believing that we were closing down inquests, getting rid of juries and so on, so I am afraid that we took the line of least resistance. The result is that total secrecy and silence will continue to be the case in inquests whenever national security is involved.
The purpose of tabling amendment 70 —again, I am grateful for the support of hon. Members—was not that I thought I would win the day. Clearly, the Minister is not going to support it. I tabled the amendment to encourage him, the Under-Secretary of State for the Home Department, the hon. Member for Old Bexley and Sidcup (James Brokenshire) who is sitting next to him and anybody else who is listening. This issue will come back and either his Government or preferably a Government that I support, will have to deal with it.
I am sure that my right hon. Friend is aware that the idea of having closed material proceedings was not just the policy of the previous Labour Government. Proposals were introduced, but sadly they were blocked in the other place.
My right hon. Friend is absolutely right. If CMPs are to be available in civil proceedings, they should certainly be available in inquests. There are difficulties concerning families and bereaved relatives, but in the end this about a search for the truth. If there is information and intelligence that reveals the cause of a death, the coroner should know it, even if it has to be kept as secret intelligence.
The Minister himself made the perfect argument today. He went on the radio at lunchtime and made the argument about the limitations of having to have just PII, rather than CMPs. What was the example he gave? The Litvinenko inquest. There are more than 30 historic inquests in Northern Ireland waiting to be resolved. Whether the deaths involved the Army or the police, all of those issues will be there. There will other inquests in future that will bring national security issues into play.
The right hon. Gentleman has been very patient in listening to the whole debate. All the people who are more liberal than we are and who are denouncing CMPs, are defending the existing law. What is at the moment in controversy at the Litvinenko inquest is that what they are saying is superior to admitting the evidence and having it heard and determined by the judge. One has to bring in the present inquests or inquests will never have this material, because such a fantastic volume of opposition was excited by the proposal when we first put it forward.
I accept that the Minister felt under enormous pressure to make that concession. Anybody who doubts the minds of coroners and senior judges in relation to the test that will be applied need only look at the coroner in the Litvinenko inquest, Sir Robert Owen, and the comments he made last week. He said clearly:
“I intend to conduct this inquest with the greatest degree of openness and transparency”—
and that he would give the Foreign Secretary’s request for a PII certificate—
“the most stringent and critical examination”.
We ought to trust the coroner and the judges.
In the end, the search for justice is a search for the truth. A secret court is one where information and intelligence is either not considered at all, or where the Government and their agencies cave in and make a settlement where no case has been heard—that is secret justice. Closed material proceedings are not perfection, but we are not dealing with perfection; we are dealing with a difficult issue in a small number of cases. However, we are more likely to get closer to the truth if the judge has seen the relevant information than if nobody has seen it at all.
This has been a high quality debate, starting with a typically rigorous speech by the Minister without Portfolio. It has been particularly noticeable that, while there have been strong speeches on both sides, all three Members who have had responsibility for this matter—the right hon. Member for Salford and Eccles (Hazel Blears), the right hon. Member for Blackburn (Mr Straw) and my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind), who made an outstanding contribution—took the view that we have to have this kind of legislation, and that the amendments would not be helpful. I want to put forward a couple of underlying reasons why I believe firmly that we need the Bill and that the amendments—some of them, anyway—would wreck it, and then delve a little into the historical background. I am concerned that the civil liberties lobby is just a little bit too free in its claims about British judicial traditions.
The one voice that does not seem to have been heard anywhere in the debate is that of the intelligence service. Baroness Manningham-Buller said:
“At the moment there is no justice at all in civil cases where individuals sue the Government for compensation, claiming, say, mistreatment or complicity in torture. Because the secret material held by the authorities cannot be used in court, the Government is forced to settle without a judge examining the merits of the claim. This is immensely damaging”—
“to the reputation of the Government and the intelligence and security agencies which cannot defend themselves; to the taxpayer who has increasingly to stump up millions in compensation; and perhaps most importantly of all to the claimants who, while they may receive large cash settlements, do not get their cases heard and judgment reached.”
I have a further concern. A friend of mine, former SAS officer Colonel Richard Williams, who has allowed me to quote his name in the press, has recently been attacked in one of our newspapers with allegations of brutality. The allegations are lies from beginning to end. Bizarrely, they start with the claim that he is being investigated for wrongdoing in Iraq. As he has never been investigated in any shape or form, that is a lie before we even get into the specific allegations. But let us suppose just for a moment that somebody was to turn those allegations into a court case. The circumstances of the operation concerned in the allegations involve some extremely secret material—where the tip-offs came from, modus operandi and so on. Now, it is quite possible that this man, who has been decorated for gallantry and leadership twice and badly wounded—indeed, he had another operation for his wounds only last year—could find himself facing a court case while being extremely reluctant to use certain material in his own defence, because no procedure is available under which he could do so without the risk of breaching secrecy.
Does the hon. Gentleman also agree that this concerns not just the sources of intelligence, but the operating systems of troops on the ground? If anything got into the public domain—for example, about operations in Iraq by special forces—it would limit future operations, if those tactics became known to our opponents.
Of course, the hon. Gentleman is absolutely right. I used the phrase “modus operandi”. This brave officer led our special forces operation for so long in Iraq and did so well at a time when, frankly, other parts of our military operation were failing—the verdict of history is that sadly they did largely fail. The hon. Gentleman is right that this is not only about sources, but about modus operandi, but there is now a further wrinkle. Because the Government have committed to much more of what is generally called “upstream intervention”—putting small numbers of people into areas where they are not in charge or running the show, but simply mentoring, the dodgiest end of which will inevitably go to special forces—this is not only about our modus operandi, but about whether our relationships with host countries, which in almost every case will, I believe, do better in a range of different ways with advice from our special forces, will be possible at all.
I shall move on to the second part of my comments. In Committee, I listened again and again to hon. Gentlemen talking about ancient British traditions of justice. I have listened again and have been reading some of the contributions from the human rights lobby. Although they are perfectly entitled to their points of view and I am willing to listen to them with respect, they cannot claim that the current position of the civil rights lobby, which is reflected in some of these amendments, is in any way rooted in the traditions of British justice.
Let me quote what Lord Denning said in a deportation case some 40 years ago. He was speaking on the Hosenball case, which involved the deportation of, ironically, an American journalist. The case was decided unanimously in favour of the Home Secretary, but nevertheless Lord Denning felt that he ought to put some extra remarks on the record, just to remind people where the balance of British justice lay:
“But this is no ordinary case. It is a case in which national security is involved, and our history shows that, when the state itself is endangered, our cherished freedoms may have to take second place. Even natural justice itself may suffer a set-back. Time after time Parliament has so enacted and the courts have loyally followed.”
Time is brief and others are waiting to speak, so I will not go back to the earlier Liversidge v. Anderson case during the second world war, where by a 4:1 majority the locking up of everybody who happened to be German, with no procedure at all, was upheld. Suffice it to say, however, that this was the continuous view of the courts all the way through until the Belmarsh case. I will give one further quote. Ironically, I would like to quote Lord Hoffmann, one of the judges who found against the Government in the Belmarsh case, on the rather narrow grounds rooted in the then brand-new human rights provisions. In 2001, he commented in a lengthy judgment in the Rehman case:
“I shall deal first with the separation of powers… What is meant by ‘national security’ is a question of construction and therefore a question of law within the jurisdiction of the Commission, subject to appeal. But there is no difficulty about what ‘national security’ means. It is the security of the United Kingdom and its people. On the other hand, the question of whether something is ‘in the interests’ of national security is not a question of law. It is a matter of judgment and policy. Under the constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision. They are entrusted to the executive.”
The concessions that the Government have already made, even without going down the route of amendment 30, go much further than any court would have required 10 or more years ago. Whatever the claims of the human rights lobby, the British judicial system always used to understand the vital demands of our national security, and I urge the Government not to give any further ground.
It is a pleasure to follow the hon. Member for Canterbury (Mr Brazier). I shall try in a moment to give some examples of how important the point is that he finished on.
My right hon. Friend the Member for Blackburn (Mr Straw) referred to the well-known liberal credentials on these matters of the Minister without Portfolio. I would go further—perhaps my own Front Benchers will take this into account—and say that if someone is as liberal as he is, they are probably in the wrong place and, on this occasion, if someone is even more liberal than he is, they are almost certainly in the wrong place.
I would like to make one further point by way of introduction. I came here genuinely hoping to be persuaded by my right hon. Friend the Member for Tooting (Sadiq Khan) to follow the course of action he has outlined in the amendments. I wanted to hear what he had to say—that was why I made at least one, perhaps two, interventions—and to see whether he had an answer to some of the dilemmas I felt still existed in our approach to the Bill and, more particularly, our amendments. Before arriving here, I decided to read what he said on Second Reading about the tests he set for the Bill at that time and what it would look like when it left Committee.
My right hon. Friend relied heavily, though not exclusively, on the words at the time of David Anderson QC, who concluded that there was a
“case for restricting the novel application of Norwich Pharmacal jurisdiction to national security information”—
the relevant clause at the time was clause 14—but that the Bill at the time was
“too broad in its application.”
Beyond that, however, no specific tests were set other than those set by the Joint Committee, which its Chairman listed at the time.
Two of those tests are relevant to the speech that I am making now. The first was the judicial balancing of interests—which we have discussed quite a bit—and the second was a more proportional response to the problem of preventing the ordering of disclosure of national security and other sensitive information. I think that the Bill, as amended, meets those two tests. Clause 7 now sets out in some detail the conditions that apply in the determination of whether closed material proceedings are justified. That includes the disclosure of sensitive material, the possibility of a PII’s being appropriate, and no disclosure by voluntary means. In this last event, the case collapses and someone usually ends up with a large payment as a result.
Clause 7(2) relates to the rules governing proceedings once an application for use of a CMP has been granted. It states:
“The court must keep the declaration under review, and may at any time revoke it if it considers that the declaration is no longer in the interests of fair and effective administration of justice in the proceedings.”
There is a test there, requiring the judge presiding over the case to make those considerations. That is not too distant from the conditions that my right hon. Friend and others are seeking, but, as we heard earlier today, it is different in some important ways.
The Wiley balancing test of fair and open administration of justice simply cannot be applied. I cannot imagine circumstances in which it would be possible to justify describing closed material proceedings as open; that strikes me as an absolute contradiction in terms. I believe that if amendment 30—which my right hon. Friend intends to press to a Division—were passed, it would have a wrecking effect, although I know that that is not his intention. In my view, the Government’s test of fair and effective administration of justice is proportionate—as the Joint Committee required—and workable.
It must be borne in mind that the purpose of CMPs is to ensure that cases are considered by the courts, rather than the opposite. My right hon. Friend the Member for Salford and Eccles (Hazel Blears) made that point very strongly. The opposite is a PII, and on that basis I think that this is more a progressive move than the opposite. One of the strange ironies of politics that I have observed over the years is that there are occasions when the progressives adopt the reactionary position, and the reactionaries—although I hesitate to call the Minister without Portfolio a reactionary—adopt the progressive position. I think that this is one such occasion, and my right hon. Friend made that case very effectively.
I said earlier that my right hon. Friend the Member for Tooting relied heavily on David Anderson’s evidence, which was available at the time. Since then, David Anderson has been given an opportunity to inspect the relevant files on the cases that are pending, and has concluded:
“We are in a world of second-best solutions: but it does not seem to me that the level of injustice inherent in the use of CMPs in a case of this nature necessarily exceeds either the injustice to the claimant of a case being struck out, or the moral hazard and reputational damage to the intelligence agencies that is caused by settling a case which, had it been possible to adduce all the evidence, would have been fought.”
What he meant was that it cannot be justifiable to make large cash settlements rather than taking a case to court. I hesitate to interpret what such a distinguished gentleman said, but that seems to me to be the gist of it.
Having listened carefully to what was said by my right hon. Friend the Member for Tooting and one or two others, I honestly cannot support amendment 30. I believe that, albeit unintentionally, it would have the effect of wrecking what I consider to be progress rather than the opposite. I find it difficult to do this—I do not do it regularly, and when I do, I do it with a heavy heart—but I am afraid that, on this occasion, I do not feel able to support my own Front Benchers.
I know that you are anxious to allow others to contribute, Mr Deputy Speaker, and I hope to encompass my remarks in two or three minutes. I also hope that the right hon. Member for Knowsley (Mr Howarth) will forgive me, a reactionary, for being progressive, but occasionally that is what one has to do.
I think I could have made this point very simply to my right hon. and learned Friend the Minister in an intervention, but I was unable to catch his eye. The general tenor of his remarks was that this was an argument got up by lawyers, that he had tried to make more and more concessions, and that we were dancing on the head of a pin. I think that there is a fundamental point of principle that can be expressed very clearly by a Conservative. There has been a great deal of reportage this week about what the Conservative party stands for. In my view, it stands for a deep and abiding distrust of the state and its agencies, and a desire always to stand up for civil liberties. That is why our party was founded.
When the Minister leaves the House tonight, as he goes through the Members’ Entrance he will see on his right a small plaque which marks the site of the Court of Star Chamber. Why did Toryism develop in the 17th and 18th centuries? It was in retaliation against the powers of states encompassed in that secret court, whereby people could be tried without knowing the evidence against them. I know perfectly well that we are not talking about criminal cases now, but civil cases too are very important. Justice, in my view, is indivisible.
The principle of justice in this country as I understand it, and as maintained by the Conservative party for centuries, is that any citizen can go to a court of law as a litigant, and his case will be heard in public. He will give his evidence in public, the defendant will give his evidence in public, the plaintiff can cross-examine the defendant on that evidence, and the defendant will know the evidence that is adduced against him. That is a fundamental principle of our courts of law.
It is not good enough to say that the judges will be very careful, or that it will be just a matter of a few cases out of several thousand. Perceptions are important, and what does our country stand for, above all else? It stands for the principle that a defendant knows the evidence against him. It is not good enough that some judge, however careful, can cross-examine on the basis of that evidence, and it is not good enough that some special advocate can do the same, because the defendant alone knows his case, and he alone must be allowed to put it.
It is not good enough to say that the present system is unsatisfactory, and to talk about PIIs and all the rest of it. Of course a defendant can always choose not to adduce a particular piece of evidence, and of course the state can always decide that it would be dangerous, and inimical to its own interests, to reveal how it operates. We all know that, and the state may indeed lose the case, but that is its decision. This is something quite different. We are taking a fundamental step, and it is a dangerous step. That is why I will not support the Government tonight.
I will follow in the tradition of the progressives, and say that I opposed the Special Immigration Appeals Commission when it was introduced. My right hon. Friend the Member for Blackburn (Mr Straw) referred to Kafkaesque language and said that we should not exaggerate, but I opposed SIAC then because I thought that it was Kafkaesque. I think that the idea of being tried for something and not being entirely sure what it is, and of not hearing the evidence and not being able to respond to it, is typical of Kafka. I warned then that if we were not careful, there would be an incremental creeping extension of that into other areas of law. That is what we saw with control orders, and we are seeing it again tonight.
I fear that within five years we will be back here debating certain areas of the criminal law, unless we draw a line in the sand tonight and say that enough is enough. I think that we are undermining the basis of British law—as the hon. Member for Gainsborough (Mr Leigh) said, the fundamental civil liberties that were fought for over generations. When the Supreme Court considered the matter, it made it clear that there should be compelling grounds if we are to take this step, but the only compelling ground we have been told about today is that the Government might have to shell out a few millions pounds in compensation every now and again. That is not compelling grounds for undermining our civil liberties in this way.
There seems to be a bizarre reversal of the history of why we are here. We are not here today to debate how we protect our security services; we are here because the security services were exposed as being associated with other regimes involved in rendition, torture and other human rights abuses. Rather than discussing how we protect our security forces, which of course is fundamental, we should also be debating how we hold them to account. That does not mean closing the doors of the courts; it means opening them to greater scrutiny and accountability. I am concerned that we seem to be heading for a complete reversal of the debate taking place outside across the country.
People have been shocked by the stories they have heard. A constituent of mine, a young man I have known since he was a child, went to Pakistan to work in a hospital voluntarily because he is a doctor. He was picked up by the Pakistani authorities and tortured for six weeks. He was then interrogated by British intelligence officers, after torture. That is unacceptable. He is now in such a state that he does not even want to pursue a claim. He is fearful—
Will my hon. Friend give way?
I understand why my right hon. Friend wants to intervene, and she has made good points, but I am really short of time and must conclude as best as I can, because the Minister still needs to respond.
On that basis, I thought that in reforming our legislation we would be considering measures that would make accountability more open and acceptable. That is why I support the amendments tabled by the hon. Member for Brighton, Pavilion (Caroline Lucas). In fact, a simpler amendment would just delete the whole part, not just each clause. That is supported not just by two minor parties, as the Minister suggested, but by a minor party, an individual and another party, and it might also have other support. If those amendments are not made, I support the fall-back protections that Opposition Front Benchers are trying to introduce, which is a commitment of last resort and a reference to open courts. Why can the judges not consider that as a factor as well, because it is one of the key factors they should look at?
I will refer briefly to new clauses 7 and 8, which stand in my name. They are based on the evidence that Dr Lawrence McNamara provided to the Committee when it considered this Bill. We discovered in this whole process that the media have played a fundamental role in exposing what has been happening in relation to the security services. We should recognise that role in statute. New clause 7 is therefore based on an amendment proposed in the Lords and recommended by Lawrence McNamara. It basically states that the media, as the eyes and ears of the general public, should be informed of these cases so that they can intervene if necessary and become involved in proceedings. They would be notified, but they would then also be able to seek a stay or sist of the civil proceedings and be party to at least some element of the debate on whether a closed procedure is necessary. When Ministers responded to that proposal elsewhere, they argued that it would not be suitable in civil damages cases. That was the only argument put up for not involving the media as a party in proceedings. In fact, these are not just normal civil proceedings; they are based on national interests and national security. That is why there needs to be some process to allow full engagement of the media and enable them to become involved and intervene in the proceedings.
New clause 8 also relates to Lawrence McNamara’s recommendations and a proposal considered in the Lords. Currently the Bill does not provide for the possibility of closed judgments being made open later. The reason they should be made open at a later stage, some would argue, is so that the courts and the process can be held to account publicly. The proceedings could be reported and then a view could be taken on whether it was correct that they went into secret court procedures. The argument is a recognition that there should be some procedure for opening closed judgments long after the secrecy is no longer necessary. The Government acknowledged on Report in the Lords that review of closed judgments is important, but they never came forward with the amendments necessary to enable that. That is why I tabled new clause 8.
The new clauses would make two minor amendments to the legislation to enable us to prise open the door of the secret proceedings a little bit more and involve the media, who have played such a fundamental role in exposing the operations of the security services that have led us to this debate.