A five-yearly review with, in essence, each Parliament having the opportunity to examine the operation of CMPs is appropriate. As my hon. Friend will know from our previous debates on, for example, the Terrorism Prevention and Investigation Measures Act, my view has been that that time period or cycle gives sufficient time to enable a proper consideration of the operation of the process. The right period is five years—in essence, once a Parliament so that each Parliament can consider what may or may not be appropriate at that point.
New clause 4 provides that the new CMP provisions would expire only a year after Royal Assent unless a statutory instrument extending the provisions for a further year was laid before Parliament and approved by resolution of each House. The Government believe that the new clause would largely negate the benefit of the provisions in part 2 and that it is disproportionate. The negative impact of what would amount in the first year to a sunset clause could be very serious. As I have said, we know that litigation can be lengthy, lasting a number of months and usually more than a year, while document-heavy cases can last for several years. Creating the possibility that CMPs would cease to be available halfway through the progression of a case where the judge had already decided that a CMP was in the interests of the fair and effective administration of justice in the proceedings would, in our view, undermine the judge’s discretion.
I think that the House is in basic agreement that CMPs should be available as a tool to the judge and that the judge should have discretion on whether to use one or not. In exercising that discretion, the judge will consider whether or not he agrees with the Secretary of State’s assessment of damage to national security and
how the case should be fairly run. Even once a judge has decided that a CMP should form part of the procedures in the case, each piece of material will be assessed to decide whether it should go into the CMP, be withheld entirely or be redacted, summarised or disclosed. The judge can also decide at any point to revoke a CMP and, indeed, must consider doing so after the disclosure exercise if he feels it is no longer in the interests of the fair and effective administration of justice in the case. Parliament has already decided to provide four CMPs in at least 14 settings, so we do not believe that we are introducing an entirely new concept.
I understand the origin of the new clause. In essence, it is about the provision for annual renewal of control orders under the Prevention of Terrorism Act 2005, which the Terrorism Prevention and Investigation Measures Act repealed and replaced. The 2005 Act was passed under a greatly accelerated parliamentary timetable, with only limited opportunity for debate. By contrast, the Green Paper provided a full consultation and it is fair to say that the Bill has been through parliamentary scrutiny in the other place and this House. It is also worth underlining that the Bill’s provisions relate to the procedures of the court, rather than the exercise of controls by the Executive. I note that in the preceding debate the right hon. Member for Tooting said that we are in a “very different context”.
The circumstances in which CMPs could be used are limited to national security-sensitive cases and for hearings in the High Court, Court of Appeal, Court of Session and Supreme Court. As I have said, the judge has the discretion to determine whether a CMP is appropriate.
This problem is not likely to go away. Claimants should have the continued ability to bring claims against the Government and matters should be scrutinised by the courts, as opposed to a return to the current system, where in some circumstances justice is simply not possible. We will continue to be faced with the unpalatable dilemma of either damaging national security or potentially paying out significant sums of money.
I should also make clear that, although the Opposition’s proposed new clause applies to clauses 6 to 12, it would also affect the reviews of certificates issued by the Secretary of State under the Norwich Pharmacal clauses. Such proceedings are deemed to be section 6 proceedings because the case needs to be heard in CMP in order to ensure that its outcome is not prejudiced by having already publicly disclosed the very information with which the proceedings are concerned. Therefore, the effect of the proposed new clauses would be also to disrupt the Norwich Pharmacal clauses, which are intended to bring clarity and reassurance to intelligence-sharing partners.
International partners have expressed concerns about the Government’s ability to defend themselves and protect national security in cases where claimants make allegations against the state and its defence rests on national security material. We risk undermining the confidence of partners who share such information with us if they feel that we do not have in place secure processes to protect their material while defending Government actions.