My Lords, I beg to move that this House do agree with the Commons in their Amendment 4 and in doing so, I shall also speak to the other amendments
in this group. It is fair to say that the provisions dealing with closed material procedures have undergone significant changes since the Bill was first introduced into your Lordships’ House 10 months ago. This House made significant amendments to the Bill on important issues of principle. A number of noble Lords made their support for these provisions contingent on those changes being made. The Government have brought forward amendments that address the views of this House, and I believe that the measures in the Bill are proportionate and sensible.
In seeking to persuade your Lordships’ House that these amendments should allay the concerns expressed, we should remind ourselves briefly why the Government have brought the closed material procedure—CMP—provisions forward. Fundamentally, they will increase scrutiny of the intelligence and security agencies. CMPs will ensure that intelligence material which would risk the lives of agents and sources, or betray secret techniques is not revealed in open court. At present, the only method to protect very sensitive material such as the identity of informants from disclosure in open court is through public interest immunity. The problem is that a successful PII claim results in the exclusion of that material from the proceedings. Any judgment reached at the end of the case is not informed by that material, no matter how central or relevant it is to the issues in the case. This system works in some contexts, but when a case is so saturated in sensitive material the PII procedure can remove the evidence which one side needs to put their case. Settling is not always an option, and in serious cases involving accusations such as mistreatment, settling does not allow the court to get to the whole truth of what may or may not have happened. The other possibility in cases, such as the Carnduff-type strikeout also results in a case not being heard at all. We believe that CMPs offer a way through the dilemma. They enable the courts to ensure that allegations made against the Government are fully investigated and scrutinised, while addressing the potentially severe implications for national security.
A number of changes were made as the Bill proceeded through Committee and, principally on Report in your Lordships’ House. There were six key amendments on Report, which it is fair to say were taken forward on the basis of a report from the Joint Committee on Human Rights. These increased the discretion available to the judge and allowed any party to apply for the CMP, and indeed for the court to order one, on its own motion.
Turning to the amendments, the Government have sought to take on board the concerns of the Joint Committee on Human Rights and amendments passed in your Lordships’ House. We have brought forward a completely restructured Clause 6—Amendments 4 to 15. There is also a proposed new clause, which is Amendment 16. It addresses the last resort concern by allowing the court to revoke a CMP declaration at any time. The Government’s proposals reflect the intention underlying the amendments made in this House, but also seek to avoid some unintended consequences that would cause problems in practice. Under these amendments the judge now has total discretion over whether to make a CMP declaration following an application by any party to the proceedings, or a
Secretary of State, should the Secretary of State not be a party to the proceedings. The court also has the power to order a CMP declaration of its own motion. In making the case for CMPs, the Government argued that they can sometimes be fairer for claimants, too. The courts have confirmed that in some circumstances claimants’ cases will automatically fail without a CMP.
The Joint Committee on Human Rights, and this House observed and argued, rightly, that if CMPs are sometimes in the interests of claimants, they should be able to apply for them and the court should be able to order CMPs as well. These amendments make some technical changes to the amendments originally passed by your Lordships’ House, but they put all parties to proceedings on the same footing when it comes to making an application for a CMP declaration, and will allow the court to order one of its own motion. Where a non-government party is applying for a CMP declaration in relation to sensitive material they do not hold themselves, their interests will be represented by a special advocate in the closed part of the hearings determining that application. The Government have also fully accepted the amendment passed by this House that gave the judge discretion on whether there should be a CMP declaration. As I reflected in some conversations with my noble friends, many of us in our parliamentary lives have tabled amendments to change “must” to “may” or “may” to “must”. This House passed that this should be a change from “must” to “may”, which is possibly the most profound amendment that it made. It has some far-reaching consequences with regard to asserting judicial discretion. Previously, if the court was satisfied that there was relevant evidence that would damage the interests of national security were it to be disclosed, the court had no option but to make a declaration. Now the judge does have discretion.
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The Shadow Justice Secretary Sadiq Khan, who sits in another place, was quoted last week in the Guardian as saying:
“The decision on whether or not to have court hearings in secret should be decided by a judge, not a minister”.
Indeed, that is what these amendments provide. The final decision on whether a CMP can be held rests with the judge not with the Secretary of State. The Bill provides the judge with the explicit power to reject an application.
The Government have also brought forward a revised test for a CMP declaration that we believe reflects other amendments passed in this House. Before considering an application from the Secretary of State for a CMP declaration, the court must be satisfied that the Secretary of State has first considered whether to make, or advise another person to make, a claim for public interest immunity for the material on which the application is based. Rather than requiring the Secretary of State to make a PII claim first, the court should check that the Secretary of State had good reasons to apply for a CMP declaration rather than claim PII. The court rules, which will require affirmative procedure in both Houses, will make it clear that where the Secretary of State is the applicant, the Secretary of State must provide to the court written submissions
detailing the reasons for not making or advising another person to make a claim for PII in relation to the material on which the application is based.
The second hurdle is that the court cannot order a CMP unless there is relevant material that would damage the interests of national security if it were disclosed. The Bill makes no provision to order a CMP to protect material that would not damage the interests of national security if it were to be disclosed, that includes material that would merely be embarrassing to the Government. It has been asserted in a number of commentaries that this is simply a matter of trying to hide embarrassment. Let me make it clear that the relevant material must damage the interests of national security were it to be disclosed. Crucially, the court can only a CMP declaration in the first place only if one would be in the interests of the fair and effective administration of justice in the proceedings. In examining what is in the interests of the fair and effective administration of justice in the proceedings, the court will want to focus on the relevance of the sensitive material to the issues in the case in order to assess how necessary it is to take it into account to resolve the issues in the case, and whether there are alternative measures that would enable the case to be tried without a CMP. The court will also want to take into account other factors, too. These may include whether both parties would consent to a CMP, the importance of the sensitive material to the issues in the case and the existence of material—such as intercept material—that could only be dealt with in closed proceedings.
A recurring theme in our debates has been a genuine concern about the potential overuse of CMPs; it has been said that they might become the default position. We have sought to ensure that this should be a matter of procedure used only in very exceptional circumstances. It is this concern that has fuelled the desire to ensure that CMPs are used only as a last resort. The Government are sympathetic to this aim, but for reasons I will come on to explain when I address amendments in the name of the noble Lord, Lord Beecham, we believe that writing this into the legislation will be problematic. Instead, the Government have addressed this concern in a different, and I believe more powerful way. The provisions in Amendment 16 have brought forward a new clause, putting the court under a duty to review the CMP declaration at the end of the pre-trial disclosure phase. I respectfully suggest that in the debate that has gone on since this amendment was introduced in another place that perhaps insufficient attention has been given to this particular new clause. The court must revoke the declaration if it concludes a CMP is no longer in the interests of the fair and effective administration of justice in the proceedings. The court has also been given the power to revoke a CMP declaration at any point in the proceedings.
When the court is reviewing the CMP declaration at the end of the detailed document disclosure phase, it will be in a much better position to make a final decision about whether or not to proceed with a CMP. At this point the court will have had the benefit of scrutinising in detail all of the relevant sensitive material, as well as all the relevant open material, and—with the assistance of special advocates—deciding what should be disclosed, whether a summary of any closed material
not damaging to national security should be provided, and what is necessary for the proceedings to comply with Article 6 of the European Convention on Human Rights, even if that requires a summary that is damaging to national security. The judge would be required to revoke the CMP declaration if he or she considers that it would no longer be in the interests of the fair and effective administration of justice in the proceedings. If the court decided to revoke, the parties would then have to consider other options for handling the proceedings. We believe this is an extremely powerful tool in the hands of the judiciary to ensure that CMPs are not overused.
The government amendments advance our continued efforts to ensure that CMPs are and will be used appropriately, and that the courts, not the Executive, will have the power to control the process. The Government were urged by your Lordships’ House to rethink our approach. We listened and we brought forward this package of changes. I believe there is nothing in the objectives between the Government and the Joint Committee on these issues, and the amendments reflect a fresh approach that take account of the Committee’s views and the views of this House. Judges will be empowered to ensure that CMPs are available in those cases where they are needed, but that they will not be overused.
Amendment 17 provides that certain proceedings are to be treated as Section 6 proceedings for the purpose of certain clauses; this includes proceedings on or in relation to an application for a declaration and proceedings on or in relation to a decision of the court to make a declaration on its own motion. There are similar provisions in relation to revocation proceedings which are principally intended to cover circumstances in which the court has revoked a CMP declaration and the Government are appealing this decision. Amendment 17 also provides for who a relevant person should be in relation to such proceedings.
There are a number of consequential technical amendments in this group. Amendment 44 corrects a minor drafting error in one of the provisions of the Bill which amend the Special Immigration Appeals Commission Act 1997.
There has been very genuine concern to ensure that proper safeguards are in place. The amendment tabled by the noble Lord, Lord Beecham, and that tabled by my noble friend Lord Macdonald, reflect a belief that the Government have removed sensible and clear safeguards inserted by this House. Their amendments seek to provide that CMPs could only be ordered where a fair determination of the proceedings would not be possible by other means; and change the test for a CMP such that one would only be possible where the degree of harm to the interests of national security would outweigh the public interest in the fair and open administration of justice.
I understand why there is a desire to make these amendments, but I would wish to explain why we believe these are not sensible safeguards, but would instead damage what we are trying to achieve. Taken together, the amendments could be taken to mean that there could be a CMP only when the court had gone
through and exhausted every other possible option. There would be uncertainty over what this might include and considerable scope for satellite litigation. If this amendment were made, the court may well consider it would have to conduct a full PII exercise on all the material in the case before it could even consider in principle whether or not there should be a CMP. Even if it was painfully obvious to everyone concerned that a CMP was the only way the issues in the case would be tried, or even where all parties agreed, this could add undue delay at the cost to the taxpayer and delay justice for the claimant.
At this stage, the court is considering the application for a CMP having not yet seen all the material in the case. When we were having earlier debates we referred to it as a “gateway”. Against this background, “not possible by any other means”—the wording of the amendment—establishes a very high bar to meet as it could be argued that the court could not establish definitively at this point whether a fair determination was possible or not by any other means, without demanding a PII exercise first. In order to satisfy this condition, the court would likely feel under a very heavy obligation to fulfil this test. Quite properly, it might be urged to do so by those who are representing the interests of the claimant. Even if the court was restricted to making this judgment only on the basis of the material supporting the CMP application, it is hard to see how such a judgment could be made based on only a sample of the relevant material. The court might then conclude that, despite what the statute says, it can fulfil the duty only by requiring a complete PII exercise.
In some cases, it may be clear to both the Government and the court that because the case is saturated with sensitive material a CMP is the best option. However, even when clear to the court that it would want a CMP, it may feel the clause directs it towards completing a process it believes is unnecessary. In such cases, the court should not be catapulted into such a situation. Instead, the judge should have the freedom to make the appropriate decision on whether a CMP should go ahead, without fear of having that decision appealed for having failed to adhere to restrictive process requirements set out in statute. If the court decides against a CMP, other options such as a PII application could still be considered and the court would be free to suggest this in refusing the CMP application or, indeed, revoking the CMP declaration at any point in the case.
It is the Government’s clear intention that the procedure should be exceptional. However, requiring that a CMP should be only a last resort would require the exhaustion of all other avenues first. I recognise that the JCHR disagrees with this view and does not believe that the amendment would have this effect. However, legislation agreed by Parliament must be clear and not be open for uncertainty, which could give rise to satellite litigation and to delayed justice for the claimant.
Passing this amendment would effectively be no improvement on the present position. The Guantanamo civil damages claims were settled in part because a PII exercise for a quarter of a million documents would be so costly and time consuming that a settlement would be cheaper, faster and more certain.
The main point is that with PII the time-consuming disclosure process leads to material being excluded, thereby leaving the Government in a position where they have excluded the material on which they may need to rely to mount a defence. With a CMP, the document disclosure exercise serves the purpose of deciding what material should be considered in closed or open procedures and what is required for the process to comply with Article 6. The disclosure process is a pre-requisite for relevant material to be considered in the court’s determination of the case. The revocation provisions enable the judge to have made these considerations about the handling of material and at the end to decide whether or not still to go ahead with the trial of the issues using a CMP for the closed elements. This provides the reassurance that a CMP would be used only where the judge still considers it both fair and effective.
In order to come to a conclusion about whether a CMP would be a fair and effective means that the court will, by its definition, consider other possible ways to try the case and whether they, too, would be effective as well as fair. We should have no fears that a court would enter into a closed process lightly.
My noble friend Lord Macdonald has also suggested that we introduce a version of the Wiley balancing test. I can see why people think it would be attractive to seek to import into the decision of whether or not there should be a CMP the same test as has been devised in relation to PII. However, that test is not right in this context for a number of reasons. First, PII simply is not working to enable these cases to be tried effectively. If it were, we would not be bringing forward this Bill. Secondly, the Wiley balancing test is used in a very different context. In PII, the judge is considering whether or not to exclude the material. It is appropriate for him to balance the damage that would be caused by disclosure against the public interest and disclosure in terms of the administration of justice.
However, when considering whether or not to grant an application for a CMP declaration, the court is faced with a very different scenario. It must decide the best way to try the case given that there is relevant material which would damage the interests of national security were it to be disclosed. That is a much more nuanced decision. As I have made clear, the availability of alternatives to a CMP, such as PII, will be a key consideration for the judge, as well as other factors such as the degree of relevance of the evidence to the issues in the case, whether there is relevant material, such as intercept, that can only be dealt with in a CMP and whether other parties consent.
My noble friend’s amendment also assumes that fairness will always sit on the side of fully open justice but in some cases the sensitive information will be helpful to the claimant, which makes it fairer. PII would exclude this information.
This is simply the wrong test for these proceedings. The Government’s amendments allow the judge to look at a wide range of relevant factors, set them against each other and decide whether or not a CMP is the best way to proceed with the case. The judge cannot order a CMP unless it is in the interests of
the fair and effective administration of justice in the proceedings, but even then he has discretion about whether or not to grant an application.
This House was clear from the outset of our debates at Second Reading that the courts should be given the discretion to decide whether a special procedure should be invoked in cases that hinge on sensitive national security information. In these amendments, the Government have provided for the court to be given that discretion. Judicial discretion is vitally important but it must be provided for in the right way and at the right stage of the process for it to be meaningful, and it must have regard to the Government’s responsibility for matters of national security.
The Bill is targeted at dealing with a specific problem which has arisen since the Supreme Court ruling in 2011 that it was for Parliament to decide where and how CMPs should be available. No one warms to the idea of closed material proceedings, but we have made some fundamental and important changes to the Bill which allow for closed material proceedings to proceed.
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The noble and learned Lord, Lord Woolf, who is in his place, recently said in the Times that there are a minority of cases where the sensitive evidence cannot be put before an open court in a way that achieves justice. He said that for this reason the proposals contained in the Justice and Security Bill which allow the judge to order a closed material procedure in a civil case have a great advantage over the existing process for protecting national security evidence. They will ensure that both the Government and the claimant are given the greatest opportunity to put their case, and that concerned citizens will have the benefit of a final judgment on whether serious allegations have foundation. What is important is that the operation of these CMPs should be under the complete control of a judge. That the Government have now given judges that control is to be welcomed. The Bill now ensures that we will retain our standards of general justice while also putting an end to the blindfolding of judges in a small number of cases.
The Government have been urged to rethink their approach. We have listened and we have brought forward, substantially, a new structure for closed material proceedings. We have embraced the spirit of the amendments passed by this House and recast them to give them practical effect. I commend the amendment.