My Lords, I support Amendments 6A and 6B. I think that there is agreement in the House that CMP should be used only in the most exceptional circumstances and that it so radically departs from one of the most fundamental of our common law principles that it is essential that its use is kept to a minimum.
I endorse what the noble and learned Lord, Lord Brown, said about the process that happens in a court. All this sometimes seems arcane or obscure to those who are not lawyers and it is easier to pin it down by having examples. Those of us who practise in the courts and often deal with security matters know that the process described by the noble and learned Lord, Lord Brown—where a judge will consider whether you can redact documents and take out references or anything else that might in any way disclose the identity of an informant—takes place in these cases and has done over the years. There is the business of someone giving evidence with their identity never being disclosed, or giving it from behind a screen, and there other ways of doing it using new technology. There are many mechanisms, quite different from the PII process, which can protect the things that the security services are sensitive to, and it can be done with agreement while retaining the sense of as much openness as possible.
My sense of what the House wants here is for the closed material procedure of barring the defendant and their lawyers from the court and from hearing the evidence—which is fundamentally unfair and flies in the face of the idea of a fair trial—to happen in the most exceptional circumstances. It therefore seems extraordinary that there should be resistance to the notion that the Bill should state that such a process should be used only as a last resort. The argument made for not doing so is that it would be time-consuming for the Secretary of State—because the Secretary of State, even in this minute number of cases, would have to look through the papers and acquaint him or herself with the detail—as well as for the court. As your Lordships have heard from others who, like me, have participated in proceedings of this kind, one would expect a Secretary of State or a judge in a case of this kind to consider with care the nature of the evidence and whether it was possible to keep it as open as possible. That is what we would expect, and it is certainly what I would expect of a Minister who was exercising authority. Otherwise we would ask, “If the Minister does not want to examine the evidence that is being kept secret, who is exercising the authority? Is it the Minister or is it the security services?”. We really have to be very careful here. I remind the House of what happened in Matrix Churchill, where we understood that there was just a signing-off of requests by the security services, which was of great discredit to government at the time. I would warn against what this procedure will do to confidence in government, confidence in the security services and confidence in our judicial processes.
8.15 pm
We could consider a number of examples. As the noble Baroness, Lady Berridge, mentioned, we could face this procedure in a case involving scary terrorists. It is very easy for us to start thinking, “Well, of course we want scary terrorists dealt with in this way”. However, just imagine that there is a terrible disaster at somewhere like Sellafield and the families want to sue in that matter. There could be good reason why government would not want the security arrangements to be picked over in open court. One therefore has to work out just how far these secret proceedings might spill. If they are allowed in civil cases, where is the end to them? Do we start seeing a process of creep? This is likely to happen if we do not say clearly, as the legislature, that this has to be last resort.
The second thing I wanted to raise was the case of Belhaj. Some of you may remember that Mr Belhaj is now a government Minister in Libya. There was a time when Mr Gaddafi did not like him one bit and saw him as an enemy of the state and wanted him brought back to Libya. It would seem that we assisted. Evidence—papers from the Libyan Government that fell into the hands of Human Rights Watch after the conflict—seemed to indicate that the British Government had played an unhappy role in the rendition of Belhaj to Gaddafi. Belhaj says that he was then tortured. He is embarking on a case against the Government because of those matters.
Imagine the process. A CMP is used. If Belhaj wins his case, will judges be happy not to be able to give full disclosure as to why they reached that conclusion?
Does it not say terrible things about our security services and possibly even our Ministers? Do we not want the structures of government, which may have been responsible, to be openly examined so that it cannot happen again and those who had responsibility should be called to account? If there has been any kind of collusion and torture, and it is dealt with behind closed doors, does that not mean that our security services end up being discredited? That is what will be understood by the general public.
If a case is lost, it seems to me that the same thing will happen again. If Belhaj takes his case forward and loses it, it will be seen as a whitewash. Our judges and judicial system will be discredited. The same will happen to Ministers and the security services—a discrediting of so many of the core institutions of our state. Surely the least we should require in the Bill is that, for such a departure from principle, this has to be a matter of last resort.
On Amendment 6B, concerns were expressed about judges being involved in a balancing between the great business of open justice—which allows us to know what is going on in our name and within our state, our government and even our security services—and, where there is wrongdoing, national security. Openness will sometimes be more important for the health of the nation because of the poison that is released by secrecy. There will be circumstances in which balancing of that kind is required of our judges, and we should incorporate it into this legislation. I will support these amendments. I am delighted to hear that the noble and learned Lord, Lord Brown, takes that view too. He has been one of our greatest judges. I hope that the rest of the House will follow us into the Lobby.