My Lords, I am grateful both to my noble friends and other noble Lords who brought these amendments forward and to all noble Lords who contributed to this debate. The amendments raise important issues concerning the Bill and it is therefore important that the House has had a thorough and well informed debate. I am acutely aware that noble Lords are concerned about the way in which the Bill draws the balance between the interests of national security and the role of the judge in providing fairness for parties in proceedings.
My noble friend Lady Williams is right to remind us—I do not know whether she used the words, but the sense of what she was saying was—that the price of liberty is eternal vigilance and that it is important, whenever there are issues such as this, that we give considerable scrutiny to the way our laws are framed.
Amendments 57, 58, 59 and 68 would, if accepted, remove the obligation on the court not to allow information to be disclosed if it would damage the interests of national security. Instead, the court would have to balance the damage done to national security with the public interest in fair and open justice.
On a slightly technical point, my noble friend Lord Hodgson asked why we need Clause 10(1), which he thought was perhaps repetitious. The answer is that Clause 10(1) refers to the Section 6 proceedings as a whole, whereas Clause 7(1)(c) deals only with the document-by-document process at stage 2, which determines whether individual pieces of material will be heard in open court or in a CMP.
The Wiley balancing exercise has been referred to in this debate and I believe it underlies Amendments 57, 58, 59 and 68. It may help in presenting the case to set out some of the background to this, although I am acutely aware that a number of your Lordships who have taken part in the debate are well aware of it. However, the pertinent and pressing questions are often asked in the contributions from the non-lawyers and it is therefore important to set the response in context. The traditional method of protecting sensitive material in civil proceedings is for the Secretary of State to claim public interest immunity. Under PII, which is a common law regime, the Secretary of State certifies that disclosure of the evidence in question would be contrary to the public interest and that the interests of justice in favour of disclosure are outweighed by that of the public interest. The public interest could include the interests of national security, good international relations, the detection and prevention of crime, or any other aspect of the public interest.
In deciding whether to permit non-disclosure, a court will consider whether the Secretary of State has struck the right balance. The court will consider those aspects of the public interest that favour non-disclosure against those that favour disclosure: for example, the public interest in trials being fair, in justice being open and in cases being able to be fully reported. This is sometimes called the Wiley balancing test after an important case on PII.
Normally, a claim for PII will be supported by a ministerial certificate and will be considered by the trial judge. Unless the fact of a PII claim being made is itself too sensitive to be disclosed to the other party,
for example because it might risk revealing the existence or identity of an agent, the other party will be able to attend the hearing. This will be with a view to persuading the court that, in carrying out the public interest balancing exercise, it should order disclosure of the documents in question, for example because of their likely high degree of relevance to the case. If the court refuses a PII claim, the Government will need to consider whether to settle the proceedings rather than disclose the damaging material.
The question that these amendments pose to the Government is why the court should not be able to consider whether there are overriding public interests that point to disclosure. In short, the Government consider that the approach in the Bill is the right one because it is in the national security context. The only ground on which a court may permit material to be heard in closed session is on the narrow one that disclosure of material would damage the interests of national security. Aside from the important countervailing fair trial issues, which, as we have heard and as I will return to, are explicitly dealt with in the Bill, the Government consider that it would be truly exceptional for a different aspect of the public interest to outweigh the public interest in preventing damage to the interests of national security.
The Government have considered this issue carefully and have introduced safeguards that we believe ensure that there is justice for claimants and that the judge will have a crucial role in the process. The Government are committed to putting as much information as they can into the public domain and to complying with our obligations under Article 6 of the ECHR. I think it is important to set out in detail how the Government have balanced the judicial role to ensure that as much information as possible is given to the claimant and made public.
It is important to emphasise that, in reality, the Bill contemplates a two-stage test to any application for a CMP. The result is that CMPs are available in tightly defined circumstances in which the judge is given the final say over the use of a CMP and a similar level of flexibility to that available to a judge under PII. The first test, which I think we went over during the previous day in Committee, is on application by the Secretary of State to the judge for a closed material procedure on the basis that a party would be required to disclose material in the course of the proceedings, the disclosure of which would damage the interests of national security. The judge will grant the application if he or she agrees with the Secretary of State’s assessment and make a declaration that a CMP can be used. I think my noble friend Lord Faulks said it would certainly not allow a flippant use or a flippant claim of national security. Indeed, I believe it would not allow one where the real motivation was not about national security interests being damaged at all but covering up or concealing embarrassment.
There is then the second stage, at which the judge considers the treatment of each individual piece of material, in particular whether it should be heard in open or closed proceedings. The judge has a number of important tools with which to ensure that the proceedings are held fairly. The sole ground on which
material may be heard in a closed hearing is where the court accepts that disclosure would damage the interests of our national security. Where the court permits the material to be heard in closed procedure, the court must consider ordering summaries to be given to the claimant or permitting only parts of documents to be heard in closed proceedings—in other words, redaction. If the court refuses the application for material to be heard in closed proceedings, the relevant person, usually the Secretary of State or a government agency, is required either to disclose the material, or the judge can direct the relevant person to not rely on that material—in which case it will be excluded from the proceedings—to make concessions or to take such other steps as the court may specify. This is a similar level of flexibility to that which is available to the judge under PII and ensures that, in practice, the amount of material heard in open session where a CMP is available will not be less than had a PII exercise occurred instead. At all stages, the court will make the necessary orders to ensure that the proceedings are conducted in a manner which complies with Article 6 of the European Convention on Human Rights.
The Government consider that the approach in the Bill is the right one in the national security context. It is used in other current CMPs such as TPIMs and SIAC. In any case, in practice, under current arrangements, if on the basis of its balancing test the court rejects a PII claim, in whole or in part, the Government use every tool available to them to ensure that that material remains protected—including, if necessary, withdrawing from the proceedings or settling.
Amendments 60 and 61 would require the court to order a summary of the closed material to be provided to the excluded parties and, in doing so, would remove the obligation to ensure that a summary of the closed material did not contain material the disclosure of which would be damaging to national security. There is already a provision for a judge to require disclosure where necessary for Article 6 to be enforced.
My noble friend Lady Berridge asked for special advocates to be involved in determining what that summary should contain in terms of Clause 7(1)(d). I can assure my noble friend that the special advocates are very much involved in that process. No doubt we will be arguing—and, as we have in past cases, arguing effectively—for as much information to be included as possible. We agree that information should be summarised if it can be. However, if these amendments were to be accepted, and the Government were unable to provide a summary due to the sensitivity of the information, the risk is that the Government would be forced to withdraw or settle. That would effectively mean that the problem we are trying to solve would still exist. Again, there would be silence on very important matters, there would be no final judgment for a judge and none of the questions posed by the claimant would be answered.
No one has sought to pretend that closed material procedures are better or as good as open proceedings, but we have said that second-best justice is better than no justice at all. The intervention of the noble Lord, Lord Butler, indicated that we are dealing with circumstances where there is arguably a defence but
one that under present arrangements cannot be advanced because to do so would damage the interests of national security. We are seeking to allow that defence to be put forward, albeit by means of a closed material procedure.
I appreciate the concerns about the claimant getting as much information as possible and the process being fair. My noble and learned friend Lord Mackay indicated at Second Reading that we have to look not just at Clause 7(1) but Clause 7(2) as it interacts with Clause 7(3)—if a party is unable to provide a summary, then the court can order that party to make concessions or to not rely on that material. These are very real safeguards.
Amendment 62, which my noble friend Lord Lester and the noble Lord, Lord Pannick, have spoken to, and which was supported by my noble friend Lord Carlile of Berriew and by other noble Lords, suggests that the best way of ensuring compatibility with our European convention obligations is by adding to the Bill words that give effect to the judgment of your Lordships’ Judicial Committee in June 2009, in what I think is commonly known as case AF (No. 3). In that case, their Lordships ruled that for the stringent control orders before them, in order for the control order proceedings to be compatible with Article 6, the controlled person must be given sufficient information about the allegations against him or her to enable them to give effective instructions to the special advocate in relation to these allegations. I hope I have summarised fairly what the Judicial Committee of the House determined.
7.30 pm
This means that even where disclosure would be against the public interest, for example if disclosure could put the life of an informant at risk, the disclosure obligations set out in AF (No. 3) would apply in such a context. By contrast, in the case of Tariq v Home Office, the Supreme Court did not consider that the requirements of Article 6 required AF (No. 3)-type disclosure to be provided in an unlawful discrimination claim against the Home Office, brought by an immigration officer whose security clearance had been withdrawn. I can assure the Committee that the Government share the desire of all those who have contributed to the debate and those who have not to ensure that, wherever closed proceedings are used, they are compatible with Article 6. However, I will seek to assure your Lordships that the provisions in the Bill achieve this. That was a specific assurance that the noble Lord, Lord Beecham, sought.
The proposals have been guided by fundamental rights to justice and fairness, including those in the European Convention on Human Rights. The convention itself recognises that it may sometimes be necessary to restrict openness in court proceedings where national security requires it. I have made a statement of compatibility under the Human Rights Act 1998 in relation to this Bill. As we have frequently reflected in our deliberations, there are specific provisions in Clause 11(5)(c) which emphasise that nothing in Clauses 6 to 10 are to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the European Convention on Human Rights. That is specifically the point of reassurance sought by the
noble Lord, Lord Beecham. Clause 11(5)(c), as it were, trumps anything in Clauses 6 to 10. Perhaps that is where the noble Lord saw a weakness. I hope that reassures him about the purpose of including that.