My Lords, I hesitate to stand after the really important contributions by so many Members of this House, including a number of very noble and learned Lords. I do not want to make a long speech, but there are some points that have possibly not been touched upon. The central problem here is about litigants, not defendants. It is about people making claims that currently cannot be heard. This is an attempt by the Government to find a way, imperfect as it is—“a second-best solution”, in the words of David Anderson QC—to get these cases
heard and to put into court, albeit in a restricted way, material that is not currently put into court, so that there is a better chance of the full picture being seen by the court. David Anderson said—if I may, I quote him slightly to correct him:
“We are in the world of second-best solutions”.
He added:
“But it does not seem to me that the level of injustice inherent in the use of a CMP in a case of this nature necessarily exceeds either the injustice to the claimant of a case being struck out, or the moral hazard and reputational damage to the intelligence agencies that is caused by settling a case which, had it been possible to adduce all the evidence, would have been fought”.
This does not seem to me to be primarily about the reputation of the security and intelligence agencies. The service of which I was once a member welcomes scrutiny. If we disobey or break the law, we should be prosecuted. The first part of this Bill is about greater scrutiny. I expect that scrutiny to evolve and over the years to become more detailed. However, the reputational damage is significant in a way that has nothing to do with personal feelings; it is to do with whether these organisations, which are funded by the taxpayer and scrutinised by Parliament and other bodies, are going to be less effective as a result of this reputational damage. This needs resolution, but it is not primarily about that. It is primarily about making sure that some of these extraordinarily serious allegations are actually heard. At the moment, we do not have an inquiry. I believe that some criminal investigations are happening, but there are still a whole lot of allegations out there that are not resolved, and this would be a way of resolving them.
There is one other point I want to make, which I think speaks to the amendment made by the noble Lord, Lord Macdonald. On the face of it, the amendment looks unexceptional, but I think it is a question of the confidence of our human sources, which is very important. I do not need protection; they do. A point made by the noble Lord, Lord Owen, was that human sources are either approached by the intelligence and security agencies inviting them to provide information in confidence or they approach us or they are the sources of an ally. Not all of them but many of them do so with the highest motives, and in many cases their lives are at risk—although, again, not always. I look to my noble and learned friend Lord Brown. Obviously I entirely agree with him that national security is undefined and that there is a spectrum. There are some things, which he mentioned, at one end of the spectrum that might be labelled “national security” but are not damaging to reveal. However, at the other end of the spectrum—this has not really been discussed today—there is some highly sensitive and secret material in relation to which the risk to human sources’ lives is high.
I know that I am a bit repetitive on this issue in the House and I apologise, but I still think that it is not given enough attention. Technology is vulnerable. If we expose it in a careless way or in a way that is not protected by this legislation via the test that open justice means that we can ditch the national security side of things—I know that the amendment of the noble Lord, Lord Macdonald, is not as crude as that but there is a suggestion that the two things can be held in balance, and I look again to the point made by
my noble and learned friend Lord Lloyd—that will potentially have a very chilling effect on the willingness of people to offer us information. I hope that that is wrong but, if it does have that chilling effect, we will cease to get the information.