This is the Bill as the House has now passed it. The House has accepted that CMPs are needed. The Government will and should properly reflect on the steer that this House has provided as the Bill moves to the other place. Crucially, we believe that closed material proceedings are absolutely necessary and are, indeed, a significant improvement on the current system.
I am not going to rehearse all the arguments that we have been through on a number of occasions. I will just pick up one or two points that were made in debate. The noble Lord, Lord Dubs, talked about a system of “whispers”. The closed part of the proceedings will not be a cosy chat between the judge and the government lawyers. The non-Government parties will be excluded from the proceedings, as will members of the public, but the interests of the excluded parties will be represented by special advocates, about which I will say a word in a moment. In other words, the closed proceedings will look much like open proceedings in that they will have counsel for the Government and counsel who are special advocates representing the interests of the excluded party and making submissions to the judge.
I understand the concerns that are expressed about the special advocate, but it is also fair to say that the special advocates themselves sometimes underplay their own abilities. The noble and learned Lord, Lord Woolf, said that he has read the transcripts in the case of M v Secretary of State for the Home Department, and had been impressed with the openness and fairness with which the issues in closed session were dealt with by those who were responsible for the evidence in that case before the SAIC. He went on to say that while the
procedures that the SAIC adopts are not ideal—no one is pretending that this is a perfection of justice or making that argument—
“it is possible by using special advocates to ensure that those detained can achieve justice and it is wrong therefore to undervalue the SIAC appeal process”.
The noble Lord, Lord Dubs, also referred to what he said were “cover ups”. This was echoed by a number of contributors to the debate. This completely misunderstands the whole purpose of closed-material proceedings. I share the view of those who have expressed in these debates that they abhor torture. The Government abhor torture. The Government do not condone it, and nor do they seek others to conduct torture on their part.
My noble friend Lord Thomas said that we should assume a case where there has been malfeasance on the part of someone acting on behalf of the British Government. The point is that if there were such as case, it is important that these issues are properly considered and investigated. The point under the present situation, with public interest immunity certificates, is that if public interest immunity is successfully asserted, none of that evidence will actually be before a judge. It is important that that evidence should be before a judge. It is important that there is fairness for the claimant, and there is not necessarily fairness for the claimant if the claimant has to settle because important information cannot be considered in open court and we have not allowed them the opportunity of closed material proceedings. While there may be some satisfaction in getting a financial settlement, it might not be a satisfaction if you have indeed been wronged and do not have a court judgment to confirm that. It is not only the security services, on which we have perhaps focused our debates, for which the present system can act unfairly. It is unfair, too, on someone with a just claim who cannot get it properly vindicated in the courts because evidence cannot be brought before them. That makes the point that that is also, as has been said, unfair to those who believe that they have a proper defence and cannot deploy it. In our first group of amendments today the noble Baroness, Lady Manningham-Buller, indicated that that has the effect of lowering morale in cases where people believe that they have done no wrong and they have a proper defence but cannot deploy it.
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Settling is not always as simple as it seems but, equally, people have talked about the damage that it might do to the justice system. As my noble friend Lord King said in our first debate, increasingly I believe that if payments are given out but no case has been proven, that, too, can be damaging to the justice system. As the much-quoted David Anderson QC said in evidence to the Joint Committee on Human Rights about settling:
“It seems to me that it is corrosive if not of national security then at least of justice, and that there is a public interest in these very sensitive national security cases being fairly resolved. If Government has to settle a vast and high-profile series of damages claims … while feeling that it has perfectly good evidence on which to defend the case, that is corrosive of trust in the security services; it is corrosive of trust in the authorities; it is corrosive of trust in the legal system”.
There is, therefore, corrosion of trust, if indeed there is a whole series of cases that are settled without any proof having been made.
My noble friend said something about reputational damage, and perhaps felt that that was not so important. Other people have settled cases without reputational damage. The real concern comes when a case is settled without admission of liability, and there has been a very serious allegation—for example, of torture or of rendition, which indeed is wrong. There will never have been an opportunity to go before a court, even if in the less satisfactory situation of closed proceedings, and that opportunity will have been denied because such proceedings are not available.
If there has been a settlement, then people can go to recruit those who may wish to take action against this country. They will be able to say, “This person claimed that the United Kingdom Government tortured them, and the United Kingdom paid out sums of money to them”, and you can bet your life that the small print saying “without liability” will never be mentioned. However, that is more than reputational damage; it is potentially damaging to our national security as well.
No one has pretended that closed material proceedings are in fact as good as the open proceedings that have been the hallmark of our justice system. It has been said many times in these debates that imperfect justice is better than no justice at all. I therefore urge the House to reject the amendment in the name of the noble Lord, Lord Dubs.