That is a point of view, but I am not sure. I have not discussed it with my hon. Friend. The point of view of our colleagues was that we have to be very careful when we move away from open justice. We have to accept the evidence of those who say it is not necessary. The Joint Committee heard from the special advocates that it was not necessary. They did not support the proposal and we should give that due weight.
The central issue is what the procedure will be in order to protect the security interests on the one hand, but make sure that we deliver a fair outcome to a reasonable case on the other. The existing system, the public interest immunity system, means that Ministers declare documents secret and therefore they cannot be used. It is a very simple system, although it can be time consuming. I accept the argument that that often means that a case cannot be carried through to a conclusion, so I am not here to defend the idea that the PII system is the solution to all our difficulties.
Happily, the Bill is now drafted in such a way that consideration has to be given to that option first, and to whether, if certain documents are withheld, the trial can none the less proceed fairly. But if that is not the answer entirely, we have to consider whether there is something else. I want to flag up the changes that have been made and the ones that I think might get us nearer to what my party colleagues would like to see, as would many people who have written to us.
First, it is right that we should stick to the idea that the discretion is with the judge, not with Ministers of the state as an alternative. That is why the change referred to by the hon. Member for Oxford West and Abingdon (Nicola Blackwood), that the judge “may” do things, rather than “must” do things, is the right change—small word but big implication in the context of clause 6. We have added the requirement to look at alternatives, such as the PII alternative. We have also added the requirement—a good one—that all parties to the proceedings can apply for closed material proceedings, or that could happen at the judge’s instigation, which is a good thing. We have also dealt with the inquests issue.
However, we have not dealt with the fundamentally important issue of how a defendant can see the evidence against them, and that is what gave the Joint Committee on Human Rights its biggest difficulty. The Committee made it absolutely clear in its report’s conclusions that, because we had not had the information that justified the case and had heard from the special advocates that they were not persuaded, even though the Government’s official reviewer said he was persuaded, it was not persuaded either. That is set out in paragraphs 44 to 46. There was uncertainly about how many cases we were talking about. Paragraph 42 states:
“In the light of the lack of clarity about whether the number of pending claims is 27, 15, 6 or 3, and in the light of the Independent
Reviewer’s evidence we wrote to the Minister in charge of the Bill on 23 October to ask how many civil damages claims were currently pending”.
Just after the Committee wrote the report, the Advocate-General for Scotland, my noble Friend Lord Wallace of Tankerness, replied to that:
“I can confirm that as of 31 October 2012, there are 20 such live civil damages claims (including those stayed and at pre-action stage). There are also a number of other live cases, including judicial review challenges.”
He went on to elaborate the detail of that figure. I think we have to accept that that is roughly the number of cases we are talking about, but some of them are very significant cases and cannot be dismissed.
We must therefore take seriously the challenge that the Government have brought us. My honest view is that we have to allow the defence better access to the information, either through special advocates or by another means. It is on the new word that has only recently come into our language—“gisting”, which means allowing the defence to see not every iota of evidence, but the gist of it—that we need to do the most work in Committee. I think that there must be a mandatory requirement that the information be given in summary to the defence and that the defence—they can be specially cleared defendant advocates or representatives—can see the evidence, respond and take instructions on it. If we are going to say that we will allow the courts to go into closed session, it seems to me that we need the security of knowing that the defendant will have the right to know the case against them and the right to challenge. I hope that the Committee will do some detailed work on that over the coming weeks.
I agree that we need to deal with the Norwich Pharmacal situation, because at the moment we are precluded from using intelligence from abroad because of the court’s overriding power to have that put into the public domain. That has to be dealt with, because it is clearly unsatisfactory. I agree that we need to have a reporting and reviewing process and allow the media to make representations, as recommended by the Joint Committee.
I have two final points. First, we must ensure the judicial balance of national security against the public interest takes place in the second stage of the closed material proceedings process, not just at the gateway. Secondly, we have to consider whether we can just sign off this legislation forever or whether we have to come back to it in a certain number of years. This is very unusual territory for us. Civil liberties are at risk. We have made progress, but we are not there yet.
3.53 pm