Motion on Amendment 1
1: Clause 1, page 1, line 5, after “Committee” insert “of Parliament”
My Lords, I beg to move that your Lordships do agree with the Commons in their Amendment 1. I shall speak also to Commons Amendments 2 and 3, 26 to 43 inclusive, and 45.
Part 1 of the Bill makes significant changes to the system for independent oversight of the intelligence agencies and the wider intelligence community. It extends the Intelligence and Security Committee’s statutory remit, granting it additional investigative powers. It changes the ISC’s status to a committee of Parliament created by statute. The ISC in future will be appointed by Parliament and will report to Parliament as well as to the Prime Minister. The Bill also extends the remit of the Intelligence Services Commissioner.
When the Bill was last in this House, we had a series of detailed and well informed debates. At Report I made a commitment that we would bring forward amendments in the Commons concerning the status of the ISC. We have done that. We have also moved a number of other amendments in the Commons that address concerns that were originally raised in this House.
I turn first to Commons Amendments 1, 41, 43 and 45. These concern the status of the ISC. During the debates in Committee and at Report, there was some very well informed debate about the future status of the ISC. The noble Lord, Lord Campbell-Savours, who I regret is not in his place today, made the case for the ISC becoming a Select Committee. The noble Lord, Lord Butler, and my noble friend Lord Lothian, current members of the ISC, argued for changing the name of the ISC to the Intelligence and Security Committee of Parliament to make clear the parliamentary character of the ISC. Following that debate, I announced the Government’s intention to make clear the parliamentary character of the ISC and to make a number of necessary consequential amendments. The amendments that the Government moved in the Commons would deliver on the Government’s intention.
Amendment 1 would adopt the amendment first tabled by the noble Lord, Lord Butler, and my noble friend Lord Lothian, and would change the name of the Intelligence and Security Committee to the Intelligence and Security Committee of Parliament. Amendments 41 and 43 would make the equivalent changes in Schedules 2 and 3. These amendments would more fully realise the Government’s intention that the ISC should be a committee of Parliament, created by statute.
Commons Amendments 40 and 42 are closely related to the “of Parliament” amendments that I have just discussed. The Data Protection Act 1998 applies to Parliament but with special rules to determine who the data controller is. The data controller is the person within any organisation on whom most of the obligations under the DPA fall. Section 63A of the DPA states:
“Where the purposes for which and the manner in which any personal data are … processed are determined by or on behalf of”,
“the data controller … shall be the Corporate Officer”,
of the relevant House. It is not appropriate that the corporate officer should be the data controller for data processed by the ISC, but this is the likely effect of Section 63A once the ISC is a committee of Parliament. For that reason, Amendment 40 would add a provision to disapply Section 63A of the DPA so far as the ISC is concerned so that, notwithstanding that the new ISC will be a committee of Parliament, its data controller can continue to be its clerk.
In addition, both the House of Commons and the House of Lords are subject to the Freedom of Information Act 2000—the FOIA. As a committee of Parliament, it is arguable that the ISC, too, would be subject to the FOIA, as other Joint Committees are. To avoid this consequence, Amendment 42 would add a provision to the Bill which would amend references to the House of Commons and House of Lords in Schedule 1 to the FOIA to make it clear that they are not subject to the Act as regards information held by the ISC. This amendment would preserve the status quo, in that the FOIA does not apply to information held by the ISC now and it would not do so in future.
In addition, Amendment 42 would add the ISC to the list of bodies in Section 23 of the FOIA. The result of this would be that ISC information—information which has been supplied to or by the ISC, whether directly or indirectly, or which relates to it—in the hands of another public authority subject to the FOIA would be exempt information for FOIA purposes.
We now turn to Commons Amendment 39, which would provide statutory protections for evidence given by witnesses to the ISC. First, such evidence may not be used in any civil or disciplinary proceedings. Secondly, evidence given by a person who is a witness before the ISC may not be used against that person in any criminal proceedings. These provisions would replicate an important part of the protection that witnesses before a Select Committee have by virtue of parliamentary privilege. They would provide encouragement to witnesses appearing before the ISC to be full and frank in their evidence. The protection against the use of evidence in criminal proceedings would be narrower than the equivalent protection for civil and disciplinary proceedings. They would not impinge on an individual’s right to defend him or herself in criminal proceedings. Of course, evidence that is deliberately misleading is of no assistance to the ISC. Accordingly, the protections would not apply to evidence given by a witness to the ISC in bad faith.
On Commons Amendment 26, I said at Report that one possible consequence of the “of Parliament” change is that the ISC would have the power to take evidence on oath. Following further analysis, we concluded that the consequence of changing the status of the ISC to become a statutory committee of Parliament was that the ISC may, in future, take evidence on oath. Our view was that existing statutory powers applicable to Commons and Lords committees would give the ISC the authority to administer oaths. This view shaped amendments which the Government tabled, and which were agreed to, in Committee in the Commons. However, the House service raised a concern with the Government about this, disagreeing with our analysis that the “of Parliament” change gives the ISC the authority to take evidence on oath. Its view is that the Bill should contain an express power for the ISC to take evidence on oath. In response to that concern, the Government tabled an amendment in the Commons to put the ISC’s power to take evidence on oath beyond doubt. It is not necessary that the Bill specify who has the power to administer oaths on behalf of the ISC; that can be left for the ISC to determine, under its general power to determine its own procedure.
Commons Amendments 2, 3, 28, 29, 30 and 31 concern the ISC’s ability to oversee operational matters. The Bill extends the ISC’s statutory remit, and makes clear its ability to oversee operational matters. This is a crucial part of the Bill’s aim of strengthening oversight. The amendments would both extend and clarify the ISC remit to oversee operational matters; they respond to concerns of the ISC that were raised by the noble Lord, Lord Butler, during debates in this House. The noble Lord’s first concern was that there may be exceptional circumstances in which the Government might want the ISC to consider particular operational matters falling outside the existing criteria. His second concern was that the requirement that both the ISC and the Prime Minister be satisfied that the criteria for operational oversight were met might slow down the provision of information to the ISC on routine operational matters.
In response to these concerns, the amendments made in the Commons would mean that the Bill would provide for three routes by which the ISC may consider particular operational matters. The first route is the one that was already in the Bill—when the Prime Minister and the ISC are agreed that the matter is of significant national interest and is not part of any ongoing intelligence and security operation. The second route is when the Government request the ISC to consider a matter notwithstanding that either or both of those criteria are not met. This meets the first concern raised by the noble Lord, Lord Butler. The third route is where the ISC’s consideration of a matter is limited to considering information provided to the ISC voluntarily by the agencies or another government department. This meets the second concern raised by the noble Lord.
For the first and second routes only, the ISC and the Prime Minister would need, additionally, to be satisfied that the consideration of a particular operational matter is consistent with the memorandum of understanding agreed between them. The ISC’s powers to require the agencies or other government departments to provide it with information would be available in the first two cases, but not for the third—on the consideration of information volunteered to the ISC. This would be the effect of Amendment 3 and consequential Amendments 28 to 31.
Amendment 27 addresses the future resourcing of the ISC. In Committee in the Commons, the Minister for Security made clear that it remained the Government’s intention that we should make the ISC more parliamentary and move it away from Government. Officials from government, the House service and the ISC secretariat have discussed what we think will be an acceptable solution agreeable to all parties. This is that the ISC secretariat should become a separate body, grant-aided by the House. This would be similar, for example, to the Commonwealth Parliamentary Association UK. The National Security Adviser has written to the Clerk of the Parliaments and to the Clerk of the House of Commons setting out formally that this is the Government’s intention. My understanding is that the House of Commons Commission and the House of Lords House Committee are willing in principle to take on responsibility for grant-aiding the ISC. This solution meets the Government’s policy intention that responsibility for the ISC secretariat should be moved away from Government. As the ISC itself becomes a committee of Parliament so, subject to what I will say shortly, responsibility for the funding and resourcing of the ISC secretariat would pass from Government to Parliament.
A key part of the discussions with the House service and the ISC has been the future accommodation and security of the ISC. The ISC is different from other parliamentary committees. It is housed on secure premises and its staff go through developed vetting. The committee routinely handles information up to top secret strap 2. For that reason it is essential that effective arrangements are in place for the security of its accommodation and IT. The best solution for all parties is probably for the ISC to continue to be accommodated on the government estate and for the Government to provide certain services, such as secure IT. Officials will continue to discuss the detailed implementation with the House service and the ISC secretariat. This will include the exact status of staff and details of the governance structure for any grant-aided body.
There is no requirement, in order for Parliament to fund the ISC, for an express provision on the face of the Bill. The clear implication of Clause 1(1) is that the committee will be resourced and funded by Parliament. However, if the ISC is to be funded or resourced to any extent by government, this needs to be provided for expressly in the Bill. That is the reason for tabling Commons Amendment 27. This would provide a clear statutory basis for the Government to provide additional resourcing for the ISC. We foresee this power being used in two sets of circumstances. First, it might be used to provide additional top-up funding in exceptional circumstances for a limited period—for example, when the ISC is facing an exceptional workload for one reason or another and its resource requirements have temporarily increased. Secondly, the power could be used to provide additional funding or specific resources, such as IT security or physical security, where the ISC’s requirements, because of the nature of the work it does, are different and more costly to fulfil than the requirements of ordinary Select Committees. To be clear, this provision is only intended to allow Government to supplement the funding and resourcing that Parliament provides to the ISC. Parliament has the primary responsibility for funding and resourcing the new body.
We now come to consider Commons Amendments 32 to 37, which concern the power of Ministers to withhold information from the ISC, where the ISC has requested the information using its powers in paragraph 3 of Schedule 1. The Bill provides that Ministers may decide that information should be withheld from the ISC on two grounds: first, if the Minister considers that it is “sensitive information”, as defined in the Bill, which in the interests of national security should not be disclosed to the ISC; and, secondly, on the grounds that it is information that the Minister would consider it proper to withhold from a departmental Select Committee of the House of Commons, having regard to the relevant government guidance—currently the so-called Osmotherly rules. Equivalent powers to withhold information from the ISC are contained in the Intelligence Services Act 1994.
Where agencies’ material is concerned, the Bill provides that decisions to withhold information from the ISC must be taken by the Secretary of State. However, where the ISC requests information from another government department, the Bill states that a decision to withhold is taken by “the relevant Minister of the Crown”. At Report stage the noble Baroness, Lady Smith, proposed an amendment that would have restricted the power to withhold to a Secretary of State or a Minister of equivalent level. The noble Lord, Lord Butler, on behalf of the ISC—if I may say that he was speaking in that capacity—supported that amendment. Since then, the Government have given the debate on this matter further consideration. As a consequence, during consideration of the Bill in the Commons, we moved Commons Amendments 32 to 37, which together would have the effect of restricting the power to withhold, on behalf of government departments, to the Secretary of State, rather than any Minister of the Crown.
It might be thought, and indeed it was initially the Government’s view, that this would be problematic for a department such as the Cabinet Office, which has no Secretary of State. However, most information that the ISC might request of the Cabinet Office, and which the Government may wish to withhold, will be sensitive primarily because of the interests of another department. Accordingly, the Foreign Secretary, Home Secretary or Defence Secretary, as appropriate, would be perfectly well placed to take a decision on withholding. A minority of information that the ISC might request from the Cabinet Office may be sensitive on other grounds, but on further consideration we do not think that this should prevent us reserving the power to withhold to the Secretary of State.
Commons Amendment 38 places restrictions on the ISC’s ability to publish material that it receives privately in connection with the exercise of its functions. This amendment would address a consequence of the ISC being a statutory committee of Parliament. As a committee of Parliament, the ISC will have a general power to publish information, sitting alongside its express power to publish reports to Parliament. Absent a restriction on this general power, the new ISC would be able to publish evidence it has received other than through its reports to Parliament. While the Official Secrets Act 1989 gives protection against disclosure of most information supplied to the ISC by the agencies, other information coming to the ISC would not be sufficiently protected and this would undermine other safeguards for the protection of sensitive information in the Bill.
The provision would take the form of a general prohibition on the publication of information received by the ISC in private in connection with the exercise of its functions, subject to certain exceptions or gateways permitting publication. There are four gateways in all. These permit publication, first, through the ISC’s reports to Parliament; secondly, of material that has already lawfully been placed in the public domain; thirdly, where publication is necessary to meet a legal requirement; and lastly, where the Prime Minister and the ISC agree that publication will not cause prejudice to the functions of the agencies or other HMG security and intelligence bodies. The ISC would also be prohibited, except where a gateway applies, from disclosing any personal information received by it in connection with the exercise of its functions if the ISC considers that there is a risk that the intended recipient would publish the information.
The gateway enabling publication or disclosure, where the Prime Minister and the ISC agree that this will not cause prejudice to the functions of the agencies or other HMG security and intelligence bodies, uses the same criteria as are used in Clause 3(4) of the Bill, which allows the Prime Minister, after consultation with the ISC, to require that the ISC should exclude a matter from any report to Parliament. The consequence of including this gateway would, therefore, be that the ISC would be able to publish informally any information that it will ultimately be permitted to include in its reports to Parliament. As I have said, the criteria are exactly the same.
In summary, following the detailed and well informed debates on the Bill in this House—I am sorry to have taken so long to report on their consequences, but I feel that the detail is important—we were able to move amendments in the Commons that address a number of the concerns raised in this House. The amendments make clear the parliamentary character of the ISC, while placing limitations on its power to publish the evidence it receives; they clarify the Data Protection Act and Freedom of Information Act status of the ISC; they provide statutory protections for evidence given by witnesses before the ISC; they give the ISC an express power to take evidence on oath; they clarify and extend the ISC’s powers to oversee operational matters; and they restrict the power to withhold information from the ISC to Secretary of State level.
My Lords, in general, the amendments which the Minister has described are very welcome to the Intelligence and Security Committee. On behalf of the committee and my noble friend who is also a member of it, I thank the Government for the consideration they have given.
There are three issues that I should like briefly to put to the Minister. First, he said that in respect of access to operational information the committee will be given oversight of operational activity in three circumstances. In relation to the first, it is given retrospectively and if the matter is significant, and that is the usual type of operation that the committee currently considers. Secondly, as the Minister said, the ISC may also be given information about an operation if the Prime Minister wishes the committee to examine it. Therefore, current operations are not ruled out in those rather special circumstances. Thirdly, as the Minister said, the ISC may be given information about any operations if the agencies volunteer that information. There is a respect in which the word “voluntarily”, which appears in the Bill, can seem a little misleading and might even appear restrictive. At present, the agencies do indeed, of their own free will, confide frequently in the committee about operations, but “voluntarily” may suggest that this category is going to be restricted somewhat. I should be grateful if the Minister could give an assurance to the House, as he did when the Bill was before us previously, that there is no intention to restrict the current degree of information which the intelligence agencies give the committee about their operations.
The second issue is the question of resources. As the Minister said, it has been agreed that the ISC will become a grant-aided body. The assurances that I should like to ask the Minister, on behalf of the committee, to give are no doubt the assurances that he would expect me to ask him to give. The Government have repeatedly stated that they want to strengthen oversight. Does the Minister acknowledge on behalf of the Government that if oversight is to be strengthened the tools to carry it out will have to be provided? Can he give a commitment that the ISC will be given a substantial increase in resources that recognises this remit?
We have so far not reached agreement with the Government on what the grant is going to be. Those discussions are going on but it will have to be substantially higher than the present level of grant. Can the Minister confirm that the Government recognise that? Can he give some comfort to the committee that, although those negotiations have not been completed, the Government recognise that a substantial increase will be necessary?
The third point relates to the publication of classified information, to which the Minister also referred. Can he confirm that Schedule 1, which, quite rightly, puts safeguards on the committee’s power to publish classified or sensitive information, is not intended to prevent the ISC publishing other, non-classified material—for example, the issuing of press releases, open letters or newspaper articles, which the committee, or the chairman on its behalf, does from time to time?
If the Minister could give some assurances to the committee on those points, we would be very grateful.
My Lords, I thank the Minister for his very detailed explanation of the amendments before us. In fact, he was able to talk about not just the amendments but some of the discussions that we had in Committee and on Report and about some of the background. I thought that at one point he might be challenging the noble Lord, Lord McNally, regarding his marathon speech during ping-pong of the Crime and Courts Bill, but fortunately he was not able to reach those dizzy heights.
I shall be fairly brief as I think that the Minister has covered many of the points and I suspect that your Lordships are more interested in some of the issues that we will be debating where there is not so much agreement as there is on these amendments. We welcome many of the amendments in this group. I am grateful to the Minister because the Government have obviously listened to many of the arguments made in Committee and on Report in your Lordships’ House and have brought forward amendments to recognise that.
As he will understand, I particularly welcome Amendments 32 to 37, which are identical to those that the Opposition introduced to place a power of veto on disclosure of information to the committee at the level of Secretary of State rather than Minister of State. I well remember the lengthy debates that we had in your Lordships’ House and I am glad that we were able to convince the Government that that was the right course of action. We are grateful.
I will raise one other issue in relation to the other amendments on which I should like the Minister to give me an assurance. In Committee and on Report, our position was that it was desirable for the committee to have full parliamentary privilege. At that time, we supported the view taken by my noble friend Lord Campbell-Savours that the only way to achieve that would be by establishing the ISC as a full Select Committee of Parliament, obviously with the additional safeguards necessary for a committee of that kind. That did not find favour with your Lordships’ House or with the Government. The view taken was that that was not the way to proceed as it was thought to be too difficult. Therefore, we welcome the steps that the Government have taken since that debate to provide greater protections in statute for the ISC along the lines of parliamentary privilege.
The Minister was very helpful in explaining Amendment 39, which grants witnesses, in relation to any evidence they give to the committee, statutory immunity from civil disciplinary proceedings and from criminal proceedings under certain circumstances where the disclosure has been made in good faith. That is hugely significant and we are grateful for that move forward. I am sure that the noble Lord remembers, as I do, the lengthy discussions that we had on this issue when the Bill was last before the House. However, is he able to provide greater clarity on the extent to which protection exists for other individuals involved in the proceedings of the ISC? If he does not have the answers today, I shall be happy for him to write to me. My understanding is that Members of Parliament are currently not protected by parliamentary privilege in relation to their work on the committee, and nor are the staff working on it in relation to the evidence held by the committee. Clearly, that is very important, as most of the evidence that the committee receives is likely to be covered by the Official Secrets Act as well as the Civil Service Code.
Can the Minister provide clarity on three further points? First, do the protections provided by Amendment 39 apply to witnesses who provide written evidence—for example, whistleblowers who provide evidence anonymously or in writing? Secondly, what protections are provided for the staff of the committee and the Members of Parliament serving on the committee? For example, if the ISC were passed anonymous information covered by the Official Secrets Act, would the ISC then be able to act on that information to investigate it or would the handling of the information cause its members and staff to be in breach of the Act? Finally, does the fact that these are statutory protections and not privilege mean that it would be possible for the Government or an employer to obtain an injunction preventing a witness appearing before the committee?
I do not raise those issues in any way as criticism. I repeat that we welcome the steps that the Government have taken towards the committee having greater parity with the powers and privileges of a full Select Committee. It would be helpful if the noble Lord could answer those points, although we broadly support the amendments and are grateful to him and to the Government for taking on board comments made by your Lordships and the Official Opposition in Committee and on Report.
My Lords, I thank the noble Lord, Lord Butler, and the noble Baroness, Lady Smith of Basildon, for their broad welcome for the amendments. This House has played a sizeable role in the process leading to the amendments. I do apologise. I was not deliberately seeking to delay the proceedings of the House but I felt it was important that I reported back as I see this as a significant change and one in which this House has played a key role.
The noble Lord, Lord Butler, asked about operational circumstances. I can provide the reassurance that there is no intention to restrict the ISC’s receipt of information on operational matters. The amendment makes it clear that information can be provided at the ISC’s request as well as by agencies or departments on their own initiative. I hope that reassures the noble Lord. He also referred to resources and asked for comfort. I am not sure that any Minister can give comfort on resources at the present time but perhaps I can say that the Government acknowledge that the ISC will require an increase in resources to reflect its expanded oversight role. However, as he rightly pointed out, negotiations are current. I would not want to comment further on those but I hope the noble Lord finds that that is of some comfort. It is certainly a recognition by the Government of the new role for the ISC.
The noble Lord also asked about restrictions on the ISC publishing material. It is not the intention to restrict the ISC from publishing non-sensitive and non-classified information in press releases or open letters. As I said, any information that could be in an ISC report can be published by it on an informal basis as well. I hope that gives a clear indication that things are not being made more restrictive.
I have a note here that might address the issues raised by the noble Baroness, Lady Smith—if I can read the detail. On the due protection supplied to witnesses providing written evidence, the answer is yes. On questions two and three about the handling of leaked information or an injunction preventing a witness appearing, it says here that I will write on those matters. I have to say that I hope I can write slightly more clearly than this note, which is meant to provide me with information. It does say that I will write. Given the nature of the questions, I think the noble Baroness will understand that it is important that I do not mislead the House by trying to ad hoc or wing it. I will happily write to her and place a copy of the letter in the Library. I beg to move.
Motion on Amendments 2 and 3
2: Clause 2, page 2, line 13, leave out from “as” to end of line 19 and insert “—
(a) the ISC and the Prime Minister are satisfied that the matter—
(i) is not part of any ongoing intelligence or security operation, and
(ii) is of significant national interest,
(b) the Prime Minister has asked the ISC to consider the matter, or
(c) the ISC’s consideration of the matter is limited to the consideration of information provided voluntarily to the ISC (whether or not in response to a request by the ISC) by—
(i) the Security Service,
(ii) the Secret Intelligence Service,
(iii) the Government Communications Headquarters, or
(iv) a government department.
(3A) The ISC’s consideration of a particular operational matter under subsection (3)(a) or (b) must, in the opinion of the ISC and the Prime Minister, be consistent with any principles set out in, or other provision made by, a memorandum of understanding.”
3: Page 2, line 22, leave out “(3)” and insert “(3A)”
Motion on Amendment 4
4: Clause 6, page 4, line 18, leave out from “may” to “make” in line 19
My Lords, I beg to move that this House do agree with the Commons in their Amendment 4 and in doing so, I shall also speak to the other amendments in this group. It is fair to say that the provisions dealing with closed material procedures have undergone significant changes since the Bill was first introduced into your Lordships’ House 10 months ago. This House made significant amendments to the Bill on important issues of principle. A number of noble Lords made their support for these provisions contingent on those changes being made. The Government have brought forward amendments that address the views of this House, and I believe that the measures in the Bill are proportionate and sensible.
In seeking to persuade your Lordships’ House that these amendments should allay the concerns expressed, we should remind ourselves briefly why the Government have brought the closed material procedure—CMP—provisions forward. Fundamentally, they will increase scrutiny of the intelligence and security agencies. CMPs will ensure that intelligence material which would risk the lives of agents and sources, or betray secret techniques is not revealed in open court. At present, the only method to protect very sensitive material such as the identity of informants from disclosure in open court is through public interest immunity. The problem is that a successful PII claim results in the exclusion of that material from the proceedings. Any judgment reached at the end of the case is not informed by that material, no matter how central or relevant it is to the issues in the case. This system works in some contexts, but when a case is so saturated in sensitive material the PII procedure can remove the evidence which one side needs to put their case. Settling is not always an option, and in serious cases involving accusations such as mistreatment, settling does not allow the court to get to the whole truth of what may or may not have happened. The other possibility is Carnduff-type strikeout, which also results in a case not being heard at all. We believe that CMPs offer a way through the dilemma. They enable the courts to ensure that allegations made against the Government are fully investigated and scrutinised, while addressing the potentially severe implications for national security.
A number of changes were made as the Bill proceeded through Committee and, principally, on Report in your Lordships’ House. There were six key amendments on Report, which it is fair to say were taken forward on the basis of a report from the Joint Committee on Human Rights. These increased the discretion available to the judge and allowed any party to apply for the CMP, and indeed for the court to order one, on its own motion.
Turning to the amendments, the Government have sought to take on board the concerns of the Joint Committee on Human Rights and amendments passed in your Lordships’ House. We have brought forward a completely restructured Clause 6—Amendments 4 to 15. There is also a proposed new clause, which is Amendment 16. It addresses the last resort concern by allowing the court to revoke a CMP declaration at any time. The Government’s proposals reflect the intention underlying the amendments made in this House, but also seek to avoid some unintended consequences that would cause problems in practice. Under these amendments the judge now has total discretion over whether to make a CMP declaration following an application by any party to the proceedings, or a Secretary of State, should the Secretary of State not be a party to the proceedings. The court also has the power to order a CMP declaration of its own motion. In making the case for CMPs, the Government argued that they can sometimes be fairer for claimants, too. The courts have confirmed that in some circumstances claimants’ cases will automatically fail without a CMP.
The Joint Committee on Human Rights, and this House observed and argued, rightly, that if CMPs are sometimes in the interests of claimants, they should be able to apply for them and the court should be able to order CMPs as well. These amendments make some technical changes to the amendments originally passed by your Lordships’ House, but they put all parties to proceedings on the same footing when it comes to making an application for a CMP declaration, and will allow the court to order one of its own motion. Where a non-government party is applying for a CMP declaration in relation to sensitive material they do not hold themselves, their interests will be represented by a special advocate in the closed part of the hearings determining that application. The Government have also fully accepted the amendment passed by this House that gave the judge discretion on whether there should be a CMP declaration. As I reflected in some conversations with my noble friends, many of us in our parliamentary lives have tabled amendments to change “must” to “may” or “may” to “must”. This House passed that this should be a change from “must” to “may”, which is possibly the most profound amendment that it made. It has some far-reaching consequences with regard to asserting judicial discretion. Previously, if the court was satisfied that there was relevant evidence that would damage the interests of national security were it to be disclosed, the court had no option but to make a declaration. Now the judge does have discretion.
The Shadow Justice Secretary Sadiq Khan, who sits in another place, was quoted last week in the Guardian as saying:
“The decision on whether or not to have court hearings in secret should be decided by a judge, not a minister”.
Indeed, that is what these amendments provide. The final decision on whether a CMP can be held rests with the judge not with the Secretary of State. The Bill provides the judge with the explicit power to reject an application.
The Government have also brought forward a revised test for a CMP declaration that we believe reflects other amendments passed in this House. Before considering an application from the Secretary of State for a CMP declaration, the court must be satisfied that the Secretary of State has first considered whether to make, or advise another person to make, a claim for public interest immunity for the material on which the application is based. Rather than requiring the Secretary of State to make a PII claim first, the court should check that the Secretary of State had good reasons to apply for a CMP declaration rather than claim PII. The court rules, which will require affirmative procedure in both Houses, will make it clear that where the Secretary of State is the applicant, the Secretary of State must provide to the court written submissions detailing the reasons for not making or advising another person to make a claim for PII in relation to the material on which the application is based.
The second hurdle is that the court cannot order a CMP unless there is relevant material that would damage the interests of national security if it were disclosed. The Bill makes no provision to order a CMP to protect material that would not damage the interests of national security if it were to be disclosed, that includes material that would merely be embarrassing to the Government. It has been asserted in a number of commentaries that this is simply a matter of trying to hide embarrassment. Let me make it clear that the relevant material must damage the interests of national security were it to be disclosed. Crucially, the court can order CMP declaration in the first place only if one would be in the interests of the fair and effective administration of justice in the proceedings. In examining what is in the interests of the fair and effective administration of justice in the proceedings, the court will want to focus on the relevance of the sensitive material to the issues in the case in order to assess how necessary it is to take it into account to resolve the issues in the case, and whether there are alternative measures that would enable the case to be tried without a CMP. The court will also want to take into account other factors, too. These may include whether both parties would consent to a CMP, the importance of the sensitive material to the issues in the case and the existence of material—such as intercept material—that could only be dealt with in closed proceedings.
A recurring theme in our debates has been a genuine concern about the potential overuse of CMPs; it has been said that they might become the default position. We have sought to ensure that this should be a matter of procedure used only in very exceptional circumstances. It is this concern that has fuelled the desire to ensure that CMPs are used only as a last resort. The Government are sympathetic to this aim, but for reasons I will come on to explain when I address amendments in the name of the noble Lord, Lord Beecham, we believe that writing this into the legislation will be problematic. Instead, the Government have addressed this concern in a different, and I believe more powerful way. The provisions in Amendment 16 have brought forward a new clause, putting the court under a duty to review the CMP declaration at the end of the pre-trial disclosure phase. I respectfully suggest that in the debate that has gone on since this amendment was introduced in another place, perhaps insufficient attention has been given to this particular new clause. The court must revoke the declaration if it concludes a CMP is no longer in the interests of the fair and effective administration of justice in the proceedings. The court has also been given the power to revoke a CMP declaration at any point in the proceedings.
When the court is reviewing the CMP declaration at the end of the detailed document disclosure phase, it will be in a much better position to make a final decision about whether or not to proceed with a CMP. At this point the court will have had the benefit of scrutinising in detail all of the relevant sensitive material, as well as all the relevant open material, and—with the assistance of special advocates—deciding what should be disclosed, whether a summary of any closed material not damaging to national security should be provided, and what is necessary for the proceedings to comply with Article 6 of the European Convention on Human Rights, even if that requires a summary that is damaging to national security. The judge would be required to revoke the CMP declaration if he or she considers that it would no longer be in the interests of the fair and effective administration of justice in the proceedings. If the court decided to revoke, the parties would then have to consider other options for handling the proceedings. We believe this is an extremely powerful tool in the hands of the judiciary to ensure that CMPs are not overused.
The government amendments advance our continued efforts to ensure that CMPs are and will be used appropriately, and that the courts, not the Executive, will have the power to control the process. The Government were urged by your Lordships’ House to rethink our approach. We listened and we brought forward this package of changes. I believe there is nothing in the objectives between the Government and the Joint Committee on these issues, and the amendments reflect a fresh approach that take account of the Committee’s views and the views of this House. Judges will be empowered to ensure that CMPs are available in those cases where they are needed, but that they will not be overused.
Amendment 17 provides that certain proceedings are to be treated as Section 6 proceedings for the purpose of certain clauses; this includes proceedings on or in relation to an application for a declaration and proceedings on or in relation to a decision of the court to make a declaration on its own motion. There are similar provisions in relation to revocation proceedings which are principally intended to cover circumstances in which the court has revoked a CMP declaration and the Government are appealing this decision. Amendment 17 also provides for who a relevant person should be in relation to such proceedings.
There are a number of consequential technical amendments in this group. Amendment 44 corrects a minor drafting error in one of the provisions of the Bill which amend the Special Immigration Appeals Commission Act 1997.
There has been very genuine concern to ensure that proper safeguards are in place. The amendment tabled by the noble Lord, Lord Beecham, and that tabled by my noble friend Lord Macdonald, reflect a belief that the Government have removed sensible and clear safeguards inserted by this House. Their amendments seek to provide that CMPs could only be ordered where a fair determination of the proceedings would not be possible by other means; and change the test for a CMP such that one would only be possible where the degree of harm to the interests of national security would outweigh the public interest in the fair and open administration of justice.
I understand why there is a desire to make these amendments, but I would wish to explain why we believe these are not sensible safeguards, but would instead damage what we are trying to achieve. Taken together, the amendments could be taken to mean that there could be a CMP only when the court had gone through and exhausted every other possible option. There would be uncertainty over what this might include and considerable scope for satellite litigation. If this amendment were made, the court may well consider it would have to conduct a full PII exercise on all the material in the case before it could even consider in principle whether or not there should be a CMP. Even if it was painfully obvious to everyone concerned that a CMP was the only way the issues in the case would be tried, or even where all parties agreed, this could add undue delay at the cost to the taxpayer and delay justice for the claimant.
At this stage, the court is considering the application for a CMP having not yet seen all the material in the case. When we were having earlier debates we referred to it as a “gateway”. Against this background, “not possible by any other means”—the wording of the amendment—establishes a very high bar to meet as it could be argued that the court could not establish definitively at this point whether a fair determination was possible or not by any other means, without demanding a PII exercise first. In order to satisfy this condition, the court would likely feel under a very heavy obligation to fulfil this test. Quite properly, it might be urged to do so by those who are representing the interests of the claimant. Even if the court was restricted to making this judgment only on the basis of the material supporting the CMP application, it is hard to see how such a judgment could be made based on only a sample of the relevant material. The court might then conclude that, despite what the statute says, it can fulfil the duty only by requiring a complete PII exercise.
In some cases, it may be clear to both the Government and the court that because the case is saturated with sensitive material a CMP is the best option. However, even when clear to the court that it would want a CMP, it may feel the clause directs it towards completing a process it believes is unnecessary. In such cases, the court should not be catapulted into such a situation. Instead, the judge should have the freedom to make the appropriate decision on whether a CMP should go ahead, without fear of having that decision appealed for having failed to adhere to restrictive process requirements set out in statute. If the court decides against a CMP, other options such as a PII application could still be considered and the court would be free to suggest this in refusing the CMP application or, indeed, revoking the CMP declaration at any point in the case.
It is the Government’s clear intention that the procedure should be exceptional. However, requiring that a CMP should be only a last resort would require the exhaustion of all other avenues first. I recognise that the JCHR disagrees with this view and does not believe that the amendment would have this effect. However, legislation agreed by Parliament must be clear and not be open for uncertainty, which could give rise to satellite litigation and to delayed justice for the claimant.
Passing this amendment would effectively be no improvement on the present position. The Guantanamo civil damages claims were settled in part because a PII exercise for a quarter of a million documents would be so costly and time consuming that a settlement would be cheaper, faster and more certain.
The main point is that with PII the time-consuming disclosure process leads to material being excluded, thereby leaving the Government in a position where they have excluded the material on which they may need to rely to mount a defence. With a CMP, the document disclosure exercise serves the purpose of deciding what material should be considered in closed or open procedures and what is required for the process to comply with Article 6. The disclosure process is a pre-requisite for relevant material to be considered in the court’s determination of the case. The revocation provisions enable the judge to have made these considerations about the handling of material and at the end to decide whether or not still to go ahead with the trial of the issues using a CMP for the closed elements. This provides the reassurance that a CMP would be used only where the judge still considers it both fair and effective.
In order to come to a conclusion about whether a CMP would be fair and effective means that the court will, by its definition, consider other possible ways to try the case and whether they, too, would be effective as well as fair. We should have no fears that a court would enter into a closed process lightly.
My noble friend Lord Macdonald has also suggested that we introduce a version of the Wiley balancing test. I can see why people think it would be attractive to seek to import into the decision of whether or not there should be a CMP the same test as has been devised in relation to PII. However, that test is not right in this context for a number of reasons. First, PII simply is not working to enable these cases to be tried effectively. If it were, we would not be bringing forward this Bill. Secondly, the Wiley balancing test is used in a very different context. In PII, the judge is considering whether or not to exclude the material. It is appropriate for him to balance the damage that would be caused by disclosure against the public interest and disclosure in terms of the administration of justice.
However, when considering whether or not to grant an application for a CMP declaration, the court is faced with a very different scenario. It must decide the best way to try the case given that there is relevant material which would damage the interests of national security were it to be disclosed. That is a much more nuanced decision. As I have made clear, the availability of alternatives to a CMP, such as PII, will be a key consideration for the judge, as well as other factors such as the degree of relevance of the evidence to the issues in the case, whether there is relevant material, such as intercept, that can only be dealt with in a CMP and whether other parties consent.
My noble friend’s amendment also assumes that fairness will always sit on the side of fully open justice but in some cases the sensitive information will be helpful to the claimant, which makes it fairer. PII would exclude this information.
This is simply the wrong test for these proceedings. The Government’s amendments allow the judge to look at a wide range of relevant factors, set them against each other and decide whether or not a CMP is the best way to proceed with the case. The judge cannot order a CMP unless it is in the interests of the fair and effective administration of justice in the proceedings, but even then he has discretion about whether or not to grant an application.
This House was clear from the outset of our debates at Second Reading that the courts should be given the discretion to decide whether a special procedure should be invoked in cases that hinge on sensitive national security information. In these amendments, the Government have provided for the court to be given that discretion. Judicial discretion is vitally important but it must be provided for in the right way and at the right stage of the process for it to be meaningful, and it must have regard to the Government’s responsibility for matters of national security.
The Bill is targeted at dealing with a specific problem which has arisen since the Supreme Court ruling in 2011 that it was for Parliament to decide where and how CMPs should be available. No one warms to the idea of closed material proceedings, but we have made some fundamental and important changes to the Bill which allow for closed material proceedings to proceed.
The noble and learned Lord, Lord Woolf, who is in his place, recently said in the Times that there are a minority of cases where the sensitive evidence cannot be put before an open court in a way that achieves justice. He said that for this reason the proposals contained in the Justice and Security Bill which allow the judge to order a closed material procedure in a civil case have a great advantage over the existing process for protecting national security evidence. They will ensure that both the Government and the claimant are given the greatest opportunity to put their case, and that concerned citizens will have the benefit of a final judgment on whether serious allegations have foundation. What is important is that the operation of these CMPs should be under the complete control of a judge. That the Government have now given judges 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 a small number of cases.
The Government have been urged to rethink their approach. We have listened and we have brought forward, substantially, a new structure for closed material proceedings. We have embraced the spirit of the amendments passed by this House and recast them to give them practical effect. I commend the amendment.
My Lords, I wish to speak to Amendment 6A as an amendment to Amendment 6.
During the Second Reading debate on the Bill I referred to the obvious difficulty that your Lordships faced in calibrating the balance between the two desiderata of justice and security. There were some then, as there are now, who took the view that such an exercise was unnecessary, and indeed wrong in principle, and that the interests of justice must at all times and in all circumstances be paramount. On that basis, they urged that Part 2 of the Bill dealing with closed material procedures should be struck out. That was not the view of your Lordships’ House which, following the advice of the Joint Committee on Human Rights and the eloquent and forensic advocacy of the noble Lord, Lord Pannick, in particular, chose instead to amend the Bill and to circumscribe the application of a new procedure.
Those who would have wished to prevent any departure from the traditions of our system, which have long required that a party in a civil case should know the case he has to meet, must acknowledge that such a course is now no longer open to us. Our task, therefore, is to consider the Commons amendments and determine whether they have gone far enough in striking that delicate balance or whether, as I believe, further adjustments need to be made. I acknowledge and welcome the Government’s acceptance of some of the changes agreed by this House. In particular, as the Minister has pointed out, there is much more judicial involvement in the process than the Bill in its original form envisaged.
I also remind your Lordships of the serious implications for our system of justice of the Bill as it now stands and, to be frank, as it would stand even if, as I hope, we make further amendments and invite the House of Commons to think again about a small number of important issues. To a long line of pronouncements in this area by the most eminent judges we can now add the recent concerns expressed by the president of the Supreme Court, the noble and learned Lord, Lord Neuberger. Nor can we overlook the cavalier and, it might be thought, analogous approach of the Government to such different but cardinal areas as the deployment of emergency and retrospective legislation, demonstrated as recently as last Thursday and last night over the Jobseekers (Back to Work Schemes) Bill.
That is why we need to build on the progress made thus far in improving this Bill in three areas in particular. Two are embodied in amendments in this group in my name and that of the noble Lord, Lord Macdonald of River Glaven, dealing with what we may term, by way of shorthand, as the principles of last resort and judicial balancing respectively, reflecting the amendments moved so powerfully by the noble Lord, Lord Pannick, who would be moving them today had he been able to be present. The third area is that of a process for renewing the legislation after a period, to which we will come later. I propose to deal principally with the amendment in my name, but I whole heartedly endorse, and will say a word or two about, the amendment in the name of the noble Lord, Lord Macdonald. I am authorised by the noble Lord, Lord Pannick, to say that he entirely supports these amendments. His recent article in the Times makes his views clear.
The first amendment, Amendment 6A, effectively seeks to restore the position set out in the Bill which left this House, in making the use of closed material procedures a last resort. Amendments 16A, 16B and 16C import the same principle into the process for the court’s review of its decision contained in government Amendment 16. I consider these to be consequential upon this first amendment. I trust the House will forgive me if I remind noble Lords that closed material procedures allow the use of material not disclosed to the other party, who is therefore not able to give effective instructions, even to the highly security-vetted special advocate appointed to assist him. The amendment seeks to correct this by requiring the court to consider whether a fair determination of the proceedings is not possible by other means, such as some of the processes available under PII, the public interest immunity procedure. These include a range of options, such as the gisting of the case, redaction, the giving of evidence by security agents from behind a screen, and more besides.
In relation to PII, it is interesting to note that the Government appear to be taking a somewhat inconsistent approach. Inquest proceedings, after all, will not be covered by the provisions of the Bill. The Government have constantly represented PII as a lengthy process which leaves them in a position where they might feel compelled to choose to settle a case rather than disclose information. Sweeping, if unsubstantiated, claims have been made about millions of pounds having been paid, or potentially having to be paid, to unidentified numbers of unidentified terrorists, to be used for unidentified purposes. Perhaps the noble and learned Lord could enlighten us as to the number of claimants who have received compensation, and who have been charged with any offence, been made subject to a control order or similar constraint, or had their compensation frozen—as it could be—on the grounds that it might be used for terrorist purposes. After all, the Minister without Portfolio, Mr Clarke, said:
“We expect only a handful of cases”.—[Official Report, Commons, 04/03/2013; col. 705.]
The notion that there is a great tidal wave of cases waiting to sweep over us and our system, involving vast expenditures, seems to have been exaggerated, to put it mildly, in the light of the Minister’s remarks just a week or two ago.
As the noble Lord, Lord Pannick, pointed out in his article, under the PII procedure, the courts are,
“able to reconcile justice and security by taking steps”,
such as those to which I have referred. He went on:
“Only if those methods cannot protect security, and allow for an open assessment or at least a gist of the case against the claimant, should the court consider moving into a closed session”.
He went on to dismiss the Government’s contradictory responses, namely that judges would adopt that approach in any event, and that such a safeguard would be too time-consuming. He also went on to rebut the Government’s counterargument against balancing the interests of national security against the public interest in the fair and open administration of justice, pointing out that this is exactly what the PII procedure involves. He is of course, as the noble and learned Lord has pointed out, not the only Member of your Lordships’ House to have contributed to the columns of the Times on these issues. His article may be seen in part as a reply to a letter from the noble and learned Lord, Lord Woolf, expressing approval of the amended Bill’s provisions in relation to CMPs, to which he has referred at some length.
It is with more than usual trepidation that I join the noble Lord, Lord Pannick, special advocates, the Joint Committee on Human Rights and the Equality and Human Rights Commission in respectfully dissenting from the conclusions of the noble and learned Lord, Lord Woolf. These, while properly welcoming the positive responses by the Government to amendments carried by this House, for which the noble and learned Lord voted, effectively endorse their position on the issues of last resort and balancing. The noble and learned Lord referred in his letter, not unreasonably, to the fact that in a minority of cases, and I use the same quotation as the noble and learned Lord:
“The interests of justice are not served when courts are blindfolded”.
The consequences of closed material procedures are that claimants are both blindfolded and effectively gagged, even in cases of habeas corpus. The Minister without Portfolio has, after some initial confusion about the matter, conceded that the Bill would apply to this, one of the most fundamental parts of our English common law. It is not unreasonable therefore to require the court to determine that the case cannot fairly be decided by any other means, rather than it having merely to be satisfied that the Secretary has, in the words of proposed new subsection (1F),
“considered whether to make, or advise another person to make, a claim for public interest immunity”.
That sets a very low bar for the Secretary of State to surmount. He has only to have considered it. Concern about the Government’s overall position can only be enhanced, despite their bland assurances, by the form of words set out in proposed new subsection (1D) in Amendment 6, which makes two substantial changes to the amendment carried here on the recommendation of the Joint Committee on Human Rights. Members may recall that Clause 6(2) of the Bill which left us stipulated that the court may make a declaration allowing CMP if, were the material to be disclosed, the degree of harm to the interests of national security would be likely to,
“outweigh the public interest in the fair and open administration of justice”.
Under Amendment 6, proposed new subsection (1D) changes this to impose the condition that,
“it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration”.
Openness is therefore replaced by effectiveness, a very different concept. Effective, one might ask, from whose perspective? Is it that of the party, presumably the Government? Openness now counts for nothing. The phrase “in the proceedings” is added, excluding the wider considerations of the public interest. The concept of balancing the two interests disappears. This applies also to Amendment 16, on which the noble and learned Lord seeks to rely.
The Minister without Portfolio likes to paint with a broad brush. He claims that the effect of these amendments would require the Secretary of State and the court to go through all the documents before an application for a CMP is made. They would not. As the special advocates point out, disclosure under present statutory CMPs is no less time-consuming than PIIs. Once having examined the documents, the court could consider whether PII could lead to a fair trial without having to undergo a full PII exercise. The Secretary of State has only to consider whether a PII claim could have been made. He is not under an obligation to go through every document.
Mr Clarke’s adherence to liberal principles over the years has earned him many admirers in a lifetime in politics, although not necessarily within his own party. I hope that, by endorsing these amendments, the House can not only help to minimise the damage threatened to the most valued elements of our jurisprudence and judicial system, but help rescue the Minister without Portfolio from self-inflicted damage on his reputation for upholding those liberal values, as he comes to the end of his most distinguished career. In the name of our cherished traditions of fair and open justice, I invite your Lordships’ House to support the amendments.
My Lords, I speak to Amendment 6B in my name. Everyone accepts that CMPs represent a significant departure from normal rule of law principles. Many people accept that they also contain a strong strand of unfairness, and that this unfairness consists in the exclusion of one of the parties from a critical part of the proceedings, perhaps even that very part of the case in which the defining issue is decided. Therefore, the claimant can never know the evidence that has damned his cause—it is never revealed to him.
Let us be blunt about this. The party withholding the material, and gifting it to the judge in secret, will almost always be the Government. The illiberalism inherent in the Bill seems to me to lie in this. CMPs as presently constituted are not fair, because they do not and cannot deliver balanced justice between the citizen and the state. This is the finding of the JCHR; it is the finding of those eminent lawyers appointed by the Government to conduct closed proceedings, the special advocates; and it was the overwhelming conclusion of this House when last we debated these measures. It is no doubt in recognition of this central unfairness that the Government insist, and the Secretary of State has repeatedly insisted, that it is their fervent desire that CMPs should only ever be used as a last resort.
Words are cheap. What does the future hold? The real question is: does the Bill as presently drafted secure that promise that CMPs shall remain a wholly exceptional device to be deployed only in the most wholly exceptional circumstances? The JCHR thinks not. The special advocates think not. Your Lordships’ House, when it last debated these issues also thought not. It is a matter of regret for me that my party, in the face of this striking illiberality at the heart of the legislation, associated itself with the removal in the other place of safeguards previously added to the Bill by your Lordships. I believe that that was a grave mistake and that, as a result, the Bill presents renewed risks.
What of the amendments? The amendments proposed by the noble Lord, Lord Beecham, and I simply seek to ensure that which the Government affect to guarantee: in the noble Lord’s case, that CMPs should be explicitly and unmistakably a matter of last resort—who will argue that they should not?—and, in the case of my amendment, that the court must, when considering the drastic, wholly exceptional step of going into closed session, ejecting one party from the court and listening to the other in private, pay heed to the deep public interest in open justice, balancing it in coming to a conclusion on whether to move into secret session.
The Secretary of State told the JCHR that it is not for a court to weigh the merits of open justice in deciding whether to go into closed session, because CMPs are not about open justice, they are about secrecy. That alarming response, which may have revealed more about the Government’s mindset than Mr Clarke intended, presupposes that applications by the Government for CMPs will always be well founded and will only ever allow for one response. That is precisely the point: they will not.
Nothing would be more corrosive of justice and public confidence in justice than the routine intrusion into our system of closed procedures, of secret courts, of excluded defendants, of confidential meetings between government lawyers and the judge. Without adequate safeguards, that is exactly the risk we run. I in no sense intend to criticise the security agencies by saying this, but why would not they choose a CMP over a PII hearing if they had the choice? Why would they not choose secrecy over openness, and why would a Home Secretary not do the same? Why would the Home Secretary, a government department or a security agency not want to use the CMP process whenever they possibly could? The answer is absolutely plain: they would and they will. If we are not careful, we will see secrecy trumping openness time and again.
The courts—the judges—must be empowered fully to do justice in individual cases. It is the fundamental duty of a judge to regulate the fairness of the proceedings before him. This legislation must allow a judge to discharge that duty. In short, the judge must be empowered and permitted to pay heed to the public interest in open justice when he is faced with a government application to go into closed session. That is because closed justice is, on the face of it, so inimical and contrary to our long traditions of fair process, and openness and transparency in justice, so intrinsic to our way of life and our legal processes, that to close down a court, to expel a claimant, without first balancing the virtues of justice being seen to be done is, or should be, unthinkable. If my amendment has any purpose, it is simply to hold the line.
My Lords, I shall confine what I have to say to Amendment 6B, now that it has been spoken to by the noble Lord, Lord Macdonald of River Glaven. I am of course conscious that when this amendment was moved by the noble Lord, Lord Pannick, on Report, it was carried by a very large majority, but I voted against it at the time and do not support it now, for two reasons.
First, I like the wording of the Commons amendment. It seems to me to fit the bill. In particular, I support the inclusion of the word “effective”—as well as the word “fair”—in the phrase,
“fair and effective administration of justice”.
For the same reason, I will not be able to support Amendments 16A, 16B and 16C, tabled by the noble Lord, Lord Beecham, which would remove that very word, which seems so important. In my view, “effective” is the key word, le mot juste, in this context. It sums up in one word the whole need for and purpose of the closed material procedure.
A system of justice is surely ineffective if one party to the proceedings, whether claimant or defendant—I am glad that it now includes claimants—cannot put forward his case, or his whole case, without the need to disclose sensitive material. The purpose of the Bill is to cure that defect. That is why I support the second condition, as set out in proposed new Section 1D of the Commons amendment, and find that I cannot support the amendment of the noble Lord, Lord Macdonald. The word effective, particularly coupled with the word fair, provides the judge, who has to make those decisions, with all the help that he will need. For that reason I do not support the noble Lord’s amendment.
There is another reason why I cannot support the amendment, which was the reason I voted against it when it was moved on Report by the noble Lord, Lord Pannick. The wording of the amendment is said to come from a case called Wiley, which was decided so long ago that I had forgotten that I was a party to the decision. I find that I was, together with my noble and learned friend Lord Woolf. The difference between us was that my noble and learned friend gave a very long speech. He was followed by me, who agreed with everything that he had said—in a very short speech. I hardly need say that counsel was the noble Lord, Lord Pannick.
The case has long since been superseded; indeed, I cannot find it in any current textbook. However, looking at it again this afternoon, I could not find anything that supports wording quite as wide as that proposed in the amendment. In any event, the Wiley balance was useful, as I remember it, and as the noble Lord has explained, in applications for public interest immunity, where the judge had to weigh the harm done to the public interest by admitting a particular document or documents against the harm done to a particular defendant or party in the case by excluding those documents.
That was always a difficult balancing act, but it was possible because it was a specific test which he had to apply. As I said, it served a useful purpose. I cannot regard it as a useful test in this context. How is the judge to evaluate the public interest in the,
“fair and effective administration of justice”?
That is far too wide and imprecise to be of any utility, certainly in the context of deciding whether to make a declaration under Clause 6. It gives the judge no help at all in making that decision. For that reason, too, I cannot support the amendment.
My Lords, I will address Amendments 6A and 6B and the consequential Amendments 16A, 16B and 16C. I will not repeat all the arguments made by the Minister, but I agree with them. Like the noble and learned Lord, Lord Lloyd of Berwick, I cannot accept Amendment 6A or Amendment 6B. As a non-lawyer, when I read Amendment 6A I interpreted it exactly as the Minister feared the court would be forced to interpret it: that it would have to try every other possible method before it came to the CMP.
I hope that the noble Lord, Lord Macdonald of River Glaven, will forgive me for saying that when I read Amendment 6B I wondered if he meant it to be a wrecking amendment. When I heard him explain it he seemed to confirm that suspicion. He is arguing against the whole concept of CMP. Why are we here? We are not here because we want to go into this kind of judicial arrangement but because we have got a big problem on our hands. The previous Government had it and this Government have now got it. People are going into the civil courts and suing officers of the intelligence and security services, accusing them—rightly or wrongly—of doing terrible things such as being implicitly involved in torture and extradition. The services cannot defend themselves because they cannot put material into a court.
There has to be a solution and the solution is not PII, as some people seem to think. I would also like to quote the noble and learned Lord, Lord Woolf—if he will forgive me because he is in his place—not from the excellent letter quoted by the Minister, but from what he said in a debate on this issue in this House on 11 July last year. He said:
“I should also make it clear that I think that the noble Lord, Lord Carlile”—
who had just spoken ahead of him—
“is right in saying that in most situations that are covered by the Bill the result will be preferable to both sides”—
“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 may want to rely on that material. That is a good reason for having the closed-hearing procedure”.—[Official Report, 11/07/12; col. 1189]
I very much agree with that.
The amendments that I have mentioned do not improve the Bill in any way. In fact, they are to the detriment of the Bill. This is a problem which the previous Government had to wrestle with, the present Government are having to wrestle with and the House has to wrestle with it. Now that they have included the latest Commons amendment, the Government have made a very good attempt at trying to square what we all want, which is a fair trial. That must include, in the civil court, members of the security and intelligence services so they can bring a defence to accusations against them.
My Lords, in rising to support this Bill I confess to a particular interest in the legislation. Many years ago—although not quite as long ago as the noble and learned Lord, Lord Woolf—as Treasury Counsel I was required to advise and act for the Government in national security, public interest immunity cases. For six years after the passage of the Regulation of Investigatory Powers Act 2000, I was the Intelligence Services Commissioner responsible for retrospective judicial oversight over the various intelligence agencies. For considerably more years than that, I have been involved, as a member of the court, in most of the national security cases that came before us, including the control order cases and the expulsion cases like that which sought to return Abu Qatada to Jordan, on which the litigation still continues. The Al Rawi case relating to Guantanamo Bay, although it was settled before it came to us, came on the issue of principle which was whether, as a matter of common law, the courts could order a closed material procedure. The majority of us held not. We held that only Parliament could sanction so fundamental a departure from the principle of open justice. Hence Clause 6 is now before us.
The principle of open justice is, as we all acknowledge, of the highest constitutional importance. It is rightly regarded as lying at the very heart of the object of fair trials. Ordinarily, closed procedures—or, as colloquially known, secret hearings—are simply not to be countenanced. There are those who argue that nothing—no countervailing interest whatever—can ever justify any encroachment upon that prized, sacrosanct principle. The noble Baroness, Lady Kennedy of The Shaws, said this on Report. Dinah Rose and Philippe Sands, both distinguished Silks, said it recently when they resigned from the Liberal Democrats at their spring conference. Shami Chakrabarti, the director of Liberty, said it three weeks ago at Lincoln’s Inn in a debate with Ken Clarke, which I attended. I have the greatest respect for all of these, but I am convinced that in the tiny minority of cases which have been identified by David Anderson, the independent reviewer of terrorism legislation, as cases to which this legislation will apply, such an absolutist approach is wrong. The apparent purity of this approach must yield to the imperative needs of national security. The absolutists contend that, where national security precludes the Crown from disclosing the documents that are needed for the defence, the Crown must simply pay up. In a judgment in a case called Tariq, which we heard together with the Al Rawi Guantanamo cases, I described that contention as “wholly preposterous”. I stand by that and that is now the view of the majority of both Houses.
The remaining question is just when this proposed new statutory power to hold closed hearings should be permitted and, more particularly, what safeguards should be included in the legislation to ensure that it is used only in this tiny handful of cases where a closed hearing is absolutely essential for justice to be done. I agree that this Bill has, happily, been hugely improved from when it was last before the House. It has clearly been conceded that the decision in these cases is for the judge and not the Minister. Consistent with this, the legislation now gives the judge a clear discretion: the original word “must” is now “may”. In these circumstances, the Government now suggest that no more is needed. I readily recognise and acknowledge that that view could be taken but in my judgment it should not be and I join with those who urge the contrary.
This legislation involves so radical a departure from the cardinal principle of open justice in civil proceedings, so sensitive an aspect of the court’s processes, that everything that can possibly help minimise the number of occasions when the power is used should be recognised and should appear in the legislation itself. These two amendments each serve an important purpose. The first—what is called the last resort amendment—reminds the judge that there may be other possible, less objectionable ways of meeting the needs of those, generally the Crown but sometimes the claimant, who seek to rely on evidence, whether oral or written, which in the vital interests of national security cannot be adduced in open court. I am not referring here, principally, to public interest immunity claims. I am no great enthusiast for public interest immunity. Generally, a successful PII claim precludes the material being used at all, which surely is an even worse option than a closed material procedure. In any event, as has been pointed out, the PII exercise can itself on occasions be quite ridiculously laborious.
In our judgments in Al Rawi we recorded, as the Minister observed, that the claims there were said to involve up to 250,000 potentially relevant documents, of which up to 140,000 might give rise to national security considerations, so that a conventional PII process could take 60 lawyers dedicated to working on the documents upwards of three years to complete. I am certainly not advocating that judges should ordinarily or routinely require the Secretary of State to go down that route—plainly not. Sometimes, no doubt, public interest immunity might be appropriate but I am mainly considering here the judge’s powers to order as necessary other, lesser solutions to the problem: the redaction of parts of documents; the gisting of material; the summarising of evidence; or, with regard to oral evidence, the witnesses appearing from behind screens or perhaps anonymously—things of that sort.
Amendment 6B would ensure that the judge strikes a balance. There may be occasions when, although national security is judged to be at risk, it is nevertheless better to take that risk than to allow a secret hearing. National security, everybody agrees, cannot be defined but by its nature the risks to national security can vary, and considerably. Sometimes they may be truly grave and simply insupportable; at other times, realistically not. Sometimes the danger may threaten the lives of thousands, perhaps with a real likelihood of the risk developing were the material to be allowed to go into the public domain. At other times, the risk may in fact be comparatively small; perhaps the revelation of a minor detail of some little used capability of an intelligence agency. Quite possibly, it will be something of which terrorist organisations already know. Remember, there is a real public interest in the fair and open administration of justice, and a real downside to going into closed session.
As we noted in Al Rawi, the dismissal of a claim after a closed hearing may prove something of a Pyrrhic victory for the Crown. It may at the same time fail to vindicate the Crown’s reputation yet damage significantly the reputation of the court itself. The judge may therefore decide, although I recognise only very rarely, that a small risk to national security is a less bad option than a departure from open justice.
To conclude, closed hearings are of course a price worth paying in a tiny handful of cases that cannot otherwise be fairly tried at all—cases where either the Crown or the taxpayer simply pays up—or where, in an equally unpalatable option, the claim must be struck out as not fairly triable at all, but those cases must be kept to an absolute minimum. It may be doubted whether any particular case will in fact be decided differently, whether or not these amendments pass. However, on this highly sensitive issue—one which rightly exercises innumerable people up and down the land—these amendments would send out important salutary messages. They would demonstrate to the wider world that the House is truly alive to the critical importance of open justice as a guiding principle of our law. We ought not too readily to give our approval to secret hearings and if, as I hope, the House divides, I for one shall vote for these amendments.
My Lords, it is too late in this process to take the view that closed material procedures can never take place. I have grave doubts about this. It was something that we considered when I was in government, when we had to deal with special procedures in relation to control orders and where people’s liberty was at stake. This is a different order, which is to do ultimately with money. Be that as it may, we are past that point. The question we must ask is: under what circumstances should they exist? Both these amendments, which I support, although not quite in the terms in which Amendment 6B was put forward by the noble Lord, Lord Macdonald of River Glaven, are important, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, has just explained. I want to focus particularly on Amendment 6A.
Amendment 6A requires that the court should be satisfied that a fair determination of the proceedings is not possible by any other means. I thought that was something which this House had now accepted as an absolutely fundamental condition. It may be that CMP had to happen sometimes—many of us do not like the idea that it happens at all—but if it does, it is because that is the only fair way of determining it. Why is that resisted? As I understood it from the Minister, it is thought that somehow that condition is met by new subsection (1F) in Amendment 6. That says:
“The court must not consider an application by the Secretary of State under subsection (1A)(a) unless it is satisfied that the Secretary of State has, before making the application, considered whether to make, or advise another person to make, a claim for public interest immunity ”.
My noble friend Lord Beecham said that that is a very low bar. It is an extremely low bar and it is very important to recognise that.
This does not begin to approach the question of a determination by the court—the judge—as to whether this is the only fair way of determining the issue. All he has to do is to decide that the Secretary of State has considered whether a PII application should be made. That determination will take 30 seconds. Counsel appearing for the Secretary of State will say, “The Secretary of State has considered it”. There is no going behind that and, indeed, it will be true. The Secretary of State will have considered it. He may have rejected it on the grounds that he has very carefully considered it and decided that it was all too difficult, or simply because he thinks it would be expensive, which was part of the point made by the Minister, or just that he does not like the idea of doing it because he really wants a CMP to be made. That is no safeguard at all. If any noble Lord thinks it amounts to some equivalent of a determination by the court and that the court’s view is that no other way can be found of fairly determining the case, he would be quite wrong.
Why, then, would this amendment tabled by my noble friend Lord Beecham be rejected? It states:
“If the court considers that a fair determination … is not possible by any other means”.
There are only two possible reasons for rejecting the amendment. One is that we would actually like to see CMPs even if there is another way of determining the proceedings and so the fair determination of proceedings would not only be by CMP. It would be a very retrograde step to accept that. It would absolutely be the message that the noble and learned Lord, Lord Brown, has indicated that we must not send. The other reason would be that we do not trust judges to make that determination. I very much hope that this House will not for one moment countenance the proposition that when it comes to deciding whether a case can be fairly determined we would not trust the decision of our courts. I will warmly support my noble friend if he divides the House. I will support Amendment 6B but it is Amendment 6A that I have particularly spoken to.
Before the noble and learned Lord sits down, perhaps I may ask a layman’s question. It may be an oversimplified one. The essential condition the court has to be satisfied with is not, principally, whether the Secretary of State has considered PII—that is certainly one of the conditions—but that it is in the interests of the fair and effective administration of justice in the proceedings to make such a declaration. Is that not the principal test and what all this is about?
The principal test should be whether the only fair way of determining the matter is through a CMP. That is a very simple statement. It is a very simple test but for some reason the Government do not want to accept that as the test that should be applied.
My Lords, I rise to speak briefly to Amendments 6A and 6B in this group and I am privileged to serve as a member of the Joint Committee on Human Rights. As the committee has been considering this matter since the Green Paper, I am probably as familiar with it as my noble and learned friend Lord Wallace.
The language of last resort that has now been adopted in Amendment 6A is quite suitable. The words,
“is not possible by any other means”,
reflect the recent statement of the noble and learned Lord, Lord Neuberger, in Bank of Mellat v HM Treasury in the Supreme Court when the Supreme Court allowed consideration of a closed judgment in a closed material procedure. He stated that,
“this is a course which is to be taken only where the court is satisfied that it is absolutely necessary to dispose of the appeal justly”.
I reiterate the point that, although I share the concerns of the noble Baroness, Lady Ramsay, about the reputation of those who serve in our security services, this Bill will affect the reputation of the judiciary and, as my noble and learned friend Lord Wallace has outlined, these cases are ones saturated in this type of sensitive material. It is a matter of logic that a judgment in a case that is so saturated runs the risk of being almost completely blank and we face the situation where claimants will appear on the sofas of our breakfast television programmes with judgments from our courts that literally are blank.
This concerns not just the cases of the Guantanamo Bay claimants—I am proud to live in a country where citizens can go to our courts and sue members of our security services. The claimants may also include other people. I have mentioned previously the family of Gareth Williams. We know that his unfortunate death is currently under investigation but often if a prosecution is not brought the family will bring civil proceedings. We are talking about a situation where the parents of someone like Gareth Williams will be excluded from our courtrooms.
It is also most worrying that Her Majesty’s Government have not won the support of the special advocates as to the merit of these closed material proceedings. I speak as a former lawyer. They will gain work if there are more closed material procedures but we have not won their support. In fact, it is their complaint, long-standing according to the recent evidence of Mr David Anderson QC to the Joint Committee, that in SIAC and other jurisdictions there is “occasional overuse of CMP”. In addition, SIAC exceptionalism has not been maintained and CMPs have crept into other jurisdictions. I believe that this amendment guards against that kind of creep in civil forums. The amendment is also worded in a fashion that does not require a full PII process to be gone through before our extremely experienced High Court judges can determine “any other means”.
Why it should be,
“not possible by any other means”,
is also because, arguably, any other means is better than a CMP. I note here what my noble and learned friend Lord Wallace outlined about obtaining the whole truth. It is common that there are serious doubts here as to whether the whole truth will always be obtained when one party to the proceedings is not in the courtroom. I say “arguably” as we have never received figures, although we have requested them, for PII on the grounds of national security that leads to the total exclusion of the evidence produced by the Government. I have never been convinced of the Government’s position that expelling one party to the proceedings and running the risk of evidence not being challenged is better justice than excluding some evidence, not a party, from the hearing, however relevant the evidence is. It is better for the Government but not for justice.
I do not wish to appear glib as I accept that there are serious matters to be considered such as the security of our intelligence sources, their reputation, the reputation of the judiciary, the reputation of justice and the fact that these cases arise where there are serious human rights abuses. However, I find it odd that since your Lordships’ House last considered this Bill Her Majesty’s Government settled a claim by Mr al-Saadi for £2.2 million after he said that the UK was involved in his unlawful rendition to Libya. Why did the Government not wait for the legislation so that they could have a CMP? It leads me to wonder that it is not every case that the Government cannot defend because they do not have access to a CMP and so pay out taxpayers’ money with the security services taking a reputational hit. I happen to think that, in the minds of the great British public, if there is such a reputational hit, it is far outweighed by the kudos of the James Bond brand.
Amendment 6B appeals to the need to take into account the public interest in the fair and open administration of justice. Right from the beginning of this process with the Green Paper, there has been scant, if any, recognition by the Government of the principle of open justice. Perhaps it is because, unlike in the time of Charles Dickens where open justice meant that trials were public entertainment, open justice today is ordinarily journalists being the eyes and ears of the public. The attitude of many to journalists due to phone hacking should not taint the public view of journalists such as Joshua Rozenberg and Gordon Corera who report inquests and matters in this area of law. That is a vital public function.
The test as the Bill currently stands is,
“in the interests of the fair and effective administration of justice in the proceedings to make a declaration”,
and it is not sufficient as quite simply this is not a balancing test, Wiley or otherwise. It is not a balancing of interests. It says you merely put this on one side of the pan of the scales and regardless of what is weighing on the other side it goes into a secret procedure. Not all that would ordinarily be in the Wiley balancing test will, in my view, be included in the test in the Bill. As this is such an irregular trial procedure to adopt, it should be a competition of interests, a battle even for the Government to show that national security outweighs fair and open justice and that the nature of these proceedings is so unusual and so contrary to our principles of a fair trial that it should be only when nothing else is possible.
To conclude, I can do no better than to refer to the statement of the noble and learned Lord, Lord Neuberger:
“It must be emphasised that this is a decision—
to go into a closed material procedure—
“which is reached with great reluctance by all members of the court; indeed it is a majority decision. No judge can face with equanimity the prospect of a hearing, or any part of a hearing, which is not only in private, but involves one of the parties not being present or represented at the hearing”.
This is an unhappy procedure—again, to borrow the language of the noble and learned Lord, Lord Neuberger—and, as such, judgments are secret for 30 years. That was clarified to the Joint Committee. I sincerely hope that I am wrong that the Lord Hennessy of the future will have an annual TV slot at the turn of the new year at the National Archives in Kew uncovering judgments that, had they been open, would have been appealed and the government of that day, again, pay out millions of pounds in compensation, and not even “Skyfall”, which I believe is currently keeping Peers occupied in Committee Room 2, would save the reputation of MI5, MI6 and our judiciary.
My Lords, as a former Minister with responsibility for MI6 I realise that although it has a need to have and an interest in having its views expressed—and that was done very well by the noble Baroness, Lady Ramsay—there is also a prior consideration, and that is to write on to the face of the Bill that we have almost unanimously agreed that this closed procedure can be done only in a tiny minority of cases, or, as other spokesmen have said, only as a wholly exceptional device. I can see no objection whatever to the wording of the amendment of the noble Lord, Lord Beecham, and I profoundly hope that it is agreed to.
The other amendment, proposed by the noble Lord, Lord Macdonald, raises very serious questions about whether we would see this new procedure, which I now think is necessary, in operation. I agree with everything that the noble and learned Lord, Lord Lloyd, said about that and I do not need to repeat his arguments. I think that some would regard the amendment as a blocking mechanism, although I am sure that it was not proposed in that way; I am sure that it was proposed as a double safeguard. However, it would not deal with the issue that, above all, has concerned me: how you protect source material, particularly if it comes through the intelligence of another country. We cannot imagine that a totally rational debate will always take place in a law court. This is an issue of whether you are supplied with that information. If there are profound doubts about the procedures—right or wrong—and if they are held by countries which have been our intelligence partners over many decades and whose information has sometimes saved a considerable number of lives in this country, we have to take account of how they see that procedure. Were the amendment of the noble Lord, Lord Macdonald, to be passed, we might find that other countries would not see the procedure as safe. I would therefore stick to the Government’s amendment and their wording and not go along with the amendment of the noble Lord, Lord Macdonald.
My Lords, I support Amendments 6A and 6B. I think that there is agreement in the House that CMP should be used only in the most exceptional circumstances and that it so radically departs from one of the most fundamental of our common law principles that it is essential that its use is kept to a minimum.
I endorse what the noble and learned Lord, Lord Brown, said about the process that happens in a court. All this sometimes seems arcane or obscure to those who are not lawyers and it is easier to pin it down by having examples. Those of us who practise in the courts and often deal with security matters know that the process described by the noble and learned Lord, Lord Brown—where a judge will consider whether you can redact documents and take out references or anything else that might in any way disclose the identity of an informant—takes place in these cases and has done over the years. There is the business of someone giving evidence with their identity never being disclosed, or giving it from behind a screen, and there are other ways of doing it using new technology. There are many mechanisms, quite different from the PII process, which can protect the things that the security services are sensitive to, and it can be done with agreement while retaining the sense of as much openness as possible.
My sense of what the House wants here is for the closed material procedure of barring the defendant and their lawyers from the court and from hearing the evidence—which is fundamentally unfair and flies in the face of the idea of a fair trial—to happen in the most exceptional circumstances. It therefore seems extraordinary that there should be resistance to the notion that the Bill should state that such a process should be used only as a last resort. The argument made for not doing so is that it would be time-consuming for the Secretary of State—because the Secretary of State, even in this minute number of cases, would have to look through the papers and acquaint him or herself with the detail—as well as for the court. As your Lordships have heard from others who, like me, have participated in proceedings of this kind, one would expect a Secretary of State or a judge in a case of this kind to consider with care the nature of the evidence and whether it was possible to keep it as open as possible. That is what we would expect, and it is certainly what I would expect of a Minister who was exercising authority. Otherwise we would ask, “If the Minister does not want to examine the evidence that is being kept secret, who is exercising the authority? Is it the Minister or is it the security services?”. We really have to be very careful here. I remind the House of what happened in Matrix Churchill, where we understood that there was just a signing-off of requests by the security services, which was of great discredit to government at the time. I would warn against what this procedure will do to confidence in government, confidence in the security services and confidence in our judicial processes.
We could consider a number of examples. As the noble Baroness, Lady Berridge, mentioned, we could face this procedure in a case involving scary terrorists. It is very easy for us to start thinking, “Well, of course we want scary terrorists dealt with in this way”. However, just imagine that there is a terrible disaster at somewhere like Sellafield and the families want to sue in that matter. There could be good reason why government would not want the security arrangements to be picked over in open court. One therefore has to work out just how far these secret proceedings might spill. If they are allowed in civil cases, where is the end to them? Do we start seeing a process of creep? This is likely to happen if we do not say clearly, as the legislature, that this has to be last resort.
The second thing I wanted to raise was the case of Belhaj. Some of you may remember that Mr Belhaj is now a government Minister in Libya. There was a time when Mr Gaddafi did not like him one bit and saw him as an enemy of the state and wanted him brought back to Libya. It would seem that we assisted. Evidence—papers from the Libyan Government that fell into the hands of Human Rights Watch after the conflict—seemed to indicate that the British Government had played an unhappy role in the rendition of Belhaj to Gaddafi. Belhaj says that he was then tortured. He is embarking on a case against the Government because of those matters.
Imagine the process. A CMP is used. If Belhaj wins his case, will judges be happy not to be able to give full disclosure as to why they reached that conclusion? Does it not say terrible things about our security services and possibly even our Ministers? Do we not want the structures of government, which may have been responsible, to be openly examined so that it cannot happen again and those who had responsibility should be called to account? If there has been any kind of collusion and torture, and it is dealt with behind closed doors, does that not mean that our security services end up being discredited? That is what will be understood by the general public.
If a case is lost, it seems to me that the same thing will happen again. If Belhaj takes his case forward and loses it, it will be seen as a whitewash. Our judges and judicial system will be discredited. The same will happen to Ministers and the security services—a discrediting of so many of the core institutions of our state. Surely the least we should require in the Bill is that, for such a departure from principle, this has to be a matter of last resort.
On Amendment 6B, concerns were expressed about judges being involved in a balancing between the great business of open justice—which allows us to know what is going on in our name and within our state, our government and even our security services—and, where there is wrongdoing, national security. Openness will sometimes be more important for the health of the nation because of the poison that is released by secrecy. There will be circumstances in which balancing of that kind is required of our judges, and we should incorporate it into this legislation. I will support these amendments. I am delighted to hear that the noble and learned Lord, Lord Brown, takes that view too. He has been one of our greatest judges. I hope that the rest of the House will follow us into the Lobby.
My Lords, I suppose that I can claim to have had some experience in dealing with this area of the law in the past. The first thing I want to say is that the procedure that has hitherto been adopted in relation to national security is a secret procedure in which the judge sees the documents and the other side does not. This secret procedure has been established and used many times, as the noble and learned Lord, Lord Brown, has said. There is nothing novel about that kind of thing having to happen in relation to sensitive material.
The first condition for the closed procedure is that one of the parties will be required to produce sensitive material—that is to say, material which is damaging to national security. The noble and learned Lord, Lord Brown, has said that he was considering redaction as an alternative to CMP, and using screens to hide people’s identity. That must be considered before you can say that sensitive material has to be produced. The idea of that is to remove the sensitivity of the material and make the redacted material harmless to national security.
It seems to me that the only alternative that this first amendment would introduce is the amendment of public interest immunity. As the noble and learned Lord, Lord Brown, has explained in the case to which he referred, attempting to ascertain that would require, in some cases, a very long process. The process is equally one in which one of the parties is not allowed to take part. It is not much of an advantage over this procedure.
My Lords, the noble and learned Lord, Lord Mackay of Clashfern, has made that point twice. Does he recognise that although, as he said at the outset, there have been procedures in which material has been seen, but not by one party, those are not procedures in which that material is then relied upon by the judge to determine the rights and wrongs applicable to that party? This is in order to exclude that material and not to allow it in. Is that not the novelty of this procedure?
Absolutely, that is the procedure with excluded material. Of course, excluding the material can sometimes be extremely damaging to the interests of the other party to the litigation. The noble Baroness referred to Matrix Churchill. That was exactly the sort of case that Matrix Churchill would have been if the judge had excluded it because the material that was sought to be excluded as sensitive material was, on further examination, of great use to the claimant, as we all know. The idea that a public interest immunity certificate is so superior to this procedure strikes me as being without great foundation.
I assume that the only material in question is material that has been subject to all the processes that the noble and learned Lord, Lord Brown, has suggested for removing its sensitivity, because if you can do that the party is not required to produce sensitive material because it has been neutralised and the difficulty has been removed. Therefore, when you have that in mind, it is very hard to see how you can find out whether there is any other way in which the case can be dealt with. One of the problems about that is that at the beginning of a case things may look different from how they look as the case proceeds.
One of the great benefits of the amendments that the other place has put in here is that this matter can be reviewed at any stage of the procedure. Therefore, it seems to me that this system, in a very small minority of cases, will be the best way of securing the fair and effective administration of justice in that case. It is not a question of excluding material, which is an appropriate test for the amendment proposed by the noble Lord, Lord Macdonald; it is nothing to do with that. It is to see that the material that is being used is used in a way that does not damage the security of this nation. The Government have as one of their primary responsibilities securing the national security, as evidenced by what the noble and learned Lord, Lord Woolf, said about control orders, which control people’s liberties, in which this sort of procedure was introduced. I believe that this procedure is the best way in which to secure national security.
I endorse what the noble and learned Lord, Lord Woolf, said in his letter. Our judges are as familiar with the desirability of open justice as any Peer who has spoken. They know the value of open justice; they were brought up to it. There is no question of a judge going for a closed material procedure if he thought it could be done in open court. I believe that giving this discretion to the judiciary in very limited circumstances with two very important conditions is the right way to deal with it. It is not the Executive who are deciding, but the judge. Judges have taken an oath to,
“do right to all manner of people … without fear or favour, affection or ill will”.
That oath will apply in the decision that the judge has to make, and it seems to me that the best possible test has been evolved by the House of Commons in its consideration of our Bill, and the test is the fair and effective administration of justice in that case.
My Lords, much of what I intended to say has already been said, but I shall give an illustration from the classic case of Duncan v Cammell Laird, which involved the sinking of a submarine in Liverpool Bay while undergoing trials on its maiden voyage in 1939. Ninety-nine men were lost. Their widows, mostly from Merseyside, sued the shipbuilders. The Admiralty, in the middle of the Second World War, declined to allow the production of the designs of the submarine on grounds of national security. Contemporary evidence, which has been seen since, suggests that its true motive was to restrict the power of citizens to sue government departments, particularly when they were financed by trade unions. In fact, the claimants lost.
Today, other means, which have been referred to in the course of this debate, might have been used to assist those claimants in the projection of their cases, but suppose this legalisation had been in force and that the Government had applied for a secret hearing. Can your Lordships imagine the uproar in Liverpool if the Admiralty had been able to produce not merely the designs but its expert evidence and argument, and to explain those designs to the judge in secret, without challenge and without anything being heard on the other side? Patently, it would have been a miscarriage of justice.
Open justice, very simply, means first that a claimant should know the case made against him. That principle derives from what was said more than two and a half millennia ago by Aeschylus in the “Oresteia”.
I am not saying what decision he would have made—how could I possibly know? I am saying that the public would have been outraged at the idea that the Admiralty could go to see the judge up the back stairs, in a secret court, and produce the designs and the arguments to support their case.
I have certainly been up the front stairs to see many a judge in chambers. The noble and learned Baroness must know that we see the judge in private on many occasions, particularly when public interest immunity claims are being used.
The second principle of open justice is that the acts of public servants must be open to scrutiny and accountability by the public and by Parliament. It is for the judge to determine whether, as a last resort, open justice must give way to national security in the circumstances of the particular case. Everybody who has spoken here this evening has said that judges are perfectly capable of making that judgment, of carrying out that balancing exercise. However, that does not mean that secrets will be disclosed. We are talking about civil cases, about means whereby secret information will be withheld, and many mechanisms for achieving that have been referred to.
I draw your Lordships’ attention to a civil case last December which challenged the Defence Secretary’s practice of handing over detainees who had been captured in Afghanistan to the Afghan security forces. There was evidence to suggest that torture would be inflicted upon those people by those forces. The case came to court and the Defence Secretary claimed public interest immunity for a number of documents. Lord Justice Moses held that there was no objection in principle to the disclosure of material that was the subject of that claim into a lawyer-only confidentiality ring. That procedure is well known in the commercial courts of this country, and I believe that it is used in the United States of America. Is it not interesting that, while we are changing our law, we have not heard any suggestion from the United States, which is faced by the problems with which we are grappling, that it proposes to change its law or constitution in any way at all?
As I have said, these principles are core principles of liberalism and democracy, and I hope that your Lordships will support these amendments in the light of these principles.
My Lords, I propose to say only very little because to some extent I anticipated what I might say, both in the previous debates on this matter and in the letter that has been referred to. However, when you hear Members of this House, with the experience that they undoubtedly possess, expressing concerns on this subject in relation to this Bill, I say that we have to give those concerns the utmost care and consideration, because their importance is very great indeed. We must be very careful that we do not fall into the trap of changing our traditions when that change will cause more harm than good.
Despite the arguments that have been advanced to the contrary, I remain firmly convinced that the Bill that we are now considering is radically better than the one that we were considering before, and the Government must be entitled to credit for that. As I understand it, what we really are considering, despite the oratory that we have heard, is very much a matter of degree. The only question to consider now is whether two further precautions should be inserted into the Bill in respect of what the Government have already done, which is to be welcomed on all sides.
Of course I accept the importance of open justice. You do not need to have that set out in a Bill for judges or ex-judges to say it. We have heard clear evidence of that in a recent decision of our Supreme Court, where the president of the Supreme Court was dealing with a procedure that is akin to the procedure now being proposed. The president of the Supreme Court, the noble and learned Lord, Lord Neuberger, made the clarion call—and I am delighted that he made the statement—that all should recognise that we are dealing with a situation that involves an intrusion into the principle of open justice. If there was any doubt about the ability of judges to protect that principle, I suggest that the noble and learned Lord, Lord Neuberger, made it clear that judges will protect it. After all, a judge makes a judgment, but his judgment is then subject to appeal. I urge the House to conclude that what we want is a situation where the judiciary, which has the fundamental responsibility of doing justice, has a discretion that is wide enough to do justice in the particular case that comes before it. I suggest that this Bill, without the proposed amendments, has to be judged on whether it enables the judge to do that.
The noble Baroness, Lady Berridge, suggested that this Bill might enable judges to do things that would reflect adversely on them. I accept that that is the inevitable consequence of judges exercising their responsibility to protect national security. If giving a judgment that is right and in the interests of effective and fair justice will reflect adversely on a judge, he or she must do their duty, give that judgment and not be concerned by the reputational consequence for them of giving that judgment. It is my belief that that is just what our judges do. They would put that out of their minds. Those are political considerations, which they should not be concerned with.
What is being done here is something that the Government say will contribute to justice, not the other way round. It is being done because, as must be recognised, it is the only real alternative that the judges do not already have. With great respect to the noble and learned Lord, Lord Goldsmith, I found his submissions difficult to follow, because redaction does not need this Bill; it is something that judges use regularly. The judge’s ability to take sensible precautions to protect national security is used with a degree of frequency, but this Bill does not affect those cases. It affects only those cases when the judge is satisfied that better justice will be done because of the Bill than would be done without the Bill. The amendments are to be criticised for the reasons identified by the Minister in opening the debate. It is right that you cannot have the judge using what is proposed here as a last resort, because that would undermine the Bill’s purpose.
Does the Bill give the judge the discretion that he or she needs? I remind noble Lords of the terms of Clause 6(2), which says:
“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 the fair and effective administration of justice in the proceedings”.
Those are very wide terms, which give the judge what he needs. Clause 6(3) provides:
“The court must undertake a formal review of the declaration once the pre-trial disclosure exercise in the proceedings has been completed, and must revoke it if it considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings”.
Those provisions put the judge in the driving seat, which is exactly where the judge should be as a result of this Bill.
Although we have to examine the arguments to the contrary with great care and appreciate just how important are the principles at stake, we should come to the conclusion that this is a Bill of which we can now approve.
I ask my noble and learned friend two short questions. The first is a very simple one, possibly even simplistic. He referred to the change in terminology from “must” to “may” as being very profound. Could he confirm to the House that the Commons amendment providing that the court,
“may make such a declaration”,
if it considers that two conditions are met, is equivalent in non-legislative speak to saying that the court may not make a declaration unless the conditions are met? In other words, it may make a declaration only if those conditions are met.
My second question concerns a matter that has been referred to once very quickly—that is, gisting, or the disclosure to an excluded party of sufficient material to enable him to give effective instructions to the special advocate representing his interests in closed hearings. Clause 10, which is to be amended by Amendment 17, is about the rules of court, and I would like to ask my noble and learned friend about those. There is nothing returned from the Commons on which we can hang an amendment specifically about gisting, so I hope the Minister can reassure us from the Dispatch Box that the rules will provide what I hope they will in this connection. Under Clause 10(2)(g), rules may enable the court to give a party to the proceedings a summary of evidence taken in that party’s absence. Responding to the first report from the Joint Committee on Human Rights, the Government say:
“Wherever it is possible and practically feasible to provide gists and summaries of national security sensitive material without causing damage, they will be supplied”.
They add that the question of gisting should be decided on a case-by-case basis. I do not want to take up the time of the House by arguing for the importance of the special advocate being able to take instructions from his client—that, I am sure, will be self-evident to everyone—but I ask the Minister to give an assurance that the rules will require gisting and I ask this particularly as Clause 10, to which I have referred, said the rules “may” make the provision, while Clause 7 provides that rules of court “must” secure certain things. I hope I do not read too much into the distinction between those two terms.
My Lords, I hesitate to stand after the really important contributions by so many Members of this House, including a number of very noble and learned Lords. I do not want to make a long speech, but there are some points that have possibly not been touched upon. The central problem here is about litigants, not defendants. It is about people making claims that currently cannot be heard. This is an attempt by the Government to find a way, imperfect as it is—“a second-best solution”, in the words of David Anderson QC—to get these cases heard and to put into court, albeit in a restricted way, material that is not currently put into court, so that there is a better chance of the full picture being seen by the court. David Anderson said—if I may, I quote him slightly to correct him:
“We are in the world of second-best solutions”.
“But it does not seem to me that the level of injustice inherent in the use of a CMP 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”.
This does not seem to me to be primarily about the reputation of the security and intelligence agencies. The service of which I was once a member welcomes scrutiny. If we disobey or break the law, we should be prosecuted. The first part of this Bill is about greater scrutiny. I expect that scrutiny to evolve and over the years to become more detailed. However, the reputational damage is significant in a way that has nothing to do with personal feelings; it is to do with whether these organisations, which are funded by the taxpayer and scrutinised by Parliament and other bodies, are going to be less effective as a result of this reputational damage. This needs resolution, but it is not primarily about that. It is primarily about making sure that some of these extraordinarily serious allegations are actually heard. At the moment, we do not have an inquiry. I believe that some criminal investigations are happening, but there are still a whole lot of allegations out there that are not resolved, and this would be a way of resolving them.
There is one other point I want to make, which I think speaks to the amendment made by the noble Lord, Lord Macdonald. On the face of it, the amendment looks unexceptional, but I think it is a question of the confidence of our human sources, which is very important. I do not need protection; they do. A point made by the noble Lord, Lord Owen, was that human sources are either approached by the intelligence and security agencies inviting them to provide information in confidence or they approach us or they are the sources of an ally. Not all of them but many of them do so with the highest motives, and in many cases their lives are at risk—although, again, not always. I look to my noble and learned friend Lord Brown. Obviously I entirely agree with him that national security is undefined and that there is a spectrum. There are some things, which he mentioned, at one end of the spectrum that might be labelled “national security” but are not damaging to reveal. However, at the other end of the spectrum—this has not really been discussed today—there is some highly sensitive and secret material in relation to which the risk to human sources’ lives is high.
I know that I am a bit repetitive on this issue in the House and I apologise, but I still think that it is not given enough attention. Technology is vulnerable. If we expose it in a careless way or in a way that is not protected by this legislation via the test that open justice means that we can ditch the national security side of things—I know that the amendment of the noble Lord, Lord Macdonald, is not as crude as that but there is a suggestion that the two things can be held in balance, and I look again to the point made by my noble and learned friend Lord Lloyd—that will potentially have a very chilling effect on the willingness of people to offer us information. I hope that that is wrong but, if it does have that chilling effect, we will cease to get the information.
No, but I am saying that if the amendment balances national security versus open justice, however much my former colleagues might seek to reassure human sources that they will be protected and the courts rely on that protection, I fear that they will be apprehensive and will not be willing to talk to us. That is already an issue. That is what I am talking about—not whether the courts and judges have mishandled things. I am not suggesting that for one minute.
Thirdly and finally, I wish to pick up the point made by my noble and learned friend Lord Brown about national security not being defined. If this material were such that it could be redacted or gisted, or if people could give evidence anonymously, we would not need this Bill. To use the words of David Anderson, who is new to this subject and as the independent reviewer of terrorism has looked at all this, these cases are saturated with it and, if it is redacted to that degree, there is nothing to put into the court.
I shall not say any more this evening but I remind the House of the potential damage that we have to continue to guard against.
My Lords, I fear that I have to disagree with two eminent judges—the noble and learned Lords, Lord Woolf and Lord Mackay of Clashfern. The noble and learned Lord, Lord Woolf, talked about the judges being in the driving seat and the noble and learned Lord, Lord Mackay, said that under the amendments to the Bill huge discretions are given to judges which we can safely leave in their hands. I agree with both, but the car of the noble and learned Lord, Lord Woolf, and the discretions of the noble and learned Lord, Lord Mackay, are bounded by the Bill we are debating. I believe that Amendments 6A and 6B extend further, although not radically, the protections that I consider necessary in such an important incursion into the ancient liberty of open justice.
Although the Minister made an exemplary opening speech in trying to explain this vast set of important amendments, I am bound to say that where the Government are trenching on open justice, the onus is on them to prove their case beyond peradventure. I do not think that that has been done. The very phrase, “closed material procedures” is a sort of euphemism. Out there people talk of secret courts and secret justice and, of course, they are right. We have had some wonderful speeches tonight, but I was particularly impressed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who has behind him possibly a unique body of experience among those in the Chamber at this time through his work as a reviewer under RIPA. I think that I am quoting him rightly. He said that the important and salutary message that we need to send out from this House is one that persuades the country that while doing our difficult duty, and my word, it is difficult to strike the balance, we are none the less—if there is erring on one side or the other—erring on the side of open justice.
I shall finish by adding to the point that the noble and learned Lord made, and the points made by the noble Baronesses, Lady Berridge and Lady Kennedy of The Shaws. One cannot look at issues of extreme violence in some sort of academic vacuum. There is a propensity to violence among our fellow citizens and to extremism of different kinds—the kinds that the security services have to deal with, reminding us how enormously difficult their task is. That does not come out of a clear blue sky; it is the product of social and political contexts within which they live and of which they have experience. Although it is difficult to get one’s hands round this, if we can show that we have gone to every possible, sensible length to minimise trespassing on the principle of open justice, that will help to send out a message in relation to this Bill, which is being closely followed around the country. It will send out the best message, which is least likely to give cause in places we will never go for an increase in the extremism which is the very devil we are trying to guard against.
Amendment 6A, the widely balancing principle, and Amendment 6B, the exhaustion of all other remedies, so to speak, are significant improvements to a Bill that has been hugely improved by the Government, but which would benefit from these further two refinements.
My Lords, I ought to declare that my daughter is chairman of Liberty, but I fear that she will be very disappointed with me this evening since I do not consider that Amendments 6A or 6B are necessary. Like many others in this House, during the passage of this Bill I have been extremely concerned about whether it was appropriate and whether it went too far. So many have spoken quite emotionally on the concept of closed courts and how inappropriate they are. I think that the Government’s original proposals were unacceptable, as did many others. Ministers have made enormous steps towards great improvements, and as the noble and learned Lord, Lord Woolf, said, they are to be congratulated on those changes. They have now put the judge in the driving seat. The judge now has control.
Proposed new subsection (1D) to Clause 6 refers to the “second condition”, about which not very much has been said. The second condition has to be approved by the court and,
“in the interests of the fair and effective administration of justice in the proceedings to make a declaration”.
One need only remember what the president of the Supreme Court said about the inappropriateness of making such a declaration in other circumstances, unless it is actually necessary and appropriate to see that judges really ought to be trusted not to close a court until they absolutely have to do so.
As we can tell from the various speeches this evening, this has become a very sensitive and somewhat emotive issue. However, there are other circumstances in which judges see evidence that almost nobody else is allowed to see. In a totally different area, as an adoption judge, I would see reports from the guardian and from the adoption agency, usually the social worker, that the birth parents and very often the adopters were not allowed to see. Like other adoption judges in the past—and I assume that the law has not changed on this—I ended up making decisions on evidence that was not shown to part of the court; that is, the most important people, the adopters and the birth parents. It is not unknown for evidence to be provided to judges that cannot be seen by parties, although national security is, of course, in a very special situation.
I respectfully agree with every word said by the noble and learned Lord, Lord Woolf. I had gone the other way at an earlier stage but I have now changed my mind; I am entirely satisfied by this Bill. I was discussing it with the noble and gallant Lord, Lord Stirrup, who cannot be here this evening. I agree with him that one has to strike a balance between these very difficult situations. He and I agree that balance is now reached by this Government and I will support the Government on this.
My Lords, I had not intended to take part in this debate but I have been moved to do so. We have heard this evening that this debate is about the reputation of the security services. We have heard it is about 2,000 to 2,500 years of British justice and that we must of course be on our guard to make sure that we do no damage to either of those principles. However, for me the Bill is not about those things at all. I was a constituency MP for 27 years and I can tell your Lordships that what concerned my constituents was that we should not produce a set of circumstances in which several hundred of them could be blown to smithereens on the District line while going about their ordinary day’s business. That is what concerns them, not what we have been hearing this evening. I have not heard that said once throughout this debate—it astounds me.
My Lords, the House will agree that this has been a very good and well informed debate and rightly so because the issues we are dealing with are of fundamental importance to our justice system. I do not think anyone who has taken part or who will vote feels at all comfortable about the idea that there should be closed material proceedings. Nevertheless, as has been explained by a number of contributors to the debate such as the noble Baroness, Lady Ramsay of Cartvale, the noble and learned Lords, Lord Lloyd of Berwick and Lord Woolf, and, although he is supporting the amendments, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, there is a need in current circumstances for closed material proceedings.
The present situation, standing the judgment of the Supreme Court in the Al Rawi case, is that closed material proceedings are not available under common law and the Supreme Court invited Parliament to consider the position. We have sought not only to make provision for closed material proceedings but, as we have gone from Second Reading, through Committee and Report, to the other place for debate and back to us, in doing so we have put in place proper safeguards which reflect the values of our justice system.
The noble and learned Lord, Lord Woolf, said it was important that we show the greatest and utmost care and consideration in addressing these issues, and we have done that tonight. I can assure your Lordships’ House that, in reflecting on the amendments passed on Report in this House, Ministers gave careful consideration to how we might respond to them.
The noble Lord, Lord Beecham, asked about the number of cases that had been settled and how much compensation was paid. As I have explained previously, I am not able to comment on the number or details of many of the cases settled as they are often the subject of confidentiality agreements. However, the House will be aware—indeed, my noble friend Lady Berridge referred to it—that a settlement was recently reached with Mr al-Saadi, on a no-liability basis, to the tune of £2.2 million. I am unable to comment on whether actions have been taken against recipients of other settlements. If such actions have been taken, it would be impossible to comment without breaching the terms of the settlement because it could, for example, indirectly reveal the identity of the individuals concerned.
My noble friend Lady Berridge suggested that perhaps the Government had rushed a settlement to get it in before this legislation went onto the statute book. I am sure that noble Lords will agree that it is not desirable for courts to delay the processing of cases in pre-emptive speculation about what may or may not become available in future legislation. It is unhelpful to suggest that that should be the case. It was and is right that the case of Mr al-Saadi and others should be dealt with quickly and fairly on the basis of existing legislation. The alternative of delaying, pending possible future legislative changes, would be unfair to all parties concerned. I certainly would not like to defend such a situation from the Dispatch Box if that allegation ever had any truth.
The noble and learned Lord, Lord Goldsmith, said that, unlike cases in which he was involved when he was in government and introduced closed material proceedings with regard to control orders under which there were restrictions on freedom, what we are dealing with here is just about money. It is about more than just money; it is also about the reputation of, and the trust and confidence in, our security intelligence agencies. It may also be about executive actions—for example, the judicial review of decisions taken by a Secretary of State on national security grounds which would not be the subject of pre-existing statutory CMPs.
As I have said, it is not just a question about money because, at the end of the day, we are trying to ensure that there will be some kind of proceedings available whereby taxpayers’ money is not spent in settling cases where the case has not been proved. My noble friend Lord Phillips of Sudbury referred to secret justice. I have said in these debates that it is second-best justice, but at least it is justice. There is no justice when cases are settled without any proof of the claim being made.
The importance of the safeguards and how we keep these cases to a minimum—they should be the exception—has been reflected in the debate tonight. My noble friend Lord Macdonald has tabled an amendment that would require the courts to have a balancing test akin to the Wiley balancing test that was developed in the context of public interest immunity. The noble and learned Lord, Lord Lloyd of Berwick, explained why he thought that was inappropriate; he said that it was too wide and imprecise. The noble Lord, Lord Owen, and the noble Baroness, Lady Manningham-Buller, indicated that we are also dealing with situations where there might be foreign sources of intelligence and, crucially, human sources who work on our behalf for our security services. They expressed concern that the imprecision of the test would not be helpful.
My noble friend said that he thought the effect of the Bill as it currently stands, without his amendment, would be that the security services and the Government would opt for CMP rather than PII, public interest immunity, and that somehow that would be convenient for them. The noble Baroness, Lady Manningham-Buller, made the important point that Part 1 of the Bill is about scrutiny of the security services, but Part 2 allows for greater scrutiny. If you wish to push something under the carpet, PII, or settling a case without any evidence being led, is one way of ensuring that information does not come out. Albeit closed material proceedings are closed—for all the reasons that people have articulated in this debate they are not as good as open proceedings—they nevertheless allow the court to examine the material that is there and to apply scrutiny to allegations made against our security services, which otherwise would not be the case.
Regarding openness, my noble friend Lady Berridge referred to the president of the Supreme Court, the noble and learned Lord, Lord Neuberger, and what he said this weekend. The point that was picked up by the noble and learned Lord, Lord Woolf, and the noble and learned Baroness, Lady Butler-Sloss, helps make the point that we have been trying to make. Of course, as more than one contributor to this debate has said, the idea of openness is absolutely intrinsic to our system of justice. The noble and learned Lord, Lord Neuberger, reflected that in his comments this week. It was intrinsic and it was instinctive.
It is absolutely fanciful to imagine that, in applying the tests set out by the Government in the amendments before your Lordships’ House tonight, the judges will somehow forget about openness. It is very clear that the justices of the Supreme Court did not need words in a statute to get them to apply their minds to the importance of openness when it came to making the decision, which they did.
My Lords, it is very clear that open justice is part of our justice system. It is implied by the words “fair and effective”, and it did not need any words in statute to encourage the justices of the Supreme Court to have regard to the importance of openness in these situations. The noble and learned Lord, Lord Neuberger, said the following words, to which I think my noble friend Lady Berridge referred:
“No judge can face with equanimity the prospect of a hearing, or any part of a hearing, which is not only in private, but involves one of the parties not being present or represented”.
He went on to say:
“Nonetheless, as Parliament has decided that, in certain circumstances, such a procedure is necessary and permissible in a trial before a judge, we have concluded that, on an appeal from a decision in a case where a judge has considered closed material and given a closed judgment, it may be necessary for this court to go into closed session in order to dispose of the appeal justly”.
In other words, the just decision on that particular point was that the court would go into closed session.
On the other issue, I also do not find there to be any real difference in what Members of your Lordships’ House wish to see, and it is an issue of judgment as to how we achieve it. These cases should be the rare exceptions; there are a very small number of cases. When I gave evidence by letter to the Joint Committee on Human Rights on 31 October, there were 27 cases which, across government, we considered would lend themselves to closed material proceedings. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, expressed his view as to why closed material proceedings were necessary, but in his judgment these amendments should be in the Bill. I have explained this, and indeed others who have contributed to the debate have also explained why it is not necessary.
We all aim at the same thing: at the end of the day, this should take place in a small number of cases. It is a matter of judgment. As I indicated earlier, at this initial gateway of closed material proceedings the court is considering an application having not yet seen all the material for the case. Against this background, we are keen that legislation should avoid the court being required to meet a condition which would then require it to establish definitively at that point whether a fair determination would be possible by any other means.
As I said, that could mean the exhaustion of a range of measures, including a full PII exercise. Of course, as the noble Baroness, Lady Kennedy of The Shaws, said, it is something to which the Secretary of State should apply his or her mind. If one reads the judgment of Lord Brown in Al Rawi, he indicates at one point that it would take 60 lawyers the best part of two or three years to go through all the material. That is the scale. If that is the road down which judges felt that they ought to go because of the wording of the Bill, that would underline much of its purpose.
I also pick up the point made by the noble and learned Lord, Lord Goldsmith, who seemed to think that the means of achieving it being a backstop and a rare exception was the provision in proposed new subsection (1F) about the court having to be satisfied that the Secretary of State had considered PII. We do not even get to that stage, because the court must not even consider the application unless it is satisfied that the Secretary of State has considered PII. The question asked by the noble Lord, Lord Butler of Brockwell, was very much to the point: the safeguards of last resort, as it were, are not that requirement on the Secretary of State but, rather, the courts being satisfied that the disclosure of material would be damaging to national security, and that it would be in the interests of the fair and effective administration of justice for the application to be granted.
My Lords, I point out to the Minister that I, too, am a member of the Joint Committee on Human Rights. We looked at whether it would take many months for the Secretary of State to review the material. We were firmly of the view that that is not what is required of the Secretary of State at all. It is only about looking at material that would move it into in the special category which would mean that it would require closed material proceedings. This business that it would take insurmountable periods of time to examine the material is not what we are talking about. The Joint Committee was absolutely satisfied on that.
My Lords, I fully accept that the Joint Committee on Human Rights and your Lordships’ Constitution Committee have said that it would be undesirable to go down the path of an exhaustive PII. The point that I am trying to make to your Lordships’ House is that when we make law, the Joint Committee on Human Rights will not be deciding how it is interpreted, it will be the courts. The courts will no doubt be at the receiving end of very eloquent and persuasive arguments from special advocates as to why they should exhaust different routes. That is our concern: if we include such words in the Bill which allow such arguments to be made, the courts may well feel that they must take those exhaustive steps before entertaining an application for closed material proceedings. We believe that that would take away much of the purpose of the provisions.
In conclusion, it is not as if we are just leaving it there. As I said in my opening remarks, we believe that the tests that we have in place, giving considerable discretion to the judges, the revocation possibilities during the review and the disclosure phase, and the requirement on the court to consider at the end of all the disclosure whether closed material proceedings should still continue constitute a very powerful weapon in the hands of the court and at judges’ discretion that will ensure that those procedures will be used only in truly exceptional cases.
My noble friend Lady Hamwee asked about the change from “must” to “may”. She is absolutely right: it is only if all those conditions are fulfilled that the court may grant an application for and make a declaration of closed material proceedings. Even at that stage, the court has discretion whether or not to do so. The noble and learned Lord, Lord Woolf, asked whether it gives the judges discretion to do the right thing in the circumstances of the particular case. I very much believe that what we have put in place in the other place does that. I fear that to accept the amendments could in some ways undermine that, although I fully understand why they have been moved. I believe that we have the right discretion for our judges in place. As the noble and learned Lord, Lord Goldsmith, said, trust the judges. On that basis, I beg to move.
Motion on Amendment 4 agreed.
Motion on Amendment 5
5: Page 4, line 20, at end insert—
“(1A) The court may make such a declaration—
(a) on the application of—
(i) the Secretary of State (whether or not the Secretary of State is a party to the proceedings), or
(ii) any party to the proceedings, or
(b) of its own motion.”
Motion on Amendment 6
6: Page 4, line 21, leave out subsections (2) to (6) and insert—
“(1B) The court may make such a declaration if it considers that the following two conditions are met.
(1C) The first condition is that—
(a) a party to the proceedings would be required to disclose sensitive material in the course of the proceedings to another person (whether or not another party to the proceedings), or
(b) a party to the proceedings would be required to make such a disclosure were it not for one or more of the following—
(i) the possibility of a claim for public interest immunity in relation to the material,
(ii) the fact that there would be no requirement to disclose if the party chose not to rely on the material,
(iii) section 17(1) of the Regulation of Investigatory Powers Act 2000 (exclusion for intercept material),
(iv) any other enactment that would prevent the party from disclosing the material but would not do so if the proceedings were proceedings in relation to which there was a declaration under this section.
(1D) The second condition is that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration.
(1E) The two conditions are met if the court considers that they are met in relation to any material that would be required to be disclosed in the course of the proceedings (and an application under subsection (1A)(a) need not be based on all of the material that might meet the conditions or on material that the applicant would be required to disclose).
(1F) The court must not consider an application by the Secretary of State under subsection (1A)(a) unless it is satisfied that the Secretary of State has, before making the application, considered whether to make, or advise another person to make, a claim for public interest immunity in relation to the material on which the application is based.
(1G) A declaration under this section must identify the party or parties to the proceedings who would be required to disclose the sensitive material (“a relevant person”).”
Amendment 6A (as an amendment to Commons Amendment 6)
6A: Line 2, at beginning insert “If the court considers that a fair determination of the proceedings is not possible by any other means,”
My Lords, your Lordships will be at one with the noble and learned Lord, Lord Mackay of Clashfern, in agreeing that it is the prime duty of government to protect the national security. That is currently being achieved by a variety of means, including PII. It would continue to be achieved under the terms of this amendment if your Lordships’ House agrees to it and if that is confirmed by the House of Commons. Your Lordships’ House is usually and naturally reluctant to overturn Commons amendments. There can be no better or more necessary occasion to do so than when issues profoundly affecting our system of justice or the rights of citizens are at stake. This is just such an occasion. I beg to move and test the opinion of the House.
Amendment 6B, as an amendment to Commons Amendment 6, not moved.
Motion on Amendments 7 to 15
Moved by Lord Wallace of Tankerness
That this House do agree with the Commons in their Amendments 7 to 15.
7: Page 5, line 12, leave out “the Secretary of State” and insert “a person”
8: Page 5, line 15, after “section” insert “or proceedings for or about such a declaration”
9: Page 5, line 18, leave out “the Secretary of State” and insert “a person”
10: Page 5, line 19, leave out “(1)” and insert “(1A)(a)”
11: Page 5, line 19, leave out “Secretary of State’s” and insert “person’s”
12: Page 5, line 20, leave out “all of the parties” and insert “every other person entitled to make such an application in relation”
13: Page 5, line 22, leave out “Secretary of State” and insert “applicant”
14: Page 5, line 22, leave out from “inform” to first “of” in line 23 and insert “every other such person”
15: Page 5, line 32, at end insert—
““sensitive material” means material the disclosure of which would be damaging to the interests of national security.”
Motion on Amendment 16
Moved by Lord Wallace of Tankerness
That this House do agree with the Commons in their Amendment 16.
16: After Clause 6, insert the following new Clause—
“Review and revocation of declaration under section 6
(1) This section applies where a court seised of relevant civil proceedings has made a declaration under section 6.
(2) 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 the fair and effective administration of justice in the proceedings.
(3) The court must undertake a formal review of the declaration once the pre-trial disclosure exercise in the proceedings has been completed, and must revoke it if it considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings.
(4) The court may revoke a declaration under subsection (2) or (3)—
(a) on the application of—
(i) the Secretary of State (whether or not the Secretary of State is a party to the proceedings), or
(ii) any party to the proceedings, or
(b) of its own motion.
(5) In deciding for the purposes of subsection (2) or (3) whether a declaration continues to be in the interests of the fair and effective administration of justice in the proceedings, the court must consider all of the material that has been put before it in the course of the proceedings (and not just the material on which the decision to make the declaration was based).
(6) Rules of court must make provision—
(a) as to how a formal review is to be conducted under subsection (3),
(b) as to when the pre-trial disclosure exercise is to be considered to have been completed for the purposes of subsection (3).
(7) In relation to proceedings before the Court of Session—
(a) the reference in subsection (3) to the completion of the pre-trial disclosure exercise is a reference to the fixing of a hearing to determine the merits of the proceedings, and
(b) the reference in subsection (6)(b) to when the pre-trial disclosure exercise is to be considered to have been completed is a reference to what constitutes a hearing to determine the merits of the proceedings.”
Amendments 16A to 16C, as amendments to Commons Amendment 16, not moved.
Motion on Amendment 17
Moved by Lord Wallace of Tankerness
That this House do agree with the Commons in their Amendment 17.
17: Clause 10, page 7, line 31, leave out subsections (4) and (5) and insert—
“(4) The following proceedings are to be treated as section 6 proceedings for the purposes of sections 7 to 9, this section and sections (Reports on use of closed material procedure) to 11—
(a) proceedings on, or in relation to, an application for a declaration under section 6,
(b) proceedings on, or in relation to, a decision of the court to make a declaration under that section of its own motion,
(c) proceedings on, or in relation to, an application for a revocation under section (Review and revocation of declaration under section 6), and
(d) proceedings on, or in relation to, a decision of the court to make a revocation under that section of its own motion.
(5) In proceedings treated as section 6 proceedings by virtue of subsection (4), a relevant person, for the purposes of sections 7 to 9, this section and sections (Reports on use of closed material procedure) to 11, is a person who would be required to disclose sensitive material in the course of the proceedings.”
Motion on Amendment 18
Moved by Lord Wallace of Tankerness
That this House do agree with the Commons in their Amendment 18.
18: After Clause 10, insert the following new Clause—
“Reports on use of closed material procedure
(1) The Secretary of State must—
(a) prepare a report on the matters mentioned in subsection (2) for—
(i) the period of twelve months beginning with the day on which section 6 comes into force, and
(ii) every subsequent twelve month period, and
(b) lay a copy of each such report before Parliament.
(2) The matters are—
(a) the number of applications made during the reporting period—
(i) by the Secretary of State under section 6(1A)(a)(i) or (Review and revocation of declaration under section 6)(4)(a)(i), and
(ii) by persons other than the Secretary of State under section 6(1A)(a)(ii) or (Review and revocation of declaration under section 6)(4)(a)(ii),
(b) the number of declarations made by the court under section 6(1), and the number of revocations made by the court under section (Review and revocation of declaration under section 6)(2) or (3), during the reporting period—
(i) in response to applications made by the Secretary of State during the reporting period,
(ii) in response to applications made by the Secretary of State during previous reporting periods,
(iii) in response to applications made by persons other than the Secretary of State during the reporting period,
(iv) in response to applications made by persons other than the Secretary of State during previous reporting periods, and
(v) of the court’s own motion,
(c) the number of final judgments given in section 6 proceedings during the reporting period which are closed judgments, and
(d) the number of such judgments which are not closed judgments.
(3) The report may also include such other matters as the Secretary of State considers appropriate.
(4) The duty under subsection (1) in relation to the preparation and laying of a report must be carried out as soon as reasonably practicable after the end of the twelve month period to which the report relates.
(5) In this section—
“closed judgment” means a judgment that is not made available, or fully available, to the public,
“final judgment”, in relation to section 6 proceedings, means a final judgment to determine the proceedings.”
My Lords, for the convenience of the House, I will speak also to the other amendments in this group. The Government have listened to concerns expressed in this House and elsewhere about transparency, particularly around the new closed material proceedings provisions. I know that several Members of your Lordships’ House expressed frustration at the lack of information available about how many CMPs take place.
The Government have accepted that the unusual nature of CMPs means that there would be significant public and parliamentary interest in more information about how the provisions in this Bill will operate. A strong view was expressed in this House, although no amendments to the Bill were passed, that reporting and review arrangements would be valuable safeguards.
The Government have brought forward amendments that address these concerns. We decided to adopt the expert view of the Constitution Committee by providing for annual reporting to Parliament and for a review of the CMP provisions under this Bill to be conducted five years after Royal Assent. The Joint Committee on Human Rights also made similar recommendations.
Given the often lengthy nature of litigation, with cases often lasting more than a year and sometimes several years, we believe that the frequency of review under these provisions allows for regular but meaningful reporting and for a review to be informed by enough cases to provide for substantiated conclusions and reasoned recommendations where necessary.
An annual report is the most proportionate approach. We expect that the CMP provisions in the Bill will be used rarely. More frequent reports may contain too few data to be meaningful. Annual reports will not, however, be the only way in which facts relating to cases involving CMPs will be made public during the reporting period. The Government made an amendment when the Bill was last considered by this House to ensure that where an application is made under Clause 6(2), that fact must be reported to the other parties in proceedings; and there are already existing mechanisms by which the courts publish their open judgments and the media report on cases of interest to the public.
The reports will focus on the volume of cases and applications. The amendment lists the matters of key concern to be included in the annual report as: the number of applications for a CMP declaration and by whom the applications are made; the number of declarations and revocations made by the court; and the number of judgments published, both open and closed, with respect to the determination of Section 6 proceedings—this would include judgments made on the substantive trial and judgments made regarding the outcome of the application for a CMP declaration. The reporting arrangements will also cover “deemed” Section 6 proceedings or those treated as Section 6 proceedings.
In addition to an annual reporting requirement, the Government have introduced provisions for a comprehensive review of the operation of the CMP provisions in this Bill after five years, conducted by an independent figure and with a report made to Parliament. We expect such a review to take into account the views of special advocates, among others; to consider efficiency, trends and types of case; and to analyse the numbers provided in the annual reports to reflect on how CMPs are being used. The reviewer will have to take care not to comment on judicial decisions or on how the judge has run particular cases.
In line with most other legislation, this clause provides for the appointment of the reviewer by the Secretary of State. Amendment 19A in the name of my noble friend Lord Marks would require consultation first with the Lord Chief Justices and the Lord President of the Court of Session. We do not believe that such consultation is necessary for a reviewer or commissioner to be independent or to be perceived as being independent, as has been repeatedly shown by the independence displayed by Mr David Anderson QC and other independent reviewers and commissioners. David Anderson has been clear about his views on this Bill, for example, and has been influential in persuading the Government to change their position on a number of issues. Such appointments are now subject to a statutory code for public appointments to ensure that they are undertaken transparently and on merit. This should provide reassurance that the person with the right skills and background will be appointed.
It has also been suggested that a review after a shorter period of time would be better. My noble friend’s Amendment 19B would reduce this period from five to four years, which I note seeks to ensure that the sunsetting provision follows consideration of the reviewer’s report. I believe that given how long litigation can take and the small number of cases expected, five years is the right period for there to be enough evidence for a review meaningfully to draw upon.
Amendment 19C would require a further review every five years. In its report, the Constitution Committee said the House may wish to consider the Bill being independently reviewed five years after it comes into force. We have followed that recommendation. Any reviews should be focused where there is proper justification for them, and they should be proportionate.
We should remember that judges have full discretion over whether to grant a CMP, whether to revoke it at any point in a case, whether they agree with the Secretary of State’s assessment of national security damage, how material should be treated within the CMP, effective management of the case, whether a CMP should continue, and in deciding the outcome. There have also been some suggestions that the unusual nature of the CMP provisions means that a sunset clause would be appropriate. This would allow Parliament the opportunity to revisit the need for the provisions in the Bill once they had been operating for a while. The Joint Committee on Human Rights recommended such a provision but the Constitution Committee did not.
Amendment 19D in the name of my noble friend Lord Marks and Amendment 19E, tabled by the noble Lord, Lord Beecham, seek to introduce a sunset and renewal clause for the new CMP provisions, requiring renewal every five years. My noble friend’s amendment provides for a renewal order to follow completion of the reviewer’s report. His amendment makes it clear that the CMP provisions would cease to take effect except relating to proceedings where a declaration had already been made, thereby not interrupting ongoing cases.
I point out to noble Lords that the effect of this amendment would also be to disrupt the Norwich Pharmacal clauses in the Bill that are intended to bring clarity to the Norwich Pharmacal jurisdiction when sensitive information is involved and to provide reassurance to intelligence-sharing partners, a point that was made in the previous debate by the noble Lord, Lord Owen. Although such a clause would apply to the new CMP Clauses 6 to 10 of the Bill, it would also affect proceedings connected to Norwich Pharmacal, both those where the Secretary of State would need to apply for a CMP and the reviews of certificates issued by the Secretary of State under the Norwich Pharmacal clauses. These proceedings are deemed to be Section 6 proceedings because the case needs to be heard in a closed material procedure to ensure that the outcome of the proceedings is not prejudiced by having already publicly disclosed the very information with which the proceedings are concerned.
Such a sunset clause would undermine the purpose of the Bill and unnecessarily so. Both Houses have agreed that there is a gap in the law, that there are circumstances where a judge may decide that a CMP is preferable, that claimants’ cases must sometimes automatically fail without a CMP and that the judge should have a CMP in his toolkit. Given the wide discretion that we have given the judge about when the provisions should be used, I do not know why we would then want to remove CMPs from the judge’s toolkit.
As I have said, the Bill provides for the procedures of the court over which the judge has discretion and not the exercise of controls by the Executive. I reinforce the point, made in an earlier debate, that international partners have expressed concerns regarding the United Kingdom’s ability to protect sensitive information shared with the United Kingdom in cases where claimants are making allegations against the state and its defence rests on national security material. We risk further undermining the confidence that partners have to share information with us if they feel that we do not have secure processes in place to protect their material while defending government actions. We fear that a sunset clause would introduce unnecessary uncertainty.
As I indicated before, the Constitution Committee did not recommend a sunset clause. In its report it said that the House may wish to consider the Bill being independently reviewed, but not renewed, five years after it comes into force; or rather it did not recommend renewal. The Government have accepted the Constitution Committee’s recommendations, and believe that the report and review provisions are sufficient to provide reassurance about how CMPs are used. I therefore beg to move that the House agrees with the Commons in their amendments.
My Lords, I rise to speak to Amendments 19A to 19D in my name as amendments to Amendment 19, concerning review and renewal of the operation of CMPs in the legislation.
In the other place, as my noble and learned friend has explained, the Government conceded that the operation of Clauses 6 to 10 of the Bill should be the subject of a review after five years of the Bill’s operation. That is the effect of Amendment 19. As far as they go, the provisions of the amendment are welcome. They were introduced against the background of the recommendation of the Joint Committee on Human Rights in each of its two reports in November last year and February this year that the operation of Part 2 of the Bill should be subject to annual renewal. This amendment not only fails to meet that recommendation but, as it stands, has a number of significant weaknesses that make it frankly unfit for its purpose.
First, proposed new subsection (1) requires the Secretary of State on his or her own to appoint the reviewer. Yet one of the central complaints about the Bill, as my noble friend Lord Macdonald pointed out earlier, is that in practice it gives too much power to the state and to the Secretary of State in particular. The concerns focus not only on the degree to which the Bill sacrifices common-law principles of fairness and open justice but also on the relationship between the Secretary of State and the courts. That remains true notwithstanding the concessions, important though they are, that there have been on judicial discretion and equality of arms.
The Bill undoubtedly accords to the Secretary of State significant new power to influence how trials of some civil cases may be conducted. How the Secretary of State exercises that power and whether it is found in the light of experience to be either excessive or unnecessary will be fundamental questions for the reviewer to address.
It is therefore entirely wrong that the person appointing the reviewer to report on the operation of those provisions is that very Secretary of State whose powers are to be reviewed. The arrangement proposed is akin to allowing one of the parties to choose the judge. My first amendment, Amendment 19A, addresses this issue by requiring the Secretary of State to consult the senior judges of the three jurisdictions before appointing the reviewer. That is consistent with the principle that for these provisions to command public confidence there must be judicial involvement in their implementation at every stage. There are those who would argue for a strong fetter, for a veto on the appointment. I say to them, first, that it would take a very brave Secretary of State to ignore the advice of the two Chief Justices and the Lord President and, secondly, that were my other amendments to be successful, it would be for Parliament to assess the suitability of the reviewer when considering whether to approve a renewal order, if he sought one. I hope that the Government will decide to accept this modest and obviously fair amendment in spite of what my noble and learned friend has said, because it will enhance the confidence of the public in the review process that they have wisely introduced.
The second weakness in Commons Amendment 19 is that the Government propose only a single, one-off review after five years with the report to be laid before Parliament but without any power for Parliament to act upon it. These provisions, whether justified or not, represent, as we have heard, a serious departure from fundamental common-law principles of open justice and fairness. There is concern and uncertainty about the degree to which they are in fact required and about how they will work in practice, so it is essential that their continued existence and their operation in practice should be kept under regular and careful scrutiny and that that scrutiny should be scrutiny by Parliament. The Commons proposal comes nowhere near fulfilling that objective. The review is all very well, but what is its point if there is no requirement for anyone to act on it and no power for Parliament to respond? If a review concludes that CMPs in civil cases are now unnecessary, or that they are working injustice to the extent that they should be abolished, Parliament should be able to respond directly to that review. As it stands, this is a review without teeth or consequence.
My Amendments 19B to 19D are in line with the assurance sought by the Joint Committee on Human Rights in its letter to the right honourable Ken Clarke dated 18 March this year. In its drafting, it owes much to the Terrorism Prevention and Investigation Measures Act 2011. They need to be considered together. They would provide for a regular review of the operation of CMPs once every five years, with the Secretary of State given a power to make a renewal order following each review, but subject to the affirmative resolution procedure, so both Houses would have to approve a renewal order before it took effect. If no renewal order were made within 90 days of the reviewer’s report being laid before Parliament, the CMP provisions would cease to have effect, except for cases where a Section 6 declaration had already been made, so it would not affect existing cases. The first review would need to be after four years rather than five to ensure that a review and a vote on renewal, if renewal were sought by the Secretary of State, could take place in the next Parliament. In opening this debate, the Minister suggested that it was not appropriate for Sections 6 to 10 to lapse because CMPs are to be used for review of sensitive information certificates in relation to excluded Norwich Pharmacal material and those reviews under Clause 15(1).
I believe that for a lawyer of my noble and learned friend’s distinction it must be quite clear that it would be a simple matter of drafting, either in the Commons to my amendment or in a renewal order subsequently, to maintain the secrecy of proceedings under proposed Section 15(1) so that a review of a sensitive information certificate could be carried out in closed proceedings. I suggest that that does not affect the need for a review.
These proposals represent the minimum required to retain for Parliament a proper role in overseeing the operation of these uncertain CMP provisions after they have been brought into legislation.
My Lords, I want to reinforce what the Minister has said about the prejudice which a sunset clause would have to the confidence which partners would have in us. I noticed that the noble Lord, Lord Marks, was modifying his proposals in his speech because he has recognised that.
Let us suppose that an ally is at this moment considering whether to pass confidences to the Government. If those confidences were held by the intelligence services they would be protected under the Bill. If they were held by another department, they could be protected only by a certificate passed by a Secretary of State. If at this moment the ally was considering whether to pass those confidences to this country and was uncertain whether in four or five years’ time there would be closed procedures under which that certificate could then be considered, it would be a matter of uncertainty whether those confidences would be protected in four or five years’ time. That would affect the willingness of allies to pass secrets to us now. It would, therefore, be very damaging if a sunset clause in the form proposed originally by the noble Lord, Lord Marks, supported by the Opposition, were to pass into law. I very much hope that the House will not support that proposal.
My Lords, I support the amendments tabled by the noble Lord, Lord Marks, and I am prepared to say at this stage that I will not be pressing my own amendment, which is on similar terms at least to the last amendment that the noble Lord has moved.
The noble Lord, Lord Butler, has adumbrated a case in which it would seem almost that the doctrine that no Parliament can bind its successor is somehow to be disregarded. Of course, it would be open to any subsequent Parliament to amend this law in any event. Any nation dealing with us will be aware of that. There is not, therefore, a great deal of force in what the noble Lord has been proposing as a justification for supporting the Government’s position on this matter.
The question arises: what is the point of a review? If a review is to take place—and the Government have given welcome acceptance to that concept—where does it lead? Apparently it would lead nowhere. The whole purpose of the review in these circumstances would be vitiated. There needs to be a review, given the nature of the change in our proceedings for us to establish a principle that there should be a renewal, and certainly on that basis I am prepared to support the noble Lord’s amendments.
My Lords, this has been a relatively short debate, but nevertheless important points have been made by my noble friend Lord Marks and the noble Lords, Lord Butler and Lord Beecham.
The first point I wish to make with regard to the first amendment in the name of my noble friend is, as I indicated in my opening remarks, that a number of public appointments, not least the appointment of Sir David Anderson, have been made by the Secretary of State without the consultation that my noble friend is suggesting in his amendment. I know that it is furthest from my noble friend’s mind to suggest this, but I am sure we would not want a situation where perhaps the appointment of some independent reviewers was questioned because they had not had the same statutory consultation requirements as have been proposed here.
I do not think anyone can deny that the role that Mr David Anderson plays is a very sensitive one. The independent reviewer of terrorism legislation reviews quite significantly the actions of the Executive. It is in the interests, too, of the Secretary of State that the person appointed as the reviewer is credible. I do not think that the recent appointment by the Home Secretary of the Biometrics Commissioner—or indeed of Mr Anderson—has given rise to any concerns. I would caution against fixing a problem that does not exist, because you might inadvertently create another problem by perhaps casting some doubt on the independence of those who have been appointed under the present regime. The Secretary of State should have the discretion, in a highly sensitive national security context, to ensure the appointment of an individual who does not pose any risk. I am sure that would be agreed across the House.
I listened to what my noble friend said and, as the noble Lord, Lord Butler, pointed out, he indicated that he was perhaps shifting—that is not a criticism at all—on the position of the renewal, given the deemed Section 6 proceedings as far as Norwich Pharmacal is concerned. The noble Lord, Lord Butler, makes an important point with regard to the confidence in which other countries share information with us. The fact that there would be regular potential for renewals puts it in a different category from that raised by the noble Lord, Lord Beecham, and it could raise a problem. In one of our earliest debates, the noble Lord, Lord Butler, indicated from a visit to America that when we discussed information perhaps being withheld, it was not fanciful; it was something that he actually encountered in his role as a member of the ISC.
I simply say to my noble friend and to the noble Lord, Lord Beecham, who ask what is the point of a review if nothing could happen, that the answer lies in what the noble Lord, Lord Beecham, himself said. No one is suggesting that this Parliament is binding its successors by this. I remind the House that it is not just the actions of the Executive and the Secretary of State; it is the whole system that we are setting up, which involves the courts. If a review proved that closed material proceedings were not working, manifest injustice was following on from them and they were not actually doing what they were set up to do, of course it would be possible for a future Parliament, through primary legislation, to repeal the legislation if that system is not working. Indeed, it may not go as far as repeal. It may be that a review would point out particular things that perhaps needed amendment, falling far short of a repeal. So a review could have a proper purpose that does not necessarily require a renewal order to follow on from it. In these circumstances, I invite the House to support and approve the amendments that have been brought from another place and I invite my noble friend not to move his amendment.
Motion on Amendment 19
19: Insert the following new Clause—
“Review of sections 6 to 10
(1) The Secretary of State must appoint a person to review the operation of sections 6 to 10 (the “reviewer”).
(2) The reviewer must carry out a review of the operation of sections 6 to 10 in respect of the period of five years beginning with the day on which section 6 comes into force.
(3) The review must be completed as soon as reasonably practicable after the end of the period to which the review relates.
(4) As soon as reasonably practicable after completing a review under this section, the reviewer must send to the Secretary of State a report on its outcome.
(5) On receiving a report under subsection (4), the Secretary of State must lay a copy of it before Parliament.
(6) Before laying a copy of a report before Parliament under subsection (5), the Secretary of State may, after consulting the reviewer, exclude from the copy any part of the report that would, in the opinion of the Secretary of State, be damaging to the interests of national security if it were included in the copy laid before Parliament.
(7) The Secretary of State may pay to the reviewer—
(a) expenses incurred by the reviewer in carrying out functions under this section, and
(b) such allowances as the Secretary of State determines.”
Amendment 19A, as an amendment to Commons Amendment 19, not moved.
Amendment 19B (as an amendment to Commons Amendment 19)
19B: Line 6, leave out “five” and insert “four”
I have not moved Amendment 19A, but Amendments 19B to 19D, as a suite, on the principle of renewal, are extremely important. In those circumstances, I do not accept the argument put by the noble Lord, Lord Butler. I cannot believe that it is beyond the wit of man to produce, in this legislation, a very clear signal that a review of certificates on Norwich Pharmacal proceedings can proceed without impairing the renewal amendment. In those circumstances, I wish to test the opinion of the House.
Amendments 19C to 19E, as amendments to Commons Amendment 19, not moved.
Motion on Amendments 20 to 24
20: Clause 11, page 7, line 38, leave out “10” and insert “(Review of sections 6 to 10)”
21: Page 8, line 10, leave out “(4)” and insert “(1G)”
22: Page 8, line 14, at end insert—
““sensitive material” has the meaning given by section 6(9),”
23: Page 8, line 18, leave out “10” and insert “(Review of sections 6 to 10)”
24: Clause 15, page 12, line 31, leave out “and 10” and insert “, 10 and (Review of sections 6 to 10)”
Motion on Amendment 25
25: Clause 17, page 14, line 1, leave out subsection (8)
My Lords, I beg to move that this House do agree with the Commons in their Amendment 25. This is a minor technical amendment. It removes the privilege amendment which was inserted into the Bill at Third Reading in this House to recognise the privilege of the other place to control any charges on the people or on public funds. The removal of this amendment at this point is standard procedure.
Motion on Amendments 26 to 45
26: Schedule 1, page 16, line 3, at end insert—
“(6) The ISC may take evidence on oath, and for that purpose may administer oaths.”
27: Page 16, line 3, at end insert—
“Funding and other resources
A Minister of the Crown—
(a) may make payments to either House of Parliament in respect of any expenditure incurred, or to be incurred, by either House in relation to the ISC,
(b) may provide staff, accommodation or other resources to either House of Parliament for the purposes of the ISC,
(c) may make payments, or provide staff, accommodation or other resources, to the ISC, or
(d) may otherwise make payments, or provide staff, accommodation or other resources, to any person for the purposes of the ISC.”
28: Page 16, line 5, at beginning insert—
“( ) This paragraph applies to information requested by the ISC in the exercise of its functions that—
(a) does not relate to any particular operational matter, or
(b) relates to a particular operational matter that the ISC is considering under section 2(3)(a) or (b).”
29: Page 16, line 7, leave out from “ISC” to first “information” in line 8 and insert “to disclose the”
30: Page 16, line 15, leave out “in the exercise of its functions”
31: Page 16, line 16, after “disclose” insert “the”
32: Page 16, line 23, leave out “Minister of the Crown” and insert “Secretary of State”
33: Page 16, line 24, leave out “A Minister of the Crown” and insert “The Secretary of State”
34: Page 16, line 25, leave out “Minister” and insert “Secretary of State”
35: Page 16, line 31, leave out “Minister” and insert “Secretary of State”
36: Page 16, line 33, leave out “Minister” and insert “Secretary of State”
37: Page 16, line 36, leave out “Minister” and insert “Secretary of State”
38: Page 17, line 20, at end insert—
“Publication of information received in private
5 (1) This paragraph applies to information received by the ISC in private in connection with the exercise of its functions.
(2) The ISC—
(a) may only publish the information by way of a report under section 3, and
(b) must not otherwise disclose the information to any person if the ISC considers that there is a risk that the person will publish it.
(3) The restrictions on publication and disclosure of information in sub-paragraph (2) do not apply if—
(a) the ISC and the Prime Minister are satisfied that publication or disclosure would not be prejudicial to the continued discharge of the functions of the Security Service, the Secret Intelligence Service, the Government Communications Headquarters or any person carrying out activities falling within section 2(2),
(b) publication or disclosure is necessary for the ISC to comply with any enactment or rule of law, or
(c) the information has on an earlier occasion been disclosed to the public, in circumstances which do not contravene—
(i) sub-paragraph (2), or
(ii) any other enactment or rule of law prohibiting or restricting the disclosure of information.”
39: Page 17, line 20, at end insert—
“Protection for witnesses
6 (1) Evidence given by a person who is a witness before the ISC may not be used in any civil or disciplinary proceedings, unless the evidence was given in bad faith.
(2) Evidence given by a person who is a witness before the ISC may not be used against the person in any criminal proceedings, unless the evidence was given in bad faith.”
40: Schedule 2, page 17, line 30, at end insert—
“Data Protection Act 1998 (c. 29)
In section 63A of the Data Protection Act 1998 (application to Parliament)—
(a) in subsection (2), after “Commons,” insert “other than where they are determined by or on behalf of the Intelligence and Security Committee of Parliament,”, and
(b) in subsection (3), after “Lords,” insert “other than where they are determined by or on behalf of the Intelligence and Security Committee of Parliament,”.”
41: Page 17, line 36, at end insert “, and
(b) after “Committee” insert “of Parliament”.”
42: Page 18, line 4, at end insert—
“Freedom of Information Act 2000 (c. 36)
(1) The Freedom of Information Act 2000 is amended as follows.
(2) In section 23 (information supplied by, or relating to, bodies dealing with security matters), in subsection (3), at the end insert—
“(o) the Intelligence and Security Committee of Parliament.”
(3) In Part 1 of Schedule 1 (Public Authorities; General)—
(a) in paragraph 2, after paragraph (d) insert—
“(e) information held by the Intelligence and Security Committee of Parliament.”, and
(b) in paragraph 3, after paragraph (d) insert—
“(e) information held by the Intelligence and Security Committee of Parliament.””
43: Page 18, line 10, at end insert “, and
(b) after “Committee” insert “of Parliament”.”
44: Page 19, line 31, leave out “7(2)” and insert “7(1)”
45: Schedule 3, page 21, line 22, after “Committee” insert “of Parliament”
House adjourned at 10.13 pm.