My Lords, I speak to Amendment 6B in my name. Everyone accepts that CMPs represent a significant departure from normal rule of law principles. Many people accept that they also contain a strong strand of unfairness, and that this unfairness consists in the exclusion of one of the parties from a critical part of the proceedings, perhaps even that very part of the case in which the defining issue is decided. Therefore, the claimant can never know the evidence that has damned his cause—it is never revealed to him.
Let us be blunt about this. The party withholding the material, and gifting it to the judge in secret, will almost always be the Government. The illiberalism inherent in the Bill seems to me to lie in this. CMPs as presently constituted are not fair, because they do not and cannot deliver balanced justice between the citizen and the state. This is the finding of the JCHR; it is the finding of those eminent lawyers appointed by the Government to conduct closed proceedings, the special advocates; and it was the overwhelming conclusion of this House when last we debated these measures. It is no doubt in recognition of this central unfairness that the Government insist, and the Secretary of State has repeatedly insisted, that it is their fervent desire that CMPs should only ever be used as a last resort.
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Words are cheap. What does the future hold? The real question is: does the Bill as presently drafted secure that promise that CMPs shall remain a wholly exceptional device to be deployed only in the most wholly exceptional circumstances? The JCHR thinks not. The special advocates think not. Your Lordships’ House, when it last debated these issues also thought not. It is a matter of regret for me that my party, in the face of this striking illiberality at the heart of the legislation, associated itself with the removal in the other place of safeguards previously added to the Bill by your Lordships. I believe that that was a grave mistake and that, as a result, the Bill presents renewed risks.
What of the amendments? The amendments proposed by the noble Lord, Lord Beecham, and I simply seek to ensure that which the Government affect to guarantee: in the noble Lord’s case, that CMPs should be explicitly and unmistakably a matter of last resort—who will argue that they should not?—and, in the case of my amendment, that the court must, when considering the drastic, wholly exceptional step of going into closed session, ejecting one party from the court and listening to the other in private, pay heed to the deep public interest in open justice, balancing it in coming to a conclusion on whether to move into secret session.
The Secretary of State told the JCHR that it is not for a court to weigh the merits of open justice in deciding whether to go into closed session, because CMPs are not about open justice, they are about secrecy. That alarming response, which may have revealed more about the Government’s mindset than Mr Clarke intended, presupposes that applications by the Government for CMPs will always be well founded and will only ever allow for one response. That is precisely the point: they will not.
Nothing would be more corrosive of justice and public confidence in justice than the routine intrusion into our system of closed procedures, of secret courts, of excluded defendants, of confidential meetings between government lawyers and the judge. Without adequate safeguards, that is exactly the risk we run. I in no sense intend to criticise the security agencies by saying this, but why would not they choose a CMP over a PII hearing if they had the choice? Why would they not choose secrecy over openness, and why would a Home Secretary not do the same? Why would the Home Secretary, a government department or a security agency not want to use the CMP process whenever they possibly could? The answer is absolutely plain: they would and they will. If we are not careful, we will see secrecy trumping openness time and again.
The courts—the judges—must be empowered fully to do justice in individual cases. It is the fundamental duty of a judge to regulate the fairness of the proceedings before him. This legislation must allow a judge to discharge that duty. In short, the judge must be empowered and permitted to pay heed to the public interest in open justice when he is faced with a government application to go into closed session. That is because closed justice is, on the face of it, so inimical and contrary to our long traditions of fair process, and openness and transparency in justice, so intrinsic to our way of life and our legal processes, that to close down a court, to expel a claimant, without first balancing the virtues of justice being seen to be done is, or should be, unthinkable. If my amendment has any purpose, it is simply to hold the line.