My Lords, this has been a very important debate on the role of the special advocates in the proceedings which are proposed in this part of the Bill. I am particularly grateful to my noble friend Lord Hodgson of Astley Abbotts for the way in which he introduced his amendments, in which he gave a very clear and concise indication of the purpose of each amendment and what the effect would be. That helped to set the tone for a very useful debate, and I appreciate the contributions from colleagues across the Committee.
Amendment 55 raises an important procedural point on how the application process for closed procedures would work in practice. My noble friend and I agree that it is essential that we balance fairness and national security. I hope I can set out why the balance has been struck in the way that it has and that the proposals put forward in the Bill are indeed fair.
Clause 7 means that an application for closed proceedings is always considered without any other party to the proceedings or their legal representatives being present. The amendment tabled by my noble friend would allow the court the discretion to allow another party into the application stage of the proceedings. Perhaps I can reassure my noble friend that special advocates are not excluded from the process of determining whether material should go into open or closed proceedings. Clause 7(1)(b) does not have that effect. Rather, it is to be read in the light of Clause 7(1)(a), which involves the application for material to be shown to the courts, special advocates and the Government only. Where Clause 7(1)(b) says,
“in the absence of any other party”,
it is not meant to exclude those referred to in Clause 7(1)(a). I hope that gives reassurance.
I indicated in an earlier debate that, by virtue of a later clause in the Bill, the role of the special advocates is there at the application—the original gateway stage, as we have come to call it—as well. At stage 2 of the CMP process there is a detailed document-by-document consideration during which special advocates can challenge each piece of sensitive material and make representations to the judge about why it should go into the open or be summarised, as well as make representations on the weight given to that material. This is what special advocates have done and do under current CMP cases very effectively indeed.
The noble Lord, Lord Beecham, asked how many times more information was made available. I am not sure whether that information is available. If it is, I will certainly share it, not only with the noble Lord but also with the Committee. However, in every case under the current statutory closed material proceedings, and indeed, I rather suspect, under those before the Al Rawi judgment where sometimes closed material proceedings were held with the concurrence of both parties, there have been incidents where specific pieces of evidence or specific documents have been admitted, allowed to be disclosed or ordered to be disclosed, so it may not be possible to give the full details in every case.
It is worth pointing out that there have been cases where, as a result of the work of the special advocates, the case for the excluded party has been successful. The noble and learned Lord, Lord Woolf, in M v Secretary of State for the Home Department has been quoted on a number of occasions in your Lordships’ House during these debates and clearly makes the point about the effectiveness with which the special advocates go about their work.
It is important to emphasise again that the judge will have a similar level of flexibility available to him or her under PII. For example, the judge will have the power to refuse non-disclosure, to permit non-disclosure of only parts of a document—in other words, redaction —to require summaries or gists, or to require a party to take action for refusal to disclose or summarise, for example, not to take certain points, or indeed to make concessions.
Where Article 6 so requires, the judge will always approach decisions about whether individual pieces of material are to be heard in closed proceedings from the perspective of the need to ensure that the proceedings are fair. Judges will refuse applications for material to be heard in closed proceedings where this is required by Article 6 fairness, and can order the Secretary of State not to rely on a particular argument if the Secretary of State is not willing to disclose material relevant to that point.
It is important to note that the application for a closed procedure could have open and closed parts. Only sensitive information which would damage national security would result in a proceeding taking place without the other parties, and I hope this explanation sets out the balance we have sought to strike.
Amendments 56, 63, 64, 65, 66 and 67 tabled by my noble friend concern the special advocates, and from the debate there is clearly concern in your Lordships’ House about the role of special advocates. These amendments highlight the important issues of how they are appointed and how they carry out their functions. I will endeavour to set out why I believe we have the necessary provisions in the Bill to allow the special advocates to operate as effectively as possible while at the same time safeguarding national security.
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We wish to ensure that the special advocate system works as fairly and as effectively as possible, while avoiding damaging disclosure. I believe that special advocates are extremely effective, particularly in arguing
for the disclosure of material from closed into open, or for summaries of that material to be disclosed. As the courts have recognised, special advocates provide an effective measure of procedural justice where a closed material proceeding is used.
My noble friend Lord Hodgson expressed concern about late service of closed material. The Government reject the allegation that there is a systemic problem. The Government’s position is that we would seek to ensure that all material, including closed material, is served according to the directions set by the court wherever possible. The court sets the timetable and can take action, including adjourning proceedings, if any real prejudice has been caused to the individual.
My noble friend also raised the practice of serving redacted documents. In all civil proceedings the Government review the documents that they hold and assess their relevance. In making their assessment, the Government are bound by the duty of candour and legislative disclosure obligations and are inevitably advised in this regard by counsel who also have a duty to the court, just like any other defendant in civil proceedings.
Redactions on the grounds of relevance to closed documents are sometimes necessary. However, we are not aware of a widespread or increasing practice of redacting information. Special advocates can challenge redactions about which they have concerns during litigation. If the court disagreed with the Government on redactions, then it would rule accordingly. Similarly, if special advocates sought disclosure of specific documents, the court would rule on their relevance if the Government resisted such disclosure.
My noble friend Lord Thomas of Gresford, on a point picked up by the noble Lord, Lord Beecham, asked about who pays for the special advocates. The Government pay for them. Decisions with regard to the costs of a case overall are determined by the judge in the normal way, but the Government always meet the costs of the special advocates because it is the Government who wish to see the closed material proceedings.
Amendments 56 and 65 would provide that a special advocate be appointed at the beginning of proceedings in which the Secretary of State has made an application under Clause 6(1). There is, however, already sufficient provision in the Bill on the appointment of special advocates. The Bill already provides that the appropriate law officer may appoint a special advocate to represent the interests of the excluded party. The rules of court under the Bill will, like the rules of procedure which exist for other statutory CMPs, then deal with the precise mechanics. There is thus already sufficient provision for the law officer to be informed and to act to appoint a special advocate. In a moment, I shall return to the point raised by my noble friend about “must” and “may”. The format in the Bill follows what is already the case for existing CMPs, such as in the Terrorism Prevention and Investigation Measures Act 2011 and the Special Immigration Appeals Commission Act 1997.
Amendment 63 introduces the opportunity for special advocates to take instructions from the party they are representing. There are already provisions for
communication between special advocates and the excluded party according to set procedures. The detail of these procedures would be set out in the rules of court, which would reflect those in Part 80 of the Civil Procedure Rules for TPIMs.
The noble Lord, Lord Beecham, asked about communication prior to the service on a special advocate of the closed material. The position is that under the procedures before receipt of the closed material, the special advocate is free to speak to the excluded person and his open legal representatives without restriction and to take instructions from the excluded person. I hope that gives some reassurance on that point.
It is following receipt of the closed material that the special advocate may communicate with the excluded person only with the permission of the relevant court or tribunal which is then required to notify the Secretary of State or the party whose security-sensitive material has been adduced in closed proceedings. This requirement is designed solely to guard against the risk of inadvertent disclosure of security-sensitive material. Even then, there are no restrictions on the written communications that a special advocate can receive at any time from the excluded party.
In the context of these proceedings, it is important to make the point, as the noble and learned Lord, Lord Woolf, did in our debates on the second day in Committee, that in these circumstances we are dealing with situations where the state is likely to be the defendant. I think the noble Lord, Lord Pannick, talked about the case against it. Mostly in these situations, we are dealing with cases against the Government, and it is likely that the state will be the defendant and the person who is the claimant will have full knowledge of the case that he or she wishes to present. The noble and learned Lord, Lord Woolf, expressed that in a very clear and compelling way earlier in our proceedings.
The special advocates acknowledge that communication to the excluded party in relation to the substance of the closed material may well be impossible. That picks up a point made by my noble friend Lord Marks who said how this could be extended. We are certainly aware that special advocates have raised these matters. The purpose of the restrictions on communication is to ensure that national security is protected by avoiding inadvertent disclosure. That is something that the special advocates are also determined to avoid. In instances where agents or sources are involved, this can be about protecting life itself. The agencies have reaffirmed their willingness to continue assisting with queries and rephrasing questions on the closed material, something which at the moment occurs in cases on an informal basis.
There has also been some suggestion about unfettered communication on procedural matters. If there is a problem, a communication about administrative or procedural matters might appear innocuous but could inadvertently reveal something of the nature of a closed case. Every case has different circumstances, different contexts and different sensitivities which a special advocate may well not be aware of and may not be expected to be aware of. What might appear to be a safe question in most contexts may carry a risk in
relation to one case. We believe that only agencies are in a position to make that judgment and fully determine the potential harm to the national interest.
My noble friend proposes, also in Amendment 63, to introduce a provision for the special advocate to apply to a court if he considers that any material should be disclosed in open court. The default position in any proceedings in which the court has declared that a CMP may be used is that material will be in open court. If the Government want material to be heard in closed procedure, they would have to apply for that to happen. In this application, a key part of the special advocates’ role would be to challenge whether closed material should in fact be disclosed to the excluded individual; they have had a number of successes in arguing this in various cases. Therefore I believe that Amendment 63 misunderstands the way in which Clause 7 would work in practice.
My noble friend’s Amendment 64 would introduce an obligation on the appropriate law officer, rather than a discretion on an officer, to appoint a special advocate. I can readily see why my noble friend has tabled this amendment because he may well see that there is a possible let out here from a special advocate being appointed. The current discretionary power allows for the fact that an excluded person may not wish to appoint or provide instructions to a special advocate for whatever reason, in which case it is likely to be impossible for a special advocate to represent the excluded person. However, in practice, it is difficult to conceive of circumstances in which the appropriate law officer would not appoint a special advocate where statute makes provision for a special advocate to be appointed and the excluded party wants a special advocate to represent their interests. The word “may” is used in the corresponding provision of the TPIM Act at paragraph 10 of Schedule 4.