My Lords, it is too late in this process to take the view that closed material procedures can never take place. I have grave doubts about this. It was something that we considered when I was in government, when we had to deal with special procedures in relation to control orders and where people’s liberty was at stake. This is a different order, which is to do ultimately with money. Be that as it may, we are past that point. The question we must ask is: under what circumstances should they exist? Both these amendments, which I support, although not quite in the terms in which Amendment 6B was put forward by the noble Lord, Lord Macdonald of River Glaven, are important, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, has just explained. I want to focus particularly on Amendment 6A.
Amendment 6A requires that the court should be satisfied that a fair determination of the proceedings is not possible by any other means. I thought that was something which this House had now accepted as an absolutely fundamental condition. It may be that CMP had to happen sometimes—many of us do not like the idea that it happens at all—but if it does, it is because that is the only fair way of determining it. Why is that resisted? As I understood it from the Minister, it is thought that somehow that condition is met by new subsection (1F) in Amendment 6. That says:
“The court must not consider an application by the Secretary of State under subsection (1A)(a) unless it is satisfied that the Secretary of State has, before making the application, considered whether to make, or advise another person to make, a claim for public interest immunity ”.
My noble friend Lord Beecham said that that is a very low bar. It is an extremely low bar and it is very important to recognise that.
This does not begin to approach the question of a determination by the court—the judge—as to whether this is the only fair way of determining the issue. All he has to do is to decide that the Secretary of State has considered whether a PII application should be made. That determination will take 30 seconds. Counsel appearing for the Secretary of State will say, “The Secretary of State has considered it”. There is no going behind that and, indeed, it will be true. The Secretary of State will have considered it. He may have rejected it on the grounds that he has very carefully considered it and decided that it was all too difficult, or simply because he thinks it would be expensive, which was part of the point made by the Minister, or just that he does not like the idea of doing it because he really wants a CMP to be made. That is no safeguard at all. If any noble Lord thinks it amounts to some equivalent of a determination by the court and that the court’s view is that no other way can be found of fairly determining the case, he would be quite wrong.
Why, then, would this amendment tabled by my noble friend Lord Beecham be rejected? It states:
“If the court considers that a fair determination … is not possible by any other means”.
There are only two possible reasons for rejecting the amendment. One is that we would actually like to see CMPs even if there is another way of determining the proceedings and so the fair determination of proceedings would not only be by CMP. It would be a very retrograde step to accept that. It would absolutely be the message that the noble and learned Lord, Lord Brown, has indicated that we must not send. The other reason would be that we do not trust judges to make that determination. I very much hope that this House will not for one moment countenance the proposition that when it comes to deciding whether a case can be fairly determined we would not trust the decision of our courts. I will warmly support my noble friend if he divides the House. I will support Amendment 6B but it is Amendment 6A that I have particularly spoken to.
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