That is very helpful. There is a success story here: the Committee is still building the relationships necessary to give the confidence I described earlier. I pay tribute to those who have been involved in this on the Committee side as well as on the Government side. There will be occasions, as there have been in the past, when the public fear that power within the intelligence sphere is being used inappropriately or, indeed, not
effectively. A democratically elected body must therefore be able to provide reassurance that if something goes wrong it will know about it and try to do something about it.
The other part of the Bill deals with closed proceedings, which are also closely related to intelligence. I emphasise that we are discussing civil proceedings, not prosecutions. Closed material proceedings are unwelcome, but it is difficult to see an alternative. They are necessary to protect the operational effectiveness of intelligence services, including the secrecy of sources. The control principle of foreign intelligence is fundamental to intelligence operations: people do not give away their country’s intelligence unless they know it will not be misused.
That is not a one-way process—other nations sometimes forget the control principle. I recall a rendition case in which our US allies did not observe the principle. Indeed, the Committee reported on it because the intelligence was provided on the basis that action would not be taken, yet it was used to provide the basis for an action. That was an example of the control principle not being applied, but we must apply it; otherwise, we will not gather the intelligence we need to protect our citizens.
I pay tribute to the work of the Joint Committee on Human Rights, which the Justice Committee decided was doing the work and should be allowed to get on with it. Boundary lines between our two Committees are often drawn, but the Joint Committee’s excellent work contributed hugely to their lordships making the Bill more acceptable to those of us who come at it from a more liberal standpoint. Their lordships made it quite clear that although the Executive apply for closed material proceedings, the judge decides.
The original subsection (2) of clause 11, which would have allowed the extension of closed material proceedings into other areas, was removed by a welcome Government amendment. Their lordships passed an amendment on considering alternatives such as public interest immunity and a strict necessity test. The amendment appeared to be desirable, although my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) today indicated that it could lead to some cumbersome processes, so it will be appropriate for the Committee to look a little more closely at it.
A court will be required to balance national security with fairness, transparency and the need for open justice. The amendment that was unsuccessfully proposed to bring that process continuously into closed material proceedings was unrealistic—it is pretty difficult to satisfy foreign allies that we will apply the control principle if the question is being reopened in proceedings daily. The Government have indicated that they will accept the provision under which either side will be able to invoke closed material proceedings. I find it hard to envisage the circumstances in which a plaintiff would do so, but equality of arms requires that provision. I do not know why the Government resist the amendment proposing an annual report on the use of closed material proceedings—a fairly simple requirement—but perhaps such proceedings will not be so frequent and only a biennial report will be necessary.
As a result of proceedings in the other place we are now close to achieving a reasonably satisfactory balance in using difficult and unwelcome powers to ensure that
information can be put before a court. None of us would want to have to use the process, but without it we will not be able to decide cases on the evidence available.
Another matter with which the Bill deals is the more general application of the Norwich Pharmacal principle to intelligence, on which the Government are right to act. I note the Intelligence and Security Committee’s suggestion, which the Justice Committee can look at, on how we limit its application so that we more specifically refer to foreign intelligence and the control principle or information that would impair the effectiveness of our security operations. The Government must act to defend our ability to acquire intelligence from elsewhere.
Further improvements might be possible to make it clear that a gisting process can work in cases where the special advocate realises that he cannot effectively challenge or assess evidence without more information that is in the possession of only the plaintiff. We must find some way of resolving that. We cannot allow the present position to continue, but we must get the Bill into the best state possible.
2.46 pm