The last debate was about the principles of closed material proceedings; we now turn to a new group of amendments relating to additional reviewing mechanisms for the CMP provisions—in particular, Government new clauses 5 and 6 and associated consequential amendments.
In Committee I said that I was prepared to listen further to concerns expressed about transparency and particularly about ensuring that the new provisions did not make CMP commonplace. I undertook to table amendments on that matter. I have considered the issue carefully and decided to adopt the view of the Constitution Committee. I therefore intend to bring forward annual reporting and a review of the CMP provisions to be conducted five years after Royal Assent.
Given the often lengthy nature of litigation, we believe that the frequency set out in the amendments allows for regular but meaningful reporting and for a review to be informed by enough cases to provide for substantiated conclusions and reasoned recommendations where necessary. We believe that an annual report is the most proportionate approach, as it is anticipated that CMPs will be used infrequently.
The consequence is that there is likely to be little to report on a basis more regular than once a year. Annual reports will not, however, be the only way in which facts relating to cases involving CMPs will be made public during the reporting period. The Government have made an amendment in the Lords to ensure that when an application is made under clause 6(1), that must be reported to the other parties in the proceedings. There are already mechanisms through which the courts publish their open judgments.
The reports will focus on court procedures, as CMPs are a procedural option for the courts and not related to the use of Executive powers. The new clauses list the matters of key concern to be included in the annual reports such as the number of CMP applications and who they are made by; how many CMPs are granted and how many revoked; and how many judgments, both open and closed, are published with respect to the determination of section 6 proceedings. That would include judgments made on the substantive trial and regarding the outcome of the application for a CMP declaration. The new clauses would also cover proceedings
deemed to be section 6 proceedings, such as the application process for a declaration and the review of Norwich Pharmacal certification.
In addition to an annual reporting requirement, the Government seek to introduce a provision for a comprehensive review after five years. In line with other legislation, such as the Terrorism Prevention and Investigation Measures Act 2011, it requires the appointment of a reviewer and does not specify the remit of the review except to indicate that it covers the operation of closed material proceedings. That type of review of CMPs would be different from other reviews, in that it would not concern the operation of the Secretary of State’s powers but rather the operation of court processes. That means that the reviewer will have to take care not to review judicial decisions regarding the operation of court processes or the fair running of individual cases.