My Lords, it is very clear that open justice is part of our justice system. It is implied by the words “fair and effective”, and it did not need any words in statute to encourage the justices
of the Supreme Court to have regard to the importance of openness in these situations. The noble and learned Lord, Lord Neuberger, said the following words, to which I think my noble friend Lady Berridge referred:
“No judge can face with equanimity the prospect of a hearing, or any part of a hearing, which is not only in private, but involves one of the parties not being present or represented”.
He went on to say:
“Nonetheless, as Parliament has decided that, in certain circumstances, such a procedure is necessary and permissible in a trial before a judge, we have concluded that, on an appeal from a decision in a case where a judge has considered closed material and given a closed judgment, it may be necessary for this court to go into closed session in order to dispose of the appeal justly”.
In other words, the just decision on that particular point was that the court would go into closed session.
On the other issue, I also do not find there to be any real difference in what Members of your Lordships’ House wish to see, and it is an issue of judgment as to how we achieve it. These cases should be the rare exceptions; there are a very small number of cases. When I gave evidence by letter to the Joint Committee on Human Rights on 31 October, there were 27 cases which, across government, we considered would lend themselves to closed material proceedings. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, expressed his view as to why closed material proceedings were necessary, but in his judgment these amendments should be in the Bill. I have explained this, and indeed others who have contributed to the debate have also explained why it is not necessary.
We all aim at the same thing: at the end of the day, this should take place in a small number of cases. It is a matter of judgment. As I indicated earlier, at this initial gateway of closed material proceedings the court is considering an application having not yet seen all the material for the case. Against this background, we are keen that legislation should avoid the court being required to meet a condition which would then require it to establish definitively at that point whether a fair determination would be possible by any other means.
As I said, that could mean the exhaustion of a range of measures, including a full PII exercise. Of course, as the noble Baroness, Lady Kennedy of The Shaws, said, it is something to which the Secretary of State should apply his or her mind. If one reads the judgment of Lord Brown in Al Rawi, he indicates at one point that it would take 60 lawyers the best part of two or three years to go through all the material. That is the scale. If that is the road down which judges felt that they ought to go because of the wording of the Bill, that would underline much of its purpose.
I also pick up the point made by the noble and learned Lord, Lord Goldsmith, who seemed to think that the means of achieving it being a backstop and a rare exception was the provision in proposed new subsection (1F) about the court having to be satisfied that the Secretary of State had considered PII. We do not even get to that stage, because the court must not even consider the application unless it is satisfied that the Secretary of State has considered PII. The question asked by the noble Lord, Lord Butler of Brockwell, was very much to the point: the safeguards of last resort, as it were, are not that requirement on the Secretary of State but, rather, the courts being satisfied that the disclosure of material would be damaging to
national security, and that it would be in the interests of the fair and effective administration of justice for the application to be granted.
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