Let me remind hon. Members of the position we have reached and then I will give way.
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The court must be satisfied that the Secretary of State has considered whether to make, or advise another person to make, a PII claim for the material on which the application is based. Therefore, the Secretary of State must have considered that PII claim. We are not in favour—I will come back to this point—of the Secretary of State being put under an obligation to go through the whole PII process, which in some cases can take months, if it is obvious from a sample of the material that the case is likely to involve a CMP.
Now that the Bill has been amended, the tests the judge must apply before going into closed proceedings are clear. The judge must be satisfied that the material is relevant to the case and bears on issues that the judge is being asked to decide on. Secondly, the judge must be satisfied that the material could damage the interests of national security. A case cannot be contemplated for closed proceedings until the judge is satisfied on that point. Thirdly, the judge must be satisfied that a CMP would be in the interests of the fair and effective administration of justice—the proper way a British judge should try the case.
Those three conditions are pretty wide and they have to be satisfied. If the judge, exercising the widest possible consideration, is satisfied that those three conditions have been met, he may allow a CMP. We have removed the wording that he “must” allow a CMP, so the idea
that this decision is not under the control of the judge strikes me as totally fanciful. If a CMP is being considered, the only way it will be workable is if a judge looks at a sample of the material to see whether those three conditions are satisfied. He may then order a CMP.
In a CMP a judge will hear all the material, which can amount to thousands of documents. During that time, when the special advocate is challenging and going through the case, the court is obliged to keep the CMP under review. Again, we have given the judge the power to revoke the CMP at any time. Indeed, the court has a duty to revoke a CMP following the pre-disclosure exercise if it feels that the CMP is no longer in the interests of the fair and effective administration of justice. As Lord Woolf has said, the changes the Government have made put the judge in complete control of whether a CMP can be granted and whether it will continue or be revoked—I could add more but I will not because I have started to give way again. The judge also decides how much of the case will go into open proceedings, how much of a gist can be given to the defendants, and how much can go into open proceedings as long as certain documents are redacted. Of course, the judge will have been informed by evidence and heard it challenged, and will then continue to the rest of the proceedings.
If we started like that, Lord knows where we would be now given the amendments we were facing—I cannot imagine. Some of this is unnecessary because I think a British judge would want to hold open proceedings. People will have difficulty persuading a British judge that it is sensible to go to closed proceedings. The idea that we need a whole lot of amendments that put fresh conditions on the judge, fresh questions for them to ask, and fresh, expensive and long processes to go through, is just an attempt to thwart CMPs. The Bill contains every protection because we have amended it yet again after consideration by the Joint Committee on Human Rights and the Intelligence and Security Committee.