It is interesting to follow the right hon. Member for Bermondsey and Old Southwark (Simon Hughes). He said that there was a lack of evidence to support the need for change, which was reminiscent of where the proposal for 90-day pre-charge detention fell down. I believe that part 2 of the Bill threatens to undermine the principle of natural justice that demands that parties to an action should be given access to the case they confront. The Bill is deeply contentious, but some vital amendments have been made by the other place and I think that they must be upheld as a bare minimum, although I am sure that I am not alone in wishing that certain elements of the Bill be removed entirely. On my reading, even as amended
the Bill could result in members of the public losing their cases against the state without ever having been told why, in the Government’s being allowed to hide evidence of wrongdoing, and in officials being given the power to exclude the other party from court proceedings. As Reprieve points out, that effectively means that they could place themselves beyond challenge and hence above the law.
Last week, we heard about the Finucane case. We were all heartily disgusted at what went on—the collusion between the police service and the security services. God forbid, but if such a thing happened again, I believe that the Bill would make it easier for the state to prevent a family from suing in such circumstances. Have we thought about that?
Part 2 also sets out the Government’s intention to remove the courts’ power to order someone who has been involved in wrongdoing to disclose information—the Norwich Pharmacal jurisdiction, which needs to be considered in Committee.
I shall restrict my remarks to the proposed extension of closed material procedure—known as “secret courts” in outside parlance—to all civil proceedings in clauses 6 to 13. Responding to those provisions, the president of the Law Society and the chairman of the Bar wrote to the Minister without Portfolio saying:
“CMPs…undermine the principle that public justice should be dispensed in public and will weaken fair trial guarantees and the principle of equality of arms. These are both essential elements of the rule of law.”
I might also add, as others have, that they undermine the principle that justice must be seen to be done.
We have heard what the Joint Committee on Human Rights has said. It has been vocal in its criticism of the legislation and has drawn attention to the
“troubling lack of evidence of any actual cases demonstrating the problem which the”
Government “asserts to exist.” At no point have the Government produced any known case that could not be tried under the current public interest immunity system, which I have seen operate over many years as a legal practitioner myself.
The special advocates memorandum says
“CMPs are inherently unfair and contrary to the common law tradition...the Government would have to show the most compelling reasons to justify their introduction...no such reasons have been advanced; and...in our view, none exists.”
It speaks volumes that the special advocates memorandum was so scathing about what the legislation purports to do; special advocates, of course, are better qualified to comment than anyone else. Among their concerns was the fact that the Bill as originally drafted required a judge to allow the Government’s application for a CMP if there was any material at all that could damage national security, even if the judge considered that the case could be fairly tried under the existing PII. The memorandum also makes the point that the decision on whether to trigger a CMP should lie with a judge and not the Secretary of State—an amendment to that effect has been carried and is most welcome; I hope that it will remain in the Bill.
Furthermore, under clause 6 as it originally stood, only the Government would have been able to apply for a CMP and not both parties. That is objectionable. The amendment on that is also welcome and I hope that it will be retained, although I am sure that the circumstances in which a plaintiff or claimant would apply would be limited.
I wish to refer to comments made by Lord Hodgson on Report in the other place. He said:
“I would like to see enshrined in the Bill a set of steps-hurdles…that the Government of the day will have to clear before they can resort to a CMP. The first is a requirement to go through the public interest immunity procedure, from which the judge can reach a balanced conclusion on whether the interests of national security require a closed court.”
In the same debate, Lord Pannick, a pre-eminent Queen’s Counsel, is recorded as arguing that
“a judge in an individual case should have a discretion, not a duty, to order a CMP.”—[Official Report, House of Lords, 21 November 2012; Vol. 740, c. 1812-14.]
I urge the Government to take heed of those arguments and to uphold the amendments carried in the other place.
Perhaps the most disturbing provision of all is in clause 7(1)(d), which provides that, if a CMP is triggered, a court is not required to give the excluded party a summary of the closed material. Rather, the Bill as drafted requires only that the court should “consider requiring” that such a summary be given. Clause 7(1)(e) provides that the court must ensure that where a summary is given it
“does not contain material the disclosure of which would be”
against
“the interests of national security.”