It is a pleasure to follow the hon. Member for Canterbury (Mr Brazier). I shall try in a moment to give some examples of how important the point is that he finished on.
My right hon. Friend the Member for Blackburn (Mr Straw) referred to the well-known liberal credentials on these matters of the Minister without Portfolio. I would go further—perhaps my own Front Benchers will take this into account—and say that if someone is as liberal as he is, they are probably in the wrong place and, on this occasion, if someone is even more liberal than he is, they are almost certainly in the wrong place.
I would like to make one further point by way of introduction. I came here genuinely hoping to be persuaded by my right hon. Friend the Member for Tooting (Sadiq Khan) to follow the course of action he has outlined in the amendments. I wanted to hear what he had to say—that was why I made at least one, perhaps two, interventions—and to see whether he had an answer to some of the dilemmas I felt still existed in our approach to the Bill and, more particularly, our amendments. Before arriving here, I decided to read what he said on Second Reading about the tests he set for the Bill at that time and what it would look like when it left Committee.
My right hon. Friend relied heavily, though not exclusively, on the words at the time of David Anderson QC, who concluded that there was a
“case for restricting the novel application of Norwich Pharmacal jurisdiction to national security information”—
the relevant clause at the time was clause 14—but that the Bill at the time was
“too broad in its application.”
Beyond that, however, no specific tests were set other than those set by the Joint Committee, which its Chairman listed at the time.
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Two of those tests are relevant to the speech that I am making now. The first was the judicial balancing of interests—which we have discussed quite a bit—and the second was a more proportional response to the problem
of preventing the ordering of disclosure of national security and other sensitive information. I think that the Bill, as amended, meets those two tests. Clause 7 now sets out in some detail the conditions that apply in the determination of whether closed material proceedings are justified. That includes the disclosure of sensitive material, the possibility of a PII’s being appropriate, and no disclosure by voluntary means. In this last event, the case collapses and someone usually ends up with a large payment as a result.
Clause 7(2) relates to the rules governing proceedings once an application for use of a CMP has been granted. It states:
“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 fair and effective administration of justice in the proceedings.”
There is a test there, requiring the judge presiding over the case to make those considerations. That is not too distant from the conditions that my right hon. Friend and others are seeking, but, as we heard earlier today, it is different in some important ways.
The Wiley balancing test of fair and open administration of justice simply cannot be applied. I cannot imagine circumstances in which it would be possible to justify describing closed material proceedings as open; that strikes me as an absolute contradiction in terms. I believe that if amendment 30—which my right hon. Friend intends to press to a Division—were passed, it would have a wrecking effect, although I know that that is not his intention. In my view, the Government’s test of fair and effective administration of justice is proportionate—as the Joint Committee required—and workable.
It must be borne in mind that the purpose of CMPs is to ensure that cases are considered by the courts, rather than the opposite. My right hon. Friend the Member for Salford and Eccles (Hazel Blears) made that point very strongly. The opposite is a PII, and on that basis I think that this is more a progressive move than the opposite. One of the strange ironies of politics that I have observed over the years is that there are occasions when the progressives adopt the reactionary position, and the reactionaries—although I hesitate to call the Minister without Portfolio a reactionary—adopt the progressive position. I think that this is one such occasion, and my right hon. Friend made that case very effectively.
I said earlier that my right hon. Friend the Member for Tooting relied heavily on David Anderson’s evidence, which was available at the time. Since then, David Anderson has been given an opportunity to inspect the relevant files on the cases that are pending, and has concluded:
“We are in a world of second-best solutions: but it does not seem to me that the level of injustice inherent in the use of CMPs 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.”
What he meant was that it cannot be justifiable to make large cash settlements rather than taking a case to court. I hesitate to interpret what such a distinguished gentleman said, but that seems to me to be the gist of it.
Having listened carefully to what was said by my right hon. Friend the Member for Tooting and one or two others, I honestly cannot support amendment 30.
I believe that, albeit unintentionally, it would have the effect of wrecking what I consider to be progress rather than the opposite. I find it difficult to do this—I do not do it regularly, and when I do, I do it with a heavy heart—but I am afraid that, on this occasion, I do not feel able to support my own Front Benchers.