I agree that a CMP could be of use in some cases. My point is that the special advocates, who are well placed to judge, have looked at the proposals and said that, so far, they have seen no cases in which PII could not do the job.
A cynic would argue that the special advocates have an interest in arguing for more legal work and more CMPs, but it is significant that they have spoken in the opposite direction—against the extension of CMPs. Their lordships shared the concerns of the special advocates, and by majorities or more than 100, shredded that part of the Bill.
The Lords amendments included two crucial safeguards that I consider to be essential. The first, which we have discussed, is that they gave the judge rather than the Minister discretion on whether to hold a CMP. The original Bill clearly gave the lion’s share of that discretion to the Minister, and it is not true, as the Minister said a moment ago, that he gave up that position “months ago”. If he gave it up “months ago”, why on earth did their lordships debate replacing the word “must” with the word “may” only a fortnight ago?
The second crucial Lords amendment was a measure—clause 6(6)—to ensure that a judge should be able to exhaust PII in his search for justice before considering CMPs. Unfortunately, my right hon. and learned Friend the Minister did not say that he would accept it. On the contrary, he used a number of phrases to suggest that he would do no more than consider it, and that he had not yet finished his consideration. I regret that and the fact that we are discussing the Bill so quickly. It needs
further consideration and I agree with him on that. The debate should have taken place in January. That it is being rushed through just before Christmas adds to my concerns.
A third safeguard would be valuable. A review should be held after a period to see whether CMPs have led to more rather than less justice. To ensure that the review happens properly, it should be accompanied by a sunset clause—in perhaps seven, eight or 10 years. That proposal was a recommendation of the Joint Committee on Human Rights, the Chairman of which is not in the Chamber at the moment. I would like it included in the Bill.
Having said that, my concluding thought is this: we should remain deeply sceptical of the utility of holding a hearing in which one party is shut out of the case. This is what the former Director of Public Prosecutions has to say on that—I shall quote it in full, because it is so forceful. He said:
“I have spent many years in criminal courts watching evidence that at first sight seemed persuasive, truthful and accurate disintegrating under cross-examination conducted upon the instructions of one of the parties…That is the risk that we are facing, that we are introducing into civil justice—in the most sensitive and controversial cases, where deeply serious allegations are made against the Government and the security services—a process that expels the claimant and gives him a form of justice that is not better than nothing. It is worse than nothing because it may be justice that is based on entirely misleading evidence.”.—[Official Report, House of Lords, 21 November 2012; Vol. 740, c. 1989-1900.]
I accept that, in some very restricted circumstances, one can conceive of more justice being achieved with a CMP than without one, but I am clear in my mind that that must come only after all other existing routes to try to obtain justice, including PII, have been exhausted. The Minister has not accepted clause 6(6) as amended by the other place. For that reason, above all, I cannot accept the Bill.
4.33 pm