My Lords, I rise to speak to Amendments 19A to 19D in my name as amendments to Amendment 19, concerning review and renewal of the operation of CMPs in the legislation.
In the other place, as my noble and learned friend has explained, the Government conceded that the operation of Clauses 6 to 10 of the Bill should be the subject of a review after five years of the Bill’s operation. That is the effect of Amendment 19. As far as they go, the provisions of the amendment are welcome. They were introduced against the background of the recommendation of the Joint Committee on Human Rights in each of its two reports in November last year and February this year that the operation of Part 2 of the Bill should be subject to annual renewal. This amendment not only fails to meet that recommendation but, as it stands, has a number of significant weaknesses that make it frankly unfit for its purpose.
First, proposed new subsection (1) requires the Secretary of State on his or her own to appoint the reviewer. Yet one of the central complaints about the Bill, as my noble friend Lord Macdonald pointed out earlier, is that in practice it gives too much power to the state and to the Secretary of State in particular. The concerns focus not only on the degree to which the Bill sacrifices common-law principles of fairness and open justice but also on the relationship between the Secretary of State and the courts. That remains true notwithstanding the concessions, important though they are, that there have been on judicial discretion and equality of arms.
The Bill undoubtedly accords to the Secretary of State significant new power to influence how trials of some civil cases may be conducted. How the Secretary of State exercises that power and whether it is found in the light of experience to be either excessive or unnecessary will be fundamental questions for the reviewer to address.
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It is therefore entirely wrong that the person appointing the reviewer to report on the operation of those provisions is that very Secretary of State whose powers are to be reviewed. The arrangement proposed is akin to allowing one of the parties to choose the judge. My first amendment, Amendment 19A, addresses this issue by requiring the Secretary of State to consult the senior judges of the three jurisdictions before appointing the reviewer. That is consistent with the principle that for these provisions to command public confidence there must be judicial involvement in their implementation at every stage. There are those who would argue for a strong fetter, for a veto on the appointment. I say to them, first, that it would take a very brave Secretary of State to ignore the advice of the two Chief Justices and the Lord President and, secondly, that were my other amendments to be successful, it would be for Parliament to assess the suitability of the reviewer when considering whether to approve a renewal order, if he sought one. I hope that the Government will decide to accept this modest and obviously fair
amendment in spite of what my noble and learned friend has said, because it will enhance the confidence of the public in the review process that they have wisely introduced.
The second weakness in Commons Amendment 19 is that the Government propose only a single, one-off review after five years with the report to be laid before Parliament but without any power for Parliament to act upon it. These provisions, whether justified or not, represent, as we have heard, a serious departure from fundamental common-law principles of open justice and fairness. There is concern and uncertainty about the degree to which they are in fact required and about how they will work in practice, so it is essential that their continued existence and their operation in practice should be kept under regular and careful scrutiny and that that scrutiny should be scrutiny by Parliament. The Commons proposal comes nowhere near fulfilling that objective. The review is all very well, but what is its point if there is no requirement for anyone to act on it and no power for Parliament to respond? If a review concludes that CMPs in civil cases are now unnecessary, or that they are working injustice to the extent that they should be abolished, Parliament should be able to respond directly to that review. As it stands, this is a review without teeth or consequence.
My Amendments 19B to 19D are in line with the assurance sought by the Joint Committee on Human Rights in its letter to the right honourable Ken Clarke dated 18 March this year. In its drafting, it owes much to the Terrorism Prevention and Investigation Measures Act 2011. They need to be considered together. They would provide for a regular review of the operation of CMPs once every five years, with the Secretary of State given a power to make a renewal order following each review, but subject to the affirmative resolution procedure, so both Houses would have to approve a renewal order before it took effect. If no renewal order were made within 90 days of the reviewer’s report being laid before Parliament, the CMP provisions would cease to have effect, except for cases where a Section 6 declaration had already been made, so it would not affect existing cases. The first review would need to be after four years rather than five to ensure that a review and a vote on renewal, if renewal were sought by the Secretary of State, could take place in the next Parliament. In opening this debate, the Minister suggested that it was not appropriate for Sections 6 to 10 to lapse because CMPs are to be used for review of sensitive information certificates in relation to excluded Norwich Pharmacal material and those reviews under Clause 15(1).
I believe that for a lawyer of my noble and learned friend’s distinction it must be quite clear that it would be a simple matter of drafting, either in the Commons to my amendment or in a renewal order subsequently, to maintain the secrecy of proceedings under proposed Section 15(1) so that a review of a sensitive information certificate could be carried out in closed proceedings. I suggest that that does not affect the need for a review.
These proposals represent the minimum required to retain for Parliament a proper role in overseeing the operation of these uncertain CMP provisions after they have been brought into legislation.